189355 v. Warden (2013)

MEMORANDUM OF DECISION

The petitioner, James Hilton, brings this petition for a writ of habeas corpus claiming that his trial counsel was ineffective, the state failed to produce exculpatory evidence and that he is actually innocent.   He seeks orders of this court vacating his conviction, releasing him and reinstating his right to sentence review.   The court finds for the petitioner as to his sentence review claim, however, denies the remainder of the petitioner's claims.

The petitioner was convicted, after a jury trial, of murder in violation of General Statutes § 53a–54a(a), carrying a pistol or revolver without a permit in violation of General Statutes § 29–35(a) and criminal possession of a pistol or revolver in violation of General Statues § 53a–217e.   He was sentenced to sixty-five years' incarceration.

The petitioner appealed his conviction to the Appellate Court, which affirmed it.  State v. Hilton, 79 Conn.App. 155, 829 A.2d 890 (2003).

The Appellate Court found that the jury could reasonably have found the following facts:

The victim, William Rodriguez, was shot on July 14, 2000, at approximately 9 p.m. in the area of Truman Street and King Place in New Haven.   Sergeant Anthony Duff arrived at the scene of the shooting and discovered the victim's body on the sidewalk, surrounded by a crowd of people.   An autopsy performed on the victim's body revealed that he died from a single gunshot at close range to the left side of his head.   Bullet fragments removed during the victim's autopsy were tested and found to be consistent with having been fired from either a .38 special or a .357 magnum firearm.   No gun was ever recovered.

The shooting was precipitated by a drug turf war.   Anna Rodriguez, the victim's longtime friend, testified that two days before the murder, she and her boyfriend had gone to visit the victim, who had just moved to an apartment on Truman Street.   Rodriguez testified that upon arriving outside the victim's apartment, her boyfriend sounded his car horn, and the victim and his girlfriend, Cora Moore, came outside to visit them.   At that point, the defendant suddenly approached on the passenger's side of the car and peered inside.   When the defendant recognized Rodriguez' boyfriend, he walked away.

The jury also heard testimony from Sherice Mills, who stated that on the afternoon of the shooting, “Shawn,” an associate of the victim, verbally confronted the defendant and one of his associates regarding Shawn's drug dealing activities on Truman Street, which was part of the defendant's drug territory.   During that conversation, Shawn threatened the defendant and his associate.   The confrontation soon ended, and Shawn and the victim drove off in the victim's car.

Two women testified as eyewitnesses to the actual shooting.   Mills testified that the victim left his porch to make a drug sale to someone in a car.   She testified that moments later, while the victim was at the car, she heard the defendant state that he was “about to kill [the victim],” and observed the defendant walk across the street and shoot the victim in the head.   According to Mills, the defendant fell to the ground with the victim, and the defendant “kept holding [the victim's] head, saying he didn't mean to do it and [telling] somebody to call the police.”   Mills later identified the defendant as the shooter from an array of photographs.

A second eyewitness, Simone Williams, who was on the porch at the time of the shooting, testified about essentially the same events as did Mills.   Williams' testimony added that the defendant had approached the victim from behind and stated:  “You ain't from around here, son,” and, “You need to move from around here, son,” and that she then saw the defendant take a gun from behind his back and shoot the victim.   When the shooting stopped, Williams testified, the victim fell to the ground, and the defendant yelled for someone to call an ambulance.   A short time later, the defendant fled the scene.   Williams went to the police station sometime later and related to the police what she had observed concerning the shooting.   At that time, she positively identified the defendant in a photographic array and did so again at trial.

The state also presented testimony from Moore, the victim's girlfriend, that while she was in Toisann Henderson's second floor apartment on Truman Street playing with Henderson's baby and listening to music, she heard a gunshot.   Minutes after the shooting, Henderson ran from the porch into the apartment and told Moore that the defendant had shot her boyfriend.   Moore ran outside where she found the victim lying motionless on the ground.   She fell to the ground and started crying and hugging him.   Shortly thereafter, Duff arrived.   On the basis of the information that the witnesses provided, Duff dispatched the defendant's description over the police radio.

