Tutson v. Commissioner of Correction ( 2016 )

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TRENDEL TUTSON v. COMMISSIONER
OF CORRECTION
(AC 37939)
DiPentima, C. J., and Sheldon and Bear, Js.
Argued April 4—officially released September 6, 2016
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Michael D. Day, with whom, on the brief, was John
J. Duguay, for the appellant (petitioner).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and David M. Carlucci, assistant state’s attor-
ney, for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, Trendel Tutson,
appeals from the judgment of the second habeas court,
Oliver, J., denying his second amended petition for a
writ of habeas corpus. The petitioner claims that the
second habeas court erred by (1) concluding that there
was no reasonable probability that the result of the
habeas appeal from the first habeas court’s denial of
his petition for certification to appeal would have been
different and (2) declining to presume that the peti-
tioner was prejudiced by his prior habeas appellate
counsel’s failures to raise an issue on his petition for
certification to appeal from the first habeas court’s rul-
ing. We affirm the judgment of the second habeas court.
The petitioner was charged with attempt to commit
murder in violation of General Statutes §§ 53a-49 and
53a-54a, and assault in the first degree in violation of
General Statutes § 53a-59 (a) (5), for his role in a shoot-
ing that took place between 1 and 1:30 p.m. on March
26, 2001, in Hartford. In order to resolve the issues in
this appeal, we revisit relevant facts concerning the
petitioner’s alibi witnesses who testified at his trial as
set forth in State v. Tutson, 278 Conn. 715, 899 A.2d
598 (2006). Approximately eight months before the peti-
tioner’s trial commenced, ‘‘[o]n August 6, 2001, the [peti-
tioner’s trial counsel] sent a letter to the state . . .
identifying Julia Thomas (Julia) as the only alibi wit-
ness. The letter contained no information, however,
regarding the [petitioner’s] whereabouts at the time the
crime was committed. The [petitioner’s trial counsel]
also provided the state with a three page investigative
report dated April 19, 2001. The report was based on a
personal interview with Julia and a telephone interview
with her son, Terrell Thomas (Terrell). Although the
report referred to the [petitioner’s] ‘girlfriend’ and listed
the name of Rooty [Thomas (Rooty)] as a subject to
be interviewed, it did not name Rooty as a prospective
witness and did not identify her as the [petitioner’s] girl-
friend.
‘‘The trial commenced on March 11, 2002. The state
alleged that the [petitioner] was guilty as a principal or
an accessory of criminal attempt to commit murder and
assault in the first degree. In the bill of particulars . . .
the state specifically alleged that, ‘[o]n [March 26, 2001],
at approximately 1:30 p.m., the [petitioner] was the
operator of a 1997 white Dodge Neon proceeding east
on Bond Street’ and that ‘[Philip] Washington was his
front seat passenger in the . . . Neon.’ The state fur-
ther alleged that the [petitioner] had engaged in a car
chase with [Ernesto] Molina, who was driving a red
Volkswagen Jetta carrying two other passengers, [Jorge
Pagan and one other individual], and had fired a shot
at the Jetta, or had assisted Washington in shooting at
the Jetta, thereby causing physical injury to Molina.1
The [petitioner], relying on theories of misidentification
and alibi, attempted to convince the jury that the two
eyewitnesses to the shooting [Molina and Pagan] incor-
rectly had identified him as the perpetrator because, at
the relevant time, he was in another location and thus
could not have committed the alleged offenses.
‘‘As the state was nearing the end of its case-in-chief,
[the petitioner’s trial counsel] represented to the court,
outside the presence of the jury, that she had given the
state the names of Julia and her sons, Terrell and Tyrone
Thomas (Tyrone), as alibi witnesses. An extended dis-
cussion followed as to whether the [petitioner] had
provided the state with adequate notice to admit the
proposed alibi testimony . . . .
‘‘During this discussion, [the petitioner’s trial coun-
sel] declared that the [petitioner’s] ‘strongest’ alibi wit-
ness was Rooty. When the state protested that it had
not been given notice that Rooty would testify as an
alibi witness, [the petitioner’s trial counsel] replied that
she had included Rooty on the defense witness list,
although counsel was having difficulty locating her.
Upon further inquiry by the court, [the petitioner’s trial
counsel] stated that if Rooty could be located and was
allowed to appear as an alibi witness, she would testify
that she and the [petitioner] went to New Haven follow-
ing his visit with Terrell to pick up her child or drop
off her nephew. . . .
