Opinion
CV164007857
08-28-2019
Edgar TATUM v. WARDEN
UNPUBLISHED OPINION
Hon. John M. Newson
I. Procedural History
The petitioner was the defendant in the matter of State v. Edgar Tatum, CR4-161659 in the Judicial District of Waterbury, where he was charged with Murder, in violation of General Statutes § 53a-54a, and one count of Assault Second Degree, in violation of General Statutes § 53a-60(a)(2). At all relevant times during the trial portion of the matter, he was represented by Attorney Thomas McDonough. The petitioner elected to be tried by a jury, which could have reasonably found the following facts based on the evidence:
General Statutes § 53a-60 provided, in pertinent part: "(a) A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument ...".
At approximately 10:30 p.m. on February 25, 1988, Larry Parrett was shot and killed in his home in Waterbury, where he lived with his girlfriend, Tracy LeVasseur. Anthony Lombardo, who lived on the same street, was also shot and wounded at the same time and place. Earlier that evening, Lombardo had been out walking his dog when he noticed a tall black man, later identified as the defendant, knocking on the door of Parrett’s apartment. Lombardo approached the defendant, after having recognized him as someone he had seen at the apartment on other occasions. When LeVasseur opened the door from within, the defendant forced himself and Lombardo into the living room, where LeVasseur and Parrett were smoking cocaine. LeVasseur recognized the defendant as "Ron Jackson," [a known alias of the petitioner] a man from California who, along with other visitors from California, had spent a number of nights at the apartment selling drugs during the months preceding the incident. Parrett also had been involved in the sale of drugs. When the defendant and Parrett began to argue, Lombardo and LeVasseur left the room and went into the kitchen, where three other men were present. A few moments later, Lombardo returned to the living room to find the defendant pointing a gun at Parrett. Lombardo stepped between the two men, thinking that the defendant might be dissuaded from firing. The defendant nevertheless fired four shots from the gun, striking Lombardo in the shoulder and fatally wounding Parrett. That night at the Waterbury police station Lombardo was shown a photographic array from which he chose a photograph of a black man named Jay Frazer as that of the man who had shot him and Parrett. The same night LeVasseur also selected a photograph of Frazer from an array shown to her by the police. Neither array contained a photograph of the defendant. One week later, however, LeVasseur went to the Waterbury police and told them that she had identified the wrong man. A nine-person lineup was then conducted in which Frazer participated but the defendant did not. After seeing Frazer in person, LeVasseur told the police that he was definitely not the assailant. Thereafter, the police showed another photographic array to LeVasseur from which she chose the defendant’s photograph as that of the person who had shot the victim. Lombardo was subsequently shown a photographic array that included the defendant’s picture, but he declined to identify anyone, explaining that he preferred to see the individuals in person. At the probable cause hearing and at trial, both Lombardo and LeVasseur identified the defendant as the man who had shot Lombardo and Parrett.State v. Tatum, 219 Conn. 721, 723-25, 595 A.2d 322, 324-25 (1991). The jury found the petitioner guilty of murder, but failed to reach a verdict on the assault charge. On April 6, 1990, the trial court imposed a sentence of sixty years. The petitioner appealed his conviction, which was affirmed. Id. He has also filed several petitions for habeas corpus prior to the present matter, the substance of which will be discussed only to the extent they are relevant to the present decision.
The State nolled the assault charge after a mistrial was declared.
The petitioner commenced the present action on February 11, 2016. The Fifth Amended Petition, filed on January 7, 2019, originally set forth seven separate counts asserting challenges to the petitioner’s conviction, however, all but Count Four, ineffective assistance against Attorney Chris DeMarco, counsel for the petitioner’s second habeas, and Count Five, ineffective assistance against Attorney Paul Kraus, who represented the petitioner in his third habeas petition, were dismissed prior to trial. The respondent filed a Return (see footnote 3), generally denying the allegations in the petition and raising several affirmative and special defenses, to which the petitioner filed a timely Reply. The matter was tried before the Court on various dates between January 17 and April 11, 2019, after which the parties were given the opportunity to file post-trial briefs.
