Arroyo v. Commissioner of Correction , 172 Conn. App. 442 ( 2017 )

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REYNALDO ARROYO v. COMMISSIONER
OF CORRECTION
(AC 38431)
Alvord, Mullins and Norcott, Js.
Argued January 19—officially released April 25, 2017
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Moira L. Buckley, assigned counsel, for the appel-
lant (petitioner).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Angela R. Macchiarulo and Michael J.
Proto, senior assistant state’s attorneys, for the appel-
lee (respondent).
Opinion
ALVORD, J. The petitioner, Reynaldo Arroyo, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his petition for a writ of habeas corpus. The petitioner
claims that the court (1) abused its discretion in denying
his petition for certification to appeal and (2) improp-
erly concluded that his trial counsel did not provide
ineffective assistance and that his claim of prosecutorial
impropriety was procedurally defaulted. Because the
petitioner has failed to demonstrate that the habeas
court abused its discretion in denying his petition for
certification to appeal, we dismiss the appeal.
The following factual and procedural history is rele-
vant to this appeal. In March, 2001, the petitioner, a
crack cocaine addict, lived with his girlfriend, Sherry
Krick, in her apartment in a condominium complex in
Middletown. Richmond L. Perry, a crack cocaine dealer,
lived in the same condominium complex. The petitioner
knew Perry and often acted as a ‘‘runner,’’ or intermedi-
ary, for him in his drug dealing business.
In the afternoon of March 28, 2001, at approximately
2 p.m., the petitioner asked his neighbor, Charles Smith,
if he could borrow money, promising to pay the money
back after he went on ‘‘a mission.’’ Later that evening,
at about 8 p.m., the petitioner and Perry drove to Mike’s
Package Store in Middlefield. While in the store, an
argument ensued between the petitioner, Perry, and the
owner of the store, Edmund Caruso. As the argument
escalated, Perry drew a nine millimeter firearm. In
response, Caruso grabbed his tear gas canister and
sprayed it at Perry and the petitioner. Perry then shot
Caruso several times, and Caruso subsequently died as
a result of his wounds. Following the shooting, the
petitioner and Perry fled from the scene with the pack-
age store’s cash register.
When they returned to their condominium complex,
Perry first went home to change his clothing, which
was covered in tear gas, and to shower. After showering,
the petitioner and Perry wrapped the register in the
petitioner’s blanket and carried it into his and Krick’s
apartment, where the petitioner used a screwdriver to
open it. The petitioner and Perry divided the proceeds
from the register and then hid it behind the bedroom
dresser.
That same evening, the petitioner and Perry offered
to sell Smith the firearm that they used in the robbery,
but he declined to purchase it. The petitioner subse-
quently arranged to sell the firearm to Juan Cruz,
another crack cocaine dealer with whom he was associ-
ated. On March 31, 2001, the petitioner and Perry met
with Cruz and sold him the firearm, assuring him that
it was ‘‘clean,’’ i.e., not associated with any crimes.1
In the days following the robbery, the petitioner
spoke to Smith about the result of his ‘‘mission.’’ Two
or three days after the robbery, Smith visited Krick’s
apartment. The petitioner showed Smith the register
behind the bedroom dresser and told him that ‘‘it was
from his mission, but he had to get rid of it.’’ Sometime
thereafter, Smith saw the petitioner throw the register
into the dumpster outside the condominium complex.
The petitioner later told Smith that ‘‘things went bad
when he went to do that mission. Things went bad. The
old man got killed. No one meant for the old man to
get killed.’’
During the course of the investigation of the robbery,
the petitioner made several written and oral statements
to the police.2 The petitioner admitted to knowing
details about the robbery, but he insisted that Perry
committed the robbery and murder and told him about
it afterward. Nevertheless, the petitioner acknowledged
that Perry came to Krick’s apartment with the register
after the robbery. He also admitted that he (1) broke
open the register with his screwdriver, (2) shared the
cash proceeds from the register with Perry, (3) hid the
register behind the dresser in his and Krick’s bedroom,
(4) disposed of the register in a dumpster outside of
his and Krick’s apartment, and (5) facilitated and partic-
ipated in the sale to Cruz of the firearm used during
the robbery.
Thereafter, the petitioner was charged with felony
murder, murder, robbery in the first degree, larceny in
the fifth degree, and conspiracy to commit robbery in
the first degree. While incarcerated and awaiting trial,
the petitioner made statements to two inmates in which
he admitted to participating in the robbery with Perry
and described what happened during and after the rob-
bery. To one of these inmates, who was the petitioner’s
friend and former roommate, the petitioner further
expressed his concern that his alibi witnesses, Krick
and a ‘‘married guy,’’3 were not corroborating his story
about being home the evening of the robbery.
After a trial, the jury found the petitioner guilty of
felony murder, larceny in the fifth degree, and conspir-
acy to commit robbery in the first degree. The jury
found him not guilty, however, of murder and robbery
in the first degree, which were the only counts in which
the petitioner was charged with personally possessing
the firearm or shooting the victim.4 State v. Arroyo, 292
Conn. 558, 561–62, 973 A.2d 1254 (2009), cert. denied,
559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010).
The court thereafter rendered judgment accordingly
and sentenced the petitioner to a total effective term
of sixty years imprisonment. The petitioner’s conviction
was affirmed on direct appeal. Id., 561.
The petitioner initiated this habeas action on April
8, 2010. On March 13, 2013, the petitioner filed a six
count amended petition. Relevant to this appeal, the
petitioner claimed that his trial counsel rendered inef-
fective assistance by not (1) offering Perry’s plea hear-
ing transcript as an exhibit; (2) presenting the testimony
of an expert witness; and (3) offering ‘‘a depiction of the
floor plan and/or physical layout’’ of Krick’s apartment.
Additionally, the petitioner claimed that the prosecutor
committed certain improprieties during her case-in-
chief and closing argument by soliciting and utilizing
Perry’s false trial testimony concerning his plea
agreement with the state. After a two day trial, the
habeas court denied the petition for a writ of habeas
corpus and the petition for certification to appeal. This
appeal followed.
The petitioner claims that the habeas court abused
its discretion by denying his petition for certification
to appeal and erred by denying his claims of ineffective
assistance of trial counsel and prosecutorial impropri-
ety. We conclude that the habeas court did not abuse
its discretion by denying the petition for certification
to appeal.
