Martin v. Commissioner of Correction , 179 Conn. App. 647 ( 2018 )

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CARLTON MARTIN v. COMMISSIONER OF
CORRECTION
(AC 39202)
Alvord, Sheldon and Bishop, Js.
Syllabus
The petitioner, who had been convicted of, inter alia, the crime of felony
murder in connection with the shooting death of the victim, filed a
second petition for a writ of habeas corpus, claiming, inter alia, that he
was denied his due process rights under the federal and state constitu-
tions because his conviction was obtained based on evidence of compar-
ative bullet lead analysis, a forensic technique used by the Federal
Bureau of Investigation (FBI) that, at the time of the petitioner’s criminal
trial, was widely accepted and routinely admitted by courts but was
subsequently discredited. At the petitioner’s criminal trial, an FBI agent,
L, testified that her examination of bullets, using the lead analysis,
showed that the bullets recovered from the victim’s body and the crime
scene came from the same box of bullets seized from the petitioner’s
bedroom. The petitioner argued that the introduction of essential evi-
dence that later turned out to be false or scientifically invalid deprived
him of his due process rights and entitled him to a new trial without
the taint of false evidence. He also claimed that he received ineffective
assistance from D, the counsel who had represented him with respect
to his first habeas petition, because D failed, inter alia, to properly
challenge L’s testimony as to her examination of bullets using lead
analysis. The habeas court rendered judgment denying the habeas peti-
tion, concluding, inter alia, that no violation occurred on the basis that
the petitioner had presented no evidence that the state actors were
aware of defects in lead analysis evidence at the time of the petitioner’s
criminal trial and that the petitioner had failed to show that the lead
analysis evidence prejudiced his case. The habeas court, thereafter,
granted the petition for certification to appeal, and the petitioner
appealed to this court. Held:
1. The habeas court properly concluded that the petitioner was not deprived
of his constitutional due process right to a fair trial by the admission
of L’s testimony regarding the lead analysis evidence, as this court was
not left with the belief that but for L’s testimony, the petitioner most
likely would not have been convicted; the more significant forensic
evidence was the testimony that the pistol that the petitioner had given
to a witness to conceal was the same one used to shoot the victim, and
that the ammunition seized from the petitioner’s bedroom closet was
of the same type and had the same coating as the bullets recovered
from the crime scene, and because that evidence was unaffected by and
unrelated to L’s testimony regarding lead analysis, it was very unlikely
that the jury’s determination of guilt would have been different had L’s
testimony not been presented to the jury.
2. The habeas court properly rejected the petitioner’s claim that D provided
ineffective assistance in handling the claim that the lead analysis evi-
dence lacked scientific validity; this court having concluded that there
was no reasonable probability that but for L’s testimony, the petitioner
would not have been convicted, the petitioner could not prove that he
was prejudiced by D’s performance, especially given the overwhelming
evidence of the petitioner’s guilt, much of which was unaffected by and
unrelated to L’s testimony, and the petitioner also failed to demonstrate
deficient performance by D, as the petitioner presented no basis from
which this court could conclude that his trial counsel’s conduct fell
outside the wide range of reasonable professional assistance, and, there-
fore, the habeas court properly concluded that because the petitioner
failed to establish that his trial counsel rendered ineffective assistance
in failing to challenge the then-uncontroverted lead analysis evidence,
D could not have been deficient in failing to raise that meritless claim.
Argued October 23, 2017—officially released February 13, 2018
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Sferrazza, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Darcy McGraw, for the appellant (petitioner).
Harry Weller, senior assistant state’s attorney, with
whom, on the brief, were Stephen J. Sedensky III, state’s
attorney, and Tamara Grosso, assistant state’s attorney,
for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Carlton Martin, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. On appeal, he
claims that the court erred in: (1) rejecting his claim
that his due process right to a fair trial under the state
and federal constitutions was violated by the introduc-
tion of testimony from an agent with the Federal Bureau
of Investigation (FBI) at his underlying criminal trial,
which was later determined to be scientifically invalid;
and (2) concluding that his habeas counsel did not
render ineffective assistance of counsel. We affirm the
judgment of the habeas court.
The following facts and procedural history are rele-
vant to our resolution of the petitioner’s appeal. In 2000,
following a jury trial during which the petitioner was
represented by Attorney Robert Field, the petitioner
was convicted of felony murder in violation of General
Statutes § 53a-54c, robbery in the first degree in viola-
tion of General Statutes § 53a-134 (a) (2), and five
counts of tampering with a witness in violation of Gen-
eral Statutes § 53a-151. The petitioner was sentenced to
a total effective sentence of ninety years imprisonment.
The petitioner appealed from the judgment of convic-
tion, and this court set forth the facts underlying his
conviction. ‘‘At 6 a.m., on January 18, 1999, the [peti-
tioner] called Nicole Harris and asked her to drive from
Bridgeport to Danbury to pick up his cousin, Tommie
L. Martin. At approximately 8:30 a.m., Harris and the
[petitioner] picked up Tommie Martin in Danbury. Har-
ris then drove Tommie Martin and the [petitioner] to a
gasoline station located next to Gallo’s Hi-Way Package
Store (Gallo’s) in Danbury. After filling Harris’ brown
Chevrolet Chevette with gas, Harris drove along the
street, passing Gallo’s, and turned onto the street next to
Gallo’s, where she parked. The [petitioner] and Tommie
Martin left Harris’ vehicle and went toward Gallo’s.
