62293 v. Warden, State Prison (2010)

MEMORANDUM OF DECISION

The petitioner, Richard Serrano, alleges in his petition for a writ of habeas corpus, filed on October 25, 2005 and amended on June 27, 2007, that he was denied the effective assistance of trial and appellate counsel in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut.   For reasons stated more fully below, the petition is denied.

The matter came to trial on April 1, 2010.   The court heard testimony from Attorney Larry Butler, a public defender in the Stamford-Norwalk judicial district, the petitioner, Robert Mahoney, a registered locksmith, Marc Seifer, a handwriting expert, Attorney Matthew Maddox, the petitioner's trial counsel, Attorney Thomas Farver, an expert in criminal defense, Officer Lawrence Ferraro, a Stamford police officer and Attorney Raymond Durelli, the petitioner's appellate counsel.   The petitioner entered into evidence numerous documents including, but not limited to, transcripts of his criminal trial, copies of his arrest warrant and the appellate briefs.   The respondent entered into evidence a certified copy of the petitioner's arrest warrant from the clerk's file.

The Court has reviewed all of the testimony and evidence and makes the following findings of fact.

FINDINGS OF FACT

1. The petitioner was the defendant in a case in the judicial district of Stamford-Norwalk, bearing docket number CR01-0138919, in which he was charged with attempted burglary in the second degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-102.   He was also charged, in a Part B information, as a persistent serious felony offender under General Statutes § 53a-40(c).

2. After a jury trial, the petitioner was convicted of attempted burglary as charged.

3. Subsequent thereto, he elected a court trial on the Part B information, at which he was convicted of being a persistent serious felony offender.

4. On April 11, 2003, the petitioner was sentenced to a total effective sentence of thirteen years followed by five years of special parole.

5. The petitioner unsuccessfully appealed his conviction of attempted burglary in the second degree.   See State v. Serrano, 91 Conn.App. 227, 880 A.2d 183, cert. denied, 276 Conn. 908, 884 A.2d 1029 (2005).

6. As stated by the Appellate Court, the jury could have reasonably found the following facts regarding the underlying offense:  “On the evening of November 2, 2001, the victim, Ana Yepes-Sanabria, was alone in her third floor apartment when she heard someone knocking on her door.   The knocking continued for fifteen to twenty minutes.   During that time, Sanabria neither answered the door nor responded orally to the knocking.   Only after she saw the doorknob being turned back and forth did Sanabria call the police.   While she was on the telephone with the police, Sanabria saw a fork come past the door lock striker.   Although there was some uncertainty as to whether she opened the door or if the door opened because of the inserted fork, it is undisputed that the door opened one to two feet and that Sanabria saw the defendant standing outside the door with a fork in his hand at the locking mechanism.   At that point, the defendant claimed to be at the wrong apartment, covered his face and ran down the stairs.   Sanabria then walked into the hallway to look out a window and saw the defendant exit the front door of the building and run to the rear of the building.

7. “During that time, Sanabria's neighbor, Rudy Flores, who was in the second floor hallway, saw the defendant run down the stairs.   When police officers arrived shortly thereafter, Sanabria described the events that had taken place but did not go to the police station at that time or view any photographs of suspects.   Flores, however, went to the police station and identified the defendant from an array of photographs as the individual whom he saw run down the stairs.   On March 18, 2002, while Sanabria was at the police station to inquire about two previous burglaries of her apartment, she agreed to view an array of photographs of suspects relating to the most recent incident.   It was at that time that Sanabria identified the defendant as the individual who was standing outside her apartment with the fork on the night of the incident.”   State v. Serrano, supra, 91 Conn.App. 229-30

8. Additional facts will be discussed as needed.

DISCUSSION

In his amended petition, the petitioner alleges that his trial and appellate counsel rendered ineffective assistance.  “A criminal defendant's right to the effective assistance of counsel ․ is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution ․ To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong.   To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ․ by the [s]ixth [a]mendment ․ To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different ․ The claim will succeed only if both prongs are satisfied ․ It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.”   (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

“Judicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable ․ A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ․ There are countless ways to provide effective assistance in any given case.   Even the best criminal defense attorneys would not defend a particular client in the same way.”  (Citations omitted;  internal quotation marks omitted.)  Strickland v. Washington, supra, 466 U.S. 689.

