Opinion
CV144006773S
09-20-2018
Timothy PETTY (Inmate #88431) v. WARDEN
UNPUBLISHED OPINION
OPINION
Kwak, J.
The petitioner filed a pro se petition for a writ of habeas corpus on November 6, 2014. The pro se petition was amended three times by assigned counsel, with the third amended petition raising claims in two counts: first, ineffective assistance of prior habeas counsel, Attorney Christopher M. Neary; and second, actual innocence. The respondent’s amended return denies the petitioner’s claims that he received ineffective assistance by habeas counsel and asserts that the claim in count two should be dismissed because it fails to state a claim upon which relief can be granted. The petitioner filed a reply that is responsive to the return.
The parties appeared before the court on May 31, 2018, for a trial on the merits. The petitioner entered documents, mostly consisting of transcripts, police reports, and witness statements into evidence. Additionally, the court received testimony from the petitioner; Todd A. Edgington, his former trial counsel; Carolyn Baker, a witness to one of the underlying offenses; and Christopher M. Neary, his former habeas counsel. The parties made closing arguments in lieu of filing post-trial briefs.
Based on its review of the documentary evidence and testimony presented, and for the reasons articulated more fully below, the petition for a writ of habeas corpus is denied.
PRIOR PROCEEDINGS/PROCEDURAL HISTORY
The petitioner was the defendant in four criminal cases in the judicial district of New Britain. On November 1, 2004, the petitioner pleaded guilty pursuant to the Alford doctrine to one count robbery in the first degree in violation of General Statutes § 53a-134(a)(4) in each of the four cases. The court, Handy, J., canvassed the petitioner and accepted the pleas after finding that they were voluntary, made with the assistance of competent and effective assistance of counsel, and supported by factual bases for the pleas. The court ordered a presentence investigation (PSI) report and continued the matter for sentencing. On December 20, 2004, the court, Alexander, J., sentenced the petitioner in accordance with the plea agreement to a total effective sentence of twenty-two years of incarceration.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, L.Ed.2d 162 (1970). "Under North Carolina v. Alford ... a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial ... A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless ..." State v. Wheatland, 93 Conn.App. 232, 234 n.1, 888 A.2d 1098, cert. denied, 277 Conn . 919, 895 A.2d 793 (2006).
The docket numbers for the four criminal cases are: (1) State v. Petty, HHB-CR02-0205682-T; (2) State v. Petty, HHB-CR02-0205703-T; (3) State v. Petty, HHB-CR02-0206158; and State v. Petty, HHB-CR03-0567576-O.
The prosecutor provided the following factual bases at the time of the petitioner’s guilty pleas:
On the Newington robbery which is docket number 5682, this occurred on October 20, 2002 in the Town of Newington at the Country Package Store on Hartford Avenue. This defendant and the co-defendant, Mr. Williams, entered into the package store with an intent to rob the store. Mr. Williams was armed with what appeared to be a handgun; that Mr. Williams pointed the handgun at the attendant, ordered them to get- ordered them to get down and to open the cash register. This defendant was heard on the video shouting out that the attendants should be shot if they did not open the register; that the victim did open two registers. The co-defendant took monies out of the cash register. This defendant took a number of lottery tickets and the two of them left the store together, got into a vehicle and drove away.
Under Docket No. CR02-0206158, this was a robbery in the City of New Britain on October 14, 2002 at the New Britain Wine and Liquor. Again, this defendant and Mr. Williams ... entered into the New Britain Wine and Liquor store with the intent to commit a robbery. Mr. Williams held a handgun; that he walked around, that is, Mr. Williams walked around the counter, pulled out a handgun and put it to the head of the attendant demanding money. The attendant was ordered to the ground; that this defendant reached into the cash register, removed approximately $700 from the cash register; then this defendant and Mr. Williams then left the store together and he drove away.
And in docket number that ends in 5703, this occurred on October 22, ‘02 in the City of New Britain at Christina’s Package Store. Again, this defendant and Mr. Williams entered into the package store with the intent of committing a robbery; that the co-defendant had a handgun; that the co-defendant pulled out the handgun, pointed it at the female attendant, ordered her to open the cash register. This defendant reached into the cash register and removed a number of twenty dollar bills. The attendant then gave this defendant additional monies from the cash register; that this defendant and Mr. William, Jerome Williams, then left the store together and got into a vehicle and drove away.
