Ham v. Commissioner of Correction , 187 Conn. App. 160 ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
ERIC HAM v. COMMISSIONER OF CORRECTION
(AC 37998)
Alvord, Keller and Flynn, Js.
Syllabus
The petitioner, who had been convicted of murder and several other crimes
in connection with the shooting death of the victim, sought a writ of
habeas corpus, claiming, inter alia, that he was deprived of his right to
due process because the prosecutor at his criminal trial failed to disclose
material exculpatory evidence. The state’s theory of the case was prem-
ised on the shooting having occurred at 2:20 a.m. Hospital records
showed that the petitioner had been admitted at 2:49 a.m. seeking treat-
ment for a gunshot wound that he claimed to have received when he
was accosted on a street in an attempted robbery. L, a police sergeant,
testified for the state that she had been dispatched at 2:05 a.m. to meet
with the petitioner in the hospital. The prosecutor thereafter recalled
L, who testified that after her initial testimony, she checked her daily
notebook and the police department’s activity log, and realized that her
previous testimony was inaccurate and that she had been dispatched
at 2:48 a.m. to meet the petitioner in the hospital. In his habeas petition,
the petitioner alleged, inter alia, that after L’s initial testimony, the state
asked her to produce evidence that contradicted her prior testimony
that she had been dispatched at 2:05 a.m. to meet with the petitioner
in the hospital, and that the prosecutor knew that L’s corrected testimony
was false. The petitioner also claimed that the prosecutor was aware
of and did not disclose to the defense that L had been involved in an
incident five years earlier in which she fatally shot a suspect during an
arrest and that she was subject to prosecution for it at the time that
she testified at the petitioner’s criminal trial. The petitioner further
alleged that H, one of his prior habeas counsel, had rendered ineffective
assistance because, inter alia, she failed to pursue a claim that D, the
petitioner’s criminal trial counsel, had rendered ineffective assistance
by failing to adequately challenge L’s testimony about what time she
was dispatched to meet with the petitioner in the hospital and L’s motiva-
tion to testify falsely against him. The habeas court rejected the petition-
er’s claims and rendered judgment denying the habeas petition.
Thereafter, the habeas court denied the petition for certification to
appeal, and the petitioner appealed to this court. Held:
1.The habeas court properly denied the petition for certification to appeal
with respect to the petitioner’s claim that the prosecutor failed to dis-
close material exculpatory evidence concerning L, the petitioner having
failed to demonstrate that the issues he raised were debatable among
jurists of reason, that a court could have resolved them in a different
manner or that they deserved encouragement to proceed further: the
petitioner’s ability to confront L at trial was not undermined to any
significant degree by the prosecutor’s failure to disclose the information
at issue, which lacked an appreciable potential to have altered the jury’s
assessment of L’s credibility, none of the facts surrounding L’s role in
the fatal shooting of the suspect five years earlier supported a reasonable
inference that she was under a threat of prosecution at the time of the
petitioner’s criminal trial, a police internal affairs report that stated that
L had been directed to undergo counseling after the fatal shooting did
not reasonably support an inference that her reputation in the police
department was tarnished or that her job was in jeopardy at the time
of the petitioner’s criminal trial, and there was no merit to the petitioner’s
claim that L had a motive to commit perjury and to fabricate evidence
to support her corrected trial testimony; moreover, even if the prosecutor
suppressed evidence that was favorable to the defense, the petitioner
did not demonstrate that it was material, as the materiality of the evi-
dence was inextricably linked to the petitioner’s theory, which relied
on inferences that were not at all reasonable, that L committed perjury
and fabricated evidence to support the state’s case and to curry favor
with the Office of the State’s Attorney.
2. The habeas court did not abuse its discretion in denying the petition for
certification to appeal with respect to the petitioner’s claim that H
rendered ineffective assistance: because the petitioner failed to prove
that he was prejudiced by D’s performance, he was unable to demon-
strate that he was prejudiced by H’s failure to pursue claims that were
related to D’s performance, as the petitioner relied on facts that were
not explored during D’s cross-examination of L, the inferences on which
the petitioner relied were unreasonable in that they were not logically
drawn from the facts in evidence, and his claim of prejudice as to D
was unsubstantiated to the extent that it was based on D’s failure to
cross-examine L about her testimony that she had not referred to addi-
tional resources for her corrected testimony other than her personal
notebook and the police daily activity log; moreover, the petitioner did
not dispute that L’s corrected testimony was consistent with police
department records and corroborated by hospital records, and the ave-
nues of inquiry that the petitioner claimed that D should have pursued
were not likely to have been persuasive to the jury, as they were not
logically related to the evidence and the reasonable inferences to be
drawn therefrom.
Argued September 18, 2018—officially released January 15, 2019
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, Fuger, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Vishal K. Garg, for the appellant (petitioner).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Rebecca A. Barry, assistant state’s attor-
ney, for the appellee (respondent).
Opinion
KELLER, J. The petitioner, Eric Ham, appeals from
the judgment of the habeas court denying his petition
for certification to appeal from the court’s denial of his
third amended petition for a writ of habeas corpus.
The petitioner claims that the habeas court abused its
discretion in denying his petition for certification to
appeal with respect to his claims that (1) the prosecutor
at his criminal trial violated his right to due process by
failing to disclose material exculpatory evidence and
(2) counsel in a prior habeas action deprived him of
his right to the effective assistance of counsel by failing
to pursue a claim of ineffective assistance on the part
of his criminal trial counsel. Because we conclude that
the court properly exercised its discretion in denying
the petition for certification to appeal, we dismiss
the appeal.
The following facts and procedural history are rele-
vant to the present appeal. In 1996, following a jury
trial, the petitioner was convicted of murder in violation
of General Statutes § 53a-54a (a), conspiracy to commit
murder in violation of General Statutes §§ 53a-48 and
53a-54a (a), assault in the first degree in violation of
General Statutes § 53a-59, larceny in the third degree
in violation of General Statutes § 53a-124 (a) (1), con-
spiracy to commit larceny in the third degree in viola-
tion of General Statutes §§ 53a-48 (a) and 53a-124 (a)
(1), and falsely reporting an incident in violation of
General Statutes (Rev. to 1993) § 53a-180 (a) (3) (A).
The court, Hon. William L. Hadden, Jr., judge trial
referee, sentenced the petitioner to a fifty-year term
of imprisonment.
The petitioner brought a direct appeal, during which
he was represented by Attorney William S. Palmieri.
This court affirmed the judgment of conviction, and
our Supreme Court denied the petitioner’s petition for
certification to appeal from this court’s judgment. State
v. Ham, 55 Conn. App. 281, 739 A.2d 1268, cert. denied,
252 Conn. 916, 743 A.2d 1128 (1999).1 This court summa-
rized the facts that reasonably could have been found
by the jury: ‘‘[I]n March, 1993, the [petitioner], accompa-
nied by four masked men, approached Alex Santana
and asked him where to find his cousin, George Flores.
When Santana replied that he had not seen Flores, the
[petitioner] punched Santana in the face, causing him
to be thrown against a store window. The owner of
the store came outside and the [petitioner] and his
companions departed.
‘‘On May 5, 1993, at approximately 11 p.m., the [peti-
tioner] agreed to pay Ronaldo Rivera $40 if he would
steal a large, fast, four door automobile and deliver it
to the [petitioner]. Rivera found such a vehicle on Frank
Street in New Haven and, with the help of a friend,
stole a four door Buick and brought the car to the
[petitioner] and another man on Ward Street at approxi-
mately 2 a.m.
‘‘Santana had been riding that night in the car of
his friend, Butch Console, with three other persons,
Marilyn Torres, Melissa Dawson and Dimiris Vega.
When the car stopped on Button Street, the occupants
got out. As they were standing by the car, a man
approached and offered to paint Console’s initials on
the driver’s door. Console agreed and then stood next
to a red station wagon parked on the opposite side of
the street. Meanwhile, his friends stood on the street
side of Console’s car watching the man paint. Console
noticed a car approaching slowly on Button Street. He
saw what he first thought were firecrackers coming
from the rear seat of the car. When he realized it was
gunfire, Console ran around the front of the station
wagon to the sidewalk and knelt to avoid the bullets.
The approaching car was the stolen Buick and con-
tained the [petitioner] and three companions. Gunfire
erupted from the area of the rear seat of the Buick.
One bullet hit Santana in the stomach, resulting in his
hospitalization. Another bullet struck Torres in the
back, causing her death. The evidence indicated that
at least five shots were fired from close range.
