Peeler v. Commissioner of Correction ( 2015 )

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ADRIAN PEELER v. COMMISSIONER
OF CORRECTION
(AC 36346)
DiPentima, C. J., and Keller and Mullins, Js.
Argued September 8—officially released November 17, 2015
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
D. Wade Luckett, assigned counsel, with whom, on
the brief, was Walter C. Bansley IV, assigned counsel,
for the appellant (petitioner).
Emily D. Trudeau, deputy assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Craig P. Nowak, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
KELLER, J. Following the habeas court’s judgment
denying his amended petition for a writ of habeas cor-
pus, the petitioner, Adrian Peeler, appeals following the
denial of his petition for certification to appeal. The
petitioner claims that the court abused its discretion
by denying his petition for certification to appeal on
the following grounds: (1) his trial counsel rendered
ineffective assistance by failing to present testimony
from a particular witness; (2) at his criminal trial, the
state deprived him of his right to due process by failing
to preserve certain exculpatory evidence; and (3) he
demonstrated his actual innocence. We dismiss the
appeal.
The following facts and procedural history are rele-
vant to the present appeal. In 2001, the petitioner was
convicted, following a jury trial, of conspiracy to com-
mit murder, for which he was sentenced to a term
of incarceration of twenty years. Our Supreme Court
affirmed the judgment of conviction, at which time it
set forth the following facts underlying the crime: ‘‘In
the 1990s, the [petitioner] and his brother, Russell
Peeler (Russell), ran a large-scale drug trafficking oper-
ation in the city of Bridgeport. The [petitioner] and
Russell divided the profits derived from the operation,
which were estimated to be as much as $38,000 per
week.
‘‘Sometime in 1997, Russell and a former drug traf-
ficking partner, Rudolph Snead, Jr., had a dispute,
apparently over drug money. As a result of this dispute,
Russell attempted to kill Snead on September 2, 1997.
Specifically, on that date, Russell was riding in a car
with Ryan Peeler, Corey King and Shawn Kennedy when
Russell noticed Snead’s car in the parking lot of a bar-
bershop located in Bridgeport. Snead subsequently left
the barbershop and drove to a gas station. Two seven
year old boys, one of whom was Leroy Brown, Jr., were
passengers in Snead’s car.
‘‘After Snead exited the gas station, Russell followed
Snead to the Lindley Street entrance ramp to Route
25 in Bridgeport. Snead proceeded up the ramp but
gradually slowed down and pulled off to the side of
the road. The car in which Russell was riding pulled
alongside Snead’s car. Russell, who was armed with a
.40 caliber, semiautomatic handgun and seated in the
right front passenger seat, fired several shots at Snead.
Although Snead had been injured by the shots, he was
able to drive himself to St. Vincent’s Medical Center in
Bridgeport where he received treatment for his gun-
shot wounds.
‘‘Shortly thereafter, Officer Robert Shapiro of the
Bridgeport police department interviewed Snead and
his two young passengers. Shapiro’s investigative report
included the names of all three interviewees. On the
basis of Snead’s identification of Russell as the person
who had shot him, Russell was arrested and charged
with attempted murder.
‘‘Russell posted bond, however, and was released
from custody. While free on bond, Russell shot and
killed Snead in the same barbershop that Snead had
patronized immediately prior to the Lindley Street
shooting. After ballistics tests performed on shell cas-
ings retrieved from the murder scene and the scene of
the Lindley Street shooting revealed that they had been
fired from the same gun, Russell was arrested and
charged with the murder of Snead.
‘‘Russell again secured his release by posting bond.
As a condition of his release, Russell was required to
be in his house on Chopsey Hill Road in Bridgeport by
9 p.m. each evening. He also was required to wear an
electronic ankle bracelet so that his compliance with
the court imposed curfew could be monitored.
‘‘In January, 1998, during the course of pretrial discov-
ery in the criminal case involving the Lindley Street
shooting, the state provided Russell with a police report
identifying Brown as one of the two passengers in
Snead’s car when the Lindley Street shooting had
occurred.
‘‘Russell did not learn, however, until December 23,
1998, that Brown and his mother, Karen Clarke, had
given the police sworn, written statements about the
Lindley Street shooting. In addition, after Russell was
arrested for Snead’s murder, the state provided Russell
with copies of certain ballistics reports connecting the
shell casings found at the scene of the Lindley Street
shooting with the shell casings found at the scene of
Snead’s murder.
‘‘During the fall of 1998, Russell frequently speculated
about the identity of the state’s witnesses. Upon learn-
ing that Brown’s testimony linked him to the Lindley
Street shooting and that the ballistics evidence con-
nected that shooting with the murder of Snead, Russell
began to speak about killing Brown and Clarke. On one
such occasion, Russell and the [petitioner] had a heated
discussion in which Russell repeatedly implored the
[petitioner] to kill Brown and Clarke. The [petitioner]
declined to do so, however.
‘‘At this time, Russell and his drug trafficking associ-
ates were using a house located at 200 Earl Avenue in
Bridgeport to process crack cocaine. The residents of
that house, including Josephine Lee, were crack cocaine
users who obtained their drugs from Russell and the
[petitioner]’s drug operation. Brown and Clarke lived
across the street, at 207 Earl Avenue.
‘‘Lee testified that, on January 6, 1999, Russell and
King were at her house, observing Clarke’s house from
a window in Lee’s dining room. Lee further testified
that the [petitioner] and Gary Garner, one of Russell’s
associates, came by her house that day. King eventually
left Lee’s house and, thereafter, Lee observed Russell
and the [petitioner] having a discussion in her living
room.
‘‘Russell and the [petitioner] then entered Lee’s
kitchen and prepared some crack cocaine. At that time,
Russell offered Lee ‘a couple hundred’ dollars if she
would kill Clarke. Lee, who testified that she never had
handled a gun, declined to do so, however. Russell
thereupon asked the [petitioner] if he would kill Clarke.
According to Lee, the [petitioner] stated that he would
‘take care of it.’
‘‘Russell then asked Lee to keep an eye on Clarke’s
house and to contact him when Clarke and Brown
arrived home. Lee agreed to do so, and Russell wrote
down his beeper number for Lee so that she could reach
him when Clarke and Brown returned home. Russell
gave Lee some crack cocaine, apparently in return for
her willingness to act as a lookout for him.
‘‘Lee testified further that, the next day, in the late
afternoon, she was at home ‘getting high’ when she
observed Clarke pull into her driveway. Both Clarke
and Brown exited the car and entered Clarke’s house.
Lee then called Russell’s beeper number. Upon receiv-
ing the beeper message, Russell called Lee back. Lee
told Russell that ‘the little boy and lady [were] home.’
A few minutes later, Lee entered her living room and
saw the [petitioner] standing there. The [petitioner],
who was dressed in black and had a gun in his hand,
greeted Lee and then left Lee’s house through the front
door. Lee followed him.
