McCarthy v. Commissioner of Correction

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TROY MCCARTHY v. COMMISSIONER OF
CORRECTION
(AC 40926)
Prescott, Elgo and Pellegrino, Js.
Syllabus
The petitioner, who had been convicted of murder in connection with the
shooting death of the victim, sought a second writ of habeas corpus,
claiming, inter alia, that his right to due process was violated because
his decision to reject the state’s plea offer was not made knowingly and
voluntarily, and that his trial counsel for bond purposes, E, had rendered
ineffective assistance. At the petitioner’s arraignment, E filed an appear-
ance on the petitioner’s behalf for bond purposes only, and, at subse-
quent pretrial proceedings, E reiterated that he had appeared for bond
purposes only and informed the court that he did not intend to remain
in the case and that he would return his retainer to the petitioner’s
family. Although the trial court discharged E from the case on March
10, 2004, at some point prior to April 9, 2004, E’s investigator interviewed
two witnesses to the shooting who previously had provided statements
to the police implicating the petitioner. On the basis of the investigator’s
interview notes, E then prepared affidavits for the witnesses in which
they purportedly recanted their prior statements and indicated that the
police had coerced them to make those statements. The trial court
subsequently appointed new counsel, S and K, to represent the peti-
tioner, and the witnesses’ signed affidavits became part of S and K’s
criminal trial file. Thereafter, the petitioner rejected a plea offer from
the state and the case proceeded to trial, at which the petitioner
impeached the two witnesses with their affidavits after they testified
for the state, identified the petitioner as the shooter, and denied telling
the investigator that they had been coerced by the police into making
their prior statements. E thereafter testified for the state, stating that
although he had used the investigator’s notes to prepare the affidavits, he
had made up certain information to fill in narrative gaps. The petitioner
alleged in count one of his second habeas petition that his right to due
process of law was violated because his decision to reject the state’s
plea offer was not knowing and voluntary, in that he was misled as to
the strength of the state’s case against him by virtue of E’s fabrication
of the affidavits without his knowledge. In count three, the petitioner
alleged that E had rendered ineffective assistance by causing him to
misunderstand the strength of the evidence against him by fabricating
the affidavits. The habeas court concluded that the petitioner had proce-
durally defaulted his due process claim because he failed both to raise
it in his direct appeal and to establish cause for his default. The habeas
court further determined that because E was not representing the peti-
tioner at the time he fabricated the affidavits or at the time the petitioner
rejected the state’s plea offer in reliance on those affidavits, an ineffec-
tive assistance of counsel claim against E was not cognizable as a matter
of law. The habeas court rendered judgment denying the habeas petition,
from which the petitioner, on the granting of certification, appealed to
this court. Held:
1. The habeas court properly determined that the petitioner’s due process
claim was subject to procedural default and that the petitioner failed
to demonstrate good cause to excuse the procedural default of that
claim: notwithstanding the petitioner’s claim that his due process claim
was not susceptible to procedural default because it was premised on
E’s alleged ineffective assistance, the plain language of count one, viewed
in the context of the entire amended habeas petition, alleged a freestand-
ing due process claim, not an ineffective assistance of counsel claim,
that could have been raised either at the petitioner’s criminal trial, when
E testified about fabricating the affidavits and the basis for the due
process claim first became apparent, or on direct appeal, on the basis
of the record established by E’s testimony; accordingly, because the
petitioner failed to raise his due process claim at his trial or on direct
appeal, and the respondent Commissioner of Correction raised the
defense of procedural default as to count one, the burden shifted to the
petitioner to prove why the default should be excused, which he failed
to do.
2. The habeas court erred in concluding that the petitioner’s claim that E
rendered ineffective assistance of counsel was not cognizable as a matter
of law because E did not represent the petitioner at the time he fabricated
the affidavits or when the petitioner relied on those affidavits and
rejected the state’s plea offer: ineffective assistance of counsel claims
are not limited to actions taken by attorneys who are counsel of record
or who appeared in court, but may be maintained in cases in which a
nonappearing attorney is alleged to have rendered deficient performance
that subsequently has an adverse impact on the petitioner’s criminal
case if, on the basis of the totality of the circumstances, the nonappearing
attorney was representing the petitioner as counsel for purposes of the
sixth amendment at the time he rendered the deficient performance;
moreover, in the present case, in considering the scope and duration
of the attorney-client relationship, the habeas court unduly focused on
E’s presence in the courtroom, the nature of his written appearance,
and the date on which the criminal court discharged him from the case,
and improperly disregarded evidence that E’s representation was not
limited to appearing for bond purposes and that he continued to perform
out-of-court work on the petitioner’s behalf even after his appearance
was withdrawn, especially given that it was unclear whether E’s retainer
covered professional services beyond representing the petitioner at
arraignment and there was evidence in the record that E prepared the
affidavits and performed out-of-court work on behalf of the petitioner
after the bond hearing; accordingly, because the court focused unduly
on the nature of E’s written appearance and official representation, and
because the question of whether an attorney-client relationship exists
presents a mixed question of law and fact, the case was remanded to
the habeas court for a new trial on count three of the amended habeas
petition and a determination on the issue of whether E continued to
represent the petitioner for purposes of the sixth amendment at the
time he fabricated the affidavits.
Argued March 19—officially released September 17, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Oliver, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Reversed in part; new trial.
Robert L. O’Brien, assigned counsel, with whom on
the brief was Christopher Y. Duby, assigned counsel,
for the appellant (petitioner).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, Angela R. Macchiarulo, senior assis-
tant state’s attorney, and Michael Proto, assistant state’s
attorney, for the appellee (state).
Opinion
PRESCOTT, J. The petitioner, Troy McCarthy,
appeals, following the granting of his petition for certifi-
cation to appeal, from the judgment of the habeas court
denying his petition for a writ of habeas corpus. In
his underlying criminal case, the petitioner allegedly
rejected a plea offer from the state after being misled
regarding the strength of the state’s case against him
because his prior counsel, Joseph Elder, fabricated affi-
davits from certain eyewitnesses to the underlying
crime. The habeas court denied the petition on the
ground that an ineffective assistance of counsel claim
was not cognizable because Elder was no longer repre-
senting the petitioner when he fabricated the affidavits
or at the time the plea offer was made.
