Davis v. Commissioner of Correction ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
LARRY DAVIS v. COMMISSIONER OF CORRECTION
(AC 36364)
Beach, Mullins and Sullivan, Js.
Argued June 3—officially released October 13, 2015
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Lisa J. Steele, assigned counsel, for the appellant
(petitioner).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Michael Dear-
ington, state’s attorney, and David Clifton, assistant
state’s attorney, for the appellee (respondent).
Opinion
MULLINS, J. The petitioner, Larry Davis, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus.1 On appeal, the
petitioner claims that the court improperly concluded
that his trial counsel did not render ineffective assis-
tance by failing to educate himself sufficiently about
eyewitness identification research. We affirm the judg-
ment of the court.
In 2004, the petitioner was tried on charges arising
from three unrelated incidents, which were set forth in
three separate informations. He was convicted of the
charges set forth in two of those informations.2 ‘‘The
first information . . . pertained to a shooting that
occurred on September 28, 1998, in a parking lot located
near Yale-New Haven Hospital, during which Victoria
Standberry was wounded severely . . . . In connec-
tion with that incident, the [petitioner] was charged
with assault in the first degree in violation of General
Statutes §§ 53a-8 (a) and 53a-59 (a) (5), carrying a pistol
without a permit in violation of General Statutes (Rev.
to 1997) § 29-35, criminal possession of a firearm in
violation of General Statutes (Rev. to 1997) § 53a-217,
failure to appear in the first degree in violation of Gen-
eral Statutes § 53a-172 and, in a part B information,
being a persistent dangerous felony offender in viola-
tion of General Statutes (Rev. to 1997) § 53a–40 (a) and
(f). The second information . . . pertained to an armed
robbery of Lenwood E. Smith, Jr., that occurred on
January 25, 2002 . . . . In connection with that inci-
dent, the [petitioner] was charged with robbery in the
first degree in violation of General Statutes § 53a-134
(a) (4), larceny in the second degree in violation of
General Statutes § 53a-123 (a) (3) and, in a part B infor-
mation, being a persistent dangerous felony offender
in violation of General Statutes § 53a-40 (a) and (h).’’
State v. Davis, 286 Conn. 17, 20–21, 942 A.2d 373 (2008).
Our Supreme Court recounted the following facts
underlying the first information. ‘‘In September, 1998,
the first victim, [Standberry], had been introduced to
the [petitioner] by her best friend, Taraneisha Brown.
Brown and the [petitioner] were involved in a personal
relationship. On September 27, 1998, Standberry asked
Brown for payment toward a substantial debt owed by
Brown. Brown replied that she would return Standber-
ry’s telephone call but never did.
‘‘The next day, the [petitioner] received a telephone
call in the afternoon and left work early. On the evening
of September 28, 1998, Standberry parked her vehicle
in the Pro Park parking lot located near Yale-New Haven
Hospital (hospital), where she was employed in the food
and nutrition department. Brown knew that Standberry
parked in that particular lot when working at the hospi-
tal. Standberry left the hospital carrying a plate of food
at approximately 9:25 p.m. and went to her vehicle. As
she was placing the food in her vehicle, she observed
an individual approach. She attempted to close her
door, but it was forced open. The [petitioner] came up
to Standberry, said ‘revenge,’ and shot her several times
before slowly walking away. . . . Despite severe physi-
cal injuries, Standberry was able to drive her vehicle,
with the driver side door open and her injured leg hang-
ing outside of the vehicle, to the entrance of the chil-
dren’s hospital. An ambulance was summoned and
Standberry was rushed to the emergency room, where
she underwent several surgeries. Standberry testified
that a cadaver bone was inserted in her shoulder to
repair bone loss and nerve damage, and that two bullets
remain in her body, one in her hip and one in her knee.’’
(Citation omitted.) Id., 24.
Our Supreme Court recounted the following facts
underlying the second information. ‘‘The second victim,
[Smith], was at a club in New Haven on January 25, 2002.