‘‘The [petitioner] crossed the street and walked
toward Clarke’s house. The [petitioner] stopped, how-
ever, to speak to Garner, who was the lone occupant
of a car that was parked in front of Clarke’s house. Lee
testified that she heard the [petitioner] tell Garner that
‘he was going in.’ According to Lee, Garner then warned
her that if she ‘said anything,’ she and the ‘whole house’
were ‘going to get it, too.’
‘‘The [petitioner] and Lee walked up to Clarke’s front
door. Lee rang the doorbell while the [petitioner] hid
behind her. Lee heard Clarke, from inside the house,
ask, ‘Who is it?’ Lee identified herself as ‘[t]he girl across
the street.’ Clarke started to open the door when the
[petitioner] pushed past Lee and forced the door open.
‘‘Lee testified that she followed the [petitioner] into
Clarke’s house where she observed him chase Brown
and Clarke up a flight of stairs. While Brown was ‘holler-
ing out for his mommy,’ the [petitioner] pursued Clarke
into an upstairs bedroom. According to Lee, she heard
the [petitioner] say something about Brown being a
witness and then heard a gunshot from the bedroom.
Lee testified that, immediately thereafter, the [peti-
tioner] emerged from that room and shot Brown in the
head. The [petitioner] then ran out of the house. Lee
initially froze, but, thereafter, she, too, fled Clarke’s
house. By the time she had done so, however, both the
[petitioner] and the car in which Garner was sitting
were gone.
‘‘After the shootings, the [petitioner] drove to a Com-
fort Inn motel in Milford and checked in under a false
name. He subsequently went with Kennedy and King
to the mall in Stamford. The [petitioner] eventually
returned to the Comfort Inn where he remained until the
next morning. The next day, the [petitioner] purchased a
round trip plane ticket to North Carolina under another
false name. The [petitioner] was to leave for North
Carolina on January 10, 1999, and was to return to
Connecticut on January 16, 1999. The [petitioner] there-
after changed his departure date to January 17, 1999,
and his return date to January 23, 1999. The [petitioner]
never used the ticket, however, and did not exchange
it or seek a refund.
‘‘On January 14, 1999, Russell was arrested for the
murders of Brown and Clarke. Soon thereafter, the
Bridgeport Post ran a story about Russell’s arrest that
included a photograph of the [petitioner]. That same
day, at the [petitioner]’s request, Kennedy drove the
[petitioner] to New York City where the [petitioner]
boarded a train headed for North Carolina. On January
21, 1999, members of a Federal Bureau of Investigation
(FBI) fugitive task force apprehended the [petitioner]
in North Carolina in connection with the murders of
Brown and Clarke.’’ (Footnotes omitted.) State v.
Peeler, 267 Conn. 611, 615–20, 841 A.2d 181 (2004).
The petitioner filed a writ of habeas corpus in 2004.
In June, 2013, the petitioner filed an amended petition
for a writ of habeas corpus. In his amended petition,
the petitioner claimed that his trial counsel rendered
ineffective assistance in a variety of ways, that he was
deprived of his right to a fair trial by the state’s suppres-
sion of and failure to preserve certain evidence, that
he was deprived of his right to a fair trial by the state’s
knowing use of false testimony from several witnesses,
and that he was actually innocent. The respondent,
the Commissioner of Correction, denied the petitioner’s
claims and raised the special defense of laches.1 The
court held a hearing on the amended petition on various
days in 2013. On November 12, 2013, the court issued
a memorandum of decision wherein it denied the
amended petition.2 On November 20, 2013, the peti-
tioner filed a petition for certification to appeal to this
court. In the context of this petition, the petitioner set
forth four proposed grounds for appeal.3 On December
3, 2013, the court denied the petition for certification
to appeal. The present appeal followed that ruling by
the habeas court.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
he must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . Sec-
ond, if the petitioner can show an abuse of discretion,
he must then prove that the decision of the habeas
court should be reversed on the merits. . . . In
determining whether there has been an abuse of discre-
tion, every reasonable presumption should be given in
favor of the correctness of the court’s ruling . . . [and]
[r]eversal is required only where an abuse of discretion
is manifest or where injustice appears to have been
done.’’ (Internal quotation marks omitted.) Wilson v.
Commissioner of Correction, 150 Conn. App. 53, 56–57,
90 A.3d 328, cert. denied, 312 Conn. 918, 94 A.3d 641(2014).
I
We first address the petitioner’s claim that the court
improperly denied his petition with regard to his claim
that his trial counsel, Patrick J. Culligan and Bruce
Koffsky, had rendered ineffective assistance by failing
to present testimony from a particular witness, Norman
Williams. We disagree.
In his amended petition for a writ of habeas corpus,
the petitioner alleged that his trial counsel rendered
ineffective assistance, in part, because his trial counsel
failed to present testimony from Williams. The habeas
court addressed this claim on its merits. In his petition
seeking certification to appeal, the petitioner broadly
raised the court’s rejection of his claim of ineffective
assistance of trial counsel as one of the grounds upon
which he sought certification. See footnote 3 of this
opinion.
At the habeas trial, the petitioner presented testimony
from Culligan, one of his trial attorneys. Culligan testi-
fied as to his recollection that, in January, 1999, Lee
lived with Williams in a residence situated across the
street from the victims’ residence in Bridgeport, the
site of the murders. Culligan testified as to his under-
standing that Williams had told the police that he did
not know the petitioner and that the petitioner was not
present in his residence on January 6, 1999, and January
7, 1999. Culligan testified, as well, that he had followed
the related criminal trial of the petitioner’s brother,
Russell, which took place less than one year before that
of the petitioner. He testified that he did not recall with
specificity the content of Williams’ testimony during
that separate trial, yet later testified that, insofar as
Williams had testified that the petitioner had not been
present in his residence, Williams’ testimony contra-
dicted Lee’s version of the events that transpired on
January 6, 1999, and January 7, 1999.
Initially, Culligan testified that he did not recall why
the defense did not present Williams’ testimony during
the petitioner’s trial. Culligan testified: ‘‘I’ve been asking
myself why wouldn’t we have called him because he’s
obviously a significant witness for that purpose of impli-
cating, that he couldn’t identify [the petitioner] and . . .
had no recollection of [the petitioner] being at his home
on January 6th and 7th, and I’m sure it’s information
[that was] in our file from the state. And I do not have
a specific memory of why we did not call Mr. Williams
at [the petitioner’s] trial, and . . . to try to give . . .
a reason today would just be speculation completely
on my part.’’ Later, however, Culligan discussed several
factors that mitigated against the defense presenting
Williams’ testimony. Culligan testified that ‘‘it seem[ed]
to [him]’’ that the defense had spoken with Williams,
and that ‘‘Williams had some baggage . . . that could
have made him perhaps not a very reliable witness
. . . .’’ Culligan testified that the [petitioner]’s attorneys
‘‘would not have ignored him and we didn’t ignore him.’’
