Bush v. Commissioner of Correction

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DION BUSH v. COMMISSIONER OF CORRECTION
(AC 37238)
Sheldon, Keller and Foti, Js.
Argued September 12—officially released December 6, 2016
(Appeal from Superior Court, judicial district of
Tolland, Mullins, J.)
David J. Reich, for the appellant (petitioner).
Linda Currie-Zeffiro, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Craig Nowak, senior assistant state’s attorney,
for the appellee (respondent).
Opinion
KELLER, J. The petitioner, Dion Bush, appeals from
the judgment of the habeas court denying his amended
petition for a writ of habeas corpus as well as the denial
of his petition for certification to appeal.1 The petitioner
claims that the habeas court erred by not concluding
that his appellate counsel in a prior habeas appeal was
ineffective. Specifically, the petitioner argues that his
prior habeas appellate counsel was ineffective by failing
to properly brief issues on appeal relating to: (1) alleged
ineffectiveness by the petitioner’s criminal trial counsel
for not moving to sever the petitioner’s trial from that
of his codefendant; and (2) an alleged conflict of interest
by criminal trial counsel resulting from his representa-
tion of another client that rendered his representation of
the petitioner ineffective. We conclude that the habeas
court did not abuse its discretion in denying the petition
for certification to appeal, and, accordingly, we dismiss
the appeal.
The following facts underlying the petitioner’s con-
viction, as set forth by our Supreme Court in the peti-
tioner’s direct appeal, are pertinent to our resolution
of these issues. ‘‘On September 25, 1993, the victim,
Norman Jones, a member of the Brotherhood street
gang, was socializing at a party in Bridgeport. Antoin
Pettway also was present at the party. At some point
during the evening, the victim and Pettway left the party
together and went to the Pequonnock housing project,
where Pettway had an apartment. Upon arriving at the
housing project, Pettway entered his apartment build-
ing. The victim, who did not live at Pequonnock,
remained directly outside the building’s front entrance.
‘‘Pettway encountered Robert Robertson, a member
of the Bush Mob gang, in the building’s lobby. Robertson
asked Pettway if the person outside the building’s
entrance was Jones, and Pettway responded affirma-
tively. Both men then left the lobby. Robertson entered
the stairwell and went upstairs, while Pettway took the
elevator to his apartment.
‘‘Shortly thereafter, Robertson and the [petitioner],
who also was a member of the Bush Mob gang, entered
the lobby from the stairwell. The two men, each of
whom was armed with a handgun, then went to the
building’s front entrance and pointed their guns in the
direction of the victim. Robertson diverted his aim from
the victim and fired once into the air. The [petitioner],
however, fired several rounds at the victim, stopping
only when his gun had been emptied. As the [petitioner]
and Robertson then retreated through the lobby, Ber-
nard Johnson, who had been in the lobby at that time,
asked them why they had shot at the victim. One of the
two men responded that they had done so to retaliate for
the recent murder of a Bush Mob gang member.
‘‘Within minutes, Bridgeport police officers arrived
and found the victim lying on the ground a short dis-
tance away from the entrance of the building. He had
been shot once in the back and was unconscious. He
subsequently was transported to Saint Vincent’s Medi-
cal Center in Bridgeport, where attempts to save his
life proved unsuccessful.’’ (Footnote omitted.) State v.
Bush, 249 Conn. 423, 425–26, 735 A.2d 778 (1999).
The petitioner and Robertson were both charged with
murder as either a principal or an accessory in violation
of General Statutes §§ 53a-54a (a) and 53a-8, and con-
spiracy to commit murder in violation of General Stat-
utes §§ 53a-48 and 53a-54a (a). The petitioner was
represented by Attorney Dante Gallucci, and Robertson
was represented by Attorney Lawrence Hopkins. ‘‘Prior
to trial, the state moved to consolidate the trials of the
[petitioner] and Robertson. Neither the [petitioner] nor
Robertson objected to that motion, and thereafter, the
trial court granted it.2 Immediately before the start of
the state’s case-in-chief, however, Robertson moved to
sever the trials on the ground that there was a potential
for antagonism between his defense and the [petition-
er’s].3 Although both the [petitioner] and Robertson
planned to assert that they had not been present when
the victim was shot, Robertson claimed that he might
pursue a different strategy during the trial if, as antici-
pated, the state presented evidence from which the jury
could infer that the [petitioner] had fired the shot that
had killed the victim. Thereafter, the [petitioner] also
moved for severance claiming that, if Robertson were
to change his theory of defense during trial, there was
a potential for antagonism between his defense and
Robertson’s. The trial court determined that, because
at that time there was no conflict between the defenses
of the [petitioner] and Robertson, the motions for sever-
ance on the basis of antagonistic defenses were prema-
ture. The court, therefore, denied those motions. In so
doing, however, the court specifically stated that both
the [petitioner] and Robertson could renew their sever-
ance motions if an actual conflict between their
defenses arose during trial. Neither the [petitioner] nor
Robertson renewed his motion for severance on the
basis of antagonistic defenses at any time thereafter.’’
(Emphasis in original; footnotes altered.) Id., 426–27.4
During the trial the state called as a witness Maria
Caban, who testified that the petitioner told her that
he had shot the victim and that Robertson was also
present during the shooting. She also testified that the
petitioner told her that Robertson did not fire at the
victim. Instead, he indicated that Robertson ‘‘punked
out’’ and fired a single shot into the air. She also stated
that, subsequent to the shooting, a group of men came
to her apartment to retrieve what she was told was
the murder weapon, and that the petitioner, but not
Robertson, was present at that time.5 During cross-
examination of Caban, Hopkins prompted her to reiter-
ate those portions of her testimony that indicated that
Robertson did not fire the shot that killed the victim.
