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*********************************************** 
MYERS v. COMMISSIONER OF CORRECTION—CONCURRENCE

PRESCOTT, J., concurring in part and dissenting in

part. I agree with part II of the majority opinion and,

on the basis of the well reasoned analysis set forth

therein, concur that the trial court properly dismissed

the petition of the petitioner, Ricardo Myers, for a new

trial. I also agree with the majority’s conclusion in part

I B of the opinion that the habeas court properly denied

his actual innocence claim.

I do not, however, agree with the majority’s conclusion in part I A of the opinion that the habeas court

properly determined that the petitioner failed to demonstrate that his trial counsel provided ineffective assistance of counsel. In my view, the habeas court improperly concluded that the petitioner failed to demonstrate

that his trial counsel’s performance was deficient and

that he suffered prejudice from any alleged deficient

performance. I additionally conclude that the habeas

court abused its discretion by denying the petitioner’s

requests for the issuance of a capias warrant and for

a continuance. Thus, I would reverse the habeas court’s

denial of the petitioner’s request for the issuance of a

capias warrant and remand the case to the habeas court

with direction to grant the petitioner’s request and to

conduct a new trial on the issue of prejudice. Accordingly, I respectfully dissent.

To start, I agree with the majority that the habeas

court properly denied the petitioner’s claim of actual

innocence. As the majority persuasively explained, the

petitioner was required to meet the extremely high burden of establishing that, ‘‘after considering all of th[e]

evidence [adduced at the original criminal trial and the

habeas trial] and the inferences drawn therefrom . . .

no reasonable fact finder would find the petitioner

guilty of the crime’’ for which he was convicted.

(Emphasis added.) Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997). In the

present case, even if Latrell Rountree had testified at

trial that Gary Pope, as opposed to the petitioner, had

shot Tirrell Drew, Dwight Crooks testified on behalf of

the state that the petitioner had shot Drew. See State

v. Myers, 178 Conn. App. 102, 104, 174 A.3d 197 (2017).

Thus, even if Rountree’s testimony was exculpatory

with respect to the issue of the identity of the shooter,

the state presented conflicting evidence as to that issue,

and the jury reasonably could have discredited Rountree’s testimony in favor of the testimony of Crooks.

The petitioner thus failed to establish that ‘‘no reasonable fact finder’’ would have concluded that he shot

Drew. See Miller v. Commissioner of Correction,

supra, 747.

I next turn to the petitioner’s claim of ineffective

assistance of trial counsel. The facts and procedural
history are well articulated by the majority, and I do

not disagree with the habeas court’s factual findings

or the majority’s recitation thereof. It is important to

emphasize, however, the relevant facts that put in context the importance of Rountree’s testimony to the petitioner’s case in the underlying criminal trial. As the

majority explained, after the petitioner, Crooks, and

Pope exited the Lazy Lizard club in New Haven during

the early hours of May 18, 2013, an argument ensued

between them and another group of individuals in the

vicinity of the club. State v. Myers, supra, 178 Conn.

App. 103–104. ‘‘The argument escalated to a physical

altercation . . . [resulting in] officers of the New

Haven police stepp[ing] in and caus[ing] the groups to

disperse.’’ Id., 104. The petitioner, Crooks, and Pope

then drove to a second location, after which they once

again encountered the other group. Id. ‘‘Some provocative remarks were made and the two groups moved

toward each other.’’ Id.

At this point, according to Crooks’ testimony at trial,

Crooks ‘‘heard gunshots, and he turned to see the [petitioner] holding a gun. Two bullets [had] struck and

killed . . . Drew, who was a member of the other

group, and stray bullets [had] injured two bystanders.’’

Id. Six days after the shooting, however, ‘‘Rountree,

while in custody on an unrelated matter, revealed to

the police that he was Drew’s friend and was present

when Drew was shot.’’ Id. ‘‘Rountree identified Pope,’’

not the petitioner, ‘‘as the shooter.’’ (Emphasis

added.) Id.

At trial, the petitioner’s trial counsel made the strategic choice not to raise or pursue a claim of self-defense.

