252174 v. Warden (2012)

MEMORANDUM OF DECISION

The petitioner, Troy McCarthy, brings this petition for a writ of habeas corpus claiming that his trial and appellate attorneys were ineffective in representing him at his criminal trial and on appeal.   The court finds all of the issues for the respondent and denies the petition.

The following procedural background is relevant to this case.   On September 13, 2004, the petitioner was found guilty, after a trial to a jury, of the murder of Raymond Moore pursuant to General Statutes § 53a–54a.   He was sentenced to 50 years incarceration.   In reaching its verdict, the jury could have reasonably found the following facts:

On September 25, 2003, the defendant and the victim, Raymond Moore, were standing near the corner of Westland Street and Garden Street in Hartford, in front of the former Nelson & Son's Market, when they engaged in a physical altercation.   After the victim slammed the defendant's body onto the sidewalk, several people intervened and stopped the fight.   The defendant, humiliated, left the scene but stated that he would be back.   Later, the defendant returned with a gun, but the victim was not there.   A friend of the victim, Robert Ware, and others told the defendant that “it wasn't worth it.”   The defendant, however, responded that the victim was going to respect him.

Two days later, on September 27, 2003, the victim returned to the area and was standing in front of Nelson & Son's Market speaking with Ware. Ware then went across Westland Street and entered Melissa's Market to buy cigarettes.   A homeless woman from the area, Mary Cauley, who was on her way to the C–Town Market on Barbour Street, approached the victim and told him that he should go home to his family.   She then continued on her way to the C–Town Market, walking north on Garden Street, where she saw the defendant standing on his front porch.   Cauley said hello to the defendant, who instructed her to get out of the way.   When she got to the C–Town Market, Cauley heard gunshots.

Upon hearing a gunshot, Ware immediately ran out of Melissa's Market as a second gunshot was fired.   Looking up Garden Street, Ware saw the victim falling to the ground and saw the defendant running in the opposite direction carrying a gun.   At that same time, Maurice Henry, Chauncey Odum and Tylon Barlow were in a vehicle in the parking lot behind Nelson & Son's Market smoking “blunts.”   Henry was in the driver's seat.   As he began to drive out of the parking lot, onto Garden Street, Henry saw the victim walking north.   He then saw the defendant emerge from the rear yard of a Garden Street building, carrying a gun.   Henry saw the defendant shoot the victim twice.

State v. McCarthy, 105 Conn.App. 596, 598–9, 939 A.2d 1195, cert. denied, 286 Conn. 913, 944 A.2d 983 (2008).

The petitioner appealed the judgment of conviction to the Appellate Court claiming that:  (1) the trial court improperly denied his motion for a new trial;  (2) the trial court improperly admitted certain impeachment evidence for substantive purposes;  (3) the court improperly instructed the jury;  and (4) he was deprived of a fair trial due to prosecutorial misconduct.   On February 5, 2008, the Appellate Court rejected all of the petitioner's claims and affirmed the judgment of conviction.  State v. McCarthy, supra, 105 Conn.App. 596.   The Supreme Court then denied the petitioner's petition for certification.  State v. McCarthy, 286 Conn. 913 (2008).

On January 9, 2007, the petitioner filed a petition for a writ of habeas corpus and on September 23, 2011, filed an amended petition.   In count one of the amended petition, the petitioner claims that his trial attorneys, Michael Sheehan and George Kouros, were ineffective in that they:  (1) failed to object to the testimony of Robert Ware, a late disclosed state's witness;  (2) failed to request a continuance to investigate Ware's testimony;  (3) failed to move for a mistrial subsequent to Ware's testimony;  (4) failed to object to the testimony of Attorney Joseph Elder, the petitioner's bond counsel or cross-examine him;  (5) failed to file a motion for a mistrial after Elder testified;  (6) failed to file a notice of alibi or to subpoena alibi witnesses;  (7) failed to investigate the evidence or state's witnesses prior to trial;  (8) misrepresented the state's plea offer; ¹  (9) failed to adequately present evidence of third-party culpability, and in particular, that Chauncey Odum was in possession of a firearm of the same caliber as the murder weapon;  (10) failed to cross-examine Odum as to his possession of the gun;  and (11) failed to request a jury charge on third-party culpability.

In count two of the amended petition, the petitioner claims that his appellate counsel, George Kouros, was ineffective in failing to appeal the issues raised in count one of the amended petition on appeal.

Finally, the petitioner claims in count three of the amended petition that his bond counsel, Joseph Elder, was ineffective in that he:  (1) falsified two witness statements;  (2) failed to disclose that he falsified the statements and discredited the petitioner at trial;  (3) failed to notify the petitioner of his intention to testify at the trial regarding the falsified affidavits;  and (4) testified at the petitioner's criminal trial without first obtaining a proper waiver of the attorney client privilege from the petitioner.

By way of relief, the petitioner requests that his conviction and sentence be vacated and that he be granted a new trial.   The respondent had denied all of the petitioner's claims.

The habeas trial was held on September 26 and 30, 2011.   The petitioner presented the testimony of his attorneys Sheehan, Kouros and Elder, as well as witnesses Chauncey Odum and Tylon Barlow.   The respondent presented the testimony of Sheehan.   Both parties presented documentary evidence.   Neither party presented the testimony of any expert witnesses nor did the petitioner testify at the habeas trial.   The respondent filed a pretrial and post-trial brief.   The petitioner filed a post-trial brief and a reply brief.

Relevant findings of fact will be discussed below with respect to each of the petitioner's claims.

Standards

It is well-established that in order to establish a claim of ineffective assistance of counsel, the petitioner has the burden to show that “(1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.”  (Emphasis in original.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008);  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  “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 Sixth Amendment.'   “ Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom.  Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 667.

