Walker v. Commissioner of Correction , 176 Conn. App. 843 ( 2017 )

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JAMES E. WALKER v. COMMISSIONER
OF CORRECTION
(AC 38946)
Sheldon, Keller and Elgo, Js.
Syllabus
The petitioner sought a writ of habeas corpus, claiming that his trial counsel
had provided ineffective assistance. Specifically, the petitioner alleged
that trial counsel’s prior relationship with D, a witness for the state in
the criminal case, created an actual conflict of interest and that his right
to due process had been violated by his exclusion from an in-chambers
conference regarding trial counsel’s alleged conflict of interest. The
habeas court rendered judgment denying the petition, concluding that
there was insufficient evidence to establish an actual conflict of interest
and that the petitioner had abandoned his due process claim. Thereafter,
the petitioner, on the granting of certification, appealed to this court.
Held:
1. There was no merit to the petitioner’s claim that the habeas court improp-
erly concluded that he failed to establish that trial counsel’s prior rela-
tionship with D had created an actual conflict of interest with respect
to his representation of the petitioner; there was no indication in the
record that trial counsel simultaneously represented the petitioner and
D, the petitioner failed to identify any specific instances in the record
that suggested that trial counsel’s limited interaction with D impaired
or compromised the petitioner’s interests for the benefit of D, and the
record supported the habeas court’s findings that trial counsel had
advocated strenuously on the petitioner’s behalf and that counsel’s per-
formance had contributed significantly to the jury’s finding the petitioner
not guilty of one of the charged offenses.
2. The habeas court properly concluded that the petitioner had abandoned
his due process claim that he was denied his constitutional right to be
present at an in-chambers conference regarding trial counsel’s alleged
conflict of interest; the petitioner abandoned his due process claim as
a result of his failure to brief it before the habeas court, as he did not
address the claim in his posttrial brief and posttrial reply brief, nor did
he attempt to amend his posttrial brief or otherwise seek to have the
court reconsider its decision not to address the claim.
Argued June 1—officially released October 3, 2017
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Oliver, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Stephanie L. Evans, assigned counsel, for the appel-
lant (petitioner).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were Patrick Griffin, state’s
attorney, and Rebecca Barry, assistant state’s attorney,
for the appellee (respondent).
Opinion
ELGO, J. The petitioner, James E. Walker, appeals
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the court improperly
concluded that (1) his defense counsel did not have an
actual conflict of interest at the time of his representa-
tion of the petitioner and (2) he abandoned his due
process claim that he was denied his right to be present
at an in-chambers conference. We affirm the judgment
of the habeas court.
In the underlying criminal proceeding, the petitioner
was charged with two counts of assault in the first
degree by means of the discharge of a firearm in viola-
tion of General Statutes §§ 53a-59 (a) (5) and 53a-8, and
one count of conspiracy to commit assault in the first
degree in violation of General Statutes §§ 53a-48 and
53a-59 (a) (5). State v. Walker, 147 Conn. App. 1, 6, 82
A.3d 630 (2013), aff’d, 319 Conn. 668, 126 A.3d 1087(2015). The charges arose from the nonfatal shooting
of two persons. Id., 4.
Following a trial, the jury found the petitioner guilty
of conspiracy to commit assault in the first degree and
not guilty of assault in the first degree, either as an
accessory or as a principal. Id., 6. The court thereafter
sentenced the petitioner to a total of nineteen years
incarceration, and the petitioner appealed to this
court. Id.On direct appeal, this court determined, inter alia,
that the record was inadequate to review the petitioner’s
conflict of interest claim and affirmed the judgment of
conviction. Id., 15–16. Our Supreme Court thereafter
affirmed our judgment. State v. Walker, 319 Conn. 668,
126 A.3d 1087 (2015).
The petitioner subsequently filed a petition for a writ
of habeas corpus. At the habeas trial, the petitioner
alleged that defense counsel, Attorney Richard Sil-
verstein, provided him with ineffective legal representa-
tion based on a conflict of interest and alleged due
process violations.1 In its detailed and thorough memo-
randum of decision, the habeas court rejected those
claims, concluding that there was insufficient evidence
in the record to establish an actual conflict of interest
on the part of defense counsel. In addition, the court
determined that the petitioner’s due process claim had
been abandoned. Accordingly, the court denied the peti-
tion for a writ of habeas corpus, and this certified
appeal followed.
