Soto v. Commissioner of Correction ( 2022 )

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LUIS SOTO v. COMMISSIONER OF CORRECTION
(AC 43289)
Bright, C. J., and Elgo and Alexander, Js.
Syllabus
The petitioner, who had been convicted of the crimes of criminal possession
of a pistol and risk of injury to a child, sought a writ of habeas corpus,
claiming, inter alia, that his trial counsel, C, had provided ineffective
assistance. The police obtained a search warrant for the home of P, the
petitioner’s cousin, on the basis of a tip from a confidential informant
indicating that P was in possession of a semiautomatic handgun. The
petitioner was in the home when the police executed the warrant. The
police discovered a semiautomatic pistol, which they later determined
had been stolen, inside of a backpack that was in the closet of one of
the bedrooms. After the petitioner became aware that the police had
located the pistol, one of the police officers overheard him ask P in
Spanish, ‘‘quién va a tomar,’’ meaning, ‘‘who’s going to take it.’’ There-
after, both the petitioner and P denied possession and knowledge of
the pistol. The petitioner, however, admitted that he was staying in the
bedroom in which the pistol was located, that his clothes were hanging
in the closet, and that he had been in and out of the closet multiple
times. Prior to trial, the petitioner rejected two offers to enter into a
plea agreement, the first of which would have required him to serve
three years of incarceration and the second of which would have required
him to serve two years. Following trial, he was sentenced to a term of
twelve years of incarceration. The petitioner filed a writ of habeas corpus
alleging, inter alia, that C had rendered ineffective assistance by failing
to meaningfully convey the plea offers and by failing to investigate and
call the confidential informant as a witness. The habeas court denied
the writ of habeas corpus, and, on the granting of certification, the
petitioner appealed to this court. Held:
1. The habeas court’s conclusion that the petitioner failed to prove that he
was prejudiced by C’s allegedly deficient pretrial advice was not
improper: although C rendered professional assistance that may have
been deficient in certain respects, the petitioner could not prevail on his
claim of ineffective assistance with respect to the pretrial proceedings
because he failed to establish, pursuant to Strickland v. Washington
(466 U.S. 668), that he was prejudiced by C’s actions, as the habeas
court, crediting C’s testimony that the petitioner insisted that he was
innocent of the crimes charged and thought that the second offer was
unfair when compared to the offer received by P and discrediting the
petitioner’s testimony that, but for C’s advice, he would have accepted
a plea offer, found that there was no credible evidence that the petitioner
was ever willing to accept a pretrial offer, regardless of C’s advice;
moreover, the petitioner’s alternative argument that the habeas court, in
analyzing the claim under Strickland, applied an improper legal standard
failed because, contrary to the petitioner’s claim, C’s conduct was not
presumptively prejudicial under United States v. Cronic (466 U.S. 648),
as the record demonstrated that the petitioner was provided legal coun-
sel throughout his criminal trial, the petitioner did not claim that his
criminal trial presented a situation in which no competent attorney
could render effective assistance, and C did not entirely fail to subject
the prosecution’s case to meaningful adversarial testing.
2. The petitioner could not prevail on his ineffective assistance of counsel
claim with respect to C’s failure to investigate and call the confidential
informant as a witness because he failed, under Strickland, to establish
that he was prejudiced by such failure: the habeas court’s conclusion
that the informant’s testimony would have been cumulative to other
evidence elicited at the criminal trial was supported by the evidence,
including the warrant to search the apartment, which was obtained on
the basis of the informant’s tip that P was in possession of a gun;
moreover, the state’s theory at trial was that the petitioner constructively
possessed the gun, and the fact that P had been, at one time, in actual
possession of the gun did not by itself negate that theory; furthermore,
the informant did not and could not offer any testimony regarding the
petitioner’s knowledge, dominion or control of the backpack or the gun
that was sufficient to undermine confidence in the verdict, which was
supported by the petitioner’s admissions and by his incriminating state-
ment in Spanish to P, which supported an inference that he knew of
the gun’s presence and its incriminating nature; accordingly, this court
was not convinced that there was a reasonable probability that, but for
C’s alleged errors, the result of the proceeding would have been different.
Argued February 8, 2021—officially released September 13, 2022
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, Newson, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
James E. Mortimer, assigned counsel, for the appel-
lant (petitioner).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Joseph T. Corradino,
state’s attorney, and Cornelius Kelly, supervisory assis-
tant state’s attorney, for the appellee (respondent).
Opinion
ELGO, J. The petitioner, Luis Soto, appeals from the
judgment of the habeas court denying his petition for
a writ of habeas corpus alleging ineffective assistance
of trial counsel. On appeal, the petitioner claims that
the court improperly rejected his claim that trial counsel
rendered ineffective assistance (1) during pretrial pro-
ceedings and (2) by failing to investigate and present
the testimony of a confidential informant at trial. We
affirm the judgment of the habeas court.
The following facts are relevant to our resolution of
the petitioner’s claims. ‘‘On June 11, 2014, at approxi-
mately 5 a.m., police officers with the Statewide Urban
Violence Cooperative Crime Control Task Force (task
force) executed a search warrant on the second floor
apartment at 217 Hough Avenue in Bridgeport. The task
force had obtained the warrant on the basis of a confi-
dential informant’s tip that Francisco Pineiro, the [peti-
tioner’s] cousin, was in possession of a black semiauto-
matic handgun. When the task force officers applied for
the warrant, they believed that, in addition to Pineiro,
Christina Jimenez and her two children resided at the
apartment.
‘‘Upon entering the apartment, task force officers
encountered Pineiro, Jimenez, two children aged ten
and five, and the [petitioner]. Some of the task force
officers detained the apartment’s occupants in the
kitchen while other officers searched the apartment.
The apartment had three bedrooms, one of which even-
tually was determined to be the [petitioner’s]. In the
closet of that bedroom, Detective David Edwards found
a leather backpack containing a bag of cocaine, three
loose .40 caliber rounds, and a semiautomatic pistol
that was fully loaded with twelve rounds. The task force
officers eventually determined that the pistol had been
stolen several years earlier. Edwards also found the
[petitioner’s] state identification card on a television
stand in that bedroom and some clothes hanging in the
bedroom closet.