Under the second prong of the test, prejudice, the petitioner must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.  Strickland v. Washington, supra, 466 U.S. 687;  Ebron v. Commissioner of Correction, 120 Conn.App. 560, 992 A.2d 1200, 2010, cert. granted, 297 Conn. 912, 995 A.2d 954 (2010).   Ultimately, the “benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  Strickland v. Washington, supra, 466 U.S. 686.

When assessing trial counsel's performance, the habeas court is required to “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ․” Strickland v. Washington, supra, 466 U.S. 689–90.   The United States Supreme Court explained:

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.

Id. (Internal citations omitted.)

Count One—Ineffective Assistance Claims Re:  Sheehan and Kouros

In count one of the amended petition, the petitioner asserts numerous claims against his trial attorneys, Sheehan and Kuoros.²  Each claim, or set of claims, is discussed below.

A. Witness Robert Ware

The petitioner asserts that his trial attorneys failed to object to the testimony of Robert Ware, a late disclosed state witness;  failed to request a continuance to investigate Ware's testimony and failed to move for a mistrial after Ware testified.   The following facts are relevant to this claim.

Between August 17, 2005 and August 23, 2005, the parties selected the jury with evidence scheduled to begin on September 7, 2005.   During jury selection, Ware approached the state's attorney and informed him that he had been a friend of the victim and had witnessed the shooting.   The state's attorney promptly told Sheehan that it planned to call Ware as a witness at trial and told Sheehan the substance of Ware's expected testimony.   Prior to this time, the state had not been aware that Ware had relevant information.

Sheehan did not object to the state calling Ware, seek a continuance to investigate Ware, file a motion in limine to exclude Ware's testimony or move for a mistrial after he testified.   Upon learning of Ware and that the state planned to call him as a trial witness, Sheehan instructed his investigator to investigate Ware, and to determine, among other things, whether he had a criminal record.   Sheehan did not seek a continuance to conduct this investigation of Ware because he believed he had sufficient time to do so.

On direct examination by the state at the criminal trial, Ware testified that he was a friend of the victim and a few days prior to the shooting, he witnessed an altercation between the victim and the defendant, who Ware knew from the neighborhood.   After Ware and others broke up the fight, the defendant left but indicated that “he would be back.”   The victim and Ware then left the area and hid in an abandoned building, where they could see the area where the fight had occurred.   The defendant returned to the area with a gun in his hand and appeared visibly upset.   He looked around and then left the area.   Ware and the victim then also left the area.

A couple of days later, the victim and Ware returned to the area of the altercation.   Ware and the victim spoke for a few minutes about how to remedy things with the defendant and decided that the victim would apologize.   Ware left the victim and went across the street to purchase cigarettes.   After he entered the store, Ware heard a gunshot, and ran out of the store.   Upon exiting the store, Ware heard another gun shot and then saw the victim coming up the street towards Ware and then fall to the ground.   Ware then saw the defendant running down the street in the opposite direction with a gun in his hand.   On direct examination, the state asked Ware about his criminal record.

Sheehan cross-examined Ware about his motives, his criminal record, his failure to report the prior altercation between the victim and the defendant or that the defendant had a gun, his failure to inform the police of what he witnessed prior to the start of trial, and the distances from where Ware was standing to where he saw the defendant.

The petitioner has the burden to prove that his counsel's conduct fell below the objective standard of reasonableness and that he was prejudiced by that conduct.  Walker v. Commissioner of Correction, 73 Conn.App. 629, 636, 809 A.2d 521 (2002), cert. denied, 262 Conn. 943 (2003);  Rodriguez v. Commissioner of Correction, 35 Conn.App. 527, 537, 646 A.2d 919, cert. denied, 231 Conn. 935, 650 A.2d 172 (1994).   It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to object or file a motion.   Rather, petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as “counsel” as guaranteed by Sixth Amendment and as a result, he was deprived of a fair trial.  Harris v. Commissioner of Correction, 107 Conn.App. 33, 845–46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008);  Giannotti v. Warden, 26 Conn.App. 125, 120, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992).

Ware did not become known to the state until jury selection and as soon as the state learned that Ware had relevant testimony it disclosed his name and the substance of his testimony to the petitioner's trial counsel.   Under such circumstances, which were not of the state's making, it is not clear what basis would have existed to exclude Ware's testimony.   See e.g., State v. Stinson, 33 Conn.App. 116, 120, 633 A.2d 728 (1993).   Indeed, the petitioner has not provided any legal basis for Sheehan to have objected to Ware's testimony after Ware testified, and the court is aware of none.   Nor has the petitioner provided any basis for a finding that such conduct constituted deficient performance.

Similarly, the petitioner has not established on what basis Sheehan should, or could, have moved for a mistrial based on Ware's testimony.  Sinchak v. Commissioner of Correction, 126 Conn.App. 670, 679, 14 A.3d 348, cert. denied, 301 Conn. 901, 17 A.3d 1045 (2011) (late disclosed witness not basis for mistrial).   There is no basis apparent in Ware's criminal trial testimony that would support a motion for a mistrial, and the petitioner has failed to provide any basis, either factual or legal.  Mozell v. Commissioner of Correction, 291 Conn. 62, 69–70, 967 A.2d 41 (2004).

Finally, Sheehan did not seek a continuance to investigate Ware because he believed he had sufficient time to investigate him prior to trial, and used the information derived from the investigation to cross-examine Ware. The petitioner has not proved that trial counsel's failure to seek a continuance under such circumstances constituted deficient performance.  Woods v. Commissioner of Correction, 85 Conn.App. 544, 553–54, 757 A.2d 986, cert. denied, 272 Conn. 903, 863 A.2d 696 (2004).

Accordingly, as to the claims in count one regarding Ware, the petitioner has failed to meet his burden of proof on the first prong of Strickland.   Having found that the petitioner has failed to meet the performance prong of Strickland, it is not necessary for the court to examine the prejudice prong on this claim.  King v. Commissioner of Correction, 73 Conn.App. 600, 602–03, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003).