‘‘A few minutes later, the [petitioner] and his compan-
ions crashed the Buick on Howard Avenue and aban-
doned it with the motor running, the rear door open,
a bullet casing on the floor behind the driver’s seat,
and a sheet covering the rear seat wet with blood. The
rear window had been blown out. A second shell was
found on the roof of the car, and a third was found on
Button Street at the shooting scene. The [petitioner]
went to the Hospital of [Saint] Raphael (hospital) at
2:49 a.m. to seek treatment for a gunshot wound. He
spoke with a New Haven police officer at 3:05 a.m. He
gave a statement to Sergeant Diane Langston declaring
that he and his friend had been accosted and shot on
the street in an attempted robbery by two masked men.
The [petitioner] stated that he and his friend then ran
directly to the hospital.
‘‘A ballistics expert testified that the bullet obtained
from Torres’ body matched the .45 caliber shell casing
found on the floor of the Buick. The other casings found
on the roof of the Buick and on Button Street came from
a nine millimeter gun. A fingerprint expert identified
fingerprints found on the interior of the driver’s door as
those of the [petitioner]. Experts from the state forensic
laboratory testified that the blood on the sheet covering
the backseat was consistent with the [petitioner’s]
blood type.’’ Id., 283–85.
In 2012, the petitioner filed an initial petition for a
writ of habeas corpus and, in December, 2014, he filed
the operative, third amended petition.2 In his petition,
the petitioner raised six claims. The claims raised in the
present appeal relate to the court’s denial of portions
of the first and sixth counts of the petition.
In the first count, the petitioner claimed that he was
deprived of his right to due process because the prose-
cutor at his criminal trial, John Waddock, failed to dis-
close ‘‘material exculpatory evidence.’’ The petitioner
alleged that this included evidence that the defense
could have used to impeach two of the state’s witnesses,
namely, Langston and Santana. Langston is a retired
sergeant of the New Haven Police Department who, as
a patrol officer in 1993, met with the petitioner during
the early morning of May 6, 1993, and was a witness for
the state at his criminal trial. Central to the petitioner’s
claims concerning Langston is the fact that, on January
8, 1997, she testified, consistent with her police report
in this matter, that, on May 6, 1993, she was dispatched
to meet with the petitioner at the hospital at 2:05 a.m.
On January 13, 1997, the prosecutor recalled Langston
as a witness for the state, and Langston testified that,
following her initial testimony in this case, and on her
own initiative, she checked her personal daily notebook
as well as the police activity log maintained by her
department. Relying on these records, Langston real-
ized that, with respect to the specific time at which she
had been dispatched to meet with the petitioner, her
previous testimony was inaccurate. During her later
testimony, she stated that, on May 6, 1993, she had been
dispatched to meet with the petitioner at 2:48 a.m. It
is undisputed that the time at which Langston had been
dispatched to meet with the petitioner was significant
in light of the fact that the state’s theory of the case was
premised on the shooting having occurred at 2:20 a.m.
Pertinent to the claims raised in the present appeal,
the petitioner alleged that the prosecutor was aware
of, but did not disclose information that the defense
could have used to challenge Langston’s credibility, par-
ticularly with respect to her testimony concerning the
time at which she had been dispatched to meet with
him at the hospital on May 6, 1993. Specifically, the
petitioner alleged that the prosecutor failed to disclose
that ‘‘Langston was involved in a previous incident for
which she was subject to prosecution at the time she
testified at the petitioner’s criminal trial,’’ and that, ‘‘[o]n
January 8, 1997, [following her initial testimony at the
petitioner’s criminal trial] the prosecuting authority
asked . . . Langston to obtain and produce evidence
contradicting her prior testimony that she had been
dispatched to speak with the [petitioner] at 2:05 a.m.
on May 6, 1993.’’ The petitioner alleged that there is a
reasonable probability that, had the evidence at issue
been disclosed to the defense in a timely manner, the
outcome of the trial would have been more favorable
to him.
In the second count, the petitioner claimed that he
was deprived of his right to due process because the
prosecutor presented testimony from Langston and
Santana that the prosecutor knew or should have
known to be false, and that the prosecutor failed to
correct their testimony. As relevant to the claims raised
in the present appeal, the petitioner alleged that, during
her trial testimony after she was recalled as witness by
the prosecutor, Langston falsely testified ‘‘that she was
dispatched to meet with [the petitioner] at 2:48 a.m. on
May 6, 1993, and . . . that she checked her personal
notebook and daily activity logs on January 8, 1997, of
her own volition.’’ The petitioner alleged that, but for
the false testimony, the outcome of the trial would have
been more favorable to him.
In the third count, the petitioner claimed that he
was deprived of his right to the effective assistance of
counsel because his trial counsel, William F. Dow, was
deficient in several respects. As relevant to the claims
raised in the present appeal, the petitioner alleged that
Dow ‘‘failed to adequately cross-examine, impeach, or
otherwise challenge the testimony of Diane Langston
concerning the time she was dispatched to meet with
the petitioner and her motivation to testify falsely
against the petitioner . . . .’’ The petitioner alleged that
there was a reasonable probability that, absent Dow’s
deficient performance, the outcome of the trial would
have been more favorable to him.
In the fourth count, the petitioner claimed that he
was deprived of his right to the effective assistance
of counsel because his appellate counsel, William S.
Palmieri, failed to raise certain claims of error. The
petitioner alleged that there was a reasonable probabil-
ity that, absent Palmieri’s deficient performance, the
outcome of his direct appeal would have been more
favorable to him.
In the fifth count, the petitioner claimed that he was
deprived of his right to the effective assistance of coun-
sel because prior habeas counsel, Frank Cannatelli,
failed to raise or failed adequately to pursue the four
claims that he previously raised in the present petition.
The petitioner alleged that there was a reasonable prob-
ability that, absent Cannatelli’s deficient performance,
the outcome of his prior habeas action would have been
more favorable to him.
In the sixth count, the petitioner claimed that he
was deprived of his right to the effective assistance
of counsel because his prior habeas counsel, Hilary
Carpenter, was deficient in a number of ways. Specifi-
cally, the petitioner argued that Carpenter failed to raise
or failed adequately to pursue the five claims that he
previously raised in the present petition. One aspect of
his claim concerning Carpenter’s representation was
that she failed to pursue a claim of ineffective assistance
arising from Dow’s failure ‘‘to adequately cross-exam-
ine, impeach, or otherwise challenge the testimony of
. . . Langston concerning the time she was dispatched
to meet with the petitioner and her motivation to testify
falsely against the petitioner . . . .’’ The petitioner
alleged that there was a reasonable probability that,
absent Carpenter’s deficient performance, the outcome
of his prior habeas action would have been more favor-
able to him.
The respondent, the Commissioner of Correction,
denied the substantive allegations in the petition. By
way of defenses, the respondent alleged that, to the
extent that the petitioner was raising claims that could
have been raised in his direct appeal, in prior habeas
actions, or in prior appeals in habeas actions, he was
procedurally defaulted from doing so because ‘‘[he] has
deliberately bypassed the opportunity to contest said
issues,’’ and has not shown cause and prejudice as to
why such claims were not raised previously. Addition-
ally, the respondent alleged that, to the extent that the
petitioner was attempting to relitigate issues that had
been raised and decided in his direct appeal, his prior
petitions, or in prior appeals in habeas actions, he was
barred from doing so under the doctrine of res judicata.
Finally, relying on the petitioner’s history of filing
habeas petitions, the respondent raised the defense of
abuse of the writ. In the petitioner’s reply to the return,
he alleged that none of the defenses relied on by the
respondent applied to his claims.
During the course of three days in January, 2015, the
court, Fuger, J., held a hearing concerning the petition.
With respect to the claims set forth in the petition, the
petitioner presented the testimony of nine witnesses.
These included himself; Dow; Waddock; Palmieri; Can-
natelli; Carpenter; Langston; Jason Minardi, a lieutenant
with the New Haven Police Department who previously
had been the officer in charge of its internal affairs
division; and Roy Olson, a retired captain of the New
Haven Police Department who supervised its internal
affairs division for seven years. The court received sev-
eral exhibits and, at the conclusion of the trial, both
parties filed posttrial briefs.
In its lengthy memorandum of decision filed April
24, 2015, the court addressed all of the claims raised
in the petition. In parts I and II of this opinion, we
discuss in greater detail those portions of the habeas
court’s decision that are relevant to the claims raised
in the present appeal. At this juncture, it suffices to
discuss generally the parameters of the court’s decision.
In counts one and two of the petition, the petitioner
alleged violations of his right to due process resulting
from the prosecutor’s failure to disclose exculpatory
evidence concerning Langston and Santana. Insofar as
these claims related to Langston, the court rejected
them on their merits. Insofar as these claims were
related to Santana, the court deemed the claims to
be abandoned.
