226335 v. Warden (2013)

MEMORANDUM OF DECISION

On October 8, 2009, the petitioner, Donald Moody, filed a petition for a writ of habeas corpus, which was amended for the second and final time by assigned counsel on September 24, 2012.   The second amended petition raises claims in one count and challenges the petitioner's convictions in docket number CR 01–0807311S, judicial district of New Haven, following a jury trial.

The petitioner was charged by substitute information with one count of murder in violation of General Statutes § 53a–54a, one count of manslaughter in the first degree with a firearm in violation of General Statutes § 53a–55a(a), and two counts of assault in the first degree in violation of General Statutes § 53a–59(a)(5).   Following a jury trial in which he was found guilty of one count of murder and one count of assault in the first degree, the petitioner was sentenced to a total effective sentence of forty years to serve.   The petitioner was represented by Attorney Avery Chapman at trial.

The petitioner appealed from the judgment of conviction.   Represented on direct appeal by Attorney Jeremiah Donovan, the petitioner claimed that:  “(1) the trial court improperly refused to admit into evidence the full transcript of a defense witness' statement to police, (2) the prosecutor committed misconduct during cross-examination and closing argument in violation of the [petitioner's] right to a fair trial and (3) the court failed to investigate adequately whether jurors saw certain notes made by the prosecutor that inadvertently had been given to an alternate juror.  [The Appellate Court] affirm[ed] the judgment of the trial court.”  State v. Moody, 77 Conn.App. 197, 199, 822 A.2d 990, cert. denied, 264 Conn. 918, 827 A.2d 707, cert. denied, 540 U.S. 1058, 124 S.Ct. 831, 157 L.Ed.2d 714 (2003).

The petitioner also challenged his convictions via a petition for a writ of habeas corpus.   In his first habeas, represented by Attorney David Moreshead, the petitioner alleged ineffective assistance by trial counsel, Attorney Chapman.  “In his amended petition for a writ of habeas corpus, the petitioner claimed, among other things, that Chapman, counsel in the second [criminal] trial,¹ had rendered ineffective assistance in that he had failed (1) to present available evidence in the petitioner's defense, (2) to request a charge to the jury on the theory of defense of others and (3) to ensure that the jury was impartial.   After a trial, the habeas court [White, J.] determined that the petitioner had failed to prove either that his trial counsel's performance was deficient, or that he had been prejudiced, and dismissed the petition.   Thereafter, the court denied the petition for certification to appeal.”   Moody v. Commissioner of Correction, 108 Conn.App. 96, 99, 946 A.2d 1268, cert. denied, 288 Conn. 906, 953 A.2d 649 (2008).   The Appellate Court concluded that the first habeas court did not abuse its discretion in denying the petition for certification to appeal and dismissed the appeal.  Id., 105.   The petitioner was represented in the first habeas appeal by Attorney Peter Tsimbidaros.

The petitioner pursued habeas corpus relief a second time.   Represented by Attorney Peter Tsimbidaros, who also represented him in the first habeas appeal, the second petition claimed “ineffective assistance of trial counsel, ineffective assistance of appellate counsel and instructional error.”  Moody v. Commissioner of Correction, 127 Conn.App. 293, 296, 14 A.3d 408, cert. denied, 300 Conn. 943, 17 A.3d 478 (2011).   The second habeas court, Fuger, J., denied these claims and granted the petition for certification to appeal.   Id., 295.  “On appeal, [represented again by Attorney Tsimbidaros,] the petitioner claim[ed] that the court improperly rejected his claims of (1) ineffective assistance of trial counsel, (2) instructional error at his criminal trial and (3) ineffective assistance of appellate counsel in his direct appeal ․ Each of these claims [was] predicated on the same underlying claims of instructional error, namely, that the jury instructions improperly (a) did not include a charge on lesser included offenses to murder,² (b) included the entire statutory definition of intent, and (c) shifted the burden to the petitioner to prove self-defense and to disprove consciousness of guilty.”  (Footnote omitted.)  Id., 295.   The Appellate Court affirmed the judgment of the second habeas court.

