Shipman v. Commissioner of Correction

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SOMEN SHIPMAN v. COMMISSIONER
OF CORRECTION
(AC 38774)
Alvord, Sheldon and Gruendel, Js.
Argued November 30, 2016—officially released April 25, 2017
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Michael W. Brown, assigned counsel, for the appel-
lant (petitioner).
C. Robert Satti, Jr., supervisory assistant state’s attor-
ney, with whom, on the brief, were John C. Smriga,
state’s attorney, and Craig P. Nowak, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
GRUENDEL, J. Following a grant of certification to
appeal, the petitioner, Somen Shipman, 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 erred by finding that his
right to the effective assistance of counsel was not
violated. Specifically, the petitioner claims that the
court improperly found that his constitutional right to
the effective assistance of counsel was not violated by
his trial counsel’s failure (1) to adequately raise a Bat-
son1 challenge, and (2) to present the testimony of two
alibi witnesses. We disagree and, accordingly, affirm
the judgment of the habeas court.
The following facts and procedural history, as set
forth by this court on direct appeal, are relevant to this
appeal. ‘‘In October, 1996, Torrance McClain, Norman
Gaines and the [petitioner] were entrenched in Bridge-
port’s drug trade. Sometime in mid-October, Ronald
Marcellus, another drug dealer and an associate of
McClain, Gaines and the [petitioner], engaged with Gary
Louis-Jeune in an angry verbal exchange over their
respective drug dealing enterprises. Following this
exchange, Marcellus requested that the [petitioner] take
care of [the situation] for him because Louis-Jeune was
attempting to move in on the block. The [petitioner]
and Gaines, on the evening of October 29, 1996, there-
after shot Louis-Jeune and his girlfriend, Marsha Larose,
multiple times, killing both of them.
‘‘In December, 1996, McClain was arrested and
pleaded guilty to drug charges. Before he was sentenced
pursuant to his guilty plea, McClain provided the Bridge-
port police with a written statement indicating that
Gaines and the [petitioner] were responsible for the
shooting of Louis-Jeune and Larose. The [petitioner]
subsequently was arrested and charged with one count
of capital felony, two counts of murder and one count
of conspiracy to commit murder. After a trial, the jury
returned a verdict of guilty on all charges, and the court,
on April 28, 2000, rendered judgment in accordance
with the verdict. Merging the two counts of murder
with the capital felony charge, the court sentenced the
[petitioner] to life imprisonment without the possibility
of release, to run concurrently with twenty years impris-
onment on the charge of conspiracy to commit murder,
for a total effective sentence of life imprisonment with-
out the possibility of release.
‘‘In June, 2000, the [petitioner] appealed his convic-
tion directly to the Supreme Court, following which
he moved for rectification of the trial court record to
establish the races of the jury venirepersons. The trial
court denied his motion and, thereafter, the [petitioner]
moved for review by the Supreme Court. On March 16,
2004, the Supreme Court granted the motion and the
relief requested therein. On November 17, 2011, the
state moved for reconsideration of the Supreme Court’s
granting of the [petitioner’s] motion for rectification of
the record. The Supreme Court granted both the state’s
motion and the relief requested therein, stating: Upon
careful review of the record, it is apparent that the
[petitioner] failed to raise a disparate treatment claim
in the trial court and, therefore, is not entitled to rectifi-
cation of the record to augment [it] with evidence to
support such a claim. See, e.g., State v. Hodge, 248
Conn. 207, 227 [726 A.2d 531] (when the defendant
[fails] to raise a disparate treatment claim with respect
to [specific] venirepersons, the record is inadequate for
appellate review of his claims with respect to those
venirepersons), cert. denied, 528 U.S. 969 [120 S. Ct.
409, 145 L. Ed. 2d 319] (1999); State v. Haughley, 124
Conn. App. 58, 61 n.3 [3 A.3d 980] (same) [cert. denied,
299 Conn. 912, 10 A.3d 529 (2010)]. Thereafter, pursuant
to Practice Book § 65-1, the Supreme Court transferred
the [petitioner’s] appeal to this court.’’ (Footnote omit-
ted; internal quotation marks omitted.) State v. Ship-
man, 142 Conn. App. 161, 163–65, 64 A.3d 338, cert.
denied, 309 Conn. 918, 70 A.3d 41 (2013). This court
affirmed the petitioner’s conviction. Id., 177.
