Myers v. Commissioner of Correction ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and 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 repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
MICHAEL MYERS v. COMMISSIONER
OF CORRECTION
(AC 37379)
Keller, Mullins and Kahn, Js.
Argued October 27, 2015—officially released March 22, 2016
(Appeal from Superior Court, judicial district of
Tolland, Fuger, J.)
Jessica Vizvary, with whom were Kristi Thomaston
and, on the brief, Stephanie M. O’Neil and Grayson
Colt Holmes, for the appellant (petitioner).
Jacob L. McChesney, special deputy assistant state’s
attorney, with whom, on the brief, were Michael Dear-
ington, state’s attorney, and Rebecca A. Barry, assistant
state’s attorney, for the appellee (respondent).
Opinion
KELLER, J. After the habeas court rendered judgment
denying his amended petition for a writ of habeas cor-
pus, the petitioner, Michael Myers, brings the present
appeal following the denial of his petition for certifica-
tion to appeal. The petitioner claims that the court
abused its discretion in denying his petition for certifica-
tion to appeal because counsel at his criminal trial ren-
dered ineffective assistance by failing to preserve for
appellate review a claim that the state had excluded a
potential juror on the basis of race in violation of Batson
v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d
69 (1986). We conclude that the court properly exer-
cised its discretion in denying the petition for certifica-
tion to appeal and, accordingly, dismiss the present
appeal.
The relevant procedural history is as follows. In 2008,
following a jury trial, the petitioner was convicted of
manslaughter in the first degree with a firearm in viola-
tion of General Statutes §§ 53a-55a and 53a-55 (a) (1),
carrying a pistol without a permit in violation of General
Statutes § 29-35, tampering with physical evidence in
violation of General Statutes § 53a-155 (a) (1) and crimi-
nal possession of a firearm in violation of General Stat-
utes § 53a-217 (a) (1). The court imposed a total
effective sentence of fifty years of incarceration. Fol-
lowing a direct appeal, this court affirmed the judgment
of conviction. State v. Myers, 126 Conn. App. 239, 11
A.3d 1100, cert. denied, 300 Conn. 923, 14 A.3d 1006
(2011).
This court set forth the facts underlying the petition-
er’s conviction, as they reasonably could have been
found by the jury, as follows: ‘‘The [petitioner] had
a tempestuous relationship with Shaquita Alston, the
mother of his child. On the night of June 2 and the early
morning of June 3, 2005, Alston met the victim, William
Corey, at a nightclub in New Haven, after which they
had sexual relations at his apartment. Corey then drove
her back to her residence, where they found the [peti-
tioner] waiting outside. The [petitioner] advised Corey
that he would talk to him later.
‘‘Over the next two days, the [petitioner] argued with
Alston, accusing her of having sexual relations with
Corey, which she denied. Subsequently, in the early
morning of June 5, 2005, she physically attacked the
[petitioner] when she saw him with another woman at
his house. On the night of June 6, 2005, the [petitioner]
and Alston spent time together at his house, during
which he telephoned Corey and arranged a meeting.
He took a handgun with him when he and Alston left
the house.
‘‘The [petitioner] and Alston walked to meet Corey,
who was waiting in his car. Both got into Corey’s car,
which he then drove around New Haven, at which time
the [petitioner] asked questions about what had tran-
spired between Corey and Alston on the morning of
June 3. During this time, the [petitioner] also telephoned
a friend of Alston who had left the club with her and
Corey on June 3. At some point, the [petitioner] directed
Corey to stop the car and exited on the passenger side
after Alston. Standing outside the car, he fired one gun-
shot into Corey and ran from the scene. Corey died of
internal bleeding caused by the single gunshot wound.’’
Id., 242–43.
Among the several claims raised by the petitioner in
his direct appeal was that, at the time of jury selection
in his criminal trial, the trial court improperly denied
a Batson challenge raised by the defense after the prose-
cutor peremptorily struck D, an African-American
venireperson, from the venire panel. Id., 242, 256. The
petitioner’s claim was in two parts. First, he claimed
that the state’s acceptance of other venirepersons who
were not African-American but were similarly situated
to D, specifically, C, F, V, and L, demonstrated that the
prosecutor’s articulated reasons for striking D were
pretextual and that D’s dismissal was race based. Id.,
256, 260. Second, apart from the issue of disparate treat-
ment of venirepersons by the state, the petitioner
claimed that the court erred in concluding that the
prosecutor’s proffered explanation for striking D was
facially based on something other than D’s race, and,
therefore, was not pretextual. Id., 256, 263.
This court set forth the facts relevant to the Batson
claims as follows: ‘‘During voir dire, the prosecutor and
defense counsel both questioned D. In response to the
prosecutor’s questions, D revealed that he had been
arrested by the New Haven police nineteen years earlier
but believed that he had been treated fairly because he
was innocent and the case had been nolled. He indicated
that he did not harbor any bias against the criminal
justice system or against police officers. In response to
defense counsel’s questions, D revealed that his son
had been prosecuted and convicted in the Milford court
for armed robbery and was serving a twenty year sen-
tence. He stated that he writes to his son but that his
son does not write back. He also stated that his son’s
situation would not affect his impartiality because his
son was a grown man and has to live with his decisions.