After five minutes, the [petitioner] and Tommie Martin
returned to the vehicle and Tommie Martin told Harris
to drive around the block. When the vehicle was in
front of Gallo’s, Tommie Martin told Harris to drive by
slowly. As Tommie Martin peered into Gallo’s, he said,
‘[h]e’s by himself,’ and the [petitioner] responded, ‘I
have my heat on me, we’ll go back in.’ Tommie Martin
told Harris to turn her vehicle around and park next to
Gallo’s. The [petitioner] and Tommie Martin left the
vehicle and returned ten minutes later with bottles of
E & J brandy. When they reentered the vehicle, Tommie
Martin told Harris to drive onto the highway. While
driving toward Bridgeport, the [petitioner] and Tommie
Martin talked excitedly and were asking each other,
‘[W]as it worth it?’ Shortly thereafter, police were called
to the liquor store, where they found the victim, Robert
Gallo, lying motionless, having been shot multiple
times. The cash register had been disturbed, and two
bottles of E & J brandy were missing. Gallo died as a
result of his injuries. The [petitioner] subsequently told
Harris that he and Tommie Martin were involved in the
robbery and shooting at Gallo’s.’’ State v. Martin, 77
Conn. App. 778, 781, 825 A.2d 835, cert. denied, 266
Conn. 906, 832 A.2d 73 (2003).
‘‘On January 20, 1999, the [petitioner] called Harris
and told her to come to his apartment to pick up some-
thing. When she arrived, the [petitioner] handed Harris
a shoebox containing a .25 caliber handgun wrapped in
a towel.’’ Id., 781–82. ‘‘On January 25, 1999, the Danbury
police department obtained a search warrant for the
[petitioner’s] and Tommie Martin’s residence at 2108
Seaview Avenue in Bridgeport. The police executed the
warrant. The police seized a sawed-off shotgun, a box
of .25 caliber ammunition, a .22 caliber firearm and a
magazine for a .22 caliber firearm.’’ Id., 782. ‘‘While
awaiting trial, the [petitioner] attempted to contact Har-
ris from prison and did contact associates of Harris to
urge her not to cooperate with the state and to dispose
of the .25 caliber handgun, which she had been hiding.’’
Id. ‘‘In March, 1999, Harris turned the gun over to the
police, and ballistics tests confirmed that it had been
used to fire the bullets that killed Gallo.’’1 Id.
Attorney James Streeto represented the petitioner
with respect to his appeal. This court affirmed the peti-
tioner’s conviction, rejecting arguments that the trial
court improperly ‘‘(1) failed to recuse itself, (2) denied
his motion to suppress certain letters and telephone call
tapes, (3) refused to give a requested jury instruction
on specific intent, (4) charged the jury as to conscious-
ness of guilt, (5) denied his motion to suppress evidence
pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct.
2674, 57 L. Ed. 2d 667 (1978), and (6) denied him his
constitutional right to present a defense as a result of
certain evidentiary rulings.’’2 Id., 780, 818.
In 2006, the petitioner, represented by Attorney
Sebastian DeSantis, filed his first petition for a writ of
habeas corpus (first habeas petition). In his amended
petition, dated August 31, 2009, the petitioner alleged
that (1) he was denied the effective assistance of appel-
late counsel in violation of the sixth and fourteenth
amendments to the United States constitution and arti-
cle first, § 8, of the Connecticut constitution, (2) his
conviction should be vacated because of newly discov-
ered evidence disclosed by the FBI to the State’s Attor-
ney, and (3) he was prejudiced by the late disclosure
of Brady material. The first habeas petition was tried
before the court, T. Santos, J., which issued a memoran-
dum of decision on November 16, 2011, denying the
petition. With respect to the claim of newly discovered
evidence, the habeas court found such claim ‘‘indistin-
guishable, especially in light of the petitioner’s assertion
that this evidence is clear and convincing and would
have proven that he is not guilty, from an actual inno-
cence claim.’’ Martin v. Warden, Superior Court, judi-
cial district of Tolland, Docket No. CV-06-4001122-T
(November 16, 2011). The court found that the evidence
produced in support of the claim, consisting of two
letters from the FBI regarding the comparative bullet
lead analysis used in the petitioner’s case, fell short of
the actual innocence standard. Following the granting
of certification to appeal, the petitioner appealed, and
this court affirmed the judgment of the habeas court
by memorandum decision issued March 5, 2013. Martin
v. Commissioner of Correction, 141 Conn. App. 903,
60 A.3d 412 (2013).
In August, 2013, the petitioner filed a second petition
for a writ of habeas corpus, the petition at issue in this
appeal. In his second amended petition, he alleged: (1)
a violation of his constitutional rights to due process
under the fourteenth amendment to the United States
constitution and article first, § 8, of the Connecticut
constitution on the basis that his conviction was
obtained using evidence of comparative bullet lead anal-
ysis that was subsequently discredited by the FBI and
that there existed a ‘‘reasonable probability that but for
[such] evidence . . . the petitioner would not have
been convicted’’; and (2) ineffective assistance of Attor-
ney DeSantis, who represented the petitioner with
respect to his first habeas petition. Specifically, the
petitioner claimed that Attorney DeSantis was ineffec-
tive in failing to (1) challenge the testimony concerning
comparative bullet lead analysis from FBI Agent Kath-
leen Lundy, (2) consult with a metallurgist to challenge
the testimony of Lundy, (3) present forensic evidence
with respect to the petitioner’s seized clothing, and (4)
present testimony of a crime reconstruction expert.
