Jones v. Commissioner of Correction ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears 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 reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
MARQUIS JONES v. COMMISSIONER
OF CORRECTION
(AC 43862)
Alvord, Moll and Vertefeuille, Js.
Syllabus
The petitioner, who had been convicted, following a jury trial, of felony
murder, sought a writ of habeas corpus, claiming that his trial counsel,
J, had provided ineffective assistance and that his rights to due process
and to a fair trial had been violated by the prosecutor’s failure to disclose
material evidence that was favorable to the defense. Following a hearing,
the habeas court denied the petition. Thereafter, the habeas court denied
the petition for certification to appeal, and the petitioner appealed to
this court. Held that the habeas court did not abuse its discretion in
denying the petition for certification to appeal, the petitioner having
failed to demonstrate that his claims involved issues that were debatable
among jurists of reason, that a court could resolve the issues in a
different manner or that the questions raised were adequate to deserve
encouragement to proceed further: this court declined to review the
petitioner’s claim that the habeas court deprived him of his statutory
and constitutional rights in failing to admit into evidence or to consider
the transcript of his underlying criminal trial, as the petitioner did not
raise any claims relating to the habeas court’s treatment of the criminal
trial transcript in his petition for certification to appeal; moreover, based
on the underlying facts as found by the habeas court, this court con-
cluded that the habeas court properly found that the petitioner failed
to establish that J rendered ineffective assistance, as that court correctly
determined that the petitioner failed to establish prejudice on the basis
of J’s failure to explore the condition of the victim’s body when cross-
examining the state’s main witness, B, as the petitioner failed to present
B as a witness at the habeas trial, or on the basis of J’s failure to consult
and call as a witness a forensic expert as, although the petitioner asserted
that an expert could have provided important information to his counsel,
he failed to state how such information would have impacted the case,
or on the basis of J’s failure to follow up on bloodstains found in the
victim’s car, the petitioner having failed to link the victim’s car and the
bloodstains in it to the murder, and this court declined to review the
petitioner’s claim that J failed to follow up on the handling of the
victim’s car by the police, as the claim was not distinctly raised before
or addressed by the habeas court; furthermore, this court concluded
that the habeas court properly determined that there was no violation
of Brady v. Maryland (373 U.S. 83), because, although the prosecutor
failed to disclose to the petitioner that DNA evidence obtained from
bloodstains in the victim’s car generated a match to a convicted offender,
the petitioner failed to establish a connection between the murder and
those bloodstains and thus failed to show that evidence of that match
was material to his defense.
Argued January 26—officially released April 26, 2022
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Newson, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Katharine S. Goodbody, assistant public defender,
for the appellant (petitioner).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Joseph T. Corradino,
state’s attorney, and Emily Trudeau, assistant state’s
attorney, for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Marquis Jones, 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 (1) abused its
discretion in denying his petition for certification to
appeal, (2) deprived him of his constitutional and statu-
tory rights by failing to admit into evidence or consider
the transcripts of the underlying criminal trial, (3)
improperly concluded that his trial counsel did not pro-
vide ineffective assistance, and (4) improperly con-
cluded that there were no violations of Brady v. Mary-
land, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),
at his underlying criminal trial. We conclude that the
habeas court did not abuse its discretion in denying
the petitioner’s petition for certification to appeal and,
therefore, dismiss the appeal.
This court set forth the following facts, which the
jury reasonably could have found, in the petitioner’s
direct appeal from his conviction. ‘‘On the evening of
December 26, 2002, the eighteen year old victim, accom-
panied by his cousin, Sam Moore, attended a party at
a club in Bridgeport. The [petitioner] was at the club
at the same time as the victim and Moore. After leaving
the club, the victim and Moore went to a nearby restau-
rant. The [petitioner], who was armed with a gun,
arrived at the same restaurant at approximately 1 a.m.
While there, the [petitioner] learned that the victim and
Moore were interested in purchasing marijuana. The
[petitioner] told an acquaintance, Gary Browning, that
the victim and Moore had money and that he wanted
to rob them. Browning arranged to sell marijuana to
the victim and led him to a nearby backyard to complete
the sale. Thereafter, the [petitioner] approached the
victim from behind and stated: ‘You know what time it
is, run that shit.’ As Browning walked away from the
victim, the [petitioner] shot the victim in the back of
the head and took money and drugs from him. The
gunshot caused the victim’s death. The victim’s body
was found on the snow coated ground the next morn-
ing.’’ (Footnote omitted.) State v. Jones, 135 Conn. App.
788, 791, 44 A.3d 848, cert. denied, 305 Conn. 925, 47
A.3d 885 (2012).
The petitioner was arrested on June 4, 2008. On May
28, 2010, following a jury trial, the petitioner was con-
victed of felony murder. He was sentenced to a total
effective sentence of forty years of incarceration. Fol-
lowing a direct appeal, the judgment of conviction was
affirmed by this court. Id., 790.
The present habeas proceeding was commenced in
May, 2013, and, on May 10, 2019, the petitioner filed a
three count, third amended petition for a writ of habeas
corpus. The first count included a number of claims of
ineffective assistance of counsel, three of which are at
issue in this appeal. The second and third counts each
alleged that his rights to due process and a fair trial
were violated by the prosecutor’s failure to disclose
material evidence that was favorable to the defense. A
trial was held over the course of two days, on August
27, 2018, and June 4, 2019. On November 26, 2019, the
habeas court, Newson, J., issued a memorandum of
decision in which it denied the petitioner’s habeas peti-
tion.
The petitioner subsequently filed a petition for certifi-
cation to appeal, which the court also denied. This
appeal followed. Additional facts and procedure will
be set forth as necessary.
I
The petitioner first claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal from the court’s judgment denying his
petition for a writ of habeas corpus. We disagree.
General Statutes § 52-470 (g) provides: ‘‘No appeal
from the judgment rendered in a habeas corpus pro-
ceeding brought by or on behalf of a person who has
been convicted of a crime in order to obtain such per-
son’s release may be taken unless the appellant, within
ten days after the case is decided, petitions the judge
before whom the case was tried or, if such judge is
unavailable, a judge of the Superior Court designated
by the Chief Court Administrator, to certify that a ques-
tion is involved in the decision which ought to be
reviewed by the court having jurisdiction and the judge
so certifies.’’
