Hilton v. Commissioner of Correction

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JAMES HILTON v. COMMISSIONER
OF CORRECTION
(AC 36382)
(AC 36387)
Gruendel, Alvord and Mullins, Js.
Argued April 13—officially released November 10, 2015
(Appeal from Superior Court, judicial district of Tol-
land, Cobb, J.)
David B. Rozwaski, assigned counsel, for the appel-
lant in AC 36382 and the appellee in AC 36387 (peti-
tioner).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Michael Dearington, state’s attorney,
and David Clifton, assistant state’s attorney, for the
appellee in AC 36382 and the appellant in AC 36387
(respondent).
Opinion
MULLINS, J. In the appeal designated AC 36382, the
petitioner, James Hilton, appeals from the judgment of
the habeas court denying the claims presented in his
petition for a writ of habeas corpus.1 The petitioner
claims that the court erred when it determined that he
failed to establish that he received ineffective assistance
from his criminal trial counsel (counsel). In the appeal
designated AC 36387, the respondent, the Commis-
sioner of Correction, appeals from the judgment of the
habeas court granting a single aspect of the petition.
The respondent contends that the court improperly
determined that the petitioner received ineffective
assistance of counsel with respect to his claim regarding
sentence review. As a result of this determination, the
habeas court reinstated the petitioner’s right to apply
for sentence review.
With respect to the petitioner’s appeal, we affirm the
judgment of the habeas court denying the petition for
a writ of habeas corpus in AC 36382. As to the respon-
dent’s appeal, we conclude that the court erred by grant-
ing the petition for a writ of habeas corpus and
reinstating the petitioner’s right to apply for sentence
review. Accordingly, we reverse the judgment of the
habeas court in AC 36387. We will address each of these
appeals separately in this opinion.
I
AC 36382
This court previously set forth the underlying facts
relevant to the petitioner’s appeal: ‘‘The victim, William
Rodriguez, was shot on July 14, 2000, at approximately
9 p.m. in the area of Truman Street and King Place in
New Haven. Sergeant Anthony Duff arrived at the scene
of the shooting and discovered the victim’s body on the
sidewalk, surrounded by a crowd of people. An autopsy
performed on the victim’s body revealed that he died
from a single gunshot at close range to the left side of
his head. Bullet fragments removed during the victim’s
autopsy were tested and found to be consistent with
having been fired from either a .38 special or a .357
magnum firearm. No gun was ever recovered.
‘‘The shooting was precipitated by a drug turf war.
Anna Rodriguez, the victim’s longtime friend, testified
that two days before the murder, she and her boyfriend
had gone to visit the victim, who had just moved to an
apartment on Truman Street. Rodriguez testified that
upon arriving outside the victim’s apartment, her boy-
friend sounded his car horn, and the victim and his
girlfriend, Cora Moore, came outside to visit them. At
that point, the [petitioner] suddenly approached on the
passenger’s side of the car and peered inside. When the
[petitioner] recognized Rodriquez’ boyfriend, he
walked away.
‘‘The jury also heard testimony from Sherice Mills,
who stated that on the afternoon of the shooting,
‘Shawn,’ an associate of the victim, verbally confronted
the [petitioner] and one of his associates regarding
Shawn’s drug dealing activities on Truman Street, which
was part of the [petitioner’s] drug territory. During that
conversation, Shawn threatened the [petitioner] and his
associate. The confrontation soon ended, and Shawn
and the victim drove off in the victim’s car.
‘‘Two women testified as eyewitnesses to the actual
shooting. Mills testified that the victim left his porch
to make a drug sale to someone in a car. She testified
that moments later, while the victim was at the car, she
heard the [petitioner] state that he was ‘about to kill
[the victim],’ and observed the [petitioner] walk across
the street and shoot the victim in the head. According
to Mills, the [petitioner] fell to the ground with the
victim, and the [petitioner] ‘kept holding [the victim’s]
head, saying he didn’t mean to do it and [telling] some-
body to call the police.’ Mills later identified the [peti-
tioner] as the shooter from an array of photographs.
‘‘A second eyewitness, Simone Williams, who was on
the porch at the time of the shooting, testified about
essentially the same events as did Mills. Williams’ testi-
mony added that the [petitioner] had approached the
victim from behind and stated: ‘You ain’t from around
here, son,’ and, ‘You need to move from around here,
son,’ and that she then saw the [petitioner] take a gun
from behind his back and shoot the victim. When the
shooting stopped, Williams testified, the victim fell to
the ground, and the [petitioner] yelled for someone to
call an ambulance. A short time later, the [petitioner]
fled the scene. Williams went to the police station some-
time later and related to the police what she had
observed concerning the shooting. At that time, she
positively identified the [petitioner] in a photographic
array and did so again at trial.
‘‘The state also presented testimony from Moore, the
victim’s girlfriend, that while she was in Toisann Hen-
derson’s second floor apartment on Truman Street play-
ing with Henderson’s baby and listening to music, she
heard a gunshot. Minutes after the shooting, Henderson
ran from the porch into the apartment and told Moore
that the [petitioner] had shot her boyfriend. Moore ran
outside where she found the victim lying motionless
on the ground. She fell to the ground and started crying
and hugging him. Shortly thereafter, Duff arrived. On
the basis of the information that the witnesses provided,
Duff dispatched the [petitioner’s] description over the
police radio.
‘‘At trial, the [petitioner] testified that after meeting
with his family, he voluntarily went to the police station,
accompanied by his brother-in-law, Sergeant Nate
Blackman, and provided a statement about the shoot-
ing. While he was in police custody, the [petitioner]
stated that he had been sitting on his porch when he
heard a commotion and went to see what was happen-
ing. The [petitioner] further told the police that a third
man had drawn a gun, that the [petitioner] had grappled
for the gun, and ‘it went bashing across [the victim’s]
head.’ Later in the interview, the [petitioner] was asked
if he could give more detail about the shooting. It was
at that point that the [petitioner] ended the interview.
