Westberry v. Commissioner of Correction ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
TROY WESTBERRY v. COMMISSIONER
OF CORRECTION
(AC 37709)
DiPentima, C. J., and Alvord and Gruendel, Js.
Argued October 13—officially released December 20, 2016
(Appeal from Superior Court, judicial district of
Hartford, Schuman, J.)
Naomi Fetterman, with whom, on the brief, was
Aaron J. Romano, for the appellant (petitioner).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Jo Anne Sulik, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Troy Westberry, appeals
from the judgment of the habeas court denying his
second petition for a writ of habeas corpus.1 On appeal,
the petitioner claims that the habeas court erred by
rejecting his claim that perjured testimony was used at
his criminal trial, in violation of the fourteenth amend-
ment to the federal constitution, and that he is actually
innocent. We disagree and, accordingly, affirm the judg-
ment of the habeas court.
At trial, the jury reasonably could have found the
following facts. The events giving rise to the petitioner’s
conviction were the culmination of a period of animos-
ity between a group of individuals that included the
petitioner and Jesse Pope and another group of individ-
uals that included Gerald Jenkins, Dwayne Stewart, and
the victim, Anthony Bennefield. That hostility mani-
fested itself in several violent altercations between
members of the two groups.
On May 5, 1999, Jenkins unsuccessfully attempted to
drive Pope off the road with his Chevrolet Lumina, and,
when he was unsuccessful, Jenkins fired shots in Pope’s
direction as he drove away. Around 8 p.m. that same
day, Stewart saw the petitioner driving a gold Chevrolet
Monte Carlo along the same street as the victim was
walking. He then heard the sound of two gunshots and
observed the victim ‘‘hit the ground.’’ After the peti-
tioner drove away, the victim approached Stewart and
told him that the petitioner had fired the shots in his
direction but that he was unsure whether the petitioner
was trying to shoot him. Later that night, the victim,
Stewart, and others celebrated the victim’s birthday at
a local night club. At some point that evening, the victim
went outside and fell asleep in the Lumina, which was
parked in front of the club. At around 1:30 a.m., Stewart,
Joseph Smith, and two other men, left in the Lumina
with the victim, who was still asleep. Shortly after driv-
ing away from the club, Stewart pulled over to the side
of Lenox Street, and several of the vehicle’s occupants
smoked marijuana.
Thereafter, the petitioner pulled very closely along
the driver’s side of the Lumina in the Monte Carlo and
fired four shots in its direction. After the petitioner had
driven away, Stewart and the other men in the Lumina
realized that the victim had been shot. Police and emer-
gency medical personnel arrived on the scene shortly
after one of the men summoned help, but the victim
ultimately died from his injuries.
On May 6, 1999, the day after the shooting, the police
took a voluntary statement from Smith, who recalled
another passenger yelling, ‘‘that’s Troy,’’ when the
Monte Carlo pulled up. On May 8, 1999, the police took a
voluntary statement from Stewart, who recalled hearing
someone yell, ‘‘Yo, that’s Troy,’’ and observed someone
that appeared to be the petitioner just before shots
were fired. On May 13, 1999, the police took a voluntary
statement from Jesse Campbell. Campbell explained
that just prior to the shooting the petitioner pulled into
a Kentucky Fried Chicken restaurant in a Monte Carlo
and parked next to him. Campbell stated that he recog-
nized the petitioner because they had lived near each
other for about two years, and they waved to each other
while in the parking lot. A short while later, Campbell
watched as the Monte Carlo turned off its headlights,
proceeded down Lenox Street, and drove alongside the
Lumina. He then heard shots being fired and observed
flashes coming from the Monte Carlo. The Monte Carlo
sped away, and Campbell observed the petitioner as
its only occupant. Campbell identified a picture of the
Monte Carlo as the vehicle he saw the petitioner driving
on night of the shooting, and he identified a photograph
of the petitioner from a photographic array.
The petitioner was tried and convicted of murder in
violation of General Statutes § 53a-54a in Hartford in
2000. At trial, the state’s evidence included the following
relevant testimony from Campbell, Smith, and Stewart.
Campbell testified about his observation of the Monte
Carlo and the petitioner on the night of the shooting.
He also identified the petitioner in court, and he identi-
fied the photograph of petitioner he selected from a
photographic array he was shown when he gave his
statement to the police. Smith testified that he was a
passenger in the Lumina when the shooting occurred,
but he stated that he did not see who fired the shots
because he ‘‘ducked’’ down until after the shooter drove
away. He also explained that he did not remember much
about the night of the shooting because he had con-
sumed about six shots of alcohol and six marijuana
joints and had suffered permanent memory loss from
a brain injury in August 1999. Finally, Stewart testified
that he was driving the Lumina on the night of the
shooting and that he remembered a Monte Carlo pulling
up very closely alongside the Lumina. Stewart testified
that he looked into the Monte Carlo to see who was
driving and, seconds before the shots were fired,
shouted, ‘‘That’s Troy!’’ Stewart also stated that he rec-
ognized the Monte Carlo as being the same vehicle that
he had seen the petitioner driving earlier that evening.
