Ham v. Commissioner of Correction ( 2014 )

******************************************************
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.
******************************************************
ERIC HAM v. COMMISSIONER OF CORRECTION
(AC 34758)
Beach, Sheldon and West, Js.
Argued April 17—officially released August 12, 2014
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
Peter G. Billings, assigned counsel, for the appel-
lant (petitioner).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and David Clifton, assistant state’s
attorney, for the appellee (respondent).
Opinion
BEACH, J. The petitioner, Eric Ham, appeals follow-
ing the denial of his petition for certification to appeal
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus. The peti-
tioner claims that the court abused its discretion in
denying his petition for certification to appeal. He sub-
stantively argues that the court (1) erred in denying his
claim that his trial counsel rendered ineffective assis-
tance by failing to consult a ballistics expert, and (2)
improperly granted the motion to dismiss of the respon-
dent, the Commissioner of Correction, pursuant to Prac-
tice Book § 15-8 on the ground that he had not
established a prima facie case to support his claims of
ineffective assistance of appellate counsel and of prior
habeas counsel. We dismiss the petitioner’s appeal.
The facts underlying the petitioner’s conviction were
set forth as follows in his direct appeal. ‘‘[I]n March,
1993, the [petitioner], accompanied by four masked
men, approached Alex Santana and asked him where
to find his cousin, George Flores. When Santana replied
that he had not seen Flores, the [petitioner] punched
Santana in the face, causing him to be thrown against
a store window. The owner of the store came outside
and the [petitioner] and his companions departed. On
May 5, 1993, at approximately 11 p.m., the [petitioner]
agreed to pay Ronaldo Rivera $40 if he would steal a
large, fast, four door automobile and deliver it to the
[petitioner]. Rivera found such a vehicle on Frank Street
in New Haven and, with the help of a friend, stole a
four door Buick and brought the car to the [petitioner]
and another man on Ward Street at approximately 2 a.m.
‘‘Santana had been riding that night in the car of
his friend, Butch Console, with three other persons,
Marilyn Torres, Melissa Dawson and Dimiris Vega.
When the car stopped on Button Street, the occupants
got out. As they were standing by the car, a man
approached and offered to paint Console’s initials on
the driver’s door. Console agreed and then stood next
to a red station wagon parked on the opposite side of
the street. Meanwhile, his friends stood on the street
side of Console’s car watching the man paint. Console
noticed a car approaching slowly on Button Street. He
saw what he first thought were firecrackers coming
from the rear seat of the car. When he realized it was
gunfire, Console ran around the front of the station
wagon to the sidewalk and knelt to avoid the bullets.
The approaching car was the stolen Buick and con-
tained the [petitioner] and three companions. Gunfire
erupted from the area of the rear seat of the Buick.
One bullet hit Santana in the stomach, resulting in his
hospitalization. Another bullet struck Torres in the
back, causing her death. The evidence indicated that
at least five shots were fired from close range.
‘‘A few minutes later, the [petitioner] and his compan-
ions crashed the Buick on Howard Avenue and aban-
doned it with the motor running, the rear door open,
a bullet casing on the floor behind the driver’s seat,
and a sheet covering the rear seat wet with blood. The
rear window had been blown out. A second shell was
found on the roof of the car, and a third was found on
Button Street at the shooting scene. The [petitioner]
went to the Hospital of St. Raphael (hospital) at 2:49
a.m. to seek treatment for a gunshot wound. He spoke
with a New Haven police officer at 3:05 a.m. He gave
a statement to Sergeant Diane Langston declaring that
he and his friend had been accosted and shot on the
street in an attempted robbery by two masked men.
The [petitioner] stated that he and his friend then ran
directly to the hospital.
‘‘A ballistics expert testified that the bullet obtained
from Torres’ body matched the .45 caliber shell casing
found on the floor of the Buick. The other casings found
on the roof of the Buick and on Button Street came from
a nine millimeter gun. A fingerprint expert identified
fingerprints found on the interior of the driver’s door as
those of the [petitioner]. Experts from the state forensic
laboratory testified that the blood on the sheet covering
the back seat was consistent with the [petitioner’s]
blood type.’’ State v. Ham, 55 Conn. App. 281, 283–85,
739 A.2d 1268, cert. denied, 252 Conn. 916, 743 A.2d
1128 (1999).
