Opinion
CV134005108S CV154006870S
02-23-2016
Raymond Cerilli (#162375) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. Vernon D. Oliver, J.
The petitioner, Raymond Cerilli, initiated these consolidated petitions for writs of habeas corpus, claiming that his prior habeas counsel, underlying criminal trial counsel and direct appeal counsel provided him ineffective legal representation related to his underlying trial. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The court finds the issues for the respondent and denies the petitions.
I
Procedural History
In the criminal matter State v. Raymond Cerilli, CR6-280146, in the New Haven Judicial District, the petitioner was convicted after jury trial of kidnapping in the first degree in violation of Connecticut General Statutes § 53a-92(a)(2)(A), sexual assault in the first degree in violation of General Statutes § 53a-70, attempted sexual assault in the first degree in violation of General Statutes § § 53a-49(a)(2) and 53a-70 and risk of injury to a minor in violation of General Statutes § 53-21. On or about January 18, 1991, the Court, McKeever, J., sentenced the petitioner to a total effective sentence of fifty-three years to serve. The petitioner was represented at trial by attorney Thomas Ullman. The petitioner appealed the conviction, and the Connecticut Supreme Court affirmed the judgment after transfer. State v. Cerilli, 222 Conn. 556, 610 A.2d 1130 (1992). On appeal, the petitioner was represented by attorney Susan Wise. In affirming the underlying judgment, the court made the following findings of fact.
" The jury could reasonably have found the following facts. In October 1987, the defendant lived in an apartment in Hamden, with his fiancée, Theresa Zumbo, and her daughter. On October 23, 1987, at approximately 9 p.m., the defendant and Zumbo whose daughter was staying that evening with Zumbo's mother, picked up a friend, Etta Goldberg, at her residence in the Westville section of New Haven, and drove in the defendant's car to " Sally's, " a bar in New Haven. The defendant's car was a 1982 Malibu Classic, burgundy in color, with an automatic transmission, four doors and bench seats. There was a broken " piece" on the inside of the front passenger side door. The car was missing a glove compartment, and there were wires protruding from the glove compartment area.
" The defendant, Zumbo and Goldberg stayed at the bar until approximately 2 a.m. Before they left, however, the defendant and Zumbo got into an argument that continued until they arrived at Goldberg's residence. Zumbo and Goldberg entered Goldberg's house and the defendant left. At approximately 2:30 a.m., Goldberg drove Zumbo to Zumbo's mother's house, where Zumbo spent the rest of the night. At some time before 3:15 a.m., the defendant returned to Goldberg's house looking for Zumbo. Goldberg told him that she was at her mother's house but refused to let him use the telephone to call Zumbo. At approximately 3:15 a.m., the defendant called Zumbo at her mother's house from another telephone, but Zumbo refused to talk with him.
" Meanwhile, N.W., the fourteen-year-old victim, and her friend, Raquel Reeves, were in the Westville section of New Haven, having visited friends. At approximately 3 a.m., they were walking toward downtown New Haven. As they reached Whalley Avenue, the defendant drove up to them and asked them if they wanted a ride. They accepted, and sat in the front seat of the defendant's car. The victim sat next to the defendant and Reeves sat next to the door.
" After starting to drive toward downtown, the defendant told the two girls that, because his car was not registered, he would have to drive on back roads so as not to be seen by the police. Thereafter, he stopped the car and told the girls to leave the car because he was going to take the highway. As Reeves left the car, the defendant put his arm around the victim's neck, preventing her from leaving the car, and drove away onto a highway at a high rate of speed. When the victim began to scream, the defendant told her to stop or he would cut off her head. Reeves went to a nearby hospital and contacted the police.
" During the drive, the victim was crying and asked the defendant why he was doing this to her. He told her that this would teach her not to be out so late, and that this would be a lesson to her. He also put his hand inside her shirt and touched her chest, and would not stop doing so when she told him to stop. She asked him to stop the car and let her out, but he refused.
" After leaving the highway, the defendant, who was wearing a New York Giants sweatshirt, took another New York Giants sweatshirt from inside the car, wrapped it around the victim's head and pushed her down in the seat. He continued to drive, and eventually parked the car on a hill. The defendant led the victim, the sweatshirt still wrapped around her head, out of the car, over a gravel surface, up some wooden steps, through two doors that the defendant opened with keys, and into a room where the defendant removed the sweatshirt from the victim's head.