‘‘As our Supreme Court has explained, one of the
goals our legislature intended by enacting this statute
was to limit the number of appeals filed in criminal
cases and hasten the final conclusion of the criminal
justice process . . . . [T]he legislature intended to dis-
courage frivolous habeas appeals. . . . [Section] 52-
470 [g] acts as a limitation on the scope of review, and
not the jurisdiction, of the appellate tribunal. . . .
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the [disposition] of his [or her] petition for
habeas corpus only by satisfying the two-pronged test
enunciated by our Supreme Court in Simms v. Warden,
229 Conn. 178, 640 A.2d 601 (1994), and adopted in
Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126(1994). First, he [or she] must demonstrate that the
denial of his [or her] petition for certification consti-
tuted an abuse of discretion. . . . Second, if the peti-
tioner can show an abuse of discretion, he [or she] must
then prove that the decision of the habeas court should
be reversed on its merits. . . .
‘‘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. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Foot-
note omitted; internal quotation marks omitted.) Whist-
nant v. Commissioner of Correction, 199 Conn. App.
406, 414–15, 236 A.3d 276, cert. denied, 335 Conn. 969,
240 A.3d 286 (2020).
For the reasons set forth in parts II, III, and IV of
this opinion, we conclude that the petitioner has failed
to demonstrate that his claims are debatable among
jurists of reason, a court could resolve the issues in a
different manner, or the questions are adequate to
deserve encouragement to proceed further. Thus, we
conclude that the habeas court did not abuse its discre-
tion in denying the petition for certification to appeal.
II
Turning to the merits of the petitioner’s first substan-
tive claim, the petitioner claims that the habeas court
deprived him of ‘‘his constitutional and statutory rights
to the opportunity to be heard’’ by failing to admit into
evidence or consider the transcript of the underlying
criminal trial. The respondent, the Commissioner of
Correction, contends, inter alia, that this claim is not
reviewable. We agree with the respondent.
The following additional procedural history is rele-
vant to our resolution of this claim. On the first day of
the habeas trial, August 27, 2018, the petitioner’s habeas
counsel offered the underlying criminal trial transcript
as a full exhibit, and the respondent’s attorney objected,
noting that the transcript, which was saved on a flash
drive, did not appear to be certified and the paper copy
offered by the petitioner had notes on it. The respon-
dent’s attorney told the court that if there was a brief
recess she would be able to review the flash drive to
determine whether the transcript was certified. The
court advised the parties that it planned a lunch recess
to afford them review time. One of the attorneys, how-
ever, had to attend another hearing in the afternoon;
therefore, the trial was adjourned without a resolution
of the transcript issue. On June 4, 2019, the second,
and last, day of the trial, the petitioner’s habeas counsel
‘‘offer[ed] the expanded record pursuant to . . . Prac-
tice Book § 23-36,1 including the transcripts of the crimi-
nal case’’; (footnote added); and the court stated that
it would accept the transcripts as part of the ‘‘underlying
record.’’2 In the court’s memorandum of decision deny-
ing the petition for a writ of habeas corpus, the court
noted that, ‘‘[s]trangely, although submitted as an ID
exhibit . . . the transcript from the underlying crimi-
nal trial was never offered as a full exhibit at the habeas
trial’’ and further noted that the transcript ‘‘likely could
have offered some clarification about exactly what hap-
pened.’’
On December 10, 2019, after the habeas court denied
his petition for a writ of habeas corpus, the petitioner
filed a petition for certification to appeal. Although the
petitioner set forth numerous grounds on which he
proposed to appeal, he did not in any way implicate
the court’s treatment of the criminal trial transcript.
The court denied the petition for certification to appeal
on December 11, 2019. On January 28, 2020, the peti-
tioner appealed to this court. On March 4, 2020, the
petitioner filed a motion for articulation and a motion
for rectification of appeal, arguing therein that the
‘‘habeas court erroneously determined that the underly-
ing transcript of the criminal trial was not in evidence
and, therefore, [the court] failed to consider the tran-
script [in] making its decision.’’ On May 29, 2020, the
habeas court denied these motions, noting that ‘‘the
criminal transcript was not a full exhibit.’’ On August
6, 2020, the petitioner filed with this court two motions
for review with respect to the habeas court’s decisions
on those motions. This court granted the motion to
review the decision on the petitioner’s motion for articu-
lation and ordered the habeas court to articulate
whether it considered any portion of the criminal trial
transcript when rendering its decision. The habeas
court, in its responsive articulation, explained that ‘‘the
petitioner never entered the criminal trial transcript as
a full exhibit. Since the transcripts remained an exhibit
for ID only . . . [the court] would not have considered
the exhibit in rendering the memorandum of decision
following the trial. To the extent the parties referenced
said transcript in their briefs, the court simply accepted
those as arguments of the parties based on the evidence
and full exhibits that were submitted at trial.’’ At no
point did the petitioner seek to amend his petition for
certification to appeal to include arguments related to
the court’s treatment of the criminal trial transcript.
Now, on appeal, the petitioner claims that, because
‘‘[t]he underlying transcript was offered by counsel for
the petitioner, was not objected to by the respondent’s
counsel, and was relied on both in questioning wit-
nesses during the habeas trial and in the posttrial briefs
of the parties,’’ the court’s ‘‘[f]ailure to admit the tran-
script denied [the petitioner] . . . his due process right
to a meaningful opportunity to be heard. And, failure
to consider any portion of the underlying criminal tran-
script also denied [the petitioner] his due process rights
to be heard.’’ In response, the respondent argues that,
inter alia, this claim is not reviewable because ‘‘it was
not raised as a ground of error in the petition for certifi-
cation to appeal.’’
‘‘As our standard of review set forth [in part I of this
opinion] makes clear, an appeal following the denial of
a petition for certification to appeal from the judgment
denying a petition for a writ of habeas corpus is not the
appellate equivalent of a direct appeal from a criminal
conviction. Our limited task as a reviewing court is to
determine whether the habeas court abused its discre-
tion in concluding that the petitioner’s appeal is frivo-
lous. Thus, we review whether the issues for which
certification to appeal was sought are debatable among
jurists of reason, a court could resolve the issues differ-
ently or the issues are adequate to deserve encourage-
ment to proceed further. . . . Because it is impossible
to review an exercise of discretion that did not occur,
we are confined to reviewing only those issues which
were brought to the habeas court’s attention in the
petition for certification to appeal.’’ (Citation omitted.)
