Sanders v. Commissioner of Correction ( 2016 )


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    LEON SANDERS v. COMMISSIONER
    OF CORRECTION
    (AC 37512)
    DiPentima, C. J., and Sheldon and Schaller, Js.
    Argued September 8—officially released December 20, 2016
    (Appeal from Superior Court, judicial district of
    Tolland, Fuger, J.)
    Deborah G. Stevenson, assigned counsel, for the
    appellant (petitioner).
    Kathryn W. Bare, assistant state’s attorney, with
    whom, on the brief, were Mary M. Galvin, former state’s
    attorney, and Courtney M. Chaplin, deputy assistant
    state’s attorney, for the appellee (respondent).
    Opinion
    DiPENTIMA, C. J. The petitioner, Leon Sanders,
    appeals following the denial of his petition for certifica-
    tion to appeal from the judgment of the habeas court
    denying his third postconviction petition for a writ of
    habeas corpus challenging his conviction on charges
    of assault in the first degree and being a persistent
    dangerous felony offender. On appeal, the petitioner
    claims that the habeas court (1) abused its discretion
    in denying his petition for certification to appeal and
    (2) improperly denied his petition for a writ of habeas
    corpus in which he claimed that counsel in both his
    underlying criminal prosecution and his first postcon-
    viction habeas corpus proceeding rendered ineffective
    assistance. Because the petitioner did not demonstrate
    that the habeas court abused its discretion in denying
    the petition for certification to appeal, we dismiss
    the appeal.
    The following facts and procedural history are rele-
    vant to our decision. The petitioner was charged with
    two counts of assault in the first degree and with being
    a persistent dangerous felony offender. These charges
    stemmed from an incident in Ansonia on May 23, 2001,
    in which Kente Douglas was shot multiple times in the
    back. ‘‘At the time of the shooting, Douglas was reaching
    through the back door of a parked automobile to
    remove a child’s car seat. Jackie Garcia, Douglas’ girl-
    friend, was standing near the automobile with the cou-
    ple’s four year old daughter in her arms. An automobile
    drew up beside Douglas, and the [petitioner] fired a
    gun at Douglas through the passenger side window.
    Douglas fell to the ground, and the [petitioner] contin-
    ued to fire gunshots at him until the automobile left
    the area. During the shooting, Garcia went inside with
    her child. After the [petitioner] left, she returned to
    the street with a cordless telephone. She dialed 911,
    reported to the operator that her boyfriend had been
    shot and named the [petitioner] as the shooter. When
    the police arrived, an officer spoke with Garcia, who
    told him that the [petitioner] had pulled up in a car and
    shot Douglas five or six times. A police detective spoke
    with Douglas, who also stated that the [petitioner] had
    shot him. Later, as Douglas was transported in an ambu-
    lance to a hospital, he told another police officer that
    the [petitioner] had shot him. In June, 2001, the [peti-
    tioner] was arrested and charged. Following the jury
    trial, at which he was convicted of two counts of assault,
    the [petitioner] was tried to the court on the part B
    information in which he was accused of being a persis-
    tent dangerous felony offender and was convicted on
    that charge as well. Thereafter, the court imposed a
    sentence of forty years imprisonment.’’ State v. Sand-
    ers, 
    86 Conn. App. 757
    , 759, 
    862 A.2d 857
     (2005). On
    the petitioner’s appeal from his conviction, this court
    affirmed the trial court’s judgment. 
    Id.
    Following his conviction, the petitioner brought sev-
    eral petitions for writs of habeas corpus. At issue in
    the present appeal is the petitioner’s third such petition,
    which was filed on December 12, 2012, and amended
    for a fourth time on September 25, 2014 (operative
    petition).1 The petitioner set forth three separate claims.
    In count one, the petitioner alleged that his first habeas
    counsel, Sebastian DeSantis, ‘‘was ineffective in failing
    to allege in the prior habeas petition a claim of ineffec-
    tive assistance of [his criminal defense counsel, Robert
    Berke] for his failure to properly advise him of the
    state’s offer of eight years incarceration on a guilty plea,
    and had he been properly advised, he would not have
    rejected it.’’ In count two, the petitioner alleged that
    his state and federal rights to due process of law were
    violated because Berke had not properly advised him
    whether to accept or reject the state’s pretrial offer of
    eight years incarceration on a guilty plea. In count three,
    the petitioner alleged actual innocence, but he with-
    drew that claim prior to trial.
    At the trial on December 2, 2014, the petitioner pre-
    sented evidence describing the state’s plea offer. Specif-
    ically, the petitioner submitted the transcript from the
    first habeas trial, which was held on October 2, 2008,
    when he had testified that the state’s plea offer was for
    eight years with the right to argue for less. The petitioner
    repeated this testimony at the proceeding on December
    2, 2014. Berke, however, testified that there was a plea
    offer extended by the state, but he could not remember
    the exact terms of the plea offer. Berke further testified
    that he did not recall the alleged plea offer of eight
    years imprisonment. In terms of how he advised the
    petitioner regarding the state’s plea offer, Berke testi-
    fied that although he could not recall any specific dis-
    cussion with the petitioner, he typically presents his
    clients with ‘‘the positive [and] the negatives of going
    to trial—the risks of trial [and] the maximum exposure.
    [He does not] present [his] opinion on whether they
    should take an offer or not. . . . [T]hat was their deci-
    sion and not [his].’’
    Following the trial, the court, Fuger, J., denied the
    operative petition in an oral decision in which it con-
    cluded that Berke and DeSantis had provided the peti-
    tioner with effective assistance of counsel.2 With
    respect to the first count, the court determined that it
    could not ‘‘find any deficient performance by [DeSantis]
    in his representation of [the petitioner] at the first
    habeas trial’’ and, therefore, it denied the first count of
    the petition. In rejecting the claim that DeSantis ren-
    dered ineffective assistance for failing to allege in the
    first habeas action a claim that Berke’s performance
    was ineffective for inadequately advising the petitioner
    regarding the state’s plea offer, the court made several
    findings. It expressly credited the testimony of DeSantis
    that the petitioner did not raise any concerns to him
    regarding Berke’s representation in connection with
    the plea offer, and that the petitioner made it clear to
    DeSantis that he wanted to go to trial to prove his
    innocence. The court also specifically found, in accor-
    dance with DeSantis’ testimony, that in order to deter-
    mine which issues to raise in the habeas petition, he
    reviewed Berke’s file, examined the criminal trial tran-
    scripts and files, conversed with the petitioner, hired
    an investigator, reviewed the relevant police reports
    and reviewed the petition with the petitioner before he
    filed it. In drafting the habeas petition, DeSantis testified
    that he tried to be overinclusive in order to preserve
    issues for future litigation, and his typical practice was
    to include a claim in the petition if the petitioner was
    adamant about including it, unless it was frivolous. In
    addition, DeSantis agreed with counsel for the respon-
    dent, the Commissioner of Correction, that the first
    habeas court, Nazzaro, J., ‘‘found that it was clear that
    the petitioner wanted to go to trial and to prove his
    innocence rather than take a plea offer . . . .’’
    As to the petitioner’s second count, the court deter-
    mined that Berke’s performance in the petitioner’s
    underlying criminal proceedings was not deficient. With
    respect to this conclusion, the court explained that the
    petitioner ‘‘rejected a plea bargain that was apparently
    eight years with the right to argue for a lower sentence.