Although he recognized that Williams had testified in
Russell’s trial that he had not observed the petitioner
in his residence on the dates at issue, Culligan also
observed that Williams’ statements in this regard
needed to be evaluated in light of the fact that, prior
to the events at issue, Williams was unable to identify
the petitioner.
Relevant to the issue of trial counsel’s failure to pre-
sent Williams’ testimony, the respondent presented tes-
timony from Koffsky, who, along with Culligan,
represented the petitioner at his criminal trial. Koffsky
testified that he did not believe that Williams would
have been helpful to the defense, and recalled that there
were several factors that would have weighed against
a decision to call Williams as a witness. Specifically,
Koffsky testified with regard to his recollection that
Williams was ‘‘an older gentleman,’’ ‘‘he used crack,’’
‘‘[h]e allowed his home to be used by the drug dealers
in the neighborhood,’’ ‘‘[he] had . . . sex with . . .
Lee, and he would pay for that sex through the payment
of crack.’’ Koffsky testified that these facts were rele-
vant to an assessment of Williams’ credibility and that
credibility was an important consideration in his assess-
ment of whether to present the testimony of a witness.
He stated: ‘‘[T]he last thing I want is to try to get some-
thing out of a witness and then have him implode on
the stand and have my strategic rationale for calling a
witness backfire.’’
Also, the petitioner presented testimony from Joseph
Corradino, one of the prosecutors at the criminal trials
of the petitioner and his brother, Russell. Corradino
testified that the criminal case against the petitioner
rested on Lee’s testimony because she was the sole
eyewitness to the events at issue. Corradino testified
that the issue of Lee’s credibility was the linchpin of
the case. Corradino speculated that issues surrounding
Lee’s credibility resulted in the petitioner’s acquittal of
several of the serious crimes of which he stood
accused.4 Corradino testified that the state, in prosecut-
ing the case, contemplated which witnesses would be
called by the defense and that he did not anticipate that
the defense would call Williams. Corradino testified
that he believed Williams ‘‘would be a terrible witness
for the state’’ and that ‘‘[h]e’d be a disaster for anyone.’’
According to Corradino, because of the issues sur-
rounding Williams’ credibility, calling him in an effort
to undermine Lee’s credibility ‘‘[c]ould have backfired.’’
He testified that he was familiar with Williams’ testi-
mony in Russell’s trial and that the evidence from that
trial reflected that Williams had provided the police
with inconsistent statements. Corradino testified that
Williams ‘‘was damaged goods. He wasn’t going to add
anything to the case, and he was a seventy year old
crack addict who was a terrible witness when he testi-
fied in [Russell’s] case . . . .’’
During the petitioner’s case-in-chief before the
habeas court, the petitioner offered as a full exhibit the
transcript of Williams’ testimony at Russell’s criminal
trial on May 31, 2000. Following an objection by the
respondent on hearsay grounds, the petitioner’s attor-
ney offered the transcript, in the context of the petition-
er’s ineffective assistance of counsel claim, for the
limited purpose of demonstrating what information
might have been known by Culligan with regard to
Williams’ testimony at that earlier trial. The respondent
did not object to the transcript’s admission on that
limited ground and, following a lengthy colloquy with
counsel about the proper use of the transcript, the court
admitted it ‘‘for purposes of simply showing what Attor-
ney Culligan could have had available to him as opposed
to the truth of what’s in the transcript . . . .’’ Absent
objection, the court referred to its immediately preced-
ing statements that limited the use of the exhibit and
ruled that it was admitted as ‘‘[a] full exhibit for the
purposes agreed upon . . . .’’ (Emphasis added.) In
relevant part, the transcript reflects Williams’ testimony
that he did not know the petitioner prior to the murders
and that he did not recall seeing the petitioner in his
residence on January 6, 1999, or January 7, 1999.
In its decision, the court, citing Nieves v. Commis-
sioner of Correction, 51 Conn. App. 615, 622–24, 724
A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309(1999), rejected the claim of ineffective assistance of
trial counsel on the ground that the petitioner failed to
present affirmative evidence in support of his claim.
The court stated: ‘‘The petitioner . . . failed to present
the testimony of . . . Norman Williams . . . at the
habeas trial in support of his claim that defense counsel
was ineffective for failing to have called [him] as [a]
defense [witness]. . . . [T]he petitioner’s failure to pre-
sent evidence in support of [this claim] is fatal.’’
Before this court, the petitioner argues: ‘‘Norman Wil-
liams’ testimony was admitted as a full exhibit in the
petitioner’s habeas trial. Evidence at the habeas trial
demonstrated that [Russell’s] trial happened before
[that of the petitioner], and that [the petitioner’s] trial
counsel was aware that Norman Williams had given
statements to police and that he had testified in [Rus-
sell’s] trial. [The petitioner’s] trial counsel could not
remember why he did not call Norman Williams to the
stand. He admitted that Norman Williams’ statements
from [the trial of Russell] would have contradicted Jose-
phine Lee’s testimony in [the petitioner’s] criminal trial.
Even [Corradino] admitted that Williams’ testimony
would have been harmful to the state’s case.’’ (Footnote
omitted.) The petitioner argues that the court commit-
ted a ‘‘clear factual error’’ by finding that he had failed
to present evidence of Williams’ testimony. Also, the
petitioner argues that the court erred as a matter of
law by concluding that his ‘‘failure to physically produce
Norman Williams at the habeas trial was fatal to his
ineffectiveness claim.’’ The petitioner argues that the
evidence presented was sufficient to demonstrate the
manner in which Williams would have testified if he
had been called as a witness in the petitioner’s criminal
trial. Further, the petitioner argues that the evidence
presented was sufficient to demonstrate that, had Wil-
liams testified at his criminal trial, such testimony
would have changed the outcome of the trial.
‘‘In order to establish an ineffective assistance of
counsel claim a petitioner must meet the two-pronged
test enunciated in Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Specifi-
cally, the claim must be supported by evidence estab-
lishing that (1) counsel’s representation fell below an
objective standard of reasonableness, and (2) counsel’s
deficient performance prejudiced the defense because
there was a reasonable probability that the outcome of
the proceedings would have been different had it not
been for the deficient performance. . . . Because both
prongs of Strickland must be demonstrated for the
petitioner to prevail, failure to prove either prong is
fatal to an ineffective assistance claim. . . . In a habeas
appeal, this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Citation omitted; emphasis in original;
internal quotation marks omitted.) Atkins v. Commis-
sioner of Correction, 158 Conn. App. 669, 675, 120 A.3d
513, cert. denied, 319 Conn. 932, A.3d (2015).
