Collins v. Commissioner of Correction

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ROGEAU R. COLLINS v. COMMISSIONER
OF CORRECTION
(AC 42785)
Lavine, Suarez and Devlin, Js.*
Syllabus
The petitioner, who had been convicted of felony murder and robbery in
the first degree, sought a writ of habeas corpus, claiming that his right
to conflict free counsel was violated and that his trial counsel provided
ineffective assistance. Specifically, the petitioner claimed that his trial
counsel had a financial incentive not to retain three expert witnesses
and that he failed to investigate a potential eyewitness and present her
testimony. The habeas court rendered judgment denying the habeas
petition, and the petitioner, on the granting of certification, appealed
to this court. Held:
1. The petitioner could not prevail on his claim that the habeas court erred
in concluding that his trial counsel did not have a conflict of interest:
a. This court concluded, contrary to the determination of the habeas
court, that the petitioner’s conflict of interest claim was not procedurally
defaulted, as it was a type of ineffective assistance of counsel claim
that typically must be raised by way of habeas corpus, rather than by
direct appeal, due to the need for a full evidentiary record of the claim;
neither trial counsel nor the court raised the potential for a conflict of
interest at trial and, consequently, the record on direct appeal was not
adequate to review the claim; accordingly, the claim was not subject to
the procedural default doctrine.
b. The habeas court properly determined that no actual conflict of
interest existed because trial counsel did not have an obligation to
finance the petitioner’s litigation costs or to make his private resources
available to the petitioner: the fee agreement clearly placed responsibil-
ity for the payment of experts on the petitioner and his family, and
counsel’s decision not to advance funds to engage experts after the
family failed to do so did not violate his duty of loyalty or otherwise
create a conflict of interest.
2. The habeas court did not err in determining that the petitioner was not
denied his constitutional right to the effective assistance of trial counsel,
reasoning that trial counsel’s failure to investigate the potential eyewit-
ness did not result in any prejudice to the petitioner’s defense: the
habeas court’s conclusion that the witness would not have been willing
to assist the defense at trial, even if she had been contacted by counsel,
was based on a credibility determination that was not clearly erroneous
even though the witness stated at the habeas trial that she would have
testified at the trial if she had been approached by counsel because she
also testified that she witnessed the shooting, knew that the petitioner
had been arrested, and yet made no efforts to contact the police; accord-
ingly, the petitioner did not establish that there was a reasonable proba-
bility that the trial outcome would have been different if trial counsel
had investigated the eyewitness.
Argued October 13, 2020—officially released February 23, 2021
Procedural History
Second amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland and tried to the court, Kwak, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Jennifer B. Smith, for the appellant (petitioner).
Timothy F. Costello, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, former
state’s attorney, and Tamara Grosso, assistant state’s
attorney, for the appellee (respondent).
Opinion
DEVLIN, J. The petitioner, Rogeau R. Collins, appeals
from the judgment of the habeas court, Kwak, J., deny-
ing his petition for a writ of habeas corpus. On appeal,
the petitioner claims that the court improperly (1) deter-
mined that his conflict of interest claim was procedur-
ally defaulted and that, in any event, his trial counsel
did not have a conflict of interest and (2) denied his
ineffective assistance of counsel claim. We affirm the
judgment of the habeas court.
The following recitation of facts was set forth by this
court in the petitioner’s direct appeal from his convic-
tion. ‘‘In March, 2009, Robert Dixon, the victim, resided
in Hartford with his girlfriend. Dixon always carried
two cell phones. He used one cell phone to sell drugs
and the other for personal matters. In addition, he
always wore an expensive pair of Cartier glasses. He
did not store the drugs he sold at his home, but kept
them at a remote location secured in a safe. The key
to the safe was on the same key ring as Dixon’s car keys.
‘‘On March 9, 2009, Dixon exchanged several phone
calls with an individual named Adrian Dean, a friend
of the [petitioner]. At approximately 9:25 p.m. that night,
Dixon left his residence in his vehicle carrying both of
his cell phones and wearing his Cartier glasses. Some-
time thereafter, Dean joined Dixon in the vehicle. Dean
then contacted the [petitioner], who was driving around
the Hartford area in his girlfriend’s vehicle. Dean
arranged to meet the [petitioner] at a location in Bloom-
field and gave the [petitioner] directions to that loca-
tion. The [petitioner] followed Dean’s directions and
arrived at the location at approximately the same time
as Dean and Dixon. Dixon and the [petitioner] then
drove their vehicles toward a cul-de-sac at the end of
the road. Dixon turned his vehicle in the cul-de-sac and
came to a stop. The [petitioner] pulled up and stopped
his vehicle to the left of Dixon’s vehicle. The [petitioner]
then exited his vehicle. Both the [petitioner] and Dean,
who had exited Dixon’s vehicle, approached the driver’s
side door of Dixon’s vehicle. Dixon was still sitting in
the driver’s seat of his vehicle. Dean, with a firearm in
one of his hands, opened the driver’s side door of Dix-
on’s vehicle and shot Dixon in the head. Dean then
asked the [petitioner] to search Dixon’s pockets. The
[petitioner] began patting Dixon’s pockets when Dixon
flinched and attempted to escape the vehicle through
the passenger side door. Dixon was shot seven times
as he attempted to escape and died as a result of the
multiple gunshot wounds. The [petitioner] and Dean
then left the scene in the [petitioner’s] vehicle. The
following morning, on March 10, 2009, Dixon was found
dead by two fishermen. Dixon’s two cell phones, Cartier
glasses, and keys were not found at the scene. The
[petitioner] was arrested on March 24, 2009.