At trial, he described how several seconds after he
fought with the third man, a fourth man shot the victim
and ran away. Immediately after the gunshot, the [peti-
tioner] testified, he applied pressure to the victim’s
wound to stop the bleeding. He further testified that
he left the victim to make sure someone had called an
ambulance. When he returned and saw that the victim
was receiving aid, he went to and sat on the porch.
The [petitioner] testified that he sat on the porch until
people in the crowd began to tell the police that he did
the shooting. He then stated that he became scared,
and went directly to see his children and then to Black-
man’s house.
‘‘During their investigation, the police learned that
after the shooting, the [petitioner] went to see his fian-
cee, Maybertha Ashley. She and her sister, Andrea Ash-
ley, testified that the [petitioner] had given his bloody
clothes to his fiancee, who in turn gave them to Andrea
Ashley to wash. When the police arrested the [peti-
tioner] at the police station, they took the clothing he
had worn on the evening of the shooting. The blood
samples and clothes collected from both the victim and
the [petitioner] were sent to the state forensic labora-
tory. A state’s expert testified that a drop of blood found
on the [petitioner’s] boxer shorts matched the victim’s
blood type and DNA. Despite the fact that the victim had
been shot at fairly close range, there was no detectable
blood on the [petitioner’s] other clothes. The [peti-
tioner] denied ever having his clothes washed after
the shooting, and explained that his clothes were not
covered in blood because he wore his shirt over his
head and his pants around his knees.
‘‘On September 12, 2000, the [petitioner] was charged
with murder, and criminal possession of and carrying
a pistol or revolver without a permit. Following a trial
in July, 2001, the jury returned a verdict of guilty on
all counts. On September 28, 2001, the court sentenced
the [petitioner] to a term of sixty years imprisonment
on the charge of murder, a consecutive term of five
years imprisonment on the charge of carrying a pistol
without a permit and a concurrent term of five years
imprisonment on the charge of criminal possession of
a pistol or revolver for a total effective sentence of
sixty-five years imprisonment.’’ (Footnotes omitted.)
State v. Hilton, 79 Conn. App. 155, 157–60, 829 A.2d
890 (2003). We affirmed the judgment of conviction on
direct appeal. See id., 170.
Following his unsuccessful direct appeal, the peti-
tioner commenced the present habeas action. In his
third amended petition, dated December 19, 2011, he
alleged, inter alia, that counsel had provided him with
ineffective assistance. Specifically, as relates to AC
36382, he alleged that counsel was ineffective in failing
to cross-examine witnesses properly, failing to present
witnesses, failing to prepare the petitioner to testify
and failing to present sentence mitigation evidence. Fol-
lowing a trial, the habeas court issued a memorandum
of decision denying these claims.2
The petitioner claims that the court improperly con-
cluded that he had received effective assistance of coun-
sel during his criminal trial and at sentencing.
Specifically, he argues that counsel provided ineffective
assistance by failing to (1) secure sufficient information
and properly cross-examine two of the state’s wit-
nesses, (2) present witnesses in support of his defense,
(3) prepare the petitioner to testify and (4) present
sentence mitigation evidence. We are not persuaded by
any of the petitioner’s arguments.
As an initial matter, we set forth our standard of
review and the relevant legal principles with respect to
a claim of ineffective assistance of counsel. ‘‘The habeas
court is afforded broad discretion in making its factual
findings, and those findings will not be disturbed unless
they are clearly erroneous. . . . Historical facts consti-
tute a recital of external events and the credibility of
their narrators. . . . Accordingly, [t]he habeas judge,
as the trier of facts, is the sole arbiter of the credibility
of witnesses and the weight to be given to their testi-
mony. . . . The application of the habeas court’s fac-
tual findings to the pertinent legal standard, however,
presents a mixed question of law and fact, which is
subject to plenary review.’’ (Internal quotation marks
omitted.) Mahon v. Commissioner of Correction, 157
Conn. App. 246, 252, 116 A.3d 331, cert. denied, 317
Conn. 917, 117 A.3d 855 (2015); see also Sanchez v.
Commissioner of Correction, 314 Conn. 585, 604, 103
A.3d 954 (2014).
‘‘A habeas petitioner can prevail on a constitutional
claim of ineffective assistance of counsel [only if he
can] establish both (1) deficient performance, and (2)
actual prejudice. . . . For ineffectiveness claims
resulting from guilty verdicts, we apply the two-pronged
standard set forth in Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) . . . .
To satisfy the performance prong, the petitioner must
show that counsel’s representation fell below an objec-
tive standard of reasonableness. . . . A reviewing
court must view counsel’s conduct with a strong pre-
sumption that it falls within the wide range of reason-
able professional assistance. . . . To satisfy the
prejudice prong for ineffective assistance claims
resulting from guilty verdicts, the petitioner must dem-
onstrate that there exists a reasonable probability that,
but for counsel’s unprofessional errors, the result of
the proceeding would have been different.’’ (Internal
quotation marks omitted.) Johnson v. Commissioner
of Correction, 153 Conn. App. 848, 855, 104 A.3d 771
(2014), cert. denied, 315 Conn. 912, 106 A.3d 305 (2015).
‘‘The claim will succeed only if both prongs are satisfied.