The court also rejected the claims raised in counts
three, four, and five of the petition. The court, relying
on the petitioner’s history of filing habeas petitions,
concluded that the respondent properly invoked the
defense of res judicata and that it barred litigation of
the claims of ineffective assistance on the part of Dow,
Palmieri, and Cannatelli.
Furthermore, the court rejected the claim raised in
count six, in which the petitioner alleged ineffective
assistance on the part of Carpenter for failure to pursue
claims of ineffectiveness on the part of Dow, Palmieri,
and Cannatelli. The court rejected each aspect of this
claim on its merits.
Finally, the court addressed the respondent’s defense
of abuse of the writ. In a comprehensive analysis of
the issue, the court concluded that the petitioner had
abused the writ. Particularly troubling in the court’s
view were the claims of impropriety directed at the
prosecutor, concerning whom the court found ‘‘no evi-
dence whatsoever showing any misconduct or impro-
priety.’’ The court concluded that, although it believed
that the petitioner had abused the writ, it declined to
dismiss the petition in light of the fact that the petition-
er’s claim of ineffective assistance on the part of Car-
penter had not previously been raised and adjudicated.
Following the court’s denial of the petition for a writ
of habeas corpus, the petitioner filed a petition for certi-
fication to appeal. See General Statutes § 52-470. The
petition encompassed the rulings which are the subject
of the present appeal. The court denied the petition.
This appeal followed. Additional facts will be set forth
as necessary.
Before we reach the merits of the petitioner’s claims,
we discuss his burden in demonstrating that he is enti-
tled to relief. ‘‘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. . . . Second, 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. . . .
‘‘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. . . . In
determining whether the habeas court abused its discre-
tion in denying the petitioner’s request for certification,
we necessarily must consider the merits of the petition-
er’s underlying claims to determine whether the habeas
court reasonably determined that the petitioner’s
appeal was frivolous. . . .
‘‘In evaluating the merits of the underlying claims on
which the petitioner relies in the present appeal, we
observe that [when] the legal conclusions of the court
are challenged, [the reviewing court] must determine
whether they are legally and logically correct . . . and
whether they find support in the facts that appear in
the record. . . . To the extent that factual findings are
challenged, this court cannot disturb the underlying
facts found by the habeas court unless they are clearly
erroneous . . . . [A] finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.’’ (Citation omitted; internal quotation
marks omitted.) Diaz v. Commissioner of Correction,
174 Conn. App. 776, 785–86, 166 A.3d 815, cert. denied,
327 Conn. 957, 172 A.3d 204 (2017).
I
First, we address the petitioner’s claim that the court
improperly denied his petition for certification to appeal
with respect to his claim that the prosecutor violated
his right to due process3 by failing to disclose material
exculpatory evidence. We disagree with the petitioner.
As we previously stated, in count one of his amended
petition for a writ of habeas corpus, the petitioner
alleged in relevant part that the prosecutor was aware
that (1) ‘‘Langston was involved in a previous incident
for which she was subject to prosecution at the time
she testified at [his] criminal trial,’’ and (2) ‘‘[o]n January
8, 1997, the prosecuting authority asked . . . Langston
to obtain and produce evidence contradicting her prior
testimony that she had been dispatched to speak with
[the petitioner] at 2:05 a.m. on May 6, 1993.’’ The peti-
tioner alleged that the prosecutor failed to disclose
this information to the defense, this information was
‘‘exculpatory or otherwise favorable evidence that
should have been disclosed to [him] or his counsel prior
to his criminal trial,’’ and the evidence was ‘‘material
because there is a reasonable probability that—had it
been disclosed in time to be used by the defense during
[his] criminal trial—the result of [his] trial would have
been different and more favorable to [him].’’ As we
discussed previously, in count two, the petitioner
alleged in relevant part that the prosecutor presented
false testimony from Langston, specifically, her testi-
mony that (1) she was dispatched to meet with the
petitioner at 2:48 a.m., on May 6, 1993, and (2) on Janu-
ary 8, 1997, following her initial trial testimony, she
voluntarily checked her daily activity notebook in an
effort to verify the accuracy of her testimony concern-
ing the time at which she had been dispatched to meet
with the petitioner.
In rejecting this claim concerning the prosecutor’s
conduct, the court set forth detailed factual findings.
The court stated in relevant part: ‘‘The court will begin
its discussion with the direct appeal from the criminal
conviction, where the [petitioner’s] second claim . . .
[was] based on the admission into evidence of hospital
records relating to the [petitioner’s] visit to the hospital
for treatment of the gunshot wound that he claimed to
have received in the attempted robbery. The following
additional facts [were] necessary for [the Appellate
Court’s] resolution of this claim. The hospital records
indicated that the [petitioner] was admitted at 2:49 a.m.
on the morning of the crimes. [During the petitioner’s
criminal trial on January 8, 1997] Sergeant Langston
. . . testified that she had taken a statement from the
[petitioner] at the hospital shortly after 2:05 a.m.
Because the state claimed that the shooting occurred
at 2:20 a.m., Langston’s testimony would have provided
the [petitioner] with an alibi if it were correct. [On
January 13, 1997] [t]he state called Langston to testify
once again after the introduction of the hospital
records. It also introduced into evidence, over the [peti-
tioner’s] objection, two previously undisclosed state-
ments by Langston, both of which indicated that she
had not been dispatched to the hospital until 2:48 a.m.
She testified that her earlier testimony was the result
of human error. State v. Ham, supra, 55 Conn. App.
287. The Appellate Court concluded that the hospital
records were properly admitted into evidence because
the only purpose for introducing the hospital records
was to explain the basis for Langston’s correction of
her previous testimony concerning the time of the [peti-
tioner’s] hospital visit . . . . Id., 289.
‘‘This court finds the following additional facts. It is
uncontroverted that Langston testified about the times
of certain events when she first testified during the
criminal trial on January 8, 1997. Attorney Dow cross-
examined Langston about the times to which she testi-
fied on direct examination and offered her report, which
corroborated her direct testimony, into evidence as a
business record. . . . Dow argued [that the report was
critical to establishing the petitioner’s whereabouts in
the hours following the shooting and that the report
was not so cumulative so as to prejudice the state’s
case]. . . .
‘‘Judge Hadden [acknowledged that the timing of
events described by Langston was undoubtedly relevant
with respect to the issues in the case, but] sustained
the state’s objection to portions of Langston’s report
becoming full exhibits because the report was cumula-
tive to her testimony. . . .
‘‘Attorney Dow then continued his cross-examination
of Langston with a series of questions that sought to
accentuate the times she had testified to. . . . The
prosecutor began his redirect examination by asking
Langston about the accuracy she strives for in her
reports and other recorded information. Langston
acknowledged that she at times made mistakes in her
reports. . . . The prosecutor then sought to question
Langston about when she heard a radio broadcast con-
cerning another incident on Button Street that occurred
during the time that Langston had testified she was
writing her report, to which defense counsel objected
and the jury was excused. . . . The exchange between
Judge Hadden and the prosecutor about the objection
shows that [during his examination on January 8, 1997]
the prosecutor was attempting to somehow show that
the times testified to by Langston were incorrect. . . .
[The prosecutor] ultimately withdrew his question.’’
(Citations omitted; internal quotation marks omitted.)
The habeas court observed that, at the criminal trial
and outside of the presence of the jury, the prosecutor
and Judge Hadden engaged in a colloquy concerning
Langston’s testimony that, on the morning of the shoot-
ing, she spoke to the petitioner at the hospital at 2:05
a.m., as well as the evidence that the shooting occurred
at 2:20 a.m. The habeas court observed that, during
that colloquy, the prosecutor acknowledged that this
discrepancy in the state’s case could amount to ‘‘serious
trouble’’ for the state.
The habeas court continued: ‘‘The jury then returned
to the courtroom, and redirect examination continued
with [the prosecutor] asking Langston about her having
made, during the course of her career, mistakes in
police reports as to times of events. . . . Dow then
questioned Langston on recross-examination to empha-
size the times that Langston had testified to and that
she strives for accuracy in her reports. . . . Court then
adjourned and resumed on January 13, 1997.’’ (Cita-
tion omitted.)
The habeas court observed that, on January 13, 1997,
Langston was recalled as a witness by the state and
questioned about the accuracy of her prior testimony,
on January 8, 1997, concerning the time at which she
had been dispatched to meet with the petitioner at the
hospital on May 6, 1993. The prosecutor asked Langston
if she had referred to a police activity log as well as
her daily notebook, neither of which she had with her
during her testimony on January 8, 1997. Langston testi-
fied that she had occasion to review these materials.