D also revealed that, when he was a young adult in
Texas, he ‘used to run with a pimp’ and once had carried
a gun but had not used it.1 He noted, ‘When I did that,
I was young, and I’ve never like[d] it then, I don’t like
it now.’ He also indicated that he had turned his life
around since his ‘wild’ youth.
‘‘After D’s voir dire, the prosecutor exercised a
peremptory challenge to excuse D, and defense counsel
raised a Batson objection. The prosecutor articulated
three race neutral reasons for exercising his challenge:
(1) similar to the [petitioner], D had been arrested by
the New Haven police; (2) his son had been prosecuted
by the Milford state’s attorney’s office, and the prosecu-
tor disclosed that he had formerly worked at that office;
and (3) because of D’s stated wild youth, there was a
possibility that he would empathize with the [petition-
er’s] circumstances despite his promises of impartiality.
Defense counsel responded that these reasons were
insufficient because D stated that he was not biased as
a result of these experiences, and he demonstrated that
he was thoughtful, candid, aware of a juror’s responsi-
bilities, and committed to being impartial. The court
found that D’s experiences created a risk that he might
empathize with the [petitioner] and also found that the
state had not engaged in a pattern of questioning him
that was different from its treatment of other venire-
persons. It concluded that there was nothing to suggest
that the prosecutor had a race based ulterior motive in
exercising a peremptory challenge to excuse D.’’ (Foot-
note in original.) Id., 258–60.
In the context of the petitioner’s direct appeal, this
court declined to review his claim that the state’s accep-
tance of other venirepersons whom he argued were
similarly situated to D, specifically, C, F, V, and L, dem-
onstrated that the prosecutor’s articulated reasons were
pretextual and that, in fact, D’s dismissal was race
based. This court observed that, to substantiate his
claim, the petitioner ‘‘compare[d] the state’s treatment
of D to its treatment of two accepted jurors, C and F,
and two venirepersons, V and L, who were accepted
by the state before they were dismissed by the [peti-
tioner].’’ Id., 260. Also, the court observed that the state
argued that the facts on which the petitioner relied,
which pertained to the state’s treatment of C, F, V, and
L, were not properly before this court in the context
of the direct appeal because ‘‘they were not before the
[trial] court at the time that it made its finding on the
[petitioner’s] Batson challenge. The voir dire of C
occurred on March 6; the Batson challenge regarding
D occurred on March 7; and the voir dire of the other
three [venirepersons] took place on March 17 and 20,
2008.’’ Id.
This court, citing relevant precedent, observed that
a Batson challenge is timely if it is raised at any time
before the jury is sworn, a Batson claim that is based
on a prosecutor’s alleged disparate treatment of venire-
persons necessitates a comparison of the prosecutor’s
treatment of venirepersons throughout the process or
jury selection, and that ‘‘any Batson claim not timely
raised [before the trial court] is deemed to have been
waived.’’ Id., 260–61. This court, declining to review the
Batson claim that was based upon alleged disparate
treatment of venirepersons, stated: ‘‘In the present case,
therefore, the disparate treatment claim is not review-
able because the record reveals that it was not pre-
served. In short, once the prosecutor had accepted any
of the jurors whom the [petitioner] claims were simi-
larly situated to D, it was the [petitioner’s] burden to
renew his Batson challenge regarding D based on his
claim of disparate treatment. Here, three of the allegedly
comparable venirepersons were questioned subsequent
to the Batson challenge of D’s dismissal, and the [peti-
tioner] did not renew the challenge before the jury was
sworn so as to include them in the court’s consideration
of the challenge, as required by [State v. Robinson, 237
Conn. 238, 245–50, 676 A.2d 384 (1996)] and its progeny.
Furthermore, even though the voir dire of C was part
of the record at the time the court made its finding with
regard to D, the [petitioner] failed to raise disparate
treatment as a ground for sustaining the Batson chal-
lenge. Consequently, the court never had the opportu-
nity to consider disparate treatment as part of its
assessment of the [petitioner’s] Batson claim regarding
D. Because the claim is unpreserved, it is unreviewable
on appeal.’’ State v. Myers, supra, 126 Conn. App. 262.
Thereafter, with respect to the petitioner’s separate
claim that was based not on whether the state had
treated D differently from other similarly situated
jurors, but on whether the prosecutor’s explanation for
excluding D was facially insufficient, this court con-
cluded that there was ‘‘ample support’’ in the record
for the trial court’s determination that the prosecutor’s
use of a peremptory challenge was race neutral. Id., 265.
On March 3, 2014, the petitioner, through counsel,
filed an amended petition for a writ of habeas corpus.
