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*********************************************** 
ANTONIO INGLIS v. COMMISSIONER

OF CORRECTION

(AC 44492)

Prescott, Moll and Bishop, Js.

Syllabus

The petitioner, who had been convicted of several crimes, including murder,

as a result of a shooting in a nightclub, sought a writ of habeas corpus.

He claimed that his trial counsel rendered ineffective assistance as to

the petitioner’s third-party culpability defense and the admission into

evidence of eyewitness identifications of the petitioner. The petitioner

further claimed that his right to due process under the state constitution

(article first, §§ 8 and 9) was violated because the eyewitness identifications of him were obtained through unnecessarily suggestive identification procedures. The petitioner had claimed that he could not properly

be identified as the shooter because the witnesses could not distinguish

between him and his brother, W, who was present at the time of the

shooting. The trial court declined the petitioner’s request to instruct the

jury on third-party culpability, reasoning that the evidence failed to

establish a direct connection between W and the crimes at issue. The

petitioner claimed that his trial counsel were ineffective for having filed

a request to charge that did not adequately refer to the evidence in

support of the charge, which, in turn, resulted in the court’s declining

to give the jury a third-party culpability instruction. The habeas court

rendered judgment denying the petition and, thereafter, denied the petitioner certification to appeal, and the petitioner appealed to this

court. Held:

1. The habeas court did not abuse its discretion in denying the petitioner

certification to appeal with respect to his claims that his trial counsel

were ineffective in litigating his third-party culpability defense and issues

relating to the admission at trial of the eyewitness identifications of him:

a. The habeas court properly determined that the petitioner was not

prejudiced by his trial counsel’s failure to cite certain evidence in their

request for a jury instruction on third-party culpability, the petitioner

having failed to demonstrate that there was a reasonable probability that

the outcome of his trial would have been different had counsel included

references to that evidence in the request to charge, as this court previously determined in the petitioner’s direct appeal from his conviction

that the trial court did not improperly decline to instruct the jury on the

proposed charge because the evidence raised merely a bare suspicion

as to a third party, which was insufficient to establish the required direct

connection to that third party so as to warrant a charge on third-party

culpability; moreover, contrary to the petitioner’s claim that his trial

counsel rendered ineffective assistance in failing to present the testimony

of certain eyewitnesses in support of the petitioner’s identification

defense, the petitioner failed to rebut the presumption that counsel

declined to call those witnesses on the basis of reasonable professional

judgment, the habeas court having credited counsel’s testimony that they

had engaged in a risk analysis concerning whether to call the witnesses,

one of whom may have given contradictory statements to the police,

and the other of whom, in a written statement to the police, had identified

the petitioner as the shooter, and it was not for this court to secondguess the decision of trial counsel when counsel were aware of the

substance of the witnesses’ anticipated testimony and made the reasonable decision not to present it due to its potentially harmful nature.

b. The petitioner failed to show a reasonable probability that counsel

would have been successful in seeking to offer the testimony of an

eyewitness identification expert, as any such effort would likely have

been fruitless in light of our Supreme Court’s case law at the time of

the petitioner’s criminal trial, which made clear that such testimony

generally was disfavored and that it would not have been an abuse of

a trial court’s discretion to refuse to allow it; accordingly, the petitioner

could not demonstrate that his trial counsel rendered ineffective assistance by declining to pursue a motion for expenses to retain and, ulti-
mately, not to call, an eyewitness identification expert; moreover, the

procedures the police employed concerning the photographic array of

suspects that they showed to the witnesses were within the acceptable

parameters of effective and fair police work and satisfied the requirements of due process, as the petitioner failed to present credible evidence

that those procedures were so flawed as to present a very substantial

likelihood of irreparable misidentification; furthermore, the petitioner

failed to establish that his trial counsel performed deficiently by not

presenting evidence that an eyewitness to the shooting had chosen a

photograph other than that of the petitioner from the array of photographs prepared by the police, as counsel’s choice not to call that witness

was not outside the wide range of reasonable professional assistance,

the witness was only 50 percent sure of his choice from the array, he

was not emphatic in his knowledge of the shooter’s identity and, thus,

could have testified that the petitioner was the shooter, thereby hurting

the petitioner’s defense, the witness’ statement to the police tended to

undermine the petitioner’s third-party culpability defense and, even if

counsel had performed deficiently by failing to question the witness,

the jury’s guilty verdict was supported by substantial other evidence

concerning the petitioner’s identity as the shooter.

2. The petitioner failed to establish cause and prejudice to overcome his

procedural default in having failed to claim at his criminal trial and

on direct appeal that the admission into evidence of the eyewitness

identifications of him as the shooter violated his right to due process

under article first, §§ 8 and 9; contrary to the petitioner’s contention

that good cause existed for that failure because established law at that

time would have made his argument futile, the habeas court properly

determined that he had a reasonable basis at that time to claim that the

identification procedures at issue were unnecessarily suggestive and,

thus, that he did not establish good cause and prejudice because our

Supreme Court’s case law at that time explicitly invited continued challenges to identification procedures.

Argued January 31—officially released June 28, 2022

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

Tolland and tried to the court, Chaplin, J.; judgment

denying the petition; thereafter, the court denied the

petition for certification to appeal and issued an articulation of its decision, and the petitioner appealed to

this court. Appeal dismissed.

Vishal K. Garg, assigned counsel, for the appellant

(petitioner).

Nancy L. Chupak, senior assistant state’s attorney,

with whom, on the brief, were Michael A. Gailor, state’s

attorney, Tamara A. Grosso, former senior assistant

state’s attorney, and Samantha L. Oden, former deputy

assistant state’s attorney, for the appellee (respondent).
Opinion

BISHOP, J. The petitioner, Antonio Inglis, appeals

following the denial of his petition for certification to

appeal from the judgment of the habeas court denying

his third amended petition for a writ of habeas corpus.

On appeal, the petitioner claims that the habeas court

abused its discretion in denying his petition for certification to appeal and improperly rejected his claims that

(1) his trial counsel rendered ineffective assistance in

his underlying criminal trial, and (2) his right to due

process under the Connecticut constitution was violated by the admission of both out-of-court and in-court

eyewitness identifications of him that were obtained

through unnecessarily suggestive identification procedures. We conclude that the court did not abuse its

discretion in denying the petition for certification to

appeal and, accordingly, dismiss the petitioner’s appeal.

The following facts and procedural history are relevant to our resolution of this appeal. After a jury trial,

the petitioner was convicted of two counts of murder

in violation of General Statutes § 53a-54a (a), one count

of capital felony murder in violation of General Statutes

(Rev. to 2007) § 53a-54b (7), one count of assault in the

first degree in violation of General Statutes § 53a-59 (a)

(5), and one count of carrying a pistol without a permit

in violation of General Statutes § 29-35 (a). The petitioner received a total effective sentence of life imprisonment without the possibility of release, plus twentyfive years.

This court’s opinion in the petitioner’s direct appeal;

see State v. Inglis, 151 Conn. App. 283, 94 A.3d 1204,

cert. denied, 314 Conn. 920, 100 A.3d 851 (2014), cert.

denied, 575 U.S. 918, 135 S. Ct. 1559, 191 L. Ed. 2d 647

(2015); sets forth the following facts: ‘‘[I]n the early

hours of February 10, 2008, an altercation ensued at

the Cocktails on the Green nightclub (club) in Cromwell

that left two men dead and another wounded. The altercation began when the [petitioner] repeatedly antagonized one of the victims, Tyrese Lockhart, a patron

seated at the bar with friends. Lockhart and his friends

eventually confronted the [petitioner] and asked him

to leave Lockhart alone. A group of the [petitioner’s]

friends that included his brother, Daren Walls, likewise

encouraged the [petitioner] to leave Lockhart alone.

When Israel Dandrade, a disc jockey who was performing at the club that evening, announced ‘last call’

soon thereafter, Lockhart headed toward an exit with

friends. At that moment, the [petitioner] brandished a

chrome revolver and fired several shots in Lockhart’s

direction. One shot struck Lockhart in the head, another

struck Dandrade in the eye, and a third grazed the cheek

of Kenneth Lewis, a cook at the club. Lockhart and

Dandrade died as a result of their respective gunshot

wounds.
‘‘The [petitioner] subsequently was arrested and

charged with the aforementioned offenses. A jury trial

followed,1 at which the state presented eyewitness testimony from multiple individuals identifying the [petitioner] as the shooter. The theory advanced by the

defense was that, due to the facial similarit[ies] between

Walls and the [petitioner], those witnesses could not

distinguish between the two brothers to properly identify the shooter.’’ (Footnote added; footnote omitted.)

Id., 286–87.

On May 27, 2015, the petitioner filed a petition for a

writ of habeas corpus. Subsequently, on September 24,

2018, the petitioner filed the operative, third amended

petition for a writ of habeas corpus. In the amended

petition, the petitioner set forth numerous claims,

including that (1) his constitutional right to the effective

assistance of counsel was violated, (2) his constitutional right to the effective assistance of appellate counsel was violated, and (3) his constitutional right to due

process and a fair trial was violated.

On November 6, 2018, pursuant to Practice Book § 23-

30,2

the respondent, the Commissioner of Correction,

filed a return, asserting, inter alia, that the petitioner

was procedurally defaulted with respect to his due process claims because he had failed to raise them at his

criminal trial or on direct appeal, and that he could not

establish good cause or prejudice sufficient to excuse

his failure to assert those claims on direct appeal. On

December 6, 2018, pursuant to Practice Book § 23-31,3

the petitioner filed a reply to the return in which he

contended that his state due process claim was not

procedurally defaulted because any attempt to raise

that claim at trial would have been futile given that ‘‘the

Connecticut Supreme Court [in State v. Harris, 330

Conn. 91, 191 A.3d 119 (2018)] has only recently recognized that the Connecticut . . . constitution affords

greater protection than the federal constitutional standard against the admission of unreliable eyewitness

identification evidence or testimony.’’ In the alternative,

the petitioner contended that, if the claim is procedurally defaulted, it can be cured by a showing of cause

and prejudice because there is a reasonable probability

that he would have raised this claim but for the deficient

performance of trial counsel and, had the claim been

raised, there is a reasonable probability that he would

have prevailed.