‘‘That same day, prior to the testimony of the state’s
final witness, the [petitioner’s trial counsel] filed the
following notice of alibi with the court: ‘[O]n the date
of [March 26, 2001] at approximately [1] and 1:20 [p.m.],
the [petitioner] . . . was at the home of . . . Julia
. . . and Tyrone . . . located at 827 Wethersfield Ave-
nue, Hartford . . . .
‘‘ ‘[O]n [March 26, 2001] at approximately 1:20 until
[3 or 4 p.m.], the [petitioner] . . . was in the company
of Terrell . . . and Rooty . . . (who are not related to
each other) [en] route to and from Meriden and New
Haven . . . where Rooty . . . had to pick up her . . .
child from school.’
‘‘After the state concluded its case-in-chief, [the peti-
tioner’s trial counsel] reiterated to the court, outside
the presence of the jury, that if Rooty was located and
permitted to appear as an alibi witness, she would tes-
tify that the [petitioner] left Julia’s residence at approxi-
mately 1:20 p.m. on the day of the shooting and
accompanied her to Meriden and New Haven to pick
up her child. . . .
‘‘The following day, [the petitioner’s trial counsel]
informed the court that she finally had located Rooty,
who would be available to testify later that day. The
court replied that, because [the petitioner’s trial coun-
sel] had failed to comply with the applicable rules of
practice, it would allow Rooty to testify as an alibi
witness only if the state was given an opportunity to
interview her first. [The petitioner’s trial counsel] ini-
tially agreed to this proposal but then informed the
court that she no longer wanted to offer Rooty as an
alibi witness because she had learned that Rooty was
not with the [petitioner] at the time of the shooting.
The court responded that, in those circumstances, the
[petitioner’s trial counsel] had ‘an absolute right’ to call
Rooty as a regular witness.
‘‘Thereafter, Julia testified in a manner generally con-
sistent with the investigative report, stating that the
[petitioner] was visiting her sons, Terrell and Tyrone,
when she returned home from grocery shopping
between 12:30 and 1 p.m. on the day of the shooting
and that he left at approximately 1:10 to 1:15 p.m. She
further testified that the [petitioner] had stated upon
leaving that his girlfriend was waiting outside in her
car. Julia described the vehicle, which she had seen
when returning to her residence a short time earlier,
as a small white car with a child inside.
‘‘Rooty subsequently testified that she drove the [peti-
tioner] to Julia’s residence to visit his friend Terrell
between 12:30 and 1 p.m. on the day of the shooting.
Before she could testify further, however, the state
objected, outside the presence of the jury, to further
questioning of Rooty because it appeared that she was
about to give alibi testimony. [The petitioner’s trial
counsel] responded that Rooty was going to testify that,
after she dropped the [petitioner] off at Julia’s resi-
dence, she left the area and returned to pick him up
around 2 p.m.2 When the court noted the conflict
between the proffered testimony and Julia’s testimony
that the [petitioner] had left her residence shortly after
1 p.m., the [petitioner’s trial counsel] responded that
Rooty was not an alibi witness because she would not
be testifying as to what the [petitioner] did between
the time she dropped him off and the time she picked
him up.
***
‘‘After Rooty returned to the stand, [the petitioner’s
trial counsel] did not inquire further regarding her activ-
ities after she dropped the [petitioner] off at Julia’s res-
idence.
‘‘In the proceedings that followed, the state elicited
rebuttal testimony from Detective Andrew Weaver of
the Hartford police department that Rooty had stated
in an interview that was conducted shortly after the
crime was committed that the [petitioner] had asked
her if he could use her Neon on the morning of March
26, 2001, that she had assented to his request and that
she was unaware of the location of the vehicle until
Weaver had contacted her after the shooting. . . . In
accordance with [a request from the petitioner’s trial
counsel], the court thereafter gave an alibi instruction
that the [petitioner] claimed he was elsewhere at the
time of the alleged offenses.
‘‘At the conclusion of the trial, the jury found the
[petitioner] guilty of attempt to commit murder and
assault in the first degree. The court rendered judgment
in accordance with the jury verdict and sentenced the
[petitioner] to twenty years incarceration.’’ (Citation
omitted; footnotes altered.) Id., 721–30.
On direct appeal, this court reversed the judgment
of the trial court and remanded the case for a new trial
because it concluded that the trial court had violated
the petitioner’s right to present a defense. State v. Tut-
son, 84 Conn. App. 610, 627–28, 854 A.2d 794 (2004).
