Myers v. State ( 2022 )

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RICARDO MYERS v. COMMISSIONER
OF CORRECTION
(AC 44679)
RICARDO O. MYERS v. STATE
OF CONNECTICUT
(AC 44736)
Bright, C. J., and Prescott and Moll, Js.
Syllabus
The petitioner, who had been convicted of murder and assault in the first
degree in connection with a shooting, filed, in one case, a petition for
a writ of habeas corpus and, in a second case, a petition for a new trial.
Six days after the shooting, R gave a video recorded interview to the
police, in which he admitted to being present at the shooting and identi-
fied another individual, P, as the shooter. R subsequently failed to appear
at the petitioner’s criminal trial, even though the petitioner’s trial counsel
had served him with a subpoena ad testificandum. The trial court issued
a capias warrant for R and continued the case for the weekend at the
request of trial counsel, but R could not be located. Rather than request
an additional continuance to give the authorities additional time to
locate R and execute the capias, trial counsel moved to admit the video
recording of R’s interview under the residual exception to the hearsay
rule, but the trial court concluded that it was inadmissible. In his habeas
petition, the petitioner alleged actual innocence and ineffective assis-
tance of counsel, insofar as trial counsel failed to undertake greater
efforts, after learning that the capias warrant had not been served, to
secure R’s presence and testimony at the criminal trial. Thereafter, R
was served with a subpoena to appear at the petitioner’s habeas trial,
but he again failed to appear. The petitioner requested a capias warrant
to secure R’s attendance and a continuance for the purpose of locating
R and executing the capias, but the habeas court denied the requests.
Following the habeas trial, the habeas court denied the habeas petition
and, thereafter, granted the petition for certification to appeal. In his
petition for a new trial, the petitioner claimed that R’s statement to the
police identifying P as the shooter constituted newly discovered evi-
dence that was likely to produce a different result in a new trial. The
respondent in that case, the state of Connecticut, moved for summary
judgment on the ground that the petition for a new trial was filed outside
the applicable statute of limitations (§ 52-582) and, therefore, was time
barred. In response, the petitioner argued that the petition was not time
barred because that statute includes an exception for petitions, like his,
that are ‘‘based on DNA (deoxyribonucleic acid) evidence or other newly
discovered evidence . . . that was not discoverable or available at the
time of the original trial,’’ which ‘‘may be brought at any time after the
discovery or availability of such new evidence . . . .’’ The trial court
granted the respondent’s motion for summary judgment, noting, inter
alia, that there was no support for the position that the unavailability
of a witness was the equivalent of newly discovered evidence. Accord-
ingly, the court dismissed the petition for a new trial and denied the
petitioner’s petition for certification to appeal therefrom. Held:
1. The habeas court properly denied the petition for a writ of habeas corpus,
and, accordingly, this court affirmed the habeas court’s judgment in
that case:
a. The habeas court correctly concluded that the petitioner failed to prove
that his trial counsel rendered deficient performance by not undertaking
greater efforts to secure R’s testimony after learning that the capias
warrant had not been served: trial counsel testified at length at the
habeas trial about his efforts to secure R’s appearance and testimony
at trial, which included retaining a private investigator to locate R, having
a subpoena served on R, following up with R prior to trial, obtaining
the weekend continuance, and moving to admit the video recording of
R’s interview into evidence pursuant to the residual hearsay exception;
moreover, this court could not conclude that trial counsel’s failure to
request a second continuance amounted to ineffective assistance or that
it was unreasonable for trial counsel to conclude that additional attempts
to locate R would have been in vain, especially in light of R’s previous
success at evading authorities, and the petitioner did not overcome the
presumption that trial counsel’s decision not to further delay the criminal
trial by continuing the search for R was sound trial strategy, given that
additional efforts to locate R might have resulted in jurors becoming
unavailable or the jurors’ memories fading; furthermore, trial counsel’s
decision to seek to admit the video recording under the residual excep-
tion in lieu of undertaking further efforts to locate R was reasonable,
despite the rare application of the residual exception, given the circum-
stances of the petitioner’s criminal case.
b. The petitioner could not prevail on his claim that the habeas court
improperly denied his actual innocence claim, which was premised on
his argument that, by denying his request for a capias warrant and a
continuance to secure R’s testimony at the habeas trial, the habeas court
prevented the petitioner from proving that P was the shooter: even if it
is assumed that the habeas court abused its discretion by denying the
requests for a capias warrant and a continuance, any error was harmless
because, even had R testified at the habeas trial consistent with his video
recorded interview, that testimony was not sufficient to establish, by
clear and convincing evidence, that the petitioner was actually innocent
of the charged crimes; in the present case, R’s testimony identifying P
as the shooter could not have unquestionably established the petitioner’s
innocence as it would not have negated the evidence of the petitioner’s
guilt that was admitted at his criminal trial, including eyewitness testi-
mony that it was the petitioner who shot the victim, the fact that the
gun used in the shooting was owned by the petitioner and found in his
possession one month afterward, and the fact that the petitioner made
no effort at his habeas trial to undermine the evidence pointing to his guilt.
2. The trial court properly dismissed the petitioner’s petition for a new trial,
as R’s video recorded interview did not constitute newly discovered
evidence under § 52-582, and, accordingly, this court dismissed the peti-
tioner’s appeal in that case: because the language of § 52-582 was ambigu-
ous with respect to whether ‘‘newly discovered evidence,’’ as used
therein, included both forensic evidence and all other types of evidence
or, instead, only evidence that was forensic in nature, this court looked
to the statute’s legislative history, and especially a recent amendment
(P.A. 18-61) expanding the circumstances in which a petition for a new
trial may be filed after the limitation period had otherwise run, which
indicated the legislature’s intent to narrowly define newly discovered
evidence, for purposes of § 52-582, to include only forensic evidence;
in the present case, because the petitioner’s untimely petition for a new
trial was not based on newly discovered forensic evidence but, rather,
R’s statement to the police identifying P as the shooter, the trial court
correctly concluded that the petition for a new trial was time barred
and that it lacked subject matter jurisdiction over it.
(One judge concurring in part and dissenting in part)
Argued May 9—officially released October 11, 2022
Procedural History
Amended petition, in the first case, for a writ of
habeas corpus, brought to the Superior Court in the
judicial district of Tolland and tried to the court, Oliver,
J.; judgment denying the petition, from which the peti-
tioner, on the granting of certification, appealed to this
court, and petition, in a second case, for a new trial
following the petitioner’s conviction of the crimes of
murder and assault in the first degree, brought to the
Superior Court in the judicial district of New Haven,
where the court, Young, J., dismissed the petition;
thereafter, the court, Young, J., denied the petition for
certification to appeal, and the petitioner appealed to
this court. Affirmed in Docket No. AC 44679; appeal
dismissed in Docket No. AC 44736.
Vishal K. Garg, for the appellant in Docket Nos. AC
44679 and AC 44736 (petitioner).
Linda Frances Rubertone, senior assistant state’s
attorney, with whom, on the brief, were Patrick J. Grif-
fin, former state’s attorney, and Craig Nowak, senior
assistant state’s attorney, for the appellee in Docket
No. AC 44679 (respondent).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, former
state’s attorney, and Craig Nowak, senior assistant
state’s attorney, for the appellee in Docket No. AC
44736 (state).
Opinion
MOLL, J. These two appeals arise out of two postcon-
viction actions filed by the petitioner, Ricardo Myers.
In Docket No. AC 44679, the petitioner appeals, follow-
ing the granting of his petition for certification to
appeal, from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the habeas court
improperly (1) concluded that he failed to show that
his trial counsel had performed deficiently, (2) rejected
his actual innocence claim, and (3) determined that his
due process rights were not violated. The petitioner
further claims that the habeas court erred in denying
his request for a capias and a continuance so that the
petitioner could secure the appearance of an exculpa-
tory witness at his habeas trial. In Docket No. AC 44736,
the petitioner appeals, following the denial of his peti-
tion for certification to appeal, from the judgment of
the trial court dismissing his petition for a new trial.