After trial, the court denied the petition for a writ of

habeas corpus. The petitioner thereafter filed a petition

for certification to appeal from the court’s judgment,

which the court denied. The petitioner moved the court

for an articulation as to the basis for the court’s denial

of his petition for certification, which the court granted,

stating that ‘‘the petition for certification was denied

on the merits.’’ This appeal followed. Additional facts

and procedural history will be set forth as necessary.
‘‘Faced with a habeas court’s denial of a petition for

certification to appeal, a petitioner can obtain appellate

review of the dismissal of his petition for habeas corpus

only by satisfying the two-pronged test enunciated by

our Supreme Court in Simms v. Warden, 229 Conn.

178, 640 A.2d 601 (1994), and adopted in Simms v.

Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,

he must demonstrate that the denial of his petition for

certification constituted an abuse of discretion. . . .

To prove an abuse of discretion, the petitioner must

demonstrate that the [resolution of the underlying claim

involves issues that] are debatable among jurists of

reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to

deserve encouragement to proceed further. . . . Second, if the petitioner can show an abuse of discretion,

he must then prove that the decision of the habeas

court should be reversed on the merits. . . . In

determining whether there has been an abuse of discretion, every reasonable presumption should be given in

favor of the correctness of the court’s ruling . . . [and]

[r]eversal is required only where an abuse of discretion

is manifest or where injustice appears to have been

done.’’ (Internal quotation marks omitted.) McClain v.

Commissioner of Correction, 188 Conn. App. 70, 74–75,

204 A.3d 82, cert. denied, 331 Conn. 914, 204 A.3d

702 (2019).

‘‘In determining whether the habeas court abused

its discretion in denying the petitioner’s request for

certification, we necessarily must consider the merits of

the petitioner’s underlying claims to determine whether

the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review

the petitioner’s substantive claims for the purpose of

ascertaining whether those claims satisfy one or more

of the three criteria . . . adopted by [our Supreme

Court] for determining the propriety of the habeas

court’s denial of the petition for certification.’’ (Internal

quotation marks omitted.) Whistnant v. Commissioner

of Correction, 199 Conn. App. 406, 415, 236 A.3d 276,

cert. denied, 335 Conn. 969, 240 A.3d 286 (2020).

For the reasons set forth in parts I and II of this

opinion, we conclude that the petitioner has failed to

demonstrate that the habeas court abused its discretion

in denying his petition for certification to appeal.

I

The record reflects that in the underlying criminal

trial the petitioner was represented by Attorney Walter

Bansley III and Attorney Walter C. Bansley IV.4

In support of his claim that the habeas court abused its discretion in denying his petition for certification to appeal

with respect to its decision regarding the petitioner’s

claim that his trial counsel rendered ineffective assistance, the petitioner asserts that his trial counsel were
ineffective in two ways: (1) by failing to litigate adequately a third-party culpability defense, and (2) by

failing to litigate effectively issues relating to the admission of eyewitness identifications at trial. We discuss

these claims in turn.

We begin by setting forth the standard of review and

principles of law applicable to ineffective assistance of

counsel claims. ‘‘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)]. Strickland requires that a petitioner satisfy

both a performance prong and a prejudice prong. To

satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel

was not functioning as the counsel guaranteed . . . by

the [s]ixth [a]mendment. . . . 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. . . . 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.’’ (Citation omitted; internal quotation marks

omitted.) Jordan v. Commissioner of Correction, 197

Conn. App. 822, 830, 234 A.3d 78 (2020), aff’d, 341 Conn.

279, 267 A.3d 120 (2021).

Finally, to the extent that the petitioner generally

does not challenge the habeas court’s factual findings,

‘‘each of his claims raises either questions of law or

mixed questions of law and fact, over which we exercise

plenary review.’’ Gaskin v. Commissioner of Correction, 183 Conn. App. 496, 509, 193 A.3d 625 (2018).

A

The petitioner first claims that his trial counsel were

ineffective in failing to litigate adequately a third-party

culpability defense. Specifically, the petitioner asserts

that his trial counsel (1) filed a request to charge the

jury that did not adequately refer to the evidence that

supported the charge, which, in turn, resulted in the

court’s denial of a third-party culpability instruction,

and (2) failed to present two eyewitnesses in support

of the defense. We are not persuaded.

1

First, the petitioner contends that the request to

charge filed by his counsel with respect to the thirdparty culpability defense failed to comply with the

requirements of Practice Book § 42-18.5 He argues that

the request to charge did not include a reference to the

evidence to which the third-party culpability instruction

would apply. Specifically, he contends that, ‘‘[a]t a minimum, reasonably competent counsel would have listed

the three main pieces of evidence supporting the thirdparty culpability defense: the fact that eyewitness iden-
tifications described the shooter as having cornrows,

a hooded sweatshirt, and a baseball cap.’’ The petitioner

contends that this failure resulted in the court’s denial

of a request for a third-party culpability charge to which

he otherwise would have been entitled.

The following additional facts are relevant to our

resolution of this claim. At the petitioner’s criminal trial,

trial counsel sought to introduce evidence that another

individual—Walls—was the shooter. On direct appeal,

this court summarized the evidence concerning the petitioner’s third-party culpability claim at the criminal trial

as follows: ‘‘Walls was the [petitioner’s] brother and

bore a strong facial resemblance to him. He did not

[otherwise] physically resemble the [petitioner]. Unlike

the [petitioner], who stood five feet, seven inches tall

with a ‘husky’ and ‘more muscular’ build, Walls was

five feet, ten inches tall and had a ‘slim’ physique. At

the time of the shooting, Walls’ hair was braided in

cornrows, whereas the [petitioner’s] hair was short and

curly. The two also were dressed differently at that

time. The [petitioner] wore a black knit cap, a baggy

grey jacket with yellow trim, jeans, and tan boots. By

contrast, Walls had on a fitted and light-colored jacket

with a large emblem on the upper left chest, jeans, and

no cap.

‘‘Lockhart was seated at the bar when the [petitioner]

began antagonizing him. After several minutes, Lockhart turned around and said, ‘I don’t even know who

you are, who are you, leave me alone . . . what is the

problem?’ As Lockhart turned back to the bar to finish

his drink, Walls intervened and attempted to calm the

[petitioner]. Walls told the [petitioner] to ‘let it go’ and

made a ‘calm down’ gesture with his hands. The [petitioner] nevertheless refused to ‘let it go’ and remained

agitated. Walls continued his efforts to calm the [petitioner], telling him to ‘chill, just let it go, back up . . . .’

Lockhart was fatally shot soon thereafter.’’ (Footnote

in original; footnote omitted.) State v. Inglis, supra, 151

Conn. App. 290–91.

On October 9, 2009, trial counsel submitted a request

to charge to the court. With respect to the third-party

culpability defense, the proposed charge stated: ‘‘You

have heard evidence in this case from several witnesses

that someone other than [the petitioner] committed

these crimes. This type of evidence is known as thirdparty guilt. As I have already made clear to you, the

state has the burden of proving the [petitioner’s] guilt

beyond a reasonable doubt. . . . The question presented by third-party culpability evidence is not

whether the guilt of another person has been proven,

but whether, after a full consideration of all of the

evidence in this case, there is a reasonable doubt that

[the petitioner] was the perpetrator. Evidence that a

third party may have committed this crime may, if credited, tend to raise a reasonable doubt as to whether the
state has met its required burden to prove the identity

of the [petitioner] as the perpetrator. If, after considering all of the evidence, you have a reasonable doubt as

to the [petitioner’s] guilt, you must find the [petitioner]

not guilty. See generally State v. Echols, 203 Conn. 385

[524 A.2d 1143] (1987).’’ On October 14, 2009, at a charging conference, the court denied the petitioner’s request

to charge on third-party culpability.

At the habeas trial, Bansley IV conceded that the

request to charge did not contain any recitation of evidence in support of the petitioner’s third-party culpability claim. In its memorandum of decision, the habeas

court, Chaplin, J., determined that the petitioner failed

to prove that he was prejudiced by counsel’s failure

to include any recitation of evidence in the proposed

request to charge on third-party culpability. The habeas

court stated: ‘‘At the underlying criminal trial, [Bansley

IV] argued the third-party culpability request to charge

to the court, Clifford, J. Thereafter, the [trial] court

addressed [Bansley IV’s] argument by indicating that

[it] disagreed with [his] view of the applicability of the

third-party culpability charge to the evidence that had

been presented to the jury. Specifically, the court noted

a lack of corroborating evidence that Walls had motive

and opportunity to commit the shootings. The court

opined that the third-party culpability jury charge was

not appropriate based on the . . . evidence before the

jury, but that [it] was ‘giving a more extensive charge

on identification of the person who actually caused the

death of the two individual[s] here.’ In denying the . . .

request to charge, the court reiterated, ‘I don’t really

see it as a classic third-party culpability, and I think

the instructions are adequate.’ . . .

‘‘Even if [trial counsel] had included supporting evidence in the request to charge, the evidence included

would have been the same evidence that the court considered in denying the third-party culpability request to

charge. Based on the court’s rationale for denying the

request to charge, this court finds that the inclusion of

the proffered evidence in the request to charge would

not have resulted in the trial court granting the . . .

request to charge. For that reason, the court finds that

the petitioner was not prejudiced by the . . . failure

[of his trial counsel] to include evidence in the written

third-party culpability request to charge.’’

Our analysis of the prejudice prong of Strickland

necessarily requires a determination of whether reference to specific evidence in the request for a thirdparty culpability charge would have resulted in the trial

court’s granting of the request and whether such a

charge would have resulted in a different verdict.