‘‘While being detained in the kitchen, the [petitioner]
became aware that task force officers [had] found a
pistol in the bedroom. At that point, Officer Ilidio Per-
eira, who was detaining the apartment’s occupants in
the kitchen, overheard the [petitioner] ask Pineiro in
Spanish, ‘quién va a tomar,’ which means ‘who’s going
to take it.’
‘‘After recovering the pistol, Edwards questioned
Pineiro, Jimenez, and the [petitioner] about the pistol.
Both Pineiro and Jimenez denied possession and knowl-
edge of the pistol. Additionally, Jimenez was ‘genuinely
concerned and shocked’ about the pistol’s presence in
the apartment and ‘placed the blame’ on the [petitioner]
for the pistol. The [petitioner], who was a convicted
felon, stated that the pistol was not his, that he had
never seen it before, and that he did not know to whom
it belonged. The [petitioner] did indicate, however, that
he was staying in that bedroom, that the clothes hanging
in the closet belonged to him, and that he had been ‘in
and out of the closet multiple times.’
‘‘As a result of the search and questioning of the
apartment’s occupants, task force officers arrested the
[petitioner] on several gun and drug offenses. The state
charged the [petitioner] with stealing a firearm in viola-
tion of General Statutes § 53a-212 (a), criminal posses-
sion of a pistol in violation of [General Statutes] § 53a-
217c (a) (1), possession of a controlled substance within
1500 feet of a school in violation of General Statutes
§ 21a-279 (b), and risk of injury to a child in violation
of [General Statutes] § 53-21 (a) (1). The [petitioner]
elected a jury trial.
‘‘At trial, the state sought to establish that the [peti-
tioner] constructively possessed the pistol, ammuni-
tion, and cocaine seized from Pineiro’s apartment. Spe-
cifically, it sought to link the [petitioner] to those items
with statements he had made to Pineiro and to task
force officers at Pineiro’s apartment. The [petitioner’s]
statements were introduced through the testimony of
several task force officers who had participated in exe-
cuting the warrant at Pineiro’s apartment. In particular,
those officers testified that the [petitioner] asked
Pineiro ‘who’s going to take it’ in reference to the pistol,
that he indicated that he was staying in the bedroom
in which the items were found, that he stated that the
clothes hanging in the closet belonged to him, and that
he admitted that he had been ‘in and out of the closet
multiple times.’
‘‘In an effort to refute the officers’ testimony with his
own version of the events as to what had transpired at
Pineiro’s apartment, the [petitioner] testified on his own
behalf. The [petitioner’s] decision to do so rendered
this case, in large part, a credibility contest between
the [petitioner] and the task force officers. The thrust
of the [petitioner’s] testimony was a blanket denial of
the inculpatory statements the task force officers
alleged he had made, including his asking Pineiro ‘who’s
going to take it’ with respect to the pistol that the
officers had discovered.
‘‘Furthermore, the [petitioner] denied that the offi-
cers asked him whether he had been staying in the
bedroom in which the pistol was found, whether the
backpack in which the pistol was stored belonged to
him, whether the cocaine stored in the backpack
belonged to him, and whether the clothes in the bed-
room belonged to him. According to the [petitioner],
the only question the officers asked him was if the
gun belonged to him. The [petitioner] testified that, in
response to that question, he stated ‘that’s not my gun,
I never saw it.’
‘‘The jury found the [petitioner] guilty of criminal
possession of a pistol and risk of injury to a child, but
not guilty of stealing a firearm and possession of a
controlled substance within 1500 feet of a school.’’ State
v. Soto, 175 Conn. App. 739, 741–43, 168 A.3d 605, cert.
denied, 327 Conn. 970, 173 A.3d 953 (2017). The trial
court rendered judgment accordingly and sentenced
the petitioner to a term of twelve years of incarceration.
Id., 744. This court affirmed that judgment of conviction
on direct appeal. Id., 757.
On June 9, 2016, the petitioner filed a petition for a
writ of habeas corpus, alleging that his trial counsel,
Attorney Andre Cayo, rendered ineffective assistance,1
inter alia, because he failed (1) ‘‘to meaningfully convey
one or more plea offers to the petitioner’’ and (2) ‘‘to
adequately investigate, identify and compel the atten-
dance of the state’s confidential informant . . . .’’2 A
habeas trial was held on March 6 and 11, 2019. On June
19, 2019, the court issued a memorandum of decision
denying the petitioner’s writ of habeas corpus. There-
after, the habeas court granted the petition for certifica-
tion to appeal, and this appeal followed.
Before considering the petitioner’s specific claims,
we first note the well established precepts that govern
our review. ‘‘Our standard of review of a habeas court’s
judgment on ineffective assistance of counsel claims is
well settled. In a habeas appeal, this court cannot dis-
turb the underlying facts found by the habeas court
unless they are clearly erroneous, but our review of
whether the facts as found by the habeas court consti-
tuted a violation of the petitioner’s constitutional right
to effective assistance of counsel is plenary. . . .
‘‘In Strickland v. Washington, [466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States
Supreme Court established that for a petitioner to pre-
vail on a claim of ineffective assistance of counsel, he
must show that counsel’s assistance was so defective
as to require reversal of [the] conviction. . . . That
requires the petitioner to show (1) that counsel’s perfor-
mance was deficient and (2) that the deficient perfor-
mance prejudiced the defense. . . . Unless a [peti-
tioner] makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
. . . Because both prongs . . . must be established for
a habeas petitioner to prevail, a court may dismiss a
petitioner’s claim if he fails to meet either prong. . . .
‘‘To satisfy the performance prong of the Strickland
test, the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . [A]
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable pro-
fessional assistance; that is, the [petitioner] must over-
come the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy. . . .
‘‘With respect to the prejudice component of the
Strickland test, the petitioner must demonstrate that
counsel’s errors were so serious as to deprive the [peti-
tioner] of a fair trial, a trial whose result is reliable.
. . . It is not enough for the [petitioner] to show that
the errors had some conceivable effect on the outcome
of the proceedings. . . . Rather, [t]he [petitioner] must
show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome.’’ (Internal quotation marks
omitted.) Wargo v. Commissioner of Correction, 144
Conn. App. 695, 700–702, 73 A.3d 821 (2013), appeal
dismissed, 316 Conn. 180, 112 A.3d 777 (2015).