Ineffective Assistance of Trial Counsel

In his amended petition, the petitioner claims that his trial counsel, Attorney Maddox, rendered ineffective assistance in that:  (1) he did not conduct an adequate pretrial investigation;  (2) he failed to call witnesses to testify on the petitioner's behalf;  (3) he failed to move to dismiss the charges based upon irregularities in the arrest warrant;  (4) he failed to hire a handwriting expert to examine the arrest warrant;  (5) he failed to present and fully explain all plea offers to the petitioner;  (6) he failed to explain the likely outcome of the case to the petitioner;  (7) he incorrectly informed the petitioner that if he entered a guilty plea to the Part B information then he could not appeal his Part A conviction;  (8) he failed to have a locksmith testify;  (9) he failed to move for a mistrial after one of the state's witnesses improperly referred to the photo array and after the trial court failed to give a curative instruction to the jury based upon the photo array;  (10) he failed to have the court conduct an inquiry regarding whether the state's witnesses saw notes left on the prosecution table by the prosecutor;  and (11) he failed to inform the court and the petitioner prior to trial that he had represented Sanabria's father in the past and thus, had a potential conflict of interest.¹  As discussed more fully below, the petitioner has failed to meet his burden of proof as to all of these claims.

The petitioner first claims that Attorney Maddox did not conduct an adequate pretrial investigation.  “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary ․ The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.”  Strickland v. Washington, supra, 466 U.S. 691.  “To succeed in his attack on the adequacy of counsel's pretrial investigation, the petitioner must show both that the investigation was inadequate, not merely imperfect ․ and that, had it not been for the inadequate investigation, there is reasonable probability that the outcome would have been different.”  (Citation omitted.)   Williams v. Bronson, 21 Conn.App. 260, 267, 573 A.2d 330 (1990).  “The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.”  Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001).

Attorney Maddox testified at the habeas trial that he had the help of an investigator, John McNichols, on the petitioner's case and that they went to the crime scene, took some photographs and spoke to some people.   However, they did not obtain any helpful information.   He also testified that he was aware of two potential witnesses, Flocko and Mauricio, but that he did not attempt to locate them.   The petitioner had informed him that he was at the apartment building on the night in question to sell drugs to both Flocko and Mauricio.   Attorney Maddox explained that he did not attempt to locate either Flocko or Mauricio because he believed it would be damaging to the petitioner's case to present evidence that the petitioner was in the apartment building for an unlawful purpose.

Apart from the above evidence, no other evidence was presented regarding Attorney Maddox's alleged investigative failures.   Notably, the petitioner did not present any evidence demonstrating what benefit additional investigation by Attorney Maddox would have revealed.   This Court cannot speculate as to what, if anything, that may have been revealed by further investigation.   Moreover, Attorney Maddox made a strategic decision not to locate either Flocko or Mauricio.  “[T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment ․” (Citation omitted.)  Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002).   The petitioner has not overcome this presumption.   Accordingly, this claim of ineffective assistance of counsel fails.

The petitioner's claim that Attorney Maddox failed to call witnesses to testify on his behalf also fails.  “Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed, to call the witness at trial.”  (Internal quotation marks omitted.)  Conde v. Commissioner of Correction, 112 Conn.App. 451, 458, 963 A.2d 1007 (2009).   The only people that the petitioner identified as potential witnesses were Flocko and Mauricio.   The petitioner claims that they would have testified that he was at the apartment building on the night in question to sell them drugs.   As noted supra, Attorney Maddox testified at the habeas trial that he decided not to pursue either Flocko or Mauricio as witnesses because he believed their testimony would be damaging to the petitioner's case.

