Leon v. Commissioner of Correction , 189 Conn. App. 512 ( 2019 )

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EDWIN LEON, JR. v. COMMISSIONER
OF CORRECTION
(AC 41039)
DiPentima, C. J., and Alvord and Eveleigh, Js.
Syllabus
The petitioner, who had been convicted of manslaughter in the first degree
with a firearm and carrying a revolver without a permit in connection
with the shooting death of the victim, sought a writ of habeas corpus.
He claimed that he was deprived of the effective assistance of counsel
when, without his knowledge or consent, trial counsel stated during
closing argument to the jury that the petitioner bore some responsibility
for the victim’s death and that the petitioner had been reckless. The
petitioner had fatally shot the victim when he put a loaded and cocked
handgun to her throat after they had returned home from a night of
drinking. The petitioner testified that he and the victim had been arguing
and that he had pulled out the gun to calm the victim down, but that
the gun discharged. The petitioner thereafter was charged with, inter
alia, murder. His trial counsel argued to the jury that although the
petitioner was responsible for the victim’s death, the shooting was not
intentional and might have been the result of the petitioner’s reckless
behavior, and that the jury should find the petitioner guilty of the lesser
included offense of criminally negligent homicide. The petitioner alleged
ineffective assistance of trial counsel in his amended petition for a writ
of habeas corpus. The habeas court analyzed the claim under the test
set forth in Strickland v. Washington (466 U.S. 668) for determining
whether a petitioner received ineffective assistance. The court rendered
judgment denying the habeas petition, concluding that under Strickland,
the petitioner failed to prove both that his trial counsel’s performance
was deficient and that he was prejudiced by that deficient performance.
The court determined that although trial counsel breached his profes-
sional duty to consult with the petitioner before arguing to the jury as
he did, counsel’s actions did not come within the scope of the exception
under United States v. Cronic (466 U.S. 648), which relieves a habeas
petitioner of having to demonstrate prejudice when his counsel entirely
fails to function as an advocate and does not subject the state’s case
to meaningful adversarial testing. The habeas court granted the petition
for certification to appeal, and the petitioner appealed to this court. He
claimed that trial counsel’s statements to the jury violated his right to
client autonomy under the sixth amendment and that the habeas court
improperly determined that he had not been denied the effective assis-
tance of counsel as a result thereof. Held:
1. This court declined to consider the petitioner’s claim that his trial counsel’s
conduct violated his sixth amendment right to client autonomy; the
petitioner’s amended habeas petition did not explicitly or implicitly set
forth a claim that his right to client autonomy was violated, all of the
alleged constitutional violations in the habeas petition fell within the
ambit of the solitary legal claim that was alleged, which was that the
petitioner was denied his constitutional right to the effective assistance
of counsel, the habeas court conducted its analysis under Strickland
and focused solely on the ineffective assistance claim and did not address
the right to client autonomy claim, and that court’s reasoning supported
the interpretation that the petitioner did not plead a violation of the
right to client autonomy.
2. The habeas court properly determined that the petitioner was not deprived
of the right to the effective assistance of counsel:
a. The habeas court properly determined that Strickland, and not Cronic,
applied and that the burden of demonstrating prejudice remained with
the petitioner; the actions of the petitioner’s trial counsel, which were
reasonably calculated to further the petitioner’s interest in avoiding a
conviction of the more serious charge of murder, did not amount to
nonrepresentation of the petitioner and, thus, warranted the application
of Strickland, under which the petitioner bore the burden to prove that
he was prejudiced as a result of any deficient performance by his counsel,
and the habeas court properly concluded that trial counsel clearly
attempted to perform his duties as the petitioner’s legal advocate and
that there had been no complete failure of representation.
b. The petitioner’s claim that the habeas court improperly concluded
that he was not prejudiced by his trial counsel’s statements to the jury
was unavailing, the petitioner having failed to establish a reasonable
probability that the result of the trial would have been different had
counsel not made the challenged comments; it was very unlikely that
the jury would have reached a different verdict even if the petitioner’s
trial counsel had not made the challenged comments during closing
argument, as there was no dispute that the petitioner shot the victim
and caused her death, the question was whether the victim’s death
was the result of an accident or conduct that rendered the petitioner
criminally liable, the trial court instructed the jury on the crime of
murder and lesser included offenses, and the state presented significant
evidence that supported the jury’s verdict of guilty of the lesser included
offense of reckless manslaughter in the first degree with a firearm.
Argued November 28, 2018—officially released April 30, 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, Sferrazza, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Mark Rademacher, assistant public defender, for the
appellant (petitioner).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Michael J. Proto, assistant state’s
attorney, for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The focus of the petitioner Edwin
Leon, Jr.’s, appeal from the judgment of the habeas
court denying his petition for a writ of habeas corpus
is on the conduct of his criminal trial counsel during
closing argument. On appeal, the petitioner claims that
(1) that conduct violated his right to client autonomy
under the sixth amendment to the United States consti-
tution, and (2) the habeas court improperly determined
that the petitioner had not been denied the effective
assistance of counsel by that conduct. We conclude
that the former was not pleaded or decided by the
habeas court and therefore is not properly before this
court. With respect to the latter, the petitioner’s claim
of ineffective assistance of counsel fails, as he did not
establish prejudice. Accordingly, we affirm the judg-
ment of the habeas court.
Following a jury trial, the petitioner was convicted of
manslaughter in the first degree with a firearm (reckless
indifference) in violation of General Statutes §§ 53a-55
(a) (3) and 53a-55a, and carrying a revolver without
a permit in violation of General Statutes § 29-35. In
affirming the petitioner’s conviction, this court set forth
the following facts which the jury reasonably could
have found. ‘‘The [petitioner] and the victim, Krisann
Pouliot, had been in a romantic relationship for three
years and lived in the home of Pouliot’s mother in East
Hartford. On May 19, 2012, after a night of drinking
and arguing, the [petitioner] and Pouliot returned home
where the [petitioner] fatally shot Pouliot in the neck.
The [petitioner] subsequently was arrested and charged
in an amended long form information with murder in
violation of General Statutes § 53a-54a and carrying a
revolver without a permit in violation of § 29-35.
