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LAWRENCE SMITH v. COMMISSIONER

OF CORRECTION

(AC 34321)

DiPentima, C. J., and Gruendel and West, Js.

Argued October 17, 2013—officially released March 4, 2014

(Appeal from Superior Court, judicial district of

Tolland, Cobb, J.)

Sarah F. Summons, assigned counsel, for the appellant (petitioner).

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

with whom, on the brief, were Michael Dearington,

state’s attorney, and David Clifton, assistant state’s

attorney, for the appellee (respondent).
Opinion

DiPENTIMA, C. J. The petitioner, Lawrence Smith,

appeals from the judgment of the habeas court denying

in part his petition for a writ of habeas corpus. On

appeal, the petitioner claims that the court improperly

determined that he received effective assistance of trial

and appellate counsel. We are not persuaded by the

petitioner’s arguments, and, accordingly, affirm the

judgment of the habeas court.

A jury found the petitioner guilty of murder in violation of General Statutes §§ 53a-54a (a) and 53a-8 (a),

felony murder in violation of General Statutes §§ 53a54c and 53a-8 (a), conspiracy to commit murderin violation of General Statutes §§ 53a-48 (a) and 53a-54a, conspiracy to commitrobbery in the first degree in violation

of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2),

and hindering prosecution in the first degree in violation

of General Statutes § 53a-165 (5). In affirming the petitioner’s conviction, our Supreme Court noted the following facts underlying the crimes committed by the

petitioner: ‘‘On July 21, 2000, Robert Marrow and Jonathan Rivers, acting on the orders of Miguel Estrella, a

drug dealer in Meriden, met the victim, Juan Disla, who

was a rival drug dealer, at a Dairy Queen in Meriden

to rob him. During the course of the robbery, Marrow

shot the victim in the leg. Marrow contacted Estrella for

instructions and was told to drive to the [petitioner’s]

house. Marrow and Rivers took the victim, whom they

had bound with duct tape, to the [petitioner’s] house,

where Estrella and the [petitioner] removed money and

cocaine from the victim’s vehicle. Thereafter, the [petitioner], Estrella, Rivers and Marrow drove the victim

to a remote location in a wooded area in the Higganum

section of Haddam, where the victim was suffocated

to death. The four men left the victim’s body in the

woods and returned to Meriden. That evening, Estrella,

Marrow, Rivers and some friends drove the victim’s car

to New York state and abandoned it on the highway,

where it eventually was vandalized.

‘‘The state also offered evidence, which the [petitioner] unsuccessfully challenges in this appeal, to

establish the following additional facts. Two days after

the murder, Estrella and the [petitioner] returned to

the location of the victim’s body with a chainsaw, plastic

buckets and several containers of acid. The [petitioner]

used the chainsaw to dismemberthe body whileEstrella

watched. The [petitioner] and Estrella then placed the

body parts in the buckets and covered them with acid

to destroy them. The [petitioner] subsequently disposed

of any remains. The victim’s body was never recovered,

and no bloodstains, DNA or bones ever were found.

‘‘The record reflects the following procedural history.

In 2001, the [petitioner] was arrested in connection

with the murder of the victim. He was charged with
conspiracy to commit murder in violation of §§ 53a-48

(a) and 53a-54a, and kidnapping in the first degree in

violation of General Statutes § 53a-92. On December 5,

2001, after the [petitioner] had moved for a speedy

trial, the state entered a nolle prosequi of the charges

pursuant to the missing witness provision of General

Statutes § 54-56b and Practice Book § 39-30. The state

represented that Estrella, an essential witness in the

case, was asserting his fifth amendment privilege

against self-incrimination and therefore would be

unavailable to testify. The [petitioner] filed a motion to

dismiss the charges on the ground, inter alia, that he

had been denied a speedy trial. The court, Fasano, J.,

denied the motion, and thereafter, the [petitioner] was

released from custody.