‘‘We begin by setting forth the applicable standard
of review and procedural hurdles that the petitioner
must surmount to obtain appellate review of the merits
of a habeas court’s denial of the habeas petition follow-
ing denial of certification to appeal. In Simms v. War-
den, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our
Supreme Court] concluded that . . . [General Stat-
utes] § 52-470 (b) prevents a reviewing court from hear-
ing the merits of a habeas appeal following the denial of
certification to appeal unless the petitioner establishes
that the denial of certification constituted an abuse of
discretion by the habeas court. In Simms v. Warden, 230
Conn. 608, 615–16, 646 A.2d 126 (1994), [our Supreme
Court] incorporated the factors adopted by the United
States Supreme Court in Lozada v. Deeds, 498 U.S. 430,
431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as
the appropriate standard for determining whether the
habeas court abused its discretion in denying certifica-
tion to appeal. This standard requires the petitioner to
demonstrate that the issues 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 encouragement to proceed further. . . . A
petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . 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 reason-
ably determined that the petitioner’s appeal was frivo-
lous. . . .
‘‘The conclusions reached by the trial court in its
decision to dismiss [a] habeas petition are matters of
law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record. . . . To the extent
that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous . . . . [A] finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Citation omit-
ted; emphasis in original; internal quotation marks
omitted.) Brewer v. Commissioner of Correction, 162
Conn. App. 8, 12, 130 A.3d 882 (2015). Having set forth
the standard of review, we will consider the merits of
the claims raised by the petitioner.
I
We begin by addressing the petitioner’s two claims
relating to Perry’s plea agreement with the state. First,
the petitioner claims that the habeas court erroneously
concluded that trial counsel did not render ineffective
assistance when he failed to offer Perry’s plea hearing
transcript as an exhibit. Second, the petitioner claims
that the habeas court erroneously concluded that his
prosecutorial impropriety claim was procedurally
defaulted. That second claim was based on the prosecu-
tor’s alleged solicitation and use during the state’s case-
in-chief and closing argument of Perry’s false testimony
concerning his plea agreement. The petitioner contends
that the procedural default was cured by good cause,
namely, ineffective assistance of trial counsel in failing
to raise a claim of prosecutorial impropriety at trial and
sentencing and in failing to preserve this issue for direct
appeal. We disagree.
The following additional facts are relevant to both
of these claims. On January 21, 2003, Perry pleaded
guilty to felony murder and robbery in the first degree.
During her recitation of the factual basis for the guilty
pleas, the prosecutor, who was also prosecuting the
petitioner’s case, did not indicate which of the two
defendants the state believed committed the shooting;
instead, she stated that ‘‘Mr. Caruso was shot and killed
by one of the participants in the robbery . . . who was
Mr. Perry or Mr. Arroyo.’’5 After setting forth the factual
basis for the pleas, the prosecutor explained that she
had agreed to recommend a sentence of ‘‘forty-five
years to serve.’’ She emphasized that ‘‘our offer of forty-
five years is predicated and based on [Perry’s]
agreement to testify in a truthful manner only regarding
Mr. Arroyo’s participation in the robbery . . . .’’
During the court’s canvass, Perry repeatedly con-
firmed that he understood that the recommended sen-
tence of forty-five years was contingent on his truthful
testimony at the petitioner’s criminal trial. After the
court accepted Perry’s guilty pleas, Perry’s counsel
asked the prosecutor to clarify what the state’s defini-
tion of truthful was, and the court asked the prosecutor
whether Perry’s last statement6 ‘‘was essentially the
truth.’’ The prosecutor agreed that the last statement
was ‘‘essentially the truth,’’ and then she further clari-
fied: ‘‘The state’s understanding of the truth is that Mr.
Perry participated in the robbery, which led to the death
of Mr. Caruso, in conjunction of Mr. Arroyo.’’
On December 1 and 2, 2004, Perry testified at the
petitioner’s criminal trial. During direct examination,
Perry confirmed that the prosecutor was also prosecut-
ing him for his involvement in the robbery and that
although he had pleaded guilty to two offenses, he had
not been sentenced. Perry also confirmed that he was
going to receive a forty-five year sentence, that there
was no chance that the state would recommend less
than forty-five years, and that a condition of him receiv-
ing ‘‘the forty-five year offer’’ was not that he identify
the petitioner as the shooter.
Trial counsel began his cross-examination by high-
lighting that although Perry pleaded guilty to felony
murder and robbery in the first degree, he still had four
pending charges against him—murder, conspiracy to
commit robbery in the first degree, larceny in the fifth
degree, and violation of probation.7 Trial counsel dis-
cussed with Perry the fact that his sentencing had been
postponed until after his testimony in the petitioner’s
trial and that, unless he testified ‘‘in a manner satisfac-
tory to the state,’’ he will not receive a forty-five year
sentence. Perry disagreed with trial counsel’s assertion
that receiving a forty-five year sentence was contingent
on his having testified at the petitioner’s trial and
insisted that forty-five years was ‘‘going to be on the
table no matter what.’’
Thereafter, trial counsel thoroughly and systemati-
cally reviewed with Perry the maximum term of impris-
onment authorized for each of the five crimes with
which he was charged in connection with his involve-
ment in the robbery. Trial counsel emphasized at the
beginning and end of this lengthy analysis that Perry’s
maximum sentencing exposure for all of these crimes
was 185 years imprisonment. Trial counsel further
observed that ‘‘forty-five years would be only about a
quarter of 185.’’
Beginning with this early exchange, a theme emerged
over the course of trial counsel’s lengthy cross-examina-
tion. Perry consistently maintained that there was no
‘‘deal’’ and that a forty-five year sentence was always
‘‘on the table,’’ and trial counsel repeatedly highlighted
for the jury Perry’s actual maximum sentencing expo-
sure, the number of serious charges pending against
him, and the fact that a sentence of forty-five years was
contingent on Perry’s testimony for the state.8
When, toward the end of trial counsel’s cross-exami-
nation, Perry continued to deny that he was receiving
a ‘‘deal,’’ trial counsel observed that ‘‘there was a discus-
sion right out here in the public record, in the open
court, about what you would have to do to get this
sentence.’’ Trial counsel then discussed with Perry the
prosecutor’s statements about his plea agreement at
his guilty plea hearing while presenting Perry with and
reading aloud from Perry’s guilty plea hearing tran-
script.9 Trial counsel did not identify for the jury, how-
ever, the document he was showing Perry as Perry’s
guilty plea hearing transcript, nor did trial counsel offer
it as an exhibit.