Our Supreme Court reversed the judgment of this court
with direction to consider additional claims that this
court did not resolve. State v. Tutson, supra, 278 Conn.
751. Following that remand, this court affirmed the
judgment of conviction. State v. Tutson, 99 Conn. App.
655, 656, 915 A.2d 344 (2007).
Thereafter, the petitioner filed his first petition for a
writ of habeas corpus and was represented by Attorney
Rebecca I. Bodner. Count one of his amended petition
dated February 23, 2010, alleged ineffective assistance
of counsel. The petitioner contended that his trial coun-
sel failed, inter alia, ‘‘to pursue an adequate alibi defense
. . . to file a formal notice of alibi . . . [and] to recog-
nize the testimony of Rooty . . . as alibi testimony
. . . .’’
On May 20, 2010, Rooty testified before the first
habeas court, Fuger, J. On direct examination, Rooty
testified that at approximately 12 p.m. on the day of
the shooting, her sister called, requesting her to pick
up Rooty’s nephew in New Haven. According to Rooty,
she received this call when she and the petitioner were
visiting friends in Hartford. Because Rooty felt ill, the
petitioner drove the vehicle to New Haven. Rooty also
testified that the petitioner’s friend, ‘‘Rel,’’ accompanied
them. After picking up her nephew in New Haven, Rooty
testified that they all returned to Meriden. Rooty also
testified that, prior to testifying at the petitioner’s crimi-
nal trial, she spoke with his trial counsel:
‘‘[The Petitioner’s Habeas Counsel]: So, did you meet
with [the petitioner’s trial counsel] prior to testifying?
‘‘[Rooty]: Briefly because I was late. . . .
‘‘[The Petitioner’s Habeas Counsel]: For how long did
this meeting last?
‘‘[Rooty]: I’d say about ten minutes.
‘‘[The Petitioner’s Habeas Counsel]: Okay. What did
you talk about?
‘‘[Rooty]: She basically briefed me on the trial, let me
know that he would be present, and she gave me what
his charges were, and that’s really about it. She asked
me if I [could] recollect anything about that day, and I
told her that I really just didn’t know besides telling
her that we spent a lot of time together, so, as far as
the exact date of everything that happened, that so
much had happened in my life, I couldn’t really recall
that.’’
Furthermore, Bodner sought to clarify whether Rooty
had ‘‘ever [told the petitioner’s trial counsel] that [the
petitioner] was not driving with [her] on that day.’’
Rooty responded, ‘‘I don’t remember telling [the peti-
tioner’s trial counsel] that,’’ but agreed with Bodner
that she had told the petitioner’s trial counsel ‘‘basically
what [she] testified to’’ at the habeas trial.
On cross-examination, counsel for the respondent,
the Commissioner of Correction, pressed Rooty on her
recollection of the timeline of March 26, 2001. After
testifying that she had picked up her nephew at ‘‘approx-
imately one something,’’ Rooty was asked whether she
and the petitioner left Hartford en route to New Haven
at approximately 12:30 p.m. Rooty responded, ‘‘Approx-
imately.’’ The following colloquy ensued:
‘‘[The Respondent’s Counsel]: Okay. And what time
did your sister call you?
‘‘[Rooty]: No, not to leave them at 12:30 p.m. I received
a phone call around that time, and yeah, that’s when
we left, around one to get down there.
‘‘[The Respondent’s Counsel]: Okay. You left around
one to get to New Haven, correct?
‘‘[Rooty]: I’d say. I mean not to—I don’t want to per-
jure myself, but when it comes to when I received the
call, as soon as I received the call, I left. So, when my
sister called me, as I testified before, it was about two
hours before my nephew was even supposed to get
out of school, and he’s supposed to get out of school
between, around 2:30 p.m.
‘‘[The Respondent’s Counsel]: So, you would have
gotten a call around 12:30 p.m., correct?
‘‘[Rooty]: Yes, ma’am.
‘‘[The Respondent’s Counsel]: And you immediately
left with [the petitioner] and drove to New Haven,
correct?
‘‘[Rooty]: I’d say give or take ten to fifteen minutes
because we were waiting on his friend to come down-
stairs. He was handling some business with his mother.
His mother had called him upstairs as he was leaving.
We went upstairs, and we waited for him, and then we
took off.
‘‘[The Respondent’s Counsel]: Okay. Now, after [the
petitioner] changed his clothes in Windsor, you went
immediately to his friend’s house?
‘‘[Rooty]: I believe so.