On May 27, 2014, the petitioner filed his amended
petition for a writ of habeas corpus. The petitioner
alleged, inter alia, that his federal and state constitu-
tional rights to due process, conflict-free representa-
tion, and the effective assistance of counsel were
violated. Specifically, the petitioner claimed that the
state failed to disclose material evidence favorable to
his defense, pursuant to Brady v. Maryland, 373 U.S.
83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and that
the state knowingly presented false testimony at his
trial. Additionally, the petitioner claimed that his trial
counsel was burdened by an actual conflict of interest
that adversely affected counsel’s performance, his trial
counsel’s performance was deficient during jury selec-
tion and the criminal trial, and that the petitioner was
prejudiced thereby.
On December 14, 2015, the habeas court denied the
petitioner’s habeas petition. On December 23, 2015, the
court granted his petition for certification to appeal.
This appeal followed. Additional facts will be set forth
as necessary.
We begin our analysis with the law governing the
petitioner’s claim as well as our standard of review. ‘‘A
criminal defendant is constitutionally entitled to ade-
quate and effective assistance of counsel at all critical
stages of criminal proceedings. . . . This right arises
under the sixth and fourteenth amendments to the
United States constitution and article first, § 8, of the
Connecticut constitution. . . . As enunciated in
Strickland v. Washington, [466 U.S. 668, 686–87, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], [our Supreme Court]
has stated: It is axiomatic that the right to counsel is
the right to the effective assistance of counsel. . . . A
claim of ineffective assistance of counsel consists of
two components: a performance prong and a prejudice
prong. . . . The claim will succeed only if both prongs
are satisfied.’’ (Internal quotation marks omitted.)
Spearman v. Commissioner of Correction, 164 Conn.
App. 530, 538, 138 A.3d 378, cert. denied, 321 Conn. 923,
138 A.2d 284 (2016).
‘‘[According to] Strickland, [an ineffective assistance
of counsel] claim must be supported by evidence estab-
lishing that (1) counsel’s representation fell below an
objective standard of reasonableness, and (2) counsel’s
deficient performance prejudiced the defense because
there was a reasonable probability that the outcome of
the proceedings would have been different had it not
been for the deficient performance.’’ (Emphasis in origi-
nal; internal quotation marks omitted.) Hall v. Commis-
sioner of Correction, 124 Conn. App. 778, 782–83, 6
A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d
571 (2011).
‘‘In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assis-
tance was reasonable considering all the circum-
stances. . . . Judicial scrutiny of counsel’s
performance must be highly deferential and courts 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 might be considered sound trial strategy.
. . . [S]trategic choices made after thorough investiga-
tion of law and facts relevant to plausible options are
virtually unchallengeable; [but] strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.’’
(Citation omitted; internal quotation marks omitted.)
Bharrat v. Commissioner of Correction, 167 Conn.
App. 158, 167–68, 143 A.3d 1106, cert. denied, 323 Conn.
924, 149 A.3d 982 (2016). With respect to the prejudice
prong, the petitioner must establish that if he had
received ‘‘effective representation by . . . counsel,’’
there is ‘‘a reasonable probability that the habeas court
would have found that he was entitled to reversal of
the conviction and a new trial . . . .’’ (Emphasis omit-
ted; internal quotation marks omitted.) Crocker v. Com-
missioner of Correction, 126 Conn. App. 110, 117, 10
A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d 333
(2011).
It is well settled that in reviewing the denial of a
habeas petition alleging ineffective assistance of coun-
sel, ‘‘[t]his court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Internal quotation marks omitted.)
Robinson v. Commissioner of Correction, 167 Conn.
App. 809, 817, 144 A.3d 493, cert. denied, 323 Conn. 925,
149 A.3d 982 (2016). ‘‘In its analysis, a reviewing court
may look to the performance prong or to the prejudice
prong, and the petitioner’s failure to prove either is
fatal to a habeas petition.’’ (Internal quotation marks
omitted.) Delvecchio v. Commissioner of Correction,
149 Conn. App. 494, 500, 88 A.3d 610, cert. denied, 312
Conn. 904, 91 A.3d 906 (2014).
