Smith v. Commissioner of Correction

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LAWRENCE SMITH v. COMMISSIONER
OF CORRECTION
(AC 34321)
DiPentima, C. J., and Gruendel and West, Js.
Argued October 17, 2013—officially released March 4, 2014
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Sarah F. Summons, assigned counsel, for the appel-
lant (petitioner).
Nancy L. Chupak, senior 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 (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, Lawrence Smith,
appeals from the judgment of the habeas court denying
in part his petition for a writ of habeas corpus. On
appeal, the petitioner claims that the court improperly
determined that he received effective assistance of trial
and appellate counsel. We are not persuaded by the
petitioner’s arguments, and, accordingly, affirm the
judgment of the habeas court.
A jury found the petitioner guilty of murder in viola-
tion of General Statutes §§ 53a-54a (a) and 53a-8 (a),
felony murder in violation of General Statutes §§ 53a-
54c and 53a-8 (a), conspiracy to commit murder in viola-
tion of General Statutes §§ 53a-48 (a) and 53a-54a, con-
spiracy to commit robbery in the first degree in violation
of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2),
and hindering prosecution in the first degree in violation
of General Statutes § 53a-165 (5). In affirming the peti-
tioner’s conviction, our Supreme Court noted the fol-
lowing facts underlying the crimes committed by the
petitioner: ‘‘On July 21, 2000, Robert Marrow and Jona-
than Rivers, acting on the orders of Miguel Estrella, a
drug dealer in Meriden, met the victim, Juan Disla, who
was a rival drug dealer, at a Dairy Queen in Meriden
to rob him. During the course of the robbery, Marrow
shot the victim in the leg. Marrow contacted Estrella for
instructions and was told to drive to the [petitioner’s]
house. Marrow and Rivers took the victim, whom they
had bound with duct tape, to the [petitioner’s] house,
where Estrella and the [petitioner] removed money and
cocaine from the victim’s vehicle. Thereafter, the [peti-
tioner], Estrella, Rivers and Marrow drove the victim
to a remote location in a wooded area in the Higganum
section of Haddam, where the victim was suffocated
to death. The four men left the victim’s body in the
woods and returned to Meriden. That evening, Estrella,
Marrow, Rivers and some friends drove the victim’s car
to New York state and abandoned it on the highway,
where it eventually was vandalized.
‘‘The state also offered evidence, which the [peti-
tioner] unsuccessfully challenges in this appeal, to
establish the following additional facts. Two days after
the murder, Estrella and the [petitioner] returned to
the location of the victim’s body with a chainsaw, plastic
buckets and several containers of acid. The [petitioner]
used the chainsaw to dismember the body while Estrella
watched. The [petitioner] and Estrella then placed the
body parts in the buckets and covered them with acid
to destroy them. The [petitioner] subsequently disposed
of any remains. The victim’s body was never recovered,
and no bloodstains, DNA or bones ever were found.
‘‘The record reflects the following procedural history.
In 2001, the [petitioner] was arrested in connection
with the murder of the victim. He was charged with
conspiracy to commit murder in violation of §§ 53a-48
(a) and 53a-54a, and kidnapping in the first degree in
violation of General Statutes § 53a-92. On December 5,
2001, after the [petitioner] had moved for a speedy
trial, the state entered a nolle prosequi of the charges
pursuant to the missing witness provision of General
Statutes § 54-56b and Practice Book § 39-30. The state
represented that Estrella, an essential witness in the
case, was asserting his fifth amendment privilege
against self-incrimination and therefore would be
unavailable to testify. The [petitioner] filed a motion to
dismiss the charges on the ground, inter alia, that he
had been denied a speedy trial. The court, Fasano, J.,
denied the motion, and thereafter, the [petitioner] was
released from custody.