B. Claims regarding the testimony of Attorney Joseph Elder

In count one, the petitioner claims that Sheehan's and Kouros' conduct was deficient because they failed to object to the testimony of Elder, cross-examine him or move for a mistrial after he testified.   The court rejects these claims.

The following facts are relevant to these claims.   The petitioner was arraigned on the charges on March 2, 2004.   At that proceeding, Elder appeared for the purpose of bond only.   The case was transferred to Part A and continued to March 9, 2004.   On March 9, 2004, when the case was called, Elder did not appear, nor did any other attorney for the petitioner.   On March 10, 2004, the trial court, Solomon, J., explained to the petitioner that Elder had been in a different court the day before and that it had ordered Elder to appear in court that day, March 10, 2004 at 10:00 a.m. The court explained that Elder's response to that message, through the secretary, was that he could not appear in the petitioner's matter on March 10 because he had a matter in Enfield, but that he would withdraw his bond only appearance and refund the petitioner's family's retainer.   The court expressed its frustration with Elder's failure to appear, particularly in view of the serious nature of the charges.

Later that day, the case was recalled, and Elder appeared.   Elder explained that his appearance had been for bond only, he did not intend to file a full appearance in the case and that he would return the petitioner's family's retainer.   The court ordered Elder out of the case and continued the matter for the petitioner to apply for a public defender or to obtain private counsel.   At the next court appearance on March 29, 2004, public defender R. Bruce Lorenzen filed his appearance on the petitioner's behalf.   The next year, due to a conflict, the court allowed Lorenzen to withdraw his appearance, and appointed special public defenders Sheehan and Kouros to conduct the trial.

Despite having filed a bond only appearance, Elder instructed his investigator, Homer Ferguson, to obtain statements from two state's witnesses, Maurice Henry and Mary Cauley.   Henry and Cauley had provided statements to the police relevant to the shooting.   Henry told police that he was in a car with friends when he witnessed the defendant shoot the victim.   Cauley told the police that prior to the shooting, she walked by the defendant's house, where he was standing on the porch.   The petitioner told her to get out of the way.   Shortly thereafter, she heard gun shots.

It is not clear from the record exactly when Elder instructed Ferguson to obtain the statements of Henry and Cauley, or when Ferguson initially questioned them.   However, based on the testimony of Ferguson at the criminal trial, someone from Elder's office, perhaps Elder's secretary, called him and asked him to speak to Henry and Cauley.   Prior to speaking to Henry and Cauley, Ferguson spoke to Elder.   When Ferguson met with Henry and Cauley, he took notes of what they said on a yellow legal pad.   Ferguson gave his notes to Elder's secretary, who he believes typed them, and then gave him the typed statements, called “affidavits.”   On April 9, 2004, a full month after Elder was ordered out of the case by the court, withdrew his appearance, and was supposed to have returned any retainer to petitioner's family, Ferguson met with Cauley and Henry and had them sign their typed statements above his notary stamp.

In their affidavits, Henry and Cauley recanted the statements they made to police implicating the petitioner in the shooting.   Both statements claimed that they had been intimidated, coerced and pressured by police to provide inculpatory testimony against the petitioner, who the police believed to be the perpetrator.   Both affidavits stated that they did not know who shot the victim.

Ferguson gave the signed affidavits to Elder who, at some point, turned them over to Lorenzen.   Lorenzen gave copies of the affidavits to the state.

The state included both Ferguson and Elder on its witness list.   Prior to trial, Sheehan called Elder a number of times, but Elder did not return his calls.   Sheehan did speak to Ferguson prior to his testimony, and Ferguson relayed his part in putting together the affidavits.   Sheehan expected that Elder's testimony would be similar to Ferguson's.

The state told the court that Elder was a prior attorney to the petitioner but did not believe that the proffered testimony concerning obtaining the affidavits would be covered by the attorney-client privilege.

Elder testified at the criminal trial under subpoena by the state.   Elder did not seek to limit his testimony, assert the attorney-client privilege, or make any attempts to speak to Sheehan or Kouros prior to his testimony.   Elder testified on direct examination that after he obtained Ferguson's hand written notes, he prepared the two affidavits for Cauley and Henry.   When asked if he “made things up” in the affidavits, he testified:  “What I did was, I filled in the gap.   And the idea would be to fill in the gap to see if that would be what the witness would agree to.   It was not information that came directly from the witness, it was information that I provided ․” And again when asked:  “where did you get that information from,” Elder responded:  “I made it up.”   And again, when asked:  “Now, you made up certain information in those affidavits.   Correct,” Elder responded:  “yes.”

When asked if he believed that he had fabricated evidence, Elder responded:  “no, because it wasn't information that would have been substantial or substantive in any way.   It was information that did not go to the substance of the case.”   The state's attorney then took Elder through the affidavits and asked him what parts he had made up.   As to Mr. Henry's claim that he did not witness the shooting, Elder stated:  “that is not something I would fabricate.”   When asked about the phrase “out of fear and intimidation,” Elder stated that that phrase “is something he would put in there.”   When asked if this practice was something he generally engaged in, Elder stated:  “I don't generally do that.   But, in doing this particular one, my recollection is that I felt that it needed a little oomph.”

Sheehan was surprised by Elder's admission that he made things up in the affidavits, but did not cross-examine him.   Although Elder's admissions were harmful to the petitioner's case because they undermined the witnesses' recantations, Sheehan did not believe that cross-examining Elder would be helpful to the petitioner's case and did not want to make a bad situation worse.   Sheehan did not move for a mistrial based on Elder's testimony.

The petitioner claims that Sheehan was ineffective in failing to object to Elder's testimony, cross-examine him or move for a mistrial after he testified.   Although the plaintiff has proved these basic facts—that trial counsel did not object to Elder's testimony, crossexamine him or move for a mistrial—he has failed to prove that such conduct satisfies either prong of the Strickland test—deficient performance or prejudice.

