Opinion
TSRCV134005150S
12-22-2015
Luis Galarza v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Luis Galarza seeks habeas corpus relief from convictions, after a jury trial, for capital felony murder and two counts of murder, for which crimes he serves a total, effective sentence of life imprisonment without possibility of parole. These convictions were affirmed on direct appeal, State v. Galarza, 97 Conn.App. 444, 906 A.2d 685 (2006); cert. denied, 280 Conn. 936, 909 A.2d 962 (2006).
The petitioner filed another habeas action previously attacking these convictions in a case denoted as CV06-4001363. That action was withdrawn. The petitioner also petitioned for a new trial, which action was denied on the merits, Galarza v. Benedict, Superior Court, Fairfield J.D., d.n. CV05-4005243, (October 5, 2011), Dooley, J. On April 2, 2012, the Appellate Court dismissed the petitioner's appeal from that adverse decision, Galarza v. Benedict, A.C. 34072.
In the present habeas case, the petitioner asserts as the basis for relief that his criminal defense counsel, Attorneys Gary Mastronardi and Jeffrey Beck, provided ineffective assistance; that the prosecutor at his criminal trial engaged in misconduct; that previous habeas counsel, Attorney Dennis McDonough, provided ineffective assistance, and a claim of actual innocence. In the return, the respondent denied these allegations and propounded special defenses of procedural default, collateral estoppel, and res judicata.
After a trial on the merits, the court makes the following findings of fact and rulings of law. The criminal case arose with the murders of Magdiel Rivera, Jr., and his half-brother Luis Velez. The Appellate Court summarized the facts supported by the evidence in that case, thusly:
On the afternoon of October 14, 1999, Maggie Montes and her husband, Edwin Bonilla, were at the Trumbull Mall and encountered the victims, individuals with whom they were acquainted. Montes testified that everyone was happy. Rivera, received a page however, and then made a telephone call. As a result of the telephone call, Rivera's expression changed. He left the mall alone between 4 and 5 p.m. Montes and Bonilla remained at the mall and later returned with Velez to their home in Bridgeport, where Rivera joined them. The four individuals got into Rivera's brown colored van and drove about Bridgeport, while they were in the van, Rivera received another page and drove to a bar called the Latin Spirit Club. In Montes' opinion, Rivera was not acting like himself.
Montes had never been to the Latin Spirit club before and described it as being a place in which she was uncomfortable. Most of the patrons were men between the ages of seventeen and twenty-five, wearing hooded sweatshirts and army fatigue pants with firearms clipped to them. Montes was nervous because everyone looked suspicious and was whispering and looking over their shoulders. Montes stood by the bar and watched Rivera walk to the back of the room. The door to the restroom was ajar, and Montes could see a figure standing at the door. The door was opened for Rivera to enter and closed behind him. Rivera remained in the restroom for ten to fifteen minutes. When he exited, Rivera told Montes, Bonilla and Velez to leave the Latin Spirit Club immediately. Montes described Rivera as looking shocked. Bonilla walked beside Rivera as they proceeded to the van. Rivera and his companions returned to Montes' home, where they sat in the van talking. The substance of their conversation concerned what Rivera had heard in the restroom, an alleged plot to take his life. Montes told Rivera three or four times not to go where he had stated he intended to go. Montes and Bonilla entered their apartment shortly after midnight, leaving the victims in the van.
At approximately 12:30 a.m. on October 15, 1999, the victims arrived at 116 Corn Tassel Road, Bridgeport, a private home and parked the van on the street in front of the house. At the time, the victims were in possession of a large quantity of cocaine in powder form, which they intended to process into crack cocaine with the assistance of someone in the house. The approximate value of the cocaine was $40,000 to $50,000. About an hour after the victims entered the residence, they left with the crack cocaine. Very soon thereafter, the residents heard gunshots coming from the street and telephoned the police. Others in the neighborhood also telephoned the police about hearing gunshots.