On redirect examination, the prosecutor asked Perry:
‘‘Defense attorney asked you if you were getting forty-
five years for your truthful cooperation,’’ and Perry
agreed. The prosecutor then asked Perry to confirm
that the sentence was forty-five years and that there
was ‘‘[n]ot a possibility . . . that I’m going to recom-
mend any less of that sentence . . . ?’’ Perry agreed
with the prosecutor’s statements and then said: ‘‘Forty-
five years always been on the table. I could of seen if
you came with forty-four years, I would have thought
that was a deal. Common sense will tell you that forty-
five, forty-five years has been on the table the whole
time. That’s not a deal.’’ The prosecutor did not correct
Perry’s false assertion that there was no deal; she stated
that she had no further questions.
During summation, trial counsel and the prosecutor
commented on Perry’s plea agreement with the state.
Trial counsel utilized Perry’s staunch refusal ‘‘to
acknowledge he was getting any benefit at all’’ or the
extent of his participation in the robbery to demonstrate
Perry’s lack of credibility. In particular, trial counsel
referred to how, when he presented Perry with the
transcript from his plea hearing, in which the prosecu-
tor indicated that he would be sentenced to forty-five
years imprisonment for testifying truthfully against the
petitioner, Perry continued to refuse to acknowledge
the benefit he was receiving.10 During her rebuttal argu-
ment, the prosecutor responded that an agreement to
a sentence of forty-five years imprisonment was not
much of a benefit in light of Perry’s young age and the
fact that he will have to spend the next forty-five years
in prison with fellow inmates knowing that he testified
against his codefendant.
During its final charge to the jury, the court included
a special credibility instruction concerning Perry’s testi-
mony. In relevant part, the court admonished the jury
that it should ‘‘carefully scrutinize the testimony of
Richmond Perry’’ and ‘‘keep in mind that he may, in his
own mind, be looking for or hoping for some favorable
treatment in the sentence or disposition of his own
case. And that therefore he may have such an interest
in the outcome of this case that his testimony may have
been colored by that fact. Therefore, then, you must
look with particular care at the testimony of an accom-
plice and scrutinize it very carefully before you
accept it.’’
In his habeas petition, the petitioner alleged that trial
counsel rendered ineffective assistance when he failed
to offer Perry’s plea hearing transcript as an exhibit.
Additionally, the petitioner claimed that the prosecutor
committed certain improprieties during her case-in-
chief and closing argument by soliciting and utilizing
Perry’s false testimony concerning the nature and exis-
tence of his plea agreement. In his return, the respon-
dent, the Commissioner of Correction, pleaded that the
petitioner’s claim of prosecutorial impropriety was pro-
cedurally defaulted because it was not raised before
the trial court or on appeal. In his reply, the petitioner
argued that ‘‘[a]ny alleged procedural default is cured
by good cause and prejudice,’’ namely, ineffective assis-
tance of trial counsel.11
At the habeas trial, the petitioner called his trial coun-
sel as a witness. Trial counsel recalled that ‘‘Perry
insisted that forty-five [years] was on the table and
that’s always been on the table,’’ and he agreed that
Perry’s testimony in that respect was inaccurate. Trial
counsel further acknowledged that during cross-exami-
nation he used Perry’s plea hearing transcript to refresh
Perry’s recollection but he did not offer it as an exhibit,
even though he could have offered it as impeachment
evidence or substantively as a Whelan statement. 12 Trial
counsel explained, however, that because he cross-
examined Perry extensively on his truthfulness and
Perry repeatedly admitted that he lied to the police in
his written statements, ‘‘[i]t got to the point where it
was becoming tedious . . . for the jury to even hear it.’’
In its memorandum of decision, the habeas court
rejected the petitioner’s claim of ineffective assistance
of counsel and determined that his claim of prosecu-
torial impropriety was procedurally defaulted. With
respect to the claim of ineffective assistance of counsel,
the habeas court assumed, arguendo, that trial counsel
rendered deficient performance by not offering Perry’s
plea hearing transcript as an exhibit. The court further
held that the petitioner failed to satisfy the prejudice
prong of Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), because its
‘‘confidence in the jury’s verdict remain[ed] high despite
the inaccuracy of Perry’s description of his plea
agreement.’’ With respect to the petitioner’s claim that
the prosecutor committed certain improprieties by fail-
ing to correct Perry’s misrepresentation of his plea
agreement, the court held that the claim was procedur-
ally defaulted because ‘‘[t]he petitioner submitted no
evidence of any good cause justifying his failure to
assert any previously omitted trial misconduct claim at
trial or on appeal.’’
A
The petitioner argues that trial counsel rendered inef-
fective assistance when he failed to offer Perry’s plea
hearing transcript as an exhibit because the transcript
demonstrates that (1) Perry’s plea agreement was con-
tingent on his having testified ‘‘truthfully’’ at the peti-
tioner’s criminal trial; (2) the state’s definition of
‘‘truthfully’’ required Perry to identify the petitioner as
the shooter; (3) Perry had a significant incentive to lie
and to identify the petitioner as the shooter at trial; and
(4) ‘‘the prosecutor was willing to give the jury the
wrong impression, by soliciting and eliciting false testi-
mony and then perpetuating it in summation, about a
plea deal that was critical to the key witness’ credibil-
ity.’’ The respondent replies that in light of the totality
of the evidence before the jury, the petitioner cannot
prove there is a reasonable probability that but for trial
counsel’s alleged errors the result of the proceeding
would have been different. We agree with the
respondent.
To succeed on a claim of ineffective assistance of
counsel, a petitioner must satisfy the two-pronged test
articulated in Strickland v. Washington, supra, 466 U.S.
687. Strickland requires that a petitioner satisfy both
a ‘‘performance prong’’ and a ‘‘prejudice prong.’’ To
satisfy the performance prong, ‘‘a [petitioner] must
show that counsel’s conduct fell below an objective
standard of reasonableness for competent attorneys [as
measured by prevailing professional norms].’’ Davis v.
Commissioner of Correction, 319 Conn. 548, 555, 126
A.3d 538 (2015), cert. denied sub nom. Semple v. Davis,
U.S. , 136 S. Ct. 1676, 194 L. Ed. 2d 801 (2016);
Iovieno v. Commissioner of Correction, 242 Conn. 689,
703, 699 A.2d 1003 (1997). To satisfy the prejudice
prong, ‘‘a [petitioner] must show a reasonable probabil-
ity that the outcome of the proceeding would have been
different but for counsel’s errors.’’ Davis v. Commis-
sioner of Correction, supra, 555. ‘‘The claim will suc-
ceed only if both [Strickland] prongs are satisfied. . . .