Upon our thorough review of the record, we find no

disagreement with the habeas court’s conclusion that

the petitioner failed to demonstrate that there was a

reasonable probability that, but for the failure of his
trial counsel to include references to specific pieces of

evidence in the request to charge, the outcome of his

trial would have been different. We note, as well, that

the evidence that the petitioner contends should have

been included in the request to charge—the eyewitnesses’ descriptions of the shooter as having cornrows

and wearing a hooded sweatshirt and a baseball cap—

nevertheless was considered by the trial court and

found to be insufficient to support a charge on thirdparty culpability. The trial court declined to charge the

jury on third-party culpability on the basis of all of the

evidence presented at trial, not because of any perceived insufficient reference to such evidence in the

proposed charge itself.

Indeed, this court, in the petitioner’s direct appeal,

previously determined that the trial court did not abuse

its discretion in failing to submit a third-party culpability

instruction to the jury on the basis of its determination

that the evidence before the jury failed to establish

a direct connection between Walls and the criminal

offense. Specifically, in his direct appeal, the petitioner

argued that his request for a third-party culpability

instruction was appropriate in light of the evidence that

‘‘Walls and the [petitioner] look alike, Walls was present

when the shooting occurred . . . Walls had a motive

to shoot Lockhart . . . and . . . at least one witness

testified that the shooter’s hair was braided in cornrows.’’ (Internal quotation marks omitted.) State v.

Inglis, supra, 151 Conn. App. 294. We disagreed and

stated: ‘‘The mere fact that Walls bore a facial resemblance to the [petitioner] and was present at the club

does not establish ‘a direct connection between the

third party and the charged offense, rather than merely

raising a bare suspicion that another could have committed the crime, [such that] a trial court has a duty to

submit an appropriate charge to the jury’; State v.

Arroyo, [284 Conn. 597, 610, 935 A.2d 975 (2007)]; particularly when the jury heard ample testimony that Walls

attempted to calm the [petitioner] and to diffuse the

situation immediately prior to the shooting. Accordingly, we cannot say that the court improperly declined

to instruct the jury on the proposed charge when the

evidentiary basis proffered by the [petitioner] plainly

did not meet that standard.’’ State v. Inglis, supra, 295.

Similarly, in the present case, even if trial counsel had

identified all of this evidence in the request to charge

on third-party culpability, it would not have resulted

in such an instruction being given, nor would it have

changed the outcome of the petitioner’s criminal trial.

Accordingly, the habeas court properly concluded

that the petitioner failed to demonstrate that there was

a reasonable probability that, but for the failure of his

trial counsel to include references to specific pieces of

evidence in the request to charge, the outcome of his

trial would have been different. Given the trial court’s

determination that there was insufficient evidence pre-
sented to the jury to establish a direct connection to a

third party to warrant a charge on third-party culpability, the habeas court properly determined that the failure of trial counsel to cite evidence in the request to

charge on third-party culpability did not prejudice the

petitioner. As this court noted in the petitioner’s direct

appeal, the cumulative evidence presented to the jury

raised a mere bare suspicion regarding a third party.

In light of the foregoing, we conclude that the petitioner

has failed to demonstrate that the habeas court abused

its discretion in denying his petition for certification to

appeal as to this issue.

2

In furtherance of his ineffective assistance of counsel

claim related to a third-party culpability defense, the

petitioner also contends that his trial counsel failed to

introduce into evidence the testimony of two eyewitnesses who had provided descriptions of the shooter

to the police, which he argues were consistent with

his theory that Walls was the shooter. Specifically, the

petitioner asserts that ‘‘Lisa Siena and Andre Henton

both provided [the] police with signed and sworn statements that described Walls, not [the petitioner], as the

shooter.’’

The following additional facts are relevant to our

resolution of this claim. Both Siena and Henton were

present at the time of the shooting and subsequently

provided the police with written statements describing

the shooter. Henton described the shooter as a Hispanic

male, about five feet, three inches or five feet, four

inches tall, 145 pounds, with curly brown hair, wearing

jeans, a dark colored coat, and a baseball cap that might

have been yellow and blue. Henton was close enough

to the shooting such that he had blood spatter on his

shirt. Siena identified the petitioner as the shooter in

her written statement. She stated: ‘‘I . . . saw that [the

petitioner] was holding a gun. I only saw the top half

of [the petitioner]. I would say that I was less than

five feet away from [the petitioner]. I then saw [the

petitioner] fire a shot. . . . I heard a total of three or

four shots. . . . When I saw [the petitioner] on the

night of the shooting, he was wearing a black long

sleeve sweater and jeans. The sweater was not casual,

but more dressy. [The petitioner] has a medium to light

complexion, about [five feet, eight inches to five feet,

nine inches] tall, and has a thin build. [The petitioner]

had his hair in [cornrows] and he did not have a hat on.’’

With respect to the present claim, the habeas court

found that the petitioner’s trial counsel did not render

deficient performance. The court based its decision on

the habeas testimony of the petitioner’s trial counsel

that they had ‘‘made a strategic decision as to each

witness and whether to present such testimony, which

included the testimony of Siena and Henton.’’ The

habeas court found the testimony of trial counsel to be
credible. Bansley IV testified that both he and Bansley

III were ‘‘intimately aware of the issues and witnesses

at the time of trial, much more so than at the time of

their testimony for this matter.’’ Bansley III testified

that, ‘‘if I think they’re gonna hurt the case, I don’t call

them as a witness. . . . [Y]ou have to make decisions

in the courtroom pretty frequently as to who you present, how you present ‘em, and what information you

want to bring. And then you have to do a risk analysis

of whether or not . . . they [are going to] help you

more than hurt ya.’’ In addition, Bansley III testified

that he thought Henton had given contradictory statements to the police and to a private investigator hired

by trial counsel.6

When asked whether Siena would have been a favorable witness, Bansley IV testified at the habeas trial

that, ‘‘at the time, I knew this case inside and out. I

knew all these witnesses. I knew all these statements,

all these reports. . . . Even the notes you showed me

shows that we looked at . . . Siena and knew the positives, the pros and cons of it. It’d be speculation to say

why she was or was not called.’’ When asked for a

possible reason why he did not call her, Bansley IV

answered, ‘‘[m]aybe we couldn’t have found her. Maybe

we did find her and talk to her and she was adamant

it was [the petitioner]. We didn’t need the jury hearing

that.’’ The habeas court found that the testimony of

trial counsel did not support the petitioner’s claim that

they performed deficiently by failing to call either Siena

or Henton to testify at the petitioner’s criminal trial.

In resolving this claim we are guided by the principles

elucidated by our Supreme Court. ‘‘[T]he decision

whether to call a particular witness falls into the realm

of trial strategy, which is typically left to the discretion

of trial counsel . . . .’’ (Internal quotation marks omitted.) Meletrich v. Commissioner of Correction, 332

Conn. 615, 628, 212 A.3d 678 (2019).

‘‘Regarding ineffectiveness claims relating to the failure to call witnesses, [w]hen faced with the question

of whether counsel performed deficiently by failing to

call a certain witness, the question is whether this omission was objectively reasonable because there was a

strategic reason not to offer such . . . testimony . . .

[and] whether reasonable counsel could have concluded that the benefit of presenting [the witness’ testimony] . . . was outweighed by any damaging effect it

might have. . . . Moreover, our habeas corpus jurisprudence reveals several scenarios in which courts will

not second-guess defense counsel’s decision not to

investigate or call certain witnesses . . . such as when

. . . counsel learns the substance of the witness’ testimony and determines that calling that witness is unnecessary or potentially harmful to the case . . . .’’ (Citation omitted; internal quotation marks omitted.) Jordan

v. Commissioner of Correction, 341 Conn. 279, 304, 267
A.3d 120 (2021).

Indeed, the present case is unlike Gaines v. Commissioner of Correction, 306 Conn. 664, 683, 51 A.3d 948

(2012), in which trial counsel failed entirely to contact

or investigate a potentially advantageous witness. In

Gaines, trial counsel’s complete lack of investigation

resulted in his total ignorance of the substance of the

potential witness’ testimony. Id. Our Supreme Court

explained, ‘‘[t]herefore, [trial counsel’s] failure to investigate and call [the potential witnesses] was not based

on a reasonable professional judgment that their testimony would be either irrelevant or harmful to his case.

Indeed, [trial counsel] acknowledged that, had he

known the substance of their testimony, he would have

called them to testify at trial . . . .’’ Id.

In the present case, neither Bansley III nor Bansley

IV could recall the specific reason for not calling these

witnesses at the criminal trial. Nevertheless, the habeas

court specifically credited their testimony that they had

investigated the witnesses present at the time of the

shooting and were intimately familiar with the case at

the time of the criminal trial.7 Thus, because the habeas

court determined that trial counsel testified credibly,

that they had thoroughly investigated the potential witnesses at the time of the criminal trial, and that they

engaged in a risk analysis concerning whether to call

each witness at the time of trial, it concluded that the

petitioner failed to overcome the presumption that the

decision of trial counsel to refrain from calling Siena

or Henton was based on their reasonable professional

judgment. See, e.g., Franko v. Commissioner of Correction, 165 Conn. App. 505, 512, 139 A.3d 798 (2016)

(‘‘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 [petitioner] must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly

presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment.’’ (Internal quotation marks

omitted.)); see also Meletrich v. Commissioner of Correction, supra, 332 Conn. 628 (‘‘decision whether to call

a particular witness falls into the realm of trial strategy,

which is typically left to the discretion of trial counsel’’

(internal quotation marks omitted)); Williams v. Commissioner of Correction, 177 Conn. App. 321, 333, 175

A.3d 565 (‘‘[T]ime inevitably fogs the memory of busy

attorneys. That inevitability does not reverse the Strickland presumption of effective performance. Without

evidence establishing that counsel’s strategy arose from

the vagaries of ignorance, inattention or ineptitude . . .