‘‘Pursuant to a warrant dated March 9, 2005, the [petitioner] subsequently was rearrested in connection with

the murder of the victim. He was charged in a long form

information with murder, felony murder, conspiracy to

commit murder, conspiracy to commit robbery in the

first degree and hindering prosecution in the first

degree. The [petitioner] pleaded not guilty and, after a

jury trial, was found guilty of all the charges. In accordance with the verdict, the trial court, Alexander, J.,

imposed a total effective sentence of seventy-five years

imprisonment.’’ (Footnotes omitted.) State v. Smith,

289 Conn. 598, 602–604, 960 A.2d 993 (2008).

Thereafter, the petitioner commenced this habeas

action. In his second amended petition, filed September

13, 2011, the petitioner alleged that he had received

ineffective assistance of counsel from his first attorney,

Glenn Conway, who had represented him during certain

pretrial proceedings. The petitionerfurther claimed that

Attorney Leo Ahern had provided him with ineffective

assistance of counsel during the criminal trial. Last,

the petitioner alleged ineffective assistance from his

appellate counsel, Attorney Elizabeth Inkster. The petitioner specifically argued that Conway and Ahern

improperly failed to pursue a claim that the petitioner

had a right to a speedy trial under Barker v. Wingo,

407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972),

‘‘because there was a considerable delay from the time

that he was first arrested in 2001 to the time that jury

selection commenced in 2005 and to the time that presentation of evidence commenced in 2006.’’ In count

two, the petitioner contended that Inkster improperly

failed to present his Barker claim during his direct

appeal to our Supreme Court. In count three, the petitioner claimed that Ahern had failed to investigate his

defenses and improperly had advised him not to testify

during the criminal trial. In count four, the petitioner

raised a claim of actual innocence, and in count five,

he alleged that he had not been advised properly of his

ability to seek sentence review.

Following a two day trial, the habeas court issued
a memorandum of decision on January 20, 2012, and

rendered judgment in favor of the respondent, the Commissioner of Correction, on counts one through four

of the second amended petition.1 With respect to counts

one and two of the petition, the court found that Conway, Ahern, and Inkster did not perform deficiently by

not raising a Barker claim. As to count three, the court

found that Ahern’s strategic decisions during the trial

were not deficient and that the petitioner had failed to

establish prejudice. It further found, with respect to the

claim that the petitioner had been advised improperly

not to testify, that Ahern’s advice was objectively reasonable and that the petitioner had knowingly and voluntarily elected not to testify. Finally, the court found in

favor of the respondent on the claim of actual innocence

because ‘‘[t]he petitioner presented no evidence of this

claim at trial and did not brief this issue.’’ On February

1, 2012, the court granted the petition for certification

to appeal from the partial denial of the petition for a

writ of habeas corpus. This appeal followed.

Our standard of review in a challenge to the denial

of a petition for a writ of habeas corpus is long established. We employ plenary review in examining the legal

conclusions of the habeas court, and we consider

whether those conclusions are legally and logically correct and supported by the factual record. Davis v. Commissioner of Correction, 140 Conn. App. 597, 602, 59

A.3d 403, cert. denied, 308 Conn. 920, 62 A.3d 1133

(2013); see also Smith v. Commissioner of Correction,

122 Conn. App. 637, 641, 999 A.2d 840 (2010), cert.

denied, 300 Conn. 901, 12 A.3d 574 (2011). This court

cannot disturb the underlying facts found by the habeas

court unless they are clearly erroneous. Davis v. Commissioner of Correction, supra, 602. Further, the

habeas judge is the ‘‘sole arbiter of the credibility of

witnesses and the weight to be given to theirtestimony.’’

(Internal quotation marks omitted.) Id.

I

We first address the petitioner’s claims surrounding

Barker. Specifically, the petitioner argues that Conway

should have included a Barker claim in the pretrial

motion to dismiss, Ahern should have raised the Barker

claim during the trial, and Inkster should have taken

steps in the direct appeal to present an adequate record

on a Barker claim. We are not persuaded.2

Before addressing the claims against each attorney,

we state the law regarding ineffective assistance of trial

counsel. ‘‘The petitioner’s right to the effective assistance of counsel is assured by the sixth and fourteenth

amendments to the federal constitution, and by article

first, § 8, of the constitution of Connecticut. In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984), the United States Supreme

Court established that for a petitioner to prevail on a

claim of ineffective assistance of counsel, he must show
that counsel’s assistance was so defective as to require

reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced

the defense. . . . Unless a [petitioner] makes both

showings, it cannot be said that the conviction . . .

resulted from a breakdown in the adversary process

that renders the result unreliable. . . .

‘‘With respect to the performance component of the

Strickland test, [t]o prove that his counsel’s performance was deficient, the petitioner must demonstrate

that trial counsel’s representation fell below an objective standard of reasonableness. . . . Competent representation is not to be equated with perfection. The

constitution guarantees only a fairtrial and a competent

attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised. . . . A

fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects

of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct

from counsel’s perspective at the time. Because of the

difficulties inherent in making the evaluation, a court

must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [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. . . . Nowhere is it said, though,

that such a presumption is irrebuttable. As with any

refutable presumption, the petitioner may rebut the presumption on adequate proof of sufficient facts indicating a less than competent performance by counsel. . . .