. . . Consequently, [i]t is well settled that [a] reviewing
court can find against a petitioner on either ground,
whichever is easier.’’ (Citation omitted; internal quota-
tion marks omitted.) Sanchez v. Commissioner of Cor-
rection, supra, 314 Conn. 606; Haywood v.
Commissioner of Correction, 153 Conn. App. 651, 656,
105 A.3d 238 (same), cert. denied, 315 Conn. 908, 105
A.3d 236 (2014).
We also are mindful that ‘‘[a] fair assessment of attor-
ney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to recon-
struct the circumstances of counsel’s challenged con-
duct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inher-
ent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance;
that is, the [petitioner] must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy. . . . [C]oun-
sel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exer-
cise of reasonable professional judgment.’’ (Internal
quotation marks omitted.) Antonio A. v. Commissioner
of Correction, 148 Conn. App. 825, 829–30, 87 A.3d 600,
cert. denied, 312 Conn. 901, 91 A.3d 907 (2014). Guided
by these principles, we turn to the petitioner’s spe-
cific arguments.
A
The petitioner first argues that counsel failed to
secure sufficient information and did not properly
cross-examine two of the state’s witnesses, namely,
Arkady Katsnelson, the pathologist who performed the
autopsy on the victim, and Mills, an eyewitness to the
shooting. He contends that counsel’s ‘‘failure to investi-
gate and seek out additional witnesses whose testimony
would have contradicted the state’s witnesses or to
utilize existing prior statements from various witnesses
to cross-examine more effectively the state’s witnesses,
constituted deficient performance by trial counsel.’’ We
will consider each of these arguments in turn.
1
We first address the petitioner’s argument regarding
the investigation conducted by counsel.3 In its memo-
randum of decision, the habeas court stated: ‘‘With
respect to [the] claim of a deficient investigation . . .
[counsel] hired an investigator and conducted an objec-
tively reasonable investigation by seeking out witnesses
and viewing the scene. He also reviewed all discovery
materials. The petitioner has not produced any evidence
as to what specifically counsel failed to uncover through
additional investigation. The reasonableness of an
investigation must be evaluated not through hindsight
but from the perspective of the attorney when he was
conducting it. . . . The burden to demonstrate what
benefit additional investigation would have revealed
is on the petitioner. . . . Norton v. Commissioner of
Correction, 132 Conn. App. 850, 858–59, 33 A.3d 819,
cert. denied, 303 Conn. 936, 36 A.3d 695 (2012). The
petitioner has failed to meet his burden as to this claim.’’
(Internal quotation marks omitted.)
In his appellate brief, the petitioner likewise has
failed to demonstrate the benefits of additional investi-
gation by counsel. Aside from a vague and unsupported
assertion that further investigation would have been
beneficial, the petitioner’s brief is devoid of any specif-
ics regarding this argument. ‘‘It is not enough merely
to mention a possible argument in the most skeletal
way, leaving the court to do counsel’s work, create the
ossature for the argument, and put flesh on its bones.’’
(Internal quotation marks omitted.) State v. Diaz, 94
Conn. App. 582, 593, 893 A.2d 495, cert. denied, 280
Conn. 901, 907 A.2d 91 (2006). Having failed to demon-
strate the benefit of additional investigation by counsel,
the petitioner’s argument must fail.
2
We now turn to the petitioner’s contention that coun-
sel provided ineffective assistance by insufficiently
cross-examining Katsnelson. At the habeas trial, the
petitioner argued that counsel was ineffective in his
cross-examination of Katsnelson regarding the nature
of the victim’s fatal wound. In rejecting this claim, the
habeas court noted that the scope and nature of the
cross-examination of a witness is a matter of trial strat-
egy and that the petitioner had ‘‘failed to overcome the
strong presumption that [counsel’s] examination tactics
as to Mills and . . . Katsnelson constituted a reason-
able trial strategy.’’ The court further determined that
the petitioner had failed to show prejudice with respect
to counsel’s performance as to these witnesses. We
agree with the habeas court.
During the criminal trial, Katsnelson testified that the
victim suffered a contact gunshot wound. During the
habeas trial, the petitioner presented the expert testi-
mony of Harold Wayne Carver II, the state’s chief medi-
cal examiner, and Peter DeForest, who held a doctorate
degree in forensic science, regarding Katsnelson’s
autopsy report and conclusions. After reviewing the
autopsy report and photographs, Carver agreed with
Katsnelson’s testimony from the criminal trial that the
victim suffered a contact gunshot wound.4 DeForest
opined that, based on his review of the evidence, it was
ambiguous as to whether the victim had suffered a
contact gunshot wound. During cross-examination, he
admitted that he could not conclude, to a reasonable
degree of scientific certainty, that the victim had not
sustained a contact gunshot wound.
We agree with the respondent and the habeas court
that the petitioner failed to sustain his burden of estab-
lishing either deficient performance5 or prejudice6 with
respect to the cross-examination of Katsnelson. As to
the former, we have stated that ‘‘[a]n attorney’s line
of questioning on examination of a witness clearly is
tactical in nature. [As such, this] court will not, in hind-
sight, second-guess counsel’s trial strategy.’’ (Internal
quotation marks omitted.) Antonio A. v. Commissioner
of Correction, supra, 148 Conn. App. 832; see also
Mitchell v. Commissioner of Correction, 109 Conn.
App. 758, 769–70, 953 A.2d 685 (after reviewing record
from both criminal and habeas proceedings, Appellate
Court agreed that examination of witnesses was exer-
cise of sound trial strategy that would not be second-
guessed), cert. denied, 289 Conn. 950, 961 A.2d 417
(2008). In regard to the latter, given the other evidence
and the inconclusive and indeterminate nature of
DeForest’s testimony, the petitioner failed to sustain
his burden of establishing prejudice.