‘‘The state, in a long form information filed on January
11, 2011, charged the [petitioner] with murder in viola-
tion of General Statutes § 53a-54a (a), felony murder
in violation of [General Statutes] § 53a-54c, conspiracy
to commit murder in violation of General Statutes
§§ 53a-48 (a) and 53a-54a (a), robbery in the first degree
in violation of [General Statutes] § 53a-134 (a) (2), and
conspiracy to commit robbery in the first degree in
violation of §§ 53a-48 (a) and 53a-134 (a) (2). The jury
found the [petitioner] guilty of felony murder and rob-
bery in the first degree, but not guilty [of] each of the
remaining charges. The court sentenced the [petitioner]
to a total effective term of forty-five years of imprison-
ment.’’ State v. Collins, 147 Conn. App. 584, 586–88, 82
A.3d 1208, cert. denied, 311 Conn. 921, 86 A.3d 1057(2014). This court affirmed the trial court’s judgment
on appeal. Id., 598.
On March 23, 2015, the self-represented petitioner
filed a petition for a writ of habeas corpus. The peti-
tioner filed an amended petition with the assistance of
counsel on February 14, 2018, which was again
amended on April 10, 2018. The second amended peti-
tion contained four counts, only two of which are rele-
vant to this appeal.1 In the first count, the petitioner
alleged that his trial counsel, Aaron Romano, had a
conflict of interest and, thus, rendered ineffective assis-
tance. In the second count, the petitioner alleged that
Romano was ineffective for failing to investigate and
present a potentially exculpatory witness to the rob-
bery, Teara Rosario, and that such failure materially
prejudiced the petitioner’s case.2
A trial on the habeas petition was held on June 8 and
12, 2018. On December 28, 2018, the habeas court issued
a memorandum of decision in which it denied each of
the petitioner’s claims. Specifically, as to the first count,
the court concluded that the petitioner’s conflict of
interest claim was procedurally defaulted and that, even
if it were not, the petitioner had failed to demonstrate
that Romano had a conflict of interest. As to the second
count, the court agreed with the petitioner that Romano
was ineffective in not investigating the potentially
exculpatory witness but also found that ‘‘it would be
too speculative to assess whether the absence of [the
witness’] testimony at the criminal trial inured to the
petitioner’s prejudice.’’ Thereafter, the petitioner filed
a petition for certification to appeal from the judgment
denying his petition for a writ of habeas corpus. The
habeas court granted the petition for certification to
appeal. Additional facts will be set forth as necessary.
Before we turn to the petitioner’s claims, we briefly
set forth our standard of review for habeas corpus
appeals. ‘‘The habeas court is afforded broad discretion
in making its factual findings, and those findings will
not be disturbed unless they are clearly erroneous. . . .
Historical facts constitute a recital of external events
and the credibility of their narrators. . . . Accordingly,
[t]he habeas judge, as the trier of facts, is the sole arbiter
of the credibility of witnesses and the weight to be
given to their testimony. . . . The application of the
habeas court’s factual findings to the pertinent legal
standard, however, presents a mixed question of law
and fact, which is subject to plenary review.’’ (Citations
omitted; internal quotation marks omitted.) Gaines v.
Commissioner of Correction, 306 Conn. 664, 677, 51
A.3d 948 (2012).
I
The petitioner first claims that the habeas court erred
in concluding that his conflict of interest claim was
procedurally defaulted and that, even if it were not,
Romano did not have an actual conflict of interest that
rendered his representation ineffective. Although we
agree that the petitioner’s claim was not procedurally
defaulted, we also agree with the habeas court’s conclu-
sion that Romano did not have a conflict of interest.
The following additional facts are relevant to our
resolution of this claim. After he was arrested, the peti-
tioner was found to be indigent and initially a special
public defender was appointed for him. The petitioner’s
family retained Romano on February 27, 2010, to repre-
sent the petitioner in lieu of a special public defender.
The petitioner’s father signed a representation agree-
ment, agreeing to pay Romano a retainer of $25,000,
which included the trial fee, should the case proceed
to trial. The father also agreed that, ‘‘[i]f in the opinion
of [counsel], the services of experts or private investiga-
tors or the acquisition of medical, police, or other inves-
tigatory reports are necessary in defending [the peti-
tioner] in the abovementioned matter, I agree to pay
the additional costs and fees that may arise as a result
of securing these services.’’
On March 10, 2010, Romano filed a motion for
expenses pursuant to Ake v. Oklahoma, 470 U.S. 68, 87,
105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985),3 arguing that the
petitioner was indigent and that state funding of expert
witnesses was necessary in order to provide effective
assistance of counsel. Specifically, Romano claimed
that he needed a ballistics expert to challenge the state’s
firearms expert, a cell phone expert to challenge the
state’s cell phone expert, a psychologist or psychiatrist
to opine on the voluntariness of the petitioner’s state-
ments, and an independent medical examiner to deter-
mine the trajectory of the bullets. The court, Mullarkey,
J., conducted an evidentiary hearing over the course
of three days. Ultimately, the court denied the request
for expenses, concluding that Romano had failed to
make a sufficiently particularized showing of need for
the experts and that the petitioner’s indigency was vol-
untary.4 The court explained that, because the petition-
er’s family had decided to retain and pay Romano, the
petitioner was voluntarily indigent. The court recom-
mended that Romano pay for experts to review the case
using funds he already had received and consult with
the state’s experts, such as the state medical examiner,
before deciding if independent experts were necessary.
Additionally, before adjourning, the court specifically
instructed the petitioner that ‘‘the state will pay for all
experts that the Chief Public Defender’s office deter-
mines are necessary if you’re represented by the pub-
lic defender.’’
Prior to trial, on January 19, 2011, Romano filed an
amended motion for expenses, arguing again that the
petitioner was indigent and that experts were absolutely
necessary to his defense. After a hearing on the motion
held on February 8, 2011, the court, Espinosa, J., denied
the motion, finding that ‘‘[t]he [petitioner] had access
to a special public defender, with all of the advantages
and resources that the Office of the Public Defender
could provide. The [petitioner] knowingly and wilfully
rejected those services by having a private counsel file
an appearance in this case.’’ The court also recom-
mended that Romano consider spending a portion of
the fee that he received on experts and then subse-
quently seek reimbursement from the petitioner’s fam-
ily, pursuant to the provision in the retainer agreement.