‘‘It is axiomatic that courts may decide against a
petitioner on either prong [of the Strickland test],
whichever is easier.’’ (Internal quotation marks omit-
ted.) Flomo v. Commissioner of Correction, 169 Conn.
App. 266, 278, 149 A.3d 185 (2016), cert. denied, 324
Conn. 906, 152 A.3d 544 (2017). ‘‘[T]he petitioner’s fail-
ure to prove either [the performance prong or the preju-
dice prong] is fatal to a habeas petition.’’ (Internal quota-
tion marks omitted.) Colon v. Commissioner of
Correction, 179 Conn. App. 30, 36, 177 A.3d 1162 (2017),
cert. denied, 328 Conn. 907, 178 A.3d 390 (2018). ‘‘[A]
court need not determine whether counsel’s perfor-
mance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged
deficiencies. . . . If it is easier to dispose of an ineffec-
tiveness claim on the ground of lack of sufficient preju-
dice . . . that course should be followed.’’ (Internal
quotation marks omitted.) Kellman v. Commissioner
of Correction, 178 Conn. App. 63, 72, 174 A.3d 206(2017). With those principles in mind, we turn to the
petitioner’s specific claims of ineffective assistance of
counsel.
I
The petitioner first claims that the court improperly
concluded that he failed to prove that he was prejudiced
by Cayo’s allegedly deficient pretrial advice. We do
not agree.
The following additional facts and procedural history
are relevant to the petitioner’s claim. During the habeas
trial, Nicholas Bove, the prosecutor from his criminal
trial, testified that, although he was not personally
involved in any plea negotiations with the petitioner,
his review of the file reflected that two offers were
made to the petitioner. On October 14, 2014, the state
offered the petitioner a sentence of ten years of incar-
ceration, execution suspended after three years, with
five years of probation and a $5000 fine (first offer).
That offer was withdrawn by the state on November
13, 2014. According to Bove, the trial court proposed
a second offer of ten years of incarceration, execution
suspended after two years, with five years of probation
and a $5000 fine on November 19, 2014 (second offer),
which the petitioner rejected.3 The state was unwilling
to offer a term of less than two years of imprisonment.
On December 9, 2014, Bove and Cayo appeared before
the court, at which time the state represented that there
had been no progress on the offer proposed by the
court on November 19, 2014. As a result, the court
scheduled the matter for a jury trial, which commenced
on February 5, 2015.
At the habeas trial, Cayo gave conflicting and confus-
ing testimony regarding whether he had advised the
petitioner to consider a plea agreement. Cayo testified
that he first appeared on behalf of the petitioner right
before trial and had not participated in any pretrial
proceedings. As to why he never discussed with the
petitioner the mandatory minimum sentences that he
faced if convicted, Cayo explained that he was not the
petitioner’s attorney at the time that the plea offers were
made and rejected, which is when such discussions
ordinarily would occur with his client. Cayo also stated
that, after filing his appearance on behalf of the peti-
tioner, he never approached the state about resolving
the case through a plea agreement because he knew
the state would not offer less than two years. Cayo also
did not recall whether the state made another offer
following the petitioner’s rejection of the first two
offers, stating only, as a matter of practice, rejected
offers may or may not be on the table.
When asked if he had ‘‘a recollection of there being
a firm offer on the table in this case prior to trial when
[he] represented the petitioner,’’ Cayo testified that he
recalled ‘‘talking to one of the state attorneys who made
a final offer before trial of two years, no money, or two
years and less money.’’ Asked whether he had conveyed
only one offer to the petitioner during the course of
his representation, Cayo testified: ‘‘Yes, just one offer.
Actually . . . there might have been a second offer
with or without money. So, there was—I think the two
years was the same. I think there was an offer with
money and another offer without money. So, the [offer]
without money may have come second.’’ Cayo testified
that he told the petitioner about the second offer,
which—contrary to the state’s testimony and documen-
tary evidence—he stated was for ‘‘two years, no money,
or two years and less money.’’ Cayo further testified
that the petitioner at that time had claimed that he was
innocent and that two years of imprisonment was ‘‘too
much’’ because Pineiro had been offered only three
months of incarceration.
At the habeas trial, the petitioner testified that, had
he not been misadvised by Cayo on a variety of legal
and evidentiary issues during his criminal trial, he
‘‘would have just took the three years.’’ In particular,
the petitioner and Cayo both testified that Cayo never
explained the theory of constructive possession to the
petitioner. The petitioner also insisted that he had no
knowledge of the handgun found by the police.
In its memorandum of decision, the court first con-
cluded that the petitioner’s ineffective assistance claim
could not succeed because ‘‘the evidence fails to estab-
lish that [Cayo] was actually the attorney who repre-
sented and advised the petitioner at the time he formally
rejected the offers.’’ The court also concluded that, even
if the evidence sufficiently had established that Cayo
represented the petitioner at the time the offer was
formally extended, ‘‘or that the [second offer] was
recommunicated to [Cayo] in a way that obligated him
to discuss the matter with [him],’’ the petitioner had
failed to establish prejudice because ‘‘Cayo was clear
and unequivocal that the petitioner [at that time] . . .
insisted [that] he had no knowledge of the drugs or guns
with which he was charged, that he firmly protested
his innocence, and that he was wholly unwilling to
accept a resolution that required him to serve two years
in prison. The petitioner also admitted that he always
denied knowledge of the gun or the [backpack] when
speaking to counsel. . . . [T]he petitioner protested
the unfairness of an offer that would require him to
serve two years while his codefendant was supposedly
only being offered three months.’’ The court thus con-
cluded that, ‘‘despite the petitioner’s testimony now,
[there was no] credible evidence that he was ever will-
ing to accept the [second offer], regardless of counsel’s
advice.’’ (Emphasis in original.)
A
On appeal, we need not address both prongs of the
Strickland test if either is dispositive of the petitioner’s
ineffective assistance of counsel claim. See Quint v.
Commissioner of Correction, 211 Conn. App. 27, 32,
271 A.3d 681, cert. denied, 343 Conn. 922, 275 A.3d 211(2022). Because we conclude that the petitioner has
failed to establish that the habeas court erred in its
prejudice determination, we limit our analysis to that
prong.