The petitioner now alleges in this, his third petition for a writ of habeas corpus, that Attorney Moreshead, who is deceased, provided ineffective assistance of counsel in the first habeas corpus trial.   More specifically and as enumerated in the following paragraphs, the petitioner alleges that Attorney Moreshead failed to:  6.a.—raise and litigate trial counsel's failure to adequately prepare for trial, or seek a continuance of the trial to adequately prepare for trial, in that Attorney Chapman failed to:  (1) have an interview conducted of witnesses including Larry Smith prior to the second trial, to ascertain exculpatory evidence;  (2) request a reasonable continuance of the trial date in the second trial, although undertaking the case only weeks before the trial, to ensure adequate time to prepare;  (3) adequately review the trial transcripts from the first trial which ended in a mistrial, thereby failing to effectively prepare for state witnesses, and to evaluate and present the defenses including self-defense, and/or of third party defense;  (4) prepare for legal arguments regarding trial issues including motion for judgment of acquittal, and request for jury instructions;  and (5) adequately consult with prior counsel, and the petitioner, regarding the first trial, as to the trial itself, the strengths and weaknesses of the state's case, and trial strategy regarding self-defense, defense of others, and theory of defense.   The respondent's return denies the petitioner's allegations and leaves him to his proof.

The parties appeared before the court on June 5, 2013, for a trial on the merits.   The petitioner testified and presented testimony from three additional witnesses:  Attorney Tsimbidaros;  James Bender, a former private investigator who worked with Attorney Chapman preparing for the second criminal trial;  and Larry Smith, a friend of the petitioner who was with him before, during and after the shooting incident.   The respondent made an oral motion to dismiss the petition, in accordance with Practice Book § 42–41,³ because the petitioner failed to make out a prima facie case, and to which the petitioner objected and presented arguments to the contrary.

For the reasons articulated more fully below, the petitioner for a writ of habeas corpus is dismissed in accordance with Practice Book § 15–8.

DISCUSSION

I. Standard for ineffective assistance of prior habeas counsel claims

The court begins its “․ analysis by setting forth the familiar two part test enunciated by the United States Supreme Court in Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ].   In Strickland, which applies to claims of ineffective assistance during criminal proceedings generally, the United States Supreme Court determined that the claim must be supported by evidence establishing 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 ․ The first prong is satisfied by proving that counsel made errors so serious that he was not functioning as the counsel guaranteed by the sixth amendment.   The second prong is satisfied if it is demonstrated that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different ․

‘[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding ․ [T]he petitioner will have to prove that ․ the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial ․ Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice:  he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective ․

‘Furthermore, for any ineffective assistance claim, we also are cognizant that the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances ․ Judicial scrutiny of counsel's performance must be highly deferential ․ 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 [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 393–95, 966 A.2d 780 (2009).”  Edwards v. Commissioner of Correction, 141 Conn.App. 430, 437–39, 63 A.3d 540, cert. denied, 308 Conn. 940 (2013).

The requirement that the petitioner essentially twice prove the Strickland standard has often been described as “herculean.”   See, e.g., Lozada v. Warden, supra, 223 Conn. 843;  Lapointe v. Commissioner of Correction, supra, 113 Conn.App. 475;  Harris v. Commissioner of Correction, 126 Conn.App. 453, 458, 11 A.3d 730, cert. denied, 300 Conn. 932, 17 A.3d 69 (2011);  Stevenson v. Commissioner of Correction, 112 Conn.App. 675, 684, 963 A.2d 1077, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009).

II. Failure to make out a prima facie case

The petitioner has a significant burden of proof in this “habeas on a habeas on a habeas” and he must twice, arguably even thrice, make the required showing required by Strickland and its progeny.   The respondent made an oral motion after the petitioner rested and requested that the court dismiss the matter because the petitioner had failed to make out a prima facie case.⁴

“Practice Book § 15–8 provides in relevant part:  ‘If, on the trial of any issue of fact in a civil matter tried to the court, the [petitioner] has produced evidence and rested, a [respondent] may move for judgment of dismissal, and the judicial authority may grant such motion if the [petitioner] has failed to make out a prima facie case ․’ A prima facie case, in terms relevant to this case, ‘is one sufficient to raise an issue to go to the trier of fact ․ In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove ․ In evaluating a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the petitioner], and every reasonable inference is to be drawn in [the petitioner's] favor.’  (Citations omitted;  internal quotation marks omitted.)  Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S.Ct. 1239, 146 L.Ed.2d 99 (2000).”  Lapointe v. Commissioner of Correction, supra, 113 Conn.App. 388.

III. Evidence presented at habeas trial

The petitioner testified and presented the testimony from three other witnesses.   The testimony by Attorney Tsimbidaros, who represented the petitioner in the appeal from the first habeas as well as the second habeas itself and the appeal therefrom, in no way is helpful to the petitioner in twice showing the Strickland requirements.   The most salient testimony by Attorney Tsimbidaros was that he had difficulty contacting Attorney Chapman, who apparently moved to Florida at some point after representing the petitioner in his criminal trial, and that Attorney Moreshead had deceased prior to the trial in the second habeas petition.

