Opinion
CV134005558S
05-23-2016
Jamie R. Gomez (#217018) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. Vernon D. Oliver, J.
The petitioner, Jamie Gomez, initiated this petition for a writ of habeas corpus, claiming that his underlying criminal and habeas counsel provided him ineffective legal representation. He further claims Brady and due process violations. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The respondent denies the claims.
The court finds the issues for the RESPONDENT and DENIES the petition.
I
Procedural History
On August 29, 1996, in the criminal matter State v. Jamie Gomez, CR96-0230289, in the New London Judicial District, the petitioner and his co-defendants were convicted of murder in violation of Connecticut General Statutes § 53a-54a(a) and conspiracy to commit murder in violation of statutes § § 53a-48(a) and 53a-54a(a). The petitioner was represented by attorney John Cocheo, now deceased.
On January 7, 1997, the trial court, Parker, J., imposed a total effective sentence of fifty years to serve. The petitioner and his co-defendants appealed from the aforementioned judgment directly to the Connecticut Supreme Court which affirmed the judgments in a consolidated appeal. State v. Booth, 250 Conn. 611, 737 A.2d 404 (1999). That court made the following findings relevant to the disposition of the instant matter:
The jury reasonably could have found the following facts. James " Tiny" Smith and Darrell Wattley fought at a party on July 4, 1995. Wattley sliced Smith's throat with a box cutter, wounding him superficially. On the afternoon of July 13, 1995, Brown and Gomez picked Smith up at the house of Smith's mother, and drove him to Booth's apartment at 93 State Pier Road in New London. When the three men arrived at Booth's apartment, Booth told them that he had asked Angeline Valentin, who lived in the same building, to call Wattley over to the building so that Wattley and Smith could fight. Booth, Brown, Gomez and Smith watched television while they waited for Wattley to arrive. During their wait, and while Brown was rummaging through a grey knapsack, Booth asked Brown whether he " [had worn] gloves when he loaded it." Booth also had a knife in his hand. When Smith asked Booth why he needed the knife, Booth replied: " [D]on't worry about it, we are just going to fight him."
When Valentin called to say that Wattley was on his way, the four men left the building and went outside. Gomez and Brown went to the north side of the building while Smith and Booth went to the south side and hid behind a bush. While they were waiting, Booth was talking on a cellular telephone to either Brown or Gomez. After approximately fifteen minutes, a car arrived and Wattley got out. Wattley walked toward the north end of the building, where Brown and Gomez were waiting. Smith and Booth then entered the building on the south side and began to ascend the stairs. When Smith and Booth reached the third floor, where Valentin's apartment was located, they heard gunshots below. Smith and Booth then ran to exit the building. As they descended the stairs, they saw Wattley lying face down in the second floor hallway with blood everywhere. Booth then stabbed Wattley a couple of times before Smith and Booth fled the building.
The four men ran to a red Mitsubishi, which was parked on State Pier Road, east of the building. This car was owned by Gomez' girlfriend, Dawn Waterson. Gomez sat in the driver's seat, and Brown, Smith and Booth sat in the passenger seats. As they drove away, Brown said " I robbed that nigger too." Brown had a knife in his lap, which he threw out of the window while they were driving. Gomez drove Waterson's car across town and parked it behind a mall. The four men walked through a cemetery before splitting up. In the cemetery, Booth told them that, if questioned, he and Brown would say that they had been together. In addition, Booth told Smith and Gomez to come up with an alibi. The four men then separated.
A few hours after the murder, Booth approached Valentin in the parking lot of 93 State Pier Road. Booth told her that they shot " him." Booth also told Valentin that he knew that she would not have lured Wattley to the building if she had known that they intended to murder him. Booth also encountered Detective David Gigliotti of the New London police department in the parking lot that night. Gigliotti asked Booth if he knew the victim's identity. Booth responded that he would do a head check to determine if the victim was one of " his people, " meaning a member of the 20 Love street gang.