" The victim was in a living room with wall-to-wall carpeting. The defendant brought her through a kitchen, which contained a double-door refrigerator, into a hallway that opened onto a bedroom on each side and a bathroom at the end. The defendant took her into one of the bedrooms. That room contained a waterbed with a wooden headboard, a dresser arranged " kittie-cornered, " two closets-one with sliding doors, containing women's clothes-and a plaque on the wall that looked like it came from a bar. The lights were on.
" The defendant ordered the victim to take off all of her clothes. She complied because she feared for her life. The defendant removed his clothes, put a blanket on the bed and turned off the lights. He made the victim lie down on the bed. He tried to put his penis into the victim's mouth but she refused. He then penetrated her vagina with his penis, but he could not maintain an erection. The defendant then began to insert his fingers into the victim's vagina. He took some cream from the headboard, put the cream on his hands, inserted all his fingers into her vagina, and made a fist and pushed it into her vagina. When the victim began to scream, the defendant put a pillow over her head and told her to " shut up." The victim heard a tearing sound in her vagina and felt herself begin to bleed.
" When the defendant saw the blood, he told the victim to get dressed. The defendant then put the sweatshirt back over the victim's head and led her back to the car. After driving for approximately ten minutes, he stopped the car, pushed the victim out and drove away. The victim removed the sweatshirt and left it on the street, where it was later retrieved by the New Haven police.
" The victim walked to a gas station, where the police were called. The victim was taken by ambulance to the hospital, where she underwent surgery for a laceration of the vagina that extended the full length of the vaginal canal. This injury was consistent with a fist having been made inside the vagina.
" At approximately 6:30 a.m., the defendant called Zumbo and they reconciled. After he picked her up at her mother's house, they returned to their apartment. Zumbo noticed that the quilt was off the bed. The defendant said that he had spilled tea on it, that he had washed it and that it was in the dryer. The defendant had never washed the bedding or quilt before, because that was ordinarily Zumbo's responsibility. Zumbo checked the dryer and found the quilt in it.
" On November 2, 1987, after the victim had been released from the hospital, in the company of the police she identified the defendant's car. She also positively identified the defendant from a twelve-person photographic array as the person who had kidnapped and assaulted her. On the same day, Reeves also identified the defendant's car and photograph.
" The defendant was arrested later that day and brought to the New Haven police department where, after waiving his Miranda rights, he denied any involvement with the victim. He admitted owning the car identified by the victim and Reeves, however, and told the police that only he and Zumbo had access to it. He also told the police that he had been with Zumbo in their apartment from 7 p.m. on October 23, 1987, until the next morning.
" Later that evening, the New Haven police searched the defendant's apartment, and seized a jar of Vaseline petroleum jelly from the master bedroom and two New York Giants sweatshirts. They also took numerous photographs of the interior of the apartment and the exterior of the building.
State v. Cerilli, supra , 222 Conn. 559-63.
The petitioner subsequently filed a petition for a writ of habeas corpus assigned docket number NNH-CV97-0407991-S. The petitioner was represented by attorney Jennifer Vickery. The petition was denied by the court, Zoarski, J.T.R., after trial. In so doing, the court made the following findings.
" The Petitioner in this habeas corpus proceeding contends his rights were violated for the following reasons:
1. Lack of a cross-racial identification jury instruction.
2. Bad faith destruction of identification related evidence.
3. Police used suggestive procedure for eyewitness identification, and they also destroyed all evidence of such procedure.
4. Ineffective assistance of defense counsel regarding the mental competency of the defendant, and that defendant was framed by the police for the crimes charged.
" The Petitioner's claim regarding a violation of his rights because of a failure of the Court to give an instruction to the jury regarding cross-racial identification was available as part of the Court's decision. The issue of identification was clearly before the Court and the sub-issue of cross-racial identification was part of the decision of the Supreme Court. The charge given by the trial court did include a partial compliance with the defendant's request to charge and the jury was not misled by the trial court's failure to give the specific identification instruction. State v. Cerilli, 222 Conn. at 571-72, 588-89. The requested instruction on eyewitness identification does not prevent this Court from concluding the Petitioner's current claim is a matter of res judicata. State v. Ellis, 197 Conn. 436, 462-63, 497 A.2d 974 (1985). This issue is repetitive of the issues raised on direct appeal.
