Fair v. Commissioner of Correction

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MARCUS FAIR v. COMMISSIONER
OF CORRECTION
(AC 43583)
Prescott, Cradle and Suarez, Js.
Syllabus
The petitioner, who had been convicted of murder and criminal possession
of a firearm, sought a writ of habeas corpus, claiming that his trial
counsel provided ineffective assistance. Following an evidentiary hear-
ing, the habeas court denied the petition, concluding that the petitioner
had failed to demonstrate that his trial counsel had acted deficiently by
failing to present certain expert testimony or to impeach a testifying
witness, M, regarding M’s alleged motivation to testify untruthfully, and
that any failure on behalf of the petitioner’s trial counsel to impeach M
with respect to M’s conflicting statements regarding the identification
of the shooter did not prejudice the petitioner. 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 peti-
tioner having failed to demonstrate that the issues raised in his petition
were debatable among jurists of reason, that the court could have
resolved the issues in a different manner or that the questions were
adequate to deserve encouragement to proceed further; the petitioner
failed to demonstrate that he was prejudiced by the alleged deficient
performance of his trial counsel, as the petitioner failed to demonstrate
that the outcome of his trial would have been different if his trial counsel
had presented evidence about the Jamaican etymology of a term that
was allegedly used by the shooter when he fired his weapon, as there
was no evidence that the term could be used only by a person of Jamaican
descent and, in light of the evidence presented at trial that the shooter
was wearing a Jamaican hat and fake dreadlocks, the jury could have
inferred that the petitioner used the term in an effort to conceal his
identity; moreover, the petitioner failed to present any credible evidence
in support of his theory that M agreed to cooperate with the police to
avoid criminal liability and also failed to demonstrate that any further
inquiry into the matter was likely to have affected the jury’s assessment
of M’s testimony; furthermore, the petitioner failed to demonstrate that
he was prejudiced by his trial counsel’s alleged failure to impeach M
concerning the fact that M had made inconsistent statements to the
police regarding the shooter’s identity, as these statements were pre-
sented to the jury during the criminal trial and the state presented
proof, independent of M’s testimony, of the petitioner’s guilt beyond a
reasonable doubt.
Argued February 8—officially released June 15, 2021
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, Hon. Samuel S. Sfer-
razza, judge trial referee; judgment denying the peti-
tion; thereafter, the court denied the petition for certifi-
cation to appeal, and the petitioner appealed to this
court. Appeal dismissed.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was William A. Adsit, assigned counsel, for
the appellant (petitioner).
Melissa E. Patterson, senior assistant state’s attor-
ney, with whom, on the brief, were Sharmese Walcott,
state’s attorney, and Michael Proto, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
SUAREZ, J. The petitioner, Marcus Fair, appeals, fol-
lowing the denial of his petition for certification to
appeal, from the judgment of the habeas court denying
his third amended petition for a writ of habeas corpus.
The petitioner claims that the habeas court abused its
discretion by denying his petition for certification to
appeal because he demonstrated that he was deprived
of his right to the effective assistance of counsel during
his underlying criminal trial. We conclude that the
habeas court did not abuse its discretion in denying the
petition for certification to appeal and, accordingly,
dismiss the appeal.
In 2005, the petitioner was convicted, following a jury
trial, of murder in violation of General Statutes (Rev.
to 2003) § 53a-54a (a) and criminal possession of a fire-
arm in violation of General Statutes (Rev. to 2003) § 53a-
217 (a) (1). Following his conviction, the petitioner was
sentenced by the trial court, Espinosa, J., to a total
effective term of sixty-five years of imprisonment. In an
unsuccessful direct appeal to this court, the petitioner
raised a claim of instructional impropriety and a claim
that the trial court had abused its discretion in excluding
evidence of prior inconsistent identification statements.
State v. Fair, 104 Conn. App. 519, 522, 525, 935 A.2d
196 (2007).
The following facts, as described by this court in its
decision on the petitioner’s direct appeal, are relevant
to this appeal. ‘‘In the late evening of January 13, 2004,
Dwayne Knowlin and Joshua Mims left Knowlin’s home
on Nelson Street in Hartford to get something to eat.