    [The petitioner] went to trial and received, after being
    found guilty by the jury, a sentence of forty years of
    confinement.’’ (Emphasis added.) The court expressly
    noted that ‘‘Berke did convey and discuss the plea bar-
    gains with [the petitioner]. The record is crystal clear
    that [the petitioner] protested his innocence and always
    asserted that he wished to proceed to trial. The court
    is convinced based upon the testimony of [Berke], the
    testimony at the first habeas trial, that [Berke] did in
    fact adequately explain the pretrial offer, discuss the
    case, discuss the maximum punishments, discuss the
    pros and cons of pleading guilty or not guilty, but left,
    as he should have, the final decision as to whether to
    accept or reject such offer to [the petitioner].’’ It further
    found Berke’s representation of the petitioner to be
    ‘‘sufficiently within that band of representation that will
    pass constitutional muster.’’
    The court then explained that the petitioner had the
    burden of proving that ‘‘it was reasonably probable
    that a court, a judge would have accepted the [state’s
    alleged] eight year [plea] offer in this case.’’ The court
    proceeded to explain that it could not ‘‘make the finding
    that the petitioner [established that] it [was] reasonably
    probable that [the trial judge] would have accepted the
    eight year offer, the key word being probable.’’ With
    respect to this finding, the court highlighted: the peti-
    tioner’s prior conviction of manslaughter, for which the
    petitioner had served an eleven year prison sentence;
    that the petitioner had been arrested in connection with
    a shooting incident soon after he was released after
    serving his sentence for his manslaughter conviction;
    and that the petitioner had other convictions for crimes
    involving firearms. On the basis of the evidence before
    it, the court concluded that the petitioner had not met
    his burden of proving by a ‘‘preponderance of the evi-
    dence that it [was] reasonably probable that a court
    would have accepted’’ the state’s eight year plea offer.
    As a result of this finding, the court denied the operative
    petition claiming ineffective assistance by Berke and
    DeSantis. Subsequently, the petitioner filed a petition
    for certification to appeal. In that petition, the petitioner
    stated that the grounds for appeal are: ‘‘Whether [the]
    habeas court erred when it found that [Berke] was
    not ineffective when he discussed the strengths [and]
    weaknesses of the state’s case but did not advise the
    petitioner whether he should accept or reject the state’s
    plea offer.’’3 On December 4, 2014, the court denied the
    petition for certification to appeal. This appeal
    followed.
    The petitioner claims that the habeas court abused
    its discretion in denying his petition for certification
    to appeal because it improperly denied his claims of
    ineffective assistance of counsel with respect to Berke
    and DeSantis. ‘‘Faced with a habeas court’s denial of a
    petition for certification to appeal, a petitioner can
    obtain appellate review of the dismissal of his petition
    for habeas corpus only by satisfying the two-pronged
    test enunciated by our Supreme Court in Simms v.
    Warden, 
    229 Conn. 178
    , 
    640 A.2d 601
     (1994), and
    adopted in Simms v. Warden, 
    230 Conn. 608
    , 612, 
    646 A.2d 126
     (1994). First, [the petitioner] must demonstrate
    that the denial of his petition for certification consti-
    tuted an abuse of discretion. . . . Second, if the peti-
    tioner can show an abuse of discretion, he must then
    prove that the decision of the habeas court should be
    reversed on the merits.’’ (Internal quotation marks omit-
    ted.) Melendez v. Commissioner of Correction, 
    151 Conn. App. 351
    , 357–58, 
    95 A.3d 551
    , cert. denied, 
    314 Conn. 914
    , 
    100 A.3d 405
     (2014). To prove that the denial
    of his petition for certification to appeal constituted 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 different manner];
    or that the questions are adequate to deserve encourage-
    ment to proceed further.’’ (Internal quotation marks
    omitted.) Moye v. Commissioner of Correction, 
    168 Conn. App. 207
    , 214, 
    145 A.3d 362
     (2016).
    ‘‘In determining whether the habeas court abused
    its discretion in denying the petitioner’s request for
    certification, we necessarily must consider the merits of
    the petitioner’s underlying claims to determine whether
    the habeas court reasonably determined that the peti-
    tioner’s appeal was frivolous. In other words, we review
    the petitioner’s substantive claims for the purpose of
    ascertaining whether those claims satisfy one or more
    of the three criteria . . . adopted by [our Supreme
    Court] for determining the propriety of the habeas
    court’s denial of the petition for certification.’’ (Internal
    quotation marks omitted.) Bozelko v. Commissioner of
    Correction, 
    162 Conn. App. 716
    , 721, 
    133 A.3d 185
    , cert.
    denied, 
    320 Conn. 926
    , 
    133 A.3d 458
     (2016).
    Here, the petitioner’s underlying claims are that the
    habeas court improperly concluded that (1) Berke pro-
    vided effective assistance of counsel and (2) DeSantis
    provided effective assistance of counsel. After
    determining the merits of these underlying claims, we
    conclude that the court did not abuse its discretion in
    denying the petition for certification to appeal.
    Our standard of review of a habeas court’s judgment
    on ineffective assistance of counsel claims is well set-
    tled. ‘‘The habeas court is afforded broad discretion in
    making its factual findings, and those findings will not
    be disturbed unless they are clearly erroneous. . . .
    The application of the habeas court’s factual findings
    to the pertinent legal standard, however, presents a
    mixed question of law and fact, which is subject to
    plenary review.’’ (Internal quotation marks omitted.)
    Horn v. Commissioner of Correction, 
    321 Conn. 767
    ,
    775, 
    138 A.3d 908
     (2016). Therefore, ‘‘our review of
    whether the facts as found by the habeas court consti-
    tuted a violation of the petitioner’s constitutional right
    to effective assistance of counsel is plenary.’’ (Internal
    quotation marks omitted.) Kearney v. Commissioner
    of Correction, 
    113 Conn. App. 223
    , 228, 
    965 A.2d 608
    (2009).
    It is well established that ‘‘[a] criminal defendant is
    constitutionally entitled to adequate and effective assis-
    tance of counsel at all critical stages of criminal pro-
    ceedings . . . . This right arises under the sixth and
    fourteenth amendments to the United States constitu-
    tion and article first, § 8, of the Connecticut constitu-
    tion. . . . As enunciated in Strickland v. Washington,
    [
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984)], this court has stated: It is axiomatic that the
    right to counsel is the right to the effective assistance
    of counsel. . . . A claim of ineffective assistance of
    counsel 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 compe-
    tent or within the range of competence displayed by
    lawyers with ordinary training and skill in the criminal
    law.’’ (Citation omitted; internal quotation marks omit-
    ted.) Horn v. Commissioner of Correction, 
    supra,
     
    321 Conn. 775
    . ‘‘To satisfy the second prong of Strickland,
    that his counsel’s deficient performance prejudiced his
    defense, the petitioner must establish that, as a result
    of his trial counsel’s deficient performance, there
    remains a probability sufficient to undermine confi-
    dence 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.’’ (Internal quotation marks omitted.) 
    Id., 776
    . ‘‘An ineffective assistance of counsel claim will
    succeed only if both prongs [of Strickland] are satis-
    fied.’’ (Internal quotation marks omitted.) Bozelko v.