‘‘[The Respondent]: Okay. Well, didn’t you testify in
2002 that you then went to the doctor’s office for forty-
five minutes?3
‘‘[Rooty]: Well, as the—as I testified, the dates that
were being thrown at me, and things that had happened
had gotten my days misconstrued. So, I told that to
[the petitioner’s habeas counsel] and everyone else that
questioned me and asked me about these events.’’
(Footnote added.)
In an oral ruling, later memorialized pursuant to Prac-
tice Book § 64-1 (a), the first habeas court rejected
the petitioner’s claim of ineffective assistance of trial
counsel without explicitly finding deficient perfor-
mance by the petitioner’s trial counsel. Specifically, the
habeas court found that although it ‘‘appear[ed] that
[the petitioner’s trial counsel] may have been guilty of
. . . deficient performance in not filing an appropriate
notice of alibi defense, it’s crystal clear that such failure
did not operate to the prejudice of the petitioner.’’
After the first habeas court denied the petition for
certification to appeal, the petitioner appealed to this
court, claiming that (1) the habeas court abused its
discretion when it denied the petition for certification
to appeal and (2) the habeas court improperly, inter
alia, ‘‘concluded that he was not prejudiced by his trial
counsel’s mishandling of his alibi defense . . . .’’ Tut-
son v. Commissioner of Correction, 144 Conn. App.
203, 204, 72 A.3d 1162, cert. denied, 310 Conn. 928, 78
A.3d 145 (2013). Bodner continued to represent the
petitioner but was unable to attend oral argument
before this court. Attorney Temmy Ann Pieszak repre-
sented the petitioner for purposes of oral argument. In
dismissing the petitioner’s appeal, this court did not
reach the merits of his claim on the ground that the
petitioner, in his petition for certification to appeal,
had not raised a claim related to the habeas court’s
determination that his trial counsel’s failure to present
Rooty’s alibi testimony was not prejudicial. Id., 221.
Thereafter, the petitioner initiated the second habeas
action that is the subject of this appeal. His second
amended petition for a writ of habeas corpus, filed
October 20, 2014, contained two counts alleging that
(1) the performance of his habeas trial counsel, Bodner,
was deficient,4 and (2) the performance of his habeas
appellate counsel, Bodner and Pieszak, was deficient.5
As to count one, the petitioner argued that but for Bodn-
er’s deficient performance, the result in the prior habeas
corpus proceeding and ‘‘criminal trial and/or appeal
would have been different and more favorable . . . .’’
As to the second count, the petitioner claimed that both
Bodner and Pieszak had rendered deficient perfor-
mance as his habeas appellate counsel. The petitioner
also argued that prejudice should be presumed as to
both counts pursuant to Iovieno v. Commissioner of
Correction, 242 Conn. 689, 699 A.2d 1003 (1997).
At the second habeas trial, which was held on Novem-
ber 5, 2014, Bodner, Attorney Sheila S. Iverson, the
petitioner’s trial counsel, and Pieszak testified. On April
2, 2015, the habeas court issued its memorandum of
decision. As set forth in the court’s memorandum of
decision, ‘‘Bodner testified that there was no strategic
reason for her failing to include the ‘prejudice issue’ in
the petition for certification to appeal.’’ Pieszak ‘‘testi-
fied that she did not recall the content of the petition
for certification to appeal, nor did she refer to it in
preparation for oral argument before the Appellate
Court.’’ She also testified that, as a general matter,
‘‘there can be no strategic reason for habeas appellate
counsel not raising a challenge to a habeas court’s preju-
dice finding.’’ Ultimately, the second habeas court deter-
mined that ‘‘the petitioner ha[d] failed to demonstrate
prejudice in that, upon a review of the entire record,
there [was] not a reasonable probability that the habeas
appeal [from the first habeas court’s ruling] would have
been different. . . . It is clear to this court, upon a
review of the entire record, that the [first] habeas trial
court’s assessment of [Rooty’s] credibility and the sub-
stance of her testimony . . . at the [first] habeas trial
that she was not certain that the events she related to
[the first habeas court] were actually related to the day
of the shooting, that the prior habeas court’s findings
would not have been reversed on appeal.’’ Accordingly,
the second habeas court denied the petition for a writ
of habeas corpus, and thereafter granted the petition
for certification to appeal. Additional facts will be set
forth as necessary.
