Jackson v. Commissioner of Correction

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
MARQUIS JACKSON v. COMMISSIONER
OF CORRECTION
(AC 33343)
Bear, Keller and Harper, Js.
Argued December 2, 2013—officially released April 22, 2014
(Appeal from Superior Court, judicial district of
Tolland, Schuman, J.)
Peter Tsimbidaros, for the appellant (petitioner).
Rita M. Shair, senior assistant state’s attorney, with
whom were Michael Dearington, state’s attorney, and,
on the brief, Eugene R. Calistro, Jr., senior assistant
state’s attorney, and Erika L. Brookman, assistant
state’s attorney, for the appellee (respondent).
Opinion
BEAR, J. The petitioner, Marquis Jackson, appeals
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the habeas court erred
in (1) denying his ineffective assistance of counsel
claim; (2) denying his actual innocence claim and
applying an incorrect legal standard in doing so; (3)
denying his due process claim; and (4) refusing to
accept his withdrawal of his petition without prejudice.
We affirm the judgment of the habeas court.
The following facts, as set forth in the petitioner’s
direct appeal; State v. Jackson, 73 Conn. App. 338, 342–
43, 808 A.2d 388, cert. denied, 262 Conn. 929, 814 A.2d
381 (2002); are relevant to our resolution of the present
appeal. ‘‘On January 24, 1999, at approximately 3:30
a.m., [the petitioner] and [Vernon] Horn, along with
Steven Brown, entered the Dixwell Deli on Dixwell
Avenue in New Haven, wearing masks and carrying
handguns. As Horn entered the deli, he fired five or six
shots from a nine millimeter pistol. One bullet struck
Caprice Hardy, a customer, and killed him. A second
bullet struck Abby Yousif, an owner of the deli, in the
shoulder. Brown and [the petitioner] followed Horn into
the deli.
‘‘[The petitioner] then went behind the counter and
attempted to open the cash register. Horn and Brown
went to the deli’s back room where they found Vernon
Butler, an off-duty employee, and Warren Henderson,
a homeless man who helped out around the store. Butler
was hit on his head with the butt of a gun, searched
for money and taken to the front of the store by Horn
to open the cash register. When Butler could not open
the register, [the petitioner] took the cash that Yousif
had in his pockets. Butler’s cellular telephone was also
stolen. The telephone was subsequently used the day
after the robbery by Marcus Pearson, who had obtained
it from Horn.
‘‘During the course of the robbery, two customers,
one of whom was Kendall Thompson, entered the deli.
Upon entering, each individual was forced to the ground
at gunpoint and ordered to turn over whatever money
they possessed.
‘‘In the back room, Brown riffled through Hender-
son’s pockets, looking for any money that he may have
had. Finding no money on Henderson’s person, Brown
searched the cigar boxes in the back room to see if
there was any cash hidden there. After searching the
back room, Brown returned to the front of the deli,
where Horn was shouting orders by the door and [the
petitioner] was still behind the counter near the cash
register. Upon hearing the sound of sirens, [the peti-
tioner], Horn and Brown fled the scene.
latent fingerprints on a cigar box in the back room. The
prints matched Brown’s fingerprints on file with the
Bridgeport police department. When interviewed by the
New Haven police, Brown admitted his participation in
the January 24, 1999 robbery and identified [the peti-
tioner] and Horn as the other individuals involved.1 [The
petitioner] and Horn were arrested and tried jointly.
[The petitioner] was found guilty of eight of the ten
counts on which he was charged2 and sentenced to a
total effective sentence of forty-five years imprison-
ment.’’ (Footnotes altered.)
The following procedural history is also relevant to
our resolution of the present appeal. The petitioner
filed a petition for a writ of habeas corpus as a self-
represented litigant on July 21, 2005. He subsequently
obtained an attorney and filed an amended petition on
October 14, 2009. The following counts comprise the
amended petition. Count one sets forth a claim of inef-
fective assistance by the petitioner’s trial counsel,
Michael Moscowitz. Count two sets forth a claim of trial
court errors and omissions that violated the petitioner’s
constitutional rights to confront witnesses and present
a defense. Count three sets forth a claim of violations
of the petitioner’s constitutional right to due process.
Finally, count four sets forth a claim of actual inno-
cence. The respondent, the Commissioner of Correc-
tion, filed an amended return on April 6, 2010. The
petitioner filed a reply to the amended return on June
3, 2010.
The habeas court scheduled the trial for this matter
to begin on January 25, 2011. On that date, both parties
appeared before the habeas court, which asked the
petitioner about ‘‘what purports to be a withdrawal’’
that it had received ‘‘on the eve of trial.’’ The petitioner
stated that he sought to withdraw his amended petition
at that time because, inter alia, approximately two
weeks before, his motion to consolidate his matter with
Horn’s habeas matter and his subsequent motion for a
continuance had been denied.
The habeas court asked the petitioner if he intended
to refile his amended petition at a later time and if his
counsel had informed him of the potential conse-
quences of withdrawal, including the inability to refile;
the petitioner answered both questions in the affirma-
tive. The habeas court then engaged in colloquies with
counsel for both parties regarding their respective posi-
tions on the withdrawal; both counsel expressed that
they did not know whether the court could accept the
withdrawal only ‘‘with prejudice.’’ The habeas court
expressed its intent to label the withdrawal ‘‘with preju-
dice’’ because it viewed the withdrawal as an improper
and untimely attempt to circumvent the denials of the
petitioner’s motions to consolidate and for a continu-
ance. It stated to the petitioner that it either would
accept his withdrawal only with prejudice or would
allow him to withdraw his withdrawal before the start
of trial. The petitioner replied that he would withdraw
the withdrawal.
The trial for this matter accordingly began on January
26, 2011, and continued on February 14, 15, 16, 17, 18,
24, and 25, 2011. In a memorandum of decision filed
on March 22, 2011, the habeas court denied the amended
petition. The habeas court held with respect to count
one that Moscowitz had not rendered ineffective assis-
tance of counsel. It held with respect to counts two
and three that the petitioner had not briefed his claims
therein and therefore had abandoned them. Finally, it
held with respect to count four that the petitioner had
not met his evidentiary burden and had not fulfilled the
legal criteria for his actual innocence claim.
The petitioner subsequently filed a petition for certifi-
cation to appeal the denial of his amended petition on
March 30, 2011, which the habeas court granted on
March 31, 2011. This appeal followed. Additional facts
and procedural history will be set forth as necessary.
I
As a preliminary matter, we begin by addressing the
petitioner’s claims that the habeas court erred in deny-
ing his due process claim and refusing to accept his
withdrawal of his amended petition without prejudice.