    Commissioner of Correction, 
    supra,
     
    162 Conn. App. 722
    –23. The court, however, ‘‘may decide against a peti-
    tioner on either prong, whichever is easier.’’ Lewis v.
    Commissioner of Correction, 
    165 Conn. App. 441
    , 451,
    
    139 A.3d 759
    , cert. denied, 
    322 Conn. 901
    , 
    138 A.3d 931
     (2016).
    I
    The petitioner first claims that the habeas court
    abused its discretion in denying his petition for certifica-
    tion to appeal because it improperly denied his claim
    of ineffective assistance of counsel with respect to
    Berke. As described in the preceding paragraph, to
    determine whether the habeas court abused its discre-
    tion in denying the petition for certification to appeal,
    this court will look at the underlying merits of the peti-
    tioner’s claims. See Bozelko v. Commissioner of Correc-
    tion, 
    supra,
     
    162 Conn. App. 721
    . Specifically, the
    petitioner contends that the habeas court improperly
    concluded that (1) Berke’s performance concerning the
    state’s plea offer was neither deficient nor prejudicial
    and (2) Berke’s failure to advise the petitioner on acces-
    sorial liability did not constitute ineffective assistance.
    We will address each claim in turn.
    A
    Turning to the petitioner’s first claim, we agree with
    the petitioner that Berke’s performance pertaining to
    the state’s plea offer was deficient; however, we are
    not persuaded that the petitioner established that he
    was prejudiced by the deficient performance. As ‘‘ ‘[a]n
    ineffective assistance of counsel claim will succeed only
    if both prongs [of Strickland] are satisfied’ ’’; 
    id.,
     722–23;
    we conclude that the petitioner failed to meet his bur-
    den of establishing his ineffective assistance of counsel
    claim with respect to Berke’s performance pertaining
    to the state’s plea offer. Because the petitioner failed
    to establish that he was prejudiced by Berke’s deficient
    performance, he cannot demonstrate that the issues
    pertaining to this claim are debatable among jurists of
    reason, that a court could resolve those issues differ-
    ently or that the questions raised deserve encourage-
    ment to proceed further. Therefore, as we discuss
    subsequently in this opinion, the petitioner has failed
    to demonstrate that the court abused its discretion in
    denying his petition for certification to appeal as to
    this claim.
    We begin by setting forth the governing legal princi-
    ples in cases involving claims of ineffective assistance
    of counsel in the plea bargain context. As previously
    noted, under the Strickland test, ‘‘[a] claim of ineffec-
    tive assistance of counsel consists of two components:
    a performance prong and a prejudice prong. To satisfy
    the performance prong . . . the petitioner must dem-
    onstrate that his attorney’s representation was not rea-
    sonably competent or within the range of competence
    displayed by lawyers with ordinary training and skill
    in the criminal law.’’ (Internal quotation marks omitted.)
    Mahon v. Commissioner of Correction, 
    157 Conn. App. 246
    , 253, 
    116 A.3d 331
    , cert. denied, 
    317 Conn. 917
    , 
    117 A.3d 855
     (2015).
    ‘‘Pretrial negotiations implicating the decision of
    whether to plead guilty is a critical stage in criminal
    proceedings . . . .’’ (Internal quotation marks omit-
    ted.) 
    Id.
     ‘‘[P]lea bargaining is an integral component of
    the criminal justice system and essential to the expedi-
    tious and fair administration of our courts. . . . Com-
    mentators have estimated that between 80 and 90
    percent of criminal cases in Connecticut result in guilty
    pleas, the majority of which are the product of plea
    bargains. . . . Thus, almost every criminal defendant
    is faced with the crucial decision of whether to plead
    guilty or proceed to trial. Although this decision is ulti-
    mately made by the defendant, the defendant’s attorney
    must make an informed evaluation of the options and
    determine which alternative will offer the defendant
    the most favorable outcome. A defendant relies heavily
    upon counsel’s independent evaluation of the charges
    and defenses, applicable law, the evidence and the risks
    and probable outcome of a trial.’’ (Emphasis in original;
    internal quotation marks omitted.) Ebron v. Commis-
    sioner of Correction, 
    120 Conn. App. 560
    , 572, 
    992 A.2d 1200
     (2010), rev’d in part on other grounds, 
    307 Conn. 342
    , 
    53 A.3d 983
     (2012), cert. denied sub nom. Arnone
    v. Ebron,        U.S.     , 
    133 S. Ct. 1726
    , 
    185 L. Ed. 2d 802
     (2013).
    ‘‘To show prejudice from ineffective assistance of
    counsel where a plea offer has lapsed or been rejected
    because of counsel’s deficient performance, defendants
    must demonstrate a reasonable probability they would
    have accepted the earlier plea offer had they been
    afforded effective assistance of counsel. Defendants
    must also demonstrate a reasonable probability the plea
    would have been entered without the prosecution can-
    celing it or the trial court refusing to accept it, if they
    had the authority to exercise that discretion under state
    law. To establish prejudice in this instance, it is neces-
    sary to show a reasonable probability that the end result
    of the criminal process would have been more favorable
    by reason of a plea to a lesser charge or a sentence of
    less prison time. . . . To prevail on a claim of ineffec-
    tive assistance of counsel, both prongs of the Strickland
    test must be satisfied.’’ (Citations omitted; internal quo-
    tation marks omitted.) Mahon v. Commissioner of Cor-
    rection, supra, 
    157 Conn. App. 253
    –54, quoting Missouri
    v. Frye,       U.S.      , 
    132 S. Ct. 1399
    , 1409, 
    182 L. Ed. 2d 379
     (2012); see also Ebron v. Commissioner of Cor-
    rection, 
    307 Conn. 342
    , 357, 
    53 A.3d 983
     (2012) (to
    show prejudice in rejected plea case, petitioner must
    establish: ‘‘[1] it is reasonably probable that, if not for
    counsel’s deficient performance, the petitioner would
    have accepted the plea offer, and [2] the trial judge
    would have conditionally accepted the plea agreement
    if it had been presented to the court’’), cert. denied sub
    nom. Arnone v. Ebron,             U.S.    , 
    133 S. Ct. 1726
    ,
    
    185 L. Ed. 2d 802
     (2013).
    1
    In his challenge to the habeas court’s conclusion as
    to Berke’s performance, the petitioner contends that
    Berke’s failure to provide the petitioner his professional
    advice, assistance and opinion on the petitioner’s best
    course of action concerning the state’s plea offer fell
    below an objective standard of reasonableness and,
    thus, constituted deficient performance under the first
    prong of the Strickland test. We agree.
    In focusing on the performance prong, we are guided
    by our case law, which provides that ‘‘[i]n any case
    presenting an ineffectiveness claim, the performance
    inquiry must be whether counsel’s assistance was rea-
    sonable considering all the circumstances. . . . Judi-
    cial scrutiny of counsel’s performance must be highly
    deferential. It is all too tempting for a defendant to
    second-guess counsel’s assistance after conviction or
    adverse sentence, and it is all too easy for a court,
    examining counsel’s defense after it has proved unsuc-
    cessful, to conclude that a particular act or omission
    of counsel was unreasonable . . . . Because of the dif-
    ficulties inherent in making the evaluation, a court must
    indulge a strong presumption that counsel’s conduct
    falls within the wide range of reasonable professional
    assistance; that is, the defendant must overcome the
    presumption that, under the circumstances, the chal-
    lenged action might be considered sound trial strategy.’’