The next day, Booth, Brown, Gomez and Smith went to the house of Gomez' mother to discuss their alibis in more detail. In the presence of Brown and Booth, Smith and Gomez agreed to say that they were playing video games most of the night and then went to Lucky's bar at approximately 10 p.m.
A few days after Wattley's murder, police questioned Valentin concerning her knowledge of the crime. After the interview, the police dropped Valentin off at 93 State Pier Road. Booth was in the parking lot of the apartment building at this time. Booth approached Valentin and asked her if she had told the police anything about Wattley's murder. When Valentin answered that she had not, Booth warned her to " keep it that way."
On July 18, 1995, Booth met with Matthew Burgard, a reporter for the New London Day. Booth told Burgard that he was concerned that the news stories about Wattley's murder implied that it was gang related. As president of the New London chapter of 20 Love, Booth wanted to assure Burgard that Wattley's death was not gang related; Booth stated that " none of us [was] even around when [the murder] happened."
On July 24, 1995, when Gomez was questioned by police, he claimed that, on the night of July 13, 1995, he and his cousin, Smith, played video games and drank beer at Waterson's house. Gomez further claimed that, at approximately 10 p.m., he and Smith got a ride to Lucky's bar from Anita Torres, Monique Gilbert and Kristin Cerreto. There was evidence, however, that Smith and Gomez did not arrive at Lucky's bar until after 11 p.m.State v. Booth, supra, 250 Conn. 614-17. Regarding the strength of the prosecuting authority's evidence against the petitioner, the Court found the following:
Gomez also argues that the state produced insufficient evidence at trial to sustain his convictions. According to Gomez, his murder conviction must be overturned because there was insufficient evidence from which the jury could have concluded beyond a reasonable doubt that he possessed an intent to kill Wattley. In addition, Gomez argues that his conspiracy conviction must be overturned because there was insufficient evidence to establish that he had both the intent to kill and knowledge of the goals of the conspiracy. We disagree.
" In reviewing [a] sufficiency [of the evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt . . . Moreover, [t]his court will construe the evidence in the light most favorable to sustaining the trial court's [judgment] and will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom." (Citations omitted; internal quotation marks omitted.) State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996); see also State v. Greenfield, supra, 228 Conn. at 76, 634 A.2d 879. " We do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record . . . Rather, we must defer to the jury's assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." (Citation omitted; internal quotation marks omitted.) State v. Tomasko, supra, 238 Conn. at 258, 681 A.2d 922. Moreover, " [i]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132-33, 646 A.2d 169 (1994).
" In order to be convicted under our murder statute, the defendant must possess the specific intent to cause the death of the victim . . . To act intentionally, the defendant must have had the conscious objective to cause the death of the victim." State v. Stanley . 223 Conn. 674, 678, 613 A.2d 788 (1992); accord State v. Greenfield, supra, 228 Conn. at 76, 634 A.2d 879. " To be guilty as an accessory one must share the criminal intent and community of unlawful purpose with the perpetrator of the crime and one must knowingly and wilfully assist the perpetrator in the acts which prepare for, facilitate or consummate it." (Internal quotation marks omitted.) State v. Diaz, 237 Conn. 518, 543, 679 A.2d 902 (1996); see General Statutes § 53a-8. Thus, intent is a necessary element to the crime of murder whether the defendant is the principal or merely an accessory.
Gomez argues that the state failed to produce sufficient evidence that he had the intent to cause death. Because there was no direct evidence that Gomez, himself, actually shot or stabbed Wattley, Gomez argues that, at most, he could be found guilty under an accessory theory of liability. Gomez also argues that the jury could have concluded that he was unaware of the fact that Brown and Booth were bringing weapons to the meeting with Wattley and that Gomez did not even know that Wattley would be killed. Because intent to cause death is a necessary element of accessory liability, Gomez contends that his murder conviction must be overturned. We disagree.
