Tilus v. Commissioner of Correction

TINESSE TILUS v. COMMISSIONER OF CORRECTION
(AC 39275)
Lavine, Mullins and Beach, Js.
Syllabus
The petitioner sought a writ of habeas corpus, claiming that his right to
conflict free counsel was violated and that his trial counsel provided
ineffective assistance. The petitioner had been convicted of the crime
of robbery in the first degree in connection with his alleged conduct in
robbing a store with three accomplices, including B. During pretrial
proceedings, both the petitioner and B were initially represented by the
same public defender, S, who continued to represent the petitioner only
during his criminal trial following an inquiry by the trial court concerning
a potential conflict of interest. On direct appeal, the petitioner claimed
that S’s joint representation of the petitioner and B in the pretrial phase
presented a conflict of interest and that, because the trial court’s inquiry
into the matter was not adequate to apprise him of the risks of continued
representation by S, there was no valid waiver of the potential conflict,
in violation of his constitutional right to conflict free representation.
This court rejected the petitioner’s claim and affirmed the judgment of
the trial court. The Supreme Court dismissed the petitioner’s appeal from
this court’s judgment. Thereafter, the habeas court rendered judgment
denying the habeas petition, and the petitioner, on the granting of certifi-
cation, appealed to this court from the habeas court’s judgment. Held:
1. The petitioner could not prevail on his claim that his constitutional right
to conflict free counsel was violated by S’s representation of both the
petitioner and B prior to the petitioner’s criminal trial: the habeas court
properly determined that no actual conflict of interest existed and that
the petitioner had failed to prove a single, specific instance in which
S’s representation of him was compromised by the alleged conflict, as
the record showed that both B and the petitioner told S the same version
of events, there was no evidence that the petitioner ever said or did
anything to suggest that he had information that would implicate B or
that could have been used to secure for the petitioner a favorable plea
deal from the state, and there was no impairment or compromise of
the petitioner’s interests for the benefit of B; moreover, the habeas court
properly determined that the petitioner had failed to prove that he was
prejudiced by any potential conflict created by the dual representation,
as there was no evidence that the petitioner sought a plea agreement
or knew anything that S could have used to negotiate an agreement for
him, and it was not likely that the state would have benefited from the
petitioner’s cooperation.
2. The habeas court properly determined that the petitioner was not denied
his constitutional right to the effective assistance of trial counsel,
because, although S’s representation was deficient in that he failed to
conduct a timely investigation into the charges against the petitioner,
the petitioner was not prejudiced thereby; the habeas court correctly
concluded that the failure to call A as a defense witness did not under-
mine the jury’s verdict, as A’s testimony would not have undermined
the testimony of one of the state’s witnesses, and the petitioner failed to
demonstrate that he was prejudiced by S’s introduction of J’s testimony,
because, even though J testified on cross-examination that he had a
criminal record, his testimony on direct examination was consistent
with the petitioner’s theory of the crime.
Argued May 17—officially released August 8, 2017
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, geographical area number nineteen, and tried
to the court, Bright, J.; judgment denying the petition,
from which the petitioner, on the granting of certifica-
tion, appealed to this court. Affirmed.
Vishal K. Garg, for the appellant (petitioner).
Emily D. Trudeau, assistant state’s attorney, with
whom, on the brief, was John. C. Smriga, state’s attor-
ney, for the appellee (respondent).
Opinion
LAVINE, J. The petitioner, Tinesse Tilus, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court improperly con-
cluded that his state and federal constitutional rights
to (1) conflict free counsel and (2) the effective assis-
tance of counsel were not violated. We affirm the judg-
ment of the habeas court.
In 2012, following a jury trial, the petitioner was con-
victed of one count of robbery in the first degree, in
violation of General Statutes § 53a-134 (a) (2), for his
participation in the robbery of the Caribbean-American
Grocery and Deli in Bridgeport on December 28, 2011.
State v. Tilus, 157 Conn. App. 453, 455, 117 A.3d 920
(2015), appeal dismissed, 323 Conn. 784, 151 A.3d 382
(2016). The trial court, Kavanewsky, J., sentenced the
petitioner to twelve years of incarceration, execution
suspended after eight years, followed by four years
of probation. Id., 460. The petitioner’s conviction was
affirmed by this court on direct appeal. Id., 489. On
July 8, 2015, our Supreme Court granted the petitioner
certification to appeal limited, in part, to the following
issue: ‘‘Did the Appellate Court properly determine that
the trial court secured a valid waiver of the [petitioner’s]
constitutional right to conflict free representation?’’
State v. Tilus, 317 Conn. 915, 117 A.3d 854 (2015). The
Supreme Court subsequently dismissed the petitioner’s
direct appeal from the Appellate Court’s judgment.
State v. Tilus, supra, 323 Conn. 784.1
The following facts, as set forth by this court in resolv-
ing the petitioner’s direct appeal, provide the context
for the claims he raises in the present appeal.2 At
approximately 8 p.m. on December 28, 2011, Rene
Aldof3 and Ramon Tavares were tending Aldof’s store
on Wood Avenue in Bridgeport, ‘‘when four men entered
the store. One of the men was the [petitioner], whom
Aldof recognized as ’Tinesse,’ a regular customer of the
store. Aldof also recognized a second man, Jean Barjon,
but did not recognize either of the two other men. One
of the unknown men pulled out a handgun and
demanded that Aldof give him the money, while the
other three men, including the [petitioner], ’encased’
him in an effort to prevent his escape. Aldof was able
to push past the men and exit the store, pursued by
one of the men, who unsuccessfully attempted to
restrain him by grabbing his coat. Aldof ran into a
nearby laundromat, where he held the door shut to
prevent his pursuer from coming in behind him.’’ State
v. Tilus, supra, 157 Conn. App. 455–56.