The petitioner claims on appeal that the trial court erred
in determining that his petition for a new trial was time
barred pursuant to General Statutes § 52-582. As to AC
44679, we affirm the judgment of the habeas court. As
to AC 44736, we dismiss the petitioner’s appeal.
The following facts, as set forth by this court in the
petitioner’s direct appeal from his conviction and as
supplemented by the record, and procedural history are
relevant to our resolution of both appeals. ‘‘On May 17,
2013, the [petitioner], along with Dwight Crooks and
Gary Pope, was at the Lazy Lizard club in New Haven.
The club let out during the early hours of May 18, 2013,
and the trio made its way out with the crowd. Once
outside, an argument ensued between the [petitioner’s]
group and another group that was across the street.
The argument escalated to a physical altercation before
officers of the New Haven police stepped in and caused
the groups to disperse. The [petitioner] and his friends
then got into Pope’s car and drove around before park-
ing in a different lot not far from the club. The three
then headed out on foot to meet someone they knew
when they encountered again the group from [the] Lazy
Lizard. Some provocative remarks were made and the
two groups moved toward each other. Crooks testified
at trial that, at this point, he heard gunshots, and he
turned to see the [petitioner] holding a gun. Two bullets
struck and killed Tirrell Drew, who was a member of
the other group, and stray bullets injured two bystand-
ers. The bullets recovered from Drew’s body were found
to have been fired from a .40 caliber semiautomatic
Glock handgun owned by the [petitioner] and seized
from his residence by the police on June 14, 2013, nearly
a month after the shooting.
‘‘The [petitioner] subsequently was arrested and
charged with murder and two counts of assault in the
first degree. . . . [S]ix days after the shooting, a person
named Latrell Rountree, while in custody on an unre-
lated matter, revealed to the police that he was Drew’s
friend and was present when Drew was shot. Rountree
identified Pope as the shooter.’’ State v. Myers, 178
Conn. App. 102, 103–104, 174 A.3d 197 (2017). Roun-
tree’s interview with the police was video recorded.
The petitioner planned to call Rountree as a witness
at his criminal trial and intended to use his testimony
about the shooting as the basis for a third-party culpabil-
ity defense. Id., 104. The petitioner’s trial counsel
believed that Rountree’s identification of Pope as the
shooter was the strongest piece of evidence that the
defense had to support its theory of defense.1 To that
end, trial counsel hired Daniel Markle, a private investi-
gator, to locate Rountree and serve him with a subpoena
ad testificandum.
Markle located Rountree on May 28, 2015, after two
and one-half weeks of searching and on the third day
of the petitioner’s criminal trial. That same day, Markle
met Rountree at a McDonald’s in North Haven and
served him with a subpoena commanding him to appear
in court the following day, May 29, 2015. According to
Markle, Rountree was not happy to be served with the
subpoena and left it behind after reading it.
On May 29, 2015, Rountree failed to appear in court.
Trial counsel then requested that the court issue a
capias warrant pursuant to General Statutes § 54-2a in
order to secure Rountree’s attendance.2 After Markle
testified that he had located Rountree the day before
and had served him with a subpoena, the court granted
trial counsel’s request, stating: ‘‘Court’s exhibit 3
reflects the fact that Mr. Rountree was commanded to
appear in court today, May 29, at 9:30 a.m. to testify in
this proceeding. Obviously, he is not here. We have had
no contact from him. Therefore, the court is going to
authorize pursuant to statute a capias to secure his
appearance. This matter will be continued until Mon-
day, at which time that will give the authorities the rest
of today, tonight, tomorrow, and Sunday to attempt to
serve him and bring him to court.’’
The authorities, however, were unable to locate
Rountree by Monday. After learning that Rountree had
not been found, trial counsel did not ask for a continu-
ance or request that the authorities be given additional
time to locate him. Instead, trial counsel moved to admit
into evidence the video recording of Rountree’s inter-
view with the police, in which Rountree had identified
Pope as the shooter. The court ruled that the recording
was not admissible under the residual exception to the
hearsay rule3 because it did not bear the requisite indicia
of trustworthiness and reliability necessary for admis-
sion under the exception.4 See State v. Myers, supra,
178 Conn. App. 104–105; id., 105 n.2. Thereafter, the
parties rested, and the matter was submitted to the
jury. ‘‘On June 3, 2015, the jury found the [petitioner]
guilty on all three counts, and the court rendered judg-
ment accordingly.’’ Id., 105.
The petitioner then appealed from his judgment of
conviction to this court, claiming that the trial court
had abused its discretion in refusing to admit into evi-
dence the video recording in which Rountree identified
Pope as the shooter. We affirmed the judgment of the
trial court, concluding that, because ‘‘the jury reason-
ably could have found that the [petitioner] shot Drew
to death . . . we are not convinced that any harm
resulting from the exclusion of Rountree’s interview is
self-evident in light of the evidence presented at trial.’’
Id., 108. We further held that, ‘‘because the [petitioner]
failed to brief and analyze . . . the resulting harm from
the court’s exclusion of the video recording,’’ we would
not consider whether the trial court abused its discre-
tion. Id. Additional facts and procedural history will be
set forth as necessary.
I
AC 44679
On appeal, the petitioner challenges the habeas
court’s denial of his amended petition for a writ of
habeas corpus, wherein he asserted that (1) his trial
counsel was ineffective for failing to secure the testi-
mony of Rountree and (2) he was actually innocent
based on Rountree’s identification of someone else as
the shooter.5 The petitioner further claims that the
habeas court abused its discretion when it denied his
request to issue a capias warrant and to grant a continu-
ance in order to secure Rountree’s attendance and testi-
mony at the petitioner’s habeas trial.
We first set forth the following additional facts and
procedural history, which are relevant to our resolution
of these claims. On March 16, 2020, the self-represented
petitioner filed a three count amended petition for a
writ of habeas corpus, which is the operative habeas
petition in the present case.6 In count one, the petitioner
alleged that his right to effective assistance of counsel
had been violated because his trial counsel had failed:
(1) ‘‘to request [an] adjournment to locat[e] [Rountree],’’
(2) ‘‘to proffer a written or verbal request to the court
for a third-party culpability jury instruction,’’ (3) ‘‘to
adequately search for [Rountree],’’ and (4) ‘‘to investi-
gate to ensure the execution of [a] capias warrant.’’ In
count two, the petitioner alleged that he was actually
innocent, based on Rountree’s identification of Pope
as the shooter. Last, in count three, the petitioner
alleged that his state and federal due process rights had
been violated by (1) the state marshal service’s failure
to execute the capias warrant and (2) the court clerk’s
failure to follow the proper procedures for issuing the
capias warrant. See footnote 5 of this opinion.
On May 5, 2020, the respondent, the Commissioner
of Correction, filed a return to the amended habeas
petition, wherein he admitted the petitioner’s proce-
dural allegations but otherwise left the petitioner to his
proof. Thereafter, on July 24, 2020, the petitioner filed
two separate applications for issuance of subpoenas by
a self-represented party pursuant to Practice Book § 7-
19,7 seeking subpoenas for his trial counsel, Rountree,
and Markle.8 On August 12, 2020, the habeas court
granted the petitioner’s applications, and subpoenas
later were issued and served on trial counsel, Rountree,
and Markle.9
It was the petitioner’s belief, based on the information
available on the Department of Correction’s website,
that Rountree would be released from custody after the
last scheduled trial date of October 8, 2020. In late
September, 2020, however, the petitioner learned that
Rountree’s release date had been changed and that
Rountree was scheduled to be released on October 2,
2020. The petitioner then filed, through his standby
counsel, a motion to move the scheduled habeas trial
date of October 8, 2020, to October 1, 2020, to ensure
that Rountree would appear and testify. The motion
further stated that, ‘‘[i]f Rountree is released, there is
a significant chance that he will not honor a subpoena
to testify at the petitioner’s habeas trial, much the way
he did at the petitioner’s criminal trial.’’ The court
denied the motion to change the trial date without preju-
dice, stating that the requested date was unavailable.