Although the Fifth Amended Petition (#151.00) was filed subsequent to the dates of the active Return (#128.00, July 16, 2018) and Reply (#129.00, July 19, 2018), the amendments were only to correct scrivener’s errors and did not modify the substantive allegations, so the parties agreed to allow the earlier Return and Reply to stand as the active responsive pleadings.
See, #141.00-Memorandum of Decision: Respondent’s Motion to Dismiss (#134.00) (Newson, J., Sept. 13, 2018)
The respondent declined the opportunity to file a post-trial brief, electing to rely on the evidence presented at trial (#161.00).
II. Law and Discussion
"As enunciated in Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] ... [a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different ... A court can find against a petitioner, with respect to a claim of ineffective assistance of counsel, on either the performance prong or the prejudice prong ...
With respect to the performance prong of Strickland, we are mindful that ‘[judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable ... 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.’
Similarly, the United States Supreme Court has emphasized that a reviewing court is ‘required not simply to give [the trial attorney] the benefit of the doubt ... but to affirmatively entertain the range of possible reasons ... counsel may have had for proceeding as [he] did ...’ ‘[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; [but] strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.’ " (Internal citations omitted; internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 319 Conn. 623, 631-33, 126 A.3d 558 (2015). "In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner’s failure to prove either is fatal to a habeas petition." (Internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).
Count Four- Ineffective Assistance of Attorney Christopher DeMarco- Second Habeas Counsel
Attorney Chris DeMarco represented the petitioner in a habeas filed in the Judicial District of New Haven, which was given Docket No. CV00-0440732. The petitioner makes numerous allegations of ineffectiveness against him, including failure to investigate, failure to call certain witnesses, and for allegedly abandoning certain claims and arguments concerning claims of ineffectiveness against trial and appellate counsel. This particular petition never proceeded to trial, however, because the Respondent filed a Motion to Dismiss. The motion attacked the self-represented petition dated June 21, 2000, filed by the petitioner, and was heard on September 3, 2002. At the hearing, Attorney DeMarco indicated that he had discussed the matter with his client and that they would not be offering any objection to the State’s motion. The Court, Fracasse, J. then dismissed both counts, specifically indicating that count two, a claim of prosecutorial misconduct, was dismissed "without prejudice" in order to allow for further investigation.
There is no date stamp or other marking on the petition to indicate when it was received by the clerk. (Exhibit F.)
For reasons that are not made clear from the record, the petitioner was not transported to court for this hearing, but Attorney DeMarco represented that he had discussed the matter with the petitioner and obtained his permission to proceed in his absence. See Practice Book (Rev. 1998) § 23-40(a) (petitioner’s right to be present at hearing on question of law, unless the right to be present is waived).
Although not necessary to discuss in detail here, it is likely that the "without prejudice" statement was a distinction without a difference with respect to the petitioner’s future habeas rights, since a dismissal is not considered a judgment on the merits of an action. E.g., Cayer Enterprises, Inc. v. DiMasi, 84 Conn.App. 190, 194, 852 A.2d 758, 761 (2004) ("In considering a defense of res judicata, our Supreme Court has stated that ‘[t]he appropriate inquiry ... is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding ...’ If not, res judicata is inappropriate ... ‘[A] pretrial dismissal ... is not the logical or practical equivalent of a full and fair opportunity to litigate.’ (citations omitted; emphasis in original")).
