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*********************************************** 
MICHAEL HOLBROOK v. COMMISSIONER

OF CORRECTION

(AC 41165)

DiPentima, C. J., and Alvord and Flynn, Js.

Syllabus

The petitioner, who had been convicted of manslaughter in the first degree

with a firearm in connection with the shooting death of the victim,

sought a writ of habeas corpus, claiming, inter alia, that his prior habeas

counsel, D, had rendered ineffective assistance by declining to pursue

a claim that the petitioner’s criminal trial counsel, R, had rendered

ineffective assistance when R chose not to call a witness, T, in the

petitioner’s second criminal trial after his first trial had ended in a

mistrial. The habeas court concluded that D had exercised professional

judgment in winnowing down a list of twenty-seven possibly viable

claims he had included in his habeas petition and had made a reasonable

strategic decision not to pursue the ineffective assistance claim as to

R. The habeas court further concluded that R’s decision not to call

T to testify at the second criminal trial did not constitute deficient

performance but, rather, was a strategic decision. The court reasoned

that T was impeachable by virtue of her prior personal connection with

the petitioner and two inconsistent written statements that she had

given to the police concerning the shooting. In her first statement, T

stated that there had been a fight and that the petitioner indicated that

he had been hit, but in her second statement she denied that a fight

occurred and did not remember the petitioner stating that he had been

hit. The habeas court rendered judgment denying the habeas petition,

from which the petitioner, on the granting certification, appealed to this

court. Held:

1. The habeas court properly determined that the petitioner failed to prove

that D rendered ineffective assistance by failing to pursue a claim that

R had been ineffective for failing to call T as a witness; R’s strategic

decision not to call T did not constitute deficient performance, as R

inferentially made a presumptively prudential decision on whether to

use T’s second statement to the police, which could have led to further

impeachment evidence as to T, R’s trial strategy in not calling T to the

witness stand was influenced by the fact that the state’s witnesses had

considerable baggage in terms of prior criminal histories, inconsistent

statements, and losses of memory and recantations, which resulted in

their prior written signed statements being admitted into evidence for

substantive purposes, and the admission into evidence of T’s statements

would have rendered less persuasive a defense argument that the state’s

witnesses were all over the place, could not remember and were inconsistent.

2. There was no merit to the petitioner’s claim that the prosecution suppressed evidence that was favorable to him when it allegedly failed to

disclose that it had delayed making a plea offer to an eyewitness until

after the eyewitness testified in the petitioner’s second criminal trial;

the petitioner failed to present any credible evidence that there was an

agreement between the state and the witness that the state failed to

disclose, the petitioner’s claim was not distinctly raised in his habeas

petition, and his counsel conceded at oral argument before this court

that there is no authority for the proposition that the state is obligated

to make a plea offer to a witness who is himself facing criminal charges

before giving testimony in a case.

Argued January 10—officially released April 2, 2019

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, Hon. John F. Mulcahy,

Jr., judge trial referee; judgment denying the petition,
from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

Vishal K. Garg, assigned counsel, for the appellant

(petitioner).

C. Robert Satti, Jr., supervisory assistant state’s attorney, with whom, on the brief, were John C. Smriga,

state’s attorney, and Emily D. Trudeau, assistant state’s

attorney, for the appellee (respondent).
Opinion

FLYNN, J. The petitioner, Michael Holbrook, appeals

from the judgment of the habeas court denying his

amended petition for a writ of habeas corpus. On

appeal, the petitioner claims that the court improperly

concluded that he failed to prove (1) ineffective assistance of his prior habeas counsel, and (2) that the state

suppressed exculpatory evidence at his criminal trial

in violation of Brady v. Maryland, 373 U.S. 83, 87, 83

S. Ct. 1194, 10 L. Ed. 2d 215 (1963).1 We affirm the

judgment of the habeas court.

The following facts and procedural history surrounding the petitioner’s conviction were set forth by

this court in our decision on direct appeal affirming the

petitioner’s conviction: ‘‘John Fred Dean was shot and

killed inside a Bridgeport nightclub known as the Factory. The state charged the [petitioner] . . . with

Dean’s murder. In 2003, the [petitioner’s] first jury trial

ended in a mistrial. After a second trial, in 2004, the

jury found the [petitioner] not guilty of murder but

found him guilty of the lesser included offense of manslaughter in the first degree with a firearm in violation

of General Statutes § 53a-55a (a). The jury also made

a finding that the [petitioner] had committed a class A,

B or C felony with a firearm in violation of General

Statutes § 53-202k. The trial court rendered judgment

in accordance with the verdict and sentenced the [petitioner] to a total effective term of thirty-five years incarceration.’’ State v. Holbrook, 97 Conn. App. 490, 492, 906

A.2d 4, cert. denied, 280 Conn. 935, 909 A.2d 962 (2006).

