Tatum v. Commissioner of Correction

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EDGAR TATUM v. COMMISSIONER
OF CORRECTION
(AC 43581)
Alexander, Clark and Lavine, Js.
Syllabus
The petitioner, who had been convicted of murder, filed a fifth petition for a
writ of habeas corpus, claiming, inter alia, that his trial counsel, appellate
counsel, and his prior habeas counsel to his first, second, and third
petitions had provided ineffective assistance, that his due process rights
had been violated at his criminal trial, and that there had been significant
developments in the science of eyewitness identification that warranted
the court to vacate or modify his conviction or sentence, which the
habeas court interpreted as an actual innocence claim. The habeas
court rendered judgment dismissing the petitioner’s claims of ineffective
assistance of his trial counsel, appellate counsel, and first habeas coun-
sel, his claim of due process violations, and his claim of actual innocence.
The habeas court held a hearing on the two remaining claims and subse-
quently dismissed the petitioner’s claim of ineffective assistance of his
second habeas counsel and denied the petitioner’s claim of ineffective
assistance of his third habeas counsel, from which the petitioner, on
the granting of certification, appealed to this court. Held:
1. The habeas court properly concluded that the petitioner’s claims concern-
ing ineffective assistance by his trial counsel, appellate counsel, and
first habeas counsel were barred by the doctrine of res judicata; the
petitioner did not allege that he was seeking different relief than the relief
he sought in prior petitions alleging ineffective assistance of counsel or
that there were new facts or evidence not reasonably available at the
time of his original petition.
2. The habeas court properly determined that the Supreme Court’s decisions
in State v. Guilbert (306 Conn. 218) and State v. Dickson (322 Conn. 410)
could not be applied retroactively on collateral review to the petitioner’s
claims concerning due process violations and actual innocence, and,
therefore, the petitioner’s claims were properly dismissed on the basis
of res judicata:
a. Although Dickson held that first-time, in-court identifications impli-
cated due process protections and must be prescreened by the trial
court, this constitutional rule did not apply retroactively on collateral
review because it was neither a substantive rule nor a watershed proce-
dural rule.
b. The petitioner could not prevail on his claim that Guilbert, in which
a nonconstitutional state evidentiary claim involving the reliability of
eyewitness identifications was at issue, applied retroactively on collateral
review: because Guilbert did not announce a new constitutional rule or
a new judicial interpretation of a criminal statute, complete retroactive
application was inappropriate; moreover, the Guilbert framework for
evaluating the reliability of an identification that was the result of an
unnecessarily suggestive identification procedure did not fall within the
narrow watershed exception pursuant to Teague v. Lane (489 U.S. 288)
because the rule was prophylactic, a violation of the rule did not necessar-
ily rise to the level of a due process violation, and the rule amounted
to an incremental change in identification procedures.
c. Because the petitioner previously raised and litigated the claims per-
taining to the admission of the in-court identification of the petitioner
in his direct appeal, the habeas court’s dismissal of the petitioner’s claims
of violations of due process and actual innocence was appropriate.
3. The habeas court’s denial of the petitioner’s claim alleging ineffective
assistance by his third habeas counsel was affirmed on the alternative
ground that it was barred by collateral estoppel: the doctrine of collateral
estoppel precluded the petitioner from raising the issue of whether his
third habeas counsel was ineffective for failing to argue claims against
his appellate counsel based on their failure to challenge the witnesses’
identifications because it previously had been determined that the admis-
sion at trial of the identifications of the petitioner was proper; moreover,
the habeas court correctly determined that the petitioner’s third habeas
counsel did not provide ineffective assistance by failing to allege and
prove a claim that trial counsel was ineffective for failing to investigate
and present a third-party culpability defense, the petitioner having failed
to sufficiently demonstrate that the evidence was adequate to support
a viable third-party culpability defense.
Argued October 19, 2021—officially released March 8, 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, from which the petitioner, on the granting
of certification, appealed to this court. Affirmed.
Kara E. Moreau and Emily C. Kaas, for the appellant
(petitioner).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Maureen T. Platt, state’s
attorney, and Eva Lenczewski, former supervisory
assistant state’s attorney, for the appellee (respondent).
Opinion
LAVINE, J. The petitioner, Edgar Tatum, appeals fol-
lowing the granting of his petition for certification to
appeal from the judgment of the habeas court dismiss-
ing in part and denying in part his fifth amended petition
for a writ of habeas corpus.1 On appeal, the petitioner
claims that the court improperly (1) dismissed counts
one, two, and three of the petition on the basis of res
judicata; (2) determined that our Supreme Court’s deci-
sions in State v. Guilbert, 306 Conn. 218, 49 A.3d 705(2012), and State v. Dickson, 322 Conn. 410, 141 A.3d
810 (2016), cert. denied, U.S. , 137 S. Ct. 2263,
198 L. Ed. 2d 713 (2017), could not be applied retroac-
tively to the identification claims raised in counts six
and seven of the petitioner’s petition; and (3) denied
count five of the operative complaint alleging ineffec-
tive assistance against his third habeas counsel. We
disagree and, accordingly, affirm the judgment of the
habeas court.
The following factual and procedural background is
relevant to our resolution of the petitioner’s appeal. Of
necessity, it is detailed in light of the convoluted history
of this case. The petitioner was convicted of murder
following a jury trial and sentenced to a term of sixty
years of incarceration on April 6, 1990. In State v.
Tatum, 219 Conn. 721, 595 A.2d 322 (1991), our Supreme
Court affirmed the petitioner’s underlying murder con-
viction and recited the following facts that the jury
reasonably could have found in the criminal trial. ‘‘At
approximately 10:30 p.m. on February 25, 1988, Larry
Parrett was shot and killed in his home in Waterbury,
where he lived with his girlfriend, Tracy LeVasseur.
Anthony Lombardo, who lived on the same street, was
also shot and wounded at the same time and place.
Earlier that evening, Lombardo had been out walking
his dog when he noticed a tall black man, later identified
as the [petitioner], knocking on the door of Parrett’s
apartment. Lombardo approached the [petitioner], after
having recognized him as someone he had seen at the
apartment on other occasions. When LeVasseur opened
the door from within, the [petitioner] forced himself
and Lombardo into the living room, where LeVasseur
and Parrett were smoking cocaine. LeVasseur recog-
nized the [petitioner] as ‘Ron Jackson,’ a man from
California who, along with other visitors from Califor-
nia, had spent a number of nights at the apartment
selling drugs during the months preceding the incident.
Parrett also had been involved in the sale of drugs.
When the [petitioner] and Parrett began to argue, Lom-
bardo and LeVasseur left the room and went into the
kitchen, where three other men were present. A few
moments later, Lombardo returned to the living room to
find the [petitioner] pointing a gun at Parrett. Lombardo
stepped between the two men, thinking that the [peti-
tioner] might be dissuaded from firing. The [petitioner]
nevertheless fired four shots from the gun, striking Lom-
bardo in the shoulder and fatally wounding Parrett. . . .
‘‘That night at the Waterbury police station Lombardo
was shown a photographic array from which he chose
a photograph of a black man named Jay Frazer as that
of the man who had shot him and Parrett. The same
night LeVasseur also selected a photograph of Frazer
from an array shown to her by the police. Neither array
contained a photograph of the [petitioner]. One week
later, however, LeVasseur went to the Waterbury police
and told them that she had identified the wrong man.
A nine person lineup was then conducted in which
Frazer participated but the [petitioner] did not. After
seeing Frazer in person, LeVasseur told the police that
he was definitely not the assailant. Thereafter, the
police showed another photographic array to LeVasseur
from which she chose the [petitioner’s] photograph as
that of the person who had shot the victim. Lombardo
was subsequently shown a photographic array that
included the [petitioner’s] picture, but he declined to
identify anyone, explaining that he preferred to see the
individuals in person. At the probable cause hearing
and at trial, both Lombardo and LeVasseur identified
the [petitioner] as the man who had shot Lombardo
and Parrett.’’ (Footnotes omitted.) State v. Tatum,
supra, 219 Conn. 723–25.