Strickland’s strong presumption must stand.’’ (Internal

quotation marks omitted.)), cert. denied, 327 Conn. 990,

175 A.3d 563 (2017).
With respect to the two witnesses in question, Siena

and Henton, we conclude that the habeas court properly

determined that the petitioner failed to present evidence sufficient to rebut the presumption that his trial

counsel declined to call these witnesses on the basis

of strategic reasons. Specifically, the habeas court credited the testimony of trial counsel that they undertook

a risk analysis in considering whether to call Siena

and Henton, whose testimony tended to undermine the

petitioner’s identification defense. Siena’s statement

explicitly identified the petitioner as the shooter. Notably, Henton’s statement identified the shooter as having

‘‘curly brown hair,’’ not cornrows, which was the main

physical characterization on which the petitioner relied

in arguing that Walls was the shooter. Furthermore,

Bansley IV testified that he thought Henton might have

given inconsistent statements. See footnote 6 of this

opinion. We note, as well, that the habeas court found

that both trial counsel testified credibly at the habeas

trial that they were intimately familiar with the case at

the time of trial, including all potential witnesses. It is

not for this court to second-guess the decision of trial

counsel not to call certain witnesses when trial counsel

were aware of the substance of their anticipated testimony and made the reasonable decision not to present

it due to its potentially harmful nature. See, e.g., Meletrich v. Commissioner of Correction, supra, 332 Conn.

636–37; Gaines v. Commissioner of Correction, supra,

306 Conn. 681–82. In short, we find no fault in the

habeas court’s determination that it was sound trial

strategy for trial counsel not to call two witnesses who

identified the petitioner as the shooter.

B

The petitioner next claims that his trial counsel rendered ineffective assistance by failing to litigate issues

concerning the state’s introduction into evidence of

unnecessarily suggestive eyewitness identifications.

Specifically, he contends that trial counsel (1) failed to

retain an eyewitness identification expert, (2) failed to

file a motion to suppress the eyewitness identifications

because the procedures used were unduly suggestive,

and (3) failed to present evidence that Henton chose an

individual other than the petitioner from a photographic

array, which he contends would have undermined the

reliability of the eyewitness identifications that were

offered at trial.

1

First, the petitioner contends that trial counsel should

have retained an eyewitness identification expert. Specifically, the petitioner asserts that ‘‘expert testimony

would have been useful during both a suppression hearing and at the actual criminal trial’’ and that, ‘‘[h]ad

the jury been informed about the ways in which [the]

eyewitness identifications in this case were unreliable,
it would have acquitted [the petitioner].’’

The following additional facts are relevant to our

resolution of this claim. Six months prior to the commencement of the petitioner’s criminal trial, trial counsel filed a motion for payment of necessary expenses,

requesting that the court provide funds for the purpose

of retaining an expert to ‘‘evaluate the case for the

purposes of eyewitness identification issues . . . .’’8

Trial counsel later withdrew the motion, and, as a result,

a defense expert was not used at trial. At the habeas

trial, neither trial counsel could specifically recall why

the motion for payment for necessary expenses was

not pursued.9

In addressing this claim, the habeas court concluded

that ‘‘the petitioner failed to provide credible evidence

that [trial counsel] did not have a strategic reason for

withdrawing the motion for payment of necessary

expenses.’’ The court heard testimony on the issue from

Attorney Brian S. Carlow, a criminal defense expert,

and Margaret Kovera, an expert in forensic psychology,

as well as from trial counsel. Carlow testified that his

review of the trial materials ‘‘did not furnish . . . any

reason for [trial counsel] to withdraw the motion for

payment of necessary expenses.’’ The court noted, however, that although Carlow reviewed the trial materials,

he did not speak with anyone involved with the case

at the time. Kovera opined concerning eyewitness reliability factors and various shortcomings as to what had

been presented at the petitioner’s criminal trial. As to

these expert witnesses, the habeas court held that ‘‘the

weight of expert opinions of [Kovera] and [Carlow]

does not allow this court to substitute their opinion[s]

of perceived deficiencies with the actual rationale or

lack of rationale that existed for [trial counsel] in 2009.’’

‘‘[F]ailing to retain or utilize an expert witness is

not deficient when part of a legitimate and reasonable

defense strategy.’’ Grover v. Commissioner of Correction, 183 Conn. App. 804, 821, 194 A.3d 316 (holding

that counsel was not ineffective in failing to retain or

to request funding to retain expert witness), cert.

denied, 330 Conn. 933, 194 A.3d 1196 (2018); see also

Nicholson v. Commissioner of Correction, 186 Conn.

App. 398, 414, 199 A.3d 573 (2018) (‘‘[t]he selection of

an expert witness is a paradigmatic example of the type

of strategic choic[e] that, when made after thorough

investigation of [the] law and facts, is virtually unchallengeable’’ (internal quotation marks omitted)), cert.

denied, 330 Conn. 961, 199 A.3d 19, cert. denied sub

nom. Nicholson v. Cook, U.S. , 140 S. Ct. 70, 205

L. Ed. 2d 76 (2019).

‘‘[J]udicial scrutiny of counsel’s performance must be

highly deferential. . . . A fair assessment of attorney

performance requires that every effort be made to . . .

reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s
perspective at the time. . . . [A] court must indulge a

strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance;

that is, the [petitioner] must overcome the presumption

that, under the circumstances, the challenged action

might be considered sound trial strategy.’’ (Internal quotation marks omitted.) Nicholson v. Commissioner of

Correction, supra, 186 Conn. App. 413; see also Meletrich v. Commissioner of Correction, supra, 332 Conn.

636–37 (defense counsel’s decision not to call certain

witnesses was reasonable trial strategy despite inability

of defense counsel to recall every detail of criminal trial

or investigation concerning potential testimony of those

witnesses, as defense counsel testified at habeas trial

that, at time of criminal trial, he interviewed those witnesses and exercised his judgment not to call them).

Moreover, our Supreme Court has recognized that

‘‘[t]here 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. . . . [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

[they] did . . . .’’ (Internal quotation marks omitted.)

Meletrich v. Commissioner of Correction, supra, 637.

The habeas court concluded that the petitioner’s trial

counsel did not perform deficiently by failing to pursue

the motion for necessary expenses in order to retain

an expert. Specifically, in its memorandum of decision,

the court stated: ‘‘[The trial counsel] could not recall

the reason for not pursuing the motion; however, their

recall of the circumstances surrounding this case demonstrates to the court that they knew the case well

and they made strategic decisions appropriate to trial

counsel by pursuing the motions that they believed

would yield the most benefit to their client’s interest.

The petitioner failed to present credible evidence that

[an expert witness’] testimony would have been helpful

to the petitioner’s case. Additionally, the petitioner

failed to demonstrate that the court would have granted

the motion had [trial counsel] pursued it. Thus, the

petitioner presented no credible evidence to rebut the

presumption that [trial counsel] acted within the

bounds of reasonable professional assistance. Therefore, the petitioner’s claim must fail.’’

We find no fault with the determination by the habeas

court that the petitioner failed to demonstrate that his

trial counsel rendered deficient performance in this

regard. Even if we assume, arguendo, that trial counsel

performed deficiently in failing to retain an eyewitness

identification expert, the habeas court found, and we

agree, that the petitioner was not prejudiced10 given

that the law at the time of his criminal trial was not

clear as to whether trial counsel would have been able

to present such testimony and whether that testimony
would have been helpful to the petitioner’s case.11 In

the present case, Bansley IV testified that his best recollection was that Connecticut law did not permit the use

of eyewitness identification experts at the time of the

petitioner’s trial and that it was a ‘‘cutting edge issue

. . . .’’ See footnote 9 of this opinion.

At the time of the petitioner’s criminal trial, State v.

Kemp, 199 Conn. 473, 477, 507 A.2d 1387 (1986), overruled in part by State v. Guilbert, 306 Conn. 218, 49

A.3d 705 (2012), and State v. McClendon, 248 Conn.

572, 586, 730 A.2d 1107 (1999), overruled in part by

State v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012),

controlled the issue of expert evidence concerning eyewitness identifications. In McClendon, our Supreme

Court reaffirmed its earlier decision in Kemp, holding

that expert testimony on the reliability of eyewitness

identifications ‘‘is within the knowledge of jurors and

expert testimony generally would not assist them in

determining the question. . . . [It] is also disfavored

because . . . it invades the province of the jury to

determine what weight or effect it wishes to give eyewitness testimony.’’ (Internal quotation marks omitted.)

Id. Although Kemp and McClendon do not prohibit a

trial court from admitting expert testimony concerning

the reliability of eyewitness identifications, they make

clear that, at the time of the petitioner’s criminal trial,

such testimony generally was disfavored, and it would

not have been an abuse of the trial court’s discretion

to refuse to allow it.

One year after the petitioner’s criminal trial, our

Supreme Court again held that a trial court properly

excluded the testimony of an eyewitness identification

expert. In State v. Outing, 298 Conn. 34, 3 A.3d 1 (2010),

cert. denied, 562 U.S. 1225, 131 S. Ct. 1479, 179 L. Ed.

2d 316 (2011), our Supreme Court addressed a trial

court’s preclusion of testimony from an eyewitness

identification expert, Jennifer Dysart, the same expert

whom trial counsel in the present case sought to retain.