A two day habeas trial was held on October 7 and
8, 2020. The petitioner, assisted by standby counsel,
represented himself at the trial. On October 7, 2020, he
presented testimony from his trial counsel and Markle.
Trial counsel testified about the steps he took to
locate Rountree and to secure his attendance at the
petitioner’s criminal trial. Trial counsel specifically tes-
tified that he had subpoenaed Rountree for the criminal
trial and that the subpoena was successfully served,
but that Rountree failed to appear in court. Trial counsel
further stated that, after Rountree failed to appear, he
requested a capias warrant and the requested capias
warrant was issued, but Rountree could not be located.
Trial counsel also stated that it was not his responsibil-
ity to follow up on the capias warrant and, thus, he
could not testify as to what steps the state marshals
took when trying to find Rountree. Last, trial counsel
testified that when it became clear on Monday that
Rountree was not going to appear, he developed
another strategy for introducing his testimony, specifi-
cally, by ‘‘hav[ing] the judge find Mr. Rountree not avail-
able and attempt[ing] to admit his videotaped statement
into evidence in place of his testimony.’’
Markle testified about what he did to locate Rountree
and to serve him with the subpoena. Markle stated
that it took him about two and one-half weeks to find
Rountree and that he was a ‘‘middle of the road’’ person
to locate. Markle further testified that it might have
been ‘‘possible’’ to locate Rountree a second time. Last,
Markle stated that trial counsel never asked him to
assist the state marshals in their search for Rountree.
On October 8, 2020, the petitioner sought to present
testimony from Rountree. Rountree, however, failed to
honor his subpoena and did not appear in court. The
petitioner then presented testimony from Salvatore Vig-
lione, a private investigator whom the petitioner’s fam-
ily had hired to locate and communicate with Rountree.
Viglione testified that he had met with Rountree several
months earlier at the Willard-Cybulski Correctional
Institution in Enfield, where Rountree was incarcerated
at the time. Viglione also stated that he exchanged
phone calls and text messages with Rountree after he
was released from custody on October 2, 2020. Viglione
further testified that, on October 7, 2020, Rountree
called him from a ‘‘throwaway phone’’10 with a New
Jersey area code to tell Viglione that he had changed his
mind about testifying. When speaking with Rountree,
Viglione asked him where he was, but Rountree
declined to say.
The petitioner then requested that the habeas court
issue a capias warrant to secure Rountree’s attendance
and to grant a continuance for the purpose of locating
Rountree and executing the capias. As to the continu-
ance, the petitioner initially asked for a continuance
‘‘until such time as the court resume[s] [in-person] hear-
ings,’’ unless the state marshals were able to find
Rountree earlier. The petitioner later indicated that a
one month continuance would be sufficient. The court
denied both requests, stating: ‘‘[N]oting [Rountree’s]
potential presence in New Jersey, his unwillingness to
indicate his location, and his specific unwillingness to
[testify], it’s certainly a similar situation [as] at the
underlying trial. And in this court’s discretion I see no
reasonable basis to grant this capias, also no reasonable
basis to simply continue this matter for such purpose.
The capias request is denied and the motion for a contin-
uance is denied.’’ The petitioner then rested his case
without presenting testimony from Rountree.
In a memorandum of decision dated November 23,
2020, the court denied the petitioner’s habeas petition.
As to the petitioner’s ineffective assistance of counsel
claim, the court found that the petitioner had failed
to prove that his trial counsel had rendered deficient
performance because the evidence introduced at trial
demonstrated that trial counsel had made repeated
attempts to secure Rountree’s appearance and that,
when those efforts failed, attempted to introduce video
recorded evidence of Rountree’s testimony instead.11
The court further held that, even if trial counsel’s perfor-
mance had been deficient, because Rountree did not
testify at the habeas trial, the court was unable to deter-
mine whether any prejudice had occurred. The court
next denied the petitioner’s actual innocence claim on
the grounds that ‘‘[t]he petitioner has not presented
any newly discovered evidence in support of his actual
innocence claim’’ and ‘‘there is no evidence that satisfies
the clear and convincing standard’’ for such claims.
Last, the court concluded that the petitioner’s due pro-
cess claim failed because insufficient evidence was pre-
sented to substantiate the claim. On November 23, 2020,
the petitioner filed a petition for certification to appeal,
which the habeas court granted. The present appeal
followed.12
A
Ineffective Assistance of Counsel
As previously stated, in his amended petition for a
writ of habeas corpus, the petitioner alleged that his
trial counsel was ineffective in four separate ways. On
appeal, however, the petitioner concedes in his princi-
pal appellate brief that the ‘‘gravamen of the petitioner’s
[ineffective assistance] claim is that [trial counsel]
failed to request an adjournment to search for and
locate [Rountree] and secure via a capias his presence at
the criminal trial.’’ (Internal quotation marks omitted.)
More specifically, the petitioner claims that the habeas
court improperly concluded that he failed to show that
his trial counsel performed deficiently by failing to
undertake greater efforts to secure Rountree’s testi-
mony after learning that the capias warrant had not
been served. We are not persuaded.
We begin by setting forth the law governing claims of
ineffective assistance of counsel and the corresponding
standard of review. ‘‘In Strickland v. Washington, [466
U.S. 668, 687,104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)],
the United States Supreme Court established that for
a petitioner to prevail on a claim of ineffective assis-
tance of counsel, he must show that counsel’s assis-
tance was so defective as to require reversal of [the]
conviction . . . . That requires the petitioner to show
(1) that counsel’s performance was deficient and (2)
that the deficient performance prejudiced the defense.
. . . Unless a [petitioner] makes both showings, it can-
not be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the
result unreliable. . . . Because both prongs . . . must
be established for a habeas petitioner to prevail, a court
may dismiss a petitioner’s claim if he fails to meet either
prong. . . .
‘‘To satisfy the performance prong [of the Strickland
test] the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . [A]
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable pro-
fessional assistance; that is, the [petitioner] must over-
come the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy.’’ (Citations omitted; internal quotation marks
omitted.) Holloway v. Commissioner of Correction, 145
Conn. App. 353, 364–65, 77 A.3d 777 (2013).
Moreover, ‘‘[i]n any case presenting an ineffec-
tiveness claim, the performance inquiry must be
whether counsel’s assistance was reasonable consider-
ing all the circumstances. . . . No particular set of
detailed rules for counsel’s conduct can satisfactorily
take account of the variety of circumstances faced by
defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant.
. . . Judicial scrutiny of counsel’s performance must
be highly deferential. It is all too tempting for a defen-
dant to second-guess counsel’s assistance after convic-
tion or adverse sentence, and it is all too easy for a
court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omis-
sion of counsel was unreasonable. . . . A fair assess-
ment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s chal-
lenged conduct, and to evaluate the conduct from coun-
sel’s perspective at the time. . . . Thus, a court decid-
ing an [ineffective assistance] claim must judge the
reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of
counsel’s conduct.’’ (Citations omitted.) Strickland v.
Washington, supra, 466 U.S. 688–90.
‘‘With respect to the prejudice component of the
Strickland test, the petitioner must demonstrate that
counsel’s errors were so serious as to deprive the [peti-
tioner] of a fair trial, a trial whose result is reliable.