‘‘Pursuant to a warrant dated March 9, 2005, the [peti-
tioner] subsequently was rearrested in connection with
the murder of the victim. He was charged in a long form
information with murder, felony murder, conspiracy to
commit murder, conspiracy to commit robbery in the
first degree and hindering prosecution in the first
degree. The [petitioner] pleaded not guilty and, after a
jury trial, was found guilty of all the charges. In accor-
dance with the verdict, the trial court, Alexander, J.,
imposed a total effective sentence of seventy-five years
imprisonment.’’ (Footnotes omitted.) State v. Smith,
289 Conn. 598, 602–604, 960 A.2d 993 (2008).
Thereafter, the petitioner commenced this habeas
action. In his second amended petition, filed September
13, 2011, the petitioner alleged that he had received
ineffective assistance of counsel from his first attorney,
Glenn Conway, who had represented him during certain
pretrial proceedings. The petitioner further claimed that
Attorney Leo Ahern had provided him with ineffective
assistance of counsel during the criminal trial. Last,
the petitioner alleged ineffective assistance from his
appellate counsel, Attorney Elizabeth Inkster. The peti-
tioner specifically argued that Conway and Ahern
improperly failed to pursue a claim that the petitioner
had a right to a speedy trial under Barker v. Wingo,
407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972),
‘‘because there was a considerable delay from the time
that he was first arrested in 2001 to the time that jury
selection commenced in 2005 and to the time that pre-
sentation of evidence commenced in 2006.’’ In count
two, the petitioner contended that Inkster improperly
failed to present his Barker claim during his direct
appeal to our Supreme Court. In count three, the peti-
tioner claimed that Ahern had failed to investigate his
defenses and improperly had advised him not to testify
during the criminal trial. In count four, the petitioner
raised a claim of actual innocence, and in count five,
he alleged that he had not been advised properly of his
ability to seek sentence review.
Following a two day trial, the habeas court issued
a memorandum of decision on January 20, 2012, and
rendered judgment in favor of the respondent, the Com-
missioner of Correction, on counts one through four
of the second amended petition.1 With respect to counts
one and two of the petition, the court found that Con-
way, Ahern, and Inkster did not perform deficiently by
not raising a Barker claim. As to count three, the court
found that Ahern’s strategic decisions during the trial
were not deficient and that the petitioner had failed to
establish prejudice. It further found, with respect to the
claim that the petitioner had been advised improperly
not to testify, that Ahern’s advice was objectively rea-
sonable and that the petitioner had knowingly and vol-
untarily elected not to testify. Finally, the court found in
favor of the respondent on the claim of actual innocence
because ‘‘[t]he petitioner presented no evidence of this
claim at trial and did not brief this issue.’’ On February
1, 2012, the court granted the petition for certification
to appeal from the partial denial of the petition for a
writ of habeas corpus. This appeal followed.
Our standard of review in a challenge to the denial
of a petition for a writ of habeas corpus is long estab-
lished. We employ plenary review in examining the legal
conclusions of the habeas court, and we consider
whether those conclusions are legally and logically cor-
rect and supported by the factual record. Davis v. Com-
missioner of Correction, 140 Conn. App. 597, 602, 59
A.3d 403, cert. denied, 308 Conn. 920, 62 A.3d 1133(2013); see also Smith v. Commissioner of Correction,
122 Conn. App. 637, 641, 999 A.2d 840 (2010), cert.
denied, 300 Conn. 901, 12 A.3d 574 (2011). This court
cannot disturb the underlying facts found by the habeas
court unless they are clearly erroneous. Davis v. Com-
missioner of Correction, supra, 602. Further, the
habeas judge is the ‘‘sole arbiter of the credibility of
witnesses and the weight to be given to their testimony.’’
(Internal quotation marks omitted.) Id.
I
We first address the petitioner’s claims surrounding
Barker. Specifically, the petitioner argues that Conway
should have included a Barker claim in the pretrial
motion to dismiss, Ahern should have raised the Barker
claim during the trial, and Inkster should have taken
steps in the direct appeal to present an adequate record
on a Barker claim. We are not persuaded.2
Before addressing the claims against each attorney,
we state the law regarding ineffective assistance of trial
counsel. ‘‘The petitioner’s right to the effective assis-
tance of counsel is assured by the sixth and fourteenth
amendments to the federal constitution, and by article
first, § 8, of the constitution of Connecticut. In Strick-
land v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), the United States Supreme
Court established that for a petitioner to prevail on a
claim of ineffective assistance of counsel, he must show
that counsel’s assistance was so defective as to require
reversal of [the] conviction. . . . That requires the peti-
tioner to show (1) that counsel’s performance was defi-
cient and (2) 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 adversary process
that renders the result unreliable. . . .
