McClain v. Commissioner of Correction , 188 Conn. App. 70 ( 2019 )

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TAJAH S. MCCLAIN v. COMMISSIONER OF
CORRECTION
(AC 40541)
Prescott, Bright and Bishop, Js.
Syllabus
The petitioner, who had been convicted of, inter alia, murder with a firearm
in connection with the shooting death of the victim, sought a writ of
habeas corpus, claiming, inter alia, that his trial counsel had provided
ineffective assistance and that he was actually innocent. The habeas
court rendered judgment denying the habeas petition and, thereafter,
denied the petition for certification to appeal, and the petitioner appealed
to this court. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal with respect to the petitioner’s claim that his trial
counsel provided ineffective assistance:
a. The habeas court properly determined that the petitioner failed to
show that he was prejudiced by his trial counsel’s failure to present a
third-party culpability defense and to produce evidence that another
individual, V, shot the victim; the petitioner failed to demonstrate that
there was a reasonable probability that, but for counsel’s failure to
present a third-party culpability defense, the outcome of his trial would
have been different, as the descriptions of the shooter more closely
matched the physical features of the petitioner than those of V, testimony
at the habeas trial connecting V to the shooting was unreliable, unclear,
and, at most, raised a bare suspicion that V may have been involved in
a shooting, and even if a social media post in which V purportedly
referred to the shooting had been found and properly authenticated, it
failed to constitute an admission by V sufficient to raise a reasonable
doubt as to the petitioner’s culpability.
b. The petitioner failed to show that he was prejudiced by his trial
counsel’s failure to present evidence of an initial segment of a video
recorded police interview of a witness for the state, which the petitioner
alleged had been redacted; the petitioner failed to present any evidence,
apart from his own allegation that he had viewed an original video, that
an initial portion of the video existed or that if it did exist it was not
shown to the jury, and trial counsel’s cross-examination of the witness
and the detective who recorded the interview allowed the jury to weigh
their credibility regarding the nature of the video without the presenta-
tion of the purported initial segment of the video.
2. The habeas court properly denied the petition for certification to appeal
with respect to the petitioner’s claim of actual innocence, the petitioner
having failed to establish by clear and convincing evidence that he
was innocent of the murder for which he was convicted and that no
reasonable fact finder would find him guilty of the crime; although the
testimony of B presented by the petitioner at the habeas trial was newly
discovered evidence, B’s testimony was insufficient to prove by clear
and convincing evidence that the petitioner was actually innocent in
light of the overwhelming evidence of the petitioner’s identification as
the shooter at the criminal trial and the habeas court’s conclusion, after
viewing both the petitioner and V, that the petitioner more closely
resembled the description of the shooter, and even if the testimony of
two other witnesses presented by the petitioner at the habeas trial
constituted newly discovered evidence, such testimony was unreliable
and did not constitute clear and convincing evidence of the petitioner’s
actual innocence.
Argued November 27, 2018–officially released February 26, 2019
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, Sferrazza, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Jennifer B. Smith, assigned counsel, with whom, on
the brief, was Samuel A. Greenberg, assigned counsel,
for the appellant (petitioner).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, C. Robert Satti, Jr., supervisory assistant state’s
attorney, and Emily Dewey Trudeau, assistant state’s
attorney, for the appellee (respondent).
Opinion
BISHOP, J. The petitioner, Tajah S. McClain, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his petition for a writ of habeas corpus. On appeal,
the petitioner claims that the habeas court abused its
discretion in denying his petition for certification to
appeal and improperly rejected (1) his claim that his
trial counsel rendered ineffective assistance, and (2)
his claim of actual innocence. 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 murder with a firearm
in violation of General Statutes §§ 53a-54a (a) and 53-
202k, assault in the first degree with a firearm in viola-
tion of General Statutes §§ 53a-59 (a) (5) and 53-202k,
and carrying a pistol without a permit in violation of
General Statutes § 29-35 (a). The petitioner received a
total effective sentence of sixty-five years incarceration.
This court’s opinion in the petitioner’s direct appeal;
see State v. McClain, 154 Conn. App. 281, 283–84, 105
A.3d 924 (2014), aff’d, 324 Conn. 802, 155 A.3d 209
(2017); sets forth the following facts: ‘‘On July 17, 2010,
a group of more than ten people were drinking alcohol
in the area known as ‘the X,’ located behind the Greene
Homes Housing Complex in Bridgeport [Greene
Homes]. Shortly before 5:22 a.m., the victim, Eldwin
Barrios, was sitting on a crate when all of a sudden the
[petitioner] and at least two other men jumped on him,
and started punching and kicking him. The victim kept
asking them why they were hitting him, but no one
answered. The [petitioner] then was passed a chrome
or silver handgun and he fired one shot, intended for
the victim. The bullet, however, struck one of the other
men in the back of the leg. The man who had just been
shot yelled, ‘you shot me, you shot me, why you shot
me,’ to which the [petitioner] replied, ‘my bad.’ As this
was happening, the victim got up and tried to run away,
but the [petitioner] fired several shots at him. Three of
the [petitioner’s] shots hit the victim—one in the leg,
one in the arm, and one in the torso—at which point,
the victim fell to the ground and died.