During his closing argument on behalf of Robertson,
Hopkins argued that both Johnson and Caban lacked
credibility, but that even if the jury believed their sus-
pect testimony, it was clear that the bullet that killed
the victim had been fired by the petitioner. The jury
convicted the petitioner of murder and conspiracy to
commit murder,6 and the court, Ford, J., imposed a
total effective sentence of sixty years incarceration.
The petitioner, still represented by Gallucci, appealed
his conviction to our Supreme Court, arguing, inter alia,
that the trial court erred by denying his motion to sever
his trial from that of Robertson. Our Supreme Court
affirmed the conviction, concluding that the petitioner
had failed to preserve the claim by failing to renew his
severance motion on the basis of antagonistic defenses
at any time during the trial as permitted by the court.
State v. Bush, supra, 249 Conn. 428.
The petitioner then filed his first petition for a writ
of habeas corpus.7 Represented by Attorney Howard
Wicker, the petitioner claimed that he was deprived of
the effective assistance of counsel at his criminal trial
because Gallucci did not, inter alia: (1) timely move to
sever his trial from that of Robertson; or (2) move to
withdraw from representing the petitioner because of
a conflict of interest. During the petitioner’s first habeas
trial, Gallucci testified as a witness for the respondent,
the Commissioner of Correction, and stated that the
petitioner’s defense was one of general denial, although
the petitioner did not have a supportable alibi. With
regard to Robertson’s defense, Gallucci explained:
‘‘Well, the basic thrust of the defense, that he wasn’t
involved. I recall at some points, [Hopkins] was also
trying to show . . . not only was [Robertson] not there
and [he] didn’t do it, but virtually nobody said [he] did
it. It was a little different than our defense, but basically,
the defenses were consistent; that [they] weren’t there.
[They] didn’t do it.’’ The habeas court, White, J. (first
habeas court), denied the petition, concluding that the
petitioner had failed to show that Gallucci was deficient
in his performance at trial or that the petitioner was
prejudiced by such alleged deficiencies. See Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). The first habeas court also denied
the petition for certification to appeal. Represented by
Special Public Defender Mary Trainer, the petitioner
appealed the first habeas court’s judgment to this court.
See Bush v. Commissioner of Correction, 92 Conn.
App. 537, 885 A.2d 1265 (2005), cert. denied, 277 Conn.
906, 894 A.2d 986 (2006). This court concluded that the
first habeas court did not abuse its discretion in denying
the petition for certification to appeal.
The petitioner then filed his second petition for a
writ of habeas corpus, the action underlying this appeal.
The petitioner, represented by Attorney Frank Canna-
telli, alleged ineffective assistance by Trainer, Wicker,
and Gallucci.8 After a trial, the habeas court, Mullins,
J. (second habeas court), for reasons detailed subse-
quently in this opinion, denied the petition for a writ
of habeas corpus as well as a subsequent petition for
certification to appeal. The petitioner then brought the
present appeal. The issues raised in the present appeal
relate only to claims in the petition regarding the alleged
ineffective assistance of Trainer as appellate counsel
in the prior habeas appeal. Additional facts will be set
forth as necessary.
As a preliminary matter, we set forth the applicable
standard of review. ‘‘Faced with a habeas court’s denial
of a petition for certification to appeal, a petitioner can
obtain appellate review of the dismissal of his petition
for [a writ of] habeas corpus only by satisfying the
two-pronged test enunciated by our Supreme Court in
Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994),
and adopted in Simms v. Warden, 230 Conn. 608, 612,
646 A.2d 126 (1994). First, he must demonstrate that
the denial of his petition for certification constituted
an abuse of discretion. . . . Second, if the petitioner
can show an abuse of discretion, he must then prove
that the decision of the habeas court should be reversed
on its merits. . . .
‘‘To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . To
prevail on a claim of ineffective assistance of counsel,
a petitioner must show (1) that counsel’s performance
was deficient and (2) that the deficient performance
prejudiced the defense. . . . Furthermore, [i]n 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.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Griffin v. Commis-
sioner of Correction, 119 Conn. App. 239, 241–42, 987
A.2d 1037, cert. denied, 295 Conn. 912, 989 A.2d 1074
(2010).
‘‘It is axiomatic that, in order to establish a claim of
ineffective assistance of appellate counsel, a habeas
petitioner must establish both deficient performance
and the resulting prejudice. . . . The performance
prong requires proof that appellate counsel’s perfor-
mance fell below an objective standard of reasonable-
ness. . . . There is a strong presumption that counsel
has rendered adequate assistance and made all signifi-
cant decisions in the exercise of reasonable profes-
sional judgment. . . . Just as the decision of trial
counsel not to object to certain evidence is a matter of
trial tactics, not evidence of incompetency . . . the
tactical decision of appellate counsel not to raise a
particular claim is ordinarily a matter of appellate tac-
tics, and not evidence of incompetency, in light of the
presumption of reasonable professional judgment. . . .
‘‘The prejudice prong requires proof that, had the
prior performance been reasonable rather than inade-
quate, there is a reasonable probability that the peti-
tioner would have prevailed on the appeal. . . . A
failure to establish either prong will be fatal to a claim
of ineffectiveness of counsel. . . . Our scope of review
regarding the underlying facts found by the habeas
court is the clearly erroneous standard, and the plenary
standard of review applies regarding the legal conclu-
sion of whether those facts amount to ineffectiveness
of counsel.’’ (Citations omitted; emphasis added.)
Alterisi v. Commissioner of Correction, 145 Conn. App.