‘‘With respect to the performance component of the
Strickland test, [t]o prove that his counsel’s perfor-
mance was deficient, the petitioner must demonstrate
that trial counsel’s representation fell below an objec-
tive standard of reasonableness. . . . Competent rep-
resentation is not to be equated with perfection. The
constitution guarantees only a fair trial and a competent
attorney; it does not ensure that every conceivable con-
stitutional claim will be recognized and raised. . . . A
fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of coun-
sel’s challenged conduct, 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 presumption that counsel’s con-
duct falls within the wide range of reasonable profes-
sional assistance; that is, the [petitioner] must
overcome the presumption that, under the circum-
stances, the challenged action might be considered
sound trial strategy. . . . [C]ounsel is strongly pre-
sumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment. . . . Nowhere is it said, though,
that such a presumption is irrebuttable. As with any
refutable presumption, the petitioner may rebut the pre-
sumption on adequate proof of sufficient facts indicat-
ing a less than competent performance by counsel. . . .
‘‘With respect to the prejudice component of the
Strickland test, the petitioner must demonstrate that
counsel’s errors were so serious as to deprive the [peti-
tioner] of a fair trial, a trial whose result is reliable.
. . . It is not enough for the [petitioner] to show that
the errors had some conceivable effect on the outcome
of the proceedings. . . . Rather, [t]he [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. A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome. . . . When a [petitioner] chal-
lenges a conviction, the question is whether there is
a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respect-
ing guilt.’’ (Citations omitted; internal quotation marks
omitted.) White v. Commissioner of Correction, 145
Conn. App. 834, 840–42, 77 A.3d 832, cert. denied, 310
Conn. 947, 80 A.3d 906 (2013); see also Spyke v. Com-
missioner of Correction, 145 Conn. App. 419, 424, 75
A.3d 738 (claim of ineffective assistance of counsel will
succeed only if performance and prejudice prongs are
satisfied), cert. denied, 310 Conn. 932, 78 A.3d 858(2013).
A
The petitioner argues that Conway, his attorney prior
to trial, should have included a Barker claim in his
motion to dismiss the charges. In a May 5, 2005 memo-
randum of law in support of the petitioner’s motion to
dismiss the charges, Conway stated that the petitioner
had been arrested on February 1, 2001, and charged
with conspiracy to commit murder and kidnapping in
the first degree. The petitioner filed a motion for a
speedy trial, and the state entered a nolle prosequi as
to all charges. Conway further indicated that ‘‘[t]he
basis for the nolle, as asserted by the state, was an
essential witness, Miguel Estrella, would assert his Fifth
Amendment privilege against self-incrimination and
thus was unavailable to testify.’’3 The court accepted the
state’s nolle and released the petitioner from custody.
Criminal proceedings were reinstituted, and the peti-
tioner was rearrested in March, 2005.
During the habeas trial, Conway testified that he had
researched the issues of speedy trial rights and pre-
sented them to the criminal court in the best way he
could. He further indicated that he had made a tactical
decision on how to advance the petitioner’s motion to
dismiss and that the arguments he raised, which did
not include a Barker claim, were the best way to have
the charges against the petitioner dismissed. Conway
also explained his analysis as to why a Barker claim
would not succeed, namely, the likelihood that such a
claim would fail as a result of application of the first and
fourth Barker factors. See footnote 2 of this opinion.
‘‘[J]udicial scrutiny of counsel’s performance must
be highly deferential. It is all too tempting for a defen-
dant to second-guess counsel’s assistance after convic-
tion or adverse sentence, and it is all too easy for a
court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omis-
sion of counsel was unreasonable. . . . A fair assess-
ment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s chal-
lenged conduct, and to evaluate the conduct from coun-
sel’s perspective at the time. Because of the difficulties
inherent 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.’’ (Internal quo-
tation marks omitted.) Gonzalez v. Commissioner of
Correction, 145 Conn. App. 16, 23–24, 75 A.3d 705, cert.
denied, 310 Conn. 932, 78 A.3d 858 (2013); Coward
v. Commissioner of Correction, 143 Conn. App. 789,
800–801, 70 A.3d 1152, cert. denied, 310 Conn. 905, 75
A.3d 32 (2013).
The petitioner bears the burden of showing that Con-
way’s actions fell below an objective standard of reason-
ableness. See Williams v. Commissioner of Correction,
142 Conn. App. 744, 752, 68 A.3d 111 (2013). Further-
more, we note that ‘‘[t]here are countless ways to pro-
vide effective assistance in any given case. Even the
best criminal defense attorneys would not defend a
particular client in the same way. . . . Likewise, there
is no expectation that competent counsel will be a flaw-
less strategist or tactician . . . .’’ (Citations omitted;
internal quotation marks omitted.) Id., 753; see also
Mozell v. Commissioner of Correction, 291 Conn. 62,
79, 967 A.2d 41 (2009) (‘‘[a]s a general rule, a habeas
petitioner will be able to demonstrate that trial coun-
sel’s decisions were objectively unreasonable only if
there [was] no . . . tactical justification for the course
taken’’ [internal quotation marks omitted]).