On appeal, the petitioner claims that the habeas court
improperly concluded that (1) count one of his amended
petition alleging a due process violation was procedur-
ally defaulted because he failed to sustain his burden
to establish good cause for his failure to raise this claim
at trial or on direct appeal and (2) an ineffective assis-
tance of counsel action regarding Elder was not cogni-
zable because Elder did not represent him at the time
that Elder fabricated the witnesses’ affidavits or at the
time that the petitioner, in reliance on these affidavits,
rejected the state’s plea offer. We conclude that the
court properly determined that count one of the peti-
tioner’s amended petition was barred by procedural
default. We agree, however, with the petitioner that the
court improperly denied count three of his amended
petition alleging ineffective assistance by Elder
because, in assessing his sixth amendment right to the
effective assistance of counsel, the habeas court applied
an unduly narrow view of the scope and duration of
the attorney-client relationship. Accordingly, we affirm
in part and reverse in part the judgment of the
habeas court.
The relevant facts, as set forth in the habeas court’s
memorandum of decision and in this court’s decision
resolving the petitioner’s direct appeal, are as follows:
‘‘On September 25, 2003, the [petitioner] and the victim,
Raymond Moore, were standing near the corner of
Westland Street and Garden Street in Hartford, in front
of the former Nelson & Son’s Market, when they
engaged in a physical altercation. After the victim
slammed the [petitioner]’s body onto the sidewalk, sev-
eral people intervened and stopped the fight. The [peti-
tioner], humiliated, left the scene but stated that he
would be back. Later, the [petitioner] returned with a
gun, but the victim was not there. A friend of the victim,
Robert Ware, and others told the [petitioner] that ‘it
wasn’t worth it.’ The [petitioner], however, responded
that the victim was going to respect him.
‘‘Two days later, on September 27, 2003, the victim
returned to the area and was standing in front of Nel-
son & Son’s Market speaking with Ware. Ware then went
across Westland Street and entered Melissa’s Market
to buy cigarettes. A homeless woman from the area,
Mary Cauley, who was on her way to the C-Town Market
on Barbour Street, approached the victim and told him
that he should go home to his family. She then continued
on her way to the C-Town Market, walking north on
Garden Street, where she saw the [petitioner] standing
on his front porch. Cauley said hello to the [petitioner],
who instructed her to get out of the way. When she got
to the C-Town Market, Cauley heard gunshots.
‘‘Upon hearing a gunshot, Ware immediately ran out
of Melissa’s Market as a second gunshot was fired.
Looking up Garden Street, Ware saw the victim falling
to the ground and saw the [petitioner] running in the
opposite direction carrying a gun. At that same time,
Maurice Henry, Chauncey Odum and Tylon Barlow
were in a vehicle in the parking lot behind Nelson &
Son’s Market smoking ‘blunts.’ Henry was in the driver’s
seat. As he began to drive out of the parking lot, onto
Garden Street, Henry saw the victim walking north. He
then saw the [petitioner] emerge from the rear yard of
a Garden Street building, carrying a gun. Henry saw the
[petitioner] shoot the victim twice.’’ (Footnote omitted.)
State v. McCarthy, 105 Conn. App. 596, 598–600, 939
A.2d 1195, cert. denied, 286 Conn. 913, 944 A.2d 983
(2008).
The petitioner was arrested on March 1, 2004, and
charged with murder in violation of General Statutes
§ 53a-54a, carrying a pistol without a permit in violation
of General Statutes § 29-35, and criminal possession of
a firearm in violation of General Statutes § 53a-217.
Elder entered a court appearance on the petitioner’s
behalf at his first bond hearing on March 2, 2004. The
appearance form indicated that the appearance was for
bond purposes only. See Practice Book § 3-6. On March
10, 2004, Elder ‘‘informed the court that he did not
intend to file a full appearance in the petitioner’s case,
and that he would return the petitioner’s retainer,’’ and
the court permitted him to withdraw his court appear-
ance. On March 29, 2004, Attorney R. Bruce Lorenzen,
a public defender, entered his appearance on the peti-
tioner’s behalf but withdrew from the case on June
23, 2005, due to a conflict of interest. The court then
appointed special public defenders, Attorneys Michael
O. Sheehan and George G. Kouros, to represent the peti-
tioner.1
Sometime between March 3, 2004, and April 9, 2004,
Elder’s private investigator, Homer Ferguson, inter-
viewed Henry and Cauley, eyewitnesses to the shooting.
Elder prepared affidavits based on Ferguson’s notes
from these interviews. The affidavits were signed by
Henry and Cauley on April 9, 2004. In their affidavits,
both witnesses purportedly recanted the prior state-
ments that they had made to the police implicating the
petitioner in the shooting and, instead, indicated that
the investigating detective had ‘‘intimidated, coerced
and pressured [them] to provide inculpatory testimony
against the petitioner.’’ Their affidavits further indicated
that they did not know who shot the victim. After Loren-
zen was appointed to represent the petitioner, Elder
placed the affidavits in the copy of the file he shared
with Lorenzen, and the affidavits ultimately became
part of Sheehan and Kouros’ file.2
The petitioner pleaded not guilty to all charges and
elected a jury trial. During jury selection, the state
extended a plea offer to the petitioner that would have
required him to plead guilty to manslaughter in the first
degree with a firearm in violation of General Statutes
§ 53a-55a in exchange for a maximum sentence of fif-
teen years of incarceration with a right to argue for a
lower sentence of no less than ten years of incarcera-
tion. After consulting with Sheehan and Kouros, the
petitioner rejected the state’s offer and proceeded to
trial.
At the petitioner’s criminal trial, Henry and Cauley
testified for the state and identified the petitioner as
the shooter in the victim’s murder. On cross-examina-
tion, the petitioner impeached Henry and Cauley with
the affidavits that had been prepared by Elder. Both
witnesses testified that they never told Ferguson that
the police had intimidated, coerced, and pressured them
to identify the petitioner as the shooter.
The state also called Elder to testify at the petitioner’s
criminal trial. He testified that he had used Ferguson’s
notes from his meetings with Henry and Cauley to pre-
pare the affidavits. The prosecutor asked if he ‘‘[made]
things up’’ in the affidavits, which he answered by say-
ing: ‘‘What I did was, I filled in the gap. And the idea
would be to fill in the gap to see if that would be what
the witness would agree to. It was not information that
came directly from the witness, it was information that
I provided . . . .’’ The prosecutor then asked, ‘‘where
did you get that information from,’’ to which Elder
responded: ‘‘I made it up.’’ The prosecutor asked if he
believed that he had fabricated evidence, and Elder
replied: ‘‘No, because it wasn’t information that would
have been substantial or substantive in that way. It was
information that did not go to the substance of the
case.’’ As an example, Elder noted that Henry’s claim
that he did not witness the shooting was not something
he would fabricate. The prosecutor then asked if Elder
would fabricate the phrase ‘‘out of fear and through
intimidation,’’ and Elder indicated that the phrase was
‘‘something [he] would put in there.’’ When asked if he
often editorialized witnesses’ affidavits, Elder stated:
‘‘I don’t generally do that. But, in doing this particular
one, my recollection is that I felt that it needed a little
oomph.’’ Elder had not informed the petitioner or any
of his attorneys that he had fabricated the affidavits.