‘‘In Outing, the defendant . . . maintained that he was

entitled to present expert testimony on the issue of

eyewitness identifications in connection with his

motions to suppress the identification testimony of two

eyewitnesses. . . . The trial court declined to consider

some of the proffered expert testimony and denied [the

defendant’s] motions to suppress. . . . Following his

conviction, [the defendant] appealed to this court,

claiming, inter alia, that the trial court improperly had

precluded him from presenting the expert testimony at

the suppression hearing. . . . In rejecting his claim,

the majority in Outing acknowledged that it was keenly

aware of the concerns [arising from] the evolving jurisprudence regarding the admissibility of expert testimony on the reliability of eyewitness identifications

. . . but concluded . . . that it was both unnecessary

and unwise to address his contention that [our

Supreme] [C]ourt should overrule [State v. Kemp,
supra, 199 Conn. 477] and [State v. McClendon, supra,

248 Conn. 586].’’ (Citations omitted; internal quotation

marks omitted.) State v. Guilbert, 306 Conn. 218, 225

n.4, 49 A.3d 705 (2012). It was not until 2012, three

years after the petitioner’s criminal trial, that our

Supreme Court decided to abandon Kemp and McClendon and embrace the notion that ‘‘[t]he reliability of

eyewitness identifications frequently is not a matter

within the knowledge of an average juror and . . . the

admission of expert testimony on the issue does not

invade the province of the jury to determine what

weight to give the evidence.’’ Id., 251–52; see also Velasco v. Commissioner of Correction, 119 Conn. App.

164, 172–73, 987 A.2d 1031, cert. denied, 297 Conn. 901,

994 A.2d 1289 (2010). Given the governing decisional

law at the time of the petitioner’s criminal trial, the

petitioner has not shown that there is a reasonable

probability that his trial counsel would have been successful in seeking to offer into evidence the testimony

of an eyewitness identification expert.

Accordingly, the record and the status of the law at

the time support the habeas court’s conclusion that the

petitioner failed to establish that he was prejudiced by

the decision of his trial counsel not to pursue the motion

for necessary expenses for the purpose of retaining an

eyewitness identification expert witness and, ultimately, not to call an expert witness at trial because any

such effort by counsel would likely have been fruitless.

2

The petitioner next contends that trial counsel should

have filed a motion to suppress the pretrial and in-court

eyewitness identifications made by Qualnisha Lowe and

Nestor Diaz because the procedures used to solicit

those identifications were unnecessarily suggestive.

Specifically, the petitioner contends that, ‘‘[h]ad [trial]

counsel filed and pursued a motion to suppress, there

is a reasonable probability that the eyewitness identifications made by . . . Diaz and . . . Lowe would have

been suppressed, and [the petitioner] would have been

acquitted.’’

The following additional facts are relevant to our

resolution of this claim. At the habeas trial, Officer

William Kogut testified that, on the night of the shooting,

shortly after 1:30 a.m., he met with Lowe, who provided

a description of the shooter and indicated that she

would be able to identify him. At that time, an officer

stopped cars on the road leading to the club and asked

the individuals in those vehicles to step out. Lowe was

placed in a car and was driven past these individuals,

but she did not identify any of them as the shooter. The

petitioner was not among those individuals. At about

3 a.m., another officer took a written statement from

Lowe, who stated that the shooter was ‘‘young, late

teens, about [five foot, three inches]. The next morning,

at about 10:45 a.m., an officer went to Lowe’s residence
to present her with a photographic array. Lowe identified the petitioner as the person whom she saw ‘‘take

the gun out of his waistband.’’ (Internal quotation marks

omitted.) Lowe also identified the petitioner as the

shooter at the criminal trial.

Likewise, Diaz also was presented with the same

photographic array at about 2 p.m. the day after the

shooting. He did not identify anyone pictured. On October 7, 2009, an inspector who worked at the Office of

the State’s Attorney in Middletown met with Diaz and

showed him an enlarged version of the surveillance

video from the shooting. Diaz pointed out the person

he believed to look like the petitioner. Later that same

day, Diaz testified during the petitioner’s criminal trial

that he witnessed the shooting. He identified the petitioner in court, during the petitioner’s criminal trial, as

bearing a ‘‘strong resemblance’’ to the person he saw

in the bar who had fired the gun and said he was ‘‘confident’’ that the petitioner was the shooter.

At the habeas trial, trial counsel testified that they

had considered filing a motion to suppress but that

ultimately they did not do so. Neither could recall the

specific reason for not filing the motion, but, rather,

they speculated that there could have been many reasons not to and stated that, to the best of their recollection, they did not think it would be a successful motion.12

In its memorandum of decision, the habeas court

concluded: ‘‘Having considered the totality of the circumstances, the court finds that the credible evidence

presented by the petitioner demonstrates that the photographic array was not administered under pristine

conditions. However, pristine conditions are not the

legal standard for determining whether the administration of a photographic array was unnecessarily suggestive. State v. Marquez, [291 Conn. 122, 967 A.2d 56, cert.

denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163

(2009)]. To that end, the court finds that the petitioner

failed to present credible evidence to demonstrate that

the photographic array eyewitness identification procedures used in this case were so flawed as to present a

very substantial likelihood of irreparable misidentification of the petitioner. . . . Accordingly, the court cannot find that the petitioner was prejudiced by the . . .

failure [of his trial counsel] to file and litigate the motion

to suppress the out-of-court identifications of the petitioner by Lowe and Diaz.’’ (Internal quotation marks

omitted.)

In making this determination, the court considered

the testimony presented at the habeas trial, including

the testimony of the police officers who had administered the photographic arrays, and the opinions of Kovera and Carlow, concerning the suggestibility of the

arrays.

Captain Richard Davis of the Middletown Police
Department testified that, in preparing the array, he

included ‘‘filler’’ photographs of men who looked similar to the petitioner, the photographs were randomly

placed within the array, and the petitioner’s photograph

was neither the first nor the last in the sequence. Chief

Denise LaMontagne of the Cromwell Police Department

testified that she followed generally accepted guidelines

when administering the array to Lowe. She testified

that, at the time she administered the array to Lowe,

she was aware that the petitioner was a suspect but

did not recall making any statements to Lowe other

than providing the printed instructions.

Kovera testified concerning her expertise in the area

of the psychology of eyewitness identification evidence

and memory. She testified that the array in the present

case deviated from pristine conditions in several ways,

including that it was not double blind, the petitioner

stood out from the other images included in the array

because he was closest to the frame, one of the individuals in the filler photographs had a darker skin complexion than the petitioner, other fillers did not fit the suspect’s description, and the petitioner’s photograph was

placed at the interior top of the array.

Finally, Carlow testified that, on the basis of his

review of the criminal trial materials and the then-recent

decision of State v. Marquez, supra, 291 Conn. 122, the

petitioner’s trial counsel should have filed a motion to

suppress. He testified that trial counsel should have

presented the testimony of any witness who had chosen

a photograph of someone other than the petitioner from

the array in order to challenge the eyewitness identification. He also testified that, apart from observing their

files and the trial transcript, he was not familiar with

the basis for the decision of trial counsel.

In evaluating the photographic array, the habeas

court considered the following factors as set forth in

State v. Marquez, supra, 291 Conn. 122: ‘‘(1) the degree

of likeness shared by the individuals pictured . . . (2)

the number of photographs included in the array . . .

(3) whether the suspect’s photograph prominently was

displayed or otherwise was highlighted in an impermissible manner . . . (4) whether the eyewitness had been

told that the array includes a photograph of a known

suspect . . . (5) whether the eyewitness had been presented with multiple arrays in which the photograph

of one suspect recurred repeatedly . . . and (6)

whether a second eyewitness was present during the

presentation of the array.’’ (Internal quotation marks

omitted.) Id., 161.

It is a basic tenet of habeas jurisprudence that, in

adjudicating an ineffective assistance of counsel claim

regarding the prejudice prong of the Strickland test, a

petitioner cannot successfully show prejudice by reason of the failure of trial counsel to pursue a motion

to suppress a pretrial identification unless the petitioner
can show a reasonable probability that an attack on

the reliability of the identifications would have been

successful. See Velasco v. Commissioner of Correction,

supra, 119 Conn. App. 170. ‘‘To prevail on a motion

to suppress a pretrial identification, a defendant must

prevail on a two-pronged inquiry. [F]irst, it must be

determined whether the identification procedure was

unnecessarily suggestive; and second, if it is found to

have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. . . . An identification procedure is unnecessarily suggestive only if it

gives rise to a very substantial likelihood of irreparable

misidentification. . . . The defendant bears the burden

of proving both that the identification procedures were

unnecessarily suggestive and that the resulting identification was unreliable.’’ (Internal quotation marks omitted.) Id., 170–71.

On the basis of our review of the record, we find no

disagreement with the habeas court’s conclusion that

the ‘‘petitioner failed to present credible evidence to

demonstrate that the photographic array eyewitness

identification procedures used in this case were so

flawed as to present a very substantial likelihood of

irreparable misidentification of the petitioner.’’ First,

although Kovera opined that one of the filler photographs depicted an individual with a darker complexion

than the petitioner, the habeas court found that the

photographs in the array appeared consistent with the

petitioner’s description. Second, although the habeas

court credited the testimony of Kovera that an array

should have at least five filler photographs, it is undisputed that the array in the present case contained a

total of eight photographs. Third, the court determined

that the petitioner’s photograph was not prominently

displayed or otherwise highlighted within the array.

Fourth, although Lowe was aware that the petitioner

was a suspect and chose his photograph from the array,

there was no evidence presented to the habeas court

that LaMontagne influenced Lowe’s identification of the

petitioner in the array. Fifth, the array remained the

same for all eyewitnesses, meaning that Lowe and Diaz

were not presented with multiple arrays that contained

reoccurring photographs of the petitioner. Finally, there

was no evidence presented at the habeas hearing that

there was another eyewitness present when Lowe and

Diaz were presented with the array.

On the basis of the evidence presented at the habeas

trial, we find no fault with the habeas court’s determination that the ‘‘procedures employed in this case,

although not ideal, were within the acceptable parameters of effective and fair police work, and satisfy the

requirements of due process.’’ (Internal quotation

marks omitted.) Accordingly, the habeas court properly

determined that the petitioner failed to demonstrate

that he was prejudiced by the performance of his trial
counsel, and his claim must fail.

3

The petitioner’s final contention with respect to his

claim of ineffective assistance of counsel is that trial

counsel failed to present favorable evidence that would

have undermined the reliability of the eyewitness identifications. Specifically, the petitioner asserts that ‘‘[trial]

counsel should have presented evidence about . . .

