Inglis v. Commissioner of Correction ( 2022 )

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ANTONIO INGLIS v. COMMISSIONER
OF CORRECTION
(AC 44492)
Prescott, Moll and Bishop, Js.
Syllabus
The petitioner, who had been convicted of several crimes, including murder,
as a result of a shooting in a nightclub, sought a writ of habeas corpus.
He claimed that his trial counsel rendered ineffective assistance as to
the petitioner’s third-party culpability defense and the admission into
evidence of eyewitness identifications of the petitioner. The petitioner
further claimed that his right to due process under the state constitution
(article first, §§ 8 and 9) was violated because the eyewitness identifica-
tions of him were obtained through unnecessarily suggestive identifica-
tion procedures. The petitioner had claimed that he could not properly
be identified as the shooter because the witnesses could not distinguish
between him and his brother, W, who was present at the time of the
shooting. The trial court declined the petitioner’s request to instruct the
jury on third-party culpability, reasoning that the evidence failed to
establish a direct connection between W and the crimes at issue. The
petitioner claimed that his trial counsel were ineffective for having filed
a request to charge that did not adequately refer to the evidence in
support of the charge, which, in turn, resulted in the court’s declining
to give the jury a third-party culpability instruction. The habeas court
rendered judgment denying the petition and, thereafter, denied the peti-
tioner certification to appeal, and the petitioner appealed to this
court. Held:
1. The habeas court did not abuse its discretion in denying the petitioner
certification to appeal with respect to his claims that his trial counsel
were ineffective in litigating his third-party culpability defense and issues
relating to the admission at trial of the eyewitness identifications of him:
a. The habeas court properly determined that the petitioner was not
prejudiced by his trial counsel’s failure to cite certain evidence in their
request for a jury instruction on third-party culpability, the petitioner
having failed to demonstrate that there was a reasonable probability that
the outcome of his trial would have been different had counsel included
references to that evidence in the request to charge, as this court pre-
viously determined in the petitioner’s direct appeal from his conviction
that the trial court did not improperly decline to instruct the jury on the
proposed charge because the evidence raised merely a bare suspicion
as to a third party, which was insufficient to establish the required direct
connection to that third party so as to warrant a charge on third-party
culpability; moreover, contrary to the petitioner’s claim that his trial
counsel rendered ineffective assistance in failing to present the testimony
of certain eyewitnesses in support of the petitioner’s identification
defense, the petitioner failed to rebut the presumption that counsel
declined to call those witnesses on the basis of reasonable professional
judgment, the habeas court having credited counsel’s testimony that they
had engaged in a risk analysis concerning whether to call the witnesses,
one of whom may have given contradictory statements to the police,
and the other of whom, in a written statement to the police, had identified
the petitioner as the shooter, and it was not for this court to second-
guess the decision of trial counsel when counsel were aware of the
substance of the witnesses’ anticipated testimony and made the reason-
able decision not to present it due to its potentially harmful nature.
b. The petitioner failed to show a reasonable probability that counsel
would have been successful in seeking to offer the testimony of an
eyewitness identification expert, as any such effort would likely have
been fruitless in light of our Supreme Court’s case law at the time of
the petitioner’s criminal trial, which made clear that such testimony
generally was disfavored and that it would not have been an abuse of
a trial court’s discretion to refuse to allow it; accordingly, the petitioner
could not demonstrate that his trial counsel rendered ineffective assis-
tance by declining to pursue a motion for expenses to retain and, ulti-
mately, not to call, an eyewitness identification expert; moreover, the
procedures the police employed concerning the photographic array of
suspects that they showed to the witnesses were within the acceptable
parameters of effective and fair police work and satisfied the require-
ments of due process, as the petitioner failed to present credible evidence
that those procedures were so flawed as to present a very substantial
likelihood of irreparable misidentification; furthermore, the petitioner
failed to establish that his trial counsel performed deficiently by not
presenting evidence that an eyewitness to the shooting had chosen a
photograph other than that of the petitioner from the array of photo-
graphs prepared by the police, as counsel’s choice not to call that witness
was not outside the wide range of reasonable professional assistance,
the witness was only 50 percent sure of his choice from the array, he
was not emphatic in his knowledge of the shooter’s identity and, thus,
could have testified that the petitioner was the shooter, thereby hurting
the petitioner’s defense, the witness’ statement to the police tended to
undermine the petitioner’s third-party culpability defense and, even if
counsel had performed deficiently by failing to question the witness,
the jury’s guilty verdict was supported by substantial other evidence
concerning the petitioner’s identity as the shooter.
2. The petitioner failed to establish cause and prejudice to overcome his
procedural default in having failed to claim at his criminal trial and
on direct appeal that the admission into evidence of the eyewitness
identifications of him as the shooter violated his right to due process
under article first, §§ 8 and 9; contrary to the petitioner’s contention
that good cause existed for that failure because established law at that
time would have made his argument futile, the habeas court properly
determined that he had a reasonable basis at that time to claim that the
identification procedures at issue were unnecessarily suggestive and,
thus, that he did not establish good cause and prejudice because our
Supreme Court’s case law at that time explicitly invited continued chal-
lenges to identification procedures.
Argued January 31—officially released June 28, 2022
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Chaplin, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal and issued an articu-
lation of its decision, and the petitioner appealed to
this court. Appeal dismissed.
Vishal K. Garg, assigned counsel, for the appellant
(petitioner).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Michael A. Gailor, state’s
attorney, Tamara A. Grosso, former senior assistant
state’s attorney, and Samantha L. Oden, former deputy
assistant state’s attorney, for the appellee (respondent).
Opinion
BISHOP, J. The petitioner, Antonio Inglis, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his third amended petition for a writ of habeas corpus.
On appeal, the petitioner claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal and improperly rejected his claims that
(1) his trial counsel rendered ineffective assistance in
his underlying criminal trial, and (2) his right to due
process under the Connecticut constitution was vio-
lated by the admission of both out-of-court and in-court
eyewitness identifications of him that were obtained
through unnecessarily suggestive identification proce-
dures. We conclude that the court did not abuse its
discretion in denying the petition for certification to
appeal and, accordingly, dismiss the petitioner’s appeal.
The following facts and procedural history are rele-
vant to our resolution of this appeal. After a jury trial,
the petitioner was convicted of two counts of murder
in violation of General Statutes § 53a-54a (a), one count
of capital felony murder in violation of General Statutes
(Rev. to 2007) § 53a-54b (7), one count of assault in the
first degree in violation of General Statutes § 53a-59 (a)
(5), and one count of carrying a pistol without a permit
in violation of General Statutes § 29-35 (a). The peti-
tioner received a total effective sentence of life impris-
onment without the possibility of release, plus twenty-
five years.
This court’s opinion in the petitioner’s direct appeal;
see State v. Inglis, 151 Conn. App. 283, 94 A.3d 1204,
cert. denied, 314 Conn. 920, 100 A.3d 851 (2014), cert.
denied, 575 U.S. 918, 135 S. Ct. 1559, 191 L. Ed. 2d 647(2015); sets forth the following facts: ‘‘[I]n the early
hours of February 10, 2008, an altercation ensued at
the Cocktails on the Green nightclub (club) in Cromwell
that left two men dead and another wounded. The alter-
cation began when the [petitioner] repeatedly antago-
nized one of the victims, Tyrese Lockhart, a patron
seated at the bar with friends. Lockhart and his friends
eventually confronted the [petitioner] and asked him
to leave Lockhart alone. A group of the [petitioner’s]
friends that included his brother, Daren Walls, likewise
encouraged the [petitioner] to leave Lockhart alone.
When Israel Dandrade, a disc jockey who was per-
forming at the club that evening, announced ‘last call’
soon thereafter, Lockhart headed toward an exit with
friends. At that moment, the [petitioner] brandished a
chrome revolver and fired several shots in Lockhart’s
direction. One shot struck Lockhart in the head, another
struck Dandrade in the eye, and a third grazed the cheek
of Kenneth Lewis, a cook at the club. Lockhart and
Dandrade died as a result of their respective gunshot
wounds.
‘‘The [petitioner] subsequently was arrested and
charged with the aforementioned offenses. A jury trial
followed,1 at which the state presented eyewitness testi-
mony from multiple individuals identifying the [peti-
tioner] as the shooter. The theory advanced by the
defense was that, due to the facial similarit[ies] between
Walls and the [petitioner], those witnesses could not
distinguish between the two brothers to properly iden-
tify the shooter.’’ (Footnote added; footnote omitted.)
Id., 286–87.
On May 27, 2015, the petitioner filed a petition for a
writ of habeas corpus. Subsequently, on September 24,
2018, the petitioner filed the operative, third amended
petition for a writ of habeas corpus. In the amended
petition, the petitioner set forth numerous claims,
including that (1) his constitutional right to the effective
assistance of counsel was violated, (2) his constitu-
tional right to the effective assistance of appellate coun-
sel was violated, and (3) his constitutional right to due
process and a fair trial was violated.
On November 6, 2018, pursuant to Practice Book § 23-
30,2 the respondent, the Commissioner of Correction,
filed a return, asserting, inter alia, that the petitioner
was procedurally defaulted with respect to his due pro-
cess claims because he had failed to raise them at his
criminal trial or on direct appeal, and that he could not
establish good cause or prejudice sufficient to excuse
his failure to assert those claims on direct appeal. On
December 6, 2018, pursuant to Practice Book § 23-31,3
the petitioner filed a reply to the return in which he
contended that his state due process claim was not
procedurally defaulted because any attempt to raise
that claim at trial would have been futile given that ‘‘the
Connecticut Supreme Court [in State v. Harris, 330
Conn. 91, 191 A.3d 119 (2018)] has only recently recog-
nized that the Connecticut . . . constitution affords
greater protection than the federal constitutional stan-
dard against the admission of unreliable eyewitness
identification evidence or testimony.’’ In the alternative,
the petitioner contended that, if the claim is procedur-
ally defaulted, it can be cured by a showing of cause
and prejudice because there is a reasonable probability
that he would have raised this claim but for the deficient
performance of trial counsel and, had the claim been
raised, there is a reasonable probability that he would
have prevailed.