In the present case, the habeas court determined that
trial counsel’s failure to properly raise a Batson claim
did not prejudice the petitioner. Additionally, the court
found that counsel’s representation of the petitioner
was not deficient with respect to counsel’s decision not
to call two alibi witnesses to testify on behalf of the
petitioner, and accordingly, the petitioner was not prej-
udiced by his counsel’s performance.
I
On appeal, the petitioner first claims that the habeas
court erred in determining that he was not prejudiced
by his counsel’s failure to properly raise a Batson chal-
lenge.2 Specifically, the petitioner asserts that he was
prejudiced by his attorney’s failure (1) to properly raise
a Batson claim when the prosecuting authority exer-
cised a peremptory challenge of venireperson T.G.3 (2)
to understand the law as it related to Batson claims,
(3) to perform a comparative juror analysis and raise
a disparate treatment claim under Batson, (4) to renew
the Batson challenge before the jury was sworn and
(5) to make an adequate record for appeal during the
Batson hearing. In addition, the petitioner argues that
the habeas court erred by determining the issue of preju-
dice on the basis of whether there was a reasonable
probability that, but for his attorney’s alleged deficient
performance, the outcome of his criminal trial would
have been different. Instead, the petitioner argues, the
court should have analyzed whether there was a reason-
able probability that the outcome of the Batson hearing
would have been different, either at the trial level or
on appeal.
The following additional facts are relevant to our
resolution of this claim. Jury selection for the petition-
er’s criminal trial commenced on January 12, 2000.
While being questioned by the state, a white venire-
person, L.W., revealed that she had knowledge of one
of the areas relevant to the petitioner’s case because
she drove by the area regularly for work. L.W. also
stated that she had a close friend who was a Norwalk
police officer and a former Bridgeport police officer.
Another white venireperson, J.A., was accepted by the
state after he admitted his familiarity with both areas
relevant to the case and that he knew police officers
or retired police officers.
During jury selection on February 2, 2000, the state
questioned an African-American venireperson named
T.G. Through the state’s questioning, T.G. revealed that
he went to one of the areas relevant to the crime ‘‘[a]t
least two times a week.’’ In response to the state’s
question as to whether T.G. knew anything about hand-
guns, T.G. disclosed that his father had been a police
officer in Florida, had worked on a drug task force for
about five years, and that his father had discussed his
work with the family ‘‘[o]ff and on.’’ When the state
exercised one of its peremptory challenges to excuse
T.G., defense counsel objected and asked the state to
articulate its reasons on the record pursuant to Batson.
The state explained that it had challenged T.G.
because of his ‘‘knowledge of the area . . . of the homi-
cide where he indicated he would go through at least
two or three times . . . a week . . . .’’ The state also
noted that T.G.’s father was ‘‘working as a police offi-
cer’’ on ‘‘a drug task force’’ and that the state expected
there to be evidence of drug dealing throughout the trial.
‘‘[T]he overall picture,’’ the state asserted, prompted
concern about what T.G. might ‘‘bring by way of knowl-
edge of people and the like.’’
In response to the state’s articulation, defense coun-
sel argued that ‘‘[w]e’ve had precious few minorities,
particularly blacks . . . on the voir dire panel who
were able to serve’’ and that ‘‘this twenty-four year old
black man, [T.G.] . . . didn’t give any response that
would indicate any cause for concern . . . .’’ Relying
on its stated reasons, the state insisted that it had not
been ‘‘routinely excluding black individuals’’ and that
‘‘there is no pattern of strikes.’’ The court considered
the questioning of T.G. and noted that it had detected
‘‘a certain reticence on the part of the venireperson in
terms of the state’s attorney exploring his knowledge
of the area in question.’’ The court ultimately concluded
that, ‘‘given the totality of circumstances and based
upon the history of the questioning of the . . . venire-
persons here, I think that the state’s attorney has given
. . . sufficient race neutral reason[s] for excuse
. . . .’’ Had T.G. been accepted to the jury panel, he
would have been the first alternate juror.