Once again, the petitioner has not overcome the presumption of the reasonableness of Attorney Maddox's strategic decision not to call Flocko and Mauricio as witnesses.   Nor has the petitioner proven that had either Flocko or Mauricio testified there is a reasonable probability that the outcome of his trial would have been different.   This Court cannot speculate as to the substance or import of what Flocko or Mauricio may have testified to had they been called as witnesses by Attorney Maddox.   Additionally, evidence that the petitioner was at the apartment building on the night in question to sell drugs does not necessarily exonerate him.   Accordingly, the petitioner has failed to meet his burden of proof as to this claim.

The petitioner next claims that Attorney Maddox should have had a handwriting expert examine the signatures on the arrest warrant to determine whether they were originals or copies and that he should have moved to dismiss the charges due to irregularities in the arrest warrant.   At the habeas trial, the petitioner testified that he received a copy of the arrest warrant from Attorney Tom Wynn, the attorney who initially represented him.   This copy has a signature box on the bottom of each page containing the judge's signature.²  The petitioner testified that he told Attorney Maddox that the judge's signatures on each page appeared identical to each other.   Attorney Maddox testified that he investigated the matter by examining the clerk's file.   The arrest warrant in the clerk's file only had a signature box containing the judge's signature on the last page.³  He further testified that he and the petitioner discussed bringing a motion to dismiss based upon the possibility of there being irregularities in the arrest warrant but that he advised against it, as he believed there was only a remote chance of success and that even if they were successful in having the charges dismissed there would likely just be a new arrest warrant, in which case they would be “back to square one.” ⁴

The petitioner introduced into evidence a report by Marc Seifer, a handwriting expert.   The report basically confirms that the judge's signatures on the petitioner's copy of the arrest warrant are identical to each other.⁵  Officer Lawrence Ferraro, the Stamford police officer who prepared the arrest warrant, testified at the habeas trial that pursuant to department procedure he cut off the signature box on all the pages of the warrant except for the last page.   He explained that this was “the way [their] GA court wanted it [the arrest warrant] presented to them.” ⁶  Ferraro further testified that he would copy each page individually to avoid duplication of the signatures and that the prosecutor signs the top of each page.   Seifer's report confirms that the prosecutor's signature on each page is different and indicates that the judge's initials on the first two pages are different.

Based upon the above, this Court finds that the petitioner has not met his burden in proving either deficient performance or prejudice as to this claim.   Ferraro offered a reasonable explanation for the duplicate signatures on the petitioner's copy of the arrest warrant, i.e. if each page of the original arrest warrant was not copied individually the resulting copy would have the signature box on each page.   Moreover, the fact that the signature boxes were cut off of the first two pages of the original arrest warrant pursuant to department policy does not render the arrest warrant fatally defective.   That is, it does not call into question the reliability of the arrest warrant process.   Seifer's report indicates that the prosecutor's signature on each page of the arrest warrant is different and that the judge's initials on the first two pages are different, which suggests that the judge reviewed all of the pages of the warrant prior to signing off on it.   There is no evidence that the judge's signature on the last page is false or that the arrest warrant otherwise contains falsehoods.   Consequently, Attorney Maddox did not perform deficiently in failing to further investigate the petitioner's copy of the arrest warrant.   Further investigation, including consulting a handwriting expert, would not have changed the outcome of the petitioner's case.   There simply is no evidence that the arrest warrant consisted of irregularities that would have resulted in the charges against the petitioner being dismissed.   An arrest warrant must be signed by the judicial authority and can only be issued if the judicial authority determines that probable cause exists to arrest the accused.   See Practice Book §§ 36-1 and 36-3.   Both conditions appear to have been met in the petitioner's case.   There is no evidence to the contrary.   Consequently, this claim fails.

The petitioner's claims that Attorney Maddox did not convey and fully explain all the plea offers to him, that he did not explain the likely outcome of the trial and that he misinformed him about his appellate rights also fail.   “[A]lmost every criminal defendant is faced with the crucial decision of whether to plead guilty or proceed to trial.   Although this decision is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome.   A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial.”  (Emphasis in original;  internal quotation marks omitted.)  Ebron v. Commissioner of Correction, 120 Conn.App. 560, 567, cert. granted on other grounds, 297 Conn. 912, 995 A.2d 954 (2010).