After his conviction, the petitioner filed a direct appeal,
and this court affirmed the petitioner’s conviction on
March 19, 2002. State v. Westberry, 68 Conn. App. 622,
638, 792 A.2d 154, cert. denied, 260 Conn. 923, 797 A.2d
519 (2002).
On December 30, 2003, Campbell and his mother had
a conversation over a monitored telephone line while he
was incarcerated on unrelated criminal charges. During
that conversation, Campbell opined that the prosecutor
recently discussed in open court the fact that he testi-
fied for the state in the petitioner’s criminal trial. In the
recorded conversation, Campbell repeatedly expressed
his concern that people in jail were going to find out
that he testified for the state. At one point during the
conversation, Campbell said: ‘‘Well of course that I lied;
I don’t know nothing about that shit, what?’’ The
recording of the conversation between Campbell and
his mother subsequently was disclosed to the peti-
tioner.
On January 14, 2003, the petitioner filed his first peti-
tion for a writ of habeas corpus, in which he claimed
actual innocence and a due process violation based on
Campbell’s purported perjury. Westberry v. Commis-
sioner of Correction, Superior Court, judicial district
of New Haven, Docket No. CV-03-0473101-S, (Septem-
ber 15, 2011), aff’d, 141 Conn. App. 901, 59 A.3d 1205(2013). On June 7, 2011, the first habeas court, Zoarski,
J., conducted an evidentiary hearing at which the peti-
tioner presented the testimony of James Ouludsen, the
petitioner’s investigator, and Assistant State’s Attorney
Vicki Melchiorre.2 Ouludsen testified that on June 17,
2007 he interviewed and took a statement from Camp-
bell. In that statement, Campbell denied knowing the
petitioner or seeing him at the time of the shooting
incident and admitted to lying at the petitioner’s crimi-
nal trial. Melchiorre testified that she was the attorney
that prosecuted the petitioner at his criminal trial. She
testified that Campbell was reluctant to testify at the
petitioner’s criminal trial because he was concerned
about his safety in prison and because ‘‘he didn’t want
to be labeled as a snitch.’’ On September 15, 2011, the
first habeas court denied the petitioner’s first habeas
petition because the petitioner failed to establish that
he was actually innocent of murder or that his convic-
tion was the result of a due process violation. Westberry
v. Commissioner of Correction, supra. In particular,
the first habeas court found that it could not ‘‘judge the
credibility of the alleged recantations of Jesse Campbell
in the absence of his testimony under oath and subject
to cross-examination.’’ Id. This court summarily
affirmed the judgment of the first habeas court. Westb-
erry v. Commissioner of Correction, 141 Conn. App.
901, 59 A.2d 1205 (2013).
On June 5, 2012, Smith participated in a proffer ses-
sion3 with federal authorities in which he stated that
he had lied at the petitioner’s criminal trial about not
remembering anything about the shooting incident. He
claimed that when the petitioner pulled alongside the
Lumina, he observed ‘‘Bub,’’ subsequently identified as
Lorenza Mack, in the front passenger seat of the Monte
Carlo . At the proffer session, Smith stated that he
attempted to fire a nine millimeter firearm at the Monte
Carlo, but the firearm malfunctioned and did not fire.4
Smith then claimed that he saw Mack produce a firearm
and shoot at the Lumina before he and the petitioner
drove away. After the proffer session, a federal agent
that participated in the proffer session prepared a writ-
ten report summarizing Smith’s statements (proffer
statement). A copy of the proffer statement was subse-
quently provided to Smith and the petitioner.
On November 19, 2014, the petitioner filed an
amended petition for a writ of habeas corpus (second
habeas petition), which is the subject of this appeal. In
this action, the petitioner alleged actual innocence and
a due process violation based on the purported perjury
of Campbell and Smith at his criminal trial.5 On January
5, 2015, the second habeas court, Schuman, J., con-
ducted hearing trial at which the petitioner presented
the testimony of the following witnesses.6
The first witness presented by the petitioner was
Smith, who testified by telephone from a federal correc-
tional facility. During his testimony, Smith stated that he
never reviewed the proffer statement, and he disagreed
with the federal agent’s summary of his statements on
multiple occasions, particularly concerning the order
of events during the shooting incident.7 Smith also pro-
vided equivocal testimony concerning the shooting
itself. Smith stated on multiple occasions that he
‘‘believed’’ that Mack was the shooter rather than peti-
tioner8 because that was the rumor on the street. In
particular, Smith explained that ‘‘being that I was
younger than most of them, I never really knew them
[i.e., the petitioner or Mack], but I was in the car that
night and that’s who everybody believes it was [i.e.,
Mack]. That was the rumor on the street.’’