After trial, the court denied the petition for a writ of
habeas corpus. The petitioner thereafter filed a petition
for certification to appeal from the court’s judgment,
which the court denied. The petitioner moved the court
for an articulation as to the basis for the court’s denial
of his petition for certification, which the court granted,
stating that ‘‘the petition for certification was denied
on the merits.’’ This appeal followed. Additional facts
and procedural history will be set forth as necessary.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
he must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . Sec-
ond, if the petitioner can show an abuse of discretion,
he must then prove that the decision of the habeas
court should be reversed on the merits. . . . In
determining whether there has been an abuse of discre-
tion, every reasonable presumption should be given in
favor of the correctness of the court’s ruling . . . [and]
[r]eversal is required only where an abuse of discretion
is manifest or where injustice appears to have been
done.’’ (Internal quotation marks omitted.) McClain v.
Commissioner of Correction, 188 Conn. App. 70, 74–75,
204 A.3d 82, cert. denied, 331 Conn. 914, 204 A.3d
702 (2019).
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Internal
quotation marks omitted.) Whistnant v. Commissioner
of Correction, 199 Conn. App. 406, 415, 236 A.3d 276,
cert. denied, 335 Conn. 969, 240 A.3d 286 (2020).
For the reasons set forth in parts I and II of this
opinion, we conclude that the petitioner has failed to
demonstrate that the habeas court abused its discretion
in denying his petition for certification to appeal.
I
The record reflects that in the underlying criminal
trial the petitioner was represented by Attorney Walter
Bansley III and Attorney Walter C. Bansley IV.4 In sup-
port of his claim that the habeas court abused its discre-
tion in denying his petition for certification to appeal
with respect to its decision regarding the petitioner’s
claim that his trial counsel rendered ineffective assis-
tance, the petitioner asserts that his trial counsel were
ineffective in two ways: (1) by failing to litigate ade-
quately a third-party culpability defense, and (2) by
failing to litigate effectively issues relating to the admis-
sion of eyewitness identifications at trial. We discuss
these claims in turn.
We begin by setting forth the standard of review and
principles of law applicable to ineffective assistance of
counsel claims. ‘‘To succeed on a claim of ineffective
assistance of counsel, a habeas petitioner must satisfy
the two-pronged test articulated in Strickland v. Wash-
ington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984)]. Strickland requires that a petitioner satisfy
both a performance prong and a prejudice prong. To
satisfy the performance prong, a claimant must demon-
strate that counsel made errors so serious that counsel
was not functioning as the counsel guaranteed . . . by
the [s]ixth [a]mendment. . . . To satisfy the prejudice
prong, a claimant must demonstrate that there is a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. . . . 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.’’ (Citation omitted; internal quotation marks
omitted.) Jordan v. Commissioner of Correction, 197
Conn. App. 822, 830, 234 A.3d 78 (2020), aff’d, 341 Conn.
279, 267 A.3d 120 (2021).
Finally, to the extent that the petitioner generally
does not challenge the habeas court’s factual findings,
‘‘each of his claims raises either questions of law or
mixed questions of law and fact, over which we exercise
plenary review.’’ Gaskin v. Commissioner of Correc-
tion, 183 Conn. App. 496, 509, 193 A.3d 625 (2018).
A
The petitioner first claims that his trial counsel were
ineffective in failing to litigate adequately a third-party
culpability defense. Specifically, the petitioner asserts
that his trial counsel (1) filed a request to charge the
jury that did not adequately refer to the evidence that
supported the charge, which, in turn, resulted in the
court’s denial of a third-party culpability instruction,
and (2) failed to present two eyewitnesses in support
of the defense. We are not persuaded.
1
First, the petitioner contends that the request to
charge filed by his counsel with respect to the third-
party culpability defense failed to comply with the
requirements of Practice Book § 42-18.5 He argues that
the request to charge did not include a reference to the
evidence to which the third-party culpability instruction
would apply. Specifically, he contends that, ‘‘[a]t a mini-
mum, reasonably competent counsel would have listed
the three main pieces of evidence supporting the third-
party culpability defense: the fact that eyewitness iden-
tifications described the shooter as having cornrows,
a hooded sweatshirt, and a baseball cap.’’ The petitioner
contends that this failure resulted in the court’s denial
of a request for a third-party culpability charge to which
he otherwise would have been entitled.
The following additional facts are relevant to our
resolution of this claim. At the petitioner’s criminal trial,
trial counsel sought to introduce evidence that another
individual—Walls—was the shooter. On direct appeal,
this court summarized the evidence concerning the peti-
tioner’s third-party culpability claim at the criminal trial
as follows: ‘‘Walls was the [petitioner’s] brother and
bore a strong facial resemblance to him. He did not
[otherwise] physically resemble the [petitioner]. Unlike
the [petitioner], who stood five feet, seven inches tall
with a ‘husky’ and ‘more muscular’ build, Walls was
five feet, ten inches tall and had a ‘slim’ physique. At
the time of the shooting, Walls’ hair was braided in
cornrows, whereas the [petitioner’s] hair was short and
curly. The two also were dressed differently at that
time. The [petitioner] wore a black knit cap, a baggy
grey jacket with yellow trim, jeans, and tan boots. By
contrast, Walls had on a fitted and light-colored jacket
with a large emblem on the upper left chest, jeans, and
no cap.
‘‘Lockhart was seated at the bar when the [petitioner]
began antagonizing him. After several minutes, Lock-
hart turned around and said, ‘I don’t even know who
you are, who are you, leave me alone . . . what is the
problem?’ As Lockhart turned back to the bar to finish
his drink, Walls intervened and attempted to calm the
[petitioner]. Walls told the [petitioner] to ‘let it go’ and
made a ‘calm down’ gesture with his hands. The [peti-
tioner] nevertheless refused to ‘let it go’ and remained
agitated. Walls continued his efforts to calm the [peti-
tioner], telling him to ‘chill, just let it go, back up . . . .’
Lockhart was fatally shot soon thereafter.’’ (Footnote
in original; footnote omitted.) State v. Inglis, supra, 151
Conn. App. 290–91.
On October 9, 2009, trial counsel submitted a request
to charge to the court. With respect to the third-party
culpability defense, the proposed charge stated: ‘‘You
have heard evidence in this case from several witnesses
that someone other than [the petitioner] committed
these crimes. This type of evidence is known as third-
party guilt. As I have already made clear to you, the
state has the burden of proving the [petitioner’s] guilt
beyond a reasonable doubt. . . . The question pre-
sented by third-party culpability evidence is not
whether the guilt of another person has been proven,
but whether, after a full consideration of all of the
evidence in this case, there is a reasonable doubt that
[the petitioner] was the perpetrator. Evidence that a
third party may have committed this crime may, if cred-
ited, tend to raise a reasonable doubt as to whether the
state has met its required burden to prove the identity
of the [petitioner] as the perpetrator. If, after consider-
ing all of the evidence, you have a reasonable doubt as
to the [petitioner’s] guilt, you must find the [petitioner]
not guilty. See generally State v. Echols, 203 Conn. 385[524 A.2d 1143] (1987).’’ On October 14, 2009, at a charg-
ing conference, the court denied the petitioner’s request
to charge on third-party culpability.
At the habeas trial, Bansley IV conceded that the
request to charge did not contain any recitation of evi-
dence in support of the petitioner’s third-party culpabil-
ity claim. In its memorandum of decision, the habeas
court, Chaplin, J., determined that the petitioner failed
to prove that he was prejudiced by counsel’s failure
to include any recitation of evidence in the proposed
request to charge on third-party culpability. The habeas
court stated: ‘‘At the underlying criminal trial, [Bansley
IV] argued the third-party culpability request to charge
to the court, Clifford, J. Thereafter, the [trial] court
addressed [Bansley IV’s] argument by indicating that
[it] disagreed with [his] view of the applicability of the
third-party culpability charge to the evidence that had
been presented to the jury. Specifically, the court noted
a lack of corroborating evidence that Walls had motive
and opportunity to commit the shootings. The court
opined that the third-party culpability jury charge was
not appropriate based on the . . . evidence before the
jury, but that [it] was ‘giving a more extensive charge
on identification of the person who actually caused the
death of the two individual[s] here.’ In denying the . . .
request to charge, the court reiterated, ‘I don’t really
see it as a classic third-party culpability, and I think
the instructions are adequate.’ . . .
‘‘Even if [trial counsel] had included supporting evi-
dence in the request to charge, the evidence included
would have been the same evidence that the court con-
sidered in denying the third-party culpability request to
charge. Based on the court’s rationale for denying the
request to charge, this court finds that the inclusion of
the proffered evidence in the request to charge would
not have resulted in the trial court granting the . . .
request to charge. For that reason, the court finds that
the petitioner was not prejudiced by the . . . failure
[of his trial counsel] to include evidence in the written
third-party culpability request to charge.’’
Our analysis of the prejudice prong of Strickland
necessarily requires a determination of whether refer-
ence to specific evidence in the request for a third-
party culpability charge would have resulted in the trial
court’s granting of the request and whether such a
charge would have resulted in a different verdict.
Upon our thorough review of the record, we find no
disagreement with the habeas court’s conclusion that
the petitioner failed to demonstrate that there was a
reasonable probability that, but for the failure of his
trial counsel to include references to specific pieces of
evidence in the request to charge, the outcome of his
trial would have been different. We note, as well, that
the evidence that the petitioner contends should have
been included in the request to charge—the eyewit-
nesses’ descriptions of the shooter as having cornrows
and wearing a hooded sweatshirt and a baseball cap—
nevertheless was considered by the trial court and
found to be insufficient to support a charge on third-
party culpability. The trial court declined to charge the
jury on third-party culpability on the basis of all of the
evidence presented at trial, not because of any per-
ceived insufficient reference to such evidence in the
proposed charge itself.