‘‘A jury trial began on September 29, 2013, before the
court, Mullarkey, J. The [petitioner] testified as to the
following. On the night of the shooting, the [petitioner]
and Pouliot drank a bottle of champagne before they
left home for downtown Hartford at about 10 p.m. While
downtown, the [petitioner] and Pouliot each consumed
approximately four to five alcoholic beverages. The
[petitioner] stated that when he went to downtown
Hartford, he regularly carried a revolver due to inci-
dents that had taken place there previously. The [peti-
tioner] did not have a permit to carry a revolver. At
some point while at various clubs in Hartford, the [peti-
tioner] and Pouliot began to argue about the attention
that the [petitioner] was paying to other women. Later
that evening, the [petitioner] and Pouliot drove home,
where the [petitioner] took the gun from the car and
brought it upstairs. In their shared bedroom, the [peti-
tioner] and Pouliot continued to argue with escalating
intensity. At some point, the [petitioner] pushed Pouliot
onto the bed, placed his left hand around her neck,
and held his gun to her neck with his right hand. The
[petitioner] stated that he pulled out his gun to calm
[Pouliot] down. With his left hand still around Pouliot’s
neck, the gun discharged and the bullet entered Pouli-
ot’s neck and exited, severing a finger on the [petition-
er’s] left hand.
‘‘According to the [petitioner], after shooting Pouliot,
he held her for a few minutes as she gasped for breath.
The [petitioner] then picked up the gun, put on a
sweatshirt, and left the premises without reporting the
incident to anyone. The [petitioner] walked to his moth-
er’s house, which took him approximately forty-five
minutes, during which time he did not summon help for
Pouliot or alert anyone to the shooting. The [petitioner]
testified that he never intended to shoot the gun and
did not pull the trigger intentionally. After arriving at
his mother’s home, the [petitioner] told his mother,
brother, and the mother of his child what had taken
place, at which point the police were called. Matthew
Martinelli, an East Hartford firefighter paramedic, testi-
fied that upon his arrival, it was immediately clear that
Pouliot was not breathing and, after failing to detect a
heartbeat, he determined that she was dead. . . .
‘‘During defense counsel’s closing argument to the
jury, he stated: I suggest again that this was not inten-
tional, and the circumstances surrounding this, I sug-
gest, indicate that it wasn’t intentional. I think he
panicked after this happened. He should have gotten
help immediately, but did not lawyer up, did not run,
I mean, not run away, but he ran away from the scene,
but he didn’t try to run, he didn’t flee the state, didn’t
do any of that, and told everybody who asked what
happened. Stupid, maybe reckless, definitely stupid, in
fact it’s so stupid that I have trouble getting—wrapping
my mind around that it was intentional. It was, you
just—and the hammer back, carrying a weapon with
the hammer back, he had no training, you heard him
testify to that, no firearms training, obviously, because
the first thing you’re taught is, you don’t do that, you
don’t carry a weapon with a round in the chamber, even.
‘‘I’m asking that you consider when you are deliberat-
ing that there is a life that was lost and my client is
responsible in some way, there’s no question about that.
The question is, responsible for what of the charges
that you’ll hear when the judge reads the charge. I
suggest that this was an accident. It may have been
reckless behavior, but it was not intentional. I’m sug-
gesting that he certainly should be convicted on the
gun and on criminally negligent homicide; there is a
life lost, but again, in my mind this just does not appear,
does not sound like an intentional shooting.’’ (Emphasis
omitted; footnotes omitted; internal quotation marks
omitted.) State v. Leon, 159 Conn. App. 526, 528–31,
123 A.3d 136, cert. denied, 319 Conn. 949, 125 A.3d
529 (2015).
With respect to the homicide, the court instructed
the jury on the crime of murder, and the lesser included
offenses of manslaughter in the first degree with a fire-
arm (intentional), manslaughter in the first degree with
a firearm (reckless indifference) and criminally negli-
gent homicide. Id., 531. The petitioner was found not
guilty of the murder charge, and guilty of manslaughter
in the first degree with a firearm (reckless indifference)
and carrying a revolver without a permit. Id. Following
the verdict, the court sentenced the petitioner to a total
effective term of thirty-one years imprisonment. Id. This
court affirmed the petitioner’s conviction on direct
appeal.1 Id., 527–28.
On September 23, 2014, the self-represented peti-
tioner commenced the present action by filing a petition
for a writ of habeas corpus. On November 7, 2016,
habeas counsel filed an amended petition alleging the
single legal claim of ineffective assistance of trial coun-
sel. The habeas court, Sferrazza, J., conducted a two
day trial on April 11 and 25, 2017. On October 4, 2017,
the habeas court issued a memorandum of decision
denying the petition for a writ of habeas corpus.
The habeas court noted that in the amended petition,
the petitioner had alleged that his criminal trial counsel,
Attorneys Donald Freeman and Deron Freeman, had
provided ineffective assistance. The basis for this alle-
gation was Donald Freeman’s concession, without the
petitioner’s knowledge or consent, during closing argu-
ment, that the petitioner bore some responsibility for
the victim’s death and that the petitioner had been reck-
less. The court reasoned that a lawyer’s acknowledg-
ment of the commission of some aspect of the state’s
allegations does not amount to ineffective assistance
per se. Furthermore, in the absence of exceptional cir-
cumstances, the two part test of Strickland v. Washing-
ton, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
applied to a claim of ineffective assistance of counsel.
The habeas court recognized that, in rare situations,
a petitioner is not required to demonstrate prejudice
resulting from a lawyer’s deficient performance. ‘‘If the
exceptional circumstances are present, then the holding
of United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct.
2039, 80 L. Ed. 2d 657 (1984), controls, and a habeas
petitioner is relieved of the burden of proving that
defense counsel’s concessions actually prejudiced the
petitioner.’’
The habeas court determined that the Cronic excep-
tion applies only when counsel entirely fails to function
as an advocate and does not subject the state’s case
to meaningful adversarial testing. The court concluded
that Donald Freeman’s actions in the present case did
not come within the scope of the Cronic exception
and, therefore, the petitioner retained ‘‘his obligation
to demonstrate defense counsel’s deficient actions or
inactions prejudiced him, as set forth under the second
prong of the Strickland standard, before he can
prevail.’’
The habeas court then applied the relevant legal prin-
ciples to the facts of the present case. First, it set forth
the principal issue at the petitioner’s criminal trial. ‘‘The
incontrovertible evidence was that the petitioner’s
action in placing a loaded pistol against the victim’s
neck while engaged in a physical tussle resulted in her
fatal shooting. The disputed issue was the petitioner’s
state of mind when he took that action.’’
Next, the habeas court considered the petitioner’s
argument that Donald Freeman had conceded his guilt
without his consent. The court concluded that Donald
Freeman had not informed the petitioner, prior to clos-
ing argument, of his intentions to state to the jury that
the petitioner’s actions of placing a loaded and cocked
handgun to the victim’s throat during a physical struggle
was ‘‘definitely stupid and reckless.’’ (Internal quotation
marks omitted.) After reviewing the United States
Supreme Court’s opinion in Florida v. Nixon, 543 U.S.
175, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004), the habeas
court concluded: ‘‘The trial advocate’s duty, then, is to
communicate timely and clearly to the defendant the
reasons leading the attorney to acknowledge some
responsibility on the part of the client and the benefits
expected to accrue from that action. Counsel must con-
sult with a defendant and seriously consider the client’s
position on the strategy before embarking on the
course, but the client’s consent is not a prerequisite for
such a concession.
‘‘To be clear, the court determines that Attorney Don-
ald Freeman breached the professional duty to consult
with the petitioner and receive his input, if any, before
arguing as he did . . . . However, that determination
does not conclude analysis of the performance prong
of the Strickland test. The court must also resolve the
question of whether the petitioner has proved, by a
preponderance of the evidence, that conceding that the
petitioner’s reckless behavior contributed causally to
the victim’s demise falls outside of the broad spectrum
of reasonable representation. Of course, the prejudice
component of the Strickland criteria also remains to
be determined.’’ (Citation omitted.)
Ultimately, the court concluded that the petitioner
had failed to sustain his burden of proving deficient
performance by Donald Freeman. It also determined
that the petitioner had failed to prove prejudice, the
second prong of the Strickland test. Accordingly, the
habeas court denied the petition for a writ of habeas
corpus. Upon the habeas court’s granting of the petition
for certification to appeal, this appeal was filed. Addi-
tional facts will be set forth as necessary.2
I
The petitioner first claims that his defense counsel’s
conduct during closing argument of his criminal trial
violated his right to client autonomy under the sixth
amendment to the United States constitution. Specifi-
cally, he argues that his defense counsel was constitu-
tionally obligated to honor his choice to defend against
the criminal charges filed by the state and was not
permitted to override the petitioner’s decision. Further-
more, the petitioner contends that this issue rises to
the level of structural error and therefore is not subject
to harmless error analysis.3 In his reply brief, the peti-
tioner relies on McCoy v. Louisiana, U.S. , 138
S. Ct. 1500, 200 L. Ed. 2d 821 (2018), which was released
by the United States Supreme Court after he had filed
his principal brief in the present case.
The respondent, the Commissioner of Correction,
counters, inter alia, that ‘‘[t]he petitioner’s attempt to
cast his claim as one of client autonomy, rather than
ineffective assistance, is a new invention on appeal
which should not be entertained.’’ Stated differently,
the respondent argues that this court should not review
the petitioner’s client autonomy claim, as it was neither
raised nor decided below, and, instead, we should limit
our analysis to the claim of ineffective assistance of
counsel, the sole issue presented to and decided by the
habeas court. We agree with the respondent.
We begin our discussion with the following additional
facts and detailed procedural history. The habeas peti-
tion initially filed by the self-represented petitioner spe-
cifically set forth a claim of ineffective assistance of
counsel.4 In the operative pleading, the amended peti-
tion filed by habeas trial counsel on November 7, 2016,
the petitioner alleged a single claim of ineffective assis-
tance of counsel.5 In his pretrial brief, the petitioner
explained that his criminal trial counsel had employed
a tactic that deprived him of certain rights, and by
doing so, effectively denied him the right to effective
assistance of counsel. In his posttrial brief, the petition
again identified his claim as an ineffective assistance
of counsel claim.6
In its October 4, 2017 memorandum of decision, the
habeas court analyzed the petition as raising a claim
of ineffective assistance of counsel against Donald Free-
man and Deron Freeman. It applied the two-pronged
test of Strickland v. Washington, supra, 466 U.S. 687,
for determining whether the petitioner had received
ineffective assistance of counsel. It did not indepen-
dently consider whether the petitioner’s right to client
autonomy had been violated.
In the petitioner’s principal brief to this court, he
claimed, for the first time, that ‘‘[t]his is a case about
a criminal defendant’s constitutional right to make the
basic decisions regarding the objectives of his defense,
including his right to choose whether to admit guilt in
order to get a lesser sentence or to defend against the
[charges], seek an acquittal, and insist that the state
prove his commission of the crime beyond a reasonable
doubt.’’ Later, he specifically argued that ‘‘[t]his case
is not about the ineffective assistance of counsel or
about whether an admission of guilt might sometimes
be a reasonable strategy. The client’s autonomy, not
the lawyer’s competence, is at issue.’’ (Emphasis
added.) As a result of this specific constitutional viola-
tion, he requested that this court order a new trial.
After the petitioner had filed his initial brief with
this court, the United States Supreme Court issued its
decision in McCoy v. Louisiana, supra, 138 S. Ct. 1500.
In that case, the defendant, Robert McCoy, was charged
with shooting and killing the mother, stepfather, and
son of his estranged wife in Louisiana. Id., 1505–1506.
A few days later, police in Idaho arrested the defendant
and he subsequently was extradited to Louisiana. Id.,
1506. A grand jury indicted the defendant on three
counts of first degree murder, and the prosecutor pro-
vided notice of intent to seek capital punishment. Id.‘‘[The defendant] pleaded not guilty. Throughout the
proceedings, he insistently maintained he was out of
State at the time of the killings and that corrupt police
killed the victims when a drug deal went wrong.’’ Id.The defendant initially had been represented by
assigned counsel, but after that relationship had broken
down irretrievably, his parents hired Attorney Larry
English to represent their son. Id. ‘‘English eventually
concluded that the evidence against [the defendant]
was overwhelming and that, absent a concession at the
guilt stage that [the defendant] was the killer, a death
sentence would be impossible to avoid at the penalty
phase.’’ Id. When, two weeks before the trial, English
informed the defendant that he planned to concede that
the defendant had committed the killings, the defendant
was ‘‘ ‘furious’ . . . .’’ Id. The defendant specifically
instructed English to refrain from making that conces-
sion and to pursue an acquittal. Id.The trial court refused the defendant’s request to
end English’s representation and to obtain a different
lawyer. Id. During his opening statement to the jury,
English, over the defendant’s protest, conceded that
the defendant had committed the three murders. Id.During the defendant’s testimony, he maintained his
innocence; however, during closing argument and at
the penalty phase English again conceded to the jury
that the defendant had killed the three victims. Id., 1507.