" Intent is generally proven by circumstantial evidence because direct evidence of the accused's state of mind is rarely available . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom." (Citations omitted; internal quotation marks omitted.) State v. Tomasko, supra, 238 Conn. at 257, 681 A.2d 922. " Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one." (Internal quotation marks omitted.) State v. DeJesus, supra, 236 Conn. at 197, 672 A.2d 488.
On the basis of the evidence presented and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that Gomez had the intent to cause Wattley's death. Evidence adduced at trial established that Gomez was present in Booth's apartment prior to the murder. There was also evidence that Brown had a loaded gun when Gomez, Brown and Booth were at Booth's apartment, and that, when they left the apartment together to await Wattley's arrival, Booth took along a knife. Smith testified that Brown and Gomez, who were connected by cellular telephone to Booth, positioned themselves at the north end of the building. When Wattley arrived at the scene, he had entered the building at the north end. Shortly thereafter, Smith heard the gunshots and saw Wattley lying in the hallway below. According to Smith, Gomez fled the building with the others and drove the getaway car that had been parked nearby. From this evidence, the jury reasonably could have inferred that Gomez knew about the weapons and the intention to kill Wattley. Driving the getaway car and aiding principal perpetrators to escape the crime scene also indicate an intent that the crime should occur. See State v. Findlay, supra, 198 Conn. at 333-34, 502 A.2d 921. In addition, there was testimony undermining Gomez' statement to the police, and the jury reasonably could have concluded that Gomez lied to the police to cover up his part in the crime. See, e.g., State v. McIntyre, supra, 242 Conn. at 326-27, 699 A.2d 911 (evidence of similar alibis aids factfinder in determining whether codefendants committed crime and then tried to conceal it); State v. Weinberg, 215 Conn. 231, 255, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S.Ct. 430, 112 L.Ed.2d 413 (1990) (" [t]he state of mind which is characterized as guilty consciousness or consciousness of guilt is strong evidence that the person is indeed guilty" [internal quotation marks omitted]). On the basis of the evidence presented and the reasonable inferences drawn therefrom, the jury reasonably could have found that Gomez possessed the intent required for a conviction of murder.
We also conclude that there was sufficient evidence for the jury to convict Gomez of conspiracy to commit murder. " To establish the crime of conspiracy under § 53a-48 . . . it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed . . . Further, the prosecution must show both that the conspirators intended to agree and that they intended to commit the elements of the underlying offense." (Citation omitted; internal quotation marks omitted.) State v. Lewis, 220 Conn. 602, 606-07, 600 A.2d 1330 (1991).
Gomez argues that his conspiracy conviction must be overturned because there was insufficient evidence to prove that he had the knowledge and intent to cause Wattley's death. We disagree. The jury reasonably could have inferred from the evidence that Gomez knew about the plan to murder Wattley and that he possessed the intent to kill as well. The jury could have found that Gomez was in Booth's apartment when Booth asked Brown if he wore gloves when he " loaded it, " that Gomez then accompanied the others to meet Wattley, coordinated their movements by cellular telephone before the shooting and stabbing, and drove the others across town fleeing the murder scene. There was sufficient evidence establishing that Gomez knew about the plan to murder Wattley and participated in it. See State v. Torres, 242 Conn. 485, 499, 698 A.2d 898 (1997) (gang membership, attendance at gang meetings, presence at scene with others and voice communication over radio sufficient evidence that defendant knew about and participated in conspiracy to commit murder). The jury also could have found that Gomez' statement to the police was false, and that he had lied to cover up his own participation in the conspiracy. On the basis of the evidence and the reasonable inferences drawn therefrom, we conclude that there was sufficient evidence to support Gomez' conviction of conspiracy to commit murder.