After speaking with the [petitioner] for approximately
twenty minutes, he left at 2 a.m. The [petitioner] stopped
Smith in the parking lot and asked for a ride to Sheffield
Street. Smith agreed, and the [petitioner] and his friend
entered Smith’s vehicle. After arriving, the [petitioner]
asked Smith to drive them to Carmel Street, where an
individual known as ‘Mizzy’ owed him money. After
Smith drove to the bottom of a hill, the [petitioner] took
out a gun and threatened him. Smith continued on to
Carmel Street and parked. The [petitioner] placed his
gun against Smith’s head and demanded money. Smith
gave the [petitioner] his wallet and told him that he
could get more from an automated teller machine.
Smith drove to a nearby bank and, after parking, fled
to a nearby gas station. Smith telephoned the police
and showed them the bank parking lot where he had
left his vehicle. The police recovered Smith’s vehicle
approximately one week later.’’ Id., 25.
The petitioner was convicted of every charge set forth
in both informations. Id., 22. ‘‘In a subsequent trial on
the accompanying part B informations, the jury found
the [petitioner] guilty of two counts of being a persistent
dangerous felony offender. The trial court rendered
judgment in accordance with the jury’s verdict, and
imposed a total effective sentence of eighty years
imprisonment.’’ Id., 22–23. We affirmed the petitioner’s
convictions; see State v. Davis, 98 Conn. App. 608, 638,
911 A.2d 753 (2006); and our Supreme Court then
affirmed the judgment of this court. See State v. Davis,
supra, 286 Conn. 38.
Following the affirmance of his conviction, the peti-
tioner filed a petition for a writ of habeas corpus. In
the operative second revised and first amended petition,
the petitioner pleaded, inter alia, that his trial counsel
performed deficiently because he (1) ‘‘failed to retain
an expert on eyewitness identification to analyze the
statements and circumstances, and review the identifi-
cation issues of the identifications,’’ (2) ‘‘failed to chal-
lenge the photo array identification methods employed
to identify [the] [p]etitioner,’’3 and (3) ‘‘did not himself
or through an expert make clear’’ that certain factors
could impact the reliability of the identifications of
the perpetrator.4
The habeas court, Cobb, J., held a hearing on the
petition for a writ of habeas corpus after which, through
a memorandum of decision, it denied the petition. In
its decision, the court construed the petitioner’s claim
to be one alleging that his trial counsel was ‘‘ineffective
for failing to retain and use an expert on eyewitness
identification.’’ In other words, the court interpreted
the petitioner’s claim as one in which counsel was inef-
fective for failing to retain and present an expert witness
at trial. The court rejected this claim.
In particular, the court observed that ‘‘[a]t the time
of the petitioner’s trial in 2004, experts on eyewitness
identifications were not generally admissible at trial,
and in fact, were disfavored by our courts.’’ The habeas
court concluded: ‘‘The petitioner ha[d] not proved that
trial counsel’s failure to present an expert witness at
trial was deficient in view of the law on the admissibility
of expert testimony in 2004. In addition, given that the
law disfavored expert testimony at the time of the peti-
tioner’s trial, the petitioner ha[d] not proved that had
trial counsel attempted to call an expert witness at trial,
the court was likely to have admitted such testimony.
Furthermore, given the circumstances of the identifica-
tions in this case, and that the victims were familiar
with the petitioner,5 the petitioner ha[d] not proved that
such testimony would have altered the result of the
trial.’’ (Footnote added.) This appeal followed.
On appeal, the petitioner claims that his ‘‘trial counsel
provided ineffective assistance . . . when he failed to
educate himself about eyewitness identification
research.’’ According to the petitioner, ‘‘without con-
sulting an expert, or otherwise educating himself about
eyewitness research, [his counsel] was ill-prepared to
provide a framework for the jury to understand the
flawed eyewitness identifications . . . through cross-
examination and summation.’’ The state contends that
‘‘[t]hese . . . claims are not reviewable because they
were not clearly [pleaded] in the habeas petition’’ and
‘‘the habeas court did not rule on them.’’ We agree with
the state.