The petitioner specifically argues with respect to his
due process claim that he was entitled to a new trial
because he presented evidence during the habeas trial
that established the falsity of certain testimony upon
which the jury in the criminal trial relied in finding him
guilty. The petitioner specifically argues with respect to
his withdrawal of his amended petition that the habeas
court further violated his constitutional right to due
process by stating that it would accept the withdrawal
only ‘‘with prejudice,’’ even though (1) our rules of
practice do not provide a court with the authority to
act in such a manner, and (2) the standard withdrawal
form used in civil actions demonstrates the right of a
plaintiff to withdraw an action without prejudice any
time before the first witness is called at trial. We need
not reach the merits of the petitioner’s due process
claim because, as did the habeas court, we treat the
claim as abandoned in light of the petitioner’s failure
to brief it before the habeas court. Likewise, we need
not reach the merits of the petitioner’s claim regarding
his withdrawal of his amended petition because we
conclude that the petitioner has briefed the claim inade-
quately on appeal.
We note with respect to the petitioner’s due process
claim: ‘‘A reviewing court will not consider claims not
raised in the habeas petition or decided by the habeas
court. . . . Appellate review of claims not raised
before the habeas court would amount to an ambuscade
of the [habeas] judge.’’ (Citations omitted; internal quo-
tation marks omitted.) Henderson v. Commissioner of
Correction, 129 Conn. App. 188, 198, 19 A.3d 705, cert.
denied, 303 Conn. 901, 31 A.3d 1177 (2011). In holding
that it was unable to review one of the petitioner’s
claims on appeal, the court in Henderson noted: ‘‘In
this case, we have reviewed the habeas petition, the
pretrial briefs, the transcripts of the habeas trial and
the posttrial briefs, and we can find no mention of [the]
claim . . . . We also have thoroughly examined the
habeas court’s memorandum of decision and can find
no mention of such a claim therein. Furthermore, during
oral argument before this court, the petitioner’s counsel
stated that the habeas court had not ruled on this aspect
of the claim and, in fact, that its memorandum of deci-
sion was silent on the issue. The habeas court could
not and did not rule on the issue because it was not
raised in the petition or tried before that court. On the
basis of the foregoing, we are unable to review the
petitioner’s claim.’’ (Internal quotation marks omit-
ted.) Id.We similarly are unable to review the petitioner’s due
process claim in the present matter. We carefully have
reviewed the record, and we can find no mention of
the petitioner’s due process claim in the pretrial briefs,
habeas trial transcripts, and posttrial briefs. As pre-
viously noted, the court treated the claim as abandoned:
‘‘[Count] . . . three of the amended petition appear[s]
to allege . . . constitutional violations aside from inef-
fective assistance of counsel and actual innocence. The
return makes a broad claim of procedural default and
the reply suggests that there was cause and prejudice,
but does not specifically mention that phrase. The peti-
tioner did not brief [this claim]. On this incomplete
state of the record, the court considers [this claim]
abandoned.’’ The petitioner argues in his reply brief
that the amended petition sufficiently alleges his due
process claim. He also directs our attention to the
entirety of the habeas trial record and his pretrial and
posttrial briefs, but without specifying relevant por-
tions. We are not persuaded.
‘‘It is not the responsibility of the trial judge, without
some specific request from a petitioner, to search a
record, often, in a habeas case, involving hundreds of
pages of transcript, in order to find some basis for relief
for a petitioner. . . . The responsibility of a habeas
court, in confronting an often voluminous trial court
record, is to respond to those claims fairly advanced
by the petitioner. The mere recital of those claims in
a petition, without supporting oral or written argument,
does not adequately place those claims before the court
for its consideration.’’ (Citation omitted.) Solek v. Com-
missioner of Correction, 107 Conn. App. 473, 480–81,
946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873(2008). We accordingly conclude that we are unable to
review the petitioner’s due process claim because the
habeas court did not err in treating the claim as
abandoned.
With respect to the petitioner’s claim regarding his
withdrawal of his amended petition, we note that
‘‘[r]eviewing courts are not required to review issues
that have been improperly presented to th[e] court
through an inadequate brief. . . . Analysis, rather than
mere abstract assertion, is required to avoid abandoning
an issue by failure to brief the issue properly. . . .
Where a claim is asserted in the statement of issues
but thereafter receives only cursory attention in the
brief without discussion or citation of authorities, it is
deemed abandoned.’’ (Internal quotation marks omit-
ted.) Richardson v. Commissioner of Correction, 123
Conn. App. 301, 305–306, 1 A.3d 1142, cert. denied, 299
Conn. 910, 10 A.3d 528 (2010).
The petitioner’s briefing of this claim consists of
approximately one and one-half pages in which he (1)
enumerates the habeas court’s statements during the
trial regarding the age of the matter, (2) mentions the
rules of practice and the standard withdrawal form for
civil actions in passing, and (3) summarily asserts that
the habeas court violated his constitutional right to
due process. He does not cite to any relevant case or
statute,3 and he does not provide any legal analysis in
support of his claim. We thus deem the petitioner’s
claim with respect to his withdrawal to be abandoned
on appeal.
II
We next consider the petitioner’s ineffective assis-
tance of counsel claim and begin our analysis with the
well established standard of review for such claims. ‘‘A
petitioner’s right to the effective assistance of counsel
is guaranteed by the sixth and fourteenth amendments
to the United States constitution, and by article first,
§ 8, of the Connecticut constitution.’’ Woods v. Commis-
sioner of Correction, 85 Conn. App. 544, 549, 857 A.2d
986, cert. denied, 272 Conn. 903, 863 A.2d 696 (2004).
‘‘In a habeas appeal, this court cannot disturb the under-
lying facts found by the habeas court unless they are
clearly erroneous, but our review of whether the facts
as found by the habeas court constituted a violation of
the petitioner’s constitutional right to effective assis-
tance 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 their testi-
mony. . . .
‘‘In Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States
Supreme Court enunciated the two requirements that
must be met before a petitioner is entitled to reversal
of a conviction due to ineffective assistance of counsel.
First, the [petitioner] must show that counsel’s perfor-
mance was deficient. . . . Second, the [petitioner]
must show that the deficient performance prejudiced
the defense. . . . Unless a [petitioner] makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversarial process
that renders the result unreliable. . . .
‘‘The first component, generally referred to as the
performance prong, requires that the petitioner show
that counsel’s representation fell below an objective
standard of reasonableness. . . . In Strickland, the
United States Supreme Court held that [j]udicial scru-
tiny of counsel’s performance must be highly deferen-
tial. It is all too tempting for a [petitioner] to second-
guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proven unsuccessful, to
conclude that a particular act or omission of counsel
was unreasonable. . . . A fair assessment of attorney
performance requires that every effort be made to elimi-
nate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged counsel, and
to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making
the evaluation, a court must indulge a strong presump-
tion that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . . [C]ounsel is strongly
presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reason-
able professional judgment. . . .