As they walked home, the [petitioner] approached. The
[petitioner] wore a black mask that concealed his head;
his face was visible from his lips to his eyebrows. The
[petitioner] stopped in front of Knowlin and Mims, took
out a black revolver and opened fire. Knowlin and Mims
immediately ran. After jumping a fence and with the
[petitioner] no longer in sight, Knowlin collapsed,
informing Mims that he was shot. Knowlin’s breathing
became labored, and Mims called for an ambulance.
Knowlin died that evening.1
‘‘The next day, Howard Fair, the uncle of the [peti-
tioner], heard rumblings from family members that the
[petitioner] was involved in the shooting. He confronted
the [petitioner], who admitted to shooting Knowlin. The
[petitioner] explained that he ‘had a beef’ with the ‘kids
on Nelson Street’ and alleged that they had shot at him
and his cousin a month earlier. The [petitioner] told his
uncle that he wanted revenge. As Howard Fair
recounted, the [petitioner] stated that ‘he was going to
get back at them, no one in particular, just said he’s
gonna, you know, they shot at him so he’s going to go
shoot back at them.’ Fearing for his nephew’s safety,
Howard Fair encouraged the [petitioner] to turn himself
in to the authorities. On January 16, 2004, the [peti-
tioner] and his uncle entered the Harford [P]olice
[D]epartment. At that time, Howard Fair gave a state-
ment implicating the [petitioner] in Knowlin’s death,
and the [petitioner] was arrested. The police subse-
quently presented a photographic array to Mims, who
immediately identified the [petitioner] as the shooter.
At trial, Mims testified that he had known the [peti-
tioner] for approximately five years and that he
observed the [petitioner’s] face ‘a whole minute’ before
the shooting.’’ (Footnote in original.) Id., 521–22.
We note that, in addition to the foregoing facts, which
were consistent with the state’s theory of the case, there
was also evidence before the jury of the following facts.
On the night of the shooting, the petitioner wore a
yellow, green, and red hat with fake dreadlocks
attached to it. As the petitioner approached Knowlin
and Mims, Mims heard someone ask the petitioner if
he was ‘‘Budda.’’ Another person replied, ‘‘no, that ain’t
Budda, that’s Blirt.’’ As the petitioner fired the gun, he
said ‘‘bumbaclot.’’
When the police arrived at the scene, Sylvia Hernan-
dez, a patrol officer for the Hartford Police Department,
questioned Mims about what had occurred. Mims did
not initially identify the petitioner as the shooter but
told Officer Hernandez that the shooter was a black
male with a medium complexion. Mims repeatedly
stated that the shooter was wearing a ‘‘Jamaican hat.’’
Officer Hernandez then asked Mims if the shooter was
a Hispanic, black, or Jamaican male. Mims replied that
he thought the shooter was a Jamaican male. The police
then transported Mims to the police station where he
provided a sworn, written statement about what hap-
pened, along with a description of the shooter.
During the course of the investigation of the shooting,
the police recovered a baggie containing a black pow-
dery substance in the driveway of 8 Clay Street, close
to the location where first responders found Knowlin.
The police did not test the powder or the baggie, nor
did they investigate who, if anyone, was in possession
of the baggie at the time of the shooting.
On January 14 and 15, 2004, Detective Robert Davis of
the Hartford Police Department received six voicemails
from multiple anonymous persons who believed that
the petitioner was involved in the shooting. On the basis
of these voicemails, in which the callers included the
petitioner’s name and nickname, Detective Davis identi-
fied the petitioner as a suspect in the shooting.
On the evening of January 16, 2004, Howard Fair,
accompanied by the petitioner, voluntarily went to the
Hartford police station. Detective Davis had not made
any attempt to locate the petitioner, nor did he request
that the petitioner come to the police station. Detective
Davis spoke to Howard Fair for approximately fifteen
or twenty minutes before Howard Fair provided Davis
with a sworn, written statement implicating the peti-
tioner in Knowlin’s death.2
On March 16, 2011, the petitioner, as a self-repre-
sented litigant, commenced the present habeas action.
On March 6, 2012, the court appointed habeas counsel.