" The next claim of Petitioner regarding destruction of evidence by the New Haven Police Department was also litigated by the trial court. See State v. Cerilli, 222 Conn. at 572-82. No evidence was produced at this habeas trial to support this claim. The evidence actually presented at this trial related to the claims of the defense attorney at the trial. The petitioner is simply revisiting the same issues decided at the criminal trial and reviewed on appeal which is contrary to the policy of res judicata.
" The next claim of Petitioner that the New Haven Police used improper eyewitness identification, and they also destroyed evidence of such procedure was not established by any new evidence at this habeas trial. Claims of a similar nature made in the trial court and reviewed by the Supreme Court have already been addressed and no new evidence has been presented in this habeas trial.
" The Petitioner has also claimed in this habeas trial Attorney Ullman did not submit his mental health evaluation prior to the criminal trial. The defense attorney testified he had concerns regarding his mental health but it was not the type or character of impairment that would question his client's competency. The attorney testified he had no concerns regarding his competency or that he was delusional or had no grasp of reality. The Petitioner never disclosed prior to trial that he had any mental health issues, or that he had ever been treated for such conditions prior to the criminal trial.
" The evidence presented does not establish ineffective assistance of counsel. Petitioner has failed to sustain his burden of proving counsel's representation fell below the standard of reasonableness or that there was a reasonable probability that, for the performance of counsel the result would be different.
" For the foregoing reasons the relief sought by the Petitioner is denied and the petition is dismissed.
Cerilli v. Warden , Docket No. NNH-CV97-0407991-S, Superior Court, Judicial District of New Haven at New Haven, Zoarski, J.T.R. (August 7, 2012) .
The petitioner appealed from the habeas court's decision, which was affirmed per curiam by the Connecticut Appellate Court. Cerilli v. Warden, 149 Conn.App. 903, 87 A.3d 630, cert. denied, 311 Conn. 955, 97 A.3d 984 (2014).
In the operative amended petition, dated August 17, 2015, the petitioner asserts the following regarding prior habeas trial counsel, Jennifer Vickery:
a. That she failed to properly investigate and plead that underlying criminal trial counsel, Thomas Ullman, failed to properly and adequately preserve the petitioner's right to a speedy trial, failed to invoke the petitioner's right to a speedy trial and waived such right;
b. That she failed to properly investigate and plead that the aforementioned underlying criminal trial counsel failed to object to improper questioning and argument of the trial prosecutor; and
c. That she failed to properly investigate and plead that direct appellate counsel, Susan Wise, was deficient in failing to raise, brief and argue a claim of prosecutorial impropriety based on comments of the trial prosecutor.
The respondent denies the petitioner's claims and asserts the special defenses of procedural default and successive petition.
II
Law/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, 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. at 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).
A. Ineffective Assistance of Prior Habeas Counsel, Jennifer Vickery
For assessing claims of ineffective assistance based on the performance of prior habeas counsel, the Strickland standard is as follows. " [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 . . . 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 [appellate] 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." (Citations omitted; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, supra, 113 Conn.App. at 394. Here, in order to set forth a prima facie case of ineffective assistance of attorney Vickery on the ground of ineffective assistance of trial counsel, the petitioner must set forth a prima facie case of ineffective assistance of attorney Ullman.
1. Attorney Thomas Ullman
The petitioner asserts, in essence, that attorney Ullman was deficient in misadvising the petitioner to waive his speedy trial rights and in failing to object to certain comments and arguments of the trial prosecutor. These claims fail.
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. at 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., at 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. at 686.