The petitioner also claimed that Attorney DeSantis was
ineffective in failing to consult with and present the
testimony of an expert regarding comparative bullet
lead analysis evidence. The second habeas petition was
tried before the habeas court, Sferrazza, J., which
heard testimony from the petitioner, Attorney DeSantis,
and William Tobin, a forensic metallurgist material sci-
entist.
In its memorandum of decision, the habeas court
described Lundy’s testimony during the petitioner’s
criminal trial. Lundy testified as to her examination of
bullets recovered from the victim’s body and the crime
scene, and bullets from cartridges in the ammunition
box seized from the petitioner’s bedroom closet using
a technique known as comparative bullet lead analysis
(CBLA). Lundy’s testimony purportedly showed that
the bullets retrieved from the victim’s body and the
crime scene came from the same box of ammunition
seized from the petitioner’s bedroom closet. The FBI
previously had used CBLA to deduce whether a lead
bullet came from a particular cartridge box from 1996
until it discontinued such examinations on September
1, 2005, after an independent research committee of
experts concluded that chemical comparison of trace
elements found within bullets through CBLA did not
produce sufficiently distinct outcomes to enable an ana-
lyst to conclude that bullets with the same chemical
profiles come from the same box.
The habeas court rejected the petitioner’s claim that
the admission of CBLA evidence violated his due pro-
cess rights, concluding that no violation occurred on
the basis that the petitioner had presented no evidence
that the state actors were aware of defects in CBLA
evidence at the time of the petitioner’s criminal trial.
The court further concluded that the petitioner had
failed to show that the CBLA evidence prejudiced his
case, explaining that the more salient forensic evidence
was the showing that the pistol the petitioner had given
to Harris, which Harris had turned over to the police,
was the pistol used to shoot the victim.
With respect to the petitioner’s ineffective assistance
of habeas counsel claim, the habeas court found that
because the petitioner’s trial counsel, Attorney Fields,
could not have been deficient in failing to challenge
the then-uncontroverted CBLA evidence, Attorney
DeSantis could not be faulted for failing to claim ineffec-
tive assistance by Attorney Fields in the petitioner’s
first habeas trial. The court denied the petition and
granted certification to appeal. This appeal followed.
‘‘Initially, we set forth the appropriate standard of
review for a challenge to the denial of a petition for a
writ of habeas corpus when certification to appeal is
granted. The conclusions reached by the trial court in
its decision to dismiss [a] habeas petition are matters
of law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record. . . . To the extent
that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous.’’ (Citation omitted;
internal quotation marks omitted.) Harris v. Commis-
sioner of Correction, 126 Conn. App. 453, 456–57, 11
A.3d 730, cert. denied, 300 Conn. 932, 17 A.3d 69 (2011).
I
The petitioner first claims that the habeas court erred
in rejecting his claim that his due process right to a
fair trial under the state and federal constitutions was
violated by the introduction of false evidence, con-
sisting of Lundy’s testimony regarding CBLA.3 He claims
that ‘‘his right [to] a fair trial was violated because, due
to the admission of flawed ‘forensic’ evidence by an
incredible witness who was cloaked with the designa-
tion ‘expert,’ the adversarial system failed and he is
therefore entitled to a new trial without the taint of
false evidence.’’ We disagree.
We first note that the petitioner does not claim that
Lundy committed perjury. Moreover, in contrast to
many of the cases relied on by the petitioner, the peti-
tioner in the present case does not claim that the prose-
cution knew or should have known of flaws in Lundy’s
scientific testimony at the time of the petitioner’s crimi-
nal trial.4 In fact, he recognizes that ‘‘all parts of the
system—prosecutor, defense counsel and the court—
were under the false impression that the witness’ testi-
mony was true to a degree of scientific certainty . . . .’’
Instead, the petitioner claims that the introduction of
‘‘essential evidence’’ that ‘‘later turns out . . . [to be]
false and/or scientifically invalid’’ deprives a criminal
defendant of his due process rights ‘‘because the advers-
arial process fails.’’