As the foregoing authority reflects, to demonstrate
that his trial counsel rendered ineffective assistance by
failing to present Williams’ testimony at his criminal
trial, the petitioner bore the burden of demonstrating
that his counsel acted deficiently by failing to present
his testimony and that it was reasonably probable that
such deficient performance affected the outcome of the
trial. At the habeas trial, the petitioner did not present
live testimony from Williams and did not present any
other evidence to demonstrate what testimony, if any,
Williams would have provided had he been called as a
witness at the petitioner’s criminal trial. Contrary to
the petitioner’s reading of the habeas court’s memoran-
dum of decision, the habeas court did not reject his
claim on the specific ground that he had failed to pre-
sent Williams’ live testimony at the habeas trial or that
it would consider only live testimony. The court faulted
the petitioner for failing to present Williams’ testimony
in any form, generally stating that the petitioner had
failed to present evidence in support of his claim.
The petitioner’s argument that the court improperly
required that he present Williams’ live testimony is
belied by events that transpired during the habeas trial
that plainly reflected the court’s willingness to consider
a substitute for Williams’ live testimony. The record
reflects that, on the eve of the habeas trial, it was
brought to the court’s attention that Williams, who was
expected to testify for the petitioner, would be unable
to travel to Connecticut to testify because he was expe-
riencing failing health. On August 7, 2013, over the
respondent’s objection, the court granted the petition-
er’s request to conduct an out-of-state deposition of
Williams, who was residing in Georgia. During a lengthy
colloquy concerning the issue, the court afforded the
petitioner a continuance, until August 31, 2013, to
depose Williams. Although the petitioner’s attorney
referred to his own scheduling issues and expressed
his concerns about completing the deposition by August
31, 2013, he indicated to the court that he would ‘‘make
every single effort to do it.’’ The court made clear that
it would permit the petitioner to present Williams’ depo-
sition testimony and, if necessary, permit the respon-
dent ‘‘the opportunity to either recall witnesses or to
present additional witnesses based on any new informa-
tion or issues that they feel they need to address that
comes out of Mr. Williams’ testimony.’’ The petitioner
did not object to the court’s ruling concerning the depo-
sition and does not challenge that ruling in this appeal.
Furthermore, the record does not support the peti-
tioner’s argument that, by presenting in evidence at the
habeas trial the transcript of Williams’ testimony during
the criminal trial of Russell, he thereby presented evi-
dence relevant to the issue of how Williams would have
testified, if at all, during his own criminal trial. Although
evidence of Williams’ testimony at the criminal trial
of Russell was relevant to the issue of whether the
petitioner’s trial counsel should have attempted to pre-
sent Williams’ testimony at the petitioner’s criminal
trial, such evidence did not demonstrate the manner in
which Williams would have testified, if at all, during
the petitioner’s criminal trial if his trial counsel had
called Williams to testify. Moreover, in the present
appeal, the petitioner is unable to utilize the evidence
of Williams’ testimony to demonstrate prejudice. In
argument before this court, the petitioner stated that
the transcript at issue was admitted as ‘‘a full exhibit’’
at the habeas trial. As we stated earlier in our discussion
of this claim, however, the court did not admit the
transcript at issue as a full exhibit. Absent objection
by the petitioner, the court admitted the transcript as
an exhibit for the limited purpose of demonstrating
what information was known to the petitioner’s trial
counsel concerning Williams’ testimony at the criminal
trial of Russell. When the transcript was admitted as
an exhibit, the petitioner’s attorney agreed with the
court’s statement that the transcripts were not being
admitted as evidence of the truth of what was con-
tained therein.
Thus, the petitioner correctly observes that he pre-
sented evidence of Williams’ testimony at the criminal
trial of Russell, but he erroneously argues before this
court that such evidence properly may be considered
beyond the limited purpose for which it was admitted
at trial. Thus, we do not consider the evidence in an
evaluation of whether any ineffective representation in
this regard was prejudicial to the petitioner.
The petitioner failed to present any evidence to sup-
port a finding that he was prejudiced by the failure of
his trial counsel to present Williams’ testimony. The
record reflects that the petitioner did not present Wil-
liams’ live testimony, Williams’ deposition testimony,
or any other evidence that properly could be considered
as evidence of how he would have testified at the peti-
tioner’s criminal trial. Under Strickland, this failure was
fatal to his claim. Accordingly, we conclude that the
habeas court properly exercised its discretion in deny-
ing the petition for certification with regard to this
claim.
II
Next, the petitioner claims that the court improperly
denied his petition for certification to appeal with
regard to his claim that, at his criminal trial, the state
deprived him of his right to due process by failing to
preserve certain exculpatory evidence. We disagree.
In his amended petition for a writ of habeas corpus,
the petitioner alleged in relevant part that, at his crimi-
nal trial, ‘‘the state suppressed and/or failed to preserve
. . . evidence that was favorable’’ to him, including
certain telephone company ‘‘land line phone records.’’
Also, the petitioner alleged that ‘‘[t]he state failed [to]
obtain, preserve, and/or turn over [federal Drug
Enforcement Agency] phone records, logs, and
matrixes.’’ The petitioner alleged that the state’s con-
duct violated Brady v. Maryland, 373 U.S. 83, 87, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963), and State v. Morales,
232 Conn. 707, 714–15, 657 A.2d 585 (1995), as well as
the United States and Connecticut constitutions.
In our earlier recitation of the facts underlying the
petitioner’s conviction, we referred to the telephone
calls between Lee and Russell on the day of the victims’
murders. In discussing the nature of the petitioner’s
claim concerning telephone company phone records,
the court stated: ‘‘The substance of the petitioner’s
claim was that there were records available in 1999 from
[the telephone company] that could have conclusively
established whether the telephone call Josephine Lee
claimed she had made from Norman Williams’ house
to [Russell’s] beeper when the victims arrived home,
as well as Russell’s call back, ever existed. The testi-
mony of . . . [Diane] Romans [a telephone company
employee], supported this claim, at least to the extent
that records which could have shown this information
were available in the [telephone company] database in
1999. The problem, as . . . Romans testified, was that
these alleged calls were made from a land line telephone
number to another local number, which is information
that would not show up on a customer’s monthly tele-
phone bill. Romans testified, however, that upon mak-
ing a specific request via subpoena or search warrant,
law enforcement agencies would have been able to
obtain the records of the local telephone calls, those
made without having to dial an area code, made to
and from the landline telephone at Norman Williams’
residence up until about one year after the calls were
made.5 In the present case, therefore, information about
the telephone calls Josephine Lee testified as having
occurred on January 6 and 7, 1999, would have been
available upon request until about January, 2000 . . . .
‘‘Romans testified that [the telephone company]
would have purged the records in question from their
system sometime around January, 2000, in the normal
course of business. . . . [A] present search of records
in the [telephone company] database . . . confirmed
that the records do not presently exist . . . . There-
fore, it is not possible to make a present determination
about what information may have been contained in
those records without resorting to speculation. . . .
