Mukhtaar v. Commissioner of Correction ( 2015 )

******************************************************
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.
******************************************************
ABDUL MUKHTAAR v. COMMISSIONER
OF CORRECTION
(AC 34193)
Beach, Sheldon and Dupont, Js.
Argued January 22—officially released July 7, 2015
(Appeal from Superior Court, judicial district of
Tolland, T. Santos, J.)
Abdul Mukhtaar, self-represented, with whom, on
the brief, were Michael D. Day and Robert J. McKay,
assigned counsel, for the appellant (petitioner).
Leon F. Dalbec, Jr., senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, Robin S. Schwartz, assistant state’s attorney,
and Gerard P. Eisenman, former senior assistant state’s
attorney, for the appellee (respondent).
Opinion
DUPONT, J. In this ‘‘habeas on a habeas’’ case, the
petitioner, Abdul Mukhtaar, appeals from the judgment
of the habeas court denying his third petition, as
amended, for a writ of habeas corpus. This third petition
is one in a labyrinth of petitions for a writ of habeas
corpus and amended habeas corpus petitions filed by
the petitioner. On appeal, the petitioner claims that the
habeas court erred when it concluded that his first
habeas counsel, Damon A. R. Kirschbaum, did not ren-
der ineffective assistance by failing to investigate (1) the
state’s case and witnesses; (2) a third-party culpability
claim; and (3) the petitioner’s alibi defense.1 We dis-
agree with the petitioner and, accordingly, affirm the
judgment of the habeas court.
The habeas court set forth the following factual his-
tory in its memorandum of decision. ‘‘At approximately
4 p.m. on February 14, 1996, Benjamin Sierra, Jr., was
driving his parents’ car on Fairfield Avenue in Bridge-
port. While stopped at a red light at the intersection
of Fairfield and Iranistan Avenues, Sierra spotted two
young women, Tracey Gabree and Terri Horeglad, with
whom he was acquainted, standing at a nearby pay
telephone. Sierra waved to Gabree and Horeglad and
they approached and entered Sierra’s car. Horeglad sat
in the front passenger seat and Gabree sat in the back
seat. Gabree asked Sierra for a cigarette. Sierra then
turned around and gave her a cigarette and a light. . . .
When Sierra turned back toward the front of the car,
he observed that his vehicle was blocked by a tan car
that was facing the wrong direction on Fairfield Avenue.
At that moment, Gabree shouted: ‘Oh shit, Kareem!’2
Gabree then fled from Sierra’s car. A man, later identi-
fied by Sierra and Gabree as the [petitioner], emerged
from the tan car and approached the passenger side of
Sierra’s car, where Horeglad remained seated. Sierra
jumped out of his car and asked the [petitioner] what
was wrong. The [petitioner], who did not respond,
pulled out what appeared to be a .32 or .38 caliber
chrome plated revolver and fired four shots at Horeglad,
each of which entered the right side of her body. Horeg-
lad died as a result of the gunshot wounds.’’ (Foot-
note added.)
The petitioner was charged and, following a jury trial,
convicted of murder in violation of General Statutes
§ 53a-54a. On September 19, 1997, the trial court sen-
tenced the petitioner to fifty years imprisonment. The
petitioner appealed from the judgment of conviction
directly to our Supreme Court and the conviction was
affirmed. State v. Mukhtaar, 253 Conn. 280, 750 A.2d
1059 (2000).
The petitioner filed his first petition for a writ of
habeas corpus on January 31, 2001, and subsequently
withdrew it on February 28, 2001. He filed his second
petition for a writ of habeas corpus on April 2, 2001,
and subsequently filed an amended petition on Decem-
ber 21, 2006 (second petition). In count one of the
second petition, the petitioner alleged ineffective assis-
tance of his trial counsel, Gerald Bodell. Specifically,
he alleged that Bodell rendered deficient performance
in (1) advising him not to testify at trial and (2) not
seeking additional investigation into the possibility of
juror bias. In count two, the petitioner alleged juror
bias. At the habeas trial on this second petition, the
petitioner was represented by his first habeas counsel,
Kirschbaum. Following this first habeas trial, the court
denied the second petition, and, thereafter, the petition-
er’s appeal following that denial was dismissed. Mukh-
taar v. Commissioner of Correction, 113 Conn. App.