Following his direct appeal, the petitioner filed
numerous petitions for a writ of habeas corpus, which
we will discuss, as necessary, in addressing each of the
petitioner’s claims on appeal. The petition that is the
subject of the present appeal initially was filed on Feb-
ruary 11, 2016. The petitioner filed an amended petition
on June 27, 2018, and the respondent, the Commissioner
of Correction, moved to dismiss the operative petition
on July 20, 2018. The habeas court granted the respon-
dent’s motion to dismiss as to counts one (ineffective
assistance of trial counsel), two (ineffective assistance
of appellate counsel), three (ineffective assistance of
first habeas counsel), six (due process), and seven
(newly discovered evidence), but denied the motion as
to counts four (ineffective assistance of second habeas
counsel) and five (ineffective assistance of third habeas
counsel). The habeas court held a hearing on the two
remaining claims on various dates between January 17
and April 11, 2019, after which the parties were given the
opportunity to file posttrial briefs. In a memorandum
of decision dated August 28, 2019, the habeas court
dismissed count four and denied count five of petition-
er’s petition. On September 9, 2019, the petitioner filed
a petition for certification to appeal. The habeas court
granted the petition, and this appeal followed. Addi-
tional facts and procedural history will be set forth as
necessary.
I
The petitioner first claims that the habeas court
improperly dismissed counts one (ineffective assis-
tance of trial counsel), two (ineffective assistance of
appellate counsel), and three (ineffective assistance of
first habeas counsel) of the operative petition on the
basis of res judicata. We disagree.
We begin by setting forth our standard of review for
a challenge to the dismissal of a petition for a writ of
habeas corpus. ‘‘The conclusions reached by the trial
court in its decision to dismiss [a] habeas petition are
matters of law, subject to plenary review. . . . [When]
the legal conclusions of the court are challenged, [the
reviewing court] must determine whether they are
legally and logically correct . . . and whether they find
support in the facts that appear in the record. To the
extent that factual findings are challenged, this court
cannot disturb the underlying facts found by the habeas
court unless they are clearly erroneous . . . .’’ (Cita-
tion omitted; internal quotation marks omitted.) Carter
v. Commissioner of Correction, 133 Conn. App. 387,
392, 35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d
217 (2012). ‘‘[A] finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.) Har-
ris v. Commissioner of Correction, 107 Conn. App. 833,
838, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d
652 (2008).
With this as our backdrop, we set forth the pertinent
legal principles that inform our discussion. ‘‘The doc-
trine of res judicata provides that a former judgment
serves as an absolute bar to a subsequent action involv-
ing any claims relating to such cause of action which
were actually made or which might have been made.
. . . The doctrine . . . applies to criminal as well as
civil proceedings and to state habeas corpus proceed-
ings. . . . However, [u]nique policy considerations
must be taken into account in applying the doctrine of
res judicata to a constitutional claim raised by a habeas
petitioner. . . . Specifically, in the habeas context, in
the interest of ensuring that no one is deprived of liberty
in violation of his or her constitutional rights . . . the
application of the doctrine of res judicata . . . [is lim-
ited] to claims that actually have been raised and liti-
gated in an earlier proceeding.’’ (Internal quotation
marks omitted.) Woods v. Commissioner of Correction,
197 Conn. App. 597, 612–13, 232 A.3d 63 (2020), appeal
dismissed, 341 Conn. 506, A.3d (2021).
‘‘In the context of a habeas action, a court must deter-
mine whether a petitioner actually has raised a new
legal ground for relief or only has alleged different fac-
tual allegations in support of a previously litigated
claim.’’ Johnson v. Commissioner of Correction, 168
Conn. App. 294, 305, 145 A.3d 416, cert. denied, 323
Conn. 937, 151 A.3d 385 (2016). ‘‘Identical grounds may
be proven by different factual allegations, supported
by different legal arguments or articulated in different
language. . . . They raise, however, the same generic
legal basis for the same relief. Put differently, two
grounds are not identical if they seek different relief.’’
(Citations omitted.) James L. v. Commissioner of Cor-
rection, 245 Conn. 132, 141, 712 A.2d 947 (1998).
‘‘[T]he doctrine of res judicata in the habeas context
must be read in conjunction with Practice Book § 23-
29 (3), which narrows its application.’’ Kearney v. Com-
missioner of Correction, 113 Conn. App. 223, 235, 965
A.2d 608 (2009). Practice Book § 23-29 provides in rele-
vant part: ‘‘The judicial authority may, at any time, upon
its own motion or upon motion of the respondent, dis-
miss the petition, or any count thereof, if it determines
that . . . (3) the petition presents the same ground as
a prior petition previously denied and fails to state
new facts or to proffer new evidence not reasonably
available at the time of the prior petition . . . .’’ Thus,
a subsequent petition ‘‘alleging the same ground as a
previously denied petition will elude dismissal if it
alleges grounds not actually litigated in the earlier peti-
tion and if it alleges new facts or proffers new evidence
not reasonably available at the time of the earlier peti-
tion.’’ Kearney v. Commissioner of Correction, supra,
235. ‘‘In this context, a ground has been defined as
sufficient legal basis for granting the relief sought.’’
(Internal quotation marks omitted.) Id. In other words,
‘‘an applicant must show that his application does,
indeed, involve a different legal ground, not merely
a verbal reformulation of the same ground.’’ (Internal
quotation marks omitted.) Carter v. Commissioner of
Correction, supra, 133 Conn. App. 394.
On appeal, the petitioner claims that the habeas court
erroneously applied the res judicata doctrine to dismiss
his various ineffective assistance of counsel claims
‘‘relating to LeVasseur’s identification in counts one,
two, and three of the operative petition . . . .’’ The
petitioner argues that LeVasseur’s identification of the
petitioner previously was never raised and litigated, and
that the habeas court dismissed other claims in counts
one and three on the basis of res judicata, despite
acknowledging that many of the claims brought in the
operative petition were factually distinct from those
previously raised. He essentially argues that because
his allegation of ineffective assistance of his various
counsel is premised on factual allegations different
from those pleaded in his previous petitions, the claims
are not improperly successive.
This court, however, flatly has rejected this argument
on numerous occasions. See, e.g., Gudino v. Commis-
sioner of Correction, 191 Conn. App. 263, 272, 214 A.3d
383, cert. denied, 333 Conn. 924, 218 A.3d 67 (2019) (‘‘in
the absence of allegations and facts not reasonably
available to the petitioner at the time of the original
petition or a claim for different relief, a subsequent
claim of ineffective assistance directed against the same
counsel is subject to dismissal as improperly succes-
sive’’); Damato v. Commissioner of Correction, 156
Conn. App. 165, 174, 113 A.3d 449 (‘‘the grounds that
the petitioner asserted are identical in that each alleges
ineffective assistance of counsel, and, therefore, the
habeas petition was properly dismissed’’ (internal quo-
tation marks omitted)), cert. denied, 317 Conn. 902, 114
A.3d 167 (2015).
For example, in Damato v. Commissioner of Correc-
tion, supra, 156 Conn. App. 174, the petitioner argued
that, although his claim of ineffective assistance against
trial counsel had been considered previously, the allega-
tions in support of his new claim of ineffective assis-
tance were different. In addressing the petitioner’s argu-
ment, this court explained that, ‘‘[a]lthough we recognize
that the petitioner sets forth different allegations in
support of his claim of ineffective assistance, the claim
still is one of ineffective assistance of counsel involving
[trial counsel].’’ (Emphasis in original.) Id. This court
concluded that res judicata barred the petitioner’s suc-
cessive petition. Id.Here, the petitioner attempts to construe narrowly
the ground for counts one, two, and three of his petition
as claims ‘‘regarding LeVasseur’s identification’’ and
‘‘factually distinct from those previously raised’’ but
ignores the fact that these allegations are used to sup-
port claims of ineffective assistance of trial, appellate,
and first habeas counsel, which he already has raised
in his first and third habeas petitions.