218, 222–23, 77 A.3d 748, cert. denied, 310 Conn. 933,
78 A.3d 859 (2013).
We also stress that ‘‘[j]udicial scrutiny of counsel’s
performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s
assistance after conviction . . . and it is all too easy
for a court . . . to conclude that a particular act or
omission of counsel was unreasonable. . . . A fair
assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s
challenged conduct . . . . [A] court must indulge a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance
. . . .’’ (Internal quotation marks omitted.) Johnson v.
Commissioner of Correction, 285 Conn. 556, 577, 941
A.2d 248 (2008).
I
The petitioner first argues that the second habeas
court erred by not concluding that Trainer’s perfor-
mance was deficient for failing to properly brief the
issue of Gallucci’s alleged ineffectiveness for not mov-
ing a second time to sever the petitioner’s criminal trial
from Robertson’s. We do not find this argument per-
suasive.
The following additional facts are relevant to this
claim. In the present appeal, the petitioner points to
two instances in his criminal trial that are offered to
show that he and Robertson pursued antagonistic
defenses necessitating severance. The first instance is
the cross-examination of Caban by Robertson’s defense
counsel, Hopkins, which transpired as follows:
‘‘[Attorney Hopkins]: Miss Caban, you indicated that
at some point shortly after the shooting you had an
opportunity to speak to Mr. Bush, correct?
‘‘[The Witness]: Yes.
‘‘[Attorney Hopkins]: Dion Bush. And he told you at
that time that [Robertson], although he may have been
present, fired one shot and he, as you say, punked out.
Did he tell you that he fired that shot into the air? . . .
‘‘[The Witness]: He—he—excuse me. He said he
wasn’t trying to shoot him.
‘‘[Attorney Hopkins]: Right. He shot—he wasn’t trying
to shoot him and that he himself, Mr. Bush, in fact,
emptied his . . . weapon into the victim, Norman
Jones, correct? He admitted to you that he killed him?
‘‘[The Witness]: Yeah.
‘‘[Attorney Hopkins]: All right. Now, I think you indi-
cated that somebody at some point in time came to
your apartment to retrieve what you were told was the
murder weapon; is that right?
‘‘[The Witness]: Yeah. . . .
‘‘[Attorney Hopkins]: Let me ask you this: Mr.
Robertson was not there at that time; isn’t that a fact?
‘‘[The Witness]: No, I don’t think he was.
‘‘[Attorney Hopkins]: Okay. And, in fact, you had
named four individuals who were present when you
claimed that that weapon was removed; is that right?
Do you recall that—that Dion Bush was present? Do
you recall telling that to the police in 1996 when you
gave that written statement?
‘‘[The Witness]: I recall.’’ The witness continued to
identify those present when the gun was removed, none
of whom was Robertson.
The petitioner also points to Hopkins’ closing argu-
ment, in which he argued, in part: ‘‘Any inference that
one might draw, that I don’t think came out from the
testimony, regarding those facts, which bullet killed
[the victim], the [prosecution] asks you to disregard
that. It doesn’t make any difference. All the testimony
that they put on, it is clear, even if you were to believe
it, that clearly the bullet that killed [the victim] had to
come from Dion Bush, both Maria Caban and [Johnson],
from what he says about the circumstances, assuming
he was there, and assuming you could believe him, both
say through some means the only thing they either
heard or observed, in the case of Mr. Johnson, is Mr.
Robertson firing one shot into the air, not attempting
to hit the person who was the target . . . . Which bul-
let killed [the victim], as if it has no relevance whatso-
ever, it has a lot of relevance.’’ According to the
petitioner, this closing argument amounted to ‘‘[e]ssen-
tially . . . prosecuting the petitioner.’’
In regard to the severance issue, the second habeas
court concluded: ‘‘The credible evidence presented in
the prior habeas [trial] established that both the peti-
tioner and Robertson pursued defenses of denial that
they committed the offenses and, therefore, were not
presenting antagonistic defenses. There was no evi-
dence that the petitioner could have strengthened his
own case or arguments in support of severance. [The
first habeas court] relied on the Supreme Court’s deci-
sion in State v. Robertson, [254 Conn. 739, 760 A.2d 82
(2000)] . . . which addressed a preserved claim about
severance, contrary to the petitioner’s unpreserved
claim on direct appeal, to conclude that the petitioner’s
and Robertson’s defenses were not antagonistic.9 That
is, there was no basis that necessitated severance of
the codefendants’ trials. [The first habeas court] also
concluded that Attorney Gallucci, who testified about
his tactical reasons for not seeking severance after the
trial court had denied Robertson’s motion for sever-
ance, utilized sound tactical judgment by not again
requesting severance. . . . [T]he petitioner has failed
to show both deficient performance and the necessary
prejudice.’’ (Footnotes altered.)
The petitioner’s claim is not that Trainer failed to
raise the severance issue on appeal, but rather that
her appellate brief did not persuasively or sufficiently
articulate the severance claim. More precisely, the peti-
tioner claims that the second habeas court erred in
concluding that Trainer was not ineffective because she
‘‘failed to specifically document that (1) [Gallucci] had
no tactical reason for failing to preserve the severance
issue; (2) [the first habeas court’s] finding that [our
Supreme Court’s] opinion in State v. Robertson, supra,
[254 Conn. 739] is dispositive of the petitioner’s sever-
ance issue is in error; [and] (3) [the first habeas court’s]
determination that the codefendants did not have antag-
onistic defenses is not supported by the record.’’10
We conclude that Trainer adequately raised these
issues in her appellate brief. On appeal from the denial
of the petition for certification to appeal the denial of
the first habeas petition, Trainer argued that the first
habeas court’s finding that Gallucci chose not move for
severance on the basis of trial tactics was error.11
Trainer also objected to the first habeas court’s reliance
on State v. Robertson, supra, 254 Conn. 739,12 and noted
the allegedly antagonistic defenses of the petitioner
and Robertson.13
Moreover, the petitioner has not persuaded us that
the manner in which Trainer briefed the severance
claim prejudiced him because he has not shown that
Gallucci’s performance was deficient or that his deci-
sion not to move for severance prejudiced the peti-
tioner. In his testimony before the habeas courts,
Gallucci advanced several tactical reasons why he
chose not to move for severance, namely, that: (1) in
his experience, joint criminal trials have the benefit of
tending to sow reasonable doubt among jurors as to all
defendants where the evidence suggests that only one
defendant—but it is unclear which one—committed the
act; (2) he did not want to draw the ire of the judge
and jury by moving to sever on the heels of one such
motion by Robertson; and (3) he believed that sever-
ance would better enable the prosecution to strike a
deal with Robertson in which he would testify against
the petitioner in exchange for a lesser sentence.