Investigator Bender's testimony was limited in large part due to his inability to recall, if he was able to recall, specific information about his investigation of the petitioner's criminal matter for Attorney Chapman.   The court finds Mr. Bender's testimony to provide no support for the petitioner's claims.

The petitioner's third witness was Larry Smith, one of the petitioner's friends at the time the shooting occurred in 1994.   Mr. Smith presently is thirty-five years old and was about seventeen or eighteen years old at the time of the shooting.   Mr. Smith testified about the shooting incident, as well as both events prior to and thereafter.   However, Mr. Smith has previously testified regarding these very same events at both criminal trials and the second habeas trial, making this his fourth time testifying about the shooting.

The Appellate Court's decision in the petitioner's direct appeal contains the following summary of facts:

The [petitioner's] theory of defense at trial was that he had acted in self-defense when he shot Clark and Doughty.   He called Larry Smith as a witness.   Smith testified to the following facts.   On the morning of November 9, 1994, the [petitioner] and Smith were at the house where the [petitioner] lived with his mother.   Around lunchtime, the [petitioner] left the house.   When he returned, he appeared upset and stated that he had been approached, threatened and “ruffled up” by somebody at a convenience store on Sylvan Avenue.   The [petitioner] asked Smith to return to the store with him.   When they arrived at the store, the individuals who earlier had approached the [petitioner] no longer were there.   The [petitioner] purchased some food while Smith waited in the car.   When the [petitioner] returned to the car, Smith told the [petitioner] that he wanted to go home.

The [petitioner] drove in the direction of Smith's home, which was located near the corner of George and Day Streets.   When the [petitioner] stopped the car near that intersection, Smith opened the passenger side door part way to exit the vehicle.   He saw a man standing on the corner pull a gun out of his coat pocket.   While Smith was still seated in the passenger seat, the man began firing the gun.   After seeing the man fire the first shot, Smith ducked down behind the dashboard and heard what he described as “a rain of shots.”   At some point during the shooting, Smith caught a glimpse of the [petitioner] holding a gun The [petitioner], however, returned fire only after receiving a gunshot wound in his leg.   The entire incident, from the time the first shot was fired, lasted approximately fifteen seconds.

After the shooting had ended, the [petitioner] drove himself and Smith to the [petitioner's] house.   On the way there, Smith saw an automatic weapon in the [petitioner's] lap, but testified that he did not know what happened to the gun after that point.   When they arrived at the [petitioner's] home, Smith helped the [petitioner] out of the car and into the house.   Smith then drove off in the car, accompanied by a person known to him only as “Anklehead.”   Smith and Anklehead eventually were stopped by the police and taken into custody.   Smith was taken to a police station, where he made a tape-recorded statement.

During cross-examination, the state repeatedly questioned Smith about certain inconsistencies between his testimony and his November 9, 1994 tape-recorded police interview.   Smith admitted that he had told the police that he did not know the [petitioner's] first name and admitted that he had lied when he said that.   Smith also admitted that he had not told the police that the reason he and the [petitioner] were near the intersection of George and Day Streets was that the [petitioner] was driving Smith home.   In addition, Smith admitted that he told police that he had left the [petitioner's] gun in the car upon arriving at the [petitioner's] house, contrary to his trial testimony that he did not know what happened to the gun.

Prior to beginning redirect examination of Smith, the [petitioner] filed a motion in limine seeking to introduce the full twelve page transcript of the interview (police statement).   In support of his motion, the [petitioner] made two arguments.   He argued that admission of the police statement was necessary to counter the state's implication that Smith recently had fabricated his testimony.   In addition, the [petitioner] argued that the police statement should have been admitted for purposes of rehabilitation, to place the apparent inconsistencies with Smith's trial testimony in context so as not to mislead the jury.

The court denied the motion to introduce the full police statement, but stated that it would permit the [petitioner] to introduce certain sections.

State v. Moody, supra, 77 Conn.App. 200–02.

Mr. Smith testified in the present habeas that he was with the petitioner the day of the shooting.   Prior to the shooting Smith was with the petitioner at the petitioner's house.   Also there were “Anklehead” and “E–Double.”   According to Smith, the petitioner left the house and later returned.   Smith did not know where the petitioner went but when he returned, he asked Smith to accompany him to a convenience store to get something.   Smith and the petitioner encountered at the store several people whom Smith had previously seen around the petitioner's house.