Without knowing what the records in question may
have said, it is not possible to make any reasonable
finding as to the probability that these records would
have had any impact, let alone one favorable to the
petitioner, on the ultimate verdict.’’ (Citations omitted;
footnote omitted.)
Relying on the foregoing findings, the court rejected
the petitioner’s claim that any conduct by the state in
relation to the telephone company records had violated
any of his rights.6 The court stated: ‘‘With regard to the
[telephone company] records, the petitioner failed to
present any evidence that either the state’s attorney or
any of the law enforcement agencies involved in this
investigation was aware that local-to-local landline tele-
phone call information related to this case even existed,
let alone that anyone subject to the Brady rule was
actually in possession of it and [was] obligated to turn
it over in response to defense counsel’s discovery
request. . . . Additionally . . . it is not possible to
determine what, if anything, contained in the [telephone
company] records would have been ‘favorable’ or ‘mate-
rial’ to the defense. Therefore, the petitioner cannot,
as a matter of law, establish any violation of his rights,
let alone one of a constitutional nature. . . .
‘‘The petitioner also presents an argument that the
state had an obligation, sua sponte, to seek out this
local-to-local telephone record information because it
might, in the abstract, have held some information that
may have supported the petitioner’s alibi claims. Apart
from the duty under the Brady line of cases requiring
the state to turn over potentially exculpatory informa-
tion in the state’s possession, and even, at times, absent
any request by defense counsel . . . this court is not
aware of any rule, nor has the petitioner presented one,
which places an obligation upon the state to conduct
an affirmative investigation into a suspect’s claim of
innocence.’’ (Citations omitted.)
With respect to the records described by the peti-
tioner as federal Drug Enforcement Agency telephone
records, which were admitted into evidence at the
habeas trial as petitioner’s exhibits 32, 33, and 34, the
court stated: ‘‘The first flaw with the petitioner’s claim
is that he has failed to prove that the records were in
fact withheld. . . . Attorney Culligan testified at the
habeas trial that he believed he had seen the records
contained in exhibits 32–34 during his representation
of the petitioner, and Attorney Koffsky testified that,
although he remembered numerous copies of telephone
records, he had no independent recollection one way
or the other of whether he received the specific records
contained in those exhibits. Additionally, even if the
petitioner could show that the records were withheld,
he failed to present any testimony from a competent
individual to explain the meaning of the records in
exhibits 32–34. This means that the petitioner was also
unable to make the necessary showing under Brady that
the records in question were ‘favorable’ or ‘material’ to
the defense.’’
The petitioner’s present claim, related to the state’s
conduct with regard to the records of the telephone
company and the federal Drug Enforcement Agency,
consists of two arguments. First, labeling the telephone
records at issue as ‘‘exculpatory evidence,’’ the peti-
tioner argues that the habeas court ‘‘ignored,’’ ‘‘disre-
garded,’’ or simply did not give attention to his state
constitutional claim under State v. Morales, supra, 232
Conn. 715, and State v. Asherman, 193 Conn. 695, 478
A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct.
1749, 84 L. Ed. 2d 814 (1985).7 Second, the petitioner
argues that, by means of procedural rulings, including
the court’s denial of his motion to open the case and
its denial of his request for a continuance, the court
erroneously prohibited him from presenting testimony
from a witness, Gabrielle Springer, for the purpose of
‘‘establishing [his] . . . claims’’ related to the tele-
phone records at issue.
The petitioner is unable to demonstrate that the court
abused its discretion in denying his petition for certifica-
tion to appeal with regard to the court’s rulings related
to the telephone records. This is because, at the time
that the petitioner filed his petition for certification to
appeal, he did not set forth any of the issues involved
in this claim when he set forth the grounds on which he
sought such certification. See footnote 3 of this opinion
(setting forth petitioner’s proposed grounds for
appeal).8 This court’s analysis in a recent appeal from
a court’s denial of a petition for certification to appeal
is applicable to the facts of the present claim and, thus,
governs our resolution of the claim: ‘‘ ‘[A]n appeal fol-
lowing the denial of a petition for certification to appeal
from the judgment denying a petition for a writ of
habeas corpus is not the appellate equivalent of a direct
appeal from a criminal conviction. Our limited task as
a reviewing court is to determine whether the habeas
court abused its discretion in concluding that the peti-
tioner’s appeal is frivolous. Thus, we review whether
the issues for which certification to appeal was sought
are debatable among jurists of reason, a court could
resolve the issues differently or the issues are adequate
to deserve encouragement to proceed further. . . .
Because it is impossible to review an exercise of discre-
tion that did not occur, we are confined to reviewing
only those issues which were brought to the habeas
court’s attention in the petition for certification to
appeal.’ . . . Tutson v. Commissioner of Correction,
144 Conn. App. 203, 216, 72 A.3d 1162, cert. denied, 310
Conn. 928, 78 A.3d 145 (2013). . . .
‘‘[W]e need look no further than the petition for certi-
fication, which did not include the petitioner’s . . .
claim . . . . This court has previously held that ‘a peti-
tioner cannot demonstrate that a habeas court abused
its discretion in denying a petition for certification to
appeal on the basis of issues that were not actually
raised in the petition for certification to appeal.’ Camp-
bell v. Commissioner of Correction, 132 Conn. App.
263, 267, 31 A.3d 1182 (2011); see also Tutson v. Com-
missioner of Correction, supra, 144 Conn. App. 216–17
(‘[b]ecause the petitioner did not raise the claim [that
he now seeks to have us review] when asking the court
to rule on his petition for certification to appeal, we
cannot conclude that the court abused its discretion
on that ground’); Melendez v. Commissioner of Correc-
tion, 141 Conn. App. 836, 841, 62 A.3d 629 (‘[t]he court
could not abuse its discretion in denying the petition
for certification about matters that the petitioner never
raised’), cert. denied, 310 Conn. 921, 77 A.3d 143 (2013).
Accordingly, we conclude that the petitioner has failed
to demonstrate that [the habeas court] abused [its] dis-
cretion in denying the petition for certification to
appeal.’’ Moody v. Commissioner of Correction, 156
Conn. App. 210, 214–15, 113 A.3d 455 (2015).
III
Last, the petitioner claims that the court abused its
discretion in denying his petition for certification to
appeal with regard to his claim that he was actually
innocent of conspiracy to commit murder. We disagree.
In his amended petition for a writ of habeas corpus,
the petitioner sought relief on the ground that he was
actually innocent of the crime of conspiracy to commit
murder. In support of this ground, the petitioner alleged
that there was evidence that, at a counseling session
that occurred after the petitioner’s criminal trial, Lee
stated that she had testified untruthfully in the prosecu-
tions of the petitioner and his brother, Russell. Also,
the petitioner alleged that Williams’ testimony at the
trial of Russell supported his claim of actual innocence.