To put this claim in perspective, the petitioner is asserting that he received ineffective representation in a matter where the underlying merits of the claims involved were never determined. Because there was never a determination of the merits of the petitioner’s claims, he suffered no real harm, other than time. "A dismissal without prejudice terminates litigation and the court’s responsibilities, while leaving the door open for some new, future litigation ... It is well established that a dismissal without prejudice has no res judicata effect on a subsequent claim ... The petitioner has suffered no harm due to the dismissal of the allegation ... He, therefore, is not aggrieved by the judgment of the habeas court, and we lack subject matter jurisdiction to consider his claim with respect to the [dismissed] allegation ..." (Citation omitted; internal quotation marks omitted.) Tyson v. Commissioner of Correction, 155 Conn.App. 96, 105, 109 A.3d 510, 515 (2015). Since there has never been an adverse factual finding on the merits of the claims in CV00-0440732, there is no true controversy for this court to resolve regarding Attorney DeMarco’s representation. "A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists." (Citation omitted.) Paulino v. Commissioner of Correction, 155 Conn.App. 154, 160, 109 A.3d 516, 521 (2015). As such, the claim against Attorney DeMarco must be dismissed. Id.
Count Five- Ineffective Assistance against Attorney Paul Kraus- Third Habeas Counsel
The final remaining claim is the petitioner’s claim of ineffective assistance against Attorney Paul Kraus, who represented him in his last habeas (CV03-4004175), which was denied following a trial on the merits. Tatum v. Warden, Superior Court judicial district of Tolland, Docket No. CV03-4004175 (Nazzaro, J., June 8, 2010), appeal dismissed per curium, 135 Conn.App. 901, 40 A.3d 824, cert. denied, 305 Conn. 912, 45 A.3d 98 (2012). In all, the petitioner makes some twenty (20) separate factual claims of ineffective assistance against Attorney Kraus, however, a number of these have been indirectly disposed of by this Court’s prior ruling on the motion to dismiss or by Appellate Court rulings in the direct appeal.
Many of the claims made by the petitioner against Attorney Kraus are an attempt to relitigate the issue of the appropriateness of the admission of Anthony Lombardo’s admission of the petitioner at the criminal trial, which was specifically addressed in the direct appeal. State v. Tatum, supra, 219 Conn. at 725-32. The current petition alleges that Attorney Kraus failed to allege and prove a claim for trial counsel’s failure to file a motion to suppress Lombardo’s identification of the petitioner; failed to allege trial counsel’s failure to object to the trial court’s eyewitness identification instruction; failed to allege trial counsel’s failure to waive the probable cause hearing or otherwise to prevent the extremely suggestive setting for Lombardo’s identification of the petitioner; and failing to allege a claim against appellate counsel for not arguing that the identification of the petitioner by Lombardo at the probable cause hearing violated his due process rights. As discussed in the memorandum of decision on Motion to Dismiss (#134.00), however, the Appellate Court specifically considered a claim asserting the unduly suggestive nature of Lombardo’s identification and found that the identification was properly admitted into evidence, which bars the petitioner from relitigating those claims here. See, Henderson v. Commissioner of Correction, 129 Conn.App. 188, 199-203, 19 A.3d 705, 712-14 (2011), cert. denied, 303 Conn. 901, 31 A.3d 1177 (2011) (claims raised on direct appeal may not be relitigated in habeas proceeding).
Tatum v. Warden, supra, Docket No. CV16-4007857, Memorandum of Decision on Motion to Dismiss (Newson, J., Sept. 13, 2018)
The petitioner also claims that Attorney Kraus failed to pursue an allegation about trial counsel’s failure to object to the eyewitness identification instruction given to the jury, however, the correctness of the eyewitness identification instructions given by the trial court was also previously challenged by the petitioner in his direct appeal. State v. Tatum, supra, 219 Conn. at 732. The Appellate Court’s finding that the eyewitness jury instruction was correct collaterally estops the petitioner from asking this court to determine that his criminal trial counsel was deficient, or that the petitioner was prejudiced, by trial counsel’s failure to object. See, Henderson v. Commissioner of Correction, 129 Conn.App. 188, 199-203, 19 A.3d 705, 712-14 (2011), cert. denied, 303 Corm. 901, 31 A.3d 1177 (2011) (claims raised on direct appeal may not be relitigated in habeas proceeding).
"First, he argues that the charge given on the dangers of eyewitness misidentification was inadequate, because it omitted two specific points contained in the request to charge ..."