On appeal, the petitioner presents two claims. First,
the petitioner argues that the second habeas court erred
in concluding that he did not demonstrate that he was
prejudiced by Bodner’s failure to challenge the first
habeas court’s prejudice determination because there
was no ‘‘reasonable probability that had [the first
habeas court’s] prejudice ruling been raised in the peti-
tion for certification to appeal,’’ thereby allowing this
court to review his claim, ‘‘the result of the prior habeas
appeal would have been different.’’ Second, the peti-
tioner contends that the second habeas court erred
by not presuming that he was prejudiced by Bodner’s
failure ‘‘to raise the issue of [the first habeas court’s]
improper prejudice determination in the petition for
certification to appeal from the prior habeas decision.’’
We disagree with both claims.
We begin by setting forth the appropriate standard
of review for a challenge to a denial of a petition for a
writ of habeas corpus. The underlying historical facts
found by the habeas court may not be disturbed unless
the findings were clearly erroneous. Correia v. Row-
land, 263 Conn. 453, 462, 820 A.2d 1009 (2003). The
conclusions reached by the habeas court in its decision
to deny a habeas petition are matters of law, subject
to plenary review. Johnson v. Commissioner of Correc-
tion, 285 Conn. 556, 566, 941 A.2d 248 (2008).
We are guided by the following relevant legal princi-
ples. To succeed on an ineffective assistance of appel-
late counsel claim, the petitioner must satisfy both the
performance prong and the prejudice prong of Strick-
land v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). Small v. Commissioner of Correc-
tion, 286 Conn. 707, 712–13, 728, 946 A.2d 1203, cert.
denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.
Ct. 481, 172 L. Ed. 2d 336 (2008). ‘‘In Strickland . . .
the United States Supreme Court enunciated the two
requirements that must be met before a petitioner is
entitled to reversal of a conviction due to ineffective
assistance of counsel. First, the [petitioner] must show
that counsel’s performance was deficient. . . . Sec-
ond, the [petitioner] must show that the deficient per-
formance prejudiced the defense. . . . Unless a
[petitioner] makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the
adversarial process that renders the result unreliable.’’
(Internal quotation marks omitted.) Bowens v. Com-
missioner of Correction, 104 Conn. App. 738, 740–41,
936 A.2d 653 (2007), cert. denied, 286 Conn. 905, 944
A.2d 978 (2008). ‘‘A court can find against a petitioner,
with respect to a claim of ineffective assistance of coun-
sel, on either the performance prong or the prejudice
prong, whichever is easier.’’ Michael T. v. Commis-
sioner of Correction, 307 Conn. 84, 91, 52 A.3d 655
(2012).
‘‘The first part of the Strickland analysis requires the
petitioner to establish that appellate counsel’s represen-
tation fell below an objective standard of reasonable-
ness considering all of the circumstances.’’ (Internal
quotation marks omitted.) Vivo v. Commissioner of
Correction, 90 Conn. App. 167, 171, 876 A.2d 1216, cert.
denied, 275 Conn. 925, 883 A.2d 1253 (2005). To satisfy
the prejudice prong, the petitioner must demonstrate
that ‘‘there is a reasonable probability that, but for
appellate counsel’s failure to raise the issue on appeal,
the petitioner would have prevailed in his direct appeal,
i.e., reversal of his conviction or granting of a new trial.’’
Small v. Commissioner of Correction, supra, 286 Conn.
722. Thus, ‘‘to determine whether a habeas petitioner
had a reasonable probability of prevailing on appeal, a
reviewing court necessarily analyzes the merits of the
underlying claimed error in accordance with the appro-
priate appellate standard for measuring harm.’’ Id.
Therefore, had the first habeas court’s prejudice rul-
ing been challenged in the petition for certification to
appeal and had the first habeas court denied the peti-
tion, this court, on appeal, would have applied a well
settled standard of review. ‘‘Faced with the habeas
court’s denial of certification to appeal, a petitioner’s
first burden is to demonstrate that the habeas court’s
ruling constituted an abuse of discretion. Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To
prove an abuse of discretion, the petitioner must dem-
onstrate that the resolution of the underlying claim
involves issues that are debatable among jurists of rea-
son; that a court could resolve the issues in a different
manner; or that the questions are adequate to deserve
encouragement to proceed further. Id., 616. If the peti-
tioner succeeds in surmounting that hurdle, the peti-
tioner must then demonstrate that the judgment of the
habeas court should be reversed on its merits. Id., 612.’’
Joseph v. Commissioner of Correction, 153 Conn. App.
570, 574–75, 102 A.3d 714 (2014), cert. denied, 315 Conn.