Before we turn to the petitioner’s claim, we set forth
the legal principles relevant to this case. ‘‘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 prin-
ciple that a [petitioner] may rely only upon what he has
alleged is basic. . . . It is fundamental in our law that
the right of a [petitioner] 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 dis-
cretion to look beyond the pleadings and trial evidence
to decide claims not raised. . . . 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 com-
pelled to consider issues neither alleged in the habeas
petition nor considered at the habeas proceeding
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Greene v. Commissioner of Correction, 131
Conn. App. 820, 822, 29 A.3d 171 (2011), cert. denied,
303 Conn. 936, 36 A.3d 695 (2012).
Here, in his second revised and first amended peti-
tion, the petitioner included no distinct allegation that
his trial counsel provided ineffective assistance by fail-
ing to educate himself about eyewitness identification
research by consulting with an expert. His allegations,
as alleged in the operative petition, were that his trial
counsel’s performance was deficient because he (1)
‘‘failed to retain an expert on eyewitness identification
to analyze the statements and circumstances, and
review the identification issues . . . [even] though the
testimony of the eyewitnesses was the only direct evi-
dence of alleged wrongdoing by [the] [p]etitioner’’; (2)
‘‘did not himself or through an expert make clear’’ fac-
tors that lessen the reliability of eyewitness identifica-
tions; and (3) ‘‘failed to [properly] challenge the photo
array identification methods employed to identify [the]
[p]etitioner . . . .’’ The petitioner claims that these
allegations included both a claim that trial counsel
failed to call an expert witness at the criminal trial6 and
a separate and distinct claim that trial counsel failed
to sufficiently educate himself regarding eyewitness
identification, including not consulting with an expert.
A plain reading of these allegations demonstrates, how-
ever, that none of them states clearly that his counsel
was ineffective for failing to consult with an expert in
order to educate himself on eyewitness identification.
Indeed, the allegation regarding counsel’s ‘‘fail[ure]
to retain an expert on eyewitness identification’’ is
ambiguous at best. It is unclear whether this allegation
means that the petitioner’s trial counsel failed to retain
an identification expert for consultation to educate him-
self, or, as the habeas court determined, failed to retain
an expert to use as a witness at trial, or both. The
petitioner never made it clear to the habeas court that
this allegation was, in actuality, two different claims,
and that one of those claims was a failure of trial counsel
to self-educate regarding identification issues, including
consultation with an expert. See Grant v. Commis-
sioner of Correction, 121 Conn. App. 295, 301–302, 995
A.2d 641 (‘‘[t]he ambiguous pleadings . . . and the fail-
ure of the petitioner to advise the court of her theory
during the habeas trial provide a sufficient legal basis
to affirm the court’s dismissal of [the pertinent] count
. . . of the habeas petition’’), cert. denied, 297 Conn.
920, 996 A.2d 1192 (2010). Therefore, the petitioner’s
claim regarding counsel’s self-education through con-
sultation with an expert certainly was not distinctly
raised in this allegation of the petition. See Thiersaint
v. Commissioner of Correction, 316 Conn. 89, 126, 111
A.3d 829 (2015) (‘‘[a]ppellate review of newly articu-
lated claims not raised before the habeas court would
amount to an ambuscade of the [habeas] judge’’ [inter-
nal quotation marks omitted]).
We similarly are unconvinced that the petitioner’s
allegations that his trial counsel ‘‘did not himself or
through an expert make clear’’ issues regarding identifi-
cation or that his trial counsel ‘‘failed to [properly]
challenge the photo array identification methods
employed to identify [the] [p]etitioner . . . by
Standberry . . . and Smith’’ distinctly raised a claim of
failure of his trial counsel to educate himself regarding
eyewitness identification issues, including consulting
with an expert. Significantly, both of those allegations
were made in subsection F (iii) of the habeas petition.
This subsection most reasonably could be interpreted
to address only the claim pertaining to his trial counsel’s
failure to use expert testimony at trial. For example,
after making these allegations, the petitioner concluded
the subsection with the following: ‘‘[Trial counsel] failed
to employ an expert to testify as to . . . identification
issues’’ relating to the photographic array identification
in the Standberry case. (Emphasis added.)