Following a jury trial, the petitioner was convicted
of conspiracy to commit larceny in the third degree in
violation of General Statutes §§ 53a-48 (a) and 53a-124
(a) (1), larceny in the third degree in violation of § 53a-
124 (a) (1), conspiracy to commit murder in violation
of General Statutes §§ 53a-48 and 53a-54a (a), murder
in violation of § 53a-54a (a), assault in the first degree
in violation of General Statutes § 53a-59, and falsely
reporting an incident in violation of General Statutes
§ 53a-180 (a) (3) (A). Id., 282–83. The petitioner was
sentenced to fifty years incarceration. His conviction
was affirmed on direct appeal. Id., 283.
The petitioner filed a prior petition for a writ of
habeas corpus in 2005, alleging ineffective assistance
of trial counsel on various grounds. The habeas court
denied the petition, and our Supreme Court affirmed
the judgment of the habeas court.1 Ham v. Commis-
sioner of Correction, 301 Conn. 697, 23 A.3d 682 (2011).
The petitioner filed the petition that is the subject of
this appeal in 2011. In his petition, he alleged ineffective
assistance of trial counsel, appellate counsel and
habeas counsel, in connection with the 2005 petition.
After the petitioner presented his case at the habeas
trial, the respondent moved pursuant to Practice Book
§ 15-8 to dismiss counts two and three of the petition,
which alleged ineffective assistance of appellate and
habeas counsel, respectively, for failure to present a
prima facie case. The court granted the motion conclud-
ing that the petitioner had failed to present evidence
as to those claims. After the respondent presented evi-
dence as to the first count, the court issued a memoran-
dum of decision in which it denied the petition,
reasoning that the petitioner had failed to meet his
burden of establishing that his trial counsel was consti-
tutionally ineffective for failing to consult a ballistics
expert and that this failure prejudiced the petitioner.
The court denied the petition for certification to appeal.
This appeal followed.
The petitioner first claims that the court erred in
denying his petition for certification to appeal because
the issues presented were debatable among jurists of
reason. We begin with the following well established
standard of review. ‘‘Faced with the habeas court’s
denial of certification to appeal, a petitioner’s first bur-
den is to demonstrate that the habeas court’s ruling
constituted an abuse of discretion. . . . A petitioner
may establish an abuse of discretion by demonstrating
that the issues are debatable among jurists of reason
. . . [the] court could resolve the issues [in a different
manner] . . . or . . . the questions are adequate to
deserve encouragement to proceed further. . . . The
required determination may be made on the basis of
the record before the habeas court and applicable legal
principles. . . . [See] Simms v. Warden, 230 Conn. 608,
612–18, 646 A.2d 126 (1994).
‘‘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 this court for
determining the propriety of the habeas court’s denial
of the petition for certification. Absent such a showing
by the petitioner, the judgment of the habeas court
must be affirmed.’’ (Citation omitted; internal quotation
marks omitted.) Koslik v. Commissioner of Correction,
127 Conn. App. 801, 804–805, 16 A.3d 753, cert. denied,
301 Conn. 913, 19 A.3d 1259 (2011). In order to deter-
mine whether the court abused its discretion in denying
the petition for certification to appeal, we must consider
the merits of the petitioner’s underlying claims, which
we will do in turn.
I
The petitioner claims that the court erred in conclud-
ing that his trial counsel, William Dow, rendered effec-
tive assistance. He argues that Dow’s performance was
ineffective because he failed to consult with a firearms
and toolmark expert and, as a result, his cross-examina-
tion of James Stephenson, the state’s firearms identifi-
cation expert, was ineffective. The petitioner contends
that if Dow had consulted with a firearms identification
expert, he would have been able to highlight deficienc-
ies in Stephenson’s testimony. The petitioner’s claimed
vulnerable points include the subjectivity involved in
the field of firearms identification, the lack of peer
review in Stephenson’s work, and the inability to deter-
mine whether the bullet found in the victim was fired
from the shell casing found in the car from which the
fatal shots were fired. He argues that he was prejudiced
because the firearms evidence was the only physical
evidence purportedly linking the petitioner to the scene
of the crime. We are not persuaded.