3
We next address the petitioner’s argument that he
suffered prejudice as a result of counsel’s deficient per-
formance in cross-examining Mills. The habeas court
determined that the petitioner failed to overcome the
strong presumption that the cross-examination of Mills
constituted reasonable trial strategy or that it was preju-
dicial. The petitioner’s claim of deficient performance
with respect to the cross-examination of Mills is not
clear from his appellate brief. What is evident is that
he has failed to establish prejudice. The habeas court
determined that there were other eyewitnesses who
implicated the petitioner as the shooter of the victim,
and, therefore, even if counsel had been deficient in
his cross-examination of Mills, the petitioner could not
demonstrate prejudice as a result thereof. As we noted
on direct appeal, a second witness, Simone Williams,
‘‘testified about essentially the same events as did
Mills.’’ State v. Hilton, supra, 79 Conn. App. 158. We
conclude, therefore, that this argument fails.
B
The petitioner next argues that counsel improperly
failed to present two potential witnesses, Priscilla Sim-
mons and DeForest, in support of his defense. Specifi-
cally, he contends that counsel should have called these
potential witnesses at his criminal trial because Sim-
mons would have stated that a third party was the
shooter, and DeForest would have attacked the testi-
mony and conclusions of Katsnelson. The respondent
counters that the habeas court properly concluded that
counsel did not render deficient performance by failing
to call either potential witness. We agree with the
respondent.
1
At the habeas trial, Simmons testified that she wit-
nessed a third person, Rasshaan Reed, shoot the victim
in the morning of July 20, 2000.7 She did not provide
this information to the police. She also stated that she
spoke with some investigators at some point, but not
before 2001. She admitted that she knew the petitioner
had been charged with shooting the victim, but did not
tell anyone about Reed because she was scared.
The habeas court concluded that ‘‘[t]he petitioner
produced no evidence that [counsel] had any knowl-
edge of Simmons’ version of the events. Although [coun-
sel] hired an investigator who conducted an
investigation, he did not locate Mills, which is under-
standable since it is clear that she did not want to be
found or to be involved in any way.’’ After citing the
relevant case law, the court concluded: ‘‘The petitioner
has produced no evidence that [counsel] knew, or could
have known, about Simmons. Additionally, it is not evi-
dent that such testimony would have been deemed cred-
ible, as she testified that the events occurred in the
morning, and the other witnesses and evidence estab-
lished that the shooting occurred in the evening at
around 9 p.m.’’
The petitioner failed to sustain his burden of estab-
lishing that counsel provided ineffective assistance by
failing to call Simmons as a witness. ‘‘Defense counsel
will be deemed ineffective only when it is shown that
a defendant has informed his attorney of the existence
of the witness and that the attorney, without a reason-
able investigation and without adequate explanation,
failed to call the witness at trial. The reasonableness
of an investigation must be evaluated not through hind-
sight but from the perspective of the attorney when he
was conducting it. . . . The burden to demonstrate
what benefit additional investigation would have
revealed is on the petitioner.’’ (Citations omitted; inter-
nal quotation marks omitted.) Norton v. Commissioner
of Correction, supra, 132 Conn. App. 858–59.
Here, there was no evidence presented at the habeas
trial that counsel was aware, or should have been aware,
of Simmons at the time of the criminal trial. We also
agree with the conclusion of the habeas court that the
petitioner failed to show that Simmons’ testimony
would have been helpful to his defense. See Dunkley
v. Commissioner of Correction, 73 Conn. App. 819, 824,
810 A.2d 281 (2002) (failure to call potential defense
witness does not constitute ineffective assistance with-
out some showing that testimony would have been help-
ful in establishing defense), cert. denied, 262 Conn. 953,
818 A.2d 780 (2003). For these reasons, we conclude
that the habeas court properly rejected this argument.
2
As noted previously, DeForest testified at the habeas
trial and challenged the conclusions of Katsnelson
regarding the nature of the gunshot wound suffered by
the victim. The habeas court concluded that DeForest’s
testimony would not have been helpful in establishing
that the petitioner did not shoot the victim. Katsnelson
had testified at the criminal trial that the fatal wound
was a contact gunshot wound. DeForest did not contra-
dict this opinion, ‘‘but could only say that the evidence
was ambiguous, and therefore he could not offer an
opinion as to the type of wound, and therefore could
not say that it was not a contact wound.’’
The habeas court concluded that ‘‘the petitioner has
failed to prove that the testimony of . . . DeForest
would have been helpful in establishing that the peti-
tioner was not the shooter. At the criminal trial . . .
Katsnelson opined that the wound to the victim’s face
was a contact gunshot wound. . . . DeForest did not
contradict . . . Katsnelson’s testimony but could only
say that the evidence was ambiguous, and therefore he
could not offer an opinion as to the type of wound, and
therefore could not say that it was not a contact wound.’’
We agree with the analysis of the habeas court. As
stated previously, the petitioner bears the burden of
establishing that the testimony of DeForest would have
been helpful to his defense. The testimony presented
at the habeas trial from DeForest was insufficient to
meet that standard.
C
The petitioner next argues that counsel improperly
failed to prepare the petitioner to testify during the
criminal trial. Specifically, he contends that counsel
did not advise him properly as to which of his prior
convictions he could acknowledge and counsel did not
guide him as to the manner in which the prior convic-
tions could be addressed during his testimony. The peti-
tioner also maintains that counsel provided deficient
performance by failing to file a motion to suppress
references to his criminal history, his prison record and
his prior sentences. The respondent counters that the
habeas court properly determined that the petitioner
failed to establish prejudice from these claimed defi-
ciencies, given the strong evidence of guilt. We agree
with the respondent.