Following T.G.’s excusal, the petitioner’s counsel
made no requests to add information regarding the
races of any other selected or excused jurors, and,
accordingly, the record for appeal does not indicate the
races of any of the jurors except for T.G. and one other
juror who was excused by the court after presenting a
hardship excuse. Counsel made no such request until
after the jury had returned its guilty verdict and he
initiated the direct appeal to the Supreme Court.
We begin by setting forth the well established princi-
ples of law that govern Batson claims. ‘‘Peremptory
challenges are deeply rooted in our nation’s jurispru-
dence and serve as one state-created means to the con-
stitutional end of an impartial jury and a fair trial. . . .
Although such challenges generally may be based on
subjective as well as objective criteria . . . they may
not be used to exclude a prospective juror because of
his or her race or gender. . . .
‘‘In Batson . . . the United States Supreme Court
recognized that a claim of purposeful racial discrimina-
tion on the part of the prosecution in selecting a jury
raises constitutional questions of the utmost seri-
ousness, not only for the integrity of a particular trial
but also for the perceived fairness of the judicial system
as a whole. . . . The court concluded that [a]lthough
a prosecutor ordinarily is entitled to exercise permitted
peremptory challenges for any reason at all, as long as
that reason is related to his [or her] view concerning
the outcome of the case to be tried . . . the [e]qual
[p]rotection [c]lause forbids the prosecutor to challenge
potential jurors solely on account of their race. . . .
‘‘Under Connecticut law, [o]nce a party asserts a Bat-
son claim, the [opposing party] must advance a neutral
explanation for the venireperson’s removal. . . . The
[party asserting the Batson claim] is then afforded the
opportunity to demonstrate that the [opposing party’s]
articulated reasons are insufficient or pretextual. . . .
[T]he trial court then [has] the duty to determine if
the [party asserting the Batson claim] has established
purposeful discrimination. . . . The [party asserting
the Batson claim] carries the ultimate burden of per-
suading the trial court, by a preponderance of the evi-
dence, that the jury selection process in his or her
particular case was tainted by purposeful discrimina-
tion. . . .
‘‘We have identified several specific factors that may
indicate that [a party’s removal] of a venireperson
through a peremptory challenge was . . . motivated
[by race or gender]. These include, but are not limited
to: (1) [t]he reasons given for the challenge were not
related to the trial of the case . . . (2) the [party exer-
cising the peremptory strike] failed to question the chal-
lenged juror or only questioned him or her in a
perfunctory manner . . . (3) prospective jurors of one
race [or gender] were asked a question to elicit a partic-
ular response that was not asked of the other jurors
. . . (4) persons with the same or similar characteris-
tics but not the same race . . . as the challenged juror
were not struck . . . (5) the [party exercising the
peremptory strike] advanced an explanation based on
a group bias where the group trait is not shown to apply
to the challenged juror specifically . . . (6) the [party
exercising the peremptory strike] used a disproportion-
ate number of peremptory challenges to exclude mem-
bers of one race . . . .
‘‘In assessing the reasons proffered in support of the
use of a peremptory challenge . . . [a]n explanation
. . . need not . . . be pigeon-holed as wholly accept-
able or wholly unacceptable . . . and even where the
acceptability of a particular explanation is doubtful, the
inquiry is not at an end. In deciding the ultimate issue
of discriminatory intent, the judicial officer is entitled to
assess each explanation in light of all the other evidence
relevant to prosecutorial intent. The officer may think
a dubious explanation undermines the bona fides of
other explanations or may think that the sound explana-
tions dispel the doubts raised by a questionable one.
As with most inquiries into state of mind, the ultimate
determination depends on an aggregate assessment of
all the circumstances. . . .