Tutson v. Commissioner of Correction, 144 Conn. App.
203, 216, 72 A.3d 1162, cert. denied, 310 Conn. 928, 78
A.3d 145 (2013); see id., 215–17 (declining to review
claim that ‘‘court improperly failed to read all of the
exhibits introduced at the habeas proceeding . . .
[b]ecause the petitioner did not raise the claim when
asking the court to rule on his petition for certification
to appeal’’); see also Schuler v. Commissioner of Cor-
rection, 200 Conn. App. 602, 610–11, 238 A.3d 835 (2020),
cert. denied, 336 Conn. 905, 243 A.3d 1180 (2021).
Further, ‘‘[i]t is well established that a petitioner can-
not demonstrate that the habeas court abused its discre-
tion in denying a petition for certification to appeal if
the issue raised on appeal was never raised before the
court at the time that it considered the petition for
certification to appeal as a ground on which certifica-
tion should be granted.’’ (Internal quotation marks omit-
ted.) Whistnant v. Commissioner of Correction, supra,
199 Conn. App. 416.
In the present case, the petitioner did not raise any
claims related to the court’s treatment of the trial tran-
script in his petition for certification to appeal. He
explains that ‘‘[t]he issue was raised and addressed in
the posttrial motions for articulation and rectification
and in the motions for review of the decisions on these
motions,’’ which provided the court with ‘‘the opportu-
nity to address this claim.’’ The petitioner asserts that
the claim is reviewable because ‘‘[t]he court was given
the opportunity to address this issue through the
motions . . . .’’ These arguments, however, ignore the
statutory nature of habeas appeals. ‘‘Section 52-470 (g)
conscribes our appellate review to the issues presented
in the petition for certification to appeal . . . .’’ Whist-
nant v. Commissioner of Correction, supra, 199 Conn.
App. 418. The petitioner’s contentions are unavailing,
and he cannot demonstrate that the habeas court
abused its discretion in denying the petition for certifi-
cation to appeal on this ground.
III
The petitioner’s second substantive claim on appeal
is that the court erroneously concluded that he failed
to establish that his trial counsel, Attorney Jeffrey Beck,
rendered ineffective assistance. Specifically, the peti-
tioner claims that his trial counsel failed (1) to attack
Browning’s testimony with respect to the condition of
the victim’s body, (2) to hire a forensic expert, and (3)
to conduct a timely and thorough investigation of the
case and asserts that, ‘‘if [defense counsel] had not
failed to take the actions discussed herein, it is probable
that the outcome would have been different.’’ We dis-
agree.
‘‘[As it relates to the petitioner’s substantive claims]
[o]ur standard of review of a habeas court’s judgment on
ineffective assistance of counsel claims is well settled.’’
(Internal quotation marks omitted.) Mourning v. Com-
missioner of Correction, 169 Conn. App. 444, 449, 150
A.3d 1166 (2016), cert. denied, 324 Conn. 908, 152 A.3d
1246 (2017). ‘‘In a habeas appeal, this court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous, but our review of
whether the facts as found by the habeas court consti-
tuted a violation of the petitioner’s constitutional right
to effective assistance of counsel is plenary. . . .
‘‘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 pre-
vail 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 petitioner to show (1) that counsel’s perfor-
mance was deficient and (2) that the deficient perfor-
mance prejudiced the defense. . . . Because both
prongs . . . must be established for a habeas peti-
tioner to prevail, a court may dismiss a petitioner’s
claim if he fails to meet either prong. . . . 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 [petitioner] 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 unpro-
fessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’’
(Citation omitted; internal quotation marks omitted.)
Schuler v. Commissioner of Correction, supra, 200
Conn. App. 617.
A
We first address the petitioner’s contention that his
trial counsel failed to explore the condition of the vic-
tim’s body when cross-examining Browning, the state’s
main witness against the petitioner in the criminal trial.
The following additional procedural history is rele-
vant to our resolution of this claim. At the habeas trial,
the exhibits from the criminal trial, which included pic-
tures of the crime scene and the victim, were entered
as full exhibits. The pictures show the victim lying face
down in the snow, with clothing partially removed, and
surrounded with footprints. In addition, Joette Devan,
a detective who responded to the crime scene, testified
that the victim was lying face down and that there were
footprints in the snow around the body. The petitioner
also presented evidence, in the form of expert testi-
mony, that the position of the victim’s body indicated
that it had been moved after the murder occurred.3
The petitioner presented expert testimony of Attor-
ney John Watson. When Watson was asked about the
footprints around the victim’s body, he testified that
‘‘[s]ome of [the footprints] were identified as those of
Mr. Browning because of the footwear he himself said
he was wearing, and some were identified as those of
the victim because they matched the type of footwear
the victim was wearing.’’ The petitioner’s habeas coun-
sel then asked, ‘‘[I]f you as a defense attorney . . .
have a crime scene where the victim has been rolled
and his clothes have been pulled off him . . . to some
degree, what would you do with that?’’ Watson
responded, ‘‘I think that’s something that the forensic
expert could help defense counsel to bring to the jury’s
attention through cross-examination of the state’s wit-
nesses that the footprints around the body were those
of Mr. Browning. So, it’s a reasonable inference that,
in fact, he was the person who tampered with the body
after the shooting.’’
The petitioner’s trial counsel also testified at the
habeas trial. The case was scheduled for trial at the
time when trial counsel was appointed to represent the
petitioner. He testified that his defense theory was ‘‘that
[the petitioner] had nothing to do with the incident at
all, wasn’t present when [the victim] was shot, and
wasn’t aware of what was going on.’’ He further testified
that his approach in cross-examining Browning was to
attack Browning’s testimony because, according to trial
counsel, ‘‘[Browning’s] testimony . . . was very weak’’
and ‘‘very incredulous.’’ The petitioner’s trial counsel
testified further that he questioned Browning about
footprints found around the body and that Browning
admitted that the footprints were his own. Trial counsel
recalled that, in his closing argument at trial, he men-
tioned that the victim’s body may have been moved after
the shooting. Further, on inquiry from the respondent’s
counsel, trial counsel agreed that pursuing a line of
questioning as to what may have happened to the vic-
tim’s body after the shooting would not have been rele-
vant to the defense that the petitioner was not at the
scene and had nothing to do with the murder. Finally,
trial counsel conceded that the state never claimed that
the petitioner’s footprints were at the scene of the
crime. The petitioner never called Browning as a wit-
ness at the habeas trial.