Indeed, this court, in the petitioner’s direct appeal,
previously determined that the trial court did not abuse
its discretion in failing to submit a third-party culpability
instruction to the jury on the basis of its determination
that the evidence before the jury failed to establish
a direct connection between Walls and the criminal
offense. Specifically, in his direct appeal, the petitioner
argued that his request for a third-party culpability
instruction was appropriate in light of the evidence that
‘‘Walls and the [petitioner] look alike, Walls was present
when the shooting occurred . . . Walls had a motive
to shoot Lockhart . . . and . . . at least one witness
testified that the shooter’s hair was braided in corn-
rows.’’ (Internal quotation marks omitted.) State v.
Inglis, supra, 151 Conn. App. 294. We disagreed and
stated: ‘‘The mere fact that Walls bore a facial resem-
blance to the [petitioner] and was present at the club
does not establish ‘a direct connection between the
third party and the charged offense, rather than merely
raising a bare suspicion that another could have com-
mitted the crime, [such that] a trial court has a duty to
submit an appropriate charge to the jury’; State v.
Arroyo, [284 Conn. 597, 610, 935 A.2d 975 (2007)]; partic-
ularly when the jury heard ample testimony that Walls
attempted to calm the [petitioner] and to diffuse the
situation immediately prior to the shooting. Accord-
ingly, we cannot say that the court improperly declined
to instruct the jury on the proposed charge when the
evidentiary basis proffered by the [petitioner] plainly
did not meet that standard.’’ State v. Inglis, supra, 295.
Similarly, in the present case, even if trial counsel had
identified all of this evidence in the request to charge
on third-party culpability, it would not have resulted
in such an instruction being given, nor would it have
changed the outcome of the petitioner’s criminal trial.
Accordingly, the habeas court properly concluded
that the petitioner failed to demonstrate that there was
a reasonable probability that, but for the failure of his
trial counsel to include references to specific pieces of
evidence in the request to charge, the outcome of his
trial would have been different. Given the trial court’s
determination that there was insufficient evidence pre-
sented to the jury to establish a direct connection to a
third party to warrant a charge on third-party culpabil-
ity, the habeas court properly determined that the fail-
ure of trial counsel to cite evidence in the request to
charge on third-party culpability did not prejudice the
petitioner. As this court noted in the petitioner’s direct
appeal, the cumulative evidence presented to the jury
raised a mere bare suspicion regarding a third party.
In light of the foregoing, we conclude that the petitioner
has failed to demonstrate that the habeas court abused
its discretion in denying his petition for certification to
appeal as to this issue.
2
In furtherance of his ineffective assistance of counsel
claim related to a third-party culpability defense, the
petitioner also contends that his trial counsel failed to
introduce into evidence the testimony of two eyewit-
nesses who had provided descriptions of the shooter
to the police, which he argues were consistent with
his theory that Walls was the shooter. Specifically, the
petitioner asserts that ‘‘Lisa Siena and Andre Henton
both provided [the] police with signed and sworn state-
ments that described Walls, not [the petitioner], as the
shooter.’’
The following additional facts are relevant to our
resolution of this claim. Both Siena and Henton were
present at the time of the shooting and subsequently
provided the police with written statements describing
the shooter. Henton described the shooter as a Hispanic
male, about five feet, three inches or five feet, four
inches tall, 145 pounds, with curly brown hair, wearing
jeans, a dark colored coat, and a baseball cap that might
have been yellow and blue. Henton was close enough
to the shooting such that he had blood spatter on his
shirt. Siena identified the petitioner as the shooter in
her written statement. She stated: ‘‘I . . . saw that [the
petitioner] was holding a gun. I only saw the top half
of [the petitioner]. I would say that I was less than
five feet away from [the petitioner]. I then saw [the
petitioner] fire a shot. . . . I heard a total of three or
four shots. . . . When I saw [the petitioner] on the
night of the shooting, he was wearing a black long
sleeve sweater and jeans. The sweater was not casual,
but more dressy. [The petitioner] has a medium to light
complexion, about [five feet, eight inches to five feet,
nine inches] tall, and has a thin build. [The petitioner]
had his hair in [cornrows] and he did not have a hat on.’’
With respect to the present claim, the habeas court
found that the petitioner’s trial counsel did not render
deficient performance. The court based its decision on
the habeas testimony of the petitioner’s trial counsel
that they had ‘‘made a strategic decision as to each
witness and whether to present such testimony, which
included the testimony of Siena and Henton.’’ The
habeas court found the testimony of trial counsel to be
credible. Bansley IV testified that both he and Bansley
III were ‘‘intimately aware of the issues and witnesses
at the time of trial, much more so than at the time of
their testimony for this matter.’’ Bansley III testified
that, ‘‘if I think they’re gonna hurt the case, I don’t call
them as a witness. . . . [Y]ou have to make decisions
in the courtroom pretty frequently as to who you pres-
ent, how you present ‘em, and what information you
want to bring. And then you have to do a risk analysis
of whether or not . . . they [are going to] help you
more than hurt ya.’’ In addition, Bansley III testified
that he thought Henton had given contradictory state-
ments to the police and to a private investigator hired
by trial counsel.6
When asked whether Siena would have been a favor-
able witness, Bansley IV testified at the habeas trial
that, ‘‘at the time, I knew this case inside and out. I
knew all these witnesses. I knew all these statements,
all these reports. . . . Even the notes you showed me
shows that we looked at . . . Siena and knew the posi-
tives, the pros and cons of it. It’d be speculation to say
why she was or was not called.’’ When asked for a
possible reason why he did not call her, Bansley IV
answered, ‘‘[m]aybe we couldn’t have found her. Maybe
we did find her and talk to her and she was adamant
it was [the petitioner]. We didn’t need the jury hearing
that.’’ The habeas court found that the testimony of
trial counsel did not support the petitioner’s claim that
they performed deficiently by failing to call either Siena
or Henton to testify at the petitioner’s criminal trial.
In resolving this claim we are guided by the principles
elucidated by our Supreme Court. ‘‘[T]he decision
whether to call a particular witness falls into the realm
of trial strategy, which is typically left to the discretion
of trial counsel . . . .’’ (Internal quotation marks omit-
ted.) Meletrich v. Commissioner of Correction, 332
Conn. 615, 628, 212 A.3d 678 (2019).
‘‘Regarding ineffectiveness claims relating to the fail-
ure to call witnesses, [w]hen faced with the question
of whether counsel performed deficiently by failing to
call a certain witness, the question is whether this omis-
sion was objectively reasonable because there was a
strategic reason not to offer such . . . testimony . . .
[and] whether reasonable counsel could have con-
cluded that the benefit of presenting [the witness’ testi-
mony] . . . was outweighed by any damaging effect it
might have. . . . Moreover, our habeas corpus juris-
prudence reveals several scenarios in which courts will
not second-guess defense counsel’s decision not to
investigate or call certain witnesses . . . such as when
. . . counsel learns the substance of the witness’ testi-
mony and determines that calling that witness is unnec-
essary or potentially harmful to the case . . . .’’ (Cita-
tion omitted; internal quotation marks omitted.) Jordan
v. Commissioner of Correction, 341 Conn. 279, 304, 267
A.3d 120 (2021).
Indeed, the present case is unlike Gaines v. Commis-
sioner of Correction, 306 Conn. 664, 683, 51 A.3d 948(2012), in which trial counsel failed entirely to contact
or investigate a potentially advantageous witness. In
Gaines, trial counsel’s complete lack of investigation
resulted in his total ignorance of the substance of the
potential witness’ testimony. Id. Our Supreme Court
explained, ‘‘[t]herefore, [trial counsel’s] failure to inves-
tigate and call [the potential witnesses] was not based
on a reasonable professional judgment that their testi-
mony would be either irrelevant or harmful to his case.
Indeed, [trial counsel] acknowledged that, had he
known the substance of their testimony, he would have
called them to testify at trial . . . .’’ Id.In the present case, neither Bansley III nor Bansley
IV could recall the specific reason for not calling these
witnesses at the criminal trial. Nevertheless, the habeas
court specifically credited their testimony that they had
investigated the witnesses present at the time of the
shooting and were intimately familiar with the case at
the time of the criminal trial.7 Thus, because the habeas
court determined that trial counsel testified credibly,
that they had thoroughly investigated the potential wit-
nesses at the time of the criminal trial, and that they
engaged in a risk analysis concerning whether to call
each witness at the time of trial, it concluded that the
petitioner failed to overcome the presumption that the
decision of trial counsel to refrain from calling Siena
or Henton was based on their reasonable professional
judgment. See, e.g., Franko v. Commissioner of Correc-
tion, 165 Conn. App. 505, 512, 139 A.3d 798 (2016)
(‘‘Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . . [C]ounsel is strongly
presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reason-
able professional judgment.’’ (Internal quotation marks
omitted.)); see also Meletrich v. Commissioner of Cor-
rection, supra, 332 Conn. 628 (‘‘decision whether to call
a particular witness falls into the realm of trial strategy,
which is typically left to the discretion of trial counsel’’
(internal quotation marks omitted)); Williams v. Com-
missioner of Correction, 177 Conn. App. 321, 333, 175
A.3d 565 (‘‘[T]ime inevitably fogs the memory of busy
attorneys. That inevitability does not reverse the Strick-
land presumption of effective performance. Without
evidence establishing that counsel’s strategy arose from
the vagaries of ignorance, inattention or ineptitude . . .
Strickland’s strong presumption must stand.’’ (Internal
quotation marks omitted.)), cert. denied, 327 Conn. 990,
175 A.3d 563 (2017).
With respect to the two witnesses in question, Siena
and Henton, we conclude that the habeas court properly
determined that the petitioner failed to present evi-
dence sufficient to rebut the presumption that his trial
counsel declined to call these witnesses on the basis
of strategic reasons. Specifically, the habeas court cred-
ited the testimony of trial counsel that they undertook
a risk analysis in considering whether to call Siena
and Henton, whose testimony tended to undermine the
petitioner’s identification defense. Siena’s statement
explicitly identified the petitioner as the shooter. Nota-
bly, Henton’s statement identified the shooter as having
‘‘curly brown hair,’’ not cornrows, which was the main
physical characterization on which the petitioner relied
in arguing that Walls was the shooter. Furthermore,
Bansley IV testified that he thought Henton might have
given inconsistent statements. See footnote 6 of this
opinion. We note, as well, that the habeas court found
that both trial counsel testified credibly at the habeas
trial that they were intimately familiar with the case at
the time of trial, including all potential witnesses. It is
not for this court to second-guess the decision of trial
counsel not to call certain witnesses when trial counsel
were aware of the substance of their anticipated testi-
mony and made the reasonable decision not to present
it due to its potentially harmful nature. See, e.g., Mele-
trich v. Commissioner of Correction, supra, 332 Conn.