The petitioner has failed to sustain his burden in
this case. The habeas court correctly determined that
Conway made a reasonable and sound tactical decision
to file the motion to dismiss that did not include a
Barker claim because he had reasonably concluded that
it had little chance to succeed. Additionally, the court
concluded that the petitioner had failed to demonstrate
that he would have prevailed on his Barker claim. We
note that the petitioner elected not to present the testi-
mony of a legal expert at his habeas trial. ‘‘An expert
witness is not essential to show that an attorney’s per-
formance was so deficient that it fell below the standard
of reasonably effective assistance, but in many cases,
expert testimony is useful.’’ Small v. Commissioner of
Correction, 98 Conn. App. 389, 394, 909 A.2d 533 (2006),
aff’d, 286 Conn. 707, 946 A.2d 1203, cert. denied sub
nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172
L. Ed. 2d 336 (2008); see also Gray v. Commissioner
of Correction, 138 Conn. App. 171, 179, 50 A.3d 406,
cert. denied, 307 Conn. 929, 55 A.3d 570 (2012); Urda
v. Warden, Superior Court, judicial district of Tolland,
Docket No. CV-09-4003248-S (January 4, 2012).
This court recently stated: ‘‘[W]ith regard to the per-
formance prong of Strickland, 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. . . . The law
presumes that counsel is competent until evidence has
been introduced to the contrary. . . . It is elementary
jurisprudence that the determination of whether coun-
sel’s conduct was ineffective is a peculiarly fact bound
inquiry. . . . Moreover, [i]t is well established that a
petitioner in a habeas proceeding cannot rely on mere
conjecture or speculation to satisfy either the perfor-
mance or prejudice prong [of Strickland] but must
instead offer demonstrable evidence in support of his
claim.’’ (Citations omitted; internal quotation marks
omitted.) Martinez v. Commissioner of Correction, 147
Conn. App. 307, 315–16, A.3d (2013). For these
reasons, we conclude that Conway’s tactical decision
not to raise a Barker claim in his motion to dismiss
fell within the wide range of reasonable professional
assistance and did not amount to ineffective assistance
of counsel.
B
The petitioner next claims that Ahern, his criminal
trial counsel, should have raised a Barker claim after
he replaced Conway. The habeas court concluded that
‘‘it was reasonable for [Ahern] not to file a second
motion to dismiss under Barker v. Wingo [supra, 407
U.S. 514] days before the trial was set to begin, particu-
larly since prior counsel had attended to the pretrial
matters and he was retained to handle the trial of the
case.’’
Ahern testified that he filed his appearance immedi-
ately before the trial commenced, and after the pretrial
matters had concluded. Ahern had discussed the peti-
tioner’s case with Conway and had received his file.
Ahern also stated that he had seen the transcript of the
hearing on Conway’s motion to dismiss. Ahern ‘‘felt that
[the speedy trial issue] had been presented. A judge
had ruled on it, and now it was time to try the case.’’
We agree with the habeas court that the petitioner
has failed to meet his burden of proving that Ahern was
ineffective for failing to raise the Barker issue. ‘‘An
attorney can avoid activities that appear distractive
from more important duties. . . . Counsel was entitled
to formulate a strategy that was reasonable at the time
and to balance limited resources in accord with effec-
tive trial tactics and strategies.’’ (Citation omitted; inter-
nal quotation marks omitted.) Harrington v. Richter,
U.S. , 131 S. Ct. 770, 789, 178 L. Ed. 2d 624(2011). Ahern’s decision to focus on the pending trial
and not to revisit the issue of the Barker claim consti-
tuted reasonable strategy and, thus, did not amount to
ineffective assistance.
C
The petitioner next claims that Inkster provided inef-
fective assistance of counsel during his direct appeal.
Specifically, he argues that Inkster took no action to
present an adequate record regarding a Barker claim
to our Supreme Court. We disagree.
‘‘A criminal defendant’s right to the effective assis-
tance of counsel extends through the first appeal of
right and is guaranteed by the sixth and fourteenth
amendments to the United States constitution and by
article first, § 8, of the Connecticut constitution. . . .