At trial, the defendant testified that after meeting with his family, he voluntarily went to the police station, accompanied by his brother-in-law, Sergeant Nate Blackman, and provided a statement about the shooting.   While he was in police custody, the defendant stated that he had been sitting on his porch when he heard a commotion and went to see what was happening.   The defendant further told the police that a third man had drawn a gun, that the defendant had grappled for the gun, and “it went bashing across [the victim's] head.”   Later in the interview, the defendant was asked if he could give more detail about the shooting.   It was at that point that the defendant ended the interview.   At trial, he described how several seconds after he fought with the third man, a fourth man shot the victim and ran away.   Immediately after the gunshot, the defendant testified, he applied pressure to the victim's wound to stop the bleeding.   He further testified that he left the victim to make sure someone had called an ambulance.   When he returned and saw that the victim was receiving aid, he went to and sat on the porch.   The defendant testified that he sat on the porch until people in the crowd began to tell the police that he did the shooting.   He then stated that he became scared, and went directly to see his children and then to Blackman's house.

During their investigation, the police learned that after the shooting, the defendant went to see his fiancee, Maybertha Ashley.   She and her sister, Andrea Ashley, testified that the defendant had given his bloody clothes to his fiancee, who in turn gave them to Andrea Ashley to wash.   When the police arrested the defendant at the police station, they took the clothing he had worn on the evening of the shooting.   The blood samples and clothes collected from both the victim and the defendant were sent to the state forensic laboratory.   A state's expert testified that a drop of blood found on the defendant's boxer shorts matched the victim's blood type and DNA. Despite the fact that the victim had been shot at fairly close range, there was no detectable blood on the defendant's other clothes.   The defendant denied ever having his clothes washed after the shooting, and explained that his clothes were not covered in blood because he wore his shirt over his head and his pants around his knees.

State v. Hilton, supra, 79 Conn.App. 157–60.

The petitioner brought this habeas petition in January 2008, which was consolidated with other pending petitions.   The petitioner claims that his trial counsel was ineffective in (1) failing to cross examine certain witnesses;  (2) failing to present the testimony of Priscilla Simmons and Dr. Peter Deforest;  (3) failing to properly prepare the petitioner to testify at trial;  (4) failing to present mitigation evidence at sentencing;  and (5) failing to timely file his application for sentence review.   The petitioner also claims that he is actually innocent, and that the state violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 215 (1963) by failing to provide him certain exculpatory materials.¹

The trial in this matter took place over several days in December and January 2011.   The petitioner produced a number of witnesses including Attorney Al Ghiroli, his trial counsel, Attorney Frank Cannatelli, his appellate counsel, Deputy Chief Public Defender Brian Carlow, Dr. Wayne Carver, former Chief Medical Examiner, Lejeune Moore, Priscilla Simmons, Brenda Hilton, Attorney Gary Mastronardi, petitioner's attorney expert, and Dr. Peter DeForest, a forensics expert.   The petitioner also introduced a number of exhibits.   The respondent presented its case through the cross examination of the witnesses.   Both parties filed post-trial briefs.²

Findings of fact will be discussed with the individual claims below.

Count One—Ineffective Assistance of Counsel Claims

A. Standard

“A criminal defendant's right to the effective assistance of counsel ․ is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution ․ To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).”  (Citations omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

The petitioner has the burden to establish 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), citing Strickland v. Washington, supra, 466 U.S. 694.

“To satisfy the performance prong, a claimant must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed ․ by the [s]ixth [a]mendment.’  “ Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687.   It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action.   Rather, the 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 the “counsel” guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial.  Harris v. Commissioner of Correction, 107 Conn.App. 833, 845–46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).

Under the second prong of the test, the prejudice prong, the petitioner must show that “counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.”  (Internal quotation marks omitted.)  Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).

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.   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.

(Citation omitted;  internal quotation marks omitted.)  Id., 689.

Ultimately, “[t]he 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.

B. Failure to properly cross examine witnesses

The petitioner first claims that his trial counsel failed to conduct a proper investigation to obtain information to use to cross examine witnesses and failed to properly cross examine the witnesses.   In particular, he claims that counsel did not use a report to cross examine the medical examiner, Dr. Arkady Katsnelson, regarding the nature of the bullet wound.   In addition, he claims that trial counsel failed to properly cross examine one of the state's eyewitnesses, Sherice Mills.