The petitioner subsequently was convicted of murder
in violation of § 53a-54a. He was sentenced to fifty years
of incarceration.
On direct appeal, the petitioner claimed that ‘‘(1) the
court improperly denied his motion for a new trial,
(2) the court improperly admitted certain impeachment
evidence for substantive purposes, (3) the court
improperly instructed the jury and (4) he was deprived
of a fair trial due to prosecutorial impropriety.’’ State v.
McCarthy, supra, 105 Conn. App. 598. We subsequently
affirmed his conviction. Id.
The petitioner filed his first petition for a writ of
habeas corpus on January 9, 2007, in which he was
represented by Attorney Robert J. McKay. In his first
habeas action, McKay did not raise a claim of ineffective
assistance of counsel against Elder.3 The habeas court,
Cobb, J., denied the petition on March 22, 2012. McCar-
thy v. Warden, Docket No. CV-XX-XXXXXXX-S, 2012 WL
1222247, *1 (Conn. Super. March 22, 2012). The peti-
tioner was granted certification to appeal on March
28, 2012, but the appeal was withdrawn on February
4, 2013.
The petitioner commenced this second habeas cor-
pus action in February, 2013. His amended petition,
filed on December 6, 2016, contained four counts. Count
one raised a due process claim in which he alleged that
his decision to reject the state’s plea offer was not
knowingly and voluntarily made because he was misled
regarding the strength of the state’s case against him
by Elder’s fabrication of the affidavits from eyewit-
nesses to the underlying crime without his knowledge.
Count two alleged ineffective assistance of counsel by
McKay for failing to plead and litigate in his first habeas
action the freestanding due process claim alleged in
count one. Count three alleged ineffective assistance
of counsel by Elder for causing him to misunderstand
the strength of the evidence against him in the underly-
ing criminal prosecution. Finally, count four alleged
ineffective assistance of counsel by McKay for failing
to plead and litigate the ineffective assistance of counsel
claim alleged in count three.4
In its return, the respondent raised the special
defense of procedural default with respect to count one
of the petitioner’s amended complaint, his freestanding
due process claim. Importantly, the respondent did not
raise procedural default as a special defense to any of
the other claims in the petitioner’s amended petition.5
In his reply, the petitioner asserted that ‘‘[c]laims of
due process that involve or stem from the ineffective
assistance of trial counsel and prior habeas counsel,
as alleged in count one, negate an alleged procedural
default, such that cause and prejudice need not be
shown . . . .’’ The petitioner further asserted that ‘‘the
issue could only properly be raised for the first time in
a habeas petition;’’ therefore, ‘‘[p]rior habeas counsel
was ineffective for failing to raise this issue at that
time.’’
In a memorandum of decision, the habeas court, Oli-
ver, J., denied the petition, concluding, inter alia, that
the freestanding due process claim in count one of the
amended petition was procedurally defaulted. Because
the respondent did not allege that the claim raised by
the petitioner in count three was procedurally
defaulted, the habeas court reached the merits of that
claim. The court, however, concluded that because
Elder’s representation of the petitioner ended on March
10, 2004, an ineffective assistance of counsel claim
against Elder, as a matter of law, could not be main-
tained with respect to the conduct alleged in count
three of the amended petition.6 The petitioner sought
certification to appeal, which the court granted on Sep-
tember 27, 2017. This appeal followed.
I
The petitioner first claims that the habeas court
improperly concluded that he failed to demonstrate
good cause to overcome procedural default of the due
process claim alleged in count one of the amended
petition. Specifically, the petitioner argues that his due
process claim stems from the ineffective assistance of
Elder and, therefore, is not susceptible to procedural
default. We agree with the habeas court that the due
process claim was procedurally defaulted.
‘‘In essence, the procedural default doctrine holds
that a claimant may not raise, in a collateral proceeding,
claims that he could have made at trial or on direct
appeal in the original proceeding . . . .’’ Hinds v. Com-
missioner of Correction, 151 Conn. App. 837, 852, 97
A.3d 986 (2014), aff’d, 321 Conn. 56, 136 A.3d 596 (2016).
Claims that are ‘‘fully capable of being raised and
decided in the trial court or on direct appeal’’ are distin-
guishable from ‘‘a typical claim of ineffective assistance
of counsel under [Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed 2d 674 (1984)],7 which
can only be adequately litigated in a collateral proceed-
ing . . . .’’ Taylor v. Commissioner of Correction, 324
Conn. 631, 646, 153 A.3d 1264 (2017). Typical claims of
ineffective assistance of counsel require the court to
determine whether ‘‘counsel’s conduct falls within the
wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might
be considered sound trial strategy.’’ (Internal quotation
marks omitted.) Strickland v. Washington, supra, 689.
‘‘The trial transcript seldom discloses all of the consid-
erations of strategy that may have induced counsel to
follow a particular course of action.’’ State v. Leecan,
198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S.
1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). ‘‘[C]laims
[such as] structural error based on the complete denial
of counsel in a proceeding [however] would be apparent
on the record.’’ Taylor v. Commissioner of Correction,
supra, 646. ‘‘Habeas, as a collateral form of relief, is
generally available to litigate constitutional issues only
if a more direct route to justice has been foreclosed
through no fault of the petitioner.’’ (Internal quotation
marks omitted.) Gaskin v. Commissioner of Correc-
tion, 183 Conn. App. 496, 511, 193 A.3d 625 (2018).
If the state ‘‘alleges that a [petitioner] should be pro-
cedurally defaulted from now making the claim, the
[petitioner] bears the burden of demonstrating good
cause for having failed to raise the claim directly, and
he must show that he suffered actual prejudice as a
result of this excusable failure.’’ Hinds v. Commis-
sioner of Correction, supra, 151 Conn. App. 852. ‘‘The
cause and prejudice standard is designed to prevent
full review of issues in habeas corpus proceedings that
counsel did not raise at trial or on appeal for reasons
of tactics, [inadvertence] or ignorance . . . . [T]he
existence of cause for a procedural default must ordi-
narily turn on whether the [petitioner] can show that
some objective factor external to the defense impeded
counsel’s efforts to comply with the [s]tate’s procedural
rule. . . . Cause and prejudice must be established
conjunctively. . . . If the petitioner fails to demon-
strate either one, a trial court will not review the merits
of his habeas claim.’’ (Internal quotation marks omit-
ted.) Sinchak v. Commissioner of Correction, 173
Conn. App. 352, 366, 163 A.3d 1208, cert. denied, 327
Conn. 901, 169 A.3d 796 (2017).