To be sure, the petitioner’s first habeas petition was
filed on July 2, 1991, claiming that he received ineffec-
tive assistance of counsel at his criminal trial. See
Tatum v. Warden, Docket No. CV-911263, 1999 WL
130324 (Conn. Super. March 3, 1999), aff’d, 66 Conn.
App. 61, 783 A.2d 1151 (2001). On November 24, 1997,
the petitioner filed an amended petition alleging a litany
of instances of Attorney Thomas McDonough’s lack of
skill and diligence in representing him at trial, including,
among other things, that McDonough had a wealth of
available information from which to construct a case
of third-party culpability or misidentification but failed
to use properly this information at trial. The habeas
court, Zarella, J., dismissed the petition on March 3,
1999, concluding that McDonough ‘‘adequately investi-
gated the facts surrounding the crimes committed and
defended the petitioner in a manner that meets the
standard of a reasonably competent criminal defense
attorney.’’ Id., *13.
The petitioner’s third petition for a writ of habeas
corpus was filed on August 18, 2003, and subsequently
was amended on June 23, 2009. See Tatum v. Warden,
Docket No. CV-03-004175-S, 2010 WL 1565487 (Conn.
Super. March 23, 2010), appeal dismissed, 135 Conn.
App. 901, 40 A.3d 824, cert. denied, 305 Conn. 912, 45
A.3d 98 (2012). The habeas court, Nazzaro, J., explained
that the petitioner’s third amended petition contained
numerous claims, including an assertion of various due
process violations, right to counsel implications and,
as applicable here, claims regarding the ‘‘ineffective
assistance by criminal trial, appellate, prior habeas cor-
pus and habeas corpus appellate counsel.’’ Id., *1. The
petitioner argued that Attorneys Sally King, Alicia Dav-
enport, and Steven Barry, who represented the peti-
tioner in his direct appeal, failed to bring a claim under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823(1989), challenging the trial court’s intent instruction
as embracing both specific and general intent. Tatum
v. Warden, supra, 2010 WL 1565487, *9. The habeas
court disagreed, concluding that the petitioner failed
to demonstrate how appellate counsel ‘‘somehow ren-
dered ineffective assistance . . . .’’ Id., *11. The habeas
court similarly concluded that the petitioner failed to
demonstrate how Attorney R. Bruce Lorenzen, his first
habeas counsel, rendered deficient performance. Id.,
*2, 12.
Turning our attention to count one of petitioner’s
operative petition, the petitioner alleges that McDo-
nough, his criminal trial counsel, was ineffective in his
representation. The petitioner’s allegations largely
implicate the identification of the petitioner as the
shooter, including, among other things, allegations that
trial counsel failed to cross-examine adequately both
Lombardo and LaVasseur about variables that could
have affected their ability to perceive, remember, and
identify him as the shooter; failed to make an adequate
record of how many identification procedures Lom-
bardo had participated in, or how many times he had
been shown photographs of the petitioner prior to the
probable cause hearing; and failed to consult with an
eyewitness identification expert who would have aided
in his trial preparation. In count two, the petitioner
alleges, inter alia, that King, Davenport, and Barry, who
represented him in his direct appeal, rendered ineffec-
tive assistance by failing to claim that the petitioner’s
due process rights were violated by Lombardo’s identifi-
cation of him at the probable cause hearing because it
was unduly suggestive and insufficiently reliable, and
by LeVasseur’s ‘‘unduly suggestive and insufficiently
reliable’’ ‘‘in-[court] and out-of-court identifications.’’
Finally, in count three, the petitioner claims, inter alia,
that Lorenzen, his first habeas counsel, rendered inef-
fective assistance of counsel by failing to challenge the
effectiveness of trial and appellate counsel regarding
Lombardo’s and LeVasseur’s identifications of him as
the shooter.
Although the petitioner may have set forth some dif-
fering factual allegations in support of his claims of
ineffective assistance in his present petition, he cannot
gainsay the fact that they are still claims of ineffective of
assistance of counsel. See Alvarado v. Commissioner
of Correction, 153 Conn. App. 645, 651, 103 A.3d 169(‘‘[i]dentical grounds may be proven by different factual
allegations, supported by different legal arguments or
articulated in different language’’ (internal quotation
marks omitted)), cert. denied, 315 Conn. 910, 105 A.3d
901 (2014). The petitioner makes no allegations in these
counts that he is seeking different relief than the relief
he sought in prior petitions alleging ineffective assis-
tance of counsel or that there are newly available facts
or evidence not reasonably available at the time of
his original petition. Accordingly, we conclude that the
court properly declined to reach the merits of counts
one, two, and three of the petitioner’s successive peti-
tion because the doctrine of res judicata barred their
consideration.2
II
The petitioner next claims that the court erroneously
applied the doctrine of res judicata to his due process
claim in count six and his ‘‘newly discovered evidence’’
claim in count seven of his operative petition, arguing
that the claims have never been previously raised or
litigated, and that the court improperly concluded that
our Supreme Court’s decisions in State v. Dickson,
supra, 322 Conn. 410, and State v. Guilbert, supra, 306
Conn. 218, do not apply retroactively to the petitioner’s
claims. The respondent disagrees, arguing that our
Supreme Court explicitly held that the constitutional
rule in Dickson did not apply retroactively on collateral
review and that our jurisprudence forecloses Guilbert’s
retroactive application. We agree with the respondent.
In count six of the operative complaint, the petitioner
alleges that his due process rights under the fourteenth
amendment to the United States constitution, and arti-
cle first, §§ 8 and 9, of the Connecticut constitution were
violated, on the basis that the identification procedures
used with certain witnesses were unduly suggestive and
that the jury instructions were insufficient to educate
jurors on the possibility of certain factors that can
adversely impact eyewitness identification. He alleges
that Guilbert and Dickson ‘‘should be retroactively
applied to his case, and justice requires that he receive
the benefit of those decisions.’’ The habeas court dis-
missed count six on the basis of res judicata, concluding
that the petitioner previously had raised and litigated
in his direct appeal the due process claim concerning
the identification procedures used at trial.
In count seven, titled ‘‘Newly Discovered Evidence,’’
the petitioner argues that scientific developments not
reasonably available to the petitioner at the time of the
prior proceedings demonstrate that no reasonable fact
finder would find the petitioner guilty of murder. The
petitioner requested that the court vacate or modify his
conviction or sentence. The court indicated that it was
unaware of a habeas claim named ‘‘newly discovered
evidence’’ but interpreted it as a claim of actual inno-
cence. In discussing the claim, the court explained that
‘‘even giving the petitioner the benefit of the doubt the
law requires, he is not actually claiming that there is
‘new’ evidence, as in a previously undiscovered witness,
an unknown video of the incident, or bodily fluids not
previously subject to DNA testing.’’ The court stated:
‘‘What the claim really amounts to is that subsequent
developments in the science of eyewitness identifica-
tion have changed the information and instructions a
jury can be given in a criminal trial and, if the jurors
in the petitioner’s trial were allowed to apply the ‘new’
science and instructions to the same ‘old’ evidence pre-
sented at the petitioner’s trial, they may have viewed
the testimony of the eyewitnesses who identified the
petitioner differently and come to a different conclu-
sion.’’ In construing count seven in conjunction with
count six, the habeas court explained that the petitioner
already had litigated the identification procedures in
his direct appeal and that the doctrine of res judicata
also prohibited the petitioner ‘‘from being able to reliti-
gate this issue by changing the facts to focus on the
identification procedures used in connection with wit-
ness LaVasseur, because neither the grounds nor the
requested relief is any different than the issue raised
on appeal.’’ The court emphasized that ‘‘the petitioner
has not alleged a single new ‘fact’ related to his case.’’