With respect to his claim of a deficient investigation, Attorney Ghiroli hired an investigator and conducted an objectively reasonable investigation by seeking out witnesses and viewing the scene.   He also reviewed all discovery materials.   The petitioner has not produced any evidence as to what specifically counsel failed to uncover through additional investigation.  “The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it ․ The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.”  (Citations omitted;  internal quotation marks omitted.)   Norton v. Commissioner of Correction, 132 Conn.App. 850, 858–59, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).   The petitioner has failed to meet his burden as to this claim.

“[C]ross-examination is a sharp two-edged sword and more criminal cases are won by not cross-examining adverse witnesses, or by a very selective and limited cross-examination of such witnesses, than are ever won by demolishing a witness on cross-examination.”  (Internal quotation marks omitted.)  State v. Clark, 170 Conn. 273, 287–88, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976).   In other words, “[a]n attorney's line of questioning of a witness is a tactical decision.  [As such, this] court will not, in hindsight, second-guess counsel's trial strategy ․ 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.”  (Citation omitted;  internal quotation marks omitted.)  Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).   The petitioner has failed to overcome the strong presumption that trial counsel's examination tactics as to Mills and Dr. Katsnelson constituted a reasonable trial strategy.

Moreover, the petitioner has failed to establish prejudice.   As to Mills, even if trial counsel's examination was deficient, there were other eyewitnesses to the shooting that implicated the petitioner as the shooter, whose testimony the petitioner has not challenged.   See Johnson v. Commissioner of Correction, supra, 285 Conn. 575 (finding of prejudice requires “a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance”).   As to Dr. Katsnelson, the petitioner has failed to show that there is a reasonable probability that any additional cross examination would have resulted in a different outcome.

C. Failure to present witnesses

The petitioner claims that trial counsel was ineffective for failing to introduce the testimony of two witnesses, Priscilla Simmons and Dr. Peter DeForest.   The petitioner has failed to establish these claims.

i. Pricilla Simmons

Contrary to the evidence at trial, Simmons testified at the habeas trial that the shooting occurred in the morning.   She testified that she was sitting in her windowsill with her grandson feeding the birds, when she saw the petitioner talking to the victim.   She heard a gunshot and saw Rashion Reed run down the street.   She claims that it was Reed and not the petitioner that shot the victim.   Simmons ran down the street to a friend's house because she did not want to become involved and did not return to her home until sometime later.   At the time of the shooting or trial, she did not report these events to the police or anyone even when she knew the petitioner was on trial.

The petitioner produced no evidence that trial counsel had any knowledge of Simmons' version of events.   Although trial counsel hired an investigator who conducted an investigation, he did not locate Mills, which is understandable since it is clear that she did not want to be found or to be involved in anyway.

“ ‘The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.   Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial.   The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.’  State v. Talton, 197 Conn. 280, 297–98, 497 A.2d 35 (1985).”  Vines v. Commissioner of Correction, 94 Conn.App. 288, 296, 892 A.2d 312, cert. denied, 278 Conn. 922, 901 A.2d 1222 (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 ․’ 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).”  Id., 297.   The court cannot use hindsight in evaluating a trial attorney's decision not to call a witness at trial.   Dunkley v. Commissioner of Correction, 73 Conn.App. 819, 823, 810 A.2d 281 (2002), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003).   An attorney cannot be ineffective for failing to call a witness about which he was unaware.  Tatum v. Commissioner of Correction, 66 Conn.App. 61, 66, 783 A.2d 1151, cert. denied, 258 Conn. 937, 785 A.2d 232 (2001) (“Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial”).

The petitioner has produced no evidence that trial counsel knew, or could have known, about Simmons.   Additionally, it is not evident that such testimony would have been deemed credible as she testified that the events occurred in the morning, and the other witnesses and evidence established that the shooting occurred in the evening at around 9 p.m.