On August 13, 2015, the petitioner, through counsel,
filed a third amended petition for a writ of habeas cor-
pus. The petitioner alleged that his confinement is
unlawful because the representation afforded him by
his trial counsel, Robert Meredith and Michael Isko,
‘‘was not within the range of competence displayed
by lawyers with ordinary training and skill,’’ and that,
‘‘[t]here [was] a reasonable probability that ‘but for’
[their] errors and omissions . . . the outcome of the
petitioner’s trial would have been different.’’3 In his
posttrial brief, the petitioner focused on the allegations
that his trial counsel failed (1) ‘‘to introduce all the
prior inconsistent statements of Mims regarding the
description of the shooter,’’ (2) ‘‘to offer expert testi-
mony as to Jamaican slang to impeach Mims and point
to third party culpability,’’ (3) ‘‘to offer expert testimony
regarding the effects of phencyclidine (PCP), also
known as ‘angel dust,’ as those effects bear on dimin-
ished capacity to form requisite intent and as to the
reliability of the petitioner’s confessions,’’ and (4) ‘‘to
demonstrate Mims’ motivation to cooperate with the
police and falsely identify the petitioner as the shooter.’’
On July 7, 2017, and August 20, 2019, the habeas
court, Hon. Samuel S. Sferrazza, judge trial referee,
presided over the habeas trial. The petitioner called
two witnesses to testify, private investigator Ken Novi
and Officer Hernandez. Novi testified in relevant part
about the meaning of the word ‘‘bumbaclot’’ and stated
that it was a ‘‘Jamaican slang term.’’ He also testified
that he spoke to the petitioner during his investigation
and that the petitioner spoke ‘‘Americanized English’’
and did not speak with a Jamaican accent. The petition-
er’s counsel examined Officer Hernandez,4 in relevant
part, about the description that Mims provided to her
on the night of the shooting. She was unable to recall
the details of Mims’ statement. The petitioner’s counsel
asked a litany of questions about the murder investiga-
tion, to which Officer Hernandez repeatedly answered
that she did not remember the details of the investiga-
tion. The petitioner’s counsel showed Officer Hernan-
dez a police report that she prepared about the murder,
and she testified that it did not refresh her recollection
of the investigation.
On October 4, 2019, in a thorough memorandum of
decision, the habeas court denied the third amended
petition for a writ of habeas corpus. First, the court
rejected the claim that the petitioner’s trial counsel
rendered deficient performance by virtue of the fact
that they failed to present expert testimony concerning
the effects of PCP use in an effort to undermine the
reliability of the petitioner’s confession to Howard Fair.5
The court, observing that the petitioner failed to present
expert testimony of such nature during the habeas trial,
concluded that the petitioner failed to demonstrate
what expert testimony would have been available to
his trial counsel at the time of trial and, thus, had failed
to demonstrate that they had acted deficiently in failing
to present such evidence.
Next, the court addressed the claim that the petition-
er’s trial counsel rendered deficient performance in fail-
ing to impeach Mims regarding his motivation to testify
untruthfully. Specifically, the petitioner argued that his
trial counsel failed to establish that Mims’ identification
and trial testimony was influenced by his expectation
of favorable treatment by the police. This argument was
related to the discovery of the baggie containing a black
powder by the police, near the location where first
responders found Knowlin. The court stated: ‘‘Defense
counsel unsuccessfully attempted to cross-examine
Mims regarding whether he expected to receive some
benefit in the form of the police ignoring the discovery
of a baggie containing a black powder close to the
victim’s body . . . . The trial judge sustained the
state’s objection to this line of questioning because of
an insufficient nexus between Mims and the baggie to
support an inference of favorable treatment by the
police in exchange for Mims’ identification of the peti-
tioner as the shooter.’’ The court further stated: ‘‘The
trial judge did allow cross-examination as to whether
the police inquired of Mims about the baggie. Mims
testified that the police never mentioned that discovery
at all. It should be recalled that at the time the baggie
was seized, Mims refused to disclose that he knew who
shot his friend. That identification came about one
week later.
‘‘No credible evidence was adduced at the habeas
trial to support the petitioner’s suspicion on this point.
Mims conceded he withheld pertinent information from
the police on the night of the homicide. The police
received [evidence concerning] the petitioner’s admis-
sions a few days later without any assistance from
Mims. Mims’ later identification of the petitioner was
not the basis for the petitioner’s arrest, but simply con-
firmed the veracity of the petitioner’s multiple admis-
sions to the crime.
‘‘Also, defense counsel adequately cross-examined
Detective Gregory Gorr [of the Hartford Police Depart-
ment] about whether the baggie or its contents were
subjected to testing or further investigation. Detective
Gorr acknowledged that they were not. The court finds
that the petitioner has failed to prove deficient perfor-
mance as to this specification of ineffective assistance.’’