We begin our analysis by noting that, to establish
prejudice in the context of plea negotiations, a peti-
tioner must show that ‘‘(1) it is reasonably probable
that, if not for counsel’s deficient performance, the peti-
tioner would have accepted the plea offer, and (2) the
trial judge would have conditionally accepted the plea
agreement if it had been presented to the court.’’ Ebron
v. Commissioner of Correction, 307 Conn. 342, 357, 53
A.3d 983 (2012), cert. denied sub nom. Arnone v. Ebron,
569 U.S. 913, 133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013).
Moreover, ‘‘[i]t is well established that an appellate
court cannot evaluate the credibility of the witnesses.
. . . Rather, we must defer to the [trier of fact’s] assess-
ment of the credibility of the witnesses based on its
firsthand observation of their conduct, demeanor and
attitude. . . . The habeas judge, as the trier of facts,
is the sole arbiter of the credibility of witnesses and
the weight to be given to their testimony.’’ (Internal
quotation marks omitted.) Georges v. Commissioner of
Correction, 203 Conn. App. 639, 646, 249 A.3d 355, cert.
denied, 336 Conn. 943, 250 A.3d 40 (2021).
A review of cases in which habeas courts have made
credibility determinations regarding a petitioner’s will-
ingness to accept plea offers is instructive. In Watts v.
Commissioner of Correction, 194 Conn. App. 558, 562,
221 A.3d 829 (2019), cert. denied, 334 Conn. 919, 222
A.3d 514 (2020), the petitioner was charged with, inter
alia, murder in violation of General Statutes §§ 53a-8
(a) and 53a-54 (a), conspiracy to commit murder in
violation of General Statutes §§ 53a-48 (a) and 53a-54a
(a), and three counts of assault in the first degree in
violation of General Statutes §§ 53a-8 (a) and 53a-59
(a) (5) in relation to a shooting in Hartford. The peti-
tioner also was charged with assault in the first degree
in violation of § 53a-59 (a) (1) in connection with an
altercation in East Hartford. Id. Shortly thereafter, the
court offered the petitioner a plea deal of thirty-eight
years of incarceration to resolve both cases. Id. The
petitioner rejected that offer, and, before jury selection
began in the Hartford case, he accepted a separate plea
offer of nine years to resolve the East Hartford case.
Id. After a jury found the petitioner guilty in the Hartford
case of manslaughter in the first degree in violation of
General Statutes §§ 53a-8 (a) and 53a-55a (a) and three
counts of assault in the first degree, the court sentenced
the petitioner to a term of ninety-five years of incarcera-
tion. Id., 562–63.
Subsequently, the petitioner brought a habeas action
alleging, inter alia, ineffective assistance of counsel. Id.,
563. At the habeas trial, the petitioner testified that, if
he had received accurate advice from his trial counsel,
he would have accepted the plea offer given by the court
to resolve both cases. Id., 564. Later in his testimony,
however, the petitioner stated that, at the time he was
offered a plea deal of thirty-eight years, it was his
impression that it was a ‘‘ ‘large sentence.’ ’’ Id., 566.
The habeas court concluded that ‘‘the petitioner did
not prove that there was a reasonable probability that
he would have accepted the offer of thirty-eight years,
even if [his trial counsel] had recommended it, and
implicitly discredited the petitioner’s testimony.’’ (Inter-
nal quotation marks omitted.) Id.
On appeal, this court affirmed the propriety of that
determination ‘‘[b]ecause the habeas court discredited
the petitioner’s testimony, and there was no other evi-
dence from which the court could have found that the
petitioner would have accepted the plea deal offered
. . . .’’ Id., 566–67. Accordingly, this court concluded
that the petitioner ‘‘failed to meet his burden of demon-
strating prejudice. Ultimately, the habeas court con-
cluded, after choosing not to credit the petitioner’s testi-
mony, that he would not have accepted the plea offer
if his lawyer had performed competently and that the
petitioner failed to sustain his burden of persuasion of
showing that he was prejudiced by his trial counsel’s
alleged deficient performance. Given our well estab-
lished deference to the habeas court’s credibility deter-
minations, the petitioner cannot prevail on this claim.’’
Id., 567.
In Fields v. Commissioner of Correction, 179 Conn.
App. 567, 180 A.3d 638 (2018), the petitioner challenged
his thirty year sentence for felony murder, claiming
that his trial counsel rendered ineffective assistance by
failing to advise him of a plea offer made by the state
before trial. Id., 568–69. Although the habeas court con-
cluded that the petitioner’s trial counsel had rendered
constitutionally deficient performance by failing to
advise the petitioner of the state’s twenty-five year plea
offer, the court nonetheless determined that the peti-
tioner had not been prejudiced by that deficient perfor-
mance. Id., 569. Specifically, the court concluded that
the petitioner had failed to demonstrate, by a fair pre-
ponderance of the evidence, that he would have
accepted the offer had his trial counsel conveyed it to
him. Id. At the habeas trial, the petitioner testified that
he would have accepted responsibility in exchange for
the plea offer of twenty-five years. Id., 571–72. In its
memorandum of decision, however, the court refused
to credit the petitioner’s testimony in that regard, noting
that ‘‘(1) it was self-serving; (2) it was the only evidence
in the record that the petitioner would have accepted
the offer; and (3) because what the petitioner would
do at the time of the hearing, knowing the outcome of
his trial, was different from what he would have done
at the time of his sentencing.’’ Id., 576.
On appeal, the petitioner in Fields claimed that the
habeas court erred in concluding he was not prejudiced
by his trial counsel’s constitutionally deficient perfor-
mance ‘‘because there was no evidence in the record
tending to show that he would not have accepted the
offer, and, thus, the court’s finding to that effect was
entirely speculative.’’ Id., 569. This court rejected that
claim, stating: ‘‘Although we are troubled by the facts
of this case concerning [trial counsel’s] deficient perfor-
mance, we must keep in mind that, in assessing the
habeas court’s finding as to prejudice, [i]t is simply
not the role of this court on appeal to second-guess
credibility determinations made by the habeas court.’’
(Internal quotation marks omitted.) Id.