Accordingly, the petitioner has not established that Attorney Ghioli's conduct was deficient in failing to present this witness at the criminal trial.

ii. Dr. Peter DeForest

The petitioner claims that trial counsel was deficient in failing to present the testimony of Dr. Peter DeForest, a forensics expert, to challenge the conclusions of Dr. Katsnelson regarding the nature of the gunshot wound.

The Appellate Court has recently reiterated “that there is no per se rule that requires a trial attorney to seek out an expert witness.  Thompson v. Commissioner of Correction, 131 Conn.App. 671, 696, 27 A.3d 86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011).   In Peruccio v. Commissioner of Correction, 107 Conn.App. 66, 943 A.2d 1143, cert. denied, 287 Conn. 920, 951 A.2d 569 (2008), however, this court noted that in some cases, ‘the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel.’  Id., 76.”  Stephen S. v. Commissioner of Correction, 134 Conn.App. 801, 811, 40 A.3d 796, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012).   However, the decision to call any witness, including an expert witness, “does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.”  (Internal quotation marks omitted.)  Eastwood v. Commissioner of Correction, 114 Conn.App. 471, 481, 969 A.2d 860, cert. denied, 292 Conn. 918, 973 A.2d 1275 (2009);  see also State v. Padua, 273 Conn. 138, 149, 869 A.2d 192 (2005) (expert testimony required only when question goes beyond field of ordinary knowledge and experience of trier of fact);  Harris v. Commissioner of Correction, 134 Conn.App. 44, 58, 37 A.3d 802, cert. denied, 304 Conn. 919, 41 A.3d 306 (2012) (failure to call expert in child competence not error).

The court finds that the petitioner has failed to prove that the testimony of Dr. DeForest would have been helpful in establishing that the petitioner was not the shooter.   At the criminal trial, Dr. Katsnelson opined that the wound to the victim's face was a contact gunshot wound.   Dr. DeForest did not contradict Dr. Katsnelson's testimony but could only say that the evidence was ambiguous, and therefore he could not offer an opinion as to the type of wound, and therefore could not say that it was not a contact wound.

Accordingly the petitioner has failed to establish this claim.

D. Failure to prepare the petitioner to testify

The petitioner claims that trial counsel failed to prepare the petitioner to testify on his own behalf and in particular for cross examination by the state's attorney.   In his brief, the petitioner characterizes this claim as a failure of trial counsel to file a motion in limine to preclude evidence of the petitioner's prior convictions, and in particular for drug sales.   The court finds that the petitioner has failed to prove prejudice as to this claim.

“It is the right of every criminal defendant to testify on his own behalf;  Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987);  and to make that decision after full consultation with trial counsel.   See State v. Davis, 199 Conn. [88], 93, 506 A.2d 86 (1986).   Equally axiomatic is the proposition that an accused must take some affirmative action regarding his right to testify.  United States v. Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985);  State v. Paradise, 213 Conn. 388, 405, 567 A.2d 1221 (1990).”   Ostolaza v. Warden, 26 Conn.App. 758, 763, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).  “While the due process clause of the [f]ifth [a]mendment may be understood to grant the accused the right to testify, the if and when of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney.”  (Internal quotation marks omitted.)  Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 814–15, 837 A.2d 849, cert. denied, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).

The petitioner insisted on exercising his right to testify contrary to the advice of his trial counsel who urged him not to do so.   At the criminal trial, Attorney Ghiroli advised the petitioner not to testify.   Although he could not recall specifically, he believed that he told the petitioner that if he testified certain details of his criminal record would become known to the jury.   He advised the petitioner to answer only the questions asked and warned him that the prosecutor in this case was skilled and aggressive.

During his direct examination, Attorney Ghiroli asked the petitioner about arrests for possession of marijuana and incarceration for a 1996 conviction.   On cross examination, the prosecutor pointed out that the petitioner had actually been convicted of possession with intent to sell, not simple possession.   The prosecutor then examined the petitioner regarding other convictions, including sales of controlled substances, as well as other felony convictions.   The petitioner claims that trial counsel's conduct was deficient for failing to take steps to preclude this evidence during cross examination of the petitioner.