Another allegation is that Attorney Kraus failed to raise a claim of newly discovered evidence based on advancements in the science of eyewitness identification. In dismissing Count Seven, however, which is a free-standing claim of "newly discovered" evidence based on the same alleged advancements in science, this Court has already determined that these allegations are not based on previously undiscovered nuggets of information that existed and could have been discovered by "due diligence" at the time of the petitioner’s trial, but actual changes or advancements in science and case decisions on eyewitness identification, some of which did not occur until more than twenty years after the petitioner’s trial. See, State v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012). This claim fails, as a matter of law. "Numerous state and federal courts have concluded that counsel’s failure to advance novel legal theories or arguments does not constitute ineffective performance ... Nor is counsel required to change then-existing law to provide effective representation ... Counsel instead performs effectively when he elects to maneuver within the existing law, declining to present untested ... legal theories." Gray v. Commissioner of Correction, 138 Conn.App. 171, 180, 50 A.3d 406 (2012). Therefore, this claim fails. Id.
As in the Motion to Dismiss, the Court considers the claim of "newly discovered" evidence as a claim of Actual Innocence.
For instance, one of the cases oft cited and argued by the petitioner throughout these proceedings has been State v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012), which held that defendants should be allowed to present experts on eyewitness identification before the jury. The Guilbert decision overruled twenty-six (26) years of precedent holding that expert testimony was not allowed on the subject of eyewitness identification, because such matters were believed to be within the common knowledge of the average juror. See, State v. Kemp, 199 Conn. 473, 477, 507 A.2d 1387 (1986).
The petitioner also claims that Attorney Kraus failed to call or consult with an expert in eyewitness identification at the habeas trial. This is a slightly different claim from above, because it can be viewed as an assertion regarding Attorney Kraus’ obligation to conduct an investigation and educate himself on the issues present in a case, and to present evidence on information that prior counsel before him could have learned if they had educated themselves. However, Attorney Kraus testified that he was very familiar with issues surrounding eyewitness identification, that he had educated himself on the matters and read literature. More importantly, he also testified that the focus of his investigation into the petitioner’s case was not so much that Lombardo and LaVasseur had mistakenly identified the petitioner, but on whether their identifications had been influenced by monetary payments or other forms of quid pro quo compensation from the Office of the State’s Attorney. As to this claim, the petitioner has failed to establish that Attorney Kraus was deficient in his performance.
Although nobody has been able to present any credible evidence that this Court can determine, Attorney Kraus was following down what had long been a claim that Lombardo was "paid off" for his identification of the petitioner by the State through funneling money to him through Crime Stoppers under the auspices of an award for having provided information helpful to solving this crime.
"[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary ... [A] decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments." Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "[A]lthough it is incumbent upon a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction ... counsel need not track down each and every lead or personally investigate every evidentiary possibility ... In a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done [by counsel’s failure to investigate] is not met by speculation ... but by demonstrable realities ... One cannot successfully attack, with the advantage of hindsight, a trial counsel’s trial choices and strategies that otherwise constitutionally comport with the standards of competence." Johnson v. Commissioner of Correction, 285 Conn. 556, 583-84, 941 A.2d 248 (2008).
In the present case, Attorney Kraus reasonably followed a lead based on investigative facts that he turned up. While his deposition of Mr. Lombardo did not reveal the "smoking gun" Attorney Kraus was looking for, the failure of the investigation does not defeat the fact that he followed up reasonably on a claim that he decided was more fruitful than a claim of mistaken identification. Therefore, the petitioner’s claim fails, because he has failed to rebut the presumption that Attorney Kraus’ strategic decision of which issue to pursue was generally reasonable. Id. Attorney Kraus reasonably followed the leads he had at the time, which is all counsel can be asked to do. Id.
Lombardo did actually testify that there were discussions regarding possible relocation payments, but that those had all been arranged by his girlfriend at the time, and that no such discussion took place until after he testified in the petitioner’s case. (See Exhibit 2- Transcript of Anthony Lombardo Deposition.)