In denying the petitioner’s amended petition for a
writ of habeas corpus, the habeas court concluded that
the petitioner’s failure to present Browning as a witness
at the habeas trial was fatal to his claim, citing Nieves
v. Commissioner of Correction, 51 Conn. App. 615,
623–24, 724 A.2d 508, cert. denied, 248 Conn. 905, 731
A.2d 309 (1999), which held that ‘‘[t]he failure of the
petitioner to offer evidence as to what [the witnesses]
would have testified is fatal to his claim,’’ as, without
the evidence, the court was ‘‘unable to conclude that
he was prejudiced.’’
On appeal, the petitioner asserts that ‘‘[a] review of
the photograph of the [victim’s] body indicates that it
‘most likely ha[d] been moved at some point after the
injury occurred’ ’’ and that Browning’s footprints were
‘‘ ‘abundant’ around the victim’s body.’’ Thus, he argues
that, because ‘‘the state had a weak case, it is reasonably
probable that the jury would have found reasonable
doubt had [his trial counsel] adequately attacked [Brow-
ning’s] testimony.’’ The respondent maintains that the
habeas court correctly determined that prejudice could
not be assessed given the fact that the petitioner did
not call Browning as a witness at the habeas trial. In
response, the petitioner asserts that, ‘‘[i]f [Browning]
had testified at the habeas trial, his answers would not
have changed the fact that [the petitioner’s trial counsel]
failed to bring to the jury’s attention the discrepancies
in [Browning’s] version of the shooting and the physical
evidence.’’ Accordingly, it is the petitioner’s position
that ‘‘how [Browning] would have answered is irrele-
vant and was not required’’ because ‘‘the failure of [trial
counsel’s] cross-examination of [Browning] was the
failure to challenge his testimony with the physical evi-
dence.’’ We agree with the respondent.
‘‘It is axiomatic that a habeas petitioner who claims
prejudice based on counsel’s alleged failure to present
helpful evidence from a particular witness, must call
that witness to testify before the habeas court or other-
wise prove what the witness would or could have stated
had he been questioned at trial, as the petitioner claims
he should have been.’’ Benitez v. Commissioner of Cor-
rection, 197 Conn. App. 344, 351, 231 A.3d 1285, cert.
denied, 335 Conn. 924, 233 A.3d 1091 (2020); see id.,350–51 (‘‘petitioner failed to call the complainant to
testify at the habeas trial, or otherwise to establish what
the complainant would or could have testified to on
cross-examination, had he been questioned about his
access to and possible use’’ of chemicals involved in
underlying arson and, therefore, could not show preju-
dice); see also Taft v. Commissioner of Correction, 159
Conn. App. 537, 554, 124 A.3d 1 (petitioner failed to
prove prejudice when he ‘‘did not offer evidence regard-
ing how [the witnesses] would have testified if they had
been cross-examined [differently]’’), cert. denied, 320
Conn. 910, 128 A.3d 954 (2015); Nieves v. Commissioner
of Correction, supra, 51 Conn. App. 623 (petitioner’s
failure ‘‘to offer evidence as to what [witnesses] would
have testified is fatal to his claim’’). In order for the
habeas court to assess the claim that the petitioner’s
trial counsel did not properly cross-examine Browning,
the petitioner needed to call Browning as a witness at
the habeas trial or otherwise demonstrate how Brow-
ning would have testified had his cross-examination
been conducted as now suggested by the petitioner.
Accordingly, we conclude that the habeas court prop-
erly determined that the petitioner failed to establish
prejudice, and, therefore, the court did not abuse its
discretion in denying the petition for certification to
appeal as to this claim.
B
The petitioner next claims that his trial counsel failed
to consult and call as a witness a forensic expert. Specif-
ically, in this third claim he asserts that a forensic expert
could have (1) ‘‘told [trial counsel] that the victim’s
body had been moved subsequent to the shooting,’’ (2)
‘‘testified as to the relevance and importance of the
shoe print that was approximately [twenty] feet from
the victim,’’ and (3) ‘‘told [trial counsel] the possible
significance and could have testified regarding the vic-
tim’s car with the bloodstained seats.’’ According to the
petitioner, a forensic expert ‘‘would have bolstered the
idea that the state’s version of what happened here is
not trustworthy.’’ (Internal quotation marks omitted.)
The petitioner, however, has failed to demonstrate that
he was prejudiced by his trial counsel’s failure to con-
sult and call a forensic expert.
In addition to the evidence discussed in part III A
of this opinion, the petitioner presented the following
evidence. Devan, a detective involved in the investiga-
tion, testified that the victim’s car keys were next to
the victim’s body and that the victim’s car was located
nearby. Devan testified that two of the car’s seats had
what appeared to be bloodstains on them and that the
car was towed to the police department for further
investigation. The petitioner presented evidence that
the two stains found on the car seats were human blood
and that the police removed the bloodstained fabric
from the vehicle for DNA testing, which occurred in
2003 and ruled out the victim as the source of the blood.
Michael Bourke, a forensic science examiner at the
Department of Emergency Services and Public Protec-
tion, testified that DNA testing on the bloodstains
resulted in several profiles that were entered into the
Combined DNA Index System (CODIS) database4 ‘‘in
order to search against other forensic profiles and the
profiles from the offenders that are included [in the
database] in hopes of furthering the investigation.’’
Bourke also testified that ‘‘a match was generated to a
convicted offender in this case’’ on January 12, 2009,
identifying ‘‘Rafail E. Ferrer’’ as having DNA in the sys-
tem that matched the sample from the victim’s car.