114, 964 A.2d 1251, cert. denied, 291 Conn. 913, 969
A.2d 175 (2009).
The petitioner filed his third petition for a writ of
habeas corpus on January 14, 2008. This petition was
subsequently amended on September 8, 2010, (third
petition) and is the subject of this appeal. This third
petition alleged, inter alia, that the petitioner’s first
habeas counsel, Kirschbaum, provided ineffective assis-
tance during the petitioner’s first habeas trial. The peti-
tioner alleged that Kirschbaum had failed to adequately
(1) prosecute a claim that there had been juror intimida-
tion during the criminal trial; (2) investigate the petition-
er’s alibi that he was in New York when the crime
was committed; (3) present available witnesses and
evidence to support the petitioner’s contention that trial
defense counsel was ineffective; (4) present the issue
that the trial judge should have recused himself because
he had previously presided over the probable cause
hearing; (5) present a claim that the jury was not impar-
tial and that the jury instructions were faulty; (6) investi-
gate and present a claim that trial defense counsel failed
to properly investigate and present evidence to impeach
a witness’ identification of the petitioner; and (7) inves-
tigate the factual bases for the petitioner’s habeas
claims, present evidence in support of third-party culpa-
bility, and present available witnesses and establish the
petitioner’s defense to the criminal charge.
The matter was tried before the habeas court, T.
Santos, J., over the course of three days. The habeas
court heard testimony from Michael Johnston, William
Birch, Bridgeport police Detective Donald A. Jacques,
the petitioner, Suzanne Zitser-Curtis,3 and Kirschbaum.
On December 5, 2011, the habeas court issued a memo-
randum of decision denying the third petition, and, on
December 22, 2011, granted the petition for certification
to appeal. This appeal followed.
On appeal, the petitioner claims that the habeas court
erred when it concluded that Kirschbaum did not render
ineffective assistance of counsel. Specifically, the peti-
tioner argues that Kirschbaum was ineffective because
he failed to investigate the state’s case and witnesses,
the petitioner’s third-party culpability claim, and the
petitioner’s alibi defense.4
We begin by setting forth our well settled standard
of review governing ineffective assistance of counsel
claims. ‘‘In a habeas appeal, this court cannot disturb
the underlying facts found by the habeas court unless
they are clearly erroneous, but our review of whether
the facts as found by the habeas court constituted a
violation of the petitioner’s constitutional right to effec-
tive assistance of counsel is plenary.’’ (Internal quota-
tion marks omitted.) McClean v. Commissioner of
Correction, 103 Conn. App. 254, 262, 930 A.2d 693
(2007), cert. denied, 285 Conn. 913, 943 A.2d 473 (2008).
‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).’’ (Internal quotation marks omitted.) Santani-
ello v. Commissioner of Correction, 152 Conn. App.
583, 587, 99 A.3d 1195, cert. denied, 314 Conn. 937, 102
A.3d 1115 (2014). ‘‘In Strickland . . . the United States
Supreme Court established that for a petitioner to pre-
vail 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 perfor-
mance was deficient and (2) that the deficient perfor-
mance 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.
. . . Because both prongs . . . must be established for
a habeas petitioner to prevail, a court may dismiss a
petitioner’s claim if he fails to meet either prong. . . .
‘‘To satisfy the performance prong [of the Strickland
test] the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . [A]
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable pro-
fessional assistance; that is, the [petitioner] must over-
come the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy. . . .
‘‘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.’’ (Citations omit-
ted; internal quotation marks omitted.) Holloway v.
Commissioner of Correction, 145 Conn. App. 353, 364–
65, 77 A.3d 777 (2013). ‘‘A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.’’ Strickland v. Washington, supra, 466 U.S.
694.
‘‘[When] applied to a claim of ineffective assistance
of prior habeas counsel, the Strickland standard
requires the petitioner to demonstrate that his prior
habeas counsel’s performance was ineffective and that
this ineffectiveness prejudiced the petitioner’s prior
habeas proceeding. . . . [T]he petitioner will have to
prove that one or both of the prior habeas counsel, in
presenting his claims, was ineffective and that effective
representation by habeas counsel establishes a reason-
able probability that the habeas court would have found
that he was entitled to reversal of the conviction and a
new trial . . . .’’ (Emphasis omitted; footnote omitted.)