It is true that ‘‘[a] successful ineffective assistance
of counsel claim can satisfy the cause and prejudice
standard so as to cure a procedurally defaulted claim.’’
Id. Indeed, ‘‘[i]f a petitioner can prove that his attorney’s
performance fell below acceptable standards, and that,
as a result, he was deprived of a fair trial or appeal, he
will necessarily have established a basis for cause and
will invariably have demonstrated prejudice.’’ (Internal
quotation marks omitted.) Johnson v. Commissioner
of Correction, 285 Conn. 556, 570, 941 A.2d 248 (2008).
It is with these principles in mind that we turn to the
petitioner’s claim that the court improperly concluded
that he failed to demonstrate good cause to overcome
procedural default of the due process claim alleged in
count one of the amended petition. ‘‘The habeas court’s
conclusion that the petitioner is procedurally defaulted
from raising his [due process] claim before the habeas
court involves a question of law. Our review is therefore
plenary.’’ Chaparro v. Commissioner of Correction, 120
Conn. App. 41, 46, 990 A.2d 1261, cert. denied, 297 Conn.
903, 994 A.2d 1287 (2010).
As an initial matter, we agree with the court that the
petitioner alleged a freestanding8 due process claim in
the first count of his amended petition, not an ineffec-
tive assistance of counsel claim as he asserted in his
reply to the state’s return and in his brief on appeal.
‘‘It is well settled that [t]he petition for a writ of habeas
corpus is essentially a pleading and, as such, it should
conform generally to a complaint in a civil action. . . .
It is fundamental in our law that the right of a plaintiff
to recover is limited to the allegations of his complaint.
. . . [Although] the habeas court has considerable dis-
cretion to frame a remedy that is commensurate with
the scope of the established constitutional violations
. . . it does not have the discretion to look beyond the
pleadings and trial evidence to decide claims not raised.
. . . The purpose of the [petition] is to put the [respon-
dent] on notice of the claims made, to limit the issues
to be decided, and to prevent surprise. . . . [T]he [peti-
tion] must be read in its entirety in such a way as to
give effect to the pleading with reference to the general
theory upon which it proceeded, and do substantial
justice between the parties.’’ (Internal quotation marks
omitted.) Newland v. Commissioner of Correction, 322
Conn. 664, 678, 142 A.3d 1095 (2016).
The plain language of count one of the amended
petition alleges a due process claim, not an ineffective
assistance of counsel claim. Count one is titled ‘‘Due
Process Violation: Involuntary Plea on Account of Peti-
tioner’s Fundamental Misunderstanding of the State’s
Evidence’’ and alleges that the petitioner’s ‘‘conviction
and incarceration are illegal because they were
obtained in violation of his state and federal constitu-
tional rights to due process of law . . . .’’ Moreover, a
reading of the entire amended petition supports the
conclusion that count one alleges a freestanding due
process claim because the petitioner also alleges in
count three a separate claim of ineffective assistance
of counsel by Elder. That count is based on the same
conduct by Elder and would be duplicative of count
one if it was interpreted as the petitioner argues. This
construction of the amended petition supports the
court’s conclusion that the due process claim in count
one, although related to the claim of ineffective assis-
tance by Elder, is a separate, freestanding due process
claim subject to procedural default, unless the peti-
tioner establishes good cause and prejudice for having
failed to raise the claim at trial or on direct appeal.
The petitioner’s assertion that he could not pursue
this argument on direct appeal because it was unpre-
served at the underlying criminal trial is unavailing. The
petitioner was not only capable of raising the freestand-
ing due process claim on direct appeal, but could have
raised the issue at trial when it first became apparent.
When Elder testified to having fabricated portions of
the witnesses’ affidavits at the petitioner’s underlying
criminal trial, the petitioner became aware of the con-
duct forming the basis of his freestanding due process
claim. At that time, the petitioner could have moved
for a mistrial pursuant to Practice Book § 42-439 or
moved for a new trial pursuant to Practice Book
§ 42-53.10
The petitioner also was capable of raising the free-
standing due process claim on direct appeal. Although
the defendant’s claim is based on allegations against
his first trial counsel that are similar to a typical claim
of ineffective assistance of counsel, the petitioner
alleged a freestanding due process claim. As our
Supreme Court noted in Taylor v. Commissioner of
Correction, supra, 324 Conn. 646, a typical claim of
ineffective assistance of counsel can adequately be liti-
gated only in a collateral proceeding because an analy-
sis of counsel’s conduct under Strickland necessarily
requires an inquiry into the strategic considerations that
caused the attorney to pursue a particular course of
action, which is usually not reflected in the record of
the underlying trial.
It is true that the petitioner’s due process claim
requires the court adjudicating it to consider Elder’s
conduct outside of the courtroom, a topic that typically
could adequately be explored only in a collateral pro-
ceeding. In the present case, however, the state ques-
tioned Elder at the criminal trial about his fabrication
of the affidavits. The petitioner, therefore, had a record
of the conduct that formed the basis of the freestanding
due process claim that he wanted to have reviewed on
appeal. The freestanding due process claim in count
one, therefore, was fully capable of being raised on
direct appeal, if not at trial, and the petitioner was
required to show good cause to overcome the proce-
dural default of this claim.
We further agree with the habeas court that the peti-
tioner failed to demonstrate good cause for procedur-
ally defaulting his claim. The petitioner argues that the
freestanding due process claim in count one is not sus-
ceptible to procedural default because the default
derives from the ineffective assistance of Elder, which
necessarily established a basis for cause and prejudice
by virtue of the nature of the claim. As the court
explained in Johnson, because a petitioner must meet
the two-pronged test announced in Strickland to prevail
on an ineffective assistance of counsel claim, he will
‘‘necessarily have established a basis for cause and will
invariably have demonstrated prejudice’’ to overcome
procedural default in so doing. (Internal quotation
marks omitted.) Johnson v. Commissioner of Correc-
tion, supra, 285 Conn. 570. Because the petitioner
alleged a freestanding due process claim, the rationale
of Johnson does not apply to the present case. To avoid
procedurally defaulting count one of his amended peti-
tion, the petitioner was required to demonstrate good
cause for his failure to raise this issue at trial or on
direct appeal, when it first could have been raised. The
petitioner failed to do so.
Instead of asserting that his trial and appellate coun-
sel, Sheehan and Kouros, were ineffective for failing to
raise the due process claim at trial or on direct appeal,
the petitioner claims Elder and McKay were ineffective
for actions they took during pretrial proceedings and
on collateral appeal during his first habeas case, respec-
tively. This mere assertion of ineffectiveness by Elder
and McKay is insufficient to show that some objective
factor external to the defense impeded counsel’s efforts
to raise this issue at trial or on direct appeal when it
was first capable of being raised. We, therefore, con-
clude that the court properly determined that count one
of the amended petition was procedurally defaulted.