Tavares was stationed in a plexiglass booth with the
cash register and remained there after Aldof left the
store. Id., 456. A man pointing a gun at Tavares
approached the booth and ordered him to open the
door. Id. The man entered the booth when Tavares
opened the door and turned Tavares to face the wall,
held the gun to his head, and took Tavares’ cell phone,
wallet and the money in the cash register. Id.
Outside, Bridgeport Police Officer Elizabeth Santora
was driving her police cruiser on Wood Avenue when
Aldof exited the laundromat and flagged her down. Id.
Aldof told Santora that he had been robbed at gunpoint
and pointed to one of his assailants who was walking
down Wood Avenue. Id., 456–57. Santora followed the
suspect and saw him stop next to several trash cans
on Sherwood Avenue. Id., 457. She exited her police
cruiser, ordered the suspect to stop, apprehended him,
and pulled him toward her cruiser. Id.
‘‘As Santora approached the cruiser with the suspect
in tow, she observed a white Nissan Altima that had
been parked on Sherwood Avenue begin ’pulling off’
into the street. Aldof, then positioned on the corner of
Wood and Sherwood Avenues, told Santora that the
three men in the Altima had also been involved in the
robbery. Santora flagged down the vehicle and told its
driver to stop the car and give her the keys. The driver
obeyed. The first suspect and the three men in the
Altima were detained for questioning. The [four] men
were later identified as Guillatemps Jean-Philippe, Jean
Louis, Barjon, and the [petitioner]. Aldof confirmed that
the detainees were the same four men who had robbed
his store.’’4 Id.
The petitioner was arrested and charged with con-
spiracy to commit robbery in the first degree and rob-
bery in the first degree. Id., 458. He pleaded not guilty
and testified at trial that on the night of the robbery,
‘‘his friend, Barjon, had come to his house at about 7
p.m. and asked him if he would like to take a ride to
New Haven. When he agreed to do so, he got in Barjon’s
car, where Jean-Philippe and another man he did not
know were seated in the rear passenger seat. The [peti-
tioner] was told that Barjon had agreed to drive the
two men to the train station in New Haven. Instead,
however, Barjon drove to Aldof’s store and parked his
car on the corner of Wood and Sherwood Avenues. The
[petitioner] testified that once they arrived at the store,
Jean-Philippe, ’with no mention, nothing,’ got out of the
car and entered the store. The [petitioner] and the other
two men remained in the parked car . . . .’’ Id., 458–59.
The following undisputed procedural history is rele-
vant to the present appeal. At his arraignment on
December 29, 2011, the petitioner was represented by
a public defender. Id., 460–61. Barjon also was arraigned
that day, and he, too, was represented by a public
defender. Id., 461. On January 31, 2012, Eroll Skyers,
an attorney, filed an appearance on behalf of the peti-
tioner and Barjon. Id. On February 7, 2012, the petitioner
entered a plea of not guilty before the court, Devlin,
J. Id. Skyers informed Judge Devlin that he represented
both the petitioner and Barjon. Id. On April 9, 2012, the
petitioner and Skyers appeared before Judge Devlin.
Id. The petitioner rejected the state’s plea offer, and
the case was placed on the trial list. Id.
On October 2, 2012, Skyers and Barjon appeared
before Judge Devlin. Id. Skyers represented to the court
that Barjon intended to plead guilty under the Alford
doctrine5 to the charge of conspiracy to commit robbery
in the first degree. Id. ‘‘Barjon failed his plea canvass,
however, and thus the court vacated his guilty plea.
Because, at that time, it was clear that both Barjon
and the [petitioner] intended to proceed to trial, [Judge
Devlin] raised with Skyers the potential conflict of inter-
est presented by his continued representation of both
men. In this regard, the court focused initially on prob-
lems associated with Skyers’ continued representation
of Barjon. Skyers responded by stating for the record
that when Barjon and the [petitioner] first came to him
seeking joint representation, he had informed them that
there could be a potential conflict if both cases pro-
ceeded to trial. Although both men persisted in their
desire to have him represent them, they agreed that
Barjon would retain other counsel if his case was not
resolved by entering a guilty plea.’’ (Footnote omitted.)
Id., 461–62. The prosecutor questioned whether, given
the circumstances, Skyers’ continued representation of
the petitioner was advisable and identified scenarios
that presented a potential conflict of interest. Id., 462.
Judge Devlin asked Skyers whether he had discussed
the matter with the petitioner. Id. The petitioner was
in the courtroom and came forward to answer questions
from Judge Devlin. Id. The court explained the attorney-
client privilege to the petitioner and potential conflict
that could arise as a result of Skyers’ having represented
both the petitioner and Barjon. Id., 463. The following
colloquy occurred.
‘‘The Court: So . . . I don’t know what Mr. Barjon
[is] going to do. I assume he’s going to hire his own
lawyer, and whatever happens with that case, happens
with that case. I’m more concerned with yours because
I think I’m going to let Mr. Skyers out of Mr. Barjon’s
case. But with respect to you, do you still wish to have
Mr. Skyers as your lawyer under those circumstances?
‘‘[The Petitioner]: Yes.
‘‘The Court: Would you like to consult with another
lawyer, a different lawyer about this, you know, before
we go forward with your case?
‘‘[The Petitioner]: No. . . .
‘‘The Court: Okay. All right. And, Attorney Skyers,
from your point of view, have I correctly framed the
issue as far as—is there more that should be put on
the record here?
‘‘[Skyers]: Absolutely have, Your Honor. Yes.’’ (Inter-
nal quotation marks omitted.) Id., 464.