Elder's testimony that he “made up” portions of Henry's and Cauley's affidavits was a surprise to all of the parties.   Prior to Elder's testimony, the state proffered to Sheehan and the court that it wished to call Ferguson and Elder to probe the creation of the affidavits, in which the witnesses recanted their prior statements implicating the petitioner in the shooting to police.   Ferguson took handwritten notes when he spoke to Cauley and Henry, which he turned over to Elder.   The state sought to obtain Ferguson's notes of the interviews through its subpoena of Elder, but Elder did not have them.   Sheehan attempted to reach Elder several times to discuss the case with him, but Elder did not return his calls.   Sheehan talked to Ferguson about how the affidavits were created prior to his testimony, and reasonably believed that Elder's testimony would be consistent with Ferguson's.

Sheehan did not object to Elder's testimony because he believed that his testimony would be consistent with Ferguson's and that it therefore would be helpful to the petitioner's case.   The affidavits of Cauley and Henry recanted their statements to police, and indicated that the police coerced them into implicating the petitioner.   Such statements were helpful to the petitioner's defense strategy that the state could not prove petitioner's case beyond a reasonable doubt.   Naturally, trial counsel wanted the affidavits before the jury.   Indeed, when Elder testified, the affidavits were already before the jury.   Neither Sheehan nor Kouros knew that Elder made up portions of the affidavits and did not anticipate that Elder would testify that he did so.   There is absolutely no basis in the record for the petitioner's claim that:  “[B]oth Attorney Sheehan and Attorney Kouros knew about the falsified statements of Maurice Henry and Mary Calkins [Cauley] prior to the jury trial, yet did nothing to protect the petitioner's interests during the trial.” ³

Additionally, it was not clear from the evidence produced at trial or the petitioner's brief, on what basis trial counsel should, or could, have objected to Elder's testimony.   Since the proffered testimony and notes did not involve any confidential communications between the petitioner and Elder, such testimony would not be privileged under the attorney client privilege.   See e.g., Olson v. Accessory Controls and Equipment Corp., 254 Conn. 145, 156–57, 757 A.2d 14 (2000) (communications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice).   Nor did the petitioner establish that Elder's testimony concerning how the affidavits were created constituted attorney work product.   See e.g. Ullman v. State, 230 Conn. 698, 714, 647 A.2d 324 (1994) (“Work product can be defined as the result of an attorney's activities when those activities have been conducted with a view to pending or anticipated litigation”).   However, even if such testimony did constitute attorney work product it would have been a reasonable tactical decision by Sheehan not to object to the testimony where Sheehan did not anticipate that Elder would testify that he “made up” certain matters in the affidavits thereby undermining the value of the affidavits.   Mozell v. Commissioner of Correction, 291 Conn. 62, 79, 967 A.2d 41 (2009) (to show objectively unreasonable decision by trial counsel requires showing of no tactical justification for the course taken).

Sheehan did not cross-examine Elder after he testified on direct because he did not want to make a bad situation worse and did not know what else Elder might say that could hurt the petitioner's case.  “To satisfy the first prong of Strickland, the petitioner must ․ overcome the presumption that alleged ineffective assistance was not the result of sound trial strategy.”  (Internal quotation marks omitted.)  Beverly v. Commissioner of Correction, 101 Conn.App. 248, 252, 922 A.2d 178, cert. denied, 283 Conn. 907, 927 A.2d 916 (2007);  Porter v. Commissioner of Correction, 120 Conn.App. 437, 991 A.2d 770, cert. denied, 298 Conn. 901, 3 A.3d 71 (2010).   The decision whether to cross-examine a witness is a tactical decision that the court must presume was based in sound legal strategy.  Green v. Commissioner of Correction, 119 Conn.App. 348, 358, 987 A.2d 389, cert. denied, 296 Conn. 905, 992 A.2d 1135 (2010).   The court finds that the petitioner has not overcome the presumption that Sheehan's decision not to cross-examine Elder under the circumstances presented here was objectively reasonable trial strategy.⁴

The petitioner also claims that trial counsel was ineffective in failing to move for a mistrial after Elder testified, but provides no legal or factual basis for this claim.   At the habeas trial, no party asked Sheehan whether he considered moving for a mistrial, and/or why he did not move for a mistrial, after Elder testified.   Sheehan did testify that:  “he did not see a way to undo what Elder had done.”

In his reply brief, petitioner states:  “This Habeas Court should note the obvious effect that Attorney Elder's testimony would have been upon the jury ․ The actions by Attorney Elder were so egregious, felonious and deceptive, that there is a high probability that the jury [sic] that there were undoubtedly established a prejudicial effect upon the Petitioner by his association with Attorney Elder.   Therefore, as a result of said deceptive actions of Attorney Elder, there exists a strong inference that the Petitioner could have been unjustly and unfairly viewed by the jury as being involved in this conspiracy of description along with his previous attorney through no fault of his own.”

This court does not condone Elder's actions in “making up” certain allegations of witness affidavits in order to give them some “oomph.”   However, the evidence was admissible, relevant and probative in the criminal trial.   Other than the fact that the truth about how the affidavits were created was harmful to the petitioner's case by undermining their value, it is not “obvious” to the court that under the circumstances of this case, that Sheehan's failure to move for a mistrial constituted deficient performance of counsel under Strickland or that he was prejudiced by that decision.