Consequently, the most, if not only, viable theory of

the case that trial counsel could pursue at trial was

that the petitioner was not the shooter. As the majority

states, trial counsel hired a private investigator to locate

Rountree and to serve on him a subpoena ad testificandum. Despite the fact that the private investigator

served the subpoena on Rountree on May 28, 2015,

which required that Rountree appear in court the following day, Rountree failed to appear in court on May

29, 2015. Trial counsel requested that the court issue a

capias warrant to locate Rountree over the weekend

and to secure his attendance at trial the following Monday, June 1, 2015. The court issued a capias warrant,

but a marshal was unable to locate Rountree to serve

the capias warrant on him, and he failed to appear to

testify on June 1, 2015.

After informing the court that the authorities were

unable to locate Rountree, the court asked trial counsel

whether the defense had ‘‘[a]ny additional requests,’’ to

which trial counsel answered, ‘‘[n]o.’’ Instead, and in

lieu of Rountree’s live testimony, trial counsel offered

into evidence Rountree’s recorded statement to the

police, in which he identified Pope as the shooter, under
the residual exception to the hearsay rule. Due to the

narrowness of the residual exception to the hearsay

rule, and in light of the facts that Rountree had provided

his statement to the police while incarcerated in connection with an unrelated matter six days after the

shooting; see State v. Myers, supra, 178 Conn. App. 104;

and that Rountree was not under oath when he provided

the statement to the police, the court determined on

June 1, 2015, that Rountree’s recorded statement was

inadmissible under the residual exception. Specifically,

the court determined, the statement did not satisfy the

requirement of the residual exception that the statement be ‘‘supported by equivalent guarantees of trustworthiness and reliability’’ necessary for its admission.

Conn. Code Evid. § 8-9.

After the court concluded that Rountree’s recorded

statement was inadmissible, trial counsel made no additional effort to secure Rountree’s live testimony. Significantly, trial counsel did not request a continuance to

try to locate Rountree and to secure his testimony in

court. Instead, and almost immediately after the court

made its ruling,1

the defense rested without presenting

any additional evidence. Shortly thereafter, the parties

proceeded to closing argument. Despite the court

informing the jury that the evidentiary portion of the

trial likely would last ‘‘five to six days,’’2

the evidentiary

portion of the trial had taken only four full days—May

26, 27, 28 and 29, 2015—with the defense resting on

the beginning of the fifth day of the trial, June 1, 2015,

and closing argument taking place that same day. During the trial, the jury did not hear testimony from any

witness, or see any other evidence, supporting an assertion that Pope, not the petitioner, was the shooter.

Despite failing to present evidence advancing the theory that Pope was the shooter, trial counsel nonetheless

argued during closing argument that Pope, and not the

petitioner, had shot Drew. Specifically, trial counsel

argued, ‘‘[t]here’s another person who has been developed as a suspect . . . [specifically] Pope, [and] all [of]

the evidence points to the fact that he’’ shot Drew.

Trial counsel, however, failed to identify any specific

evidence that corroborated the petitioner’s alternative

shooter theory. During its rebuttal argument, counsel

for the state easily undermined the petitioner’s alternative shooter theory by repeatedly asking the jury

whether it had seen any evidence to corroborate that

theory and reciting the evidence that the state had presented to prove that the petitioner was the shooter,

including Crooks’ eyewitness testimony. The jury subsequently found the petitioner guilty of murder and two

counts of assault in the first degree. See State v. Myers,

supra, 178 Conn. App. 103.

Having set forth the relevant factual context, I briefly

reiterate the legal principles that govern claims of ineffective assistance of counsel. The United States
Supreme Court, in Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted

a two part test ‘‘[t]o determine whether a defendant

is entitled to a new trial due to a breakdown in the

adversarial process caused by counsel’s inadequate representation . . . . First, the defendant [or petitioner in

the habeas context] must show that counsel’s performance was deficient. This requires [a] showing that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the [s]ixth [a]mendment [to the United States constitution]. Second, the defendant [or petitioner] must show

that the deficient performance prejudiced [his] defense.

This requires [a] showing that counsel’s errors were so

serious as to deprive the defendant [or petitioner] of a

fair trial, a trial whose result is reliable. Unless [the]

defendant [or petitioner] makes both showings, it cannot be said that [his] conviction . . . resulted from a

breakdown in the adversary process that renders the

result [of conviction] unreliable.’’ (Internal quotation

marks omitted.) Skakel v. Commissioner of Correction,

329 Conn. 1, 30, 188 A.3d 1 (2018), cert. denied, U.S.

, 139 S. Ct. 788, 202 L. Ed. 2d 569 (2019).