‘‘With respect to the prejudice component of the

Strickland test, the petitioner must demonstrate that

counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.

. . . It is not enough for the [petitioner] to show that

the errors had some conceivable effect on the outcome

of the proceedings. . . . Rather, [t]he [petitioner] must

show that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome. . . . When a [petitioner] challenges a conviction, the question is whether there is

a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.’’ (Citations omitted; internal quotation marks

omitted.) White v. Commissioner of Correction, 145

Conn. App. 834, 840–42, 77 A.3d 832, cert. denied, 310

Conn. 947, 80 A.3d 906 (2013); see also Spyke v. Commissioner of Correction, 145 Conn. App. 419, 424, 75
A.3d 738 (claim of ineffective assistance of counsel will

succeed only if performance and prejudice prongs are

satisfied), cert. denied, 310 Conn. 932, 78 A.3d 858

(2013).

A

The petitioner argues that Conway, his attorney prior

to trial, should have included a Barker claim in his

motion to dismiss the charges. In a May 5, 2005 memorandum of law in support of the petitioner’s motion to

dismiss the charges, Conway stated that the petitioner

had been arrested on February 1, 2001, and charged

with conspiracy to commit murder and kidnapping in

the first degree. The petitioner filed a motion for a

speedy trial, and the state entered a nolle prosequi as

to all charges. Conway further indicated that ‘‘[t]he

basis for the nolle, as asserted by the state, was an

essential witness, Miguel Estrella, would assert his Fifth

Amendment privilege against self-incrimination and

thus was unavailable to testify.’’3 The court accepted the

state’s nolle and released the petitioner from custody.

Criminal proceedings were reinstituted, and the petitioner was rearrested in March, 2005.

During the habeas trial, Conway testified that he had

researched the issues of speedy trial rights and presented them to the criminal court in the best way he

could. He further indicated that he had made a tactical

decision on how to advance the petitioner’s motion to

dismiss and that the arguments he raised, which did

not include a Barker claim, were the best way to have

the charges against the petitioner dismissed. Conway

also explained his analysis as to why a Barker claim

would not succeed, namely, the likelihood that such a

claim would fail as a result of application of the first and

fourth Barker factors. See footnote 2 of this opinion.

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

be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a

court, examining counsel’s defense after it has proved

unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort

be made to eliminate the distorting effects of hindsight,

to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties

inherent in making the evaluation, a court must indulge

a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance;

that is, the [petitioner] must overcome the presumption

that, under the circumstances, the challenged action

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

Correction, 145 Conn. App. 16, 23–24, 75 A.3d 705, cert.

denied, 310 Conn. 932, 78 A.3d 858 (2013); Coward
v. Commissioner of Correction, 143 Conn. App. 789,

800–801, 70 A.3d 1152, cert. denied, 310 Conn. 905, 75

A.3d 32 (2013).

The petitioner bears the burden of showing that Conway’s actions fell below an objective standard ofreasonableness. See Williams v. Commissioner of Correction,

142 Conn. App. 744, 752, 68 A.3d 111 (2013). Furthermore, we note 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. . . . Likewise, there

is no expectation that competent counsel will be a flawless strategist or tactician . . . .’’ (Citations omitted;

internal quotation marks omitted.) Id., 753; see also

Mozell v. Commissioner of Correction, 291 Conn. 62,

79, 967 A.2d 41 (2009) (‘‘[a]s a general rule, a habeas

petitioner will be able to demonstrate that trial counsel’s decisions were objectively unreasonable only if

there [was] no . . . tactical justification for the course

taken’’ [internal quotation marks omitted]).

The petitioner has failed to sustain his burden in

this case. The habeas court correctly determined that

Conway made a reasonable and sound tactical decision

to file the motion to dismiss that did not include a

Barker claim because he had reasonably concluded that

it had little chance to succeed. Additionally, the court

concluded that the petitioner had failed to demonstrate

that he would have prevailed on his Barker claim. We

note that the petitioner elected not to present the testimony of a legal expert at his habeas trial. ‘‘An expert

witness is not essential to show that an attorney’s performance was so deficient that it fell below the standard

of reasonably effective assistance, but in many cases,

expert testimony is useful.’’ Small v. Commissioner of

Correction, 98 Conn. App. 389, 394, 909 A.2d 533 (2006),

aff’d, 286 Conn. 707, 946 A.2d 1203, cert. denied sub

nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172

L. Ed. 2d 336 (2008); see also Gray v. Commissioner

of Correction, 138 Conn. App. 171, 179, 50 A.3d 406,

cert. denied, 307 Conn. 929, 55 A.3d 570 (2012); Urda

v. Warden, Superior Court, judicial district of Tolland,

Docket No. CV-09-4003248-S (January 4, 2012).