As this court has recently acknowledged in Toccaline
v. Commissioner of Correction, 177 Conn. App. 480,
492–93, 172 A.3d 821, cert. denied, 327 Conn. 986, A.3d
(2017), neither our Supreme Court nor the United States
Supreme Court has ‘‘addressed the question of whether
the state’s unknowing use of perjured testimony vio-
lates due process principles.’’ (Internal quotation marks
omitted.) See also Westberry v. Commissioner of Cor-
rection, 169 Conn. App. 721, 735, 152 A.3d 87 (2016)
(‘‘[i]t remains an open question in Connecticut whether
the state’s unknowing use of perjured testimony at trial
can violate due process’’ [emphasis in original]), cert.
denied, 324 Conn. 914, 153 A.3d 1289 (2017). In Horn
v. Commissioner of Correction, 321 Conn. 767, 801–802,
138 A.3d 908 (2016), our Supreme Court expressly
declined to decide that question, instead concluding
that the petitioner had not established that the wit-
nesses had committed perjury, and even without the
witnesses’ testimony, there was no reasonable probabil-
ity that the petitioner would not have been convicted.
Accordingly, the petitioner had not been deprived of his
constitutional due process right to a fair trial. Id., 802.
Our Supreme Court has noted that a ‘‘majority of the
federal circuit courts require a knowing use of perjured
testimony by the prosecution to find a violation of due
process.’’ (Internal quotation marks omitted.) Id., 801;
see also Toccaline, supra, 177 Conn. App. 492–93 n.12
(noting that ‘‘[t]he clear majority of jurisdictions require
that a petitioner must prove that the prosecutor knew
or should have known that the testimony at issue was
false in order to establish a due process violation’’
[emphasis in original]). In Ortega v. Duncan, 333 F.3d
102, 108 (2d Cir. 2003), however, the United States Court
of Appeals for the Second Circuit held that ‘‘when false
testimony is provided by a government witness without
the prosecution’s knowledge, due process is violated
only if the testimony was material and the court [is left]
with a firm belief that but for the perjured testimony, the
defendant would most likely not have been convicted.’’
(Footnote omitted; internal quotation marks omitted.)5
This court, in Toccaline, supra, 177 Conn. App. 491–
92, rejected the petitioner’s claim that his due process
rights were violated when the prosecutor unknowingly
presented the false testimony of the victim and her
family members. In rejecting the petitioner’s claim, the
court recognized that ‘‘there is no Connecticut case
that supports the proposition that the petitioner’s due
process rights could have been violated by the prosecu-
tor’s presentation of false testimony when the prosecu-
tor neither knew nor should have known that the
testimony was false . . . .’’ Id., 493.6 The court went on
to conclude that ‘‘even under the more lenient approach
taken by the Second Circuit in Ortega, [the petitioner’s]
claim would still fail.’’ Id. As in Toccaline, even if this
court were to apply the Ortega standard, the petitioner
cannot prevail on his due process claim because ‘‘there
is no reasonable probability’’ that but for Lundy’s testi-
mony, ‘‘the petitioner would not have been convicted.’’7
See Horn v. Commissioner of Correction, supra, 321
Conn. 801 (declining to decide whether to adopt Ortega
standard and instead concluding that petitioner could
not prevail under that standard).
In its memorandum of decision, the habeas court
detailed the evidence presented at the petitioner’s crimi-
nal trial, in addition to Lundy’s testimony, supporting his
conviction. Evidence was presented that an individual
named Eugene Laurel, or ‘‘Banana,’’ sold a stolen, .25
caliber Titan pistol to the petitioner and his cousin. The
petitioner was identified as having participated in the
purchase of the gun and as having had access to the
gun after they bought it. Together with the pistol,
Banana gave the men an ammunition box partially filled
with .25 caliber Winchester cartridges. Police later
searched the apartment where the petitioner lived and
seized an ammunition box with .25 caliber Winchester
cartridges from the petitioner’s bedroom closet.
The jury also heard the testimony of Nicole Harris,
the owner and driver of the vehicle used during the
robbery, who testified that the petitioner made state-
ments showing his intent to rob the store and indicated
that he had a gun. She testified that after the robbery,
the petitioner admitted to shooting the victim. Harris
further testified that a few days after the shooting, the
petitioner gave her a shoe box containing the .25 caliber
pistol and asked her to conceal it for him.8 Harris later
turned the pistol over to the police.
James Stephenson, a criminalist with the Connecticut
State Department of Public Safety’s Division of Forensic
Services Forensic Science Laboratory, testified during
the petitioner’s criminal trial that the cartridges in the
ammunition box seized from the petitioner’s bedroom
closet matched those used to commit the murder with
respect to the caliber, type, manufacturer, and coating.
Stephenson further testified that the cartridge casings
recovered from the crime scene were fired from the
.25 caliber pistol turned over by Harris. The petitioner
admitted calling his girlfriend from prison and, referring
to the .25 caliber Titan as ‘‘dirty dishes,’’ asking her to
tell Harris to get rid of the gun. See State v. Martin,
supra, 77 Conn. App. 817. The petitioner also engaged
in multiple acts of witness tampering, which the habeas
court found to show a strong consciousness of guilt.
Lundy, then an FBI agent specializing in CBLA, testi-
fied as to her opinion based on her examination of the
bullets. She testified that the bullets recovered from
the crime scene and the victim’s body came from the
same manufacturing lot as those bullets found in the
ammunition box in the petitioner’s bedroom closet.9
Lundy’s testimony, the habeas court concluded, was
‘‘minimally corroborative of the testimony of Banana,
the petitioner’s cousin, and Harris as to the petitioner’s
possession of the weapon and ammunition used in
the shooting.’’