Benjamin Mauro, a patrol officer, was dispatched to the residence at about 2 a.m. He found the victims, shot multiple times, inside the van. The window of the passenger door had been shot out. Rivera's body was in the operator's seat with the keys in his hand. Velez' body was on the floor between the front seats. Although no murder weapon was recovered, ten spent nine millimeter shell casings and thirteen bullets and bullet fragments were found at the scene. Ballistics tests revealed that the bullets were all fired, from the same gun. A forensic medical examination of the victims' wounds demonstrated that gunshots had been fired through the window of the passenger's side of the van. The injuries caused by bullets on Velez' body revealed that he had turned away from the window when the gunshots were fired. The police recovered no drugs or guns at the scene." State v. Galarza, supra, 446-48.
The court will address the legal claims in ascending order of complexity.
Ineffective Assistance of Habeas Counsel
In the fourth count of the second, amended petition, the petitioner asserts that Attorney McDonough provided substandard representation by advising the petitioner to withdraw the first habeas case. Attorney McDonough recommended that course of action, to which the petitioner assented, because the petition for a new trial was also pending and resolution of one or the other might impair the petitioner's ability to raise overlapping claims in the matter decided later. Attorney McDonough opined that the petition for a new trial, based on newly discovered evidence, ought to precede the habeas corpus claim of actual innocence because the latter claim entails a heightened level of proof, namely by clear and convincing evidence, and the additional requirement of proof of affirmative evidence of innocence rather than evidence which simply undermines the prosecution case, see Gould v. Comm'r of Corr., 301 Conn. 544, 563-64, 22 A.3d 1196 (2011).
Attorney McDonough explained to the petitioner that earlier disposition of the new trial application could negatively impact the habeas case to the extent that both cases raised and resolved similar legal and factual issues. This advice was reasonable and motivated the petitioner to proceed with a single collateral attack at a time. Attorney McDonough also advised the petitioner that, although he was withdrawing the habeas action, he still would retain the opportunity to refile the same claims in a second habeas case at a later time.
In this regard, Attorney McDonough's legal opinion appears to be sound because no habeas hearing had begun nor was the petitioner canvassed by the habeas court limiting the withdrawal to one with prejudice, Fine v. Comm'r of Corr., 147 Conn.App. 136, 144-45, 81 A.3d 1209 (2013). The court must regard the withdrawal of the first habeas as without prejudice to refile without limitation, Id. Consequently, the petitioner sustained no prejudice from following Attorney McDonough's advice to withdraw the first habeas.
Actual Innocence Claim
The fifth count alleges that a statement uttered by Jeremiah Perez comprises affirmative evidence of the petitioner's innocence, and that Veronica Alvarez heard Roberto Hernandez confess to committing the murders for which the petitioner stands convicted. Actual innocence claims are analyzed using the criteria set forth in Miller v. Commissioner, 242 Conn. 745, 700 A.2d 1108 (1997). The Miller criteria comprises a two-part test which requires a habeas petitioner asserting an actual innocence claim to prove, by clear and convincing evidence, that:
1. The petitioner is actually innocent of the crime for which he or she stands convicted; and
2. No reasonable fact finder would convict the petitioner of that crime after consideration of a combination of the evidence adduced at both the criminal trial and the habeas proceeding, Miller v. Commissioner, 242 Conn. 745, 747, 700 A.2d 1108 (1997).
Before embarking on this analysis, the court must confront a preliminary question. Our Supreme Court recognized, in a footnote, that that Court has never decided whether the affirmative evidence of innocence must be newly discovered, Id., 551, fn 8. The Supreme Court acknowledged, however, that the Appellate Court has imposed such a requirement, Id.
Indeed, the Appellate Court has consistently and repeatedly demanded that affirmative proof of actual innocence be newly discovered, Corbett v. Comm'r of Corr., 133 Conn.App. 310, 315, 34 A.3d 1046 (2012); Vazquez v. Comm'r of Corr., 128 Conn.App. 425, 444, 17 A.3d 1089 (2011); Gaston v. Comm'r of Corr., 125 Conn.App. 553, 558-59, 9 A.3d 397 (2010); Weinberg v. Comm'r of Corr., 112 Conn.App. 100, 119, 962 A.2d 155 (2009); Grant v. Comm'r of Corr., 103 Conn.App. 366, 369, 928 A.2d 1245 (2007); Johnson v. Comm'r of Corr., 101 Conn.App. 465, 469-70, 922 A.2d 221 (2007); Batts v. Comm'r of Corr., 85 Conn.App. 723, 726-27, 858 A.2d 856 (2004); Clarke v. Commissioner, 43 Conn.App. 374, 379, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 732 A.2d 754 (1999); Williams v. Commissioner, 41 Conn.App. 515, 530, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997). This court is, of course, bound by these holdings of the Appellate Court.