This particular claim also fails, because the petitioner ties his claim of Attorney Kraus’ ineffectiveness to the fact that "[b]y the time of Kraus’ representation" there was a growing body of cases where people wrongfully identified had been exonerated by DNA evidence, and that there was a "growing body of research." This argument is misplaced, because the barometer for ineffectiveness that Attorney Kraus was bound to present during his trial was not what the state of the law or science on eyewitness identification was at the time of 2003-2008 during his representation, but what Attorney McDonough could have or should have known, what information or expertise was available to him, and what evidence he could have presented at trial in 1990. "A habeas court ‘may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel’s perspective at the time of the trial.’ " Thompson v. Commissioner of Correction, 172 Conn.App. 139, 150, 158 A.3d 814, 820, cert. denied, 325 Conn. 927, 169 A.3d 232 (2017). The petitioner’s consistent attempt during this case to insert developments in the law and science studies occurring subsequent to the petitioner’s criminal trial as a basis for determining Attorney McDonough’s alleged ineffectiveness in 1990 (see footnote 11), cannot not support a claim of ineffectiveness, as a matter of law. Id.
The petitioner also asserts that Attorney Kraus failed to allege and adequately prove that trial counsel failed to challenge Lombardo and LaVasseur’s claims of familiarity with the petitioner, however, he presented no evidence in support of this allegation. Lombardo is reportedly deceased, LaVasseur was not called to testify, and no other evidence that could reasonably be said undermine their claimed familiarity with the petitioner was presented. Neither the defendant’s self-serving claim that he had never been to the Cossett Street apartment before, nor the tangential testimony of Mr. Larry Foote that he had "never seen him there" are sufficient, at least not without some additional examination of Lombardo and LaVasseur undermining their prior trial testimony. E.g., Nieves v. Commissioner of Correction, 51 Conn.App. 615, 623, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999) (failure to present a witness before habeas court to elicit testimony petitioner claims trial counsel should have elicited is fatal to claim). Anthony Lombardo’s previous deposition was admitted as a full exhibit, however, no substantive questions were put to him during that testimony about how he was familiar with the petitioner or the frequency with which the petitioner supposedly hung out around the Cossett Street apartment in the time leading up to the shooting. In the end, this claim fails because the petitioner has not presented either Lombardo or LaVasseur as witnesses for the Court to have the opportunity to hear the supposed helpful information that counsel could have, or should have, elicited through proper questioning. Id.
Additionally, from Mr. Foote’s own admission, he became incarcerated on his own drug charges some time before this incident occurred. From his testimony, he was locked up for a short as a week, to as long as a month before this shooting incident occurred, which would obviously allow time for the petitioner to have been in and around the apartment.
The prior testimony of Mr. Lombardo, who is now deceased, was presented at the petitioner’s 2009 habeas (CV03-0004175) via deposition and was admitted as a full exhibit by agreement in this trial. (See Exhibit 2- the transcript is inserted in this exhibit immediately following the transcript of June 24, 2009.) The questioning focused on allegations of an alleged quid-pro-quo of either monetary payment or payment of relocation fees in exchange for Lombardo identifying the petitioner, all of which Lombardo denied. Other than the insinuation borne by the questions, the deposition questioning failed to elicit any credible evidence that Lombardo’s identification of the petitioner was brought about in any way by inappropriate or unlawful State conduct.