‘‘The [petitioner] was arrested three days after the
murder. Following a jury trial, the [petitioner] was con-
victed and sentenced to a total effective sentence of
sixty-five years incarceration.’’ (Footnote omitted.) This
court affirmed the petitioner’s conviction on direct
appeal. Id., 283.1 Thereafter, our Supreme Court
affirmed this court’s judgment. State v. McClain, 324
Conn. 802, 805, 155 A.3d 209 (2017).
On September 3, 2013, the petitioner, in a self-repre-
sented capacity, filed a petition for a writ of habeas
corpus. On April 1, 2016, the petitioner, represented by
counsel, filed the operative amended petition. In the
amended petition, the petitioner alleged that (1) his
constitutional right to the effective assistance of trial
counsel was violated, (2) his right to due process was
violated by the state’s failure to disclose or otherwise
correct false testimony, pursuant to Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),
and (3) he was actually innocent. By memorandum of
decision issued on May 11, 2017, the habeas court
denied the amended petition, concluding that the peti-
tioner did not meet his burden of proving a Brady
violation, did not prove that he was prejudiced by his
trial counsel’s performance, and did not prove his actual
innocence. The court thereafter denied the petition for
certification to appeal from its decision. This appeal
followed. Additional facts will be set forth as necessary.
We begin by setting forth the applicable standard of
review. ‘‘Faced with a habeas court’s denial of a petition
for certification to appeal, a petitioner can obtain appel-
late review of the dismissal of his petition for habeas
corpus only by satisfying the two-pronged test enunci-
ated 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.) Peeler v.
Commissioner of Correction, 161 Conn. App. 434, 442–
43, 127 A.3d 1096 (2015).
‘‘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.’’ (Internal quotation
marks omitted.) Mercado v. Commissioner of Correc-
tion, 183 Conn. App. 556, 561, 193 A.3d 671, cert. denied,
330 Conn. 918, 193 A.3d 1211 (2018).
I
The petitioner first claims that the habeas court
abused its discretion by denying his certification to
appeal from its decision regarding the petitioner’s claim
of ineffective assistance of trial counsel. Specifically,
the petitioner claims that his trial counsel rendered
ineffective assistance by failing to present (1) a third-
party culpability defense and (2) evidence of an initial
segment of a video recorded police interview of a state’s
witness that the petitioner alleges exists. In response,
the respondent, the Commissioner of Correction,
argues, in relevant part, that the habeas court properly
denied the petition for a writ of habeas corpus because
the petitioner failed to establish that he was prejudiced
by an alleged deficiency in his trial counsel’s perfor-
mance. We agree with the respondent.
‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous. . . .
Historical facts constitute a recital of external events
and the credibility of their narrators. . . . Accordingly,
[t]he habeas judge, as the trier of facts, is the sole arbiter
of the credibility of witnesses and the weight to be
given to their testimony. . . . The application of the
habeas court’s factual findings to the pertinent legal
standard, however, presents a mixed question of law
and fact, which is subject to plenary review.’’ (Internal
quotation marks omitted.) Antwon W. v. Commissioner
of Correction, 172 Conn. App. 843, 849, 163 A.3d 1223,
cert. denied, 326 Conn. 909, 164 A.3d 680 (2017).
‘‘The petitioner’s right to the effective assistance of
counsel is assured by the sixth and fourteenth amend-
ments to the federal constitution, and by article first,
§ 8, of the constitution of Connecticut. In Strickland v.
Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984)], the United States Supreme Court
established that for a petitioner to prevail on a claim
of ineffective assistance of counsel, he must show that
counsel’s assistance was so defective as to require
reversal of [the] conviction. . . . That requires the peti-
tioner to show (1) that counsel’s performance was defi-
cient and (2) that the deficient performance prejudiced
the defense. . . . Unless a [petitioner] makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process
that renders the result unreliable. Because both prongs
. . . must be established for a habeas petitioner to pre-
vail, a court may dismiss a petitioner’s claim if he fails
to meet either prong. Accordingly, a court need not
determine the deficiency of counsel’s performance if
consideration of the prejudice prong will be dispositive
of the ineffectiveness claim. . . .
‘‘With respect to the prejudice component of the
Strickland test, the petitioner must demonstrate that
counsel’s errors were so serious as to deprive the [peti-
tioner] of a fair trial, a trial whose result is reliable.