‘‘With respect to the first component of the Strickland

test, the proper standard for attorney performance is

that of reasonably effective assistance. . . . Consequently, to establish deficient performance by counsel,

a [petitioner] must show that, considering all of the

circumstances, counsel’s representation fell below an

objective standard of reasonableness as measured by

prevailing professional norms.’’ (Citation omitted; internal quotation marks omitted.) Id., 31. ‘‘The first prong

[of the Strickland test] requires a showing that counsel

made errors so serious that counsel was not functioning

as the counsel guaranteed the defendant by the [s]ixth

[a]mendment.’’ (Internal quotation marks omitted.)

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

537 n.4, 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). ‘‘[T]he [petitioner] must overcome the presumption that, under the circumstances, the challenged

action [of counsel] might be considered sound trial

strategy.’’ (Internal quotation marks omitted.) Skakel v.

Commissioner of Correction, supra, 329 Conn. 31.

‘‘[A] fair assessment of attorney performance requires

that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances

of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.

Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.’’ (Internal quotation marks

omitted.) Meletrich v. Commissioner of Correction, 332

Conn. 615, 627, 212 A.3d 678 (2019). ‘‘[I]n some instances

even an isolated error can support an ineffective-assis-
tance claim if it is sufficiently egregious and prejudicial

. . . [but] it is difficult to establish ineffective assistance when counsel’s overall performance indicates

active and capable advocacy.’’ (Internal quotation

marks omitted.) Doan v. Commissioner of Correction,

193 Conn. App. 263, 284 n.10, 219 A.3d 462, cert. denied,

333 Conn. 944, 219 A.3d 374 (2019).

In People v. Clamuextle, 255 Ill. App. 3d 504, 505, 508,

626 N.E.2d 741, appeal denied, 155 Ill. 2d 567, 633 N.E.2d

8 (1994), the defendant claimed on direct appeal from

his conviction of aggravated battery that he had been

‘‘deprived of the effective assistance of counsel when

his attorney failed to seek a continuance during trial

in order to secure the presence of an alibi witness.’’

The defendant had been charged with aggravated battery after a victim was stabbed in her apartment building. Id. The victim identified the defendant as the assailant to her roommate and subsequently to the police.

Id., 505–506. When, however, a police officer interviewed the victim’s roommates on the night of the

attack, none of the roommates could identify the assailant. Id., 506. Further, no weapon or blood was found

in the vicinity of the area of the apartment in which

the attack took place, and the police searches of the

defendant’s apartment uncovered no evidence that he

was involved in the attack. Id. The police found bloodstains on the defendant’s pants on the night of the

attack, but the victim’s blood was not detected on the

defendant’s pants. Id.

At trial, the defendant called his roommate to testify

on his behalf, and his roommate testified that, five

minutes after the attack allegedly had taken place, she

saw the defendant at the restaurant at which she

worked. Id., 507. The roommate, however, admitted

during cross-examination that her husband and the victim previously had a romantic affair and, accordingly,

she ‘‘did not get along with’’ the victim. Id. Following

the roommate’s testimony, the defendant’s trial counsel

informed the court that the final defense witness, the

roommate’s coworker, had failed to appear in court

pursuant to a subpoena with which she had been

served.3

Id. The coworker later averred in an affidavit

that, had she appeared at trial, she would have testified

that ‘‘she had seen the defendant at the restaurant . . .

approximately [ten minutes before the attack], at which

time [the pair] engaged in a brief conversation,’’ and

that ‘‘[a]pproximately [ten] to [fifteen] minutes later,

she observed the defendant in the . . . lobby of the

restaurant.’’ Id., 508. The state presented rebuttal evidence, including the testimony of the victim, who confirmed the romantic relationship between herself and

the roommate’s husband. Id. Despite the fact that the

court ‘‘stated [that] it would allow . . . the defense

. . . to reopen its case when [the coworker] appeared’’

to testify; id., 507; counsel for the defendant ‘‘determined that the [coworker] still had not arrived [follow-
ing the victim’s rebuttal testimony] . . . [and] rested

without seeking a continuance to locate [the

coworker].’’ Id., 508.