The petitioner then presented the testimony of Jill
Therriault, a forensic firearms examiner, and Stewart
to corroborate Smith’s proffer statement to federal
authorities. Therriault testified that she inspected the
unfired nine millimeter cartridges that were recovered
from the scene of the shooting, but she could not iden-
tify or eliminate them as having been cycled through
the type of firearm Smith said he attempted to shoot
at the Monte Carlo. Stewart testified that a defense
investigator had shown him Smith’s proffer statement,
but, during the second habeas trial, he gave equivocal
testimony concerning its accuracy. On direct examina-
tion, Stewart was asked whether Smith’s proffer state-
ment said that ‘‘Mack was the shooter and that he fired
and Troy drove away,’’ and Stewart replied, ‘‘Yes.’’ Stew-
art was then asked, ‘‘isn’t that true?’’ and he replied,
‘‘Yes.’’ On cross-examination, however, Stewart
acknowledged that in his statement to the police on May
8, 1999, two days after the shooting, he never mentioned
Mack. He also acknowledged that he never mentioned
Mack at trial and that he testified that he yelled, ‘‘That’s
Troy,’’ when the Monte Carlo pulled up next to them.
On redirect examination, Stewart was asked again if
Smith’s proffer statement was ‘‘the true version of the
events,’’ and he replied, ‘‘Sort of, yes.’’ Later, when
asked about whether he remembered Smith attempting
to shoot at the Monte Carlo, Stewart replied, ‘‘I don’t
know about that,’’ and when he was asked if he wanted
to look at Smith’s statement again, he replied, ‘‘Some-
thing ain’t right.’’
The petitioner’s final two witnesses were Thomas
Davis and Jason Douglas, who were called to establish
that Mack shot the victim, not the petitioner. Davis
testified that Mack was ‘‘jumped’’ by the victim and two
other men three months before the shooting. Douglas,
a defense investigator, testified about his interview of
Guy Eugene, who is currently serving a sentence for
killing Mack. Douglas explained that Eugene told him
that he killed Mack in retaliation for the victim’s death,
and he then prepared a written statement of their dis-
cussion. Douglas stated that he gave Eugene an oppor-
tunity to look at his notes but that Eugene declined to
sign the statement he prepared.
In addition to the testimony of these witnesses, the
habeas court admitted several exhibits, including all of
the transcripts from the petitioner’s criminal trial, the
transcripts from the petitioner’s first habeas trial,
Campbell’s telephone conversation with his mother,
Campbell’s sworn statement,9 Smith’s proffer state-
ment,10 and the affidavit by Douglas in which he memori-
alized Eugene’s purported statements to him
(Eugene’s statement).11
On February 18, 2015, the second habeas court issued
a written memorandum of decision denying the petition-
er’s second habeas petition. In that memorandum, the
court discredited the testimony and statements of Smith
and Stewart as well as the statements made by Campbell
and Eugene.12 Concerning Smith, the court found that
his testimony at the hearing was not credible because
‘‘his testimony at the hearing on the shooting was hesi-
tant, saying he does not ‘believe’ the shooter was the
petitioner and that he ‘believes’ the shooter was Lorenza
Mack. He also admitted that some of his proffer, particu-
larly concerning the order of events during the shooting
incident, was wrong.’’ The court observed: ‘‘It is hard
to see how he could have remembered so little in 2000,
one year after the shooting, perhaps understandably
because he was under the influence of alcohol and
drugs, and yet recant and identify the shooter twelve
and fourteen years after the incident.’’
Concerning Stewart, the court noted that Stewart’s
testimony was ‘‘extremely hesitant’’ and that ‘‘[h]e pro-
vided only reluctant answers in response to leading
questions.’’ The court observed: ‘‘There was no mention
in [Stewart’s] virtually contemporaneous [sworn] state-
ment [to the police two days after the shooting] of
Lorenza Mack or Bub, thus casting grave doubt on the
veracity of Stewart’s testimony at the habeas trial over
fourteen years later.’’
Concerning Campbell, the court found that, after
reviewing Campbell’s phone call and sworn statement,
‘‘it cannot put any weight on his alleged recantations
in the absence of seeing Campbell in person and having
him face cross-examination.’’
Finally, the court ‘‘attach[ed] no weight to Eugene’s
statement’’ because ‘‘[t]he affidavit consisted of the
investigator’s rendition of Eugene’s oral statements,’’
‘‘Eugene himself declined to sign a written statement,’’
and the affidavit stated that Eugene would be willing
to testify in court, which was untrue. The court also
observed: ‘‘Eugene’s motive or state of mind as to why
he would kill Mack is essentially irrelevant and does
not in any way constitute reliable evidence as to who
killed [the victim].’’13
In its memorandum of decision, the second habeas
court also rejected the petitioner’s actual innocence
and due process claims. The court articulated several
bases for its conclusion. In relevant part, the court
rejected the petitioner’s actual innocence claim on the
merits because he ‘‘failed to prove by clear and convinc-
ing evidence that he is actually innocent of murder
and that no reasonable jury would find him guilty.’’ In
particular, the court observed that ‘‘[t]he petitioner’s
case instead rested almost entirely on the recantations
of the key witnesses,’’ and ‘‘[o]ur law views such recan-
tations with skepticism.’’ Furthermore, the court
explained that ‘‘there are good reasons to remain highly
skeptical of the recantations in this case. In addition
to those specific reasons, there is the more general
concern that the petitioner did not offer any valid expla-
nation, such as a mistaken identification, why the
recanting witnesses would all proceed to provide false
testimony at the criminal trial and, with the exception
of Smith, implicate the petitioner.’’