On direct appeal, the petitioner claimed that Judge
Devlin’s ‘‘failure to secure a valid waiver violated his
constitutional right to conflict free representation.’’ Id.,
460. He argued that ‘‘Skyers’ joint representation of
[him] and Barjon in the pretrial phase of the proceedings
gave rise to a conflict of interest which jeopardized the
[petitioner’s] sixth and fourteenth amendment right to
counsel. He further argue[d] that [Judge Devlin’s]
inquiry into the matter was not adequate to apprise him
of the risks of continued representation by Skyers and,
thus, no valid waiver was obtained.’’ Id., 464. This court
disagreed; id., 460; stating that ‘‘the record shows that
the court explored the potential conflict of interest
when the issue was raised by the prosecutor. The court
heard from Skyers and the [petitioner]. Skyers repre-
sented to the court that he had discussed the potential
conflict of interest with the [petitioner]. The court then
informed the [petitioner] of the risks attendant to Sky-
ers’ representation of him, namely, Skyers’ continuing
obligations to Barjon and the ethical barrier to using
any information that he had acquired as a result of
representing Barjon. The [petitioner] confirmed that he
was aware of Skyers’ obligations to Barjon, and he
expressed his desire to proceed with his retained coun-
sel.’’ Id., 467–68.
This court observed that ‘‘[i]n any case involving a
possible conflict of interest, the court must be mindful
of the defendant’s constitutional right to the counsel
of his choice . . . when making a determination as to
the soundness of the defendant’s determination to move
forward with his present counsel despite the potential
risks. [O]ur chosen system of criminal justice is built
on a truly equal and adversarial presentation of the case,
and upon the trust that can exist only when counsel is
independent of the [g]overnment. Without the right,
reasonably exercised, to counsel of choice, the effec-
tiveness of that system is imperiled.’’ (Citation omitted;
internal quotation marks omitted.) Id., 471–72.
This court concluded that the petitioner ‘‘persisted
in his desire to proceed to trial with the assistance of
[Skyers,] his chosen counsel. In light of the fact that
the only anticipated impediment to Skyers’ continued
representation of the [petitioner] was the possibility
that Barjon would choose to testify on the [petitioner’s]
behalf, which the court correctly deemed unlikely given
Barjon’s decision to proceed to trial, it properly
deferred to the [petitioner’s] expressed desire to pro-
ceed, notwithstanding the potential conflict.’’ Id., 472.
This court rejected the petitioner’s remaining claims
and affirmed the petitioner’s judgment of conviction.
Id., 489. The petitioner filed a petition for certification
to appeal, which was granted.6
While his direct appeal was pending in this court, the
self-represented petitioner filed a petition for a writ of
habeas corpus in January, 2014. On March 19, 2015, the
petitioner’s appointed habeas counsel filed an amended
petition for a writ of habeas corpus, alleging that the
petitioner’s right to conflict free counsel was violated
(count one) and that he received ineffective assistance
of trial counsel (count two). The respondent, Commis-
sioner of Correction, denied the material allegations of
the amended petition and asserted a special defense
that count one of the petition was not ripe for adjudica-
tion, as the claim regarding the claim of waiver as to
conflict free counsel was still pending and therefore not
ripe for adjudication. In the alternative, the respondent
alleged that once this court had adjudicated the waiver
claim, the issue would be res judicata and barred from
further litigation. The petitioner replied to the respon-
dent’s return, alleging that count one was ripe pursuant
to the prudential ripeness doctrine, that he had suffered
actual injury due to his trial counsel’s conflict of inter-
est, and that his claim was not contingent on this court’s
resolution of his direct appeal. Moreover, the petitioner
alleged that even if this court concluded that count one
required factual development, the claim was not barred
by the doctrine of res judicata.
This court affirmed the petitioner’s conviction on May
26, 2015, concluding in relevant part that Judge Devlin
did not violate the petitioner’s constitutional right to
conflict free counsel by failing to secure a valid waiver
of that right. Id., 460. Our Supreme Court granted certifi-
cation to appeal. The parties appeared before the
habeas court for trial on July 20 and 21, 2015. The
habeas court asked the parties to brief the impact of
the pending certified appeal on the petitioner’s claim
of conflict free counsel.
The habeas court issued a memorandum of decision
on January 11, 2016, in which it concluded that the
doctrine of prudential ripeness warranted dismissal of
count one while the question of whether the petitioner
validly had waived his right to conflict free representa-
tion was pending in our Supreme Court.7 With respect
to count two, the habeas court found that Skyers’ repre-
sentation was deficient in that he failed to timely and
adequately investigate the charges against the peti-
tioner. The court concluded, however, that the peti-
tioner failed to prove that he was prejudiced by Skyers’
deficient performance. See Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (to
prevail, deficient performance must result in prejudice).
The court dismissed without prejudice count one of the
amended petition and denied the claims in count two.
On January 15, 2016, the petitioner filed a motion to
reargue the habeas court’s decision to dismiss count
one on the ground of prudential ripeness. The habeas
court granted the motion to reargue, and the parties
appeared before the court for further argument on Feb-
ruary 23, 2016. As a consequence of the parties’ argu-
ments,8 on May 9, 2016, the court issued an amended
memorandum of decision in which it denied count one,
after it concluded that the petitioner failed to prove
that any potential conflict created by Skyers’ having
represented both the petitioner and Barjon was prejudi-
cial to him.9 Thereafter, the court granted the petition-
er’s petition for certification to appeal from the denial
of his petition for a writ of habeas corpus. The petitioner
appealed to this court. Additional facts will be set forth
as needed.
I
The petitioner claims that his constitutional right to
conflict free counsel, as provided by the sixth and four-
teenth amendments to the United States constitution
and article first, §§ 8 and 9, of the constitution of Con-
necticut, was violated by Skyers’ having represented
both the petitioner and Barjon prior to the petitioner’s
criminal trial. We disagree.