636–37; Gaines v. Commissioner of Correction, supra,
306 Conn. 681–82. In short, we find no fault in the
habeas court’s determination that it was sound trial
strategy for trial counsel not to call two witnesses who
identified the petitioner as the shooter.
B
The petitioner next claims that his trial counsel ren-
dered ineffective assistance by failing to litigate issues
concerning the state’s introduction into evidence of
unnecessarily suggestive eyewitness identifications.
Specifically, he contends that trial counsel (1) failed to
retain an eyewitness identification expert, (2) failed to
file a motion to suppress the eyewitness identifications
because the procedures used were unduly suggestive,
and (3) failed to present evidence that Henton chose an
individual other than the petitioner from a photographic
array, which he contends would have undermined the
reliability of the eyewitness identifications that were
offered at trial.
1
First, the petitioner contends that trial counsel should
have retained an eyewitness identification expert. Spe-
cifically, the petitioner asserts that ‘‘expert testimony
would have been useful during both a suppression hear-
ing and at the actual criminal trial’’ and that, ‘‘[h]ad
the jury been informed about the ways in which [the]
eyewitness identifications in this case were unreliable,
it would have acquitted [the petitioner].’’
The following additional facts are relevant to our
resolution of this claim. Six months prior to the com-
mencement of the petitioner’s criminal trial, trial coun-
sel filed a motion for payment of necessary expenses,
requesting that the court provide funds for the purpose
of retaining an expert to ‘‘evaluate the case for the
purposes of eyewitness identification issues . . . .’’8
Trial counsel later withdrew the motion, and, as a result,
a defense expert was not used at trial. At the habeas
trial, neither trial counsel could specifically recall why
the motion for payment for necessary expenses was
not pursued.9
In addressing this claim, the habeas court concluded
that ‘‘the petitioner failed to provide credible evidence
that [trial counsel] did not have a strategic reason for
withdrawing the motion for payment of necessary
expenses.’’ The court heard testimony on the issue from
Attorney Brian S. Carlow, a criminal defense expert,
and Margaret Kovera, an expert in forensic psychology,
as well as from trial counsel. Carlow testified that his
review of the trial materials ‘‘did not furnish . . . any
reason for [trial counsel] to withdraw the motion for
payment of necessary expenses.’’ The court noted, how-
ever, that although Carlow reviewed the trial materials,
he did not speak with anyone involved with the case
at the time. Kovera opined concerning eyewitness relia-
bility factors and various shortcomings as to what had
been presented at the petitioner’s criminal trial. As to
these expert witnesses, the habeas court held that ‘‘the
weight of expert opinions of [Kovera] and [Carlow]
does not allow this court to substitute their opinion[s]
of perceived deficiencies with the actual rationale or
lack of rationale that existed for [trial counsel] in 2009.’’
‘‘[F]ailing to retain or utilize an expert witness is
not deficient when part of a legitimate and reasonable
defense strategy.’’ Grover v. Commissioner of Correc-
tion, 183 Conn. App. 804, 821, 194 A.3d 316 (holding
that counsel was not ineffective in failing to retain or
to request funding to retain expert witness), cert.
denied, 330 Conn. 933, 194 A.3d 1196 (2018); see also
Nicholson v. Commissioner of Correction, 186 Conn.
App. 398, 414, 199 A.3d 573 (2018) (‘‘[t]he selection of
an expert witness is a paradigmatic example of the type
of strategic choic[e] that, when made after thorough
investigation of [the] law and facts, is virtually unchal-
lengeable’’ (internal quotation marks omitted)), cert.
denied, 330 Conn. 961, 199 A.3d 19, cert. denied sub
nom. Nicholson v. Cook, U.S. , 140 S. Ct. 70, 205
L. Ed. 2d 76 (2019).
‘‘[J]udicial scrutiny of counsel’s performance must be
highly deferential. . . . A fair assessment of attorney
performance requires that every effort be made to . . .
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time. . . . [A] court must indulge a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance;
that is, the [petitioner] must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy.’’ (Internal quo-
tation marks omitted.) Nicholson v. Commissioner of
Correction, supra, 186 Conn. App. 413; see also Mele-
trich v. Commissioner of Correction, supra, 332 Conn.
636–37 (defense counsel’s decision not to call certain
witnesses was reasonable trial strategy despite inability
of defense counsel to recall every detail of criminal trial
or investigation concerning potential testimony of those
witnesses, as defense counsel testified at habeas trial
that, at time of criminal trial, he interviewed those wit-
nesses and exercised his judgment not to call them).
Moreover, our Supreme Court has recognized that
‘‘[t]here are countless ways to provide effective assis-
tance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the
same way. . . . [A] reviewing court is required not sim-
ply to give [the trial attorney] the benefit of the doubt
. . . but to affirmatively entertain the range of possible
reasons . . . counsel may have had for proceeding as
[they] did . . . .’’ (Internal quotation marks omitted.)
Meletrich v. Commissioner of Correction, supra, 637.
The habeas court concluded that the petitioner’s trial
counsel did not perform deficiently by failing to pursue
the motion for necessary expenses in order to retain
an expert. Specifically, in its memorandum of decision,
the court stated: ‘‘[The trial counsel] could not recall
the reason for not pursuing the motion; however, their
recall of the circumstances surrounding this case dem-
onstrates to the court that they knew the case well
and they made strategic decisions appropriate to trial
counsel by pursuing the motions that they believed
would yield the most benefit to their client’s interest.
The petitioner failed to present credible evidence that
[an expert witness’] testimony would have been helpful
to the petitioner’s case. Additionally, the petitioner
failed to demonstrate that the court would have granted
the motion had [trial counsel] pursued it. Thus, the
petitioner presented no credible evidence to rebut the
presumption that [trial counsel] acted within the
bounds of reasonable professional assistance. There-
fore, the petitioner’s claim must fail.’’
We find no fault with the determination by the habeas
court that the petitioner failed to demonstrate that his
trial counsel rendered deficient performance in this
regard. Even if we assume, arguendo, that trial counsel
performed deficiently in failing to retain an eyewitness
identification expert, the habeas court found, and we
agree, that the petitioner was not prejudiced10 given
that the law at the time of his criminal trial was not
clear as to whether trial counsel would have been able
to present such testimony and whether that testimony
would have been helpful to the petitioner’s case.11 In
the present case, Bansley IV testified that his best recol-
lection was that Connecticut law did not permit the use
of eyewitness identification experts at the time of the
petitioner’s trial and that it was a ‘‘cutting edge issue
. . . .’’ See footnote 9 of this opinion.
At the time of the petitioner’s criminal trial, State v.
Kemp, 199 Conn. 473, 477, 507 A.2d 1387 (1986), over-
ruled in part by State v. Guilbert, 306 Conn. 218, 49
A.3d 705 (2012), and State v. McClendon, 248 Conn.
572, 586, 730 A.2d 1107 (1999), overruled in part by
State v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012),
controlled the issue of expert evidence concerning eye-
witness identifications. In McClendon, our Supreme
Court reaffirmed its earlier decision in Kemp, holding
that expert testimony on the reliability of eyewitness
identifications ‘‘is within the knowledge of jurors and
expert testimony generally would not assist them in
determining the question. . . . [It] is also disfavored
because . . . it invades the province of the jury to
determine what weight or effect it wishes to give eyewit-
ness testimony.’’ (Internal quotation marks omitted.)
Id. Although Kemp and McClendon do not prohibit a
trial court from admitting expert testimony concerning
the reliability of eyewitness identifications, they make
clear that, at the time of the petitioner’s criminal trial,
such testimony generally was disfavored, and it would
not have been an abuse of the trial court’s discretion
to refuse to allow it.
One year after the petitioner’s criminal trial, our
Supreme Court again held that a trial court properly
excluded the testimony of an eyewitness identification
expert. In State v. Outing, 298 Conn. 34, 3 A.3d 1 (2010),
cert. denied, 562 U.S. 1225, 131 S. Ct. 1479, 179 L. Ed.
2d 316 (2011), our Supreme Court addressed a trial
court’s preclusion of testimony from an eyewitness
identification expert, Jennifer Dysart, the same expert
whom trial counsel in the present case sought to retain.
‘‘In Outing, the defendant . . . maintained that he was
entitled to present expert testimony on the issue of
eyewitness identifications in connection with his
motions to suppress the identification testimony of two
eyewitnesses. . . . The trial court declined to consider
some of the proffered expert testimony and denied [the
defendant’s] motions to suppress. . . . Following his
conviction, [the defendant] appealed to this court,
claiming, inter alia, that the trial court improperly had
precluded him from presenting the expert testimony at
the suppression hearing. . . . In rejecting his claim,
the majority in Outing acknowledged that it was keenly
aware of the concerns [arising from] the evolving juris-
prudence regarding the admissibility of expert testi-
mony on the reliability of eyewitness identifications
. . . but concluded . . . that it was both unnecessary
and unwise to address his contention that [our
Supreme] [C]ourt should overrule [State v. Kemp,
supra, 199 Conn. 477] and [State v. McClendon, supra,
248 Conn. 586].’’ (Citations omitted; internal quotation
marks omitted.) State v. Guilbert, 306 Conn. 218, 225
n.4, 49 A.3d 705 (2012). It was not until 2012, three
years after the petitioner’s criminal trial, that our
Supreme Court decided to abandon Kemp and McClen-
don and embrace the notion that ‘‘[t]he reliability of
eyewitness identifications frequently is not a matter
within the knowledge of an average juror and . . . the
admission of expert testimony on the issue does not
invade the province of the jury to determine what
weight to give the evidence.’’ Id., 251–52; see also Vel-
asco v. Commissioner of Correction, 119 Conn. App.