In June, 2007, the petitioner filed a petition for a writ

of habeas corpus, which was denied by the court, T.

Santos, J., following a trial. On appeal, this court

affirmed the denial of the petition. Holbrook v. Commissioner of Correction, 149 Conn. App. 901, 87 A.3d 631,

cert. denied, 311 Conn. 952, 91 A.3d 464 (2014).

In June, 2014, the petitioner, who was then self-represented, filed a petition for a writ of habeas corpus.

Thereafter, represented by counsel, the petitioner filed

an amended petition alleging ineffective assistance of

his trial counsel, Attorney Frank J. Riccio, for declining

to call Cherise Thomas as a witness; ineffective assistance of prior habeas counsel, Attorney Michael Day,

for failing to pursue a claim that trial counsel was ineffective for failing to call Thomas as a witness; and the

failure of the state to produce exculpatory information

to the petitioner. The court, Hon. John F. Mulcahy,

Jr., judge trial referee, denied the petition. The court

thereafter granted the petition for certification to

appeal. This appeal followed.

I

The petitioner claims that the court erred in concluding that Day did not render ineffective assistance for

declining in the prior habeas proceeding to pursue a
claim that Riccio was ineffective for failing to call

Thomas as a witness in the underlying criminal trial.

We do not agree.

‘‘It is well established that [a] criminal defendant is

constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings . . . . This right arises under the sixth and

fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . As enunciated in Strickland v. Washington,

[466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984)] . . . [a] claim of ineffective assistance of counsel consists of two components: a performance prong

and a prejudice prong. To satisfy the performance prong

. . . the petitioner must demonstrate that his attorney’s

representation was not reasonably competent or within

the range of competence displayed by lawyers with

ordinary training and skill in the criminal law. . . . An

ineffective assistance of counsel claim will succeed only

if both prongs [of Strickland] are satisfied.’’ (Citations

omitted; internal quotation marks omitted.) Sanders v.

Commissioner of Correction, 169 Conn. App. 813, 823,

153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d

536 (2017).

‘‘[When] applied to a claim of ineffective assistance

of prior habeas counsel, the Strickland standard

requires the petitioner to demonstrate that his prior

habeas counsel’s performance was ineffective and that

this ineffectiveness prejudiced the petitioner’s prior

habeas proceeding. . . . Therefore, as explained by

our Supreme Court in Lozada v. Warden, 223 Conn. 834,

613 A.2d 818 (1992), a petitioner claiming ineffective

assistance of habeas counsel on the basis of ineffective

assistance of [trial] counsel must essentially satisfy

Strickland twice: he must prove both (1) that his

appointed habeas counsel was ineffective, and (2) that

his [trial] counsel was ineffective. . . . We have characterized this burden as presenting a herculean task

. . . .’’ (Citations omitted; internal quotation marks

omitted.) Mukhtaar v. Commissioner of Correction,

158 Conn. App. 431, 438–39, 119 A.3d 607 (2015).

The habeas court noted that Day, ‘‘in an abundance

of caution,’’ included twenty-seven claims in his habeas

petition, but upon further analysis pursued only six of

the listed claims, which did not include the claim of

ineffective assistance of trial counsel for failure to call

Thomas as a witness. The habeas court concluded that

Day’s procedure of ‘‘exercising professional judgment

. . . in winnowing down from the long list of claims

initially thought to be possibly viable’’ did not constitute

deficient performance. We will not disturb the court’s

finding that Day’s decision not to pursue the claim at

issue was a reasonable strategic decision. ‘‘[A]

reviewing court is required not simply to give [the trial

attorney] the benefit of the doubt . . . but to affirma-
tively entertain the range of possible reasons . . .

counsel may have had for proceeding as [he] did . . . .

[S]trategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually

unchallengeable . . . .’’ (Citation omitted; internal

quotation marks omitted.) Michael T. v. Commissioner

of Correction, 319 Conn. 623, 632–33, 126 A.3d 558

(2015). Additionally, ‘‘the failure to pursue unmeritorious claims cannot be considered conduct falling below

the level of reasonably competent representation.’’

(Internal quotation marks omitted.) Tillman v. Commissioner of Correction, 54 Conn. App. 749, 756–57,

738 A.2d 208, cert. denied, 251 Conn. 913, 739 A.2d

1250 (1999).