The petitioner also alleges that Attorney Kraus was ineffective for failing to allege and prove that trial counsel was ineffective for not calling Miguel Vargas as a witness. Miguel Vargas did testify before this Court, however, his testimony was not particularly credible, or helpful. His present testimony was that he remembered nothing of significance from February 25, 1988, that he did not know anyone from that area, and that could not have seen anything significant, because he was only focused on shielding his children behind nearby cars once he heard the shooting begin down the street. He denied any present memory of actually speaking with police that evening, of giving a statement to them that indicated he saw someone "about 5’ 8" tall running" from a house after he heard shooting, or that the signature on the purported statement (See Exhibit 10) was his. He denied seeing anyone he could describe with any particularity running away from the area of the shooting, but what his statement to police, if he gave one, most likely meant that he saw people running towards the area of the shooting afterwards to see what happened. Overall, the testimony provided by Mr. Vargas was not credible enough or substantive enough to support a finding there is any probability that its inclusion at the trial could have changed the outcome, so the petitioner has failed to establish prejudice by trial counsel not securing his presence. Hall v. Commissioner of Correction, supra, 124 Conn.App. at 783.
The petitioner next alleges that Attorney Kraus failed to prove and allege that trial counsel was ineffective for failing to investigate and present a defense of third-party culpability with respect to Jay Frazier. This claim also fails. "The admissibility of evidence of third-party culpability is governed by the rules relating to relevancy ... Relevant evidence is evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence ... Accordingly [the requirement for the admission of third-party culpability evidence] is that the proffered evidence establish a direct connection to a third party, rather than raise merely a bare suspicion regarding a third party ... [S]uch evidence is relevant, exculpatory evidence, rather than merely tenuous evidence of third-party culpability [introduced by a defendant] in an attempt to divert from himself the evidence of guilt ... In other words, evidence that establishes a direct connection between a third party and the charged offense is relevant to the central question before the jury, namely, whether a reasonable doubt exists as to whether the defendant committed the offense. Evidence that would only raise a bare suspicion that a third party, rather than the defendant, committed the charged offense would not be relevant to the jury’s determination ... Whether a defendant has sufficiently established a direct connection between a third party and the crime with which the defendant has been charged is necessarily a fact intensive inquiry." (Citation omitted.) State v. Baltas, 311 Conn. 786, 810-11, 91 A.3d 384 (2014).
Although there is evidence from which a reasonable fact finder could find that Jay Frazier was, at some time, present at the Cossett Street apartment, there is nothing other than the admitted misidentifications by Lombardo and LaVasseur connecting him to the apartment on the date of this incident. See, Id. Donald Foote did testify at this habeas trial that he and Jay Frazier were using the apartment together as a point of operation to sell drugs from, but the two of them were arrested together and taken into custody on drug charges shortly before the shooting, where Mr. Foote remained until he ultimately finished a prison sentence several years later. Therefore, he is not in a position to testify as to the whereabouts of the petitioner or Mr. Frazier at the time of this incident. There was no evidence presented about when Jay Frazier was released from custody in his charges, or whether he actually ever went back to the Cossett Street area after being released. That all leaves only the retracted identifications by Lombardo and LaVasseur’s as the only actual evidence putting Jay Frazier at the scene of the crime, which would be insufficient to support a valid third-party culpability defense.
"Although evidence of a strong physical resemblance between the defendant and a third party, whom the defendant alleges to be responsible for the crimes with which the defendant has been charged, can be highly relevant ... a defendant proposing such third-party culpability evidence must demonstrate that the evidence is corroborative rather than merely coincidental for it to be admissible ... Here, although the proposed evidence may have shown that [the third-party suspect] bore a physical resemblance to the defendant, there was no evidence that [the third-party suspect was] involved in the events that took place at the [time and place of the crime in question]." (Citations omitted.) State v. Corley, 106 Conn.App. 682, 689-90, 943 A.2d 501 (2008); see, also State v. Baker, 50 Conn.App. 268, 278-79, 718 A.2d 450 ("Evidence regarding the Latin Kings gang and the red car was inadmissible because there was no evidence that directly connected a member of that gang or an occupant of that vehicle to the crime with which the defendant was charged. ‘Unless that direct connection exists it is within the sound discretion of the trial court to refuse to admit such evidence [of third-party culpability] when it simply affords a possible ground of possible suspicion against another person’ "), cert. denied, 247 Conn. 937, 722 A.2d 1216 (1998). Since the petitioner has failed to present evidence establishing that a third-party culpability claim against Jay Frazier was a viable one, he has failed to prove deficient performance or prejudice, and the claim fails. Hall v. Commissioner of Correction, supra, 124 Conn.App. at 783. The petitioner also claims that Attorney Kraus was ineffective for failing to allege and prove that counsel who handled the petitioner’s direct appeal, Attorney Felix Esposito, was ineffective for failing to argue that LaVasseur’s identification of the petitioner violated his due process rights. The respondent has raised the defense of procedural default, asserting that the petitioner challenged the identification procedures with regard to Lombardo on appeal, but failed to raise any claims related to the identification procedures regarding LaVasseur. The Court finds that the petitioner has procedurally defaulted on this claim.