164, 172–73, 987 A.2d 1031, cert. denied, 297 Conn. 901,
994 A.2d 1289 (2010). Given the governing decisional
law at the time of the petitioner’s criminal trial, the
petitioner has not shown that there is a reasonable
probability that his trial counsel would have been suc-
cessful in seeking to offer into evidence the testimony
of an eyewitness identification expert.
Accordingly, the record and the status of the law at
the time support the habeas court’s conclusion that the
petitioner failed to establish that he was prejudiced by
the decision of his trial counsel not to pursue the motion
for necessary expenses for the purpose of retaining an
eyewitness identification expert witness and, ulti-
mately, not to call an expert witness at trial because any
such effort by counsel would likely have been fruitless.
2
The petitioner next contends that trial counsel should
have filed a motion to suppress the pretrial and in-court
eyewitness identifications made by Qualnisha Lowe and
Nestor Diaz because the procedures used to solicit
those identifications were unnecessarily suggestive.
Specifically, the petitioner contends that, ‘‘[h]ad [trial]
counsel filed and pursued a motion to suppress, there
is a reasonable probability that the eyewitness identifi-
cations made by . . . Diaz and . . . Lowe would have
been suppressed, and [the petitioner] would have been
acquitted.’’
The following additional facts are relevant to our
resolution of this claim. At the habeas trial, Officer
William Kogut testified that, on the night of the shooting,
shortly after 1:30 a.m., he met with Lowe, who provided
a description of the shooter and indicated that she
would be able to identify him. At that time, an officer
stopped cars on the road leading to the club and asked
the individuals in those vehicles to step out. Lowe was
placed in a car and was driven past these individuals,
but she did not identify any of them as the shooter. The
petitioner was not among those individuals. At about
3 a.m., another officer took a written statement from
Lowe, who stated that the shooter was ‘‘young, late
teens, about [five foot, three inches]. The next morning,
at about 10:45 a.m., an officer went to Lowe’s residence
to present her with a photographic array. Lowe identi-
fied the petitioner as the person whom she saw ‘‘take
the gun out of his waistband.’’ (Internal quotation marks
omitted.) Lowe also identified the petitioner as the
shooter at the criminal trial.
Likewise, Diaz also was presented with the same
photographic array at about 2 p.m. the day after the
shooting. He did not identify anyone pictured. On Octo-
ber 7, 2009, an inspector who worked at the Office of
the State’s Attorney in Middletown met with Diaz and
showed him an enlarged version of the surveillance
video from the shooting. Diaz pointed out the person
he believed to look like the petitioner. Later that same
day, Diaz testified during the petitioner’s criminal trial
that he witnessed the shooting. He identified the peti-
tioner in court, during the petitioner’s criminal trial, as
bearing a ‘‘strong resemblance’’ to the person he saw
in the bar who had fired the gun and said he was ‘‘confi-
dent’’ that the petitioner was the shooter.
At the habeas trial, trial counsel testified that they
had considered filing a motion to suppress but that
ultimately they did not do so. Neither could recall the
specific reason for not filing the motion, but, rather,
they speculated that there could have been many rea-
sons not to and stated that, to the best of their recollec-
tion, they did not think it would be a successful motion.12
In its memorandum of decision, the habeas court
concluded: ‘‘Having considered the totality of the cir-
cumstances, the court finds that the credible evidence
presented by the petitioner demonstrates that the pho-
tographic array was not administered under pristine
conditions. However, pristine conditions are not the
legal standard for determining whether the administra-
tion of a photographic array was unnecessarily sugges-
tive. State v. Marquez, [291 Conn. 122, 967 A.2d 56, cert.
denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163(2009)]. To that end, the court finds that the petitioner
failed to present credible evidence to demonstrate that
the photographic array eyewitness identification proce-
dures used in this case were so flawed as to present a
very substantial likelihood of irreparable misidentifica-
tion of the petitioner. . . . Accordingly, the court can-
not find that the petitioner was prejudiced by the . . .
failure [of his trial counsel] to file and litigate the motion
to suppress the out-of-court identifications of the peti-
tioner by Lowe and Diaz.’’ (Internal quotation marks
omitted.)
In making this determination, the court considered
the testimony presented at the habeas trial, including
the testimony of the police officers who had adminis-
tered the photographic arrays, and the opinions of Kov-
era and Carlow, concerning the suggestibility of the
arrays.
Captain Richard Davis of the Middletown Police
Department testified that, in preparing the array, he
included ‘‘filler’’ photographs of men who looked simi-
lar to the petitioner, the photographs were randomly
placed within the array, and the petitioner’s photograph
was neither the first nor the last in the sequence. Chief
Denise LaMontagne of the Cromwell Police Department
testified that she followed generally accepted guidelines
when administering the array to Lowe. She testified
that, at the time she administered the array to Lowe,
she was aware that the petitioner was a suspect but
did not recall making any statements to Lowe other
than providing the printed instructions.
Kovera testified concerning her expertise in the area
of the psychology of eyewitness identification evidence
and memory. She testified that the array in the present
case deviated from pristine conditions in several ways,
including that it was not double blind, the petitioner
stood out from the other images included in the array
because he was closest to the frame, one of the individu-
als in the filler photographs had a darker skin complex-
ion than the petitioner, other fillers did not fit the sus-
pect’s description, and the petitioner’s photograph was
placed at the interior top of the array.
Finally, Carlow testified that, on the basis of his
review of the criminal trial materials and the then-recent
decision of State v. Marquez, supra, 291 Conn. 122, the
petitioner’s trial counsel should have filed a motion to
suppress. He testified that trial counsel should have
presented the testimony of any witness who had chosen
a photograph of someone other than the petitioner from
the array in order to challenge the eyewitness identifica-
tion. He also testified that, apart from observing their
files and the trial transcript, he was not familiar with
the basis for the decision of trial counsel.
In evaluating the photographic array, the habeas
court considered the following factors as set forth in
State v. Marquez, supra, 291 Conn. 122: ‘‘(1) the degree
of likeness shared by the individuals pictured . . . (2)
the number of photographs included in the array . . .
(3) whether the suspect’s photograph prominently was
displayed or otherwise was highlighted in an impermis-
sible manner . . . (4) whether the eyewitness had been
told that the array includes a photograph of a known
suspect . . . (5) whether the eyewitness had been pre-
sented with multiple arrays in which the photograph
of one suspect recurred repeatedly . . . and (6)
whether a second eyewitness was present during the
presentation of the array.’’ (Internal quotation marks
omitted.) Id., 161.
It is a basic tenet of habeas jurisprudence that, in
adjudicating an ineffective assistance of counsel claim
regarding the prejudice prong of the Strickland test, a
petitioner cannot successfully show prejudice by rea-
son of the failure of trial counsel to pursue a motion
to suppress a pretrial identification unless the petitioner
can show a reasonable probability that an attack on
the reliability of the identifications would have been
successful. See Velasco v. Commissioner of Correction,
supra, 119 Conn. App. 170. ‘‘To prevail on a motion
to suppress a pretrial identification, a defendant must
prevail on a two-pronged inquiry. [F]irst, it must be
determined whether the identification procedure was
unnecessarily suggestive; and second, if it is found to
have been so, it must be determined whether the identi-
fication was nevertheless reliable based on an examina-
tion of the totality of the circumstances. . . . An identi-
fication procedure is unnecessarily suggestive only if it
gives rise to a very substantial likelihood of irreparable
misidentification. . . . The defendant bears the burden
of proving both that the identification procedures were
unnecessarily suggestive and that the resulting identifi-
cation was unreliable.’’ (Internal quotation marks omit-
ted.) Id., 170–71.
On the basis of our review of the record, we find no
disagreement with the habeas court’s conclusion that
the ‘‘petitioner failed to present credible evidence to
demonstrate that the photographic array eyewitness
identification procedures used in this case were so
flawed as to present a very substantial likelihood of
irreparable misidentification of the petitioner.’’ First,
although Kovera opined that one of the filler photo-
graphs depicted an individual with a darker complexion
than the petitioner, the habeas court found that the
photographs in the array appeared consistent with the
petitioner’s description. Second, although the habeas
court credited the testimony of Kovera that an array
should have at least five filler photographs, it is undis-
puted that the array in the present case contained a
total of eight photographs. Third, the court determined
that the petitioner’s photograph was not prominently
displayed or otherwise highlighted within the array.
Fourth, although Lowe was aware that the petitioner
was a suspect and chose his photograph from the array,
there was no evidence presented to the habeas court
that LaMontagne influenced Lowe’s identification of the
petitioner in the array. Fifth, the array remained the
same for all eyewitnesses, meaning that Lowe and Diaz
were not presented with multiple arrays that contained
reoccurring photographs of the petitioner. Finally, there
was no evidence presented at the habeas hearing that
there was another eyewitness present when Lowe and
Diaz were presented with the array.
On the basis of the evidence presented at the habeas
trial, we find no fault with the habeas court’s determina-
tion that the ‘‘procedures employed in this case,
although not ideal, were within the acceptable parame-
ters of effective and fair police work, and satisfy the
requirements of due process.’’ (Internal quotation
marks omitted.) Accordingly, the habeas court properly
determined that the petitioner failed to demonstrate
that he was prejudiced by the performance of his trial
counsel, and his claim must fail.
3
The petitioner’s final contention with respect to his
claim of ineffective assistance of counsel is that trial
counsel failed to present favorable evidence that would
have undermined the reliability of the eyewitness identi-
fications. Specifically, the petitioner asserts that ‘‘[trial]
counsel should have presented evidence about . . .
Henton’s photo[graphic] array to show the jury that at
least one witness who was present at the time of the
shooting chose a filler rather than [the petitioner]. . . .
Henton’s testimony would have been favorable, and
counsel had no explanation for not presenting his testi-
mony.’’ He claims that he was prejudiced because this
evidence would have had an impact on the jury’s ver-
dict.
The following additional facts are relevant to our
resolution of this claim. In Henton’s written statement
to the police, he stated that the shooting victims were
‘‘[two to three] feet away from each other and [he] was
close enough that [he] had blood spatter on [his] shirt.’’