We agree with the habeas court’s conclusion that the
more significant forensic evidence was the testimony
of Stephenson, who opined that the pistol the petitioner
had given to Harris, which Harris turned over to police,
was the same one used to shoot the victim. Stephenson
further testified that the ammunition seized from the
petitioner’s bedroom closet was of the same type and
had the same coating as the bullets recovered from
the crime scene. This evidence was unaffected by and
unrelated to Lundy’s testimony, and we agree with the
habeas court that it is very unlikely that the jury’s deter-
mination of guilt would have been different had Lundy’s
testimony regarding CBLA not been presented to the
jury. Accordingly, under the Ortega standard, we are
not left with a firm belief that but for Lundy’s testimony,
the petitioner would most likely not have been con-
victed, and, therefore, the petitioner was not deprived
of his constitutional due process right to a fair trial.10
See Ortega v. Duncan, supra, 333 F.3d 108.
II
The petitioner next claims that the habeas court erred
in concluding that his habeas counsel, Attorney
DeSantis, did not render ineffective assistance of coun-
sel. The petitioner claims that Attorney DeSantis
improperly handled the petitioner’s claim that the CBLA
evidence lacked scientific validity. Specifically, the peti-
tioner claims that Attorney DeSantis failed to present
the testimony of an expert with whom he had consulted,
and ‘‘merely introduced a report from the FBI stating
that it no longer used’’ CBLA evidence. Moreover, the
petitioner claims that Attorney DeSantis incorrectly
presented the CBLA evidence claim as a claim of actual
innocence, then ‘‘failed to introduce any evidence suffi-
cient to establish affirmatively that the petitioner was
actually innocent of that crime.’’ We disagree that Attor-
ney DeSantis rendered ineffective assistance of
counsel.
‘‘The use of a habeas petition to raise an ineffective
assistance of habeas counsel claim . . . was approved
by our Supreme Court in Lozada v. Warden, 223 Conn.
834, 613 A.2d 818 (1992). In Lozada, the court deter-
mined that the statutory right to habeas counsel for
indigent petitioners provided in General Statutes § 51-
296 (a) includes an implied requirement that such coun-
sel be effective, and it held that the appropriate vehicle
to challenge the effectiveness of habeas counsel is
through a habeas petition. . . . [T]he court explained
that [t]o succeed in his bid for a writ of habeas corpus,
the petitioner must prove both (1) that his appointed
habeas counsel was ineffective, and (2) that his trial
counsel was ineffective. . . . As to each of those
inquiries, the petitioner is required to satisfy the familiar
two-pronged test set forth in Strickland v. Washington,
[466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)]. First, the [petitioner] must show that counsel’s
performance was deficient. . . . Second, the [peti-
tioner] must show that the deficient performance preju-
diced the defense.’’ (Emphasis in original; internal
quotation marks omitted.) Abreu v. Commissioner of
Correction, 172 Conn. App. 567, 574–75, 160 A.3d 1077,
cert. denied, 326 Conn. 901, 162 A.3d 724 (2017).
‘‘Unless a [petitioner] makes both showings, it cannot
be said that the conviction . . . resulted from a break-
down in the adversary process that renders the result
unreliable. . . . In other words, a petitioner claiming
ineffective assistance of habeas counsel on the basis
of ineffective assistance of trial counsel must essentially
satisfy Strickland twice.’’ (Internal quotation marks
omitted.) Id., 575. Our Supreme Court has characterized
this burden as presenting a ‘‘herculean’’ task. Lozada
v. Warden, supra, 223 Conn. 843; see also Alterisi v.
Commissioner of Correction, 145 Conn. App. 218, 226–
27, 77 A.3d 748, cert. denied, 310 Conn. 933, 78 A.3d
859 (2013).
With respect to the prejudice prong of Strickland, it
is not sufficient ‘‘to show that [counsel’s] . . . 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 coun-
sel’s unprofessional errors, the result of the proceeding
would have been different.’’ (Internal quotation marks
omitted.) Abreu v. Commissioner of Correction, supra,
172 Conn. App. 579. ‘‘A reasonable probability is a prob-
ability sufficient to undermine confidence in the out-
come.’’ (Internal quotation marks omitted.) State v.
Dupigney, 295 Conn. 50, 61, 988 A.2d 851 (2010).