The court also rejected the petitioner’s due process
claim on the merits. The court first explained that the
petitioner had withdrawn the claim in his petition that
the state knew or should have known that false testi-
mony was presented at the criminal trial. Nonetheless,
the court explained that the petitioner, relying on
Ortega v. Duncan, 333 F.3d 102 (2d Cir. 2003), claimed
that ‘‘the court should grant habeas relief because the
jury relied on perjured, material testimony, even if the
state did not know . . . of the perjury.’’ Although the
court observed that ‘‘Connecticut . . . has not adopted
the Ortega rule,’’ it nonetheless held that, regardless, the
defendant could not prevail under the Ortega standard
because he failed to establish that ‘‘the witnesses pre-
sented false testimony at trial and that their recanta-
tions are true.’’
I
We first address the petitioner’s claim that the habeas
court erroneously concluded that his due process rights
were not violated by the use of perjured testimony at
his criminal trial. The petitioner has withdrawn any
claim that the state knew or should have known that
it was presenting purportedly perjured testimony, and,
instead, he argues that ‘‘the use of perjured testimony
[in his criminal trial], even absent the [s]tate’s knowl-
edge, is a violation of due process. . . .’’ It remains
an open question in Connecticut whether the state’s
unknowing use of perjured testimony at trial can violate
due process. Gould v. Commissioner of Correction, 301
Conn. 544, 570–71 and n.18, 22 A.3d 1196 (2011). The
majority of jurisdictions require a habeas petitioner to
prove that the state knew or should have known that
it was presenting false testimony to raise a due process
claim. Id., 570 n.18. However, a minority of jurisdictions,
including the United States Court of Appeals for the
Second Circuit, have held that the use of perjured testi-
mony at trial by itself, even without the state’s knowl-
edge of its falsity, can give rise to a due process claim.
Id; see, e.g., Ortega v. Duncan, supra, 333 F.3d 108. We
conclude that it is unnecessary for us to resolve whether
Connecticut recognizes a due process claim based on
the state’s unknowing use of perjured testimony
because we agree with the second habeas court that
the petitioner failed to establish that perjured testimony
was used at his criminal trial.
To support his claim that his conviction was based
on the use of perjured testimony, the petitioner relies
on Campbell’s and Smith’s recantations. However, the
habeas court explicitly discredited these recantations.
It is well established that ‘‘[t]his court does not retry
the case or evaluate the credibility of witnesses. Rather,
we must defer to the [trier of fact’s] assessment of
the credibility of the witnesses based on its firsthand
observation of their conduct, demeanor and attitude.’’
(Internal quotation marks omitted.) Jackson v. Com-
missioner of Correction, 149 Conn. App. 681, 711, 89
A.3d 426 (2014), appeal dismissed, 321 Conn. 765, 138
A.3d 278 (2016) (certification improvidently granted).
We cannot disturb the underlying credibility determina-
tions or facts found by the habeas court unless they
are clearly erroneous. State v. Buhl, 321 Conn. 688,
708, 138 A.3d 868 (2016). The petitioner has failed to
establish that the second habeas court’s credibility
determinations were clearly erroneous.
Concerning Campbell, the court reasonably con-
cluded that ‘‘it [could not] put any weight on [Camp-
bell’s] alleged recantations in the absence of seeing
Campbell in person and having him face cross-examina-
tion.’’ The petitioner maintains that the court could
have, and should have, credited Campbell’s recantation
because Campbell invoked his fifth amendment right
against self-incrimination and his statements were
admitted as statements against penal interest, which
requires ‘‘a judicial determination of trustworthiness’’
and ‘‘must be accorded equivalent consideration as tes-
timony . . . .’’14 We disagree. The court acted well
within its discretion by declining to speculate as to
why Campbell invoked his fifth amendment right not
to testify. See Skakel v. State, 295 Conn. 447, 500, 991
A.2d 414 (2010). The petitioner also erroneously con-
flates admissibility with weight. When the habeas court
determined that Campbell’s statements were admissi-
ble, it was engaging in a gatekeeping function. See id.The court simply determined that the evidence met the
threshold that would allow it to consider the evidence.
It was not acting in its capacity as the trier of fact to
determine whether it would find the evidence credible.
See id., 479.15 The mere fact that a court determines
that evidence is admissible under the Connecticut Code
of Evidence does not mean that the trier of fact must
ultimately credit that evidence.