At the criminal trial, Stephenson testified on direct
examination that more than one handgun had been
used, that the casing found on the roof of the Buick
and the casing found in front of 50-52 Button Street
were both nine millimeter casings that had been fired
from the same firearm, that the bullet found in the
victim’s body was a .45 caliber bullet, and that the shell
casing found on the floor of the rear seat area of the
Buick had not been fired from a nine millimeter hand-
gun because the diameter of the cartridge was too large
for a nine millimeter handgun. When asked if there were
any means available for determining if a bullet had
come from a particular cartridge or particular casing,
Stephenson answered, ‘‘[t]here’s no identification pro-
cess to put a fired bullet directly back into a fired
cartridge case, it would only be a class characteristic.’’
On cross-examination, Stephenson testified that he
could not determine in this case if anything had been
fired from a particular firearm or who had fired what
weapon. He could not tell when the firearms were fired.
His ability to determine whether any particular firearm
had shot a particular bullet was limited because no
firearms had been submitted for examination.
At the habeas trial, Dow testified that he did not
consult a firearms expert before trial because the peti-
tioner’s fingerprint and blood evidence were found in
the Buick. The importance of the subjective and less
definitive match between the bullet found in the victim’s
body and the casing found in the Buick was, thus, of
less importance. He testified that his ‘‘theory would’ve
had to have been it could’ve gotten there at any time, he
wasn’t necessarily in the car at the time of the shooting.
That’s the way I chose, tactically, to go. . . . [P]ulling
the ballistics piece out of the puzzle wasn’t going to
solve the problem. I still had the prints and the blood.’’
He testified that his trial tactic was to limit the impact of
the ‘‘toolmark’’ identification testimony and to distance
the evidence of the petitioner’s blood and fingerprints
as well as the shell casing found in the Buick from the
events of the night at issue. He further testified that it
was unlikely that Stephenson would have backed down
from his conclusions if Dow had questioned him on the
subjective nature of his comparisons.
Stephenson testified at the habeas trial that his work
was not reviewed by any other individual, that the bullet
found in the victim’s body was a .45 caliber bullet, and
that the shell casing found on the floor of the rear seat
area of the Buick had been fired from a .45 caliber
firearm. He further testified that there was no method
to determine if the bullet found in the victim’s body
had been fired from the cartridge case found in the
Buick. He further testified that there had ‘‘probably
been over fifty validation studies of the science itself
to determine that we can make this statement that we
know that the marks left upon the surface of two objects
by the same tool can be identified to each other. . . .
I, myself, have participated in several of these validation
studies to prove to myself that the science is what it
does. . . . Knowing the fact that two objects marked
by the same tool leave the same marks and once they’re
examined by a . . . qualified examiner, they’ll come
to the same results if they were viewed by another
. . . competent and qualified examiner . . . that’s the
practical certainty.’’
‘‘[W]e begin our analysis by setting forth the familiar
two part test enunciated by the United States Supreme
Court in Strickland v. Washington, [466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. In Strickland,
which applies to claims of ineffective assistance during
criminal proceedings generally, the United States
Supreme Court determined that the claim must be sup-
ported by evidence establishing that (1) counsel’s repre-
sentation fell below an objective standard of
reasonableness, and (2) counsel’s deficient perfor-
mance prejudiced the defense because there was a rea-
sonable probability that the outcome of the proceedings
would have been different had it not been for the defi-
cient performance. . . . The first prong is satisfied by
proving that counsel made errors so serious that he
was not functioning as the counsel guaranteed by the
sixth amendment. The second prong is satisfied if it is
demonstrated that there exists a reasonable probability
that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’’ (Empha-
sis omitted; internal quotation marks omitted.)
Edwards v. Commissioner of Correction, 141 Conn.
App. 430, 437–38, 63 A.3d 540, cert. denied, 308 Conn.