. . . It is not enough for the [petitioner] to show that
the errors had some conceivable effect on the outcome
of the proceedings. . . . Rather, [t]he [petitioner] must
show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome.’’ (Internal quotation marks
omitted.) Holloway v. Commissioner of Correction,
supra, 145 Conn. App. 365.
‘‘On appeal, [a]lthough the underlying historical facts
found by the habeas court may not be disturbed unless
they [are] clearly erroneous, whether those facts consti-
tuted a violation of the petitioner’s rights [to the effec-
tive assistance of counsel] under the sixth amendment
is a mixed determination of law and fact that requires
the application of legal principles to the historical facts
of [the] case. . . . As such, that question requires ple-
nary review by this court unfettered by the clearly erro-
neous standard [of review].’’ (Internal quotation marks
omitted.) Leconte v. Commissioner of Correction, 207
Conn. App. 306, 319–20, 262 A.3d 140, cert. denied, 340
Conn. 902, 263 A.3d 387 (2021).
On the basis of our careful review of the record, we
conclude that the habeas court properly found that the
petitioner failed to prove that trial counsel’s failure to
secure the testimony of Rountree amounted to deficient
performance.
On appeal, the petitioner claims that trial counsel’s
efforts to secure Rountree’s testimony were insufficient
and amounted to ineffective assistance because, after
learning that Rountree had not been taken into custody
following the issuance of the capias warrant, trial coun-
sel undertook no additional efforts to secure his appear-
ance. Specifically, the petitioner contends that trial
counsel should have asked for a second continuance
during which trial counsel and the state marshals could
have continued looking for Rountree. The petitioner
further argues that trial counsel ‘‘was not absolved of his
obligation to seek additional time to secure Rountree’s
presence simply because counsel had an alternative
strategy of offering Rountree’s video recorded state-
ment,’’ given that ‘‘[r]easonably competent counsel
would have recognized that seeking admission of a
video-recorded statement under the residual exception
to the hearsay rule was a longshot . . . .’’ Last, the
petitioner argues that trial counsel provided ineffective
assistance because he abdicated responsibility for
ensuring that the capias warrant was served on
Rountree by not following up with the state marshal
service regarding the marshals’ efforts to locate
Rountree. Conversely, the respondent claims that trial
counsel’s performance was reasonable because Roun-
tree’s failure to appear was unrelated to anything trial
counsel did and because trial counsel took reasonable
steps to secure his attendance. The respondent further
argues that trial counsel’s backup plan of offering Roun-
tree’s recorded statement into evidence was also rea-
sonable, given the particular circumstances of this case.
We agree with the respondent.
During the habeas trial, trial counsel testified at
length about his efforts to secure Rountree’s testimony.
Upon learning that Rountree had identified someone
other than the petitioner as the shooter, trial counsel
hired a private investigator, Markle, to locate Rountree,
which Markle was able to do. Prior to the criminal
trial, trial counsel secured a subpoena for Rountree’s
appearance and Markle was able to successfully serve
that subpoena on Rountree. When Rountree failed to
appear, trial counsel then requested that the court issue
a capias warrant. The court granted that request and
continued the trial to the following Monday, so that
Rountree could hopefully be located and brought to
court to testify. That Monday, however, when trial coun-
sel spoke with the state marshal service, he learned
that the marshals had been unable to locate Rountree.
Thereafter, trial counsel moved for the court to admit
into evidence the recorded interview of Rountree pursu-
ant to the residual hearsay exception, but the trial court
denied that motion.
Despite the fact that Rountree’s testimony was never
presented to the jury in the petitioner’s criminal trial,
the petitioner failed to prove that the efforts that trial
counsel undertook to try to secure his testimony were
objectively unreasonable. Although trial counsel could
have requested a second continuance within which to
try again to locate Rountree, we cannot conclude based
on the evidence before the habeas court that his failure
to do so amounted to ineffective assistance. We cannot
say that it was unreasonable for trial counsel to con-
clude that additional attempts to locate Rountree would
have been in vain, given that Rountree had successfully
evaded authorities in the past and that the petitioner’s
jury trial could not be continued indefinitely until
Rountree could be found. In fact, as the petitioner con-
ceded at oral argument before this court, no evidence
was presented at the habeas trial that, if either the state
marshal service or Markle had had a few more days,
they would have been able to find Rountree. Further-
more, the petitioner did not overcome the presumption
that it ‘‘might be considered sound trial strategy’’ on
trial counsel’s part not to further delay the petitioner’s
criminal trial by continuing to search for Rountree,
given that undertaking additional efforts to locate him,
which may well have been futile, might have resulted
in jurors becoming unavailable and/or the fading of
jurors’ memories concerning the petitioner’s case. See
Holloway v. Commissioner of Correction, supra, 145
Conn. App. 364–65 (courts must indulge strong pre-
sumption that challenged actions may have been strate-
gic decisions).
Moreover, trial counsel’s decision to ask that the
video recording of Rountree’s testimony be admitted
under the residual exception to the hearsay rule in lieu
of undertaking further efforts to locate him also did
not rise to the level of ineffective assistance. Although
our Supreme Court has noted that the residual excep-
tion to the hearsay rule ‘‘[should be] applied in the
rarest of cases’’; State v. Bennett, 324 Conn. 744, 762,
155 A.3d 188 (2017); it was reasonable for trial counsel
to believe that the circumstances of the petitioner’s
criminal case—a case in which the only witness whose
testimony could support the defense’s theory could not
be located but a video recording of his exculpatory
testimony existed—was one of those rare cases where
the residual hearsay exception applied. Additionally, as
explained above, this decision ‘‘might be considered
sound trial strategy,’’ given the time constraints of a
jury trial and the lack of evidence that Rountree could
quickly and easily be located if a continuance was
granted. See Holloway v. Commissioner of Correction,
supra, 145 Conn. App. 364–65.
We are not persuaded by the petitioner’s claim that
the facts of the present case are identical to those in
Hodgson v. Warren, 622 F.3d 591 (6th Cir. 2010), and
that we therefore should reach the same outcome. In
Hodgson, trial counsel failed to seek a continuance of
a criminal trial when an exculpatory witness whom
counsel had subpoenaed failed to appear. Id., 594.
Instead, all that counsel did was to refuse the state’s
request to waive the witness’ presence, a step that
caused the court to issue a bench warrant in an attempt
to secure the witness’ appearance. Id., 600. Counsel,
however, did not seek to delay the proceedings so that
the warrant could be served, and the jury began deliber-
ating only three hours after the warrant had issued. Id.Following the defendant’s conviction on all charges,
the defendant filed a petition for a writ of habeas corpus
alleging, in relevant part, that his trial counsel had ren-
dered ineffective assistance by failing to undertake
additional efforts to secure the testimony of the excul-
patory witness. Id., 598. The United States District Court
for the Eastern District of Michigan found that counsel’s
inaction constituted ineffective assistance. Id. On
appeal, the United States Court of Appeals for the Sixth
Circuit agreed, holding that counsel’s failure to seek at
least an adjournment in order to make an additional
attempt to secure the witness’ testimony amounted to
ineffective assistance. Id., 599–600.
We conclude that the present case is distinguishable
from Hodgson in two crucial respects. First, here, after
learning that Rountree had failed to appear in accor-
dance with his subpoena, trial counsel requested that
a capias warrant issue and also secured a continuance
of the trial until the following Monday, which gave the
state marshal service three days to locate Rountree.
Second, upon learning that the state marshal service
had been unable to locate Rountree, trial counsel made
an additional attempt to introduce Rountree’s testimony
by moving for his recorded statement to be admitted
into evidence under the residual hearsay exception.
Thus, in the present case, trial counsel took additional
steps to secure the exculpatory witness’ testimony
beyond those taken by trial counsel in Hodgson. There-
fore, we decline to reach the same conclusion as was
reached in that case.
