Sinchak v. Commissioner of Correction , 173 Conn. App. 352 ( 2017 )

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ANTHONY SINCHAK v. COMMISSIONER
OF CORRECTION
(AC 37363)
Lavine, Sheldon and Flynn, Js.
Argued November 17, 2016—officially released May 23, 2017
(Appeal from Superior Court, judicial district of
Tolland, Swords, J. [judgment]; Mullins, J. [judgment].)
Michael W. Brown, assigned counsel, for the appel-
lant (petitioner).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Maureen
Platt, state’s attorney, and Eva B. Lenczewski, supervi-
sory assistant state’s attorney, for the appellee
(respondent).
Opinion
SHELDON, J. The petitioner, Anthony Sinchak,
appeals from the judgment of the habeas court, denying
his fifth amended petition for a writ of habeas corpus
in this action, wherein he challenges the lawfulness of
his conviction of murder and kidnapping in the first
degree, which was rendered against him after a jury
trial in the judicial district of Waterbury in 1995. On
appeal, the petitioner claims that the habeas court erred
in rejecting his claims that: (1) his due process rights
were violated at his underlying criminal trial because
the jury’s guilty verdict was against the weight of the
evidence; (2) he was deprived of effective assistance
of counsel in the underlying criminal trial by the failure
of his trial counsel, Michael Graham, to marshal the
facts in his favor during closing argument and to move,
after the verdict, for a judgment of acquittal on each
charge of which he was found guilty on the ground that
the jury’s guilty verdict was against the weight of the
evidence; (3) he was deprived of effective assistance
of counsel on direct appeal from his underlying convic-
tion by the failure of his appellate counsel, Pamela S.
Nagy, to raise his weight of the evidence claims as
grounds for reversing the conviction; and (4) he was
deprived of effective assistance of counsel in a prior
habeas corpus proceeding, in which he challenged the
lawfulness of the same underlying conviction by the
failure of his prior habeas counsel, Donald J. O’Brien,
to raise the previously described clams of ineffective
assistance of both trial and appellate counsel as grounds
for obtaining relief in that proceeding. We affirm the
judgment of the habeas court.
The following facts and procedural history are rele-
vant to the petitioner’s claims on appeal. On July 27,
1992, the victim, Kathleen Gianni, was working as a
bartender at the Freight Street Social Club (social club),
an illegal after-hours social club in Waterbury. The
social club was jointly owned by Gianni’s close friend,
Jo Orlandi, and Dennis O’Connor, the president of the
Helter Skelter Motorcycle Club (motorcycle club), of
which the petitioner was a member. Dennis O’Connor’s
brother, Terrence O’Connor, who also was a motorcycle
club member, worked as a doorman at the social club.
State v. Sinchak, 47 Conn. App. 134, 136, 703 A.2d 790
(1997), appeal dismissed, 247 Conn. 440, 721 A.2d 1193
(1999), cert. denied, 319 Conn. 926, 125 A.3d 201 (2015).
Gianni had only recently returned to work at the
social club, at the urging of Orlandi, following a brief,
self-imposed absence arising from her fear of retaliation
by members of the motorcycle club after she gave a
statement to police concerning a July 12, 1992 incident
between the motorcycle club and the Los Solidos gang,
following which seven motorcycle club members,
including Dennis O’Connor, were arrested.
As described by this court in its decision affirming
the petitioner’s underlying conviction on direct appeal,
Orlandi and Gianni opened the social club for business
at approximately 1 a.m. on July 27, 1992, after the motor-
cycle club had ‘‘held a barbecue fund-raiser to raise
bail money for some incarcerated bikers. Both Orlandi
and the [petitioner] attended the barbecue. The [peti-
tioner] was accompanied by his girlfriend, Laura Ryan.
. . . A number of people visited the [social] club that
morning, including the [petitioner], Ryan, Terrence
O’Connor and several other motorcycle club members.
Also at the club that morning were Michael Lambo and
James Palomba.
‘‘The [petitioner] and Ryan remained in the back
office when Orlandi began to lock the front doors of
the club. The [petitioner] walked out from the back
office and fired a shot at Gianni, who was standing
behind the far end of the bar. The [petitioner] threat-
ened Orlandi and Ryan with the gun, stating that he
could not allow any witnesses to the shooting and then
fired several more shots at Gianni who lay on the floor
behind the bar moaning and gasping. After the [peti-
tioner] fired the final, fatal shot, he grabbed Orlandi
and Ryan, placed the gun to their heads and announced
that the three of them were going to leave the club and
stay together until the whole incident was straight-
ened out.
‘‘The three then went from the club to the Torrington
residence of Lisa Fruin, the mother of the [petitioner’s]
infant son. Once at Fruin’s residence, the [petitioner]
disassembled the gun and ordered Fruin to dispose of
the gun parts in a nearby dumpster. The [petitioner]
disposed of the clothes that he had been wearing when
he shot Gianni. The [petitioner] forced Ryan and Orlandi
to remain with him and tied a bell to Orlandi’s ankle
while she slept so that he could hear if she attempted
to escape.
‘‘Around noon the next day, the [petitioner] allowed
Orlandi to leave, but ordered Ryan to stay with her for
at least twenty-four hours. Orlandi returned home with
Ryan and they remained there until approximately 4
p.m. the next day. At that time, Ryan left Orlandi’s home
with Dave Martorelli, another motorcycle club member.