The court then went on to find that nothing within the
Guilbert or Dickson decisions indicate that they were
to be retroactively applied or intended to provide an
avenue for collateral relief.
As we have stated, ‘‘conclusions reached by the trial
court in its decision to dismiss [a] habeas petition are
matters of law, subject to plenary review. . . . [If] the
legal conclusions of the court are challenged, we must
determine whether they are legally and logically correct
. . . and whether they find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) Boria v. Commissioner of Correction, 186 Conn.
App. 332, 338, 199 A.3d 1127 (2018), cert. granted, 335
Conn. 901, 225 A.3d 685 (2020). The issue of whether
a judicial decision is retroactive is a question of law,
also subject to plenary review. See, e.g., Garcia v. Com-
missioner of Correction, 147 Conn. App. 669, 674, 84
A.3d 1, cert. denied, 312 Conn. 905, 93 A.3d 156 (2014).
‘‘To the extent that factual findings are challenged, this
court cannot disturb the underlying facts found by the
habeas court unless they are clearly erroneous.’’ (Inter-
nal quotation marks omitted.) Boria v. Commissioner
of Correction, supra, 338.
On appeal, the petitioner argues that his claims have
not been litigated previously because the ‘‘rationale for
the Supreme Court’s decision in [the petitioner’s] direct
appeal has since been rejected by both Guilbert and
Dickson.’’ He argues further that ‘‘[b]ecause [he] has
never before raised a claim on the basis of the retroac-
tive application of these cases, any such claim was not
previously litigated and is therefore not subject to res
judicata.’’ We disagree.
A
We first begin with a discussion of Dickson. In Dick-
son, our Supreme Court held that ‘‘first time in-court
identifications, like in-court identifications that are
tainted by an unduly suggestive out-of-court identifica-
tion, implicate due process protections and must be
prescreened by the trial court.’’ State v. Dickson, supra,
322 Conn. 426. In reaching this conclusion, the court
explained that it was ‘‘hard-pressed to imagine how
there could be a more suggestive identification proce-
dure than placing a witness on the stand in open court,
confronting the witness with the person whom the state
has accused of committing the crime, and then asking
the witness if he can identify the person who committed
the crime.’’ (Emphasis in original.) Id., 423. The court
explained that, ‘‘because the extreme suggestiveness
and unfairness of a one-[on]-one in-court confrontation
is so obvious, we find it likely that a jury would naturally
assume that the prosecutor would not be allowed to
ask the witness to identify the defendant for the first
time in court unless the prosecutor and the trial court
had good reason to believe that the witness would be
able to identify the defendant in a nonsuggestive set-
ting.’’ Id., 425.
In arguing that first-time, in-court identifications are
admissible, the state in Dickson raised numerous argu-
ments in support of its claim to the contrary. Id., 431.
Of relevance to the present case, the state, relying on
our Supreme Court’s decision in the petitioner’s direct
appeal; see State v. Tatum, supra, 219 Conn. 721; argued
that ‘‘in-court identifications do not violate due process
principles because they are necessary and, relatedly,
because there is no feasible alternative to them.’’ State
v. Dickson, supra, 322 Conn. 434. Our Supreme Court
concluded that ‘‘the holding in Tatum that it was ‘neces-
sary’ for the state to present a first time in-court identifi-
cation of the defendant at the probable cause hearing
must be overruled. We simply can perceive no reason
why the state cannot attempt to obtain an identification
using a lineup or photographic array before asking an
eyewitness to identify the defendant in court. Although
the state is not constitutionally required to do so, it
would be absurd to conclude that the state can simply
decline to conduct a nonsuggestive procedure and then
claim that its own conduct rendered a first time in-
court identification necessary, thereby curing it of any
constitutional infirmity.’’ (Emphasis omitted.) Id., 435–
36. Having concluded that first-time, in-court identifica-
tions must be prescreened for admissibility by the trial
court, the court went on to set forth the specific proce-
dures that the parties and the trial court must follow.
Id., 444–52.
In the present case, the petitioner argues that,
‘‘[a]lthough the retroactive application of the second
part of the Dickson holding—the prophylactic rule—
has arguably been addressed . . . the court has not
yet determined whether this new constitutional rule
should be retroactive.’’ Without clearly identifying what
other constitutional rule the petitioner is referring to,
he argues that he should receive the benefit of society’s
and our Supreme Court’s changes in acceptance and
understanding of eyewitness identification, although
recognizing that Dickson’s holding is ‘‘not necessarily
a substantive ‘rule’ as courts tend to interpret that
phrase . . . .’’ He argues, without case law support,
that applying Dickson retroactively is especially appro-
priate here because Dickson explicitly overruled the
holding in the petitioner’s direct appeal. He goes on to
argue that the ‘‘prophylactic rule announced in Dickson,
regarding the specific procedures surrounding first time
in-court identifications, should also apply retroactively,
as it is a watershed rule of criminal procedure.’’
The respondent on the other hand argues that Dick-
son explicitly forecloses the petitioner’s argument
because it held that this constitutional rule did not apply
retroactively on collateral review in that it was neither
a substantive rule nor a watershed procedural rule. We
agree with the respondent.
Although it appears that the petitioner may be arguing
that our Supreme Court did not address the retroactivity
of the constitutional rule that it promulgated in Dickson,
such argument is meritless. Our Supreme Court explic-
itly addressed the applicability of its decision, stating:
‘‘[T]he new rule that we adopt today applies to the
parties to the present case and to all pending cases. It
is important to point out, however, that, in pending
appeals involving this issue, the suggestive in-court
identification has already occurred. Accordingly, if the
reviewing court concludes that the admission of the
identification was harmful, the only remedy that can
be provided is a remand to the trial court for the purpose
of evaluating the reliability and the admissibility of the
in-court identification under the totality of the circum-
stances. . . . If the trial court concludes that the identi-
fication was sufficiently reliable, the trial court may
reinstate the conviction, and no new trial would be
required.’’ (Citations omitted; emphasis omitted; foot-
notes omitted.) State v. Dickson, supra, 322 Conn. 450–
52.
The court went on to address Dickson’s applicability
to collateral challenges. It stated: ‘‘The new rule would
not apply, however, on collateral review. This question
is governed by the framework set forth in Teague v.
Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334(1989). See Casiano v. Commissioner of Correction,
317 Conn. 52, 62, 115 A.3d 1031 (2015). Under Teague,
a ‘new’ constitutional rule, i.e., a rule that ‘was not
dictated by precedent existing at the time the defen-
dant’s conviction became final,’ generally does not
apply retroactively. . . . Id. There are two exceptions,
however, to this general rule. Specifically, a new rule
will apply retroactively if it is substantive or, if the new
rule is procedural, when it is ‘a watershed [rule] of
criminal procedure . . . implicit in the concept of
ordered liberty . . . .’ . . . Id., 63. Because the rule
that we adopt in the present case is a new procedural
rule, we must determine whether it is a watershed rule.