Accordingly, because the petitioner failed to present
sufficient evidence that trial counsel did not make rea-
sonable efforts to secure Rountree’s appearance and
introduce his testimony, we cannot say that his failure
to request a second continuance constituted deficient
performance. Therefore, the habeas court properly
found that the petitioner failed to prove that trial coun-
sel performed deficiently.13
B
Actual Innocence
The petitioner next claims that the habeas court
improperly denied his actual innocence claim. We again
are not persuaded.
We begin by setting forth the law governing claims
of actual innocence and the corresponding standard of
review. ‘‘Actual innocence, also referred to as factual
innocence . . . is different than legal innocence.
Actual innocence is not demonstrated merely by show-
ing that there was insufficient evidence to prove guilt
beyond a reasonable doubt. . . . Rather, actual inno-
cence is demonstrated by affirmative proof that the
petitioner did not commit the crime. . . .
‘‘[T]he proper standard for evaluating a freestanding
claim of actual innocence . . . is twofold. First, the
petitioner must establish by clear and convincing evi-
dence that, taking into account all of the evidence—
both the evidence adduced at the original criminal trial
and the evidence adduced at the habeas corpus trial—
he is actually innocent of the crime of which he stands
convicted. Second, the petitioner must also establish
that, after considering all of that evidence and the infer-
ences drawn therefrom as the habeas court did, no
reasonable fact finder would find the petitioner guilty
of the crime. . . .
‘‘Our Supreme Court recently clarified the actual
innocence standard in Gould [v. Commissioner of Cor-
rection, 301 Conn. 544, 560–61, 22 A.3d 1196 (2011)].
In Gould, the habeas court found that the petitioner
was entitled to relief on his actual innocence claim after
the recantations of testimony that was the sole evidence
of [the petitioner’s] guilt. . . . On appeal, our Supreme
Court held that the clear and convincing burden . . .
requires more than casting doubt on evidence presented
at trial and the burden requires the petitioner to demon-
strate actual innocence through affirmative evidence
that the petitioner did not commit the crime. . . .
‘‘Affirmative proof of actual innocence is that which
might tend to establish that the petitioner could not
have committed the crime even though it is unknown
who committed the crime, that a third party committed
the crime or that no crime actually occurred. . . .
Clear and convincing proof of actual innocence does
not, however, require the petitioner to establish that
his or her guilt is a factual impossibility. . . .
‘‘With respect to the first component of the petition-
er’s burden, namely, the factual finding of actual inno-
cence by clear and convincing evidence . . . [t]he
appropriate scope of review is whether, after an inde-
pendent and scrupulous examination of the entire
record, we are convinced that the finding of the habeas
court that the petitioner is actually innocent is sup-
ported by substantial evidence.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Jackson v. Commissioner of Correction, 149 Conn.
App. 681, 706–707, 89 A.3d 426 (2014), appeal dismissed,
321 Conn. 765, 138 A.3d 278, cert. denied sub nom.
Jackson v. Semple, U.S. , 137 S. Ct. 602, 196 L.
Ed. 2d 482 (2016); see also Miller v. Commissioner of
Correction, 242 Conn. 745, 791–92, 700 A.2d 1108 (1997)
(establishing clear and convincing evidence standard
for actual innocence claims).
‘‘As to the second component of the petitioner’s bur-
den, that no reasonable fact finder would find the peti-
tioner guilty . . . our scope of review is plenary. A
habeas court is no better equipped than we are to make
the probabilistic determination of whether, considering
the evidence as the habeas court did, no reasonable
fact finder would find the petitioner guilty. That type
of determination does not depend on assessments of
credibility of witnesses or of the inferences that are the
most appropriate to be drawn from a body of evi-
dence—assessments that are quintessentially [the] task
for the [fact finder] in a habeas proceeding. . . .
Determining whether no reasonable fact finder, consid-
ering the entire body of evidence as the habeas court
did, would find the petitioner guilty is either an applica-
tion of law to the facts or a mixed question of law and
fact to which a plenary standard of review applies.’’
(Internal quotation marks omitted.) Harris v. Commis-
sioner of Correction, 134 Conn. App. 44, 51–52, 37 A.3d
802, cert. denied, 304 Conn. 919, 41 A.3d 306 (2012).
On appeal, the petitioner contends that the court
improperly denied his actual innocence claim. Specifi-
cally, the petitioner argues that the court prevented him
from proving his actual innocence claim by denying his
request for a capias warrant and a continuance to secure
Rountree’s testimony at the habeas trial, testimony that
would have demonstrated that Pope, and not the peti-
tioner, was the shooter.
According to the petitioner, both requests should
have been granted because the petitioner had satisfied
the requirements for the issuance of a capias warrant.
Conversely, the respondent argues that (1) the habeas
court acted within its discretion when it denied the
petitioner’s requests for a capias warrant and a continu-
ance and, alternatively, (2) even if it is assumed that
the habeas court erred in denying the petitioner’s
requests, any error was harmless.
‘‘[T]he issuance of a capias [warrant] is not manda-
tory but, rather, rests in the sole discretion of the trial
court.’’ State v. Shawn G., 208 Conn. App. 154, 177, 262
A.3d 835, cert. denied, 340 Conn. 907, 263 A.3d 822(2021). Accordingly, we review a court’s denial of a
request for a capias warrant for an abuse of discretion.
Id. Our review of a court’s ruling on a request for a
continuance is likewise governed by the abuse of discre-
tion standard. Id. ‘‘In determining whether there has
been an abuse of discretion, the ultimate issue is
whether the court could reasonably conclude as it did.’’
Id. Moreover, it is well settled that, in the absence of
structural error, the mere fact that a court issued an
improper ruling does not entitle the party challenging
that ruling to relief. See State v. Myers, supra, 178 Conn.
App. 105. An improper ruling must also be harmful to
justify any relief. See Gonzalez v. Commissioner of
Correction, 127 Conn. App. 454, 460, 14 A.3d 1053, cert.
denied, 302 Conn. 933, 28 A.3d 991 (2011).
Even if we assume that the habeas court abused its
discretion in denying the petitioner’s requests for a
capias warrant and a continuance, we conclude that
any error was harmless because, even had Rountree
testified at the habeas trial consistent with the recorded
statement that he gave to the police before the petition-
er’s criminal trial, his testimony would have been insuf-
ficient to meet the demanding clear and convincing
standard under Miller v. Commissioner of Correction,
supra, 242 Conn. 791–92.
Rountree’s testimony at the petitioner’s habeas trial
would not have satisfied the clear and convincing stan-
dard because his testimony would have been contradic-
tory to the state’s evidence and, thus, it could not have
unquestionably established the petitioner’s innocence.
See Miller v. Commissioner of Correction, supra, 242
Conn. 795 (‘‘the clear and convincing evidence standard
. . . forbids relief whenever the evidence is loose,
equivocal or contradictory’’ (emphasis added; internal
quotation marks omitted)); see also Gould v. Commis-
sioner of Correction, supra, 301 Conn. 561 (‘‘actual
innocence is demonstrated by affirmative proof that
the petitioner did not commit the crime’’). More specifi-
cally, Rountree’s testimony concerning the identity of
the shooter would not have negated the evidence of
the petitioner’s guilt that was admitted at his criminal
trial, specifically, Crooks’ eyewitness testimony that the
petitioner was the one who shot the victim and the fact
that the gun that was used to kill the victim was owned
by the petitioner and found in his possession one month
after the shooting. See State v. Myers, supra, 178 Conn.