‘‘[I]t is all too easy for a court . . . to conclude that
a particular act or omission of counsel was unreason-
able . . . [and that] [a] fair assessment of attorney per-
formance requires that every effort be made to eliminate
the distorting effects of hindsight . . . .’’ (Internal quo-
tation marks omitted.) Johnson v. Commissioner of
Correction, supra, 285 Conn. 577. As did the first habeas
court, the second habeas court found that Gallucci had
strong strategic reasons not to move for severance,
and concluded that both the petitioner and Robertson
pursued nonantagonistic defenses of denial during the
criminal trial. Under a plenary standard of review, we
conclude that the petitioner has not demonstrated error
in the second habeas court’s determination that Gal-
lucci’s strategic reasons for not moving to sever the
trials were sound.
We also agree with the second habeas court’s deter-
mination that the petitioner and Robertson did not pur-
sue antagonistic defenses. Antagonistic defenses
necessitating severance occur ‘‘[w]hen . . . the jury
can reasonably accept the core of the defense offered
by either defendant only if it rejects the core of the
defense offered by his codefendant . . . . To compel
severance the defenses must be antagonistic to the
point of being irreconcilable and mutually exclusive.
. . . Such compelling prejudice does not arise where
the conflict concerns only minor or peripheral matters
which are not at the core of the defense.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Booth, 250 Conn. 611, 621, 737 A.2d 404 (1999), cert.
denied, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471
(2000). ‘‘[W]e will reverse a trial court’s ruling on joinder
only where the trial court commits an abuse of discre-
tion that results in manifest prejudice to one or more
of the defendants.’’ (Internal quotation marks omitted.)
Id., 620. The second habeas court looked favorably upon
the findings of the first habeas court and adopted its
reasoning. The first habeas court concluded that the
petitioner’s and Robertson’s defenses were not antago-
nistic because they were not defenses of such a nature
that in order for the jury to accept the defense of one
defendant, it would have had to reject the defense of
the other. It noted that the credible evidence established
that both the petitioner and Robertson pursued
defenses of denial and that both sought to attack the
credibility of the state’s witnesses, but did not succeed.
It further concluded that there was no basis for sever-
ance, and that even if Gallucci had renewed a motion
for severance, it would have been denied. We observe
that, before the jury could have begun to consider and
determine which of the two defendants may have fired
the fatal shot, it first would have had to reject their
mutual, nonantagonistic defenses that they were not
present.
Nor can we conclude that, had the petitioner suc-
ceeded in severing the trials, there was ‘‘a reasonable
probability that the outcome of the proceedings would
have been different . . . .’’ Johnson v. Commissioner
of Correction, supra, 285 Conn. 575. The petitioner has
not identified any key piece of evidence that would
have been excluded from his trial had the two trials
been severed.14 In particular, the state still would have
been able to present the testimony of Caban and John-
son, and Johnson’s statement to the police, all of which
implicated the petitioner as the person who shot the
victim, as well as portions of ‘‘three tape-recorded tele-
phone conversations between the [petitioner] and
unidentified third parties . . . indicat[ing] that [he]
had been involved in plans to threaten Johnson and
Caban in an attempt to influence their testimony.’’ State
v. Bush, supra, 249 Conn. 429.
As the second habeas court noted, ‘‘the Appellate
Court’s [prior] review . . . to determine whether the
prior habeas court abused its discretion entailed review
of this claim, the facts presented in support thereof, as
well as the [first] habeas court’s legal conclusions.’’15
The second habeas court further found, and we agree,
that ‘‘[Trainer’s] testimony [in the second habeas trial]
did not provide any evidence helpful to the petitioner.’’
We therefore agree with the second habeas court that
the petitioner has neither shown that Trainer was defi-
cient for failing to properly brief these issues, nor that
the petitioner was prejudiced by Trainer’s allegedly defi-
cient performance with regard to the severance issue.
Accordingly, as to the severance issue, the petitioner
has not ‘‘demonstrate[d] that the [resolution of the
underlying claim involves issues that] are debatable
among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are
adequate to deserve encouragement to proceed fur-
ther.’’ (Internal quotation marks omitted.) Griffin v.
Commissioner of Correction, supra, 119 Conn. App.
242. Thus, as to this issue, we reject the petitioner’s
claim that the second habeas court abused its discretion
in denying the petition for certification to appeal.
II
The petitioner also claims that Trainer did not provide
effective assistance of counsel because she failed to
adequately brief the issue of an alleged conflict of inter-
est by Gallucci resulting from his representation of
another client that rendered his representation of the
petitioner ineffective. We do not agree.