Henton’s photo[graphic] array to show the jury that at

least one witness who was present at the time of the

shooting chose a filler rather than [the petitioner]. . . .

Henton’s testimony would have been favorable, and

counsel had no explanation for not presenting his testimony.’’ He claims that he was prejudiced because this

evidence would have had an impact on the jury’s verdict.

The following additional facts are relevant to our

resolution of this claim. In Henton’s written statement

to the police, he stated that the shooting victims were

‘‘[two to three] feet away from each other and [he] was

close enough that [he] had blood spatter on [his] shirt.’’

He was shown a photographic array from which he

identified a ‘‘filler’’ photograph as depicting the shooter,

rather than the photograph of the petitioner, and stated

that he was 50 percent sure. At the petitioner’s criminal

trial, counsel attempted to introduce testimony through

the cross-examination of LaMontagne concerning Henton’s identification of a filler photograph from the photographic array but were unsuccessful because the

court ruled that it was inadmissible hearsay. As previously noted in this opinion, Henton did not testify at

the criminal trial, and we determined in part I A 2 of

this opinion that it was not deficient performance for

trial counsel to decide not to present Henton as a thirdparty culpability witness at the petitioner’s criminal

trial.

With respect to this claim, the habeas court concluded: ‘‘The petitioner failed to present credible evidence as to how the evidence of Henton choosing a

filler should have been presented at trial. . . . The petitioner’s argument that [trial counsel] should have presented Henton’s testimony seeks to have this court substitute the petitioner’s opinion with that of the . . .

assessment [by trial counsel] of Henton as a potential

witness contemporaneous to the underlying trial. . . .

[T]his court finds that the petitioner failed to present

credible evidence that Henton was available and willing

to testify at the petitioner’s underlying criminal trial.

. . . The petitioner only presented the fact that Henton

chose a filler photograph from the photographic array

and that he noted a 50 percent confidence level. Thus,

the court is left without an evidentiary basis for concluding that Henton’s testimony would have been beneficial

to the petitioner’s defense. Therefore, the court finds

that the petitioner failed to present sufficient credible
evidence to rebut the presumption that [his trial counsel] employed reasonable trial strategy in choosing not

to present Henton’s testimony.’’

‘‘[A] court deciding an actual ineffectiveness claim

must judge the reasonableness of counsel’s challenged

conduct on the facts of the particular case, viewed as

of the time of counsel’s conduct. A convicted defendant

making a claim of ineffective assistance must identify

the acts or omissions of counsel that are alleged not

to have been the result of reasonable professional judgment. The court must then determine whether, in light

of all the circumstances, the identified acts or omissions

were outside the wide range of professionally competent assistance.’’ (Internal quotation marks omitted.)

Bryant v. Commissioner of Correction, 290 Conn. 502,

513, 964 A.2d 1186, cert. denied sub nom. Murphy v.

Bryant, 558 U.S. 938, 130 S. Ct. 259, 175 L. Ed. 2d 242

(2009). ‘‘In its analysis, a reviewing court may look to

the performance prong or the prejudice prong first.’’

Quint v. Commissioner of Correction, 211 Conn. App.

27, 36, 271 A.3d 681, cert. denied, 343 Conn. 922, 271

A.3d 681 (2022).

We agree with the habeas court’s conclusion. First,

‘‘[a] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or

jury.’’ (Internal quotation marks omitted.) Weinberg v.

Commissioner of Correction, 112 Conn. App. 100, 112,

962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221

(2009). As the habeas court properly determined, the

petitioner did not meet his burden to show that the

decision of his trial counsel not to present Henton as

a witness was not sound trial strategy. Given that Henton’s statement did not explicitly identify Walls and that

Henton stated that he was only 50 percent sure of his

choice in the photographic array and that, ultimately,

because he was not emphatic in his knowledge of the

shooter’s identity, he could have testified at trial that

the petitioner was the shooter and hurt the petitioner’s

defense, the failure of trial counsel to call Henton was

not outside the ‘‘wide range of reasonable professional

assistance . . . .’’ (Internal quotation marks omitted.)

Meletrich v. Commissioner of Correction, supra, 332

Conn. 627. As we noted in part I A 2 of this opinion,

Henton’s statement identified the shooter as having

‘‘curly brown hair,’’ not cornrows, but the presence of

cornrows was the main physical characterization on

which the petitioner relied in arguing that Walls was

the shooter. In sum, Henton’s statement tended to

undermine the petitioner’s third-party culpability

defense that Walls was the shooter. Therefore, we agree

with the habeas court’s conclusion that the petitioner

failed to establish that his trial counsel performed deficiently by failing to call and question Henton concerning

his response to the photographic array.

Moreover, even if trial counsel were deficient in that
regard, the record supports the conclusion of the

habeas court that Henton’s testimony would not have

changed the outcome of the petitioner’s trial. The

record contains substantial other evidence13 concerning

the petitioner’s identity as the shooter to support the

jury’s guilty verdict.

Accordingly, we conclude that the habeas court did

not abuse its discretion in denying the petition for certification to appeal with respect to this issue.

II

The petitioner next claims that the habeas court erred

in rejecting his claim that his right to due process under

article first, §§ 8 and 9, of the Connecticut constitution

was violated by the admission of both out-of-court and

in-court identifications, made by Lowe and Diaz, that

were obtained as a result of unnecessarily suggestive

identification procedures. The petitioner makes two

arguments in support of this claim. First, he argues that,

contrary to the holding of the habeas court, his state

constitutional claim was not procedurally defaulted

because he can show cause and prejudice for his failure

to raise this claim at his criminal trial and on direct

appeal. He contends that just months before his criminal trial in September and October, 2009, our Supreme

Court in State v. Marquez, supra, 291 Conn. 122, reaffirmed the principle that our state constitution affords

no greater protection than the United States constitution as to eyewitness identifications, and, therefore, any

such claim raised on direct appeal would have been

futile. Second, he argues that, nine years after his criminal trial, our Supreme Court in State v. Harris, supra,

330 Conn. 91, concluded for the first time that the due

process guarantee of the state constitution in article

first, § 8, ‘‘provides somewhat broader protection than

the federal constitution with respect to the admissibility

of eyewitness identification testimony . . . .’’14 He

argues that Harris applies retroactively to his case

because it is a watershed rule of criminal procedure.15

We disagree with both assertions.

We begin by setting forth the relevant standard of

review and governing law. ‘‘A party in a habeas appeal

procedurally defaults on a claim when he raises issues

on appeal that were not properly raised at the criminal

trial or the appeal thereafter. . . . Habeas, as a collateral form of relief, is generally available to litigate constitutional issues only if a more direct route to justice

has been foreclosed through no fault of the petitioner.

. . . The reviewability of habeas claims not properly

pursued on appeal is subject to the cause and prejudice

standard.’’ (Citation omitted; internal quotation marks

omitted.) Gaskin v. Commissioner of Correction,

supra, 183 Conn. App. 511.

‘‘In order for a habeas court to decide the merits of a

petitioner’s procedurally defaulted claim, the petitioner
must typically demonstrate cause and prejudice for his

failure to preserve that claim. . . . 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. . . . 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.’’ (Citation omitted; internal

quotation marks omitted.) Sinchak v. Commissioner

of Correction, 173 Conn. App. 352, 365–66, 163 A.3d

1208, cert. denied, 327 Conn. 901, 169 A.3d 796 (2017).

For example, ‘‘a showing that the factual or legal

basis for a claim was not reasonably available to counsel

. . . would constitute cause under this standard.’’

(Internal quotation marks omitted.) Zachs v. Commissioner of Correction, 205 Conn. App. 243, 273, 257 A.3d

423, cert. denied, 338 Conn. 909, 258 A.3d 1279 (2021).

We exercise plenary review to determine whether the

court properly determined that the petitioner’s claim is

procedurally defaulted. See Saunders v. Commissioner

of Correction, 343 Conn. 1, 10, 272 A.3d 169 (2022).

The petitioner argues that good cause existed for the

failure of his trial counsel to raise the issue at his criminal trial or on direct appeal given that the established

law at the time would have made that argument futile.

The petitioner relies on Hinds v. Commissioner of Correction, 151 Conn. App. 837, 97 A.3d 986 (2014), aff’d,

321 Conn. 56, 136 A.3d 596 (2016), in which this court

examined the parameters of cause and prejudice within

the procedural default doctrine. In Hinds, the petitioner

failed to challenge our courts’ long-standing interpretation of this state’s kidnapping statutes at his criminal

trial or on direct appeal but claimed that a new interpretation first set forth after his trial should be applied

retroactively. After a thorough canvass of the decisional

law expounding on procedural default, this court stated

that, ‘‘we believe that counsel’s failure to raise an issue

for which there was no reasonable basis may, indeed,

satisfy the cause requirement.’’ Id., 854. Our Supreme

Court, in affirming this court’s decision; see Hinds v.

Commissioner of Correction, 321 Conn. 56, 67–68, 136

A.3d 596 (2016); noted that it had iterated its position

numerous times prior to the petitioner’s criminal trial

that the interpretation of the kidnapping statute

adopted after the petitioner’s criminal trial in that case
was foreclosed and appeared to foreclose the possibility

that movement of a sexual assault victim from one room

in her home to another room could constitute a situation

that was ‘‘absurd and unconscionable . . . [and] that

would render the statute unconstitutionally vague as

applied.’’ Id. Our Supreme Court concluded that the

petitioner’s claim was not procedurally defaulted, stating: ‘‘Not only was there a three decades long history

preceding the petitioner’s criminal trial of rejecting such

a challenge, but mere months after the petitioner’s trial,

the court . . . again rejected such a challenge.’’ Id., 76.

In the present case, we conclude that, unlike in

Hinds, the petitioner had a reasonable basis to claim

at his criminal trial and on direct appeal that the identification procedures at issue were unnecessarily suggestive under the Connecticut constitution. Specifically,

we find unpersuasive the petitioner’s argument that

both State v. Ledbetter, 275 Conn. 534, 881 A.2d 290

(2005) (overruled in part by State v. Harris, 330 Conn.