And the fourth robbery, ... which is 5675760, this occurred on October 12, 2002 in the City of West Hartford at the Cumberland Farms. Again, this defendant and Jerome Williams entered into the Cumberland Farms with the intent to commit a robbery. Jerome Williams pulled out a handgun and took from the cash register approximately $300; that he then left the store with that. This defendant was present at the beginning of the robbery, had engaged the attendant in conversation; that the two then left, with this defendant leaving during the course of the robbery and then Mr. Williams and Mr. Petty got into the vehicle and drove away together.
Petitioner’s Exhibit 1A (Transcript, November 1, 2004), pp. 10-13.
The petitioner previously sought habeas corpus relief. In Petty v. Warden, docket number CV05-4000765-S, judicial district of Tolland, the petitioner in an amended petition alleged that his trial counsel, Attorney Todd A. Edgington, rendered ineffective assistance of counsel on various grounds asserted in two counts. Count one of the prior amended petition focused on failures to investigate; however, count two focused on trial counsel’s failure to properly pursue a motion to sever the four cases, as well as the petitioner’s purported physical disabilities and trial counsel’s failure to use them as a defense to the charges. The matter proceeded to trial, where the petitioner presented the testimony of a single witness, Attorney Edgington. The habeas court, Fuger, J., denied the claims for the reasons articulated in an oral ruling. The petitioner appealed from the denial of the petition for certification to appeal. In Petty v. Commissioner of Correction, 125 Conn.App. 185, 7 A.3d 411 (2010) (per curiam), cert. denied, 300 Conn. 903, 12 A.3d 573 (2011), the Appellate Court dismissed the appeal.
The petitioner filed a second habeas corpus petition in 2010. Thereafter, in 2014, the petitioner filed the present petition, his third. On March 6, 2015, the petitioner withdrew the second petition and eventually proceeded to trial on the third petition.
DISCUSSION
1. Claim One- Ineffective Assistance of Habeas Counsel
The petitioner first alleges that his prior habeas counsel, Attorney Christopher Neary, rendered ineffective assistance of counsel. The petitioner alleges the following ways in which Neary performed deficiently, in that he failed to: (A) raise or adequately raise a claim that Edgington failed to properly investigate the fingerprint evidence and/or adequately advise the petitioner of the effect that evidence would have at trial; (B) raise or adequately raise a claim that Edgington failed to properly investigate surveillance video evidence and/or adequately advise the petitioner of the effect that evidence would have at trial; (C) raise or adequately raise a claim that Edgington failed to properly investigate the petitioner’s hospital/medical treatment records and/or adequately advise the petitioner of the effect that evidence would have at trial; (D) failed to raise or adequately raise a claim that Edgington failed to properly investigate the alleged eye witnesses and/or adequately advise the petitioner of the effect that evidence would have at trial; and (E) raise or adequately raise a claim that Edgington failed to properly investigate the photo identification techniques used by police and/or adequately advise the petitioner of the effect that evidence would have at trial.
The respondent’s return asserted as a defense to the claim in count one that the petitioner should be time barred and that the petitioner failed to establish good cause for delay in filing the petition pursuant to General Statutes § 52-470(d) and (e). After a hearing on the respondent’s motion to dismiss, the court concluded that the petitioner had shown good cause for delay and denied the motion to dismiss count one.
a. Ineffective Assistance of Habeas Counsel Standard
" ‘[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland [v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] 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 one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial ...’ Harris v. Commissioner of Correction, 108 Conn.App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992) a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice: he must ‘prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective.’ (Emphasis added.) Id., 842; see also Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002)." Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 390-91, 966 A.2d 780 (2009).
"[I]n order to determine whether the petitioner has demonstrated ineffective assistance of counsel [when the conviction resulted from a guilty plea], [courts] apply the two-part test annunciated by the United States Supreme Court in Strickland and Hill ... In Strickland, which applies to claims of ineffective assistance during criminal proceedings generally, the United States Supreme Court determined that the claim must be supported by evidence establishing 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. Strickland v. Washington, supra, 466 U.S. 688 ... Under the test in Hill, in which the United States Supreme Court modified the prejudice standard of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel’s errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, [ 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ] ...
"To satisfy the performance prong under Strickland-Hill, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases ... The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ... Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance ...
"To satisfy the prejudice prong [under Strickland-Hill ], the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial ..." (Citations omitted; internal quotation marks omitted.) Clinton S. v. Commissioner of Correction, 174 Conn.App. 821, 827-28, 167 A.3d 389, cert. denied, 327 Conn. 927, 171 A.3d 59 (2017).