940, 66 A.3d 882 (2013).
‘‘A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.
Because of the difficulties inherent in making the evalu-
ation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reason-
able professional assistance; that is, the [petitioner]
must overcome the presumption that, under the circum-
stances, the challenged action might be considered
sound trial strategy. . . . [C]ounsel is strongly pre-
sumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment. . . . An attorney’s line of ques-
tioning on examination of a witness clearly is tactical
in nature. [As such, this] court will not, in hindsight,
second-guess counsel’s trial strategy.’’ (Citation omit-
ted; internal quotation marks omitted.) Antonio A. v.
Commissioner of Correction, 148 Conn. App. 825, 829–
32, 87 A.3d 600, cert. denied, 312 Conn 189, A.3d
(2014).
After reviewing the record, we agree with the habeas
court’s conclusion that Dow’s cross-examination of Ste-
phenson did not constitute deficient performance.2 Dow
testified that his trial strategy was to focus on the finger-
prints and the blood and to disassociate the petitioner
with the Buick at the time of the shooting. Furthermore,
Stephenson had already testified on direct examination
at the criminal trial that he could not ‘‘put a fired bullet
directly back into a fired cartridge case.’’ Additionally,
if Dow had questioned Stephenson about the subjective
nature of his comparisons, he would have run the risk
that Stephenson would have testified, as he did at the
habeas hearing, about the validation studies and the
‘‘practical certainty’’ of his comparisons. We conclude
that the petitioner has failed to overcome the presump-
tion that Dow’s cross-examination of Stephenson repre-
sented a sound trial strategy. See, e.g., William B. v.
Commissioner of Correction, 128 Conn. App. 478, 493,
17 A.3d 522, cert. denied, 302 Conn. 912, 27 A.3d 371(2011).
We conclude that the court did not err in denying
the petition for certification to appeal as to this claim.
The petitioner has not demonstrated that the issue was
debatable among jurists of reason, that a court could
resolve the issue in a different manner, or that the
questions raised deserve encouragement to proceed
further.
II
The petitioner next claims that the court erred in
dismissing the second and third counts of the habeas
petition pursuant to Practice Book § 15-8 for the peti-
tioner’s failure to establish a prima facie case of ineffec-
tive assistance of counsel. In counts two and three,
respectively, the petitioner alleged that his counsel on
direct appeal was ineffective for failing to challenge the
trial court’s instruction on motive on the ground that
the court had improperly marshalled evidence in favor
of the state, and that his counsel in the first habeas
proceeding was ineffective for failing to claim that his
counsel on direct appeal was ineffective for failing to
challenge the trial court’s instruction on motive. We
are not persuaded.
The following additional facts are relevant to this
claim. At the close of the petitioner’s case in the habeas
proceeding, the respondent moved to dismiss counts
two and three pursuant to Practice Book § 15-8 for
failure to make out a prima facie case. The court granted
the motion. The court reasoned, with respect to both
counts, that no evidence had been presented to estab-
lish a prima facie case. Although transcripts of the crimi-
nal trial had been provided, there was no testimony at
the habeas trial regarding standards to be applied or
the thought process of the petitioner’s counsel.
The following principles guide our review of the peti-
tioner’s claim. Practice Book § 15-8 provides, in relevant
part, that ‘‘[i]f, on the trial of any issue of fact in a civil
matter tried to the court, the [petitioner] has produced
evidence and rested, [the respondent] may move for
judgment of dismissal, and the judicial authority may
grant such motion if the [petitioner] has failed to make
out a prima facie case. . . .’’ ‘‘A prima facie case . . .
is one sufficient to raise an issue to go to the trier of
fact. . . . In order to establish a prima facie case, the
proponent must submit evidence which, if credited, is
sufficient to establish the fact or facts which it is
adduced to prove. . . . In evaluating a motion to dis-
miss, [t]he evidence offered by the [petitioner] is to be
taken as true and interpreted in the light most favorable
to [the petitioner], and every reasonable inference is
to be drawn in [the petitioner’s] favor. . . . Whether
the [petitioner] has established a prima facie case enti-
tling the [petitioner] to submit a claim to a trier of fact
is a question of law over which our review is plenary.’’