At the habeas trial, the petitioner testified that Attorney Maddox fully explained the strength and weaknesses of the state's evidence and the evidence available to the defense.   He also testified that Attorney Maddox conveyed a couple of offers to him which he rejected.   He explained that he rejected the offers in part because Attorney Maddox had informed him that they could be successful at trial but admitted that he also wanted to go to trial.   The petitioner further testified that he knew the maximum penalty on the attempted burglary charge and that he knew that the serious felony offender charge would enhance his exposure.   However, he claimed that Attorney Maddox did not explain how the serious felony offender charge would affect his exposure and that he did not convey any offers made on the serious felony offender charge.   He also testified that Attorney Maddox informed him that he had to go to trial on the serious felony offender charge in order to preserve his right to appeal his conviction of attempted burglary.

Attorney Maddox testified at the habeas trial that he and the petitioner discussed the state's case and the petitioner's exposure.   He stated that they learned of the serious felony offender charge shortly before trial and that he informed the petitioner that it would double his exposure.   He further testified that he discussed the plea offers with the petitioner.   Specifically, he remembers advising the petitioner to take the second offer of six years, suspended after two and a half years, followed by probation because even though he believed they could win the trial he thought the risk that the petitioner could receive a greater sentence if they lost was too great given his criminal history.   He testified that the petitioner considered his advice but that “ultimately, he said ․ I've been through the system a bunch of times, never had a trial, I want my trial.” ⁷  Attorney Maddox also testified that he informed the petitioner that he did not have to go to trial on the serious felony offender charge in order to preserve his appellate rights on the attempted burglary conviction but that despite this information the petitioner believed otherwise and insisted on going to trial.

Once again, the petitioner has failed to meet his burden of proof as to these claims.   The Court credits Attorney Maddox's testimony that he conveyed all the plea offers to the petitioner, discussed the likely outcome of the trial with the petitioner and that he accurately informed the petitioner of his appellate rights.   There is no evidence of any offers that were made but not conveyed to the petitioner.   Moreover, even if deficient performance is presumed, these claims would still fail because the petitioner has not demonstrated that there is a reasonable probability that the outcome of his trial would have been different but for Attorney Maddox's alleged errors.   Although the petitioner appears to suggest that he would have taken a plea offer but for the ineffective assistance of counsel, the evidence is to the contrary.   The petitioner admitted that he wanted to go to trial and that he was only partially influenced by Attorney Maddox's assessment of their likelihood of success at trial in rejecting the plea offers.   Additionally, there is no evidence that the court would have rendered judgment in accordance with the plea offer.   See Sanders v. Commissioner of Correction, 83 Conn.App. 543, 552, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004) (to prove prejudice “the petitioner had to show that he would have accepted the offer and that the court would have rendered judgment in accordance with that offer”).

The petitioner next claims that Attorney Maddox should have had a locksmith testify.  “The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.”   (Internal quotation marks omitted.)  Morant v. Commissioner of Correction, 117 Conn.App. 279, 303, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).

Attorney Maddox testified at the habeas trial that the petitioner and he discussed hiring a locksmith but that he did not believe it was necessary.   He explained that there were no fingerprints or marks on the door or the lock and that he did not believe that how the lock actually functioned was particularly relevant to the petitioner's case.   Robert Mahoney, a locksmith for over thirty years, testified at the habeas trial that if a latch is put on backwards in a door, the door could be pushed opened by an individual without any further force.   At the petitioner's underlying criminal trial, Sergeant Kenneth Jarrett testified that the striker on the complainant's door was put on backwards and that in such a situation the door may open just by putting pressure on the opening portion of the latch.⁸  Sergeant Peter Dispagna, an expert in burglaries, burglary investigations and investigating locks, similarly testified that if the striker is put on backwards, depending on the integrity of the door, the door could be opened in a matter of moments to minutes.⁹