The court also had an adequate factual basis for dis-
crediting Smith. Smith’s testimony was hesitant and
equivocal, and he merely stated that he ‘‘believes’’ that
Mack was the shooter, not that he knows that Mack was
the shooter. Additionally, Smith repeatedly corrected
portions of the proffer statement, particularly the
details concerning the order of events during the shoot-
ing. The petitioner maintains that the court clearly erred
in its credibility determination because Smith’s recanta-
tion was corroborated by Eugene’s statement and Stew-
art’s and Theriault’s testimony. However, the court
discredited Eugene’s statement because it was neither
written nor signed by him and the investigator’s affidavit
contained an incorrect assertion that Eugene was will-
ing to testify at the habeas trial. Additionally, Eugene’s
statement merely addressed his purported reason for
killing Mack. The court also discredited Stewart’s recan-
tation because his testimony about the night of the
shooting was ‘‘extremely hesitant’’ and he was reluctant
to answer even leading questions. Finally, although the
court credited Theriault’s testimony, that testimony
merely established that two nine millimeter bullets were
recovered from the Lumina and that they would fit in
Smith’s firearm, not that Smith saw Mack during the
shooting incident.
Therefore, we conclude that the second habeas court
did not err in rejecting the petitioner’s due process
claim.
II
We now turn to the petitioner’s claim that he is actu-
ally innocent. We begin our analysis by setting forth
the relevant legal principles and standard of review
that governs our analysis. In Miller v. Commissioner
of Correction, 242 Conn. 745, 791–92, 700 A.2d 1108(1997), our Supreme Court articulated the standard of
proof that a habeas corpus petitioner must satisfy in
order to prevail on a claim of actual innocence: ‘‘First,
taking into account both the evidence produced in the
original criminal trial and the evidence produced in
the habeas hearing, the petitioner must persuade the
habeas court by clear and convincing evidence, as that
standard is properly understood and applied in the con-
text of such a claim,16 that the petitioner is actually
innocent of the crime of which he stands convicted.
Second, the petitioner must establish that, after consid-
ering all of that evidence and the inferences drawn
therefrom . . . no reasonable fact finder would find
the petitioner guilty.’’17 (Footnote added.) Id., 791–92.
Under the first Miller prong, actual innocence means
‘‘factual innocence,’’ not ‘‘legal innocence,’’ and must
be ‘‘demonstrated by affirmative proof that the peti-
tioner did not commit the crime.’’ (Emphasis added.)
Gould v. Commissioner of Correction, supra, 301 Conn.
560–61. ‘‘Affirmative proof of actual innocence is that
which might tend to establish that the petitioner could
not have committed the crime even though it is
unknown who committed the crime, that a third party
committed the crime or that no crime actually
occurred.’’ (Emphasis in original.) Id., 563. ‘‘Recanta-
tions of inculpatory criminal trial testimony undoubt-
edly are relevant to a determination of innocence. But
evidence of that nature must be accompanied by affir-
mative evidence of innocence to meet Miller’s standard
of clear and convincing evidence.18 (Emphasis in origi-
nal.) Id., 564.
Our standard of review for claims of actual innocence
is twofold. ‘‘The appropriate scope of review [for the
first Miller prong] is whether, after an independent and
scrupulous examination of the entire record, we are
convinced that the finding of the habeas court . . . is
supported by substantial evidence.’’ Miller v. Commis-
sioner of Correction, supra, 242 Conn. 803. In contrast,
the plenary standard of review applies to the second
Miller prong. Id., 805.
In the present case, the petitioner’s claim of actual
innocence is based on Campbell’s and Smith’s discred-
ited recantations as well as Eugene’s discredited state-
ment. The petitioner offers no credible or affirmative
evidence of his actual innocence. The only nonrecanta-
tion evidence offered at the second habeas trial was
evidence that (1) two nine millimeter bullets were
recovered from the Lumina, (2) Mack was ‘‘jumped’’ by
the victim and two other men three months before
the shooting, and (3) Eugene shot Mack because he
believed, based on street rumors, that Mack shot the
victim. Even if this evidence were accepted as true,
none of it constitutes affirmative evidence of the peti-
tioner’s actual, factual innocence. ‘‘[I]t is important to
underscore that courts universally view recantation evi-
dence with a healthy dose of skepticism.’’ Gould v.
Commissioner of Correction, supra, 301 Conn. 568. One
of the reasons that reviewing courts are highly skeptical
of recantations is that recantations can often be out of
sympathy for the petitioner rather than a desire to
‘‘come clean’’ about prior perjury. Id., 568 n.17. Our
review of the record reveals that the impetus for the
witnesses’ recantations might well be the street rumors
that Mack was the shooter, rather than personal knowl-
edge that Mack was in the Monte Carlo the night of the
shooting and that Mack shot the victim.19
We conclude for the foregoing reasons and after an
independent and scrupulous examination of the entire
record that the habeas court did not err in denying the
petitioner’s actual innocence claim because the peti-
tioner did not meet his burden under the first prong
of Miller.20
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court granted the petition for certification to appeal. See
General Statutes § 52-470.