The concoction of alibis is additional evidence of efforts to conceal the crime. Smith testified that, after the four men drove from the crime scene and were walking through a cemetery, Booth told the others that, if questioned, Booth and Brown would say that they had been together, and Booth told Smith and Gomez to come up with an alibi. Smith further testified that, the day after the murder, the four men went to the house of Gomez' mother to discuss their alibis. Smith testified that, in the presence of Booth and Brown, Smith and Gomez agreed to say that they were playing video games most of the night and then went to Lucky's bar at approximately 10 p.m. As we stated in part II of this opinion, " a subsequent declaration of a conspirator may be admissible against any co-conspirator . . . if the conspirators were still concerned with the concealment of their criminal conduct or their identity . . ." 3 F. Wharton, supra, § 609, pp. 739-40. We conclude that there was evidence that the conspiracy was still ongoing when Booth made the second statement to Valentin. Thus, the admission of this statement against Gomez was in accordance with the requirement that the conspiracy be ongoing when the hearsay statement is made. See State v. Couture, supra, 218 Conn. at 322, 589 A.2d 343.State v. Booth, supra, 250 Conn. 650-63.
On September 18, 2000, the petitioner filed his petition for a writ of habeas corpus assigned docket number CV00-0801816. Attorney Robert McKay was appointed to represent the petitioner. On February 21, 2003, after trial, the habeas court, Rittenband, J., denied the petition. In so doing, that court made the following findings.
" This is a petition for habeas corpus brought by a Revised Amended Petition dated November 26, 2002. A hearing on said petition was held before this Court on December 3 and December 6, 2002. The revised petition has been brought in two counts, the First Count claiming Ineffective Assistance of Trial Counsel and the Second Count claiming Actual Innocence . . .
1. Was Attorney Cocheo Ineffective as Defined Under Strickland, Supra ?
" First, it should be noted that this Court heard from Attorney Sturman, Attorney Cocheo and the Petitioner's girlfriend, Dawn Waterson, who had known the Petitioner for eighteen years, had been close to him for thirteen years and had two children with him.
" The Court bases much of its decision on the credibility of the witnesses, namely their demeanor on the witness stand, their ability to recall certain events, the consistency or inconsistency of their statements or testimony, the manner in which they respond to questions on cross examination as well as direct examination, the conflict of their testimony with other testimony and the other evidence in the case, including the exhibits, and the overall reliability of their testimony. Based upon the totality of the evidence, the Court makes the following findings:
(a) Attorney Cocheo properly opposed a motion for joinder of the cases of the three defendants and properly moved to sever the trials of the three defendants.
(b) Attorney Cocheo did ask many questions on cross examination of the witnesses. However, several questions were asked by other counsel, both Sturman and Donovan, who preceded him in the line of questioning. There was very little left for Cocheo to do without being repetitious.
(c) Petitioner claims he told Cocheo he wanted to testify. Cocheo said he should not because his record which was Assault in the Second Degree would come out and he might incriminate himself, Cocheo apparently not being confident that the Petitioner would limit his testimony. He was also concerned that Petitioner had told the police that he was not even present where the killing took place, and if the Petitioner were cross examined, this lie could help to impeach his credibility. This advice given by Cocheo was good advice. However, there was nothing to prevent the Petitioner from testifying. He could refuse the advice given by his counsel and testify if he wished. In this Court's opinion, his credibility would have seriously been undermined, and he could not have added anything. He had no alibi, he was present as indicated, and if he then told the truth, which he says he did to this Court, he would have had to admit that he was there, was a lookout and drove the getaway car. This would have tended to make the jury believe that he was an accessory to the crime.
(d) Cocheo did cross examine most of the witnesses after the cross examination by Donovan and Sturman.
(e) The attorneys for the other defendants would not let their clients talk to Cocheo's investigator.
(f) Attorney Sturman, who testified at the habeas trial, thought that the Petitioner should have testified, but he could not say Attorney Cocheo was deficient in his performance. The Court disagrees with Attorney Sturman, and for the reasons stated above, agrees with Attorney Cocheo. To advise the Petitioner not to testify was, in this Court's opinion, proper advice, but even if it had not been, it was a tactical decision to give such advice to the Petitioner, and Cocheo cannot be faulted in hindsight for making such a tactical decision.