(Citation omitted; internal quotation marks omitted.)
Lapointe v. Commissioner of Correction, 113 Conn.
App. 378, 388, 966 A.2d 780 (2009).
A
We first turn our attention to the court’s dismissal
of count two, which alleged ineffective assistance of
the petitioner’s appellate counsel for failure to raise on
appeal a claim that the trial court improperly marshalled
evidence in favor of the state in its instruction on
motive. ‘‘Our Supreme Court has adopted [the] two part
analysis [set forth in Strickland v. Washington, supra,466 U.S. 687] in reviewing claims of ineffective assis-
tance of appellate counsel. . . . To prevail on a claim
of ineffective assistance of counsel, a petitioner must
show (1) that counsel’s performance was deficient and
(2) that the deficient performance prejudiced the
defense. . . . First, deficient performance may be
proved by showing that the counsel’s representation
fell below an objective standard of reasonableness.
. . . Second, prejudice to the defense requires showing
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
. . . [T]he [prejudice] prong considers whether there is
a reasonable probability that, but for appellate counsel’s
failure . . . the petitioner would have prevailed in his
direct appeal, i.e., reversal of his conviction or granting
of a new trial. . . . [T]o determine whether a habeas
petitioner had a reasonable probability of prevailing
on appeal, a reviewing court necessarily analyzes the
merits of the underlying claimed error in accordance
with the appropriate appellate standard for measuring
harm.’’ (Citations omitted; internal quotation marks
omitted.) Rogers v. Commissioner of Correction, 143
Conn. App. 206, 210–11, 70 A.3d 1068 (2013).
This case is unusual in that the only evidence that
the petitioner submitted in support of count two was
the trial transcript, which included the court’s instruc-
tions to the jury.3 We assume in some circumstances
that it may be possible that a trial transcript alone could
suffice to establish a prima facie case of ineffective
assistance of appellate counsel, where, for example,
the record revealed a potentially meritorious claim for
appeal. In this case, however, the trial transcript alone
was insufficient because it does not reveal a meritorious
claim. If the claim is facially lacking a reasonable chance
of success on appeal, then counsel could not be ineffec-
tive in failing to pursue it.4 See Bailey v. Commissioner
of Correction, 107 Conn. App. 362, 366–67, 947 A.2d 2(‘‘[i]f the issues not raised by his appellate counsel lack
merit, [the petitioner] cannot sustain even the first part
of [his] dual burden since the failure to pursue unmerito-
rious claims cannot be considered conduct falling
below the level of reasonably competent representa-
tion’’ [internal quotation marks omitted]), cert. denied,
287 Conn. 922, 951 A.2d 568 (2008).
The trial transcript reveals that the trial court’s
instruction on motive was not improper. The court
instructed the jury regarding motive as follows: ‘‘In this
case, the state claims that there was at least one motive
for the [petitioner] to commit the crimes charged, that
being the dispute between the [petitioner] and Alex
Santana, and the state contends there was evidence to
show that about two months prior to . . . May [6, 1993]
that the [petitioner] and some associates of his
approached Mr. Santana and physically assaulted him
when he would not divulge the whereabouts of his
cousin, I believe. This testimony was introduced by the
state to establish and corroborate what the state claims
was the [petitioner’s] motive to commit the crimes
charged here. Additionally, the state claims that the
motive for stealing a 1984 Buick belonging to Mr. Alejo
Rivera was to obtain a vehicle for use in the commission
of the shooting on Button Street. The jury should exam-
ine the conduct of an accused in the light of the sur-
rounding circumstances. Knowing how the human mind
ordinarily operates, the jury should try to determine
whether on all of the evidence it can reasonably be
inferred that the [petitioner] had a motive to commit
the crime. If the existence of a motive can be found,
that is evidence tending to prove the [petitioner’s] guilt.