Harris v. Commissioner of Correction, 108 Conn. App.
201, 209–10, 947 A.2d 435, cert. denied, 288 Conn. 911,
953 A.2d 652 (2008). ‘‘Therefore, as explained by our
Supreme Court in Lozada v. Warden, 223 Conn. 834,
613 A.2d 818 (1992), a petitioner claiming ineffective
assistance of habeas counsel on the basis of ineffective
assistance of [trial] counsel must essentially satisfy
Strickland twice: he must prove both (1) that his
appointed habeas counsel was ineffective, and (2) that
his [trial] counsel was ineffective.’’ (Internal quotation
marks omitted.) Ham v. Commissioner of Correction,
152 Conn. App. 212, 230, 98 A.3d 81, cert. denied, 314
Conn. 932, 102 A.3d 83 (2014). ‘‘We have characterized
this burden as presenting a herculean task . . . .’’
(Internal quotation marks omitted.) Alterisi v. Commis-
sioner of Correction, 145 Conn. App. 218, 227, 77 A.3d
748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013).
We will now address each of the petitioner’s claims
of ineffective assistance individually, cognizant that in
order to set forth a prima facie case of ineffective assis-
tance of the petitioner’s first habeas counsel on the
ground of ineffective assistance of trial counsel, the
petitioner must set forth a prima facie case of ineffective
assistance of trial counsel. See Ham v. Commissioner
of Correction, supra, 230.
On appeal, the petitioner asserts, inter alia, that the
court improperly concluded that Kirschbaum did not
render ineffective assistance. Under this rubric, the peti-
tioner raises three claims. We will address each of these
claims in turn.
I
FAILURE TO INVESTIGATE
The petitioner first claims that the habeas court erred
when it concluded that Kirschbaum did not render inef-
fective assistance by failing to investigate the state’s
case and witnesses. Because the petitioner makes sev-
eral arguments in this regard, we will address each
in turn.
A
The petitioner’s first argument is that Kirschbaum
was ineffective as habeas counsel because he failed to
pursue or raise the deficiencies in the multiple state-
ments that Sierra gave to the police after the shooting.
Additionally, the petitioner argues that Kirschbaum ren-
dered ineffective assistance at the first habeas trial by
failing to claim that trial counsel’s performance was
deficient because trial counsel did not file a motion to
suppress a photographic array that the police showed
to Sierra.
We first note the following additional relevant facts,
which our Supreme Court outlined in its decision on
the petitioner’s direct appeal. During the petitioner’s
criminal trial, Sierra testified about the shooting. State
v. Mukhtaar, supra, 253 Conn. 299. He stated that he had
been interviewed by officers of the Bridgeport Police
Department after the incident. Id. The police officers
had shown him a photographic array and asked him
whether the photograph of the shooter appeared in
the array. Id. Sierra testified that he had selected the
petitioner’s photograph from the array, but insisted that
he had told the police that he was not certain about
the identification and that all he could say was that the
shooter looked similar to the person depicted in the
selected photograph. Id. Sierra also testified that he
had given the police a written, signed statement about
the shooting the day after the incident. Id.
According to the petitioner, however, Sierra gave a
written statement on the actual day of the shooting in
which he indicated that he did not get a good look at
the shooter’s face because he was ‘‘more interested in
the gun that was in his hand.’’ On the basis of this
assertion, the petitioner argues that Bodell, and there-
after Kirschbaum, should have investigated the discrep-
ancies among Sierra’s statements. He argues that if
Sierra had been properly investigated, the attorneys
would have found that Sierra’s statement and photo-
graphic identification were unreliable, and that a
motion to suppress the photographic array was war-
ranted during the criminal trial. The respondent, the
Commissioner of Correction, argues, however, that the
petitioner did not expressly raise this issue in his third
habeas petition and did not introduce any evidence at
the habeas hearing to support his claim. We agree with
the respondent.
At the habeas trial, the petitioner raised the issue of
Sierra’s statements in the context of his judicial impar-
tiality claim. Specifically, the petitioner alleged that
Kirschbaum was ineffective for failing to argue that
the trial judge should have recused himself because
he previously had presided over the probable cause
hearing during which Sierra testified regarding his state-
ments to police and his identification of the petitioner
in a photographic array. As to Sierra’s statements them-
selves, the petitioner argued broadly that Kirschbaum
failed to present available witnesses. In response to
this broad allegation, the habeas court found that ‘‘no
credible evidence was presented to substantiate the
claimed ineffective assistance of prior habeas counsel.’’