The petitioner also established that his trial counsel
did not hire or consult a forensic expert in the present
case, and he presented testimony from Peter Valentin,
a lecturer at the Forensic Science Department of the
University of New Haven, as an expert in crime scene
forensic science. Valentin testified, on reviewing a pho-
tograph of the victim’s body at the crime scene that
was a full exhibit in the criminal trial, that there had
been ‘‘some movement after the injury’’ and ‘‘the [vic-
tim] most likely ha[d] been moved at some point after
the injury occurred.’’5 Valentin also briefly testified
about a shoe print containing a bloodstain that was
approximately twenty feet from the victim. When asked
if the shoe print was ‘‘something that would be signifi-
cant in trying to resolve this crime,’’ Valentin responded
that ‘‘[t]he existence of that bloodstain at such a dis-
tance from . . . where the injury occurred strongly
suggests relevance’’ and provided several theories as
to how the bloodstained footprint came to be.6
When asked about what he would have done if hired
by the petitioner’s trial counsel, Valentin said that he
‘‘would have advised [trial] counsel . . . that the auto-
mobile is a relevant item of physical evidence that needs
to be safeguarded and searched until such time as . . .
you can determine that there’s nothing of relevance
inside the vehicle.’’ With respect to the bloodstains in
the victim’s car, Valentin provided suggestions only as
to how he would have investigated the source of the
blood (i.e., by interviewing the person whose DNA was
matched with one of the bloodstains).
The habeas court determined that the petitioner failed
to establish prejudice and provided that, ‘‘[a]lthough the
petitioner did present the testimony of . . . Valentin
as an expert in crime scene forensic investigation, his
testimony was neither compelling nor enlightening. He
was not at the scene of the crime and did not examine
any of the actual physical evidence from the scene. He
also did not speak directly to anyone who was present
at the scene. In fact, from the best the court can deter-
mine, he only reviewed photographs and reports from
the crime scene, from which he generated opinions of
possible alternative meanings to the evidence or alter-
native avenues of investigation that he would have
advised defense counsel to pursue. What was wholly
lacking, however, were any concrete scientific or fac-
tual findings that undermined the jury’s determination
of guilt in this case.’’
We agree with the habeas court’s conclusion that the
petitioner failed to show that he was prejudiced by the
failure of his trial counsel to consult or hire a forensic
expert. At best, Valentin’s testimony provided thoughts
on how he would have investigated the crime scene.
With respect to the condition of the victim’s body,
Valentin’s testimony merely demonstrated that the body
may have been moved slightly, which is consistent with
the state’s theory that Browning and the petitioner
robbed the victim after he had been incapacitated.7 With
respect to the bloodstained footprint, Valentin testified
only that it might be relevant without explaining why.
Finally, with respect to the bloodstains in the victim’s
car, Valentin merely suggested that the car should have
been investigated and the person whose DNA matched
with one of the bloodstains should have been inter-
viewed, but the petitioner did not provide any informa-
tion concerning what evidence these two actions would
have unearthed.8 Further, although the petitioner
asserts that an expert could have given important infor-
mation to his trial counsel, he failed to state how such
information would have impacted the case. None of the
petitioner’s evidence, especially in light of the court’s
determination that the expert’s testimony ‘‘was neither
compelling nor enlightening,’’ demonstrates a reason-
able probability that, had trial counsel hired an expert,
the outcome of the proceedings would have been differ-
ent. See Schuler v. Commissioner of Correction, supra,
200 Conn. App. 617.
Accordingly, we conclude that the habeas court prop-
erly determined that the petitioner failed to establish
prejudice and, therefore, did not abuse its discretion
by denying the petition for certification to appeal as to
this claim.
C
The petitioner’s final claim of ineffective assistance
is that his trial counsel failed to conduct a timely and
thorough investigation. Specifically, the petitioner argues
that his trial counsel should have followed up on the
police’s ‘‘handling of the victim’s car’’ and the blood-
stains found inside the car. We address each specific
allegation separately.
1
The petitioner argues that his trial counsel should
have investigated what happened to the victim’s car
after it was in police custody and that, if his trial counsel
had done so, he would have discovered relevant infor-
mation supporting the claim of inadequate police inves-
tigation and ‘‘thereby establish[ing] reasonable doubt.’’9
The respondent argues, inter alia, that this claim is not
reviewable because it was not (1) raised in the habeas
petition, (2) addressed in the petitioner’s posttrial brief,
and (3) addressed by the habeas court in its memoran-
dum of decision denying the petition for a writ of habeas
corpus. We agree with the respondent.
In the petition for a writ of habeas corpus, the peti-
tioner alleges that his trial counsel rendered deficient
performance because, inter alia, ‘‘[h]e failed to conduct
a timely and thorough investigation.’’ Although the peti-
tioner specifically references the failure of his trial
counsel ‘‘to follow up on the information regarding the
bloodstain[s] on the seat[s] of the victim’s car that was
seized by the police at the time of the crime,’’ he did
not include any allegation that his trial counsel was
ineffective for failing to investigate what happened to
the car after it entered police custody. In his posttrial
brief, the petitioner, with respect to the argument that
his trial counsel failed to conduct a timely and thorough
investigation, argued only that his trial counsel failed
to ‘‘pursue information regarding the bloodstains’’ and
failed to ‘‘pursue the issue of the blood swabbings.’’
Unsurprisingly, the habeas court did not address any
claim that the petitioner’s trial counsel should have
investigated the police’s ‘‘handling of the victim’s car.’’
‘‘It is well settled that this court does not consider
claims not raised in the habeas court.’’ Toles v. Commis-
sioner of Correction, 113 Conn. App. 717, 730, 967 A.2d
576, cert. denied, 293 Conn. 906, 978 A.2d 1114 (2009);
see id., 729–30 (claim of ineffective assistance was not
reviewed because it was not included in operative peti-
tion or posttrial brief and was not ruled on by habeas
court). In addition, a claim is not reviewable when ‘‘not
raised sufficiently in the habeas court.’’ Id., 730; see also
id. (specific claim of ineffective assistance not reviewed
because habeas court considered only ‘‘broad allegation
concerning [attorney’s] ‘failure to investigate’ ’’). Fur-
ther, ‘‘[i]t is well settled that this court is not bound to
consider any claimed error unless it appears on the
record that the question was distinctly raised at trial
and was ruled upon and decided by the court adversely
to the appellant’s claim.’’ (Internal quotation marks
omitted.) Walker v. Commissioner of Correction, 176
Conn. App. 843, 857–58, 171 A.3d 525 (2017); see id.(due process claim deemed abandoned because not
addressed in posttrial briefing and not addressed by
habeas court).