In fact, at no point in this subsection, or elsewhere
in the petition, did the petitioner also allege that his
counsel failed to educate himself on identification
issues, including consultation with an expert, nor that
such a failure amounted to deficient performance. Both
allegations, thus, appear to be part of, and support for,
his claim regarding the failure to call an expert witness
at trial. Even more to the point, the petitioner never
made it clear to the habeas court that these two allega-
tions were in fact raising two different claims of ineffec-
tive assistance: one relating to the failure of his counsel
to call an expert at trial, and another pertaining to his
counsel’s failure to educate himself.
In sum, the petitioner did not distinctly allege in his
habeas petition a failure of trial counsel to self-educate
by consulting with an expert. Critically, the petitioner
never advised the habeas court that such a claim was
embedded within his other allegations, nor did he chal-
lenge the court’s understanding of his claim solely as
being a failure to call an identification expert as a wit-
ness at trial. See Grant v. Commissioner of Correction,
supra, 121 Conn. App. 301–302. Put simply, the petition-
er’s claim raised on appeal was not distinctly raised
before the habeas court. As such, that claim is unre-
viewable.7
Furthermore, the habeas court never considered or
ruled on a distinct claim that trial counsel was ineffec-
tive for failing to consult with an expert witness. Rather,
the court construed the petitioner’s claim as alleging
that counsel was ineffective for ‘‘failing to retain and
use an expert on eyewitness identification’’; (emphasis
added); and determined that the failure of the petition-
er’s counsel to call such an expert to testify at trial did
not amount to ineffective assistance. The court noted
that the law at the time of the 2004 criminal trial disfa-
vored the admissibility of expert testimony on eyewit-
ness identification8 and observed that it was unlikely
that such testimony would have been permitted at the
petitioner’s criminal trial. The habeas court determined
that the petitioner’s trial counsel ‘‘did not retain or use
such an expert because he did not think it would be
persuasive, even if admitted by the trial court in its
discretion, and instead used cross-examination to
underscore inconsistencies in eyewitness statements
and testimony.’’ (Emphasis added.) In addition, the
court concluded that, because Standberry and Smith
were familiar with the petitioner prior to the respective
crimes, ‘‘the petitioner ha[d] not proved that such testi-
mony would have altered the result of the trial.’’
(Emphasis added.) The court, thus, concluded that the
failure of the petitioner’s counsel to use the testimony
of an identification expert at trial did not amount to
ineffective assistance.
Following the issuance of the memorandum of deci-
sion, the petitioner made no effort to alert the court
that it may have misconstrued any of his allegations of
ineffective assistance of his trial counsel. More specifi-
cally, the petitioner never informed the court that his
current claim regarding the failure to self-educate was
subsumed within other allegations of his petition. And,
despite the fact that he now claims on appeal that he
alleged this claim in his petition, our reading of the
habeas court’s decision shows that it never ruled on
this distinct claim.9 Accordingly, to the extent that the
habeas court construed the petitioner’s allegations in a
way that the petitioner deems inaccurate or incomplete,
the failure of the petitioner to clarify for the habeas
court his allegations is fatal to his claim. See id.,301–302.
The habeas court construed the petition as alleging
that the failure of the petitioner’s trial counsel to use
the testimony of an identification expert amounted to
deficient performance, and it rejected that claim. It
never ruled on the merits of the claim the petitioner
raises in this appeal, namely, that his trial counsel’s
performance was deficient because he failed to educate
himself sufficiently about eyewitness identification
research, including not consulting with an expert. We,
therefore, are unable to review the merits of the peti-
tioner’s claim. See Henderson v. Commissioner of Cor-
rection, 129 Conn. App. 188, 198, 19 A.3d 705 (‘‘[a]
reviewing court will not consider claims not raised in
the habeas petition or decided by the habeas court’’),
cert. denied, 303 Conn. 901, 31 A.3d 1177 (2011).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court granted the petitioner’s petition for certification to
appeal.
2
The third information pertained to an armed robbery of Leonard Hughes
that was alleged to have occurred on March 13, 2002. The petitioner was
acquitted of the charges in that information.