The habeas court held that the petitioner ‘‘neither
affirmatively proved deficient performance nor, assum-
ing such deficient performance, demonstrated to this
court that its confidence in the outcome of the criminal
jury trial should be undermined.’’
In the present appeal, the petitioner must show not
only that counsel’s performance was deficient, but also
that the deficient performance prejudiced the defense.
Even if we assume, arguendo, that Kirschbaum’s failure
to investigate Sierra satisfies the performance prong of
Strickland, the petitioner failed to present any evidence
showing that Sierra would have provided information
that would have been beneficial to the petitioner’s crimi-
nal trial or that, had a motion to suppress been filed,
the photographic array would have been suppressed.
The petitioner merely identifies discrepancies between
Sierra’s statement on the day of the shooting and his
statement and photographic identification on the day
after the shooting. Furthermore, Sierra was not called
to testify at the petitioner’s habeas trial. We conclude,
therefore, that the court properly concluded that the
petitioner failed to show both that Kirschbaum’s perfor-
mance was ineffective and that this ineffectiveness prej-
udiced the petitioner’s first habeas proceeding.
B
Next, the petitioner argues that in light of the circum-
stances surrounding Johnston’s testimony and state-
ment and Birch’s testimony and statement, the habeas
court should have made a finding that Bodell, as trial
counsel, was ineffective in his representation of the
petitioner and, in turn, should have found that Kirsch-
baum was ineffective for not pursuing or raising the
deficiencies in these witnesses’ testimony at the first
habeas trial.
The following additional facts, as described by the
habeas court in its memorandum of decision, are rele-
vant to our resolution of this claim. ‘‘The petitioner
presented testimony from Michael Johnston and Wil-
liam Birch, who both witnessed the shooting in Febru-
ary, 1996, nearly fifteen years prior to testifying in the
instant habeas corpus proceeding. According to the
petitioner, a central issue regarding Mr. Johnston’s iden-
tification of the shooter is the discrepancy between the
statement given to the police, which does not mention
the shooter’s hairstyle, and a subsequent statement
given in 2003, which indicates the shooter had his hair
styled in cornrows or dreadlocks. Mr. Johnston testified
before [the habeas] court that he only had a quick look
at the shooter’s hairstyle, but could not describe it well.
When asked if he could describe the shooter’s hairstyle,
Mr. Johnston indicated: ‘Not really, because I believe I
thought he had kind of longish hair, but he was also
wearing a hood and very baggy khaki clothing.’ Mr.
Johnston was then asked whether he recalled ‘saying
at some point that that person had cornrows or dread-
locks,’ to which he answered: ‘I don’t think it was dread-
locks more than he had short hair that looked like it
was—I don’t know how to explain it. It was short, and
it seemed to be some type of style . . . like tied in
knots or parted like.’ . . .
‘‘As to William Birch, the petitioner’s focus is on his
estimation of the shooter’s height as being approxi-
mately five feet, nine inches, which is slightly more
than other estimates provided by witnesses. For exam-
ple, Mr. Johnston’s statement to the police indicates
that the shooter was five feet, six inches, or five feet,
seven inches. Mr. Birch also testified that the police
did not seem particularly interested in obtaining a state-
ment from him because numerous people had come
forward to provide information, but on February 14,
1996, the day of the shooting, Mr. Birch provided a
statement to Detective Jacques accompanied by a dia-
gram of the crime scene.’’ (Citation omitted; foot-
notes omitted.)
In its memorandum of decision, the habeas court
found that the discrepancies that the petitioner was
focusing on would only have been inconsistencies that
the jury would have assessed and assigned weight to
along with other identifications and evidence. The court
concluded: ‘‘Had the testimonies of both Mr. Johnston
and Mr. Birch been impeached to a greater extent, or
even entirely excluded, the fact remains that other wit-
nesses such as Sierra and Gabree identified the peti-
tioner as the shooter.’’ In other words, the court held
that the testimony of Johnston and Birch was cumula-
tive. On the basis of the foregoing, the court concluded
that the evidence presented at the habeas trial failed
to undermine the court’s confidence in the outcome of
the criminal trial.