That night, the [petitioner] and Martorelli disposed of
Gianni’s body and attempted to burn down the club.
‘‘For the next several days, Orlandi denied any knowl-
edge of Gianni’s disappearance. On July 29, 1992,
Orlandi opened the club at the request of the police,
where evidence of the attempted arson and signs of the
violence were discovered. The next day, Orlandi fled
to Long Island, but ultimately returned to Connecticut
and gave several statements to the police detailing the
murder.’’ State v. Sinchak, supra, 47 Conn. App. 136–38.
On April 21, 1995, following a jury trial at which the
foregoing evidence was presented, the petitioner was
found guilty of murder in violation of General Statutes
§ 53a-54a and two counts of kidnapping in the first
degree in violation of General Statutes § 53a-92 (a) (2)
(B). Sinchak v. Commissioner of Correction, 126 Conn.
App. 684, 685, 14 A.3d 343 (2011). The petitioner was
later sentenced on those charges to a total effective
term of ninety-six years in prison.1 This court affirmed
the petitioner’s conviction on direct appeal. State v.
Sinchak, supra, 47 Conn. App. 136.2
The petitioner subsequently commenced three
habeas corpus actions challenging the lawfulness of his
conviction. ‘‘On July 26, 2000, and July 3, 2001, the
petitioner filed two separate pro se petitions for a writ
of habeas corpus, which the habeas court consolidated
for trial.’’ Sinchak v. Commissioner of Correction, 126
Conn. App. 670, 672, 14 A.3d 348, cert. denied, 301 Conn.
901, 17 A.3d 1045 (2011). The consolidated petitions
alleged that the petitioner had been deprived of effec-
tive assistance of counsel in his underlying criminal
trial in several ways not claimed in the instant appeal.3
Id. On June 29, 2007, the habeas court, Swords, J., issued
a memorandum of decision denying the consolidated
petitions. Id. The petitioner then petitioned for certifica-
tion to appeal from the habeas court’s judgment, which
the habeas court also denied. Id. This court ultimately
dismissed the petitioner’s appeal from the habeas
court’s denial of the consolidated petitions. Id., 671.
On July 25, 2007, while the petitioner’s appeal from
the denial of the consolidated petitions was still pend-
ing, he commenced this action. In his original petition
for a writ of habeas corpus herein, the petitioner alleged
that he had received ineffective assistance of counsel
in his prior habeas corpus proceeding. Sinchak v. Com-
missioner of Correction, supra, 126 Conn. App. 685.
Because, however, the petitioner’s appeal from the
denial of relief in that proceeding was still pending at
the time he commenced this action, the habeas court,
Swords, J., concluded that his claims in this action were
‘‘premature.’’ Id., 686. On that basis, the court dismissed
this action, sua sponte, for lack of subject matter juris-
diction. Id. The court thereafter granted the petitioner’s
petition for certification to appeal from its judgment of
dismissal. Id.
On the petitioner’s ensuing appeal from the habeas
court’s judgment of dismissal in this action, this court
reversed that judgment on the ground that the habeas
court improperly failed to appoint counsel for the peti-
tioner after his original petition herein was docketed.
Id., 692. On that basis, we remanded this case to the
habeas court for further proceedings on the merits of
the petitioner’s claims. Id.
Before this action was brought to trial on remand, the
petitioner filed several amended petitions expanding its
substantive scope.4 The action was ultimately tried on
the petitioner’s fifth amended petition, filed January 3,
2014 (operative petition), in which he pleaded that: (1)
his due process rights were violated in his underlying
criminal trial because the jury’s guilty verdict was
against the weight of the evidence; (2) his trial counsel
rendered ineffective assistance in the underlying trial
by failing ‘‘adequately [to] marshal . . . facts during
. . . closing argument’’ and failing to ‘‘file a motion for
judgment of acquittal’’ on the ground that the jury’s
guilty verdict was against the weight of the evidence;
(3) his appellate counsel rendered ineffective assistance
on direct appeal from his underlying conviction by fail-
ing to raise his weight of the evidence claims as grounds
for reversing the conviction; and (4) his prior habeas
counsel rendered ineffective assistance in the prior
habeas corpus proceeding by failing to raise either his
weight of the evidence claims or his previously
described claims of ineffective assistance of trial and
appellate counsel as grounds for relief in that pro-
ceeding.
In his return to the petitioner’s operative petition
dated January 14, 2014, the respondent, the Commis-
sioner of Correction, pleaded two special defenses.5 His
first special defense, which was pleaded only as to
the first count of the operative petition, was that the
petitioner had procedurally defaulted on his due pro-
cess claim that the jury’s guilty verdict was against
the weight of the evidence. In support of that special
defense, the respondent alleged that the petitioner had
failed to raise his due process claim at his underlying
criminal trial or on direct appeal from his underlying
conviction, and that the petitioner could not establish
sufficient cause for his procedural default or prejudice
arising from it to excuse such default and permit review
of the defaulted claims for the first time in this proceed-
ing. The second special defense, which was separately
pleaded as to each count of the petition, was that the
claim therein pleaded was not a claim upon which relief
could be granted in a habeas corpus proceeding
because, under our case law, specifically State v. Grif-
fin, 253 Conn. 195, 199–202, 749 A.2d 1192 (2000), the
weight of the evidence claim on which it was based
could only be assessed by the trial judge who had pre-
sided over the trial where the challenged verdict was
returned.