The petitioner has also failed to meet his burden of proof as to this claim.   The testimony of a locksmith, such as Mahoney, at the petitioner's criminal trial would have been merely cumulative to the testimony of Sergeants Jarrett and Dispagna.   Moreover, it would not have been particularly helpful to the petitioner's case.   The petitioner argues in his reply brief that based upon Mahoney's testimony “a door can be pushed open unintentionally by merely placing a hand on it with some degree of pressure.”   Even if this inference could be drawn from Mahoney's testimony, it is not particularly helpful in defending against allegations that after knocking on the door for fifteen to twenty minutes and moving the handle subsequent thereto, the petitioner put a fork through the lock and opened the door.¹⁰  Consequently, this claim lacks merit.

The petitioner's claim that Attorney Maddox rendered ineffective assistance by failing to move for a mistrial after one of the state's witnesses improperly referred to the photo array and after the trial court failed to give a curative instruction to the jury based upon the photo array also lacks merit.   At the outset of the petitioner's criminal trial, Attorney Maddox filed a motion in limine to preclude the photo array used in the course of the police investigation from being introduced into evidence.   He argued that the jury could easily infer that the petitioner's photo was a mug shot and that the petitioner “[had] at least one prior alleged bad act.” ¹¹  The trial court denied the motion and indicated it would instruct the jury in its charge that “there is no connection of guilt of any kind simply because some pictures of the defendant were in the possession of the police.” ¹²  The state introduced the photo array into evidence;  however, the trial court did not give the jury instruction as indicated.   Attorney Maddox did not take any exceptions to the trial court's charge to the jury.¹³

Additionally, during the state's direct examination of Officer Ferraro, the following colloquy occurred regarding the photo array:

Q. Could you show the ladies and gentleman of the jury who she [Sanabria] picked out at eighty percent?

A. The photo number one.

Q. And is that the defendant?

A. Yes.

Q. You used numbers at the bottom but not their names, correct?

A. Exactly. On our regular photo lineups, they're numbered one through eight of the person.   The second set of numbers, there's a second photo lineup of the same one, and the numbers underneath are identified as to each person.   So you identify the person inside the police data base.

Q. And inside the police data base you have the name of the-

A.  Yes.

Q.-attached to the number.

A. Yes.

Q. And that's how you know it's Richard Serrano?

A. Yes.14

Immediately following this line of questioning, Attorney Maddox moved for a mistrial, arguing that mentioning the police data base prejudiced the petitioner because it suggested that he had a prior police record.   The trial court denied the motion.¹⁵

Neither deficient performance nor prejudice has been proven regarding this claim of ineffective assistance of counsel.   Contrary to the petitioner's allegation, Attorney Maddox did move for a mistrial after Ferraro mentioned the police data base in reference to the photo array.   Moreover, at the habeas trial, Attorney Maddox explained that he did not request a curative instruction on this issue in order to avoid further accentuating it.   As for failing to move for a mistrial or dismissal of the charges after the trial court failed to give a curative instruction on the photo array, there is no evidence that but for this alleged error there is a reasonable probability that the outcome of the petitioner's criminal trial would have been different.  “The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been denied the opportunity for a fair trial ․ The trial court enjoys wide discretion in deciding whether a mistrial is warranted ․” (Internal quotation marks omitted.)  State v. Boykin, 74 Conn.App. 679, 685-86, 813 A.2d 143, cert. denied, 263 Conn. 901, 819 A.2d 837 (2003).