After a careful review of the record, we conclude
that the habeas court properly determined that the peti-
tioner failed to introduce any credible evidence that,
but for Kirschbaum’s failure to highlight discrepancies
in the testimony of Johnston and Birch, the outcome
of his first habeas trial would have been different and,
thus, that the petitioner failed to satisfy the prejudice
prong of Strickland.5
C
The petitioner makes two final claims with respect
to Kirschbaum’s failure to investigate the state’s case.
First, the petitioner argues that Kirschbaum should
have challenged Bodell’s failure to file a motion in
limine to preclude from evidence the ammunition box
found in the petitioner’s car and failure to retain a
fingerprint expert to examine the fingerprint found on
this box. In his principal brief to this court, the peti-
tioner asserted the following with respect to the state’s
evidence at his criminal trial: ‘‘After the shooting inci-
dent, Detective Richard Herlihy testified that he exam-
ined and photographed the cream colored car found
on Laurel Street. Detective Herlihy discovered a box
containing forty-four Blazer .38 caliber special bullets
in the glove box. The box normally holds fifty bullets.
A fingerprint was found on the box that matched the
petitioner, but there was no way of knowing when the
fingerprint was put on the box. Edward Jachimowicz,
a firearms expert at the state forensics laboratory, testi-
fied that when he compared the four bullets taken from
the body of Terry Horeglad to the bullets found in the
box of forty-four, he found that both sets of bullets
were the same caliber, but the bullets from the victim
were different from the bullets found in the box. Attor-
ney Bodell did not file a motion in limine to preclude
that box found in the cream colored car, nor did he
retain an expert to examine the fingerprint on the found
box of bullets.’’
In addition, the petitioner argues that Kirschbaum
failed to investigate the gunshot residue test that was
performed on Roderick McCoy, another suspect in the
shooting. In his principal brief to this court, the peti-
tioner asserts the following with respect to the evidence
at his criminal trial: ‘‘To demonstrate to the jury that
a gunshot residue test was conducted on Roderick
McCoy, the state presented two witnesses on rebuttal—
Detective Richard Donaldson, Bridgeport [Police
Department], and Dr. Virginia Maxwell, state forensics
laboratory. Detective Donaldson took a sample from
McCoy, and Dr. Maxwell tested the sample and found
no gunshot residue. Dr. Maxwell testified that she would
[not] have found any residue of a gunshot if the person
was wearing gloves and that the weather conditions
may influence [where] the residue would be deposited
other than the hand.’’
At oral argument before this court, the petitioner
admitted that no evidence was presented at the habeas
trial indicating that the fingerprint on the ammunition
box did not belong to him or that anything was ‘‘wrong’’
with the ammunition box. Furthermore, claims with
regard to the ammunition box and the gunshot residue
test were neither raised in the petitioner’s third petition
nor addressed in the habeas court’s memorandum of
decision. Consequently, we decline to review them. See
Velasco v. Commissioner of Correction, 119 Conn. App.
164, 166 n.2, 987 A.2d 1031, cert. denied, 297 Conn. 901,
994 A.2d 1289 (2010).
II
THIRD-PARTY CULPABILITY CLAIM
Next, the petitioner claims that Kirschbaum was inef-
fective because he failed to adequately investigate and
present a third-party culpability claim regarding McCoy.
The petitioner argues that Kirschbaum should have pre-
sented the third-party culpability claim demonstrating
ineffective assistance of trial counsel and that if he had,
there is a reasonable probability that the outcome of
the criminal trial and the first habeas trial would have
been different. We are not persuaded.
We begin our analysis of the petitioner’s claim by
setting forth the applicable legal principles. ‘‘It is well
established that a defendant has a right to introduce
evidence that indicates that someone other than the
defendant committed the crime with which the defen-
dant has been charged. . . . The defendant must, how-
ever, 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 committed the crime of which the
defendant is accused. . . .
‘‘The admissibility of evidence of third party culpabil-
ity is governed by the rules relating to relevancy. . . .
Relevant evidence is evidence having any tendency to
make the existence of any fact that is material to the
determination of the proceeding more probable or less
probable than it would be without the evidence. . . .