‘‘The sixth amendment to the United States constitu-
tion as applied to the states through the fourteenth
amendment, and article first, § 8, of the Connecticut
constitution, guarantee to a criminal defendant the right
to effective assistance of counsel. . . . Where a consti-
tutional right to counsel exists, our [s]ixth [a]mendment
cases hold that there is a correlative right to representa-
tion that is free from conflicts of interest.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) State v. Crespo, 246 Conn. 665, 685, 718 A.2d
925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911,
142 L. Ed. 2d 909 (1999).
Conflicts of interest usually arise when counsel
undertakes to represent multiple codefendants ‘‘where
the attorney adduces evidence or advances arguments
on behalf of one defendant that are damaging to the
interests of the other defendant.’’ (Internal quotation
marks omitted.) State v. Cruz, 41 Conn. App. 809, 812,
678 A.2d 506, cert. denied, 239 Conn. 908, 682 A.2d 1008
(1996). ‘‘A conflict of interest also arises if trial counsel
simultaneously represents the defendant and another
individual associated with the incident and that repre-
sentation inhibits counsel’s ability to represent the
defendant.’’ Id.
‘‘Whether the circumstances of pretrial counsel’s rep-
resentation, as found by the habeas court, amount to
an actual conflict of interest is a question of law of
which our review is plenary.’’ Shefelbine v. Commis-
sioner of Correction, 150 Conn. App. 182, 193, 90 A.3d
987 (2014).
In count one of his amended petition for a writ of
habeas corpus, the petitioner alleged, in relevant part,
that Skyers simultaneously represented Barjon and him
for approximately ten months between January, 2012,
and October, 2012. The charges against the petitioner
and Barjon arose from a single incident in which they
allegedly were both involved, and therefore the petition-
er’s case and Barjon’s case were factually related. The
petitioner also alleged that Skyers had an actual conflict
of interest that adversely affected his representation
of the petitioner because Skyers made no attempt to
negotiate a plea offer that would have allowed the peti-
tioner to receive a favorable sentence in his case in
exchange for his testifying against Barjon. At the hear-
ing on his motion to reargue, the petitioner emphasized
that his claim centered on how Skyers’ alleged conflict
of interest negatively impeded his ability to negotiate
a plea agreement in exchange for a favorable disposition
of the charges against him.10
The habeas court found the following facts relevant
to the adjudication of the petitioner’s claim. From his
first meeting with Skyers through his criminal trial, the
petitioner’s version of the events that took place on
December 28, 2011, remained unchanged. The peti-
tioner told Skyers that he knew Barjon and merely
agreed to take a ride with Barjon, who was driving the
other two men to the train station in New Haven. He
did not know the other men in the car when Barjon
picked him up. Instead of going to the train station,
Barjon drove to Aldof’s store and parked. The petitioner
and Barjon remained in Barjon’s car when Jean-Philippe
got out of the car and went into the store. The petitioner
did not know of a plan to rob the store or Aldof. The
petitioner stated to Skyers that Barjon would corrobo-
rate his version of the events and was willing to sign
a statement consistent with what the petitioner had
told Skyers.
Two or three weeks after the petitioner had retained
him, Skyers met with Barjon, who confirmed the peti-
tioner’s version of events. Skyers believed that both the
petitioner and Barjon were in the same position and
agreed to represent Barjon as well. Although he
intended to have the petitioner and Barjon sign waivers
of any potential conflicts, he failed to do so. The peti-
tioner and Barjon knew that Skyers was representing
them simultaneously.
Before the petitioner’s case went to trial, Barjon
agreed to plead guilty under the Alford doctrine. See
footnote 4 of this opinion. Although he disputed the
state’s version of his involvement in the underlying
crime, Barjon was willing to accept legal responsibility
for his part in the robbery and to testify at the petition-
er’s trial that the petitioner was not involved in the
robbery. When it came time for Barjon to enter his
guilty plea, however, he changed his mind. Skyers with-
drew from representing Barjon. Judge Devlin then can-
vassed the petitioner about the fact that Skyers may
have a conflict in representing him at trial because he
could not be adverse to Barjon either in questioning or
by using confidential information Skyers had received
from Barjon.
‘‘In a case of a claimed conflict of interest . . . in
order to establish a violation of the sixth amendment the
defendant has a two-pronged task. He must establish (1)
that counsel actively represented conflicting interests
and (2) that an actual conflict of interest adversely
affected his lawyer’s performance. . . . Where there is
an actual conflict of interest, prejudice is presumed
because counsel [has] breach[ed] the duty of loyalty,
perhaps the most basic of counsel’s duties. Moreover,
it is difficult to measure the precise effect on the defense
of representation corrupted by conflicting interests.
. . . Accordingly, an ineffectiveness claim predicated
on an actual conflict of interest is unlike other ineffec-
tiveness claims in that the petitioner need not establish
actual prejudice. . . .
‘‘An actual conflict of interest is more than a theoret-
ical conflict. The United States Supreme Court has cau-
tioned that the possibility of conflict is insufficient to
impugn a criminal conviction. . . . A conflict is merely
a potential conflict of interest if the interests of the
defendant may place the attorney under inconsistent
duties at some time in the future. . . . To demonstrate
an actual conflict of interest, the petitioner must be
able to point to specific instances in the record which
suggest impairment or compromise of his interests
for the benefit of another party. . . . A mere theoreti-
cal division of loyalties is not enough. . . . If a peti-
tioner fails to meet that standard, for example, where
only a potential conflict of interest has been established,
prejudice will not be presumed and the familiar Strick-
land prongs will apply.’’ (Citations omitted; emphasis
altered; internal quotation marks omitted.) Anderson
v. Commissioner of Correction, 127 Conn. App. 538,
549–50, 15 A.3d 658 (2011), aff’d, 308 Conn. 456, 64 A.3d
325 (2013).