" Newly discovered evidence" is " such that it could not have been discovered previously despite the exercise of due diligence, " Skakel v. State, 295 Conn. 447, 466-67, 991 A.2d 414 (2010). Due diligence is reasonable diligence, Id., 506-07. " Due diligence does not require omniscience, " Id., 507. It means " doing everything reasonable, not everything possible, " Id. The query to be answered is " what evidence would have been discovered by a reasonable [criminal defendant] by persevering application and untiring efforts in good earnest, " Id.
In the present case, the petitioner submitted no evidence with respect to the allegation that Veronica Alvarez heard a third party confess to the murders in question. Therefore, that ground cannot support the petitioner's actual innocence claim.
The written statement by Jeremiah Perez was introduced as an exhibit at the habeas trial. However, within that written statement, Perez clearly indicated while he was in pretrial confinement, he shared a cell with the petitioner at the MacDougal Correctional institution. At that time, Perez told the petitioner that he possessed information implicating Roberto Hernandez and Lefty Alvarez as the murderers. The petitioner declined to discuss the case with Perez based on defense counsel's generic advice to refrain from discussing his case with anyone except counsel. The petitioner never relayed the fact of Perez' offer to discuss the case with him to his defense counsel in a timely fashion.
The petitioner cannot rely on his own reticence to impart the substance of his encounter with Perez as " newly discovered evidence." Perez' purportedly exculpatory knowledge was reasonably available to the petitioner at the time of his criminal trial, even though the petitioner chose not to avail himself of that information. The petitioner's inaction cannot constitute newly discovered evidence, Johnson v. Commissioner, supra, 470; Skakel v. State; supra, 513.
Therefore, the petitioner has failed to meet the Miller test by establishing, through clear and convincing evidence, either that newly discovered evidence affirmatively demonstrates his innocence or that no reasonable fact finder would convict him after consideration of any newly discovered evidence.
Prosecutorial Misconduct
In the second count, the petitioner avers that the prosecutor in his criminal case withheld exculpatory information regarding plea agreements made in exchange for the testimony of Alan Lane, Rafael Colon, Jesus Lugo, Steven Necaise, and Carlos Hernandez. The third count decries the prosecutor's failure to correct misleading testimony from those witnesses to the contrary.
With respect to Lane, Colon, Necaise, and Hernandez, no evidence was adduced that undisclosed plea agreements between the prosecution and these witnesses existed. Also, in his post-trial brief, the petitioner omits mention as to these alleged nondisclosures. These averments are, therefore, deemed abandoned.
Regarding Jesus Lugo, the petitioner's evidence and argument was limited to an inference that such an arrangement must have been reached because Lugo's sentence, imposed in a Part A case in the New London J.D., was modified, with the assistant state's attorney's consent, to convert a split sentence into a fully suspended one only a few months after Lugo testified for the state at the petitioner's criminal trial. The court rejects this inference.
Lugo was never produced as a witness in this habeas case. The New London J.D. court records demonstrate that, on September 6, 2000, Lugo received a total, effective sentence of ten years, execution suspended after four years, and five years probation. This sentence followed Lugo's guilty pleas to robbery second degree and burglary third degree. On May 24, 2001, that sentence was modified to reduce the unsuspended prison term from four years to three and one-half years. On August 4, 2003, the prosecution handling Lugo's second request for modification, Senior Assistant State's Attorney Paul Narducci, consented to a further sentence modification which resulted in a fully suspended sentence. Attorney Narducci did testify at the habeas trial.
