Opinion
CV144006303
09-10-2018
Jason BEHMLANDER (Inmate #338345) v. WARDEN
UNPUBLISHED OPINION
OPINION
Kwak, J.
The petitioner, Jason Behmlander, initiated this petition for a writ of habeas corpus, claiming that his underlying trial counsel and habeas counsel provided him ineffective legal representation. The petitioner seeks an order from the court vacating his convictions and releasing him from confinement. The court heard evidence on November 20, 2017, and February 6, 2018. Having considered the credible evidence and the arguments of the parties, the court denies the petition.
I
PROCEDURAL HISTORY
On October 10, 2006, following a jury trial, the petitioner was found guilty of sexual assault in the first degree in violation of General Statutes § 53a-70(a), and unlawful restraint in the first degree in violation of General Statutes § 53a-95. On December 18, 2016, the trial court, Rodriguez, J., sentenced the petitioner to a total effective sentence of twenty-five years of imprisonment, execution suspended after fifteen years, followed by thirty-five years of probation. The petitioner was represented at his criminal trial by Attorney Frank Cannatelli.
The petitioner’s convictions were affirmed on direct appeal. State v. Jason B., 111 Conn.App. 359, 958 A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d 794 (2009). The petitioner was represented at his direct appeal by Attorney Michael Zariphes. The Appellate Court found that the jury could reasonably have found the following facts:
The victim, Y, and the defendant were married in September 1999, and had a daughter, A, in August 2002. Y and the defendant met while they were both members of the Marine Corps. Y filed for divorce in October 2005, and their divorce became final in February 2006.
On February 21, 2006, the defendant repeatedly contacted Y and requested to meet with her. They arranged to meet at a Dunkin’ Donuts that evening but eventually met at a Borders bookstore at about 8:30 p.m. They later walked to a nearby Boston Market for dinner, where the defendant asked Y to have sex with him. She refused, and he asked her to join him in his car for a cigarette. She got into the car, where the defendant renewed his requests for sex, which Y continued to turn down. She tried to get out of the car at least once, but the defendant pulled her back in by the arm. The defendant then informed Y that he had withdrawn all of the money from their joint bank account, approximately $6000, which was all of Y’s savings. He also told her that he was going to make her life very difficult, that he was going to take A, that she would never see A again and that he was going to hurt everyone that she knew. He told Y that if she slept with him, he would give back the money and leave her alone. Y again tried to get out of the car, but the defendant pulled her back in.
The defendant then drove off with Y in the car, and Y began screaming out the window; at some point, he had locked all of the doors. He eventually stopped the car in a dark, wooded area with no houses nearby. He climbed from the driver’s side to the passenger’s side of the car, where Y was sitting, and began touching her between her legs. Y testified that she tried to fight him off but that she was unable to because he had her left arm pinned behind her head and he was stronger than she was. At one point, he also took her cellular telephone from her and threw it in the backseat. He also repeatedly put his hand over her mouth to the point where she could not breathe, and he stopped only when she told him she would not fight him anymore.
The defendant eventually climbed off of Y, started the car and told her he would bring her home. Instead, while he was driving, he unzipped his pants, removed his penis and ordered Y to perform fellatio. She began to do so but began to feel sick and so asked the defendant to stop the car. He stopped the car, and she opened the car door and vomited on the side of the road. The defendant started the car again and continued to drive; Y did not know where she was or what town she was in. Y asked to use a bathroom, and the defendant stopped the car again and she got out to urinate. Y returned to the car and the defendant instructed her to lie down as he reclined the seat. The defendant then began touching Y’s vagina, asking her if she liked it. She told him she wanted him to stop, and he said: "No you don’t." He took off his belt, flexed it and ordered her into the backseat of the car. They both got into the backseat, and the defendant penetrated the victim’s vagina and anus with his penis. After he stopped, the defendant returned to the driver’s seat of the car and drove away. He eventually returned to the Boston Market, where Y had left her car, and dropped her off. Y got into her car and drove home. Y’s mother, who was at home, called 911, and, after Y was taken to a hospital, she told the emergency room physician that her former husband had forced her to have sex with him.(Footnote omitted.) State v. Jason B., supra, 111 Conn.App. 360-62.