If no motive can be found, that may tend to raise a
reasonable doubt as to the guilt of the accused or it
may raise such a doubt. However, I must instruct you
that even a total lack of evidence as to motive would
not necessarily raise a reasonable doubt as to the guilt
of the [petitioner] so long as there is other evidence
produced that is sufficient to prove guilt beyond a rea-
sonable doubt. . . . Whether a motive can be found in
this case is a determination that you should make and
thereafter decide upon the weight such a motive or
absence thereof should have. Ladies and gentlemen,
you will weigh and consider all of the evidence before
you in arriving at your verdicts.’’
This issue was preserved at trial. The petitioner’s trial
counsel, outside of the presence of the jury, objected
to the court’s charge on motive on the ground that
the court marshalled the evidence by identifying the
petitioner and his associates in connection with the
incident by referring to stealing the Buick with the
intention of going to Button Street. The court responded
that a reasonable jury would not misunderstand the
charge to mean that the court assumed that the stolen
Buick was the car used in the shooting.
‘‘The purpose of marshalling the evidence, a more
elaborate manner of judicial commentary, is to provide
a fair summary of the evidence, and nothing more; to
attain that purpose, the [trial] judge must show strict
impartiality. . . . The influence of the trial judge on
the jury is necessarily and properly of great weight
and his lightest word or intimation is received with
deference, and may prove controlling. . . . To avoid
the danger of improper influence on the jury, a recita-
tion of the evidence should not be so drawn as to direct
the attention of the jury too prominently to the facts
in the testimony on one side of the case, while sinking
out of view, or passing lightly over, portions of the
testimony on the other side, which deserve equal atten-
tion. . . . Even where the [petitioner] has presented
no evidence, the [trial] court’s summary of the evidence
should try to give fair recognition to relevant points
raised by the defense in cross-examination as well as
to the general theory of the defense. . . .
‘‘In addition, a court must take care to avoid making
improper remarks which are indicative of favor or con-
demnation . . . and must not indulge in an argumenta-
tive rehearsal of the claims of one side only. . . . Such
proscriptions are of heightened importance in a crimi-
nal case, where considerations of due process require
that a criminal defendant be given a fair trial before an
impartial judge and an unprejudiced jury in an atmo-
sphere of judicial calm. . . . The right of an accused
in a criminal trial to due process is, in essence, the
right to a fair opportunity to defend against the state’s
accusations. . . . [P]artisan commentary, if fairly
established by the record . . . deprives defendants of
the very essence of their constitutional right to a fair
trial by an impartial jury. . . .
‘‘Nevertheless, [i]t is well established that a court
may comment to the jury on the weight of the evidence
as long as it does not direct the jury as to how to resolve
a particular question. . . . In fact, in some cases it is
the trial court’s duty to refer to testimony in order to
assist the jury in relating the facts to the law. . . . Jury
instructions must go beyond a mere recitation of legal
principles. . . . It would be a Herculean task, and not
one required under our law, for the trial court to achieve
exact parity in the time spent on comments of both the
prosecution and defense portions of a case. [T]he fact
that the claims or evidence of one party are stated at
much greater length than those of the other does not
by itself render the court’s summary of the evidence in
its charge unfair.’’ (Citation omitted; internal quotation
marks omitted.) State v. Campbell, 149 Conn. App. 405,
412–13, 88 A.3d 1258, cert. denied, 312 Conn. 907,
A.3d (2014).
‘‘To determine whether the court’s instructions were
improper, we review the entire charge to determine if,
taken as a whole, the charge adequately guided the jury
to a correct verdict. . . . The pertinent test is whether
the charge, read in its entirety, fairly presents the case
to the jury in such a way that injustice is not done to
either party under the established rules of law. . . .
[I]n appeals involving a constitutional question, [the
standard is] whether it is reasonably possible that the
jury [was] misled.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Figueroa, 235 Conn. 145,
170–71, 665 A.2d 63 (1995).
The court’s instruction did not assume the validity
of the state’s theory on motive, but, rather, mentioned
the state’s theory on motive in order to provide context,
so that the jury could understand the charge. It
instructed the jury to decide whether the petitioner had
a motive to commit the crimes because the existence
of motive may tend to prove guilt, while an absence of
motive may tend to raise a reasonable doubt as to guilt.