(g) As to any other witnesses Cocheo may have called to testify, it is purely speculative as to whether what they would have said would have helped the Petitioner.
(h) Cocheo urged the Petitioner to turn State's evidence and testify against Booth and Brown. Petitioner rejected this suggestion, apparently because Brown and Booth were his cousins and also he may have been concerned about retribution if he did so testify. It was good advice from Attorney Cocheo because if he had testified for the State, he probably would have gotten a favorable plea bargain as did Smith for his testifying. Loyalty is a commendable attribute, but in this case, it hurt the Petitioner.
" Accordingly, this Court cannot conclude, from the evidence before it, that Attorney Cocheo was deficient in his performance. This Court cannot conclude that counsel made errors so serious that counsel was not functioning as 'counsel' guaranteed by the Sixth Amendment.
2. Would the Result Have Been Different If It Were Not For Counsel's Performance?
" The short answer to this is " no." First, this Court has not found Attorney Cocheo to have been ineffective. Secondly, there is nothing presented to this Court that indicates by a preponderance of the evidence that the result of the trial would have been different.
3. Petitioner's Claim of Actual Innocence
" Actual innocence must be proven to the habeas court by the higher standard of clear and convincing evidence. Based upon the Petitioner's own testimony, the elements of accessory were clearly proven as stated above. He was there, and he drove Brown and Smith to the location of the killing. He acted as a lookout and was well aware that either Booth or Smith had a butcher knife, and, therefore, knew that the incident was not going to be merely a beating of the victim. He then drove the getaway car with the perpetrators of the crime knowing that the victim had been shot and stabbed. The Court cannot find by clear and convincing evidence, based upon the above findings, that the Petitioner is actually innocent of the crime of murder.
For the foregoing reasons, the habeas petition is denied." Gomez v. Warden, CV08018165, 2003 WL 955126, at *1 (Conn.Super. Feb. 21, 2003).
On March 31, 2003, the petitioner appealed from the aforementioned judgment. On December 2, 2003, the Appellate Court affirmed, per curiam, the judgment of the habeas court. Gomez v. Commissioner of Correction, 80 Conn.App. 906, 836 A.2d 1279, cert. denied, 267 Conn. 917, 841 A.2d 219 (2003).
On May 16, 2013, the petitioner filed another pro se writ, giving rise to the instant matter.
Prior to the start of evidence, the petitioner withdrew claim four of his amended petition dated November 15, 2015. The remaining claims assert the following:
a. The prosecuting authority failed to disclose material exculpatory evidence of an offer to co-defendants Smith and Valentin that, in exchange for their trial testimony, the prosecuting authority specifically indicated that it would reduce their bonds and dispose of their criminal matters in a favorable manner;
b. The prosecuting authority failed to correct the false testimony of Smith and Valentin that they had not been offered consideration by the prosecuting authority in exchange for their testimony at the hearing in probable cause and at the underlying trial;
c. That underlying counsel was deficient in his cross examination of codefendants Smith and Valentin; and
d. That " petitioner's habeas counsel's performance was deficient because he failed to adequately raise claims one through four of this amended petition . . ."
At the habeas trial, the petitioner presented the testimony of attorney Jeremiah Donovan, trial counsel for co-defendant Daniel Brown, and Bruce Sturman, trial counsel for co-defendant Anthony Booth. Noteworthy among those not called as witnesses were: the disclosed legal expert, prior habeas counsel, James Smith and Angeline Valentin.
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. 687. It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the " counsel" guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial. Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).
Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).
When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, 466 U.S. 689. The United States Supreme Court explained:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.(Citation omitted; internal quotation marks omitted.) Id., 689.
Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. 686.