On February 8, 2011, the petitioner moved to suppress
his statements made to the police, arguing that the
statements were tainted, as they were obtained as the
result of an arrest made without probable cause, and
were involuntary. Romano presented no expert testi-
mony to support the argument, nor did he argue specifi-
cally that the petitioner’s cognitive deficiencies affected
the voluntariness of the statements. The court denied
the motion, finding that the statements were made
knowingly and voluntarily. The introduction of evi-
dence at trial began on March 15, 2011. Romano did
not present any expert witnesses at trial.
A
The petitioner argues that the habeas court’s determi-
nation that his conflict of interest claim was procedur-
ally defaulted because he did not raise the claim at
trial or on direct appeal was improper. We agree with
the petitioner.
A habeas court’s conclusion that a petitioner’s claim
was in procedural default involves a question of law,
over which our review is plenary. Johnson v. Commis-
sioner of Correction, 285 Conn. 556, 566, 941 A.2d
248 (2008).
We begin with a review of the procedural default
rule. ‘‘Under the procedural default doctrine, a [peti-
tioner] may not raise, in a collateral proceeding, claims
that he could have made at trial or on direct appeal in
the original proceeding, unless he can prove that his
default by failure to do so should be excused.’’ (Internal
quotation marks omitted.) Cator v. Commissioner of
Correction, 181 Conn. App. 167, 199, 185 A.3d 601, cert.
denied, 329 Conn. 902, 184 A.3d 1214 (2018). Ordinarily,
if the state ‘‘alleges that a [petitioner] should be proce-
durally defaulted from now making the claim, the [peti-
tioner] bears the burden of demonstrating good cause
for having failed to raise the claim directly, and he must
show that he suffered actual prejudice as a result of
this excusable failure.’’ Hinds v. Commissioner of Cor-
rection, 151 Conn. App. 837, 852, 97 A.3d 986 (2014),
aff’d, 321 Conn. 56, 136 A.3d 596 (2016). This cause and
prejudice test derives from Wainwright v. Sykes, 433
U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), and
was held by our Supreme Court to be ‘‘the appropriate
standard for reviewability in a habeas corpus proceed-
ing of constitutional claims not adequately preserved
at trial because of a procedural default . . . .’’ Johnson
v. Commissioner of Correction, 218 Conn. 403, 409, 589
A.2d 1214 (1991); see also Jackson v. Commissioner
of Correction, 227 Conn. 124, 132, 629 A.2d 413 (1993)
(holding that ‘‘the Wainwright cause and prejudice
standard should be employed to determine the review-
ability of habeas claims that were not properly pursued
on direct appeal’’). The procedural default doctrine,
however, is limited to claims that could have been raised
at the trial level. See Hinds v. Commissioner of Correc-
tion, supra, 853.
Conflict of interest claims are a species of ineffective
assistance of counsel claims. See Santiago v. Commis-
sioner of Correction, 87 Conn. App. 568, 582, 867 A.2d
70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005)
(‘‘[w]here a constitutional right to counsel exists, our
[s]ixth [a]mendment cases hold that there is a correla-
tive right to representation that is free from conflicts
of interest’’). Our Supreme Court has explained that
ineffective assistance of counsel claims are generally
more appropriately resolved on collateral review:
‘‘Almost without exception, we have required that a
claim of ineffective assistance of counsel must be raised
by way of habeas corpus, rather than by direct appeal,
because of the need for a full evidentiary record for
such [a] claim. . . . Moreover, we have stated as our
preference that all of the claims of ineffective assis-
tance, those arguably supported by the record as well
as others requiring an evidentiary hearing, be evaluated
by the same trier in the same proceeding. . . . On the
rare occasions that we have addressed an ineffective
assistance of counsel claim on direct appeal, we have
limited our review to allegations that the defendant’s
sixth amendment rights had been jeopardized by the
actions of the trial court,5 rather than by those of his
counsel. . . . We have addressed such claims, more-
over, only where the record of the trial court’s allegedly
improper action was adequate for review or the issue
presented was a question of law, not one of fact requir-
ing further evidentiary development.’’ (Citations omit-
ted; emphasis in original; footnote added; internal quo-
tation marks omitted.) State v. Crespo, 246 Conn. 665,
687–88, 718 A.2d 925 (1998) (declining to review conflict
of interest claim on direct appeal), cert. denied, 525
U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999).
In State v. Navarro, 172 Conn. App. 472, 474, 160
A.3d 1116, cert. denied, 326 Conn. 910, 164 A.3d 681(2017), this court examined a conflict of interest claim
predicated on dual representation. In declining to
review the claim on direct appeal, this court stated that
the defendant’s ‘‘ineffective assistance [claim] should
be resolved . . . after an evidentiary hearing in the trial
court where the attorney whose conduct is in question
may have an opportunity to testify.’’ (Internal quotation
marks omitted.) Id., 491. The same need for testimony
applies to the present case. Romano never raised the
potential for a conflict of interest with the court, nor
did the court raise the issue on its own. As such, it was
not until the habeas trial itself that Romano explained
on the record specifically why he declined to pay for
experts using the retainer. Thus, we see no reason to
depart from our Supreme Court’s guidance that ineffec-
tive assistance of counsel claims are more appropriately
resolved on collateral review. We conclude that the
petitioner’s conflict of interest claim is not subject to
the procedural default doctrine and decline to apply
the Wainwright cause and prejudice test, as the record
on direct appeal was not adequate to review the claim.6
B
Having concluded that the petitioner’s claim is not
subject to procedural default, we proceed to consider
the merits of his conflict of interest claim. The petitioner
argues that Romano had an actual conflict of interest
‘‘because he had a personal financial incentive to not
retain and present the testimony of three experts once
the trial court denied his motion for state funding for
the cost of those experts.’’7 We are not persuaded.
We begin by setting forth the general legal principles
concerning conflicts of interest in the representation
of criminal defendants. ‘‘It is well established that the
sixth amendment to the United States constitution guar-
antees the right to effective assistance of counsel. . . .
Where a constitutional right to counsel exists, our
[s]ixth [a]mendment cases hold that there is a correla-
tive right to representation that is free from conflicts of
interest.’’ (Citations omitted; internal quotation marks
omitted.) State v. Vega, 259 Conn. 374, 386, 788 A.2d
1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L.