The petitioner replied to the respondent’s first special
defense in a pleading dated January 15, 2014, by plead-
ing in avoidance that if his due process claim was proce-
durally defaulted, the procedural default was cured by
cause and prejudice, in that he had received ineffective
assistance of counsel in each prior proceeding where
his defaulted claim could have been raised. The peti-
tioner denied the respondent’s second special defense,
but pleaded, in the alternative, that if our law supported
that special defense, ‘‘the law should be changed.’’
After a two day trial, the habeas court, Mullins, J.,
denied the petitioner’s operative petition for a writ of
habeas corpus. In so doing, the court first ruled that
the petitioner had procedurally defaulted on his weight
of the evidence claims by failing to raise them either
at trial or on direct appeal. Thereafter, it ruled that
the petitioner could not lift the bar to review of those
procedurally defaulted claims by proving cause and
prejudice based upon alleged ineffective assistance by
trial or appellate counsel in failing to raise them
because, as the respondent had pleaded in his second
special defense, the habeas court itself was not legally
competent to assess or make rulings as to the probable
merits of those claims. In support of that ruling, the
court determined, more particularly, that in order to
establish either prong of ineffective assistance of coun-
sel based upon the failure of his counsel to raise the
petitioner’s weight of the evidence claims either at trial
or on direct appeal, the petitioner was required to estab-
lish that there was a reasonable probability that he
would have prevailed on those claims had counsel
timely raised them. Because, however, under Griffin,
only the judge who presided over the trial where a
challenged verdict was returned is legally competent
to decide if that verdict was against the weight of the
evidence, a judge in a later proceeding, such as a direct
appeal or a habeas corpus proceeding, is not legally
competent to decide such a claim on the basis of the
cold printed record before it. State v. Griffin, supra, 253
Conn. 202. The court therefore ruled that the petitioner
could not establish ineffective assistance of either trial
or appellate counsel because the court itself could not
decide whether he was likely to prevail on his weight
of the evidence claim had counsel raised it at either his
underlying criminal trial or on direct appeal from his
underlying conviction.
For the latter reason as well, the court rejected the
petitioner’s separate claims of ineffective assistance of
trial, appellate and prior habeas counsel, based upon
their respective failures to raise his weight of the evi-
dence claim at trial, on direct appeal or in the prior
habeas corpus proceeding, because proof of any such
claim required the petitioner to establish, and the
habeas court to decide, in violation of Griffin, that
there was a reasonable probability that he would have
prevailed on that claim had counsel raised it in the
earlier proceedings. So ruling, although the habeas
court duly noted that the proper remedy for a successful
challenge to a jury’s verdict on weight of the evidence
grounds is a new trial rather than a judgment of acquit-
tal, the habeas court had no occasion to reach, or thus
to rule on, the question of whether the petitioner’s inef-
fective assistance claims should be rejected because
they all were based on trial counsel’s failure to move
for a judgment of acquittal as to each charge of which
the petitioner was convicted on weight of the evi-
dence grounds.
The court finally concluded that the petitioner’s
remaining two claims of ineffective assistance of coun-
sel, both of which were based upon trial counsel’s
alleged failure to marshal the facts in the petitioner’s
favor during closing argument at his underlying criminal
trial, were meritless in light of the obvious competence
of trial counsel in delivering that closing argument.
Upon finding that the petitioner had failed to meet his
burden of proving either deficient performance by trial
counsel in delivering his closing argument or prejudice
arising from that performance, as required to prove
ineffective assistance under the well established test
enunciated in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),6 the court
rejected that claim, both as pleaded directly in the sec-
ond count of his operative petition, and as pleaded
derivatively, in his fourth count, as a basis for asserting
ineffective assistance of prior habeas counsel for failing
to raise that claim in the prior habeas proceeding.
Upon making the foregoing findings and rulings, the
habeas court rendered judgment in favor of the respon-
dent on all counts of the operative petition. Thereafter,
the court granted the petitioner’s petition for certifica-
tion to appeal from its denial of the petition. This
appeal followed.
Although the petitioner has raised four claims in this
appeal from the habeas court’s denial of his operative
petition, all such claims are based upon challenges to
the court’s rejection of two common claims, which,
alone or in combination, underlie each count of the
petition. The first common underlying claim is that the
jury’s guilty verdict in the underlying criminal trial was
against the weight of the evidence. The second common
underlying claim is that the petitioner’s trial counsel in
the underlying criminal trial was ineffective in failing
to marshal the facts in the petitioner’s favor during
closing argument. Because the ultimate disposition of
those two common claims is dispositive of this entire
appeal, we focus our analysis on the petitioner’s chal-
lenges to the habeas court’s resolution of those claims.
For the following reasons, we agree with the respondent
that the habeas court correctly resolved both claims,
and thus that its judgment denying all counts of the
operative petition must be affirmed.
I
We first address the petitioner’s common underlying
claim that the jury’s guilty verdict in his underlying
criminal trial was against the weight of the evidence.