On appeal, the defendant argued that his trial counsel

‘‘had been ineffective for failing to seek a continuance

when [the coworker failed to] appear [in court] pursuant to a subpoena’’ that had been served on her. Id.,

508. The court, citing Strickland v. Washington, supra,

466 U.S. 687, first considered whether ‘‘his counsel’s

representation [of him] fell below an objective standard

of reasonableness’’; People v. Clamuextle, supra, 255

Ill. App. 3d 509; and noted that the ‘‘theory of defense

at trial was that the defendant could not have stabbed

[the victim] in her apartment building at [the purported

time of the attack] . . . because at that time he was

either en route to or already present at . . . [the] restaurant.’’ Id. The court stated that, at trial, the ‘‘only

witness to testify . . . about the defendant’s presence

in the restaurant’’; id.; was the roommate, whose ‘‘credibility was damaged . . . on cross-examination . . . .’’

Id. The court noted, ‘‘[t]his [wa]s not a case where the

evidence against the defendant was overwhelming.

. . . The case . . . hinged on whether a jury would

either believe [the victim’s] testimony that the defendant was the assailant, or [the roommate’s] testimony

that at the time of the stabbing the defendant was at

the restaurant . . . .’’ Id., 510. Because the roommate’s

‘‘credibility had been damaged, [the coworker’s] testimony that she, too, saw the defendant at the restaurant

was the key evidence in support of the alibi defense.’’

Id. Specifically, ‘‘[the coworker’s] testimony that she

spoke with the defendant at the restaurant [ten minutes

before the purported time of the attack] and saw him

[in the lobby of the restaurant fifteen] minutes later

would have corroborated [the roommate’s] testimony

[concerning the defendant’s presence at the restaurant]

and bolstered the defendant’s alibi defense.’’ Id., 509–10.

Further, the coworker ‘‘had no . . . obvious reasons

to testify in favor of the defendant,’’ unlike the roommate. Id., 511.

The court acknowledged that counsel for the defendant had contended that he ‘‘did not seek a continuance

. . . to locate [the coworker] . . . because he did not

know why she had failed to appear.’’ Id., 510. The court

stated, however, that ‘‘counsel did not need this information in order to request a continuance’’ under Illinois

law; id.; because ‘‘[a] motion for a continuance sought

to secure the presence of a witness should be granted

[if]: (1) the defendant was diligent in attempting to

secure the witness for trial; (2) the defendant shows

that the testimony was material and might affect the

jury’s verdict; and (3) the failure to grant the continuance would prejudice the defendant.’’ Id. ‘‘All three

[requirements] were met in this case, [but] defense

counsel [nonetheless] mistakenly believed that he did

not have sufficient information to request a continu-
ance.’’ Id. Thus, the court determined that the failure

of counsel for the defense ‘‘to seek the continuance in

order to locate a material witness did not constitute

trial strategy but . . . instead [was] an objectively

unreasonable error.’’ Id. Because the coworker’s ‘‘testimony in support of the defendant was . . . so

important to the defendant’s alibi defense,’’ the court

determined that ‘‘counsel’s error in not seeking a continuance to locate her undermine[d] confidence in the

outcome of the proceeding.’’ Id., 511.

Other courts, like the court in Clamuextle, have determined that, under the relevant factual circumstances

of the cases before them, counsel rendered deficient

performance by failing to request a continuance. In

Dunn v. Jess, 981 F.3d 582, 594–95 (7th Cir. 2020), for

example, the United States Court of Appeals for the

Seventh Circuit concluded that a defendant’s trial counsel’s performance was deficient when, inter alia, counsel failed to request a continuance to review certain

expert reports he received shortly before trial, which

contained exculpatory information. See also Woolley v.

Rednour, 702 F.3d 411, 415, 423 (7th Cir. 2012) (counsel’s performance was deficient when counsel failed to

request continuance to take remedial measures after

state untimely disclosed expert opinion on first day of

trial), cert. denied sub nom. Woolley v. Harrington, 571

U.S. 821, 134 S. Ct. 95, 187 L. Ed. 2d (2013); Turpin

v. Bennett, 272 Ga. 57, 57–58, 525 S.E.2d 354 (2000)

(counsel’s performance was deficient when counsel

failed to request continuance to locate new expert witness or take other remedial measures after defendant’s

initial expert suffered from dementia episode while testifying at trial); People v. Vera, 277 Ill. App. 3d 130,