The court rejected the petitioner’s actual innocence
claim on its merits. With regard to Lee, the court
observed: ‘‘[The petitioner claims] that Josephine Lee
admitted during a counseling session some three and
one-half years after the [petitioner’s criminal] trial that
she ‘made the whole thing up.’ . . . [T]he petitioner
was not able to introduce any credible or competent
evidence to establish that the comment was ever made.
Additionally, even if Josephine Lee did make the state-
ment in question, her credibility and mental health
issues were not at all secrets. It was well known by all
parties involved in the petitioner’s criminal trial that
Josephine Lee had made numerous contradictory state-
ments regarding her knowledge of the murders. In fact,
these many contradictions and retractions, as well as
her credibility and mental health issues, were the focus
of defense counsel’s strategy at trial, during which he
subjected her to cross-examination for nearly one and
one-half full days.’’ The court stated that ‘‘there was
no secret about the substantive vacillations Josephine
Lee’s story had gone through leading up to the time of
her testimony at the criminal trial.’’
Additionally, the court stated: ‘‘[The petitioner] bases
[the actual innocence] claim on two separate bases: the
comments . . . where Josephine Lee allegedly admit-
ted that she ‘made the whole thing up’ at a counseling
session some three and one-half years after the trial
and an allegation that Norman Williams was home all
day on the day of the shooting and would say that he
did not see [the petitioner] on either of those days,
which would have been directly contrary to Josephine
Lee’s testimony. First . . . the petitioner was unable
to produce any competent or credible evidence that
Josephine Lee ever made such a statement. Addition-
ally, he failed to present either Josephine Lee or Norman
Williams to testify at the habeas trial in support of these
allegations, which is fatal to his claims. . . . Alterna-
tively, even if the petitioner had produced witnesses
who could have testified at the habeas trial in support
of these allegations, the essence of which are that Jose-
phine Lee was not being truthful when she said she
saw [the petitioner] at Norman Williams’ residence, this
evidence was at best only contradictory, and more than
likely simply cumulative, when viewed in the light of the
in-depth cross-examination of Josephine Lee by defense
counsel during the criminal trial, and would have failed
to meet the high standard required to prove actual inno-
cence.’’ (Citation omitted.)
In this appeal, the petitioner challenges the court’s
rejection of his actual innocence claim on the grounds
that (1) the court erroneously declined to conduct an
in camera review of Lee’s medical records; (2) the court
erroneously denied his request for a continuance so
that he could present additional evidence with respect
to the federal Drug Enforcement Agency telephone
records, previously discussed in part II of this opinion,
that had been admitted into evidence; and (3) ‘‘a sub-
stantial portion of the record’’ presented before the
habeas court proved his actual innocence.
In accordance with the authority set forth in part II
of this opinion, we observe that the only ground upon
which the petitioner asked the court to consider grant-
ing his petition for certification to appeal that is argua-
bly related to the present claim was whether the court
‘‘erred in its ruling to exclude Josephine Lee’s medical
records.’’ See footnote 3 of this opinion. In determining
whether the court improperly denied the petition for
certification with regard to the actual innocence claim,
therefore, it is appropriate that we limit our consider-
ation to that narrow issue, as it is the only aspect of
the claim upon which the habeas court was asked to
exercise its discretion.
In his amended petition for a writ of habeas corpus,
the petitioner alleged that, ‘‘[i]n a 2004 medical visit at
the Connecticut Mental Health Center . . . three and
one-half years after the conviction, Lee told a clinician,
among other things, that she ‘made the whole thing up’
against the Peelers.’’ (Emphasis omitted.) The peti-
tioner relied on this allegation in his actual innocence
claim. The record reflects that the petitioner subpoe-
naed and sought a qualified protective order from the
court with regard to records from the Connecticut Men-
tal Health Center concerning Lee. He did so in an
attempt to obtain evidence that, during treatment, she
made statements to clinicians indicating that her testi-
mony against the petitioner and his brother had been
untruthful.9
The respondent filed an objection to the application,
and the Office of the Attorney General, on behalf of
the Department of Mental Health and Addiction Ser-
vices, filed a motion to quash the subpoena on the
ground that it sought production of confidential psychi-
atric records that could not be disclosed absent authori-
zation. At the hearing related to the issue, the
petitioner’s attorney did not share the court’s concern
that it required Lee’s consent even to review her psychi-
atric records. He represented to the court that he was
unable to locate Lee and, thus, had not been able to
obtain her consent to obtain the records at issue. The
petitioner’s attorney stated his belief that, regardless
of whether Lee testified at the habeas trial, he had the
right to present the records in evidence by means of a
record keeper from the health center in an effort to
impeach Lee’s testimony at the criminal trial.
The petitioner’s attorney argued that, although evi-
dence that Lee had testified untruthfully had been pre-
sented at the criminal trial, the records were new and
distinct evidence of Lee’s untruthfulness, and the
records at issue reflected that a clinician believed that
Lee was truthful in her statements concerning her testi-
mony. Also, the petitioner’s attorney indicated that the
records reflected Lee’s new belief that her perjury will
be exposed. The petitioner’s attorney asked the court
to review the records at issue to determine what portion
of the records, if any, should be released to him for use
at the habeas trial.
The court, setting aside any issues of the authenticity
of the records on which the petitioner’s attorney relied,
stated that it did not believe that there was any authority
under which it could review or release the records. The
court stated that ‘‘the petitioner has failed to prove that
he meets either the case law or any of the statutory
exceptions to provide this court with the ability to order
release of these [mental health] records.’’ Contrary to
the petitioner’s arguments, the court concluded that
disclosure was not warranted under State v. Esposito,
192 Conn. 166, 179–80, 471 A.2d 949 (1984).10
The court observed that the petitioner had not pro-
vided information concerning the nature of the records
or the person who had authored them. Also, the court
observed that the records possessed by the petitioner’s
counsel were not authenticated. The court observed
that, even if the rule of Esposito applied in the context of
the petitioner’s habeas claim, there was no compelling
reason to believe that the information at issue would
bear on Lee’s credibility or her ability as a witness to
tell the truth because the substance of the evidence
was not new and it was generated several years follow-
ing Lee’s trial testimony. The court stated that the evi-
dence of Lee’s untruthfulness was ‘‘merely cumulative
to information that appears to have been thoroughly
exposed and thoroughly addressed on cross-examina-
tion [during the petitioner’s criminal trial].’’ The court
stated that the evidence at issue, as described by the
petitioner’s attorney, was merely a different reiteration
of what had been presented and that no compelling
basis had been presented to justify the review or disclo-
sure of Lee’s privileged records. The court, having
reviewed portions of the record of the criminal trial
and other submissions, observed that the evidence, that
Lee had admitted that her prior statements that impli-
cated the petitioner in the crimes were untrue, was
cumulative in nature, and that the subject of such prior
admissions by her had been ‘‘thoroughly and exhaus-
tively litigated at trial.’’ Moreover, the court observed
that a claim of actual innocence in a habeas petition
did not afford the petitioner an opportunity ‘‘to go on
a fishing expedition or to rehash issues that frankly
have already been fully litigated at trial.’’ The court
denied the application for a protective order and
granted the motion to quash the subpoena.