The petitioner must overcome the strong presumption that Sheehan's conduct fell within the wide range of reasonable professional assistance that might be considered sound trial strategy.  Strickland v. Washington, supra, 466 U.S. 689–90.   Because no one asked Sheehan whether he considered moving for a mistrial after Elder testified, and if not, why he did not make such a motion, the court cannot determine whether Sheehan's failure to act fell within the wide range of reasonable professional judgments that could have been made under the circumstances of this case.   Without such evidence, the court finds that plaintiff has not produced sufficient evidence to overcome the presumption.   Indeed, it is possible that pursuant to Sheehan's defense strategy, in spite of Elder's testimony, he still wanted the case to go to the jury.   Even with Elder's testimony, the defense strategy to establish a reasonable doubt in the minds of the jurors that the petitioner was not the shooter, was largely on course.   At the time that Elder testified, Henry and Cauley had already testified, and their affidavits recanting their police statements were before the jury.   The affidavits of Henry and Cauley were helpful to the defense, not simply because they recanted the witness's statements to the police, but to undermine their credibility generally.   Although Elder's testimony undermined the value of the affidavits, he testified at that criminal trial that he did not make up any matter “of substance” contained in those affidavits.   During his closing argument Sheehan told the jury:  “Mr. Ferguson comes in and [Maurice Henry] signs a retraction.   Now I'm gonna ask you not to get distracted here by this whole sequence about Attorney Elder.   What the prior lawyer may have done is irrelevant in this case.   What is relevant is that Maurice Henry admits signing that paper, knowing what it was about, and yet being so casual, even if you believe him—and I don't—that's up to you to decide whether to believe him on anything.   But being so casual as to sign it without reading it, is that the kind of person you'd rely on in a serious matter.”

Under these circumstances, the petitioner has not established that the failure to move for a mistrial after Elder's testimony was not reasonable and sound trial strategy by Sheehan.   Moreover, the petitioner has not demonstrated that had Sheehan moved for a mistrial, the trial court was likely to grant the motion under the circumstances.  “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 deprived of the opportunity of a fair trial ․ The ultimate question on a motion for mistrial is whether the alleged offense resulted in ‘substantial and irreparable prejudice to the defendant's case.’  “ (Internal quote and citations omitted.)  Magnotti v. Meachum, 22 Conn.App. 669, 679, 579 A.2d 553 (1990).  “ ‘While the remedy of a mistrial is permitted under the rules of practice, it is not favored.  [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial ․ and the whole proceedings are vitiated ․ If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.’  (Internal quotation marks omitted.)  Mozell v. Commissioner of Correction, supra, 291 Conn. 68.   In order to show prejudice, the petitioner must prove that if [the petitioner] had filed a motion for a mistrial or a motion to dismiss, there would have been a reasonable probability that the motions would have been granted.   See Correa v. Commissioner of Correction, 101 Conn.App. 554, 556, 922 A.2d 289, cert. denied, 283 Conn. 911, 928 A.2d 536 (2007).”  Sinchak v. Commissioner of Correction, 126 Conn.App. 670, 679, 14 A.3d 348, cert. denied, 301 Conn. 901, 17 A.3d 1045 (2011).

The petitioner has not alleged, and has not demonstrated, that a curative instruction should have been sought or would not have cured any potential prejudice to the petitioner, nor that had he move for a mistrial, the trial court would have granted it.   Thus, petitioner has not proven that trial counsel's conduct was deficient in failing to seek a mistrial.

Finally, as to all of the petitioner's claims in his first count regarding Elder, the petitioner has not proved that but for Elder's testimony, the results of the trial would have been different.  Fair v. Warden, 211 Conn. 398, 408, 559 A.2d 1094 (1989) (“the question is whether there is a reasonable probability that, absent the errors, the fact finder would have a reasonable doubt respecting guilt”);  see also Atkinson v. Commissioner of Correction, 125 Conn.App. 632, 638, 9 A.2d 407 (2010), cert. denied, 300 Conn. 919, 14 A.3d 1006 (2011).   Even without the testimony of Elder regarding Henry's and Cauley's affidavits, the jury heard from eyewitness, Richard Ware, who, as discussed supra, testified that the petitioner had a motive to shoot the victim and that he saw him running away from the scene right after the shooting with a gun in his hand.   This testimony would have been sufficient to convict the petitioner.   In addition, at the criminal trial even before Elder testified, Henry testified at trial before the jury, that he signed the affidavit, but did not read it, and Cauley did not recall signing it.   Such testimony undermined the impact of those affidavits.

The court therefore finds that the petitioner has not established prejudice as to the Elder claims.

Accordingly, petitioner's claims in his first count regarding Elder are denied.

C. Failure to raise an alibi defense

The petitioner's next claim is that his trial attorneys were ineffective because they failed to pursue an alibi defense.   The following facts are relevant to this claim.

At the time of the shooting, the petitioner told counsel that he was having his hair braided by his fourteen-year-old niece in the building where he lived, near where the shooting occurred.   Petitioner claims that he was with his niece when they heard gun shots.   Sheehan was aware of this possible alibi defense but decided not to pursue it for four reasons:  (1) he did not believe it was a strong defense;  (2) he was unable to interview the petitioner's niece because her mother (petitioner's aunt) would not allow him to do so and stated that she did not want her daughter involved in the case;  (3) presenting an alibi defense would distract the jury from the petitioner's primary defense that the state could not prove the petitioner's guilt beyond a reasonable doubt;  and (4) such a defense would require the petitioner to testify, which would result in his felony convictions being disclosed to the jury.

Whether to call a particular witness is a matter of trial strategy that “does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.”   Dunkley v. Commissioner of Correction, 73 Conn.App. 819, 824, 810 A.2d 281 (2002), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003), quoting Adorno v. Commissioner of Correction, 66 Conn.App. 179, 186, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001);  Hopkins v. Commissioner of Correction, 95 Conn.App. 670, 676, 899 A.2d 632, cert. denied, 279 Conn. 911, 902 A.2d 1071 (2006).  “[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).

Other than Sheehan's testimony, the petitioner did not produce any other evidence regarding his potential alibi defense.   The petitioner did not testify at the habeas trial and did not present the testimony of his niece.   Accordingly, the petitioner has not produced any evidence to support an alibi defense or for the court to evaluate such a defense.   Moreover, the court finds Sheehan's reasons for not presenting an alibi defense constituted a sound and reasonable trial strategy.