In the sole ground raised in support of the petition,
the petitioner alleged in relevant part that his defense
counsel from the criminal trial, Attorney Scott Jones
and Attorney Mary Haselkamp, had rendered ineffective
assistance because before the trial court they had failed
to claim with respect to his Batson challenge that the
state had treated D differently than it had treated simi-
larly situated venirepersons C, F, V, and L, and thereby
had failed to preserve for appellate review the disparate
treatment claim that he had raised in his direct appeal.
Further, he alleged that, but for counsel’s deficient rep-
resentation, ‘‘the claim would have been successful
on appeal.’’
The respondent, the Commissioner of Correction,
denied the allegation of ineffective assistance of coun-
sel and the allegation that the claim, if properly pre-
served, would have been resolved in the petitioner’s
favor on appeal. The habeas court held an evidentiary
hearing on the habeas petition on August 28, 2014. At
the hearing, the petitioner presented testimony from
Attorney James B. Streeto, who represented him during
his direct appeal, as well as Jones, one of the two
attorneys who represented him during his criminal trial,
including during the lengthy jury selection process.
Among the items admitted into evidence at the hearing
were the transcripts from the voir dire portion of the
criminal trial, as well as materials related to the petition-
er’s direct appeal.
In its memorandum of decision, the habeas court
rejected on its merits the petitioner’s claim of ineffec-
tive assistance of counsel. The court found that the
petitioner had proven the historical facts alleged in his
petition, which concerned what had transpired during
the trial and the direct appeal. The court aptly character-
ized the only allegations in dispute to be whether the
actions of trial counsel were deficient in terms of com-
petent and reasonable representation; whether, but for
any deficient performance by counsel, the petitioner
would have been successful on appeal; and whether,
because of any deficient performance, the petitioner
had been deprived of his constitutional right to effective
assistance of counsel.
At the outset, we note that the habeas court appears
to have assumed for purposes of its analysis that the
petitioner’s trial counsel had rendered deficient perfor-
mance by failing to preserve the claim that the prosecu-
tor had engaged in disparate treatment of
venirepersons.2 The court focused its analysis on
whether the petitioner had demonstrated that such defi-
cient performance caused him prejudice. The court
observed that the petitioner had presented testimony
from Jones and Streeto, and chose to rely on the record
of the earlier proceedings before the trial court and this
court. After setting forth relevant legal principles, the
court stated in relevant part: ‘‘[A]s a fact finder, given
the state of the evidence that was presented to this
court, and taking into consideration that the petitioner
bears the burden of persuasion, this court cannot and
will not conclude that any of the venirepersons received
disparate treatment. This court shall specifically find
that the critical important fact of the venirepersons [at
issue] being ‘similarly situated’ has not been proven by
a preponderance of the evidence. Consequently, the
petitioner has failed to show . . . that [he] was preju-
diced by the deficient performance of his trial defense
counsel.’’ The court denied the petitioner’s amended
petition for a writ of habeas corpus and, later, it denied
the petition for certification to appeal.3 This appeal
followed.
We first address the petitioner’s burden in the present
appeal. ‘‘Faced with a habeas court’s denial of a petition
for certification to appeal, a petitioner can obtain appel-
late review of the dismissal of his petition for habeas
corpus only by satisfying the two-pronged test enunci-
ated by our Supreme Court in Simms v. Warden, 229
Conn. 178, 640 A.2d 601 (1994), and adopted in Simms
v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).
First, he must demonstrate that the denial of his petition
for certification constituted an abuse of discretion. . . .
To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . Sec-
ond, if the petitioner can show an abuse of discretion,
he must then prove that the decision of the habeas
court should be reversed on the merits. . . . In
determining whether there has been an abuse of discre-
tion, every reasonable presumption should be given in
favor of the correctness of the court’s ruling . . . [and]
[r]eversal is required only where an abuse of discretion
is manifest or where injustice appears to have been
done.’’ (Internal quotation marks omitted.) Wilson v.
Commissioner of Correction, 150 Conn. App. 53, 56–57,
90 A.3d 328, cert. denied, 312 Conn. 918, 94 A.3d 641
(2014).
Before the habeas court, the petitioner raised a claim
of ineffective assistance of trial counsel. ‘‘In order to
establish an ineffective assistance of counsel claim a
petitioner must meet the two-pronged test enunciated
in Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). Specifically, the claim
must be supported by evidence establishing that (1)
counsel’s representation fell below an objective stan-
dard of reasonableness, and (2) counsel’s deficient per-
formance prejudiced the defense because there was a
reasonable probability that the outcome of the proceed-
ings would have been different had it not been for the
deficient performance. . . . Because both prongs of
Strickland must be demonstrated for the petitioner to
prevail, failure to prove either prong is fatal to an inef-
fective assistance claim. . . . In a habeas appeal, this
court cannot disturb the underlying facts found by the
habeas court unless they are clearly erroneous, but our
review of whether the facts as found by the habeas court
constituted a violation of the petitioner’s constitutional
right to effective assistance of counsel is plenary.’’ (Cita-
tion omitted; emphasis in original; internal quotation
marks omitted.) Atkins v. Commissioner of Correction,
158 Conn. App. 669, 675, 120 A.3d 513, cert. denied, 319
Conn. 932, 125 A.3d 206 (2015).