To succeed on a claim of ineffective assistance of coun-
sel, a habeas petitioner must satisfy the two-pronged
test articulated in Strickland . . . .’’ (Citation omitted;
internal quotation marks omitted.) Synakorn v. Com-
missioner of Correction, 124 Conn. App. 768, 771–72,
6 A.3d 819 (2010), cert. denied, 300 Conn. 906, 12 A.3d
1004 (2011). ‘‘Our Supreme Court has distinguished the
standards of review for claims of ineffective assistance
of trial counsel and of appellate counsel. . . . For
claims of ineffective assistance of appellate counsel,
we must assess whether there is a reasonable probabil-
ity that, but for appellate counsel’s failure to raise the
issue on appeal, the petitioner would have prevailed
[on] appeal, i.e., [obtaining] reversal of his conviction
or granting of a new trial.’’ (Citation omitted; internal
quotation marks omitted.) Johnson v. Commissioner
of Correction, 131 Conn. App. 805, 808, 29 A.3d 166(2011); Moody v. Commissioner of Correction, 127
Conn. App. 293, 300–301, 14 A.3d 408, cert. denied, 300
Conn. 943, 17 A.3d 478 (2011).
Inkster testified that she reviewed the transcripts of
the petitioner’s criminal trial, identified the possible
legal issues, conducted research, and selected two
issues to pursue on his direct appeal to our Supreme
Court. She specifically considered making a Barker
claim, but decided against it because of the lack of
prejudice. See footnote 2 of this opinion. She expressly
testified that she did not make such an argument
because she felt it lacked a chance of success on appeal
and instead focused on other issues.
‘‘Just as with a claim of ineffective assistance of trial
counsel, success on a claim of ineffective assistance of
appellate counsel requires the petitioner to establish
that appellate counsel’s representation fell below an
objective standard of reasonableness considering all of
the circumstances. . . . [Although] an appellate advo-
cate must provide effective assistance, [she] is not
under an obligation to raise every conceivable issue. A
brief that raises every colorable issue runs the risk of
burying good arguments . . . in a verbal mound made
up of strong and weak contentions. . . . Indeed,
[e]xperienced advocates since time beyond memory
have emphasized the importance of winnowing out
weaker arguments on appeal and focusing on one cen-
tral issue if possible, or at most on a few key issues. . . .
Moreover, [a] habeas court will not, with the benefit of
hindsight, second-guess the tactical decisions of appel-
late counsel.’’ (Citation omitted; internal quotation
marks omitted.) Saucier v. Commission of Correction,
139 Conn. App. 644, 651–52, 57 A.3d 399 (2012), cert.
denied, 308 Conn. 907, 61 A.3d 530 (2013); Johnson v.
Commissioner of Correction, supra, 131 Conn. App.
809; see also Synakorn v. Commissioner of Correction,
supra, 124 Conn. App. 775 (‘‘Legal contentions, like the
currency, depreciate through over-issue. The mind of an
appellate judge is habitually receptive to the suggestion
that a lower court committed an error. But
receptiveness declines as the number of assigned errors
increases. Multiplicity hints at a lack of confidence in
any one [issue] . . . . [M]ultiplying assignments of
error will dilute and weaken a good case and will not
save a bad one.’’ [Internal quotation marks omitted.]).
We agree fully with the habeas court that ‘‘the peti-
tioner has failed to prove that . . . Inkster’s represen-
tation fell below the objective standard of
reasonableness. Inkster did precisely what the law
requires of her. She reviewed the pleadings and tran-
scripts, identified the possible issues and then strategi-
cally determined which issues had the best chance of
winning.’’ Accordingly, we conclude that the habeas
court properly determined that Inkster provided the
petitioner with effective assistance of counsel.
II
We next address the petitioner’s additional claims of
ineffective assistance of counsel as to Ahern. Specifi-
cally, he argues that Ahern failed to present evidence
regarding muriatic acid and advised the petitioner not
to testify. We disagree.
A
The petitioner argues that Ahern provided ineffective
assistance of counsel by failing to present evidence
regarding muriatic acid and its ability, or lack thereof,
to dissolve human body parts. At the habeas trial, the
parties stipulated that muriatic acid, even in large quan-
tities, will not dissolve a body.4 The habeas court deter-
mined that Ahern made an objectively reasonable
strategic decision not to present evidence regarding the
properties of muriatic acid because of his belief that it
had no value to the petitioner’s defense. The court fur-
ther reasoned that had such evidence been presented
to the jury, it would not have made any difference in
the outcome. Accordingly, the court concluded that the
petitioner had failed to carry his burden with respect
to both Strickland prongs.