‘‘[T]he Constitution guarantees criminal defendants
only a fair trial and a competent attorney. It does not
insure that defense counsel will recognize and raise
every conceivable constitutional claim. . . . The [peti-
tioner] is also not guaranteed assistance of an attorney
who will make no mistakes. . . . What constitutes
effective assistance [of counsel] is not and cannot be
fixed with yardstick precision, but varies according to
the unique circumstances of each representation.’’
(Citations omitted; internal quotation marks omitted.)
Henderson v. Commissioner of Correction, 80 Conn.
App. 499, 503–505, 835 A.2d 1036 (2003), cert. denied,
267 Conn. 918, 841 A.2d 1190 (2004).
A
The petitioner claims that the habeas court erred in
concluding that Moscowitz did not render ineffective
assistance of counsel during the petitioner’s criminal
trial for three reasons. The first reason is that Moscowitz
moved to strike potentially exculpatory evidence on the
ground that it necessarily was accompanied by evidence
that he deemed prejudicial, even though the trial court
provided him with an opportunity to investigate the
purportedly prejudicial evidence. We are not persuaded.
The following additional facts and procedural history
are relevant. ‘‘[Shaquan] Pallet testified at the [criminal]
trial that he worked with the victim on the morning of
the murder. After work, Pallet and the victim shared a
taxicab. The taxicab initially went to the Dixwell Deli,
where the victim was dropped off shortly before 3:30
a.m. to purchase some cigarettes. Outside the deli, Pal-
let testified that he saw [the petitioner] and Horn smok-
ing ‘wet.’4 After receiving a cigarette from Hardy, Pallet
left in the taxicab. Hardy remained at the deli.’’ State
v. Jackson, supra, 73 Conn. App. 377.
‘‘During direct examination by the state, Pallet was
shown a letter that he had written. When offered as a
full exhibit by the state, neither defense attorney
objected. The state then proceeded to read the contents
of the letter into evidence. In the letter, Pallet recanted
the testimony that he gave at the probable cause hearing
identifying [the petitioner] as one of the three individu-
als he had seen at the deli immediately prior to the
murder and robbery. Rather, the letter stated that Pallet
had not seen [the petitioner] at the scene and had testi-
fied to that effect only because ‘a lot of people told that
[the petitioner] was one of the guys that had something
to do with my friend, Caprice Hardy, being murdered.’5
Pallet testified that he wrote the letter while he was in
jail after somebody slipped a note under his cell door
telling him to write it. Whereupon [Moscowitz] objected
and asked for the jury to be excused.
‘‘Outside the presence of the jury, [Moscowitz] argued
that Pallet’s letter should not have been admitted into
evidence . . . . [Moscowitz] suggested that the proper
remedy would be for the [trial] court to strike the state’s
reading of the Pallet letter from evidence and give a
curative instruction to the jury to disregard it. The [trial]
court ruled in [the petitioner]’s favor and instructed the
jury that ‘[t]he [letter] . . . that was read to you just
before the recess that Mr. Pallet gave testimony about
and why he wrote it and the contents of that [letter], I’m
striking from this case and you should not—disregard it
and do not pay any attention to it whatsoever during
your deliberations in this matter.’ ’’ Id., 383–84.
The habeas court found with respect to Moscowitz’
decision-making process: ‘‘Moscowitz asked the [trial]
court on two occasions to strike the portion of the
testimony concerning the note. The [trial] court
declined to do so, remarking that it would have sus-
tained an objection to the note without proof that it
came from one of the defendants, but the letter had
come in without objection, giving the state the right to
put the letter into context and show the circum-
stances. . . .
‘‘There was also a discussion concerning the origins
of the note. The state claimed it had no knowledge of
its origins. Pallet testified he received the note while
detained at the Whalley Avenue jail [in New Haven] and
then gave the note to a female counselor. Moscowitz
suggested that it was unclear whether the petitioner
was housed in the same jail as Pallet. Moscowitz then
asked for some time to investigate, which the court
granted with the suggestion that he issue a subpoena
to the Department of Correction. . . .
‘‘Although Moscowitz initially complained about the
difficulty of issuing subpoenas in his role as a special
public defender, the court took a recess and Moscowitz
began to proceed to an office from which he could issue
a subpoena. Apparently on the way, Moscowitz had a
change of heart and decided to move to strike the entire
line of testimony concerning the letter and the note.
Moscowitz and the other counsel also met with the
[trial] court in a chambers conference. . . . On the
record, Moscowitz noted that ‘my client is adamant
against what I’m saying, but I’m not quite sure whether
the court is leaving the choice up to my client or myself.’
Moscowitz then reiterated that he wanted the entire
testimony stricken, and ‘[i]f [the petitioner] wants to
take action against me at a later date, he can.’ ’’ (Cita-
tions omitted.)
During the habeas trial, Moscowitz testified that he
would have liked to have kept the letter alone in evi-
dence, but he ultimately concluded that evidence of
both the letter and the note would have been prejudicial
to the petitioner’s criminal case. He elaborated that he
thought that the documents would have been inextrica-
bly intertwined in the minds of the jurors, who could
have drawn adverse inferences against the petitioner
from the note, the unanswered question of its author,
and the way in which it prompted Pallet to write the
letter. Moscowitz further testified that he would have
reached the same conclusion if he had investigated
the note in accordance with the trial court’s directive
because his concern about prejudice arose from Pallet’s
testimony regarding the note, not the existence or
nonexistence of the note itself.
The habeas court labeled Moscowitz’ decision not to
investigate the note as ‘‘remiss’’ but nonetheless held:
‘‘[T]he only evidence at the habeas trial of what further
investigation would have revealed was a stipulation
that both the petitioner and Horn were housed at the
McDougall-Walker Correctional Center [in Suffield] on
September 24, 1999, when Pallet was detained at the
Whalley Avenue jail. . . . Although it is true that this
evidence makes it less likely that the petitioner (or
Horn) could have supplied the note to Pallet, Moscowitz
correctly observed in his testimony that the petitioner
and Horn were nevertheless the two people with the
strongest motive to influence Pallet. Thus, Moscowitz
sensibly was concerned that, regardless of what an
investigation revealed regarding who wrote the note,
the jury would still draw a negative inference against
his client. Moscowitz also sensed that, if he attacked
Pallet for lying about the existence of the note, that the
jury might also find Pallet to be lying about the letter
of recantation, thus defeating the purpose. Hence,
regardless of what an investigation might show,
allowing in testimony about the note was an option
fraught with peril.
‘‘Against this prejudicial effect must be weighed the
probative value of the letter of recantation. There is no
denying that Pallet’s recantation went to the heart of
the state’s case. But a recantation is viewed with skepti-
cism by the law and, presumably, by a jury. . . . Fur-
ther, this recantation did not come in the form of live
testimony by the witness, but rather consisted of a prior,
out-of-court statement. It did not come unblemished,
but rather attached to testimony that someone had pres-
sured the writer into making it. All these considerations
reduced the letter’s probative value.