The habeas court concluded that the petitioner had
failed to demonstrate that he was prejudiced by his
trial counsel’s failure to preserve a claim based upon
disparate treatment of venirepersons. Before this court,
the petitioner challenges the propriety of the habeas
court’s determination, which was fatal to his claim of
ineffective assistance, that the venirepersons at issue
in his claim were not similarly situated. The petitioner
argues in relevant part: ‘‘The voir dire transcripts of the
petitioner’s criminal trial show that D received dispa-
rate treatment when he was dismissed by the state as
a potential juror because D, a black venireperson, was
similarly situated to other white jurors and/or venire-
persons C, V, F, and L, all of whom were accepted by
the state. Because the transcripts show that D was
similarly situated and received disparate treatment
when compared to others, there is a reasonable proba-
bility that the petitioner would have prevailed on
appeal, had the claim been preserved.’’ In opposition,
the respondent argues that the habeas court correctly
determined that, under Batson, C, V, F, and L were not
similarly situated to D and, thus, that the petitioner was
unable to demonstrate that he was prejudiced by his
counsel’s failure to raise the unpreserved Batson claim.4
Before discussing the merits of the claim, we set
forth relevant legal principles. ‘‘Voir dire plays a critical
function in assuring the criminal defendant that his [or
her] [s]ixth [a]mendment right to an impartial jury will
be honored. . . . Part of the guarantee of a defendant’s
right to an impartial jury is an adequate voir dire to
identify unqualified jurors. . . . Our constitutional and
statutory law permit each party, typically through his
or her attorney, to question each prospective juror indi-
vidually, outside the presence of other prospective
jurors, to determine [his or her] fitness to serve on the
jury. . . . Because the purpose of voir dire is to dis-
cover if there is any likelihood that some prejudice is
in the [prospective] juror’s mind [that] will even subcon-
sciously affect his [or her] decision of the case, the party
who may be adversely affected should be permitted [to
ask] questions designed to uncover that prejudice. This
is particularly true with reference to the defendant in
a criminal case. . . . The purpose of voir dire is to
facilitate [the] intelligent exercise of peremptory chal-
lenges and to help uncover factors that would dictate
disqualification for cause. . . .
‘‘Peremptory challenges are deeply rooted in our
nation’s jurisprudence and serve as one state-created
means to the constitutional end of an impartial jury and
a fair trial. . . . [S]uch challenges generally may be
based on subjective as well as objective criteria. . . .
Nevertheless, [i]n Batson [v. Kentucky, supra, 476 U.S.
79] . . . the United States Supreme Court recognized
that a claim of purposeful racial discrimination on the
part of the prosecution in selecting a jury raises consti-
tutional questions of the utmost seriousness, not only
for the integrity of a particular trial but also for the
perceived fairness of the judicial system as a whole.
. . . The court concluded that [a]lthough a prosecutor
ordinarily is entitled to exercise permitted peremptory
challenges for any reason at all, as long as that reason
is related to his [or her] view concerning the outcome
of the case to be tried . . . the [e]qual [p]rotection
[c]lause forbids [a party] to challenge potential jurors
solely on account of their race . . . .
‘‘Under Connecticut law, a Batson inquiry involves
three steps. First, a party must assert a Batson claim
. . . . [Second] the [opposing party] must advance a
neutral explanation for the venireperson’s removal.
. . . In evaluating the race neutrality of an attorney’s
explanation, a court must determine whether, assuming
the proffered reasons for the peremptory challenges
are true, the challenges violate the [e]qual [p]rotection
[c]lause as a matter of law. . . . At this stage, the court
does not evaluate the persuasiveness or plausibility of
the proffered explanation but, rather, determines only
its facial validity—that is, whether the reason on its
face, is based on something other than the race of the
juror. . . . Thus, even if the [s]tate produces only a
frivolous or utterly nonsensical justification for its
strike, the case does not end—it merely proceeds to
step three. . . .
‘‘In the third step, the burden shifts to the party
asserting the Batson objection to demonstrate that the
[opposing party’s] articulated reasons are insufficient
or pretextual. . . . In evaluating pretext, the court
must assess the persuasiveness of the proffered expla-
nation and whether the party exercising the challenge
was, in fact, motivated by race. . . . Thus, although an
improbable explanation might pass muster under the
second step, implausible or fantastic justifications may
(and probably will) be found to be pretexts for purpose-
ful discrimination at the third stage of the inquiry. . . .
‘‘We have identified several specific factors that may
indicate that [a party’s removal] of a venireperson
through a peremptory challenge was . . . motivated
[by race]. These include, but are not limited to: (1) [t]he
reasons given for the challenge were not related to
the trial of the case . . . (2) the [party exercising the
peremptory strike] failed to question the challenged
juror or only questioned him or her in a perfunctory
manner . . . (3) prospective jurors of one race . . .
were asked a question to elicit a particular response
that was not asked of other jurors . . . (4) persons
with the same or similar characteristics but not the
same race . . . as the challenged juror were not struck
. . . (5) the [party exercising the peremptory strike]
advanced an explanation based on a group bias where
the group trait is not shown to apply to the challenged
juror specifically . . . and (6) the [party exercising the
peremptory strike] used a disproportionate number of
peremptory challenges to exclude members of one
race . . . .