2
The petitioner attempted to call Campbell as a witness at his first habeas
trial, but Campbell invoked his fifth amendment right against self-incrimi-
nation.
3
Under the federal sentencing guidelines, the federal government may file
a motion on behalf of a defendant that has ‘‘provided substantial assistance in
the investigation or prosecution of another person who has committed an
offense’’ in which it asks the court to depart from the sentencing guidelines
at sentencing, including a departure below a mandatory minimum sentence.
U.S.S.G. § 5K1.1. A ‘‘proffer session’’ is the meeting between federal authori-
ties, the defendant, and his counsel at which the defendant makes a state-
ment concerning his or other individuals’ criminal conduct. Depending on
the content of the defendant’s statement and his credibility, the government
may or may not filed a § 5K1.1 motion with the court prior to sentencing.
At sentencing, when deciding whether to depart from the guidelines based
on a § 5K1.1 motion, the court may consider, inter alia, ‘‘the truthfulness,
completeness, and reliability of any information or testimony provided by
the defendant.’’ U.S.S.G. § 5K1.1 (a) (2).
4
During his brief, and reluctant, trial testimony, Smith did not mention
that he attempted to shoot at the Monte Carlo. In relevant part, he engaged
in the following colloquy with the prosecutor:
‘‘Q. All right. Do you recall seeing whether or not a car pulled up next
to you?
‘‘A. Yeah. A car pulled up. Yeah, a car pulled up.
‘‘Q. Okay. Then what happened?
‘‘A. They started shooting. Somebody started shooting.
‘‘Q. Okay. Did you see who started shooting? Is that a no?
‘‘A. No.
‘‘Q. What did you see?
‘‘A. I seen—I just looked. I seen a car, and I ducked. I just ducked.
‘‘Q. You always duck every time a car comes near you? What made
you duck?
‘‘A. ‘Cause
‘‘Q. ‘Cause why?
‘‘A. ‘Cause, you know, I just ducked.’’
5
The respondent, the Commissioner of Correction, argues that any claim
of actual innocence or a due process violation based on Campbell’s recanta-
tion is barred by the doctrine of res judicata. As we have disposed of the
petitioner’s claim on other grounds, we need not address this argument.
See Edwards v. Commissioner of Correction, 141 Conn. App. 430, 431
n.1, 63 A.3d 540, cert. denied, 308 Conn. 940, 66 A.3d 882 (2013); Cole v.
Commissioner of Correction, 126 Conn. App. 775, 777 n.1, 12 A.3d 1065(per curiam), cert. denied, 300 Conn. 937, 17 A.3d 473 (2011).
6
The petitioner attempted to call Campbell and Eugene to testify, but
they both invoked their fifth amendment right against self-incrimination.
7
For example, the following exchange occurred between the petitioner’s
counsel and Smith during direct examination:
‘‘Q. Okay. Sir, if I read you the portion of the proffer session, would that
refresh your recollection as to the order of events?
‘‘A. It might.
‘‘Q. Okay. It says: ‘Smith attempted to fire the TEK-9 at [the petitioner’s]
car but the TEK-9 malfunctioned and didn’t fire. Smith then saw Bub [i.e.,
Mack] produce a firearm and proceed to shoot in the car occupied by Smith.’
Does that refresh your recollection?
‘‘A. No, I don’t think it happened like that.
‘‘Q. No, you don’t think it happened like that?
‘‘A. No.
‘‘Q. All right. This is certainly what you told the [federal] agents.
‘‘A. No.
‘‘Q. At any time with your discussions with your lawyers or [the federal]
prosecutors or the [federal] agents, did you ever tell them that you were
fired upon first and then you tried to fire?
‘‘A. I’m not sure.
‘‘Q. All right. After—you know that you were ordered to be truthful in
this statement. Correct?
‘‘A. Correct.
‘‘Q. And that the 5K [motion] would not be given to you unless you told
the truth to the [federal] agents and to the [assistant United States attorney].
‘‘A. That’s true.
‘‘Q. And now you’re saying that what’s in the report is not true.
‘‘A. I’m not saying that. I’m just saying I can’t remember if that’s how
it happened.
‘‘Q. Well, can you not remember?
‘‘A. No, you know, I also had a brain injury.
‘‘Q. Okay. We understand that, but when you spoke to the [federal] agents,
you gave them [a] very specific order as to how things happened, isn’t that
correct, according to this report?
‘‘A. It could appear like that, but I don’t believe that’s how it happened.
‘‘Q. All right. Well, did you make any corrections to the [federal]
agent’s report?
‘‘A. No, I never seen it.’’
8
For example, the following exchange occurred between the petitioner’s
counsel and Smith during direct examination:
‘‘Q. . . . Do you recall a car pulling up alongside the car that you were in?