‘‘Finally, the trial court’s decision on the question of
discriminatory intent represents a finding of fact that
will necessarily turn on the court’s evaluation of the
demeanor and credibility of the attorney of the party
exercising the peremptory challenge. . . . Accord-
ingly, a trial court’s determination that there has or has
not been intentional discrimination is afforded great
deference and will not be disturbed unless it is clearly
erroneous. . . . A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.’’ (Citations omitted; internal quotation
marks omitted.) State v. Dehaney, 261 Conn. 336, 343–
46, 803 A.2d 267 (2002), cert. denied, 537 U.S. 1217, 123
S. Ct. 1318, 154 L. Ed. 2d 1070 (2003).
In the present case, we agree with the habeas court
that the petitioner has failed to demonstrate that he
suffered prejudice as a result of his attorney’s alleged
failure to properly assert a Batson challenge. Even if
the petitioner’s trial counsel had requested additional
information on the race of the jurors for the record on
appeal, the record was still devoid of any indication
that the prosecuting attorney had acted intentionally
to exclude venireperson T.G. on the basis of his race.
T.G. was distinguishable from other nonexcluded jurors
in that (1) he was intimately familiar with one of the
areas of the crime, and (2) his father was a police officer
who had worked on a drug task force. Although other
nonexcluded jurors mentioned some level of familiarity
with one of the areas of the crime, their familiarity did
not rise to the level of that admitted to by T.G. Likewise,
although some jurors knew or were acquainted with
police officers, no other jurors had close relatives who
were police officers, and no other jurors knew police
officers who had worked on drug task forces.
After a careful review of the arguments and record
presented to this court, we conclude that the petitioner
has not demonstrated that T.G. was intentionally
excluded on the basis of his race, and, therefore, that
the petitioner is unable to demonstrate that, had his
trial counsel properly asserted the Batson challenge, it
is reasonably probable that the outcome of his trial or
appeal would have been different. Because we deter-
mine that the petitioner’s Batson challenge would have
failed regardless of his attorney’s performance, there
is no need for us to decide today whether the habeas
court properly determined the issue of prejudice on the
basis of the outcome of the petitioner’s trial, as opposed
to the outcome of the Batson hearing, because the anal-
ysis would be identical. Accordingly, the petitioner’s
first claim fails.
II
The petitioner next claims that the court erred in
determining that his counsel did not render ineffective
assistance in failing to present alibi witness testimony
from two potential witnesses. Specifically, the peti-
tioner argues that the habeas court erred by failing,
under the doctrine of collateral estoppel, to adopt the
factual findings made by another habeas court4 in regard
to the testimony of Madeline Rivera and Luz Davila.
We disagree.
The following additional facts are relevant to the
petitioner’s claim. During the habeas trial, the petitioner
presented testimony from himself, Rivera, and Davila.
The petitioner’s trial counsel also provided testimony.
The petitioner testified that Rivera, his then girlfriend,
wrote to him after his arrest and told him that he had
been helping her move at the time that the crimes
occurred. Thereafter, the petitioner testified, he gave
the names of Rivera and Davila to his habeas attorney.
Although called to testify, Rivera and Davila invoked
their fifth amendment privilege against self-incrimina-
tion and did not provide testimony at the habeas trial.
The court, however, admitted prior testimony given
by Rivera and Davila in Gaines v. Commissioner of
Correction, 306 Conn. 664, 51 A.3d 948 (2012), regarding
the petitioner’s alibi. Rivera and Davila testified in
Gaines that the petitioner was in the process of helping
Rivera move at the time of the crimes. The petitioner’s
trial counsel testified that he had never heard of the
names of Davila or Rivera prior to the date of the
habeas trial.
The habeas court determined that the doctrine of
collateral estoppel did not apply to bar the court from
making factual findings relevant to the testimony of
Rivera and Davila. The court found ‘‘the argument
unavailing, as [the] trial court [in Gaines] never
assessed the competence of the legal representation of
underlying counsel in this matter. Nor did that court
assess the credibility of the several witnesses sur-
rounding the alibi issue presented in the course of the
instant trial, including the petitioner.’’ (Emphasis in
original.) The court concluded that the issue of the
petitioner’s trial counsel’s competence had not been
fully and fairly litigated in the Gaines matter, and that
accordingly, the doctrine of collateral estoppel did
not apply.