It is well settled that [a] reviewing court can find against
a petitioner on either ground, whichever is easier.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) Small v. Commissioner of Correc-
tion, 286 Conn. 707, 713, 946 A.2d 1203, cert. denied
sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481,
172 L. Ed. 2d 336 (2008).
We are not persuaded that there is a reasonable prob-
ability that had the jury been presented with Perry’s
plea hearing transcript the outcome of the petitioner’s
criminal trial would have been different. As our
Supreme Court observed on direct appeal, the state
presented ‘‘strong evidence that the [petitioner] had
participated in the robbery.’’ State v. Arroyo, supra, 292
Conn. 575. The petitioner admitted to the police that
he (1) broke open the register with his screwdriver, (2)
shared the cash proceeds from the register with Perry,
(3) hid the register behind the dresser in his and Krick’s
bedroom, (4) disposed of the register in a dumpster
outside of his and Krick’s apartment, and (5) facilitated
and participated in the sale of the firearm used during
the robbery to shoot the victim. Although the petitioner
maintained in his statements to the police that he did
not participate in the robbery, the petitioner admitted
to Smith and two fellow inmates to being involved in
the robbery.13 Finally, the state presented evidence that
a jacket seized from the petitioner and Krick’s apart-
ment, which matched the description of the jacket the
petitioner admitted to wearing on March 28, 2001, was
contaminated with the active ingredient in the tear gas
used by the victim to fight off his attackers.
Perry, as an admitted participant in the robbery, was
an important witness. Trial counsel’s thorough and sur-
gical cross-examination of Perry, however, made the
jury abundantly aware of Perry’s motive to lie and to
implicate the petitioner in the robbery. Throughout the
course of cross-examination, trial counsel reminded the
jury of Perry’s original charges, of the charges that
remained pending against Perry, of Perry’s maximum
sentencing exposure for each of those charges as well
as his total maximum sentencing exposure, and of the
fact that Perry’s sentencing had been postponed until
after he testified against the petitioner. Trial counsel
also reviewed Perry’s prior inconsistent statements
with him in detail, and Perry admitted on numerous
occasions that he had lied to the police in all of his
written statements. Trial counsel further demonstrated
that Perry’s lies in his written statements were often
designed either to establish that he was not present for
the robbery or, when he became aware that physical
evidence placed him in the midst of the robbery, to
mitigate his role in the robbery by suggesting that he
was present for the robbery by happenstance, not as
an active participant.
The petitioner argues that ‘‘simply because [trial
counsel] cross-examined Perry extensively regarding
the plea deal does not mean that he was effective in
showing that Perry was untruthful.’’ We disagree. It is
clear from the jury’s verdict that the jury did not credit
all of Perry’s testimony. Perry insisted at trial that the
petitioner shot the victim. Nevertheless, the jury found
the petitioner not guilty of robbery in the first degree
and murder, the only counts in which the petitioner
was charged with either personally possessing the fire-
arm used in the robbery or shooting the victim. See
footnote 4 of this opinion.
Therefore, we conclude that the habeas court did
not abuse its discretion when it denied the petitioner’s
petition for certification to appeal as to his claim of
ineffective assistance of counsel that was based on trial
counsel’s failure to offer Perry’s plea hearing transcript
as an exhibit.
B
The petitioner’s second claim concerning Perry’s plea
agreement with the state is that the prosecutor commit-
ted certain improprieties when she (1) solicited false
testimony from Perry on direct examination, (2) permit-
ted Perry’s false testimony to stand on cross-examina-
tion, and (3) ‘‘made statements and suggested
inferences to the jury that were false and in which
she emphasized Perry’s false testimony.’’ The petitioner
claims that the habeas court erred when it concluded
that this claim was procedurally defaulted. The peti-
tioner contends that he satisfied the cause and prejudice
standard by proving that ‘‘trial counsel’s failure to raise
the issue of prosecutorial [impropriety] at trial or at
sentencing, and particularly by failing to mark Perry’s
plea hearing transcript as either a full trial exhibit or
an exhibit for [identification] constituted ineffective
assistance of counsel . . . .’’ The respondent argues
that because the habeas court rejected the petitioner’s
claim of ineffective assistance of counsel, the habeas
court properly found that the petitioner failed to satisfy
the cause and prejudice standard. We agree with the
respondent.
‘‘We begin our analysis by setting forth the appro-
priate standard of review on appeal. Our review of a
determination of the application of procedural default
involves a question of law over which our review is
plenary.’’ (Internal quotation marks omitted.) Wilcox v.
Commissioner of Correction, 162 Conn. App. 730, 740,
129 A.3d 796 (2016).
Under the procedural default doctrine, ‘‘a claimant
may not raise, in a collateral proceeding, claims that
he could have made at trial or on direct appeal in the
original proceeding,’’ unless he can prove that his
default by failure to do so should be excused. Hinds
v. Commissioner of Correction, 151 Conn. App. 837,
852, 97 A.3d 986 (2014), aff’d, 321 Conn. 56, 136 A.3d
596 (2016). ‘‘When a respondent seeks to raise an affir-
mative defense of procedural default, the rules of prac-
tice require that he or she must file a return to the
habeas petition ‘alleg[ing] any facts in support of any
claim of procedural default . . . or any other claim
that the petitioner is not entitled to relief.’ Practice
Book § 23-30 (b). ‘If the return alleges any defense or
claim that the petitioner is not entitled to relief, and
such allegations are not put in dispute by the petition,
the petitioner shall file a reply.’ Practice Book § 23-31
(a). ‘The reply shall allege any facts and assert any
cause and prejudice claimed to permit review of any
issue despite any claimed procedural default.’ Practice
Book § 23-31 (c).’’ Johnson v. Commissioner of Correc-
tion, 285 Conn. 556, 567, 941 A.2d 248 (2008).
‘‘The cause and prejudice standard [of reviewability]
is designed to prevent full review of issues in habeas
corpus proceedings that counsel did not raise at trial
or on appeal for reasons of tactics, [inadvertence] or
ignorance . . . . In order to satisfy this standard, the
[habeas] petitioner must demonstrate both good cause
for failing to raise a claim at trial or on direct appeal
and actual prejudice from the underlying impropriety.
. . . [T]he existence of cause for a procedural default
must ordinarily turn on whether the [petitioner] can
show that some objective factor external to the defense
impeded counsel’s efforts to comply with the [s]tate’s
procedural rule. . . .
‘‘With respect to the actual prejudice prong, [t]he
habeas petitioner must show not merely that the errors
at . . . trial created the possibility of prejudice, but
that they worked to his actual and substantial disadvan-
tage, infecting his entire trial with error of constitutional
dimensions. . . . Such a showing of pervasive actual
prejudice can hardly be thought to constitute anything
other than a showing that the prisoner was denied fun-
damental fairness at trial. . . . [A] habeas petitioner’s
showing of ineffective assistance of counsel demon-
strates such actual prejudice.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Wilcox v. Commissioner of Correction, supra, 162
Conn. App. 740–41; see also Johnson v. Commissioner
of Correction, supra, 285 Conn. 567–68.