Both cases compel a similar conclusion here. In the
present case, the habeas court credited Cayo’s ‘‘clear
and unequivocal’’ testimony that the petitioner insisted
that he was innocent of the crimes charged and thought
the second offer was unfair when compared to his code-
fendant’s offer.4 As in Watts, the habeas court here
discredited the petitioner’s habeas trial testimony that,
but for Cayo’s advice, he would have accepted a plea
offer. The court found that there was no ‘‘credible evi-
dence that [the petitioner] was ever willing to accept
the [second offer], regardless of counsel’s advice.’’ As
in Fields, we are troubled by certain facts concerning
Cayo’s pretrial conduct. Nonetheless, ‘‘[a]ppellate
courts do not second-guess the trier of fact with respect
to [determinations of] credibility’’; (internal quotation
marks omitted) Perez v. Commissioner of Correction,
194 Conn. App. 239, 242, 220 A.3d 901, cert. denied, 334
Conn. 910, 221 A.3d 43 (2019); and ‘‘[t]his court does
not retry the case or evaluate the credibility of the
witnesses.’’ (Internal quotation marks omitted.) Smith
v. Commissioner of Correction, 141 Conn. App. 626,
632, 62 A.3d 554, cert. denied, 308 Conn. 947, 67 A.3d
290 (2013). In light of the foregoing, we conclude that
the petitioner has not established that he was preju-
diced by the actions of his trial counsel, and, therefore,
he cannot prevail on his first claim of ineffective assis-
tance of counsel.
B
The petitioner argues in the alternative that, irrespec-
tive of the habeas court’s credibility determination,
Cayo’s conduct was presumptively prejudicial under
United States v. Cronic, 466 U.S. 648, 659–60, 104 S.
Ct. 2039, 80 L. Ed. 2d 657 (1984), and that the court
erred in not analyzing his ineffective assistance claim
under that authority. On our plenary review of that
question of law; see Hartford Courant Co. v. Freedom
of Information Commission, 261 Conn. 86, 96–97, 801
A.2d 759 (2002); we disagree.
The United States Supreme Court recognized in
Strickland that ‘‘[i]n certain [s]ixth [a]mendment con-
texts, prejudice is presumed.’’ Strickland v. Washing-
ton, supra, 466 U.S. 692. In Cronic, which was decided
on the same day as Strickland, the court ‘‘elaborated
on the following three scenarios in which prejudice
may be presumed: (1) when counsel is denied to a
defendant at a critical stage of the proceeding; (2) when
counsel entirely fails to subject the prosecution’s case
to meaningful adversarial testing; and (3) when counsel
is called upon to render assistance in a situation in
which no competent attorney could do so.’’ (Internal
quotation marks omitted.) Davis v. Commissioner of
Correction, 319 Conn. 548, 555, 126 A.3d 538 (2015),
cert. denied sub nom. Semple v. Davis, 578 U.S. 941,
136 S. Ct. 1676, 194 L. Ed. 2d 801 (2016). The court
subsequently has emphasized ‘‘how seldom circum-
stances arise that justify a court in presuming prejudice
. . . .’’ (Internal quotation marks omitted.) Taylor v.
Commissioner of Correction, 324 Conn. 631, 644, 153
A.3d 1264 (2017); see also Ellis v. United States, 313
F.3d 636, 643 (1st Cir. 2002) (‘‘[t]he only [s]ixth [a]mend-
ment violations that fit within this narrowly circum-
scribed class are those that are pervasive in nature,
permeating the entire proceeding’’), cert. denied, 540
U.S. 839, 124 S. Ct. 99, 157 L. Ed. 2d 72 (2003).
None of the three prongs of Cronic is implicated
in the present case. The record demonstrates that the
petitioner was provided legal counsel throughout his
criminal trial, and he does not argue otherwise on
appeal. The petitioner also does not contend that this
case presented a situation in which no competent attor-
ney could render effective assistance. Moreover, when
viewed in its entirety, the present case is not one in
which counsel entirely failed to subject the prosecu-
tion’s case to meaningful adversarial testing. Although
the petitioner claims that Cayo’s representation was
deficient in multiple respects, such as misadvising him
on the state’s plea offers, the likelihood of prevailing
at trial, and the probability of a much greater sentence
after trial, those claims all concern the adequacy of
the representation provided and properly are analyzed
under Strickland. See, e.g., Boria v. Keane, 99 F.3d 492,
495–96 (2d Cir. 1996) (in case where trial counsel failed
to advise petitioner of slim chance of success at trial,
claim of prejudice was reviewed pursuant to Strick-
land), cert. denied, 521 U.S. 1118, 117 S. Ct. 2508, 138
L. Ed. 2d 1012 (1997); Fields v. Commissioner of Cor-
rection, supra, 179 Conn. App. 577 (in case where trial
counsel failed to inform petitioner of state’s plea offer,
claim was reviewed pursuant to Strickland); Barlow v.
Commissioner of Correction, 150 Conn. App. 781, 794,
802, 93 A.3d 165 (2014) (in case where trial counsel
failed to offer petitioner ‘‘her professional advice and
assistance concerning, and her evaluation of, the . . .
plea offer,’’ claim was reviewed pursuant to Strickland).
Contrary to the petitioner’s contention, the record
before us does not reveal that Cayo ‘‘ ‘wasn’t really
acting as a lawyer at all.’ ’’ In this regard, we are mindful
that Cayo helped the petitioner obtain an acquittal on
the charges of stealing a firearm and possession of a
controlled substance within 1500 feet of a school. See
State v. Soto, supra, 175 Conn. App. 743. Although Cayo
rendered professional assistance that may have been
deficient in certain respects, we cannot conclude that
this case falls into the narrow class for which review
under Strickland is obviated and prejudice must be
presumed. The habeas court, therefore, did not apply
an improper legal standard to the petitioner’s claim of
ineffective assistance.
II
The petitioner next claims that Cayo rendered inef-
fective assistance by failing to investigate and present
the testimony of the state’s confidential informant
(informant). The respondent contends that, because the
informant’s testimony was cumulative to other evidence
presented at the petitioner’s criminal trial, Cayo’s fail-
ure to discover his identity and call him as a defense
witness did not constitute constitutionally deficient per-
formance. We conclude that the materiality of the infor-
mant’s testimony is more appropriately considered
under the prejudice prong of Strickland. See Flomo v.
Commissioner of Correction, supra, 169 Conn. App.
278 (reviewing court may decide against petitioner on
either prong of Strickland test).