After disposing of the issue of collateral estoppel, the
court went on to evaluate the merits of the petitioner’s
underlying ineffective assistance claim. The court cred-
ited the testimony of the petitioner’s trial counsel
regarding the fact that the petitioner had never provided
him with the names of Rivera or Davila and that the
petitioner had never discussed the possibility of an alibi
defense. The court discredited the testimony of the
petitioner, and noted that his testimony regarding the
fact that ‘‘he had to be told by a third party of his
own alibi for the night of the killings’’ was particularly
unconvincing.5 For those reasons, the court concluded
that the petitioner’s trial attorney was not ineffective
for failing to present Rivera and Davila as alibi witnesses
at the petitioner’s criminal trial.
On appeal, the petitioner argues that the habeas court
erred by finding that the doctrine of collateral estoppel
did not apply to bar the court from making its own
findings regarding the testimony of Rivera and Davila
from the Gaines habeas trial. ‘‘The common-law doc-
trine of collateral estoppel, or issue preclusion, embod-
ies a judicial policy in favor of judicial economy, the
stability of former judgments and finality. . . . For an
issue to be subject to collateral estoppel, it must have
been fully and fairly litigated in the first action. It also
must have been actually decided and the decision must
have been necessary to the judgment.’’ (Internal quota-
tion marks omitted.) State v. Thomas, 137 Conn. App.
782, 792, 49 A.3d 1038, cert. denied, 307 Conn. 923, 55
A.3d 566 (2012). ‘‘[T]he issue concerning which relitiga-
tion is sought to be estopped must be identical to the
issue decided in the prior proceeding.’’ (Emphasis
added; internal quotation marks omitted.) State v.
Joyner, 255 Conn. 477, 490, 774 A.2d 927 (2001).
In the present case, the petitioner argues that the
issue of the credibility of Rivera and Davila had been
fully and fairly litigated in the Gaines case, and that
the court erred by making its own determination to
discredit their testimony. The petitioner’s argument is
without merit, however, because the court was entitled
to weigh all of the evidence before arriving at its deter-
mination. The doctrine of collateral estoppel could not
apply to the issue of the credibility of Rivera and Davila,
because that issue had not been fully and fairly litigated
in relation to the petitioner’s habeas trial. Moreover,
the credibility of the two witnesses’ testimony regarding
the petitioner’s whereabouts on the night of the shoot-
ings was not necessary to the Gaines decision, and the
pertinent issue in the present case, which was whether
the petitioner’s trial attorney rendered ineffective assis-
tance for failing to present these two witnesses, was
never even addressed. Accordingly, we conclude that
the court did not err in declining to invoke the doctrine
of collateral estoppel and that the petition for a writ of
habeas corpus was properly denied.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
2
We observe that the petitioner challenges both the habeas court’s finding
that he was not prejudiced by his counsel’s performance, as well as the
court’s finding that counsel did not perform deficiently in regard to his
failure to properly raise a Batson challenge. Our review of the habeas court’s
memorandum of decision, however, reveals that the court did not reach the
performance prong of the Strickland inquiry and decided the issue on the
basis of prejudice. Accordingly, we limit our review to whether the habeas
court properly found that counsel’s performance prejudiced the petitioner.
Because we agree that the petitioner has not demonstrated prejudice, it is
unnecessary to assess his counsel’s performance under the first prong of
the Strickland inquiry.
3
To protect the legitimate privacy interests of the venirepersons involved
in this case, we refer to them by their initials. See, e.g., State v. Wright, 86
Conn. App. 86, 88 n.3, 860 A.2d 278 (2004).
4
See Gaines v. Commissioner of Correction, 306 Conn. 664, 51 A.3d 948
(2012). Norman Gaines was the petitioner’s codefendant in the underlying
criminal trial.
5
The petitioner also argues that the court erred in determining that the
testimony presented at the petitioner’s habeas trial regarding his alibi
defense was not credible. This argument is unavailing. ‘‘[T]his court does
not retry the case or evaluate the credibility of the witnesses. . . . Rather,
we must defer to the [trier of fact’s] assessment of the credibility of the
witnesses based on its firsthand observation of their conduct, demeanor
and attitude. . . . The habeas judge, as the trier of facts, is the sole arbiter
of the credibility of witnesses and the weight to be given to their testimony.’’
(Internal quotation marks omitted.) Fine v. Commissioner of Correction,
163 Conn. App. 77, 82–83, 134 A.3d 682, cert. denied, 320 Conn. 925, 133
A.3d 879 (2016).