‘‘In short, Moscowitz made a reasonable evaluation
of the costs and benefits of admitting the letter. It is
clear, from the fact that Moscowitz had no objection
to the admission of the letter by itself, that Moscowitz
understood the possible benefits of admission. But he
also understood that the letter was a two-edged sword,
and that the other edge could hurt his case. Moscowitz
opted for a careful approach.’’ (Citation omitted; foot-
note omitted.)
We agree. ‘‘We reiterate that in deciding a claim of
ineffective assistance of trial counsel, the reviewing
court does not grade counsel’s conduct . . . nor does
the court determine which of numerous strategies coun-
sel should have used at trial. Rather, the court’s inquiry
is limited to determining whether the challenged con-
duct from the perspective of counsel at that time was
deficient.’’ (Citation omitted.) Holley v. Commissioner
of Correction, 62 Conn. App. 170, 176, 774 A.2d 148(2001). Moscowitz’ habeas trial testimony demonstrates
that he exercised reasonable professional judgment by
engaging in a probative versus prejudicial weighing of
the evidence and seeking to minimize its impact on the
jury by moving to strike it in timely fashion, once he
had determined that it would be more prejudicial than
probative. Whether he would have obtained a more
favorable result if he had taken another course of action
is not a question within the scope of our inquiry, which
we limit to the course of action that he did take.
The petitioner argues that Moscowitz’ conduct was
deficient because (1) an investigation would have led
to the discovery that ‘‘there was no note’’; (emphasis
omitted); which would have allowed Moscowitz to have
the letter in evidence without the taint of the note; and
(2) the jury would have found the letter to be credible.
The petitioner does not provide evidentiary support or
relevant legal authority for his position. We decline to
second-guess Moscowitz’ decision, which was based on
clearly articulated strategic reasoning and made in the
midst of trial, when the deficiency claimed by the peti-
tioner is tethered to prognostication and speculation.
See Brown v. Commissioner of Correction, 131 Conn.
App. 497, 507, 27 A.3d 33 (‘‘[w]e decline to second-guess
[trial counsel]’s decision not to present the evidence at
issue when there is no evidentiary or logical basis upon
which to conclude that the decision not to present the
evidence caused any prejudice to the petitioner’’), cert.
denied, 303 Conn. 905, 31 A.3d 1181 (2011). We therefore
hold that the habeas court did not err in rejecting the
petitioner’s argument that Moscowitz’ conduct regard-
ing the letter and the note constituted deficient per-
formance.
B
The second reason that the petitioner claims ineffec-
tive assistance of counsel is that Moscowitz failed to
investigate and call several witnesses whose testimony
would have supported the petitioner’s alibi defense.
More specifically, the petitioner claims that Moscowitz
would have been able to establish a credible uninter-
rupted time line accounting for the petitioner’s where-
abouts at all relevant times if he had investigated and
called Mildred Spann, Shamar Madden, Kenneth Ran-
some, Derek Gilliam, and Cheryl Dennis to testify at
the criminal trial. We are not persuaded.
We first note the following additional relevant facts,
which the habeas court cited and this court outlined
in its decision on the petitioner’s direct appeal: ‘‘[The
petitioner] testified that on the night of the robbery, he
was at the Alley Cat Club [in New Haven] until it closed
at around 2 a.m. Upon leaving the club, [the petitioner]
stated that he and Horn drove through a diner parking
lot but did not eat there. [The petitioner] and Horn then
drove to the West Hills section of New Haven and picked
up [Zanetta] Berryman. The three went to the Dixwell
Deli, where [the petitioner] went inside to get change
for a dollar to make a telephone call to his girlfriend.
. . . [The petitioner] . . . testified that he did not see
Horn go into the deli, nor did he enter the store with
Horn, but he assumed that Horn went into the deli.
After [the petitioner] attempted to make the call on a
nearby pay telephone, he returned to the car and the
three drove to [the petitioner]’s residence where Horn
and Berryman exited the vehicle and [the petitioner]
drove to his mother’s house.’’ State v. Jackson, supra,
73 Conn. App. 370–71. Berryman testified at the criminal
trial, and her version of the relevant events corrobo-
rated the petitioner’s version. Id., 369–70.
‘‘The state called [Detective Petisia] Adger as a rebut-
tal witness in [the petitioner]’s case. Adger testified that
when she interviewed [the petitioner], [the petitioner]
stated that he and Horn ate at the diner and were at
the Dixwell Deli at 3:30 a.m., the time the crimes
occurred, and [the petitioner] did not get to his mother’s
house until after 4 a.m.’’ Id., 371. The habeas court
found that, despite the petitioner’s admission, Moscow-
itz presented two alibi witnesses: (1) the petitioner’s
then girlfriend, Lateisha Smith, who testified that she
met with the petitioner at the Alley Cat Club at 2 a.m.,
saw him again when he came to her residence at 3 a.m.
and stayed until late morning; and (2) Smith’s sister,
Adrienne Debarros, who testified that she saw the peti-
tioner and Horn leave the Alley Cat Club between
approximately 1:45 and 2 a.m.
The petitioner now claims that Moscowitz provided
ineffective assistance of counsel because the alibi wit-
nesses whom he investigated and called to testify were
not credible and could not support a complete alibi
defense, unlike Spann, Madden, Ransome, Gilliam, and
Dennis. Spann testified at the habeas trial that she is
married to one of the owners of 235 West Ivy Street in
New Haven, where the petitioner rented a room at the
time of the incident. On the evening of January 23, 1999,
after 11 p.m., Spann went to 235 West Ivy Street to
collect the petitioner’s rent money, and the two of them
discussed his plans for the evening, which were to go
to the Alley Cat Club. Spann recalled that the petitioner
drove a silver Honda.
Madden and Ransome both testified that they were
regulars at the Alley Cat Club and were there during
the late evening hours of January 23, 1999, and early
morning hours of January 24, 1999. Inside the club, both
Madden and Ransome saw the petitioner; both men had
known the petitioner for many years. Madden also saw
Horn. Both Madden and Ransome then saw the peti-
tioner and Horn outside the club after it closed at
approximately 2 a.m. Madden testified that the patrons
of the club normally congregated in front of the club
for approximately twenty minutes after it closed.
Ransome testified that he went to the Athenian Diner
in New Haven between approximately 2:15 a.m. and
2:30 a.m. because ‘‘everybody [went] to the diner after
the club.’’ He saw the petitioner in the parking lot of the
diner before 2:30 a.m., sitting in a Honda with another
individual. Ransome did not see the petitioner again
that evening.