The court finds that the petitioner has failed to prove that he was prejudiced as to this claim.   See Johnson v. Commissioner of Correction, supra, 285 Conn. 575.   The state had strong evidence of the petitioner's guilt, including eyewitnesses who saw the petitioner shoot the victim and heard him make inculpatory statements, evidence of petitioner's consciousness of guilt and forensic evidence.   The Appellate Court recognized the strength of the state's case when it concluded:  “[T]he evidence against the defendant was overwhelming.   His conviction was predicated on not only the testimony of the two eyewitnesses, Mills and Williams, the defendant's fiancee and her sister, the investigative police officers, the medical examiner and forensic evidence of the victim's blood on the defendant's shorts, but also by the defendant's testimony.”  State v. Hilton, 79 Conn.App. 168.

Thus, even if trial counsel's conduct was deficient regarding the petitioner's prior criminal record, given the substantial evidence of the petitioner's guilt, the petitioner has failed to prove that but for counsel's conduct, there is a reasonable probability that the outcome of the trial would have been different.   This claim is therefore denied.

E. Failure to present mitigation evidence at sentencing

The petitioner claims that trial counsel was ineffective in failing to present at his sentencing the statements of his two sisters, who he claims would have provided helpful evidence as to his good character.   The court rejects this claim.

Prior to and at the sentencing, the court and the parties had access to the presentence investigative report (PSI) prepared by the department of probation.   The PSI included information concerning the petitioner's personal history, which included information from the petitioner's family members.   In particular, the PSI included a statement from one of the petitioner's sisters that “[the petitioner] was always an honest person with a good heart.   This is totally out of character.   We called him the peacemaker because he is not a violent person.”   At the sentencing, the petitioner's attorney discussed the petitioner's family, children, and prior substance abuse.   The defendant had the opportunity to address the court.

The PSI also reported the petitioner's extensive criminal history, spanning a decade, which included multiple drug arrests and crimes of violence including assaults and reckless endangerment charges.   Over that time period, the petitioner spent a significant amount of time incarcerated.

“It is axiomatic that the right to counsel is the right to the effective assistance of counsel ․ A defendant has the right to counsel at every critical stage, including sentencing.”  (Citations omitted;  internal quotation marks omitted.)  Copas v. Warden, 30 Conn.App. 677, 681–82, 621 A.2d 1378, cert. denied, 226 Conn. 901, 625 A.2d 1374 (1993).  “To meet the standard of effective representation, trial counsel is not required to make every conceivable argument as to mitigation.   Counsel is entitled to focus on those arguments he judges to be most effective.”   Aponte v. Warden, Superior Court, judicial district of New Haven, Docket No. CV 98 0415913 (October 30, 2001, Downey, J.T.R.), cert. denied, 263 Conn. 903, 819 A.2d 836 (2003).

The court finds that Attorney Ghiroli's representation of the petitioner at sentencing was objectively reasonable.   Additional statements from the petitioner's sisters regarding his character would have been cumulative to the information contained in the PSI and thus, not likely to have changed the outcome of his sentencing.   See Corona v. Commissioner of Correction, 123 Conn.App. 347, 353–54, 1 A.3d 1226 (“any additional testimony at the sentencing hearing would have been cumulative and unlikely to change the sentence imposed by the court”), cert. denied, 299 Conn. 901, 10 A.3d 519 (2010).

Moreover, the petitioner has failed to prove prejudice in that he has failed to prove that he would have received a lesser sentence but for counsel's deficiencies.  Corona v. Commissioner of Correction, supra, 123 Conn.App. 354 (“the petitioner has not met the prejudice prong because he has not demonstrated that his sentence would have been different had those witnesses testified”).   Given the circumstances of the underlying crime, the petitioner's refusal to admit guilt and his extensive and serious criminal record, it is not reasonably probable that the trial court would have imposed a lesser sentence.   Accordingly, this claim is denied.

F. Failure to perfect the petitioner right to sentence review

The petitioner claims that his trial attorney was ineffective in failing to perfect his right to sentence review.   The court agrees with the petitioner.