To be considered a watershed rule, the rule must ‘impli-
cat[e] the fundamental fairness and accuracy of [a]
criminal proceeding’; . . . id.; or ‘[alter] our under-
standing of the bedrock procedural elements essential
to the fairness of a proceeding . . . .’ Id. Watershed
rules ‘include those that raise the possibility that some-
one convicted with use of the invalidated procedure
might have been acquitted otherwise.’ . . . Id. The
exception is ‘narrowly construed . . . and, in the
twenty-five years since Teague was decided, [the United
States Supreme Court] has yet to conclude that a new
rule qualifies as watershed.’ Id.; but see id., 64 (this
court may construe Teague more liberally than United
States Supreme Court); id., 69 (concluding that new
procedural rule requiring individualized sentencing of
juvenile before life sentence may be imposed is water-
shed rule under Teague). In the present case we con-
clude that the rule requiring prescreening of first-time,
in-court identification does not fall within the narrow
exception because: (1) as we have explained, the rule
is prophylactic and a violation of the rule does not
necessarily rise to the level of a due process violation;
and (2) the rule is merely an incremental change in
identification procedures. Cf. Beard v. Banks, 542 U.S.
406, 419–20, 124 S. Ct. 2504, 159 L. Ed. 2d 494 (2004) (‘the
fact that a new rule removes some remote possibility
of arbitrary infliction of the death sentence does not
suffice to bring it within Teague’s second exception’);
id., 419 (although new rule was intended to enhance
accuracy of capital sentencing, ‘because it effected an
incremental change, [the United States Supreme Court]
could not conclude that . . . [it was] an absolute pre-
requisite to fundamental fairness’ . . . ).’’ (Emphasis
added.) State v. Dickson, supra, 322 Conn. 451 n.34.
Contrary to the petitioner’s assertions, it is clear from
Dickson that the constitutional rule set forth therein
was not intended to provide an avenue for collateral
relief. See id. (‘‘[t]he new rule would not apply, however,
on collateral review’’); see also Bennett v. Commis-
sioner of Correction, 182 Conn. App. 541, 560, 190 A.3d
877 (in Dickson, our Supreme Court ‘‘stated that its
holding regarding prescreening was to apply only to
future cases and pending related cases, and was not to
be applied retroactively in habeas actions’’ (emphasis
added)), cert. denied, 330 Conn. 910, 193 A.3d 50 (2018).
Although our Supreme Court did reject and overrule
the rationale it previously employed in State v. Tatum,
supra, 219 Conn. 721 (decision resolving petitioner’s
direct appeal) in reaching its conclusion in Dickson,
the petitioner has provided us with no authority, and
we have found none, that suggests that the new rule in
Dickson can apply retroactively to him on collateral
review. We similarly reject his invitation to construe
more narrowly our Supreme Court’s retroactivity analy-
sis in footnote 34 of Dickson; see State v. Dickson,
supra, 322 Conn. 451 n.34; ‘‘to apply only to the specific
facts of the Dickson case.’’ We remind him that our
Supreme Court ‘‘has the final say on matters of Connect-
icut law and that the Appellate Court and Superior Court
are bound by [its] precedent.’’ Stuart v. Stuart, 297
Conn. 26, 45–46, 996 A.2d 259 (2010).
B
We next turn to the petitioner’s contention that Guilb-
ert applies retroactively on collateral attack and that
he should receive the benefit of this decision. In Guilb-
ert, the defendant argued that the trial court improperly
precluded him from presenting expert testimony on
the fallibility of eyewitness identification testimony and
asked our Supreme Court to overrule its decisions in
State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986),
and State v. McClendon, 248 Conn. 572, 586, 730 A.2d
1107 (1999), which ‘‘concluded that the average juror
knows about the factors affecting the reliability of eye-
witness identification and that expert testimony on the
issue is disfavored because it invades the province of
the jury to determine what weight to give the evidence.’’
State v. Guilbert, supra, 306 Conn. 220–21. The court
in Guilbert concluded that Kemp and McClendon were
‘‘out of step with the widespread judicial recognition
that eyewitness identifications are potentially unrelia-
ble in a variety of ways unknown to the average juror.’’
Id., 234. The court observed that ‘‘[t]his broad based
judicial recognition tracks a near perfect scientific con-
sensus,’’ and that ‘‘[t]he extensive and comprehensive
scientific research, as reflected in hundreds of peer
reviewed studies and meta-analyses, convincingly dem-
onstrates the fallibility of eyewitness identification tes-
timony and pinpoints an array of variables that are most
likely to lead to a mistaken identification.’’ (Footnote
omitted.) Id., 234–36. The court concluded that ‘‘the
reliability of eyewitness identifications frequently is not
a matter within the knowledge of an average juror and
that the admission of expert testimony on the issue
does not invade the province of the jury to determine
what weight to give the evidence. Many of the factors
affecting the reliability of eyewitness identifications are
either unknown to the average juror or contrary to
common assumptions, and expert testimony is an effec-
tive way to educate jurors about the risks of misidentifi-
cation.’’3 (Footnote omitted.) Id., 251–52.
The court observed that ‘‘federal and state courts
around the country have recognized that the methods
traditionally employed for alerting juries to the fallibility
of eyewitness identifications—cross-examination, clos-
ing argument and generalized jury instructions on the
subject—frequently are not adequate to inform them
of the factors affecting the reliability of such identifica-
tions.’’ Id., 243. The court reiterated that ‘‘a trial court
retains the discretion to decide whether, under the spe-
cific facts and circumstances presented, focused and
informative jury instructions on the fallibility of eyewit-
ness identification evidence of the kind contemplated
by the New Jersey Supreme Court in Henderson; see
State v. Henderson, [208 N.J. 208, 283, 27 A.3d 872(2011)]; would alone be adequate to aid the jury in
evaluating the eyewitness identification at issue.’’ State
v. Guilbert, supra, 306 Conn. 257–58. The court empha-
sized ‘‘that any such instructions should reflect the find-
ings and conclusions of the relevant scientific literature
pertaining to the particular variable or variables at issue
in the case,’’ and rejected the ‘‘broad, generalized
instructions on eyewitness identifications,’’ which it
previously approved in State v. Tatum, supra, 219 Conn.
734–35. State v. Guilbert, supra, 258.
On appeal, the petitioner argues that ‘‘[t]hese changes
in scientific—and judicial—understanding of the flaws
of eyewitness identification, and the new rules
announced to reflect those changes, should apply retro-
actively here, and [that he] should receive the benefit
of this decision.’’ The petitioner categorizes Guilbert
as setting forth ‘‘watershed procedural rules’’ and that
retroactive application is appropriate here. We disagree.
There can be little dispute that Guilbert involved a
nonconstitutional state evidentiary claim involving the
reliability of eyewitness identifications. See State v.
Guilbert, supra, 306 Conn. 265 n.45 (‘‘[t]he defendant
makes no claim—and there is no basis for such a claim
—that the impropriety was of constitutional magni-
tude’’). Although our Supreme Court has established
‘‘the general rule that ‘judgments that are not by their
terms limited to prospective application are presumed
to apply retroactively . . . to cases that are pending’ ’’;
State v. Hampton, 293 Conn. 435, 457, 462 n.16, 988
A.2d 167 (2009); it generally does not permit complete
retroactive application of these judgments on collateral
review. Instead, our Supreme Court has clarified that
‘‘[c]omplete retroactive effect is most appropriate in
cases that announce a new constitutional rule or a new
judicial interpretation of a criminal statute.’’ (Emphasis
added; internal quotation marks omitted.) State v.
Turner, 334 Conn. 660, 677 n.6, 224 A.3d 129 (2020),
quoting State v. Ryerson, 201 Conn. 333, 339, 514 A.2d
337 (1986); see also Luurtsema v. Commissioner of
Correction, 299 Conn. 740, 764, 12 A.3d 817 (2011) (full
retroactivity for new judicial interpretation of criminal
statute); Johnson v. Warden, 218 Conn. 791, 798, 591
A.2d 407 (1991) (‘‘there is nothing in Teague or Griffith
[v. Kentucky, 479 U.S. 314, 322–23, 107 S. Ct. 708, 93 L.
Ed. 2d 649 (1987)]), that suggests that nonconstitutional
rules of criminal procedure are to be given retroactive
effect’’).