The Strickland /Hill test necessitates, therefore, that the petitioner first prove deficient performance by counsel and then that such deficient performance caused prejudice. Failure to prove deficient performance inherently means no prejudice, as it is the deficient performance that must prejudice the defense or negatively affect the outcome. Strickland v. Washington, supra, 466 U.S. 687. A petitioner’s inability or failure to prove prejudice inherently means that the petitioner has failed to prove ineffective assistance, as both prongs must be proven. Because a petitioner must prove both prongs, it is well established that a habeas court may deny ineffective assistance claims if a petitioner fails to prove either prong. See, e.g., Thompson v. Commissioner of Correction, 131 Conn.App. 671, 691, 27 A.3d 86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011) ("Because both prongs ... must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong"); King v. Commissioner of Correction, 73 Conn.App. 600, 603, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003); Denby v. Commissioner of Correction, 66 Conn.App. 809, 813, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002).
b. Failures to Properly Investigate
The amended petition first alleges that Attorney Neary failed to properly investigate and raise claims in the first habeas premised on fingerprint evidence, surveillance video evidence, the petitioner’s hospital/medical treatment records, eye witnesses, and photo identification techniques. The petitioner bears the burden of proving these allegations. See, e.g., Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001) ("The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner"); Burke v. Commissioner of Correction, 90 Conn.App. 370, 378, 877 A.2d 885, cert. denied, 275 Conn. 926, 883 A.2d 1241 (2005) ("Mere conjecture and speculation are not enough to support a showing of prejudice").
Attorney Edgington represented the petitioner in all four cases. The petitioner’s potential maximum exposure for all charges exceeded one hundred years if he were found to be a persistent felony offender. Edgington had prepared the cases for trial because the petitioner did not want to plead guilty. Jury selection was completed and the petitioner had the option of proceeding with the trial or pleading to a negotiated global resolution of all four cases. The petitioner opted to plead guilty under the Alford doctrine.
The Country Liquor Store charges were severed from the other three cases. Edgington was concerned that a trial on that single case, in which the petitioner had a significant sentence exposure of about eighty years, would likely result in a conviction and longer sentence. The petitioner would then have to still resolve the three other cases. A global resolution of all four cases with a negotiated sentence was clearly in the petitioner’s interest.
Edgington testified that he reviewed the Country Liquor Store video, which was in high definition and extremely clear. The quality of that video, according to Edgington, made it the strongest of the four cases. The video, in addition to clearly showing the petitioner’s face, also clearly shows him placing his hand on the counter and on an envelope. Edgington reviewed the other video recordings, which did not clearly show the petitioner’s identity, as well as other evidence such as the fingerprints. Edgington testified that he and his investigator played back the video of the Country Liquor Store robbery to the petitioner on the day he pleaded guilty. The video apparently shows the petitioner placing his hand on the counter.
The surveillance videos from the four robberies were not entered into evidence in the present matter.
Although fingerprints were recovered from the Country Liquor Store counter and envelope, it was not until after an anonymous tip that a fingerprint database search in the Automated Fingerprint Identification System (AFIS) resulted in the petitioner’s identification as a source of the prints. The petitioner’s arrest was pursuant to a warrant obtained after the AFIS database search identified the petitioner’s print as a partial match. A detective’s fingerprint, however, was also on the envelope. Although there were opportunities for the defense to attack the fingerprint evidence, the clarity and detail of the Country Liquor Store video would have made a successful attack of the fingerprints more a Pyrrhic victory rather than a realistic opportunity to prevail at trial. Edgington did not hire a fingerprint expert and his investigator did not talk to witnesses or the police about their identification procedures. The videos of the four robberies did not show the perpetrators walking around or limping, and there was no cane or orthopedic boot visible. Edgington testified that Carolyn Baker, an employee at the Cumberland Farms robbery location, was ninety percent sure of her identification of the petitioner. Baker picked the petitioner out of a photo lineup. Edgington noted that he informed the petitioner via a letter of his assessment of the state’s case.
Baker testified that she worked at the Cumberland Farms on the day of the robbery. As far as she could tell, the petitioner entered the store by himself and did not appear to be suspicious or nervous. Baker acknowledged that she was busy and was not paying much attention to the petitioner. After she opened the register a second man who was armed appeared and demanded money. Baker did not think that the two men were connected in any way and told the police that. Her statement in the police report does not reflect her opinion that the two men were unconnected. Petitioner’s Exhibit 2. Baker indicated that neither the police nor anyone else told her the petitioner’s name; however, she did note that the police told her that the two men were together, which she did not know. Baker on cross examination acknowledged that the police did not coerce or influence her statement and photo identification. To this day she does now know if the two men were connected. Baker emphasized that her statement to the police is correct.