In his August 2003 request for modification, Lugo submitted as grounds for granting his request that he had already served one-half of the prison term and wanted a chance to complete education and support his daughter. Attorney Narducci acknowledged that part of his decision not to oppose Lugo's request entailed his knowledge that Lugo had supplied law enforcement authorities in New York with information about criminal activity there and that Lugo had already testified honestly and beneficially for Connecticut in the petitioner's criminal trial. However, Attorney Narducci clearly testified that no plea agreement regarding consent to any requests for modification by Lugo existed in exchange for Lugo's testimony against the petitioner. He avowed that it was the firm policy of the New London State's Attorney's Office to eschew engaging in any such quid pro quo agreements with witnesses.
Lugo testified at the petitioner's criminal trial on June 11, 2003. Lugo recounted that he was eligible for parole in August 2003, a few months after his appearance as a witness. During cross examination, Lugo adamantly denied that the prosecutor and he agreed to any arrangement not to oppose his future request for sentence modification. Attorney Mastronardi extensively questioned Lugo on this very point.
The court finds that the petitioner has failed to prove, by a preponderance of the evidence, that any implicit agreement in exchange for testimony was formed between the prosecution and Lugo. Lugo had served, more than three years of the forty-two month prison term so that the second modification only hastened his earlier release date by a matter of months. The habeas trial was devoid of any credible evidence that the prosecutor in the petitioner's case, Assistant State's Attorney Satti, alerted his colleague, Assistant State's Attorney Narducci, concerning any such arrangement on behalf of Lugo before or during that criminal trial. The circumstance that Attorney Narducci considered Lugo's cooperation after the fact fails to warrant the inference that the petitioner wants this court to draw, viz., that an undisclosed tacit agreement was reached in order to induce Lugo to testify.
Consequently, the petitioner cannot prevail on either the second and third counts of the amended petition.
Ineffective Assistance of Trial Counsel
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra .
This standard of reasonableness is measured by prevailing, professional norms. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence. Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). Reasonable probability means a probability sufficient to undermine confidence in the verdict. DaEira v. Comm'r of Corr., 107 Conn.App. 539, 542-43, 946 A.2d 249 (2008), cert. denied, 289 Conn. 911, 957 A.2d 877 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id.
In the first count, the petitioner alleges that Attorneys Mastronardi and Beck rendered deficient legal assistance by failing to present the testimony of an alibi witness, Ramon Dejesus; by failing to pursue a third-party culpability defense adequately; by failing to request an appropriate jury instruction regarding prison informant testimony; and by failing to impeach the testimony of Alan Lane properly.
A.
As to his allegation regarding the absence of alibi witness testimony, Ramon Dejesus testified at the habeas trial. He swore that, on the day of the victim's murders, he was with the petitioner from eight o'clock in the morning until three o'clock the next morning; that neither he nor the petitioner were near the Latin Spirit Club during that period; that he related this information to investigating police officers; that he was available and willing to testify to these recollections at the petitioner's jury trial; that he, in fact, attended that trial; and that he was never asked to testify by defense counsel.
Dejesus acknowledged that he employed several aliases in the past and that he stands convicted of multiple felonies. He also stated that he was a life-long friend of the petitioner. He testified that, at the time of the criminal trial, he knew the petitioner possessed a shotgun and had been arrested for another shooting at a club in New York. He admitted that he was the petitioner's partner in the trafficking of illegal drugs, an enterprise in which both were engaged on the day of the murders of the two half-brothers. He also admitted that he never approached the petitioner's defense counsel during or after the jury trial to query why they declined to use him as a defense witness.
Attorney Mastronardi avowed at the habeas trial that he was well aware of Ramon Dejesus' putative alibi testimony. Indeed, Attorney Mastronardi attached Dejesus' written statement to a defense motion earlier in the criminal proceedings. However, Attorney Mastronardi consciously and conscientiously refrained from calling Dejesus to the stand because he regarded the risks of negative information being elicited as outweighing the benefit. Attorney Mastronardi cannot presently recall the precise factors he considered in arriving at this conclusion, but he distinctly recollected that this decision was a tactical one which he made intentionally.