This court recently stated: ‘‘[W]ith regard to the performance prong of Strickland, 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. . . . The law

presumes that counsel is competent until evidence has

been introduced to the contrary. . . . It is elementary

jurisprudence that the determination of whether counsel’s conduct was ineffective is a peculiarly fact bound

inquiry. . . . Moreover, [i]t is well established that a

petitioner in a habeas proceeding cannot rely on mere
conjecture or speculation to satisfy either the performance or prejudice prong [of Strickland] but must

instead offer demonstrable evidence in support of his

claim.’’ (Citations omitted; internal quotation marks

omitted.) Martinez v. Commissioner of Correction, 147

Conn. App. 307, 315–16, A.3d (2013). For these

reasons, we conclude that Conway’s tactical decision

not to raise a Barker claim in his motion to dismiss

fell within the wide range of reasonable professional

assistance and did not amount to ineffective assistance

of counsel.

B

The petitioner next claims that Ahern, his criminal

trial counsel, should have raised a Barker claim after

he replaced Conway. The habeas court concluded that

‘‘it was reasonable for [Ahern] not to file a second

motion to dismiss under Barker v. Wingo [supra, 407

U.S. 514] days before the trial was set to begin, particularly since prior counsel had attended to the pretrial

matters and he was retained to handle the trial of the

case.’’

Ahern testified that he filed his appearance immediately before the trial commenced, and after the pretrial

matters had concluded. Ahern had discussed the petitioner’s case with Conway and had received his file.

Ahern also stated that he had seen the transcript of the

hearing on Conway’s motion to dismiss. Ahern ‘‘felt that

[the speedy trial issue] had been presented. A judge

had ruled on it, and now it was time to try the case.’’

We agree with the habeas court that the petitioner

has failed to meet his burden of proving that Ahern was

ineffective for failing to raise the Barker issue. ‘‘An

attorney can avoid activities that appear distractive

from more important duties. . . . Counsel was entitled

to formulate a strategy that was reasonable at the time

and to balance limited resources in accord with effective trial tactics and strategies.’’(Citation omitted; internal quotation marks omitted.) Harrington v. Richter,

U.S. , 131 S. Ct. 770, 789, 178 L. Ed. 2d 624

(2011). Ahern’s decision to focus on the pending trial

and not to revisit the issue of the Barker claim constituted reasonable strategy and, thus, did not amount to

ineffective assistance.

C

The petitioner next claims that Inkster provided ineffective assistance of counsel during his direct appeal.

Specifically, he argues that Inkster took no action to

present an adequate record regarding a Barker claim

to our Supreme Court. We disagree.

‘‘A criminal defendant’s right to the effective assistance of counsel extends through the first appeal of

right and is guaranteed by the sixth and fourteenth

amendments to the United States constitution and by

article first, § 8, of the Connecticut constitution. . . .
To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged

test articulated in Strickland . . . .’’ (Citation omitted;

internal quotation marks omitted.) Synakorn v. Commissioner of Correction, 124 Conn. App. 768, 771–72,

6 A.3d 819 (2010), cert. denied, 300 Conn. 906, 12 A.3d

1004 (2011). ‘‘Our Supreme Court has distinguished the

standards of review for claims of ineffective assistance

of trial counsel and of appellate counsel. . . . For

claims of ineffective assistance of appellate counsel,

we must assess whether there is a reasonable probability that, but for appellate counsel’s failure to raise the

issue on appeal, the petitioner would have prevailed

[on] appeal, i.e., [obtaining] reversal of his conviction

or granting of a new trial.’’ (Citation omitted; internal

quotation marks omitted.) Johnson v. Commissioner

of Correction, 131 Conn. App. 805, 808, 29 A.3d 166

(2011); Moody v. Commissioner of Correction, 127

Conn. App. 293, 300–301, 14 A.3d 408, cert. denied, 300

Conn. 943, 17 A.3d 478 (2011).