The Louisiana Supreme Court affirmed the defendant’s
conviction, concluding that ‘‘[t]he concession was per-
missible . . . because counsel reasonably believed
that admitting guilt afforded [the defendant] the best
chance to avoid a death sentence.’’ Id.The United States Supreme Court concluded that the
decision to determine whether the assertion of inno-
cence, rather than avoidance of capital punishment,
was the objective of the defense, belonged to the client
and not the attorney. Id., 1508. ‘‘If, after consultations
with English concerning the management of the
defense, [the defendant] disagreed with English’s pro-
posal to concede [that the defendant] committed three
murders, it was not open to English to override [the
defendant’s] objection. English could not interfere with
[the defendant’s] telling the jury ‘I was not the mur-
derer,’ although counsel could, if consistent with pro-
viding effective assistance, focus his own collaboration
on urging that [the defendant’s] mental state weighed
against conviction.’’ Id., 1509. Stated differently, ‘‘coun-
sel may not admit her client’s guilt of a charged crime
over the client’s intransigent objection to that admis-
sion.’’ Id., 1510.
Next, the court distinguished the facts of McCoy from
Florida v. Nixon, supra, 543 U.S. 175, because in Nixon,
the client had been ‘‘generally unresponsive during dis-
cussions of trial strategy, and never verbally approved
or protested counsel’s proposed approach.’’ (Internal
quotation marks omitted.) McCoy v. Louisiana, supra,138 S. Ct. 1509. The court also determined that claims
of a violation of a client’s autonomy, pursuant to the
sixth amendment, are distinct from and not within the
analytical framework of Strickland v. Washington,
supra, 466 U.S. 668, or United States v. Cronic, supra,466 U.S. 648. McCoy v. Louisiana, supra, 1510–11.
‘‘Here . . . the violation of McCoy’s protected auton-
omy right was complete when the court allowed counsel
to usurp control of an issue within McCoy’s sole prerog-
ative.’’ Id., 1511. Finally, the court concluded that a
violation of a client’s sixth amendment autonomy right
is not subject to harmless error review and constituted
structural error. Id.In his brief, the respondent argued that the petitioner
had raised a ‘‘new’’ claim, distinct from what had been
presented to the habeas court. Specifically, he con-
tended that the petitioner had raised an ineffective
assistance of counsel claim at the habeas trial. The
respondent maintains that it is contrary to our jurispru-
dence to permit the petitioner to change course for the
appellate proceedings and allow him to present a claim
that the petitioner’s right of autonomy had been vio-
lated.7 Finally, the respondent stated that ‘‘[t]he United
States Supreme Court did not invent a new theory in
McCoy v. Louisiana, [supra, 138 S. Ct. 1500] . . . .
Rather, it applied prior holdings on the right of auton-
omy and agreed with academic writings and state court
decisions that a defendant has a right not to have coun-
sel concede guilt over his objection . . . and that a
violation of this right is structural error . . . . This
autonomy theory was thus available to the petitioner.’’
(Citations omitted.) The petitioner relied on McCoy in
his reply brief. We agree with the respondent.
‘‘It is well settled that [t]he petition for a writ of
habeas corpus is essentially a pleading and, as such, it
should conform generally to a complaint in a civil
action. . . . The principle that a plaintiff may rely only
upon what he has alleged is basic. . . . It is fundamen-
tal in our law that the right of a plaintiff to recover is
limited to the allegations of his complaint. . . . While
the habeas court has considerable discretion to frame
a remedy that is commensurate with the scope of the
established constitutional violations . . . it does not
have the discretion to look beyond the pleadings and
trial evidence to decide claims not raised.’’ (Internal
quotation marks omitted.) Adkins v. Commissioner of
Correction, 185 Conn. App. 139, 167, 196 A.3d 1149,
cert. denied, 330 Conn. 946, 196 A.3d 326 (2018); see
also Nelson v. Commissioner of Correction, 326 Conn.
772, 780–81, 167 A.3d 952 (2017); Rodriguez v. Commis-
sioner of Correction, 131 Conn. App. 336, 351, 27 A.3d
404 (2011), aff’d, 312 Conn. 345, 92 A.3d 944 (2014).
‘‘The reason for the rule is obvious: to permit a party
to raise a claim on appeal that has not been raised at
trial—after it is too late for the trial court or the oppos-
ing party to address the claim—would encourage trial
by ambuscade, which is unfair to both the trial court
and the opposing party.’’ (Internal quotation marks
omitted.) Lewis v. Commissioner of Correction, 166
Conn. App. 22, 32, 140 A.3d 414, cert. denied, 323 Conn.
905, 150 A.3d 679 (2016).
We have reviewed the November 7, 2016 amended
petition for a writ of habeas corpus, the operative plead-
ing in this case. The sole legal claim alleged therein is
the ineffective assistance by the petitioner’s criminal
defense lawyers, Attorneys Donald and Deron Freeman.
The amended petition further states that the ineffective
assistance occurred due to (1) the concession of guilt
without the petitioner’s consent in violation of the fifth,
sixth and fourteen amendments to the United States
constitution, and article first, § 8, of the Connecticut
constitution, and (2) that the concession of guilt vio-
lated the petitioner’s rights to plead not guilty, to testify,
and to have the state prove him guilty beyond a reason-
able doubt.
The amended petition for a writ of habeas corpus
does not, explicitly or implicitly, set forth a claim that
the petitioner’s sixth amendment right to client auton-
omy was violated by the actions of criminal trial coun-
sel. As the United States Supreme Court made clear in
McCoy v. Louisiana, supra, 138 S. Ct. 1510–11, a
claimed violation of the right to client autonomy is
separate and distinct from one of ineffective assistance
of counsel. Here, all of the alleged constitutional viola-
tions fell within the ambit of the solitary legal claim
alleged in the operative pleading, that is, that the peti-
tioner had been denied his constitutional right to the
effective assistance of counsel. ‘‘[T]he interpretation of
pleadings is always a question of law for the court
. . . . The modern trend, which is followed in Connect-
icut, is to construe pleadings broadly and realistically,
rather than narrowly and technically. . . . Although
essential allegations may not be supplied by conjecture
or remote implication . . . the complaint must be read
in its entirety in such a way as to give effect to the
pleading with reference to the general theory upon
which it proceeded, and do substantial justice between
the parties. . . . As long as the pleadings provide suffi-
cient notice of the facts claimed and the issues to be
tried and do not surprise or prejudice the opposing
party, we will not conclude that the complaint is insuffi-
cient to allow recovery.’’ (Footnote omitted; internal
quotation marks omitted.) Carpenter v. Commissioner
of Correction, 274 Conn. 834, 842, 878 A.2d 1088 (2005);
see also Practice Book § 23-22.
Additionally, we note that in the habeas court’s mem-
orandum of decision, it focused its analysis solely on
the claim of ineffective assistance of counsel, and did
not address the claim that the petitioner’s right to client
autonomy had been violated. The court conducted its
legal analysis through the lens of the two prongs of
Strickland, performance and prejudice. The habeas
court’s reasoning supports our interpretation that the
petitioner did not plead a violation of the right to cli-
ent autonomy.