In its memorandum of decision, the habeas court
noted that the petitioner had exercised his right to tes-
tify at the criminal trial despite the contrary advice of
counsel. During his direct examination, the petitioner
had responded to questions regarding his arrests for
possession of marijuana and his incarceration for a 1996
conviction. During cross-examination, the prosecutor
had pointed out that the petitioner had been convicted
of the more serious offense of possession with intent
to sell, and also asked the petitioner about other felony
and illegal drug related convictions.
After reviewing this testimony, the habeas court con-
cluded that the petitioner had failed to prove prejudice
with respect to this claim of ineffective assistance of
counsel because ‘‘[t]he state had strong evidence of the
petitioner’s guilt, including eyewitnesses who saw the
petitioner shoot the victim and heard him make inculpa-
tory statements, evidence of [the] petitioner’s con-
sciousness of guilt and forensic evidence.’’ Specifically,
the court explained that there was evidence that the
petitioner, who had been threatened prior to the shoot-
ing, stated that he was about to kill the victim, two
eyewitnesses observed the petitioner shoot the victim,
the petitioner was overheard saying that he ‘‘ ‘didn’t
mean to do it’ ’’; State v. Hilton, supra, 79 Conn. App.
158; one of the eyewitnesses told a third party that
the petitioner had shot the victim, and the petitioner’s
testimony at the criminal trial was not credible given
the forensic evidence and other eyewitnesses.
We agree with the habeas court and conclude that,
even if counsel’s performance was deficient for not
sufficiently preparing the petitioner to testify, the peti-
tioner failed to carry his burden of demonstrating that
there is a reasonable probability that the outcome of
the trial would have been different had he been more
prepared, given the strong and overwhelming evidence
presented by the state. See Eastwood v. Commissioner
of Correction, 114 Conn. App. 471, 479, 969 A.2d 860,
cert. denied, 292 Conn. 918, 973 A.2d 1275 (2009).
Accordingly, the petitioner’s claim that counsel ren-
dered ineffective assistance by failing to prepare him
to testify must fail.
D
The petitioner’s final argument is that counsel
improperly failed to present sentence mitigation evi-
dence. Specifically, he contends that counsel ‘‘did not
attempt to learn and know his client, did not seek out
family members or additional information, which would
have been helpful for mitigation purposes.’’ The respon-
dent counters that the habeas court properly deter-
mined that the petitioner had failed to demonstrate
that counsel had provided ineffective assistance with
respect to sentencing. We agree with the respondent.
At the habeas trial, counsel testified that he had met
with the petitioner and discussed the presentence inves-
tigation report (report) with him. LaJeune Moore and
Brenda Hilton, the petitioner’s sisters, testified that they
would have spoken at the sentencing and addressed
the petitioner’s positive attributes, including his rela-
tionships with his children.8
The habeas court noted that the report detailed the
petitioner’s extensive criminal history that spanned
over a decade and included multiple arrests for drug
related offenses and crimes of violence. The report fur-
ther indicated that the petitioner had spent a significant
amount of time incarcerated. The court determined that
additional statements from the petitioner’s sisters
would have been cumulative of the information set forth
in the report, and thus were not likely to have changed
the outcome of the sentencing. Specifically, the court
stated: ‘‘Given the circumstances of the underlying
crime, the petitioner’s refusal to admit guilt and his
extensive and serious criminal record, it is not reason-
ably probable that the trial court would have imposed
a lesser sentence.’’
‘‘Criminal defendants have a constitutional right to
effective assistance of counsel during the sentencing
stage. . . . To establish prejudice, [i]t is not enough
for the [petitioner] to show that the errors had some
conceivable effect on the outcome of the proceedings.
. . . A claimant must demonstrate a reasonable proba-
bility that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’’
(Citations omitted; internal quotation marks omitted.)
Davis v. Commissioner of Correction, 147 Conn. App.
343, 360, 81 A.3d 1226 (2013), cert. granted on other
grounds, 311 Conn. 921, 86 A.3d 467 (2014); see also
Vega v. Commissioner of Correction, 103 Conn. App.
732, 733–37, 930 A.2d 75 (2007), cert. denied, 285 Conn.
906, 942 A.2d 416 (2008).
After a careful review of the record, we agree with
the conclusion of the habeas court that even if the
petitioner’s sisters had testified at the sentencing, it is
not reasonably probable that the petitioner would have
received a lesser sentence. The petitioner had a signifi-
cant criminal history, as documented in the report, and
was convicted, inter alia, of murder following the testi-
mony of multiple eyewitnesses. Under these facts and
circumstances, we conclude that the habeas court prop-
erly rejected this argument.
Accordingly, with respect to the petitioner’s appeal
in AC 36382, we affirm the judgment of the habeas court
denying the petition for a writ of habeas corpus.
II
In AC 36387, the respondent claims that the court
incorrectly concluded that the petitioner’s criminal trial
counsel provided ineffective assistance in connection
with the petitioner’s right to sentence review. We con-
clude that the petitioner failed to provide any evidence
that he wanted sentence review. Accordingly, even if
counsel was deficient in his performance, the petitioner
failed to establish that he was prejudiced by that defi-
cient performance. We, therefore, reverse the judgment
of the habeas court in AC 36387.9
The following facts are relevant to the respondent’s
appeal. The petitioner was convicted of murder in viola-
tion of General Statutes § 53a-54a (a), carrying a pistol
or revolver without a permit in violation of General
Statutes § 29-35 (a), and criminal possession of a pistol
or revolver in violation of General Statutes § 53a-217e,
and he received a sentence of sixty-five years incarcera-
tion.10 His conviction was upheld on appeal. State v.