. . . It is not enough for the [petitioner] to show that
the errors had some conceivable effect on the outcome
of the proceedings. . . . Rather, [t]he [petitioner] must
show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome. . . . When a [petitioner] chal-
lenges a conviction, the question is whether there is a
reasonable probability that, absent the errors, the fact
finder would have had a reasonable doubt respecting
guilt.’’ (Internal quotation marks omitted.) Weinberg
v. Commissioner of Correction, 112 Conn. App. 100,
106–107, 962 A.2d 155, cert. denied, 291 Conn. 904, 967
A.2d 1221 (2009).
Because the habeas court in the present case deter-
mined that the petitioner had not proven that he was
prejudiced by the performance of his trial counsel with-
out reaching the deficiency prong, ‘‘our focus on review
is whether the court correctly determined the absence
of prejudice.’’ (Internal quotation marks omitted.) Mer-
cado v. Commissioner of Correction, supra, 183 Conn.
App. 565; see also Weinberg v. Commissioner of Correc-
tion, supra, 112 Conn. App. 108.
A
We first address the petitioner’s argument that he
was prejudiced by his trial counsel’s failure to present
a third-party culpability defense. Specifically, the peti-
tioner argues that his trial counsel’s failure to produce
evidence that Carlos Vidal shot the victim constituted
ineffective assistance of counsel.
‘‘It is well established that a defendant has a right to
introduce evidence that indicates that someone other
than the defendant committed the crime with which
the defendant has been charged. . . . The defendant
must, however, present evidence that directly connects
a third party to the crime. . . . It is not enough to show
that another had the motive to commit the crime . . .
nor is it enough to raise a bare suspicion that some
other person may have committed the crime of which
the defendant is accused. . . .
‘‘The admissibility of evidence of third party culpabil-
ity is governed by the rules relating to relevancy. . . .
Relevant evidence is evidence having any tendency to
make the existence of any fact that is material to the
determination of the proceeding more probable or less
probable than it would be without the evidence. . . .
Accordingly, in explaining the requirement that the
proffered evidence establish a direct connection to a
third party, rather than raise merely a bare suspicion
regarding a third party, [our Supreme Court has] stated:
Such evidence is relevant, exculpatory evidence, rather
than merely tenuous evidence of third party culpability
[introduced by a defendant] in an attempt to divert
from himself the evidence of guilt. . . . In other words,
evidence that establishes a direct connection between
a third party and the charged offense is relevant to the
central question before the jury, namely, whether a
reasonable doubt exists as to whether the defendant
committed the offense. Evidence that would raise only
a bare suspicion that a third party, rather than the defen-
dant, committed the charged offense would not be rele-
vant to the [fact finder’s] determination.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Arroyo, 284 Conn. 597, 609–610, 935 A.2d 975 (2007);
see also Johnson v. Commissioner of Correction, 330
Conn. 520, 564, A.3d (2019).
The following additional facts are relevant to this
claim. During the habeas trial, Donald J. Cretella, Jr.,
the petitioner’s trial counsel, testified that he recalled
seeing a police investigative report about the shooting
that described an individual speaking with the police
and referencing a man named Carlos Vidal. The habeas
court subsequently admitted that report as an exhibit
for the purpose of showing what may have been avail-
able to Cretella at the time of trial. The petitioner’s
habeas counsel then asked Cretella to read the follow-
ing portion of the report that was relevant to his testi-
mony: ‘‘Jesenia Rhodes called me then came in to talk.
She stated Fro’s real name is Charlie or Carlos Vidal.
He lives on Catherine [Street], he pulled a gun on a girl,
she has a restraining order against him, [and] he lives
at his aunt’s house at 104 Catherine [Street] which is
across the street from his girlfriend’s house . . . . His
mother is [Eleanor] and she lives at 59 Edwin. Jesenia
on [July 19, 2010] went on Fro’s MySpace account2 . . .
and found a picture of a tombstone that stated ‘this is
where niggas go when they fuck with me 1986.’ This
concern[ed] Jesenia because [the victim’s] birth year is
1986. Jesenia took a picture of the tombstone before
Fro removed it from the account. Jesenia stated some-
one . . . saw Vidal at Wentfield Park getting out of a
rental car with a gun. . . . Before she left I showed
her a picture of . . . Vidal [date of birth March 23,
1986,] and she stated that was Fro.’’ (Footnote added.)
Cretella did not recall having a conversation with the
petitioner about the report. He also did not investigate
the information it contained because his strategy was
to present an alibi defense, and, at the time, he believed
that the third-party culpability defense was weak. Ser-
geant John Losak, the Bridgeport police officer who
authored the report, testified at the habeas trial that
Rhodes had provided him with information regarding
the MySpace post but indicated that there was nothing
in the post that was exculpatory for the petitioner.