Inkster testified that she reviewed the transcripts of

the petitioner’s criminal trial, identified the possible

legal issues, conducted research, and selected two

issues to pursue on his direct appeal to our Supreme

Court. She specifically considered making a Barker

claim, but decided against it because of the lack of

prejudice. See footnote 2 of this opinion. She expressly

testified that she did not make such an argument

because she felt it lacked a chance of success on appeal

and instead focused on other issues.

‘‘Just as with a claim of ineffective assistance of trial

counsel, success on a claim of ineffective assistance of

appellate counsel requires the petitioner to establish

that appellate counsel’s representation fell below an

objective standard of reasonableness considering all of

the circumstances. . . . [Although] an appellate advocate must provide effective assistance, [she] is not

under an obligation to raise every conceivable issue. A

brief that raises every colorable issue runs the risk of

burying good arguments . . . in a verbal mound made

up of strong and weak contentions. . . . Indeed,

[e]xperienced advocates since time beyond memory

have emphasized the importance of winnowing out

weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. . . .

Moreover, [a] habeas court will not, with the benefit of

hindsight, second-guess the tactical decisions of appellate counsel.’’ (Citation omitted; internal quotation

marks omitted.) Saucier v. Commission of Correction,

139 Conn. App. 644, 651–52, 57 A.3d 399 (2012), cert.

denied, 308 Conn. 907, 61 A.3d 530 (2013); Johnson v.

Commissioner of Correction, supra, 131 Conn. App.

809; see also Synakorn v. Commissioner of Correction,

supra, 124 Conn. App. 775 (‘‘Legal contentions, like the

currency, depreciate through over-issue. The mind of an

appellate judge is habitually receptive to the suggestion
that a lower court committed an error. But

receptiveness declines as the number of assigned errors

increases. Multiplicity hints at a lack of confidence in

any one [issue] . . . . [M]ultiplying assignments of

error will dilute and weaken a good case and will not

save a bad one.’’ [Internal quotation marks omitted.]).

We agree fully with the habeas court that ‘‘the petitioner has failed to prove that . . . Inkster’s representation fell below the objective standard of

reasonableness. Inkster did precisely what the law

requires of her. She reviewed the pleadings and transcripts, identified the possible issues and then strategically determined which issues had the best chance of

winning.’’ Accordingly, we conclude that the habeas

court properly determined that Inkster provided the

petitioner with effective assistance of counsel.

II

We next address the petitioner’s additional claims of

ineffective assistance of counsel as to Ahern. Specifically, he argues that Ahern failed to present evidence

regarding muriatic acid and advised the petitioner not

to testify. We disagree.

A

The petitioner argues that Ahern provided ineffective

assistance of counsel by failing to present evidence

regarding muriatic acid and its ability, or lack thereof,

to dissolve human body parts. At the habeas trial, the

parties stipulated that muriatic acid, even in large quantities, will not dissolve a body.4 The habeas court determined that Ahern made an objectively reasonable

strategic decision not to present evidence regarding the

properties of muriatic acid because of his belief that it

had no value to the petitioner’s defense. The court further reasoned that had such evidence been presented

to the jury, it would not have made any difference in

the outcome. Accordingly, the court concluded that the

petitioner had failed to carry his burden with respect

to both Strickland prongs.

We consider the following additional facts in

addressing this claim. During the petitioner’s criminal

trial, the jury heard recorded statements that Estrella

made to his cellmate in prison that the petitioner had

suggested that they use acid to dispose of the victim’s

body. Estrella was also heard saying that the petitioner

went to The Home Depot to purchase acid for this

purpose. During the habeas trial, Ahern testified that the

state was unable to produce evidence that forensically

linked the petitioner to the death of the victim. Ahern

also explained that conviction of the petitioner was

based exclusively on testimony of codefendants.

In rejecting this claim, the habeas court stated: ‘‘The

victim’s body was never located in this case. Witnesses

testified about the petitioner’s role in the murder of the

victim, and such evidence was sufficient for the jury
to find him guilty of the charges. The issue of how the

victim’s body was secreted after the murder was not a

central issue in the case. The evidence of the murder

and elimination of the body came from eyewitnesses,

not forensic proof. Codefendant Estrella, who raised

the issue of the petitioner’s statement regarding the

acid, was not present when the victim’s dead body was

later concealed by the petitioner and another. The petitioner during his testimony in this case admitted that

he agreed to get rid of the body in exchange for drugs

and did so, with another person, by dragging the body

into a wooded area and throwing it in a watery ditch.

He later told Estrella that he dissolved the body in acid,

but that is not what actually happened.’’