‘‘A. Yeah.
‘‘Q. Do you recall being able to see the driver of the car?
‘‘A. I mean it was blurry, but yeah.
‘‘Q. Okay. And who was the driver?
‘‘A. Well, I believe it was [the petitioner’s].
‘‘Q. Okay.
‘‘A. That’s what I believe.
‘‘Q. All right. Could you see someone else in the front seat passenger of
[the petitioner’s] car?
‘‘A. Yeah.
‘‘Q. And who was that?
‘‘A. I believe that was, um, Bub.
‘‘Q. Okay. Is Bub also known as Lorenz[a] Mack?
‘‘A. Yeah.
***
‘‘Q. Okay. And so did you attempt to shoot at [the petitioner’s] car?
‘‘A. I think they fired. They already fired.’’
***
‘‘Q. And you reiterated is it true that [the petitioner]] did not shoot or
fire on the car that you were in. Is that correct?
‘‘A. Yeah, I don’t believe it was him.’’ (Emphasis added.)
9
A transcript and recording of Campbell’s phone conversation and Camp-
bell’s sworn statement were admitted as statements against penal interest.
10
The petitioner offered and the court admitted Smith’s proffer statement
as a prior inconsistent statement.
11
When Eugene invoked his fifth amendment right against self-incrimina-
tion, the court admitted Douglas’ affidavit about their meeting into evidence
only for nonhearsay purposes, i.e., for establishing that Eugene’s motive
for killing Mack was his belief, based on street rumors, that Mack killed
the victim.
12
The court credited the testimony of Davis and Therriault, but ultimately
concluded that their testimony did not support the petitioner’s claim.
13
The court emphasized that the investigator’s description of Eugene’s
claim that ‘‘ ‘it is well known on the street’ ’’ that Mack killed the victim
was not admitted ‘‘for the truth of the matter but rather it [was admitted]
only for the nonhearsay purpose of showing Eugene’s motive or state of
mind, to the extent that the latter was relevant.’’
14
Section 8-6 (4) of the Connecticut Code of Evidence provides: ‘‘State-
ment against penal interest. A trustworthy statement against penal interest
that, at the time of its making, so far tended to subject the declarant to
criminal liability that a reasonable person in the declarant’s position would
not have made the statement unless the person believed it to be true. In
determining the trustworthiness of a statement against penal interest, the
court shall consider (A) the time the statement was made and the person
to whom the statement was made, (B) the existence of corroborating evi-
dence in the case, and (C) the extent to which the statement was against
the declarant’s penal interest.’’
15
We note that the petitioner argues in his brief that Skakel supports his
argument that ‘‘the only adverse inference that may be logically inferred
[from Campbell’s invocation of his fifth amendment right], is that Jesse
Campbell’s trial testimony was perjured.’’ In particular, he quotes a portion of
the Supreme Court’s summary of the trial court’s memorandum of decision,
without attribution, to support his assertion that ‘‘[b]y refusing to testify as
to the veracity of his testimony at the [p]etitioner’s criminal trial, Mr. Camp-
bell is acknowledging criminal liability [from his trial testimony].’’ We
observe that Skakel is squarely adverse to the petitioner’s position with
respect to Campbell. In Skakel, the defendant sought a new trial based on
statements by Gitano Bryant that inculpated two other persons in the victim’s
murder. Skakel v. State, supra, 295 Conn. 468. While the court admitted
Bryant’s statement as a statement against penal interest after Bryant invoked
his fifth amendment right against self-incrimination, it ultimately did not
credit Bryant’s statement. Id., 473–77. In affirming the trial court’s decision,
the Supreme Court not only ‘‘decline[d] to speculate as to why Bryant
invoked his fifth amendment right not to testify’’ but also held that the court
did not abuse its discretion by ‘‘concluding that Bryant’s account, while
sufficiently trustworthy to be admissible, ‘is absent any genuine corrobora-
tion . . . lacks credibility, and therefore, would not produce a different
result in a new trial.’ ’’ Id., 500–501.
16
‘‘The clear and convincing standard of proof is substantially greater
than the usual civil standard of a preponderance of the evidence, but less
than the highest legal standard of proof beyond a reasonable doubt. It is
sustained if the evidence induces in the mind of the trier a reasonable belief
that the facts asserted are highly probably true, that the probability that
they are true or exist is substantially greater than the probability that they
are false or do not exist. . . . [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, equivocal or contradictory.’’
(Emphasis in original; footnote omitted; internal quotation marks omitted.)
Miller v. Commissioner of Correction, supra, 242 Conn. 794–95.