    (Internal quotation marks omitted.) Helmedach v. Com-
    missioner of Correction, 
    168 Conn. App. 439
    , 453,
    A.3d        (2016).
    The petitioner bore the burden of presenting suffi-
    cient evidence to establish that Berke’s actions consti-
    tuted deficient performance. In order to establish that
    Berke’s performance was deficient, the petitioner was
    required to overcome the presumption that Berke’s con-
    duct was reasonable. See Moye v. Commissioner of
    Correction, supra, 
    168 Conn. App. 218
    . In determining
    what is reasonable, we are guided by ‘‘[p]revailing
    norms of practice as reflected in American Bar Associa-
    tion standards and the like . . . .’’ (Internal quotation
    marks omitted.) Gaines v. Commissioner of Correc-
    tion, 
    306 Conn. 664
    , 679, 
    51 A.3d 948
     (2012), quoting
    Strickland v. Washington, 
    supra,
     
    466 U.S. 688
    .
    This court has recently stated that counsel performs
    effectively and reasonably when he or she provides a
    petitioner with adequate information and advice upon
    which the petitioner can make an informed decision as
    to whether to accept the state’s plea offer. See Melendez
    v. Commissioner of Correction, supra, 
    151 Conn. App. 359
    . We are mindful that ‘‘[c]ounsel’s conclusion as to
    how best to advise a client in order to avoid, on the one
    hand, failing to give advice and, on the other, coercing a
    plea enjoys a wide range of reasonableness . . . .’’
    (Internal quotation marks omitted.) Barlow v. Commis-
    sioner of Correction, 
    150 Conn. App. 781
    , 795, 
    93 A.3d 165
     (2014). Accordingly, ‘‘[t]he need for recommenda-
    tion depends on countless factors, such as the defen-
    dant’s chances of prevailing at trial, the likely disparity
    in sentencing after a full trial compared to the guilty
    plea . . . whether [the] defendant has maintained his
    innocence, and the defendant’s comprehension of the
    various factors that will inform [his] plea decision.’’
    (Internal quotation marks omitted.) 
    Id.
    In denying the petitioner’s claim with respect to
    Berke, the habeas court expressly concluded that
    Berke’s representation was not controlled by our deci-
    sion in Barlow. The habeas court explained: ‘‘[B]ased
    upon the facts that have been produced in this trial,
    [Berke] does not fit within the specific boundaries of
    Barlow . . . . [Berke] did not simply act as a conduit.
    [Berke] did go further. Later on in 2014, and Barlow is
    a 2014 case—later on in 2014, the case of Melendez v.
    Commissioner, 
    151 Conn. App. 351
    , reaches a contrary
    conclusion finding that the representation by counsel
    for Mr. Melendez did pass constitutional muster. That
    was a more detailed explanation in which the counsel
    offered explanations, pros and cons, and a recommen-
    dation.’’4 In addition, the court noted that ‘‘[i]t is clear
    from all of the testimony that [Berke] did convey and
    discuss the plea bargains with [the petitioner]. The
    record is crystal clear that [the petitioner] protested
    his innocence and always asserted that he wished to
    proceed to trial. The court is convinced, based upon
    the testimony of [Berke], the testimony at the first
    habeas trial, that [Berke] did in fact adequately explain
    the pretrial offer, discuss the case, discuss the maxi-
    mum punishments, discuss the pros and cons of plead-
    ing guilty or not guilty, but left, as he should have, the
    final decision as to whether to accept or reject such
    offer to [the petitioner]. . . . While it would appear
    that [Berke’s] representation may be closer to that of
    Barlow than it is Melendez, nevertheless, the court will
    find that [Berke’s] representation was sufficiently
    within that band of representation that will pass consti-
    tutional muster.’’ We disagree.
    In Barlow v. Commissioner of Correction, supra, 
    150 Conn. App. 789
    –90, 796–97, this court held that the
    petitioner’s defense counsel had rendered deficient per-
    formance in failing to advise the petitioner adequately
    regarding the court’s plea offer. We noted that the peti-
    tioner’s counsel had testified during the habeas trial
    that she refrained from giving the petitioner any advice
    as to the plea offer proposed by the trial court. 
    Id., 801
    .
    Counsel further had testified that she ‘‘merely gave [the
    petitioner] the facts of the offer, [and] provid[ed] no
    assistance or advice as [the petitioner] weighed his
    options.’’ 
    Id.
     We concluded that ‘‘[a]lthough we agree
    with the habeas court that [counsel] had no obligation
    in this case specifically to tell the petitioner whether
    to take the court’s plea offer . . . [counsel did have]
    an obligation to provide advice and assistance to the
    petitioner regarding that plea offer, which, she admit-
    tedly failed to do.’’ 
    Id.,
     796–97. We reasoned that
    ‘‘[a]lthough the [petitioner] ultimately must decide
    whether to accept a plea offer or proceed to trial, this
    critical decision, which in many instances will affect a
    [petitioner’s] liberty, should be made by a represented
    [petitioner] with the adequate professional assistance,
    advice, and input of his or her counsel.’’ (Emphasis
    in original.) 
    Id., 800
    . We further noted that ‘‘a crucial
    component of counsel’s effective representation during
    plea negotiations is giving professional advice to a
    [petitioner]. . . . [C]ounsel should give the [petitioner]
    his or her professional advice on the best course of
    action given the facts of the particular case and the
    potential total sentence exposure.’’ (Citations omitted;
    emphasis in original.) 
    Id.,
     799–800. Therefore, we con-
    cluded that counsel’s ‘‘performance was deficient
    because she did not give the petitioner her professional
    advice and assistance concerning, and her evaluation
    of, the court’s plea offer.’’ 
    Id., 802
    .
    In Barlow, the petitioner’s trial counsel testified that
    she did not provide any advice to the petitioner con-
    cerning the plea offer proposed by the court. 
    Id., 801
    .
    Similarly, in this case, Berke testified during the habeas
    trial that it was his general practice never to advise his
    client or give him advice as to whether he should accept
    or reject a plea offer.5 As this court held in Barlow,
    advising the petitioner on the strengths and weaknesses
    of his case, alerting him to his potential exposure and
    explaining to him the terms of the plea offer is insuffi-
    cient; without the professional advice as to the best
    course of action, such representation constitutes defi-
    cient performance. 
    Id.,
     800–802.
    Although the petitioner maintained his innocence
    during pretrial discussions with Berke, Berke had an
    obligation to provide the petitioner his ‘‘professional
    advice on the best course of action given the facts
    of the particular case and the potential total sentence
    exposure.’’ (Emphasis omitted.) 
    Id., 800
    ; see Cardoza v.
    Rock, 
    731 F.3d 169
    , 178 (2d Cir. 2013) (‘‘defense counsel
    have a constitutional duty to . . . advise their clients
    on the crucial decision whether to accept a plea offer’’
    [internal quotation marks omitted]); see also Vazquez
    v. Commissioner of Correction, 
    123 Conn. App. 424
    ,
    437, 
    1 A.3d 1242
     (2010) (stating that ‘‘[a] defense lawyer
    in a criminal case has the duty to advise his client fully
    on whether a particular plea to a charge appears to be
    desirable’’ [emphasis added; internal quotation marks
    omitted]), cert. denied, 
    302 Conn. 901
    , 
    23 A.3d 1241
    (2011).