He was shown a photographic array from which he
identified a ‘‘filler’’ photograph as depicting the shooter,
rather than the photograph of the petitioner, and stated
that he was 50 percent sure. At the petitioner’s criminal
trial, counsel attempted to introduce testimony through
the cross-examination of LaMontagne concerning Hen-
ton’s identification of a filler photograph from the pho-
tographic array but were unsuccessful because the
court ruled that it was inadmissible hearsay. As pre-
viously noted in this opinion, Henton did not testify at
the criminal trial, and we determined in part I A 2 of
this opinion that it was not deficient performance for
trial counsel to decide not to present Henton as a third-
party culpability witness at the petitioner’s criminal
trial.
With respect to this claim, the habeas court con-
cluded: ‘‘The petitioner failed to present credible evi-
dence as to how the evidence of Henton choosing a
filler should have been presented at trial. . . . The peti-
tioner’s argument that [trial counsel] should have pre-
sented Henton’s testimony seeks to have this court sub-
stitute the petitioner’s opinion with that of the . . .
assessment [by trial counsel] of Henton as a potential
witness contemporaneous to the underlying trial. . . .
[T]his court finds that the petitioner failed to present
credible evidence that Henton was available and willing
to testify at the petitioner’s underlying criminal trial.
. . . The petitioner only presented the fact that Henton
chose a filler photograph from the photographic array
and that he noted a 50 percent confidence level. Thus,
the court is left without an evidentiary basis for conclud-
ing that Henton’s testimony would have been beneficial
to the petitioner’s defense. Therefore, the court finds
that the petitioner failed to present sufficient credible
evidence to rebut the presumption that [his trial coun-
sel] employed reasonable trial strategy in choosing not
to present Henton’s testimony.’’
‘‘[A] court deciding an actual ineffectiveness 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. A convicted defendant
making a claim of ineffective assistance must identify
the acts or omissions of counsel that are alleged not
to have been the result of reasonable professional judg-
ment. The court must then determine whether, in light
of all the circumstances, the identified acts or omissions
were outside the wide range of professionally compe-
tent assistance.’’ (Internal quotation marks omitted.)
Bryant v. Commissioner of Correction, 290 Conn. 502,
513, 964 A.2d 1186, cert. denied sub nom. Murphy v.
Bryant, 558 U.S. 938, 130 S. Ct. 259, 175 L. Ed. 2d 242(2009). ‘‘In its analysis, a reviewing court may look to
the performance prong or the prejudice prong first.’’
Quint v. Commissioner of Correction, 211 Conn. App.
27, 36, 271 A.3d 681, cert. denied, 343 Conn. 922, 271
A.3d 681 (2022).
We agree with the habeas court’s conclusion. First,
‘‘[a] court hearing an ineffectiveness claim must con-
sider the totality of the evidence before the judge or
jury.’’ (Internal quotation marks omitted.) Weinberg v.
Commissioner of Correction, 112 Conn. App. 100, 112,
962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221(2009). As the habeas court properly determined, the
petitioner did not meet his burden to show that the
decision of his trial counsel not to present Henton as
a witness was not sound trial strategy. Given that Hen-
ton’s statement did not explicitly identify Walls and that
Henton stated that he was only 50 percent sure of his
choice in the photographic array and that, ultimately,
because he was not emphatic in his knowledge of the
shooter’s identity, he could have testified at trial that
the petitioner was the shooter and hurt the petitioner’s
defense, the failure of trial counsel to call Henton was
not outside the ‘‘wide range of reasonable professional
assistance . . . .’’ (Internal quotation marks omitted.)
Meletrich v. Commissioner of Correction, supra, 332
Conn. 627. As we noted in part I A 2 of this opinion,
Henton’s statement identified the shooter as having
‘‘curly brown hair,’’ not cornrows, but the presence of
cornrows was the main physical characterization on
which the petitioner relied in arguing that Walls was
the shooter. In sum, Henton’s statement tended to
undermine the petitioner’s third-party culpability
defense that Walls was the shooter. Therefore, we agree
with the habeas court’s conclusion that the petitioner
failed to establish that his trial counsel performed defi-
ciently by failing to call and question Henton concerning
his response to the photographic array.
Moreover, even if trial counsel were deficient in that
regard, the record supports the conclusion of the
habeas court that Henton’s testimony would not have
changed the outcome of the petitioner’s trial. The
record contains substantial other evidence13 concerning
the petitioner’s identity as the shooter to support the
jury’s guilty verdict.
Accordingly, we conclude that the habeas court did
not abuse its discretion in denying the petition for certi-
fication to appeal with respect to this issue.
II
The petitioner next claims that the habeas court erred
in rejecting his claim that his right to due process under
article first, §§ 8 and 9, of the Connecticut constitution
was violated by the admission of both out-of-court and
in-court identifications, made by Lowe and Diaz, that
were obtained as a result of unnecessarily suggestive
identification procedures. The petitioner makes two
arguments in support of this claim. First, he argues that,
contrary to the holding of the habeas court, his state
constitutional claim was not procedurally defaulted
because he can show cause and prejudice for his failure
to raise this claim at his criminal trial and on direct
appeal. He contends that just months before his crimi-
nal trial in September and October, 2009, our Supreme
Court in State v. Marquez, supra, 291 Conn. 122, reaf-
firmed the principle that our state constitution affords
no greater protection than the United States constitu-
tion as to eyewitness identifications, and, therefore, any
such claim raised on direct appeal would have been
futile. Second, he argues that, nine years after his crimi-
nal trial, our Supreme Court in State v. Harris, supra,330 Conn. 91, concluded for the first time that the due
process guarantee of the state constitution in article
first, § 8, ‘‘provides somewhat broader protection than
the federal constitution with respect to the admissibility
of eyewitness identification testimony . . . .’’14 He
argues that Harris applies retroactively to his case
because it is a watershed rule of criminal procedure.15
We disagree with both assertions.
We begin by setting forth the relevant standard of
review and governing law. ‘‘A party in a habeas appeal
procedurally defaults on a claim when he raises issues
on appeal that were not properly raised at the criminal
trial or the appeal thereafter. . . . Habeas, as a collat-
eral form of relief, is generally available to litigate con-
stitutional issues only if a more direct route to justice
has been foreclosed through no fault of the petitioner.
. . . The reviewability of habeas claims not properly
pursued on appeal is subject to the cause and prejudice
standard.’’ (Citation omitted; internal quotation marks
omitted.) Gaskin v. Commissioner of Correction,
supra, 183 Conn. App. 511.
‘‘In order for a habeas court to decide the merits of a
petitioner’s procedurally defaulted claim, the petitioner
must typically demonstrate cause and prejudice for his
failure to preserve that claim. . . . Under this stan-
dard, the petitioner must demonstrate good cause for
his failure to raise a claim at trial or on direct appeal
and actual prejudice resulting from the impropriety
claimed in the habeas petition. . . .
‘‘The cause and prejudice standard is designed to
prevent full review of issues in habeas corpus proceed-
ings that counsel did not raise at trial or on appeal for
reasons of tactics, [inadvertence] or ignorance . . . .
[T]he existence of cause for a procedural default must
ordinarily turn on whether the [petitioner] can show
that some objective factor external to the defense
impeded counsel’s efforts to comply with the [s]tate’s
procedural rule. . . . Cause and prejudice must be
established conjunctively. . . . If the petitioner fails to
demonstrate either one, a trial court will not review the
merits of his habeas claim.’’ (Citation omitted; internal
quotation marks omitted.) Sinchak v. Commissioner
of Correction, 173 Conn. App. 352, 365–66, 163 A.3d
1208, cert. denied, 327 Conn. 901, 169 A.3d 796 (2017).
For example, ‘‘a showing that the factual or legal
basis for a claim was not reasonably available to counsel
. . . would constitute cause under this standard.’’
(Internal quotation marks omitted.) Zachs v. Commis-
sioner of Correction, 205 Conn. App. 243, 273, 257 A.3d
423, cert. denied, 338 Conn. 909, 258 A.3d 1279 (2021).
We exercise plenary review to determine whether the
court properly determined that the petitioner’s claim is
procedurally defaulted. See Saunders v. Commissioner
of Correction, 343 Conn. 1, 10, 272 A.3d 169 (2022).
The petitioner argues that good cause existed for the
failure of his trial counsel to raise the issue at his crimi-
nal trial or on direct appeal given that the established
law at the time would have made that argument futile.
The petitioner relies on Hinds v. Commissioner of Cor-
rection, 151 Conn. App. 837, 97 A.3d 986 (2014), aff’d,
321 Conn. 56, 136 A.3d 596 (2016), in which this court
examined the parameters of cause and prejudice within
the procedural default doctrine. In Hinds, the petitioner
failed to challenge our courts’ long-standing interpreta-
tion of this state’s kidnapping statutes at his criminal
trial or on direct appeal but claimed that a new interpre-
tation first set forth after his trial should be applied
retroactively. After a thorough canvass of the decisional
law expounding on procedural default, this court stated
that, ‘‘we believe that counsel’s failure to raise an issue
for which there was no reasonable basis may, indeed,
satisfy the cause requirement.’’ Id., 854. Our Supreme
Court, in affirming this court’s decision; see Hinds v.
Commissioner of Correction, 321 Conn. 56, 67–68, 136
A.3d 596 (2016); noted that it had iterated its position
numerous times prior to the petitioner’s criminal trial
that the interpretation of the kidnapping statute
adopted after the petitioner’s criminal trial in that case
was foreclosed and appeared to foreclose the possibility
that movement of a sexual assault victim from one room
in her home to another room could constitute a situation
that was ‘‘absurd and unconscionable . . . [and] that
would render the statute unconstitutionally vague as
applied.’’ Id. Our Supreme Court concluded that the
petitioner’s claim was not procedurally defaulted, stat-
ing: ‘‘Not only was there a three decades long history
preceding the petitioner’s criminal trial of rejecting such
a challenge, but mere months after the petitioner’s trial,
the court . . . again rejected such a challenge.’’ Id., 76.