Accordingly, the court finds that the petitioner has not proved his claim that trial counsel were ineffective in failing to present an alibi defense at trial.   This claim is, therefore, denied.⁵

D. Claims related to Chauncey Odum

The petitioner claims that trial counsel was ineffective in failing to present evidence that Chauncey Odum possessed a gun on the day of the shooting and failed to cross-examine Odum on this issue.   The following facts are related to this claim.

At the time of petitioner's criminal trial, Odum was incarcerated on a number of serious criminal charges unrelated to the petitioner's case, including the illegal possession of a .38 caliber firearm.   Sheehan attempted to speak with Odum prior to trial but could not secure the permission of Odum's defense attorney.

Prior to the criminal trial;  the state disclosed a ballistics report of Odum's handgun, which formed the basis of his pending criminal charges.   A ballistics report in the shooting in the petitioner's case revealed that the gun used to shoot the victim was either a .38 or a .357 caliber weapon.   Thus, Odum's handgun, used in his crimes eighteen months after the shooting in this case, could not be excluded as the gun involved in the case.

Prior to Odum's testimony at the criminal trial, Sheehan and Kouros told the court, in a chambers conference, that they wished to introduce the ballistics report on Odum's gun and pursue a claim of third-party culpability that Odum was the shooter.   The court expressed concern that such a claim was too attenuated in light of the eighteen-month period of time that had lapsed between Odum's crimes and the shooting in this case.   The court, however, allowed defense counsel to ask Odum, during cross examination, whether he had a gun in his possession on the day of the shooting.

At the criminal trial, Odum admitted that he was incarcerated on pending charges that included possession of a firearm.   He also testified that on the day of the shooting, he was slumped down in the back seat of a parked car in a parking lot on Garden Street getting high on PCP with two others, Maurice Henry and Tylon Barlow.   Raymond Rodriguez approached the car and told them to “look at this” as he looked north up Garden Street.   Odum did not see where Rodriguez was looking because he was in a slouched position in the back seat of the car.   Odum then heard gun shots, and “got low” in the car.   After he heard the shots, Odum and the others left the area.   As they left, Odum saw the victim on the ground.   He did not witness the shooting and did not see the petitioner in the area.

On cross-examination at the criminal trial, Sheehan asked Odum a few questions about how much PCP he and the others had smoked, but did not ask Odum if he had a gun in his possession on the day of the shooting, even though the court did not prevent him from doing so.   Sheehan decided not to ask Odum about whether he possessed a hand gun for three reasons:  (1) Odum's testimony was helpful to the petitioner's case, since he did not see the shooting and did not see the petitioner in the area;  (2) Sheehan did not believe that Odum would admit to having a gun in his possession, given his pending firearms charges;  and (3) pursuing a claim that Odum was the shooter could appear desperate to the jury, like “throwing mud up against the wall.”

At the time of the trial in this case, Odum had been sentenced.   Odum testified that at the time of the shooting he “probably” had a .25 caliber handgun in his possession in the car.   Had he been asked at the criminal trial whether he had a gun in his possession at the time of the shooting, he would have said yes.   He also testified that Henry was not in the car but that he was with them getting high.

“ ‘An attorney's line of questioning on examination of a witness clearly is tactical in nature.  [As such, this] court will not, in hindsight, second-guess counsel's trial strategy.’  State v. Drakeford, 63 Conn.App. 419, 427, 777 A.2d 202 (2001), aff'd, 261 Conn. 420, 802 A.2d 844 (2002).   The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance.”  Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).

The court finds that Sheehan's decision not to cross-examine Odum about whether he possessed a gun on the day of the shooting constituted a sound and reasonable trial tactic.   In addition, had Sheehan asked Odum on cross-examination whether he possessed a gun on the day of the shooting in this case, and he answered the question, he would have admitted to having a .25 caliber gun;  that was not consistent with the gun used in this case.   Accordingly, the petitioner has not proved prejudice.

In addition, given that Odum's gun did not match the shooter's gun, as well as the other evidence at trial putting Odum in a car with two others at the time of the shooting, the petitioner would not have succeeded in pursuing a third-party culpability claim or jury instruction.  Dunkley v. Commissioner of Correction, supra, 73 Conn.App. 825–26;  State v. Miles, 132 Conn.App. 550, 554–55, cert. denied, 303 Conn. 934 (2012) (defendant must present evidence that directly connects a third party to the crime);  State v. Arroyo, 284 Conn. 597, 608–10, 935 A.2d 975 (2007) (“It is not enough to show that another had the motive to commit the crime ․ nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused.  (Internal quotation marks omitted.))”

Thus, the claims in count one of the amended petition regarding Odum are denied.

E. Failure to Investigate—Tylon Barlow

The petitioner claims that trial counsel was ineffective in failing to conduct a proper investigation and, in particular, failing to locate a witness, Tylon Barlow, who he claims would have provided helpful testimony at the petitioner's criminal trial.

Barlow did not testify at the criminal trial.   Both Sheehan and Kouros testified that they were unable to locate Barlow prior to trial.   In the habeas trial, he testified that he knew the petitioner, Henry and Odum from the neighborhood.   He stated that at the time of the shooting, he was seated in the driver's seat of his Ford Probe vehicle, with Henry in the back seat and Odum in the passenger seat.   All three were getting high and each of them had guns in their possession.   Barlow's was a .25 caliber, Odum had a .38 caliber, and Henry had a .40 caliber firearm.   No one in the car shot their weapons.   Barlow heard gun shots and then all three ducked down in the car.   After the gun shots stopped, he pulled the car out of the parking lot and took a left out of the parking lot.   He saw the victim to the right but did not see the petitioner.