‘‘This court is not bound to consider claimed errors
unless it appears on the record that the question was
distinctly raised . . . and was ruled upon and decided
by the court adversely to the [petitioner’s] claim. . . .
This court is not compelled to consider issues neither
alleged in the habeas petition nor considered at the
habeas proceeding . . . .’’ (Internal quotation marks
omitted.) Adkins v. Commissioner of Correction,
supra, 185 Conn. App. 168–69; see also Thiersaint v.
Commissioner of Correction, 316 Conn. 89, 126, 111
A.3d 829 (2015) (appellate review of claims not raised
before habeas court would amount to ambuscade of
that court); Hankerson v. Commissioner of Correction,
150 Conn. App. 362, 369, 90 A.3d 368 (well established
that appellate courts will not entertain claims not pre-
sented to habeas court but raised for first time on
appeal), cert. denied, 314 Conn. 919, 100 A.3d 852(2014). Put differently, ‘‘[h]aving not raised [an] issue
before the habeas court, [a] petitioner is barred from
raising it on appeal.’’ (Internal quotation marks omit-
ted.) Walker v. Commissioner of Correction, 176 Conn.
App. 843, 846 n.2, 171 A.3d 525 (2017).8 For these rea-
sons, we decline to consider the merits of the petition-
er’s claim that his sixth amendment right to client
autonomy was violated in this case.
II
The petitioner next claims that the habeas court
improperly determined that he had not been denied the
effective assistance of counsel. Specifically, he argues
that the nature of the claimed deficient performance9
warranted an application of the Cronic exception and,
therefore, prejudice should have been presumed. In
the alternative, he claims that he established prejudice,
contrary to the conclusion of the habeas court. The
respondent counters that the habeas court properly (1)
concluded that the prejudice presumption of Cronic
did not apply and (2) determined that the petitioner
had failed to establish prejudice. We agree with the
respondent.
Before addressing the specifics of the petitioner’s
claim, we identify the relevant legal principles and our
standard of review. Criminal defendants have the con-
stitutional right to the effective assistance of counsel
at all critical states of criminal proceedings. Salmon v.
Commissioner of Correction, 178 Conn. App. 695, 702,
177 A.3d 566 (2017); see also Kellman v. Commissioner
of Correction, 178 Conn. App. 63, 69, 174 A.3d 206 (2017)
(axiomatic that right to counsel is right to effective
assistance of counsel).
‘‘A claim of ineffective assistance of counsel as enun-
ciated in Strickland v. Washington, supra, 466 U.S. 668,
consists of two components: a performance prong and
a prejudice prong. To satisfy the performance prong
. . . the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . Our
Supreme Court has stated that the performance inquiry
must be whether counsel’s assistance was reasonable
considering all the circumstances, and that [j]udicial
scrutiny of counsel’s performance must be highly defer-
ential. . . .
‘‘An error by counsel, even if professionally unreason-
able, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the
judgment. . . . To satisfy the second prong of Strick-
land, that his counsel’s deficient performance preju-
diced his defense, the petitioner must establish that, as
a result of his trial counsel’s deficient performance,
there remains a probability sufficient to undermine con-
fidence in the verdict that resulted in his appeal. . . .
The second prong is thus satisfied if the petitioner can
demonstrate that there is a reasonable probability that,
but for that ineffectiveness, the outcome would have
been different. . . . In making this determination, a
court hearing an ineffectiveness claim [based on coun-
sel’s failure to investigate] must consider the totality
of the evidence before the judge or the jury. . . . Some
errors will have had a pervasive effect on the inferences
to be drawn from the evidence, altering the entire evi-
dentiary picture, and some will have had an isolated,
trivial effect. Moreover, a verdict or conclusion only
weakly supported by the record is more likely to have
been affected by errors than one with overwhelming
record support. . . .
‘‘A petitioner’s claim will succeed only if both prongs
are satisfied. . . . Unless a [petitioner] makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process
that renders the result unworkable. . . . A court can
find against a petitioner, with respect to a claim of
ineffective assistance of counsel, on either the perfor-
mance prong or the prejudice prong, whichever is eas-
ier.’’ (Citations omitted; internal quotation marks
omitted.) Kellman v. Commissioner of Correction,
supra, 178 Conn. App. 69–70.
In certain circumstances, however, a petitioner is
relieved of the burden of proving prejudice. ‘‘In United
States v. Cronic, [supra, 466 U.S. 659–60], which was
decided on the same day as Strickland, the United
States Supreme Court elaborated on the following three
scenarios in which prejudice may be presumed: (1)
when counsel is denied to a defendant at a critical stage
of the proceeding; (2) when counsel entirely fails to
subject the prosecution’s case to meaningful adversarial
testing; and (3) when counsel is called upon to render
assistance in a situation in which no competent attorney
could do so. Notably, the second scenario constitutes
an actual breakdown of the adversarial process, which
occurs when counsel completely fails to advocate on
a defendant’s behalf. . . .
‘‘The United States Supreme Court has emphasized
. . . how seldom circumstances arise that justify a
court in presuming prejudice, and concomitantly, in
forgoing particularized inquiry into whether a denial of
counsel undermined the reliability of a judgment
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Taylor v. Commissioner of Correction, 324
Conn. 631, 644–45, 153 A.3d 1264 (2017). Guided by
these principles, we address the petitioner’s specific
claims in turn.
A
The petitioner first contends that the habeas court
should have applied Cronic and presumed prejudice as
a result of Donald Freeman’s comments to the jury
during closing argument. Specifically, he argues that
‘‘Freeman’s admissions of [the] petitioner’s guilt with-
out consulting with [the] petitioner, who would have
expressly directed counsel to the contrary, was a para-
digm of a breakdown in the adversarial process under
Cronic.’’ The respondent counters that the habeas court
properly determined that Cronic, and the correspond-
ing presumption of prejudice, did not apply in the pre-
sent case. We agree with the respondent.
Cronic established a narrow exception to the general
two part Strickland test for determining whether a peti-
tioner’s constitutional right to the effective assistance
of counsel has been violated. See Smith v. Commis-
sioner of Correction, 89 Conn. App. 134, 137, 871 A.2d
1103, cert. denied, 275 Conn. 909, 882 A.2d 676 (2005).
‘‘Cronic instructed that a presumption of prejudice
applies in certain limited circumstances when although
counsel is available to assist the accused during trial,
the likelihood that any lawyer, even a fully competent
one, could provide effective assistance of counsel is so
small that a presumption of prejudice is appropriate
. . . . The court explained that no showing of prejudice
is required when counsel is either totally absent or
prevented from assisting the accused during a critical
stage in the proceeding, when counsel entirely fails to
subject the prosecution’s case to meaningful adversarial
testing and when a defendant is denied the right of
effective cross-examination. . . . The United States
Court of Appeals for the Second Circuit has stated that
[a]part from these rare instances . . . the Strickland
two-part test of ineffectiveness generally applies. . . .