The following additional facts, as set forth by the
second habeas court, are relevant to this claim. ‘‘This
alleged conflict of interest, according to the petitioner,
arose from [Gallucci] representing the petitioner and
also representing another defendant, one Jamar
McKnight . . . . The petitioner’s posttrial brief argues
that he wants to ‘alert the court of a more larger conflict
issue. During the testimony, the petitioner testified that
he was upset that [Gallucci] represented him at the
same time [Gallucci] represented . . . McKnight.
McKnight was a case that was up on appeal at the
time [Gallucci] represented [the petitioner]. The only
relevance to this case is that the gun used by McKnight
[in the crime that he had been convicted of] was also
the same gun used here to kill the victim of this shooting.
From a review of the whole record, it is clear that
although the prosecutor [who prosecuted the petitioner
also] prosecuted [McKnight], and although . . . [Gal-
lucci] also represented [the petitioner], neither counsel
brought this fact to the attention of [the criminal trial
court]. The petitioner believes that this was a reason
that [Gallucci] never pursued a third-party culpability
defense, namely, that [the petitioner] did not do this
crime, but McKnight did. This is relevant because the
[first habeas court] put that responsibility of bringing
the conflict issue up to the trial court on the [petitioner],
who was a juvenile when arrested, and in his early
twenties when he went to trial. Neither attorney who
tried this case brought this fact to the attention of the
court, or [the criminal trial judge], so [the petitioner]
could be asked whether he would waive any potential
or actual conflict.’ ’’
In addressing this claim, we apply the following stan-
dard of review pertaining to ineffective assistance of
counsel claims based on an actual conflict of interest:
‘‘The sixth amendment to the United States constitution
as applied to the states through the fourteenth amend-
ment, and article first, § 8, of the Connecticut constitu-
tion, guarantee to a criminal defendant the right to
effective assistance of counsel. . . . As an adjunct to
this right, a criminal defendant is entitled to be repre-
sented by an attorney free from conflicts of interest.
. . . Thus, [t]he underlying right to conflict free repre-
sentation is effective assistance of counsel. . . .
‘‘In a case of a claimed conflict of interest . . . in
order to establish a violation of [his constitutional
rights] the [petitioner] has a two-pronged task. He must
establish (1) that counsel actively represented conflict-
ing interests and (2) that an actual conflict of interest
adversely affected his lawyer’s performance. . . .
Unlike other claims of ineffective assistance of counsel,
where a petitioner claims that his counsel’s perfor-
mance was deficient because of an actual conflict of
interest, prejudice does not need to be established. . . .
Instead, [w]here 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.’’ (Citations omitted; internal quotation marks
omitted.) Hedge v. Commissioner of Correction, 152
Conn. App. 44, 50–51, 97 A.3d 45 (2014), cert. denied,
321 Conn. 921, 138 A.3d 282 (2016).
The second habeas court observed that ‘‘[t]he evi-
dence presented . . . encompasses [Wicker’s] testi-
mony about his investigation of [the first] habeas claims
and which claims to pursue when he amended the peti-
tion. Senior Assistant State’s Attorney [Cornelius] Kelly
testified that he prosecuted McKnight and the peti-
tioner, and was unaware of any connection between
the cases. Both Wicker and Kelly recalled testimony by
a firearms expert that the shells from the McKnight
shooting were of a similar type compared to those from
the Bush/Robertson shooting. [Gallucci] testified that
he represented McKnight at trial and on appeal. Gallucci
did not see any conflict of interest that arose during
the course of his representation because he represented
McKnight first and completed the direct appeal prior
to representing the petitioner.’’
The second habeas court concluded that ‘‘the peti-
tioner has failed to show that there was a conflict of
interest that precluded [Gallucci] from representing the
petitioner. There is no evidence that there was any
linkage between the McKnight case and the petitioner’s
case, nor is there any evidence showing that the shells
were fired from the same weapon.16 While the petition-
er’s allegations of ineffective assistance have now
broadened to include habeas appellate counsel, the evi-
dence is no greater than that presented to the first
habeas court. . . . [T]he Appellate Court’s review of
this claim to determine whether the prior habeas court
abused its discretion entailed review of this claim, the
facts presented in support thereof, as well as the habeas
court’s legal conclusions.17 Accordingly, this basis of
ineffective assistance by [Trainer] also must fail.’’ (Foot-
notes added.)
On appeal, the petitioner argues that Trainer failed
to adequately brief the claim that Gallucci ‘‘could not
have investigated McKnight because to do so would
have violated his duty under the Rules of Professional
Conduct, Rule 1.7.’’ Due to this purported inability to
conduct an investigation, the petitioner claims, Gallucci
failed to provide effective representation.
Although it is not clear to us how rule 1.7 of the Rules
of Professional Conduct18 prohibits an investigation of
the type described by the petitioner, we conclude none-
theless that the issue of whether Gallucci labored under
a conflict of interest is not ‘‘debatable among jurists of
reason . . . .’’ (Internal quotation marks omitted.)
Griffin v. Commissioner of Correction, supra, 119
Conn. App. 242. The second habeas court found credible
Gallucci’s testimony that McKnight had no involvement
in the shooting for which the petitioner and Robertson
were prosecuted and that he saw no link between the
two cases aside from the petitioner knowing McKnight,
and would have sought removal from the petitioner’s
case had he observed any link. Gallucci further indi-
cated that the petitioner did not advise him that
McKnight was or could have been the shooter. Our
review of the record reveals nothing to disturb these
findings.19 We must therefore conclude that Gallucci
did not ‘‘actively [represent] conflicting interests
. . . .’’ (Internal quotation marks omitted.) Hedge v.
Commissioner of Correction, supra, 152 Conn. App.