Despite the court’s rulings, during the habeas trial,
the petitioner sought to admit into evidence the mental
health records in the possession of the petitioner’s
counsel. The court excluded the evidence on the
grounds that it was irrelevant, evidence of Lee having
recanted her testimony could not be considered to be
newly discovered, there was no proof as to the origin
of the records, and the petitioner had failed to demon-
strate that the privilege attached to the records should
be violated.
We conclude that the court’s denial of certification
with respect to its ruling to exclude the records at issue
or, more specifically, its failure to conduct an in camera
review of such records, does not reflect an abuse of
discretion. Setting aside any issues relating to the pro-
priety of the court’s observation that it lacked any
authority under which to review or release the
records—much less admit the records into evidence—
the representations made by the petitioner’s attorney
as to the content of such records reflect that the records
simply were an insufficient basis upon which to base
a claim of actual innocence. ‘‘To prove actual innocence
the petitioner must be able to show that based on prof-
fered newly discovered evidence and the entire record
before the jury that convicted him, no rational trier of
fact could [find] proof of guilt beyond a reasonable
doubt. . . . Actual innocence, also referred to as fac-
tual innocence . . . is different than legal innocence.
Actual innocence is not demonstrated merely by show-
ing that there was insufficient evidence to prove guilt
beyond a reasonable doubt. . . . Rather, actual inno-
cence is demonstrated by affirmative proof that the
petitioner did not commit the crime. . . .
‘‘[T]he proper standard for evaluating a freestanding
claim of actual innocence . . . is twofold. First, the
petitioner must establish by clear and convincing evi-
dence that, taking into account all of the evidence—
both the evidence adduced at the original criminal trial
and the evidence adduced at the habeas corpus trial—
he is actually innocent of the crime of which he stands
convicted. Second, the petitioner must also establish
that, after considering all of that evidence and the infer-
ences drawn therefrom as the habeas court did, no
reasonable fact finder would find the petitioner guilty
of the crime. . . .
‘‘Further, we note: To permit a petitioner to bring a
substantial claim of actual innocence based on evidence
that is not newly discovered would be inconsistent with
our Supreme Court’s conclusion that the standard gov-
erning a claim of actual innocence should be more
demanding than the standard used for determining
whether a new trial should be granted because of newly
discovered evidence. . . . We view this holding as one
that balances the societal interests of finality, comity,
and conservation of scarce judicial resources, against
the benefit of dispos[ing] of the case as law and justice
require. General Statutes § 52-470 (a). Entertaining
claims of actual innocence that are not based on newly
discovered evidence would have a disruptive effect on
the finality of judgments because it would permit a
petitioner to raise allegations that, absent proof of an
antecedent constitutional violation that affected the
result of his criminal trial, could have been raised at
the criminal trial. . . . This evidentiary burden is satis-
fied if a petitioner can demonstrate, by a preponderance
of the evidence, that the proffered evidence could not
have been discovered prior to the petitioner’s criminal
trial by the exercise of due diligence.’’ (Citations omit-
ted; internal quotation marks omitted.) Nemhard v.
Commissioner of Correction, 157 Conn. App. 368, 374–
75, 117 A.3d 915, cert. denied, 319 Conn. 902, A.3d
(2015).
‘‘Recantations of inculpatory criminal trial testimony
undoubtedly are relevant to a determination of actual
innocence. But evidence of that nature must be accom-
panied by affirmative evidence of innocence to meet
[the] standard of clear and convincing evidence of
actual innocence. . . .
‘‘Affirmative proof of actual innocence is that which
might tend to establish that the petitioner could not
have committed the crime even though it is unknown
who committed the crime, that a third party committed
the crime or that no crime actually occurred. . . .
Clear and convincing proof of actual innocence does
not, however, require the petitioner to establish that
his or her guilt is a factual impossibility.’’ (Citation
omitted; emphasis in original; internal quotation marks
omitted.) Jackson v. Commissioner of Correction, 149
Conn. App. 681, 706–707, 89 A.3d 426, cert. granted on
other grounds, 313 Conn. 901, 96 A.3d 558 (2014).
The petitioner does not challenge the court’s detailed
finding that, at the petitioner’s criminal trial, Lee was
subjected to a vigorous and lengthy cross-examination
that exposed a variety of factors that tended to under-
mine her credibility. Significantly, the court referred
to the undisputed evidence related to the petitioner’s
criminal trial, evidence that demonstrated that, in stark
contrast to Lee’s trial testimony that implicated the
petitioner in the murders of Clarke and Brown, she had
made several statements, including written statements,
in which she denied knowing who had perpetrated the
crimes, and had denied her own involvement in the
crimes. Certainly, the evidence that the petitioner
sought to introduce by means of Lee’s medical records
was not identical to evidence of this nature that had
been presented at the time of his criminal trial, yet
the evidence unmistakably tended to demonstrate the
substance of what already had been amply presented
at the time of the trial, that, on more than one occasion,
Lee had recanted her version of relevant events, and
that there was ample evidence to demonstrate that she
was not a credible witness. This inherently cumulative
nature of the medical records significantly decreased
its value.
Furthermore, even if the records at issue could be
viewed as new or compelling evidence of recantation,
the petitioner did not accompany it with any allegations,
let alone newly discovered affirmative evidence, to
demonstrate his actual innocence. Beyond relying on
the evidence of Lee’s alleged recantation in the medical
records, the petitioner relies on Williams’ testimony at
the trial of Russell, which, as we have observed pre-
viously in this opinion, was not admitted for its truth.
Additionally, the petitioner relies on the testimony dur-
ing the habeas trial of Corradino, which, he argues,
demonstrated the importance of Lee’s testimony and
demonstrated that the state’s case against him was
weak. He also relies on the testimony during the habeas
trial of his trial counsel, which, he argues, demonstrated
the importance of Williams’ testimony in contradicting
that of Lee. Moreover, the petitioner urges us to con-
sider evidence that was presented during his criminal
trial which, in his favorable view of it, ‘‘tends to show
that [he] was not involved in the murders at all.’’
None of this evidence, whether viewed in isolation
or as a whole, properly may be considered as newly
discovered affirmative evidence of his actual inno-
cence. For the foregoing reasons, we conclude that the
court properly denied the petition for certification to
appeal with regard to the issues involving Lee’s medical
records because such records were insufficient to sup-
port a claim of actual innocence.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The court, determining that any prejudice resulting from the petitioner’s
delay in bringing a petition for a writ of habeas corpus was more harmful
to the petitioner than to the respondent, rejected the defense of laches and
considered the petitioner’s claims on their merits.