Gilliam testified that he was at a birthday party being
held in his honor at 13 South Genesee Street in New
Haven on the night of January 23, 1999. The party lasted
from 8 or 9 p.m. to 2 or 3 a.m. At approximately 2 or
3 a.m., Gilliam was inside 13 South Genesee Street and
observed his girlfriend, Quata Miller, her cousin, Cheryl
Dennis, and Berryman, Dennis’ sister-in-law, standing
outside and smoking cigarettes for ten to fifteen
minutes. A car pulled up to them; Gilliam could not see
any of its occupants. Berryman approached the car and
entered it after a door was opened for her. Dennis
testified that Berryman had a ‘‘friendly’’ conversation
with one of the car’s occupants before getting into the
car and leaving. She also testified that she recalled
telling an investigator in May, 2005, that she had seen
a small, gray car with two occupants, one of whom
conversed with Berryman for fifteen minutes.
The petitioner argues that he would have had a com-
plete alibi defense if Moscowitz had investigated and
called these individuals to testify because their testi-
mony would have provided a factual basis for the jury
to find that he was not with Brown at all relevant times,
as Brown testified during the criminal trial that the
petitioner and Horn took him to New Haven after meet-
ing with him in Bridgeport at an unspecified time on
the evening of January 23, 1999. Moscowitz thought
otherwise and testified during the habeas trial: ‘‘[A]libi
defenses have never really worked for me, and I’m not
very confident of alibi defenses and this was a case of
an alibi defense and the time lines, there was a problem
with them.’’ When asked if he had discussed his position
with the petitioner, Moscowitz answered that the peti-
tioner ‘‘knew there was a problem with the time frame.’’
Moscowitz specified: ‘‘The times overlapped. . . . One
witness who was indicating a time when he should
have been with another witness or—the times weren’t
correct.’’ The habeas court held that Moscowitz did not
provide ineffective assistance of counsel by failing to
investigate and call Spann, Madden, Ransome, Gilliam,
and Dennis to testify because, inter alia, they ‘‘would
not have taken the time line any further into the early
morning hours,’’ and they ‘‘did not provide an alibi for
the petitioner for the precise time when the crime
occurred.’’
We agree. ‘‘In consideration of [a] petitioner’s claim
concerning the adequacy of trial counsel’s investigation
and the calling of alibi witnesses, [t]he petitioner seeks
to have us use hindsight with [regard] to his counsel’s
decision not to call the witnesses to testify. We will not
do so. We have stated that the presentation of testimo-
nial evidence is a matter of trial strategy. . . . The fail-
ure of defense counsel to call a potential defense
witness does not constitute ineffective assistance
unless there is some showing that the testimony would
have been helpful in establishing the asserted defense.’’
(Internal quotation marks omitted.) Hopkins v. Com-
missioner of Correction, 95 Conn. App. 670, 676, 899
A.2d 632, cert. denied, 279 Conn. 911, 902 A.2d 1071(2006).
The petitioner has not shown how the testimony at
issue would have been helpful in establishing a com-
plete alibi defense. None of the testimony accounts for
his whereabouts between approximately 3 and 4 a.m.
on January 24, 1999, i.e., immediately before, during,
and after the robbery. Also, when asked by this court
during oral argument about this temporal gap in his
alibi defense, the petitioner’s counsel directed our
attention not to any of the testimony at issue but rather
to Berryman’s criminal trial testimony, which proved
to be unpersuasive to the jury. The habeas court found
that the evidence offered by the petitioner at the habeas
trial in support of his alibi defense contained omissions
for the crucial time period, and, therefore, the habeas
court did not err in concluding that it was insufficient
to establish that defense. We thus hold that the habeas
court did not err in rejecting the petitioner’s argument
that Moscowitz’ failure to investigate and call Spann,
Madden, Ransome, Gilliam, and Dennis to testify at the
criminal trial constituted deficient performance.
C
The final reason that the petitioner claims ineffective
assistance of counsel is that Moscowitz failed to present
evidence of third party culpability, even though he and
the petitioner had identified certain individuals who
were more closely associated with Brown than was the
petitioner and who more closely matched the physical
descriptions of the two other suspects than did the
petitioner. We are not persuaded.
The individuals identified as potentially culpable
third parties were Marlo Macklin, Brown’s brother-in-
law; Willie Sadler, Macklin’s cousin; and Willie Newkirk,
Sadler’s friend. The petitioner elicited testimony from
Brown during the habeas trial regarding Brown’s
acquaintance with Macklin, Sadler, and Newkirk
through the Bridgeport drug trade at all times relevant
to the present matter. He was unable, however, to pro-
duce Macklin, Sadler, or Newkirk to testify and instead
relied upon statements made by Sadler and Newkirk to
investigator Gerald O’Donnell, which the habeas court
admitted over the respondent’s hearsay objection,
under the residual exception. During closing argument,
the petitioner contended that Moscowitz should have
introduced evidence during the criminal trial to support
a third party culpability defense, given (1) Brown’s his-
tory of violent criminal activity with Macklin, Sadler,
and Newkirk and (2) the fact that Macklin’s, Sadler’s,
and Newkirk’s heights and weights at the time of the
robbery closely matched those estimated for the two
men who committed the robbery with Brown.
The habeas court found that Moscowitz asked Brown
during direct and cross-examination if Sadler had been
with Brown at the time of the crime and if Brown
knew whether Macklin was a suspect. The trial court
sustained the state’s objections to these questions, and
Moscowitz did not ask any further such questions. Mos-
cowitz testified during the habeas trial that he did not
pursue a third party culpability defense because he was
aware of the high standard for introducing evidence
under its auspices, and ‘‘[t]here wasn’t enough connec-
tion. Mere suspicion of a third party is not enough
. . . .’’ When asked if he had tried to pursue a third
party culpability defense, he answered: ‘‘I did, but it
was objected to. And I really didn’t have a lot . . .
to do to show a third party because in this case, if I
remember, there was . . . at least two people . . .
that are testifying that Horn and [the petitioner] did it.’’
The habeas court held: ‘‘Given these facts, Moscowitz
did not render deficient performance. There is no show-
ing that Moscowitz could even have produced Sadler,
Newkirk, and Macklin for the criminal trial, a point
emphasized by the petitioner’s inability to produce them
at the habeas trial. Even their out-of-court statements
do not directly connect them to the crime. None of
them admitted any involvement in the robbery. There
is no physical evidence linking them to the scene. No
witness identified any of them as being at the deli on
January 24. The fact that they engaged in drug activities
with Brown, or may have had similar height and weight
to some of the suspects, does not significantly tie them
to the scene.’’
We agree. ‘‘We have recognized consistently that a
defendant has a right to introduce evidence that indi-
cates that someone other than the defendant committed
the crime with which the defendant has been charged.