In the present case, we conclude that, unlike in
Hinds, the petitioner had a reasonable basis to claim
at his criminal trial and on direct appeal that the identifi-
cation procedures at issue were unnecessarily sugges-
tive under the Connecticut constitution. Specifically,
we find unpersuasive the petitioner’s argument that
both State v. Ledbetter, 275 Conn. 534, 881 A.2d 290(2005) (overruled in part by State v. Harris, 330 Conn.
91, 191 A.3d 119 (2018)), cert. denied, 547 U.S. 1082,
126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006), and State v.
Marquez, supra, 291 Conn. 122, each of which were
decided prior to his criminal trial, establish the futility
of his argument that the state constitution is more pro-
tective than the federal constitution.
In State v. Ledbetter, supra, 275 Conn. 560, our
Supreme Court addressed a constitutional challenge
to eyewitness identifications made in that case. The
defendant argued, inter alia, that the court should
replace the factors set forth in Neil v. Biggers, 409 U.S.
188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), used in
determining the reliability of identifications, on state
constitutional grounds. The court recognized that ‘‘in
some instances, our state constitution provides protec-
tions beyond those provided by the federal constitution
. . . .’’ State v. Ledbetter, supra, 560. Accordingly, the
court undertook an analysis to determine whether the
Biggers factors should be replaced, specifically,
whether our state constitution provides greater protec-
tion than the federal constitution on this issue. After a
thorough survey of each of those factors under the
framework set forth in State v. Geisler, 222 Conn. 672,
684–86, 610 A.2d 1225 (1992),16 the court concluded:
‘‘Despite the fact that [the] last [Geisler] factor [contem-
porary understandings of economic and sociological
considerations] favors the defendant, we are unper-
suaded that article first, § 8, of the constitution of Con-
necticut provides greater protection than the federal
constitution in this area. The scientific studies are not
definitive. . . . In light of the factors that weigh in
favor of the state, the scientific studies are insufficient
to tilt the balance of the Geisler analysis in favor of the
defendant. Thus, our state constitution does not require
that we abandon the Biggers factors as the appropriate
factors for consideration in determining whether an
unnecessarily suggestive identification procedure is,
nevertheless, reliable, and we decline to do so.’’ (Cita-
tions omitted.) State v. Ledbetter, supra, 568–69.
In State v. Marquez, supra, 291 Conn. 122, the defen-
dant challenged the reliability of eyewitness identifica-
tions. Our Supreme Court ‘‘reaffirm[ed] the congruence
between the protections afforded by our state constitu-
tion and the federal constitution in the area of pretrial
identification . . . .’’ Id., 135–36. The court stated:
‘‘[T]he judgment of the relevant scientific community
with respect to eyewitness identification procedures is
far from universal or even well established, and . . .
the research is in great flux. Indeed, when the reported
research was seemingly more uniform, we still found
that [t]he scientific studies are not definitive. State v.
Ledbetter, supra, 275 Conn. 568. The more recent
research offered by the state muddies the water further
. . . . [U]ntil the scientific research produces more
definitive answers with respect to the effects of various
procedures, [d]ue process does not require the suppres-
sion of a photographic identification that is not the
product of a double-blind, sequential procedure.’’ (Cita-
tion omitted; footnotes omitted; internal quotation
marks omitted.) State v. Marquez, supra, 155–56.
Although, in the present case, the petitioner argues
that the decisional law at the time of his criminal trial—
namely, Ledbetter and Marquez—foreclosed the argu-
ment that he now raises, we are not persuaded that
asserting a state constitutional claim in this regard
would have been futile. Our reading of both Ledbetter
and Marquez leaves ample room for counsel to have
made arguments at the time of the petitioner’s criminal
trial akin to those that were later adopted in Harris.
Specifically, in determining that our state constitution
does not provide greater protection than the federal
constitution, both cases relied heavily on the scientific
studies available at the time but did not explicitly fore-
close arguments such as the court did in Hinds. In
fact, our jurisprudence specifically left room for new
arguments to be made congruently with rapidly chang-
ing science. ‘‘Indeed, we repeatedly have insisted that
this inquiry be made on an ad hoc basis, and we affirm
that the courts of this state should continue to evaluate
whether individual identification procedures are
unnecessarily suggestive on the basis of the totality of
the circumstances surrounding the procedure . . . .’’
(Emphasis added; internal quotation marks omitted.)
Id., 156. Thus, rather than foreclosing the possibility
of making similar arguments in the future, the court
explicitly invited continued challenges to identification
procedures on the basis of the circumstances of a partic-
ular case.
On this basis, we conclude that the habeas court
properly determined ‘‘that the petitioner [failed to sat-
isfy] the cause and prejudice standard so as to cure
the alleged procedural default.’’ The petitioner’s due
process argument would not have been futile given the
law at the time, and, thus, the petitioner has failed to
establish good cause for his failure to make his constitu-
tional arguments at his criminal trial and on direct
appeal, and actual prejudice resulting from that failure.17
The habeas court, therefore, did not abuse its discre-
tion in denying the petition for certification to appeal
with respect to this issue.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner’s criminal trial took place in September and October, 2009.
2
Practice Book § 23-30 provides: ‘‘(a) The respondent shall file a return
to the petition setting forth the facts claimed to justify the detention and
attaching any commitment order upon which custody is based.
‘‘(b) The return shall respond to the allegations of the petition and shall
allege any facts in support of any claim of procedural default, abuse of the
writ, or any other claim that the petitioner is not entitled to relief.’’
3
Practice Book § 23-31 provides: ‘‘(a) If the return alleges any defense or
claim that the petitioner is not entitled to relief, and such allegations are
not put in dispute by the petition, the petitioner shall file a reply.
‘‘(b) The reply shall admit or deny any allegations that the petitioner is
not entitled to relief.
‘‘(c) The reply shall allege any facts and assert any cause and prejudice
claimed to permit review of any issue despite any claimed procedural default.
The reply shall not restate the claims of the petition.’’
4
We refer to both attorneys collectively as trial counsel throughout this
opinion, except when necessary to distinguish between them.
5
Practice Book § 42-18 (a) provides in relevant part: ‘‘When there are
several requests, they shall be in separate and numbered paragraphs, each
containing a single proposition of law clearly and concisely stated with the
citation of authority upon which it is based, and the evidence to which the
proposition would apply. . . .’’
6
Specifically, the petitioner’s habeas counsel asked Bansley III, ‘‘I believe
you stated that possibly . . . Henton had given two different statements;
one to the police, and then a separate one that was maybe contradictory
to your investigator. Is that correct?’’ He responded: ‘‘That’s what I think,
but I’m not sure.’’ Further, Bansley III testified that he thought Henton’s
statement to the police was ‘‘totally inconsistent’’ with the description of
Walls, particularly because his description did not mention anything
about cornrows.
7
Bansley IV testified at the habeas trial that, ‘‘[a]t the time, I knew this
case inside and out. I knew all these witnesses. I knew all these statements,
all these reports. I know everyone’s considered.’’
In addition, during cross-examination, the following colloquy occurred
between the petitioner’s habeas counsel and Bansley IV:
‘‘Q. . . . [C]an you tell the court what investigation you conducted to
pursue your theories of defense?
‘‘A. Generally, we always have an investigator that goes out. I cannot
think of a trial that I have conducted where I did not have an investigator.
So, that would’ve been the primary focus. . . .
‘‘Q. . . . [W]hat did you do to research and investigate the eyewitness
identification issues?
‘‘A. I think the main thing is, going over discovery, looking at all the
commonsense inconsistencies and applying that to all the theories behind
why there are misidentifications. . . .
‘‘Q. . . . And I believe you said that you knew all of the witnesses in this
case, both the lay witnesses and the police officers. . . . I mean that you
had investigated them, that you spoke with them.
‘‘A. I would’ve at least read reports, at a minimum.
‘‘Q. Okay. Well, I’m just . . . trying to restate that you familiarized your-
self with all the witnesses.
‘‘A. I knew this case.’’
In addition, Bansley III testified: ‘‘I know that we spent a lot of time and
money with a private investigator . . . . He was, in my opinion, very dili-
gent. He did a lot of work. I do recall he brought us some information that
was really helpful. I just don’t remember the specifics of it at the moment.
. . . [M]y son and I also went out and, you know, we like to do hands on.
We went to the club and we looked at the videotape. We tried to reconstruct
it. You know, so we did a lot.’’
8
The trial court, Clifford, J., on March 31, 2009, stated to trial counsel
with respect to the motion for payment of necessary expenses: ‘‘[Y]ou repre-
sent the [petitioner] privately, and you’re asking the Judicial Department,
basically, to pay the expenses for investigators, etc. . . . I think I mentioned
in chambers, I mean, part of me feels that’s what the public defender system
is for, and when a private attorney gets into a case, that they should be
able to finance their own investigators once they file the appearance. . . .
I think we’re going to need a hearing.’’ No hearing was held on the motion
because trial counsel withdrew the motion two months later.
9
At the habeas trial, the following colloquy took place between the peti-
tioner’s habeas counsel and Bansley IV:
‘‘Q. Okay. Based on your knowledge of the case generally, can you think
of a reason why that motion would have been withdrawn?
‘‘A. I cannot.
‘‘Q. Can you think of any strategic reason for having withdrawn the motion?
‘‘A. I can’t.
‘‘Q. . . . And just briefly before I move on to the next topic, had you had
[this eyewitness expert] testify previously at a criminal trial?
‘‘A. I don’t—my recollection is, I don’t believe courts were allowing it at
the time.
‘‘Q. Okay.
‘‘A. That’s my best recollection.
‘‘Q. Alright. But is it something you were attempting to get in, nonetheless?
‘‘A. Yes. I remember for my first five years of practice, it was a real cutting
edge issue, that we were one of the first ones that contacted [the expert]
and, and really explored the issue. But I don’t believe the courts were
allowing it. That’s my best recollection.’’
10
In its memorandum of decision, the habeas court noted that ‘‘the peti-
tioner failed to demonstrate that the [trial] court would have granted the
motion had [trial counsel] pursued it.’’ In reaching this determination, the
habeas court appears to have decided that the petitioner failed to prove
both prongs of the Strickland test for ineffective assistance of counsel.