17
‘‘There are two types of actual innocence claims: Gateway and freestand-
ing. In a freestanding claim of actual innocence, ‘there is no claim of an
antecedent constitutional violation that affected the result of [the] criminal
trial. Such a freestanding claim is to be contrasted with what has come to
be known in federal habeas jurisprudence as a ‘‘gateway’’ claim of actual
innocence. Such a claim serves as a gateway to permit federal habeas review
of an otherwise procedurally barred state conviction that the petitioner
asserts is constitutionally flawed’; Miller v. Commissioner of Correction,
[supra, 242 Conn. 788 n. 28]; it is ‘[a] claim based on an antecedent constitu-
tional violation that affects the results of the criminal trial . . . .’ Id., 813
n. 7 (Berdon, J., concurring and dissenting).’’ Rivera v. Commissioner of
Correction, 70 Conn. App. 452, 461 n.2, 800 A.2d 1194, cert. denied 261 Conn.
921, 806 A.2d 1061 (2002).
The petitioner contends that he has asserted a ‘‘gateway’’ claim of actual
innocence and that the habeas court erred in failing to apply the federal
standard for review of gateway claims of actual innocence set forth by the
United States Supreme Court in Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851,
130 L. Ed. 2d 808 (1995). We disagree. ‘‘Neither this court nor our Supreme
Court has expressly recognized the viability of a gateway claim of actual
innocence in this state. In the federal courts, a habeas petitioner may assert
a claim of actual innocence to circumvent a procedural obstacle [under
federal statutory law] that would otherwise operate to bar review of a claim
of constitutional error affecting the criminal trial. See [Schlup v. Delo, supra],
314. Such an actual innocence claim is thus ‘a gateway through which a
habeas petitioner must pass to have his otherwise barred constitutional
claim considered on the merits.’ Herrera v. Collins, 506 U.S. 390, 404, 113
S. Ct. 853, 112 L. Ed. 2d 203 (1993).’’ Rivera v. Commissioner of Correction,
supra, 70 Conn. App. 461; see also Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir.
2012) (‘‘A claim of actual innocence under Schlup is therefore procedural, not
substantive. . . . The petitioner raising such a claim does not seek to have
his conviction vacated on grounds of innocence; rather, he seeks to create
sufficient doubt about his guilt that the habeas court will permit him to
pursue his accompanying constitutional claims notwithstanding an other-
wise applicable procedural bar.’’ [Citation omitted.]). In the present case,
the petitioner was not confronted with any procedural impediments to
review of his actual innocence claim, and, indeed, the habeas court and this
court have fully addressed the merits of that claim. The petitioner was
therefore in no need of a ‘‘gateway.’’
18
Our Supreme Court has not addressed whether a habeas petitioner must
support his claim of actual innocence with newly discovered evidence. ‘‘This
court, nevertheless, has held that a claim of actual innocence must be based
on newly discovered evidence. [A] writ of habeas corpus cannot issue unless
the petitioner first demonstrates that the evidence put forth in support of
his claim of actual innocence is newly discovered. . . . 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.) Jackson v. Commissioner of Correction,
supra, 149 Conn. App. 707–708.
In the present case, the second habeas court concluded that the recanta-
tion and Eugene’s statement were not newly discovered evidence because
none of it ‘‘negates the fact that the petitioner was driving the car at the
time of the shooting.’’ Therefore, the petitioner certainly would have known
at the time of trial that Mack was the real shooter, and he might have known
who saw him and Mack together at the time of the shooting. We have held
that information that the petitioner ‘‘had personal knowledge of from his
own experience and activities . . . is not, as a matter of law, newly discov-
ered evidence.’’ Morant v. State, 68 Conn. App. 137, 147, 802 A.2d 93, cert.
denied, 260 Conn. 914, 796 A.2d 558 (2002), overruled on other grounds,
Shabbaz v. State, 259 Conn. 811, 830 n.13, 792 A.2d 797 (2002); see, e.g., State
v. White, 76 Conn. App. 509, 513, 819 A.2d 932 (2003) (victim’s recantation did
not constitute newly discovered evidence where defendant knew at time of
plea hearing that victim, who had resumed a relationship with the defendant,
was uncooperative with police, and wanted to avoid his incarceration). The
petitioner maintains, however, that ‘‘[t]he newly discovered evidence is not
Mr. Mack’s culpability, but rather the recantations of three of the [s]tate’s
witnesses: Jesse Campbell, Joseph Smith, and Dwayne Stewart.’’
Even if we assume, without deciding, that the recantations and Eugene’s
statement constitute newly discovered evidence, however, the petitioner’s
actual innocence claim fails on the merits.
19
‘‘They say’’ is often a great liar, according to the Irish proverb. Accord
Conn. Code Evid. § 8-2.
20
Accordingly, we need not address whether the petitioner has satisfied
Miller’s second prong. See Gould v. Commissioner of Correction, supra,301 Conn. 559 n.14 (‘‘That examination [of the Miller test] suggests to us
that there may not be any case in which the first prong [of the Miller test]
is not dispositive of the petition. . . . Indeed . . . the first prong of Miller
sets forth the heart of an actual innocence claim.’’); see, e.g., Jackson v.
Commissioner of Correction, supra, 149 Conn. App. 713–14.