Prior habeas counsel, Attorney Neary, testified about his representation of the petitioner. Neary spoke with Edgington, reviewed documents, and conducted his own investigation. While he does utilize an investigator when warranted, cases such as the petitioner’s arising from a guilty plea typically do not necessitate an investigator. The petitioner’s case, in Neary’s view, did not require the use of an investigator. Neary did not hire a fingerprint expert; however, he look at the fingerprint evidence himself. The fingerprint evidence, according to Neary, was not a positive match for the petitioner, but he also could not be excluded as the source of the print. Neary did not obtain the petitioner’s medical records. Because a habeas petition arising from a guilty plea often places the petitioner’s testimony adverse to former trial counsel’s testimony, thereby focusing the court’s determination on whether an attorney or the former client is more credible, Neary usually advises a habeas client not to testify, which allows him to focus on showing that trial counsel’s performance was deficient.
The petitioner was the final witness at the habeas trial. The petitioner acknowledged that he likely would have received a longer sentence if convicted after a trial. According to the petitioner, he was disabled prior to his arrest and was taking pain medication (Percocet) at the time of the robbery. At the time of the robberies the petitioner experienced problems with an Achilles tendon and was on disability in August 2002, when the robberies occurred. The petitioner testified that if he had known both that the fingerprint card was sent out for its first assessment just prior to the anonymous tip phone call and that a police detective’s thumb print was on the envelope, that he would have persisted in his "not guilty" plea and proceeded to trial. Even knowing of his significant sentence exposure were he to prevail in the present habeas corpus petition, the petitioner nevertheless wants to prevail in this matter in spite of the fact that he is likely to be released from incarceration in 2022. The court does not find the petitioner to be credible.
Based upon the foregoing evidence, the court concludes that the petitioner has failed to show that prior habeas counsel was ineffective for failure to properly investigate. "The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it ... [T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment." (Internal quotation marks omitted.) Morquecho v. Commissioner of Correction, 164 Conn.App. 676, 684, 138 A.3d 424 (2016). "The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." Norton v. Commissioner of Correction, 132 Conn.App. 850, 858-59, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012). " ‘In evaluating whether the petitioner had met this burden and evaluating the credibility of the petitioner’s assertions that he would have gone to trial, it was appropriate for the court to consider whether a decision to reject the plea bargain would have been rational under the circumstances. Padilla v. Kentucky, [ 559 U.S. 356, 372, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ].’ (Internal quotation marks omitted.) Flomo v. Commissioner of Correction, [ 169 Conn.App. 266, 280, 149 A.3d 185 (2016), cert. denied, 324 Conn. 906, 152 A.3d 544 (2017) ]." Duncan v. Commissioner of Correction, 171 Conn.App. 635, 663, 157 A.3d 1169, cert. denied, 325 Conn. 923, 159 A.3d 1172 (2017).
The petitioner’s evidence falls far short of this burden. The petitioner has not proven that Neary failed to raise or adequately raise claims that trial counsel was ineffective for failing to investigate or adequately advise the petitioner regarding fingerprint, surveillance video, hospital/medical records, eye witness, and photo identification evidence. The evidence presented to this court demonstrates instead that Neary and Edgington rendered performance that falls well within the bounds of reasonably competent habeas and trial counsel. Even if the court presumes that there was deficient performance, the petitioner has failed to show that he was prejudiced thereby. The petitioner in no way has persuaded this court that he would have persisted in his not guilty plea and proceeded to trial. See, e.g., Carraway v. Commissioner of Correction, 317 Conn. 594, 600 n.6, 119 A.3d 1153 (2015); see also Thiersaint v. Commissioner of Correction, 316 Conn. 89, 101, 111 A.3d 829 (2015); Saksena v. Commissioner of Correction, 145 Conn.App. 152, 156, 76 A.3d 192, cert. denied, 310 Conn. 940, 79 A.3d 892 (2013). The claims in count one, therefore, are denied.