91, 191 A.3d 119 (2018)), cert. denied, 547 U.S. 1082,

126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006), and State v.

Marquez, supra, 291 Conn. 122, each of which were

decided prior to his criminal trial, establish the futility

of his argument that the state constitution is more protective than the federal constitution.

In State v. Ledbetter, supra, 275 Conn. 560, our

Supreme Court addressed a constitutional challenge

to eyewitness identifications made in that case. The

defendant argued, inter alia, that the court should

replace the factors set forth in Neil v. Biggers, 409 U.S.

188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), used in

determining the reliability of identifications, on state

constitutional grounds. The court recognized that ‘‘in

some instances, our state constitution provides protections beyond those provided by the federal constitution

. . . .’’ State v. Ledbetter, supra, 560. Accordingly, the

court undertook an analysis to determine whether the

Biggers factors should be replaced, specifically,

whether our state constitution provides greater protection than the federal constitution on this issue. After a

thorough survey of each of those factors under the

framework set forth in State v. Geisler, 222 Conn. 672,

684–86, 610 A.2d 1225 (1992),16 the court concluded:

‘‘Despite the fact that [the] last [Geisler] factor [contemporary understandings of economic and sociological

considerations] favors the defendant, we are unpersuaded that article first, § 8, of the constitution of Connecticut provides greater protection than the federal

constitution in this area. The scientific studies are not

definitive. . . . In light of the factors that weigh in

favor of the state, the scientific studies are insufficient

to tilt the balance of the Geisler analysis in favor of the

defendant. Thus, our state constitution does not require

that we abandon the Biggers factors as the appropriate

factors for consideration in determining whether an

unnecessarily suggestive identification procedure is,
nevertheless, reliable, and we decline to do so.’’ (Citations omitted.) State v. Ledbetter, supra, 568–69.

In State v. Marquez, supra, 291 Conn. 122, the defendant challenged the reliability of eyewitness identifications. Our Supreme Court ‘‘reaffirm[ed] the congruence

between the protections afforded by our state constitution and the federal constitution in the area of pretrial

identification . . . .’’ Id., 135–36. The court stated:

‘‘[T]he judgment of the relevant scientific community

with respect to eyewitness identification procedures is

far from universal or even well established, and . . .

the research is in great flux. Indeed, when the reported

research was seemingly more uniform, we still found

that [t]he scientific studies are not definitive. State v.

Ledbetter, supra, 275 Conn. 568. The more recent

research offered by the state muddies the water further

. . . . [U]ntil the scientific research produces more

definitive answers with respect to the effects of various

procedures, [d]ue process does not require the suppression of a photographic identification that is not the

product of a double-blind, sequential procedure.’’ (Citation omitted; footnotes omitted; internal quotation

marks omitted.) State v. Marquez, supra, 155–56.

Although, in the present case, the petitioner argues

that the decisional law at the time of his criminal trial—

namely, Ledbetter and Marquez—foreclosed the argument that he now raises, we are not persuaded that

asserting a state constitutional claim in this regard

would have been futile. Our reading of both Ledbetter

and Marquez leaves ample room for counsel to have

made arguments at the time of the petitioner’s criminal

trial akin to those that were later adopted in Harris.

Specifically, in determining that our state constitution

does not provide greater protection than the federal

constitution, both cases relied heavily on the scientific

studies available at the time but did not explicitly foreclose arguments such as the court did in Hinds. In

fact, our jurisprudence specifically left room for new

arguments to be made congruently with rapidly changing science. ‘‘Indeed, we repeatedly have insisted that

this inquiry be made on an ad hoc basis, and we affirm

that the courts of this state should continue to evaluate

whether individual identification procedures are

unnecessarily suggestive on the basis of the totality of

the circumstances surrounding the procedure . . . .’’

(Emphasis added; internal quotation marks omitted.)

Id., 156. Thus, rather than foreclosing the possibility

of making similar arguments in the future, the court

explicitly invited continued challenges to identification

procedures on the basis of the circumstances of a particular case.

On this basis, we conclude that the habeas court

properly determined ‘‘that the petitioner [failed to satisfy] the cause and prejudice standard so as to cure

the alleged procedural default.’’ The petitioner’s due
process argument would not have been futile given the

law at the time, and, thus, the petitioner has failed to

establish good cause for his failure to make his constitutional arguments at his criminal trial and on direct

appeal, and actual prejudice resulting from that failure.17

The habeas court, therefore, did not abuse its discretion in denying the petition for certification to appeal

with respect to this issue.

The appeal is dismissed.

In this opinion the other judges concurred.

1 The petitioner’s criminal trial took place in September and October, 2009.

2 Practice Book § 23-30 provides: ‘‘(a) The respondent shall file a return

to the petition setting forth the facts claimed to justify the detention and

attaching any commitment order upon which custody is based.

‘‘(b) The return shall respond to the allegations of the petition and shall

allege any facts in support of any claim of procedural default, abuse of the

writ, or any other claim that the petitioner is not entitled to relief.’’

3 Practice Book § 23-31 provides: ‘‘(a) If the return alleges any defense or

claim that the petitioner is not entitled to relief, and such allegations are

not put in dispute by the petition, the petitioner shall file a reply.

‘‘(b) The reply shall admit or deny any allegations that the petitioner is

not entitled to relief.

‘‘(c) The reply shall allege any facts and assert any cause and prejudice

claimed to permit review of any issue despite any claimed procedural default.

The reply shall not restate the claims of the petition.’’

4 We refer to both attorneys collectively as trial counsel throughout this

opinion, except when necessary to distinguish between them.

5 Practice Book § 42-18 (a) provides in relevant part: ‘‘When there are

several requests, they shall be in separate and numbered paragraphs, each

containing a single proposition of law clearly and concisely stated with the

citation of authority upon which it is based, and the evidence to which the

proposition would apply. . . .’’

6 Specifically, the petitioner’s habeas counsel asked Bansley III, ‘‘I believe

you stated that possibly . . . Henton had given two different statements;

one to the police, and then a separate one that was maybe contradictory

to your investigator. Is that correct?’’ He responded: ‘‘That’s what I think,

but I’m not sure.’’ Further, Bansley III testified that he thought Henton’s

statement to the police was ‘‘totally inconsistent’’ with the description of

Walls, particularly because his description did not mention anything

about cornrows.

7 Bansley IV testified at the habeas trial that, ‘‘[a]t the time, I knew this

case inside and out. I knew all these witnesses. I knew all these statements,

all these reports. I know everyone’s considered.’’

In addition, during cross-examination, the following colloquy occurred

between the petitioner’s habeas counsel and Bansley IV:

‘‘Q. . . . [C]an you tell the court what investigation you conducted to

pursue your theories of defense?

‘‘A. Generally, we always have an investigator that goes out. I cannot

think of a trial that I have conducted where I did not have an investigator.

So, that would’ve been the primary focus. . . .

‘‘Q. . . . [W]hat did you do to research and investigate the eyewitness

identification issues?

‘‘A. I think the main thing is, going over discovery, looking at all the

commonsense inconsistencies and applying that to all the theories behind

why there are misidentifications. . . .

‘‘Q. . . . And I believe you said that you knew all of the witnesses in this

case, both the lay witnesses and the police officers. . . . I mean that you

had investigated them, that you spoke with them.

‘‘A. I would’ve at least read reports, at a minimum.

‘‘Q. Okay. Well, I’m just . . . trying to restate that you familiarized yourself with all the witnesses.

‘‘A. I knew this case.’’

In addition, Bansley III testified: ‘‘I know that we spent a lot of time and

money with a private investigator . . . . He was, in my opinion, very diligent. He did a lot of work. I do recall he brought us some information that

was really helpful. I just don’t remember the specifics of it at the moment.
. . . [M]y son and I also went out and, you know, we like to do hands on.

We went to the club and we looked at the videotape. We tried to reconstruct

it. You know, so we did a lot.’’

8 The trial court, Clifford, J., on March 31, 2009, stated to trial counsel

with respect to the motion for payment of necessary expenses: ‘‘[Y]ou represent the [petitioner] privately, and you’re asking the Judicial Department,

basically, to pay the expenses for investigators, etc. . . . I think I mentioned

in chambers, I mean, part of me feels that’s what the public defender system

is for, and when a private attorney gets into a case, that they should be

able to finance their own investigators once they file the appearance. . . .

I think we’re going to need a hearing.’’ No hearing was held on the motion

because trial counsel withdrew the motion two months later.

9 At the habeas trial, the following colloquy took place between the petitioner’s habeas counsel and Bansley IV:

‘‘Q. Okay. Based on your knowledge of the case generally, can you think

of a reason why that motion would have been withdrawn?

‘‘A. I cannot.

‘‘Q. Can you think of any strategic reason for having withdrawn the motion?

‘‘A. I can’t.

‘‘Q. . . . And just briefly before I move on to the next topic, had you had

[this eyewitness expert] testify previously at a criminal trial?

‘‘A. I don’t—my recollection is, I don’t believe courts were allowing it at

the time.

‘‘Q. Okay.

‘‘A. That’s my best recollection.

‘‘Q. Alright. But is it something you were attempting to get in, nonetheless?

‘‘A. Yes. I remember for my first five years of practice, it was a real cutting

edge issue, that we were one of the first ones that contacted [the expert]

and, and really explored the issue. But I don’t believe the courts were

allowing it. That’s my best recollection.’’

10 In its memorandum of decision, the habeas court noted that ‘‘the petitioner failed to demonstrate that the [trial] court would have granted the

motion had [trial counsel] pursued it.’’ In reaching this determination, the

habeas court appears to have decided that the petitioner failed to prove

both prongs of the Strickland test for ineffective assistance of counsel.