‘‘The exception articulated in Cronic has become
known as constructive denial of the assistance of coun-
sel. . . . [C]ourts have been cautious in invoking Cron-
ic’s dictum and its corresponding presumption of
ineffectiveness. . . . [T]he [United States Court of
Appeals for the] First Circuit has limited Cronic’s reach
to extreme cases . . . the rare instance . . . and cer-
tain particularly egregious situations . . . . The United
States Supreme Court recently emphasized just how
infrequently the surrounding circumstances [will] jus-
tify a presumption of ineffectiveness . . . . Florida v.
Nixon, [supra, 543 U.S. 175].’’ (Citations omitted; inter-
nal quotation marks omitted.) Smith v. Commissioner
of Correction, supra, 89 Conn. App. 137–38.
The petitioner does not claim that he was denied
counsel at a critical stage or that no competent attorney
could have provided assistance in his circumstances;
instead, he focuses his argument on the second Cronic
scenario, that is, the petitioner’s criminal trial counsel
entirely failed to subject the state’s case to meaningful
adversarial testing. See, e.g., Hutton v. Commissioner
of Correction, 102 Conn. App. 845, 855, 928 A.2d 549,
cert. denied, 284 Conn. 917, 931 A.2d 936 (2007); see
also Davis v. Commissioner of Correction, 319 Conn.
548, 555, 126 A.3d 538 (2015), cert. denied sub nom.
Semple v. Davis, U.S. , 136 S. Ct. 1676, 194 L.
Ed. 2d 801 (2016). ‘‘[C]ases have emphasized that the
second Cronic exception is exceedingly narrow. . . .
For it to apply, the attorney’s failure must be complete.
. . . [C]ourts have rarely applied Cronic, emphasizing
that only non-representation, not poor representation,
triggers a presumption of prejudice.’’ (Internal quota-
tion marks omitted.) State v. Hutton, supra, 856.
Our Supreme Court has noted that in determining
whether Cronic or Strickland applies in a particular
case, courts have held ‘‘that specific errors in represen-
tation, for which counsel can provide some reasonable
explanation, are properly analyzed under Strickland.
. . . Counsel’s complete failure to advocate for a defen-
dant, however, such that no explanation could possibly
justify such conduct, warrants the application of
Cronic. . . . In the spirit of Bell [v. Cone, 535 U.S. 685,
122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002)], courts have
drawn a distinction between maladroit performance
and non-performance . . . by applying Cronic in cases
where counsel’s conduct goes beyond bad, even deplor-
able assistance and constitutes no representation at all
. . . . Put differently, in ineffective assistance of coun-
sel claims, prejudice may be presumed when counsel
wasn’t really acting as a lawyer at all.’’ (Citations omit-
ted; internal quotation marks omitted.) Davis v. Com-
missioner of Correction, supra, 319 Conn. 556.
In Davis, after the victim’s family members spoke at
the sentencing hearing following the petitioner’s guilty
plea, the prosecutor requested that the court sentence
the petitioner to twenty-five years of incarceration, the
maximum permitted under the plea. Id., 550–51.
‘‘Defense counsel immediately responded as follows:
‘Your Honor, I agree with everything that everybody
said so far, and I don’t think there’s anything left to say
from my part.’’ (Emphasis omitted; internal quotation
marks omitted.) Id., 551.
The issue before our Supreme Court was whether
defense counsel’s complete agreement with the prose-
cutor’s recommendation regarding the imposition of the
maximum sentence, even though the plea agreement
contained a provision allowing defense counsel to argue
for a lesser sentence, required analysis under Strick-
land or Cronic. Id., 549–50. It determined that when
defense counsel’s agreement with the prosecution is
reasonably calculated to further the interests of the
defendant, courts apply Strickland. Id., 559. Stated dif-
ferently, the relevant case law demonstrates ‘‘a willing-
ness to apply Cronic when counsel agrees with the
prosecution in a way that cannot reasonably be deemed
to be in a defendant’s interest.’’ Id., 560.
Our Supreme Court concluded that a complete break-
down of the adversarial process had occurred in Davis.
Id., 561. It noted that counsel did not advocate for the
petitioner at the sentencing hearing, but instead agreed
with the state’s recommendation that the court impose
the maximum sentence. Id. As a result, ‘‘defense counsel
entirely fail[ed] to subject the prosecution’s case to
meaningful adversarial testing . . . . Thus, we con-
clude that defense counsel’s forfeiture of his right to
argue for a lesser sentence to agree with the prosecu-
tor’s recommendation warrants application of Cronic.’’
(Citations omitted; internal quotation marks omitted.)
Id., 568.
The present case differs from Davis. Here, the actions
of the petitioner’s criminal trial counsel were reason-
ably calculated to further the petitioner’s interest in
avoiding a conviction of the more serious murder
charge and did not amount to nonrepresentation of the
petitioner. Thus, these facts and circumstances warrant
an application of Strickland, and not Cronic. Accord-
ingly, prejudice is not presumed, but rather the peti-
tioner bore the burden of proving that he had been
prejudiced as a result of any deficient performance by
Donald Freeman. The habeas court properly concluded
that Donald Freeman ‘‘clearly attempted to perform his
duties as the petitioner’s legal advocate throughout the
petitioner’s criminal trial. There was no complete fail-
ure of representation, as required under the Cronic
doctrine . . . .’’ (Internal quotation marks omitted.)
This conclusion is consistent with the reasoning of
our Supreme Court in Davis v. Commissioner of Cor-
rection, supra, 319 Conn. 555–68, as well as federal
case law. See United States v. Thomas, 417 F.3d 1053,
1056–59 (9th Cir. 2005) (Cronic did not apply where
defense counsel’s strategy was to concede guilt for one
criminal charge without consultation or consent of
defendant in order to enhance counsel’s credibility for
other counts where evidence was not as strong and
punishment was significantly greater), cert. denied, 546
U.S. 1121, 126 S. Ct. 1095, 163 L. Ed. 2d 909 (2006);
see also Bell v. Cone, supra, 535 U.S. 696–97 (defense
attorney must entirely fail to test prosecutor’s case for
Cronic rule to apply). Thus, we conclude that the
habeas court properly determined that Strickland, and
not Cronic, applied in this case and that the burden of
demonstrating prejudice remained with the petitioner.