The petitioner asserted that claim directly, in count one
of his operative petition, as a basis for claiming that
his due process rights were violated in his underlying
criminal trial. He also asserted that claim derivatively,
in counts two, three and four of his petition, as a basis
for claiming that he was prejudiced by the failures of
his trial, appellate and prior habeas counsel, respec-
tively, to raise that claim either at his trial, on his direct
appeal, and in his prior habeas corpus proceeding.
The respondent responded to count one of the opera-
tive petition, wherein the petitioner claimed a due pro-
cess violation on the basis of his weight of the evidence
claims, by specially pleading that the petitioner had
procedurally defaulted on those claims by failing to
raise them in either his underlying criminal trial or on
direct appeal from his underlying criminal conviction.
He further alleged that the petitioner could not establish
sufficient cause for or prejudice arising from his proce-
dural default to excuse such default and permit review
of the defaulted claims in a habeas corpus proceeding.
The petitioner replied to that special defense by plead-
ing in avoidance that if his due process claim was proce-
durally defaulted, the procedural default was cured by
cause and prejudice, arising from the ineffective assis-
tance of counsel he had received in each prior proceed-
ing in which his defaulted claim allegedly should have
been raised.
The respondent further responded to all four counts
of the petition by specially pleading that those counts
fail to state claims upon which relief can be granted in a
habeas corpus proceeding because they raise questions
that could be decided only by the trial judge who had
presided over the trial where the challenged verdict
was returned.
The habeas court noted at the start of its analysis,
as the petitioner had conceded, that the petitioner had
not raised his weight of the evidence claims either at
his underlying criminal trial or on direct appeal from the
conviction rendered against him therein. The essential
question thus presented on the petitioner’s due process
claim was whether the petitioner should be barred by
his procedural default from raising those claims in
this action.
In order for a habeas court to decide the merits of a
petitioner’s procedurally defaulted claim, the petitioner
must typically demonstrate cause and prejudice for his
failure to preserve that claim. Chaparro v. Commis-
sioner of Correction, 120 Conn. App. 41, 48, 990 A.2d
1261, cert. denied, 297 Conn. 903, 994 A.2d 1287 (2010).
‘‘Under this standard, the petitioner must demonstrate
good cause for his failure to raise a claim at trial or on
direct appeal and actual prejudice resulting from the
impropriety claimed in the habeas petition.’’ (Internal
quotation marks omitted.)
‘‘The cause and prejudice standard is designed to
prevent full review of issues in habeas corpus proceed-
ings that counsel did not raise at trial or on appeal for
reasons of tactics, [inadvertence] or ignorance . . . .
[T]he existence of cause for a procedural default must
ordinarily turn on whether the [petitioner] can show
that some objective factor external to the defense
impeded counsel’s efforts to comply with the [s]tate’s
procedural rule. . . . Cause and prejudice must be
established conjunctively. . . . If the petitioner fails to
demonstrate either one, a trial court will not review the
merits of his habeas claim.’’ (Citations omitted; internal
quotation marks omitted.) Crawford v. Commissioner
of Correction, 294 Conn. 165, 191, 982 A.2d 620 (2009).
The reviewability of the petitioner’s procedurally
defaulted weight of the evidence claims thus depends
upon the validity of the petitioner’s plea in avoidance
to the respondent’s first special defense, to wit: that his
procedural default should not bar him from prosecuting
such claims in a habeas corpus action because the
default had resulted from ineffective assistance by his
trial and appellate counsel, which had caused him preju-
dice. A successful ineffective assistance of counsel
claim can satisfy the cause and prejudice standard so
as to cure a procedurally defaulted claim. Johnson v.
Commissioner of Correction, 285 Conn. 556, 569–70,
941 A.2d 248 (2008); see also Valeriano v. Bronson, 209
Conn. 75, 83–85, 546 A.2d 1380 (1988) (‘‘[T]he cause
and prejudice test is unnecessary when a habeas court
is faced with a claim formulated within the narrow
confines of ineffective assistance of appellate counsel.
. . . [W]e conclude that it is simpler and more appro-
priate to move directly to the Strickland test.’’ [Cita-
tions omitted.]).
The legal principles that govern an ineffective assis-
tance of counsel claim are well settled. See Strickland v.
Washington, supra, 466 U.S. 687. ‘‘A claim of ineffective
assistance of counsel consists of two components: a
performance prong and a prejudice prong. To satisfy
the performance prong . . . the petitioner must dem-
onstrate that his attorney’s representation was not rea-
sonably competent or within the range of competence
displayed by lawyers with ordinary training and skill
in the criminal law. . . .
‘‘The second prong is . . . satisfied if the petitioner
can demonstrate that there is a reasonable probability
that, but for that ineffectiveness, the outcome would
have been different.’’ (Citation omitted; internal quota-
tion marks omitted.) Horn v. Commissioner of Correc-
tion, 321 Conn. 767, 775–76, 138 A.3d 908 (2016).
A petitioner must prevail on both Strickland prongs.
Lewis v. Commissioner of Correction, 165 Conn. App.
441, 451, 139 A.3d 759, cert. denied, 322 Conn. 901, 138
A.3d 931 (2016). Therefore, ‘‘[i]t is axiomatic that courts
may decide against a petitioner on either prong, which-
ever is easier.’’ Id.