. . . The defendant must, however, present evidence
that directly connects a third party to the crime . . . .
It is not enough to show that another had the motive
to commit the crime . . . nor is it enough to raise a
bare suspicion that some other person may have com-
mitted the crime of which the defendant is accused.
. . . [I]n explaining the requirement that the proffered
evidence establish a direct connection to a third party,
rather than raise merely a bare suspicion regarding a
third party, we have stated [that] [s]uch evidence is
relevant, exculpatory evidence, rather than merely tenu-
ous evidence of third party culpability [introduced by
the defendant] in an attempt to divert from himself the
evidence of guilt.’’ (Citation omitted; emphasis added;
internal quotation marks omitted.) State v. Hedge, 297
Conn. 621, 634–35, 1 A.3d 1051 (2010). ‘‘It is not ineffec-
tive assistance of counsel . . . to decline to pursue a
third party culpability defense when there is insufficient
evidence to support that defense.’’ Bryant v. Commis-
sioner of Correction, 290 Conn. 502, 515, 964 A.2d 1186(citing cases), cert. denied sub nom. Murphy v. Bryant,
558 U.S. 938, 130 S. Ct. 259, 175 L. Ed. 2d 242 (2009).
Despite the petitioner’s assertions that he could prove
Macklin’s, Sadler’s, and Newkirk’s ‘‘direct connection’’
to the robbery by virtue of their supposed physical
resemblance to the two men who committed the rob-
bery with Brown, ‘‘a defendant proposing such third
party culpability evidence must demonstrate that the
evidence is corroborative rather than merely coinciden-
tal for it to be admissible.’’ State v. Corley, 106 Conn.
App. 682, 689, 943 A.2d 501, cert. denied, 287 Conn. 909,
950 A.2d 1285 (2008). The petitioner relies upon the
physical characteristics of Macklin, Sadler, and Newk-
irk as proof of their connection to the robbery. The
petitioner also emphasizes the significance of the crimi-
nal history shared by Brown, Macklin, Sadler, and
Newkirk. Without more evidence, each of these asser-
tions, even if proved, remains coincidental rather than
corroborative. Our Supreme Court held in Hedge that
evidence of a third party’s prior bad acts is admissible
under the auspices of a third party culpability defense;
State v. Hedge, supra, 297 Conn. 653; but it did so where
the defendant was charged with drug related crimes,
and the evidence ‘‘placed [the third party, who pre-
viously had been convicted of drug related crimes] at
the scene of the crime . . . within twenty-four hours
of the defendant’s arrest and in possession of drugs.’’
Id., 636. The petitioner here has not directed our atten-
tion to any evidence that would place Macklin, Sadler,
or Newkirk at the deli before, during, or after the rob-
bery or that would put them in possession of anything
that would directly connect them to the robbery.6
We cannot conclude that Moscowitz rendered inef-
fective assistance of counsel for deciding not to pursue
a third party culpability defense where we have deter-
mined that there was insufficient evidence available to
him that would have supported the defense in the con-
text of the petitioner’s case. We therefore hold that the
habeas court did not err in rejecting the petitioner’s
argument that Moscowitz’ conduct regarding the peti-
tioner’s third party culpability defense constituted defi-
cient performance.
III
Lastly, the petitioner claims that the habeas court
erred in denying his actual innocence claim because
(1) it ‘‘applied the wrong standard to the claim’’ when
it stated in its memorandum of decision that it could
‘‘only go so far as to say that it ha[d] a reasonable doubt
about the petitioner’s guilt,’’ and (2) the evidence that
he presented at his criminal and habeas trials was suffi-
cient to discredit the time line of relevant events pro-
vided by Brown, relied upon by the state, and credited
by the jury at the criminal trial. We are not persuaded.
‘‘Actual innocence, also referred to as factual inno-
cence . . . is different than legal innocence. Actual
innocence is not demonstrated merely by showing that
there was insufficient evidence to prove guilt beyond
a reasonable doubt. . . . Rather, actual innocence is
demonstrated by affirmative proof that the petitioner
did not commit the crime.’’ (Citations omitted.) Gould
v. Commissioner of Correction, 301 Conn. 544, 560–61,
22 A.3d 1196 (2011).
‘‘[T]he proper standard for evaluating a freestanding
claim of actual innocence . . . is twofold. First, the
petitioner must establish by clear and convincing evi-
dence that, taking into account all of the evidence—
both the evidence adduced at the original criminal trial
and the evidence adduced at the habeas corpus trial—
he is actually innocent of the crime of which he stands
convicted. Second, the petitioner must also establish
that, after considering all of that evidence and the infer-
ences drawn therefrom as the habeas court did, no
reasonable fact finder would find the petitioner guilty
of the crime. . . .
‘‘Our Supreme Court recently clarified the actual
innocence standard in Gould . . . . In Gould, the habeas
court found that the petitioner was entitled to relief on
his actual innocence claim after the recantations of
testimony that was the sole evidence of [the petition-
er’s] guilt. . . . On appeal, our Supreme Court held that
the clear and convincing burden . . . requires more
than casting doubt on evidence presented at trial and
the burden requires the petitioner to demonstrate actual
innocence through affirmative evidence that the peti-
tioner did not commit the crime. . . . Recantations of
inculpatory criminal trial testimony undoubtedly are
relevant to a determination of actual innocence. But
evidence of that nature must be accompanied by affir-
mative evidence of innocence to meet [the] standard
of clear and convincing evidence of actual innocence.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) Harris v. Commissioner of Cor-
rection, 134 Conn. App. 44, 49–50, 37 A.3d 802, cert.
denied, 304 Conn. 919, 41 A.3d 306 (2012).
‘‘Affirmative proof of actual innocence is that which
might tend to establish that the petitioner could not
have committed the crime even though it is unknown
who committed the crime, that a third party committed
the crime or that no crime actually occurred. . . .
Clear and convincing proof of actual innocence does
not, however, require the petitioner to establish that
his or her guilt is a factual impossibility.’’ (Citations
omitted; emphasis in original.) Gould v. Commissioner
of Correction, supra, 301 Conn. 563–64.
‘‘With respect to the first component of the petition-
er’s burden, namely, the factual finding of actual inno-
cence by clear and convincing evidence . . . [t]he
appropriate scope of review is whether, after an inde-
pendent and scrupulous examination of the entire
record, we are convinced that the finding of the habeas
court that the petitioner is actually innocent is sup-
ported by substantial evidence. This is the same scope
of review that we apply to the ultimate finding by a
trial court regarding whether a confession in a criminal
case is voluntary. . . . The weight of the interests at
stake in the factual determination by the habeas court
in the present case compels the same heightened level
of scrutiny.’’ (Internal quotation marks omitted.) Harris
v. Commissioner of Correction, supra, 134 Conn.