Here, because Guilbert did not announce a new con-
stitutional rule or a new judicial interpretation of a
criminal statute, complete retroactive application is
inappropriate. See, e.g., State v. Ryerson, supra, 201
Conn. 339. Accordingly, we conclude that the noncon-
stitutional evidentiary rule set forth in Guilbert does
not apply retroactively on collateral review.
Our discussion, however, does not end there. Follow-
ing Guilbert, our Supreme Court decided State v. Har-
ris, 330 Conn. 91, 95, 191 A.3d 119 (2018), in which the
defendant in that case argued that he was deprived of
his right to due process under the federal and state
constitutions when the trial court denied his motion
to suppress an out-of-court and subsequent in-court
identification of him by an eyewitness to the crimes of
which the defendant was convicted. The court con-
cluded that, for purposes of the federal constitution,
the defendant was not entitled to suppression of the
identifications in question. Id., 96. In regard to the state
constitution claim, however, the court concluded ‘‘that
the due process guarantee of the state constitution in
article first, § 8, provides somewhat broader protection
than the federal constitution with respect to the admis-
sibility of eyewitness identification testimony . . . .’’
(Footnote omitted.) Id. In concluding that the federal
analysis set forth in Neil v. Biggers, 409 U.S. 188, 196–97,
93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), was inadequate
to prevent the admission of unreliable identifications
that are tainted by an unduly suggestive procedure for
purposes of our state constitution, it adopted the Guilb-
ert framework, finding it ‘‘preferable . . . for state con-
stitutional as well as evidentiary claims involving the
reliability of eyewitness identifications.’’ State v. Har-
ris, supra, 120–21. As the respondent points out in his
brief to this court, our Supreme Court essentially
treated Guilbert as creating a new state constitutional
rule of criminal procedure that safeguards the due pro-
cess protection against the admission of an unreliable
identification.
Even if we were to construe Guilbert, through the
lens of Harris, as a ‘‘new’’ constitutional rule of criminal
procedure, this rule still would not apply on collateral
review. Our conclusion is informed by the framework
set forth in Teague v. Lane, supra, 489 U.S. 288. See
Thiersaint v. Commissioner of Correction, 316 Conn.
89, 112, 111 A.3d 829 (2015) (adopting Teague frame-
work). As already noted, it is well known that a new
constitutional rule will not apply retroactively to cases
on collateral review unless one of two exceptions apply:
the rule is substantive or, if the new rule is procedural,
it must be ‘‘a watershed [rule] of criminal procedure
. . . implicit in the concept of ordered liberty . . . .’’
(Internal quotation marks omitted.) Casiano v. Com-
missioner of Correction, supra, 317 Conn. 63.
Because the rule is clearly procedural as opposed to
substantive, we must determine whether it is a ‘‘water-
shed’’ rule. The watershed exception ‘‘is reserved for
those rules of criminal procedure implicating the funda-
mental fairness and accuracy of the criminal proceed-
ing. . . . Beyond fundamental fairness, the new rule
also must constitute a procedure without which the
likelihood of an accurate conviction is seriously dimin-
ished.’’ (Citation omitted; internal quotation marks
omitted.) Dyous v. Commissioner of Mental Health &
Addiction Services, 324 Conn. 163, 181–82, 151 A.3d
1247 (2016). ‘‘The United States Supreme Court has
narrowly construed [the watershed] exception . . . .’’
Casiano v. Commissioner of Correction, supra, 317
Conn. 63. In fact, ‘‘in the 32 years since Teague . . .
the [United States Supreme Court] has never found that
any new procedural rule actually satisfies that pur-
ported exception.’’ (Emphasis in original.) Edwards v.
Vannoy, U.S. , 141 S. Ct. 1547, 1555, 209 L. Ed.
42d 651 (2021).
In the present case, we conclude that the Guilbert
framework for evaluating the reliability of an identifica-
tion that is the result of an unnecessarily suggestive
identification procedure, which was adopted by our
Supreme Court in Harris, does not fall within the nar-
row watershed exception pursuant to Teague because,
like in Dickson (1) this rule is ‘‘prophylactic and a viola-
tion of the rule does not necessarily rise to the level of
a due process violation,’’ and (2) the rule amounts to
an incremental change in identification procedures. See
State v. Dickson, supra, 322 Conn. 451 n.34. As the court
in Harris explained, the adopted Guilbert framework
will ‘‘enhance the accuracy of the constitutional inquiry
into the reliability of an identification that has been
tainted by improper state conduct’’ and allow the ‘‘relia-
bility analysis to evolve as the relevant science evolves.’’
(Emphasis added.) State v. Harris, supra, 330 Conn.
120–21. Accordingly, Guilbert does not apply on collat-
eral review for these reasons too.
C
In light of our conclusion that the rules announced
in Dickson and Guilbert do not apply retroactively on
collateral review, we conclude that the petitioner’s
count six and count seven claims were properly dis-
missed on the basis of res judicata. On his direct appeal
before our Supreme Court, the petitioner argued that
the trial court deprived him of his due process rights
by allowing ‘‘the admission of an in-court identification
of the [petitioner] after an unnecessarily suggestive pre-
trial identification procedure had been conducted
. . . .’’ State v. Tatum, supra, 219 Conn. 723. The court
concluded, inter alia, that the ‘‘identification of him at
the probable cause hearing was not the result of an
unnecessarily suggestive procedure.’’ Id., 732. Because
the petitioner previously has raised and litigated these
claims pertaining to his identification, dismissal was
appropriate. See Woods v. Commissioner of Correction,
supra, 197 Conn. App. 612.
III
The petitioner’s final claim is that the habeas court
erred in denying count five of the operative petition,
which alleged ineffective assistance against his third
habeas counsel. Although the petitioner makes more
than a dozen claims of ineffective assistance against
his third habeas counsel, he takes issue with the court’s
determination as to two of them. He argues that count
five should not have been denied because the habeas
court erred (1) when it disposed of his ineffective assis-
tance claim by way of procedural default for his failure
to allege and prove that his appellate counsel were
ineffective for failing to challenge LeVasseur’s identifi-
cation on the basis of due process, and (2) when it
determined that his ‘‘third habeas counsel was not inef-
fective for failing to allege and prove a claim that trial
counsel was ineffective for failing to investigate and
present a defense of third-party culpability.’’ For the
reasons discussed herein, we conclude denial of count
five was proper.
In the habeas court’s memorandum of decision, the
court addressed the petitioner’s factual claim that his
third habeas counsel, Paul Kraus, ‘‘was ineffective for
failing to allege and prove that counsel who handled
the petitioner’s direct appeal . . . was ineffective for
failing to argue that LaVasseur’s identification of the
petitioner violated his due process rights.’’ The court
stated in relevant part: ‘‘The court finds that the peti-
tioner has procedurally defaulted on this claim. . . . If
the petitioner desired, all of the information necessary
to challenge LaVasseur’s identification on appeal was
available at the time the petitioner raised similar chal-
lenges to Lombardo’s identification. Appellate counsel
was not called to testify, so the reason[s] he chose only
to attack only Lombardo’s identification are unknown.
The petitioner also failed to present any other substan-
tive evidence of the alleged viability of raising claims,
or the specific nature of the claims, that supposedly
could have been brought to challenge LaVasseur’s iden-
tification. Having failed to do so, the petitioner has
failed to overcome the presumption that appellate coun-
sel’s choice of issues to raise on appeal was based on
sound appellate strategy.’’ (Citation omitted.)
On appeal, the petitioner argues that this claim as a
matter of law cannot be barred by procedural default.