Ed. 2d 56 (2002).8
‘‘In a case of a claimed conflict of interest . . . in
order to establish a violation of the sixth amendment the
defendant has a two-pronged task. He must establish
(1) that counsel actively represented conflicting inter-
ests and (2) that an actual conflict of interest adversely
affected his lawyer’s performance. . . . Where there is
an actual conflict of interest, prejudice is presumed
because counsel [has] breach[ed] the duty of loyalty,
perhaps the most basic of counsel’s duties. Moreover,
it is difficult to measure the precise effect on the defense
of representation corrupted by conflicting interests.
. . . Accordingly, an ineffectiveness claim predicated
on an actual conflict of interest is unlike other ineffec-
tiveness claims in that the petitioner need not establish
actual prejudice.’’ (Emphasis in original; internal quota-
tion marks omitted.) Grover v. Commissioner of Cor-
rection, 183 Conn. App. 804, 813, 194 A.3d 316, cert.
denied, 330 Conn. 933, 194 A.3d 1196 (2018).
‘‘An actual conflict of interest is more than a theoret-
ical conflict. The United States Supreme Court has cau-
tioned that the possibility of conflict is insufficient to
impugn a criminal conviction. . . . A conflict is merely
a potential conflict of interest if the interests of the
defendant may place the attorney under inconsistent
duties at some time in the future. . . . To demonstrate
an actual conflict of interest, the petitioner must be
able to point to specific instances in the record which
suggest impairment or compromise of his interests for
the benefit of another party.’’ (Emphasis altered; inter-
nal quotation marks omitted.) Tilus v. Commissioner
of Correction, 175 Conn. App. 336, 349–50, 167 A.3d
1136, cert. denied, 327 Conn. 962, 172 A.3d 800 (2017);
see Cuyler v. Sullivan, 446 U.S. 335, 345–50, 100 S. Ct.
1708, 64 L. Ed. 2d 333 (1980). ‘‘Whether the circum-
stances of . . . counsel’s representation, as found by
the habeas court, amount to an actual conflict of inter-
est is a question of law [over] which our review is
plenary.’’ Shefelbine v. Commissioner of Correction,
150 Conn. App. 182, 193, 90 A.3d 987 (2014).
The petitioner claims that Romano breached his duty
of loyalty to him when Romano declined to use his
retainer to pay expert witness fees. Specifically, in his
brief, the petitioner states: ‘‘Here, counsel’s representa-
tion of the petitioner was materially limited because he
had a financial interest in not presenting the testimony
of these experts because he would have had to use his
retainer fee to pay for them. His financial interests were
inconsistent with the petitioner’s interests, who had an
interest in challenging the state’s evidence and mount-
ing a defense to these serious charges by way of presen-
tation of expert testimony on three important issues.’’
We can identify no Connecticut or federal authority
holding that counsel’s failure to apply funds from a
retainer agreement to the hiring of expert witnesses
creates a conflict of interest. This court previously has
found no conflict of interest where a fee agreement
provided for a fixed fee of $7500 for all work leading
up to trial and payment of $250 an hour with a $5000
retainer once the case was placed on the trial list. See
Grover v. Commissioner of Correction, supra, 183
Conn. App. 808, 814. The petitioner in Grover was
unable to pay the full trial retainer and, subsequently,
accepted a plea agreement. Id., 809. In his habeas peti-
tion the petitioner claimed ‘‘that [counsel] had a finan-
cial incentive to convince the petitioner to accept a
plea rather than proceed to trial due to the fact that the
petitioner was unable to pay [counsel’s] trial retainer
in full.’’ Id. This court declined to find a conflict of
interest, explaining that ‘‘[w]e do not agree that the
petitioner’s inability to pay the outstanding balance of
the trial retainer created such a conflict. According
to the testimony of [counsel], which the habeas court
credited in its entirety, although he was disappointed
that the trial retainer had not been paid in full, [counsel]
valued his professional reputation above any single fee.
He testified that his advice throughout the pendency
of the criminal case was based on his overall assessment
of the facts and not the financial situation of the peti-
tioner.’’ Id., 814–15. Moreover, this court has also con-
cluded that a $300,000 retainer for the entire representa-
tion, without regard to whether the case was resolved
by plea agreement or trial, does not represent an actual
conflict of interest. See Shefelbine v. Commissioner of
Correction, supra, 150 Conn. App. 193.
Federal courts have rejected conflict of interest
claims arising from fee agreements similar to the one
in the present case. In Williams v. Vasquez, 817 F. Supp.
1443, 1472 (E.D. Cal. 1993), aff’d sub nom. Williams v.
Calderon, 52 F.3d 1465 (9th Cir. 1995), cert. denied, 517
U.S. 1183, 116 S. Ct. 1588, 134 L. Ed. 2d 686 (1996), the
petitioner claimed that his trial counsel had a conflict
of interest because ‘‘he was placed in the position
whereby he had to personally pay for ancillary defense
services, or [forgo] the use of such services.’’ (Internal
quotation marks omitted.) Id. In rejecting this claim,
the District Court for the Eastern District of California
stated: ‘‘Although the [s]ixth [a]mendment guarantee of
effective assistance of counsel includes the collateral
right to counsel’s undivided loyalty . . . counsel’s duty
of loyalty does not impose an ancillary obligation to
personally finance his client’s defense investigation
and/or expert costs. In other words, no conflict of inter-
est existed. Counsel’s failure to financially support [the]
[p]etitioner’s defense does not constitute a violation
of his duty of loyalty or of [the] [p]etitioner’s [s]ixth
[a]mendment right to effective assistance of counsel.’’