‘‘In deciding the ultimate issue of discriminatory
intent, the [court] is entitled to assess each explanation
in light of all the other evidence relevant to [a party’s]
intent. The [court] may think a dubious explanation
undermines the bona fides of other explanations or
may think that the sound explanations dispel the doubt
raised by a questionable one. As with most inquiries
into state of mind, the ultimate determination depends
on an aggregate assessment of all the circumstances.
. . . Ultimately, the party asserting the Batson claim
carries the . . . burden of persuading the trial court, by
a preponderance of the evidence, that the jury selection
process in his or her particular case was tainted by
purposeful discrimination. . . .
‘‘The second step of the Batson inquiry involves a
determination of whether the party’s proffered explana-
tion is facially race neutral and, thus, is a question of
law. . . . Because this inquiry involves a matter of law,
we exercise plenary review. . . .
‘‘The third Batson step, however, requires the court
to determine if the prosecutor’s proffered race neutral
explanation is pretextual. . . . Deference [to the trial
court’s findings of credibility] is necessary because a
reviewing court, which analyzes only the transcripts
from voir dire, is not as well positioned as the trial
court is to make credibility determinations. . . .
Whether pretext exists is a factual question, and, there-
fore, we shall not disturb the trial court’s finding unless
it is clearly erroneous.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) State v.
Edwards, 314 Conn. 465, 483–90, 102 A.3d 52 (2014).
At the time of trial, the petitioner asserted a Batson
claim, and the prosecutor advanced what the court
determined to be a facially race neutral explanation for
the removal of D. In the petitioner’s direct appeal, this
court rejected his claim that, on its face, the prosecu-
tor’s explanation for striking D from the venire panel
improperly was based on race. In his habeas petition,
the petitioner sought to demonstrate that he would have
prevailed on appeal but for his trial counsel’s failure to
take the next step in the Batson challenge. Specifically,
he argues that counsel failed to demonstrate that the
facially race neutral explanation was pretextual
because the prosecutor had accepted C, F, V, and L,
whom he characterizes as persons similarly situated to
D, but not of the same race as D.
Thus, the dispositive issue is whether, as the peti-
tioner argues, C, F, V, and L were similarly situated to
D. If, apart from race, they did not have the same or
similar characteristics as D, the petitioner is unable to
demonstrate that he suffered any prejudice as a result
of the alleged deficient performance of his trial counsel.
Previously in this opinion, we discussed the facts elic-
ited during the voir dire examination of D. Now, we
will review the evidence to which the petitioner draws
our attention concerning C, V, L, and F, as he attempts
to demonstrate that these venirepersons, all of whom
were accepted by the state following their voir dire
examinations, were similarly situated to D. We observe
that the evidence concerning the voir dire examinations
of these venirepersons is not in dispute.
There was evidence before the habeas court that C
was a white male. As relevant, C testified during his
voir dire examination that when he lived in New York
several years earlier, he was a crime victim when his
apartment was broken into and his car was stolen. Apart
from this testimony, C testified that later, when he was
living in Connecticut, he had been charged with driving
under the influence, he had gone ‘‘through the process,’’
and the charge had been dismissed. C testified that it
was a ‘‘pretty humiliating experience,’’ one that he did
not want to go through again. C testified that he did
not know anyone else who had been arrested or accused
of a crime. C testified that nothing about his dealings
with the police or the legal system left him with bad
feelings, and that the experience would not affect his
ability to be a fair and impartial juror.
There was evidence before the habeas court that V
was female and not an African-American. In response
to questioning by the prosecutor during her voir dire
examination, V testified that prior to her current
employment, she had been employed by a specific
motorcycle dealership for seven and one-half years. The
prosecutor explained the reasons for his inquiry into
her prior employment: ‘‘The only reason I asked you
is, that I had gone out there. There was a case out there
that I was involved in personally, and I know I met
some of the people that worked there.’’ The prosecutor
stated that he did not recall having met V. V testified
that she had not met the prosecutor and that she did not
know anything about that case related to the motorcycle
dealership. Moreover, V testified that nothing about that
incident would cause her to favor one side or the other
in the present case. Later, V testified that she had no
personal involvement in the criminal justice system and
that no family or friends of hers had ever been accused
of committing a crime.
With respect to L, a female venireperson, there was
evidence that she was not an African-American. L testi-
fied during her voir dire examination by the prosecutor
that she did not know anyone who had any involvement
in the criminal justice system. Later, during examination
by defense counsel, L testified that eight or nine years
earlier, after one of her sons graduated from college,
he had ‘‘had a DUI.’’ L testified that her son had to
appear in court, but that she ‘‘really wasn’t involved [in
the case].’’ L testified that her son was not happy about
the incident and that she was not impacted by the
incident.