Hilton, supra, 79 Conn. App. 155. On December 20,
2011, the petitioner filed a third amended petition for
a writ of habeas corpus. After a habeas trial, the court
denied the petition in part; see part I of this opinion;
but granted the petition in part on the ground that the
petitioner’s counsel had provided ineffective assistance
by failing to file an application for sentence review
on the petitioner’s behalf. From that portion of the
judgment, the respondent now appeals. We will set forth
additional facts as they become necessary to our
analysis.
On appeal, the respondent claims that the court incor-
rectly concluded that counsel had provided ineffective
assistance in connection with the petitioner’s right to
sentence review. The respondent argues that counsel
was not deficient in his performance and that, even if
counsel was deficient, the petitioner failed to demon-
strate prejudice because he provided no evidence that
he wanted sentence review. We agree that the petitioner
failed to present any evidence that he wanted counsel
to file an application for sentence review on his behalf.
Accordingly, the petitioner failed to establish that he
suffered any prejudice as a result of counsel’s alleged
deficiencies in performance.
In his third amended petition, the petitioner alleged
in relevant part that ‘‘counsel failed to perfect the peti-
tioner’s sentence review rights,’’ and he requested that
those rights be restored. In his return, the respondent
denied that allegation. The habeas court found the fol-
lowing relevant facts in its memorandum of decision
following the habeas trial: ‘‘At the habeas [trial], counsel
testified that he left all posttrial filings, including sen-
tence review, to the petitioner’s appellate counsel
because he believed that appellate counsel would be
better able to handle those matters. [Counsel] believes
he spoke to the petitioner after the verdict [at his crimi-
nal trial], gave him the sentence review forms, and
explained that it would be best for appellate counsel
to handle sentence review matters. [Appellate counsel]
believed that [criminal trial counsel] would represent
the petitioner at sentence review and file the application
on the petitioner’s behalf. However, neither [criminal
trial counsel nor appellate counsel] filed the application
within the thirty day statutory time period, and, as a
result, the petitioner did not have his sentence
reviewed.’’
The habeas court concluded that ‘‘because [counsel]
represented the petitioner at sentencing, he was respon-
sible for representing him at sentence review, which
representation necessarily includes advising him of his
right and the risks and benefits of the sentence review
procedure and filing the application.11 Here, [counsel]
left the critical task of filing the petitioner’s application
[for] sentence review to his appellate counsel, who also
failed to pursue the application. The court, therefore,
concludes that the petitioner has met his burden to
prove that . . . counsel’s [representation] was defi-
cient.’’ (Footnote added.)
The court then concluded that counsel’s failure to
pursue a sentence review application on behalf of the
petitioner amounted to per se prejudice: ‘‘[P]rejudice
is established by the absence of access to sentence
review, resulting from [criminal] trial counsel’s defi-
cient performance.’’ We disagree, however, with the
habeas court’s per se prejudice conclusion.
We reiterate our well established standard of review
‘‘of a habeas court’s judgment on ineffective assistance
of counsel claims . . . . In a habeas appeal, this court
cannot disturb the underlying facts found by the habeas
court unless they are clearly erroneous, but our review
of whether the facts as found by the habeas court consti-
tuted a violation of the petitioner’s constitutional right
to effective assistance of counsel is plenary. . . . 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.)
Andrades v. Commissioner of Correction, 108 Conn.
App. 509, 511, 948 A.2d 365, cert. denied, 289 Conn. 906,
957 A.2d 868 (2008).
‘‘In order to establish an ineffective assistance of
counsel claim a petitioner must meet the two-pronged
test enunciated in Strickland v. Washington, [supra,
466 U.S. 687]. Specifically, the claim must be supported
by evidence establishing that (1) counsel’s representa-
tion 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.
. . . Crocker v. Commissioner of Correction, 126 Conn.
App. 110, 116, 10 A.3d 1079, cert. denied, 300 Conn. 919,
14 A.3d 333 (2011). Because both prongs of Strickland
must be demonstrated for the petitioner to prevail, fail-
ure to prove either prong is fatal to an ineffective assis-
tance claim.’’ (Emphasis omitted; internal quotation
marks omitted.) Jefferson v. Commissioner of Correc-
tion, 144 Conn. App. 767, 772–73, 73 A.3d 840, cert.
denied, 310 Conn. 929, 78 A.3d 856 (2013).
In this case, even if we assume deficient performance
on the part of criminal trial counsel, the petitioner pre-
sented no evidence that he wanted counsel to file an
application for sentence review. Accordingly, his claim
fails under the second prong of Strickland.
In reaching its decision that counsel’s actions, essen-
tially, amounted to per se prejudice, the habeas court
cited James L. v. Commissioner of Correction, 245
Conn. 132, 145, 712 A.2d 947 (1998), and Andrades v.
Commissioner of Correction, supra, 108 Conn. App.
516. Those cases, however, are distinguishable from the
present case.
In James L., ‘‘[t]he commissioner [did] not contest
the habeas court’s conclusion that the petitioner was
deprived of the effective assistance of counsel at the
proper time for access to sentence review. The petition-
er’s counsel failed to engage him in a meaningful discus-
sion of whether to apply for sentence review. Counsel
also failed to file the application for sentence review
within the statutory time period. The habeas court . . .
noted that if, as in this case, a petitioner is deprived of
sentence review because counsel failed to file the
papers in a timely fashion, prejudice is established by
the absence of access to sentence review.’’ (Citation
omitted.) James L. v. Commissioner of Correction,
supra, 245 Conn. 145.