App. 108. This is particularly true because the petitioner
made no effort at his habeas trial to impeach or other-
wise call into question the evidence that was introduced
against him at the criminal trial. At most, Rountree’s
testimony might have raised a question as to the peti-
tioner’s guilt that, in turn, could have raised a reason-
able doubt in the minds of the jury. That, however, is
not enough to satisfy the clear and convincing standard
under Miller and Gould. See Gould v. Commissioner
of Correction, supra, 560–61 (‘‘[a]ctual innocence is not
demonstrated merely by showing that there was insuffi-
cient evidence to prove guilt beyond a reasonable
doubt’’); Miller v. Commissioner of Correction,
supra, 795.
Put another way, Rountree’s testimony at the peti-
tioner’s habeas trial would not have satisfied the clear
and convincing standard because, even if Rountree’s
identification of Pope as the shooter had been presented
at the petitioner’s criminal trial, there was still sufficient
evidence from which the jury could find the petitioner
guilty. As this court summarized in the petitioner’s
direct appeal of his conviction, ‘‘the jury reasonably
could have found that the [petitioner] shot Drew to
death by firing two bullets that entered Drew’s body.
Both bullets came from the [petitioner’s] gun and were
recovered from Drew’s body. The [petitioner] still was
in possession of this gun a month after the shooting.
Crooks testified at the defendant’s trial under oath and
was cross-examined on his testimony that it was the
defendant who shot Drew.’’ State v. Myers, supra, 178
Conn. App. 108. Because the jury would not have been
required to believe Rountree, and because the petitioner
at his habeas trial did nothing to undermine the evi-
dence pointing to his guilt, the jury reasonably could
have found him guilty even if Rountree had testified.
In sum, for the foregoing reasons and after an inde-
pendent and scrupulous examination of the entire
record, we conclude that the habeas court did not err
in denying the petitioner’s actual innocence claim.
II
AC 44736
The petitioner claims that the trial court erred in
dismissing his petition for a new trial because the court
incorrectly concluded that (1) the petition had been
filed after the expiration of the limitation period under
General Statutes § 52-582 and (2) therefore, it lacked
subject matter jurisdiction over the petition. We dis-
agree.
We first set forth the following additional facts and
procedural history that are relevant to our resolution
of this claim. On February 26, 2020, the petitioner filed
a petition for a new trial, claiming, in relevant part, that
he was entitled to a new trial on the basis of newly
discovered evidence that was likely to produce a differ-
ent result in a new trial.14 On April 27, 2020, the respon-
dent, the state of Connecticut, filed an answer in which
it denied the petitioner’s claim. Thereafter, on May 11,
2020, the respondent filed a motion for summary judg-
ment and a memorandum in support of that motion. In
its motion, the respondent claimed that the court lacked
subject matter jurisdiction over the petitioner’s petition
for a new trial because the petition had been filed after
the applicable three year statute of limitations had run
and, accordingly, the petitioner’s claim was time barred.
The respondent then also filed an amended answer
wherein it asserted as a special defense that § 52-582,
which provides the applicable statute of limitations,
‘‘may apply depriving this court of subject matter juris-
diction.’’
On May 29, 2020, the petitioner filed an objection to
the respondent’s motion for summary judgment.
According to the petitioner, when § 52-582 was
amended by No. 18-61 of the 2018 Public Acts (P.A.
18-61), a new exception to the limitation period was
created. Under that exception, the petitioner argued
that he was permitted to file his petition for a new trial
after the limitation period had run because the petition
relied on evidence that was unavailable at the time of
the trial, specifically, Rountree’s testimony that some-
one else was the shooter.
On March 2, 2021, the parties appeared and presented
argument on the respondent’s motion for summary
judgment. The respondent first argued that any testi-
mony from Rountree did not qualify as newly discov-
ered evidence because such evidence was known to
the parties at the time of the petitioner’s criminal trial.
The respondent also argued that the new exception
under § 52-582 applied only to newly discovered foren-
sic evidence, not to any and all newly discovered evi-
dence. Conversely, the petitioner argued that § 52-582,
as amended by P.A. 18-61, permits the late filing of a
petition for a new trial based on any newly discovered
evidence, including newly available evidence, and that
because Rountree’s testimony constituted newly avail-
able evidence (given that such testimony was not avail-
able at the petitioner’s criminal trial), his petition was
not time barred.
Thereafter, the court granted the respondent’s
motion for summary judgment and dismissed the peti-
tioner’s motion for a new trial, stating: ‘‘[The petitioner]
has already indicated in his petition itself that Mr. Roun-
tree’s statement was known to him, Mr. Rountree’s testi-
mony was known to him at the time of the underlying
criminal proceeding. And the court finds no support
for the position that the unavailability of a witness is
the equivalent of newly discoverable evidence. So, con-
sequently, the petitioner did not file [his] petition prior
to the expiration of the statute of limitations, depriving
the court of subject matter jurisdiction. So, the petition
is dismissed for lack of subject matter jurisdiction.’’
On March 10, 2021, the petitioner filed a petition for
certification to appeal, which the habeas court denied.
This appeal followed.
We now set forth the relevant standards of review
for the petitioner’s claim. ‘‘It is well established that we
apply the abuse of discretion standard when reviewing
a court’s decision to deny a request for certification to
appeal from a denial of a petition for a new trial. . . .
Therefore, the threshold issue that we must now decide
is whether the court abused its discretion in denying
the petition for certification to appeal. Lozada v. Deeds,
498 U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956(1991), establishes the framework for satisfying the cri-
teria necessary to show an abuse of discretion. A peti-
tioner satisfies that burden by demonstrating: [1] that
the issues are debatable among jurists of reason; [2]
that a court could resolve the issues [in a different
manner]; or [3] that the questions are adequate to
deserve encouragement to proceed further.’’ (Citation
omitted; internal quotation marks omitted.) Holliday v.
State, 111 Conn. App. 656, 658, 960 A.2d 1101 (2008),
cert. denied, 291 Conn. 902, 967 A.2d 112 (2009). In our
review of whether the court abused its discretion in
denying certification to appeal, we necessarily must
examine the petitioner’s underlying claim that the court
improperly concluded that his petition was time barred.
See id., 659.
Whether the court had subject matter jurisdiction to
consider the petitioner’s petition for a new trial on
the basis of newly discovered evidence is an issue of
statutory construction over which our review is plenary.
Turner v. State, 172 Conn. App. 352, 361, 160 A.3d 398(2017). ‘‘When construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . When a statute is
not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter.’’ (Internal
quotation marks omitted.) Id., 362.
We next set forth the law governing petitions for a
new trial. ‘‘Pursuant to [General Statutes] § 52-270, a
convicted criminal defendant may petition the Superior
Court for a new trial on the basis of newly discovered
evidence.’’ Skakel v. State, 295 Conn. 447, 466, 991 A.2d
414 (2010). A critical limitation on the exercise of the
court’s discretion in ruling on a petition for a new trial,
however, is the statute of limitations. As a general rule,
‘‘[n]o petition for a new trial in any civil or criminal
proceeding shall be brought but within three years next
after the rendition of the judgment or decree com-
plained of. . . . The three year period begins to run
from the date of rendition of judgment by the trial court
. . . which, in a criminal case, is the date of imposition
of the sentence by the trial court.’’ (Citations omitted;
internal quotation marks omitted.) Summerville v. War-
den, 229 Conn. 397, 426, 641 A.2d 1356 (1994).
Section 52-582 (a) establishes the three year limita-
tion period for petitions for a new trial. Prior to 2018,
§ 52-582 included an exception to the limitation period
for petitions based on certain DNA evidence, providing:
‘‘No petition for a new trial in any civil or criminal
proceeding shall be brought but within three years next
after the rendition of the judgment or decree com-
plained of, except that a petition based on DNA (deoxy-
ribonucleic acid) evidence that was not discoverable
or available at the time of the original trial may be
brought at any time after the discovery or availability
of such new evidence.’’ (Emphasis added.) General Stat-
utes (Rev. to 2017) § 52-582. Then, in 2018, the legisla-
ture enacted P.A. 18-61, wherein it expanded the cir-
cumstances under § 52-582 in which a petition for a
new trial could be filed after the limitation period had
otherwise run.