Losak further recalled that the information compiled
over the course of the investigation did not suggest
that there was more than one suspect at the scene of
the shooting.
The petitioner’s habeas counsel also presented the
testimonies of Silas Cox, a purported eyewitness to the
shooting, Madeline Griffin, Vidal’s aunt, and Shemayah
Ben-Israel, an inmate who had shared a holding cell
with Vidal in 2014. Cox testified that he was present at
a section of the Greene Homes commonly referred to
as the ‘‘X’’ in 2010 when the shooting occurred, and
that he saw ‘‘a Spanish looking guy with a gun shoot
and then run away.’’ Cox described the shooter as hav-
ing white skin and braided hair, not a shaved head as
the petitioner had at the time of the shooting. During
cross-examination, Cox described his extensive crimi-
nal record and acknowledged he had been in jail from
February to November, 2010, which period encom-
passes the July, 2010 date of the shooting. Cox later
backtracked from this acknowledgment and stated that
he did not recall the exact dates that he had been incar-
cerated in 2010 because he had ‘‘an extensive history
of coming back and forth to jail . . . .’’
Griffin testified that the victim had robbed her, and
that when she told Vidal that the victim had robbed
her, he began waving a silver gun around. Griffin stated
that this encounter happened before a 2010 car accident
in which she had been involved. Griffin further testified
that her sister, Eleanor, who is also Vidal’s mother,
had told her that someone named ‘‘Boo’’ had called
Eleanor’s house asking for Vidal to meet him in the
Greene Homes with the victim, and that ‘‘it had to do
with a gun.’’ Griffin also stated that Eleanor had asked
her if Vidal could stay at her house because he had
been shot. Griffin’s statements regarding what Eleanor
had said to her were admitted at the habeas trial, over
hearsay objections, for the purpose of showing what
information may have been available to Cretella at the
time of the criminal trial. Griffin provided more informa-
tion about her 2010 accident during cross-examination,
stating that she had been involved in a car accident in
June, 2010, and that, as a consequence, she had devel-
oped memory problems. She also stated that she had
been diagnosed with mental health issues, including
schizophrenia, for which she takes medication.
Ben-Israel testified that while he was in a holding
cell in MacDougall-Walker Correctional Institution with
Vidal in 2014, they had a conversation during which
Vidal expressed his concern that ‘‘a warrant was going
to pop up for his arrest . . . for that incident that hap-
pened in the [Greene Homes].’’ Ben-Israel also testified
that Vidal had been talking about the petitioner, and
that Vidal had told him that ‘‘he was supposed to turn
himself in, but . . . he wasn’t going to turn himself in
for nobody. And that is pretty much what he said. He
said fuck—he said fuck [the petitioner], basically.’’ Ben-
Israel further stated that he had been familiar with the
case because he had seen a post that Vidal had made
on Facebook in which he bragged ‘‘about what was
done in the [Greene Homes].’’3 During cross-examina-
tion, Ben-Israel acknowledged that he was serving a
twelve year sentence for robbery and that he had a
previous criminal record under a different name. He
also acknowledged that the Facebook post by Vidal
that he allegedly saw did not indicate that Vidal had
killed the victim.
The petitioner also testified at the habeas trial. He
stated that the only discussion he had with Cretella
about Vidal was regarding Rhodes’ reference to Vidal
in Losak’s report. The petitioner recalled that when he
asked Cretella about sequestering Rhodes, Cretella cut
him off and told him not to worry about her.
The habeas court explicitly addressed the MySpace
post and Ben-Israel’s testimony in rejecting the petition-
er’s claim that Cretella failed to investigate or present
a third-party culpability defense. The court determined
that it was unclear whether Cretella successfully could
have authenticated the MySpace post as having been
authored by Vidal. The court concluded that, even if
the post had been admitted into evidence, it failed ‘‘to
comprise a clear admission by Vidal that he, and not
the petitioner, shot the victim’’; (emphasis in original);
and noted that ‘‘it was the petitioner, and not Vidal,
whose appearance more closely resembled the shoot-
er’s description [given] by most witnesses.’’
After reviewing the record, we agree with the habeas
court’s conclusion that, despite the evidence presented,
the petitioner failed to demonstrate that there was a
reasonable probability that, but for the trial counsel’s
failure to present a third-party culpability defense, the
outcome of his trial would have been different. We
agree that even if a third-party culpability defense had
been asserted at the petitioner’s trial, the purported
MySpace post, assuming that it was found and properly
authenticated, would have failed to constitute an admis-
sion by Vidal sufficient to raise a reasonable doubt of
the petitioner’s culpability.4 Sergeant Losak confirmed
that he had been made aware of the post, but testified
that the investigation of the shooting did not corrobo-
rate the information that the post allegedly contained.