(Emphasis in original.)
Next, the court addressed the petitioner’s remaining
allegations of deficient performance, all of which were
related to his trial counsel’s alleged failure to adequately
impeach Mims with respect to aspects of his identifica-
tion of the petitioner as the shooter. The court observed
that the petitioner’s arguments focused on the fact that,
on the night of the shooting, Mims failed to identify the
petitioner, described the shooter as a Jamaican male,
and stated that the shooter was wearing a black mask.
The petitioner also attached great significance to Mims’
statement that the shooter had used the term ‘‘bum-
baclot.’’ The petitioner argued that if his trial counsel
had presented evidence concerning the etymology of
that term, it would have tended to cast doubt on the
accuracy of the identification. The court rejected all of
these arguments on the ground that, even if deficient
performance was rendered by the petitioner’s trial
counsel, it did not prejudice the petitioner.
The court observed that, at the habeas trial, the peti-
tioner presented evidence that the term ‘‘bumbaclot’’
was ‘‘a highly offensive Rastafarian insult’’ but that
‘‘[d]efense counsel [at the time of the criminal trial]
never produced expert testimony as to its meaning or
culture of origin. In other words, the jury was never
informed that the term was Jamaican slang.’’ The court
stated: ‘‘At the criminal trial, Mims testified that he had
heard the word previously, although he did not know
its precise meaning. The petitioner argues that, had
the jury known the term was Jamaican, it would have
discredited Mims’ identification of the petitioner, who
is not Jamaican, and cast doubt on the petitioner’s con-
fession.’’
The court rejected that conclusion and stated: ‘‘Mims
also testified that the shooter wore a . . . dreadlock
wig and hat. That is, the shooter appeared to imperson-
ate a person of Jamaican background. The use of a
Jamaican insult is also consistent with Mims’ testimony
on that issue. Under the particular circumstances
before the jury in the petitioner’s case, such testimony
was not unequivocally exculpatory or even signifi-
cantly so.’’
The court further stated: ‘‘Although in his testimony
Mims denied that he initially described the shooter as
Jamaican, the jury heard the evidence through a police
witness that he had. Mims explained that he only char-
acterized the perpetrator’s hat as Jamaican and not the
person wearing it. In any event, the jury knew that Mims
admitted [to] deceiving the police on the night of the
shooting.
‘‘The petitioner also tried to attach importance to
the fact that Mims originally described the shooter as
wearing a black mask, without modifying that descrip-
tion as a football type mask. The court regards that
omission as trivial. . . .
‘‘Also, Mims’ description of the shooter as dressed in
black and of medium complexion carries little probative
weight. Mims acknowledged trying to deceive the police
about the fact [that] he knew the shooter. He admitted
he failed to tell the police about the fake dreadlocks. His
initial description was rather nondescript; no distinctive
clothing; medium complexion.
‘‘In his posttrial brief, the petitioner characterized
Mims as the ‘crux’ of the state’s case. This is an over-
statement of Mims’ role, although he was an important
witness. The crux of the [prosecution’s] case was the
petitioner’s multiple confessions to committing the
crime. . . . Mims’ testimony was confirmatory rather
than primary.6
‘‘There was no credible evidence proffered at the
habeas trial that Mims was coached to [identify] the
petitioner nor that Mims even knew the police had a
suspect in custody when he [selected] the petitioner’s
photograph as the shooter from the [photographic]
array ‘immediately.’ ’’ (Emphasis in original; footnote
added.)
On October 11, 2019, the habeas court denied the
petitioner’s certification to appeal. This appeal fol-
lowed.7 Additional facts and procedural history will be
set forth as necessary.
We begin by setting forth the legal principles and the
standard of review relevant to this claim. ‘‘Faced with
the habeas court’s denial of certification to appeal, a
petitioner’s first burden is to demonstrate that the
habeas court’s ruling constituted an abuse of discretion.
. . . A petitioner may establish an abuse of discretion
by demonstrating that the issues are debatable among
jurists of reason . . . [the] court could resolve the
issues [in a different manner] . . . or . . . the ques-
tions are adequate to deserve encouragement to pro-
ceed further. . . . The required determination may be
made on the basis of the record before the habeas court
and applicable legal principles. . . .
‘‘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 this court for
determining the propriety of the habeas court’s denial
of the petition for certification. Absent such a showing
by the petitioner, the judgment of the habeas court must
be affirmed. . . .