The prosecutor offered a page from Langston’s daily
notebook covering May 6, 1993, and Dow objected to
its admission on the ground that the document had not
been disclosed to the defense previously. Dow argued
that the state, having been aware of the discrepancy in
Langston’s testimony concerning the time at which she
had been dispatched to meet with the petitioner, should
have disclosed the document to the defense on January
8, 1997, or, at the very latest, on the morning of January
13, 1997. Nonetheless, the court admitted the document
from Langston’s daily notebook as a full exhibit. Over
Dow’s objection, the court also admitted the daily activ-
ity log that was maintained by the police department.
The court denied Dow’s motion to strike Langston’s
testimony of January 13, 1997, observing that the state
‘‘[had] . . . a right to bring out through the offering of
these exhibits and the testimony of this witness what,
from the state’s perspective, is the accurate [time] that
this sergeant went to the hospital and when she inter-
viewed the [petitioner]. The defense has full and ample
opportunity to cross-examine her with respect to the
contents of both of these exhibits. . . .
‘‘The jury then returned to the courtroom and the
direct examination of Langston continued, with the
prosecutor asking a series of questions related to the
notebook excerpt and the daily activity log that sup-
ported Langston’s testimony that her prior testimony
about when she was at [the hospital] was incorrect.
. . . Langston acknowledged that the times she put in
her report and testified to in her initial testimony [on
January 8, 1997] were incorrect due to human error.
. . .
‘‘Dow used his cross-examination to emphasize [that]
Langston’s original testimony was correct and [to]
undermine the credibility of her subsequent correc-
tions. . . . Dow also questioned Langston as to how
she came to realize that her initial testimony was incor-
rect . . . .’’ (Citations omitted; internal quotation
marks omitted.)
The habeas court referred to the transcript of Dow’s
extensive cross-examination of Langston during the
criminal trial on January 13, 1997, during which Dow
elicited from Langston that, shortly after she left the
courthouse after testifying on January 8, 1997, she
reported for duty at the police department. Upon her
arrival, she reviewed her personal notebook as well as
the police daily activity logs. She testified that, with
respect to the timing of when she had been dispatched
to meet with the petitioner, she had ‘‘ ‘conducted [her]
own investigation as to times’ ’’ and immediately noted
her mistake concerning her testimony and the time that
appeared in her report, the document on which she
relied during her testimony on January 8, 1997. There-
after, Dow elicited from Langston that she had not
attempted to contact the prosecutor’s office immedi-
ately, but spoke to an inspector in the prosecutor’s
office, whom she identified as ‘‘Ortiz,’’ about the matter
by telephone on Saturday, January 11, 1997. During
Dow’s examination, Langston acknowledged that it was
important for a police officer who was testifying in a
murder prosecution to be as accurate and complete as
possible with respect to key facts. She testified that,
during her initial testimony, she merely had relied on
the time set forth in her police report. At that time,
Langston testified, she believed her report to be
accurate.
The habeas court stated: ‘‘Dow then questioned Lang-
ston about whether she had spoken with any of the
police detectives involved in the investigation of the
petitioner’s offenses, as well as whether she was aware
that all police reports are signed under penalty for mak-
ing a false statement.’’ The court set forth a portion
of Dow’s cross-examination of Langston in which she
testified that, on Saturday, January 11, 1997, she dis-
cussed with Ortiz the fact that her January 8, 1997
testimony was erroneous with respect to the time at
which she had been dispatched to meet with the peti-
tioner and that Ortiz instructed her to bring any relevant
documents to court with her on Monday, January 13,
1997. As the court observed, Dow explored the times
in Langston’s report, the accuracy of the report at the
time it was prepared, and the fact that she had reviewed
the report three times prior to her initial testimony.
The court continued: ‘‘In the present matter . . .
Langston testified on direct examination [during the
habeas trial] that she spoke with [the prosecutor] about
the times in her report after completing her initial testi-
mony. According to Langston, she told [the prosecutor]
that if there were any time errors in her report, those
errors could be rectified by receiving other records
maintained by the police department (e.g., the daily
activity log). Langston again acknowledged, consistent
with her testimony the second time she testified during
the criminal trial, that she put incorrect times in her
report, but that her personal notebook and the police
activity log contained the correct times. Langston indi-
cated that the likely source of the incorrect time in her
report was the petitioner himself, because the report
pertained to the incident in which the petitioner claimed
that he and a friend had been the victims of a shooting
and robbery.
‘‘As to her history with internal affairs . . . Langston
testified that she was unaware of having such a history
prior to testifying in the petitioner’s criminal trial. The
officer-involved shooting [of Ronald Carney in 1992] in
which Langston used deadly force to protect a fellow
police officer occurred approximately five years prior
to the petitioner’s criminal trial and, as mandated by
department policy, was investigated by internal affairs.
. . . Langston acknowledged that she sought out coun-
seling to help her deal with the trauma she experienced
after the shooting. Langston was not charged with any
offenses after the state’s attorney’s office also investi-
gated the shooting.4
‘‘[At the habeas trial, the prosecutor] presented brief
testimony. Although he could not recall many of the
details surrounding the underlying criminal case he
prosecuted, [he] recalled that Langston testified twice
and that the times she testified to the first time were
incorrect. [The prosecutor] could neither recall whether
he asked Langston to find evidence showing her times
were incorrect, nor if Langston told him that she could
obtain documents that demonstrated the correct times,
nor what he disclosed to the defense, nor whether he
was aware of any internal affairs investigations into
Langston. [The prosecutor] acknowledged that the tim-
ing of when Langston spoke with the petitioner at the
hospital was in contention and that Langston corrected,
with supporting documentation, her initially incorrect
testimony during her second appearance.
‘‘The petitioner’s former defense counsel, Attorney
Dow, testified [at the habeas trial] that part of the
defense strategy evolved in tandem with Langston’s
report and initial testimony, which essentially would
have made her the petitioner’s alibi witness. Langston’s
initial testimony undeniably was helpful to the peti-
tioner because he could not have been in the hospital
giving a statement to Langston at the time the shooting
occurred on Button Street. Thus, Dow strove to enhance
her credibility when Langston first testified. Attorney
Dow was not surprised by, and even anticipated, that
the state would attempt to correct Langston’s incorrect
testimony. Knowing that such correction was forthcom-
ing, Dow used that temporary advantage to the petition-
er’s benefit by engaging in plea negotiations with the
state. The petitioner was not interested in accepting a
plea agreement. When Langston returned to testify for
the second time, Dow rigorously cross-examined her
about her efforts to correct her testimony while also
continuing to underscore the credibility of her initial
testimony. However, Langston’s corrected testimony
was consistent not only with police department records,
but was also corroborated by hospital records that
showed the petitioner’s admission time to be later than
what was contained in Langston’s [inaccurate] report.
‘‘[At the habeas trial] Lt. Jason Minardi, who pre-
viously was the officer in charge of internal affairs for
the New Haven Police Department . . . could not
locate any disciplinary records pertaining to Langston.
According to Minardi, a finding that there was no disci-
plinary violation would result in the purging of the inter-
nal affairs file three years after the investigation into
the incident was completed. When wrongdoing is found,
however, the files are retained for thirty years after
someone is terminated or retires.5 Counseling is not a
form of discipline. Captain Olson, who prepared the
memorandum regarding the 1992 officer-involved
shooting, testified that he did not know if Langston was
ever disciplined for the two off-duty incidents men-
tioned in his memorandum, nor did he know any other
information about either disciplinary actions, if any, or
whether Langston was charged with offenses.
According to Olson, internal affairs reports were kept
indefinitely until 1994, when the department’s policy
changed, at which point the purging [of files], including
retroactively purging of files where no misconduct was
found, described by Lt. Minardi, began.
‘‘Given the foregoing testimonies (which the court
finds credible both individually and collectively), the
court concludes that the petitioner has failed to show
that the prosecutor was aware of Langston’s prior offi-
cer-involved shooting, let alone that she was subject to
prosecution for her action during that incident. The
petitioner has also presented no credible evidence that
the prosecutor asked Langston to obtain and produce
evidence contradicting her initial testimony. The due
process claims in count one as to Langston are with-
out merit.
‘‘As to the due process claim in count two as to
Langston, the examination by the prosecutor and
defense counsel during the first day she testified itself
demonstrated to Langston that she needed to look into
whether the times in her report were correct or whether
she had erred when producing her report. If anything,
both the state and Langston had an obligation to correct
testimony that was incorrect. . . . Consequently, the
claim in count two as it pertains to Langston, which
alleges that the prosecutor knew or should have known
Langston’s initial testimony was false and failed to cor-
rect it, is incongruous.’’ (Citations omitted; footnote in
original; footnote added.)