No legal expert testified at the habeas hearing to impugn Attorney Mastronardi's choice to avoid calling Dejesus as a witness. As described above, if Dejesus had been utilized as an alibi witness, that event would have permitted the prosecutor to cross-examine him in several areas to undermine his credibility, cast a skeptical eye on other defense testimony and arguments, and emphasize the state's position that the petitioner's was a rival of the victims in the illicit drug trade with motive to eliminate troublesome competition and a history of doing so through violence and gunplay.
A tactical decision to refrain from utilizing a possible witness which falls within acceptable, professional standards cannot be the basis for a valid ineffective assistance claim, Stephen S. v. Comm'r of Corr., 134 Conn.App. 801, 820-21, 40 A.3d 796 (2012). A habeas court must evaluate trial counsel's performance from counsel's perspective and " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, " Ham v. Comm'r of Corr., 152 Conn.App. 212, 98 A.3d 81 (2014). Reasonably competent lawyers might disagree whether to use Dejesus' alibi testimony. Therefore, the petitioner has failed to meet his burden of proving the performance component of the Strickland standard with respect to this specification of ineffective assistance.
B.
Next, the petitioner alleges that his trial lawyers failed to pursue a third-party culpability defense sufficiently. Again, no litigation expert testified to criticize Attorney Mastronardi's performance on behalf of the petitioner. More particularly, the petitioner contends that his defense attorneys neglected to have offered the testimony of Simone Moman and Jeremiah Perez; failed to follow through on comments adduced in opening statement by the defense that such evidence would be forthcoming; and failed to cross-examine Roberto Hernandez and Jose Alvarado adequately concerning their possible involvement in the shooting of the victims.
Jeremiah Perez declined to testify, both in this habeas case and the new trial case before Judge Dooley, by asserting his constitutional rights against self-incrimination. The petitioner's criminal trial was in 2003, but Perez' written statement was procured in 2004, almost one year later. The police never interviewed Perez nor was he listed as a potential witness for the jury trial. Neither defense counsel nor the prosecution became aware of what Perez might have to say with respect to the murders.
As found earlier, Perez shared a cell with the petitioner around the time of the criminal trial. Perez suggested to his cellmate that he might possess information helpful to him. However, the petitioner spurned further conversation with Perez as outlined above. Only after the criminal case was concluded did Perez disclose the details which produced his April 2004 statement obtained by defense investigator John McNicholas.
There is simply no evidence supporting the petitioner's allegation that defense counsel breached their professional duties by failing to learn of Perez' ostensibly exculpatory information before or during the jury trial. Perez was never identified by anyone as a potential witness during the pretrial or trial stage, but that lack of identification, standing alone, is no evidence of neglect, lack of preparation, or poorly exercised legal judgment. Therefore, this court concludes that the petitioner has failed to satisfy his burden of proving the performance prong of the Strickland standard with respect to this specification of ineffective representation.
As to Simone Moman, the court heard no credible evidence that she possessed admissible evidence of third-party responsibility for the murders. She never testified at the habeas trial, and, as a result, the court cannot speculate whether she was available to testify at the criminal trial. Her putative testimony merely describes that Edward Bonilla knew of the victims' demise, appeared nervous, and had a handgun similar to one owned by one of the victims. The court discerns no support for the claim that defense counsel were deficient for failure to present this testimony, assuming that Moman was available for that purpose.
These failures of proof at the habeas trial weaken the petitioner's contention that defense counsel improperly cross-examined Roberto Hernandez and Jose Alvarado regarding the issue of third-party culpability. The court has carefully reviewed the criminal trial transcripts and determines that Attorney Mastronardi's cross-examination of these witnesses was thorough, intensive, and masterful. Counsel extensively explored the motives of Hernandez and Alvarado to want the victims killed. Once again, no legal expert criticized Attorney Mastronardi's handling of cross-examination of the state's witnesses. The court holds that this allegation of ineffective assistance also fails to meet the requirement of the Strickland test.
C.