    The respondent, however, argues that Berke’s perfor-
    mance was not deficient for failing to make a specific
    recommendation as to whether the petitioner should
    accept or reject the state’s plea offer because such a
    recommendation was not required under Barlow.
    Although we agree that Barlow did not establish a per
    se rule obligating counsel to provide recommendations
    regarding plea offers, we are not persuaded by the
    respondent’s argument. Barlow set forth an obligation
    for defense counsel to provide professional advice,
    assistance and an ‘‘informed opinion as to what pleas
    [to] enter’’ and to make ‘‘an informed evaluation of the
    options and determine which alternative will offer the
    [petitioner] the most favorable outcome.’’ (Internal quo-
    tation marks omitted.) Barlow v. Commissioner of Cor-
    rection, supra, 
    150 Conn. App. 798
    . We, therefore, read
    Barlow to require counsel to provide the petitioner
    his professional advice, assistance and opinion on the
    petitioner’s best course of action concerning the state’s
    plea offer. This, Berke admits, he did not do.
    We note that in his argument that Berke’s perfor-
    mance was not deficient pursuant to the standard set
    forth in Barlow, the respondent relies on our decision
    in Andrews v. Commissioner of Correction, 
    155 Conn. App. 548
    , 
    110 A.3d 489
    , cert. denied, 
    316 Conn. 911
    , 
    112 A.3d 174
     (2015). That reliance is misplaced.
    In Andrews, the petitioner challenged the habeas
    court’s finding that he failed to show that his trial coun-
    sel was deficient.6 Id., 551. In support of his claim on
    appeal, the petitioner relied on Barlow v. Commis-
    sioner of Correction, supra, 
    150 Conn. App. 781
    . See
    Andrews v. Commissioner of Correction, supra, 
    155 Conn. App. 553
    . This court, however, concluded that
    because the facts in Andrews were distinguishable, the
    petitioner’s reliance on Barlow was misplaced. 
    Id.
     Spe-
    cifically, we explained that ‘‘[u]nlike trial counsel in
    Barlow, who provided no advice or assistance to her
    client on the plea offer, trial counsel in the present case
    explained to the petitioner the strengths and weak-
    nesses of the state’s case, the charges he was facing,
    and the maximum sentence he would be exposed to if
    he was unsuccessful at trial. Trial counsel explained
    that the petitioner would likely receive a significantly
    higher sentence than twelve years if he was convicted
    at trial, that he believed that the state had a strong case
    against the petitioner, and that it would be a difficult
    case to win because most of the witnesses were police
    officers, and one of the police officers had sustained
    permanent serious injury. Although trial counsel left
    the ultimate decision of whether to accept or to reject
    the offer to the petitioner, he provided the petitioner
    with adequate professional advice on [his] options and
    the best course of action, unlike trial counsel in Barlow,
    given the facts of the case and the petitioner’s potential
    total sentence exposure.’’ 
    Id.,
     554–55.
    Unlike counsel in Andrews, Berke did not provide
    the petitioner with his opinion as to whether the state
    would prevail at trial, nor did he provide advice on the
    best course of action for the petitioner. This case is thus
    distinguishable from Andrews, where defense counsel
    explained to the petitioner that in his professional opin-
    ion the state had a strong case against the petitioner.
    See 
    id.
     Here, the extent of Berke’s advice concerning
    the plea offer was to discuss with the petitioner the
    specific strengths and weaknesses of the state’s case.
    This is distinguishable from the facts in Andrews where
    defense counsel provided detailed advice on the peti-
    tioner’s options and best course of action. See 
    id.
     There-
    fore, we reject the respondent’s argument that Andrews
    v. Commissioner of Correction, supra, 
    155 Conn. App. 554
    –55, compels us to reach a different conclusion.
    For the foregoing reasons, we conclude that this case
    falls within the reasoning of Barlow, and, therefore,
    contrary to the conclusion of the habeas court, Berke’s
    failure to provide the petitioner his professional advice,
    assistance and opinion on the petitioner’s best course
    of action concerning the state’s plea offer constituted
    deficient performance under the first prong of
    Strickland.
    2
    Having concluded that Berke’s performance concern-
    ing the state’s plea offer was deficient, we turn now
    to the prejudice prong of Strickland. The petitioner
    contends that the court did not provide any factual or
    legal basis for its ‘‘belief’’ that the petitioner failed to
    meet his burden of establishing that he was prejudiced
    by Berke’s deficient performance. We disagree.
    The following legal principles are relevant to our
    resolution of this claim. In order to show prejudice
    stemming from a petitioner’s rejection of a plea bargain
    due to ineffective assistance of counsel, ‘‘a petitioner
    need establish only that (1) it is reasonably probable
    that, if not for counsel’s deficient performance, the peti-
    tioner would have accepted the plea offer, and (2) the
    trial judge would have conditionally accepted the plea
    agreement if it had been presented to the court.’’ Ebron
    v. Commissioner of Correction, supra, 
    307 Conn. 357
    .
    ‘‘A reasonable probability is a probability sufficient to
    undermine confidence in the outcome. . . . In a
    habeas corpus proceeding, the petitioner’s burden of
    proving that a fundamental unfairness had been done
    is not met by speculation . . . but by demonstrable
    realities.’’ (Citation omitted; internal quotation marks
    omitted.) Taft v. Commissioner of Correction, 
    159 Conn. App. 537
    , 553–54, 
    124 A.3d 1
    , cert. denied, 
    320 Conn. 910
    , 
    128 A.3d 954
     (2015). ‘‘If the habeas court
    determined that . . . it is not reasonably probable that
    the trial court would have imposed the sentence embod-
    ied in the plea agreement, the prejudice prong has not
    been satisfied.’’ Ebron v. Commissioner of Correction,
    supra, 355–56.
    Although the petitioner testified that he would have
    accepted the state’s plea offer but for Berke’s deficient
    performance, he has failed to establish, in accordance
    with Ebron, that there was a reasonable probability that
    the trial judge would have conditionally accepted the
    state’s plea offer. With respect to this conclusion, we
    find that the evidence adduced at the habeas trial pro-
    vided both factual and legal support for the court’s
    determination. In the habeas court’s decision, Judge
    Fuger stated that ‘‘while I cannot categorically say yes
    or no that such a plea bargain would have been
    accepted, I can say that I do not believe the . . . peti-
    tioner in this case has met his burden of proving with
    a preponderance of the evidence that it is reasonably
    probable that a court would have accepted the eight
    year offer.’’ To support this finding, the court expressly
    stated various factors, including that the petitioner had
    ‘‘a prior conviction for manslaughter for which he
    served an eleven year sentence. Very shortly after serv-
    ing that sentence, he was arrested for a shooting inci-
    dent in which somebody was apparently severely
    injured. [The petitioner] has other convictions [that]
    involved a firearm.’’