In the present case, the habeas court determined that
there was no actual conflict of interest between the
petitioner and Barjon.11 The court found that both Bar-
jon and the petitioner told Skyers the same version of
events, i.e., that they remained in the car and did not
go into the store, and that they had nothing to do with
the robbery. The court also found that there was no
evidence that the petitioner ever said or did anything
to suggest that he had information that would implicate
Barjon, which might be used to secure a favorable plea
deal from the state. The court found it ironic that it
was Barjon who agreed to implicate himself and to
plead guilty so that he could then testify in support of
the petitioner’s defense. Even at the time of his unsuc-
cessful Alford plea, Barjon insisted that he and the
petitioner never went into the store, but remained in
the car. Before Skyers withdrew from representing Bar-
jon, he had negotiated a plea for Barjon that would
have required him to plead guilty to one count of con-
spiracy to commit robbery in the first degree, and after
pleading guilty, to assist in the petitioner’s defense.
There was no impairment or compromise of the peti-
tioner’s interests for the benefit of Barjon or any of the
other codefendants.
The habeas court found that the petitioner had failed
to prove a single, specific instance in which Skyers’
representation of him was compromised by the alleged
conflict. The petitioner’s hypotheses of what might have
happened in plea negotiations had Skyers not also rep-
resented Barjon are theoretical and speculative. At
most, the petitioner demonstrated that Skyers had a
potential conflict of interest and, therefore, the peti-
tioner had to meet both prongs of Strickland to prevail.
‘‘To prevail on a claim of ineffective assistance of coun-
sel, a habeas petitioner generally must show that coun-
sel’s performance was deficient and that the deficient
performance prejudiced the defense. See Strickland v.
Washington, [supra, 466 U.S. 687].’’ Ortiz v. Commis-
sioner of Correction, 92 Conn. App. 242, 244, 884 A.2d
441, cert. denied, 276 Conn. 931, 889 A.2d 817 (2005).
The habeas court did not address the performance
prong of Strickland because the petitioner failed to
prove any prejudice due to a potential conflict of inter-
est. The court found no evidence that the petitioner
was ever interested in a plea agreement. Moreover, the
evidence established that it is likely that the state would
have seen little value in any cooperation from the peti-
tioner. Aldof told the police, and later testified, that
four men entered the store and participated in the rob-
bery. He specifically identified the petitioner, whom he
knew, as being in the store and part of the robbery.
The petitioner’s version of events, in which he remained
in the car while Jean-Philippe went into the store, was
inconsistent with Aldof’s version, and would have been
of little use to the state in a trial against Barjon. The
only testimony that the petitioner could have given that
would have been of use to the state was testimony
that corroborated Aldof’s, but the petitioner was never
willing to incriminate himself. The court also found that
the petitioner’s story of events never changed from
when he was arrested, to his criminal trial, to his habeas
trial. There was no evidence that the petitioner knew
anything that Skyers could have used to negotiate a
favorable plea agreement for him. The habeas court,
therefore, concluded that the petitioner failed to prove
that any potential conflict created by Skyers’ joint repre-
sentation of the petitioner and Barjon prejudiced him.12
On the basis of our review of the briefs of the parties
and their oral arguments in this court, we conclude that
the habeas court properly determined, in a detailed
and well reasoned decision, that no actual conflict of
interest between the petitioner and Barjon existed and
that the petitioner had failed to prove that he was preju-
diced by any potential conflict created by Skyers’ joint
representation of him and Barjon.
II
The petitioner’s second claim is that the habeas court
improperly determined that his constitutional right to
the effective assistance of counsel pursuant to the sixth
and fourteenth amendments to the federal constitution
and article first, §§ 8 and 9 of the constitution of Con-
necticut, was not violated. We do not agree.
‘‘In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary. . . . To succeed on
a claim of ineffective assistance of counsel, a habeas
petitioner must satisfy the two-pronged test articulated
in Strickland v. Washington, [supra, 466 U.S. 687].’’
(Citation omitted; internal quotation marks omitted.)
Mukhtaar v. Commissioner of Correction, 158 Conn.
App. 431, 437, 119 A.3d 607 (2015). ‘‘[A] court must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance; that is, the [petitioner] must overcome the
presumption that, under the circumstances, the chal-
lenged action must be considered sound trial strategy.’’
(Internal quotation marks omitted.) Id., 438.
In his amended petition for a writ of habeas corpus,
the petitioner alleged ten ways in which Skyers’ repre-
sentation was deficient. The habeas court, however,
found that the petitioner abandoned five of them by
failing to brief them and by presenting little or no evi-
dence as to them.13 Consequently, the habeas court
addressed only the claims alleging that Skyers’ repre-
sentation was deficient in that he failed to conduct
an adequate and timely investigation, failed to present
evidence that a firearm recovered near the scene of the
robbery was not connected to the petitioner and his
codefendants, failed to present evidence that the
amount of money recovered from the petitioner and
his codefendants was inconsistent with the amount of
money alleged to have been taken,14 presented the testi-
mony of Jean-Philippe, which he knew, or should have
known, would be damaging to the petitioner’s defense,
and failed to present the testimony of Margarita Azcalt.
The habeas court grouped the petitioner’s claims for
purposes of analysis.
The petitioner alleged that Skyers’ representation
was deficient because he failed to conduct a timely
investigation, which resulted in Skyers’ (1) failing to
have Azcalt testify for the defense and (2) having Jean-
Philippe testify for the defense. The court agreed that
Skyers’ representation was deficient for failing to con-
duct a timely investigation, but that the petitioner was
not prejudiced by Skyers’ deficient performance.
A
The habeas court made the following additional find-
ings of fact. The petitioner was arrested on or about
December 28, 2011, and after posting bond, met with
Skyers on or about December 31, 2011. The petitioner
then spoke with Barjon, a friend and codefendant, who
was willing to speak with Skyers and provide a support-
ing statement for the petitioner. As discussed pre-
viously, Skyers also undertook to represent Barjon. On
the basis of what the petitioner and Barjon told him,
Skyers viewed their defenses as the same and not to
be in conflict. In part because Barjon was willing to
give a statement on the petitioner’s behalf, Skyers nego-
tiated a plea arrangement for Barjon. When Barjon and
Skyers appeared before Judge Devlin, Barjon’s plea can-
vass failed and his case was placed on the trial list.