At the present habeas trial, Smith testified that he and the petitioner were in a car when they pulled up to a male who was on the sidewalk.   That male pulled a gun and Smith told him “Don't bust” [i.e., don't shoot].   He ducked down and shots were fired both from the sidewalk at the car and from the petitioner in the direction of the sidewalk.   Smith indicated that the shots first came from the individual on the sidewalk and that the petitioner, still in the car with Smith, fired in response.   Smith could not recall, however, if he only heard all these shots or saw the person on the sidewalk shooting.   Although Smith was not injured, the petitioner was hit by a shot.   The petitioner and Smith left the scene in the petitioner's car and drove to the petitioner's house, where they encountered Anklehead.   Thereafter, the petitioner and Smith got back in the petitioner's car and left and then were pulled over by the police.

Smith further testified that he either did not meet with Attorney Chapman and investigator Bender, or that he did not recall meeting them, prior to the second criminal trial.   According to Smith, he was never asked about Anklehead and E–Double, the convenience store or the people involved in the shooting and that he first told Attorney Chapman about all these things when he testified during the second criminal trial.

The final witness to present testimony was the petitioner himself.   The petitioner testified that he was seventeen years old when the shooting occurred.   Attorney Donald Dakers, according to the petitioner, represented him in the first criminal trial.   Attorney Chapman was appointed to represent him in the second trial.   A letter from Attorney Chapman to the petitioner sent prior to the second trial indicated that counsel was still awaiting receipt of the transcripts from the first trial.   Attorney Chapman and investigator Bender came to MacDougall–Walker Correctional Institution in October of 2000 to meet with the petitioner and prepare for trial.   Thereafter, the petitioner only met with counsel at the courthouse during the second criminal trial.

At the time of that meeting the petitioner knew the names of Knucklehead and E–Double and that he gave this information to Attorney Chapman and inspector Bender.   The petitioner also testified that he told them about an incident that occurred between him and Doughty, one of individuals shot by the petitioner but who survived, when the petitioner visited the convenience store the morning of the day the shooting occurred.   According to the petitioner, there was one or more individuals at the store who potentially could corroborate his assertion that Doughty questioned him in a threatening manner about a different, prior shooting.   Doughty and Clark, the other victim who died after being shot by the petitioner, left the store and were subsequently shot by the petitioner.

The petitioner further testified that he told Attorney Chapman and inspector Bender that he fired to defend himself and Smith,⁵ that they were shot at first and returned fire, and that Smith had told the individual on the sidewalk not to shoot.   Neither Anklehead, nor E–Double, nor store employees, all of whom were not present at the time of the shooting, were called as witnesses to testify in second criminal trial.   The petitioner also testified about one Robert Randall,⁶ who testified in the first but not the second criminal trial, and possible confusion created by another individual named Scott Randall being a potential witness.

As to the representation at issue in the present petition, namely that by the late Attorney Moreshead in the first habeas, the petitioner testified that he provided all the foregoing information, which had previously been given to Attorney Chapman and inspector Bender, to Attorney Moreshead.   The petitioner did not, however, present any testimony as to why this information was not provided to Attorney Tsimbidaros, who represented him in the second habeas and both appeals from the first and second habeas court judgments.

IV. Oral motion to dismiss per Practice Book § 15–8 and petitioner's arguments

After the petitioner rested, the respondent made an oral motion to dismiss the petition because the petitioner had failed to make out a prima facie case.   Counsel for the respondent argued that the petitioner has the burden of proving that Attorney Moreshead rendered deficient performance and that the petitioner was prejudiced thereby.   Even if the petitioner's allegations of deficient performance were true, according to respondent's counsel, the petitioner had presented no evidence that any of the evidence by the witnesses not utilized by Attorney Moreshead would have impacted the outcome of the first habeas trial and the criminal trial itself.

Counsel for the petitioner argued that certain things can never be recreated after much time has passed and that it is almost impossible to establish to this court what these witnesses would have testified to in any preceding matter.   Counsel further argued that such a legal rule is almost impossible to satisfy and that this court could make its decision without the witnesses being present and testifying.   Counsel went so far as to argue that the evidence presented to this court was per se deficient performance by Attorney Moreshead and therefore prejudicial.