A. Underlying Trial Counsel/Prior Habeas Counsel
The petitioner asserts that prior habeas counsel was deficient in not asserting the three other remaining claims at the prior habeas trial. This claim is unavailing.
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. 394.
Therefore, in order to set forth a prima facie case of ineffective assistance of habeas counsel on the ground of ineffective assistance of trial counsel, the petitioner must also set forth a prima facie case of ineffective assistance of trial counsel.
On the merits, the claims asserted in the instant petition are not so compelling, and their absence from the prior habeas trial not so glaring, so as to rebut the presumption of competent representation. In addition to the lack of expert testimony supporting the conclusion that either attorney Cocheo or attorney McKay were deficient in their respective representations of the petitioner, a review of the record compels the following findings:
a) The petitioner has failed to demonstrate that underlying trial counsel (Cocheo) was unaware of the existence of an agreement between Smith and Valentin and the prosecuting authority to bring their cooperation to the attention of the judicial authority post-trial. The evidence demonstrated that at least one other defense attorney in the consolidated trial was made aware of the agreement;
b) The petitioner has failed to demonstrate that the underlying trial testimony of Smith and Valentin was " false" as suggested by the petitioner, as opposed to, for example, their uncertainty as to the likely post-trial sentencing scenario. The nature and circumstances of Smith and Valentin's " agreements" were thoroughly explored and dissected on both direct and cross examination. There is no reasonable probability that the jury was misled in this regard;
c) Nothing about the nature of the agreements or their disclosure was violative of Brady or Giglio; and
d) The petitioner has failed to demonstrate, as was the case in the first habeas trial, that attorney Cocheo was deficient in any regard, including cross examining Smith and Valentin.
In the instant matter, there was no testimony from attorney McKay describing his representation or explaining his performance, " [c]onsequently, the court, in ruling on the petition, did not have the benefit of counsel's explanation, if any, for counsel's failure [to raise certain claims] . . . A habeas petitioner's failure to present trial counsel's testimony as to the strategy employed at a petitioner's criminal trial hampers both the court at the habeas trial and the reviewing court in their assessments of a trial strategy . . ." [T]rial counsel's testimony is not necessary to our determination that a particular decision might be considered sound trial strategy." Bullock v. Whitley, 53 F.3d 697, 701 (5th Cir. 1995). Lacking the ability to determine directly the reasons for trial counsel's actions, courts must examine all other available evidence from the trial record in order to determine whether the conduct complained of might be considered sound trial strategy . . . Although a reviewing court should adhere to the strong presumption that trial counsel's strategic decisions are reasonable until the habeas petitioner has shown otherwise . . . it should not speculate as to trial counsel's reasons for making such decisions . . . Instead, the reviewing court may look to the record of the criminal trial as circumstantial evidence of trial counsel's strategy . . ." Franko v. Commissioner of Correction, 165 Conn.App. 505, (2016).
The courts of this state have also held that " [i]t is not the responsibility of the trial judge, without some specific request from a petitioner, to search a record, often, in a habeas case, involving hundreds of pages of transcript, in order to find some basis for relief for a petitioner . . . The responsibility of a habeas court, in confronting an often voluminous trial court record, is to respond to those claims fairly advanced by the petitioner. The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration." (Citation omitted.) Solek v. Commissioner of Correction, 107 Conn.App. 473, 480-81, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).
In the instant matter, given the failure of the petitioner to offer testimony from prior habeas counsel, the lack of analysis of his performance either verbally or in writing, and upon review of the available record, the petitioner has failed to overcome the rebuttable presumption that counsel's " failure" to raise certain claims (he did, in fact, raise the cross examination claim) was a strategic decision in the exercise of reasonably competent representation. " [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 . . ." Burgos-Torres v. Comm'r of Corr., 142 Conn.App. 627, 639, 64 A.3d 1259, cert. denied, 309 Conn. 909, 68 A.3d 663 (2013).
III
Conclusion
For the foregoing reasons, the petition is denied. Judgment shall enter for the respondent.