Skyers withdrew as Barjon’s counsel, and Barjon
obtained different counsel. Contrary to their original
plan, Barjon exercised his right under the fifth amend-
ment and would not testify at the petitioner’s trial.
Jury selection in the petitioner’s criminal case was
to begin in early October, 2012. Skyers only began to
discuss the defense investigation with Joseph Marchio,
then with JBM Private Investigations and Security, LLC
(JBM firm), during jury selection. By October 4, 2012,
six jurors and a number of alternates had been selected
for the petitioner’s case. Judge Kavanewsky advised
Skyers that he should be prepared to present defense
witnesses at 10 a.m. on October 17, 2012, and the matter
was continued to October 16, 2012, for the presentation
of the state’s case.
On October 10, 2012, Skyers hired the JBM firm to
investigate the petitioner’s case. Julio Ortiz, an investi-
gator with the JBM firm, prepared a memorandum
detailing his investigation efforts from October 10
through October 18, 2012. Ortiz did not provide portions
of his report to Skyers while he was conducting his
investigation, but did provide Skyers with the entire
report on October 18, 2012. The court found that by
October 18, 2012, it was too late. The state had pre-
sented its case from October 16, 2012, into the next
day, and Skyers presented defense witnesses from
October 17, 2012, into the next day. Both the state and
Skyers had rested and presented their closing argu-
ments on October 18, 2012, before Skyers ever saw
Ortiz’ report.
Skyers’ focus for both the petitioner and Barjon was
the pretrial phase, which included efforts to resolve
both of his clients’ cases via plea agreement. His strat-
egy was to have Barjon plead guilty and then testify on
behalf of the petitioner. That strategy unraveled when
Judge Devlin vacated Barjon’s guilty plea, and Barjon
obtained substitute counsel and declined to testify in
support of the petitioner’s defense. Although Skyers
reviewed police reports, statements, and other related
documents, and spoke to potential witnesses the peti-
tioner identified, the court found no evidence that he
conducted any other investigation prior to October
10, 2012.
According to Skyers, his practice with regard to pre-
trial investigations is case dependent. In some cases he
waits to the onset of trial to begin investigating. The
short notice that is given when a case is called for trial
is a factor that affects the timing of an investigation.
Other factors that affect his investigations are the sever-
ity of the criminal charges and the likelihood the matter
will be settled by a plea agreement. In the petitioner’s
case, Skyers thought the investigation would be rela-
tively simple. Although he thought it important to have
the results of the investigation before he presented the
petitioner’s case, he did not receive the results of the
investigation until after he had made his final argument.
Aside from the jury’s rendering its verdict, the trial
was over.
The court found that because the petitioner and Bar-
jon were in similar positions and their defenses were
essentially identical, Skyers never considered that an
investigation might uncover information that was help-
ful to one of his clients but not the other. He ignored
that possibility despite the fact that the petitioner never
indicated any interest in resolving the matter by way
of a plea agreement. The petitioner intended to go to
trial, which Skyers knew from the beginning of his rep-
resentation of the petitioner. Nevertheless, Skyers acted
as if his primary duty was to resolve the criminal case
by means of a plea agreement because he thought that
was in the petitioner’s best interest.
The court was familiar with the standards applicable
to claims that counsel rendered ineffective assistance
for failing to conduct an adequate investigation. ‘‘[I]t is
well established that [a] criminal defendant is constitu-
tionally entitled to adequate and effective assistance of
counsel at all critical stages of criminal proceedings.’’
(Internal quotation marks omitted.) Gaines v. Commis-
sioner of Correction, 306 Conn. 664, 677, 51 A.3d 948
(2012), quoting Strickland v. Washington, supra, 466
U.S. 686. ‘‘To establish ineffective assistance of counsel
under the Strickland standard, the claim must be sup-
ported by evidence establishing that (1) counsel’s repre-
sentation fell below an objective standard of
reasonableness, and (2) counsel’s deficient perfor-
mance prejudiced the defense because there was a rea-
sonable probability that the outcome of the proceedings
would have been different had it not been for the defi-
cient performance.’’ (Internal quotation marks omit-
ted.) Taft v. Commissioner of Correction, 159 Conn.
App. 537, 544, 124 A.3d 1, cert. denied, 320 Conn. 910,
128 A.3d 954 (2015).
‘‘Inadequate pretrial investigation can amount to defi-
cient performance, satisfying prong one of Strickland,
as [c]onstitutionally adequate assistance of counsel
includes competent pretrial investigation. . . .
Although [courts] acknowledge that counsel need not
track down each and every lead or personally investi-
gate every evidentiary possibility before choosing a
defense and developing it . . . [e]ffective assistance
of counsel imposes an obligation [on] the attorney to
investigate all surrounding circumstances of the case
and to explore all avenues that may potentially lead to
facts relevant to the defense of the case. . . . In other
words, counsel has a duty to make reasonable investiga-
tions or to make a reasonable decision to make particu-
lar investigations unnecessary.’’ (Citations omitted;
internal quotation marks omitted.) Id., 546–47.
The habeas court applied the foregoing factors to the
petitioner’s claims against Skyers for failing to timely
and adequately investigate the petitioner’s case, and
concluded that Skyers’ representation was deficient.
From the outset, the petitioner claimed that he was
innocent and that he wanted to go to trial. Although
such a claim of innocence could eventually result in a
guilty plea, a reasonably competent criminal defense
attorney would have conducted an investigation into the
defense well before trial. The benefit of an investigation
could have been used in attorney-client discussions,
plea negotiations, and trial preparation. Had Skyers
investigated earlier, he may have garnered information
that the petitioner’s and Barjon’s defenses were not as
aligned as he initially thought. The same duty that Sky-
ers thought obligated him to pursue plea negotiations
should also have compelled him to investigate the mat-
ter earlier in his representation of the petitioner. The
court found no reasonable strategic reason for Skyers
to have delayed investigating and no reasonable deci-
sion that made the investigation unnecessary. The
court, therefore, found that the petitioner had met the
first prong of Strickland.