In the present case, given that this particular claim
was never distinctly raised before or addressed by the
habeas court, we decline to review this claim.
2
With respect to the petitioner’s claim that his trial
counsel ‘‘failed to follow up on information regarding
bloodstains on the seat[s] of the victim’s vehicle that
were seized by the police at the time of the crime,’’ the
habeas court determined that the petitioner failed to
make the required showing of prejudice.10 Specifically,
the court stated: ‘‘[T]he petitioner has failed to present
any evidence that the victim’s vehicle, or anything inside
of it, bore any material relationship to the crime. There
appears to be no dispute that the victim, [Browning,
and the petitioner] drove to the scene in an unrelated
vehicle, that the keys to the victim’s car were found
near his body, or that the victim’s car was locked when
the police later located it. Other than the fact that these
two blood samples were inside the victim’s vehicle, the
petitioner has provided no rational connection between
them and [the victim’s] murder. Finally, while Ferrer
was identified as the likely source of one of the blood-
stains, the petitioner has provided no credible evidence
establishing when that sample was deposited in the car
or placing Ferrer even within the state of Connecticut
at the time of the crime. Therefore, even if the court
were to assume that counsel should have followed up
on this line of inquiry independently, the petitioner did
not suffer any prejudice, because the information is
irrelevant to the case.’’ (Footnote omitted.) The court
also emphasized that the petitioner’s own testimony at
the habeas trial ‘‘supports the irrelevance of anything
found inside of [the victim’s] car,’’ as the petitioner
never mentioned the victim’s car or any unknown indi-
vidual in his testimony about the night of the murder.
On appeal, the petitioner argues that the bloodstains
inside the car were relevant because the police obtained
a warrant to inspect the car and had the bloodstains
tested for DNA, determining that the blood was not
the victim’s. Further, the petitioner asserts that it was
relevant because his forensic science expert testified
at the habeas trial that ‘‘who was in [the victim’s car]
with [the victim], what happened there, that’s all a mat-
ter for investigation.’’ The respondent argues that the
petitioner cannot show prejudice because he failed to
link the car and the bloodstains in it to the murder. We
agree with the respondent.
The petitioner’s argument requires us to assume that,
because the car was within the vicinity of the murder
and because the car had blood in it that matched with
someone in the CODIS system, it was somehow associ-
ated with the murder. Without more evidence, however,
we cannot so assume. Given the habeas court’s findings,
namely, that the victim arrived at the scene in a different
vehicle, the keys to the vehicle were found on the vic-
tim’s body, and the car was found locked, and given
the fact that the petitioner presented no evidence con-
necting Ferrer to the murder—in fact, the petitioner
presented no evidence about Ferrer whatsoever aside
from the ‘‘hit notification’’ that included his name—it
would be impossible to determine that, had the petition-
er’s trial counsel followed up on the bloodstains and
subsequently procured the ‘‘hit notification,’’ the crimi-
nal trial could have had a different outcome. See Holley
v. Commissioner of Correction, 62 Conn. App. 170, 175,
774 A.2d 148 (2001) (‘‘The burden to demonstrate what
benefit additional investigation would have revealed is
on the petitioner. . . . [See] Nieves v. Commissioner
of Correction, [supra, 51 Conn. App. 624] (petitioner
could not succeed on claim of ineffective assistance on
basis of counsel’s failure to conduct proper investiga-
tion in absence of showing that he was prejudiced by
counsel’s failure to interview witnesses) . . . .’’ (Cita-
tion omitted.)).
Accordingly, we conclude that the habeas court prop-
erly determined that the petitioner failed to prove that
he was prejudiced and, therefore, did not abuse its
discretion by denying the petition for certification to
appeal as to this claim.
IV
The petitioner next claims that his rights to due pro-
cess and to a fair trial were violated by the prosecutor’s
failure to disclose material evidence that was favorable
to the defense in accordance with Brady v. Maryland,
supra, 373 U.S. 83. Specifically, he claims that the state
failed to disclose (1) exculpatory DNA evidence and
(2) a transcript from a separate criminal proceeding
that would have served as impeachment evidence. We
address each of the petitioner’s claims in turn.
A
The petitioner first claims that the state improperly
failed to provide the defense with ‘‘[e]vidence that another
convicted felon’s blood was in the car of the victim’’
in violation of Brady v. Maryland, supra, 373 U.S. 83.
We disagree.
At the habeas trial, Bourke, the forensic examiner,
testified that the ‘‘hit notification,’’ which identified Fer-
rer as a DNA match with a sample taken from one of
the car seat bloodstains, was sent to the agencies that
investigated and prosecuted the crime, specifically, the
police department, the prosecutor, and the major
crimes unit. The habeas court determined that ‘‘[t]here
was no evidence that [the petitioner’s trial counsel] ever
received a copy of the hit notification form or that he
was aware of its existence.’’
In denying the petitioner’s amended petition for a
writ of habeas corpus, the habeas court determined that
‘‘the petitioner cannot establish a reasonable probabil-
ity that this evidence would have had any impact on the
outcome of his case or the establishment of a defense
theory,’’ noting, ‘‘the petitioner has not established any
reasonable connection between the bloodstains on the
seat[s] and the victim’s murder, nor has he placed . . .
Ferrer near the scene of the crime.’’
On appeal, the petitioner argues that the DNA match
was material because ‘‘the fact that another person’s
blood was in the vehicle’’ ‘‘undermines [Browning’s]
version of the crime,’’ but he does not elaborate on how
this information undermines Browning’s account. The
respondent argues that ‘‘the petitioner has failed to
establish that the blood evidence was material,’’ as (1)
the blood was not at the crime scene but was in the
victim’s locked car some distance from the crime scene,
(2) the blood was dry, (3) the victim only recently had
purchased the car, and (4) the petitioner did not present
testimony from Ferrer nor did he present any evidence
linking Ferrer to the crime. We agree with the respon-
dent.