‘‘We examine the petitioner’s underlying claim[s] of
ineffective assistance of counsel in order to determine
whether the habeas court abused its discretion in deny-
ing the petition for certification to appeal. Our standard
of review of a habeas court’s judgment on ineffective
assistance of counsel claims is well settled. In a habeas
appeal, this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel 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. . . . Unless a [peti-
tioner] makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
. . . Because both prongs . . . must be established for
a habeas petitioner to prevail, a court may dismiss a
petitioner’s claim if he fails to meet either prong. . . .
‘‘To satisfy the performance prong [of the Strickland
standard] the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. . . . [A] court must indulge a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . . To satisfy the prejudice
prong, a claimant must demonstrate that there is a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. . . . A reasonable probability is a prob-
ability sufficient to undermine confidence in the out-
come. . . . In its analysis, a reviewing court may look
to the performance prong or to the prejudice prong,
and the petitioner’s failure to prove either is fatal to a
habeas petition.’’ (Citations omitted; internal quotation
marks omitted.) Anderson v. Commissioner of Correc-
tion, 201 Conn. App. 1, 11–13, 242 A.3d 107, cert. denied,
335 Conn. 983, 242 A.3d 105 (2020).
Although the petitioner argues that the court improp-
erly rejected his claim of ineffective assistance of coun-
sel, he has, in this appeal, narrowed the specific allega-
tions of ineffective representation on which he relies.
The petitioner focuses on his argument that his trial
counsel’s failure to reasonably impeach Mims’ identifi-
cation testimony constituted deficient performance and
that, ‘‘even in the face of [the petitioner’s] supposed
confession, properly discrediting Mims would have suf-
ficiently undermined confidence in the verdict, such
that the petitioner proved prejudice’’ before the habeas
court. In his brief to this court, the petitioner focuses
on only two claims from his third amended petition: that
his trial counsel failed (1) to ‘‘utilize available evidence
about the Jamaican patois word ‘bumbaclot’ to the
advantage of the petitioner’s defense’’ and (2) to ‘‘utilize
other available evidence to support the petitioner’s
defense by impeaching Mims . . . .’’8 We agree with
the habeas court that the petitioner failed to demon-
strate that he was prejudiced by the alleged deficient
performance on which he relies. Accordingly, we will
not address the performance prong of the Strickland
standard.
We first address the petitioner’s contention that he
was prejudiced by his trial counsel’s failure to produce
evidence about the word ‘‘bumbaclot.’’ Specifically, the
petitioner argues that his trial counsel failed to present
evidence of the word’s Jamaican origin, which could
have cast doubt on whether the petitioner, who is not
Jamaican, was the shooter. At the habeas trial, Novi
testified about the meaning of the word ‘‘bumbaclot’’
and its Jamaican etymology. Novi noted that, in the
neighborhood where the murder occurred, ‘‘there are
a lot of Jamaican restaurants, and there are . . . people
of Jamaican descent there.’’ At the criminal trial, Mims
testified that the petitioner lived in a neighborhood near
the location of the murder. At the criminal trial, Mims
testified that he ‘‘ha[d] no idea’’ what the word ‘‘bum-
baclot’’ meant but that he had heard the word before.
We agree with the habeas court that the facts to
which Novi testified were unlikely to have affected the
outcome of the trial. The essence of the petitioner’s
argument is that Novi’s testimony would have led the
jury to conclude that the petitioner, who is not of Jamiai-
can descent, would have been unlikely to have used
the term ‘‘bumbaclot.’’ The petitioner’s argument seems
to rest on the faulty premise that the term at issue could
be used only by a person of Jamaican descent. As the
habeas court observed, however, in light of the evidence
presented at the criminal trial that, at the time of the
shooting, the petitioner was wearing a mask, headwear
described as a ‘‘Jamaican hat,’’ and fake dreadlocks,
the jury could have inferred that the petitioner had used
the Jamaican term as part of an overall attempt to
conceal his identity. Thus, we agree with the habeas
court that, even if the jury heard testimony about the
meaning and origin of the word ‘‘bumbaclot,’’ it is
unlikely that this testimony would have affected the
outcome of the trial.