I
The petitioner first claims that the court improperly
concluded that he failed to establish an actual conflict of
interest.2 Specifically, he argues that defense counsel’s
prior relationship with James Dickerson, one of the
state’s witnesses in its case against the petitioner, cre-
ated an actual conflict of interest. The respondent, the
Commissioner of Correction, contends that the court’s
conclusion was proper because the petitioner failed to
satisfy his burden of proof. We agree with the
respondent.
The following facts and procedural history are rele-
vant to our discussion of this claim. In his direct appeal,
our Supreme Court noted a discussion that occurred
on the record during jury selection in the underlying
criminal trial about Dickerson and defense counsel:
‘‘The Court: Good morning, everybody. We are back
to jury selection in [the present case]. The attorneys
have brought a matter to the court’s attention this morn-
ing which should be put on the record. [Assistant State’s
Attorney Stacey] Haupt [the prosecutor], I don’t know
if you want to go first or—
‘‘[The Prosecutor]: . . . It was brought to my atten-
tion late Friday by [Assistant State’s] Attorney Jack
Doyle [regarding] the [plea offer] between . . . Dick-
erson and the state’s attorney’s office. I asked Attorney
Doyle to write a memo about how exactly that went
down and what promises had been made to [Dickerson]
and in looking at his file attempting to prepare the
memo, Attorney Doyle realized that [defense counsel]
. . . had spoken to [Dickerson] at the request of Attor-
ney Jamie Alosi to try to talk to him about taking some
type of deal. However, it was prior to [Dickerson] coop-
erating in this case. I don’t believe that deal came to
fruition, but I just thought it should be brought to the
court’s attention that . . . [defense counsel] in some
respect had conversations with one of the state’s wit-
nesses.
‘‘The Court: Let me flush that out a bit. Apparently,
[Dickerson], and it’s already a matter of knowledge and
public [record] in this case, is going to testify against
[the petitioner]. [Dickerson], and I think you put this
on the record earlier, and if not, it should be. [Dick-
erson] was on trial in front of this court, represented
by Attorney Alosi. At some point, he entered a plea
upstairs, and I had nothing to do with the plea. I had
nothing to do with the sentencing. My involvement was
picking a jury up to the point where the matter was
resolved. Apparently, [defense counsel], you can add
to that factual situation. Listen up, Mr. Walker, I just
want to make sure you understand this.
‘‘[Defense Counsel]: [Dickerson] was brought in to
begin jury selection in a matter which he eventually
[pleaded] guilty to and is seeking to have consideration
for based on his testimony or anticipated testimony in
this case. I happen[ed] to be on the sixth floor. He
was in the bull pen upstairs with his attorney, and his
attorney, who I know, had told me about the case he
was proceeding to trial on. . . .
‘‘Defense counsel then went on to explain that Dick-
erson’s attorney had told him about the evidence against
Dickerson relating to the sale of narcotics, which
included a videotape of the purported transaction and
a still photograph from that videotape that appeared to
show Dickerson making the sale, and the fact that the
state had offered Dickerson a plea agreement. Because
defense counsel knew Dickerson, he was asked, or may
have volunteered, to speak with Dickerson about the
sentence that could be imposed in light of the evidence
and Dickerson’s past history. In summarizing the dis-
cussion that ensued, defense counsel noted that Dick-
erson had told him about the plea offer as well as what
the plea agreement was that he could accept short of
going to trial. Defense counsel then explained: I said,
in my opinion, the evidence was substantial. Then again,
I didn’t spend more than five or six minutes with him,
nor did I, other than the layout, which he probably
already heard from his attorney, have anything that
would impact on [the] decision he made. Then he pro-
ceeded to come down here and begin jury selection
with Your Honor.
‘‘Subsequent to that, it would appear, and I didn’t
know until, let’s say, a month to six weeks after, that
he had given that statement because it wasn’t being
handled by [the prosecutor] at that time . . . .