138–39, 660 N.E.2d 9 (1995) (counsel’s performance was

deficient when counsel failed to request continuance

to hire interpreter to translate from Spanish to English

contents of audio recording, which allegedly included

exculpatory information), appeal denied, 167 Ill. 2d 567,

667 N.E.2d 1062 (1996).

Having considered the facts of the present case in

light of the foregoing, I disagree with the habeas court’s

determination that trial counsel’s performance was not

deficient. Because, as I have stated, trial counsel elected

not to pursue a claim of self-defense, the most, if not

only, viable theory of the case that trial counsel could

have pursued at trial was that the petitioner was not

the shooter. To successfully pursue this theory, it was

crucial for trial counsel to raise reasonable doubt as to

whether the petitioner was the actual shooter. The only

viable way trial counsel could cast such reasonable

doubt would be to present testimony from at least one

witness that the weapon that caused Drew’s death was

in the hands of a person other than the petitioner at

the time the shots were fired. The state’s case was

extremely strong, unless trial counsel presented before

the jury some evidence that supported this alternative
shooter theory.

Like in People v. Clamuextle, supra, 255 Ill. App. 3d

510, the petitioner’s success at trial depended on

whether the jury believed Crooks’ testimony that the

petitioner was the shooter, or Rountree’s testimony that

Pope was the shooter. Unlike in Clamuextle, however,

Rountree’s testimony would not simply have ‘‘bolstered’’ or ‘‘corroborated’’; see id.; the petitioner’s alternative shooter theory; Rountree’s testimony would have

been the only evidence that supported the petitioner’s

theory of the case. As the habeas court noted in its

memorandum of decision, ‘‘Rountree was the only person who identified Pope as the shooter, so the [petitioner’s alternative shooter theory] hinged on [the admission of] Rountree’s [recorded] statement [or]

testimony.’’ (Emphasis added.)

Given these high stakes, in my view, trial counsel

was obligated to take additional steps to ensure that

Rountree’s testimony identifying Pope as the shooter

was presented before the jury. It was not sufficient for

trial counsel to attempt to have admitted Rountree’s

recorded statement under the residual exception to the

hearsay rule. Section 8-9 of the Connecticut Code of

Evidence, which sets forth the residual exception to

the hearsay rule, ‘‘allows a trial court to admit hearsay

evidence not admissible under any of the established

[hearsay] exceptions’’; (internal quotation marks omitted) State v. Bennett, 324 Conn. 744, 762, 155 A.3d 188

(2017); but only ‘‘if the court determines that (1) there

is a reasonable necessity for the admission of the statement, and (2) the statement is supported by equivalent

guarantees of trustworthiness and reliability that are

essential to other evidence admitted under traditional

exceptions to the hearsay rule.’’ Conn. Code Evid. § 8-

9. As this court and our Supreme Court have iterated,

‘‘[t]he residual hearsay [exception] [should be] applied

in the rarest of cases . . . .’’ (Emphasis added; internal

quotation marks omitted.) State v. Bennett, supra, 762;

see also State v. Heredia, 139 Conn. App. 319, 331, 55

A.3d 598 (2012), cert. denied, 307 Conn. 952, 58 A.3d 975

(2013). ‘‘[T]he [residual] exception is not to be treated

as a broad license to admit hearsay inadmissible under

other exceptions, and is to be used very rarely and

only in exceptional circumstances.’’ (Emphasis added;

footnote omitted.) State v. Dollinger, 20 Conn. App.

530, 540, 568 A.2d 1058, cert. denied, 215 Conn. 805,

574 A.2d 220 (1990).

Given the circumstances, the probability was slim

that a court would have concluded that ‘‘there [was] a

reasonable necessity for the admission of the statement,

and . . . the statement [was] supported by equivalent

guarantees of trustworthiness and reliability that are

essential to other evidence admitted under traditional

exceptions to the hearsay rule’’; (emphasis added)

Conn. Code Evid. § 8-9; such that the statement should
be admitted under the residual exception. The bitter

reality was that it was highly unlikely that the court

would conclude that Rountree’s recorded statement

was admissible under that narrow exception. After the

court concluded that Rountree’s recorded statement

was inadmissible under the residual exception to the

hearsay rule, trial counsel then had little choice but to

ask the trial court for additional time to find Rountree

and to compel his appearance so that he could testify

before the jury. I can divine no reason, strategic or

otherwise, as to why his trial counsel should not have

taken such a simple step.