B
Finally, the petitioner argues that the habeas court
improperly concluded that he had not been prejudiced
by Donald’s Freeman’s statements during closing argu-
ment. Specifically, he contends that the challenged com-
ments to the jury eliminated any chance of the jury
returning a not guilty verdict or a guilty verdict on the
less serious offense of criminally negligent homicide.
The respondent counters that the petitioner failed to
demonstrate a reasonable probability that, but for Don-
ald’s Freeman’s statements to the jury, the results of
the criminal trial would have been different. We agree
with the respondent.
We iterate that ‘‘[u]nder the two-pronged Strickland
test, a defendant can only prevail on an ineffective assis-
tance of counsel claim if he proves that (1) counsel’s
performance was deficient, and (2) the deficient perfor-
mance resulted in actual prejudice. . . . To demon-
strate actual prejudice, a defendant must show a
reasonable probability that the outcome of the proceed-
ing would have been different but for counsel’s errors.’’
(Citations omitted; emphasis added.) Davis v. Commis-
sioner of Correction, supra, 319 Conn. 555; see also
Skakel v. Commissioner of Correction, 329 Conn. 1, 40,
188 A.3d 1 (2018), cert. denied sub nom. Connecticut
v. Skakel, U.S. , 139 S. Ct. 788, 202 L. Ed. 2d
569 (2019).
‘‘[I]n making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or the jury. . . . Some errors
will have had a pervasive effect on the inferences to be
drawn from the evidence, altering the entire evidentiary
picture, and some will have had an isolated, trivial
effect. Moreover, a verdict or conclusion only weakly
supported by the record is more likely to have been
affected by errors than one with overwhelming record
support. . . . [T]he ultimate focus of inquiry must be
on the fundamental fairness of the proceeding whose
result is being challenged. . . . The benchmark for
judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper function-
ing of the adversarial process that the trial cannot be
relied on as having produced a just result.’’ (Internal
quotation marks omitted.) Anderson v. Commissioner
of Correction, 313 Conn. 360, 376–77, 98 A.3d 23 (2014),
cert. denied sub nom. Semple v. Anderson, U.S.
, 135 S. Ct. 1453, 191 L. Ed. 2d 403 (2015); see also
Spearman v. Commissioner of Correction, 164 Conn.
App. 530, 565, 138 A.3d 378 (petitioner must demon-
strate reasonably likely result of proceeding would have
been different), cert. denied, 321 Conn. 923, 138 A.3d
284 (2016).
In the present case, there was no dispute that the
petitioner had shot the victim and caused her death.
The question was whether her death had occurred as
a result of an accident or conduct that rendered the
petitioner criminally liable.10 At the petitioner’s criminal
trial, the court instructed the jury, inter alia, as to the
crime of murder and the lesser included offenses of
manslaughter in the first degree with a firearm (inten-
tional), manslaughter in the first degree with a firearm
(reckless indifference) and criminally negligent homi-
cide. State v. Leon, supra, 159 Conn. App. 531. The jury
found him guilty of manslaughter in the first degree
with a firearm (reckless indifference) in violation of
§§ 53a-55 (a) (3)11 and 53a-55a.12
In addressing the prejudice prong, the habeas court
stated: ‘‘Assuming, arguendo, that Attorney [Donald]
Freeman’s approach was deficient, the court concludes
that such deficiency played no role in producing the
jury’s guilty verdict to [manslaughter in the first degree
with a firearm in violation of §§ 53a-55 (a) (3) and 53a-
55a]. Having reviewed all the evidence, the result pro-
cured by Attorney [Donald] Freeman’s efforts appears
surprisingly successful.
‘‘The petitioner’s avowal that he brandished his
loaded pistol to ‘calm’ the agitated victim strikes the
court as ludicrous. The medical examiner definitively
located the muzzle of the handgun against the victim’s
skin when fired. The petitioner admitted to drinking
and arguing with the victim when the disagreement
turned violent. The petitioner abandoned the victim,
still gasping for air, and sought no medical assistance
for her. It is very unlikely that the jury would have
reached a verdict other than the one it returned based
on this evidence.’’
The state presented significant evidence that the peti-
tioner had violated §§ 53a-55 (a) (3) and 53a-55a. The
elements of this crime are as follows: ‘‘[T]he statute on
manslaughter in the first degree . . . provides in rele-
vant part: A person is guilty of manslaughter in the first
degree when . . . (3) under circumstances evincing an
extreme indifference to human life, he recklessly
engages in conduct which creates a grave risk of death
to another person, and thereby causes the death of
another person. For the defendant to have been found
guilty of this offense, the state had to prove beyond a
reasonable doubt the following: (1) that the defendant
engaged in conduct that created a grave risk of death;
(2) that in doing so the defendant acted recklessly; (3)
under circumstances evincing an extreme indifference
to human life; and (4) the defendant caused the death
of the victim. . . . Additionally, the state had to prove
that the defendant had the general intent to engage in
conduct that created a grave risk of death to another
person under circumstances evincing extreme indiffer-
ence to human life.’’ (Internal quotation marks omitted.)
State v. Brown, 118 Conn. App. 418, 423, 984 A.2d 86(2009), cert. denied, 295 Conn. 901, 988 A.2d 877 (2010);
see also State v. Tomlin, 266 Conn. 608, 625, 835 A.2d
12 (2003) (setting forth elements of reckless manslaugh-
ter in first degree with firearm).
There was evidence that, on the night of the shooting,
the petitioner and the victim consumed alcohol and
argued while at various nightclubs in Hartford. State v.
Leon, supra, 159 Conn. App. 529. After returning home,
the argument continued as the two went upstairs to
their shared bedroom. Id. There, the petitioner pushed
the victim onto the bed, placed his hand around her
neck and held the gun to her neck. Id. The petitioner
claimed that he undertook these actions in an effort to
‘‘ ‘calm’ ’’ the victim. Id. The gun discharged and a bullet
entered and exited the victim’s neck, also severing one
of the petitioner’s fingers. Id.On the basis of this evidence, we agree with the
habeas court that it was ‘‘very unlikely’’ that the jury
would have reached a different verdict even if Donald
Freeman had not made the challenged comments during
closing argument. Simply stated, the petitioner failed
to carry his burden of demonstrating that it was reason-
ably likely that the outcome of the trial would have
been different. The evidence strongly supported the
jury’s verdict with respect to §§ 53a-55 (a) (3) and 53a-
55a. See, e.g., Buie v. Commissioner of Correction, 187
Conn. App. 414, 422, 202 A.3d 453, cert. denied, 331
Conn. 905, 202 A.3d 373 (2019). Because the petitioner
has not persuaded this court of the reasonable probabil-
ity that the result of the trial would have been different,
we conclude that the habeas court properly determined
that the petitioner was not deprived of the right to the
effective assistance of counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In his direct appeal, the petitioner claimed that ‘‘his counsel’s decision
to concede his client’s guilt to the lesser included offenses during closing
argument, without the [petitioner’s] consent appearing on the record, vio-
lated the [petitioner’s] right to plead not guilty, his right to testify, his right
to have the state prove him guilty beyond a reasonable doubt and, finally,
his right to have the effective assistance of counsel.’’ State v. Leon, supra,
159 Conn. App. 531. This court emphasized that the petitioner’s appellate
claims were ‘‘predicated upon the . . . overarching claim of his counsel’s
ineffective assistance.’’ Id. Accordingly, we affirmed the judgment on the
basis of an insufficient evidentiary record. Id., 535–36.