51. In other words, the petitioner cannot prevail on this
claim because he has not progressed beyond a ‘‘mere
theoretical division of loyalties’’; (internal quotation
marks omitted) Santiago v. Commissioner of Correc-
tion, 87 Conn. App. 568, 589, 867 A.2d 70, cert. denied,
273 Conn. 930, 873 A.2d 997 (2005); and has failed to
point to specific instances in the record that suggest
compromise of his interests for the benefit of
McKnight.20 Although it was established that the same
gun was used in both crimes, the record fails to support
the existence of an actual conflict of interest because
no other evidence suggests a connection between the
two crimes. Even if Gallucci had explored the possibil-
ity that McKnight was somehow involved in the shoot-
ing for which the petitioner was on trial, nothing in the
record supports the theory that further investigation
would have disclosed information supporting such con-
jecture.21
Finally, we note that Trainer’s appellate brief squarely
and extensively addressed the conflict of interest
issue.22
Accordingly, with respect to this claim, the petitioner
has not ‘‘demonstrate[d] that the [resolution of the
underlying claim involves issues that] are debatable
among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are
adequate to deserve encouragement to proceed fur-
ther.’’ (Internal quotation marks omitted.) Griffin v.
Commissioner of Correction, supra, 119 Conn. App.
242. We therefore conclude that the habeas court did
not abuse its discretion in denying the petition for certi-
fication to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
General Statutes § 52-470 (g) provides: ‘‘No appeal from the judgment
rendered in a habeas corpus proceeding brought by or on behalf of a person
who has been convicted of a crime in order to obtain such person’s release
may be taken unless the appellant, within ten days after the case is decided,
petitions the judge before whom the case was tried or, if such judge is
unavailable, a judge of the Superior Court designated by the Chief Court
Administrator, to certify that a question is involved in the decision which
ought to be reviewed by the court having jurisdiction and the judge so cer-
tifies.’’
2
‘‘A joint trial expedites the administration of justice, reduces the conges-
tion of trial dockets, conserves judicial time, lessens the burden upon citizens
who must sacrifice both time and money to serve upon juries, and avoids
the necessity of recalling witnesses who would otherwise be called to testify
only once. . . . [W]here proof of the charges against the defendants is
dependent upon the same evidence and alleged acts . . . severance should
not be granted except for the most cogent reasons.’’ (Citation omitted;
internal quotation marks omitted.) State v. Robertson, 254 Conn. 739, 765,
760 A.2d 82 (2000).
3
‘‘Robertson also moved for severance on the ground that certain state-
ments made by the [petitioner] concerning the shooting were admissible
only against the [petitioner] and would cause him substantial prejudice.
The trial court, however, determined that such statements were admissible
against both the [petitioner] and Robertson, and therefore, concluded that
Robertson was not entitled to severance on that ground.’’ (Emphasis omit-
ted.) State v. Bush, supra, 249 Conn. 426 n.4.
4
‘‘On several occasions during the trial, Robertson renewed his motion
for severance on the ground that certain additional statements made by the
[petitioner] were not admissible against him and caused him undue preju-
dice. The trial court determined that, although those additional statements
were not admissible against Robertson, they were not unduly prejudicial,
and therefore, Robertson was not entitled to severance on that ground.’’
(Emphasis omitted.) State v. Bush, supra, 249 Conn. 427 n.5.
5
There also was testimony by Johnson, who had witnessed the shooting
and, approximately one year later, gave a statement to the police. In his
statement, which was admitted at the criminal trial as an exhibit under State
v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct.
597, 93 L. Ed. 2d 598 (1986), he indicated that he knew the petitioner and
knew Robertson by his street name, ‘‘Dulla,’’ and that he saw Robertson
fire one shot into the air and the petitioner fire the rest of the shots, killing
the victim. During the criminal trial, however, he testified that everything
in his statement to the police with respect to Robertson and the petitioner
had been a lie and that the shooters, who both held their guns straight out
and fired at the victim, had masks on, and that he did not recognize them.
He also indicated that he could not tell how many shots each of the shooters
had fired. During closing arguments, the primary focus of Hopkins’ refer-
ences to Johnson was that neither Johnson’s testimony nor his statement
was reliable, that he probably was not even at the scene at the time of the
shooting, and that he had fabricated it all in order to obtain favorable
treatment from the prosecution in his own criminal cases. The petitioner
cites to only one brief portion of Hopkins’ closing argument that references
Johnson’s statement that Robertson shot into the air in support of the
petitioner’s claim that his and Robertson’s defenses were antagonistic. The
petitioner fails to mention that Johnson’s inconsistent statements were
exploited significantly by Hopkins and Gallucci to buttress the petitioner’s
and Robertson’s defenses that they were not present at the time of the
shooting.
6
The record of the criminal trial does not reveal whether the jury found
the petitioner guilty of murder as a principal or an accessory, or whether
it found Robertson guilty of murder as a principal or an accessory. There
was some evidence, however, through the testimony of Johnson, that both
the petitioner and Robertson fired shots in the direction of the victim, and
the court instructed the jury that ‘‘[a] defendant would be guilty of murder
if the injury is caused by the shooting of the victim, even though it was not
the defendant’s gunshot but that of another with whom he is acting in
concert that caused the death of [the victim]. It is of no consequence that
the evidence may not clearly establish that the death of [the victim] was
caused by [the petitioner] or [Robertson], or an accomplice, one to the other
. . . . If you are not satisfied beyond a reasonable doubt that [the petitioner]
personally . . . participated in the murder, you must consider whether he
intentionally aided or abetted some other person in the commission of
the murder in question. The same applies to [Robertson].’’ Ultimately, our
Supreme Court, on the basis of its review of the facts presented to the jury,
determined that the petitioner was convicted of murder; see State v. Bush,
supra, 249 Conn. 424; and Robertson was convicted of murder as an acces-
sory. See State v. Robertson, 254 Conn. 739, 740, 760 A.2d 82 (2000).