II
The petitioner next claims that the court improperly
concluded that an ineffective assistance of counsel
claim regarding Elder could not be maintained because
Elder did not represent him at the time that Elder fabri-
cated the witnesses’ affidavits or at the time that the
petitioner rejected the state’s plea offer in reliance on
the affidavits. For the reasons that follow, we conclude
that the habeas court improperly denied count three
of the amended petition because it applied an unduly
narrow legal view of the scope and duration of the
attorney-client relationship, and, thus, the case should
be remanded for a new trial on that count.
The following additional facts, as set forth in the
habeas court’s decision denying the petitioner’s first
petition for a writ of habeas corpus, are relevant to this
claim. ‘‘The petitioner was arraigned . . . on March 2,
2004. At that proceeding, Elder appeared for the pur-
pose of bond only. The case was transferred to Part A
and continued to March 9, 2004. On March 9, 2004,
when the case was called, Elder did not appear, nor
did any other attorney for the petitioner. On March
10, 2004, the trial court, Solomon, J., explained to the
petitioner that Elder had been in a different court the
day before and that it had ordered Elder to appear in
court that day, March 10, 2004, at 10:00 a.m. The court
explained that Elder’s response to that message,
through [his] secretary, was that he could not appear
in the petitioner’s matter on March 10 because he had
a matter in Enfield, but that he would withdraw his bond
only appearance and refund the petitioner’s family’s
retainer. The court expressed its frustration with
Elder’s failure to appear, particularly in view of the
serious nature of the charges.
‘‘Later that day, the case was recalled, and Elder
appeared. Elder explained that his appearance had been
for bond only, he did not intend to file a full appearance
in the case and that he would return the petitioner’s
family’s retainer. The court ordered Elder out of the
case and continued the matter for the petitioner to
apply for a public defender or to obtain private counsel.
At the next court appearance on March 29, 2004, public
defender [Lorenzen] filed his appearance on the peti-
tioner’s behalf.’’ McCarthy v. Warden, supra, 2012 WL
1222247, *5.
In concluding that an ineffective assistance of coun-
sel claim regarding the fabricated affidavits was not
cognizable, the habeas court was required to consider
the nature and duration of the attorney-client relation-
ship between the petitioner and Elder. This question
necessarily involves a consideration of the attorney-
client relationship in general, as well as a factual inquiry
into the events surrounding Elder’s procurement of the
falsified affidavits.11 The United States Supreme Court
has determined that the question of whether an attorney
‘‘represented’’ a defendant or served as counsel within
the meaning of the sixth amendment presents a mixed
question of fact and law over which an appellate court
exercises plenary review. See Cuyler v. Sullivan, 446
U.S. 335, 341–42, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).
At the outset, it is important to review some of the
well established legal principles regarding the forma-
tion and termination of the attorney-client relationship
and the fundamental obligations of a lawyer to a client
and a former client. ‘‘An attorney-client relationship
is established when the advice and assistance of the
attorney is sought and received in matters pertinent to
his profession. . . . With respect to termination of the
relationship, our Supreme Court has stated: The formal
termination of the relationship occurs when the attor-
ney is discharged by the client, the matter for which
the attorney was hired comes to a conclusion, or a
court grants the attorney’s motion to withdraw from
the representation. A de facto termination occurs if the
client takes a step that unequivocally indicates that
he has ceased relying on his attorney’s professional
judgment in protecting his legal interests, such as hiring
a second attorney to consider a possible malpractice
claim or filing a grievance against the attorney.’’ (Cita-
tion omitted; emphasis omitted; internal quotation
marks omitted.) In re Ceana R., 177 Conn. App. 758,
769, 172 A.3d 870, cert. denied, 327 Conn. 991, 175 A.3d
1244 (2017).
For purposes of the sixth amendment and a petition-
er’s right to effective assistance of counsel, we agree
with the United States Court of Appeals for the Seventh
Circuit that an ineffective assistance of counsel claim
may be cognizable with respect to the actions of an
attorney who is not appearing in court or who is not
counsel of record. See Stoia v. United States, 22 F.3d
766, 769 (7th Cir. 1994). As that court stated: ‘‘An attor-
ney’s constitutional ineffectiveness can manifest itself
at trial even though the attorney never appears in court.
For example, a defendant may hire more than one attor-
ney to work on his criminal case, but only one of them
may actually enter an appearance and represent him
in court. . . . Also, an attorney hired to do ‘behind
the scenes’ work may, through deficient performance,
negatively impact the trial counsel’s ability to give the
defendant an adequate defense.’’ (Emphasis added.)
Id.12
In determining the scope and duration of the attorney-
client relationship in the present case, the habeas court
narrowly focused on the courtroom component of
Elder’s representation of the petitioner. The corner-
stone of the court’s analysis was whether Elder had
filed a written appearance with the court at the time
he fabricated the affidavits. Indeed, the court began its
analysis by emphasizing that ‘‘Elder appeared in the
petitioner’s case for bond purposes only.’’ The court
then declared that ‘‘Elder’s official representation of
the petitioner ended on March 10, 2004, when the court
ordered him out of the case.’’ (Emphasis added.)
Finally, the court noted that ‘‘[t]he petitioner had not
produced any evidence that [he] retained [Elder’s] ser-
vices after he withdrew from the case.’’13 (Emphasis
added.)
The habeas court’s analysis suggests that it deter-
mined as irrelevant evidence that Elder was acting on
the petitioner’s behalf and for his benefit when he fabri-
cated the affidavits. It is evident from the court’s analy-
sis in its memorandum of decision that it was most
persuaded by the limited nature of the initial appear-
ance filed by Elder and the subsequent withdrawal of
that appearance. The court’s reasoning fails to recog-
nize that the sixth amendment right to effective assis-
tance of counsel may extend, in the words of Stoia, to
an attorney who performs ‘‘behind the scenes’’ work
that, through deficient performance, negatively impacts
the ability of the petitioner to assess the strength of
the state’s case and the decision to accept or reject a
plea offer. See Stoia v. United States, supra, 22 F.3d 769.