The court's failure to give a curative instruction regarding the photo array did not deprive the petitioner of a fair trial.  “Our Supreme Court has cautioned against indiscriminate use of police mug shots during trials because they can imply prior arrests and reflect unfavorably on an accused person ․ Nevertheless, [a] mug shot is admissible if it is relevant and material and if its probative value outweighs its prejudicial tendency ․” (Citation omitted;  internal quotation marks omitted.)  State v. Collins, 100 Conn.App. 833, 851, 919 A.2d 1087, cert. denied, 284 Conn. 916, 931 A.2d 937 (2007).   Since the petitioner contested his identity as the perpetrator, the earlier identification of him from the photo array by both Sanabria and Flores was clearly relevant.   The petitioner's photo may have been suggestive of a prior arrest;  however, that alone does not unfairly prejudice a defendant.   Notably, there is no evidence that the photo included a profile image or information relating to charges or convictions.   While a curative instruction would have lessened any potential for prejudice, it was not necessary.   Accordingly, Attorney Maddox did not render ineffective assistance by failing to move for a mistrial or to dismiss the charges after the trial court did not give a curative instruction on the photo array.

The petitioner next claims that Attorney Maddox rendered ineffective assistance in that he failed to have the trial court conduct an inquiry regarding whether the state's witnesses saw notes left on the prosecution table by the prosecutor.   This claim fails for lack of evidence.   Attorney Maddox testified at the habeas trial that he had no proof that any of the jurors or the witnesses saw notes left on the prosecution table.   He admitted that he did not ask the trial court to inquire on the subject;  however, he looked at the notes himself and apparently did not discover anything that necessitated court intervention.   The petitioner has not presented any evidence to the contrary.   Accordingly, this claim fails, as it is purely speculative.

Lastly, the petitioner claims that Attorney Maddox failed to inform the court and him prior to trial that he had represented the father of Sanabria in the past and thus, had a potential conflict of interest.  “Our Supreme Court has established the proof requirements where a habeas corpus petitioner claims ineffective assistance of counsel because of a claimed conflict of interest.   Where ․ the defendant claims that his counsel was burdened by an actual conflict of interest ․ the defendant need not establish actual prejudice ․ Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties ․ In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task.   He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance.”  (Internal quotation marks omitted.)   Day v. Commissioner of Correction, 118 Conn.App. 130, 136-37, 983 A.2d 869 (2009), cert. denied, 294 Conn. 930, 986 A.2d 1055 (2010).

At the habeas trial, the petitioner testified that Attorney Maddox had told him that he represented Sanabria's father in the past.   He denied, however, that Attorney Maddox informed him that he could ask for a different attorney.   When asked on cross-examination whether he believed the fact that Attorney Maddox had represented Sanabria's father affected his ability to represent him, the petitioner replied:  “I don't think so.   I don't know.   I don't think so.   I don't know.” ¹⁶  Attorney Maddox testified at the habeas trial that he did not realize that he had represented Sanabria's father until later in his representation of the petitioner.   He explained that he only later discovered that Sanabria's maiden name was Yepes, which led him to inquire into the matter, as he had represented a Hernando Yepes in the past.   Attorney Maddox further explained that he had represented Sanabria's father in a workers' compensation case approximately six years prior to his representation of the petitioner.   He testified that he informed the petitioner of the prior representation and that he could raise the issue and seek other counsel.   He also informed the petitioner that he “was absolutely unequivocally sure it had no bearing on [his] loyalty to him as a client ․” ¹⁷ Attorney Maddox testified that the petitioner “accepted what [he] told him, and [they] just kept rolling along.” ¹⁸

This Court credits Attorney Maddox's testimony that he informed the petitioner of the potential conflict of interest and that he could seek other counsel.   Although Attorney Maddox did not directly inform the trial court of his prior representation of Sanabria's father, this failure does not constitute deficient performance, as defense counsel is under no obligation to advise the court of every potential conflict of interest.  “[D]efense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial.   Absent special circumstances, therefore, trial courts may assume either that [the potentially conflicted] representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist ․ [T]rial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel.   An attorney [facing a possible conflict] in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.”  (Emphasis in original;  internal quotation marks omitted.)  State v. Barnes, 99 Conn.App. 203, 220, 913 A.2d 460, cert. denied, 281 Conn. 921, 918 A.2d 272 (2007).   Attorney Maddox did not believe that his prior representation of Sanabria's father would have any affect on his representation of the petitioner;  accordingly, he did not bring it to the court's attention.