The following additional facts are relevant to the
petitioner’s claim. In order to obtain a search warrant
for the apartment, the police relied on statements from
the informant, an associate of Pineiro who previously
had observed a .40 caliber handgun and drugs at
Pineiro’s apartment. The informant told the police that
Pineiro showed him the gun twice in the summer of
2014. During one such occasion, Pineiro showed the
informant the gun, cocked it back, and said that ‘‘this
is for whoever, you know, for whatever I need it for’’
and that ‘‘this is my new toy . . . .’’ After the informant
provided that information to the police, no one con-
tacted him about the case until years later when,
approximately two weeks before the petitioner’s habeas
trial, he was contacted by a private investigator working
with the petitioner’s habeas counsel. When asked by the
private investigator about the petitioner, the informant
stated that he ‘‘didn’t really know who [the petitioner]
was,’’ except that Pineiro and the petitioner were cous-
ins. The informant testified that, on those occasions
when Pineiro showed him the gun, he had ‘‘never seen
[the petitioner]’’ at Pineiro’s apartment. He also testified
that, if someone had contacted him at the time of the
petitioner’s criminal trial, he would have provided the
same information and would have been willing to tes-
tify.
At the habeas trial, Cayo testified that he did not
know the informant’s identity at the time of the petition-
er’s trial5 and did not seek to investigate him because
‘‘[h]ow [the police] got the information—at the end of
the day, they had information to know there was a gun
and who owned the gun and which address the gun
was at. And I know my client does not live there. [The
petitioner] does not live there. So, I’m thinking, okay,
he lives somewhere else. The gun is at his cousin’s
house. You know, I had evidence of where he lives, and
he just happened to be at his cousin’s house when the
search was executed. So, I thought because of that I
didn’t need to talk to the confidential informant.’’
In its memorandum of decision, the habeas court did
not make a determination as to whether Cayo’s failure
to investigate or call the informant constituted deficient
performance. Instead, the court concluded that the
informant’s testimony was ‘‘cumulative to the evidence
elicited at trial,’’ reasoning that it was uncontroverted
at trial that (1) the search warrant was based on a claim
that Pineiro had been seen in possession of a handgun
and (2) the petitioner had never been seen in physical
possession of the handgun or backpack in question.
The court also stated that the informant’s testimony
did not ‘‘exclude the petitioner from knowledge and
actual or constructive possession of the weapon inside
of the apartment, which was allegedly wrapped in a T-
shirt belonging to him,6 inside the black [backpack],
within a closet in the bedroom he slept in at Pineiro’s
residence.’’ (Footnote added.) Accordingly, the court
determined that the petitioner had failed to establish
that he was prejudiced by the absence of the informant’s
testimony.
We reiterate that, ‘‘[w]ith respect to the prejudice
component of the Strickland test, the petitioner must
demonstrate that counsel’s errors were so serious as
to deprive the [petitioner] of a fair trial, a trial whose
result is reliable. . . . It is not enough for the [peti-
tioner] to show that the errors had some conceivable
effect on the outcome of the proceedings. . . . Rather,
[t]he [petitioner] must show that there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome. . . . When a
[petitioner] challenges a conviction, the question is
whether there is a reasonable probability that, absent
the errors, the factfinder would have had a reasonable
doubt respecting guilt.’’ (Internal quotation marks omit-
ted.) Madagoski v. Commissioner of Correction, 104
Conn. App. 768, 774, 936 A.2d 247 (2007), cert. denied,
286 Conn. 905, 944 A.2d 979 (2008). This court also has
stated that ‘‘[t]he failure of defense counsel to call a
potential defense witness does not constitute ineffec-
tive assistance unless there is some showing that the
testimony would have been helpful in establishing the
asserted defense.’’ (Internal quotation marks omitted.)
Donald G. v. Commissioner of Correction, 203 Conn.
App. 58, 68, 247 A.3d 182, cert. denied, 337 Conn. 907,
253 A.3d 45 (2021); see also Nieves v. Commissioner
of Correction, 51 Conn. App. 615, 624, 724 A.2d 508(‘‘[i]n the absence of that showing by the petitioner,
we are unable to conclude that he was prejudiced by
counsel’s failure to interview the witnesses’’), cert.
denied, 248 Conn. 905, 731 A.2d 309 (1999).
A review of other cases dealing with the failure of
trial counsel to call potential witnesses to testify is
instructive. In Bryant v. Commissioner of Correction,
290 Conn. 502, 504–505, 964 A.2d 1186, cert. denied sub
nom. Murphy v. Bryant, 558 U.S. 938, 130 S. Ct. 259,
175 L. Ed. 2d 242 (2009), a jury convicted the petitioner
of manslaughter in the first degree after crediting the
state’s evidence that he had dragged two men from
their car and beat them, one of them fatally, because
the men had failed to pay him in connection with a drug
deal. In his subsequent habeas petition, the petitioner
alleged that his trial counsel was ineffective for failing
to present a third-party culpability defense predicated
on the testimony of several witnesses, namely (1) the
driver of the car that struck the victim’s car, (2) two
emergency medical technicians who arrived shortly
thereafter, and (3) the girlfriend of the surviving victim,
with whom she had spoken shortly after the incident.
Id., 505–506. After hearing testimony from those wit-
nesses, the habeas court found their credibility to be
‘‘ ‘considerable and compelling’ ’’ because all four were
neutral witnesses who were not meaningfully
impeached at the habeas trial. Id., 510–11. The court
thus granted the petition for a writ of habeas corpus,
concluding that ‘‘ ‘it was harmful to the petitioner and
constituted inadequate representation to avoid intro-
ducing available and credible evidence of a clearly
exculpatory nature . . . .’ ’’ Id., 511. In affirming that
judgment, our Supreme Court observed that, if the four
witnesses had been called to testify, their testimony
‘‘likely would have permeated to some degree every
aspect of the trial and raised a reasonable doubt in the
minds of the jury as to the petitioner’s guilt.’’ Id., 523.
Moreover, our Supreme Court concluded that the testi-
mony ‘‘would have called into question the most basic
elements of the state’s case: (1) that the petitioner was
the individual who killed [the victim]; and (2) that [the
victim] died as a result of a beating.’’ Id., 520.