Moreover, we agree with the court’s determination that,
because Ben-Israel’s testimony concerned a 2014 con-
versation he had with Vidal ‘‘that first came to light
about one month before the habeas trial in 2017 . . .
Cretella could hardly be faulted for not premising a
third-party [culpability] defense on an event which had
not yet occurred at the time of the petitioner’s criminal
trial in 2012.’’
Additionally, although the court did not specifically
discuss the testimony of Cox and Griffin, the court
reasonably could have concluded that their testimony
did not help the petitioner because it was unclear
whether Cox was in prison at the time of the shooting,
and because Griffin’s memory and mental health issues
raise questions as to the reliability of her testimony.
Additionally, the testimony of Cox and Griffin did not
directly connect Vidal to the shooting in the present
case but, rather, at the most, raised a bare suspicion
that he may have been involved in a shooting. See State
v. Arroyo, supra, 284 Conn. 609–610. Finally, as we will
discuss further in part II of this opinion, the court found
that the evidence at both the criminal and habeas trials
provided descriptions of the shooter that more closely
matched the physical features of the petitioner than
those of Vidal.
Accordingly, the habeas court correctly determined
that the petitioner was not prejudiced by Cretella’s
alleged failure to investigate and present a third-party
culpability defense.
B
The petitioner next argues that he was prejudiced by
his trial counsel’s failure to present evidence of an initial
segment of a video recorded police interview of Edu-
ardo Martorony, a witness for the state. The petitioner
alleges that an initial portion of the video in which
Detective Harold Dimbo intentionally left Martorony
alone in the interview room had been redacted. We are
not persuaded.
The following additional facts are relevant to this
claim. Cretalla testified during the habeas trial that he
recalled that, during the petitioner’s criminal trial, the
police video of Martorony was played to corroborate
Martorony’s trial testimony. During Cretella’s testimony
before the habeas court, the video was played to show
what information had been available to Cretella. The
video began by showing Martorony sitting alone in an
interview room looking through police materials. Cret-
ella recalled this initial portion of the video but did not
recall whether that initial portion was played for the
jury at the criminal trial or whether redactions were
made to the first part of the video. Cretella did recall
that redactions were made to the latter part of the
video and that there was a portion of the video showing
Martorony sitting alone in the room for a longer period
of time than shown in the recording entered into evi-
dence. He testified, however, that this portion may have
occurred later in the interview.
Cretella additionally testified that he thought Martor-
ony’s review of the police material during the video
could have suggested that he saw information that
would have helped him testify about something he actu-
ally may not have witnessed. Cretella stated that he
cross-examined Martorony regarding the material left
in the interview room and that, although he also cross-
examined Dimbo about Martorony’s interview, he did
not recall whether he specifically asked Dimbo about
the material left in the room because he did not want
to walk into a ‘‘potential trap’’ by asking questions with
potential answers he did not know. Finally, Cretella
testified that, in his experience as an attorney, having
viewed ‘‘hundreds’’ of police interviews, it is not uncom-
mon for the videos of such interviews to start before
the interviewer has entered the room.
Dimbo, who interviewed Martorony during the video,
testified that he had met with Martorony before the
interview to discuss the case. Dimbo stated that, at
this initial meeting, Martorony had provided him with
information about the shooting on his own accord. Spe-
cifically, Dimbo recalled that Martorony told him that
he had witnessed a shooting and provided him with the
nicknames of those involved. Dimbo then stated that,
after hearing those nicknames, he suspected that the
petitioner was the shooter. Dimbo also testified that
the material Martorony was seen examining in the video
contained only a photograph of the victim, Dimbo’s
notes from his previous discussion with Martorony, and
a photo array. He stated, as well, that apart from the
photo array, everything included in the material was
information that had been provided directly to him by
Martorony. Dimbo further testified that Martorony was
left alone in the interview room before the recording
began because he needed to leave the room to turn on
the video recorder.
The petitioner testified that he had viewed an original
video in which Dimbo had left Martorony alone in the
interview room because he said he had forgotten some-
thing, and the petitioner contended that during his crim-
inal trial, he wanted Cretella to question Dimbo about
why he subsequently did not return to the room with
anything.
In assessing the petitioner’s claim that Cretella failed
to present the alleged initial segment of the video
recorded police interview, the habeas court determined
that the allegation that the video had been redacted
was ‘‘simply unproven speculation.’’ The court con-
cluded that no credible evidence supported the petition-
er’s suggestion that the recording began earlier than
shown to the jury simply because it abruptly started
with Martorony reviewing police material.