7
The operative petition in the first habeas trial was the petitioner’s
amended petition, dated October 7, 2003.
8
The claim against Gallucci was limited to his capacity as trial counsel.
The respondent filed a special defense that the third count of the petition,
alleging ineffective assistance by Gallucci, should be barred as a successive
petition. In its memorandum of decision, the second habeas court ruled that
all but one claim in the third count had been abandoned, and that the
remaining claim constituted a successive petition.
9
Our Supreme Court, in concluding that the trial court properly denied
Robertson’s motion for severance, ‘‘decline[d] to hold that a separate trial
is necessary whenever any potentially incriminating evidence against one
codefendant is introduced during a joint trial.’’ (Internal quotation marks
omitted.) State v. Robertson, supra, 254 Conn. 768. In doing so, it considered
the trial court’s numerous instructions to the jury to consider the cases
against the petitioner and Robertson independently, as well as Robertson’s
failure to prove that he suffered substantial injustice as a result of the joint
trial. Id.
10
The petitioner also argues that Gallucci performed deficiently in not
moving to sever the trials because the joint trial resulted in the admittance
of evidence of a tattoo on Robertson’s arm displaying the words ‘‘Bush
Mob’’ and a picture of a fist holding a gun. This ‘‘highly prejudicial’’ evidence
would not have been admitted, the petitioner argues, had he and Robertson
been tried separately. Although, in separate counts in his amended petition
in the second habeas trial, the petitioner did fault Wicker and Gallucci for,
respectively, failing to properly brief the issue and for not objecting to the
introduction of such evidence—claims that were later abandoned in the
petitioner’s posttrial brief—the petitioner did not raise a similar claim in
his petition with respect to Trainer, whose performance as prior appellate
counsel is the sole issue in this appeal. We also note that, although the issue
of the tattoo was discussed in testimony during the second habeas trial, the
second habeas court did not address the issue in its memorandum of deci-
sion. Therefore, as the petitioner did not raise this distinct claim in his
petition, nor was it addressed by the second habeas court, we decline to
review it. See Henderson v. Commissioner of Correction, 129 Conn. App.
188, 197–98, 19 A.3d 705 (‘‘A petition for a writ of habeas corpus must set
forth specific grounds for the issuance of the writ. Practice Book § 23-22
[1] specifically provides that the petition shall state the specific facts upon
which each specific claim of illegal confinement is based and the relief
requested . . . . A reviewing court will not consider claims not raised in
the habeas petition or decided by the habeas court.’’ [Citation omitted;
internal quotation marks omitted.]), cert. denied, 303 Conn. 901, 31 A.3d
1177 (2011); see also Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn.
210, 232, 828 A.2d 64 (2003) (‘‘It is well established that [i]t is the appellant’s
burden to provide an adequate record for review. . . . It is, therefore, the
responsibility of the appellant to move for an articulation or rectification
of the record where the trial court has failed to state the basis of a decision
. . . to clarify the legal basis of a ruling . . . or to ask the trial judge to
rule on an overlooked matter. . . . In the absence of any such attempts,
we decline to review this issue.’’ [Internal quotation marks omitted.]).
11
Trainer argued in her appellate brief that ‘‘the [first habeas] court accepts
[Gallucci’s] explanation that his failure to move for severance was strictly
strategy. . . . However, as the petitioner points out in his testimony, certain
[in]culpatory evidence was admitted at trial, which wouldn’t have come in,
had it not been for [Robertson]. . . . As such, there was ample reason to
move for severance. Most importantly, such a motion would have preserved
the issue for appeal. [Gallucci] explains his actions by stating that the court
and the jurors were impatient with cocounsel’s severance requests. One
offer of motion would have preserved the issue. . . . There was probably
very little chance that a motion by the petitioner for severance would have
been granted. The habeas court consistently denied [Robertson’s] motions
for severance. Petitioner’s counsel only had to request once to preserve the
issue. It is unreasonable to think that one motion would have caused such
a problem with the court and the jury. By his failure to move, [Gallucci]
has severely prejudiced the petitioner’s future appellate success.’’ (Cita-
tions omitted.)
12
Trainer argued that ‘‘[t]he court states that, even if [Gallucci’s] actions
amounted to ineffective assistance, his actions did not cause prejudice to
the petitioner’s case and therefore did not satisfy the second prong of
Strickland. . . . In support of this conclusion, the court points to the appeal
taken by [Robertson] in which the issue of severance was raised and denied
by [our Supreme] Court. . . . The court assumes that an appeal by the
petitioner would also fail. . . . Petitioner’s attorney, Attorney Wicker, cor-
rectly responds that the court cannot support that analogy because the
petitioner’s appeal probably would have been far stronger than [Robertson’s]
and potentially raise[d] totally different issues. . . . However, the court
adopts [Gallucci’s] reasoning that his actions were tactical and dismisses
the petitioner’s claim.’’ (Citations omitted.)
13
Trainer argued that ‘‘[Robertson’s] attorney raised questions that harmed
the petitioner in an effort to assist [Robertson].’’
14
To be sure, the petitioner argues that the evidence of Robertson’s ‘‘Bush
Mob’’ tattoo; see footnote 10 of this opinion; would not have been admitted
against the petitioner had the trials been severed, and that such evidence
was prejudicial to him. However, for the reasons set forth in footnote 10
of this opinion, we decline to review the merits of this claim. We do note,
though, that according to Gallucci’s testimony in the second habeas trial,
the tattoo was far from the only evidence suggesting that the petitioner was
a member of a gang. Gallucci testified: ‘‘[T]here had been so many references,
even in the questions that were objected to, to Bush Mob, Bush Gang, Bush
Gang, Bush Mob, that at some point everybody was going to be aware of
the fact . . . .’’