The petitioner's arguments essentially invert the Herculean task he faces in this, his third, petition for a writ of habeas corpus.   Instead of twice or thrice proving the Strickland standard with evidence that affirmatively proves his claims, the petitioner has merely reformulated claims previously raised and asks this court to ignore binding precedent and essentially decide this matter on what can only be called equitable grounds.   This the court cannot do.   See, e.g., Brooks v. Commissioner of Correction, 105 Conn.App. 149, 160, 937 A.2d 699, cert. denied, 286 Conn. 904, 943 A.2d 1101 (2008) (habeas court can fashion equitable relief after a petitioner has proven a constitutional violation).   Whether or not the petitioner has presented any evidence that affirmatively proves Attorney Moreshead rendered deficient performance, the petitioner has completely failed to submit any evidence to establish prejudice.  Thomas v. West Haven, supra, 249 Conn. 392;  Lapointe v. Commissioner of Correction, supra, 113 Conn.App. 388.

Accordingly, the court concludes that the petitioner has failed to make out a prima facie case of ineffective assistance by Attorney Moreshead in the first habeas corpus.

CONCLUSION

Based upon the foregoing, the court grants the respondent's oral motion to dismiss the habeas corpus petition for failure to make out a prima facie case.  Practice Book § 15–8.   Accordingly, judgment shall enter dismissing the petition for a writ of habeas corpus.   Counsel for the petitioner shall file a judgment file with the clerk within thirty days of the date of this decision.

It is so ordered.

Kwak, J.

FOOTNOTES

FN1. The Appellate Court decision indicates that this was the petitioner's second criminal trial.   The first trial, conducted in 1999, the jury found the petitioner guilty of carrying a pistol without a permit but were unable to reach a verdict on the murder and assault charges.   After a mistrial was declared, the petitioner was convicted after a second jury trial of the murder and assault charges.  Moody v. Commissioner of Correction, 108 Conn.App. 96, 98, 946 A.2d 1268, cert. denied, 288 Conn. 906, 953 A.2d 649 (2008).   Attorney Chapman represented the petitioner in the second criminal trial..  FN1. The Appellate Court decision indicates that this was the petitioner's second criminal trial.   The first trial, conducted in 1999, the jury found the petitioner guilty of carrying a pistol without a permit but were unable to reach a verdict on the murder and assault charges.   After a mistrial was declared, the petitioner was convicted after a second jury trial of the murder and assault charges.  Moody v. Commissioner of Correction, 108 Conn.App. 96, 98, 946 A.2d 1268, cert. denied, 288 Conn. 906, 953 A.2d 649 (2008).   Attorney Chapman represented the petitioner in the second criminal trial.

FN2. “The petitioner also appear[ed] to claim that his habeas counsel was deficient for failing to raise this issue in his first habeas proceeding.   This claim was not raised in the amended petition, however, and cannot be considered in this appeal “Moody v. Commissioner of Correction, 127 Conn.App. 293, 295 n.2, 14 A 3d 408, cert. denied, 300 Conn. 943, 17 A.3d 478 (2011)..  FN2. “The petitioner also appear[ed] to claim that his habeas counsel was deficient for failing to raise this issue in his first habeas proceeding.   This claim was not raised in the amended petition, however, and cannot be considered in this appeal “Moody v. Commissioner of Correction, 127 Conn.App. 293, 295 n.2, 14 A 3d 408, cert. denied, 300 Conn. 943, 17 A.3d 478 (2011).

FN3. Although the respondent cited to Practice Book § 42–41, a criminal practice book section authorizing defendants to make motions for judgment of acquittal after the state has rested, the respondent clearly sought dismissal premised on the petitioner's failure to make out a prima facie case.   The court will treat the respondent's oral motion as made per Practice Book § 15–8, as it is clear what counsel for the respondent is seeking, albeit relying on the incorrect practice book section.   See, e.g., Grant v. Commissioner of Correction, 121 Conn.App. 295, 299 n.2, 995 A 2d 641, cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010)..  FN3. Although the respondent cited to Practice Book § 42–41, a criminal practice book section authorizing defendants to make motions for judgment of acquittal after the state has rested, the respondent clearly sought dismissal premised on the petitioner's failure to make out a prima facie case.   The court will treat the respondent's oral motion as made per Practice Book § 15–8, as it is clear what counsel for the respondent is seeking, albeit relying on the incorrect practice book section.   See, e.g., Grant v. Commissioner of Correction, 121 Conn.App. 295, 299 n.2, 995 A 2d 641, cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010).