    The court also recognized ‘‘the difficulty of trying to
    prove that [a court would have conditionally accepted
    the state’s plea offer], particularly in a case such as this
    where the identities of the particular judges apparently
    are unknown.’’ Both our Supreme Court and this court
    have considered the difficulty of trying to prove that
    the trial court would have accepted the plea offer when
    the identities of the judges are unknown and/or the
    record does not provide sufficient evidence regarding
    the trial court’s general practices. For example, in
    Ebron v. Commissioner of Correction, supra, 
    307 Conn. 361
    , our Supreme Court recognized that ‘‘when there
    is evidence that a particular judge had indicated that he
    would have conditionally accepted the plea agreement,
    such evidence is probative on the question of what a
    reasonable court would have done. We further conclude
    that such evidence is sufficient to prove prejudice in
    the absence of any evidence that the particular judge’s
    practice deviated significantly from the normal practice
    or that the particular sentence would have been an
    outlier. Because there was no such evidence in the
    present case, we conclude that the factual finding that
    [the trial judge] would have conditionally accepted the
    plea agreement was sufficient to establish prejudice.’’
    
    Id.
     In addition, in Lewis v. Commissioner of Correction,
    supra, 
    165 Conn. App. 454
    , this court held that the
    petitioner failed to establish prejudice because there
    was ‘‘no evidence in the record that the trial court would
    have accepted [the] plea agreement . . . .’’ It then
    explained that ‘‘[t]o hold otherwise on the record before
    us would amount to pure speculation, in which we
    decline to engage.’’ 
    Id.
    In accordance with the legal principles pertaining to
    the prejudice prong of Strickland, as set forth in Ebron
    and Lewis, the record before us does not reveal the
    identity of the trial judge who would have been pre-
    sented with the plea offer or whether there was a rea-
    sonable probability that a trial judge would have
    conditionally accepted the state’s plea offer. The facts
    therefore are distinguishable from those in Ebron,
    where the record revealed the identity of the trial judge
    to whom the plea would have been presented and evi-
    dence that the trial judge would have conditionally
    accepted the plea. Ebron v. Commissioner of Correc-
    tion, supra, 
    307 Conn. 346
     n.1. Specifically, in Ebron,
    the prosecutor ‘‘testified at the habeas proceeding that
    [the trial judge] thought [that] the state’s [plea] offer
    was appropriate and that she would not be adjusting
    it, lowering it or changing it. When asked if [the prosecu-
    tor] had any reason to believe that [the trial judge]
    would not have imposed the agreed on sentence if the
    petitioner had accepted the plea offer, [the prosecutor]
    stated that [the trial judge] was a quite experienced
    judge, and that she would have indicated that the plea
    offer was too high or too low if she did not intend to
    accept it. Accordingly, [the prosecutor] believed that
    [the trial judge] would have imposed [the agreed on
    sentence].’’ (Internal quotation marks omitted.) 
    Id.
    Contrary to the facts of Ebron, here, the only evidence
    in the record pertaining to whether the trial judge would
    have conditionally accepted the plea offer was Berke’s
    testimony describing the plea offer as reasonable. We
    note that Berke was very hesitant to make such a defini-
    tive statement concerning the reasonableness of the
    plea offer. Further, Berke admitted that he did not know
    whether a trial judge would have accepted the state’s
    plea offer, given the facts of this case.7 Even with
    Berke’s testimony, the habeas court determined that,
    due to the paucity of evidence, it could not find that
    the petitioner established that there was a reasonable
    probability that the trial judge would have conditionally
    accepted the plea offer.
    We emphasize that ‘‘the petitioner’s burden of proving
    that a fundamental unfairness has been done is not met
    by speculation . . . but by demonstrable realities.’’
    (Citations omitted; internal quotation marks omitted.)
    Taft v. Commissioner of Correction, supra, 
    159 Conn. App. 553
    –54. The petitioner’s failure to satisfy his bur-
    den of establishing that there was a reasonable probabil-
    ity that the trial judge would have conditionally
    accepted the state’s plea offer is fatal to this claim. See
    Henderson v. Commissioner of Correction, 
    129 Conn. App. 188
    , 196, 
    19 A.3d 705
    , cert. denied, 
    303 Conn. 901
    ,
    
    31 A.3d 1177
     (2011). Under the circumstances of this
    case, the petitioner has not demonstrated prejudice
    because he failed to provide sufficient evidence to sup-
    port his claim that there was a reasonable probability
    that the trial judge would have conditionally accepted
    the plea offer. See Lewis v. Commissioner of Correc-
    tion, supra, 
    165 Conn. App. 454
    .
    We thus conclude that the petitioner failed to demon-
    strate that his claim of ineffective assistance of counsel
    with respect to Berke’s representation pertaining to the
    state’s plea offer involved issues that are debatable
    amongst jurists of reason, that a court could resolve
    the issue in a different manner, or that the issue is
    adequate to deserve encouragement to proceed further.
    Therefore, we conclude that the habeas court did not
    abuse its discretion in denying the petition for certifica-
    tion to appeal as to this claim. See Bozelko v. Commis-
    sioner of Correction, supra, 
    162 Conn. App. 729
    –30.
    B
    The petitioner next claims that the court abused its
    discretion in denying his petition for certification to
    appeal because the court erred in finding that Berke’s
    alleged failure to advise the petitioner on accessorial
    liability did not constitute ineffective assistance.8 Spe-
    cifically, the petitioner argues that Berke had a duty
    to conduct an independent investigation of the facts,
    evidence and law in determining which theory he would
    rely on to defend the petitioner if he proceeded to trial
    and to inform the petitioner of the ways he could be
    convicted and sentenced, including as an accessory to
    the crimes at issue. We disagree.
    As enunciated in our well established case law, ‘‘the
    United States Supreme Court [has] determined that
    [ineffective assistance of counsel claims pertaining to
    counsel’s obligation to investigate the facts and legal
    principles of each case] must be supported by evidence
    establishing that . . . counsel’s representation fell
    below an objective standard of reasonableness, and
    . . . counsel’s deficient performance prejudiced the
    defense because there was a reasonable probability
    that the outcome of the proceedings would have been
    different had it not been for the deficient performance.’’
    (Emphasis omitted; internal quotation marks omitted.)
    Lapointe v. Commissioner of Correction, 
    113 Conn. App. 378
    , 393–94, 
    966 A.2d 780
     (2009). ‘‘An ineffective
    assistance of counsel claim will succeed only if both
    prongs [of Strickland] are satisfied.’’ (Internal quotation
    marks omitted.) Bozelko v. Commissioner of Correc-
    tion, supra, 
    162 Conn. App. 722
    –23. Accordingly, in
    addressing this claim we focus on the performance
    prong of the Strickland test.
    ‘‘While it is incumbent on a trial counsel to conduct a
    prompt investigation of the case and explore all avenues
    leading to facts relevant to the merits of the case and
    the penalty in the event of conviction . . . counsel
    need not track down each and every lead or personally
    investigate every evidentiary possibility.’’ (Internal quo-
    tation marks omitted.) Edwards v. Commissioner of
    Correction, 
    87 Conn. App. 517
    , 525–26, 
    865 A.2d 1231
    (2005). ‘‘In other words, counsel has a duty to make
    reasonable investigations or to make a reasonable deci-
    sion that makes particular investigations unnecessary.’’
    (Internal quotation marks omitted.) Taft v. Commis-
    sioner of Correction, supra, 
    159 Conn. App. 547
    . ‘‘In a
    habeas corpus proceeding, the petitioner’s burden of
    proving that a fundamental unfairness had been done
    is not met by speculation, but by demonstrable realities.