Accordingly, in 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: Such evidence
is relevant, exculpatory evidence, rather than merely
tenuous evidence of third party culpability [introduced
by a defendant] in an attempt to divert from himself
the evidence of guilt. . . . In other words, evidence
that establishes a direct connection between a third
party and the charged offense is relevant to the central
question before the jury, namely, whether a reasonable
doubt exists as to whether the defendant committed the
offense. Evidence that would raise only a bare suspicion
that a third party, rather than the defendant, committed
the charged offense would not be relevant to the jury’s
determination.’’ (Citations omitted; internal quotation
marks omitted.) State v. Arroyo, 284 Conn. 597, 609–10,
935 A.2d 975 (2007).
In the present case, McCoy was the individual identi-
fied as a potentially culpable third party. McCoy was
detained following the February 14, 1996 shooting but
was ultimately released. During the habeas trial, the
petitioner testified that he had asked Bodell to investi-
gate McCoy during the underlying criminal trial and
had asked Kirschbaum to investigate McCoy in prepara-
tion for the first habeas trial, but neither of them acqui-
esced in this request. The petitioner testified that he
told Kirschbaum: ‘‘Mr. McCoy was a material witness.
He witnessed the crime. The police even have in their
police reports that a witness by the name of Mr. Lindy
(phonetic) identified Mr. McCoy as going to the car that
was used in the killing. The police pulled Mr. McCoy
off the city bus, brought him back to the scene of the
crime, and the witnesses, supposedly they identify him.
Mr. McCoy was brought to the police station, given an
atomic absorption, a gunpowder residue test. He gave
testimony or whatever to the police. Gunpowder resi-
due test came back negative and they let him go. They
let him go.’’
Next, the respondent elicited testimony from Kirsch-
baum regarding his investigation into the third-party
culpability issue. Kirschbaum testified: ‘‘My recollection
is that [McCoy] was the only possible third party culpa-
bility witness. I could be wrong about that, but I also
recall talking to [the petitioner] about that issue, and I
recall thinking about that issue, and the problem [was]
that I didn’t see how to use it as a third party culpability
defense, and I had information, and if it’s the person
I’m thinking of, and it might not be because it’s been
awhile, that there was someone that was found going,
trying to get into cars on a street that was nearby that
may have been a street where the car that the shooter
was in had gone to, and it did not seem like a particularly
compelling third party culpability defense in that just,
mechanically, it didn’t sort of make sense.’’ Kirschbaum
further testified: ‘‘It certainly was a decision that I made
and the type of decision that lawyers make, whether
it’s strategic—whether it was a good strategy or not, I
don’t know, but I mean it was certainly—it was a law-
yer—a decision that I would make as a lawyer.’’ On
cross-examination by the petitioner, Kirschbaum
acknowledged that the petitioner had asked him to con-
tact McCoy and stated that he had no recollection of
asking his investigator to contact or investigate McCoy.
In the memorandum of decision following the habeas
trial, the court held: ‘‘[A]s to the allegations that Mr.
Kirschbaum failed to . . . present evidence in support
of third party culpability . . . the court finds that no
credible evidence was presented to substantiate the
claimed ineffective assistance of prior habeas counsel.
The petitioner neither affirmatively proved deficient
performance nor, assuming such deficient perfor-
mance, demonstrated to this court that its confidence
in the outcome of the criminal jury trial should be
undermined.’’
On the basis of our review of the record, we find
reasonable the habeas court’s conclusion that the peti-
tioner failed to affirmatively prove that Kirschbaum’s
failure to investigate the third-party culpability claim
constituted ineffective assistance of counsel. As to the
performance prong of Strickland, the petitioner has
not demonstrated that Kirschbaum’s decision not to
investigate a third-party culpability claim involving
McCoy was anything other than sound trial strategy.
In reviewing ineffective assistance of counsel claims,
‘‘[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 unsuc-
cessful, 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 distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inher-
ent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance;
that is, the [petitioner] must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy.’’ (Internal quo-
tation marks omitted.) Smith v. Commissioner of Cor-
rection, 148 Conn. App. 517, 526–27, 85 A.3d 1199, cert.
denied, 312 Conn. 901, 91 A.3d 908 (2014).