2
The respondent, the Commissioner of Correction, set forth an alternate
ground for affirming the judgment of the habeas court. Specifically, he
argues that the petitioner and the habeas court focused solely on the conduct
of Attorney Donald Freeman. He further contends that the court never made
a factual finding as to whether Attorney Deron Freeman ever consulted
with the petitioner and obtained his consent to the strategy employed by
Donald Freeman during closing argument. As a result of our conclusions
in parts I and II of this opinion, we need not reach the respondent’s alternative
grounds for affirmance.
3
The petitioner also claims that one of the habeas court’s findings of fact
was clearly erroneous. In its memorandum of decision, the habeas court
stated: ‘‘[T]he petitioner testified that if Attorney [Donald] Freeman has
discussed this type of concession [that occurred during closing argument]
with him, he would have opposed that strategy. He avowed that he rejected
a plea offer and chose to have a jury decide his fate. However, he also
testified that he would have accepted a plea disposition involving a guilty
plea to manslaughter [in the] second degree. . . . It appears to the court
that Attorney [Donald] Freeman’s summation substantially comported with
the petitioner’s position.’’ (Emphasis omitted.)
The petitioner argues that the court’s finding regarding his willingness to
accept a plea bargain was clearly erroneous. We need not reach this claim,
given our conclusions in parts I and II of this opinion.
4
The petitioner identified his claim of an illegal conviction as resulting
from ineffective counsel. He further explained: ‘‘My lawyer was ineffective.
He had a conflict. He argued to my jury that I was guilty of the offense I
was convicted of. He never told me he was going to do that. I never agreed
to my lawyer[’s] tactic. I did not consent to it.’’
5
Specifically, the amended petition for a writ of habeas corpus set forth
the following: ‘‘Trial counsel’s acts and omissions, as described below,
fell below the level of reasonable competence required of criminal defense
lawyers within the State of Connecticut. But for counsel’s actions and
omissions, it is reasonably probable that the results of Petitioner’s criminal
matter would have been different in that Petitioner would not have been
convicted of the crimes described herein. As a result of the foregoing,
Petitioner is illegally confined by the Respondent for the following reasons:
‘‘a. Trial counsel conceded guilt without Petitioner’s consent in violation
of Petitioner’s rights under the Fifth, Sixth, and Fourteenth Amendments
to the United States Constitution, and article first, § 8, of the Connecticut
Constitution.
‘‘b. Trial counsel’s concession of guilt violated Petitioner’s right to plead
not guilty, to testify, to have the state prove him guilty beyond a reasonable
doubt, and effectively denied him the right to assistance of counsel in his
chosen plea of not guilty.’’ (Emphasis added.)
6
Specifically, the petitioner’s posttrial brief contains the following state-
ment: ‘‘The Petitioner, through counsel, amended the Petition on or around
November 7, 2016, raising a claim of ineffective assistance against trial
counsel for conceding guilt without the Petitioner’s consent in violation of
his rights under the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution, and Article first, § 8, of the Connecticut Constitution,
ultimately violating the Petitioner’s right to plead not guilty, to testify, to
have the state prove him guilty beyond a reasonable doubt, and to pursue
his chosen plea of not guilty.’’
7
The respondent specifically argued: ‘‘Because the petitioner framed his
claim as ineffective assistance of counsel, and asserted deficient perfor-
mance and prejudice, he cannot now reinvent his claim as not about ineffec-
tive assistance.’’ (Internal quotation marks omitted.)
8
We also note that in the petition for certification to appeal, the petitioner
set forth the following issues: ‘‘1. Whether the court erred in finding that
the Petitioner failed to prove ineffective assistance of counsel. 2. Whether
the court erred in finding that there was no structural error or presumed
prejudice. 3. Other such error or claims that arise out of a review of the
transcripts and other records.’’ Thus, the petitioner did not include a claim
that his right to client autonomy had been violated in the petition for certifica-
tion to appeal from the denial of his petition for a writ of habeas corpus.
9
The habeas court determined that Attorney Donald Freeman had
‘‘breached the professional duty to consult with the petitioner and receive
his input, if any, before arguing as he did [during closing argument].’’ Ulti-
mately, the court concluded that the petitioner had failed to prove that
Attorney Donald Freeman’s conduct ‘‘fell below reasonable professional
practice for defense lawyers.’’ On appeal, the petitioner disagreed with this
determination by the habeas court, arguing that Attorney Donald Freeman’s
performance had been deficient.
It is often stated that a habeas petitioner can prevail on a claim of ineffec-
tive assistance of counsel if he satisfies both the performance and the
prejudice prongs of Strickland. See, e.g., Francis v. Commissioner of Cor-
rection, 182 Conn. App. 647, 652, 190 A.3d 985, cert. denied, 330 Conn. 903,
191 A.3d 1002 (2018); Williams v. Commissioner of Correction, 177 Conn.
App. 321, 327, 175 A.3d 565, cert. denied, 327 Conn. 990, 175 A.3d 563 (2017).
As a result of our conclusion in part II B of this opinion that the petitioner
failed to demonstrate prejudice, we need not decide the performance issue.
See Williams v. Commissioner of Correction, supra, 327.
10
As the habeas court noted, ‘‘[t]he disputed issue was the petitioner’s
state of mind when he [engaged in a physical struggle with the victim and
the gun discharged].’’
11
General Statutes § 53a-55 (a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the first degree when . . . (3) under circumstances
evincing an extreme indifference to human life, he recklessly engages in
conduct which creates a grave risk of death to another person, and thereby
causes the death of another person.’’
12
General Statutes § 53a-55a (a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the first degree with a firearm when he commits
manslaughter in the first degree as provided in section 53a-55, and in the
commission of such offense he uses, or is armed with and threatens the
use of or displays or represents by his words or conduct that he possesses
a pistol, revolver, shotgun, machine gun, rifle or other firearm. . . .’’