On the basis of our review of the record, we conclude
that the habeas court reasonably determined that the
petitioner offered insufficient evidence to support his
allegation that an initial segment of the video existed
or that, even if it existed, it was not shown to the
jury. No evidence of an initial portion of the video was
presented at the habeas trial apart from the petitioner’s
allegation that he had viewed an ‘‘original video.’’ More-
over, the court found that Cretella’s cross-examination
of both Martorony and Detective Dimbo at the petition-
er’s criminal trial ‘‘decidedly put before the jury the
possibility that Martorony previewed police documents,
photographs, and/or notes and simply repeated infor-
mation that he believed the police wanted to hear.’’
Accordingly, we agree with the habeas court’s assess-
ment that because the jury was able to weigh Martorony
and Dimbo’s credibility regarding the nature of the
video without the presentation of any purported initial
segment of the video, no prejudice resulted from Cretel-
la’s alleged failure to present additional evidence
regarding the nature of the video.
The record demonstrates that, even if Cretella had
provided deficient performance regarding the third-
party culpability defense or the purported missing por-
tion of the video, the petitioner’s ineffective assistance
claims do not involve issues that are debatable among
jurists of reason with respect to the prejudice prong of
the Strickland test. We conclude, therefore, that the
habeas court did not abuse its discretion in denying the
petition for certification to appeal from that court’s
determination that the petitioner failed to prove that
he was prejudiced by the ineffective assistance of coun-
sel at his criminal trial.
II
The petitioner also claims that the court abused its
discretion in denying his petition for certification to
appeal with respect to his claim of actual innocence.
We are not persuaded.
We begin by setting forth the relevant legal principles
that govern our analysis. ‘‘[T]he proper standard for
evaluating a freestanding claim of actual innocence,
like that of the petitioner, is twofold. First, the petitioner
must establish by clear and convincing evidence that,
taking into account all of the evidence—both the evi-
dence adduced at the original criminal trial and the
evidence adduced at the habeas corpus trial—he is actu-
ally innocent of the crime of which he stands convicted.
Second, the petitioner must also establish that, after
considering all of that evidence and the inferences
drawn therefrom as the habeas court did, no reasonable
fact finder would find the petitioner guilty of the
crime. . . .
‘‘Actual innocence is not demonstrated merely by
showing that there was insufficient evidence to prove
guilt beyond a reasonable doubt. . . . Rather, actual
innocence is demonstrated by affirmative proof that
the petitioner did not commit the crime. . . . Affirma-
tive proof of actual innocence is that which might tend
to establish that the petitioner could not have commit-
ted the crime even though it is unknown who committed
the crime, that a third party committed the crime or that
no crime actually occurred.’’ (Citation omitted; internal
quotation marks omitted.) Carmon v. Commissioner
of Correction, 178 Conn. App. 356, 371, 175 A.3d 60
(2017), cert. denied, 328 Conn. 913, 180 A.3d 961 (2018).
This court has held that ‘‘[a] claim of actual innocence
must be based on newly discovered evidence. . . .
This evidentiary burden is satisfied if a petitioner can
demonstrate, by a preponderance of the evidence, that
the proffered evidence could not have been discovered
prior to the petitioner’s criminal trial by the exercise
of due diligence.’’ (Internal quotation marks omitted.)
Ampero v. Commissioner of Correction, 171 Conn. App.
670, 687, 157 A.3d 1192, cert. denied, 327 Conn. 953,
171 A.3d 453 (2017).
The following additional facts are relevant to this
claim. During the habeas trial, the petitioner described
Vidal as a light-skinned African American, approxi-
mately five feet, seven to eight inches tall, and with
cornbraids. The petitioner additionally testified that he
himself, as opposed to Vidal, never had cornbraids.
Vidal also appeared with his counsel during the habeas
trial through a video conference and, through his coun-
sel, invoked his right against self-incrimination. When
the petitioner’s counsel indicated his desire to put
Vidal’s skin color, hairstyle, and other physical charac-
teristics into the record, the court responded: ‘‘Well I
can—certainly I can see Mr. Vidal presently, so I can
take—my observations are certainly evidence in the
case of how he appears. And with that, I don’t think
you can ask him how his hair was, etc.’’ The court then
asked Vidal if he would be willing to answer questions
about his height and weight, and although his counsel
did not agree to permit him to do so, Vidal did stand
up and turn to the side when the court requested that
he do so.
In its memorandum of decision, the habeas court
first indicated that ‘‘[t]he newly discovered evidence
proffered by the petitioner’’ was the testimony of Ben-
Israel. The court then found ‘‘that the petitioner . . .
failed to satisfy his burden of proving, by clear and
convincing evidence, affirmatively that [he] did not mur-
der the victim.’’ The court determined that ‘‘[a] combina-
tion of credible, newly discovered evidence with that
previously produced at the petitioner’s criminal trial
show[ed] that the more accurate and persuasive
description of the shooter more closely matched the
physical features of the petitioner than those of Vidal.’’