‘‘[The petitioner] was incarcerated, having not made
bond, and, at some point . . . I became aware that
Dickerson had made a statement. As soon as I became
aware, I asked [the prosecutor] to send me a copy of
that statement. I spoke to [Assistant State’s Attorney]
Doyle. . . . I spoke to them about the parameters of
the new plea agreement that [Dickerson] had entered
into based on his cooperation, and I was told essentially
what happened. I was given a copy of the statement,
and that’s where we are today. [The petitioner] is aware
I had a limited interaction with [Dickerson] prior to
him giving inculpatory evidence or [an] anticipated
statement that inculpates him, and I explained to [the
petitioner] that this in no way would impede my cross-
examination of [Dickerson]. I don’t think that that con-
versation is probably relevant to the deal he eventually
entered into, and I would probably not, in my cross-
examination, unless it came out that we knew each
other, but we had known each other prior to me speak-
ing to him up in court, and I wouldn’t get into any
details of the conversation. I don’t think that would
hamper my cross-examination of him at all. [The peti-
tioner] has indicated to me that he wants me to continue
to represent him.
‘‘The Court: You heard that, Mr. Walker? You’re com-
fortable with that?
‘‘[The Petitioner]: Yes, yes.
‘‘The Court: Let me tell you what I’m concerned about
to protect your rights. As your lawyer, [defense counsel]
owes you a duty of undivided loyalty. He can’t represent
two people at the same time that have any kind of
conflict. From what I’ve heard here today, I haven’t seen
any. Whatever he did with [Dickerson] was unrelated
to whatever deal [Dickerson] now has going, and he
can go after that deal hand and claw, and there’s nothing
that I can see in his prior contact with [Dickerson] that
is even relevant to the situation that developed after
he spoke to [defense counsel]. I don’t see any conflict.
I don’t see any violation of the law by [defense counsel],
and I want to make sure you’re comfortable with it so
we can get on with the trial, and you’ve got to let me
know. Are you okay with it?
‘‘[The Petitioner]: Yes.
‘‘The Court: Good, all right, then we’ll pick it up. Let’s
bring the panel out. Thank you.’’ (Emphasis omitted;
internal quotation marks omitted.) State v. Walker,
supra, 319 Conn. 670–74.
Following the habeas trial, the court found in its
memorandum of decision that defense counsel’s con-
duct ‘‘during the trial, including his blistering and thor-
ough cross-examination of . . . Dickerson, showed no
indication that his prior contact with and knowledge of
. . . Dickerson adversely affected his representation
of the petitioner. Further, the court found that the peti-
tioner ‘‘failed to allege or establish what additional
meaningful cross-examination could have been con-
ducted by . . . counsel at trial [and that] . . . coun-
sel’s representation of the petitioner and cross-
examination of . . . Dickerson contributed mightily
. . . to the petitioner’s acquittal on two of the three
charges.’’
On appeal, the petitioner challenges the propriety of
that determination. As a preliminary matter, we set forth
the following guiding legal principles and standard of
review governing ineffective assistance of counsel
claims based on an actual conflict of interest. ‘‘[I]t is
well established that [a] criminal defendant is constitu-
tionally entitled to adequate and effective assistance of
counsel at all critical stages of criminal proceedings.
. . . This right arises under the sixth and fourteenth
amendments to the United States constitution and arti-
cle first, § 8, of the Connecticut constitution. . . . It is
axiomatic that the right to counsel is the right to the
effective assistance of counsel.’’ (Citation omitted;
internal quotation marks omitted.) Gaines v. Commis-
sioner of Correction, 306 Conn. 664, 677–78, 51 A.3d
948 (2012). ‘‘As an adjunct to this right, a criminal defen-
dant is entitled to be represented by an attorney free
from conflicts of interest.’’ Phillips v. Warden, 220
Conn. 112, 132, 595 A.2d 1356 (1991).
In order to establish an actual conflict of interest,
the petitioner ‘‘must establish (1) that counsel actively
represented conflicting interests and (2) that an actual
conflict of interest adversely affected his lawyer’s per-
formance.’’ (Internal quotation marks omitted.) State v.
Parrott, 262 Conn. 276, 287, 811 A.2d 705 (2003); Santi-
ago v. Commissioner of Correction, 87 Conn. App. 568,
583, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d
997 (2005). To demonstrate an actual conflict of inter-
est, ‘‘the petitioner must be able to point to specific
instances in the record which suggest impairment or
compromise of his interests for the benefit of another
party. . . . A mere theoretical division of loyalties is
not enough.’’ (Citation omitted; emphasis in original;
internal quotation marks omitted.) Santiago v. Com-
missioner of Correction, supra, 584.