The respondent agrees with the petitioner, conceding
that ‘‘the petitioner was not required to make a thresh-
old showing of cause and prejudice as a predicate for
alleging ineffective assistance of habeas counsel’’ in
this instance. See, e.g., Johnson v. Commissioner of
Correction, 285 Conn. 556, 570, 941 A.2d 248 (2008)
(cause and prejudice test does not apply when peti-
tioner brought habeas claim alleging ineffective assis-
tance of trial counsel). Despite this misstep by the
habeas court, the respondent argues that the habeas
court was right to deny this claim but for the wrong
reasons and argues that this court should affirm the
habeas court’s ruling on the alternative ground of collat-
eral estoppel.5 We agree with the respondent.
‘‘The common-law doctrine of collateral estoppel, or
issue preclusion, embodies a judicial policy in favor of
judicial economy, the stability of former judgments and
finality. . . . Collateral estoppel . . . is that aspect of
res judicata which prohibits the relitigation of an issue
when that issue was actually litigated and necessarily
determined in a prior action between the same parties
upon a different claim. . . . For an issue to be subject
to collateral estoppel, it must have been fully and fairly
litigated in the first action. It also must have been actu-
ally decided and the decision must have been necessary
to the judgment. . . .
‘‘An issue is actually litigated if it is properly raised
in the pleadings or otherwise, submitted for determina-
tion, and in fact determined. . . . An issue is necessar-
ily determined if, in the absence of a determination of
the issue, the judgment could not have been validly
rendered . . . . [C]ollateral estoppel [is] based on the
public policy that a party should not be able to relitigate
a matter which it already has had an opportunity to
litigate. . . . Stability in judgments grants to parties
and others the certainty in the management of their
affairs which results when a controversy is finally laid
to rest.’’ (Citation omitted; internal quotation marks
omitted.) Johnson v. Commissioner of Correction,
supra, 168 Conn. App. 310.
In this appeal, the petitioner essentially argues that
he should not be prevented from pursuing the claim
that his third habeas counsel, Kraus, failed to allege
and prove that appellate counsel, King, Barry, and Dav-
enport, were ineffective for failing to challenge LeVas-
seur’s identification. Upon our review of the record,
however, we conclude that the dispositive issue already
has been litigated and, thus, is precluded by the doctrine
of collateral estoppel. It previously has been determined
that admission at trial of the identifications of the peti-
tioner were proper. For example, following his first
habeas trial, the habeas court, Zarella, J., found that
‘‘the state’s case was strong with regard to the identifica-
tion of the petitioner despite the initial misidentifica-
tions. Not only did LeVasseur and Lombardo identify
the petitioner as being at the scene but a third person,
[Charles] Wilson, who was also at the scene of the
shooting told the police that he saw the gunman.
Despite his reluctance to testify at the criminal trial
and his claim of no present recollection, Wilson’s sworn
statement to the police described the gunman to the
jury as [six feet, three inches] and about 170 pounds.
. . . This clearly would have eliminated Frazer as the
shooter . . . .’’ (Citation omitted.) See Tatum v. War-
den, supra, 1999 WL 130324, *11. The habeas court
further explained that, ‘‘[w]hile LeVasseur and Lom-
bardo had both initially identified Frazer as the perpe-
trator, there existed a plausible and simple explanation
for that identification. Frazer had striking facial similari-
ties to the petitioner. However, when LeVasseur viewed
Frazer in a lineup, he was eliminated as the perpetrator
based upon his height.’’ Id. As the habeas court after
the first habeas trial explained, ‘‘While Frazer bore a
striking facial resemblance to the petitioner, Frazer is
approximately [five feet, three inches] or [five feet, four
inches] tall and the petitioner is at least [six feet, one
inch] tall.’’ Id., *4. Additionally, ‘‘both witnesses prior
to the events of February 25, 1988, had contact with
both the petitioner and Frazer.’’ Id., *11.
This previous decision, supported by the facts in the
record, in addition to our Supreme Court’s decision
in the petitioner’s direct appeal, which addressed the
constitutionality and appropriateness of the identifica-
tions in the case, demonstrate that the issue of LeVas-
seur’s identification of the petitioner as the shooter was
determined to be reliable and admissible at that time.
These previous decisions rejected the argument that
trial counsel was ineffective for failing to properly chal-
lenge the identifications of the petitioner as the shooter.
Because this already litigated issue underlies and is
determinative of the petitioner’s current ineffective
assistance claim against Kraus, we conclude that collat-
eral estoppel bars his claim.
As a final task, we must address the petitioner’s
related argument that the habeas court improperly con-
cluded that Kraus provided effective assistance of coun-
sel although he failed to allege and prove a claim that
trial counsel was ineffective for failing to investigate
and present a defense of third-party culpability. He
argues that because ‘‘LeVasseur and Lombardo sepa-
rately identified Frazer within hours of the shooting,
development of the third-party culpability claim in this
case was critical.’’ We are not convinced.
We begin by setting forth our well settled standard of
review governing ineffective assistance of counsel claims.
‘‘In a habeas appeal, this court cannot disturb the under-
lying facts found by the habeas court unless they are
clearly erroneous, but our review of whether the facts
as found by the habeas court constituted a violation of
the petitioner’s constitutional right to effective assis-
tance of counsel is plenary.’’ (Internal quotation marks
omitted.) McClean v. Commissioner of Correction, 103
Conn. App. 254, 262, 930 A.2d 693 (2007), cert. denied,
285 Conn. 913, 943 A.2d 473 (2008).
‘‘Furthermore, it is well established that [a] criminal
defendant is constitutionally entitled to adequate and
effective assistance of counsel at all critical stages of
criminal proceedings. . . . This right arises under the
sixth and fourteenth amendments to the United States
constitution and article first, § 8, of the Connecticut
constitution. . . . As enunciated in Strickland v.
Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984)], this court has stated: It is axiomatic
that the right to counsel is the right to the effective
assistance of counsel. . . . A claim of ineffective assis-
tance of counsel consists of two components: a perfor-
mance prong and a prejudice prong. To satisfy the per-
formance prong . . . the petitioner must demonstrate
that his attorney’s representation was not reasonably
competent or within the range of competence displayed
by lawyers with ordinary training and skill in the crimi-
nal law. . . . To satisfy the prejudice prong, a claimant
must demonstrate that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. . . . [I]n
order to demonstrate that counsel’s deficient perfor-
mance prejudiced his defense, the petitioner must
establish that counsel’s errors were so serious as to
deprive the [petitioner] of . . . a trial whose result is
reliable. . . . Because both prongs of Strickland must
be demonstrated for the petitioner to prevail, failure to
prove either prong is fatal to an ineffective assistance
claim.’’ (Citations omitted; internal quotation marks
omitted.) Llera v. Commissioner of Correction, 156
Conn. App. 421, 426–27, 114 A.3d 178, cert. denied, 317
Conn. 907, 114 A.3d 1222 (2015).
‘‘[J]udicial scrutiny of counsel’s performance must be
highly deferential. . . . A fair assessment of attorney
performance requires that every effort be made to elimi-
nate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and
to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making
the evaluation, a court must indulge a strong presump-
tion 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. . . . In reconstructing the
circumstances, a reviewing court is required not simply
to give [counsel] the benefit of the doubt . . . but to
affirmatively entertain the range of possible reasons
. . . counsel may have had for proceeding as [he] did
. . . .’’ (Internal quotation marks omitted.) Cancel v.
Commissioner of Correction, 189 Conn. App. 667, 693,
208 A.3d 1256, cert. denied, 332 Conn. 908, 209 A.3d
644 (2019). ‘‘[S]trategic choices made after thorough
investigation of law and facts relevant to plausible
options are virtually unchallengeable . . . .’’ (Internal
quotation marks omitted.) Gaines v. Commissioner of
Correction, 306 Conn. 664, 680, 51 A.3d 948 (2012).
‘‘[T]here are countless ways to provide effective assis-
tance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the
same way.’’ (Internal quotation marks omitted.) Mele-
trich v. Commissioner of Correction, 332 Conn. 615,
637, 212 A.3d 678 (2019).