The court did not single out any testimony of the state’s
witnesses or imply that any particular evidence was
credible. After reviewing the entire charge, we note that
the court instructed the jury multiple times that it was
the sole trier of the facts. It also instructed that the
jury’s recollection of the evidence was controlling and,
in general, that if the court should incorrectly state any
evidence that the jury should correct the error, because
it is the province of the jury to determine what the facts
are. See, e.g., State v. Dixon, 62 Conn. App. 643, 648–49,
772 A.2d 166 (2001) (court did not improperly marshal
evidence in favor of state in its instruction where court
instructed jury that it was sole trier of fact, that its
recollection of evidence controls and that it should
disregard court’s opinion regarding facts). Because the
trial transcript reveals that the second count of the
habeas petition indeed lacked merit, the petitioner had
not established a prima facie case. Accordingly, the
court properly granted the respondent’s motion to dis-
miss as to that count.
The court did not err in denying the petition for certifi-
cation to appeal as to its dismissal under Practice Book
§ 15-8 of count two of the habeas petition. The petitioner
has not demonstrated that the issue was debatable
among jurists of reason, that a court could resolve the
issue in a different manner, or that the questions raised
deserve encouragement to proceed further.
B
We next turn to count three of the habeas petition,
in which the petitioner alleged that his habeas counsel
in a prior proceeding was ineffective for failing to raise
a claim of ineffective assistance of appellate counsel
on the ground that appellate counsel failed to raise an
issue on direct appeal regarding the court’s instruction
on motive.
For assessing claims of ineffective assistance based
on the performance of prior habeas counsel, the Strick-
land standard is as follows. ‘‘[When] applied to a claim
of ineffective assistance of prior habeas counsel, the
Strickland standard requires the petitioner to demon-
strate that his prior habeas counsel’s performance was
ineffective and that this ineffectiveness prejudiced the
petitioner’s prior habeas proceeding. . . . [T]he peti-
tioner will have to prove that . . . prior habeas coun-
sel, in presenting his claims, was ineffective and that
effective representation by habeas counsel establishes
a reasonable probability that the habeas court would
have found that he was entitled to reversal of the convic-
tion and a new trial . . . . Therefore, as explained by
our Supreme Court in Lozada v. Warden, 223 Conn. 834,
613 A.2d 818 (1992), a petitioner claiming ineffective
assistance of habeas counsel on the basis of ineffective
assistance of [appellate] counsel must essentially sat-
isfy Strickland twice: he must prove both (1) that his
appointed habeas counsel was ineffective, and (2) that
his [appellate] counsel was ineffective.’’ (Citations omit-
ted; internal quotation marks omitted.) Lapointe v.
Commissioner of Correction, supra, 113 Conn. App.
394.
Therefore, in order to set forth a prima facie case of
ineffective assistance of habeas counsel on the ground
of ineffective assistance of appellate counsel, the peti-
tioner must set forth a prima facie case of ineffective
assistance of appellate counsel. Because the petitioner
failed to set forth a prima facie case regarding the inef-
fective assistance of his appellate counsel, he has not
set forth a prima facie case of ineffective assistance of
his habeas counsel. Accordingly, because count two
was properly dismissed, count three, likewise, was
properly dismissed. The court did not abuse its discre-
tion in denying the petition for certification to appeal
as to this issue because the petitioner has not demon-
strated that the issue was debatable among jurists of
reason, that a court could resolve the issue in a different
manner, or that the questions raised deserve encourage-
ment to proceed further.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner appealed to this court. The appeal was transferred to our
Supreme Court pursuant to Practice Book § 65-2 and General Statutes § 51-
199 (c). Ham v. Commissioner of Correction, 301 Conn. 697, 698, 23 A.3d
682 (2011).
2
There is no indication in the record supporting the idea that consultation
with a ballistics expert would have resulted in a more effective cross-exami-
nation.
3
This also was the only evidence submitted by the petitioner in support
of count three.
4
Our review of whether the petitioner has established a prima facie case is,
as noted previously, plenary. See Lapointe v. Commissioner of Correction,
supra, 113 Conn. App. 388.