There was evidence that F was a white male. F testi-
fied during his voir dire examination that, as a conse-
quence of a recent charge of driving under the influence,
he was scheduled to appear before the court in a nearby
courthouse. He stated that he was represented by an
attorney and expected to ‘‘find out about classes’’ at
his next court appearance. F testified that he did not
believe that that pending matter would affect his ability
to be a fair and impartial juror. F testified that the
driving under the influence incident occurred in Madi-
son, and that, in connection with the incident, he
believed that he had been ‘‘treated professionally
. . . .’’ He stated: ‘‘I made a mistake and, you know,
so, I have to suffer the consequences. It’s something
I’ll never do again. . . . It wasn’t planned, it was just,
you know, kind of like an accident. . . . Unfortunately,
I can’t go back, I can only go forward.’’ He stated that
the driving under the influence charge was his only
involvement with the criminal justice system, and that
no other friends or family members of his had had any
involvement in the criminal justice system.
Our jurisprudence does not furnish us with a ready
test by which to determine whether ‘‘persons with the
same or similar characteristics but not the same race
. . . as the challenged juror were not struck . . . .’’
(Internal quotation marks omitted.) State v. Edwards,
supra, 314 Conn. 486. The United States Supreme Court
has observed that, to prevail under this type of Batson
claim, a defendant need not demonstrate the impossible
by proving that accepted jurors were identical in all
respects to one or more excluded jurors of a different
race. The court stated: ‘‘A per se rule that a defendant
cannot win a Batson claim unless there is an exactly
identical white juror would leave Batson inoperable;
potential jurors are not products of a set of cookie
cutters.’’ (Emphasis omitted.) Miller-El v. Dretke, 545
U.S. 231, 247 n.6, 125 S. Ct. 2317, 162 L. Ed. 2d 196
(2005). In an analysis of this nature, it is useful to con-
sider, among other relevant factors, whether the rea-
sons proffered by the prosecutor for striking the
excluded juror or jurors logically applied to the jurors
accepted by the state. ‘‘If a prosecutor’s proffered rea-
son for striking a black panelist applies just as well to
an otherwise-similar nonblack who is permitted to
serve, that is evidence tending to prove purposeful dis-
crimination to be considered at Batson’s third step.’’
Id., 241. This is the focus of the petitioner’s arguments
before this court.
In the present case, the petitioner attempts to draw
similarities between D and C, V, L, and F. Yet, an exami-
nation of the facts on which he relies does not demon-
strate that any of these venirepersons were similarly
situated to D. As a preliminary matter, one of the race
neutral reasons articulated by the prosecutor for strik-
ing D was that D had indicated that he had acted in a
‘‘wild’’ manner in his younger days. D explained that
he had been arrested by the New Haven police nineteen
years earlier, had been in a situation in which he was
armed with a gun in the context of a dispute in Texas,
and ‘‘[ran] with a pimp . . . .’’ During his examination,
D portrayed himself as someone who, recognizing that
he no longer wanted to be part of a criminal lifestyle,
had turned his life around. He stated in relevant part: ‘‘I
walk a different path now. . . . [W]hen I was younger I
may have been doing other things like that, you know,
but now I’m just straightforward . . . and I try to do
right.’’ As set forth previously, the prosecutor expressed
his concern that D, who was forty-six years of age,
might empathize with the petitioner, a young man who
was accused of engaging in criminal activity involving
the use of a gun. Neither C, V, L, nor F had testified that
they had a similar type of ‘‘wild’’ youth and subsequent
maturation process. Thus, none of these other venire-
persons posed the same type of risk of empathizing
with the petitioner and, perhaps, a desire to afford him
a second chance.
The prosecutor expressed his race neutral concern
that, like the petitioner, D had been arrested by the
New Haven police. The petitioner attempts to demon-
strate that D’s arrest made him similarly situated to C,
who had been charged with driving while under the
influence, and F, who at the time of his examination
was addressing a charge of driving while under the
influence arising from an incident in Madison. For sev-
eral reasons, the petitioner’s argument is unavailing.
Implicit in the prosecutor’s explanation concerning
D’s prior arrest by the New Haven police was that it
might cause him to harbor a bias against the New Haven
police, in particular. This was a significant concern in
the present case because the petitioner was arrested
by the New Haven police. There was no indication in
the evidence, however, that C or F had been arrested
by the New Haven police. Thus, D’s testimony gave rise
to concerns that did not arise from the testimony of C
or F. Moreover, contrary to the petitioner’s arguments,
D and F were not similarly situated simply because
both venirepersons had faced pending charges in the
New Haven judicial district. As stated previously, the
testimony elicited during the voir dire examinations
demonstrated that F, unlike D, had been arrested by
the Madison police.