The Court’s finding that third-party culpability was not a viable defense theory also necessarily resolves the petitioner’s related claim that Attorney Kraus failed to allege and prove that defense counsel was ineffective for not objecting to the trial court’s failure to give a third-party culpability instruction to the jury, so that claim will not be addressed directly.
"Generally, [t]he appropriate standard for reviewability of habeas claims that were not properly raised at trial ... or on direct appeal ... because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition ... The cause and prejudice standard is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance ... [T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the [s]tate’s procedural rule ... [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel ... or ... some interference by officials ... would constitute cause under this standard ... Cause and prejudice must be established conjunctively ... If the petitioner fails to demonstrate either one, a trial court will not review the merits of his habeas claim." (Citations omitted; internal quotation marks omitted.) Mish v. Commissioner of Correction, 133 Conn.App. 845, 849-50, 37 A.3d 179 (2012).
If the petitioner desired, all of the information necessary to challenge LaVasseur’s identification on appeal was available at the time the petitioner raised similar challenges to Lombardo’s identification. Appellate Counsel was not called to testify, so the reason he chose only to attack only Lombardo’s identification are unknown. The petitioner also failed to present any other substantive evidence of the alleged viability of raising claims, or the specific nature of the claims, that supposedly could have been brought to challenge LaVasseur’s identification. Having failed to do so, the petitioner has failed to overcome the presumption that appellate counsel’s choice of issues to raise on appeal was based on sound appellate strategy. "[A] habeas court will not, with the benefit of hind-sight, second guess the tactical decisions of appellate counsel. Legal contentions, like the currency, depreciate through over-issue ... [M]ultiplying assignments will dilute and weaken a good case and will not save a bad one ... The effect of adding weak arguments will be to dilute the force of the stronger ones." (Internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn.App. 670, 679, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010). Based on the above, the petitioner has failed to establish "cause" or "prejudice," so this claim is procedurally defaulted. Mish v. Commissioner of Correction, supra, 133 Conn.App. 849-50.
It is also clear from reading the arguments in the petitioner’s brief on this issue that, as discussed above in this decision, counsel continues to infuse and rely on arguments supported by developments in case decisions and studies occurring long after the petitioner’s case was decided. Additionally, the arguments laid out by the petitioner really attack the weight to be given LaVasseur’s identification, because of her drug use, the initial misidentification, the cross-racial identification issues, the fact that the assailant was wearing a hat, and other factors, rather than the procedures used by police and the State to obtain the identification. In fact, there is no argument in the brief that the police or State actually violated any procedure accepted at the time for obtaining LaVasseur’s initial identification. There is no dispute that it was LaVasseur who approached authorities to tell them she had misidentified Frazier immediately after seeing Larry Frazier in person for the first time after his arrest.