The issue of prejudice, however, was not litigated
before our Supreme Court in James L. See id. Rather,
the commissioner did not contest the conclusion of
prejudice made by the habeas court. Id. On appeal, the
issues before our Supreme Court related to successive
petitions and whether the habeas court had the jurisdic-
tion to restore a right that, by statute, was time limited.
Id., 136. What we know from the decision is that the
habeas court found that counsel did not engage the
petitioner in a meaningful discussion of sentence review
and that counsel did not file for sentence review. See
id., 145. There is no indication whether the petitioner
testified, providing evidence that he would have wanted
to file for sentence review had counsel engaged him in
a meaningful discussion. See id. Nevertheless, with the
habeas court having found that counsel did not engage
in a meaningful discussion with the petitioner regarding
the right to sentence review, this may have amounted
to structural error in that the petitioner was not made
aware of his rights. In the present case, however, there
was no finding that counsel did not engage in a meaning-
ful conversation with the petitioner.
In Andrades v. Commissioner of Correction, supra,
108 Conn. App. 513–14, the petitioner testified at his
habeas trial that his criminal trial counsel ‘‘had informed
him that he would take care of the paperwork necessary
to file the sentence review application. In a similar
vein, [counsel] stated that it was his practice to file an
application for sentence review on behalf of his clients
when he filed a motion for a waiver of fees and costs
to appeal. Although [counsel] testified as to his belief
that he had applied for sentence review in the petition-
er’s case, he acknowledged that he did not have a copy
of that application in his file, nor did he have any docu-
mentation reflecting that the application had been filed
with the court. The petitioner stated that the sentence
review division had not reviewed his sentence. Like-
wise, [counsel] testified that, although the sentence
review division usually would contact him about a pend-
ing sentence review, he was never informed of a sen-
tence review concerning the petitioner by the sentence
review division . . . [and he] never inquired about the
status of the petitioner’s sentence review.’’
In concluding that the habeas court improperly had
dismissed the petitioner’s habeas petition, we explained
that criminal trial counsel ‘‘had undertaken to ensure
that the application for sentence review was filed prop-
erly on behalf of the petitioner, and this finding [was]
supported by the evidence, namely, the testimony given
by the petitioner and by [criminal trial counsel].’’ Id.,
515. In reading the Andrades decision, it is clear that
a reasonable inference can be made that during the
petitioner’s habeas testimony, he testified that he
wanted counsel to file an application for sentence
review and that counsel told him that it would be filed.
See id., 513–16. Furthermore, counsel apparently veri-
fied this. See id.
The facts of the Andrades case readily are distin-
guishable from the present case. Here, the petitioner
did not testify at his habeas trial, nor did he present
any evidence that he wanted sentence review or that
he was willing to take the risk of filing an application
for sentence review.12 Furthermore, the habeas court
explained that counsel testified that he had discussed
sentence review with the petitioner and gave him the
necessary forms, although counsel also told the peti-
tioner that appellate counsel should file all the posttrial
filings.13 The petitioner points to nothing in the record
that establishes that he wanted sentence review during
the thirty days after he was sentenced.
Additionally, during oral argument before this court,
the petitioner’s counsel admitted that there was nothing
specific in the record to demonstrate that the petitioner
wanted his sentence reviewed at that time, but that an
inference could be made because the petitioner raised
this as a claim in his habeas petition. He also argued that
the petitioner did not have to prove prejudice because
criminal trial counsel’s failure to file an application for
sentence review is per se prejudicial, even if a petitioner
does not want his sentence reviewed. We disagree.
Although the petitioner in this case received a sen-
tence that was only five years less than the total maxi-
mum sentence, and one could speculate that it is
unlikely that he would not have wanted sentence
review, the fact remains that he provided no evidence
that he wanted counsel to file an application for sen-
tence review or that he was willing to take the risk of
getting an additional five years if an application was
filed and the sentence ultimately was increased. We
simply cannot fill in this evidentiary gap with specula-
tion. With such evidence lacking from the record, we
conclude that the petitioner failed to meet his burden
of establishing prejudice.
Accordingly, with respect to the respondent’s appeal
in AC 36387, we reverse the judgment of the habeas
court concluding that the petitioner’s trial counsel pro-
vided ineffective assistance in failing to file an applica-
tion for sentence review.
In AC 36382, the judgment is affirmed. In AC 36387,
the judgment is reversed and the case is remanded with
direction to deny the petition and to render judgment
for the respondent.
In this opinion the other judges concurred.
1
The habeas court granted the petition as it relates to the petitioner’s claim
that criminal trial counsel was ineffective for failing to file an application for
sentence review. We will address this aspect of the petition in part II of
this opinion.
2
The third amended petition also alleged that the petitioner had received
ineffective assistance of his appellate attorney, that he was actually innocent
of the crimes charged, and that the state had failed to provide him with
exculpatory information in violation of his due process rights under Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the United
States constitution and the Connecticut constitution.
None of these claims are relevant to the present appeal because, at the
habeas trial, the petitioner withdrew his claim as to his appellate attorney
and he does not challenge the habeas court’s denial of his actual innocence
and Brady claims.
3
Our Supreme Court has discussed the duty to investigate as follows:
‘‘Inasmuch as [c]onstitutionally adequate assistance of counsel includes
competent pretrial investigation . . . [e]ffective assistance of counsel
imposes an obligation [on] the attorney to investigate all surrounding circum-
stances of the case and to explore all avenues that may potentially lead to
facts relevant to the defense of the case. . . .
‘‘Nevertheless, strategic choices made after thorough investigation 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. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary. In any ineffectiveness case, a particu-
lar decision not to investigate must be directly assessed for reasonableness
in all the circumstances, applying a heavy measure of deference to coun-
sel’s judgments.