There is also no proof that Attorney Maddox actively represented conflicting interests and that an actual conflict of interest adversely affected his performance.   Sanabria had no knowledge of the fact that Attorney Maddox had previously represented her father in an unrelated matter.¹⁹  Moreover, Sanabria's father had no direct connection to the petitioner's case.   He was not present when the attempted burglary occurred.

Accordingly, the petitioner's claim fails.

Ineffective Assistance of Appellate Counsel

In addition to alleging that Attorney Maddox rendered ineffective assistance, the petitioner also alleges that Attorney Durelli, his appellate counsel, rendered ineffective assistance of counsel.   Specifically, he alleges that Attorney Durelli failed to raise the following claims on appeal:  (1) that the trial court erred in failing to give a curative instruction regarding the photo array and (2) that the trial court erred in denying the petitioner's motion for a mistrial based upon the improper reference to the photo array.   The petitioner also alleges that Attorney Durelli failed to adequately brief and argue the claim of prosecutorial misconduct.   The petitioner has not met his burden of proof as to any of these claims.  “[W]hen a petitioner is claiming ineffective assistance of appellate counsel, he must establish that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal.”  (Internal quotation marks omitted.)  Turner v. Commissioner of Correction, 118 Conn.App. 565, 568, 984 A.2d 793 (2009), cert. denied, 296 Conn. 901, 991 A.2d 1104 (2010).

Attorney Durelli testified at the habeas trial that he looked at the trial court's denial of the petitioner's motion for a mistrial as a potential ground for appeal.   However, upon further research, he did not find any merit to pursuing such a claim.  “The determination of which issues to present, and which issues not to present, on an appeal is by its nature a determination committed to the expertise of appellate counsel, and not to his client ․ By that determination, appellate counsel seeks to focus the concern of the appellate court on those issues which he deems to be most persuasive, and thus does appellate counsel most effectively present his client's appeal.”   (Citation omitted.)  Valeriano v. Bronson, 12 Conn.App. 385, 390, 530 A.2d 1100 (1987), aff'd, 209 Conn. 75, 546 A.2d 1380 (1988).   Attorney Durelli cannot be faulted for choosing not to raise this claim on appeal.  “[A] habeas court will not, with the benefit of hind-sight, second guess the tactical decisions of appellate counsel.”  (Internal quotation marks omitted.)   Farnum v. Commissioner of Correction, 118 Conn.App. 670, 679, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).

As for the claim that the trial court erred in failing to give a curative instruction on the photo array, it is not clear whether Attorney Durelli considered raising it on appeal or why he chose not to raise it, assuming he did consider it.   At the habeas trial, he acknowledged that since defense counsel did not object to the trial court's jury instructions the Appellate Court could have refused to review the issue on the basis of either waiver or induced error.   Regardless of why Attorney Durelli did not raise this claim on appeal, the petitioner has failed to demonstrate that had he done so he would have prevailed on direct appeal.   That is, even if the Appellate Court reviewed the claim, there is no reasonable probability that it would have found in favor of the petitioner.   As discussed supra, the failure of the trial court to give a curative instruction on the photo array did not deprive the petitioner of a fair trial.   Although the inclusion of the petitioner's photo in the photo array may have suggested a prior arrest or criminal record, it did not indicate with any specificity any prior charges or convictions.   Its prejudicial effect, if any, on the jury is purely speculative.   Accordingly, the petitioner has failed to meet his burden of proof regarding this claim.

The petitioner has also failed to meet his burden of proof on his claim that Attorney Durelli failed to adequately brief and argue the claim of prosecutorial misconduct on appeal.   The petitioner has not identified anything deficient or anything that Attorney Durelli should have done differently in raising the claim of prosecutorial misconduct on appeal.   Consequently, this claim fails.

CONCLUSION

Based on the foregoing, the petition for a writ of habeas corpus is DENIED.   Judgment may enter in favor of the respondent.   Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.