Also, any attempt by the petitioner to draw parallels
from the fact that D, C, and F all had been arrested
is unavailing because of the testimony concerning the
differences surrounding these arrests. D testified that
his arrest occurred in 1989, when he was ‘‘in a car
with some drugs.’’ He stated that the New Haven police
stopped the automobile, discovered drugs under the
seat, and ‘‘arrested everybody in the car.’’ D testified
that, ultimately, one of the occupants confessed that
the drugs belonged to him, and that the charges brought
against D and the remaining two occupants of the auto-
mobile had been nolled. Although D testified that he
believed he had been treated fairly, he stated: ‘‘I felt
comfortable that I didn’t do anything . . . .’’ He agreed
with the prosecutor’s characterization of the event as
a ‘‘bad experience’’ for him. Apart from the fact that D,
C, and L, had a history of arrest, the testimony reflects
that D had been arrested for a drug related offense and
that C and L had been arrested for an offense of a
different nature, driving while under the influence of
alcohol. Moreover, D testified that his experience in
being arrested by the New Haven police was a bad
experience, that he was not guilty of any wrongdoing,
and that the police simply had arrested him because of
his presence in an automobile in which drugs were
found. In contrast, during their testimony, although C
and L described their arrests as humiliating and unfortu-
nate experiences, C and L did not characterize their
arrests as bad experiences, or suggest that they had
not been guilty of any wrongdoing in connection with
the arrests. C testified that the charge against him had
been dismissed. F, similarly, testified that he had a
pending charge, but his testimony suggested his belief
that it would be dismissed once he attended classes.
Because it is reasonable to conclude that D’s arrest was
more of a negative encounter with the police than were
the arrests of C or F, the petitioner is unable to demon-
strate that D, C, and F were similarly situated simply
because of their history of arrest. ‘‘Prosecutors com-
monly seek to exclude from juries all individuals, what-
ever their race, who have had negative encounters with
the police because they fear that such people will be
biased against the government.’’ (Internal quotation
marks omitted.) State v. Kalican, 110 Conn. App. 743,
759, 955 A.2d 1261, cert. denied, 289 Conn. 949, 960
A.2d 1038 (2008).
Additionally, the petitioner refers to the prosecutor’s
race neutral explanation that he had exercised a
peremptory challenge with respect to D for reasons
related to the fact that, formerly, the prosecutor was
employed in the Milford state’s attorney’s office, and
D’s son, who was serving a lengthy term of incarceration
following a conviction for armed robbery, had been
prosecuted by that office.5 The petitioner attempts to
draw a parallel between D, whose son was prosecuted
by an office where the prosecutor formerly was
employed, and V, who testified that she formerly was
employed by a motorcycle dealership, one that had been
the subject of an investigation by the prosecutor. The
petitioner overlooks the fact that V testified that she
was completely unaware of the investigation of her
former employer about which the prosecutor inquired.
In contrast, D testified that his son had been arrested
for an armed robbery in West Haven and that he had
been prosecuted in Milford. The record, including the
representations of the prosecutor during his colloquy
with V, reflects that the prosecutor had been involved
in an investigation of V’s former employer. In contrast,
D testified that a close family relative, his son, had been
arrested, prosecuted, and sentenced in ‘‘the Milford
court’’ to a twenty year term of imprisonment for armed
robbery. Accordingly, the petitioner is unable to demon-
strate that D and V were similarly situated in this regard.
Finally, the petitioner attempts to demonstrate that
D and L were similarly situated because D and L both
had sons who had been arrested. As a preliminary mat-
ter, in contrast to the prosecution of D’s son, there was
no indication in the evidence that the prosecutor or an
office in which he had been employed was in any way
involved in the arrest of L’s son. More importantly,
however, the evidence demonstrated that L’s son was
arrested and charged with driving while under the influ-
ence of alcohol. L testified that she was not involved
in the matter, but merely recalled that her son had to
appear in court. There was no indication that L’s son had
been sentenced to serve any period of incarceration. A
fair interpretation of L’s testimony as a whole suggests
that the matter was not memorable to her. In contrast,
D’s son was convicted of armed robbery and was serv-
ing a lengthy, twenty year prison sentence. It is obvious,
therefore, that the arrest of D’s son and the arrest of
L’s son were for very different types of crimes and
led to outcomes that were vastly different. Thus, the
petitioner is unable to demonstrate, on the basis of
these arrests, that D and L were similarly situated.
We recognize that the perception of racial bias by
the state in jury selection ‘‘invites cynicism respecting
the jury’s neutrality’’ and that such bias in jury selection
is an ‘‘overt wrong . . . [that] casts doubt over the
obligation of the parties, the jury, and indeed the court
to adhere to the law throughout the trial of the cause.’’
Powers v. Ohio, 499 U.S. 400, 412, 111 S. Ct. 1364, 113
L. Ed. 2d 411 (1991). After a careful review of the argu-
ments and record presented to this court, however, we
conclude that the petitioner has not demonstrated that
D was similarly situated to C, V, L, or F, and, therefore,
he is unable to demonstrate that, had his trial counsel
attempted to demonstrate that the prosecutor’s articu-
lated reasons for excluding D were pretextual on the
ground that C, V, L, or F were similarly situated to D,
it was reasonably probable that the outcome of his
appeal would have been different.