The petitioner also alleges that Attorney Kraus was ineffective for failing to consult with or call a legal expert to testify on the issue of ineffective assistance of counsel. "We are not persuaded that we should adopt an inflexible requirement that expert testimony must be presented in every case raising a Strickland inquiry. The case-by-case approach is appropriate in a situation involving ineffective assistance of counsel." (Citations omitted; internal quotation marks omitted.) Evans v. Warden, 29 Conn.App. 274, 280-81, 613 A.2d 327 (1992). The Court does not find that this particular case is one which necessarily required expert testimony on the central issue, nor does this court find that such testimony would have changed the outcome of the petitioner’s prior habeas proceedings. The central issue in this case was whether Tracy LaVasseur and Anthony Lombardo, two admitted drug users, if not hardcore addicts, who claimed to be familiar with the petitioner from buying drugs from him, or doing drugs around him, and seeing him regularly around where they did drugs, could be found credible after having misidentified Jay Frazier as the person who entered their apartment and began shooting people on February 25, 1988. The idea of attacking the credibility of witnesses who have made statements known to be inaccurate, or who have later substantively modified their statements, is a basic tenant of trial work that this Court does not find to be beyond the knowledge of a typical judicial finder of fact, so the petitioner has failed to establish the Attorney Kraus’ failure to have an expert testify previously constituted deficient performance. Id. Additionally, considering the whole of the evidence in the present case, including the testimony of the legal expert presented by the petitioner here, the Court did not find any real probability that such testimony would have changed the outcome of the prior proceeding, so he has also failed to establish prejudice. Hall v. Commissioner of Correction, supra, 124 Conn.App. at 783.
The Court’s determination is limited to issues, practices, and procedures relevant to trial counsel’s performance back at the time of the petitioner’s criminal trial. As discussed previously, the Court does not address the petitioner’s claim that expert testimony was needed to the extent that counsel is arguing that expert testimony was necessary to discuss developments in the law or legal practice subsequent to the petitioner’s trial.
In coming to conclusion, there are a number of claims where the petitioner has failed to present any affirmative evidence. The petitioner alleges that Attorney Kraus failed to pursue a claim that trial counsel was ineffective for failing to pursue his motion to suppress LaVasseur’s identification, however, there was no evidence presented before this court as to the specific circumstances alleged to support such a suppression. Nobody involved in the identification process has testified, nor, again, has LaVasseur. Another allegation against Attorney Kraus was that he failed to bring a claim against trial counsel for not making an appropriate record as to the number and nature of the pretrial identification procedures used, however, the petitioner failed to present any evidence that identification procedures outside of those disclosed in the record were used, nor did he present any witness to testify to the specifics of any of those identification procedures. The petitioner also alleges that Attorney Kraus failed to allege and prove trial counsel’s failure to effectively cross examine witnesses, which was, again, focused on the identifications by Lombardo and LaVasseur, however, he failed to present either of these witnesses at the habeas trial to elicit the additional helpful information that he claims trial counsel should have elicited. The petitioner’s failure to present evidence in support of these claims means they fail. E.g., Adorno v. Commissioner of Correction, 66 Conn.App. 179, 186, 783 A.2d 1202, 1208, cert. denied, 258 Conn. 943, 786 Conn. 428 (2001).
Finally, the petitioner also raises a number of claims against Attorney Kraus that are substantively only reworded versions of other claims, or "catchall" claims encompassing all or some of the claims addressed individually above. For instance, he alleges in paragraph 81f that Attorney Krause was ineffective for failing to allege and prove ineffectiveness against prior habeas counsel, presumably both Attorney Lorenzen and DeMarco, "for failure to investigate, raise, and present claims of ineffective assistance of habeas counsel including, but not limited to, habeas counsel’s failure to investigate, raise, and adequately present the claims referenced in [paragraph] 81a ..." Since each of the allegations in paragraph 81a have been addressed individually as they relate directly to Attorney Kraus, and the petitioner has failed to successfully meet his burden of as to any of those claims, it is not necessary for the Court to further address these claims directly as they relate to other prior habeas counsel. See, e.g., Lozada v. Warden, 223 Conn. 834, 842-44, 613 A.2d 818 (1992) (for the proposition that a petitioner litigating a claim of ineffective assistance against habeas counsel must prove ineffective assistance against each attorney going back to trial counsel in order to succeed).
III. Conclusion
Based on the foregoing, the petition for habeas corpus is DENIED.