The habeas court’s use of the phrase ‘‘official repre-
sentation’’ and its narrow focus on the nature of Elder’s
written appearance does not find support in our habeas
jurisprudence or our rules of practice. The filing of a
written appearance merely permits an attorney to
appear in court and be heard on behalf of a party,
entitles the attorney to confer with the prosecutor in
a criminal case, and allows the attorney to receive cop-
ies of all notices required to be given by statute. Practice
Book § 3-7. The filing of an appearance by one attorney
does not mean that the petitioner is prevented from
retaining other attorneys who will not appear in court
on his behalf but may perform important out-of-court
work on his behalf, including investigating potential
eyewitnesses and obtaining written statements from
them. Thus, even though Elder may not have been coun-
sel of record after March 10, 2004, Elder may have
continued to serve as the petitioner’s counsel behind
the scenes. Thus, the fact that Elder filed a limited
appearance in court is not dispositive, but is merely
one factor in determining the scope and duration of
the attorney-client relationship in the present case. See
State v. Murphy-Scullard, Docket. No. A07-1319, 2008
WL 4470378, *4 (Minn. App. October 7, 2008) (‘‘[f]or-
mally retaining an attorney is an important, although
not dispositive, factor for the purposes of being deemed
’counsel’ under the [s]ixth [a]mendment and its guaran-
tee of effective assistance of counsel’’).
The habeas court’s narrow focus on the status of
Elder’s ‘‘official representation’’ simply begs the ques-
tion: If he no longer represented the petitioner, why
would Elder continue to expend time and money
investigating the eyewitnesses and then fabricate the
affidavits, at great risk to his own personal and profes-
sional interests, if his representation of the petitioner
had ended? It is difficult to imagine Elder engaging in
such a frolic if he was not doing so as part of his
continuing representation of the petitioner.
Indeed, the habeas court failed to consider other facts
that suggest Elder continued to work on the petitioner’s
behalf after his written appearance was withdrawn on
March 10, 2004. For example, the court did not consider,
as was conceded by the state, that the witnesses’ affida-
vits were prepared sometime between the bond hearing
on March 2, 2004, and April 9, 2004, when Ferguson,
acting within the scope of his employment with Elder,
had the eyewitnesses sign their affidavits. It is clear
that, sometime between April 9, 2004, when the affida-
vits were signed, and April 30, 2004, when Lorenzen
used the fabricated affidavits during his cross-examina-
tion of Henry at the probable cause hearing, Elder gave
Lorenzen a copy of his file containing the fabricated
affidavits without alerting him or the petitioner to their
fraudulent nature.
The habeas court presumably also failed to consider
the fact that the petitioner was not appointed new coun-
sel on March 10, 2004, when Elder last appeared in
court on the petitioner’s behalf. In fact, the court contin-
ued the matter for the petitioner to apply for a public
defender or obtain new private counsel, leaving a period
of time during which it is unclear whether and when
the petitioner began to rely on the advice of an attorney
other than Elder, thereby signaling a de facto termina-
tion of the attorney-client relationship. Finally, there is
no indication that the habeas court considered whether
Elder’s representation was truly limited, given that he
had been paid a retainer that appeared to cover profes-
sional services that extended beyond representing the
petitioner at his arraignment.14
We agree with the petitioner that a sixth amendment
ineffective assistance of counsel claim is not limited
solely to those attorneys appearing in court on his
behalf but may extend to cases in which a nonappearing
attorney engages in deficient performance that
adversely impacts his case at a later time. Thus, the
habeas court should have considered the totality of the
circumstances regarding Elder’s representation of the
petitioner when analyzing the scope and duration of
the attorney-client relationship in the present case.
It is true that courts in other jurisdictions have
declined to extend the sixth amendment right to effec-
tive assistance of counsel to bad advice from an attor-
ney if the petitioner has otherwise received adequate
advice from another attorney acting on his behalf. These
cases are, however, distinguishable from the present
case.
In United States v. Martini, 31 F.3d 781, 782 (9th
Cir. 1994), the petitioner received conflicting advice
regarding a plea offer. The attorney who was originally
retained to represent the petitioner had urged him to
accept the offer. Id. Dissatisfied with this advice, the
petitioner sought a second opinion from an attorney
who was not familiar with the case and who, based on
the petitioner’s understated representations about the
strength of the state’s case, advised him that ‘‘the case
might be ’triable,’ ’’ advice that the petitioner later
claimed constituted ineffective assistance of counsel.
Id. In concluding that the sixth amendment right to the
effective assistance of the counsel did not extend to
the second opinion that he had received, the court
stated: ‘‘If a criminal defendant in fact receives effective
assistance of counsel from the lawyer he has retained
to meet the prosecution’s case, he cannot later claim
that he received ineffective assistance of counsel from
another lawyer he chose to consult.’’ Id., 782–83.
Following Martini, the Sixth Circuit Court of Appeals
in Santosuosso v. United States, Docket No. 95-3146,
1996 WL 15631, *3 (6th Cir. 1996), concluded that an
ineffective assistance of counsel claim did not extend
to an attorney’s advice where that attorney was not
counsel of record and the defendant had received ade-
quate advice from another attorney who was counsel
of record. In Santosuosso, the petitioner was repre-
sented by an attorney who had arranged a plea bargain
and advised that he accept it. Id., *1. On the same day
that his attorney of record convinced him to accept the
plea offer, the petitioner met with two other attorneys
who urged him to reject the plea offer, fire his current
attorneys, and hire them instead. Id. The petitioner did
so and subsequently claimed that the advice from those
attorneys to reject the offer constituted ineffective
assistance of counsel. Id., *2. Citing Martini, the court
concluded that the petitioner had received adequate
advice from his attorney of record, which satisfied the
sixth amendment right. Id., *3. The court noted that,
‘‘[t]he opposite conclusion, that whenever a criminal
defendant acts upon what turns out to be bad advice
he is entitled to relief for ineffective assistance, would
leave a defendant free to reject a plea bargain, go to
trial to test the waters, and then vacate the resulting
sentence when the trial proves more costly than the
plea agreement.’’ Id.
In a similar case, the United States District Court for
the Western District of Michigan concluded in United
States v. Logan, 257 F. Supp. 3d 880, 890–91 (W. D.
Mich. 2017), aff’d, 910 F.3d 864 (6th Cir. 2018), cert.
denied, U.S. , 139 S. Ct. 1589, 203 L. Ed. 2d
745 (2019), that the sixth amendment right to effective
assistance of counsel does not guarantee the right to
effective assistance of two attorneys in a case where
the attorneys have given conflicting advice. In Logan,
the petitioner was appointed counsel by the court, but
his family had also retained a different attorney to repre-
sent him. Id., 882–83. When the court disallowed the
appointed lawyer to withdraw and the retained attorney
to enter his appearance based on the tardy nature of
the request, the petitioner continued to seek advice
from the attorney he had retained to his detriment. Id.,
883. The court concluded that the retained attorney was
acting within the scope of the attorney-client relation-
ship when he gave the petitioner poor advice, but this
poor advice did not negate the adequate advice and
effective representation the petitioner had received
from appointed counsel. Id., 889.