FN4. Practice Book § 15–8..  FN4. Practice Book § 15–8.

FN5. Attorney Tsimbidaros raised a claim on appeal from the first habeas that Attorney Chapman was ineffective because he had failed “to request a jury instruction on the defense of a third person and to take exception to an inadequate instruction on self-defense.   The latter part of this claim, although briefed for this appeal in cursory fashion, was not raised in the habeas court, and [the Appellate Court did] not consider it.   In each of his criminal trials, and in his statement to the police, the petitioner claimed that he acted in self-defense.   At the [first] habeas trial, he testified that he shot his weapon in self-defense and also to protect Smith.   The [first habeas court] found that Chapman had reviewed the transcript of the testimony of the first trial and the materials obtained through discovery, and had discussed the case with the petitioner.   On the basis of his research and review, Chapman had concluded that there was no factual predicate for a claim of defense of others.   In addition, the court determined that the petitioner had never claimed at his criminal trial that he was protecting Smith and further found that the petitioner had engaged in conduct that put Smith in danger.   The [first habeas] court properly determined that there was no evidentiary basis on which to claim a defense of others instruction, and, therefore, Chapman's performance was not deficient for not requesting it.”  Moody v. Commissioner of Correction, supra, 108 Conn.App. 102–03..  FN5. Attorney Tsimbidaros raised a claim on appeal from the first habeas that Attorney Chapman was ineffective because he had failed “to request a jury instruction on the defense of a third person and to take exception to an inadequate instruction on self-defense.   The latter part of this claim, although briefed for this appeal in cursory fashion, was not raised in the habeas court, and [the Appellate Court did] not consider it.   In each of his criminal trials, and in his statement to the police, the petitioner claimed that he acted in self-defense.   At the [first] habeas trial, he testified that he shot his weapon in self-defense and also to protect Smith.   The [first habeas court] found that Chapman had reviewed the transcript of the testimony of the first trial and the materials obtained through discovery, and had discussed the case with the petitioner.   On the basis of his research and review, Chapman had concluded that there was no factual predicate for a claim of defense of others.   In addition, the court determined that the petitioner had never claimed at his criminal trial that he was protecting Smith and further found that the petitioner had engaged in conduct that put Smith in danger.   The [first habeas] court properly determined that there was no evidentiary basis on which to claim a defense of others instruction, and, therefore, Chapman's performance was not deficient for not requesting it.”  Moody v. Commissioner of Correction, supra, 108 Conn.App. 102–03.

FN6. Attorney Moreshead raised a claim of ineffective assistance of trial counsel premised on the failure by Attorney Chapman to call Robert Randall as a witness in the second trial.  Moody v. Commissioner of Correction, supra, 108 Conn.App. 101.  “The [first] habeas court found that Chapman had reviewed the transcript of the testimony given by Randall and had concluded that, if offered at the second trial, it might have been harmful to the defense.   Randall had been in the area and heard several gunshots fired, but he did not know who had fired the gunshots because he had ducked down in his car to avoid danger.   Randall additionally testified that, after the shooting seemed to have ended, he looked up and observed, among other things, one of the three individuals on the sidewalk begin to run.   He noted that the petitioner's car began to proceed along the road and testified that the car appeared to be following the pedestrian, and that he thought he had just witnessed a drive-by shooting.  [The Appellate Court agreed] with the [first] habeas court that the decision not to call Randall was a matter of sound trial strategy within the wide range of reasonable professional assistance.”  Id..  FN6. Attorney Moreshead raised a claim of ineffective assistance of trial counsel premised on the failure by Attorney Chapman to call Robert Randall as a witness in the second trial.  Moody v. Commissioner of Correction, supra, 108 Conn.App. 101.  “The [first] habeas court found that Chapman had reviewed the transcript of the testimony given by Randall and had concluded that, if offered at the second trial, it might have been harmful to the defense.   Randall had been in the area and heard several gunshots fired, but he did not know who had fired the gunshots because he had ducked down in his car to avoid danger.   Randall additionally testified that, after the shooting seemed to have ended, he looked up and observed, among other things, one of the three individuals on the sidewalk begin to run.   He noted that the petitioner's car began to proceed along the road and testified that the car appeared to be following the pedestrian, and that he thought he had just witnessed a drive-by shooting.  [The Appellate Court agreed] with the [first] habeas court that the decision not to call Randall was a matter of sound trial strategy within the wide range of reasonable professional assistance.”  Id.

Kwak, Hunchu, J.