2
On December 19, 2013, the court issued a corrected memorandum of
decision. In its corrected decision, the court merely omitted a blank footnote
that had appeared in its original decision of November 12, 2013.
3
In his petition for certification to appeal, the petitioner stated that he
had set forth the grounds on which he requested certification in his applica-
tion for waiver of fees, costs and expenses and appointment of counsel
on appeal. In that application, which he submitted with his petition for
certification to appeal, the petitioner set forth four grounds on which he
proposed to appeal, as follows:
‘‘(1) Based on the facts, the judge misapplied [the] Strickland v. Washing-
ton [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] standard.
‘‘(2) Court erred in its finding that my trial attorneys’ performance
wasn’t deficient.
‘‘(3) Court erred in its ruling to exclude Josephine Lee’s medical records.
‘‘(4) Court erred in its ruling to admit . . . [federal Drug Enforcement
Agency] phone records only as a partial, and not [a] full, exhibit.’’
4
The jury returned a not guilty verdict with regard to one count of murder
and two counts of capital felony.
5
The court went on to observe in relevant part: ‘‘Despite her testimony
that this information was readily available upon request, albeit using very
specific language, it is interesting to note that neither the state’s attorney,
an FBI special agent who amassed thousands of pages of other landline
and cell phone records while leading a concurrent investigation into the
drug operation being run by the petitioner and his brother, or the defense
attorneys were aware that the telephone company maintained these local
landline records, that they were even available for request, or that there
would have been any distinction between that information and the informa-
tion typically turned over upon a subpoena or warrant requesting subscriber
records. In the end, it appears that the availability of these local landline
records . . . was somewhat of a well-kept ‘secret’ of the telephone com-
pany . . . .’’
6
As part of his claim of ineffective assistance of trial counsel, the peti-
tioner alleged that his trial counsel improperly had failed to present ‘‘phone
record information’’ to (1) ‘‘[i]mpeach [telephone company] testimony that
local calls were not possible to obtain,’’ (2) ‘‘[i]mpeach Josephine Lee by
showing that the initiating call from Josephine Lee to Russell . . . did not
exist,’’ (3) ‘‘[i]mpeach Josephine Lee by showing that the call from Russell
. . . to Josephine Lee did not exist,’’ (4) ‘‘[i]mpeach Josephine Lee by show-
ing that the call from Russell . . . to [the petitioner] did not exist,’’ (5)
‘‘[p]rovide an alibi by way of cell site locations showing that [the petitioner]
was on his way home from Bridgeport to Milford at the time of the murder,’’
(6) ‘‘[p]rovide an alibi by way of cell phone records indicating that [the
petitioner] was on the phone with his girlfriend at the time of the murder,’’
and (7) ‘‘[c]orroborate [the petitioner’s] statement to the FBI.’’
The court rejected this claim of ineffective assistance on the ground that
the petitioner had failed to present any evidence concerning the content of
the telephone records at issue and, thus, had failed to demonstrate that he
was prejudiced by counsel’s conduct in relation to the telephone records.
In the present appeal, the petitioner does not claim that the court improperly
rejected his claim of ineffective representation related to the telephone
records.
7
Although we do not evaluate the merits of the petitioner’s claim, it
suffices to observe that a petitioner is unable to obtain appellate relief by
demonstrating that a habeas court failed to consider a claim that was raised
adequately in a petition for a writ of habeas corpus. ‘‘This court is not bound
to consider claimed errors unless it appears on the record that the question
was distinctly raised . . . and was ruled upon and decided by the court
adversely to the [petitioner’s] claim. . . . This court is not compelled to
consider issues neither alleged in the habeas petition nor considered at the
habeas proceeding . . . .’’ (Emphasis added; internal quotation marks omit-
ted.) Greene v. Commissioner of Correction, 131 Conn. App. 820, 822, 29
8
As one of the grounds set forth in his petition for certification to appeal,
the petitioner stated that ‘‘[the] court erred in its ruling to admit . . . [federal
Drug Enforcement Agency] phone records only as a partial, and not [a] full,
exhibit.’’ In the context of the present claim, the petitioner does not set
forth a claim with respect to that ground. Instead, as we have discussed
previously, he argues in the present claim on appeal that the court failed
to consider his claim arising under the Connecticut constitution and that it
engaged in two specific ‘‘procedural errors’’ that precluded him from pre-
senting the additional evidence (in the form of Springer’s testimony) that
would have enabled him to demonstrate the validity of his claim relating
to the federal Drug Enforcement Agency records that had been admitted
in evidence. The petitioner did not alert the habeas court to the present
claim because the present claim does not reasonably fall within a reasonable
interpretation of the grounds presented to the court in support of the petition
for certification to appeal.
9
The petitioner’s attorney represented that he had reviewed the records
at issue, which he had obtained because they were part of a file that had
been transferred to him from another attorney. He acknowledged that he
was unable to lay a foundation to introduce the records in his possession
as an exhibit, and that he ‘‘[had] no way of knowing authenticity questions
about it.’’ The court marked a copy of these records as an identification
exhibit.
10
‘‘In State v. Esposito, supra, 192 Conn. 179–80, [our Supreme Court] set
forth the following procedure for the disclosure of confidential records. If
. . . the claimed impeaching information is privileged there must be a show-
ing that there is reasonable ground to believe that the failure to produce
the information is likely to impair the defendant’s right of confrontation
such that the witness’ direct testimony should be stricken. Upon such a
showing the court may then afford the state an opportunity to secure the
consent of the witness for the court to conduct an in camera inspection of
the claimed information and, if necessary, to turn over to the defendant any
relevant material for the purposes of cross-examination. If the defendant
does make such showing and such consent is not forthcoming then the
court may be obliged to strike the testimony of the witness. If the consent
is limited to an in camera inspection and such inspection, in the opinion of
the trial judge, does not disclose relevant material then the resealed record
is to be made available for inspection on appellate review. If the in camera
inspection does reveal relevant material then the witness should be given
an opportunity to decide whether to consent to release of such material to
the defendant or to face having her testimony stricken in the event of
refusal.’’ (Internal quotation marks omitted.) State v. Kemah, 289 Conn. 411,
425–26, 957 A.2d 852 (2008).
The petitioner suggests that, despite his inability to locate Lee and the
fact that she did not testify at the habeas trial, the court had the ability to
admit the records. Yet, under Esposito, on which the petitioner relied at
trial and before this court, the court was unable to review or to release the
records without Lee’s consent. The habeas court recognized this issue. Thus,
to the extent that the petitioner focuses on the issue of the court’s failure
to conduct an in camera review, it is unclear what, if anything, the petitioner
stood to gain by obtaining such review.