Against this background, although the procedural bar
to review of an unpreserved claim is usually lifted when
the defaulting party alleges that his failure to raise that
claim in an earlier proceeding resulted from ineffective
assistance of counsel,7 such an allegation is insufficient
to remove the bar to review of that claim if the petitioner
cannot establish that he was prejudiced by counsel’s
failure to raise the claim previously. To establish such
prejudice, the petitioner must demonstrate that his pro-
cedurally defaulted claim had sufficient merit such that
there was a reasonable probability that he would have
prevailed on that claim had counsel raised it in a
timely manner.
In the present case, the habeas court ruled that it
was unable to review the petitioner’s claim that the
jury’s guilty verdict was against the weight of the evi-
dence because, under our case law, only the trial judge
who presided over the trial in which a challenged ver-
dict was returned is legally competent to make that
determination. If the habeas court was correct in so
ruling, then its denial of the petitioner’s first claim on
appeal must be affirmed because the petitioner could
never establish the prejudice element of ineffective
assistance of counsel, as required to establish the
reviewability of the claim under the cause and preju-
dice standard.
A trial court is empowered ‘‘to set . . . aside [a ver-
dict] where the manifest injustice of the verdict is so
plain and palpable as clearly to denote that some mis-
take was made by the jury in the application of legal
principles, or as to justify the suspicion that [the jurors]
or some of them were influenced by prejudice, corrup-
tion or partiality.’’ (Internal quotation marks omitted.)
American National Fire Ins. Co. v. Schuss, 221 Conn.
768, 774, 607 A.2d 418 (1992). ‘‘In passing upon a motion
to set aside a verdict, the trial judge must do just what
every juror ought to do in arriving at a verdict. The
juror must use all his experience, his knowledge of
human nature, his knowledge of human events, past
and present, his knowledge of the motives which influ-
ence and control human action, and test the evidence
in the case according to such knowledge and render
his verdict accordingly. A juror who did not do this
would be remiss in his duty. The trial judge in consider-
ing the verdict must do the same, or fail in the discharge
of that function which the law has laid upon him; and
if, in the exercise of all his knowledge from this source,
he finds the verdict to be so clearly against the weight
of the evidence in the case as to indicate that the jury
did not correctly apply the law to the facts in evidence
in the case, or were governed by ignorance, prejudice,
corruption or partiality, then it is his duty to set aside
that verdict and to grant a new trial.’’ Howe v. Raymond,
74 Conn. 68, 72, 49 A. 854 (1901). Because the making
of such a determination depends upon an assessment,
not only of the probative value of the evidence pre-
sented at trial, but of the circumstances in which such
evidence was presented to, argued before, and deliber-
ated upon by the jury, considerable deference is
accorded to the trial judge’s decision whether to grant
or deny a motion to set aside the verdict in view of the
judge’s ‘‘superior opportunity to assess the proceedings
over which he or she has personally presided.’’ State
v. Hammond, 221 Conn. 264, 269, 604 A.2d 793 (1992),
abrogated in part on other grounds by State v. Ortiz, 280
Conn. 686, 720 n.19 and 722 n.22, 911 A.2d 1055 (2006).
Against this background, our Supreme Court decided,
in State v. Griffin, supra, 253 Conn. 202, that a trial
judge’s special opportunity to assess the proceedings
over which he or she has presided is so unique and
indispensable in deciding if a jury’s challenged verdict
was against the weight of the evidence that such a claim
could not be made for the first time before a different
judge in a later proceeding. On that basis, the Griffin
court ruled that a defendant’s claim that he was entitled
to a new trial on the ground that the verdict was against
the weight of the evidence could not be reviewed on
direct appeal. The Griffin court reasoned that ‘‘[i]t fol-
lows inexorably from the nature of the defendant’s
claim, namely, that the testimony of the state’s key
witness . . . was not believable, that the defendant’s
failure to raise such a claim in the trial court is fatal
to his claim on appeal. On a cold record, we cannot
meaningfully assess [the] credibility [of the state’s key
witness] to determine whether his testimony, which,
if credited, concededly was sufficient to support the
defendant’s convictions, nevertheless was so unworthy
of belief as to warrant a conclusion that allowing the
verdict to stand wouldn’t constitute a manifest injustice.
. . . Only the trial judge was in a position to evaluate
[the state’s key witness’] testimony, along with the other
relevant evidence, to make such a determination.’’ (Cita-
tions omitted.) Id.
In the present case, the habeas court stated that,
in order to demonstrate prejudice resulting from trial
counsel’s failure to move to set aside the verdict as
against the weight of the evidence, the petitioner was
required to prove that the ‘‘manifest injustice of the
verdict [was] so plain and palpable as clearly to denote
that some mistake was made by the jury in the applica-
tion of legal principles, or as to justify the suspicion
that [the jurors] or some of them were influenced by
prejudice, corruption or partiality. . . . The petitioner
has presented no evidence to support such a showing
here.’’ (Citation omitted; internal quotation marks
omitted.)
Instead, the court noted that ‘‘all the petitioner has
done is present this court with the transcripts from
the criminal trial, which he admits contain evidence to
support the jury’s verdict. . . . [T]he petitioner is sim-
ply asking this court to act as another juror or as the
trial judge and retry the criminal case. . . . Here, this
court had no opportunity to view the witnesses, assess
their credibility or determine what weight should have
been given to their testimony. This court had no oppor-
tunity to gauge the tenor of the trial. Thus, this court
cannot, based on a cold printed record of the criminal
trial, conclude that the jury’s verdict was against the
weight of the evidence. Significantly, without demon-
strating that the jury misapplied any legal principles or
that the jury was influenced by prejudice, corruption
or partiality, the petitioner’s claim falls outside specific
limitations permissible for a trial court to set aside a
jury verdict as against the weight of the evidence.