In concluding that the petitioner had failed to prove

that his trial counsel’s performance was deficient, the

habeas court relied on the facts that trial counsel hired

a private investigator to serve a subpoena on Rountree,

requested a capias warrant after Rountree failed to

appear at trial, and attempted to enter into evidence

Rountree’s recorded statement under the residual hearsay exception. By relying on these facts, however, the

habeas court overlooked the reality that, once the trial

court concluded that Rountree’s recorded statement

was inadmissible, the need for Rountree’s live testimony heightened drastically, because, at that point, the

petitioner’s alternative shooter theory entirely ‘‘hinged

on’’ the ability to secure Rountree’s live testimony. Notwithstanding this critical need, trial counsel made no

effort to secure Rountree’s live testimony—including,

but not limited to, requesting that the trial be continued

a few more days to attempt to locate Rountree. Trial

counsel’s failure to request a continuance, in my view,

was objectively unreasonable, given how vital Rountree’s in-court testimony was to the petitioner’s case

and in light of the heightened need for Rountree’s live

testimony after the court concluded that his recorded

statement was inadmissible.

The majority concludes in its opinion that the petitioner has failed to ‘‘overcome the presumption’’ that

trial counsel’s decision not to request a continuance

was ‘‘ ‘sound trial strategy.’ ’’ See Holloway v. Commissioner of Correction, 145 Conn. App. 353, 365, 77 A.3d

777 (2013). In its view, ‘‘undertaking additional efforts

to locate [Rountree] . . . might have resulted in jurors

becoming unavailable and/or the fading of jurors’ memories concerning the petitioner’s case.’’ As I have noted,

however, the court explained to the jury during its opening remarks that the parties expected the evidentiary

portion of the trial to last approximately ‘‘five to six

days.’’ The court additionally stated to the jurors, ‘‘[o]f

course that’s only an estimate; the trial may go a little

longer or a little shorter than that.’’ The court concluded

that Rountree’s recorded statement was inadmissible

on the beginning of the fifth day of the trial—after

only four full days of evidence—and the defense rested

almost immediately after the court made its ruling. Once

the defense rested, the parties immediately proceeded
to closing arguments. Thus, the entire evidentiary portion lasted only four days, as opposed to five or six

days as the jury initially had been advised.

Because the court informed the jury that the evidentiary portion of the trial would last five to six days, it

is reasonably likely that at least twelve of the fifteen

jurors would have been available to continue to serve

if trial counsel requested, and the court granted, a continuance of a few additional days. Had trial counsel

requested such a continuance, the court could have

taken one of the following actions: granted the request

and continued the trial a few days; denied the request,

which the petitioner could have challenged on direct

appeal had he subsequently been convicted; or inquired

of the jurors whether a brief continuance would create

any barriers to the jurors’ continued service. Because,

however, trial counsel never requested a continuance,

the court never asked the jurors whether a continuance

would make it difficult for them to serve. The court

could not deny, or express any concern it had regarding

the ramifications of, a request that trial counsel never

made. Likewise, because trial counsel never requested

a continuance of the trial for a few days, there is no

way of knowing whether undertaking additional efforts

to locate Rountree, as the majority states, ‘‘may well

have been futile . . . .’’ Because, in my view, the petitioner’s trial counsel performed deficiently by failing

to request a continuance to locate Rountree and to

secure his testimony, I conclude that the habeas court

improperly determined that the petitioner failed to meet

its burden of establishing that his trial counsel performed deficiently.

I next turn to the prejudice prong of the Strickland

test—that is, whether trial counsel’s deficient performance prejudiced the petitioner’s defense at trial. See

Skakel v. Commissioner of Correction, supra, 329 Conn.

30. In its memorandum of decision, the habeas court

provided the following conclusory statement as to the

prejudice prong of the Strickland test: ‘‘The petitioner

has also not shown how any deficient performance was

prejudicial. Rountree did not testify in the habeas trial

and, even assuming the showing of deficient performance has been satisfied, this court lacks an evidentiary

basis to assess the prejudice prong of the Strickland

test.’’ I interpret this statement by the court to mean

that it had evaluated the prejudice prong on the basis

of the evidence before it—or lack thereof, with respect

to Rountree’s testimony—and determined that the petitioner had not met his burden as to prejudice.

In determining that the petitioner had failed to prove

prejudice, the habeas court based its conclusion

entirely on the fact that Rountree did not testify before

the habeas court. The reason, however, that the court

could not consider Rountree’s testimony is because

Rountree failed to appear at the habeas trial and the
court denied the petitioner’s request for the issuance

of a capias warrant and a continuance to secure his

appearance at trial. In my view, the court abused its

discretion in denying the petitioner’s request for the

issuance of a capias warrant and corresponding request

for a continuance.