15
In this court’s per curiam decision dismissing the prior habeas appeal,
it stated: ‘‘In dismissing the habeas petition, the [first habeas] court deter-
mined that the petitioner had failed to prove that there was any conflict of
interest. The [first habeas] court also found that the petitioner had failed
to establish that his counsel was deficient or that the petitioner was conse-
quently prejudiced, in failing to renew the motion for severance of the
petitioner’s case from that of the [Robertson] because, in the absence of
antagonistic defenses between the defendants, there was no basis for a
severance. . . . After a careful review of the record and briefs, we conclude
that the petitioner has not demonstrated that the issues he raises are debat-
able among jurists of reason, that a court could resolve the issues in a
different manner or that the questions raised deserve encouragement to
proceed further.’’ (Citations omitted.) Bush v. Commissioner of Correction,
supra, 92 Conn. App. 539–40. One of the major problems with the petitioner’s
claims is that this court has already rejected the claim that severance was
warranted or that Gallucci had a conflict of interest. The petitioner seemingly
argues that, in reviewing the first habeas appeal, this court presumably
relied on only whatever arguments were set forth in Trainer’s brief. The
petitioner fails to acknowledge that, in resolving the severance and conflict
of interest claims presented, the reviewing court would also consider the
entire record, including the decision of the first habeas court and the argu-
ments set forth in the state’s brief. See Alterisi v. Commissioner of Correc-
tion, supra, 145 Conn. App. 223 (plenary review of whether facts found
amounted to ineffective assistance of counsel).
16
There actually was uncontroverted evidence presented at the petitioner’s
criminal trial that the same gun was used in both the murder for which
McKnight was charged and the subsequent murder for which the petitioner
and Robertson were charged. During-cross examination, Hopkins elicited
the testimony of James Stephenson, a criminalist firearms and tool mark
examiner employed by the Connecticut State Police, who testified that he
had compared eight cartridge casings relating to McKnight’s case with eight
of the nine cartridge casings in evidence in the petitioner’s case, and had
determined that all sixteen cartridges had been fired from the same gun.
Although it does not affect our resolution of this claim, we nonetheless
conclude that the second habeas court’s factual finding that there was no
evidence that the same gun had been used in both murders is clearly
erroneous.
17
See footnote 15 of this opinion.
18
Rule 1.7 of the Rules of Professional Conduct provides:
‘‘(a) Except as provided in subsection (b), a lawyer shall not represent
a client if the representation involves a concurrent conflict of interest. A
concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another
client; or
(2) there is a significant risk that the representation of one or more clients
will be materially limited by the lawyer’s responsibilities to another client,
a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest
under subsection (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one
client against another client represented by the lawyer in the same litigation
or the same proceeding before any tribunal; and
(4) each affected client gives informed consent, confirmed in writing.’’
19
At most, the record reflects a potential connection between the cases,
as detailed herein, but such potential is not a sufficient basis for disturbing
the second habeas court’s ruling. In addition to the testimony of Stephenson
contained in the transcript of the criminal trial, which was a full exhibit in
the second habeas trial; see footnote 16 of this opinion; Wicker, in his
testimony to the second habeas court, stated that it was his recollection
that the same weapon was used in both the McKnight case and the petition-
er’s case, but that ‘‘[t]he weapon was the only issue [he] recall[ed] of com-
monality . . . .’’ Gallucci testified in the second habeas trial that he
‘‘remember[ed] there was a ballistics report that . . . purportedly linked
the weapon to the shooting [involving McKnight] . . . but I don’t remember
as I’m sitting here if it actually was testified to because it was a lot of off-
the-record stuff . . . .’’ Gallucci further stated that ‘‘I don’t take everything
[firearms examiners] say for gospel . . . but even assuming it was the same
gun and that was correct, I didn’t see the link because [McKnight] had
nothing to do with our case.’’
20
We note that pursuing a third-party culpability defense based on only
the commonality of the gun used in fact may have been to the detriment
of the petitioner because, as Gallucci explained in the second habeas trial,
it could have served to connect the petitioner to a ‘‘stash house’’ through
which guns were shared, or even to the crime of which McKnight was con-
victed.
21
‘‘[I]n explaining the requirement that the proffered evidence [in support
of a third-party culpability defense] establish a direct connection to a third
party, rather than raise merely a bare suspicion regarding a third party, we
have stated: Such evidence is relevant, exculpatory evidence, rather than
merely tenuous evidence of third party culpability [introduced by a defen-
dant] in an attempt to divert from himself the evidence of guilt. . . . In
other words, evidence that establishes a direct connection between a third
party and the charged offense is relevant to the central question before the
jury, namely, whether a reasonable doubt exists as to whether the defendant
committed the offense. Evidence 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.’’ (Citation omitted; internal
quotation marks omitted.) State v. Arroyo, 284 Conn. 597, 609–10, 935 A.2d
975 (2007).
22
In her appellate brief, Trainer claimed that evidence introduced at the
criminal trial showed that the same gun was used in both murders and that,
because of his impaired loyalty, Gallucci was unable to introduce evidence
that McKnight was already convicted for a murder in which the same gun
was used. Trainer also argued that ‘‘[j]oint representation of conflicting
interests is suspect because of what it tends to prevent the attorney from
doing. . . . For example, in the current [case], the conflict of interest clearly
could have precluded [Gallucci] from exploring alternative defenses or from
seeking consideration from the state for his client. . . . Because the peti-
tioner has shown that his attorney had an actual conflict of interest, which
adversely affected his representation, the court should reverse the judgment
of the habeas court . . . .’’ (Citation omitted.)