B
The court then analyzed the second, or prejudice,
prong of Strickland. The petitioner alleged that he was
prejudiced because Skyers (1) did not call Azcalt to
testify at the criminal trial and (2) presented damaging
testimony from Jean-Philippe. The court found, how-
ever, that the petitioner failed to demonstrate that he
was prejudiced by Skyers’ alleged deficient perfor-
mance. ‘‘To prove prejudice, a petitioner must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the
outcome. Strickland v. Washington, supra, 466 U.S.
694. In a habeas corpus proceeding, the petitioner’s
burden of proving that a fundamental unfairness had
been done is not met by speculation . . . but by
demonstrable realities.’’ (Internal quotation marks
omitted.) Taft v. Commissioner of Correction, supra,
159 Conn. App. 553–54.
1
The petitioner claims that he was prejudiced by Sky-
ers’ failure to call Azcalt as a witness for the defense.
We agree with the habeas court that the failure to call
Azcalt did not undermine the jury’s verdict.
The court found the following facts. Azcalt was work-
ing in the laundromat where Aldof ran when he left the
store and she saw him bar the door to the man who
was chasing him. As to his investigation, Ortiz met with
Azcalt at 7 p.m., on October 18, 2012, while the jury
was deliberating, and stated that she was working in
the laundromat and monitoring the surveillance cam-
era. She noticed Aldof walking on the sidewalk when
he ran into the laundromat and held the door shut to
prevent a single black man from entering. Aldof asked
her to call the police because he was being robbed.
Azcalt only saw one man trying to get into the laundro-
mat and did not see a weapon. Azcalt did not testify at
the habeas corpus proceeding, and therefore the only
evidence the petitioner presented of what she may have
testified to was in Ortiz’ summary.
Azcalt’s statement to Ortiz was consistent with
Aldof’s testimony that he fled to the laundromat and
held the door closed to prevent one man from entering.
Notably, Aldof did not testify that the four men in the
store followed him. Santora testified that she saw only
one man fleeing on foot when Aldof flagged her down.
Azcalt’s testimony, therefore, would not have under-
mined Aldof’s testimony about what happened in the
store, a place she had never been. Skyers was con-
cerned, however, about the statement Azcalt gave to
the police in which she stated that she saw three men
outside the laundromat, which conflicted with the peti-
tioner’s and Barjon’s version of events that they
remained in the car. The court concluded that even if
Skyers had called Azcalt to testify at the criminal trial,
and she testified in accord with the statement she gave
Ortiz, she would not have undermined Aldof’s testimony
regarding the events that took place in his store. The
court therefore concluded that the petitioner failed to
prove prejudice. Having undertaken a plenary review
of the petitioner’s claim, we agree with the court’s well
reasoned analysis.
2
The petitioner also claims that the habeas court
improperly concluded that he was not prejudiced by
Skyers’ calling Jean-Philippe as a defense witness at
trial. We disagree.
The court found that Skyers was obtaining authoriza-
tion for Ortiz to interview Jean-Philippe on October 12,
2012. Ortiz met with Jean-Philippe on October 15, 2012,
at which time Jean-Philippe gave him a written state-
ment. In his statement, Jean-Philippe stated that he
entered the store alone and unarmed to collect money
he had won on a bet. On October 17, 2012, Jean-Philippe
testified at the petitioner’s criminal trial that he got out
of the car alone and went into the store to collect his
winnings, and that the petitioner remained in the car,
which was consistent with the petitioner’s version of
events. The damaging part of Jean-Philippe’s testimony
occurred on cross-examination when he testified that
he was from New Jersey and that he had a criminal
record.15 The court found that the petitioner exagger-
ated the harm he attributes to Jean-Philippe’s testi-
mony. The jury obviously credited Aldof’s version of
the robbery that four men entered his store and that
he identified the petitioner, whom he knew, as one of
those men.
The court found that Jean-Philippe’s testimony did
not undermine its confidence in the outcome of the
criminal trial. It therefore concluded that the petitioner
had failed to demonstrate that he had been prejudiced
by Jean-Philippe’s testifying as a result of the untimely
investigation Skyers initiated. The petitioner therefore
failed to meet the second prong of Strickland. We have
reviewed the record, including Jean-Philippe’s state-
ment and his testimony at the petitioner’s criminal trial,
and agree with the habeas court’s conclusion. Although
Jean-Philippe testified on cross-examination that he
was from New Jersey and that he had a criminal record,
which was not helpful to the petitioner,16 he testified
that he alone entered the store, which was consistent
with the petitioner’s version of events. Counsel was
faced with a difficult problem given Aldof’s testimony
that he recognized the petitioner as one of the four men
who entered the store. We agree with the habeas court
that the petitioner was not prejudiced by Skyers pre-
senting Jean-Philippe’s testimony because he knew or
should have known it would have been damaging to
the petitioner. Jean-Philippe testified in accordance
with the petitioner’s theory of the crime.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although our Supreme Court dismissed the petitioner’s direct appeal
prior to oral argument on the petitioner’s habeas corpus appeal, neither
party brought that fact to this court’s attention.
2
The petitioner raised four claims in his direct appeal, including a claim
that ‘‘the trial court [Devlin, J.] violated his sixth amendment right to conflict
free counsel by inadequately canvassing him as to his desire to proceed
with retained counsel who had previously represented both him and one
of his codefendants in the case . . . .’’ State v. Tilus, supra, 157 Conn.
App. 455.
3
We note that the name of the robbery victim has been spelled inconsis-
tently, e.g., Rene Aldof and Rene Adolph. The indictment filed against the
petitioner states in relevant part: ‘‘stole certain property from one RENE
ADOLPH.’’ In the transcript of the petitioner’s criminal trial, the victim’s
name is denominated Rene Aldof, which is the denomination used by this
court in its decision adjudicating the petitioner’s direct appeal. See State v.