BY THE COURT,

T. Santos, J.

FOOTNOTES

FN1. The petitioner also alleges in his amended petition that Attorney Maddox did not adequately cross examine the state's witnesses and that he failed to move for a mistrial and/or dismissal of the charges based on a general pattern of prosecutorial misconduct.   The petitioner presented little evidence on these claims during the habeas trial and did not brief them.   Accordingly, they are deemed abandoned.   See Raynor v. Commissioner of Correction, 177 Conn.App. 788, 796-97, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010) (“[r]eviewing courts are not required to review issues that have been improperly presented to th [e] court through an inadequate brief ․ Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly”)..  FN1. The petitioner also alleges in his amended petition that Attorney Maddox did not adequately cross examine the state's witnesses and that he failed to move for a mistrial and/or dismissal of the charges based on a general pattern of prosecutorial misconduct.   The petitioner presented little evidence on these claims during the habeas trial and did not brief them.   Accordingly, they are deemed abandoned.   See Raynor v. Commissioner of Correction, 177 Conn.App. 788, 796-97, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010) (“[r]eviewing courts are not required to review issues that have been improperly presented to th [e] court through an inadequate brief ․ Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly”).

FN2. Petitioner's Exhibit [Exh.] 2..  FN2. Petitioner's Exhibit [Exh.] 2.

FN3. Respondent's Exh. A..  FN3. Respondent's Exh. A.

FN4. April 1, 2010 Habeas Trial Transcript, pp. 84-85..  FN4. April 1, 2010 Habeas Trial Transcript, pp. 84-85.

FN5. Petitioner's Exh. 1..  FN5. Petitioner's Exh. 1.

FN6. April 1, 2010 Habeas Trial Transcript, p. 135..  FN6. April 1, 2010 Habeas Trial Transcript, p. 135.

FN7. April 1, 2010 Habeas Trial Transcript, p. 81-82..  FN7. April 1, 2010 Habeas Trial Transcript, p. 81-82.

FN8. Petitioner's Exh.10, pp. 6-10..  FN8. Petitioner's Exh.10, pp. 6-10.

FN9. Petitioner's Exh. 10, p. 20..  FN9. Petitioner's Exh. 10, p. 20.

FN10. See Petitioner's Exh. 9, pp. 37-54 (testimony of Sanabria)..  FN10. See Petitioner's Exh. 9, pp. 37-54 (testimony of Sanabria).

FN11. Petitioner's Exh. 9, pp. 3-4..  FN11. Petitioner's Exh. 9, pp. 3-4.

FN12. Petitioner's Exh. 9, pp. 4-5..  FN12. Petitioner's Exh. 9, pp. 4-5.

FN13. Petitioner's Exh. 10, p. 105..  FN13. Petitioner's Exh. 10, p. 105.

FN14. Petitioner's Exh. 9, p. 205..  FN14. Petitioner's Exh. 9, p. 205.

FN15. Petitioner's Exh. 9, pp. 206-09..  FN15. Petitioner's Exh. 9, pp. 206-09.

FN16. April 1, 2010 Habeas Trial Transcript, p. 53..  FN16. April 1, 2010 Habeas Trial Transcript, p. 53.

FN17. April 1, 2010 Habeas Trial Transcript, p. 93..  FN17. April 1, 2010 Habeas Trial Transcript, p. 93.

FN18. April 1, 2010 Habeas Trial Transcript, p. 93..  FN18. April 1, 2010 Habeas Trial Transcript, p. 93.

FN19. The following colloquy occurred between Attorney Maddox and Sanabria during a hearing on a motion in limine:Q. Your father was a client of mine, is that correct?A. I don't know what you mean, so I don't know-Q. Okay, so you have no knowledge of your father being a client of mine, is that correct?A. No.Q. Okay. Petitioner's Exh. 8, p. 60..  FN19. The following colloquy occurred between Attorney Maddox and Sanabria during a hearing on a motion in limine:Q. Your father was a client of mine, is that correct?A. I don't know what you mean, so I don't know-Q. Okay, so you have no knowledge of your father being a client of mine, is that correct?A. No.Q. Okay. Petitioner's Exh. 8, p. 60.

Santos, Thelma A., J.