The following additional procedural history is relevant. After the respondent, the Commissioner of Correction, filed a return to the petitioner’s amended petition

for a writ of habeas corpus, the petitioner, who was

representing himself, filed two applications for the issuance of subpoenas, including one for Rountree. On September 14, 2020, a subpoena was issued and served on

Rountree. At the time he was served the subpoena,

Rountree was incarcerated.

As the majority explained, ‘‘[i]t was the petitioner’s

belief, based on the information available on the Department of Correction’s website, that Rountree would be

released from custody after October 8, 2020,’’ the initial

date of the habeas trial. Accordingly, the petitioner reasonably believed that, because Rountree would be

incarcerated at the time of the habeas trial, Rountree’s

presence and testimony at the habeas trial had been

secured. The petitioner learned in late September, 2020,

however, that Rountree’s release date had been

changed to October 2, 2020. To ensure that Rountree

would appear at the habeas trial to testify, the petitioner

filed, through his standby counsel, a motion dated September 24, 2020, to move the date of the habeas trial

from October 8, 2020, to October 1, 2020. The court

denied the motion without prejudice because the

requested date of October 1, 2020, was ‘‘unavailable

for trial.’’

The habeas trial subsequently occurred on October

7 and 8, 2020, and, on October 8, 2020, the petitioner

attempted to call Rountree to testify. By this date,

Rountree already had been released from incarceration.

Rountree failed to honor his subpoena and to appear

in court to testify. The petitioner thus requested that

the habeas court issue a capias warrant to secure Rountree’s attendance at the habeas trial. In connection with

this request, the petitioner additionally requested that

the habeas trial be continued for the purpose of locating

Rountree and effectuating the capias. The petitioner

initially requested that the trial be continued until the

earlier of the following dates: the date on which inperson hearings, which at that time had been suspended

pursuant to the coronavirus pandemic, resumed, or the

date on which Rountree was located. The petitioner,

however, later clarified that a continuance of one month

would be sufficient.

The court denied the petitioner’s request for the issuance of a capias warrant and the corresponding request

for a continuance. The court stated that the petitioner

had the opportunity to secure Rountree’s testimony
prior to the habeas trial by way of deposition, interview,

or recorded statement. The court also stated that the

petitioner’s ‘‘last minute request’’ to move the trial date

‘‘could not be accommodated by the court.’’ The court

ultimately concluded that, because Rountree may have

been located in New Jersey at the time of the habeas

trial, Rountree had declined to provide his location to

the petitioner’s private investigator when asked, and

Rountree had indicated to the petitioner’s private investigator that he had changed his mind about testifying,

it ‘‘[saw] no reasonable basis to grant [the petitioner’s

request for a] capias [warrant]’’ and found ‘‘no reasonable basis to . . . continue th[e] matter . . . .’’

As our Supreme Court has stated, ‘‘[i]f one is not

warranted in refusing to honor a subpoena and it is clear

to the court that his absence will cause a miscarriage

of justice, the court should issue a capias to compel

attendance. [It is] not, however . . . mandatory for the

court to issue a capias when a witness under subpoena

fails to appear; issuance of a capias is in the discretion

of the court. The court has the authority to decline to

issue a capias when the circumstances do not justify

or require it. . . . In determining whether there has

been an abuse of discretion, the ultimate issue is

whether the court could reasonably conclude as it did.’’

(Footnote omitted; internal quotation marks omitted.)

Greene v. Commissioner of Correction, 330 Conn. 1,

32–33, 190 A.3d 851 (2018), cert. denied sub nom. Greene

v. Semple, U.S. , 139 S. Ct. 1219, 203 L. Ed. 2d

238 (2019).