Here, Kirschbaum opined that he did not think it was
a particularly compelling third-party culpability defense
in that it ‘‘just, mechanically, it didn’t sort of make
sense.’’ He testified that not investigating McCoy or
presenting him as a witness in the first habeas trial was
a decision that he made ‘‘as a lawyer.’’ The habeas
court reasonably concluded that the petitioner had not
overcome the presumption that Kirschbaum’s conduct
fell within the wide range of reasonable professional
assistance, and the habeas court properly determined
that habeas counsel’s performance was not deficient.
Moreover, as to the prejudice prong of Strickland,
the petitioner has failed to present evidence showing
that McCoy had any connection to the shooting. As
stated previously, ‘‘[t]he defendant must . . . 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 committed the crime of which the defendant is
accused.’’ (Internal quotation marks omitted.) State v.
Arroyo, supra, 284 Conn. 609. Accordingly, the peti-
tioner has not established that he was prejudiced by
Kirschbaum’s actions.
For the foregoing reasons, we conclude that the
habeas court properly concluded that Kirschbaum did
not render ineffective assistance when he failed to
investigate a third-party culpability claim.
III
ALIBI DEFENSE
In his final claim, the petitioner argues that he was
denied the effective assistance of trial counsel and,
thereafter, habeas counsel, because both Bodell and
Kirschbaum failed to investigate and present an alibi
defense at the criminal trial and at the first habeas trial.
We are not persuaded.
The following testimony, presented at the habeas
trial, is relevant to our resolution of this claim. The
petitioner testified that he had two alibis for his where-
abouts when the shooting took place on February 14,
1996. The first alibi was that he was visiting his sister
in New Jersey. The second was that he was in New York
buying cocaine to bring back and sell in Bridgeport. The
petitioner further testified that he knew his sister would
not support his first alibi, which was that he was in
New Jersey at the time of the shooting. Thereafter,
Kirschbaum testified that although the petitioner had
told him about the second alibi, ‘‘it was a difficult issue
to investigate . . . .’’ Specifically, Kirschbaum testi-
fied: ‘‘I do remember that there was an issue of whether
there were video cameras at the train station, and
whether there was still videotape and whether we could
recover that, and I specifically recall having my investi-
gator do that and her reporting to me that—that there
was no such videotape available, so I think that is
related to the—the trip to New York. I remember talking
to [the petitioner] about that, and my—about additional
evidence of, you know, people to go find to corroborate
that he was in New York working on this drug deal,
and I don’t have any specific recollection of anyone
being interviewed, located or interviewed.’’
After hearing testimony and reviewing the exhibits,
the court issued a memorandum of decision detailing
the evidence that had been presented at the habeas trial
regarding the petitioner’s alibi. The court stated: ‘‘Mr.
Kirschbaum testified that the only alibi defense the
petitioner had apprised trial defense counsel of was the
petitioner being with his sister in New Jersey, and it
turned out that the sister did not support his alibi. The
petitioner testified during the first habeas corpus pro-
ceeding that he had another alibi, one that stood in
conflict with the previously asserted alibi his sister was
to provide, in that he was in New York for a drug deal.
The petitioner had apprised Mr. Kirschbaum of this
second alibi, and former habeas counsel spoke with his
investigator. According to Mr. Kirschbaum, the second
alibi was difficult to investigate, but was investigated
to the extent possible given the information provided
by the petitioner, and therefore remained unsubstanti-
ated.’’ The habeas court concluded: ‘‘Given the forego-
ing, the petitioner failed to prove both deficient
performance and the required prejudice. The second
alibi was investigated but not substantiated. Addition-
ally, the petitioner has not affirmatively shown that the
second alibi defense that he was in New York when
the murder was committed has any merit.’’
In this appeal, the petitioner claims that Bodell and
Kirschbaum were ineffective in failing to further investi-
gate an alibi defense.6 In his principal brief, the peti-
tioner alleges that the only thing Bodell did to present
his alibi defense was put his father, Ahab Testman, on
the witness stand at the criminal trial. According to the
petitioner, Testman testified at the criminal trial that
he gave his son a ride to the train station on February
14, 1996, the day of the shooting, and the petitioner
returned one week later. The petitioner claims that
Bodell was ineffective in not further investigating his
alibi claim and, specifically, in not investigating and
discovering the location where the petitioner’s train
traveled to and the date and time of travel. Furthermore,
the petitioner claims that Kirschbaum was ineffective
in failing to make any further investigation in prepara-
tion for the first habeas trial.