‘‘Indeed, the petitioner presents nothing more than
a claim that conflicting evidence should have been
resolved in his favor. . . . In this case, the jury has
resolved the conflicting evidence against the petitioner,
and nothing has been presented to this court that under-
mines confidence in the jury’s verdict . . . . Conse-
quently, the petitioner has failed to demonstrate any
prejudice.’’ (Citations omitted.)
In the present case, the petitioner’s weight of the
evidence claim was not raised at trial or on direct
appeal. Raised for the first time, as it was, in the habeas
corpus proceedings, the claim is unreviewable in this
action under the rule of Griffin, because only a trial
court is in the position to determine if a challenged
verdict was against the weight of the evidence. The
petitioner therefore cannot satisfy the cause and preju-
dice standard to permit the review of his procedurally
defaulted claim because he cannot make the requisite
showing of prejudice, as required to prove ineffective
assistance of counsel in failing to raise that claim either
at trial or on appeal.
As with the petitioner’s direct claim that the jury’s
guilty verdict was against the weight of the evidence,
the petitioner’s derivative claims of ineffective assis-
tance by trial, appellate, and first habeas counsel for
failing to raise that claim, respectively, at trial, on direct
appeal, and in his prior habeas corpus proceeding are
obviously dependent upon the merits of the petitioner’s
weight of the evidence claim. The petitioner’s claim in
count two, which is that his trial counsel was ineffective
in failing to raise the weight of the evidence claims at
trial, is, in all respects, identical to the claim of ineffec-
tive assistance by which he sought to satisfy the cause
and prejudice standard with respect to the due process
claim pleaded directly in count one. Similarly, the peti-
tioner’s claims in counts three and four, of ineffective
assistance by appellate counsel for failing to raise the
claim pleaded in count one as a ground for relief on
direct appeal and failing to raise the ineffective assis-
tance claims pleaded in counts two and three as grounds
for relief in his prior habeas corpus proceeding,
required proof of the probable merits of the petitioner’s
weight of the evidence claim, which, as with the other
counts of the petition, only the trial judge was legally
competent to decide. Because we conclude that the
habeas court was not empowered to decide the proba-
ble merits of the petitioner’s weight of the evidence
claims under any count of the operative petition, as was
required to establish ineffective assistance of counsel
based upon counsel’s failure to assert those claims
either at trial, on appeal, or in the prior habeas corpus
proceeding, we affirm the habeas court’s decision
rejecting all of those claims as well.
II
The second common underlying claim, upon which
the remainder of the petitioner’s claims in this action
are based, is that trial counsel in his underlying criminal
trial was ineffective in failing to marshal the facts in
the petitioner’s favor during closing argument. The peti-
tioner asserted that claim directly in the second count
of his operative petition, and derivatively in his fourth
count as a basis for alleging ineffective assistance by
prior habeas counsel in failing to raise that claim in
the prior habeas corpus proceeding. The habeas court
rejected that claim on the merits after reviewing the
record of the underlying criminal trial. If we agree with
the habeas court that the petitioner’s trial counsel was
not ineffective in failing to marshal the facts in the
petitioner’s favor during closing argument in his under-
lying criminal trial, then we must affirm the habeas
court’s rejection of both of the petitioner’s resulting
ineffective assistance claims.
We begin by setting forth our standard of review. ‘‘The
habeas court is afforded broad discretion in making its
factual findings, and those findings will not be disturbed
unless they are clearly erroneous. . . . 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.’’ (Inter-
nal quotation marks omitted.) Horn v. Commissioner
of Correction, supra, 321 Conn. 775.
The legal principles that govern an ineffective assis-
tance claim, as previously noted, are well settled. See
Strickland v. Washington, supra, 466 U.S. 687. ‘‘A claim
of ineffective assistance of counsel consists of two com-
ponents: a performance prong and a prejudice prong.
To satisfy the performance prong . . . the petitioner
must demonstrate that his attorney’s representation
was not reasonably competent or within the range of
competence displayed by lawyers with ordinary training
and skill in the criminal law. . . .
‘‘The second prong is . . . satisfied if the petitioner
can demonstrate that there is a reasonable probability
that, but for that ineffectiveness, the outcome would
have been different.’’ (Citation omitted; internal quota-
tion marks omitted.) Horn v. Commissioner of Correc-
tion, supra, 321 Conn. 775–76.
Regarding the performance prong, ‘‘[j]udicial scrutiny
of counsel’s performance must be highly deferential.
. . . A fair assessment of attorney performance
requires that every effort be made to eliminate the dis-
torting effects of hindsight, to reconstruct the circum-
stances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the
time. . . . [A] court must indulge a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy.’’ (Internal quotation marks
omitted.) Spearman v. Commissioner of Correction,
164 Conn. App. 530, 539, 138 A.3d 378, cert. denied, 321
Conn. 923, 138 A.3d 284 (2016).