We next address the petitioner’s contention that he
was prejudiced by his trial counsel’s failure to ade-
quately impeach Mims on the basis of Mims’ prior incon-
sistent statements concerning the shooter and his
alleged desire to avoid criminal liability stemming from
the discovery by the police of the powdery substance
near the location where first responders found Know-
lin.9 We begin by addressing the claim that the petition-
er’s trial counsel rendered ineffective assistance by fail-
ing to adequately impeach Mims with respect to his
desire to avoid prosecution for the black substance.
We note that during Mims’ cross-examination at the
criminal trial, the petitioner’s counsel showed Mims a
picture of the baggie and asked him to confirm that he
was never charged with a crime in connection with it.
The state objected to this question on relevance
grounds, and, after a sidebar conference, the court
directed the petitioner’s counsel to rephrase the ques-
tion.10 The petitioner’s counsel then asked Mims if any-
one from the Hartford Police Department asked him
about a substance that was found in the driveway of 8
Clay Street, to which he replied ‘‘[n]o.’’ Shortly there-
after, the petitioner’s counsel cross-examined Detective
Gorr, who testified that the police did not test the baggie
for fingerprints or DNA. Detective Gorr also testified
that the police ‘‘didn’t have any reason to believe it
was related to [their] primary [crime] scene’’ on Nelson
Street.11 As the habeas court observed, the petitioner’s
trial counsel did attempt to pursue a line of inquiry
related to Mims’ motivation to cooperate with the police
but abandoned this strategy when it became clear that
the police did not connect the baggie to Mims and,
therefore, that he never faced criminal liability in con-
nection with its discovery. As the habeas court correctly
observed, there simply was no credible evidence pre-
sented in support of the petitioner’s theory at the crimi-
nal or habeas trials. Accordingly, the petitioner failed
to demonstrate that any further inquiry into this subject
by his trial counsel was likely to have affected the jury’s
assessment of Mims’ testimony.
Additionally, the petitioner is unable to demonstrate
that he was prejudiced by his trial counsel’s alleged
failure to impeach Mims concerning the fact that he
made prior inconsistent statements to the police con-
cerning the shooter. As the habeas court correctly
observed, Mims testified at the criminal trial that, on
the night of the shooting, he had deceived the police
by refusing to identify the petitioner as the shooter.
Thus, despite being provided with evidence that Mims
was initially deceptive in terms of identifying the peti-
tioner, the jury found the petitioner guilty of the crimes
with which he was charged.
We also agree with the habeas court that the petition-
er’s focus on efforts made by his trial counsel to under-
mine the accuracy of Mims’ identification of him as the
shooter overlooks the fact that, independent of Mims’
testimony, the state presented proof beyond a reason-
able doubt of his guilt. As the habeas court aptly
observed, the police had learned about the petitioner’s
involvement in the murder before Mims identified him
as the shooter. There was evidence before the jury that
Detective Davis first learned that the petitioner was a
suspect from the voicemails he received on January
14 and 15, 2004. On January 16, 2004, the petitioner
voluntarily arrived at the police station with Howard
Fair, who provided a statement that the petitioner had
confessed to him about his role in the shooting. The
jury heard ample testimony from Howard Fair about
the petitioner’s confession. Only after Detective Davis
received these anonymous tips and Howard Fair’s state-
ment did he present Mims with a photographic array
that included a photograph of the petitioner. Mims iden-
tified the petitioner from this photographic array within
a matter of seconds.12
We agree with the habeas court that Mims’ testimony
was an important aspect of the state’s case, yet, in light
of the totality of the evidence available to the jury, we
are not persuaded that the outcome of the case would
have been different had the petitioner’s trial counsel
impeached Mims in the manner prescribed by the peti-
tioner. Accordingly, we conclude that the petitioner
failed to demonstrate that he was prejudiced by his trial
counsel’s performance.
For the foregoing reasons, we conclude that the peti-
tioner has failed to demonstrate that the issues raised
in his petition for certification to appeal are debatable
among jurists of reason, that the court could resolve
the issues in a different manner, or that the questions
are adequate to deserve encouragement to proceed fur-
ther. Thus, the petitioner has failed in his burden of
demonstrating that the court’s denial of his petition for
certification to appeal reflected an abuse of discretion.
The appeal is dismissed.
In this opinion the other judges concurred.
1
‘‘Harold Wayne Carver II, the state’s chief medical examiner, testified
that the cause of Knowlin’s death was ‘a gunshot wound of the chest and
abdomen.’ ’’ State v. Fair, supra, 104 Conn. App. 521 n.3.