On appeal, the petitioner challenges only Attorney
DeSantis’ treatment and presentation of his habeas
claims related to the scientific invalidity of Lundy’s
testimony during his criminal trial. We have already
concluded in part I of this opinion that there is no
reasonable probability that but for Lundy’s testimony,
the petitioner would not have been convicted. In light
of this conclusion, the petitioner cannot prove prejudice
under Strickland. Even if Attorney DeSantis had con-
sulted with and presented to the habeas court the testi-
mony of both a metallurgist and an expert on CBLA
evidence,11 introduced additional exhibits beyond the
FBI report, and presented the challenge to the CBLA
evidence as a claimed due process violation rather than
an actual innocence claim, the petitioner has failed to
establish that there is a reasonable probability that the
court in the first habeas proceeding would have found
that the petitioner was entitled to a reversal of his
judgment of conviction and a new trial. Given the over-
whelming evidence of the petitioner’s guilt, much of
which was unaffected by and unrelated to Lundy’s testi-
mony, the petitioner cannot establish a reasonable
probability that the first habeas court would have found
the prejudice prong of Strickland satisfied. See Crocker
v. Commissioner of Correction, 126 Conn. App. 110,
121, 10 A.3d 1079 (concluding that petitioner’s ineffec-
tive assistance of habeas counsel claim failed because
petitioner had not established prejudice, where chal-
lenged testimony during criminal trial was ‘‘far from
the only evidence linking the petitioner to the murder’’
and where the ‘‘the state also introduced other signifi-
cant evidence that was probative of the petitioner’s
guilt’’), cert. denied, 300 Conn. 919, 14 A.3d 333 (2011).
While a reviewing court can find against a petitioner
on either prong of Strickland; Small v. Commissioner
of Correction, 286 Conn. 707, 713, 946 A.2d 1203, cert.
denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.
Ct. 481, 172 L. Ed. 2d 336 (2008); we also conclude, in
agreement with the habeas court, that the petitioner
has failed to satisfy the performance prong. The habeas
court concluded that because the petitioner failed to
establish that his trial counsel rendered ineffective
assistance, habeas counsel could not have been defi-
cient in failing to raise that meritless claim.
‘‘In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assis-
tance was reasonable considering all the circum-
stances. . . . Judicial scrutiny of counsel’s
performance must be highly deferential and courts 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 chal-
lenged action might be considered sound trial strategy.
. . . [S]trategic choices made after thorough investiga-
tion of law and facts relevant to plausible options are
virtually unchallengeable; [but] strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.’’
(Citations omitted; internal quotation marks omitted.)
Gerald W. v. Commissioner of Correction, 169 Conn.
App. 456, 464, 150 A.3d 729 (2016), cert. denied, 324
Conn. 908, 152 A.3d 1246 (2017).
We conclude, as the habeas court did, that the United
States Supreme Court’s decision in Maryland v. Kul-
bicki, U.S. , 136 S. Ct. 2, 3, 193 L. Ed. 2d 1 (2015),
is dispositive of the petitioner’s claim. In that case, FBI
agent Ernest Peele, the state’s expert regarding CBLA,
testified at the defendant’s criminal trial in 1995 that
‘‘the composition of elements in the molten lead of a
bullet fragment found in the [defendant’s] truck
matched the composition of lead in a bullet fragment
removed from the victim’s brain . . . .’’ Id. Peele fur-
ther testified that a bullet from the defendant’s gun was
similar enough to the bullet fragments that ‘‘the two
bullets likely came from the same package.’’ Id. In 2006,
by which time CBLA evidence was no longer generally
accepted by the scientific community, the defendant
raised a claim that his trial attorneys were ineffective
in failing to question the legitimacy of the CBLA evi-
dence. Id.
The Court of Appeals of Maryland agreed with the
defendant, concluding that his trial counsel should have
discovered a report coauthored by Peele that ‘‘presaged
the flaws in CBLA evidence.’’ Id. One of the findings in
the report was that ‘‘the composition of lead in some
bullets was the same as that of lead in other bullets
packaged many months later in a separate box.’’ Id.
The Court of Appeals of Maryland concluded that this
one finding should have led the report’s authors to
doubt the faulty assumption that bullets produced from
different sources of lead have unique chemical composi-
tions. Id. The United States Supreme Court reversed,
concluding that there was no reason to believe that a
diligent search would have uncovered the report. Id.,
4. Moreover, even if it had, the report’s ultimate conclu-
sion was that CBLA was a ‘‘valid investigative tech-
nique,’’ and therefore, it was questionable whether trial
counsel would have brought it to the attention of the
jury. Id.
In reversing, the United States Supreme Court also
emphasized that the reasonableness of counsel’s con-
duct must be judged as of the time of counsel’s conduct.
Id. In 1995, CBLA evidence was widely accepted and
admitted, and courts routinely admitted CBLA evidence
until 2003. Id. Accordingly, the court concluded that
‘‘[c]ounsel did not perform deficiently by dedicating
their time and focus to elements of the defense that
did not involve poking methodological holes in a then-
uncontroversial mode of ballistics analysis.’’ Id.
The petitioner in the present case was tried in 2000,
within the time period in which CBLA evidence was
regularly admitted.12 The petitioner himself notes that
the National Academy of Science did not disavow the
methodology underlying CBLA evidence until 2007.
Moreover, the CBLA evidence admitted at the petition-
er’s trial is very similar to that considered by the United
States Supreme Court in Maryland v. Kulbicki, supra,
136 S. Ct. 4. As in that case, the petitioner in the present
case has provided no support for the conclusion that
his trial counsel was ‘‘constitutionally required to pre-
dict the demise of CBLA.’’ Id. The question is not ‘‘what
counsel should have done to constitute the proper rep-
resentation of the [petitioner] considering the case in
retrospect, but rather, whether in the circumstances,
as viewed at the time, the [petitioner] received effective
assistance of counsel.’’ (Internal quotation marks omit-
ted.) Lewis v. Commissioner of Correction, 89 Conn.