The petitioner brought his first habeas petition, last amended on August 31, 2010, alleging claims for the state’s failure to disclose exculpatory evidence, the state’s destruction of evidence, prosecutorial misconduct, ineffective assistance of trial counsel and ineffective assistance of appellate counsel. The petitioner was represented by Attorney Hilary Carpenter. The habeas court, Schuman, J., denied the petition on January 6, 2011. The petitioner appealed the habeas court’s decision, and the decision was affirmed on appeal. Jason B. v. Commissioner of Correction, 141 Conn.App. 674, 62 A.3d 1144, cert. denied, 308 Conn. 935, 66 A.3d 498 (2013). The petitioner was represented by Attorney Mary Trainer.
The petitioner brought his second habeas petition on January 24, 2013. In his pro se petition, the petitioner alleged that his convictions could not stand because his marriage to the victim was legally recognized by Nevada law at the time of the assault. On July 31, 2013, the respondent filed a motion to dismiss the petitioner’s petition, which the habeas court, Newson, J., granted on October 8, 2013. The petitioner appealed the habeas court’s decision, but subsequently withdrew his appeal.
The petitioner initiated the present habeas petition on June 26, 2014. In his amended petition, filed on June 23, 2017, the petitioner claims that his habeas counsel, Attorney Carpenter, was ineffective in failing to raise the claims that his trial counsel, Attorney Cannatelli, was ineffective in failing to: (1) effectively establish and rehabilitate the petitioner’s credibility by (a) establishing the petitioner’s honorable marine corps discharge, (b) presenting information and testimony regarding military nonjudicial punishments, and (c) ensuring appropriate courtroom decorum; (2) effectively impeach the alleged victim and challenge her credibility; (3) effectively challenge the lack of forensic evidence in this case; (4) effectively investigate, including timely obtaining a copy of the police report and conducting an independent investigation into the allegations; (5) raise an alternative theory of defense, particularly involving a history and pattern of consent and retaliation; (6) object to testimony and evidence regarding an incident which occurred in a separate jurisdiction and/or request an appropriate limiting jury instruction; and (7) perform effectively in the cumulative. The respondent filed a return on October 6, 2017, leaving the petitioner to his proof.
The petition also alleged a claim of ineffective assistance against habeas counsel for failing to raise a claim that trial counsel was ineffective in failing to present sufficient mitigating evidence at sentencing regarding kidnapping. The petitioner withdrew this claim at trial.
A trial was held on November 20, 2017, and February 6, 2018. The petitioner called Attorney Carpenter, Attorney Thomas Farver, Thomas Lopez, Attorney Cannatelli and himself as witnesses. The petitioner presented several exhibits to the court.
II
DISCUSSION
"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, at 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, at 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). 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, at 466 U.S. 689.
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). 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, at 466 U.S. 686.
"The use of a habeas petition to raise an ineffective assistance of habeas counsel claim, commonly referred to as a ‘habeas on a habeas,’ was approved by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992). In Lozada, the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296(a) includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to challenge the effectiveness of habeas counsel is through a habeas petition." (Footnote omitted.) Sinchak v. Commissioner of Correction, 126 Conn.App. 684, 686-87, 14 A.3d 343 (2011).
The Appellate Court explained that when the Strickland standard is " ‘applied to a claim of ineffective assistance of prior habeas counsel, [it] requires the petitioner to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceedings ... [T]he petitioner will have to prove that one or both of 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 ...’ Harris v. Commissioner of Correction, 108 Conn.App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). ‘Therefore, as explained by our Supreme Court in Lozada v. Warden [supra, 223 Conn. 834], 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.’ ... Ham v. Commissioner of Correction, 152 Conn.App. 212, 230, 98 A.3d 81, cert. denied, 314 Conn. 932, 102 A.3d 83 (2014). ‘We have characterized this burden as presenting a herculean task ...’ Alterisi v. Commissioner of Correction, 145 Conn.App. 218, 227, 77 A.3d 748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013)." Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 438-39, 119 A.3d 607 (2015). Therefore, pursuant to the foregoing case law, in order to set forth a prima facie case of ineffective assistance of habeas counsel on the ground of ineffective assistance of underlying counsel, the petitioner must set forth a prima facie case of ineffective assistance of underlying counsel.
A
Rehabilitation of Petitioner’s Credibility
The petitioner alleges that Attorney Carpenter was ineffective for failing to raise the claim that Attorney Cannatelli was ineffective for failing to effectively establish and rehabilitate the petitioner’s credibility by failing to establish the petitioner’s honorable Marine Corps discharge, failing to present information and testimony regarding military nonjudicial punishments and failing to ensure appropriate courtroom decorum. The petitioner failed to sustain his burden of establishing either deficient performance or prejudice with respect to these claims.