‘‘[A] petitioner claiming ineffective assistance of
counsel must demonstrate that his counsel’s perfor-
mance was deficient, and that the deficient perfor-
mance resulted in actual prejudice to the defense.’’
Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). Once the petitioner
establishes an actual conflict of interest, the ‘‘prejudice
[prong of Strickland] is presumed because counsel
[has] breach[ed] the duty of loyalty, perhaps the most
basic of counsel’s duties. Moreover, it is difficult to
measure the precise effect on the defense of representa-
tion corrupted by conflicting interests.’’ Id., 692. ‘‘Preju-
dice is presumed . . . if the [petitioner] demonstrates
that counsel actively represented conflicting interests
and that an actual conflict of interest adversely affected
his lawyer’s performance.’’ Id.On appeal, ‘‘facts found by the habeas court may not
be disturbed unless they were clearly erroneous . . . .
When . . . those facts are essential to a determination
of whether the petitioner’s sixth amendment rights have
been violated, we are presented with a mixed question
of law and fact requiring plenary review.’’ (Internal quo-
tation marks omitted.) Hedge v. Commissioner of Cor-
rection, 152 Conn. App. 44, 51, 97 A.3d 45 (2014), cert.
denied, 321 Conn. 921, 138 A.3d 282 (2016).
At its essence, the petitioner’s claim is that defense
counsel, due to his prior relationship with Dickerson,
actively represented competing interests while repre-
senting the petitioner. We do not agree.
An actual conflict of interest usually arises in the
context of counsel’s representation of multiple codefen-
dants where counsel adduces evidence or advances
arguments on behalf of one defendant that are damaging
to the interests of the other defendant. See Santiago
v. Commissioner of Correction, supra, 87 Conn. App.
583. In this case, Dickerson and Walker were not code-
fendants. An actual conflict of interest, however, also
arises ‘‘if trial counsel simultaneously represents the
defendant and another individual associated with the
incident and that representation inhibits counsel’s abil-
ity to represent the defendant.’’ (Internal quotation
marks omitted.) Goodrum v. Commissioner of Correc-
tion, 63 Conn. App. 297, 317, 776 A.2d 461, cert. denied,
258 Conn. 902, 782 A.2d 136 (2001); see also State v.
Martin, 201 Conn. 74, 80–81, 513 A.2d 116 (1986) (enu-
merating various types of conflicts of interest); Santi-
ago v. Commissioner of Correction, supra, 583.
On our review of the record, the evidence in this
case does not support a finding that defense counsel
simultaneously represented Dickerson and the peti-
tioner. At the habeas trial, defense counsel testified
about his relationship to Dickerson and described it as
a ‘‘brief’’ and ‘‘limited contact.’’ The record indicates
that he had a brief discussion with Dickerson that did
not last more than five or six minutes and the discussion
consisted of ‘‘lay[ing] out’’ information ‘‘which he proba-
bly already heard from his attorney . . . [and did not
include] anything that would [have an] impact on [the]
decision he made.’’ (Internal quotation marks omitted.)
State v. Walker, supra, 319 Conn. 672. The petitioner
has not identified anything in the record that suggests
impairment or compromise of his interests for the bene-
fit of Dickerson. In our view, this limited encounter
alone does not give rise to an actual conflict of interest.
Moreover, the conversation between Dickerson and
defense counsel occurred prior to Dickerson’s giving
the state any evidence against the petitioner.
As the habeas court emphasized in its memorandum
of decision, defense counsel’s blistering and thorough
cross-examination of Dickerson gave no indication of
his prior contact with, or knowledge of, Dickerson,
which further underscored the lack of an actual conflict
of interest. The lack of an actual conflict is further
supported by the underlying trial transcript, which
included an accusation that Dickerson lied to the police
and falsely implicated the petitioner. In his closing argu-
ment, defense counsel criticized Dickerson by charac-
terizing his testimony as ‘‘bought and paid for.’’ In our
view, counsel’s cross-examination of Dickerson and his
closing argument suggest that he energetically advo-
cated on behalf of the petitioner. There is no suggestion
that he was hampered by his prior limited interaction
with Dickerson. Furthermore, the jury found the peti-
tioner not guilty of assault in the first degree, convicting
him only on the conspiracy charge. The habeas court
noted that defense counsel’s performance ‘‘contributed
mightily’’ to this outcome. On our review of the record,
we concur with that assessment.