App. 850, 861–62, 877 A.2d 11, cert. denied, 275 Conn.
905, 882 A.2d 672 (2005); see also Crocker v. Commis-
sioner of Correction, 101 Conn. App. 133, 136, 921 A.2d
128 (‘‘[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’’), cert. denied, 283 Conn. 905, 927 A.2d 916 (2007).
The petitioner has presented this court with no basis
from which we could conclude that his trial counsel’s
conduct fell outside the wide range of reasonable pro-
fessional assistance. Accordingly, we agree with the
habeas court that the petitioner failed to demonstrate
that his trial counsel’s performance was deficient and,
therefore, his ineffective assistance of counsel claim
against his habeas counsel also fails. See Jefferson v.
Commissioner of Correction, 144 Conn. App. 767, 773,
73 A.3d 840 (where trial counsel was not ineffective,
petitioner could not demonstrate that deficient perfor-
mance of habeas counsel was prejudicial), cert. denied,
310 Conn. 929, 78 A.3d 856 (2013).
The petitioner has satisfied neither the performance
prong nor the prejudice prong of the Strickland inquiry.
Accordingly, the habeas court properly rejected the
petitioner’s ineffective assistance of habeas counsel
claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
This court also set forth facts that reasonably could have been found
by the jury from the evidence that the petitioner now claims violated his
due process rights. This court stated: ‘‘Subsequent laboratory analysis of
the bullets recovered from the victim’s body and those in a box of .25 caliber
cartridges found at the [petitioner’s] apartment revealed their chemical
elements to be indistinguishable. They all had come from that box of ammuni-
tion.’’ State v. Martin, supra, 77 Conn. App. 782.
2
In 2001, the petitioner filed a petition for a new trial on the basis of
newly discovered evidence. See Martin v. Flanagan, 107 Conn. App. 544,
545, 945 A.2d 1024 (2008). Specifically, he claimed that a prison inmate,
Terrell Stanton, had made statements to a third party exculpating the peti-
tioner in the crimes for which he was convicted and incriminating himself.
Id., 547–48. The trial court granted the state’s motion in limine to preclude
the admission of a former prison inmate’s testimony recounting what Stanton
told him. Id., 548. The court found such statements failed to satisfy the
trustworthiness component necessary for the admission of third party state-
ments against penal interest under the Connecticut Code of Evidence. Id.
The court further denied the petition for a new trial and granted certification
to appeal. On appeal, this court affirmed the judgment of the trial court. Id.
3
Although the petitioner argues that his due process rights under article
first, § 8, of the Connecticut constitution were violated, he fails to provide
an independent analysis under the state constitution. Therefore, we deem
abandoned any state constitutional claim. State v. Bennett, 324 Conn. 744,
748 n.1, 155 A.3d 188 (2017).
4
See, e.g., Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d
1217 (1959) (expressing principle that ‘‘a state may not knowingly use false
evidence, including false testimony, to obtain a tainted conviction’’ and
holding that petitioner’s due process rights were violated where witness
lied in denying that he had been promised consideration for his testimony,
and state’s attorney knew that witness was lying); Mooney v. Holohan, 294
U.S. 103, 110, 55 S. Ct. 340, 79 L. Ed. 791 (1935) (briefly reciting due process
principles in response to petitioner’s claim that state’s knowing use of
‘‘perjured testimony to obtain the conviction and the deliberate suppression
of evidence to impeach that testimony constituted a denial of due process
of law’’); Pyle v. Kansas, 317 U.S. 213, 216, 63 S. Ct. 177, 87 L. Ed. 214
(1942) (petitioner ‘‘set forth allegations that his imprisonment resulted from
perjured testimony, knowingly used by the State authorities to obtain his
conviction, and from the deliberate suppression by those same authorities
of evidence favorable to him’’); Giglio v. United States, 405 U.S. 150, 154,
92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972) (addressing a Brady violation on
basis of nondisclosure of promise made to witness in return for his coop-
eration).
5
Ortega involved a claim of perjured testimony, and it is unclear whether
Ortega requires a petitioner to show that the challenged testimony was in
fact perjured or only that the testimony was false, as is claimed here. Because
we conclude that the petitioner’s due process claim fails even under the
standard applied to perjured testimony in Ortega, we need not address this
question. See Toccaline, supra, 177 Conn. App. 492 n.12 (noting uncertainty
as to whether Ortega requires a petitioner to show that testimony was
perjured or only that it was false, but concluding under Ortega standard
that petitioner had not shown prejudice by admission of false testimony).
6
The petitioner challenges the habeas court’s reliance upon Lewis v.
Commissioner of Correction, 116 Conn. App. 400, 411, 975 A.2d 740, cert.
denied, 294 Conn. 908, 982 A.2d 1082 (2009), as support for its conclusion
that in order to prevail on a due process claim involving false evidence, the
petitioner would be required to prove that the prosecutor intentionally
presented false evidence. The petitioner further claims that Lewis is ‘‘no
longer good law in Connecticut.’’ Lewis is distinguishable in that, there, the
petitioner failed to present his perjury claim to the habeas court in the
context of a claimed violation of due process and further failed to allege
how the claimed perjury affected the outcome of his trial. Id., 412 n.9. We
need not address the petitioner’s claim that the court’s reliance on Lewis
was misplaced, given that this court’s decision in Toccaline, which was
released after the habeas court’s decision in this case, is procedurally analo-
gous to the petitioner’s claim. Toccaline, rather than Lewis, guides this
court’s analysis.