Additionally, in rejecting the petitioner’s argument
that the nondisclosed evidence concerning Langston
was material, the court stated: ‘‘The petitioner’s post-
trial brief makes the outlandish argument that ‘the fact
that Langston was potentially subject to prosecution
for the shooting death of Ronald Carney [in 1992] pro-
vided her with a motive to fabricate evidence to comply
with the prosecuting authority’s request that she obtain
evidence showing that her January 8, 1997 testimony
was false, in order to avoid being prosecuted for the
shooting of Carney.’ Such argument has no basis in fact.
It is the petitioner’s argument that contains grandiose
and fantastical reasons or motives for Langston fabri-
cating evidence so that she could avoid being prose-
cuted for the shooting that occurred five years prior to
the petitioner’s trial.’’ (Citation omitted.)
On appeal, the petitioner argues that the court
improperly rejected his claim that the prosecutor failed
to disclose (1) that Langston was involved in the shoot-
ing incident in 1992 ‘‘and that she had a lengthy internal
affairs history that was described in an internal affairs
report concerning that shooting,’’6 and (2) ‘‘that the
prosecuting authority had requested that Langston
obtain evidence contradicting her initial testimony
about the time she was dispatched to meet with the
petitioner.’’ The petitioner argues that the court improp-
erly determined that the prosecutor lacked knowledge
of Langston’s internal affairs history. In this regard, the
petitioner argues that the habeas court ignored well
settled authority in support of the proposition that
knowledge of any information known to the police
department is imputed to the prosecutor, and that the
prosecutor is under a duty to learn of and to disclose
to the defense any information contained in police per-
sonnel files that is relevant to an officer’s credibility.
Moreover, the petitioner argues that the court improp-
erly concluded that no credible evidence supported his
claim that the prosecutor had asked Langston to obtain
evidence contradicting her initial trial testimony. In this
regard, the petitioner argues that the court found credi-
ble the prosecutor’s testimony at the present habeas
trial, but the court ‘‘apparently overlooked’’ evidence
that, at a prior habeas trial, the prosecutor testified
that, at the time of the criminal trial, he had, in fact,
asked Langston to investigate in an effort to determine
whether there was any evidence to support her cor-
rected testimony.
‘‘Whether the petitioner was deprived of his due pro-
cess rights due to a . . . violation [under Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215(1963)] is a question of law, to which we grant plenary
review. . . . The conclusions reached by the [habeas]
court in its decision to [deny] the habeas petition are
matters of law, subject to plenary review. . . . Thus,
[w]here the legal conclusions of the court are chal-
lenged, we must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record. . . . Also, [t]he
habeas court is afforded broad discretion in making its
factual findings, and those findings will not be disturbed
unless they are clearly erroneous.’’ (Citation omitted;
internal quotation marks omitted.) Stevenson v. Com-
missioner of Correction, 165 Conn. App. 355, 363, 139
A.3d 718, cert. denied, 322 Conn. 903, 138 A.3d 933(2016).
‘‘It is well established that suppression by the prose-
cution of evidence favorable to an accused . . . vio-
lates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution. . . . To establish a
Brady violation the defendant bears the burden of dem-
onstrating: (1) that the prosecution suppressed evi-
dence; (2) that the evidence was favorable to the
defense; and (3) that it was material.’’ (Citations omit-
ted; internal quotation marks omitted.) Demers v. State,
209 Conn. 143, 149–50, 547 A.2d 28 (1988). ‘‘If . . . the
petitioner has failed to meet his burden as to one of
the three prongs of the Brady test, then we must con-
clude that a Brady violation has not occurred.’’ Morant
v. Commissioner of Correction, 117 Conn. App. 279,
296, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d
1080 (2009).
‘‘Under the last Brady prong, the prejudice that the
defendant suffered as a result of the impropriety must
have been material to the case . . . . [T]he evidence
will be deemed material only if there would be a reason-
able probability of a different result if the evidence had
been disclosed. . . . This standard is met if the favor-
able evidence could reasonably be taken to put the
whole case in such a different light as to undermine
confidence in the verdict.’’ (Citations omitted; internal
quotation marks omitted.) Lapointe v. Commissioner
of Correction, 316 Conn. 225, 262–63, 112 A.3d 1 (2015);
see also Greene v. Commissioner of Correction, 330
Conn. 1, 29, 190 A.3d 851 (2018) (discussing Brady’s
materiality prong).
‘‘It is well established that impeachment evidence
may be crucial to a defense, especially when the state’s
case hinges entirely upon the credibility of certain key
witnesses. . . . The rule laid out in Brady requiring
disclosure of exculpatory evidence applies to materials
that might well alter . . . the credibility of a crucial
prosecution witness.’’ (Internal quotation marks omit-
ted.) State v. Esposito, 235 Conn. 802, 815–16, 670 A.2d
301 (1996).
Before the habeas court, the petitioner articulated
an argument with respect to the materiality of the undis-
closed information concerning Langston. The petitioner
argued: ‘‘Langston had previously been involved in the
shooting death of Ronald Carney. As a result of that
incident, Lieutenant Roy Olson of the New Haven Police
Department produced a memorandum regarding the
shooting of Ronald Carney and the involvement of
Diane Langston and other officers in that shooting. The
memorandum outlined Langston’s prior internal affairs
history. The memorandum stated that Langston had
two previous internal affairs files, each involving off-
duty conduct. Langston also had several memoranda
in her internal affairs files that were issued while she
was in the training academy. Langston had accumulated
all of these files in just over three years of service as
a police officer. As a result of one of the internal affairs
investigations and the memoranda from the training
academy, Langston was told to see a doctor for counsel-
ing. Under New Haven Police Department policy, Langs-
ton would have been told to undergo counseling as a
result of a pattern of behavior that was detrimental to
the department. Had the prosecuting authority turned
over the fact that Langston had been involved in the
shooting death of Ronald Carney and the internal affairs
reports of the local police department concerning the
shooting, the defense would have been aware of all of
the foregoing facts.
‘‘The evidence concerning the shooting death of Ron-
ald Carney and the fact that the prosecuting authority
requested that Langston obtain a specific piece of evi-
dence [related to the timing of when she had been
dispatched to meet with the petitioner] . . . would
have been relevant to the credibility of . . . Langston
because it tended to show that she had a motive to
testify falsely in order to secure a conviction. First, the
fact that Langston was potentially subject to prosecu-
tion for the shooting death of Ronald Carney provided
her with a motive to fabricate evidence to comply with
the prosecuting authority’s request that she obtain evi-
dence showing that her January 8, 1997 testimony was
false, in order to avoid being prosecuted for the shoot-
ing of Carney. Additionally, Langston’s lengthy internal
affairs history and the fact that she specifically had
been required to undergo counseling were all facts
showing that she had engaged in conduct that was harm-
ful to her reputation in the police department. It would
have been reasonable for the jury to infer that Langs-
ton’s reputation within the police department would
have been further harmed had she provided the key
piece of evidence that led to an acquittal in a high profile
case and that she would fabricate evidence to avoid
harming her reputation.’’ (Footnotes omitted.) The peti-
tioner continued his argument concerning materiality
by emphasizing the importance of Langston’s trial testi-
mony. The petitioner raises similar materiality argu-
ments before this court.7
We need not resolve the issue of whether the prosecu-
tion suppressed evidence concerning Langston that was
favorable to the defense because, in our plenary review
of the constitutional issue presented, we agree with the
habeas court’s assessment that the evidence, if admissi-
ble in whole or in part, was not material. The touchstone
of a materiality analysis under Brady concerns the over-
all fairness of the trial and whether the prosecutor’s
failure to disclose undermines our confidence in the
verdict. Lapointe v. Commissioner of Correction,
supra, 316 Conn. 263. We must consider ‘‘if the withheld
evidence is of sufficient import or significance in rela-
tion to the original trial evidence that it reasonably
might give rise to a reasonable doubt about the petition-
er’s guilt.’’ Id. The prosecutor’s failure to disclose infor-
mation concerning Langston’s internal affairs history
and her involvement in the shooting death of Carney
five years prior to the petitioner’s criminal trial does
not undermine our confidence in the verdict.