We consider the following additional facts in
addressing this claim. During the petitioner’s criminal
trial, the jury heard recorded statements that Estrella
made to his cellmate in prison that the petitioner had
suggested that they use acid to dispose of the victim’s
body. Estrella was also heard saying that the petitioner
went to The Home Depot to purchase acid for this
purpose. During the habeas trial, Ahern testified that the
state was unable to produce evidence that forensically
linked the petitioner to the death of the victim. Ahern
also explained that conviction of the petitioner was
based exclusively on testimony of codefendants.
In rejecting this claim, the habeas court stated: ‘‘The
victim’s body was never located in this case. Witnesses
testified about the petitioner’s role in the murder of the
to find him guilty of the charges. The issue of how the
victim’s body was secreted after the murder was not a
central issue in the case. The evidence of the murder
and elimination of the body came from eyewitnesses,
not forensic proof. Codefendant Estrella, who raised
the issue of the petitioner’s statement regarding the
acid, was not present when the victim’s dead body was
later concealed by the petitioner and another. The peti-
tioner during his testimony in this case admitted that
he agreed to get rid of the body in exchange for drugs
and did so, with another person, by dragging the body
into a wooded area and throwing it in a watery ditch.
He later told Estrella that he dissolved the body in acid,
but that is not what actually happened.’’
At the outset, we note that ‘‘[i]n its analysis, a
reviewing court may look to the performance prong or
to the prejudice prong, and the petitioner’s failure to
prove either is fatal to a habeas petition.’’ (Internal
quotation marks omitted.) Davis v. Commissioner of
Correction, 147 Conn. App. 343, 349, A.3d
(2013). ‘‘To establish prejudice, a [petitioner] must dem-
onstrate that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. . . . [I]n a
habeas corpus proceeding, the petitioner’s burden of
proving that a fundamental unfairness had been done
is not met by speculation . . . but by demonstrable
realities.’’ (Emphasis in original; internal quotation
marks omitted.) Id. We agree that the manner in which
the victim’s body was disposed of constituted a collat-
eral issue that would not have affected the verdict.
Accordingly, we conclude that the habeas court prop-
erly determined that the petitioner failed to establish
prejudice with respect to this claim.5
B
The petitioner argues that Ahern provided ineffective
assistance by advising him not to testify during the
criminal trial. He argues that because the state’s case
lacked physical or forensic evidence linking the peti-
tioner to the death of the victim and was based exclu-
sively on the statements of convicted felons, Ahern
should not have advised and persuaded him not to tes-
tify during the criminal trial.
The habeas court found the following facts relating
to this claim. ‘‘Ahern had ongoing discussions with the
petitioner as to whether or not he should testify in
this case. The petitioner did not have a strong view on
whether he should or should not testify. Although Ahern
advised the petitioner that he had the right to testify,
he strongly advised him not to do so. Ahern explained
to the petitioner that the state had a strong case, but
there were holes in its case. If the petitioner chose to
testify, and testified poorly as Ahern believed he would,
the petitioner could seriously hurt his case. As a con-
victed felon, the state could use the petitioner’s convic-
tion record on cross-examination. More importantly,
Ahern did not believe that the petitioner had a cohesive
and consistent story to tell the jury.
‘‘In addition, the [criminal] court thoroughly can-
vassed the petitioner on the record on his decision not
to testify. In particular, the trial court explained to the
petitioner that he had the right to testify in his case or
not testify in this case. It expressly asked him whether
it was his choice not to testify. The petitioner indicated
that he understood his right and elected not to testify.
He also indicated during the canvass that he had dis-
cussed the issue with Ahern. . . .
‘‘The court finds that Ahern provided objectively rea-
sonable advice regarding the petitioner’s decision to
testify or not testify. He appropriately reviewed the
state’s evidence with the petitioner and reviewed with
him the substance of what the petitioner would say if he
took the [witness] stand. Based on this, Ahern strongly
advised the petitioner not to testify. Having heard the
petitioner’s version of events during the trial of this
case, this court cannot disagree with Ahern’s judgment
that the petitioner’s story was inconsistent and con-
tained damaging and incriminatory details that would
not have assisted his defense that he was a minor player
in the events of the murder and its aftermath. In addi-
tion, the decision whether or not to testify was the
petitioner’s, and it is clear from the [criminal] court’s
canvass, that the petitioner knowingly and voluntarily
elected not to testify. Accordingly, the court finds that
the petitioner has failed to prove that Ahern’s advice
as to whether the petitioner should or should not testify
was in any way deficient.’’