Because a habeas petition fails unless both prongs are proven, we focus in
this appeal on the habeas court’s determination regarding the prejudice
prong.
11
In his appellate brief, the respondent argues that the petitioner also
failed to demonstrate that he was prejudiced by his counsel’s allegedly
deficient performance. Specifically, the respondent argues that, ‘‘even if
counsel should have pursued the motion for payment of necessary expenses
and offered testimony from an eyewitness identification expert, the peti-
tioner has not demonstrated that the trial court would have permitted such
testimony.’’
12
At the habeas trial, the following colloquy occurred between the petition-
er’s habeas counsel and Bansley IV:
‘‘Q. . . . And there was no motion to suppress identifications filed in this
case. Do you know why that is?
‘‘A. To the best of my recollection, we did not think that it would be
successful.
***
‘‘Q. Okay. And I believe you testified to the reasons that you did not file
a motion to suppress. Were there any other reasons besides what you
said earlier?
‘‘A. I think I said that reasons why I might not have, because I don’t recall
the exact reason why I didn’t in this case.
‘‘Q. Okay. But those would be the type of reasons why you would decide
not to?
‘‘A. Sure, there could be many, many reasons.’’
13
This court set forth that evidence as follows in the petitioner’s direct
appeal: ‘‘Brothers Maurice Overton and Andre Overton were at the club at all
relevant times. Maurice Overton testified at trial that he saw the [petitioner]
holding a gun at the time of the shooting. Andre Overton similarly testified
that when the gunshots rang out, he turned and saw the [petitioner] holding
a chrome gun in his hand. Andre Overton was approximately five feet behind
the [petitioner] at that time. [Lowe] also identified the [petitioner] as the
shooter at trial. She testified that, at the time of the shooting, she was two
feet from the [petitioner] and ‘looked right in his face.’ [Diaz] testified that
at the time of the shooting, he was approximately five feet from the person
holding the gun and was ‘confident’ in his identification of the [petitioner]
as the shooter. Dana Middleton was socializing with Lockhart at the club
and witnessed the [petitioner] antagonizing Lockhart prior to the shooting.
He testified that the [petitioner] was approximately ten feet away and ‘kept
dancing around and pointing his fingers and . . . making gestures like he
was making . . . threats, basically.’ . . . Moments later as Middleton and
Lockhart were leaving the bar, Middleton heard gunshots and then saw
Lockhart on the ground with a hole in his head and brain matter on the
floor. Middleton then saw the [petitioner] approximately five feet away
holding a gun that was pointed in his direction.’’ State v. Inglis, supra, 151
Conn. App. 286–87 n.6.
14
The habeas court did not reach the merits of the claim regarding the
retroactivity of Harris but, rather, disposed of this claim on procedural
grounds because it determined that the petitioner had not properly raised
the claim. The petitioner claims that the habeas court improperly concluded
that he had conceded that a retroactivity issue was not raised in the pleadings
and, accordingly, denied the claim on that ground. He argues that this was
in error because, (1) to the extent that retroactivity, or its lack thereof,
must be pleaded, it is the respondent’s burden to raise it, (2) his pleading
implied a retroactivity claim, and (3) he made clear on the first day of trial
that he sought to claim that State v. Harris, supra, 330 Conn. 91, applied
retroactively to his case. In response, the respondent contends that the
habeas court properly declined to reach the issue of whether Harris applied
retroactively because (1) the petitioner’s habeas petition made no mention
of Harris, and (2) his mention of Harris in his reply and his argument at
the habeas trial were insufficient to properly plead this claim. We conclude
that the petitioner’s Harris claim properly was raised, and, accordingly, we
address it on the merits.
The petitioner’s reply to the respondent’s return stated: ‘‘To the extent
that [the third] claim [in the third amended habeas petition] is based on the
petitioner’s due process rights pursuant to [the] Connecticut constitution,
claim three is not subject to procedural default because the Connecticut
Supreme Court has only recently recognized that the Connecticut state
constitution affords greater protection than the federal constitutional stan-
dard against the admission of unreliable eyewitness identification evidence
or testimony. See [id., 130–31] . . . .’’ (Internal quotation marks omitted.)
He also made the same argument as to the fourth claim in his habeas petition,
which alleged a violation of his constitutional right to present a defense.
His reply is in compliance with Practice Book § 23-31 (b), which provides
that ‘‘[t]he reply shall admit or deny any allegations that the petitioner is
not entitled to relief,’’ and with Practice Book § 23-31 (c), which provides
in relevant part that ‘‘[t]he reply shall allege any facts and assert any cause
and prejudice claimed to permit review of any issue despite any claimed
procedural default. . . .’’ In addition, on the first day of the habeas trial,
counsel for the petitioner explicitly stated that ‘‘[o]ur argument is that Harris
applies retroactively . . . . We are alleging in part that there is cause . . .
to overcome the procedural default or that procedural default doesn’t apply
because any attempt to raise these claims at the time of the petitioner’s
trial would’ve been futile.’’
On the basis of the petitioner’s reply, in which he explicitly cites to
Harris and makes the argument that is now before this court, as well as
the arguments of habeas counsel at the habeas trial, we conclude that the
petitioner properly preserved the issue concerning the retroactivity of State
v. Harris, supra, 330 Conn. 91.
15
‘‘[I]f the new rule is procedural, it applies retroactively if it is a watershed
[rule] of criminal procedure . . . implicit in the concept of ordered liberty
. . . meaning that it implicat[es] the fundamental fairness and accuracy
of [a] criminal proceeding.’’ (Citation omitted; internal quotation marks
omitted.) Casiano v. Commissioner of Correction, 317 Conn. 52, 63, 115
A.3d 1031 (2015), cert. denied sub nom. Semple v. Casiano, 577 U.S. 1202,
136 S. Ct. 1364, 194 L. Ed. 2d 376 (2016).
16
‘‘In State v. Geisler, [supra, 222 Conn. 672, our Supreme Court] enumer-
ated the following six factors to be considered in construing the state
constitution: (1) persuasive relevant federal precedents; (2) the text of the
operative constitutional provisions; (3) historical insights into the intent of
our constitutional forebears; (4) related Connecticut precedents; (5) persua-
sive precedents of other state courts; and (6) contemporary understandings
of applicable economic and sociological norms, or as otherwise described,
relevant public policies. . . . The Geisler analysis applies to cases . . . in
which the claim is that the state constitution provides greater protection
than does the federal constitution.’’ (Internal quotation marks omitted.)
State v. Jose A. B., 342 Conn. 489, 507–508, 270 A.3d 656 (2022).
17
Even if we assume, arguendo, that the petitioner could show cause and
prejudice to overcome procedural default, we reject his second argument
that Harris, decided nine years after the conclusion of his criminal trial,
applies retroactively because it is a watershed rule of criminal procedure.
It is well settled that courts apply the rule promulgated in Teague v. Lane,
489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), when considering
whether a new rule of criminal procedure applies retroactively. ‘‘If the rule
is substantive, it generally applies retroactively. . . . A procedural rule, on
the other hand, is only retroactive if it is considered watershed.’’ (Citation
omitted; internal quotation marks omitted.) Garcia v. Commissioner of
Correction, 147 Conn. App. 669, 677, 84 A.3d 1, cert. denied, 312 Conn. 905,
93 A.3d 156 (2014). ‘‘The watershed exception [to Teague v. Lane, supra, 311]
is reserved for those rules of criminal procedure implicating the fundamental
fairness and accuracy of the criminal proceeding. . . . Beyond fundamental
fairness, the new rule also must constitute a procedure without which
the likelihood of an accurate conviction is seriously diminished.’’ (Citation
omitted; internal quotation marks omitted.) Dyous v. Commissioner of Men-
tal Health & Addiction Services, 324 Conn. 163, 181–82, 151 A.3d 1247 (2016).
The petitioner concedes that the rule promulgated in State v. Harris,
supra, 330 Conn. 91, is a new rule and that it is procedural in nature.
Specifically, the petitioner argues that ‘‘Harris is specifically directed toward
ensuring an accurate determination of a defendant’s innocence or guilt and
constitutes a watershed rule that applies retroactively on collateral review.’’
In September, 2018, our Supreme Court in Harris replaced the Biggers
factors, which Connecticut courts had been employing to analyze claims
concerning unnecessarily suggestive eyewitness identifications, with the
Guilbert factors. Nevertheless, the court expressly stated that the new fac-
tors are ‘‘generally comparable to the Biggers factors and are merely
intended to more precisely define the focus of the relevant inquiry.’’ (Internal
quotation marks omitted.) Id., 136.
This court has had recent occasion to address the issue of whether Harris
applies retroactively. In Tatum v. Commissioner of Correction, 211 Conn.
App. 42, 272 A.3d 218 (2022), petition for cert. filed (Conn. April 27, 2022)
(No. 210408), this court undertook a thorough analysis concerning whether
State v. Guilbert, supra, 306 Conn. 218, promulgated a watershed rule and,
as such, could be applied retroactively. This court in Tatum held: ‘‘[O]ur
Supreme Court [in Harris] essentially treated Guilbert as creating a new
state constitutional rule of criminal procedure that safeguards the due pro-
cess protection against the admission of an unreliable identification. Even
if we were to construe Guilbert, through the lens of Harris, as a new
constitutional rule of criminal procedure, this rule still would not apply on
collateral review. . . . [W]e conclude that the Guilbert framework for evalu-
ating the reliability of an identification that is the result of an unnecessarily
suggestive identification procedure, which was adopted by our Supreme
Court in Harris, does not fall within the narrow watershed exception pursu-
ant to Teague because . . . (1) this rule is prophylactic and a violation of
the rule does not necessarily rise to the level of a due process violation, and
(2) the rule amounts to an incremental change in identification procedures.’’
(Citations omitted; internal quotation marks omitted.) Tatum v. Commis-
sioner of Correction, supra, 65–67.
Because the rule adopted in Harris is a mere ‘‘incremental change in
identification procedures’’; id., 67; and decidedly not a watershed rule, there
is no basis in the present case for retroactive application.