General Statutes § 52-582, as amended by P.A. 18-61,
now provides in relevant part: ‘‘(a) No petition for a
new trial in any civil or criminal proceeding shall be
brought but within three years next after the rendition
of the judgment or decree complained of, except that
a petition for a new trial in a criminal proceeding based
on DNA (deoxyribonucleic acid) evidence or other
newly discovered evidence, as described in subsection
(b) of this section, that was not discoverable or avail-
able at the time of the original trial or at the time of any
previous petition under this section, may be brought
at any time after the discovery or availability of such
new evidence, and the court may grant the petition if
the court finds that had such evidence been presented
at trial, there is a reasonable likelihood there would
have been a different outcome at the trial.
‘‘(b) (1) Such newly discovered evidence in support of
a petition for a new trial may include newly discovered
forensic scientific evidence that was not discoverable
or available at the time of the original trial or original
or previous petition for a new trial . . . including that
which might undermine any forensic scientific evidence
presented at the original trial.’’ (Emphasis added.)
Resolving the petitioner’s claim on appeal requires
us to interpret the language of § 52-582. The petitioner
argues that, under § 52-582, the court had subject matter
jurisdiction to consider his petition for a new trial
because, even though the petition was filed outside of
the limitation period, it was based on newly available
evidence—specifically, Rountree’s identification of
Pope as the shooter—and, under the plain language
of § 52-582, newly discovered evidence includes newly
available evidence. Accordingly, he argues, because his
petition was based on newly discovered evidence, it
was not subject to the limitation period. The petitioner
also argues that to the extent that § 52-582 has two
possible interpretations—one interpretation where
newly discovered evidence includes newly available evi-
dence and one where it does not—the interpretation
in which newly discovered evidence includes newly
available evidence is the more logical interpretation.
Conversely, the respondent argues that the court did
not have subject matter jurisdiction to consider the
petitioner’s petition for a new trial because § 52-582
permits a petition for a new trial to be filed outside of
the statute’s limitation period only when the petition
is based on newly discovered DNA or forensic evidence,
neither of which is the basis for the petitioner’s petition.
The respondent further argues that, even if § 52-582
can be interpreted as applying broadly to all newly
discovered evidence, Rountree’s identification of Pope
as the shooter still does not constitute newly discovered
evidence because that information was known and
available to the petitioner at the time of his criminal
trial.
We now turn to the statute at issue. The relevant
statutory language in § 52-582 is as follows: ‘‘(a) No
petition for a new trial . . . shall be brought but within
three years . . . except that a petition for a new trial
in a criminal proceeding based on DNA . . . evidence
or other newly discovered evidence, as described in
subsection (b) of this section, that was not discoverable
or available at the time of the original trial . . . may
be brought at any time . . . . (b) (1) Such newly dis-
covered evidence . . . may include newly discovered
forensic scientific evidence that was not discoverable
or available at the time of the original trial . . . .’’
(Emphasis added.)
On the basis of this language, specifically, the words
‘‘may include,’’ we conclude that there are two reason-
able ways to interpret the phrase ‘‘newly discovered
evidence,’’ as used in § 52-582. Although the word ‘‘may’’
generally conveys ‘‘permissive conduct and the confer-
ral of discretion,’’ ‘‘may’’ can also be interpreted as
mandatory rather than directory when ‘‘the context of
legislation permits such interpretation and if the inter-
pretation is necessary to make a legislative enactment
effective to carry out its purposes . . . .’’ (Internal quo-
tation marks omitted.) Stone v. East Coast Swappers,
LLC, 337 Conn. 589, 601, 255 A.3d 851 (2020); see also
In re Clinton Nurseries, Inc., 608 B.R. 96, 115 (Bankr.
D. Conn. 2019), (‘‘‘[m]ay’ means ‘have permission to
. . .’ but it also means ‘shall, must—used esp[ecially]
in deeds, contracts, and statutes’ ’’), rev’d on other
grounds, 998 F.3d 56 (2d Cir. 2021); Black’s Law Diction-
ary (9th Ed. 2009) p. 1068 (defining ‘‘may’’ as both ‘‘[t]o
be a possibility’’ and ‘‘is required to’’; also stating, ‘‘[i]n
dozens of cases, courts have held may to be synony-
mous with shall or must . . . in an effort to effectuate
legislative intent’’ (emphasis in original)).
The plain language of § 52-582 does not resolve
whether ‘‘may,’’ as used in the statute, was meant to
import permissive or mandatory conduct. If the legisla-
ture intended for ‘‘may’’ to be permissive, then § 52-582
must be read to provide that newly discovered evidence
includes both forensic evidence and all other types of
evidence. On the other hand, if it was the legislature’s
intent for ‘‘may’’ to be mandatory, then § 52-582 must be
interpreted to provide that newly discovered evidence
only includes evidence that is forensic in nature. Both
interpretations are equally reasonable and plausible
readings of § 52-582. Thus, we conclude that § 52-582
is ambiguous; see Lopa v. Brinker International, Inc.,
296 Conn. 426, 430, 994 A.2d 1265 (2010) (‘‘[t]he test to
determine ambiguity is whether the statute, when read
in context, is susceptible to more than one reasonable
interpretation’’ (internal quotation marks omitted));
and, therefore, we may properly look to extratextual
sources to ascertain the intent of the legislature. See
Soto v. Bushmaster Firearms International, LLC, 331
Conn. 53, 111, 202 A.3d 262 (2019).
Accordingly, we turn to the legislative history con-
cerning the legislature’s 2018 amendments to § 52-582.
The legislative history of P.A. 18-61 demonstrates that
it was the legislature’s intent for its amendments to
§ 52-582 to narrowly define newly discovered evidence
as including only forensic evidence.
In a written submission to the Judiciary Committee,
Senator Martin M. Looney, one of the five sponsors of
P.A. 18-61 (Senate Bill 509), explained the purpose of
the act, stating: ‘‘[Senate Bill 509] will update our laws
to accommodate advances in the methods and kinds
of forensic evidence found to be foundationally valid
by the scientific community. . . . The bill would
amend Section 52-582 . . . to permit a convicted per-
son to petition for a new trial based on newly discovered
forensic evidence without being subject to the current
three year time limit on non-DNA evidence. . . . Sen-
ate Bill 509 would allow a judge to grant a new trial
upon a showing that forensic evidence not available
at the time of the original trial would likely have led to
a different outcome. . . . I hope the [c]ommittee will
support this bill to establish a way for the wrongfully
convicted to use newly discovered forensic evidence.’’
(Emphasis added.) M. Looney, Written Testimony
Before the Judiciary Committee in Support of Senate
Bill 509–An Act Concerning Newly Discovered Evi-
dence (March 21, 2018) pp. 1–3. When considering the
legislative history of a statute, we pay particular atten-
tion to the statements of legislators who sponsored
the bill. See Manchester Sand & Gravel Co. v. South
Windsor, 203 Conn. 267, 275, 524 A.2d 621 (1987). Sena-
tor Looney’s statement before the Judiciary Committee
makes clear that it was his belief that P.A. 18-61 would
amend § 52-582 to allow a petition for a new trial to be
filed outside of the limitation period only if the petition
was based on DNA evidence or newly discovered foren-
sic evidence.