3
In his claim pertaining to photographic array identifications, the peti-
tioner alleged: ‘‘(1) the photographs were shown to . . . Standberry [and]
Smith . . . by the police simultaneously rather than sequentially; (2) after
advising . . . Standberry [and] Smith . . . that the perpetrator may or may
not be in the photograph array, the police provided . . . Standberry [and]
Smith . . . with a form that did not contain a line on which the witness
could indicate that the array does not include the perpetrator; and (3) the
police did not use a ‘double-blind’ identification procedure, that is, one in
which the person administering the procedure does not know the identity
of the suspect . . . .’’
4
The petitioner alleged that his trial counsel did not sufficiently challenge
the identification of the perpetrator by Standberry and Smith because he
‘‘did not himself or through an expert make clear the following: (1) the
perpetrator’s use of a disguise can impair the ability of . . . Standberry to
make an accurate identification (disguise effect); (2) under the principle of
‘unconscious transference,’ a witness is more likely to identify a person as
the perpetrator if that person looks familiar to the witness; (3) a witness
tends to focus on the perpetrator’s weapon instead of on the perpetrator,
thereby reducing the likelihood of an accurate identification (weapons use
effect); (4) there is little or no correlation between the reliability of an
identification and the witness’ confidence in the identification; (5) a witness
who is under stress while observing the commission of the crime is less
likely to make an accurate identification of the perpetrator; and (6) witness
collaboration can adversely affect the reliability of an identification.’’
5
In addition to adopting the facts outlined by the Supreme Court, the
habeas court found the following additional relevant facts. Both Standberry
and Smith ‘‘knew or were familiar with the petitioner at the time of the
incidents. . . . Standberry had met the petitioner at her friend Taraneisha
Brown’s house a week or two before the shooting and spoke with him for
five to ten minutes. . . . Smith met the petitioner at a club where he thought
the petitioner was familiar and then spoke with him for approximately twenty
minutes before he and the petitioner left the club and got in Smith’s car.’’
6
The state asserts that the petitioner has abandoned any claim that his
trial counsel rendered ineffective assistance in failing to call an expert
witness to testify at the criminal trial. We agree that such a claim is not
briefed or contained in the petitioner’s statement of the issues.
7
The petitioner claims that the arguments he made in his posttrial brief
to the habeas court demonstrate that he had raised the claim that his
counsel’s performance was deficient because he failed to consult with an
identification expert. We disagree. Claims raised for the first time in posttrial
briefs are not reviewable by the habeas court or by this court on appeal.
See Holley v. Commissioner of Correction, 62 Conn. App. 170, 181, 774
A.2d 148 (2001) (no review of claim raised for first time in posttrial brief);
Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 406–407, 726
A.2d 657 (finding that habeas court improperly reviewed claim raised for
first time in posttrial brief), cert. denied, 249 Conn. 920, 733 A.2d 233 (1999).
8
Although at the time of the petitioner’s criminal trial Connecticut did
not have a ‘‘per se bar to the admission of expert testimony on the reliability
of eyewitness identifications . . . [at that time] courts consistently [had]
barred the use of such expert testimony . . . reasoning [that] beause . . .
the substance of that testimony is known to the average juror, the testimony
would encroach unduly on the jury’s responsibility to determine what weight
to give the eyewitness testimony, and other means, including cross-examina-
tion and closing argument of counsel, are sufficient to apprise jurors of any
potential weakness in the particular eyewitness identification at issue.’’ State
v. Outing, 298 Conn. 34, 98–99, 3 A.3d 1 (2010) (Palmer, J., concurring),
cert. denied, 562 U.S. 1225, 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011); see
also State v. Guilbert, 306 Conn. 218, 232–33, 49 A.3d 705 (2012) (discussing
history and reasoning behind routine exclusion of eyewitness identification
expert testimony by Connecticut courts).
9
We note that the petitioner did file a motion for articulation in which
he ‘‘request[ed] that the habeas court indicate whether it considered the
ineffectiveness of his appellate counsel to challenge State v. King, [187
Conn. 292, 445 A.2d 901 (1982), overruled by State v. Payne, 303 Conn. 538,
541–42, 34 A.3d 370 (2012)] and, if so, the court’s ruling on said issue, or,
if not, the reason why the court did not consider this issue.’’ The petitioner,
thus, was fully aware that mechanisms exist by which he could have
attempted to clarify any ambiguity in the habeas court’s ruling.