App. 51.
‘‘[O]ur Supreme Court has deemed the issue of
whether a habeas petitioner must support his claim of
actual innocence with newly discovered evidence an
open question in our habeas jurisprudence. . . . This
court, nevertheless, has held that a claim of actual inno-
cence must be based on newly discovered evidence.
. . . [A] writ of habeas corpus cannot issue unless the
petitioner first demonstrates that the evidence put forth
in support of his claim of actual innocence is newly
discovered. . . . This evidentiary burden is satisfied if
a petitioner can demonstrate, by a preponderance of
the evidence, that the proffered evidence could not have
been discovered prior to the petitioner’s criminal trial
by the exercise of due diligence.’’ (Citation omitted;
internal quotation marks omitted.) Gaston v. Commis-
sioner of Correction, 125 Conn. App. 553, 558–59, 9
A.3d 397 (2010), cert. denied, 300 Conn. 908, 12 A.3d
1003 (2011).
The habeas court found that the newly discovered
evidence offered by the petitioner in support of his
actual innocence claim consisted of two recantations.
‘‘The first is an additional recantation from [Pallet]. In
this version, Pallet was detained in a New Haven jail
cell with Eaker Stancil in May or June, 1999, when
Pallet apparently either saw Horn or the petitioner.
Pallet became scared and nervous. Soon thereafter he
informed Stancil that, although he told the police that
he saw Horn and the petitioner at the deli at the time
of the crime, his statement to the police was not true.
He added that he lied to ‘dig himself out of [a] hole’
because he himself was arrested for other robberies in
March, 1999.’’ Pallet did not testify at the habeas trial;
the petitioner introduced the recantation into evidence
through the testimony of Stancil, which the habeas
court admitted over the respondent’s hearsay objection
as a statement against penal interest.
‘‘The second recantation came from Marcus Pearson.
Pearson testified at the habeas trial that Horn did not
provide him a cell phone, nor did he use a cell phone,
to call Crystal Sykes on January 25 at 11:07 a.m. He
added that he lied at the criminal trial out of fear, partic-
ularly that, if he did not cooperate, the state would
violate his probation for sale of controlled substances,
take custody of his children, or implicate him in the
Dixwell Deli murder.’’
The habeas court found Pallet’s recantation to be not
credible and Pearson’s recantation to be questionable.
It also determined: ‘‘Ultimately, even if the court were
to discredit the state’s theory that Horn was in posses-
sion of the stolen cell phone, it could not conclude that
the petitioner is actually innocent. In particular, the
petitioner has not met the first part of the actual inno-
cence test . . . . It is true that there was no physical
evidence directly linking the petitioner to the crime,
especially when one discounts Pearson’s original testi-
mony about the phone call. The state instead premised
its case on identification evidence. Although very little
of that evidence is indisputable, most of that evidence
is at least incriminating.’’ (Citation omitted.)
The habeas court elaborated: ‘‘Brown, while very
vague on details twelve years after the crime, remains
resolute that he committed the crime with the petitioner
and Horn. [Pallet] recanted twice while in jail before
his testimony, but in his actual testimony under oath
he was absolutely certain that he saw the petitioner,
Horn and an unidentified third person outside the deli
at the time of the crime. [Thompson], a customer who
walked into the deli at the time of the robbery, made
an out-of-court identification of the petitioner and Horn
as the gunmen whom he saw, though he backed off that
identification at trial. . . . Regina Wolfinger, another
[customer] who had been using drugs that night, identi-
fied a photo of Horn with 75 percent certainty as the
person whom she saw standing outside the deli and
then leaving just after the robbery. . . . Butler, an
employee and a victim, testified that Horn knew about
the back room of the store from prior visits there. . . .
The petitioner himself admitted to the police that he
had been at the deli around 3:30 a.m. that night.
‘‘Thus, while few things were clear and convincing
in this complicated case, there remains a significant
amount of evidence pointing to the petitioner’s guilt.
While the state’s case was not overwhelming, it was
clearly sufficient. While Pearson has now recanted, he
was far from the sole witness against the petitioner.
. . . With Pearson’s recantation and the other evidence
presented by the petitioner, the court can only go so
far as to say that it has a reasonable doubt about the
petitioner’s guilt. But that finding falls short of holding
that the petitioner has proven his innocence by clear
and convincing evidence.’’ (Citations omitted.)
The petitioner cites to the habeas court’s ‘‘reasonable
doubt’’ statement in arguing that the habeas court erred
by applying the wrong standard of law to his actual
innocence claim. He specifies: ‘‘In order for this court
to affirm that [the petitioner’s conviction was] reliable,
this court must believe the time line espoused by the
state through [Brown].’’ The habeas court, however,
cited and applied the same standards of law that this
court now cites and applies. The petitioner has not
cited to any authority for his position, which appears
to modify his well established burden of proof with an
unsupported burden of belief upon this court. This court
therefore rejects the petitioner’s argument regarding
the correctness of the law applied by the habeas court.
We also reject the petitioner’s argument that the
habeas court erred in denying his actual innocence
claim because the habeas court’s conclusion is consis-
tent with our Supreme Court’s holding in Gould that
recantations like those presently at issue do not by
themselves satisfy the evidentiary requirements for
actual innocence claims. The petitioner repeatedly con-
tends that these recantations, combined with the total-
ity of the evidence at the criminal and habeas trials,
establish that ‘‘the time line espoused by the state
through [Brown] . . . [was] factually impossible,’’ and
that ‘‘it [was] impossible for [him] to have been in
Bridgeport with Brown and later to have been with
[Brown] again at the Dixwell Deli to commit the crime.’’
The petitioner’s position relies in large part upon a
determination by this court that the habeas court clearly
erred in deeming Pallet’s recantation to be not credible
and Pearson’s recantation to be questionable. We
decline to make this determination.
‘‘As an appellate court, we do not reevaluate the credi-
bility of testimony, nor will we do so in this case. The
habeas judge, as the trier of facts, is the sole arbiter of
the credibility of witnesses and the weight to be given
their testimony. . . . In a habeas appeal, this court can-
not disturb the underlying facts found by the habeas
court unless they are clearly erroneous . . . . This
court does not retry the case or evaluate the credibility
of witnesses. Rather, we must defer to the [trier of
fact’s] assessment of the credibility of the witnesses
based on its firsthand observation of their conduct,
demeanor and attitude.’’ (Citation omitted; internal quo-
tation marks omitted.) Corbett v. Commissioner of Cor-
rection, 133 Conn. App. 310, 316–17, 34 A.3d 1046 (2012)
(affirming habeas court’s denial of petitioner’s actual
innocence claim where petitioner relied in part on testi-
mony deemed not credible).