1
Military Evidence
The petitioner first alleges that Attorney Carpenter was ineffective for failing to raise the claim that Attorney Cannatelli was ineffective for failing to establish that the petitioner was honorably discharged from the military, and failing to present testimony to clarify submitted evidence of the petitioner’s military nonjudicial punishments. These claims must fail.
"[T]he presentation of testimonial evidence is a matter of trial strategy ..." (Citation omitted; internal quotation marks omitted.) Bowens v. Commissioner of Correction, 104 Conn.App. 738, 744, 936 A.2d 653 (2007), cert. denied, 286 Conn. 905, 944 A.2d 978 (2008). "[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 ..." (Internal quotation marks omitted.) Burgos-Torres v. Commissioner of Correction, 142 Conn.App. 627, 639, 64 A.3d 1259, cert. denied, 309 Conn. 909, 68 A.3d 663 (2013).
At the habeas trial, the petitioner testified that he was honorably discharged from military service. He further testified that he received a nonjudicial punishment for an unauthorized absence from his place of duty resulting from an incident in which his wife required ambulatory medical care and the petitioner followed her to the hospital. The record reveals that at the underlying trial, Attorney Cannatelli asked the petitioner on direct examination if he had left the military on good terms, and the petitioner testified that he received an honorable discharge. On cross examination, the state then asked the petitioner whether he had received any punishment during his military service. On redirect, Attorney Cannatelli allowed the petitioner to fully explain the circumstances of his military discipline, and emphasize that he still received an honorable discharge from service.
Attorney Cannatelli testified at the habeas trial that the state informed him that it would be presenting the petitioner’s military disciplinary issues at trial. Attorney Cannatelli also testified at the habeas trial that after speaking with the petitioner, he decided not to object because he believed that the information relating to his wife helped the petitioner rather than harmed him by portraying him in a positive light as a supportive spouse. Attorney Cannatelli further testified that it was a strategic decision to not submit additional evidence because it would call more attention to a minor adverse instance in the petitioner’s military record.
Based on the foregoing, the court finds that the petitioner failed to prove that Attorney Cannatelli’s performance was deficient by overcoming the strong presumption that his strategies regarding the petitioner’s military history were reasonable. Moreover, the petitioner failed to establish prejudice by proving that there is a reasonable probability that the outcome of the proceedings would have been different had Attorney Cannatelli presented additional evidence regarding the petitioner’s honorable military discharge or nonjudicial punishments. As a result, the petitioner has failed to sustain his burden of establishing that Attorney Cannatelli was ineffective for failing to present evidence regarding the petitioner’s honorable discharge and nonjudicial punishments, and therefore his claim of ineffective assistance against Attorney Carpenter must be denied.
2
Courtroom Decorum
The petitioner also alleges that Attorney Carpenter was ineffective for failing to raise the claim that Attorney Cannatelli was ineffective for failing to ensure appropriate courtroom decorum of the petitioner at trial by preventing the petitioner from attempting to urinate under the defense table in the presence of the jury. This claim must also fail.
Attorney Cannatelli testified at the habeas trial that the petitioner informed him that he had a bladder infection that caused him to urinate frequently. He further testified that the petitioner informed him that he needed to use the restroom facilities and he made multiple requests to the trial court on the petitioner’s behalf, but the court refused to take a recess. Attorney Cannatelli testified that the petitioner then attempted to urinate into a water pitcher underneath the defense table, but the judicial marshal sent a note to the judge and the judge excused the jury and took a recess. Attorney Cannatelli further testified that he could not say if any of the jurors witnessed the petitioner’s attempt at urinating in the courtroom. The petitioner testified at the habeas trial that he had an anxiety issue for which he was receiving medication, which increased the need for him to use the restroom, and that he attempted to discreetly urinate into a water cup when the judge denied Attorney Cannatelli’s requests for a bathroom break. The record also reveals that Attorney Cannatelli filed a motion for a new trial based on the incident, which the trial court, Rodriguez, J., denied.