911, 106 A.3d 304 (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. 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 . . . [and verify] the propriety of
the habeas court’s denial of the petition for certifica-
tion.’’ (Internal quotation marks omitted.) Morquecho
v. Commissioner of Correction, 164 Conn. App. 676,
682, 138 A.3d 424 (2016).
We bear in mind that ‘‘[a] reasonable probability is
a probability sufficient to undermine confidence in the
outcome. . . . [T]he question is whether there is a rea-
sonable probability that, absent the [alleged] errors,
the [fact finder] would have had a reasonable doubt
respecting guilt.’’ (Internal quotation marks omitted.)
Crespo v. Commissioner of Correction, 149 Conn. App.
9, 18–19, 87 A.3d 608, cert. denied, 311 Conn. 953, 97
A.3d 984 (2014); see also Cullen v. Pinholster, 563 U.S.
170, 189, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011) (‘‘A
reasonable probability is a probability sufficient to
undermine confidence in the outcome. . . . That
requires a substantial, not just conceivable, likelihood
of a different result.’’ [Citation omitted; internal quota-
tion marks omitted.]).
‘‘In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before . . . the jury. . . . Some errors will
have had a pervasive effect on the inferences to be
drawn from the evidence, altering the entire evidentiary
picture, and some will have had an isolated, trivial
effect. Moreover, a verdict or conclusion only weakly
supported by the record is more likely to have been
affected by errors than one with overwhelming record
support. . . . We note, however, that the [Strickland]
principles . . . do not establish mechanical rules. . . .
[T]he ultimate focus of inquiry must be on the funda-
mental fairness of the proceeding whose result is being
challenged. In every case [we] should be concerned
with whether, despite the strong presumption of relia-
bility, the result of the particular proceeding is unrelia-
ble because of a breakdown in the adversarial process
that our system counts on to produce just results.’’
(Citation omitted; emphasis added; internal quotation
marks omitted.) Crespo v. Commissioner of Correc-
tion, supra, 149 Conn. App. 19. ‘‘We emphasize that the
task before us . . . is to determine, under Strickland,
whether there is a reasonable probability that the peti-
tioner would have prevailed on appeal.’’ (Emphasis in
original.) Small v. Commissioner of Correction, supra,
286 Conn. 731.
We first clarify the issue before us. The first habeas
court denied the petition for a writ of habeas corpus
because it concluded that the petitioner had failed to
establish his ineffective assistance of counsel claim.
Specifically, the first habeas court, having heard and
evaluated Rooty’s testimony, found that the petitioner
was not prejudiced by his trial counsel’s failure to file
an appropriate notice of alibi defense to present Rooty
as an alibi witness. Thereafter, the habeas court denied
the petition for certification to appeal, which had not
explicitly challenged the habeas court’s ruling on preju-
dice. On appeal, however, the petitioner briefed and
argued that the first habeas court erred in concluding
that the petitioner was not prejudiced. This court
declined to review this claim because it had not been
raised in the petition for certification to appeal. See
Tutson v. Commissioner of Correction, supra, 144
Conn. App. 221. Thus, in order for the petitioner to
succeed in this case, we must conclude that, had Bodner
challenged the first habeas court’s prejudice finding in
the petition for certification to appeal and had the first
habeas court subsequently denied his petition, the peti-
tioner would have prevailed in his prior appeal to this
court. In other words, the petitioner bears a heavy bur-
den of persuading us that the denial of the petition for
certification to appeal on this issue would have been
an abuse of discretion and that the first habeas decision
would have been reversed on its merits. Our analysis
does not yield such a result.
Our review of the record leads us to conclude that
the petitioner has failed to establish that there is a
reasonable probability that, but for Bodner’s failure to
challenge the first habeas court’s prejudice ruling on
the petition for certification to appeal, the petitioner
would have prevailed in his appeal from the prior
habeas court’s judgment. We first examine Rooty’s testi-
mony. At the criminal trial, she clearly testified to having
dropped off the petitioner at Julia’s residence.6 At the
habeas trial, during direct examination, Rooty pre-
sented a different version of events, namely, that she
was with the petitioner at the time of the commission
of the crime because they, along with ‘‘Rel,’’ were driv-
ing from Hartford to New Haven at about the time
of the shooting. In recalling a conversation with the
petitioner’s trial counsel, who was inquiring whether
Rooty could ‘‘recollect anything about that day,’’ Rooty
testified that she replied to this inquiry that she ‘‘really
just didn’t know besides [stating to the petitioner’s trial
counsel] that [she and the petitioner] spent a lot of time
together, so, as far as the exact date of everything that
happened, that so much had happened in [her] life,
[she] couldn’t really recall that.’’ On cross-examination,
when pressed on her recollection of the timeline of
events, she acknowledged that ‘‘the dates that were
being thrown at me, and things that had happened had
gotten my days misconstrued.’’ It is axiomatic that we
do not assess the credibility of witnesses; see Veal v.