The present case does not turn on any poor advice
that he allegedly received from Elder. The petitioner
also does not assert that his trial attorneys, who repre-
sented him at the time he received the plea offer,
engaged in deficient performance in rendering him
advice regarding whether to accept the plea offer.
Finally, the present case, unlike Martini, does not
involve a petitioner who received conflicting advice
from various counsel and later claimed that one attor-
ney’s advice was deficient while the other attorney’s
advice was not.
Instead, under the unusual circumstances of this
case, the petitioner argues that his decision to reject
the state’s plea offer was negatively impacted by the
deficient performance of Elder, who, acting within the
scope of his representation of the petitioner while
investigating the state’s case, decided to fabricate evi-
dence by putting words into the mouths of the state’s
witnesses. This distinction renders Martini and its
progeny inapposite.
Instead, we are guided by those courts, in addition
to Stoia, that have concluded that the sixth amendment
right to effective assistance of counsel, in certain cir-
cumstances, may extend to the performance of an attor-
ney who did not directly represent a petitioner in court,
but whose conduct negatively impacted the petitioner’s
representation at a later time. In State v. Murphy-
Scullard, supra, 2008 WL 4470378, *1, the petitioner
was represented at her guilty plea hearing by two attor-
neys of record from the public defender’s office. The
petitioner’s case was first being handled by Attorney
Sara Sjoholm, but in anticipation of passing the case
to a second attorney, Kelly Madden, both were present
for the guilty plea. Id. During the hearing, only Sjoholm
discussed the plea agreement with the petitioner and
addressed the court. Id. There was, however, evidence
that Madden had discussed the decision to plead guilty
with the petitioner before the date of the hearing. Id.,
*4. The court concluded that, because Madden was one
of the petitioner’s attorneys of record and had ‘‘some
minimal involvement in counseling’’ the petitioner
regarding the plea offer, the sixth amendment protec-
tions extended to her conduct. Id.
In United States v. Chezan, Docket No. 10 CR 905-
1, 2014 WL 8382792, *16-17 (N.D. Ill. October 14, 2014)
(report and recommendation adopted by federal Dis-
trict Court), United States Magistrate Judge Sheila Fin-
negan considered whether the sixth amendment right
to effective assistance of counsel extended to advice
given to the petitioner by an immigration attorney
regarding the immigration consequences of his pending
criminal matter, although the immigration attorney
never appeared in the criminal court. Importantly, the
petitioner’s criminal attorney relied on the advice from
the immigration attorney when advising the petitioner
on how to proceed with his criminal case. Id., *13. The
court found that it was undisputed that the immigration
attorney was retained to provide and did provide legal
advice to the petitioner and, thus, concluded that there
was ‘‘no question that the [s]ixth [a]mendment applies
to this type of representation.’’ Id., *17. The circum-
stances in the present case are more like those faced
by the petitioners in Chezan and Murphy-Scullard, in
which counsel, acting within the scope of the attorney-
client relationship, influenced the advice of a subse-
quent counsel in a way that prejudiced the petitioners.
We also are not persuaded by the respondent’s
attempt to distinguish Stoia v. United States, supra, 22
F.3d 766, from the present case by arguing that there
is ‘‘no evidence that Elder ‘called the shots’ or directly
controlled the petitioner’s defense from behind the
scenes.’’ Stoia imposes no such test. Although the court
in Stoia employed such language in assessing the level
of involvement of the attorney suffering from an
improper conflict of interest in that case; id., 769–70;
Stoia does not suggest that a petitioner must demon-
strate that the nonappearing counsel must have ‘‘called
the shots’’ in the case. Instead, Stoia simply recognizes
that, for the purpose of determining whether counsel
is representing a petitioner, the sixth amendment may
extend to nonappearing counsel who ‘‘negatively
impact the trial counsel’s ability to give the defendant
an adequate defense.’’
We simply are unconvinced by the respondent’s
assertion that the petitioner’s sixth amendment right
to effective assistance of counsel is so narrow so as
to leave unprotected a defendant whose prior counsel
engages in deficient performance, unbeknownst to sub-
sequent counsel, that influences the conduct of other
attorneys in the case or the defendant’s critical decision
on whether to accept a plea. Elder’s alleged conduct
may well have negatively impacted the propriety of the
advice given by his subsequent counsel regarding the
plea offer.15 Moreover, contrary to the state’s assertion,
there is little dispute that Elder impacted the petition-
er’s defense from behind the scenes when he, in the
course of investigating the state’s case, fabricated wit-
nesses’ affidavits without informing the petitioner or his
new attorneys, thereby influencing every subsequent
decision made on the basis of those fabricated affi-
davits.
In sum, by unduly focusing on the limited nature of
Elder’s court appearance and his subsequent with-
drawal of that appearance, the habeas court precluded
the possibility that Elder continued to represent the
petitioner for purposes of the sixth amendment when
he fabricated the affidavits. The existence of those fabri-
cated affidavits allegedly played a crucial role in the
petitioner’s decision to reject a plea offer to manslaugh-
ter in the first degree with a firearm that would have
resulted in his serving a ten to fifteen year period of
incarceration. Instead, the defendant rejected the plea
offer, was subsequently convicted of murder, and is
now serving a sentence of fifty years of incarceration.
In remanding this case for a new trial on the third
count of the amended petition, we do not mean to
suggest that the habeas court is required to reach the
legal conclusion that Elder was representing the peti-
tioner for purposes of the sixth amendment when he
fabricated the affidavits or that the petitioner was nec-
essarily prejudiced by this conduct. Instead, we simply
conclude that the petitioner is entitled to a determina-
tion by the habeas court that is not limited to consider-
ation of the status of Elder’s formal appearance in court
during the relevant period.
The judgment is reversed with respect to the habeas
court’s denial of count three of the operative amended
habeas petition, and the case is remanded for a new
trial on that count; the judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
Sheehan and Kouros represented the petitioner at trial and in his subse-
quent direct appeal.
2
It is not apparent from this record when Elder created the affidavits or
when Lorenzen took custody of the file containing them. It is evident,
however, that the affidavits were created before April 9, 2004, when they
were signed by both witnesses and that Lorenzen was in possession of them
on April 30, 2004, because he impeached Henry with his affidavit during
cross-examination at the probable cause hearing on that date. The file con-
taining the affidavits, therefore, must have been passed to Lorenzen between
April 9 and April 30, 2004.