The court further found that Strickland’s prejudice

prong was not satisfied because, ‘‘based on the previous

analysis of trial counsel’s tactical decision regarding

the Thomas statements,’’ a reasonable probability did

not exist that the result of the first habeas trial would

have been different had Day pursued the claim that

Riccio was ineffective for failing to call Thomas as a

witness. In analyzing the merits of the underlying claim

of ineffective assistance of trial counsel, the court concluded that Riccio, who had represented the petitioner

in both criminal trials and who had died before the

petitioner brought his second petition for a writ of

habeas corpus, was ‘‘seasoned,’’ and was an ‘‘exceedingly experienced, skilled and proficient criminal

defense attorney.’’2

The court concluded that Riccio’s strategic decision

not to call Thomas to testify at the second criminal trial

did not constitute deficient performance. Thomas was

impeachable by virtue of her prior personal connection

with the petitioner, whom she had known for years.

Thomas gave two statements on different dates to the

police, recounting the events that occurred at the Factory nightclub on the night of the shooting. Both statements were admitted as full exhibits at the second

habeas trial. The second habeas court found that the

two statements that Thomas had given to the police on

separate dates were inconsistent. In the first statement,

Thomas said there had been a fight and that the petitioner indicated that he had been ‘‘hit,’’ but in her second

statement she denied that a fight occurred and did not

remember the petitioner stating that he had been hit.

The court concluded that Thomas’ first statement to

the police that the petitioner had told her that he had

been hit might ‘‘lend support’’ to the state’s position

that the petitioner had been involved in a physical fight

with the victim, Dean, which precipitated the shooting

that caused Dean’s death. The court concluded that

Riccio, who had been present during both of Thomas’

statements to the police, inferentially made a ‘‘presumptively prudential decision’’ on whether to use Thomas’

second statement that could have led to further

impeachment evidence as to Thomas.
The court noted that Riccio’s trial strategy in not

calling Thomas to the witness stand was influenced by

the fact that the state’s witnesses brought considerable

‘‘ ‘baggage’ ’’ in terms of prior criminal histories, inconsistent statements, losses of memory and recantations,

and that where those witnesses recanted or professed

some loss of memory their prior written signed statements were admitted for substantive purposes under

authority of State v. Whelan, 200 Conn. 743, 753, 513

A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L.

Ed. 2d 598 (1986). In his summation to the jury, Riccio

pointed out the inconsistencies in the testimony of the

state’s witnesses. Riccio testified in the first habeas

trial that ‘‘I’ve never seen it [Whelan] used as much as

it was in this particular case.’’ The second habeas court

stated in its decision: ‘‘An offer and admission of the

Thomas statements by the defense would introduce yet

another (in the court’s view, material) inconsistency,

resulting quite likely in another Whelan admission, this

time involving a defense witness. Such would render

less persuasive a defense argument in summation that

the state’s witnesses were all over the place, could not

remember, and were inconsistent.’’

The court concluded that Riccio, who had heard and

observed Thomas at the time of her statements, made

a strategic decision not to have Thomas testify that

‘‘should not now be second-guessed.’’ Michael T. v.

Commissioner of Correction, supra, 319 Conn. 632–33.

As we have noted previously, reasonable strategic

choices made after a thorough investigation are virtually unchallengeable. Id. After a careful review of the

record, we conclude that the habeas court properly

determined that the petitioner had failed to prove his

claim of ineffective assistance of habeas counsel.

II

We next turn to the petitioner’s claim that the court

improperly rejected his claim that the prosecution suppressed evidence favorable to him in violation of Brady

v. Maryland, supra, 373 U.S. 83. Specifically, the petitioner claims that the prosecution failed to disclose

that it had declined to make any plea offers to Gary

Browning, an eyewitness who testified for the state,

regarding his charges of robbery until he testified in

the petitioner’s 2004 criminal trial. We disagree.

‘‘Due process principles require the prosecution to

disclose to the defense evidence that is favorable to

the defendant and material to his guilt or punishment.

. . . In order to obtain a new trial for improper suppression of evidence, the petitioner must establish three

essential components: (1) that the evidence was favorable to the accused; (2) that the evidence was suppressed by the state—either inadvertently or wilfully;

and (3) that the evidence was material to the case,

i.e., that the accused was prejudiced by the lack of
disclosure. . . .

‘‘The state’s failure to disclose an agreement with a

cooperating witness may be deemed to be the withholding of exculpatory evidence. Impeachment evidence

falls within Brady’s definition of evidence favorable to

an accused. . . . Impeachment evidence is broadly

defined in this context as evidence that could potentially alter the jury’s assessment of a witness’ credibility.