    . . . One cannot successfully attack, with the advan-
    tage of hindsight, a trial counsel’s trial choices and
    strategies that otherwise constitutionally comport with
    the standards of competence. . . . Because this court
    is constrained to evaluating demonstrable realities, we
    will not engage in mere speculation.’’ (Citation omitted;
    internal quotation marks omitted.) Edwards v. Com-
    missioner of Correction, supra, 526. ‘‘[A] court must
    indulge a strong presumption that counsel’s conduct
    falls within the wide range of reasonable professional
    assistance; that is, the [petitioner] must overcome the
    presumption that, under the circumstances, the chal-
    lenged action might be considered sound trial strategy.’’
    (Internal quotation marks omitted.) Moye v. Commis-
    sioner of Correction, supra, 
    168 Conn. App. 218
    .
    The following additional facts, as set forth by the
    habeas court, are relevant to this claim. In its decision,
    the court stated: ‘‘It was the state’s theory at trial that
    [the petitioner] was the person who did the shooting
    based upon statements of eyewitnesses. Based upon
    the testimony of [the petitioner at the habeas trial], he
    [was] not the person who did the shooting. He [was],
    in fact, the driver of the car. Unfortunately, [the peti-
    tioner] did not properly communicate these facts to
    [Berke].’’ In light of this, the court concluded that
    ‘‘Berke proceeded on the belief that his client was not
    involved in this shooting, and the reason why [Berke]
    was under that misapprehension [was] not because he
    failed to investigate, not because he was ineffective,
    it was because he trusted that his client, under the
    protection of attorney-client privilege, was going to tell
    him the truth, and he did not. As a result, [Berke] went
    into this process with a client who had lied to him,
    whose story was not inconsistent with his adamant
    assertion of innocence, and who made it clear that in
    no way, shape or form did he intend to take a plea
    bargain, that he wanted to go to trial and have his day
    in court.’’
    We agree with the habeas court and are not persuaded
    that the petitioner met his burden of establishing that
    Berke’s performance pertaining to accessorial liability
    was deficient. The authority cited in the respondent’s
    brief, namely, Crawford v. Commissioner of Correc-
    tion, 
    285 Conn. 585
    , 
    940 A.2d 789
     (2008), supports the
    respondent’s assertion that the petitioner did not estab-
    lish that Berke’s advice and investigation concerning
    accessorial liability was deficient.
    In Crawford, our Supreme Court concluded that the
    habeas court properly denied the petitioner’s ineffective
    assistance of counsel claim for failure to investigate
    ‘‘[b]ecause the petitioner did not admit until just before
    jury selection that he had been the driver of the vehicle
    . . . .’’ 
    Id., 599
    . Our Supreme Court further concluded
    that ‘‘[the petitioner’s] trial counsel’s attempt to develop
    a defense relating to misidentification was reasonable
    in light of the petitioner’s insistence that he had not
    been the driver of the vehicle.’’ 
    Id.,
     599–600. The facts
    in Crawford are analogous to those in the present case,
    where the petitioner failed to communicate to Berke
    that he was ‘‘driving the vehicle when [the victim] was
    shot . . . [t]hat [he] drove the shooter to the location
    . . . [he was] aware that [he was] driving the shooter
    to the location for the purpose of the shooter shooting
    [the victim]’’ and therefore ‘‘Berke proceeded on the
    belief that the petitioner was not involved in this shoot-
    ing . . . .’’ Here, as in Crawford, the petitioner contin-
    ued to claim that he was innocent throughout the
    discussions, the trial and sentencing, and it was not until
    after the petitioner was sentenced that Berke received a
    communication from the petitioner that was inconsis-
    tent with the prior information. In addition, the evidence
    at the habeas trial established only that Berke could
    not recall whether he had discussed accessorial liability
    with the petitioner.
    As defense counsel is presumed to have rendered
    adequate assistance unless deficient performance is
    affirmatively proven, the petitioner in the present case
    has failed to rebut this strong presumption with credible
    evidence. See Sanders v. Commissioner of Correction,
    
    83 Conn. App. 543
    , 551, 
    851 A.2d 313
    , cert. denied, 
    271 Conn. 914
    , 
    859 A.2d 569
     (2004). Because the petitioner
    failed to establish that Berke rendered deficient perfor-
    mance, his ineffective assistance of counsel claim fails.
    We thus conclude that the petitioner failed to demon-
    strate that his claim of ineffective assistance of counsel
    with respect to Berke’s performance pertaining to
    accessorial liability involved issues that are debatable
    amongst jurists of reason, that a court could resolve
    the issue in a different manner, or that the issue is
    adequate to deserve encouragement to proceed further.
    We, therefore, further conclude that the habeas court
    did not abuse its discretion in denying the petition for
    certification to appeal with respect to this claim.
    II
    The petitioner finally claims that the habeas court
    abused its discretion in denying his petition for certifica-
    tion to appeal because it improperly denied his claim
    of ineffective assistance of counsel with respect to
    DeSantis’ performance during the first habeas trial. As
    previously noted, to determine whether the habeas
    court abused its discretion in denying the petition for
    certification to appeal, this court will look at the under-
    lying merits of the petitioner’s claims. See Bozelko v.
    Commissioner of Correction, supra, 
    162 Conn. App. 721
    . As set forth in count one of the operative petition,
    the only allegation of deficient performance as to
    DeSantis is his failure to raise the issue of Berke’s
    ineffective assistance during the plea process. There-
    fore, the sole claim on appeal against DeSantis is the
    petitioner’s allegation that he provided ineffective assis-
    tance of counsel during the petitioner’s first habeas
    trial, by failing to raise the issue of the ineffective assis-
    tance of Berke.
    When a petitioner challenges the habeas court’s
    denial of his operative petition on the basis of ineffec-
    tive assistance of both his first habeas counsel and
    his criminal defense counsel, the petitioner must prove
    both that (1) his habeas counsel was ineffective and
    (2) his criminal defense counsel was ineffective.
    Lapointe v. Commissioner of Correction, supra, 
    113 Conn. App. 394
    . Therefore, we are ‘‘mindful that the
    petitioner’s [claim] related to his habeas counsel must
    fail if [his] claims of ineffective assistance of [his crimi-
    nal defense] counsel are unavailing.’’ Id., 395.
    As we previously concluded in part I of this opinion,
    the petitioner failed to establish his claim of ineffective
    assistance of Berke. Therefore, the petitioner cannot
    establish that DeSantis’ performance was deficient in
    failing to raise the claim of ineffective assistance as to
    Berke in the petitioner’s first habeas corpus proceeding
    because the petitioner did not establish the underlying
    claim on which that claim is predicated, i.e., that Berke’s
    representation constituted ineffective assistance.
    We thus conclude that the petitioner failed to demon-
    strate that his claim of ineffective assistance of counsel
    with respect to DeSantis involved issues that are debat-
    able amongst jurists of reason, that a court could
    resolve the issue in a different manner, or that the
    issue is adequate to deserve encouragement to proceed
    further. We, therefore, conclude that the habeas court
    did not abuse its discretion in denying the petition for
    certification to appeal with respect to this claim.
    The appeal is dismissed.
    In this opinion the other judges concurred.