The court stated that it had ‘‘viewed Vidal’s complexion
and other physical characteristics personally.’’ The
court also noted that, during the criminal trial, it was
established that three persons who knew the petitioner
on the day of the shooting identified him as the gunman:
(1) Kyle Mason, the other individual who was shot and
who provided a recorded statement to police on the
day of the incident; (2) Henry Brandon, who saw the
petitioner receive a silver pistol from one of his compan-
ions and fire the shot that struck Mason; and (3) Martor-
ony, who was speaking with the victim just as the
assailants approached to attack and ‘‘identified the peti-
tioner as the person who employed a chrome-colored,
semi-automatic pistol to shoot the victim.’’ The court
concluded that, given the inculpatory evidence against
the petitioner, ‘‘vague boasts [allegedly] by Vidal of
some nonspecific involvement in the victim’s demise
falls far short of clear and convincing evidence of the
petitioner’s innocence.’’
On appeal, the petitioner argues that (1) Ben-Israel’s
testimony was newly discovered evidence that could
not have been discovered prior to, or during, the peti-
tioner’s criminal trial despite the exercise of due dili-
gence, and (2) the testimony of Cox and Griffin also
could be considered newly discovered evidence pro-
vided that this court determines that the exercise of
due diligence would not have unearthed their testi-
mony. The respondent argues that the petitioner’s claim
should ‘‘be rejected because the habeas court acted
well within its role as fact finder in concluding that the
proffered evidence was insufficient to meet the ‘extraor-
dinarily high’ burden of proving the petitioner’s actual
innocence by clear and convincing evidence.’’
Because it is clear that Ben-Israel’s testimony, which
came to light one month before the 2017 habeas trial,
could not have been discovered prior to the petitioner’s
2012 criminal trial through due diligence, we agree with
the habeas court that the testimony constitutes newly
discovered evidence. We also agree with the habeas
court that such testimony fails to establish clearly and
convincingly that the petitioner is actually innocent.
In his testimony during the habeas trial, Ben-Israel
stated that Vidal told him about the shooting in the
Greene Homes, but also stated that he knew about
the shooting apart from his conversation with Vidal.
Moreover, Ben-Israel repeatedly stated that the social
media post by Vidal that he allegedly saw was on Face-
book, not MySpace, and that the post did not indicate
that Vidal, and not the petitioner, had killed the victim.
Ben-Israel’s testimony was not only contradictory to
the inculpatory evidence presented against the peti-
tioner, but it also failed to unequivocally undermine
such evidence. See Gould v. Commissioner of Correc-
tion, 301 Conn. 544, 560, 22 A.3d 1196 (2011) (‘‘[T]he
clear and convincing evidence standard should operate
as a weighty caution upon the minds of all judges, and
it forbids relief whenever the evidence is loose, equivo-
cal or contradictory. . . . We equated the clear and
convincing burden with an extraordinarily high and
truly persuasive [demonstration] of actual innocence
. . . .’’ [Citation omitted; internal quotation marks omit-
ted.]). The habeas court considered the overwhelming
evidence of the petitioner’s identification as the shooter
at the criminal trial with its own viewing of the peti-
tioner and Vidal during the habeas trial, and reasonably
concluded that the petitioner, not Vidal, more closely
resembled the shooter identified by eyewitnesses. As
such, we conclude that, in light of the evidence pre-
sented at the habeas trial, Ben-Israel’s testimony did
not support the petitioner’s actual innocence claim.
We next turn to the petitioner’s argument, which was
not raised during the habeas trial, that the testimony
of Cox and Griffin could be newly discovered evidence.5
In his brief before this court, the petitioner merely
restates the relevant portions of Cox and Griffin’s testi-
mony without offering an argument or legal authority
as to how such testimony could be considered newly
discovered.