We first set forth the standard of review applicable
to Brady claims. ‘‘As set forth by the United States
Supreme Court in Brady v. Maryland, supra, 373 U.S.
87, [t]o establish a Brady violation, the [defendant] must
show that (1) the government suppressed evidence, (2)
the suppressed evidence was favorable to the [defen-
dant], and (3) it was material [either to guilt or to punish-
ment]. . . . Whether the [defendant] was deprived of
his due process rights due to a Brady violation is a
question of law, to which we grant plenary review.’’
(Internal quotation marks omitted.) State v. Bryan, 193
Conn. App. 285, 315, 219 A.3d 477, cert. denied, 334
Conn. 906, 220 A.3d 37 (2019).
‘‘Under the last Brady prong, the evidence must have
been material to the case, such that the favorable evi-
dence could reasonably be taken to put the whole case
in such a different light as to undermine confidence in
the verdict. . . . The mere possibility that the undis-
closed information might have helped the defense or
might have affected the outcome of the trial does not
meet the materiality standard. . . .
‘‘The favorable evidence must cast the whole case in
a different light. It is not enough for the defendant to
show that the undisclosed evidence would have allowed
the defense to weaken or destroy a particular prosecu-
tion witness or item of evidence to which the undis-
closed evidence relates.’’ State v. Rosa, 196 Conn. App.
480, 503–504, 230 A.3d 677, cert. denied, 335 Conn. 920,
231 A.3d 1169 (2020); see id., 504, 506 (CODIS match
with DNA found on sweatshirt was not material because
there was no testimony that person who committed
crime was wearing sweatshirt, ‘‘the sweatshirt was not
found at the actual crime scene but more than half a
block away,’’ ‘‘[t]here [wa]s no evidence to indicate how
long the sweatshirt had been there or that it was even
present when the police first responded to the crime
scene,’’ there was no other evidence connecting
sweatshirt to crime, and petitioner could not connect
person identified in CODIS match to crime).
In the present case, we agree with the habeas court
that the petitioner has failed to show that the CODIS
match was material to his defense. The car that con-
tained the bloodstains was not found at the crime scene
but on a nearby street. There is no evidence that the
victim or anyone else associated with the murder was
in or near the car that night. There is no evidence estab-
lishing how long the car had been parked there. There
is no indication that the victim’s murder is connected
to the victim’s car or that the blood was left during or
as a result of the murder—indeed, there was no evi-
dence to suggest that the bloodstains occurred near the
time of the murder. Further, the petitioner presented
no evidence connecting Ferrer to the crime or the crime
scene. Finally, as the habeas court stated, ‘‘[t]he peti-
tioner’s own testimony at the habeas trial supports the
irrelevance of anything found inside of [the victim’s]
vehicle. . . . Nowhere in his testimony did the peti-
tioner reference anything to do with the [victim’s] vehi-
cle, nor did he ever reference any ‘unknown male’ sup-
posedly being in the vehicle with them or at the scene
of the shooting.’’
Thus, because the petitioner cannot establish a con-
nection between the murder and the bloodstains, the
evidence of the CODIS match does not satisfy Brady’s
materiality test. See State v. Rosa, supra, 196 Conn.
App. 504;11 see also Carmon v. Commissioner of Cor-
rection, 114 Conn. App. 484, 492, 969 A.2d 854 (Counsel
was not deficient for failing to investigate cartridge box
that ‘‘was not found at the crime scene, and there was
no evidence as to when or how it was deposited in
the area . . . . The box was empty, the caliber of the
ammunition that had been contained in that box was
unknown, there was no eyewitness testimony that the
shooter had been seen taking cartridges from a box,
and there was no testimony or evidence linking that
box to the crime scene.’’ (Footnote omitted.)), cert.
denied, 293 Conn. 906, 978 A.2d 1108 (2009).
Accordingly, we conclude that the habeas court prop-
erly determined that the petitioner failed to establish
materiality and, therefore, did not abuse its discretion
by denying the petition for certification to appeal as to
this claim.
B
Finally, the petitioner claims that the state committed
a Brady violation by failing to disclose, as impeachment
evidence, certain testimony Browning gave in a sepa-
rate, prior criminal trial, State v. Holbrook, Superior
Court, judicial district of Fairfield, Docket No. CR-00-
0163353-T (Holbrook case). We agree with the respon-
dent that this claim is unreviewable because the habeas
court correctly concluded that it was abandoned.
In his petition for a writ of habeas corpus, the peti-
tioner alleged that his ‘‘due process rights in [the under-
lying criminal case] were violated because the state had
information that [Browning], the only witness who put
the petitioner at the scene of the crime, had previously
testified in [the Holbrook case]. . . . At that time
[Browning] admitted that he had lied under oath . . .
and said he would lie to protect himself. This informa-
tion was not disclosed to trial or appellate counsel.’’
At the habeas trial, the petitioner sought to admit the
transcript of Browning’s testimony in the Holbrook case
as a full exhibit, but the court sustained the respon-
dent’s objection.12 Following the trial, the petitioner
did not address the claim in his posttrial brief and,
therefore, presented no argument as to why the state’s
failure to provide the testimony violated his due process
rights. In its memorandum of decision, the court
deemed the claim abandoned, stating that ‘‘[t]he peti-
tioner failed to address this issue at all in his posttrial
brief’’ and citing Walker v. Commissioner of Correction,
supra, 176 Conn. App. 856, to support its conclusion
that the claim was abandoned.
‘‘It is well settled that [w]e are not required to review
issues that have been improperly presented to this court
through an inadequate brief. . . . Analysis, rather than
mere abstract assertion, is required in order to avoid
abandoning an issue by failure to brief the issue prop-
erly. . . . Where a claim is asserted in the statement
of issues but thereafter receives only cursory attention
in the brief without substantive discussion or citation
of authorities, it is deemed to be abandoned. . . .
These same principles apply to claims raised in the trial
court. . . .
‘‘[T]he idea of abandonment involves both a factual
finding by the trial court and a legal determination that
an issue is no longer before the court, [therefore] we
will treat this claim as one of both law and fact. Accord-
ingly, we will accord it plenary review.’’ (Citation omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) Id.As noted, in the present case the petitioner did not
address this claim in his posttrial brief and provided
no support for or reference to the claim in his habeas
petition. Furthermore, the petitioner has not contested
or addressed the court’s conclusion that the claim was
abandoned and has provided us with no reasons as to
why the habeas court erred in so finding. On these facts,
we conclude that the habeas court properly deemed
the claim abandoned.