In the instant matter, attorney Ullman testified to his training and extensive experience as a criminal defense trial lawyer. Counsel testified to his previous familiarity with trials involving issues similar to those in the underlying matter. Regarding the decision not to pursue a speedy trial, attorney Ullman testified credibly to the several strategic bases for the decision. Counsel testified credibly that he typically advises clients not to pursue a speedy trial unless the defense is ready. In the instant matter, attorney Ullman specifically testified to the strategic decision not to pursue a speedy trial because the defense was simply not ready to proceed to trial as it was " too complicated a case" to rush to trial. Additionally, counsel testified that, based on the need for additional investigation, several legal issues and not wanting to try the case " from the seat of your pants with this kind of [criminal sentencing] exposure, " he advised the petitioner to waive his right to a speedy trial. Counsel specifically testified that he would not pursue a speedy trial as a means to prevent the destruction of certain interview tapes, as was suggested by the petitioner at the habeas trial. The court agrees with counsel that the filing of a motion to preserve evidence is the proper action for counsel.
" In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense, after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . ."Martin v. Commissioner of Correction, 155 Conn.App. 223, 227, 108 A.3d 1174, cert. denied, 316 Conn. 910, 111 A.3d 885 (2015).
For the foregoing reasons, the petitioner has failed to establish deficient performance.
Regarding the aforementioned interview tapes, counsel testified credibly that he, in accordance with the policy in his office, filed motions to preserve evidence, including original audiotapes, in the possession of law enforcement. He further concluded that, based on his understanding of the then-existing New Haven Police Department policy, the audiotapes in question were likely destroyed early in the process, immediately after transcripts were made from the tapes. Additionally, the petitioner has failed to establish how, if at all, the trial outcome would have been more favorable to the petitioner by pursuing a speedy trial. Accordingly, the petitioner has failed to establish prejudice.
Regarding the failure to object to certain comments and closing arguments of the trial prosecutor, the petitioner has also failed to establish both deficient performance and prejudice.
" [T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency . . . [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 . . . An [e]xperienced (litigator may] utilize the trial technique of not objecting to inadmissible evidence to avoid highlighting it in the minds of the jury." (Citation omitted; internal quotation marks omitted.) Servello v. Commissioner of Correction, 95 Conn.App. 753, 761, 899 A.2d 636, cert. denied, 280 Conn. 904, 907 A.2d 91 (2006).
In the instant matter, the underlying criminal trial record demonstrates that attorney Ullman did indeed object to several comments of the trial prosecutor and moved for a mistrial based on portions of the trial prosecutor's closing arguments. In the context of the trial, such objections were appropriate trial strategy. In this respect, his legal representation cannot be said to be deficient. Regarding the trial prosecutor's use of the word " rape" in reference to the allegations, the petitioner has failed to establish any resulting prejudice from the lack of objection. It is well-established that simply failing to object to evidence that may be objectionable is not per se prejudicial. This court does not find that the use of the word " rape" in a sexual assault prosecution twenty-seven years ago is per se prejudicial.
2. Attorney Susan Wise
The petitioner asserts that direct appeal counsel was deficient in failing to pursue a claim of prosecutorial impropriety based on the aforementioned comments and arguments by the trial prosecutor.
It is established that: " [a] criminal defendant's right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution. See, e.g., Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); In re Christina M., 280 Conn. 474, 489, 908 A.2d 1073 (2006)." Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203 (2008), cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
To succeed on a claim of ineffective assistance of appellate 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). Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). " Strickland requires that a petitioner satisfy both 'a " performance prong" and a " prejudice prong." To satisfy the performance prong, a claimant must demonstrate that " counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the [s]ixth [a]mendment." [ Id. ] To satisfy the " prejudice prong, " a claimant must demonstrate that " there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., at 694. The claim will succeed only if both prongs are satisfied.' Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom., Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006)." Small v. Commissioner of Correction, supra, 286 Conn. 713. For claims of ineffective assistance of appellate counsel, the habeas court must determine " whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial . . . [T]o determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm." Small v. Commissioner of Correction, supra, 286 Conn. 722; Moody v. Commissioner of Correction, 127 Conn.App. 293, 301, 14 A.3d 408 (2011); see also Smith v. Robbins, supra, 528 U.S. at 285.
In assessing any ineffective assistance claim, the Connecticut Supreme Court has held that: " [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 . . ." Johnson v. Commissioner of Correction, 131 Conn.App. 805, 808-9, 29 A.3d 166 (2011).