At the habeas counsel, trial counsel testified that he left all posttrial filings, including sentence review, to the petitioner's appellate counsel because he believed that appellate counsel would be better able to handle those matters.   Attorney Ghiroli believes he spoke to the petitioner after the verdict, gave him the sentence review forms and explained that it would be best for appellate counsel to handle sentence review matters.   Attorney Cannatelli believed that Attorney Ghiroli would represent the petitioner at sentence review and file the application on the petitioner's behalf.   However, neither Attorney Ghiroli or Canatelli filed the application within the thirty-day statutory time period, and as a result, the petitioner did not have his sentence reviewed.

“Under article first, § 8, of the Connecticut constitution and the sixth and fourteenth amendments to the United States constitution, the petitioner had a right to the effective assistance of counsel with respect to access to sentence review.  ‘The sentencing process is a critical stage of a criminal trial.’  Consiglio v. Warden, 153 Conn. 673, 676, 220 A.2d 269 (1966).   Accordingly, an indigent criminal defendant has a constitutional right to appointed counsel at sentence review.  Id., 676.   The right to counsel at sentence review would be meaningless unless it also implied the right to effective assistance of such counsel.   See Lozada v. Warden, supra, 223 Conn. 838–39.   It would equally be meaningless if it were not afforded at the time when invocation of sentence review is at issue.   The constitutional right to the effective assistance of counsel at sentence review is not diminished by the fact that the right to sentence review, like the right to a direct appeal, derives from statute rather than a constitution.   See Gaines v. Manson, 194 Conn. 510, 515–16, 481 A.2d 1084 (1984).”  James L. v. Commissioner of Correction, 245 Conn. 132, 144, 712 A.2d 947 (1998).   It is the obligation of counsel of record at the sentencing, in this case, Attorney Ghiroli, to represent the defendant at the hearing before the sentence review division.   Practice Book § 43–23.  (“It is the responsibility of the counsel of record at the time of sentencing of the superior court, unless, for exceptional reasons, such counsel is excused by the division.”)

Thus, because Attorney Ghiroli represented the petitioner at sentencing, he was responsible for representing him at sentence review, which representation necessarily includes advising him of his right and the risks and benefits of the sentence review procedure and filing the application.   Here, Attorney Ghiroli left the critical task of filing the petitioner's application to sentence review to his appellate counsel, who also failed to pursue the application.   The court therefore concludes that the petitioner has met his burden to prove that trial counsel's conduct was deficient.

Additionally, prejudice is established by the absence of access to sentence review, resulting from trial counsel's deficient performance.  James L. v. Commissioner of Correction, supra, 245 Conn. 145;  Andrades v. Commissioner of Correction, 108 Conn.App. 509, 516, 948 A.2d 365, cert. denied, 289 Conn. 906, 957 A.2d 868 (2008).

As to what remedy to provide, the Supreme and Appellate Courts have concluded that;  “Only a restoration of the petitioner's right to apply for sentence review could provide an appropriate remedy for the petitioner in the circumstances of this case.”  James L. v. Commissioner of Correction, supra, 245 Conn. 148, see also Andrades v. Commissioner of Correction, supra, 108 Conn.App. 516.

Accordingly, the court finds for the petitioner as to this claim and restores his right to sentence review.

Count Three—Actual Innocence 3

The petitioner claims that he has proved by clear and convincing evidence that he is actually innocent based on the testimony of Simmons that another person shot the victim, and based on testimony of his forensics expert that the wound was not a close contact wound.   The petitioner has failed to establish his burden on this claim, and the court therefore rejects it.⁴

“[T]he proper standard for evaluating a freestanding claim of actual innocence ․ is twofold.   First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence—both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial—he is actually innocent of the crime of which he stands convicted.   Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn there from as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.”  Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997);  Harris v. Commissioner of Correction, supra, 134 Conn.App. 49–50.   The clear and convincing burden under Miller requires more than casting doubt on evidence presented at trial, and the burden requires the petitioner to demonstrate actual innocence through affirmative evidence that the petitioner did not commit the crime.  Gould v. Commissioner of Correction, 301 Conn. 544, 561–62, 22 A.3d 1196 (2011).

The petitioner has not presented clear and convincing proof that he is actually innocent of the charges in this case.   Putting aside the issue of whether an expert witness' testimony could be considered “newly discovered,” such testimony does not prove that the petitioner was innocent, but could only be used to undermine the credibility of the testimony of the eyewitnesses or the medical examiner.   This is a jury issue.   Moreover, in this case, petitioner's expert's testimony was equivocal on the issue of whether the evidence was a contact wound or not.