In the present case, to satisfy the cause and prejudice
standard, the petitioner first would have to establish
that trial counsel rendered ineffective assistance by not
raising a claim of prosecutorial impropriety at trial or
preserving the issue for appeal. To prove ineffective
assistance of counsel, the petitioner would have to
establish that there is a reasonable probability that the
outcome of the petitioner’s trial would have been differ-
ent but for trial counsel’s error. See Davis v. Commis-
sioner of Correction, supra, 319 Conn. 555. That is, the
petitioner would have to establish that had a claim of
prosecutorial impropriety been raised by trial counsel,
a court would have concluded that a prosecutorial
impropriety occurred and that it deprived him of his
right to a fair trial. See State v. Fauci, 282 Conn. 23,
32, 917 A.2d 978 (2007).
On the basis of our review of the record, we cannot
conclude that the habeas court erred in finding that the
petitioner’s prosecutorial impropriety claim was proce-
durally defaulted. As we discussed in part I A of this
opinion, the state presented ‘‘strong evidence that the
[petitioner] had participated in the robbery.’’ State v.
Arroyo, supra, 292 Conn. 575. Trial counsel thoroughly
cross-examined Perry concerning his motive to lie to
avoid a significantly longer sentence and additional con-
victions. The jury’s verdict further reveals that the jury,
at the very least, did not credit Perry’s testimony that
the petitioner possessed the firearm used in the robbery
or shot the victim. Accordingly, because the petitioner
failed to prove that trial counsel rendered ineffective
assistance by not raising a claim of prosecutorial impro-
priety before the trial court or by failing to preserve
this issue for appeal, he has failed to satisfy the cause
and prejudice standard.
Therefore, we conclude that the habeas court did
not abuse its discretion when it denied the petitioner’s
petition for certification to appeal as to his claim of
prosecutorial impropriety.
II
The petitioner next claims that the habeas court erro-
neously concluded that trial counsel did not render
ineffective assistance when he failed to consult with
experts about whether the tear gas found on the peti-
tioner’s jacket was the result of a secondary transfer14
from the register and to call an expert to testify concern-
ing that secondary transfer theory.15 The respondent
argues that the habeas court properly concluded that
trial counsel rendered effective assistance because trial
counsel testified that he consulted with several experts
about the secondary transfer theory, but none provided
an opinion that was helpful to the defense. We agree
with the respondent.
At the petitioner’s criminal trial, Dr. Jack Hubball, a
criminalist in the chemistry section of the state forensic
laboratory, testified that on one of the jackets officers
seized from the petitioner and Krick’s apartment he
located ‘‘two [reddish brown] droplet-like stains on the
upper left hand portion’’ of the jacket. Hubball tested
the chemical makeup of those droplets and determined
that they contained traces of a chemical compound
known as CS, which was the active ingredient in the
tear gas canister found near the victim’s body. Hubball
testified that he believed that the droplets were the
result of the chemical compound being sprayed directly
onto the jacket and were not the result of a secondary
transfer from another object.
At the habeas trial, the petitioner called Kamran Logh-
man, an expert on tear gas, and trial counsel as wit-
nesses. Loghman did not dispute Hubball’s finding that
there was CS on the petitioner’s jacket and agreed that
CS was an active ingredient in the brand of tear gas
found near the victim’s body. Instead, Loghman opined
that because of the physical and chemical properties
of CS, it would not ‘‘cause any kind of shape on any
article of clothing’’ and ‘‘[i]t doesn’t discolor fabrics.’’
As a result, Loghman concluded that ‘‘something else
that got saturated and contaminated came into contact
with this pullover [jacket] and passed on the tear gas.’’
He acknowledged, however, that he could not deter-
mine when that secondary transfer occurred and that
the transfer could have happened inside the package
store.
Trial counsel testified that it was important to the
defense to neutralize the tear gas evidence because it
was the only physical evidence that placed the peti-
tioner in the package store. As a result, he consulted
with several experts on tear gas, including Loghman.
Loghman, in particular, confirmed that the substance
on the jacket was CS and provided referrals to other
experts who might help him address the issues.
Although trial counsel did not recall asking Loghman
specifically about the secondary transfer theory,16 he
recalled asking other experts whether the CS on the
jacket was a smear or a droplet and ‘‘what opinion we
might get as to getting a contact transfer from a cash
register.’’ Trial counsel testified that none of these
experts rendered a positive or helpful opinion, and,
therefore, he decided not to call an expert witness to
rebut Hubball’s testimony.
The habeas court concluded that the petitioner failed
to establish that trial counsel rendered deficient perfor-
mance by not calling an expert witness on tear gas
because trial counsel ‘‘made diligent efforts to locate
and consult with an expert such as Loghman . . . but
none [of the experts he contacted] were willing to pro-
vide the defense with useful information.’’17
‘‘Paramount to the effective assistance of counsel is
the obligation by the attorney to investigate all sur-
rounding circumstances of the case and to explore all
avenues that may potentially lead to facts relevant to
the defense of the case.’’ Walton v. Commissioner of
Correction, 57 Conn. App. 511, 521, 749 A.2d 666, cert.
denied, 254 Conn. 913, 759 A.2d 509 (2000). ‘‘We are
mindful that, under certain circumstances, the failure
to use any expert can result in a determination that a
criminal defendant was denied the effective assistance
of counsel.’’ (Emphasis in original.) Peruccio v. Com-
missioner of Correction, 107 Conn. App. 66, 76, 943
A.2d 1143, cert. denied, 287 Conn. 920, 951 A.2d 569(2008). Nevertheless, ‘‘the question of whether to call
an expert witness always is a strategic decision.’’
(Emphasis in original.) Michael T. v. Commissioner of
Correction, 319 Conn. 623, 636 n.7, 126 A.3d 558 (2015).
‘‘[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtu-
ally unchallengeable; [but] strategic choices made after
less than complete investigation are reasonable pre-
cisely to the extent that reasonable professional judg-
ments support the limitations on investigation.’’
(Internal quotation marks omitted.) Gaines v. Commis-
sioner of Correction, 306 Conn. 664, 680, 51 A.3d 948(2012).