A petitioner must satisfy the two-pronged test set
forth in Strickland. Lewis v. Commissioner of Correc-
tion, supra, 165 Conn. App. 451. Therefore, ‘‘[i]t is axi-
omatic that courts may decide against a petitioner on
either prong, whichever is easier.’’ Id.
The habeas court’s findings support the conclusion
that the petitioner’s trial counsel was not ineffective in
marshaling the facts in his favor during the closing
argument. Thus, although noting that ‘‘[t]he petitioner’s
posttrial brief specifie[d] a virtual tsunami of . . . fail-
ures [to adequately marshal facts in the closing argu-
ment],’’8 the habeas court flatly disagreed. Upon
reviewing Graham’s closing argument, it concluded,
without equivocation, that the argument was ‘‘well
within the boundaries of reasonable professional judg-
ment.’’ We agree.
During his closing argument, Graham necessarily
determined which topics to cover from the lengthy crim-
inal trial. The petitioner, in his posttrial brief and again
on appeal, noted that during the five week trial, ‘‘evi-
dence was presented over the course of eighteen days
and included testimony from forty-one different wit-
nesses.’’ At the start of his hour-long closing argument,
Graham took note of this fact, stating that he was ‘‘not
going to remember every contradiction that happened
in this case,’’ and thus that he was ‘‘just not going to
remember to cover every point. There’s too many of
them.’’ Noting that the trial had been long, and that
there had been many witnesses, Graham cautioned the
jury that if he did not mention something in his closing
argument, it ‘‘[did not] mean [it was] not worth’’ the
jury’s consideration.
The habeas court also found that when Graham
‘‘reached the end of that hour, the state objected to
his continuing to present arguments. The trial court
extended the hour’’ by a few minutes to allow Graham
to conclude.
‘‘Second, and perhaps more significantly,’’ the court
continued, ‘‘in the time allotted to him for closing argu-
ment, [Graham] highlighted many discrepancies in the
evidence presented to the jury, emphasizing the internal
and external inconsistencies of the story conveyed by
[Orlandi] with the forensic evidence and common sense
analysis. . . . At the very end of his argument, [Gra-
ham] again told the jury to ‘please understand because
I didn’t mention something here doesn’t mean it’s not
important. And I want you to look at all the evidence
in the case critically before coming to any conclusion.’ ’’
In the end, the habeas court concluded that the peti-
tioner had not overcome the presumption that counsel
‘‘exercised reasonable professional judgment,
employed a reasonable strategy, and performed ade-
quately in selecting and presenting his arguments to
the jury. Additionally, the petitioner has not shown that
any purported errors deprived him of a fair trial, nor
that they even had some conceivable effect on the out-
come of the trial, nor has he undermined this court’s
confidence in the outcome of the criminal trial. The
claim of ineffective assistance related to the closing
arguments, therefore, fails on both the performance
and prejudice prongs.’’
Additional facts are necessary for the resolution of
this claim. Graham had elicited testimony from Lambo
during the underlying criminal trial that Terrence
O’Connor was believed to be in charge of ordering hits
for the motorcycle club. Moreover, Lambo testified that
O’Connor and three other men, all dressed in red shirts
as members of the motorcycle club, were at the social
club on the night that the victim was murdered. He
stated that O’Connor entered Orlandi’s office, and that
the three other men in red shirts left the social club, but
that O’Connor never left Orlandi’s office after entering
it a second time. Lambo testified that he never saw
O’Connor exit the social club.
We agree with the habeas court that the petitioner’s
claim of ineffective assistance in closing argument fails
on both the performance and the prejudice prongs. In
his closing argument, Graham challenged, in a variety of
ways, the credibility of the state’s three key witnesses,
Orlandi, Ryan and Fruin. Graham argued that Orlandi
‘‘wrote the script’’ of the story that blamed the petitioner
for the murder, a story which Ryan and Fruin adopted.
Graham explicitly asked the jury to not trust Orlandi’s,
Ryan’s or Fruin’s testimony. He argued that Ryan had
adopted Orlandi’s ‘‘script’’ because she was pressured
to do so by her parents and the police, and that Fruin
had done the same because she feared going to jail and
losing custody of her child. He stated that to implicate
the petitioner in the murder was less dangerous for all
three witnesses than to implicate other members of the
petitioner’s motorcycle gang, who remained at liberty
in the community in a position to harm them.
Graham argued, more specifically, that there were
several important reasons for doubting Orlandi’s credi-
bility, including that her story was internally inconsis-
tent and that the murder could not have occurred in
the manner that she and Ryan had described. Graham
argued that there had been inconsistencies between the
witnesses’ statements and their testimony at trial, and
suggested that the murder had occurred in a different
manner than that to which they had testified. He high-
lighted Orlandi’s actions that exhibited a consciousness
of guilt, including driving the getaway car and hiding
evidence. He argued that the police did a sloppy and
careless job, and failed to investigate other possible
suspects because they had focused exclusively on the
petitioner. He also argued that bullet evidence may have
been planted and should be disregarded by the jury,
and that witness testimony refuted the state’s claim
that the petitioner possessed the gun that was used to
murder the victim. Graham also pointed to Terrence
O’Connor who, he argued, should always have been
considered a suspect.