    1
    The petitioner filed his first habeas petition alleging ineffective assistance
    of his defense counsel, Robert Berke, concerning Berke’s failure to file a
    ‘‘motion to suppress suggestive identification of prosecution’s chief witness’’
    and claiming that the communication between Berke and the petitioner fell
    below the standard of what a reasonable attorney would have exercised
    under similar circumstances. Following a trial, the habeas court denied the
    petition. The petitioner appealed from that denial, and we dismissed the
    appeal. Sanders v. Commissioner of Correction, 
    118 Conn. App. 905
    , 
    984 A.2d 122
     (2009). On August 2, 2010, the petitioner filed a second habeas
    petition, but that was withdrawn on November 6, 2012.
    2
    The petitioner also claims that his state and federal rights to due process
    of law were violated when Berke failed to properly advise him concerning
    the plea offer and accessory liability, and when DeSantis failed to raise the
    issue of ineffective assistance of counsel concerning Berke’s performance.
    In turn, the respondent, the Commissioner of Correction, in relying on Davis
    v. Commissioner of Correction, 
    160 Conn. App. 444
    , 455–56, 
    124 A.3d 992
    ,
    cert. denied, 
    319 Conn. 957
    , 
    125 A.3d 1012
     (2015), contends that the petition-
    er’s due process claim is unreviewable because the habeas court neither
    considered nor ruled on the merits of that claim and the petitioner failed
    to obtain a ruling on it. See 
    id.
     (declining to review claim when habeas
    court neither considered nor ruled on it and petitioner failed to alert the
    habeas court that ruling was inaccurate or incomplete). In the alternative,
    the respondent further argues that the petitioner also cannot obtain [review
    under State v. Golding, 
    213 Conn. 233
    , 239–40, 
    567 A.2d 823
     (1989), as
    modified by In re Yasiel R., 
    317 Conn. 773
    , 781, 
    120 A.3d 1188
     (2015)] of
    this unpreserved constitutional claim because it arises out of the criminal
    trial proceedings, and not the acts or omissions of the habeas court. See
    Mozell v. Commissioner of Correction, 
    291 Conn. 62
    , 67 n.2, 
    967 A.2d 41
    (2009) (Golding review available only where petitioner challenges actions
    of habeas court). We agree with the respondent.
    We also are not persuaded by the petitioner’s argument that his due
    process claim should be reversed pursuant to the plain error doctrine;
    see Practice Book § 60-5; or this court’s supervisory authority over the
    administration of justice. See Lacks v. Commissioner of Correction, 
    87 Conn. App. 225
    , 234, 
    866 A.2d 660
    , cert. denied, 
    273 Conn. 922
    , 
    871 A.2d 1027
     (2005). We disagree.
    Pursuant to our case law, a habeas petitioner cannot establish that the
    court abused its discretion in denying certification on issues not raised in
    the petition for certification to appeal. Kowalyshyn v. Commissioner of
    Correction, 
    155 Conn. App. 384
    , 389, 
    109 A.3d 963
    , cert. denied, 
    316 Conn. 909
    , 
    111 A.3d 883
     (2015). Accordingly, as the petitioner’s due process claim
    was raised in count two of his operative petition, the record does not provide
    any evidence that the habeas court determined and ruled on this claim. The
    petitioner stated his grounds for his request for certification to appeal as
    follows: ‘‘Whether [the] habeas court erred when it found that trial counsel
    was not ineffective when he discussed the strengths [and] weaknesses of
    the state’s case but did not advise the petitioner whether he should accept
    or reject the state’s plea offer . . . [and] such other claims of error found
    after a complete review of the record.’’ Therefore, ‘‘[b]ecause the petitioner
    failed to raise [his due process claim] in his petition for certification’’ to
    appeal; Kowalyshyn v. Commissioner of Correction, supra, 391; we decline
    to afford it review.
    3
    The petitioner also stated as a ground for appeal: ‘‘Such other claims of
    error found after a complete review of the record.’’ This claim, however, is
    meaningless because it does not provide the trial judge with notice. ‘‘It is
    well established that [w]e do not entertain claims not raised before the
    habeas court but raised for the first time on appeal. . . . The purpose of
    the [petition] is to put the [respondent, the Commissioner of Correction]
    on notice of the claims made, to limit the issues to be decided, and to
    prevent surprise.’’ (Citation omitted; internal quotation marks omitted.) Han-
    kerson v. Commissioner of Correction, 
    150 Conn. App. 362
    , 369, 
    90 A.3d 368
    , cert. denied, 
    314 Conn. 919
    , 
    100 A.3d 852
     (2014).
    4
    In Melendez v. Commissioner of Correction, supra, 
    151 Conn. App. 359
    ,
    this court concluded that counsel effectively and reasonably ‘‘provided the
    petitioner with adequate information and advice upon which the petitioner
    could make an informed decision as to whether he should accept the state’s
    initial five year plea offer.’’ With respect to this conclusion, this court noted
    that counsel specifically advised the petitioner to accept the plea offer. 
    Id.
    5
    As found by the first habeas court, ‘‘the petitioner and [Berke] agree
    that [Berke] did not recommend specifically the taking of any plea bargain.
    . . . Indeed, [Berke] did not recall the specifics of a plea, but that it was
    his custom, and in this instance he did not recommend the taking of a plea
    and that it was not his custom to recommend pleas one way or the other
    but to leave the decision to the client.’’
    During the habeas proceeding before Judge Fuger, the following exchange
    occurred between the petitioner’s counsel and Berke:
    ‘‘Q. [A]nd is—is it your practice to advise the client or give him advice
    as to whether or not he thinks it’s a good idea to take an offer or a bad
    idea to take an offer?
    ‘‘A. I never do.
    ‘‘Q. Okay. And could you explain to the court why you do that?
    ‘‘A. I present them the positive, the negatives of going to trial . . . the
    risks of trial, the maximum exposure. I don’t present my opinion on whether
    they should take an offer or not. That’s their decision. I’ve always maintained
    that that was their decision and not mine. I don’t influence clients on what
    decision they make. I do—I do present them, at least from a legal and factual
    opinion, the strengths and weaknesses of their case . . . by defense. . . .
    ‘‘Q. But your job is to give them professional legal advice as to whether
    or not they should take the plea or whether or not they should go to trial.
    ‘‘A. I don’t tell clients to take the plea.’’
    6
    In the habeas petition, the petitioner in Andrews claimed that ‘‘his trial
    counsel provided ineffective assistance by failing to recommend that he
    accept the plea offered by the trial court . . . .’’ Andrews v. Commissioner
    of Correction, supra, 
    155 Conn. App. 550
    . The habeas court, however, found
    that the petitioner failed to show that his trial counsel’s advice was deficient.
    Id., 551.
    7
    In addition, the testimony during the first habeas trial provides further
    insight into whether it was reasonably probable that such a plea offer would
    have been conditionally accepted, as Berke testified that he could not recall
    the exact details of the state’s plea offer and that ‘‘the issue of being a
    persistent offender [did] not come up until well into the game, the initial
    discussions and the pleas discussions did not include any reference that
    the state was going to charge him as a persistent offender.’’
    8
    In the operative petition, the petitioner made no explicit claim of ineffec-
    tive assistance of counsel as to accessorial liability, which he now raises
    on appeal.