7
The petitioner provides no legal support for his contention that this
court should review his claim to determine whether the introduction of
the CBLA evidence was ‘‘harmless beyond a reasonable doubt.’’ As the
respondent argues, that standard is used to assess harm in the context of
a direct appeal of a claimed constitutional violation and is inapplicable in the
present habeas action. We agree, and accordingly, we reject the petitioner’s
request that this court engage in harmless error review.
8
The petitioner claims that the jury ‘‘had before it the difficult task of
determining who was telling the truth,’’ given that Harris drove the getaway
car and received immunity in exchange for her testimony. He claims that
Lundy’s testimony was especially harmful because it was the sole evidence
tying the murder weapon to the petitioner, other than the remaining wit-
nesses’ self-serving testimony.
The jury was well aware of the fact that Harris had entered into an
agreement pursuant to which she would not be prosecuted if she testified
truthfully. She testified regarding the agreement on direct and cross-exami-
nation, and the written agreement was entered into evidence as a full exhibit
and read to the jury during cross-examination. Whether a witness’ testimony
is believable is ‘‘a question solely for the jury. It is . . . the absolute right
and responsibility of the jury to weigh conflicting evidence and to determine
the credibility of the witnesses.’’ (Internal quotation marks omitted.) See
State v. Vazquez, 119 Conn. App. 249, 255–56, 987 A.2d 1063 (2010) (where
testimony of two witnesses for state differed in some respects, evidence
that one witness’ plea agreement hinged on his testifying against defendant,
‘‘merely provide[d] further information on which the jury made its credibil-
ity determinations’’).
9
Lundy testified, in relevant part, as to her conclusions based on the
examination she conducted of seven bullets and bullet fragments recovered
from the crime scene and nine bullets from cartridges in the ammunition box:
‘‘[The Prosecutor]: Based on your examination of the bullets, which you
just described, what conclusions did you draw regarding the seven bullets
and bullet fragments as compared to the nine bullets from the box?
‘‘[The Witness]: When the analysis was completed, it was determined that
the seven bullets, or bullet fragments, and the nine bullets from the cartridges
in the box, were what we call, analytically indistinguishable in composition.
And, basically, what that means is, if I were to hand you those seven bullets
and the nine bullets from the cartridges, and ask you to sample them again,
and then give me the samples blindly so that I didn’t know which were from
the fired bullets and which were the bullets from the cartridges, after I
conducted the analysis, I still couldn’t tell you. All the specimens were
chemically the same.
‘‘[The Prosecutor]: And what does that indicate to you about their time
of manufacture and their place of manufacture?
‘‘[The Witness]: Based on the results and my experience, the conclusion
that I came to was that all those bullets were manufactured from the same
source, or melt of lead. And because the live ammunition was a Winchester
manufacture, that would have occurred at the Winchester manufacturing
plant in East Alton, Illinois.
‘‘[The Prosecutor]: And were those seven bullets and bullet fragments,
and the nine bullets from the box, would they have been manufactured on
or near the same time?
‘‘[The Witness]: Yes, they would have.
‘‘[The Prosecutor]: And would you expect other bullets manufactured on
or about that same day from that same batch of lead to have the same
analytically indistinguishable lead component?
‘‘[The Witness]: Yes, I would. Based on experience, I would expect that
other boxes of this same type—this .25 auto Winchester ammunition, it was
loaded with the copper coated expanding point bullets. If I were to analyze
other boxes made at the same time, I would expect to find the same compo-
sition.’’
10
Because we resolve the petitioner’s claim on the basis that he has not
shown a reasonable probability that but for Lundy’s testimony, he would
not have been convicted, we decline to reach the petitioner’s broader claims
of error that ‘‘it is contrary to clearly established Connecticut law to assert
that a petitioner is not permitted to raise a claim of due process violation
in habeas corpus’’ and that a due process claim based on the unknowing
presentation of false evidence need not be presented in the context of an
actual innocence claim. Likewise, we need not address the respondent’s
arguments that the flaws in CBLA evidence are ‘‘not beyond the ken of the
adversary process,’’ that ‘‘parts of Lundy’s testimony . . . were not entirely
‘false,’ and [that] not all courts have fully rejected CBLA testimony.’’
11
In fact, as the habeas court found, Attorney DeSantis had consulted
with a metallurgist, but declined to call him as a witness and elected to rely
on the FBI report containing similar information.
12
We note that Lundy’s testimony did not go entirely unchallenged. On
cross-examination, the petitioner’s counsel elicited from Lundy recognition
that if a local gun store ordered twenty-five boxes of the same product
manufactured at the same time, the ‘‘boxes could have the same composi-
tions in them.’’ Lundy also acknowledged that she could not give a figure
as to how many bullets produced from one melt of lead would have differ-
ent compositions.