Concluding that ‘‘the petitioner has failed to prove
both deficient performance and the required prejudice,’’
the habeas court credited Kirschbaum’s testimony at
the habeas trial. Kirschbaum testified that the second
alibi was difficult to investigate but was investigated
to the extent possible, given the information provided
to him. ‘‘The reasonableness of an investigation must
be evaluated not through hindsight but from the per-
spective of the attorney when he was conducting it.
. . . [T]here is a strong presumption that the trial strat-
egy employed by a criminal defendant’s counsel is rea-
sonable and is a result of the exercise of professional
judgment . . . .’’ (Internal quotation marks omitted.)
Burgos-Torres v. Commissioner of Correction, 142
Conn. App. 627, 639, 64 A.3d 1259, cert. denied, 309
Conn. 909, 68 A.3d 663 (2013). Although the petitioner
claims that he was in New York at the time of the
shooting, he did not offer testimony at his habeas trial
of any individuals or any evidence that could corrobo-
rate this. As a result, he cannot demonstrate, as he
must, that Kirschbaum’s representation fell below an
objective standard of reasonableness or that Kirsch-
baum’s alleged deficient performance prejudiced the
petitioner’s defense. Accordingly, we find reasonable
the habeas court’s conclusion that the petitioner failed
to prove both deficient performance and the required
prejudice with regard to his alibi defense.
Having carefully reviewed the issues raised by the
petitioner, we conclude that the habeas court did not
err when it concluded that Kirschbaum did not render
ineffective assistance.
The judgment is affirmed.
In this opinion the other judges concurred.
1
At oral argument before this court, the petitioner conceded that the only
issue raised in this appeal relates to the failure of Kirschbaum to render
effective assistance of counsel. The hearing on the present habeas petition
was held by the habeas court, T. Santos. J., and it is that court’s judgment
that is the subject of this appeal.
2
At oral argument before this court, the petitioner stated that his nickname
is ‘‘Kareem’’ and that Gabree knew of the petitioner because she said she
had purchased drugs from him.
3
In his third petition, the petitioner refers to his appellate counsel as
‘‘Susan Zitser.’’ At the habeas trial, however, she spelled her name for the
record as ‘‘Suzanne Zitser-Curtis.’’ Therefore, we will refer to her as her
name appears on the record.
4
The petitioner failed to reiterate several claims on appeal that he had
raised in his third habeas petition. In particular, the petitioner failed to
include in his briefing the following allegations against Kirschbaum: (1)
failure to present the jury intimidation issue and present testimony from
appellate counsel; (2) failure to present the issue that the trial judge should
have recused himself because he had previously presided over the probable
cause hearing; and (3) failure to present a claim that the jury was not
impartial and that the jury instruction was faulty. Additionally, the petitioner
failed to include three additional counts in his brief that had been alleged
in the third petition. Specifically, these three counts alleged: (1) that the
petitioner’s trial counsel provided ineffective assistance of counsel; (2) that
the petitioner’s appellate counsel, Suzanne Zitser-Curtis, provided ineffective
assistance of counsel; and (3) actual innocence. The petitioner has not
addressed any of the foregoing arguments in his brief to this court, and,
therefore, they are deemed abandoned. See Atkinson v. Commissioner of
Correction, 125 Conn. App. 632, 636 n.5, 9 A.3d 407 (2010), cert. denied,
300 Conn. 919, 14 A.3d 1006 (2011).
5
Along with his claims about Sierra, Johnston, and Birch, the petitioner
claims in his principal brief to this court that there were circumstances
surrounding the testimony of Gabree and Sheriff Michael Gariano that should
have made both Bodell and Kirschbaum conduct further investigation. The
petitioner did not raise these specific claims in his third petition, and they
were not addressed in the habeas court’s memorandum of decision. There-
fore, we decline to review them. See Velasco v. Commissioner of Correction,
119 Conn. App. 164, 166 n.2, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994
A.2d 1289 (2010).
6
In his principal brief to this court, the petitioner does not make it clear
which alibi he is referring to, as his alibis have continued to evolve from
his criminal trial to his second habeas trial. He simply alleges in the brief
that his trial counsel and habeas counsel did not investigate his ‘‘alibi claim
. . . .’’ For purposes of our analysis, we will analyze his first alibi and his
second alibi together as one alibi defense.