3
In his first petition for a writ of habeas corpus, the petitioner claimed
that he was deprived of the effective assistance of counsel by his trial
attorneys, Sheehan and Kouros, because they: ‘‘(1) failed to object to the
testimony of [Ware], a late disclosed state’s witness; (2) failed to request a
continuance to investigate Ware’s testimony; (3) failed to move for a mistrial
subsequent to Ware’s testimony; (4) failed to object to the testimony of
[Elder], the petitioner’s bond counsel or cross-examine him; (5) failed to
file a motion for a mistrial after Elder testified; (6) failed to file a notice of
alibi or to subpoena alibi witnesses; (7) failed to investigate the evidence
or state’s witnesses prior to trial; (8) misrepresented the state’s plea offer;
(9) failed to adequately present evidence of third-party culpability, and in
particular, that [Odum] was in possession of a firearm of the same caliber
as the murder weapon; (10) failed to cross-examine Odum as to his posses-
sion of the gun; and (11) failed to request a jury charge on third-party
culpability.’’ McCarthy v. Warden, supra, 2012 WL 1222247, *2.
4
The habeas court denied counts two and four of the amended petition,
the so-called ‘‘habeas on a habeas’’ counts; see Kaddah v. Commissioner
of Correction, 324 Conn. 548, 550, 153 A.3d 1233 (2017); on the ground that
the petitioner failed to produce evidence sufficient to overcome the strong
presumption that McKay’s decision not to raise in the petitioner’s first habeas
action the claims now asserted in counts one and three fell within the wide
range of competence required by the sixth amendment. See Strickland v.
Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). On
appeal, the petitioner has failed to raise and separately brief any claim
challenging the habeas court’s denial of counts two and four. Although he
does address McKay’s alleged deficient performance in his argument that
he satisfies the cause and prejudice standard necessary to avoid procedural
default with respect to count one, we conclude that such briefing, untethered
to any specific claim directed at the court’s resolution of count two, is
inadequate to avoid abandoning a challenge to the denial of count two. See
Artiaco v. Commissioner of Correction, 180 Conn. App. 243, 248–49, 182
A.3d 1208, cert. denied, 328 Conn. 931, 184 A.3d 758 (2018).
5
Moreover, during the habeas trial, the respondent did not assert, as he
did during oral argument before this court, that he had raised procedural
default in his return with respect to count three. The habeas court, in
reviewing the pleadings with counsel prior to trial, expressly stated that it
viewed the respondent’s allegation of procedural default as directed only
to count one, and counsel for the respondent made no attempt to clarify
or assert otherwise. Moreover, during posttrial arguments, the respondent
reiterated that he was ‘‘still pursuing the procedural default in count 1.’’
6
Because the habeas court concluded that Elder was not representing
the petitioner within the meaning of the sixth amendment when he fabricated
the affidavits, it did not reach the question of whether Elder’s performance
fell below acceptable standards or if the petitioner was prejudiced by Elder’s
alleged deficient performance.
7
‘‘A convicted defendant’s claim that counsel’s assistance was so defective
as to require reversal of a conviction . . . has two components. First, the
defendant must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not function-
ing as the ‘counsel’ guaranteed the defendant by the [s]ixth [a]mendment.
Second, the defendant must show that the deficient performance prejudiced
the defense. This requires showing that counsel’s errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable. Unless
a defendant makes both showings, it cannot be said that the conviction
. . . resulted from a breakdown in the adversary process that renders the
result unreliable.’’ Strickland v. Washington, supra, 466 U.S. 687.
8
In habeas corpus proceedings, courts often describe constitutional
claims that are not tethered to a petitioner’s sixth amendment right to
counsel as ‘‘freestanding.’’ See, e.g., Moye v. Commissioner of Correction,
316 Conn. 779, 785–86, 114 A.3d 925, 928 (2015).
9
Practice Book § 42-43 provides in relevant part: ‘‘Upon motion of a
defendant, the judicial authority may declare a mistrial at any time during
the trial if there occurs during the trial an error or legal defect in the
proceedings, or any conduct inside or outside the courtroom which results
in substantial and irreparable prejudice to the defendant’s case. . . .’’
10
Practice Book § 42-53 (a) provides: ‘‘Upon motion of the defendant, the
judicial authority may grant a new trial if it is required in the interests of
justice. Unless the defendant’s noncompliance with these rules or with other
requirements of law bars his or her asserting the error, the judicial authority
shall grant the motion: (1) For an error by reason of which the defendant
is constitutionally entitled to a new trial; or (2) For any other error which
the defendant can establish was materially injurious to him or her.’’
11
We recognize that the petitioner did not call Elder as a witness at the
second habeas trial. Because we conclude that the habeas court applied an
incorrect legal standard in concluding that Elder was not the petitioner’s
counsel for purposes of the sixth amendment, that failure is not fatal to the
petitioner’s claim on appeal.
12
In Stoia, the petitioner brought an ineffective assistance of counsel
claim regarding one of his several attorneys, Raymond Takiff, who suffered
from an improper conflict of interest but who had never appeared in court
on his behalf. Stoia v. United States, supra, 22 F.3d 767–68. The court
concluded that the petitioner’s sixth amendment right to counsel was impli-
cated, despite the fact that Takiff never appeared in court, because his
conflict of interest negatively impacted the performance of other counsel
and his defense as a whole. Id., 773.
13
This statement by the habeas court is incorrect for at least two reasons.
First, if Elder’s representation of the petitioner continued beyond the end
of Elder’s in-court participation, then there would have been no need for
the petitioner to again retain Elder. Second, the petitioner did produce
evidence that Elder continued to represent him after March 10, 2004. That
evidence included the undisputed fact that Elder and his investigator contin-
ued to work on the petitioner’s case after that date. From that fact, a court
would be entitled to infer that the attorney-client relationship continued
unabated until sometime later.
14
If the retainer covered only professional services performed by Elder
during the petitioner’s arraignment, then there would have been no need
for Elder to represent to the court that he intended on returning the retainer
to the petitioner’s family.
15
If Sheehan and Kouros knew or should have known that the affidavits
were fabricated and subject to attack by the state, they arguably would
have had a duty to their client to investigate the procurement of the affidavits
in order to assess and provide advice to the petitioner regarding the strength
of the state’s case. Under those circumstances, Elder’s deficient performance
would have been ameliorated or cured by the constitutionally effective
representation of subsequent counsel. The habeas court did not reach this
question because it concluded that Elder, for purposes of the sixth amend-
ment, simply did not represent the petitioner at the time he fabricated
the affidavits. If, on remand, the habeas court concludes that Elder was
representing the petitioner for purposes of the sixth amendment during the
relevant period, then it would need to reach the question of whether the
petitioner, or Sheehan and Kouros, reasonably relied on the accuracy of
the affidavits without further investigation.