By contrast, in Meletrich v. Commissioner of Correc-
tion, 178 Conn. App. 266, 272–73, 174 A.3d 824 (2017),
aff’d, 332 Conn. 615, 212 A.3d 678 (2019), the petitioner
alleged that his trial counsel, Claud Chong, was ineffec-
tive because he failed to call Guillermina Meletrich, the
petitioner’s aunt, as an alibi witness. Although Chong
did not call Meletrich, he did call the petitioner’s girl-
friend, Christina Diaz, who testified as an alibi witness
at trial. Id., 276 n.3. This court determined that Mele-
trich’s testimony ‘‘would have been cumulative of that
of Diaz. Diaz testified at the criminal trial that she had
been with the petitioner every moment from the time
she arrived until after the robbery. . . . Meletrich
stated that Diaz was with the petitioner when she came
to see him. Finally, Chong, who did not remember every
detail, testified nonetheless that he or his investigator
interviewed several friends and family members and
thought Diaz could provide the best alibi because she
could cover the petitioner’s whereabouts at the time of
the robbery.’’ Id., 283–84. Because of the cumulative
nature of Meletrich’s testimony, this court concluded
that the addition of Meletrich’s testimony ‘‘would [not]
have reasonably affected the jury’s verdict.’’ Id., 286.
In the present case, the petitioner argues that he was
prejudiced by Cayo’s failure to call the informant as a
witness at his criminal trial because the informant’s
testimony ‘‘clearly indicates’’ Pineiro’s ownership of the
handgun. As this court noted in the petitioner’s direct
appeal, the evidence adduced at his criminal trial dem-
onstrated that the warrant to search the apartment was
obtained on the basis of a tip ‘‘that [Pineiro] . . . was
in possession of a black semiautomatic handgun.’’ State
v. Soto, supra, 175 Conn. App. 741. Moreover, there was
no evidence before the jury that the petitioner owned
or ever was seen in possession of the handgun. For
that reason, Cayo argued to the jury during closing
argument that the handgun belonged to Pineiro. That
evidence supports the habeas court’s conclusion that
the confidential informant’s testimony would have been
cumulative to other evidence elicited at trial.
Furthermore, the state’s theory at trial was that the
petitioner constructively possessed the handgun seized
from Pineiro’s apartment; see id., 742; and not that he
had actual possession of it. ‘‘There are two types of
possession, actual possession and constructive posses-
sion. . . . Actual possession requires the defendant to
have had direct physical contact with the [gun]. . . .
Where . . . the [gun is] not found on the defendant’s
person, the state must proceed on the theory of con-
structive possession, that is, possession without direct
physical contact. . . . Where the defendant is not in
exclusive possession of the premises where the [gun
is] found, it may not be inferred that [the defendant]
knew of the presence of the [gun] and had control of
[it], unless there are other incriminating statements or
circumstances tending to buttress such an inference.’’
(Citation omitted; internal quotation marks omitted.)
State v. Dawson, 188 Conn. App. 532, 541–42, 205 A.3d
662 (2019), rev’d in part on other grounds, 340 Conn.
136, 263 A.3d 779 (2021). ‘‘Under the doctrine of nonex-
clusive possession, more than one person can possess
contraband.’’ State v. Rhodes, 335 Conn. 226, 234, 249
A.3d 683 (2020). ‘‘Although ownership may be evidence
of constructive possession . . . ownership is not nec-
essary for constructive possession to be established.’’
(Citation omitted.) State v. Bowens, 118 Conn. App. 112,
124 n.4, 982 A.2d 1089 (2009), cert. denied, 295 Conn.
902, 988 A.2d 878 (2010).
Here, the fact that Pineiro was, at one point in time,
in actual possession of the firearm does not by itself
negate the state’s theory that the petitioner construc-
tively possessed the handgun. As we have noted, when
the police searched Pineiro’s apartment, they located
the handgun in a backpack in a bedroom closet. State
v. Soto, supra, 175 Conn. App. 741. The petitioner’s
state identification card was on a television stand in
the bedroom and some clothes were hanging in the
bedroom closet. Id. When questioned by the police, the
petitioner admitted that he was staying in the bedroom
where the handgun was located, that the clothes hang-
ing in the bedroom belonged to him, and that he had
been ‘‘ ‘in and out of the closet multiple times.’ ’’ Id., 742.
Most important to the state’s case was the statement
overheard by the police in which the petitioner asked
Pineiro in Spanish, ‘‘quién va a tomar,’’ meaning ‘‘who’s
going to take it.’’ (Internal quotation marks omitted.)
Id., 741–42. At trial, the state argued that this remark
was an incriminating statement tending to buttress an
inference that the petitioner knew about the handgun’s
presence and incriminating nature. Id., 744. As the
habeas court correctly noted in its memorandum of
decision, other than testimony of Pineiro’s potential
ownership of the firearm, the informant ‘‘did not, and
could not . . . offer any testimony regarding the peti-
tioner’s knowledge, dominion or control of the [back-
pack] and gun, or lack thereof, sufficient to undermine
confidence in the verdict.’’ (Emphasis added.)
Because we are not persuaded that the informant’s
testimony would have ‘‘called into question the most
basic elements of the state’s case’’; Bryant v. Commis-
sioner of Correction, supra, 290 Conn. 520; or that it
would have ‘‘been helpful in establishing the asserted
defense’’; (internal quotation marks omitted) Donald
G. v. Commissioner of Correction, supra, 203 Conn.
App. 68; we are not convinced that ‘‘there is a reasonable
probability that, but for counsel’s [alleged] unprofes-
sional errors, the result of the proceeding would have
been different.’’ (Internal quotation marks omitted.)
Madagoski v. Commissioner of Correction, supra, 104
Conn. App. 774. We therefore conclude that the peti-
tioner has not established that he was prejudiced by
Cayo’s failure to investigate and call the informant as
a witness and, accordingly, cannot prevail on his claim
of ineffective assistance of counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In his petition, the petitioner also raised a claim of actual innocence,
which the court rejected. On appeal, the petitioner does not challenge the
propriety of that determination.