For assessing claims of ineffective assistance based
on the performance of prior habeas counsel, the Strick-
land standard ‘‘requires the petitioner to demonstrate
that his prior habeas counsel’s performance was inef-
fective and that this ineffectiveness prejudiced the peti-
tioner’s prior habeas proceeding. . . . [T]he petitioner
will have to prove that . . . prior habeas counsel, in
presenting his claims, was ineffective and that effective
representation by habeas counsel establishes a reason-
able probability that the habeas court would have found
that he was entitled to reversal of the conviction and
a new trial . . . . Therefore, as explained by our
Supreme Court in Lozada v. Warden, 223 Conn. 834,
613 A.2d 818 (1992), a petitioner claiming ineffective
assistance of habeas counsel on the basis of ineffective
assistance of [appellate] counsel must essentially sat-
isfy Strickland twice: he must prove both (1) that his
appointed habeas counsel was ineffective, and (2) that
his [trial] counsel was ineffective.’’ (Citations omitted;
internal quotation marks omitted.) Ham v. Commis-
sioner of Correction, 152 Conn. App. 212, 230, 98 A.3d
81, cert. denied, 314 Conn. 932, 102 A.3d 83 (2014).
At the heart of the petitioner’s claim is his contention
that Kraus was ineffective in failing to allege and prove
a claim that trial counsel, McDonough, was ineffective
in his investigation of a third-party suspect, namely,
Frazer, and presentation of such defense based specifi-
cally on Frazer’s culpability rather than generally on
the misidentification of the petitioner. The petitioner
makes various arguments that Kraus’ performance was
deficient as a result of not challenging trial counsel’s
alleged failure (1) to ask Frazer about certain state-
ments that were contained in his police statement, (2)
to ask Frazer about his whereabouts on the night in
question, (3) to question Frazer about certain equip-
ment that had been at Parrett’s apartment, which would
have given Frazer a reason to go to that apartment, and
(4) to call Wilson, who witnessed the shooting, to testify
about certain information in his police statement,
including the statement that LeVasseur told him that
‘‘the man at the door was the ‘same [man] who had
recently been arrested by the police.’ ’’ According to the
petitioner, this information, combined with LeVasseur’s
and Lombardo’s initial identifications of Frazer as the
shooter, was sufficient to give a charge on third-party
culpability.
On the basis of our review of the record, we agree
with the habeas court that the petitioner failed to suffi-
ciently demonstrate that the evidence was adequate
to support a viable third-party culpability defense. See
Santiago v. Commissioner of Correction, 87 Conn. App.
568, 590, 867 A.2d 70 (‘‘[w]ithout more, none of those
statements contain sufficient substance to support a
viable third-party culpability defense, particularly when
taken in conjunction with the considerable evidence
that instead implicated the petitioner’’), cert. denied,
273 Conn. 930, 873 A.2d 997 (2005). Although there is
evidence from which a reasonable fact finder could find
that Frazer, at some time prior to the day of the crime,
was present at the apartment where the shooting
occurred, the necessary factual nexus between the
crime committed and Frazer is lacking. See State v.
Arroyo, 284 Conn. 597, 610, 935 A.2d 975 (2007) (‘‘[e]vi-
dence that would raise only a bare suspicion that a
third party, rather than the defendant, committed the
charged offense would not be relevant to the jury’s
determination’’). The habeas court accurately noted
that nothing, other than the initial misidentifications,
raised by the petitioner ‘‘connect[ed] [Frazer] to the
apartment on the date of this incident.’’ Moreover, cer-
tain statements made to the police by Wilson, who alleg-
edly witnessed the shooting, are no more supportive
of such defense. As previously discussed, Wilson’s state-
ment to police actually identified the shooter as being
six feet, three inches tall, which effectively eliminated
Frazer, who was five feet, three inches or five feet, four
inches tall, as the shooter. Although there is no question
that Lombardo and LeVasseur initially identified Frazer
as the perpetrator, they corrected their initial identifica-
tions to identify the petitioner as the shooter. As the
record demonstrates, there existed a plain explanation
for that initial identification—Frazer had striking facial
similarities to the petitioner. There was nothing more,
however, that directly tied Frazer to the crime scene
on the night in question. See, e.g., State v. Corley, 106
Conn. App. 682, 690, 943 A.2d 501 (‘‘although the pro-
posed evidence may have shown that [the third-party
suspect] bore a physical resemblance to the defendant,
there was no evidence that [the third-party suspect] and
the other male were involved in the’’ crime committed),
cert. denied, 287 Conn. 909, 950 A.2d 1285 (2008).
Accordingly, we agree with the habeas court that the
petitioner failed to demonstrate that his trial counsel
was ineffective on this basis. Because the petitioner
has failed to demonstrate that trial counsel was ineffec-
tive, the petitioner’s claim necessarily fails against his
third habeas counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The fifth amended petition, which only corrected scrivener’s errors in
the fourth amended petition, was filed subsequent to the dates of the active
return and reply. The habeas court indicated that the parties agreed to allow
the earlier return and reply to the fourth amended petition to stand as the
responsive pleadings.
2
We note that, in addressing count two of the petitioner’s petition, it
appears that the habeas court initially recognized that it was a claim of
ineffective assistance but then treated it as a freestanding due process claim.
The court ultimately dismissed the allegation on the basis of res judicata,
concluding that our Supreme Court had previously rejected the claim in the
petitioner’s direct appeal. Notwithstanding this oversight, we conclude that
the habeas court properly dismissed count two on the basis of res judicata,
albeit for a somewhat different reason. See Sanchez v. Commissioner of
Correction, 203 Conn. App. 752, 760–61, 250 A.3d 731 (‘‘[i]t is axiomatic that
[w]e may affirm a proper result of the trial court for a different reason’’
(internal quotation marks omitted)), cert. denied, 336 Conn. 946, 251 A.3d
77 (2021).
3
On the basis of that comprehensive scientific research, the court listed
a nonexclusive list of factors affecting the reliability of eyewitness identifica-
tions: ‘‘(1) there is at best a weak correlation between a witness’ confidence
in his or her identification and the identification’s accuracy; (2) the reliability
of an identification can be diminished by a witness’ focus on a weapon; (3)
high stress at the time of observation may render a witness less able to
retain an accurate perception and memory of the observed events; (4) cross-
racial identifications are considerably less accurate than identifications
involving the same race; (5) memory diminishes most rapidly in the hours
immediately following an event and less dramatically in the days and weeks
thereafter; (6) an identification may be less reliable in the absence of a
double-blind, sequential identification procedure; (7) witnesses may develop
unwarranted confidence in their identifications if they are privy to postevent
or postidentification information about the event or the identification; and
(8) the accuracy of an eyewitness identification may be undermined by
unconscious transference, which occurs when a person seen in one context
is confused with a person seen in another.’’ State v. Guilbert, supra, 306
Conn. 253–54. The court concluded that these factors satisfy the test set
forth in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523
U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), for the admissibility of
scientific evidence. See State v. Guilbert, supra, 254.
4
In Edwards v. Vannoy, supra, 141 S. Ct. 1557, the United States Supreme
Court recently observed that it ‘‘has flatly proclaimed on multiple occasions
that the watershed exception is unlikely to cover any more new rules. Even
32 years ago in Teague itself, the [c]ourt stated that it was ‘unlikely’ that
additional watershed rules would ‘emerge.’ ’’
5
Affirmance of a judgment on alternative grounds is proper when those
grounds present pure questions of law, the record is adequate for review,
and the petitioner will suffer no prejudice because he has the opportunity
to respond to proposed alternative grounds in the reply brief. State v. Martin
M., 143 Conn. App. 140, 151–53, 70 A.3d 135, cert. denied, 309 Conn. 919,
70 A.3d 41 (2013).