The appeal is dismissed.
In this opinion the other judges concurred.
1
Practice Book § 23-36 provides that ‘‘[a] party may, consistent with the
rules of evidence, offer as an exhibit, or the habeas court may take judicial
notice of, the transcript and any portion of the Superior Court, Appellate
Court or Supreme Court record or clerk’s file from the petitioner’s criminal
matter which is the subject of the habeas proceeding.’’
2
In so ruling, the court stated: ‘‘I mean, here’s the thing, counsel—and I
get that there’s a Practice Book section. And I’ll put the record out this
way. You can submit—and I know the Practice Book section allows the
expanded record to be submitted. Here’s my view and I’ve written on this.
It is not my job as the judge to search through the evidence to find things
that support any lawyer’s claims. So, to the exten[t] you are admitting the
underlying record, you will still need to point the court to the parts of that
record that are relevant and you believe support the claims that you make
because otherwise I then step into the role of advocate or taking position
for one side or the other as opposed to somebody saying to me, ‘This
particular piece of evidence, Your Honor, supports my claim of X.’ So I
don’t know that I can stop you from saying I want the court as a matter of
record to consider the underlying trial record. But, to the extent you believe
any of that is relevant, you’re going to want to address it. . . . [A]nything
can be part of the record. What I’m telling is this is as I said it’s not the
court’s job to sift through the record to find things. So to the extent that
you’re entering the exhibits from the underlying trial, that’s great. Your job
is going to be this particular piece of evidence, Judge, is relevant to my
claim because X, not my job to look through the record and go, ‘Oh, this
is kind of neat; I think this is relevant,’ or ‘I think I should give them points
for this.’ That’s all I’m saying. So, the record is what it is, and the record’s
always going to be what it is. It’s counsel’s job to marshal that evidence
and to tell me how they are claiming it should be used. And just saying,
‘Here’s the record, Judge; I think the record as a whole supports my position.’
That’s not the court’s job.’’
3
Peter Valentin, a lecturer at the Forensic Science Department of the
University of New Haven, testified as a forensic science expert on the
petitioner’s behalf. The habeas court specifically determined that his testi-
mony ‘‘was neither compelling nor enlightening.’’ See part III B of this opin-
ion.
4
‘‘CODIS contains DNA profiles from unsolved crimes and compares them
to known samples from convicted felons that are periodically added to the
database. See, e.g., State v. Webb, 128 Conn. App. 846, 852–53 n.3, 19 A.3d
678, cert. denied, 303 Conn. 907, 32 A.3d 961 (2011).’’ State v. Rodriguez,
337 Conn. 175, 180 n.2, 252 A.3d 811 (2020).
5
Valentin specifically testified: ‘‘[I]n the photograph on the right side of
the image there is a large—there’s a collection of blood adjacent to a baseball
cap. That is inconsistent toward—it is not in the same position as the
decedent was found or as he’s photographed here. Additionally, there is a
smaller blood stain in the vicinity of the decedent’s left arm that also suggests
some movement after the injury occurred. And then there’s also some—
there are additional stains in the vicinity of that what I would call a linear
pattern near his arm that also are suggestive of movement.’’
6
Specifically, Valentin testified that he ‘‘would have suggested to [trial]
counsel that the distance that that bloodstain is from the cluster of activity
for lack of a better way of describing it where [the victim’s] body was
located suggests that that stain has relevance because my assessment would
be that there’s essentially two ways for that bloodstain to get there or there’s
two sources for that blood. Either that blood is [the victim’s] blood and it
has been brought to that location twenty some odd feet away from the
scene because it was on an object or that blood belongs to somebody who
was bleeding at a time recently because the snow would suggest temporally
when that would have occurred.’’
7
In discussing another claim, the habeas court noted that evidence regard-
ing the condition of the victim’s body supported the state’s theory at trial
that the petitioner and Browning robbed the victim after he was killed.
8
In addition, this testimony did not take into account the fact that the
petitioner’s trial counsel was not informed about the DNA match to the
bloodstain; see part IV A of this opinion; nor did it contemplate the fact it
was undisputed that the car had been destroyed by the time trial counsel
started representing the petitioner.
9
In making this argument, the petitioner points to information that his
trial counsel would have discovered, had he conducted a ‘‘proper investiga-
tion.’’ The habeas court, however, excluded the evidence purporting to
establish what his trial counsel would have discovered. Although the peti-
tioner notes in his principal appellate brief that ‘‘[i]nformation regarding
what happened to the victim’s car after it was impounded by the police was
improperly excluded,’’ he did not raise a claim of error with respect to this
ruling on appeal.
10
The court also determined that the petitioner failed to prove that his
trial counsel’s performance was deficient. Because we agree that the peti-
tioner failed to prove prejudice, we need not consider the court’s determina-
tion concerning trial counsel’s deficient performance. See Schuler v. Com-
missioner of Correction, supra, 200 Conn. App. 617.
11
The petitioner attempts to distinguish Rosa, arguing that the evidence
in the present case ‘‘was definitely connected to the crime’’ because the car
belonged to the victim while the sweatshirt in Rosa ‘‘was not connected to
the crime’’ and that the state’s case was not strong in the present case
while ‘‘there was strong evidence inculpating the defendant’’ in Rosa. These
arguments are unavailing.
First, the fact that the vehicle belonged to the victim is not enough to
connect it to the crime, as mere ownership and some proximity to the crime
scene do not in and of themselves implicate the vehicle’s involvement.
Second, the court in Rosa determined that the sweatshirt was not connected
to the case because of the collective facts. State v. Rosa, supra, 196 Conn.
App. 504, 509. Similarly, in the present case, the collective facts result in a
conclusion that the car is not connected to the case. Further, in Rosa, the
‘‘strong evidence inculpating the defendant’’ was only one factor of many
bearing on the determination that the sweatshirt was not material to the
case. Id., 509.
12
The petitioner has not raised on appeal a claim that the court erred in
excluding from evidence the transcript of Browning’s testimony from the
Holbrook case.