Lastly, the petitioner’s counsel cited to a recent United States Supreme Court decision in support of his argument on how this court should assess fundamental unfairness. In Weaver v. Massachusetts, 137 S.Ct. 1899, 198 L.Ed.2d 420 (2017). Weaver involved a determination of what prejudice standard applies to a structural error raised via an ineffective assistance of counsel claim. The Supreme Court specifically noted that even a structural error does not always lead to fundamental unfairness. Id., 137 S.Ct. 1908. Weaver provides no authority or guidance on how to assess prejudice arising from the claims of deficient performance made against both trial and prior habeas counsel when there is no structural error. Prejudice here may not be presumed. See, e.g., Duncan v. Commissioner of Correction, supra, 171 Conn.App. 661-62; Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001) ("The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner"); Burke v. Commissioner of Correction, 90 Conn.App. 370, 378, 877 A.2d 885, cert. denied, 275 Conn. 926, 883 A.2d 1241 (2005) ("Mere conjecture and speculation are not enough to support a showing of prejudice").
II. Count Two- Actual Innocence
The petitioner alleges in count two that he will demonstrate by clear and convincing evidence that he is actually innocent. Furthermore, the petitioner alleges that after considering all of the evidence and inferences drawn therefrom, no reasonable fact finder would find him guilty of the crimes to which he pleaded guilty. The petitioner also avers that he will demonstrate that the evidence at the habeas trial is newly discovered, not cumulative, was not available at the time of his criminal trial, and could not have been discovered through due diligence.
According to the third amended petition, the newly discovered evidence the petitioner would present will prove his innocence in the following ways: (A) Carolyn Baker’s testimony will establish that the prosecuting authority falsely represented her version of the events as contained in police report(s) and/or arrest warrant(s); (B) Carolyn Baker’s testimony will establish that the prosecuting authority conspired to charge the petitioner with a series of criminal acts without sufficient evidence; (C) Carolyn Baker will establish that the petitioner’s co-defendant, Jerome Williams, acted alone and did not involve the petitioner in the commission of the crime; and (D) Jerome Williams will confess that he acted alone and did not involve the petitioner in the commission of the crime. The petitioner withdrew (D) at the end of the trial.
These are serious allegations against the prosecutor, an attorney admitted to the practice of law and bound by the rules of professional conduct, as is the petitioner’s attorney in the instant matter. State v. Fauci, 282 Conn. 23, 32-33, 917 A.2d 978 (2007) (A prosecutor has "unique responsibilities ... in our judicial system. A prosecutor is not only an officer of the court, like every other attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent"). The allegations go beyond merely alleging prosecutorial impropriety. Instead, they claim gross prosecutorial misconduct and, as such, should not be made lightly by petitioner’s counsel in the absence of a good faith basis. See Rules of Professional Conduct § 3.1.
a. Actual Innocence Standard
"In Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997), our Supreme Court ‘held that the proper standard for evaluating a freestanding claim of actual innocence ... is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence- both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial- he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom ... no reasonable fact finder would find the petitioner guilty of the crime.’ (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 80-81, 967 A.2d 41 (2009).
" ‘[O]ur Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence ... This court, nevertheless, has held that a claim of actual innocence must be based on newly discovered evidence. In Weinberg v. Commissioner of Correction, 112 Conn.App. 100, 119, 962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009), [the Appellate Court] stated: [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered ... This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner’s criminal trial by the exercise of due diligence.’ (Citation omitted; internal quotation marks omitted.) Sargent v. Commissioner of Correction, 121 Conn.App. 725, 734-35, 997 A.2d 609, cert. denied, 298 Conn. 903, 3 A.3d 71 (2010)." Gaston v. Commissioner of Correction, 125 Conn.App. 553, 558-59, 9 A.3d 397 (2010), cert. denied, 300 Conn. 908, 12 A.3d 1003 (2011).
b. Discussion
The evidence presented at the habeas trial has already been summarized in this court’s treatment of count one. That evidence is not newly discovered, nor is it evidence that was not reasonably available at the time of the underlying criminal case and prior habeas corpus petition. Furthermore, the petitioner has failed to present any evidence that, when viewed together with the totality of the preceding record, establishes that no reasonable fact finder would find the petitioner guilty of the four robberies. The claim in count two is wholly unsupported and denied.
CONCLUSION
Based upon the foregoing, the court concludes that the petitioner has failed to prove both that Attorney Neary was ineffective at the prior habeas trial and that Attorney Edgington was ineffective in the underlying criminal proceedings. The petitioner has also failed to present any newly discovered evidence that establishes his actual innocence. Judgment shall enter for the respondent and the petition for a writ of habeas corpus is denied.
It is so ordered.