(Citations omitted.) Id., 1473. In affirming the judgment
of the District Court, the Court of Appeals for the Ninth
Circuit observed: ‘‘The quality of such representation
might well improve if counsel were to volunteer to
place her private financial resources at [the] defendant’s
disposal. As the [D]istrict [C]ourt correctly noted, coun-
sel is under no obligation to do so.’’ Williams v. Calde-
ron, 52 F.3d 1465, 1473 (9th Cir. 1995), cert. denied,
517 U.S. 1183, 116 S. Ct. 1588, 134 L. Ed. 2d 686 (1996).
In Bonin v. Calderon, 59 F.3d 815, 827 (9th Cir. 1995),
the United States Court of Appeals for the Ninth Circuit
again considered a habeas petitioner’s claim that his
trial counsel had a conflict of interest because trial
counsel’s substitution as retained counsel deprived the
defendant of state funded investigators and expert wit-
nesses, thereby requiring counsel to pay for any investi-
gators or experts out of his own pocket. In rejecting
this claim, the court noted that ‘‘[t]his allegation of
conflict is . . . inadequate under Cuyler [v. Sullivan,
supra, 446 U.S. 335]. . . . [A]n assertion of conflict
based on the fact that payment for any investigation or
psychiatric services could have come from counsel’s
pocket [forcing] counsel to choose between [the cli-
ent’s] interests and his own . . . is the same theoretical
conflict that exists . . . in any pro bono or
underfunded appointment case. . . . While such
arrangements create a theoretical conflict of interest,
they do not typically create actual conflicts under
Cuyler.’’ (Citations omitted; internal quotation marks
omitted.) Id.In United States v. Stitt, 552 F.3d 345, 350 (4th Cir.
2008), cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L.
Ed. 2d 48 (2009), the petitioner argued that ‘‘under the
financial agreement between him and [counsel], [coun-
sel] was required to pay for all case-related expenses
out of his own pocket and that [counsel], not wishing
to incur the costs of an out-of-state investigator, thus
declined to pursue any investigation [out of state].’’
However, the United States Court of Appeals for the
Fourth Circuit noted that the District Court had made
the express factual finding, to the contrary, that counsel
‘‘were paid flat fees for their services, with costs and
expenses to be paid as they arose . . . . Petitioner’s
family agreed to raise the money for any additional costs
and expenses.’’ (Internal quotation marks omitted.) Id.,
351. After determining that this finding was not clearly
erroneous, the court concluded that a fee agreement
where counsel is paid a flat fee and must seek additional
costs and expenses from the petitioner’s family did not
represent an actual conflict. Id.
The petitioner in the present case asserts that Wil-
liams, Bonin, and Stitt are distinguishable because the
written fee agreement in the present case allowed
Romano to advance the funds for experts and then
pursue legal action against the petitioner’s family for
reimbursement. The petitioner’s effort to distinguish
Williams, Bonin, and Stitt on the ground that Romano
could bring an action for reimbursement is unpersua-
sive. The fact that there might be a theoretical path to
reimbursement does not create a conflict of interest
where otherwise one does not exist. Those cases stand
for the proposition that trial counsel has no obligation
to finance a defendant’s litigation costs and, further, is
under no obligation to put counsel’s private resources
at the defendant’s disposal. Advancing funds for experts
amounts to exactly that.
The petitioner relies heavily on State v. Cheatham,
296 Kan. 417, 292 P.3d 318 (2013), for the proposition
that ‘‘[a] fee agreement creates a conflict of interest
between a client and his attorney where the fee agree-
ment pits the attorney’s interest in getting paid against
those of the client.’’ In Cheatham, the Kansas Supreme
Court addressed the propriety of a flat fee arrangement
in a death penalty case and concluded that the agree-
ment in that case did constitute a conflict of interest.
Id., 453. However, the court stressed several key facts
that differentiate Cheatham from the present case.
First, counsel in Cheatham was not paid any fees before
the trial and thus operated under the presumption that
there was ‘‘little likelihood of any payment because [the
defendant] was indigent, which [counsel] knew.’’ Id.
Indeed, by the time of collateral proceedings, counsel
testified that he still was owed the $50,000 retainer. Id.,
451. Second, ‘‘[counsel], a solo practitioner with a ‘high
volume’ law practice requiring near daily court appear-
ances, [had] little financial incentive to invest the signifi-
cant time commitment a capital case requires.’’ Id., 453–
54. Additionally, we note that when counsel in
Cheatham took the case he was aware that the defen-
dant would not be able to pay for expenses or expert
witnesses. Id., 422. Ultimately, the court in Cheatham
characterized the representation as ‘‘[bearing] a greater
resemblance to a personal hobby engaged in for diver-
sion rather than an occupation that carried with it a
responsibility for zealous advocacy.’’ Id., 454. An unpaid
flat fee agreement in a death penalty case that incentiv-
izes an attorney to do no more than the minimum neces-
sary to secure a fee rather than seek acquittal is far
from the situation in the present case, in which a written
fee agreement placed the responsibility to pay for
experts and investigators squarely on the petitioner’s
family. We find Cheatham inapposite to the claimed
conflict of interest in the present case.
Given that this court has declined to find a conflict
of interest between a defendant and counsel in flat
fee cases, consistent with our holdings in Grover and
Shefelbine and the holdings in the federal case law cited
herein, we conclude that Romano did not have an actual
conflict of interest. The fee structure in the present case
is essentially the same fee structure that was present
in Stitt, for which the Court of Appeals for the Fourth
Circuit concluded there was no actual conflict of inter-
est. See United States v. Stitt, supra, 552 F.3d 351.
Further, an actual conflict of interest is more than a
theoretical conflict. The United States Supreme Court
has cautioned that ‘‘the possibility of conflict is insuffi-
cient to impugn a criminal conviction.’’ Cuyler v. Sulli-
van, supra, 446 U.S. 350. A conflict is merely ‘‘a potential
conflict of interest if the interests of the defendant may
place the attorney under inconsistent duties at some
time in the future.’’ (Emphasis in original; internal quo-
tation marks omitted.) Santiago v. Commissioner of
Correction, supra, 87 Conn. App. 589. In the present
case, there was a written fee agreement that clearly
delineated the financial arrangement involved in
Romano’s representation of the petitioner. The respon-
sibility to pay for experts and investigators was placed
squarely on the petitioner and his family. When they
defaulted on this obligation, counsel’s decision not to
advance funds for experts did not violate his duty of
loyalty or otherwise create a conflict of interest.9 We
therefore cannot conclude that Romano had an actual
conflict of interest.