Langston’s initial direct examination was brief; the
substance of the testimony elicited from Langston by
the prosecutor may be summarized as follows. Langston
testified that she was dispatched to meet with the peti-
tioner at the hospital at 2:05 a.m. on May 6, 1993. There-
after, she spoke with the petitioner while he was in the
emergency room, and he told her that he and a friend
were leaving a store in New Haven when they were
accosted by two black males. According to Langston,
the petitioner told her that he sustained a gunshot injury
when the men attempted to rob them and that he and
his friend proceeded directly to the hospital. Certainly,
Langston’s testimony with respect to when she was
dispatched to meet with the petitioner was an important
part of the state’s case. It was not, however, the only
evidence of when the petitioner was present at the
hospital.8
The petitioner’s ability to confront Langston was not
undermined to any significant degree by the prosecu-
tor’s failure to disclose the information at issue because
the information at issue lacked an appreciable potential
to have altered the jury’s assessment of Langston’s cred-
ibility. The internal affairs report at issue refers exten-
sively to the conduct of the three police officers who
were involved in the incident during which Langston
shot Carney, yet it does not suggest that Langston acted
wrongfully or unlawfully during that incident. The
report states, among other things, that Carney resisted
when Officer Richard Pelletier attempted to handcuff
him following a criminal trespass complaint. During the
struggle, Carney struck another officer, Joseph Boyd,
and gained possession of his service weapon. A struggle
ensued between Carney and Pelletier, during which
time Carney discharged Boyd’s weapon into the air.
Langston sought to assist Pelletier when Carney
‘‘attempted to train the weapon at her while pulling at
the trigger.’’ Langston, after taking cover, watched from
a safe distance as Carney continued to struggle with
Pelletier while Pelletier held Carney’s hands and arms
upward so that he was unable to use Boyd’s weapon.
Langston summoned additional police assistance, but
became concerned when it appeared that Pelletier was
losing ground in the struggle and there was a serious
threat to officer safety. Langston fired a single fatal
gunshot at Carney, striking him in the back of the head.
Likewise, the internal affairs report refers to the fact
that Langston was directed to receive counseling as a
result of ‘‘off-duty conduct in Bridgeport’’ and that
‘‘[s]he does have several memoranda in her internal
affairs files which were issued while she was in the
training academy.’’
None of the facts surrounding Langston’s role in Car-
ney’s death supports a reasonable inference that, at the
time of the petitioner’s criminal trial, she was living
under a realistic or imminent threat of prosecution for
her role in Carney’s death. Moreover, the scant informa-
tion in the report concerning counseling does not rea-
sonably support an inference that, at the time of the
petitioner’s criminal trial, Langston’s reputation in the
police department was tarnished or that her job was
in jeopardy. The further and critical inference on which
the petitioner relies to demonstrate materiality is, as
the court aptly characterized it, ‘‘outlandish . . . .’’ In
an attempt to link the Carney shooting and the internal
affairs report to the testimony at issue in this case, the
petitioner argues that it would have been reasonable
for the jury to infer that Langston had not merely a
motive to commit perjury in an effort to convict an
innocent person, but a motive to fabricate evidence,
namely, the evidence that supported her corrected trial
testimony concerning the time at which she had been
dispatched to meet with him. This reasoning strains cre-
dulity.
The petitioner also argues that a Brady violation
occurred because the prosecutor failed to disclose that,
at the time of the criminal trial, he asked Langston
to obtain and produce evidence that contradicted her
initial trial testimony.9 Consistent with our previous
analysis, even if we were to assume that, in this regard,
the prosecutor suppressed evidence that was favorable
to the defense, the petitioner has not demonstrated
that this evidence was material. The materiality of this
evidence is inextricably linked to the petitioner’s theory
that, because Langston either feared prosecution
related to Carney’s death or because she was concerned
for her standing in the New Haven Police Department,
Langston committed perjury and fabricated evidence
in an attempt to lend support to the state’s case and,
thus, curry favor with the Office of the State’s Attorney.
As we have explained previously, the inferences on
which this theory relies are not at all reasonable.
For the foregoing reasons, we are not persuaded that
the resolution of the petitioner’s Brady claim involves
issues that are debatable among jurists of reason, that
a court could resolve the issues in a different manner,
or that the questions involved deserve encouragement
to proceed further. Accordingly, we conclude that the
petitioner has failed to demonstrate that the habeas
court improperly denied his petition for certification to
appeal with respect to this claim.
II
Next, the petitioner claims that the habeas court
improperly denied his petition for certification to appeal
with respect to his claim that counsel in a prior habeas
action, Carpenter, deprived him of his right to the effec-
tive assistance of counsel by abandoning the claim that
trial counsel, Dow, deprived him of his right to the
effective assistance of counsel by failing to adequately
examine, impeach, and challenge the testimony that
Langston provided after she was recalled as a witness
by the state.10 We disagree with the petitioner.
As we discussed previously in this opinion, in count
six of his third amended petition for a writ of habeas
corpus, the petitioner claimed in relevant part that, in
a prior habeas action, Carpenter rendered ineffective
assistance in that she failed to plead, argue, and prove
the claim set forth in count three of his petition. In claim
three, the petitioner alleged that Dow had rendered
ineffective assistance during the criminal trial by failing
adequately to ‘‘cross-examine, impeach, or otherwise
challenge the testimony of . . . Langston concerning
the time she was dispatched to meet with the petitioner
and her motivation to testify falsely against the peti-
tioner . . . .’’
In rejecting this aspect of the petitioner’s claim of
ineffective representation by Carpenter, the habeas
court essentially determined that the petitioner could
not prevail because there was no evidence that Dow
performed deficiently as trial counsel. The court stated:
‘‘This court’s review of the criminal trial transcripts
demonstrates that Attorney Dow vigorously questioned
Langston, whether to support her initial testimony or
challenge her ensuing corrections, and the petitioner
has not presented any evidence as to how Attorney Dow
could have any better challenged Sergeant Langston on
the dispatch times or her purported motivations for
presenting false testimony.’’
Presently, the petitioner focuses on what he believes
to be Carpenter’s failure in the prior habeas action to
substantiate adequately his claim that Dow’s second
cross-examination of Langston, after she was recalled
as a witness by the state, was deficient. In his appellate
brief, the petitioner argues that in the prior habeas
action, Carpenter raised a claim concerning Dow’s defi-
cient performance as it related to his cross-examination
of Langston and that Carpenter ‘‘was aware that the
claim could be supported by impeachment evidence
contained in Langston’s internal affairs file.’’ He argues
that Carpenter’s performance as habeas counsel ‘‘was
deficient because she entirely failed to investigate the
claim and abandoned it at the petitioner’s habeas
trial.’’11
Previously, we discussed Langston’s initial trial testi-
mony as well as her later trial testimony, which was
presented after she was recalled as a witness by the
state. The petitioner accurately observes that Langs-
ton’s initial trial testimony tended to undermine the
state’s theory of the case and that her later testimony
was unfavorable to the defense. He argues that Dow
‘‘did nothing to prepare to impeach [Langston’s] later
testimony. [Dow’s] failure to prepare to do so was
wholly deficient. There is a reasonable probability
that—had [Dow] properly impeached Langston’s recall
testimony in a way that preserved the reliability of her
initial testimony, the petitioner would have been acquit-
ted.’’ According to the petitioner, Dow was deficient
for failing to learn of Langston’s role in the shooting
death of Carney in 1992 and her ‘‘internal affairs his-
tory,’’ and that these failures prejudiced the petitioner
because such facts would have supported his theory,
which we explored in part I of this opinion, that Langs-
ton ‘‘had a motive to testify falsely against [him].’’ Once
more, the petitioner asserts that it would have been
reasonable for the jury to infer that Langston’s ‘‘history
of impropriety’’ motivated her to testify untruthfully
in the state’s favor in order to avoid prosecution for
shooting Carney, to protect her standing in the police
department generally, and to protect her job. The peti-
tioner asserts that he was prejudiced by Dow’s failure
because, had he challenged Langston in the manner
described, he would have cast serious doubt on the
credibility of her later testimony.
Moreover, the petitioner argues, Dow ‘‘failed to elicit
testimony from Langston showing that she was aware
that sources existed that could accurately state the time
she was dispatched [to meet with the petitioner], but
that she elected not to investigate or to obtain those
in preparation for her recall testimony.’’ Specifically,
the petitioner argues that ‘‘Dow never inquired about
Langston’s reasons for believing that her notepad and
police logbook were more accurate than her sworn
police report. He also failed to inquire about whether
other materials existed that would indicate the time
she was dispatched to meet with petitioner, and
whether she confirmed the accuracy of her notepad
and police logbook with those materials.’’
With respect to these materials, the petitioner draws
our attention to Langston’s testimony at the habeas trial
that computer generated dispatch records on the police
department’s computers as well as ‘‘reel-to-reel tapes’’
would have provided a record of the time at which she
was dispatched to meet with the petitioner on May 6,
1993, and that such records were immune to human
error. At the habeas trial, Langston testified, however,
that she did not feel a need to refer to these records,
but, in determining the accuracy of her later testimony,
relied on her personal notebook and the police activity
log. Although the petitioner refers to Langston’s testi-
mony in this regard, he does not refer to the content
of these other materials, and it does not appear that
they were part of the evidence presented at the habeas
trial. Nonetheless, the petitioner argues that Dow preju-
diced the petitioner by failing to explore this avenue
of cross-examination because ‘‘had Dow . . . elicit[ed]
the fact that she was aware of the computer generated
dispatch records and reel-to-reel tapes, there is a rea-
sonable probability that the jury would have acquitted
the petitioner. Specifically, such testimony would have
shown that both the prosecuting authority and Langston
were aware that there was a record of the dispatch
time that was not subject to human error, but that the
prosecuting authority elected not to present that record
to the jury. This would have raised reasonable questions
as to why that evidence had not been presented and cast
doubt on the reliability of Langston’s recall testimony.