In addition, Representative William Tong, when mov-
ing for acceptance of the Joint Committee’s favorable
report and passage of P.A. 18-61 before the House of
Representatives, explained that the act was ‘‘an expan-
sion of our state’s existing law on newly discovered
evidence and the right of a person who petitioned for
a new trial based on newly discovered evidence. We
already have a provision for newly discovered evidence
and a new trial when DNA evidence is provided . . .
we [are now] expanding that provision to include new
forensic and scientific information . . . .’’ (Emphasis
added.) H.R. Proc., 2018 Sess., May 8, 2018, pp. 608–609.
Following Representative Tong’s motion, Representa-
tive Rosa Rebimbas expressed her support for the bill,
stating, ‘‘Because this expansion is specifically only
forensic scientific evidence, I’m comfortable in sup-
porting it . . . . I just wanted to say I actually did reach
out to [the Legislative Commissioners’ Office] and just
reaffirmed that in fact it is limited only to scientific
evidence—forensic scientific evidence . . . .’’
(Emphasis added.) Id., pp. 609–10. Similarly, when Sen-
ator Paul Doyle moved before the Senate for acceptance
of the Joint Committee’s favorable report and passage
of P.A. 18-61, he too stated that the act was intended
to expand current law to give criminal defendants the
right to petition for a new trial after the expiration of
the three year limitation period when such petitions
were based on newly discovered forensic evidence. S.
Proc., 2018 Sess., May 2, 2018, pp. 16–18.
Accordingly, guided by this legislative history, we
conclude that the legislature intended for newly discov-
ered evidence under § 52-582 to include only newly
discovered forensic evidence. Consequently, because
the petitioner’s untimely petition for a new trial was
not based on such evidence, the court correctly con-
cluded that it lacked subject matter jurisdiction over
the petition and properly dismissed the petition on
that basis.15
The judgment of the habeas court in Docket No. AC
44679 is affirmed; the appeal in Docket No. AC 44736
is dismissed.
In this opinion BRIGHT, C. J., concurred.
1
Trial counsel initially considered claiming that the petitioner had acted
in self-defense, but he later decided to present a third-party culpability
defense instead.
2
‘‘A capias is a vehicle to compel attendance at a judicial proceeding.’’
State v. Shawn G., 208 Conn. App. 154, 176, 262 A.3d 835, cert. denied, 340
Conn. 907, 263 A.3d 822 (2021).
General Statutes § 54-2a (a) provides in relevant part: ‘‘In all criminal
cases the Superior Court, or any judge thereof . . . may issue . . . capias
for witnesses . . . who violate an order of the court regarding any court
appearance . . . .’’
3
Section 8-9 of the Connecticut Code of Evidence provides: ‘‘A statement
that is not admissible under any of the foregoing exceptions is admissible
if the court determines that (1) there is a reasonable necessity for the
admission of the statement, and (2) the statement is supported by equivalent
guarantees of trustworthiness and reliability that are essential to other
evidence admitted under traditional exceptions to the hearsay rule.’’
4
Specifically, the court concluded that Rountree’s statement to the police
suffered from numerous trustworthiness problems, including that Rountree
was intoxicated when he witnessed the shooting, waited six days to give a
statement to the police, and gave a statement only after being arrested him-
self.
5
In his principal appellate brief, the petitioner also appeared to claim that
the habeas court had improperly denied his due process claim, wherein he
asserted that his due process rights were violated by ‘‘the marshal service’s
failure to execute the court-ordered capias intended to secure Rountree’s
presence and testimony at the criminal trial’’ and ‘‘[a trial court clerk’s]
purported failure to follow the capias warrant procedures.’’ At oral argument
before this court, however, the petitioner expressly abandoned his due
process claim. Accordingly, we do not consider this claim. See Cunningham
v. Commissioner of Correction, 195 Conn. App. 63, 65 n.1, 223 A.3d 85(2019) (declining to review claims that counsel expressly abandoned at oral
argument), cert. denied, 334 Conn. 920, 222 A.3d 514 (2020).
6
The petitioner initially filed a petition for a writ of habeas corpus in
December, 2016. A scheduling order was issued in connection with that
petition, but no action was taken on the claims asserted therein.
7
Practice Book § 7-19 provides in relevant part: ‘‘Self-represented litigants
seeking to compel the attendance of necessary witnesses in connection with
the hearing of any matter shall file an application to have the clerk of the
court issue subpoenas for that purpose. The application shall include a
summary of the expected testimony of each proposed witness so that the
court may determine the relevance of the testimony. The clerk, after verifying
the scheduling of the matter, shall present the application to the judge before
whom the matter is scheduled for hearing . . . which judge shall conduct
an ex parte review of the application and may direct or deny the issuance of
subpoenas as such judge deems warranted under the circumstances . . . .’’
8
The petitioner also requested that a subpoena be issued for Giovanni
Spennato, the chief clerk for the judicial district of New Haven. That sub-
poena was issued and served. At his habeas trial, however, the petitioner
informed the court that he had ‘‘chosen to forgo that witness’’ and, thus,
he did not present testimony from Spennato at that proceeding.
9
These subpoenas were not immediately served on the witnesses because,
on August 17, 2020, the court vacated its August 12, 2020 order after learning
that Attorney W. Theodore Koch III had filed an appearance in the petitioner’s
habeas case. Thereafter, on August 26, 2020, the court reinstated its original
order granting the petitioner’s application for issuance of subpoenas, stating:
‘‘Following a further review of the file, which established that Attorney Koch
is acting as standby counsel only on behalf of the petitioner, the court’s
[August 17, 2020] order is vacated. The [August 12, 2020] order granting
the application for subpoena as requested is reinstated.’’ The requested
subpoenas were then served.
10
Viglione testified that a ‘‘throwaway phone’’ is a phone for which the
user ‘‘buy[s] a certain amount of minutes’’ and then the user can either
‘‘reuse that phone on additional minutes and/or buy a different phone with
a different number linked up to it.’’
11
On July 2, 2021, during the pendency of the present appeal, the petitioner
filed a motion for articulation with the habeas court asking it to articulate
the basis of its denial of his ineffective assistance of counsel claim. The
habeas court denied the petitioner’s motion for articulation, and the peti-
tioner then filed a motion for review with this court. We granted review
but denied the relief requested.
12
In connection with the petitioner’s petition for certification to appeal,
the petitioner also applied for the appointment of counsel and a waiver of
appellate fees. On December 23, 2020, the habeas court denied that applica-
tion because ‘‘the petitioner was assisted by privately retained standby
counsel.’’ Thereafter, on February 26, 2021, the petitioner filed with this
court a motion for permission to bring a late appeal from the decision of
the habeas court. In that motion, the petitioner represented that, after the
habeas court had denied the application for the appointment of counsel,
the petitioner and his family had contacted the Office of the Chief Public
Defender in an attempt to reverse that denial, but they ultimately retained
private counsel. On April 14, 2021, this court granted the petitioner’s motion
to file a late appeal, and the petitioner filed the present appeal on May 4, 2021.
13
At oral argument before this court, the petitioner conceded that the
habeas court’s failure to grant his request for a capias warrant and for a
continuance to secure Rountree’s testimony went only to the prejudice prong
of the Strickland test. Accordingly, because we can resolve the petitioner’s
ineffective assistance claim on the deficient performance prong alone, we
need not determine, with regard to this claim, whether the habeas court’s
failure to grant a capias warrant and a continuance was an abuse of discre-
tion.
14
The petitioner also claimed in his petition for a new trial that his right
to compulsory process under the sixth amendment had been violated
because he was unable to secure Rountree’s attendance and testimony at
his criminal trial. The court held that this claim also was time barred by
§ 52-582 and the petitioner does not challenge that result on appeal.
15
Because we conclude that § 52-582 does not allow the petitioner to file
his petition for a new trial outside of the three year limitation period,
we need not address the petitioner’s argument that Rountree’s testimony
constitutes newly discovered evidence under Asherman v. State, 202 Conn.
429, 434, 521 A.2d 578 (1978).