Because we conclude that there was no actual con-
flict of interest between the petitioner and Romano, we
do not reach the second prong of the conflict of interest
analysis concerning whether the conflict of interest
adversely affected counsel’s performance.
II
The petitioner next claims that the habeas court
improperly concluded that he received effective assis-
tance of counsel. Specifically, the petitioner claims that
the habeas court correctly concluded that Romano’s
performance was deficient for failing to investigate a
potential witness, but that the court erred in concluding
that Romano’s failure to investigate the witness and to
present her testimony did not prejudice the petitioner’s
case. We do not agree.
The following additional facts are relevant to our
resolution of this claim. The petitioner testified at the
habeas trial that he did not have a gun with him on the
night of the shooting and that Dean ordered him at
gunpoint to participate in the robbery. He claimed that
he was ordered to pat down the victim, but that he did
not fire any shots. This testimony was contradicted by
the ballistics evidence presented at the criminal trial,
which suggested that there were bullets fired from two
different guns based on distinctive ballistic markings.
The petitioner contends that trial testimony from the
potential witness could have corroborated his version
of the events, namely, that he was acting under duress
when he participated in the robbery.
The petitioner testified at the habeas trial that there
was a woman, Rosario, in his car with him on the night
of the murder who witnessed the shooting. At the time,
he only knew the woman as ‘‘T.’’ He explained that he
saw the woman on the street that night and that,
because he had not seen her in four years, she got into
his car and joined him as they drove around Hartford.
After his arrest, the petitioner explained to the police
that he had picked up the woman earlier that night. He
told the police that she rode in the backseat of the car
to the location of the murder and was dropped off
afterward on Mather Street in Hartford. He described
the witness to the police as ‘‘half black and half Spanish
with a funny nose and a big forehead’’ with ‘‘shoulder
length’’ hair and mentioned that she hangs out at a
smoke shop on Mather Street, but he was not able to
provide her name. It was not until the petitioner was
incarcerated that he learned from another inmate that
the witness’ name is Teara Rosario.
The petitioner also testified at the habeas trial that
he had told Romano to find ‘‘T’’ and that she lived on
Marvin Street. Romano testified that he was aware of
the description of the woman in the police report and
that he and the petitioner had discussed the potential
witness. He considered the woman to be a potential
witness, but, due to the petitioner’s vague description
of her and lack of a name, he thought that it was doubtful
that an investigator would be able to locate the woman.
Romano testified at the habeas trial that he believed
that hiring a private investigator to find Rosario was
necessary and that he requested expenses to do so.
After his motion for expenses was denied, Romano
made no effort to locate the woman either personally
or through a private investigator. After learning of the
witness’ name while he was incarcerated, the petitioner
was able to hire a private investigator to locate Rosario
for the habeas trial. Rosario testified at the habeas trial
that she ran into the petitioner in Hartford on the eve-
ning of the shooting and got into his car. While she was
driving around with the petitioner, he received a ‘‘chirp’’
from Dean on his push-to-talk mobile phone. Rosario
heard Dean ask the petitioner to pick him up and give
him a ride. Rosario testified that there was no mention
of a robbery or plans to confront Dixon on this call.
The petitioner first drove to a house where Dean had
indicated that he was located. Upon determining that
Dean was not there, they drove for approximately ten
minutes and parked near a hotel, where Rosario saw
Dean standing near another car in which Dixon, the
victim, was seated in the driver’s seat. Dean started
walking toward the petitioner’s vehicle. Rosario testi-
fied that Dean had a gun but that the petitioner did not.
Dean opened the petitioner’s car door and ordered him
out of the car. Rosario then saw Dean and the petitioner
approach Dixon’s car, where Dean pointed his gun at
Dixon and said something to the petitioner. The peti-
tioner leaned into the car to pat down Dixon, then
stepped away from the car, at which point Dean started
shooting at Dixon. Although Rosario testified that only
Dean had a gun, at one point she also stated ‘‘[a]nd
then they just start shooting.’’10 Rosario stayed in the
petitioner’s car during the confrontation and could not
hear what was said between the three men. After the
petitioner and Dean ran back to the petitioner’s car,
Rosario asked to be dropped off.
Rosario was asked at the habeas trial ‘‘had the
defense attorney come and found you, would you have
testified at [the petitioner’s] trial and told this story?’’
She responded that she would have done so. However,
she also testified that she was aware that a crime had
been committed and had made no efforts to speak to
the police even after hearing that the petitioner had
been arrested, despite characterizing their relationship
as that of ‘‘good friends.’’ She then explained on redirect
that she did not go to the police because she did not
want to be involved, as she was afraid that she would
end up in jail or that the victim’s family or Dean’s family
could hurt her or her family.
The habeas court agreed that the petitioner provided
Romano with ‘‘very little useful information’’ that could
be used to locate the woman but ultimately ruled that
counsel’s representation was deficient because counsel
took no steps to locate her: ‘‘Hiring one or more . . .
expert witnesses can readily be distinguished from uti-
lizing an investigator to find and interview a potential
fact or eyewitness who is identified in the police report.
The police report placed an unknown woman (i.e., ‘T’)
inside the vehicle during the robbery and shooting. Rea-
sonably competent defense counsel would hire and uti-
lize an investigator to conduct an investigation that is
limited in scope: finding ‘T’ and discerning if she had
information that would assist the defense. The court
finds that . . . Romano was deficient for not utilizing
an investigator to locate . . . Rosario.’’
However, the court concluded that Romano’s failure
to investigate Rosario did not result in prejudice to the
petitioner. The court found that ‘‘she was not willing
to come forward and assist the defense at the time of
the trial for fear of the codefendant, Dean. Efforts by
counsel to locate . . . Rosario would not, therefore,
have likely resulted in her cooperating with the investi-
gation in a manner that assisted the defense.’’ Ulti-
mately, the habeas court determined that, ‘‘[a]lthough
this court has concluded that . . . Romano was defi-
cient for not utilizing an investigator to locate . . .