The habeas court did not clearly err in discrediting
Pallet’s May or June, 1999 recantation on the ground
that it was hearsay admitted under the statement
against penal interest exception and a recanted recanta-
tion, as Pallet testified during the criminal trial in April,
2000, that he was ‘‘absolutely certain’’ of his initial iden-
tification of the petitioner and Horn. The habeas court
also did not clearly err in questioning the credibility
of Pearson’s recantation on the ground that Pearson
testified to his friendship with Horn, and Pearson’s pro-
bation officer testified that she did not make the threats
to which Pearson testified.
Even if we were to determine otherwise and accept
the petitioner’s characterization of the recantation evi-
dence, which we do not, the effect of the evidence at
best would be only to demonstrate that there is a lack
of ‘‘credible evidence that the [petitioner] did commit
the crimes of which [he was] convicted,’’ not to ‘‘prove
by clear and convincing evidence that the [petitioner]
did not commit the crimes.’’ (Emphasis in original.)
Gould v. Commissioner of Correction, supra, 301 Conn.
566–67. Neither recantation bears upon the additional
identification evidence enumerated by the habeas court
as a sufficient factual basis for the jury to have found
the petitioner guilty. Pallet’s recantation would affect
the viability of only his identification, not the other
identifications of the petitioner and Horn. Pearson’s
recantation similarly would cast a dubious light upon
the evidentiary value only of the cell phone, not the iden-
tifications.
Furthermore, neither recantation ‘‘establish[es] that
the petitioner could not have committed the crime even
though it is unknown who committed the crime, that
a third party committed the crime or that no crime
actually occurred.’’ (Emphasis in original.) Id., 563; see
also Gaston v. Commissioner of Correction, supra, 125
Conn. App. 560–61 (petitioner could not establish actual
innocence claim by clear and convincing evidence when
there was independent evidence that was sufficient to
support his conviction). Both recantations fail to prove
clearly and convincingly, either independently or in con-
cert with the evidence at the criminal and habeas trials,
that the petitioner could not have participated in the
robbery, either because he could not have been present
at the Dixwell Deli during the robbery or because he
could not have been one of the two men who committed
the robbery with Brown. The petitioner directs our
attention to certain evidence from his criminal and
habeas trials in order to meet the ‘‘affirmative evidence’’
requirement of his actual innocence claim. At no point
during the habeas trial or the present appeal, however,
has the petitioner argued or demonstrated by a prepon-
derance of the evidence that such evidence qualifies as
‘‘newly discovered evidence.’’7
We agree with the habeas court that ‘‘there was no
physical evidence directly linking the petitioner to the
crime’’; that ‘‘few things were clear and convincing in
this complicated case’’; and that the state’s case was
‘‘sufficient’’ but ‘‘not overwhelming . . . .’’ Nonethe-
less, in the words of the court in Gould, ‘‘[i]t must be
remembered . . . that, once properly convicted, the
[petitioner] no longer [is] cloaked in the mantle of the
presumption of innocence. . . . Discrediting the evi-
dence on which the conviction rested does not revive
the presumption of innocence. To disturb a long settled
and properly obtained judgment of conviction, and thus
put the state to the task of reproving its case many
years later, the [petitioner] must affirmatively demon-
strate that [he is] in fact innocent.’’ (Citation omitted;
emphasis in original.) Gould v. Commissioner of Cor-
rection, supra, 301 Conn. 567.
We conclude for the foregoing reasons and after an
independent and scrupulous examination of the entire
record that the habeas court did not err in denying the
petitioner’s actual innocence claim because the peti-
tioner did not meet the first prong of his burden, to
prove his actual innocence clearly and convincingly
with affirmative, newly discovered evidence. We there-
fore need not address the second prong of the petition-
er’s burden, which is to prove that no reasonable fact
finder would find him guilty in light of the evidence
before both the criminal and habeas courts.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘Steven Brown pleaded guilty and testified as a witness for the state.’’
State v. Jackson, supra, 73 Conn. App. 342 n.5.
2
Specifically, the petitioner was convicted of ‘‘one count of felony murder
in violation of General Statutes § 53a-54c, three counts of robbery in the
first degree in violation of General Statutes § 53a-134 (a) (2), two counts
of attempt to commit robbery in the first degree in violation of General
Statutes §§ 53a-49 and 53a-134 (a) (2), one count of conspiracy to commit
robbery in the first degree in violation of General Statutes §§ 53a-48 and
53a-134 (a) (2) and one count of carrying a pistol without a permit in
violation of General Statutes § 29-35 (a).’’ State v. Jackson, supra, 73 Conn.
App. 340–41.
3
In a case decided earlier this year, moreover, we held that ‘‘[t]he disposi-
tion of withdrawal with prejudice exists within Connecticut jurisprudence.’’
Mozell v. Commissioner of Correction, 147 Conn. App. 748, 757, 83 A.3d
1174, cert. denied, 311 Conn. 928, A.3d (2014).
4
‘‘ ‘[W]et’ . . . is marijuana that has been dipped in embalming fluid.’’
State v. Bowman, 289 Conn. 809, 812, 960 A.2d 1027 (2008).
5
The letter, dated September 24, 1999, read in its entirety: ‘‘I’m writing
this concerning the Marquis Jackson case. I gave a statement to the police
concerning that case. I gave some false information in that statement. I said
I saw Marquis Jackson at the scene where my friend Caprice Hardy was
murdered. I’m deeply sorry but, that is untrue the only reason I said that I
saw Marquis Jackson at the scene, was because a lot of people told that
he was one of the guys that had something to do with my friend Caprice
Hardy being murdered. Truth is, I didn’t see anybody that I recognize that
night. Shaquan Pallet.’’
6
To the extent that the petitioner would argue that Butler’s stolen cell
phone directly connects Macklin, Sadler, or Newkirk to the robbery because
they may have made or received calls on it, we are not persuaded for the
reasons set forth in part III of this opinion.
7
The petitioner makes much of what he characterizes as a recantation
by Brown regarding the finding at the criminal trial that Horn stole Butler’s
cell phone during the robbery and lent it to Pearson. Specifically, the peti-
tioner argues that ‘‘Brown recanted at the habeas trial, admitting that he
had the cell phone in his possession at all times . . . .’’ The petitioner
misinterprets the testimony upon which he relies. The petitioner asked
Brown on multiple occasions if he testified during the criminal trial ‘‘that
if there [was] a phone call made to Bridgeport [on Butler’s cell phone during
the morning and early afternoon of January 24, 1999], [he] made it’’; Brown
answered in the affirmative. (Emphasis added.) The 11:07 a.m. call attributed
to Pearson, however, was made to a number in West Haven. Given this fact,
and that Brown expressly confirmed his criminal trial testimony during his
habeas trial testimony, we are unable to conclude that Brown ‘‘recanted’’
in the manner set forth by the petitioner.