An attorney representing a criminal defendant has “a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”  Strickland, supra, 466 U.S. 691.   Counsel cannot be found to be ineffective for failing to present the testimony of witness he cannot locate.  Walton v. Commissioner of Correction, 57 Conn.App. 511, 523, 749 A.2d 666, cert. denied, 254 Conn. 913, 759 A.2d 509 (2000).

While Barlow's testimony would have been helpful to the defense because he did not see the petitioner, it would have been cumulative of Odum's testimony, and therefore not prejudicial.  Jeffrey v. Commissioner of Correction, 36 Conn.App. 216, 222, 650 A.2d 602 (1994).

Accordingly, the claim in count one of the amended petition regarding the lack of an adequate investigation is denied.

Count Two—Claims against Appellate Counsel

In the amended petition, the petitioner claims that his “Appellate Counsel George Kouros was ineffective in that he failed to adequately raise on the direct appeal any of the issues referenced herein within Count One preserved and/or unpreserved by trial counsel.”   Count One of the amended petition includes petitioner's numerous claims of ineffective assistance against his trial attorneys, discussed in detail supra.

To succeed on a claim of ineffective assistance of counsel of appellate counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, supra, 466 U.S. 687.  Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).   In particular, with respect to a claim against appellate counsel, the petitioner must show that there is a “reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial ․ [T]o determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm.”  Small v. Commissioner of Correction, supra, 286 Conn. 722;  Moody v. Commissioner of Correction, 127 Conn.App. 293, 301, 14 A.3d 408, cert. denied, 300 Conn. 943, 17 A.3d 478 (2011);  see also Smith v. Robbins, supra, 528 U.S. 285.

Claims related to appellate counsel's failure to raise a particular nonfrivilous claim are difficult to establish.   The United States Supreme Court in Smith v. Robbins, supra, 528 U.S. 288, explained:  “In Jones v. Barnes, 463 U.S. 745 (1983), we held that appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.   Notwithstanding Barnes, it is still possible to bring a Strickland claim based on counsel's failure to raise a particular claim, but it is difficult to demonstrate that counsel was incompetent.”

The Connecticut Supreme Court has found similarly with respect to assessing habeas claims against appellate counsel.  “The right to counsel is not the right to perfect representation ․ [Although] an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue.   A brief that raises every colorable issue runs the risk of burying good arguments ․ in a verbal mound made up of strong and weak contentions ․ Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues ․ Most cases present only one, two, or three significant questions ․ The effect of adding weak arguments will be to dilute the force of the stronger ones ․ Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation.”  (Internal quotation marks omitted.)  Bailey v. Commissioner of Correction, 107 Conn.App. 362, 366–67, 947 A.2d 2, cert. denied, 287 Conn. 922, 951 A.2d 568 (2008).”   Johnson v. Commissioner of Correction, 131 Conn.App. 805, 808–9, 29 A.3d 166 (2011).  “It is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment.”  Valeriano v. Bronson, 209 Conn. 75, 87, 546 A.2d 1380 (1988).   See also, Vivo v. Commissioner of Correction, 90 Conn.App. 167, 172, 876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d 1253 (2005).

The petitioner's claims against appellate counsel are that he failed to raise the ineffective assistance of counsel claims he now asserts in count one of his habeas petition.   Such claims, that trial counsel was ineffective in his or her representation of a defendant at a criminal trial cannot be raised on a direct appeal.   The Supreme Court has clearly stated:  “ ‘This court has emphasized in other cases that a claim of ineffective assistance of counsel is more properly pursued on a petition for new trial or on a petition for a writ of habeas corpus rather than on direct appeal.’  State v. Mason, 186 Conn. 574, 578–79, 442 A.2d 1335 (1982);  State v. Just, 185 Conn. 339, 370–71, 441 A.2d 98 (1981).”  State v. Leecan, 198 Conn. 517, 541–2, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.550 (1986).   Thus, because it would have been improper for appellate counsel to raise on appeal claims that trial counsel was ineffective, his conduct in failing to do so does not meet the first prong of the Strickland standard.

Moreover, to the extent that the petitioner's claims are directed at the underlying claims, most of which do not appear to have been preserved, petitioner has produced no evidence to prove the claims against appellate counsel.   Although Kouros testified at the habeas trial, he was not asked any questions about his role as appellate counsel or why he chose to pursue certain claims on appeal over others.   The petitioner's post-trial brief fails to even address the claims against appellate counsel.⁶  Thus, the petitioner has failed to prove these claims.

Accordingly, count two of the amended petition is denied.

Count Three—Claims Directed at Elder

In his third count, the petitioner claims that Elder was ineffective because he falsified the affidavits of Henry and Cauley, failed to disclose his conduct to the petitioner or his counsel and testified for the state regarding this conduct.   The facts related to this claim are set forth supra.

Under the Sixth Amendment, a criminal defendant has the right “to have the Assistance of Counsel for his defense.”   The “purpose of the sixth amendment is simply to ensure that the defendants receive a fair trial.”  Strickland, 689.

The court has already found that Elder made up certain aspects of Cauley's and Henry's affidavits, did not disclose his conduct to Sheehan or Kouros, and testified at the petitioner's trial regarding this conduct.   There is a significant question as to whether when Elder engaged in this conduct, he was petitioner's “counsel” as required by the sixth amendment.   His appearance in this case was for bond purposes only.   Elder's official representation of the petitioner ceased on March 10, 2004, when he indicated his intention to withdraw his appearance and to return the retainer to the petitioner's family, and the court ordered him out of the case.   Public defender Lorenzen filed his appearance on March 29, 2004.   The petitioner has not produced any evidence that, after Elder withdrew from the case and returned the retainer, the petitioner or his family retained Elder to continue to represent the petitioner by working behind the scenes to conduct an investigation or to obtain witness statements.   Since Elder's original appearance in this case was for bond purposes only, it is not clear, and there was not evidence to establish, why Elder employed an investigator to obtain witness statements, or how such statements would be used for bond arguments.   The affidavits of Henry and Cauley are dated April 9, 2004, a month after Elder was ordered out of the case and at a time that he did not represent the petitioner.   When Elder received his subpoena to testify at trial and appeared at the criminal trial, the petitioner was represented by Sheehan and Kouros.