In light of the foregoing, we conclude that the issue
of whether the petitioner was prejudiced by the alleged
deficient representation of his trial counsel was not
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, we conclude that
the court properly exercised its discretion in denying
the petition for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
‘‘D stated the following: ‘When I was in Texas about sixteen years ago,
I used to run with a pimp. All right. And we was at a club and one of his
girls came in, and this guy was trying to run him over downtown, so we
ran over with the pimp’s girl downtown. . . . So, then we went to the car,
we popped the trunk and started pulling out guns. Well, I’m petrified, you
know, so we riding and I’m praying that we never run up on this person.
. . . And we never did.’ ’’ State v. Myers, supra, 126 Conn. App. 259 n.10.
2
We observe that, although the habeas court did not find explicitly that
defense counsel had performed deficiently, it stated that this court, in its
prior opinion concerning the claims raised in the direct appeal, ‘‘all but
makes that finding mandatory.’’ We disagree with such interpretation of this
court’s prior opinion. This court, in its prior opinion, did not make any
determination with respect to whether the petitioner’s trial counsel had
acted deficiently, nor did it suggest that such a determination was proper.
Rather, this court merely observed that defense counsel had not raised the
claim at issue.
We do not know of any authority that stands for the proposition that
counsel’s mere failure to raise a claim of this nature constitutes deficient
performance as a matter of law. It is the petitioner’s burden to demonstrate
that counsel’s challenged acts or omissions constituted deficient perfor-
mance. Here, Jones testified at the habeas trial that he did not raise the
claim of disparate treatment because ‘‘[i]t didn’t seem like there was a need
to do so’’ and he ‘‘didn’t want to engage in any frivolous claims.’’ Whether
Jones’ tactical decision in this regard fell below an objective standard of
reasonable competence is an issue that has not been the subject of judicial
scrutiny before this court.
Accordingly, we disagree with the habeas court that this court’s prior
recitation of the procedural history underlying the claim suggests that coun-
sel’s conduct in failing to raise the claim was the product of representation
that fell below an objective standard of reasonableness. A court deciding
a claim of ineffective assistance of counsel need not resolve the question
of deficient performance if it is able to reject the claim solely on the ground
of lack of prejudice. See Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d
69 (1988). Because, in the present appeal, we agree with the habeas court
that the petitioner failed to demonstrate that he was prejudiced by the
performance of trial counsel, we uphold its denial of certification to appeal
without resolving the question of deficient performance.
3
Among the grounds set forth by the petitioner in support of his petition
for certification to appeal from the judgment of the habeas court was that the
court erroneously found that the venirepersons at issue were not similarly
situated and had not received disparate treatment. Thus, in his petition for
certification to appeal, the petitioner properly alerted the court to the claim
that he has presented in the present appeal.
4
The respondent asserts that the petitioner has ‘‘focus[ed] on the wrong
proceeding’’ by couching his habeas petition and his argument before this
court concerning prejudice in terms of whether he would have prevailed in
his direct appeal, rather than focusing on whether ineffective representation
deprived him of a fair trial. The respondent does not argue, however, that
this fact precludes review or that it is dispositive of the claim, but that we
should focus our analysis on whether the alleged ineffective assistance
deprived him of a fair trial. The petitioner alleged in his amended petition
that he was prejudiced in that the unpreserved claim ‘‘would have been
successful on appeal,’’ and claims before this court that he was prejudiced
because his trial counsel ‘‘failed to preserve the disparate treatment argu-
ment for appeal . . . .’’ The habeas court appears to have addressed the
issue of prejudice in more general terms, concluding that ‘‘the petitioner has
failed to show . . . that [he] was prejudiced by the deficient performance of
his trial defense counsel.’’
The petitioner responds that, as a matter of law, it was proper for him
to focus his claim on whether the ineffectiveness of his trial counsel caused
him prejudice with respect to the outcome of his direct appeal, by arguing
that it deprived him of his ability to prevail in that appeal. In this regard,
the petitioner draws our attention to Young v. Commissioner of Correction,
120 Conn. App. 359, 362, 991 A.2d 685, cert. denied, 297 Conn. 905, 995 A.2d
635 (2010), in which a similar claim was argued before this court in this
manner. We observe that, in Young, this court affirmed the judgment of the
habeas court after concluding that the record supported its determination
that the petitioner had failed to demonstrate that his trial counsel had
performed deficiently. Id., 369–70.
Because we agree with the habeas court that the petitioner’s Batson claim
lacks merit, the petitioner is unable to demonstrate that he was prejudiced
in any manner by his trial counsel’s representation. Thus, it is immaterial
to our resolution of the claim that he has framed his argument concerning
prejudice in terms of the outcome of his direct appeal rather than whether
the alleged ineffective representation deprived him of a fair trial.
5
Although the petitioner asserts before this court that the prosecutor was
not employed by the Milford state’s attorney’s office at the time that D’s
son was prosecuted by that office, that assertion is not supported by the
record. The prosecutor, addressing the court, stated that he ‘‘formerly
worked for’’ the Milford state’s attorney’s office.