Even assuming, arguendo, that the testimony of Cox
and Griffin could be considered newly discovered, we
conclude that such testimony, when weighed against
the other evidence presented against the petitioner at
the habeas trial, did not constitute affirmative proof of
the petitioner’s innocence. ‘‘To disturb a long settled
and properly obtained judgment of conviction, and thus
put the state to the task of reproving its case many
years later, the petitioners must affirmatively demon-
strate that they are in fact innocent.’’ (Emphasis in
original.) Gould v. Commissioner of Correction, supra,
301 Conn. 567. As previously discussed in part I A of this
opinion, the testimony of Cox and Griffin was unreliable
and did not constitute clear and convincing evidence
of the petitioner’s actual innocence. Carmon v. Com-
missioner of Correction, supra, 178 Conn. App. 371
(‘‘the petitioner must establish by clear and convincing
evidence that, taking into account all of the evidence
. . . he is actually innocent of the crime of which he
stands convicted’’ [internal quotation marks omitted]);
see also Turner v. Commonwealth, 56 Va. App. 391,
411, 694 S.E.2d 251 (2010) (‘‘the petitioner has not met
his burden . . . because . . . relief [on a petition for
a writ of actual innocence is available] only to those
individuals who can establish that they did not, as a
matter of fact, commit the crime for which they were
convicted and not to those who merely produce evi-
dence contrary to the evidence presented at their crimi-
nal trial’’ [internal quotation marks omitted]), aff’d, 282
Va. 227, 717 S.E.2d 111 (2011). On the basis of our own
review, we conclude that the habeas court properly
found that the petitioner had not established by clear
and convincing evidence that he is innocent of the mur-
der for which he was convicted, and the petitioner failed
to establish that no reasonable fact finder would find
him guilty of the crime.
On the basis of the foregoing, we conclude that the
habeas court did not abuse its discretion in denying the
petition for certification to appeal. We are not per-
suaded that the issues, as presented by the petitioner,
are debatable among jurists of reason, that they reason-
ably could be resolved differently, or that they raise
questions deserving further appellate scrutiny.
The appeal is dismissed.
In this opinion the other judges concurred.
1
In his direct appeal, the petitioner claimed ‘‘that the trial court (1) improp-
erly limited his cross-examination of an eyewitness, and (2) committed plain
error by not instructing the jury on the doctrine of consciousness of guilt.’’
State v. McClain, supra, 154 Conn. App. 283.
2
‘‘MySpace is a social networking website where members can create
profiles and interact with other members. Anyone with Internet access can
go onto the MySpace website and view content which is open to the general
public such as a music area, video section, and members’ profiles which
are not set as private. However, to create a profile, upload and display
photographs, communicate with persons on the site, write blogs, and/or
utilize other services or applications on the MySpace website, one must be
a member. Anyone can become a member of MySpace at no charge so long
as they meet a minimum age requirement and register. . . . To establish a
profile, a user needs only a valid email account. . . . Generally, a user
creates a profile by filling out a series of virtual forms eliciting a broad
range of personal data, culminating in a multimedia collage that serves as
one’s digital face in cyberspace.’’ (Citation omitted; internal quotation marks
omitted.) State v. Devalda, 306 Conn. 494, 511 n.19, 50 A.3d 882 (2012).
3
‘‘Facebook is a social networking website that allows private individuals
to upload photographs and enter personal information and commentary on
a password protected profile.’’ (Internal quotation marks omitted.) State v.
Kukucka, 181 Conn. App. 329, 334 n.3, 186 A.3d 1171, cert. denied, 329 Conn.
905, 184 A.3d 1216 (2018).
4
For a third-party culpability defense to succeed, a defendant need only
present evidence that creates a reasonable doubt as to whether the defendant
committed the offense. See State v. Arroyo, supra, 284 Conn. 609–610 (‘‘evi-
dence that establishes a direct connection between a third party and the
charged offense is relevant to the central question before the jury, namely,
whether a reasonable doubt exists as to whether the defendant committed
the offense’’).
In the present case, although the habeas court may have overstated the
quality of evidence adequate to sustain a third-party culpability defense in
concluding that the MySpace post would have failed to constitute a ‘‘clear
admission’’ by Vidal of his culpability, the record provides ample support
for the court’s conclusion that such a defense would not have been successful
in raising a reasonable doubt as to the petitioner’s culpability in this case.
5
We may properly review the petitioner’s argument that the testimony of
Cox and Griffin could be considered newly discovered evidence because it
is derived from the petitioner’s actual innocence claim. See Michael T. v.
Commissioner of Correction, 319 Conn. 623, 635 n.7, 126 A.3d 558 (2015)
(‘‘[w]e may . . . review legal arguments that differ from those raised before
the trial court if they are subsumed within or intertwined with arguments
related to the legal claim raised at trial’’ [internal quotation marks omitted]);
see also State v. Fernando A., 294 Conn. 1, 31 n.26, 981 A.2d 427 (2009)
(‘‘[although we are mindful that] the plaintiff did not [previously] raise . . .
all of the theories that he raises in his writ . . . those theories are related
to a single legal claim, and . . . there is substantial overlap between these
theories under the case law’’ [internal quotation marks omitted]); Rowe v.
Superior Court, 289 Conn. 649, 663, 960 A.2d 256 (2008) (same).
In the present case, the petitioner’s argument regarding the testimony of
Cox and Griffin is subsumed within his actual innocence claim raised before
the habeas court. As such, we may review this argument.