Rosario, it would be too speculative to assess whether
the absence of her testimony at the criminal trial inured
to the petitioner’s prejudice.’’
As a preliminary matter, we set forth the general
principles surrounding ineffective assistance of counsel
claims and our standard of review. ‘‘In Strickland v.
Washington, [466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984)], the United States Supreme Court estab-
lished 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
petitioner to show (1) that counsel’s performance was
deficient and (2) that the deficient performance preju-
diced the defense. . . . Unless a [petitioner] makes
both showings, it cannot be said that the conviction
. . . resulted from a breakdown in the adversary pro-
cess that renders the result unreliable. . . . Because
both prongs . . . must be established for a habeas peti-
tioner to prevail, a court may dismiss a petitioner’s
claim if he fails to meet either prong.’’ (Internal quota-
tion marks omitted.) Vazquez v. Commissioner of Cor-
rection, 128 Conn. App. 425, 430, 17 A.3d 1089, cert.
denied, 301 Conn. 926, 22 A.3d 1277 (2011).
As to the first prong, the habeas court found that
Romano’s representation was deficient because
Romano did not hire an investigator to locate and to
interview Rosario. The respondent, the Commissioner
of Correction, has not challenged this finding on appeal.
‘‘To satisfy the second prong of Strickland, that his
counsel’s deficient performance prejudiced his defense,
the petitioner must establish that, as a result of his
trial counsel’s deficient performance, there remains a
probability sufficient to undermine confidence in the
verdict that resulted in his appeal. . . . The second
prong is thus satisfied if the petitioner can demonstrate
that there is a reasonable probability that, but for that
ineffectiveness, the outcome would have been differ-
ent.’’ (Internal quotation marks omitted.) Horn v. Com-
missioner of Correction, 321 Conn. 767, 776, 138 A.3d
908 (2016).
‘‘In a habeas appeal, although this court cannot dis-
turb the underlying facts found by the habeas court
unless they are clearly erroneous, our review of whether
the facts as found by the habeas court constituted a
violation of the petitioner’s constitutional right to effec-
tive assistance of counsel is plenary.’’ (Internal quota-
tion marks omitted.) Griffin v. Commissioner of Cor-
rection, 119 Conn. App. 239, 241, 987 A.2d 1037, cert.
denied, 295 Conn. 912, 989 A.2d 1074 (2010). With the
foregoing principles in mind, we now address the merits
of the petitioner’s claim.
The petitioner claims that the court erred in conclud-
ing that Romano’s failure to investigate Rosario and to
present her testimony did not prejudice the petitioner’s
case. We are not persuaded. Because the court’s conclu-
sion was premised on a factual finding, we first apply
the clearly erroneous standard of review to that find-
ing.11 ‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed [on appeal] unless they are clearly errone-
ous. . . . Thus, [t]his court does not retry the case or
evaluate the credibility of the witnesses. . . . Rather,
we must defer to the [trier of fact’s] assessment of
the credibility of the witnesses based on its firsthand
observation of their conduct, demeanor and attitude.
. . . The habeas judge, as the trier of facts, is the sole
arbiter of the credibility of witnesses and the weight
to be given to their testimony. . . . Thus, the court’s
factual findings are entitled to great weight. . . . Fur-
thermore, [a] finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’’ (Citations omitted; internal quotation
marks omitted.) Orcutt v. Commissioner of Correction,
284 Conn. 724, 741–42, 937 A.2d 656 (2007).
The habeas court’s conclusion of no prejudice was
predicated on its finding that Rosario would not have
been willing to assist the defense at the time of the
trial. Although the petitioner stresses that Rosario
responded in the affirmative when asked if she would
have testified if approached by defense counsel, there
is sufficient support in the record to discredit her state-
ment. Even after characterizing her relationship with
the petitioner as that of ‘‘good friends’’ and unequivo-
cally stating that she witnessed Dean shoot the victim
and that she knew the petitioner had been arrested,
Rosario testified that she made no efforts to contact
the police to tell them what she had witnessed. The
following colloquy occurred on redirect examination
of Rosario:
‘‘Q. Miss Rosario, why didn’t you go to the police?
‘‘A. Because I didn’t want to be involved.
‘‘Q. Why not?
‘‘A. I have a life and children and I was pregnant. And
I didn’t know what possibly—what could happen. . . .
‘‘Q. Did you believe that someone could hurt you or
your family if you came forward in this case?
‘‘A. Yes. . . .
‘‘Q. Who were you afraid might hurt you or your
family?
‘‘A. The victim’s family or [Dean’s] family.’’
In arguing that the court’s factual finding is clearly
erroneous, the petitioner contends that ‘‘[t]he habeas
court ignored the distinction between Rosario not com-
ing forward independently, and Rosario coming for-
ward if she was approached by trial counsel and asked
to testify.’’ However, we agree with the respondent that
‘‘[t]he habeas court’s conclusion that the petitioner
failed to establish that Rosario would have presented
helpful testimony amounted to a discrediting of her
testimony that, if she had been located and called to
testify at the criminal trial, she would have testified in
the same manner as she testified at the habeas trial.’’
The habeas court’s finding that Rosario was not willing
to assist the defense at the time of the trial is an implicit
credibility finding. The habeas court was free to reject
her testimony that she would have testified at the peti-
tioner’s criminal trial as she did at the habeas trial. We
must assume that the habeas court carefully weighed
Rosario’s testimony that she would have cooperated if
approached by counsel against her testimony that she
was afraid to be involved, and found the former to be
not credible. ‘‘[A] pure credibility determination . . .
is unassailable.’’ Breton v. Commissioner of Correction,
325 Conn. 640, 694, 159 A.3d 1112 (2017); see also San-
chez v. Commissioner of Correction, 314 Conn. 585,
604, 103 A.3d 954 (2014) (‘‘[W]e must defer to the [trier
of fact’s] assessment of the credibility of the witnesses
based on its firsthand observation of their conduct,
demeanor and attitude. . . . The habeas judge, as the
trier of facts, is the sole arbiter of the credibility of
witnesses and the weight to be given to their testimony.’’