The issue raised here, the failure of an appellate counsel to raise an issue on appeal, is subject to habeas review. Mayo v. Henderson, 13 F.3d 528 (2nd Cir. 1994); Small v. Commissioner of Corrections, supra, 286 Conn. 713; Gipson v. Commissioner of Correction, 257 Conn. 632, 634, 778 A.2d 121 (2001); Sekou v. Warden, 216 Conn. 678, 583 A.2d 1277 (1990); Valeriano v. Bronson, 209 Conn. 75, 546 A.2d 1380 (1988). " Were it legitimate to dismiss a claim of ineffective assistance of counsel on appeal solely because we found it improper to review appellate counsel's choice of issues, the right to effective assistance of counsel on appeal would be worthless." Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1985).
Although subject to habeas review, claims related to appellate counsel's failure to raise a particular nonfrivilous claim are difficult to establish. The United States Supreme Court in Smith v. Robbins, supra, 528 U.S. at 288, explained: " In Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), we held that appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal. Notwithstanding Barnes, it is still possible to bring a Strickland claim based on counsel's failure to raise a particular claim, but it is difficult to demonstrate that counsel was incompetent."
The Connecticut Supreme Court has found similarly with respect to assessing habeas claims against appellate counsel. " The right to counsel is not the right to perfect representation . . . [Although] an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues . . . Most cases present only one, two, or three significant questions . . . The effect of adding weak arguments will be to dilute the force of the stronger ones . . . Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation." (Internal quotation marks omitted.) Bailey v. Commissioner of Correction, 107 Conn.App. 362, 366-67, 947 A.2d 2, cert. denied, 287 Conn. 922, 951 A.2d 568 (2008)." Johnson v. Commissioner of Correction, supra, 131 Conn.App. at 808-9. " It is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment." Valeriano v. Bronson, 209 Conn. 75, 87, 546 A.2d 1380 (1988). See also, Vivo v. Commissioner of Correction, 90 Conn.App. 167, 172, 876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d 1253 (2005).
In determining habeas standards, Connecticut courts often look to federal habeas decisional law for guidance. Lebron v. Commissioner of Correction, 274 Conn. 507, 523-25, 876 A.2d 1178 (2005) (" The history of our own jurisprudence is wholly in accord with these [federal habeas] principles"); Crawford v. Commissioner of Correction, 294 Conn. 165, 181-82, 982 A.2d 620 (2009) (" [O]ur own jurisprudence concerning habeas corpus procedural defaults has developed in tandem with federal habeas corpus jurisprudence"); Vincenzo v. Warden, 26 Conn.App. 132, 135-37, 599 A.2d 31 (1991) (state habeas corpus jurisprudence wholly in accord with the principles embodied in federal habeas corpus jurisprudence).
In Gray v. Greer, 800 F.2d 644 (7th Cir. 1985), cited by the United States Supreme Court in Smith v. Robbins, 528 U.S. at 288, supra, the Seventh Circuit Court of Appeals explained: " When a claim of ineffective assistance of counsel is based on failure to raise viable issues, the district court must examine the trial court record to determine whether appellate counsel failed to present significant and obvious issues on appeal. Significant issues which could have been raised should then be compared to those which were raised. Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." See also Mayo v. Henderson, 13 F.3rd 528, 532 (2nd Cir. 1994) (" a petitioner may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker"). " It is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment." Valeriano v. Bronson, 209 Conn. 75, 87, 546 A.2d 1380 (1988).
In the instant matter, upon a review of the record and appellate decisions, this court finds the petitioner has failed to establish that the new issue asserted by the petitioner was clearly stronger than the issues actually presented. There was insufficient evidence presented at the instant habeas trial to overcome the presumption of competence of the legal representation of the late attorney Wise. Additionally, the presumption that appellate counsel's decision was based on narrowing the appellate issues to those most likely to lead to a successful appeal has likewise not been overcome. Finally, the petitioner has failed to demonstrate a reasonable probability that the inclusion of the asserted claim would have resulted in a successful appeal. Because the petitioner failed to set forth a prima facie case regarding the ineffective assistance of his trial and appellate counsel, he has not set forth a prima facie case of ineffective assistance of his habeas counsel.
III
Conclusion
For the foregoing reasons, the petition is denied. Judgment shall enter for the respondent.