. . . Specifically, we have noted that [a] plea agreement

between the state and a key witness is impeachment

evidence falling within the . . . Brady doctrine.’’ (Citations omitted; internal quotation marks omitted.) Marquez v. Commissioner of Correction, 330 Conn. 575,

592, 198 A.3d 562 (2019). ‘‘Any . . . understanding or

agreement between any state’s witness and the state

police or the state’s attorney clearly falls within the

ambit of Brady principles.’’ (Internal quotation marks

omitted.) Elsey v. Commissioner of Correction, 126

Conn. App. 144, 152–53, 10 A.3d 578, cert. denied, 300

Conn. 922, 14 A.3d 1007 (2011). ‘‘[A]n unexpressed

intention of the state not to prosecute a witness does not

fall within the ambit of the Brady principles concerning

disclosure by the prosecution of evidence favorable to

an accused.’’ (Internal quotation marks omitted.) State

v. Rucker, 177 Conn. 370, 376, 418 A.2d 55 (1979).

‘‘The question of whether there existed an agreement

between [a witness] and the state is a question of fact

. . . . When reviewing the decision of a habeas court,

the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous.’’

(Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 116 Conn. App. 400, 407, 975 A.2d

740, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009).

‘‘Furthermore, the burden is on the defendant to prove

the existence of undisclosed exculpatory evidence.’’

State v. Floyd, 253 Conn. 700, 737, 756 A.2d 799 (2000).

‘‘Whether the petitioner was deprived of his due process

rights due to a Brady violation is a question of law, to

which we grant plenary review.’’ (Internal quotation

marks omitted.) Peeler v. Commissioner of Correction,

170 Conn. App. 654, 689, 155 A.3d 772, cert. denied, 325

Conn. 901, 157 A.3d 1146 (2017).

The petitioner contends that the prosecution delayed

making a plea offer to Browning until after Browning

testified in the petitioner’s 2004 criminal trial. This claim

rests on a very slender reed. The first habeas court

found Browning not to be a credible witness, and he

did not testify before the second habeas court. The only

evidence of the allegation of a delayed plea offer is in

a statement by Browning made in the first habeas trial

in which he stated: ‘‘No, they wouldn’t give me an offer

until after I testified.’’ The habeas court made no finding

that the prosecution had made any statement to that

effect, and the petitioner’s claim is not distinctly raised

in his habeas petition. At oral argument before this
court, the Brady claim morphed into a claim that the

state had waited to make a plea offer to Browning,

the cooperating witness, until after he gave testimony.

However, not only is there nothing in the petition that

raises this claim distinctly, there is no finding by the

habeas court that the prosecution ever told Browning

that an offer of a sentence would be made in return

for his guilty plea, but not until after his testimony. The

petitioner’s counsel conceded at oral argument that

there is no authority for the proposition urged by the

petitioner that the state is under an obligation to make

a plea offer to a witness who is himself facing criminal

charges before he gives testimony in a case. Here, the

court made a finding that ‘‘the petitioner has failed to

present any credible evidence that there was an actual

or implied agreement between the state and Gary Browning that the state failed to disclose.’’ The petitioner’s

claim of a Brady violation is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The petitioner also claims that the court improperly concluded that he

had failed to prove that his trial counsel was ineffective for declining to

call a certain witness to testify at the underlying criminal trial. In its memorandum of decision, the habeas court dismissed the claim of ineffective

assistance of trial counsel on the grounds that it was barred by res judicata

and that it was successive. The court also determined that the claim was

barred by laches and, alternatively, that the petitioner could not prevail on

the merits. At oral argument before this court, the petitioner’s counsel

conceded that the claim of ineffective assistance of trial counsel, by itself,

was successive. In light of this concession, we do not examine the merits

of the petitioner’s claim of ineffective assistance of trial counsel separately

but only to the extent that his claim of ineffective assistance of prior habeas

counsel is premised on such a claim. See Mukhtaar v. Commissioner of

Correction, 158 Conn. App. 431, 438–39, 119 A.3d 607 (2015).

2 The court in the petitioner’s second habeas trial had ample evidence of

the seasoned nature of Riccio’s representation, including a transcript of

Riccio’s testimony in the petitioner’s first habeas case that was admitted

as a full exhibit in the second habeas proceeding. In the petitioner’s first

criminal trial, Riccio raised enough doubt that the jury was ‘‘hung,’’ unable

to agree on a verdict. In the petitioner’s second criminal trial, Riccio succeeded in convincing the jury to return a not guilty verdict as to murder,

and the petitioner was found guilty of the lesser included and less serious

offense of manslaughter in the first degree in violation of § 53a-55a. Riccio

testified at the first habeas trial that he had had thirty-five to forty murder

trials in Connecticut state courts, had tried twelve federal criminal cases

to conclusion and had been involved in approximately 100 other federal

criminal cases. The record shows that Riccio had wide experience and had

twice obtained results in two successive criminal trials in which the petitioner was not convicted of the most serious crime with which he was

charged, namely, murder.