In sum, it is clear to this court that defense counsel’s
relationship with Dickerson did not create an actual
conflict between him and the petitioner. The record
substantiates the court’s finding that he strenuously
advocated on the petitioner’s behalf, unburdened by
any conflict of interest. Accordingly, there is no merit
to this claim.
II
The petitioner next claims that the habeas court
improperly concluded that he abandoned his due pro-
cess claim that he was denied his right to be present at
an in-chambers conference. In response, the respondent
argues that this court should not review this claim
because the habeas court correctly concluded that it
was abandoned. We agree with the respondent.3
The following facts and procedural history are rele-
vant to this claim. Among the issues raised on direct
appeal, the petitioner claimed that he was entitled to
a new trial because his constitutional right to be present
at all critical stages of the prosecution had been vio-
lated. State v. Walker, supra, 147 Conn. App. 7. The
factual basis for this claim was the petitioner’s alleged
exclusion from an in-chambers discussion regarding
defense counsel’s possible conflict of interest. Id., 7–8.
The petitioner sought review pursuant to State v. Gold-
ing, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), or the
plain error doctrine. State v. Walker, supra, 8.
In his direct appeal, this court emphasized that the
record revealed ‘‘no information as to whether a meet-
ing occurred in chambers or whether there was a discus-
sion in court off the record in the presence or absence
of the [petitioner], whether or how counsel alerted the
court clerk’s office that something needed to be put on
the record that morning, or whether the attorneys did
something else in the presence or absence of the [peti-
tioner] to alert the court that there was an issue that
needed to be put on the record.’’ Id., 15. We thus held
that the failure of the petitioner to request a hearing
before the trial court to establish a factual predicate
for appellate review of the conflict of interest claim
rendered the record inadequate for any meaningful
review. Id.
In his petition for a writ of habeas corpus, the peti-
tioner alleged in relevant part that ‘‘[p]ursuant to State
v. Lopez, 271 Conn. 724, [859 A.2d 898] (2004), the
confrontation clause of the sixth, and due process
clause of the fifth and fourteenth amendments to the
United States constitution, [the petitioner] was denied
his constitutional right to be present at a critical stage
of his own prosecution, namely an in-chambers confer-
ence between defense counsel, the trial court, and the
state’s attorney, whereby defense counsel’s potential
conflict of interest in this case was discussed. [The
petitioner’s] absence thwarted a fair and just hearing
in the matter, and his presence had a reasonably sub-
stantial relation to the fullness of his opportunity to
defend against the charges.’’
At the conclusion of the habeas trial, the court
inquired as to whether the parties would be submitting
posttrial briefs or closing oral arguments. The parties
agreed to submit posttrial briefs. The petitioner subse-
quently filed both a posttrial brief and a reply brief with
the habeas court. Those briefs did not address the due
process claim alleged in his petition. In its memoran-
dum of decision, the court deemed that claim aban-
doned, stating: ‘‘In his posttrial brief and his posttrial
reply brief, the petitioner analyzes and develops only
the Brady and Adams4 claims related to . . . Dick-
erson and the alleged conflict of interest thereto. The
court, therefore, deems the remaining claims aban-
doned.’’ (Footnote added.)
It is well settled that ‘‘[w]e are not required to review
issues that have been improperly presented to this court
through an inadequate brief. . . . Analysis, rather than
mere abstract assertion, is required in order to avoid
abandoning an issue by failure to brief the issue prop-
erly. . . . Where a claim is asserted in the statement
of issues but thereafter receives only cursory attention
in the brief without substantive discussion or citation
of authorities, it is deemed to be abandoned. . . .
These same principles apply to claims raised in the
trial court.’’ (Citation omitted; emphasis added; internal
quotation marks omitted.) Connecticut Light & Power
Co. v. Dept. of Public Utility Control, 266 Conn. 108,
120, 830 A.2d 1121 (2003).
‘‘[T]he idea of abandonment involves both a factual
finding by the trial court and a legal determination that
an issue is no longer before the court, [therefore,] we
will treat this claim as one of both law and fact. Accord-
ingly, we will accord it plenary review.’’ Solek v. Com-
missioner of Correction, 107 Conn. App. 473, 479, 946
A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873(2008).