Similarly, Simmons' testimony does not establish the petitioner's innocence.   She claims to have witnessed the shooting in the morning while feeding the birds with her grandson, and that someone other than the petitioner was the shooter.   Other eyewitnesses testified that the shooting occurred at night.   Moreover, Simmons never reported her version of the events at the time they occurred or during the trial even though she knew that the petitioner was on trial for the murder.   These issues go to her credibility.

In Miller, the court explained that as to the second component of the petitioner's burden, “[a] habeas court is no better equipped than we are to make the probabilistic determination of whether, considering the evidence as the habeas court did, no reasonable fact finder would find the petitioner guilty.   That type of determination does not depend on assessments of credibility of witnesses or of the inferences that are the most appropriate to be drawn from a body of evidence—assessments that are quintessentially [the] task for the [fact finder] in a habeas proceeding.”  (Internal quotation marks omitted.)  Miller v. Commissioner of Correction, supra, 242 Conn. 747

Accordingly, the petitioner has failed to prove his claim of actual innocence.

Count Four—Brady Claim

The petitioner claims that the state failed to turn over favorable reports including x-rays, photographs or lab results regarding the gun shot wound and that this conduct by the state violated the Brady doctrine.⁵  The court rejects this claim.

“To establish a Brady violation, the [petitioner] must show that “(1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [petitioner], and (3) it was material [either to guilt or to punishment].”  (Internal quotation marks omitted.)  Walker v. Commissioner of Correction, 103 Conn.App. 485, 492, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007).

It is the petitioner's burden to demonstrate what evidence the state has failed to produce that would be favorable to his case.   The petitioner has failed to produce any evidence that was not produced to the petitioner during his criminal trial.   This claim therefore fails for lack of proof.

CONCLUSION

For all of the foregoing reasons, the petitioner's claim that his trial counsel was ineffective for failing to file a timely application for sentence review is granted and the petitioner's right to sentence review is reinstated.

The petitioner's remaining claims are denied.

So ordered.

Cobb, J.

FOOTNOTES

FN1. In the petitioner's third amended petition, he also makes a number of other claims.   As to these other claims, the petitioner has either failed to present sufficient evidence to establish them and/or failed to brief them.   As such, they are deemed abandoned.   See Solek v. Commissioner of Correction, 107 Conn.App. 473, 480, 946 A.3d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008) (“[t]he responsibility of a habeas court, in confronting an often voluminous trial court record, is to respond to those claims fairly advanced by the petitioner.   The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration”)..  FN1. In the petitioner's third amended petition, he also makes a number of other claims.   As to these other claims, the petitioner has either failed to present sufficient evidence to establish them and/or failed to brief them.   As such, they are deemed abandoned.   See Solek v. Commissioner of Correction, 107 Conn.App. 473, 480, 946 A.3d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008) (“[t]he responsibility of a habeas court, in confronting an often voluminous trial court record, is to respond to those claims fairly advanced by the petitioner.   The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration”).

FN2. The delay in the briefing and this decision was due to delays in obtaining habeas trial transcripts ordered by the petitioner..  FN2. The delay in the briefing and this decision was due to delays in obtaining habeas trial transcripts ordered by the petitioner.

FN3. Count two of the third amended petition, which included claims regarding petitioner's appellate counsel, were withdrawn by the petitioner..  FN3. Count two of the third amended petition, which included claims regarding petitioner's appellate counsel, were withdrawn by the petitioner.

FN4. At the outset of the habeas trial, the respondent moved to dismiss the petitioner's actual innocence claim.   The court denied that motion without prejudice to be considered at the conclusion of the trial..  FN4. At the outset of the habeas trial, the respondent moved to dismiss the petitioner's actual innocence claim.   The court denied that motion without prejudice to be considered at the conclusion of the trial.

FN5. Brady v. Maryland, supra, 373 U.S. 83..  FN5. Brady v. Maryland, supra, 373 U.S. 83.

Cobb, Susan Quinn, J.