The criminal defendant’s right to testify on his own
behalf, after consultation with counsel, is well estab-
lished. ‘‘[A]lthough the due process clause of the [f]ifth
[a]mendment may be understood to grant the accused
the right to testify, the if and when of whether the
accused will testify is primarily a matter of trial strategy
to be decided between the defendant and his attorney.’’
(Internal quotation marks omitted.) Coward v. Com-
missioner of Correction, supra, 143 Conn. App. 799;
see also Wideman v. Commissioner of Correction, 67
Conn. App. 739, 740, 789 A.2d 1097, cert. denied, 260
Conn. 906, 795 A.2d 547 (2002).
The habeas court properly determined that the peti-
tioner had failed to sustain his burden of overcoming
the strong presumption that Ahern provided effective
assistance of counsel. ‘‘[J]udicial scrutiny of counsel’s
performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it
is all too easy for a court, examining counsel’s defense
after it has proved 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 eliminate the dis-
torting effects of hindsight, to reconstruct the circum-
stances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the
time. . . . [T]here is a strong presumption that the trial
strategy employed by a criminal defendant’s counsel is
reasonable and is a result of the exercise of professional
judgment. . . . It is well established that [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 and that a tactic that
appears ineffective in hindsight may have been sound
trial strategy at the time.’’ (Internal quotation marks
omitted.) Coward v. Commissioner of Correction,
supra, 143 Conn. App. 800–801.
We agree with the reasoned decision of the habeas
court that Ahern’s advice constituted sound trial strat-
egy and, therefore, did not constitute ineffective assis-
tance of counsel. See, e.g., Toccaline v. Commissioner
of Correction, 80 Conn. App. 792, 815, 837 A.2d 849,
cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied
sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S. Ct.
301, 160 L. Ed. 2d 90 (2004). Accordingly, we conclude
that this claim must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court found that Ahern ‘‘did not properly advise the petitioner
as to his right to sentence review after either the March sentencing or the
May 17 correction hearing.’’ It further found that the petitioner suffered
prejudice by this ‘‘absence of access to sentence review’’ and restored his
right to sentence review under General Statutes § 51-195. The issue of sen-
tence review is not before this court on appeal.
2
‘‘The sixth amendment guarantee of a speedy trial is a fundamental right
made applicable to the states through the fourteenth amendment to the
United States constitution. . . . In Barker v. Wingo, [supra], 407 U.S. 514. . . the United States Supreme Court articulated a balancing test for
determining when a defendant’s constitutional right to a speedy trial has been
violated. . . . The Supreme Court of the United States and [the Connecticut
Supreme Court] have identified four factors which form the matrix of the
defendant’s constitutional right to speedy adjudication: [l]ength of delay,
the reason for the delay, the defendant’s assertion of his right, and prejudice
to the defendant. . . . A balancing test is to be applied on a case by case
basis. None of the factors standing alone demands a set disposition; rather
it is the total mix which determines whether the defendant’s right was
violated.’’ (Citation omitted; internal quotation marks omitted.) State v.
Gaston, 86 Conn. App. 218, 226, 860 A.2d 1253 (2004), cert. denied, 273
Conn. 901, 867 A.2d 840 (2005); see also State v. Lacks, 58 Conn. App. 412,
417, 755 A.2d 254, cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000).
3
Conway noted that the state cited General Statutes § 54-56b and Practice
Book § 39-30 as the provisions in support of its use of a nolle prosequi.
4
Specifically, the parties stipulated that ‘‘[m]uriatic acid, even in very
large quantities, will not completely dissolve a human body or human body
parts. . . . Muriatic acid as sold at [The] Home Depot and as possessed by
[the petitioner] will not, even in very large quantities, completely dissolve
a human body or human body parts. . . . Muriatic acid is commonly used
to clean concrete, brick and swimming pools.’’
5
We also agree with the habeas court that Ahern’s tactical decision not
to introduce any evidence of muriatic acid did not constitute deficient
performance in this case.