Commissioner of Correction, 54 Conn. App. 384, 386,
735 A.2d 833, cert. denied, 251 Conn. 907, 738 A.2d 1094
(1999); thus, we refrain from doing so here.7 We do note
that both versions of Rooty’s testimony are inconsistent
with Weaver’s rebuttal testimony. Weaver testified that
Rooty was interviewed shortly after the crime, and that
she had stated that the petitioner borrowed her automo-
bile on the morning of the shooting and that ‘‘she was
unaware of the location of the vehicle until Weaver
had contacted her after the shooting.’’ State v. Tutson,
supra, 278 Conn. 729. As opined by our Supreme Court,
‘‘[t]he serial submission of various alibis before and
during the trial strongly suggests fabrication. The [peti-
tioner], who was arrested within hours of the alleged
crime, in all likelihood knew where he was in the pre-
ceding hours and knew who, if anyone, would be able
to verify his alibi. Thus, the submission to the court of
conflicting alibis indicates that Rooty’s testimony would
not have been truthful.’’ Id., 744 n.12.
In light of all the evidence before the jury, even if
Rooty had testified, it is not reasonably probable that
her testimony would have created a reasonable doubt
as to the petitioner’s guilt, which leads us to conclude
that the petitioner would not have prevailed on his
appeal from the first habeas court’s judgment. First, the
jury heard testimony from Molina and Pagan identifying
the petitioner as the driver of the Neon. See State v.
Tutson, supra, 84 Conn. App. 615–16. Second, the jury
heard the testimony of Fung Kwok, a criminalist at the
state forensic laboratory concerning the results of the
gunshot residue tests. Id., 617. Kwok testified that the
gunshot residue test performed on Washington was
‘‘100 percent conclusive that the residue found on Wash-
ington was from a gunshot.’’ Id. Kwok’s testimony pro-
vided evidence by which the jury reasonably could infer
that the petitioner was the driver of the Neon. Third
and last, the state recalled Weaver as a rebuttal witness
to impeach Rooty’s credibility. See id., 619. The jury
heard Weaver’s testimony that entirely contradicted
Rooty’s testimony that she had dropped off the peti-
tioner at Julia’s residence on the day of the shooting.
See id. Accordingly, we conclude that the second
habeas court properly determined that the petitioner
failed to establish that he was prejudiced by the alleged
deficient performance by his prior habeas appellate
counsel. ‘‘An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judg-
ment of a criminal proceeding if the error had no effect
on the judgment.’’ (Internal quotation marks omitted.)
Bryant v. Commissioner of Correction, 290 Conn. 502,
522, 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).
We briefly address the petitioner’s second claim. He
contends that the second habeas court erred by not
presuming prejudice as a result of Bodner’s failure to
challenge the first habeas court’s prejudice ruling in his
petition for certification to appeal. He relies on Iovieno
v. Commissioner of Correction, supra, 242 Conn. 706,
for this proposition and seeks, sub silentio, a remand
of the case to the first habeas court to consider the
merits of his petition for certification to appeal with
the inclusion of the issue of prejudice. See id., 708. We
conclude that a remand is not necessary because we
have addressed the claim of error as to prejudice in
this appeal. We determined that the petitioner did not
establish that there was a reasonable probability that,
but for Bodner’s failure to include the prejudice finding
in the first habeas petition for certification, the peti-
tioner would have prevailed in his appeal from the first
habeas judgment. Thus, even with a presumption of
prejudice, the petitioner could not prevail in either
habeas case.
The judgment is affirmed.
In this opinion the other judges concurred.
1
A detailed recitation of the facts of the petitioner’s underlying offenses,
as reasonably found by the jury, can be found in State v. Tutson, 84 Conn.
App. 610, 612–15, 854 A.2d 794 (2004), rev’d, 278 Conn. 715, 899 A.2d 598
(2006).