The court finds that the petitioner has failed to prove that Attorney Cannatelli’s performance was deficient. Attorney Cannatelli ultimately had no control over the petitioner’s own decision to attempt to urinate in the courtroom, perhaps in front of the jury. Attorney Cannatelli made multiple requests to the court for his client to use the restroom, and filed a motion for a new trial as an attempt to remedy the incident. Moreover, there is no evidence in the record that any juror witnessed the incident. Thus, the petitioner also failed to prove that he was prejudiced thereby. As a result, the petitioner has failed to sustain his burden of establishing that Attorney Cannatelli was ineffective for failing to ensure appropriate courtroom decorum of the petitioner at trial, and therefore his claim of ineffective assistance against Attorney Carpenter must be denied.
B
Impeachment of Victim’s Credibility
The petitioner next alleges that Attorney Carpenter was ineffective for failing to raise the claim that Attorney Cannatelli was ineffective for failing to effectively impeach the victim and challenge her credibility. The petitioner specifically claims that underlying trial counsel should have presented testimony by the petitioner regarding the ongoing sexual nature of his relationship with the victim, which the petitioner claims would have been admissible at trial under an exception to the rape shield statute. The petitioner also points to testimony from the petitioner’s prior habeas trial and an additional police report as evidence impeaching the victim’s credibility. The petitioner has failed to sustain his burden of establishing prejudice with respect to this claim.
"[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies ... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); see also Elsey v. Commissioner of Correction, 126 Conn.App. 144, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011) ("[b]ecause both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong" [internal quotation marks omitted] ).
Attorney Cannatelli credibly testified at the habeas trial that he attempted to impeach the victim’s credibility during cross examination. Review of the record indicates that Attorney Cannatelli did cross examine the victim as to the ongoing sexual relationship she had with the petitioner. The petitioner also testified at the habeas trial that he maintained a sexual relationship with the victim after the marriage had ended.
The court has reviewed the relevant testimony and evidence presented by the petitioner and determines that it fails to sufficiently undermine the victim’s credibility to the extent that it creates a reasonable likelihood that the outcome of the criminal trial would have been different. "Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009). Thus, the petitioner has not proven the prejudice prong of the Strickland analysis. As a result, the petitioner has failed to sustain his burden of establishing that Attorney Cannatelli was ineffective for failing to effectively impeach the victim’s credibility, and therefore his claim of ineffective assistance against Attorney Carpenter must be denied.
C
Forensic Evidence
The petitioner also alleges that Attorney Carpenter was ineffective for failing to raise the claim that Attorney Cannatelli was ineffective for failing to effectively challenge the lack of forensic evidence in the petitioner’s case, in particular a marijuana cigarette found by the police in the victim’s coat that was not tested and ultimately destroyed. This claim must fail.
The record indicates that the victim gave the police officers the coat she was wearing on the night of the incident, and that she indicated to the officers that there was a marijuana cigarette in the pocket that the petitioner had made her smoke that night. The police officers then destroyed the marijuana cigarette by flushing it down the toilet. Attorney Cannatelli testified at the habeas trial that he recalled an issue with a marijuana cigarette, but that it was not available for the trial. The petitioner invites the court to draw an adverse inference against the state for the destruction of the marijuana cigarette pursuant to State v. Johnson, 67 Conn.App. 299, 786 A.2d 1269 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). "The failure to produce [evidence] for trial [that] is available and [that] a party would naturally be expected to [produce] warrants an adverse inference instruction against the party who would be expected to [produce that evidence] ... In such a situation there is a logical nexus between the failure to [produce the evidence] and an adverse inference. In other words, it makes sense to infer that the [evidence], had [it been] available ... would [have been] adverse to the party who would naturally be expected to [produce] that [evidence] but failed to do so." (Citations omitted; internal quotation marks omitted.) State v. Johnson, 67 Conn.App. 299, 314-15, 786 A.2d 1269 (2001).
The court does not find that there is a reasonable likelihood that the inclusion of the marijuana cigarette would have been likely to change the outcome of the petitioner’s trial because the victim admitted that she was forced to smoke it by the petitioner. As to any additional claims regarding the forensic evidence in the petitioner’s case, the petitioner has provided no other evidence to support his claim. A review of the record indicates that Attorney Cannatelli cross examined the criminologist from the state’s laboratory as to a lack of forensic evidence in the petitioner’s case, particularly the lack of bodily fluids.
Pursuant to the foregoing, the petitioner has failed to sustain his burden of establishing that Attorney Cannatelli was ineffective for failing to effectively challenge the lack of forensic evidence in the petitioner’s case, and therefore his claim of ineffective assistance against Attorney Carpenter must be denied.