There is a reasonable probability that the jury would
have concluded that those records were not presented
because they corroborated Langston’s initial testimony
that the petitioner was in the hospital at the time of
the shooting and, accordingly, acquitted the petitioner.’’
In this aspect of his claim, the petitioner argues that
Dow was deficient simply for not drawing attention to
the fact that the state failed to present these additional
records, not that these additional records actually
undermined the substance of Langston’s later tes-
timony.
Before addressing the merits of the petitioner’s claim,
we set forth basic governing principles. ‘‘The use of a
habeas petition to raise an ineffective assistance of
habeas counsel claim, commonly referred to as a habeas
on a habeas, was approved by our Supreme Court in
Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992).
In Lozada, the court determined that the statutory right
to habeas counsel for indigent petitioners provided in
General Statutes § 51-296 (a) includes an implied
requirement that such counsel be effective, and it held
that the appropriate vehicle to challenge the effective-
ness of habeas counsel is through a habeas petition.
. . . In Lozada, the court explained that [t]o succeed
in his bid for a writ of habeas corpus, the petitioner
must prove both (1) that his appointed habeas counsel
was ineffective, and (2) that his trial counsel was inef-
fective. Lozada v. Warden, supra, 842. As to each of
those inquiries, the petitioner is required to satisfy the
familiar two-pronged test set forth in Strickland v.
Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984)]. First, the [petitioner] must show that
counsel’s performance was deficient. . . . Second, the
[petitioner] must show that the deficient performance
prejudiced the defense. . . . Unless a [petitioner]
makes both showings, it cannot be said that the convic-
tion . . . resulted from a breakdown in the adversary
process that renders the result unreliable. . . . Lozada
v. Warden, supra, 842–43. In other words, a petitioner
claiming ineffective assistance of habeas counsel on
the basis of ineffective assistance of trial counsel must
essentially satisfy Strickland twice . . . .
‘‘In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assis-
tance was reasonable considering all the circum-
stances. . . . Judicial scrutiny of counsel’s
performance must be highly deferential and courts must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance; that is, the [petitioner] must overcome the
presumption that, under the circumstances, the chal-
lenged action might be considered sound trial strategy.
. . . [S]trategic choices made after thorough investiga-
tion of law and facts relevant to plausible options are
virtually unchallengeable; [but] strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.
. . . With respect to the prejudice prong, the petitioner
must establish that if he had received effective represen-
tation by habeas counsel, there is a reasonable probabil-
ity that the habeas court would have found that he
was entitled to reversal of the conviction and a new
trial . . . .
‘‘It is well settled that in reviewing the denial of a
habeas petition alleging the ineffective assistance of
counsel, [t]his 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.’’ (Citations omitted; internal quotation
marks omitted.) Gerald W. v. Commissioner of Correc-
tion, 169 Conn. App. 456, 463–65, 150 A.3d 729 (2016),
cert. denied, 324 Conn. 908, 152 A.3d 1246 (2017). This
court has described a petitioner’s burden in this regard
as a ‘‘ ‘herculean task.’ ’’ Toccaline v. Commissioner of
Correction, 177 Conn. App. 480, 499, 172 A.3d 821, cert.
denied, 327 Conn. 986, 175 A.3d 45 (2017).
The petitioner’s claim that Carpenter’s representation
deprived him of his right to the effective assistance of
counsel in that she failed to investigate and pursue
the claim that Dow’s cross-examination of Langston
deprived the petitioner of his right to adequate represen-
tation at the criminal trial depends on his proving, under
the principles enunciated in Strickland, that Dow per-
formed deficiently and that his deficient representation
was prejudicial. We need not consider whether Dow
performed deficiently because the petitioner has failed
to satisfy his burden of proving under Strickland’s sec-
ond prong that Dow’s performance prejudiced him.
To the extent that the petitioner’s claim is based on
Dow’s failure to pursue cross-examination related to
Langston’s role in the shooting death of Carney in 1992
or to any of the information contained in the internal
affairs report authored by Olson in 1992, the claim of
prejudice is wholly unpersuasive. As we have discussed
at length in part I of this opinion, the petitioner relies
on facts that were not explored during Dow’s cross-
examination of Langston, including the fact that she
fatally shot Carney in 1992 in the course of her duty as
a police officer. Also, the internal affairs report that
was filed following the shooting referred to the fact
that she ‘‘[had] two previous internal affairs files, each
involving off-duty conduct in Bridgeport’’; several mem-
oranda in her files were issued while she was in the
training academy; and she had been directed to see a
counselor. From these scant facts, the petitioner invites
us to presume that a jury reasonably could have inferred
that Langston had engaged in egregious wrongdoing
such that she not only feared for her reputation and
her career as a police officer, but that she feared prose-
cution. Furthermore, the petitioner invites us to pre-
sume that a jury reasonably could have inferred that,
in an attempt to curry favor with the Office of the State’s
Attorney and to enhance her reputation as a police
officer, Langston decided to correct her initial testi-
mony, which was accurate, so that the state could suc-
cessfully prosecute the petitioner for a crime that he
did not commit. According to the petitioner, a jury rea-
sonably could have inferred that this effort to assist the
state did not merely consist of Langston fabricating her
testimony after she was recalled as a witness by the
state, but her fabrication of evidence to support her
testimony. The inferences on which the petitioner relies
are unreasonable because they are not logically drawn
from the facts in evidence.
To the extent that the petitioner’s claim is based on
Dow’s failure to cross-examine Langston with respect
to the fact that her recall testimony was based on her
review of her personal notebook and police daily activ-
ity logs, but that she had not referred to additional
resources including computer generated dispatch
records and reel-to-reel tapes, the claim of prejudice
is unsubstantiated. The petitioner relies on Langston’s
testimony that she did not deem it necessary to conduct
further research into these additional resources as well
as his belief that, unlike the documents on which Langs-
ton relied, these resources would have been immune
to human error. The petitioner argues that if Dow had
brought these facts to the jury’s attention during his
cross-examination of Langston, the jury surely would
have found Langston’s recall testimony to be untrue
and that a finding of not guilty would have followed.
During her testimony at the habeas trial, Langston
testified with respect to her belief that her police report
was inaccurate because, therein, she had written as her
dispatch time a time provided to her by the petitioner
when she spoke with him at the hospital. She testified
that her recall testimony was based on her personal
notebook and the police activity log, which she believed
to be accurate, and that she did believe it was necessary
for her to refer to computer generated dispatch records
in the custody of the police department. Langston did
not appear to deflect the petitioner from conducting a
further inquiry into the accuracy of her testimony. She
testified that she believed that a record of her dispatch
time was stored by the police department on ‘‘reel-to-
reel tapes’’ and was ‘‘sure those tapes are still available.’’
The petitioner has not presented any evidence to dem-
onstrate that the computer generated records on which
his claim heavily depends actually demonstrate that
Langston’s recall testimony, her personal notebook, or
the police activity log were, in fact, inaccurate.
The evidence that is most damaging to the petitioner’s
claim of prejudice comes in the form of the petitioner’s
hospital records, which were introduced into evidence
at his criminal trial and, thus, were fodder for the jury’s
consideration. It is undisputed that the hospital records
reflect that, on May 6, 1993, emergency medical registra-
tion occurred at 2:49 a.m., an initial nursing assessment
of the petitioner in the emergency department occurred
at 2:55 a.m., the petitioner was examined by a doctor
at 2:55 a.m., the petitioner was observed by a nurse at
3 a.m., and the petitioner was interviewed by the police
at 3:05 a.m. The state’s theory of the case was that the
shooting of the victim occurred in New Haven at 2:20
a.m. The habeas court found, and the petitioner does
not dispute, that ‘‘Langston’s corrected testimony was
consistent not only with police department records, but
also was corroborated by hospital records that showed
the petitioner’s admission time to be later than what
was contained in Langston’s report.’’12
The petitioner has failed to demonstrate that the
alleged deficiencies in Dow’s cross-examination of Lan-
gston prejudiced him. As the habeas court found, ‘‘Dow
rigorously cross-examined [Langston] about her efforts
to correct her testimony while also continuing to under-
score the credibility of her initial testimony.’’ We
observe that not only did the petitioner’s hospital
records corroborate Langston’s recall testimony, but
the avenues of inquiry that the petitioner argues Dow
should have pursued were not logically related to the
evidence and the reasonable inferences to be drawn
therefrom, and, thus, were not likely to have been per-
suasive to the jury. Because the petitioner has failed
to prove that Dow’s performance prejudiced him, he is
likewise unable to demonstrate that, in the prior habeas
action, Carpenter’s failure to pursue the claim related
to Dow’s performance caused him prejudice.