Tilus, supra, 157 Conn. App. 455. In its memorandum of decision, the habeas
court identified the victim as Rene Aldof. In this court’s decision regarding
the direct appeal of the petitioner’s codefendant Jacques Louis, however,
the robbery victim is identified as Rene Adolph. See State v. Louis, 163
Conn. App. 55, 134 A.3d 648, cert. denied, 320 Conn. 929, 133 A.3d 461
(2016). For consistency with respect to the petitioner’s criminal trial, direct
appeal, and habeas case, we denominate the victim of the robbery Rene
Aldof.
4
In this court’s decision in State v. Louis, 163 Conn. App. 55, 134 A.3d
648, cert. denied, 320 Conn. 929, 133 A.3d 461 (2016), two of the robbery
suspects were identified differently, namely, Jean Louis and Guillatemps
Jean-Philippe were introduced as Jacques Louis and Guailletemps Jean-
Philippe. See id., 57—58.
5
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
6
Our Supreme Court certified two issues for appeal, but only the issue
‘‘(1) Did the Appellate Court properly determine that the trial court secured
a valid waiver of the [petitioner’s] constitutional right to conflict free repre-
sentation’’; State v. Tilus, supra, 317 Conn. 915; is relevant in this appeal.
Our Supreme Court eventually dismissed the petitioner’s appeal entirely.
See State v. Tilus, supra, 323 Conn. 785.
7
The habeas court reasoned that having our Supreme Court decide the
certified claim of waiver ‘‘will increase the chance that the proper law is
applied to the petitioner’s claim . . . promote judicial economy by not
having this court and the Appellate Court in the probable appeal from this
court’s decision address a claim that may turn out to be unnecessary, and
the petitioner will not be harmed by a dismissal without prejudice.’’
8
At the hearing on the motion to reargue, the petitioner conceded that
any conflict before Judge Devlin could only be prospective. The habeas
court concluded that the petitioner’s prewaiver claim of conflict that affected
Skyers’ representation is outside the scope of any such waiver and was not
addressed by this court and was not before our Supreme Court.
9
The habeas court did not amend its decision with respect to count two,
in which the petitioner alleged the ineffective assistance of trial counsel.
10
We note that a plea agreement between a defendant and the state is
not binding on the judicial authority that sentences a defendant who has
pleaded guilty pursuant to a negotiated plea agreement. See, e.g., Alexander
v. Commissioner of Correction, 103 Conn. App. 629, 638, 930 A.2d 58, cert.
denied, 284 Conn. 939, 937 A.2d 695 (2007); State v. McCulloch, 24 Conn.
App. 146, 148, 585 A.2d 1271 (1991).
11
We are mindful that the right to be represented by counsel of one’s
choosing is a constitutional right. See Powell v. Alabama, 287 U.S. 45, 53,
53 S. Ct. 55, 77 L. Ed. 158 (1932); State v. Peeler, 265 Conn. 460, 470, 828
A.2d 1216 (2003), cert. denied, 541 U.S. 1029, 124 S. Ct. 2094, 158 L. Ed. 2d
710 (2004).
12
The habeas court’s revised memorandum of decision contains the follow-
ing footnote. ‘‘[S]ubsequent to [the] original memorandum of decision, but
prior to this revised memorandum of decision, the Appellate Court released
its decision in another of the codefendant’s direct appeals. See State v.
Louis, 163 Conn. App. 55, [134 A.3d 648, cert. denied, 320 Conn. 929, 133
A.3d 461] (2016). The facts as found by the jury in that trial, conducted
subsequent to the petitioner’s and in which Jean Louis and Barjon were
tried together, are consistent with those from the petitioner’s jury trial. . . .
Louis’ theory of defense was that he was merely present at the time of the
robbery and that [Adolf’s] testimony was not believable. Barjon also claimed
that he merely was present at the time of the robbery, that [Adolf] was not
credible, and that Jean-Philippe acted alone in order to collect an unpaid
debt from [Adolf], who allegedly ran an illegal lottery from the market. . . .
The Appellate Court in a footnote noted that [t]he jury found Barjon guilty
of all four charges against him. In a separate trial, a jury found [the petitioner]
guilty of robbery in the first degree. . . . Prior to [Louis’] trial, Jean-Philippe
pleaded guilty to both robbery in the first degree and conspiracy to commit
robbery in the first degree.’’ (Citations omitted; internal quotation marks
omitted.)
13
The habeas court found that the petitioner abandoned his claims that
Skyers failed to cross-examine or otherwise challenge adequately Aldof’s
testimony, failed to cross-examine or otherwise challenge adequately
Tavares’ testimony, failed to obtain and present exculpatory video surveil-
lance evidence, prepared a defense that relied on the testimony of a witness
who would invoke his right not to testify; and, during sentencing, failed to
inform the trial court of the sentence imposed on a codefendant who was
more culpable than the petitioner.
14
The petitioner abandoned this claim on appeal.
15
The state presented evidence that the firearm that was recovered near
the scene was connected to an earlier crime in New Jersey. The statement
Ortiz obtained did not indicate that Jean-Philippe was from New Jersey or
that he had a criminal history.
16
The petitioner also claims that Jean-Philippe’s testimony was harmful
because it disclosed that the firearm was traced to New Jersey. That evi-
dence, however, was presented in the state’s case-in-chief. ‘‘A nine millimeter
pistol was discovered on the ground in the vicinity of the trash cans where
Santora had apprehended the fleeing suspect. The pistol was taken into
evidence and later sent to the firearm and toll mark division of the state
forensic science laboratory for testing and analysis. The pistol was examined,
test fired and found to be operable. A search of a national database revealed
that the pistol had been used in a recent incident in New Jersey.’’ State v.
Tilus, supra, 157 Conn. App. 457–58.