2
The defense presented evidence, through its cross-examination of How-
ard Fair, that, on January 14, 2004, the petitioner was under the influence
of phencyclidine (PCP) when he confessed to shooting Knowlin. Howard
Fair further testified that, on January 16, 2004, the petitioner was under the
influence of PCP when he was present at the Hartford police station. Howard
Fair also testified that he told the police that the petitioner was under the
influence of PCP both when they arrived at the police station and when the
petitioner confessed to him.
3
The petition also included a second count in which the petitioner asserted
a violation of his confrontation rights under the United States constitution.
In its memorandum of decision denying the petition, the habeas court stated
that ‘‘the petitioner never discussed that claim in his posttrial brief, and the
court regards that contention as abandoned.’’ In the present appeal, the
petitioner does not raise a claim related to that aspect of the court’s ruling.
4
Following the criminal trial, but before the habeas trial, Officer Hernan-
dez changed her last name to McGrath. For the sake of consistency, we
will continue to refer to her as Officer Hernandez.
5
In its memorandum of decision, the court referred to the petitioner’s
claim that such expert testimony could have ‘‘undermined the reliability of
the petitioner’s confessions to his uncle and the police.’’ (Emphasis added.)
Later in its decision, the court referred to the fact that ‘‘[t]he crux of the
prosecution case was the petitioner’s multiple confessions to committing
the crime.’’ (Emphasis added.) We note that there was no evidence before
the jury that the petitioner provided the police with a confession. Although,
during the criminal trial, the court denied the petitioner’s motion to suppress
statements that he had made in the presence of law enforcement, the state
did not introduce any such statements in evidence. As we have explained,
however, the jury had before it evidence of the petitioner’s confession to
his uncle, Howard Fair. We are not persuaded that this inaccuracy in the
court’s decision undermines its analysis.
6
We interpret the court’s description in this regard to reflect its belief
that Mims’ testimony helped to establish the certainty of what was shown
by other inculpatory evidence that was presented by the state at the criminal
trial, including the evidence of the petitioner’s confession to Howard Fair.
7
In his petition for certification to appeal, the petitioner stated that the
grounds on which he proposed to appeal were related to the habeas court’s
errors in (1) ‘‘denying the petitioner’s claims,’’ (2) ‘‘the assessment of preju-
dice,’’ (3) ‘‘its findings,’’ and (4) ‘‘its application of the law.’’ He also stated
that these grounds included ‘‘any issues which are unearthed after a thorough
review by appellate counsel.’’
8
The petitioner does not raise a claim of error related to the habeas
court’s rejection of his claim of ineffective assistance as it relates to expert
testimony concerning PCP.
We note that the petitioner also argues that he ‘‘litigated, but did not brief
or argue,’’ a claim that his trial counsel was ineffective for failing to object
on hearsay grounds to Howard Fair’s testimony about the rumors he heard
about the petitioner’s involvement in the murder. He contends, ‘‘[n]everthe-
less, that [this] issue is relevant to this court’s prejudice inquiry.’’ The peti-
tioner raised an argument of this nature in his third amended petition. He
did not, however, discuss the claim in his posttrial brief, and the habeas
court did not address the claim in its memorandum of decision. Accordingly,
we cannot review the claim. See Henderson v. Commissioner of Correction,
129 Conn. App. 188, 198, 19 A.3d 705 (‘‘[a] reviewing court will not consider
claims not raised in the habeas petition or decided by the habeas court’’),
cert. denied, 303 Conn. 901, 31 A.3d 1177 (2011).
9
The petitioner has not pointed to anything in the record that supports
his assertion that Mims had a motive to cooperate with the police or even
that Mims could have faced criminal liability in connection with the baggie
of black powder that the police discovered.
10
The court stated: ‘‘The question will be . . . did the police ask you
about any substances that were found that day.’’
11
The evidence reflects that Knowlin was shot in front of 20 Nelson Street,
which was the primary crime scene. He then ran with Mims and collapsed
near 8 Clay Street, which is where the baggie was found.
12
The habeas court stated: ‘‘There was no credible evidence proffered at
the habeas trial that Mims was coached to [identify] the petitioner nor that
Mims even knew the police had a suspect in custody when he [selected]
the petitioner’s photograph as the shooter from the [photographic] array
‘immediately.’ ’’