2
Specifically, the petitioner’s trial counsel had learned that, according to
Rooty, the petitioner was dropped off at approximately 1 p.m. at Wethersfield
Avenue, and Rooty drove the Neon, with her child inside, to a friend’s
residence in the north end of Hartford, where she briefly stayed to watch
soap operas. Rooty told the petitioner’s trial counsel that she returned for
the petitioner at about 2 p.m. This more detailed version of events was not
provided to the court until May 20, 2002, at the petitioner’s sentencing
hearing in support of a motion for a new trial.
3
At the petitioner’s criminal trial, Rooty testified that on March 26, 2001,
at approximately 10:30 a.m., the petitioner accompanied her to a doctor
appointment in Meriden. The appointment lasted approximately forty-five
minutes. After dropping off a prescription, Rooty then drove the petitioner
to his residence in Windsor. Rooty testified that the petitioner spent approxi-
mately twenty minutes in his residence because ‘‘he had taken a shower
. . . .’’ After leaving Windsor, the petitioner, according to Rooty, asked her
to take him to see his friend, ‘‘Rel . . . in the south end of Hartford.’’
4
Regarding his claim against his habeas trial counsel, Bodner, the peti-
tioner alleged that she (1) ‘‘conceded the petitioner’s claim of ineffective
assistance of trial counsel through her inaccurate representation to the court
concerning the performance of Attorney Sheila [S.] Iverson [the petitioner’s
other trial counsel] at the petitioner’s trial, and through her failure to present
any evidence regarding the scope of . . . Iverson’s involvement in the trial’’;
(2) ‘‘failed to adequately present the petitioner’s claim of ineffective assis-
tance of trial counsel pertaining to the mishandling of the petitioner’s alibi
defense at his criminal trial’’; and (3) ‘‘[f]ollowing the judgment of dismissal
rendered by the habeas trial court, she failed to raise and/or clarify, in the
petition for certification to appeal or through appropriate postjudgment
motions, the improper conclusion of [the] habeas trial court . . . that the
petitioner was not prejudiced by his trial counsel’s mishandling of his
alibi defense.’’
5
In claiming that both his habeas appellate counsel’s performances were
deficient, the petitioner alleged that Bodner and Pieszak (1) ‘‘failed to prop-
erly or adequately raise, in the petition for certification to appeal, the
improper conclusion of [the] habeas trial court . . . that trial counsel’s
handling of the petitioner’s alibi did not constitute ineffective assistance of
counsel’’; (2) ‘‘failed to properly or adequately address the determination
by habeas trial court . . . that trial counsel’s errors regarding the presenta-
tion of the petitioner’s alibi did not prejudice the petitioner’’; (3) ‘‘failed to
file any motions for articulation, or further articulation, in order to clarify
the court’s ruling and ensure appellate review of the habeas trial court’s
ruling on the alibi issue’’; and (4) ‘‘failed to obtain appellate review of the
. . . habeas trial court’s dismissal of the petitioner’s claim of ineffective
assistance of trial counsel for trial counsel’s mishandling of the petitioner’s
alibi defense.’’
6
At trial, Rooty was precluded from testifying further. The petitioner’s trial
counsel, however, represented to the court that Rooty’s proposed testimony
would have been that she ‘‘drove her Neon to the north end of Hartford
after she dropped the [petitioner] off at Julia’s residence between 12:30 p.m.
and 1 p.m., and that she picked him up at 2 p.m.’’ State v. Tutson, supra,
278 Conn. 736.
7
The respondent, in his appellate brief, argues that the petitioner could
not prevail on his first claim because, inter alia, ‘‘the record reveals that
Rooty’s credibility was highly questionable.’’ In his reply brief, the petitioner
counters that ‘‘the [first] habeas court . . . did credit the testimony of Rooty
. . . .’’ He argues for the first time that ‘‘the lack of credibility of Rooty’s
testimony was determined largely because of the multiple versions of Rooty’s
proffered testimony, not Rooty’s own testimony.’’ (Emphasis in original;
internal quotation marks omitted.) The petitioner urges us to remand this
case for a new trial if we conclude that no trier of fact has made a credibility
determination of Rooty’s testimony. We decline such invitation. ‘‘The appel-
late courts of this state have often held that an appellant may not raise an
issue for the first time in a reply brief. . . . An appellant’s claim must be
framed in the original brief so that it can be responded to by the appellee
in its brief, and so that we can have the full benefit of that written argument.’’
(Citations omitted; internal quotation marks omitted.) Niblack v. Commis-
sioner of Correction, 80 Conn. App. 292, 298, 834 A.2d 779 (2003), cert.
denied, 267 Conn. 916, 841 A.2d 219 (2004).