During his closing argument, Graham also highlighted
the testimony of Palomba and Lambo, both of whom
testified that the petitioner had left the social club prior
to the shooting. In the end, however, he reiterated that
‘‘the biggest doubts you ought to have is the integrity
of [Orlandi] and [Ryan].’’ Hence, after positing several
supportable theories as to what may have occurred, he
reminded the jurors of the state’s heavy burden of proof
and concluded that the evidence before them, Orlandi
and Ryan’s testimony, prevented them from finding that
the state had satisfied that heavy burden.
We find that the petitioner’s trial counsel gave a well
reasoned and detailed closing argument. As Graham
was not required to take any particular approach in the
argument, nor to address every facet of the case, we
conclude that he did not provide ineffective assistance
of counsel. See Yarborough v. Gentry, 540 U.S. 1, 8,
124 S. Ct. 1, 157 L. Ed. 2d 1 (2003) (‘‘selection of argu-
ments for summation is a core exercise of defense coun-
sel’s discretion’’). Graham had a limited amount of time
in which to present the main themes of the petitioner’s
defense in a long and complicated trial, and he did so
competently. He was not required to present every
minor detail of his defense theory. ‘‘Even if some of
the arguments would unquestionably have supported
the defense, it does not follow that counsel was incom-
petent for failing to include them. Focusing on a small
number of key points may be more persuasive than a
shotgun approach.’’ Id., 7. Moreover, Graham’s argu-
ment mainly addressed how the jury should not believe
the testimony of Orlandi, Ryan and Fruin, which is
precisely what the petitioner claims he should have
done.
When a convicted defendant complains of ineffec-
tiveness of counsel, he must show that counsel’s repre-
sentation fell below an objective standard of
reasonableness. Johnson v. Commissioner of Correc-
tion, supra, 285 Conn. 577. We agree with the habeas
court that, on the basis of the record before us, the
petitioner has not met that burden here. Because the
petitioner’s claim of ineffective assistance of trial coun-
sel for failing adequately to marshal the facts in his
favor during the closing argument fails on the merits,
so does his derivative claim of ineffective assistance of
prior habeas counsel for failing to raise that claim in
the prior habeas proceeding.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner received consecutive sentences of sixty years imprison-
ment for murder, eighteen years for the kidnapping of Orlandi, and eighteen
years for the kidnapping of Ryan.
2
The petitioner filed his direct appeal in the Supreme Court initially, but
it was subsequently transferred to this court. See State v. Sinchak, supra,
47 Conn. App. 135 n.1.
3
Those reasons include that the petitioner’s trial counsel allegedly (1)
failed to file a motion to discover certain exculpatory statements prior to
the hearing in probable cause, (2) failed to conduct an adequate pretrial
investigation, (3) failed to hire a forensics expert, (4) failed to move for a
mistrial or dismissal, (5) failed to confront certain witnesses with conflicting
testimony, (6) failed to timely file a motion for a new trial, (7) failed to
speak on his behalf at sentencing, and (8) was intoxicated during portions
of the trial.
4
The petitioner also commenced a third habeas proceeding by filing a
third petition for habeas corpus on October 13, 2010, which was subsequently
declined due to the petitioner’s failure to comply with Practice Book § 23-
24. The habeas court denied the petitioner’s petition for certification and
this court dismissed the petitioner’s appeal from that decision on April
19, 2011.
5
‘‘When a respondent seeks to raise an affirmative defense of procedural
default, the rules of practice require that he or she must file a return to the
habeas petition ‘alleg[ing] any facts in support of any claim of procedural
default . . . or any other claim that the petitioner is not entitled to relief.’
Practice Book § 23-30 (b). ‘If the return alleges any defense or claim that
the petitioner is not entitled to relief, and such allegations are not put in
dispute by the petition, the petitioner shall file a reply.’ Practice Book § 23-
31 (a). ‘The reply shall allege any facts and assert any cause and prejudice
claimed to permit review of any issue despite any claimed procedural
default.’ Practice Book § 23-31 (c).’’ Johnson v. Commissioner of Correction,
285 Conn. 556, 567, 941 A.2d 248 (2008).
6
See generally Strickland v. Washington, supra, 466 U.S. 687 (setting
forth two-pronged analysis standard for claims of ineffective assistance
of counsel).
7
See Johnson v. Commissioner of Correction, supra, 285 Conn. 569–70.
8
As described by the habeas court, they included alleged failures to ‘‘under-
mine [Orlandi’s] credibility; undermine [Ryan’s] credibility; undermine [Fru-
in’s] credibility; undermine the time line provided by [Orlandi] and [Ryan]
with the testimonies of [Palomba] and [Lambo]; undermine [Ryan’s] version
of events with Dr. Edward McDonough’s testimony; argue that the blood
found in Silvio Martorelli’s car did not match the victim’s blood; effectively
use the testimony of Nancy Fogerty, highlight the circumstances under
which Ryan’s first statement was given to police; show that [Orlandi] had
the opportunity to create her version of events based on her observation
of the destroyed club; argue [Orlandi’s] and [Ryan’s] culpability; use the facts
related to [Orlandi’s] keys; highlight the contradiction between [Orlandi’s]
version of the shooting and [Ryan’s] version of the shooting; illustrate the
discrepancy over the number of bullets fired; and stress the facts regarding
[Orlandi] and [Fruin’s] opportunity to escape.’’