At his oral argument before this court, the petitioner
argued that the failure to address a claim in a posttrial
brief does not constitute abandonment and stated that
the habeas judge did not explicitly request briefing of
all of his claims. It nevertheless ‘‘is not the responsibility
of the trial judge, without some specific request from
a petitioner, to search a record, often, in a habeas case,
involving hundreds of pages of transcript, in order to
find some basis for relief for a petitioner.’’ Id., 480.
In Mitchell v. Commissioner of Correction, 156 Conn.
App. 402, 408, 114 A.3d 168, cert. denied, 317 Conn. 904,
114 A.3d 1220 (2015), the petitioner included in his
amended petition a claim ‘‘that his trial counsel failed
to adequately and effectively . . . advise [the] peti-
tioner as to the applicable law, prior to the petitioner’s
decision to be tried to a jury, which prejudiced the
petitioner . . . .’’ (Internal quotation marks omitted.)
This court rejected the petitioner’s attempt to pursue
that claim on appeal, noting that ‘‘the present claim was
not distinctly raised in the petitioner’s lengthy posttrial
brief and was not addressed by the court in its decision
denying the petition. The petitioner thus abandoned the
claim as a result of his failure to brief it before the
habeas court.’’ Id.Although the petitioner in the present case included
a due process claim in his petition for a writ of habeas
corpus, his posttrial brief and posttrial reply brief did
not address the claim. Further, the record does not
reflect that the petitioner attempted to amend his post-
trial brief or otherwise seek to have the court reconsider
its decision not to address the claim.
In light of the petitioner’s failure to brief the due
process claim, we conclude that the habeas court prop-
erly deemed it abandoned. Moreover, the claimed issue
on appeal was not ruled upon and decided by the habeas
court. It is well settled that ‘‘this court is not bound to
consider any claimed error unless it appears on the
record that the question was distinctly raised at trial
and was ruled upon and decided by the court adversely
to the appellant’s claim.’’ (Internal quotation marks
omitted.) Id. We therefore conclude that the habeas
court properly determined that the petitioner’s due pro-
cess claim was abandoned.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In his petition, the petitioner also alleged Brady violations. See Brady
v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The
habeas court’s disposition of this claim is not at issue in this appeal.
2
The petitioner also appears to assert a claim of insufficient inquiry by
the trial court into a potential conflict of interest. The petitioner did not
raise this issue in his amended petition for a writ of habeas corpus, and,
as a result, the habeas court did not address it. ‘‘It is well established that
[w]e do not entertain claims not raised before the habeas court but raised
for the first time on appeal.’’ (Internal quotation marks omitted.) Hankerson
v. Commissioner of Correction, 150 Conn. App. 362, 369, 90 A.3d 368, cert.
denied, 314 Conn. 919, 100, A.3d 852 (2014). ‘‘[I]t is axiomatic that a petitioner
is bound by his petition . . . . While the habeas court has considerable
discretion to frame a remedy that is commensurate with the scope of the
established constitutional violations . . . it does not have the discretion to
look beyond the pleadings and trial evidence to decide claims not raised.
. . . Having not raised [an] issue before the habeas court, [a] petitioner is
barred from raising it on appeal. . . . This court is not compelled to consider
issues neither alleged in the habeas petition nor considered at the habeas
proceeding . . . .’’ (Internal quotation marks omitted.) Id., 367; see also
Hedge v. Commissioner of Correction, 152 Conn. App. 44, 59, 97 A.3d 45(2014), cert. denied, 321 Conn. 921, 138 A.3d 282 (2016). Accordingly, we
decline to review that claim.
3
The petitioner also argues that the alleged due process violation qualifies
as a structural error and is not subject to harmless error analysis. See, e.g.,
State v. Latour, 276 Conn. 399, 411, 886 A.2d 404 (2005) (‘‘[Structural error]
cases do not involve trial error occurring during the presentation of the
case to the jury but involve extrinsic factors not occurring in the courtroom.
. . . These cases recognize that violation of some constitutional rights, such
as the right to a trial by an impartial jury, may require reversal without
regard to the evidence in the particular case.’’) Because we conclude that
the habeas court properly deemed the petitioner’s due process claim aban-
doned, we need not consider that contention. See State v. Apodaca, 303
Conn. 378, 383, 33 A.3d 224 (2012).
4
See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215(1963) and Adams v. Commissioner of Correction, 309 Conn. 359, 71 A.3d
512 (2013).