Because a habeas petition fails unless both prongs are proven, we focus in

this appeal on the habeas court’s determination regarding the prejudice

prong.

11 In his appellate brief, the respondent argues that the petitioner also

failed to demonstrate that he was prejudiced by his counsel’s allegedly

deficient performance. Specifically, the respondent argues that, ‘‘even if

counsel should have pursued the motion for payment of necessary expenses

and offered testimony from an eyewitness identification expert, the petitioner has not demonstrated that the trial court would have permitted such

testimony.’’

12 At the habeas trial, the following colloquy occurred between the petitioner’s habeas counsel and Bansley IV:

‘‘Q. . . . And there was no motion to suppress identifications filed in this

case. Do you know why that is?

‘‘A. To the best of my recollection, we did not think that it would be

successful.

* * *

‘‘Q. Okay. And I believe you testified to the reasons that you did not file

a motion to suppress. Were there any other reasons besides what you

said earlier?

‘‘A. I think I said that reasons why I might not have, because I don’t recall

the exact reason why I didn’t in this case.

‘‘Q. Okay. But those would be the type of reasons why you would decide

not to?

‘‘A. Sure, there could be many, many reasons.’’

13 This court set forth that evidence as follows in the petitioner’s direct

appeal: ‘‘Brothers Maurice Overton and Andre Overton were at the club at all

relevant times. Maurice Overton testified at trial that he saw the [petitioner]

holding a gun at the time of the shooting. Andre Overton similarly testified

that when the gunshots rang out, he turned and saw the [petitioner] holding

a chrome gun in his hand. Andre Overton was approximately five feet behind

the [petitioner] at that time. [Lowe] also identified the [petitioner] as the

shooter at trial. She testified that, at the time of the shooting, she was two

feet from the [petitioner] and ‘looked right in his face.’ [Diaz] testified that

at the time of the shooting, he was approximately five feet from the person
holding the gun and was ‘confident’ in his identification of the [petitioner]

as the shooter. Dana Middleton was socializing with Lockhart at the club

and witnessed the [petitioner] antagonizing Lockhart prior to the shooting.

He testified that the [petitioner] was approximately ten feet away and ‘kept

dancing around and pointing his fingers and . . . making gestures like he

was making . . . threats, basically.’ . . . Moments later as Middleton and

Lockhart were leaving the bar, Middleton heard gunshots and then saw

Lockhart on the ground with a hole in his head and brain matter on the

floor. Middleton then saw the [petitioner] approximately five feet away

holding a gun that was pointed in his direction.’’ State v. Inglis, supra, 151

Conn. App. 286–87 n.6.

14 The habeas court did not reach the merits of the claim regarding the

retroactivity of Harris but, rather, disposed of this claim on procedural

grounds because it determined that the petitioner had not properly raised

the claim. The petitioner claims that the habeas court improperly concluded

that he had conceded that a retroactivity issue was not raised in the pleadings

and, accordingly, denied the claim on that ground. He argues that this was

in error because, (1) to the extent that retroactivity, or its lack thereof,

must be pleaded, it is the respondent’s burden to raise it, (2) his pleading

implied a retroactivity claim, and (3) he made clear on the first day of trial

that he sought to claim that State v. Harris, supra, 330 Conn. 91, applied

retroactively to his case. In response, the respondent contends that the

habeas court properly declined to reach the issue of whether Harris applied

retroactively because (1) the petitioner’s habeas petition made no mention

of Harris, and (2) his mention of Harris in his reply and his argument at

the habeas trial were insufficient to properly plead this claim. We conclude

that the petitioner’s Harris claim properly was raised, and, accordingly, we

address it on the merits.

The petitioner’s reply to the respondent’s return stated: ‘‘To the extent

that [the third] claim [in the third amended habeas petition] is based on the

petitioner’s due process rights pursuant to [the] Connecticut constitution,

claim three is not subject to procedural default because the Connecticut

Supreme Court has only recently recognized that the Connecticut state

constitution affords greater protection than the federal constitutional standard against the admission of unreliable eyewitness identification evidence

or testimony. See [id., 130–31] . . . .’’ (Internal quotation marks omitted.)

He also made the same argument as to the fourth claim in his habeas petition,

which alleged a violation of his constitutional right to present a defense.

His reply is in compliance with Practice Book § 23-31 (b), which provides

that ‘‘[t]he reply shall admit or deny any allegations that the petitioner is

not entitled to relief,’’ and with Practice Book § 23-31 (c), which provides

in relevant part that ‘‘[t]he reply shall allege any facts and assert any cause

and prejudice claimed to permit review of any issue despite any claimed

procedural default. . . .’’ In addition, on the first day of the habeas trial,

counsel for the petitioner explicitly stated that ‘‘[o]ur argument is that Harris

applies retroactively . . . . We are alleging in part that there is cause . . .

to overcome the procedural default or that procedural default doesn’t apply

because any attempt to raise these claims at the time of the petitioner’s

trial would’ve been futile.’’

On the basis of the petitioner’s reply, in which he explicitly cites to

Harris and makes the argument that is now before this court, as well as

the arguments of habeas counsel at the habeas trial, we conclude that the

petitioner properly preserved the issue concerning the retroactivity of State

v. Harris, supra, 330 Conn. 91.

15 ‘‘[I]f the new rule is procedural, it applies retroactively if it is a watershed

[rule] of criminal procedure . . . implicit in the concept of ordered liberty

. . . meaning that it implicat[es] the fundamental fairness and accuracy

of [a] criminal proceeding.’’ (Citation omitted; internal quotation marks

omitted.) Casiano v. Commissioner of Correction, 317 Conn. 52, 63, 115

A.3d 1031 (2015), cert. denied sub nom. Semple v. Casiano, 577 U.S. 1202,

136 S. Ct. 1364, 194 L. Ed. 2d 376 (2016).

16 ‘‘In State v. Geisler, [supra, 222 Conn. 672, our Supreme Court] enumerated the following six factors to be considered in construing the state

constitution: (1) persuasive relevant federal precedents; (2) the text of the

operative constitutional provisions; (3) historical insights into the intent of

our constitutional forebears; (4) related Connecticut precedents; (5) persuasive precedents of other state courts; and (6) contemporary understandings

of applicable economic and sociological norms, or as otherwise described,

relevant public policies. . . . The Geisler analysis applies to cases . . . in

which the claim is that the state constitution provides greater protection
than does the federal constitution.’’ (Internal quotation marks omitted.)

State v. Jose A. B., 342 Conn. 489, 507–508, 270 A.3d 656 (2022).

17 Even if we assume, arguendo, that the petitioner could show cause and

prejudice to overcome procedural default, we reject his second argument

that Harris, decided nine years after the conclusion of his criminal trial,

applies retroactively because it is a watershed rule of criminal procedure.

It is well settled that courts apply the rule promulgated in Teague v. Lane,

489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), when considering

whether a new rule of criminal procedure applies retroactively. ‘‘If the rule

is substantive, it generally applies retroactively. . . . A procedural rule, on

the other hand, is only retroactive if it is considered watershed.’’ (Citation

omitted; internal quotation marks omitted.) Garcia v. Commissioner of

Correction, 147 Conn. App. 669, 677, 84 A.3d 1, cert. denied, 312 Conn. 905,

93 A.3d 156 (2014). ‘‘The watershed exception [to Teague v. Lane, supra, 311]

is reserved for those rules of criminal procedure implicating the fundamental

fairness and accuracy of the criminal proceeding. . . . Beyond fundamental

fairness, the new rule also must constitute a procedure without which

the likelihood of an accurate conviction is seriously diminished.’’ (Citation

omitted; internal quotation marks omitted.) Dyous v. Commissioner of Mental Health & Addiction Services, 324 Conn. 163, 181–82, 151 A.3d 1247 (2016).

The petitioner concedes that the rule promulgated in State v. Harris,

supra, 330 Conn. 91, is a new rule and that it is procedural in nature.

Specifically, the petitioner argues that ‘‘Harris is specifically directed toward

ensuring an accurate determination of a defendant’s innocence or guilt and

constitutes a watershed rule that applies retroactively on collateral review.’’

In September, 2018, our Supreme Court in Harris replaced the Biggers

factors, which Connecticut courts had been employing to analyze claims

concerning unnecessarily suggestive eyewitness identifications, with the

Guilbert factors. Nevertheless, the court expressly stated that the new factors are ‘‘generally comparable to the Biggers factors and are merely

intended to more precisely define the focus of the relevant inquiry.’’ (Internal

quotation marks omitted.) Id., 136.

This court has had recent occasion to address the issue of whether Harris

applies retroactively. In Tatum v. Commissioner of Correction, 211 Conn.

App. 42, 272 A.3d 218 (2022), petition for cert. filed (Conn. April 27, 2022)

(No. 210408), this court undertook a thorough analysis concerning whether

State v. Guilbert, supra, 306 Conn. 218, promulgated a watershed rule and,

as such, could be applied retroactively. This court in Tatum held: ‘‘[O]ur

Supreme Court [in Harris] essentially treated Guilbert as creating a new

state constitutional rule of criminal procedure that safeguards the due process protection against the admission of an unreliable identification. Even

if we were to construe Guilbert, through the lens of Harris, as a new

constitutional rule of criminal procedure, this rule still would not apply on

collateral review. . . . [W]e conclude that the Guilbert framework for evaluating the reliability of an identification that is the result of an unnecessarily

suggestive identification procedure, which was adopted by our Supreme

Court in Harris, does not fall within the narrow watershed exception pursuant to Teague because . . . (1) this rule is prophylactic and a violation of

the rule does not necessarily rise to the level of a due process violation, and

(2) the rule amounts to an incremental change in identification procedures.’’

(Citations omitted; internal quotation marks omitted.) Tatum v. Commissioner of Correction, supra, 65–67.

Because the rule adopted in Harris is a mere ‘‘incremental change in

identification procedures’’; id., 67; and decidedly not a watershed rule, there

is no basis in the present case for retroactive application.