“For a lawyer's advice to constitute ineffective assistance of counsel, it must come from a lawyer who is representing the criminal defendant or otherwise appearing on the defendant's behalf in this case.”  United States v. Martini, 31 F.3d 781, 782 (9th Cir., 1994).  “The Sixth Amendment right to effective assistance of counsel guaranteed under Strickland ․ does not include the right to receive good advice from every lawyer a criminal defendant consults about his [or her] case.”  Id. The Seventh Circuit has held that an attorney does not have to appear in court to be considered “counsel” but stated that:  “defendant's constitutional right to effective assistance of counsel does not extend to those cases where a non-appearing attorney:  (1) gives a defendant legal advice even though he has not been retained by the defendant to help prepare his defense;  or (2) is retained by the defendant but his conflict of interest or deficient performance is not reflected in the conduct of the defense at trial.”  Stoia v. United States, 22 F.3d 776, 769 (7th Cir.1994).

The court does not have to decide if Elder was the petitioner's “counsel” for sixth amendment purpose, because as the court found supra, as to the count one claims involving Elder, the petitioner has failed to establish that he was prejudiced by Elder's misconduct.   Under the circumstances of this case, the court does not find that Elder's conduct “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  Strickland v. Washington, supra, 466 U.S. 668.

Accordingly, count three is denied.

CONCLUSION

For all of the foregoing reasons, the amended petition is denied in its entirety.   So ordered.

Cobb, J.

FOOTNOTES

FN1. The petitioner produced no evidence to support, or argument regarding, his claim in count one his trial counsel misrepresented the plea offer.   The state presented the testimony of Attorney Sheehan on this claim, who testified that although the state made an offer of 10–12 years to the petitioner and that he explained that offer and the risks of going to trial to the petitioner, the petitioner rejected the offer.   The court finds that the petitioner has failed to prove this claim and therefore, denies it..  FN1. The petitioner produced no evidence to support, or argument regarding, his claim in count one his trial counsel misrepresented the plea offer.   The state presented the testimony of Attorney Sheehan on this claim, who testified that although the state made an offer of 10–12 years to the petitioner and that he explained that offer and the risks of going to trial to the petitioner, the petitioner rejected the offer.   The court finds that the petitioner has failed to prove this claim and therefore, denies it.

FN2. There is no distinction in count one between the actions of Sheehan and Kouros, who both represented the petitioner at the criminal trial.   The court addresses the claims similarly in this opinion..  FN2. There is no distinction in count one between the actions of Sheehan and Kouros, who both represented the petitioner at the criminal trial.   The court addresses the claims similarly in this opinion.

FN3. In fact this claim make in the petitioner's reply brief is contrary to the claim made in count three of the amended petition that:  “counsel failed to disclosed [sic] to the petitioner and/or his trial counsels that he had fabricated evidence, thus discrediting the petitioner during the jury trial.”.  FN3. In fact this claim make in the petitioner's reply brief is contrary to the claim made in count three of the amended petition that:  “counsel failed to disclosed [sic] to the petitioner and/or his trial counsels that he had fabricated evidence, thus discrediting the petitioner during the jury trial.”

FN4. The court does not credit Elder's testimony in the habeas trial that had he been questioned on cross-examination by Sheehan, he would have changed his testimony from his direct examination.   Even if the court were to credit this testimony, it concludes that Sheehan's tactical decision not to take that risk was a sound and reasonable trial tactic..  FN4. The court does not credit Elder's testimony in the habeas trial that had he been questioned on cross-examination by Sheehan, he would have changed his testimony from his direct examination.   Even if the court were to credit this testimony, it concludes that Sheehan's tactical decision not to take that risk was a sound and reasonable trial tactic.

FN5. The petitioner's amended petition includes a claim that trial counsel failed to conduct a proper investigation.   The complaint does not state precisely how the investigation was deficient.   In his brief, the petitioner discusses this claim as it relates to the alibi defense.   To the extent the investigation claim in count one of the amended petition is asserted as to the issue of the alibi defense, it is denied for the reasons discussed above..  FN5. The petitioner's amended petition includes a claim that trial counsel failed to conduct a proper investigation.   The complaint does not state precisely how the investigation was deficient.   In his brief, the petitioner discusses this claim as it relates to the alibi defense.   To the extent the investigation claim in count one of the amended petition is asserted as to the issue of the alibi defense, it is denied for the reasons discussed above.

FN6. To the extent the petitioner raises new claims in his post-trial brief, not alleged in his amended petition, dated September 5, 2011, the court shall not address them.  Giannotti v. Warden, 26 Conn.App. 125, 126, n.1, cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992);  Fernandez v. Commissioner of Correction, 86 Conn.App. 42, 50–51, 859 A.2d 948 (2004);  Fulton v. Commissioner of Correction, 126 Conn.App. 706, 713–15, cert. denied, 300 Conn. 937, 17 A.3d 473 (2011)..  FN6. To the extent the petitioner raises new claims in his post-trial brief, not alleged in his amended petition, dated September 5, 2011, the court shall not address them.  Giannotti v. Warden, 26 Conn.App. 125, 126, n.1, cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992);  Fernandez v. Commissioner of Correction, 86 Conn.App. 42, 50–51, 859 A.2d 948 (2004);  Fulton v. Commissioner of Correction, 126 Conn.App. 706, 713–15, cert. denied, 300 Conn. 937, 17 A.3d 473 (2011).

Cobb, Susan Quinn, J.