In the present case, the habeas court credited trial
counsel’s testimony that he consulted with multiple
experts about the possibility that the CS on the petition-
er’s jacket was the result of a secondary transfer from
the register, but none of those experts provided opin-
ions that were helpful to the defense. As a result, trial
counsel made a reasonable tactical decision not to
retain an expert witness for trial. Therefore, we cannot
conclude that the habeas court erred in denying the
petitioner’s claim.
The petitioner nevertheless contends that ‘‘[t]he
habeas court’s findings regarding [trial counsel’s]
efforts were clearly erroneous’’ because ‘‘[trial counsel]
never asked the critical question about secondary trans-
fer’’ when speaking to potential expert witnesses.
Instead, the petitioner states that trial counsel errone-
ously ‘‘focused on whether the marks were ‘droplets
or smears,’ ’’ which Loghman testified was irrelevant
because CS does not ‘‘cause any kind of shape on any
article of clothing’’ and ‘‘[i]t doesn’t discolor fabrics.’’
As previously stated, however, trial counsel testified
at the habeas trial that when speaking with experts on
tear gas he asked the experts both whether the CS on
the jacket was a smear or a droplet and ‘‘what opinion
we might get as to getting a contact transfer from a
cash register.’’ Although the petitioner’s expert witness
might contend that the issue of whether the stains were
smears or droplets is a red herring, the critical aspect
of trial counsel’s testimony was that he asked experts
about the secondary transfer theory. None of these
experts was willing to give him a favorable opinion on
that theory. Accordingly, we cannot conclude that the
habeas court’s finding that trial counsel made diligent
efforts to locate an expert on the secondary transfer
issue was clearly erroneous.
Therefore, we conclude that the habeas court did not
abuse its discretion in denying the petitioner’s petition
for certification to appeal as to his claim of ineffective
assistance of counsel that was based on trial counsel’s
failure to call a tear gas expert at trial.
III
The petitioner’s final claim is that the habeas court
erroneously concluded that trial counsel did not render
ineffective assistance when he ‘‘failed to introduce pho-
tographs or other evidence of the physical layout of
[Krick’s] apartment’’ because they would have ‘‘but-
tress[ed] the credibility of the petitioner’s alibi witness,’’
Marcel Bartelle. The respondent argues that the habeas
court properly rejected the petitioner’s claim of ineffec-
tive assistance of counsel because trial counsel made
a reasonable tactical decision not to introduce those
photographs and potentially weaken the alibi witness’
testimony. We agree with the respondent.
The following additional facts are relevant to this
claim. In his first and second written statements to the
police, the petitioner stated that he was home with
Krick on the evening of March 28, 2001, the night of
the robbery. He admitted in both statements, however,
that Perry came to Krick’s apartment at one point that
night with a black man, identified at the habeas trial
as Darcel Moody, and the register, which he helped
Perry carry into Krick’s apartment, open with a screw-
driver, and hide behind the dresser. In his third written
statement, the petitioner claimed to have been home
the entire evening of March 28, 2001, with Krick and
Bartelle. The petitioner continued to acknowledge that
Perry came by his apartment with Moody and the regis-
ter after the robbery and that he helped Perry carry in,
open, and hide the register.
At the petitioner’s criminal trial, Bartelle testified that
he went to the petitioner and Krick’s apartment after
work, between 6:30 p.m. and 7 p.m. Bartelle testified
that when he arrived the petitioner was alone and that
they remained alone until approximately 9:30 p.m. when
Perry arrived. The reason Perry came over, Bartelle
explained, was that he wanted to purchase some crack
cocaine. Bartelle testified that Perry remained briefly
at the apartment to find out what Bartelle wanted to
purchase and to pick it up. Bartelle stated that on the
two brief occasions Perry was at Krick’s apartment,
Perry was alone, and that he never saw Perry carry
anything into the apartment, aside from the crack
cocaine. Bartelle stated that Krick returned home at
approximately 11 p.m. and asked him to leave, which
he did. Bartelle maintained that between the time he
arrived at the apartment and the time he left the apart-
ment the petitioner never left his presence in the kitchen
for more than two or three minutes. Bartelle testified
that, as a result, if the petitioner had been prying open
a register while he was at the apartment, he would have
been aware of it, but he did not see or hear the petitioner
carry in or pry open a register.
At the habeas trial, the petitioner asked trial counsel
why he did not introduce photographs of Krick’s apart-
ment for the purpose of explaining why Bartelle might
not have seen Perry come to the apartment with Moody
if Moody had remained standing at the front door to
the apartment. Trial counsel responded that he did not
recall why he did not introduce photographs for that
particular purpose.18 The habeas court concluded that
trial counsel did not render ineffective assistance by not
introducing evidence of the physical layout of Krick’s
apartment to explain why Bartelle did not see anyone
with Perry. The habeas court reasoned that ‘‘even an
innocuous error by Bartelle as to who arrived at Krick’s
condominium when, and with whom, could reflect
badly on Bartelle as a witness. Rather than appear to
concede the likelihood that Perry had a companion
when he came to Krick’s place, [trial counsel] elected
to present the alibi defense contained in Bartelle’s ver-
sion of these events unsullied by inconsistency or
mistake.’’
We agree with the habeas court that the petitioner
failed to establish that trial counsel rendered ineffective
assistance by not introducing evidence of the physical
layout of Krick’s apartment to explain why Bartelle did
not see Moody. We have recognized repeatedly that
because of the difficulties inherent in evaluating an
attorney’s performance in hindsight, ‘‘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.
. . . [C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.’’
(Internal quotation marks omitted.) Henderson v. Com-
missioner of Correction, 104 Conn. App. 557, 572, 935
A.2d 162 (2007), cert. denied, 285 Conn. 911, 943 A.2d
470 (2008). The petitioner failed to overcome this pre-
sumption in the present case. Bartelle’s testimony was
inconsistent with the petitioner’s statements in several
respects. We agree with the habeas court that it was
a reasonable tactical decision for trial counsel not to
emphasize further the inconsistency concerning
Moody’s presence at Krick’s apartment on March 28,
2001 by introducing evidence of the apartment’s layout
in an attempt to explain why Bartelle might not have
seen Moody.
Therefore, we conclude that the habeas court did not
abuse its discretion in denying the petitioner’s petition
for certification to appeal as to his claim of ineffective
assistance of counsel that was based on trial counsel’s
failure to introduce evidence of the layout of Krick’s
apartment to explain why Bartelle might not have
seen Moody.
The appeal is dismissed.
In this opinion the other judges concurred.
1
Police officers, with the assistance of the petitioner, subsequently recov-
ered the firearm from Cruz.
2
In his first two written statements to the police, the petitioner used an
alias, Juan Roman.