In my view, the court abused its discretion by denying

the petitioner’s requests for the issuance of a capias

warrant and a corresponding continuance to secure

Rountree’s appearance at the habeas trial for several

reasons. First, Rountree’s expected testimony identifying Pope, rather than the petitioner, as the shooter

was critical to the issue of prejudice. The admission of

this testimony at the habeas trial was essential for the

petitioner to meet his burden as to the prejudice prong

of the Strickland test.4

Second, the petitioner had taken several steps to

ensure Rountree’s attendance at the habeas trial by

requesting that a subpoena be issued for and served on

Rountree. The petitioner believed that Rountree would

be incarcerated at the time of the habeas trial based

on the information available on the Department of Correction’s website and, accordingly, would testify at the

habeas trial. In accordance with this belief, there was

little need for the petitioner, who was incarcerated and

representing himself, to depose Rountree. Once he

learned that Rountree’s date of release from incarceration fell before the date of the habeas trial, he wisely

moved to change the date of the habeas trial. Despite

the petitioner’s efforts, Rountree slipped out of the petitioner’s grasp after he was released from incarceration.
Given these circumstances, it was by no fault of the

petitioner that Rountree failed to appear to testify at

the habeas trial. Cf. Greene v. Commissioner, supra,

330 Conn. 32–33 (citing, as reason for concluding that

habeas court did not abuse its discretion when it denied

petitioner’s request for issuance of capias warrant to

secure witness’ appearance at habeas trial, fact that

‘‘the court reasonably could have concluded that the

petitioner was partially responsible for [the witness’]

failure to appear’’ at habeas trial).

Third, the court provided no justification for its determination that it was unreasonable to delay the habeas

trial for one month. Unlike the petitioner’s criminal

trial, the habeas trial was a bench trial; there were no

jurors who might have become unavailable if the habeas

court granted the petitioner’s requests for a capias warrant and a continuance of one month to locate Rountree.

The fact that the marshal service ‘‘potential[ly]’’ may

have faced difficulty locating Rountree echoes the very

reason that the petitioner sought to have the habeas

trial date moved in the first place—because the petitioner was concerned that Rountree’s presence at trial

would be difficult to secure if he was released from

incarceration. The fact that the marshal service ‘‘potential[ly]’’ may have faced difficulty locating Rountree

likewise demonstrated why the petitioner’s request for

a capias warrant was reasonable—because Rountree

successfully had evaded the subpoena with which he

had been served.

In light of the foregoing, in my view, the habeas court

improperly determined that the performance of the petitioner’s trial counsel was not deficient. Additionally, I

conclude that the habeas court abused its discretion

by denying the petitioner’s request for the issuance of

a capias warrant and the corresponding request for a

continuance to secure Rountree’s appearance at the

habeas trial. Because it abused its discretion and, thus,

did not hear Rountree’s testimony, the court did not

have the opportunity to assess properly the issue of

prejudice—a limitation of the court’s own doing. Thus,

to the extent that the court nonetheless concluded that

the petitioner failed to prove prejudice, I would reverse

that determination. Consequently, I would remand the

case to the habeas court with direction to grant the

petitioner’s request for the issuance of a capias warrant

to secure Rountree’s appearance, and to hold a new

trial on the issue of prejudice.

For these reasons, I respectfully concur and dissent.

1 After the court concluded that Rountree’s recorded statement was inadmissible, the court asked the parties whether they would like to be heard

as to the court’s proposed jury instructions and, after the parties declined,

summoned the jury to return to the courtroom. After the jury returned to

the courtroom and counsel stipulated to the presence of the jurors, the

defense rested.

2 Specifically, the court stated in its opening remarks to the jury on the

first day of the trial: ‘‘As I’ve told you, the lawyers have informed me they

expect the evidentiary portion of this trial to take approximately five to six
days. Of course that’s only an estimate; the trial may go a little longer or

a little shorter than that. . . . [I]t’s inevitable that there will be some delays

during the trial, unanticipated things always happen.’’ (Emphasis added.)

3

In an affidavit that the defendant filed in connection with a posttrial

motion for judgment notwithstanding the verdict or, alternatively, a new

trial, the coworker averred that she had informed counsel for the defendant

that she was unavailable to appear to testify in court on the date listed on

the subpoena and that she ‘‘mistakenly [had] thought that she was not

supposed to be in court until 1:30 p.m. on’’ the date on which she was

available to appear. People v. Clamuextle, supra, 255 Ill. App. 3d 508. She

further averred that ‘‘she learned that she was supposed to have appeared

in the morning [on the date on which she was available to appear] only

after the case had gone to the jury for deliberation.’’ Id.

4 Additionally, Rountree’s testimony—the content of which we have no

way of knowing with certainty—may very well have been relevant to the

issue of trial counsel’s deficient performance. For example, if Rountree

testified that, at the time of the criminal trial, he easily could have been

located, that fact would make stronger the petitioner’s argument that trial

counsel should have requested a continuance of the trial date for a few

days to locate Rountree.