2
The petitioner also alleged that Cayo was ineffective because he failed
(1) ‘‘to provide the petitioner with affirmative advice as to what plea [he]
should enter,’’ (2) ‘‘to properly and adequately investigate witnesses,’’ (3)
‘‘to properly and adequately present the testimony of witnesses,’’ (4) ‘‘to
investigate and present witnesses to identify the firearm as belonging to
[Pineiro],’’ (5) ‘‘to seek correction of the [trial] court’s statement that the
petitioner had a room in the home of [Pineiro and Jimenez],’’ (6) ‘‘to ade-
quately seek to compel the testimony of [Jimenez],’’ (7) ‘‘to adequately
exclude evidence of the petitioner’s prior conviction for possession of a
weapon,’’ (8) ‘‘to adequately advise the petitioner of the undesirability of
exercising his right to testify,’’ and (9) to act reasonably when he ‘‘argued
to the jury about his own criminal matter(s) . . . .’’ The habeas court con-
cluded that those claims lacked merit, and the petitioner does not contest
those rulings on appeal.
3
The record indicates that Attorney Thomas Paoletta filed an appearance
for the petitioner on June 12, 2014. Although Cayo filed his appearance in
lieu of the public defender’s office on November 13, 2014, Attorney Joanna
Carloni from the Office of the Public Defender appeared with the petitioner
in court on November 19, 2014, and reported that he was eligible for its
services. The transcript of the hearing on November 19, 2014, does not
reflect the substance of any off the record discussions regarding an offer
by the court.
4
We note that the petitioner has asserted that this determination by the
habeas court was ‘‘predicated on clearly erroneous factual findings . . . .’’
We do not agree. ‘‘A finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when although there is evidence
to support it, the reviewing court on the entire evidence is left with a definite
and firm conviction that a mistake has been committed. . . . It is not enough
to merely point to evidence in the record that contradicts the court’s find-
ings.’’ (Citation omitted; internal quotation marks omitted.) Rosa v. Commis-
sioner of Correction, 171 Conn. App. 428, 434, 157 A.3d 654, cert. denied,
326 Conn. 905, 164 A.3d 680 (2017).
The petitioner first contends that, although the habeas court concluded
that the petitioner ‘‘protested the unfairness of an offer that would require
him to serve two years while his codefendant was supposedly only being
offered three months,’’ Cayo had testified that he advised the petitioner that
‘‘[t]wo years was too much time especially when [Pineiro] was getting three
months.’’ Earlier in Cayo’s testimony, however, he stated that ‘‘my client
did not want to do two years because . . . based on my advice and based
on what he felt, he should not have to do two years if it’s [Pineiro] who
. . . was getting three months.’’ (Emphasis added.) More importantly, the
habeas court had before it the following colloquy between counsel for the
respondent and Cayo:
‘‘Q. [D]id [the petitioner] at any point in time during those situations that
you met with him on the court dates indicate that ‘I want to plead guilty
to these charges?’
‘‘A. No.
‘‘Q. He never indicated that?
‘‘A. No.
‘‘Q. And he wanted this trial?
‘‘A. Well, not necessarily. He was willing to do less than two years.
‘‘Q. Okay.
‘‘A. But he didn’t want to do two years.
‘‘Q. Right.
‘‘A. He thought two years was too much.
‘‘Q. All right.
‘‘A. And—
‘‘Q. And I believe the state wasn’t willing to come off that two year offer?
‘‘A. Correct.
‘‘Q. Thus, creating a situation where the case was destined for a trial
which you did have?
‘‘A. Yes.’’
As a result, the court had before it testimony that the petitioner indepen-
dently believed two years was ‘‘too much’’ time under the circumstances.
In addition, there was a plethora of evidence on which the court could
have relied in concluding that the petitioner was not credible, including his
testimony that Cayo conveyed both pretrial offers to him. Therefore, the
court’s finding that there was no credible evidence that the petitioner was
ever willing to accept a pretrial offer, regardless of counsel’s advice, is not
clearly erroneous.
The petitioner also argues that, when the habeas court concluded that
he was ‘‘wholly unwilling to accept a resolution that required him to serve
two years in prison,’’ it failed to consider Cayo’s testimony that the petitioner
‘‘probably was willing to take the two years without the fine.’’ A review of
the record nonetheless indicates that there was conflicting evidence as to
whether there was an offer for two years of imprisonment without a fine.
According to Bove, the first offer and the second offer both included a
$5000 fine. Cayo, however, testified: ‘‘I think there was an offer with money
and another offer without money. So the [offer] without money may have
come second.’’ Additionally, Cayo testified the petitioner was unwilling to
accept an offer for two years of imprisonment because Pineiro was offered
significantly less time in prison. In the face of such conflicting evidence, we
are mindful of our long-standing precedent that, ‘‘[w]hen there is conflicting
evidence . . . it is the exclusive province of the . . . trier of fact, to weigh
the conflicting evidence, determine the credibility of witnesses and deter-
mine whether to accept some, all or none of a witness’ testimony. . . .
Questions of whether to believe or to disbelieve a competent witness are
beyond our review. As a reviewing court, we may not retry the case or pass
on the credibility of witnesses. . . . We must defer to the trier of fact’s
assessment of the credibility of the witnesses that is made on the basis of
its firsthand observation of their conduct, demeanor and attitude . . . .’’
(Internal quotation marks omitted.) State v. Williams, 200 Conn. App. 427,
448, 238 A.3d 797, 811–12, cert. denied, 335 Conn. 974, 240 A.3d 676 (2020).
The petitioner’s arguments merely point to evidence in the record that
contradicts the court’s factual findings, which is insufficient to support a
determination that those findings are clearly erroneous. See Rosa v. Com-
missioner of Correction, supra, 171 Conn. App. 434.
5
We note that Cayo’s testimony at the habeas trial was inconsistent as
to whether he knew the identity of the confidential informant. At one point,
Cayo testified that ‘‘someone told [him]’’ the identity of the informant, yet,
earlier in his testimony, Cayo stated: ‘‘I don’t even know who [the confidential
informant was]’’ and that ‘‘I don’t even think I asked for the information
about the confidential informant . . . .’’
6
We note that the petitioner claims that the court’s factual finding that
the shirt belonged to him was clearly erroneous. Even if we were to accept
that claim, we nonetheless would not conclude that Cayo’s allegedly deficient
performance was prejudicial to the petitioner in light of the other evidence
of his constructive possession of the handgun found inside the apartment.