3
The petitioner’s alibi witness at trial, Marcel Bartelle, is married.
4
With respect to the charge of murder, the state alleged that ‘‘Reynaldo
Arroyo with intent to cause the death of another person did cause the death
of such person, namely, Edmund Caruso, by use of a firearm . . . .’’ With
respect to the charge of robbery in the first degree, the state alleged that
the petitioner ‘‘did commit a robbery of Edmund Caruso, and in the course
of the commission of the robbery, Reynaldo Arroyo was armed with a deadly
weapon, to wit: a nine millimeter pistol . . . .’’
Conversely, with respect to the charge of felony murder, the state alleged
that ‘‘Reynaldo Arroyo and Richmond Perry did commit a robbery [of Mike’s
Package Store] [a]nd in the course of and in furtherance of such crime,
Reynaldo Arroyo or another participant, to wit, Richmond Perry, did cause
the death of a person other than one of the participants, namely, Edmund
Caruso . . . .’’ With respect to the charge of conspiracy to commit robbery,
the state alleged that ‘‘Reynaldo Arroyo with intent that conduct constituting
[robbery in the first degree] be performed . . . did agree with another
person, namely, Richard Perry, to engage in or cause the performance of
such conduct . . . . In pursuance of such conspiracy, Reynaldo Arroyo and
Richmond Perry committed one or more overt acts . . . .’’ The overt acts
listed all alleged joint conduct by the petitioner and Perry, e.g., ‘‘Reynaldo
Arroyo and Richmond Perry did enter such store armed with a weapon, to
wit, a nine millimeter handgun.’’
5
The prosecutor also explained that Perry had given several statements
and that, ‘‘in essence, he admits in at least one of his statements that was
given April 10th that he was at the robbery where Mr. Caruso was killed.
And he admits that he was at the package store during the robbery and that
Mr. Caruso was killed as a result of that.’’ In each of the statements provided
by Perry, however, he implicated someone other than himself, including the
petitioner, as the shooter.
6
In Perry’s last written statement, he admitted to being present for the
robbery, but he identified the petitioner as the instigator of the robbery and
the shooter.
7
The violation of probation was unrelated to the robbery information.
8
For example, trial counsel engaged in the following colloquies with Perry
concerning his motive to testify to obtain a lower sentence:
‘‘[Trial Counsel]: So, you’re sitting here today telling us that you have
pled guilty to robbery [in the] first degree, felony murder, and agree to a
sentence of forty-five years, which is no deal even though you can get 180,
but you didn’t commit a robbery, right? That’s what you’re telling us?
‘‘[Perry]: I was in the store with [the petitioner]; that’s what made me
guilty for pushing the dude that [the petitioner] shot the dude, so that’s why
I’m pleading guilty.
***
‘‘[Trial Counsel]: Okay. How many lies have we got so far in this statement,
Mr. Perry?
‘‘[Perry]: I don’t know. I told you in four statements I lied about it. But
it’s no reason for me to lie about it now because what’s the reason for me
to lie about it? I got forty-five years on mine, so what’s the reason for me
to lie about it?
‘‘[Trial Counsel]: Forty-five years when you could get 185, Mr. Perry—
‘‘[Perry]: What is forty-five . . .
‘‘[Trial Counsel]: —in many people’s minds.
‘‘[Perry]: It’s no reason for me to lie about it . . . .
‘‘[Trial Counsel]: And that’s the point, you didn’t help him do anything
because you were innocent, you are completely innocent of anything—
‘‘[Perry]: Nn.
‘‘[Trial Counsel]: —in the store, except pushing that old man with your
hands, like this . . . and driving the car, I guess, back, is that it, back to
the apartment, that’s what you’re guilty of, right?
‘‘[Perry]: Yep.
‘‘[Trial Counsel]: And that’s why you plead to a set, to two offenses for
which you’re getting forty-five years for pushing a man and driving a car
back after a committed crime that you didn’t even know it was going to
happen, right?
‘‘[Perry]: Yep.
‘‘[Trial Counsel]: But of course we know it has nothing to do with 185
years?
‘‘[Perry]: It was always forty-five years on the table.
***
‘‘[Trial Counsel]: And of course, you wouldn’t lie in court, is that what
you’re trying to get us to understand?
‘‘[Perry]: . . . I wouldn’t be on the stand and just come on the stand on
my own just to tell some lies on the statement.
‘‘[Trial Counsel]: You’re on the stand.
‘‘[Perry]: I mean on the stand.
‘‘[Trial Counsel]: Well, you’re getting, you’re getting a plea bargain,
aren’t you?
‘‘[Perry]: It’s not a plea bargain. It always been forty-five years on the
table, so.
‘‘[Trial Counsel]: And how do you think it got to be the forty-five years
on the table, that it just appeared for this type of crime that has been
committed. The state just out of the goodness of their hearts offered you
forty-five years for nothing?
‘‘[Perry]: Well, you have to ask my lawyer that. He came to me with that,
so. You have to ask him that.
***
‘‘[Trial Counsel]: And you are not testifying here today that you didn’t
know that if you reneged on your promise and did not testify as set out for
you, that there would be no agreed recommendation and the state would
be asking for a much higher sentence at the time you got sentenced. You’re
not testifying to that are you?
‘‘[Perry]: Once again, I’ve been had forty-five years on the table, and that’s
all I’ve been hearing.’’
9
In relevant part, the following exchange occurred while trial counsel
presented Perry with his plea hearing transcript:
‘‘[Trial Counsel]: Let me see if this refreshes you of your recollection.
This part right here, read that. What you had to do in order to get the benefit
of this, the offer from the prosecutor of forty-five years, is to testify in a
truthful manner only regarding [the petitioner’s] participation in the robbery,
that’s correct, isn’t it?
‘‘[Perry]: She added on to it, but I knew forty-five years was on the table.
‘‘[Trial Counsel]: But you agree that’s what was said, right?
‘‘[Perry]: That’s on the paper.
‘‘[Trial Counsel]: Okay. And that if you should renege on that promise
and decide not to do that, there is no agreed recommendation and the state
would ask for a much higher sentence at that time, isn’t that correct?
‘‘[Perry]: I, she never told me that part.
‘‘[Trial Counsel]: But it was said, wasn’t it?
‘‘[Perry]: No, it was not said.
‘‘[Trial Counsel]: Well, take a look.
‘‘[Perry]: It’s on the paper, but it was never said.
‘‘[Trial Counsel]: Well, you were standing in open court, weren’t you?
‘‘[Perry]: That was never said to me.
‘‘[Trial Counsel]: I see. But it is on the paper, right?