The petitioner also asserts that defense counsel were deficient by failing to impeach the testimony of Alan Lane through Barbara Canales. At the criminal trial, Lane swore that the petitioner asked him to murder another person with whom the petitioner had a dispute in exchange for $10,000. When Lane rebuffed this solicitation the petitioner declared that he would kill the adversary himself, as he had done with the victims in this case.
Lane was the petitioner's " front man" for narcotics dealings in the Stamford/Norwalk area. Lane noted that the petitioner had a handgun which matched the caliber of the murder weapons.
Canales never testified at the habeas hearing. It is incumbent upon the petitioner to establish the ways in which defense counsel's failure to present a witness negatively affected the pertinent proceeding, Henderson v. Comm'r of Corr., 129 Conn.App. 188, 195, 19 A.3d 705 (2011). " [P]rejudice cannot be demonstrated with regard to trial counsel's failure to interview potential witnesses where petitioner fails to call those witnesses to testify at the habeas trial or offer proof that their testimony would have been favorable to him at the criminal trial, " Id. Consequently, this allegation of inadequate representation also fails.
D.
Finally, the petitioner argues that defense counsel improperly represented him by failing to submit a request to the trial judge for an instruction to the jury " regarding special credibility consideration when considering the testimony of prison informants." The court disagrees that the absence of such a defense request in 2003 resulted from attorney error.
In State v. Santiago, 48 Conn.App. 19, 708 A.2d 969 (1998), cert. denied, 245 Conn. 901, 719 A.2d 1164 (1998), our Appellate Court held that a criminal defendant was not entitled to this type of credibility instruction regarding jailhouse informants, Id., 32. That rule prevailed until our Supreme Court expressly overruled State v. Santiago, supra, in State v. Patterson, 276 Conn. 452, 471, 886 A.2d 777 (2005), two years after the petitioner's jury trial.
In State v. Patterson, supra, the Supreme Court acknowledged that the general rule in that criminal defendants are " not entitled to an instruction singling out any of the state's witnesses and highlighting his or her possible motive for testifying falsely, " Id., 467. Until Patterson was decided, only two exceptions to this general principle were recognized, namely regarding the testimony of a complaining witness or accomplices, Id.
In Patterson, the defendant asked the Supreme Court " to create a third exception . . . for informants who . . . provide testimony for the state in return for consideration from the state, " supra, 468-69, (emphasis added). Our Supreme Court acceded to this request and determined that such an instruction, when requested, was warranted, Id., 468-71.
However, because the newly-created rule was not constitutionally required, the Appellate Court has held that its application " should not be given retroactive effect, " State v. Joseph, 110 Conn.App. 454, 462-63, 955 A.2d 124 (2008). Nor may an appellant seek retroactive application on appeal under Golding or plain error reviews, Id.
One cannot legitimately fault defense counsel for failing to request a jury instruction, concerning credibility only, which at the time was declared by appellate authority to be unwarranted by virtue of State v. Santiago, supra . A lack of clairvoyance to anticipate a future reversal of established precedent does not equate to incompetence, Johnson v. Commissioner, 218 Conn. 403, 427, 589 A.2d 1214 (1991). To hold otherwise would violate the admonition against scrutinizing a lawyer's representation with the benefit of hindsight, Id.
A criminal defendant is entitled to effective assistance which is measured by the level of skill and legal knowledge exercised by one of ordinary competence and acumen, State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167 (1976); cert. denied, 425 U.S. 962, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976). Thus, counsel's efforts are assessed by comparison with those typically shown through reasonable competent lawyering in that field of law rather than in contrast with the most gifted legal performance possible, Quintana v. Warden, 220 Conn. 1, 5-6, 593 A.2d 964 (1991).
The court determines that, given the principles espoused by controlling precedent in State v. Santiago, supra, a request for a special credibility instruction regarding prison informants would have required the petitioner's lawyers to forecast a complete reversal of the state of the law then existing by the Supreme Court two years in the future. The petitioner proffered no expert witness who opined that such foresight was required in order to provide effective legal assistance at the time of the petitioner's jury trial. The court concludes that the petitioner has failed to meet either prong of the Strickland test as to this allegation of ineffective assistance.
For these reasons, the amended petition for habeas corpus relief is denied.