D
Failure to Investigate
The petitioner further alleges that Attorney Carpenter was ineffective for failing to raise the claim that Attorney Cannatelli was ineffective for failing to engage in an effective investigation, specifically by timely obtaining a police report that undermined the victim’s credibility, obtaining information about the petitioner’s military discharge and disciplinary record and investigating witnesses that supported the theory of defense in this case. This claim must also fail.
"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." 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 court has already determined herein that the petitioner failed to sustain the burden of proving his claims regarding trial counsel’s impeachment of the victim’s credibility and the petitioner’s military disciplinary record. Therefore, the petitioner has not demonstrated that additional investigation into these areas would have benefitted the petitioner’s underlying case. Furthermore, the petitioner has not presented testimony by additional witnesses that would have further supported the consent theory of defense in this case. The court finds that Attorney Cannatelli’s investigation was reasonable, and that there is no evidence presented that a reasonable probability exists that the outcome of the proceedings would have been different had these issues been further investigated. Thus, the court finds that the petitioner failed to sustain his burden of proving deficient performance or prejudice.
As a result, the petitioner has failed to sustain his burden of establishing that Attorney Cannatelli was ineffective for failing to perform an effective investigation, and therefore his claim of ineffective assistance against Attorney Carpenter must be denied.
E
Alternative Theories of Defense and Prior Incident Evidence
The petitioner also alleges that Attorney Carpenter was ineffective for failing to raise the claim that Attorney Cannatelli was ineffective for failing to raise an alternative theory of defense, particularly one regarding a history and pattern of consent or retaliation, and for failing to object to testimony and evidence regarding an incident which occurred in a separate jurisdiction or request a limiting jury instruction. These claims must also fail.
There is no meaningful analysis as to these claims in the petitioner’s posttrial brief, and thus the court can deem them to have been abandoned. See, e.g., Connecticut Light & Power Co. v. Department of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) ("[R]eviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court"); Raynor v. Commissioner of Correction, 117 Conn.App. 788, 796, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010) ("The petitioner’s failure to brief his first claim to the habeas court, namely, improper preparation and investigation by trial counsel, resulted in an abandonment of that claim"). Moreover, even if the claims not briefed in the petitioner’s posttrial brief are not deemed abandoned, the petitioner failed to prove that either counsel performed deficiently and did not show that the outcome of the criminal trial or a prior habeas would have been different. Therefore, these claims are denied.
G
Ineffective Assistance in the Cumulative
Finally, the petitioner alleges that Attorney Carpenter was ineffective for failing to present the claim that Attorney Cannatelli provided ineffective assistance of counsel in the cumulative. This claim must also fail.
Our Appellate Court recently addressed the application of the cumulative error doctrine in determining whether a petitioner was prejudiced by counsel’s purported deficiencies, noting at the outset that "[o]ur appellate courts ... have consistently declined to adopt this method of review." Antwon W. v. Commissioner of Correction, 172 Conn.App. 843, 850-51, 163 A.3d 1223, cert. denied, 326 Conn. 909, 164 A.3d 680 (2017). " ‘When faced with the assertion that the claims of error, none of which individually constituted error, should be aggregated to form a separate basis for a claim of a constitutional violation of a right to a fair trial, our Supreme Court has repeatedly decline[d] to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.’ ... Anderson v. Commissioner of Correction, 148 Conn.App. 641, 645, 85 A.3d 1240, cert. denied, 311 Conn. 945, 90 A.3d 976, cert. denied sub nom. Anderson v. Dzurenda, 135 S.Ct. 201, 190 L.Ed.2d 155 (2014); see State v. Tillman, 220 Conn. 487, 505, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S.Ct. 3000, 120 L.Ed.2d 876 (1992). Because it is not within the province of this court to reevaluate decisions of our Supreme Court; Anderson v. Commissioner of Correction, supra, at 645, 85 A.3d 1240; we lack authority under the current state of our case law to analyze the petitioner’s ineffective assistance claims under the cumulative error rule." Id., 851. In the present case, this court also lacks the authority pursuant to the current state of the case law to analyze the petitioner’s claim of ineffective assistance of counsel in the cumulative. As a result, this claim must also fail.
III
CONCLUSION
Accordingly, the petitioner’s habeas petition is denied.