For the foregoing reasons, we are not persuaded that
the resolution of the petitioner’s claim concerning inef-
fective representation by Carpenter involves issues that
are debatable among jurists of reason, that a court could
resolve the issues in a different manner, or that the
questions involved are adequate to deserve encourage-
ment to proceed further. Accordingly, the petitioner
has failed to demonstrate that the court abused its dis-
cretion in denying the petition for certification to appeal
with respect to this claim.
The appeal is dismissed.
In this opinion the other judges concurred.
1
In his direct appeal, the petitioner claimed: ‘‘(1) except for the larceny
charges, there was insufficient evidence to establish his guilt beyond a
reasonable doubt with respect to the other crimes, (2) he was denied his
right to confront his accusers and (3) the trial court gave incorrect jury
instructions concerning proof beyond a reasonable doubt and consciousness
of guilt.’’ State v. Ham, supra, 55 Conn. App. 283.
2
The petitioner alleged in relevant part that, prior to filing the present
petition for a writ of habeas corpus, he filed seven other petitions for a writ
of habeas corpus. The petitioner alleged that, in 2001, he withdrew the first
petition, brought under docket number CV-XX-XXXXXXX, without prejudice.
He alleged that, in 2002, the habeas court, Carroll, J., dismissed the second
petition that he brought under docket number CV-XX-XXXXXXX.
He alleged that, in 2002, the habeas court, Carroll, J., dismissed the third
petition that he brought under docket number CV-XX-XXXXXXX.
He alleged that, in 2003, the habeas court, White, J., dismissed the fourth
petition that he brought under docket number CV-XX-XXXXXXX.
He alleged that, in 2004, the habeas court, White, J., dismissed the fifth
petition, which had not been assigned a docket number.
He alleged that, in 2008, following a trial, the habeas court, dos Santos,
J., denied the sixth petition, which was brought under docket number CV-
XX-XXXXXXX. In this action, the petitioner was represented by Attorney Frank
Cannatelli. Subsequently, our Supreme Court affirmed the judgment of the
habeas court. Ham v. Commissioner of Correction, 301 Conn. 697, 23 A.3d
The petitioner further alleged that, in 2012, following a trial, the habeas
court, Newson, J., denied his seventh petition for a writ of habeas corpus
that was brought under docket number CV-XX-XXXXXXX. In this action, the
petitioner was represented by Attorney Hilary Carpenter. Subsequently, this
court affirmed the judgment of the habeas court. Ham v. Commissioner of
Correction, 152 Conn. App. 212, 98 A.3d 81, cert. denied, 314 Conn. 932,
102 A.3d 83 (2014).
3
The petitioner alleges a violation of his right to due process under the
federal and state constitutions. Because the petitioner has not provided this
court with an independent analysis of his claim under the state constitution,
we deem his state constitutional claim to be abandoned and limit our analysis
to the federal constitution. See State v. Hearl, 182 Conn. App. 237, 271 n.28,
190 A.3d 42, cert. denied, 330 Conn. 903, 192 A.3d 425 (2018).
4
The court observed that there was evidence that Langston had two
previous internal affairs files, each involving off-duty conduct in Bridgeport,
but that there was no evidence that Langston was aware of these files.
Additionally, the court observed that there was evidence that Langston had
‘‘several memoranda in her internal affairs files which were issued while
she was in the training academy.’’ See footnote 6 of this opinion.
5
The court credited Langston’s testimony that she retired on June 30, 2011.
6
The internal affairs report was introduced into evidence at the habeas
trial. The lengthy report, prepared by Olson, addressed to the chief of the
New Haven Police Department, and dated March 13, 1992, detailed the
activities of Langston and two other police officers in the shooting death
of Carney on January 6, 1992. The report detailed, among other things, a
physical struggle between Carney and three police officers, including Langs-
ton, following a complaint of criminal trespass. During this struggle, Carney
gained possession of one of the officer’s pistols and caused it to discharge.
After Langston attempted to restrain Carney, Carney attempted to point the
weapon at Langston while pulling at the trigger. After she took cover, Langs-
ton observed that Carney was gaining the upper hand in his struggle with
one of the officers. She discharged her service weapon once, fatally shooting
Carney. The report does not conclude that Langston’s conduct in this incident
was improper in any way.
The report also includes the following: ‘‘Officer Diane Langston was
employed by this department on July 31, 1989. She has two previous internal
affairs files, each involving off-duty conduct in Bridgeport. One of the files
was turned over to Major Thomas Muller and the second resulted in you
causing her to . . . [obtain counseling]. She does have several memoranda
in her internal affairs files which were issued while she was in the training
academy. These memoranda and the latter incident in Bridgeport were the
reason she was directed by you to see [a counselor].’’
7
The petitioner argues, as well, that, during the habeas trial, Langston
was less than forthcoming about whether she had an ‘‘internal affairs history’’
and that she falsely testified at the habeas trial that she had not been asked
to see a counselor as a result of her off-duty conduct. Accordingly, the
petitioner argues that, had Langston testified in a similar manner at his
criminal trial, he would have had the ability to challenge her credibility by
means of the internal affairs report. This aspect of the claim, which is based
merely on speculation as to how Langston might have testified at the criminal
trial, is not persuasive.
8
As we explain in greater detail in part II of this opinion, the state presented
hospital records that corroborated Langston’s testimony that, after the police
were notified that the petitioner had been shot, she had been dispatched
to meet with the petitioner at the hospital after 2:20 a.m.
9
As part of this claim, the petitioner challenges the habeas court’s finding
that he ‘‘presented no credible evidence that the prosecutor asked Langston
to obtain and produce evidence contradicting her initial testimony’’ at the
petitioner’s criminal trial. The petitioner accurately refers to the fact that he
presented evidence that, at a prior habeas trial, the prosecutor acknowledged
that, prior to Langston’s subsequent testimony on April 13, 1997, he had
‘‘requested . . . Langston to conduct some investigation to see whether
. . . information [concerning the fact that her initial trial testimony was
inaccurate] would be available and [whether that information was] some-
thing I would be able to put before the jury.’’ When he was presented with
this testimony during the present habeas trial, the prosecutor stated that
although it did not refresh his recollection of the relevant events, on the
basis of his prior testimony he agreed with the respondent’s counsel when
she asked him if he would ‘‘accept’’ that the version of events described in
his prior testimony was accurate.
The petitioner argues that the habeas court ‘‘apparently overlooked’’ this
testimony of the prosecutor and that, on the basis of this testimony, this
court should be left with the definite and firm conviction that the habeas
court’s factual finding is clearly erroneous. In light of our conclusion that
the evidence at issue was not material for purposes of Brady, we conclude
that any error in the court’s factual finding was harmless.
10
Although the petitioner claims that he was deprived of his right to the
effective assistance of prior habeas counsel under the federal and state
constitutions, he has not provided this court with an independent analysis
of his claim under the state constitution. Accordingly, we deem his claim
under the state constitution to be abandoned and limit our review to the
federal constitution. See State v. Hearl, supra, 182 Conn. App. 271 n.28.
11
At the present habeas trial, Carpenter acknowledged that she ‘‘aban-
doned’’ the claim related to Dow’s cross-examination of Langston.
12
Rather than challenging the accuracy of the hospital records, the peti-
tioner argues that, in evaluating prejudice, this court should discount the
importance of the records because, during its deliberations, the jury
requested to rehear Langston’s testimony in its entirety. From this fact, the
petitioner argues that this court must conclude that Langston’s testimony
was ‘‘among the most important parts of the case.’’ There is absolutely no
indication in the trial court record with respect to why the jury wanted to
rehear Langston’s testimony, nor any reason to infer that, in resolving the
factual issues in this case, the jury improperly focused solely on Langston’s
testimony rather than the evidence in its entirety. The petitioner has not
referred this court to any relevant authority to support the proposition
that, in our evaluation of whether Carpenter’s representation caused him
prejudice, we should not consider all of the matters in the trial court record
that are relevant to an evaluation of Dow’s performance and the prejudice,
if any, that it caused the petitioner. The fact that the jury asked to rehear
the entirety of Langston’s testimony does not in any way undermine the
significance of the hospital records in our evaluation of prejudice.