‘‘The reasonableness of counsel’s actions may be determined or substan-
tially influenced by the [petitioner’s] own statements or actions. Counsel’s
actions are usually based, quite properly, on informed strategic choices
made by the [petitioner] and on information supplied by the [petitioner]. In
particular, what investigation decisions are reasonable depends critically
on such information. For example, when the facts that support a certain
potential line of defense are generally known to counsel because of what the
defendant has said, the need for further investigation may be considerably
diminished or eliminated altogether. And when a defendant has given counsel
reason to believe that pursuing certain investigations would be fruitless or
even harmful, counsel’s failure to pursue those investigations may not later
be challenged as unreasonable.’’ (Citations omitted; internal quotation marks
omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 680–81,
51 A.3d 948 (2012).
4
During cross-examination, Carver iterated his opinion that the victim
died as a result of a contact gunshot wound to the head.
5
‘‘To satisfy the performance prong . . . the petitioner must demonstrate
that his attorney’s representation was not reasonably competent or within
the range of competence displayed by lawyers with ordinary training and
skill in the criminal law.’’ (Internal quotation marks omitted.) Antonio A.
v. Commissioner of Correction, supra, 148 Conn. App. 829.
6
‘‘The second part of the Strickland analysis requires more than a showing
that the errors made by counsel may have had some effect on the outcome
of the proceeding. . . . Rather, [the petitioner] must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. . . . When a [petitioner]
challenges a conviction, the question is whether there is a reasonable proba-
bility that, absent the errors, the factfinder would have had a reasonable
doubt respecting guilt. . . . Meeting this admittedly high standard is indeed
a herculean task . . . . A court ruling on prejudice must consider the total-
ity of the evidence before the judge or the jury. . . . Some errors will have
had a pervasive effect on the inferences to be drawn from the evidence,
altering the entire evidentiary picture, and some will have had an isolated,
trivial effect. Moreover, a verdict or conclusion only weakly supported by
the record is more likely to have been affected by errors than one with
overwhelming record support. . . . The benchmark for judging any claim
of ineffectiveness must be whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied
on as having produced a just result.’’ (Citation omitted; internal quotation
marks omitted.) Roger B. v. Commissioner of Correction, 157 Conn. App.
265, 281–82, 116 A.3d 343 (2015).
7
The evidence at the criminal trial established that the shooting occurred
on July 14, 2000, at approximately 9 p.m.
8
The report contained a statement from one of his sisters that he ‘‘was
always an honest person with a good heart.’’
9
Following oral argument, we asked the parties to brief the following
issue: ‘‘Whether the petitioner’s claim that he was prejudiced by his trial
counsel’s failure to perfect the petitioner’s right to sentence review should
have been dismissed by the habeas court as nonjusticiable because the
thirty day time limit set forth in General Statutes § 51-195 for filing an
application for sentence review is not jurisdictional; see James L. v. Commis-
sioner of Correction, 245 Conn. 132, 143–48, 712 A.2d 947 (1998); and the
petitioner has not sought discretionary review by filing an untimely applica-
tion for sentence review. See Janulawicz v. Commissioner of Correction,
310 Conn. 265, 77 A.3d 113 (2013).’’ After reviewing the parties’ supplemental
briefs, we are persuaded, on the basis of James L., that the petitioner was
not required to file a late petition for sentence review before filing his
habeas petition.
10
The petitioner was exposed to a total effective sentence of seventy
years incarceration. See General Statutes § 53a-35a and General Statutes
(Rev. to 1999) § 29-37.
11
Practice Book § 43-23 provides: ‘‘It is the responsibility of the counsel
of record at the time of sentencing to represent the defendant at the hearing
before the sentence review division of the superior court, unless, for excep-
tional reasons, such counsel is excused by the division.’’
12
General Statutes § 51-195 provides in relevant part: ‘‘Any person sen-
tenced on one or more counts of an information to a term of imprisonment
for which the total sentence of all such counts amounts to confinement for
three years or more, may, within thirty days from the date such sentence
was imposed . . . file with the clerk of the court . . . an application for
review of the sentence by the review division. Upon imposition of sentence
. . . the clerk shall give written notice to the person sentenced of his right
to make such a request. Such notice shall include a statement that review
of the sentence may result in decrease or increase of the term within the
limits fixed by law. A form for making such application shall accompany
the notice. . . .’’ See also Eastwood v. Commissioner of Correction, supra,
114 Conn. App. 484 (counsel not ineffective for failing to file application
for sentence review because he had advised petitioner that if application
filed, petitioner could receive increased sentence, and, following this consul-
tation, petitioner opted not to pursue sentence review); Valentin v. Commis-
sioner of Correction, 94 Conn. App. 751, 758, 895 A.2d 242 (2006) (counsel not
ineffective for failing to file application or to advise petitioner meaningfully
regarding sentence review where record demonstrated that court clerk
advised petitioner of right to sentence review, petitioner received advice
from counsel that risk of sentence review outweighed benefit, and petitioner
voluntarily decided to forgo sentence review application); Ramos v. Com-
missioner of Correction, 67 Conn. App. 654, 667, 789 A.2d 502 (sentence
review under § 51-195 involves risk of increased sentence; defense strategy
might be to avoid such review), cert. denied, 260 Conn. 912, 746 A.2d 558
(2002).
13
The transcript of the sentencing proceeding also reveals that the clerk
of the court stated on the record: ‘‘Let the record reflect that I’m handing
the [petitioner] a notice of a right to appeal judgment of conviction; applica-
tion for waiver of fees, costs and expenses; and appointment of counsel on
appeal; notice of right to have sentence reviewed; application for review;
inmate notice of application; and restoration of electoral privileges.’’