‘‘[Perry]: It’s on paper. But no matter what, I have forty-five years on the
table, and I was gonna take the stand anyway.’’
10
Trial counsel argued in relevant part: ‘‘And when I presented him with
a transcript, the transcript of his plea hearing where he pled guilty and had
him read it, read where he, where the state’s attorney indicated that he was
getting this sentence to testify truthfully but against the defendant Arroyo
only. He got a plea bargain deal to testify against Reynaldo Arroyo . . . .’’
11
The petitioner also argued in his reply that the procedural default was
cured by the ineffective assistance of appellate counsel in failing to raise a
claim of prosecutorial impropriety on appeal. At the conclusion of the habeas
trial, however, the petitioner withdrew his claim of ineffective assistance
of appellate counsel.
12
See State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86 (allowing the
substantive use of prior written inconsistent statements, signed by declarant,
who has personal knowledge of facts stated, when declarant testifies at trial
and is subject to cross-examination), cert. denied, 479 U.S. 994, 107 S. Ct.
597, 93 L. Ed. 2d 598 (1986); see also Conn. Code Evid. § 8-5 (1).
13
Police officers interviewed the petitioner after Smith provided a written
statement concerning his conversations with the petitioner about the rob-
bery to see if the petitioner thought the statement was accurate. The peti-
tioner told the police officers that it was accurate except that he did not
tell Smith that he was personally involved in the robbery. Instead, he stated
that during his conversation with Smith, he was ‘‘imagining’’ what occurred
inside the package store during the robbery and that that must have confused
Smith about his involvement in the robbery. (Emphasis added.)
14
The parties and the witnesses in the present case have used both the
terms ‘‘secondary transfer’’ and ‘‘contact transfer’’ to describe the phenome-
non of tear gas transferring from the register onto the petitioner’s jacket.
For consistency, we refer to this phenomenon as ‘‘secondary transfer’’ unless
we quote a witness’ testimony.
15
The petitioner also claims that the habeas court ‘‘incorrectly precluded
the petitioner from recalling [his habeas expert witness] [Kamran] Loghman
to rebut’’ trial counsel’s testimony that ‘‘he had consulted with Loghman
prior to the criminal trial.’’ The respondent argues that the petitioner’s claim
is unreviewable because he did not raise it in his petition for certification
to appeal. We agree with the respondent.
‘‘This court has determined that a petitioner cannot demonstrate that the
habeas court abused its discretion in denying a petition for certification to
appeal if the issue that the petitioner later raises on appeal was never
presented to, or decided by, the habeas court. . . . Under such circum-
stances, a review of the petitioner’s claims would amount to an ambuscade
of the [habeas] judge.’’ (Internal quotation marks omitted.) Tutson v. Com-
missioner of Correction, 144 Conn. App. 203, 217, 72 A.3d 1162, cert. denied,
310 Conn. 928, 78 A.3d 145 (2013).
Neither the petition for certification to appeal nor the petitioner’s applica-
tion for a waiver of fees, costs and expenses include an evidentiary claim
that the court erred in precluding him from recalling Loghman to testify as
to whether trial counsel contacted him. In his petition for certification to
appeal, the petitioner listed five grounds, only one of which relates to the
expert witness issue: ‘‘5. Whether the court erred in denying the petition
based on its finding that trial counsel was not ineffective for failing to call
a tear gas expert?’’ The language in this fifth ground for appeal is insufficient
to raise distinctly, and thereby preserve, the petitioner’s evidentiary claim.
See Foote v. Commissioner of Correction, 151 Conn. App. 559, 571, 96 A.3d
587 (Keller, J., concurring) (‘‘well settled in our decisional law is that a
petitioner is unable to demonstrate that a habeas court abused its discretion
in denying a petition for certification to appeal on the basis of questions
that were not raised distinctly before the habeas court at the time that it
considered the petition for certification to appeal’’), cert. denied, 314 Conn.
929, 102 A.3d 709 (2014); accord Melendez v. Commissioner of Correction,
141 Conn. App. 836, 841, 62 A.3d 629, cert. denied, 310 Conn. 921, 77 A.3d
143 (2013); Campbell v. Commissioner of Correction, 132 Conn. App. 263,
267, 31 A.3d 1182 (2011). Accordingly, we decline to review it for the first
time on appeal.
16
Trial counsel explained that if he had discussed the secondary transfer
theory with Loghman, he would have noted that discussion in his notes,
which he did not.
17
In its memorandum of decision, the court found that trial counsel ‘‘con-
sulted with Loghman, ‘although Mr. Loghman forgot about that consulta-
tion.’ ’’ (Emphasis in original.) The petitioner claims that ‘‘[t]he habeas court
committed clear error when it concluded that [trial counsel] had consulted
with Loghman ‘although Loghman forgot about the consultation.’ ’’ We dis-
agree with the petitioner to the extent that he argues that the habeas court’s
finding that trial counsel consulted with Loghman was clearly erroneous
because trial counsel testified that he consulted with Loghman.
We agree with the petitioner, however, that the habeas court’s finding
that ‘‘Loghman forgot about the consultation’’ was clearly erroneous. At the
habeas trial, the petitioner first called Loghman to testify. After Loghman’s
testimony, the petitioner called trial counsel, who unexpectedly testified
that Loghman was one of the experts he consulted. The next day, the
petitioner sought to recall Loghman telephonically as a witness, even though
he had been released as a witness and left the state. Habeas counsel repre-
sented that Loghman ‘‘had no recollection of talking to [trial counsel]’’ and
that Loghman’s firm had a strict policy about not having ‘‘casual conversa-
tions without being retained.’’ The habeas court did not permit habeas
counsel, however, to recall Loghman. See footnote 15 of this opinion. Accord-
ingly, the habeas court’s finding that Loghman forgot about his conversation
with trial counsel is not supported by any evidence in the record. See State
v. Duntz, 223 Conn. 207, 236, 613 A.2d 224 (1992) (statements made by
attorneys not facts in evidence; finder of fact may not properly consider
them as evidence); Tevolini v. Tevolini, 66 Conn. App. 16, 26, 783 A.2d 1157(2001) (‘‘representations of counsel are not, legally speaking, evidence’’
[internal quotation marks omitted]); see also Anderson v. Commissioner
of Correction, 114 Conn. App. 778, 784, 971 A.2d 766 (habeas court’s factual
findings reviewed under clearly erroneous standard), cert. denied, 293 Conn.
915, 979 A.2d 488 (2009).
18
Trial counsel did introduce into evidence several photographs of Krick’s
apartment at trial for other purposes.