(Internal quotation marks omitted.)). Accordingly, we
cannot conclude that the habeas court’s factual finding
is clearly erroneous.
Having accepted the habeas court’s finding that Rosa-
rio would not have assisted the defense at the time of
trial, we agree with the habeas court’s ultimate conclu-
sion that Romano’s failure to investigate the potential
witness resulted in no prejudice to the petitioner’s
defense. We agree with the habeas court’s conclusion
that ‘‘it would be too speculative to assess whether the
absence of her testimony at the criminal trial inured to
the petitioner’s prejudice.’’ The petitioner cannot estab-
lish that there is a reasonable probability that the out-
come of his trial would have been different even if
Romano had investigated Rosario.12
Because we have concluded that the habeas court’s
ruling was proper pursuant to its credibility determina-
tion of Rosario, we decline to address the petitioner’s
claim that the habeas court erroneously found that
Rosario did not substantially corroborate the petition-
er’s version of events.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The second amended habeas petition included claims of conflict of inter-
est, ineffective assistance of trial counsel, a violation of due process, and
actual innocence. The habeas court denied all four counts. On appeal, the
petitioner challenges only the counts pertaining to conflict of interest and
ineffective assistance of counsel.
2
The petitioner alleged seventeen potential failures of trial counsel in the
second amended petition, but he advances only the failure to investigate
Rosario on appeal. The habeas court denied all seventeen allegations of
ineffective assistance.
3
In Ake v. Oklahoma, supra, 470 U.S. 86–87, the United States Supreme
Court held that, when an indigent defendant’s mental state at the time of
the offense is likely to be a significant factor at trial, due process requires
that a state provide access to a psychiatric expert to assist in preparing
a defense.
4
The petitioner has not challenged the indigency finding or the denial of
the motion for expenses.
5
Because the petitioner argues on appeal that the conflict of interest
arises from the conduct of Romano in not paying for experts himself, rather
than from the trial court’s findings of indigency and denial of the various
motions for funding for expert witnesses, we conclude that this exception
does not apply to the petitioner’s appeal.
6
In support of its assertion that the petitioner’s conflict of interest claim
is procedurally defaulted, the respondent, the Commissioner of Correction,
has also framed this claim as a failure to appeal from the denial of the
motions for ancillary expenses and the findings of indigency. Specifically,
the respondent argues that ‘‘[b]ecause the petitioner has presented no evi-
dence and argument to explain why he did not previously challenge the
trial court’s ruling on Romano’s request for ancillary funds, and has only
argued why he did not claim a conflict of interest at trial and on direct
appeal, he necessarily has failed to establish the requisite cause and prejudice
to excuse his procedural default.’’ The petitioner’s claim, however, is directed
not at the denial of the motions for ancillary expenses but rather at Romano’s
conduct in the aftermath of such denials. We conclude that the petitioner’s
failure to raise the trial courts’ indigency findings and denial of payment
for ancillary expenses in his direct appeal does not preclude the petitioner
from making a conflict of interest claim in a habeas corpus proceeding.
7
We note that the petitioner does not argue on appeal that his counsel’s
failure to call the experts constituted ineffective assistance.
8
The petitioner’s statement of issues and introductory portion of his
conflict of interest argument also aver that his rights under article first, §§ 8
and 9, of the constitution of Connecticut were violated. However, beyond
these cursory mentions, the petitioner’s brief does not contain any substan-
tive analysis of potential Connecticut constitutional violations. Accordingly,
we decline to review these claims. See State v. Buhl, 321 Conn. 688, 724,
138 A.3d 868 (2016) (‘‘We repeatedly have stated that [w]e are not required
to review issues that have been improperly presented to this court through
an inadequate brief. . . . Analysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure to brief the issue
properly.’’ (Internal quotation marks omitted.)).
9
As the respondent, the Commissioner of Correction, correctly points
out, if Romano unreasonably failed to investigate the petitioner’s case or
to present any expert witness at trial, the petitioner’s recourse would be to
claim, under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), that Romano rendered ineffective assistance of counsel.
In the present case, the petitioner made that claim only with respect to
Romano’s failure to locate and to call Rosario, the potential eyewitness.
10
Insofar as this statement suggests that there were two shooters, we
note that the petitioner describes this statement as a mistake, which is
amply supported by evidence in the record, as Rosario repeatedly testified
that Dean was the only person with a gun.
11
The petitioner, citing State v. Clark, 297 Conn. 1, 997 A.2d 461 (2010),
claims that ‘‘when a constitutional issue turns upon a factual finding, a
reviewing court must conduct a scrupulous examination of the record to
determine whether a lower court’s finding is supported by substantial evi-
dence.’’ Although Clark includes language supporting that statement, Clark
and the line of cases cited therein make it clear that the substantial evidence
standard applies to ‘‘review of a trial court’s findings and conclusions in
connection with a motion to suppress.’’ Id., 7; see State v. DeMarco, 311
Conn. 510, 519, 88 A.3d 491 (2014); State v. Burroughs, 288 Conn. 836, 843,
955 A.2d 43 (2008). Accordingly, we apply the well established definition
of clearly erroneous when evaluating the court’s factual findings.
12
We note that the petitioner claims that ‘‘the habeas court failed to
state and apply the correct prejudice standard—the ‘reasonable probability’
standard. . . . Nowhere in the habeas court’s decision . . . does it state
or apply the ‘reasonable probability’ standard.’’ We agree with the respondent
that the habeas court expressly stated that it was applying the prejudice
test from Strickland, which is the reasonable probability standard. The
habeas court appropriately and extensively discussed the relevant principles
from Strickland, as well as our Supreme Court’s ineffective assistance of
counsel jurisprudence as set forth in Gaines v. Commissioner of Correction,
supra, 306 Conn. 664. The mere fact that the habeas court did not use the
precise phrase ‘‘reasonable probability’’ in its conclusion regarding Rosario’s
testimony is insufficient to give us the impression that the court failed to
apply the appropriate standard, particularly where we have agreed with the
habeas court’s prejudice determination.