At the outset, we note that ‘‘[i]n its analysis, a

reviewing court may look to the performance prong or

to the prejudice prong, and the petitioner’s failure to

prove either is fatal to a habeas petition.’’ (Internal

quotation marks omitted.) Davis v. Commissioner of

Correction, 147 Conn. App. 343, 349, A.3d

(2013). ‘‘To establish prejudice, a [petitioner] must demonstrate that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different. . . . [I]n a

habeas corpus proceeding, the petitioner’s burden of

proving that a fundamental unfairness had been done

is not met by speculation . . . but by demonstrable

realities.’’ (Emphasis in original; internal quotation

marks omitted.) Id. We agree that the manner in which

the victim’s body was disposed of constituted a collateral issue that would not have affected the verdict.

Accordingly, we conclude that the habeas court properly determined that the petitioner failed to establish

prejudice with respect to this claim.5

B

The petitioner argues that Ahern provided ineffective

assistance by advising him not to testify during the

criminal trial. He argues that because the state’s case

lacked physical or forensic evidence linking the petitioner to the death of the victim and was based exclusively on the statements of convicted felons, Ahern

should not have advised and persuaded him not to testify during the criminal trial.

The habeas court found the following facts relating

to this claim. ‘‘Ahern had ongoing discussions with the

petitioner as to whether or not he should testify in

this case. The petitioner did not have a strong view on

whether he should or should not testify. Although Ahern

advised the petitioner that he had the right to testify,

he strongly advised him not to do so. Ahern explained

to the petitioner that the state had a strong case, but

there were holes in its case. If the petitioner chose to

testify, and testified poorly as Ahern believed he would,

the petitioner could seriously hurt his case. As a convicted felon, the state could use the petitioner’s convic-
tion record on cross-examination. More importantly,

Ahern did not believe that the petitioner had a cohesive

and consistent story to tell the jury.

‘‘In addition, the [criminal] court thoroughly canvassed the petitioner on the record on his decision not

to testify. In particular, the trial court explained to the

petitioner that he had the right to testify in his case or

not testify in this case. It expressly asked him whether

it was his choice not to testify. The petitioner indicated

that he understood his right and elected not to testify.

He also indicated during the canvass that he had discussed the issue with Ahern. . . .

‘‘The court finds that Ahern provided objectively reasonable advice regarding the petitioner’s decision to

testify or not testify. He appropriately reviewed the

state’s evidence with the petitioner and reviewed with

him the substance of what the petitioner would say if he

took the [witness] stand. Based on this, Ahern strongly

advised the petitioner not to testify. Having heard the

petitioner’s version of events during the trial of this

case, this court cannot disagree with Ahern’s judgment

that the petitioner’s story was inconsistent and contained damaging and incriminatory details that would

not have assisted his defense that he was a minor player

in the events of the murder and its aftermath. In addition, the decision whether or not to testify was the

petitioner’s, and it is clear from the [criminal] court’s

canvass, that the petitioner knowingly and voluntarily

elected not to testify. Accordingly, the court finds that

the petitioner has failed to prove that Ahern’s advice

as to whether the petitioner should or should not testify

was in any way deficient.’’

The criminal defendant’s right to testify on his own

behalf, after consultation with counsel, is well established. ‘‘[A]lthough the due process clause of the [f]ifth

[a]mendment may be understood to grant the accused

the right to testify, the if and when of whether the

accused will testify is primarily a matter of trial strategy

to be decided between the defendant and his attorney.’’

(Internal quotation marks omitted.) Coward v. Commissioner of Correction, supra, 143 Conn. App. 799;

see also Wideman v. Commissioner of Correction, 67

Conn. App. 739, 740, 789 A.2d 1097, cert. denied, 260

Conn. 906, 795 A.2d 547 (2002).

The habeas court properly determined that the petitioner had failed to sustain his burden of overcoming

the strong presumption that Ahern provided effective

assistance of counsel. ‘‘[J]udicial scrutiny of counsel’s

performance must be highly deferential. It is all too

tempting for a defendant to second-guess counsel’s

assistance after conviction or adverse sentence, and it

is all too easy for a court, examining counsel’s defense

after it has proved unsuccessful, to conclude that a

particular act or omission of counsel was unreasonable.

. . . A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the

time. . . . [T]here is a strong presumption that the trial

strategy employed by a criminal defendant’s counsel is

reasonable and is a result of the exercise of professional

judgment. . . . It is well established that [a] reviewing

court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that

appears ineffective in hindsight may have been sound

trial strategy at the time.’’ (Internal quotation marks

omitted.) Coward v. Commissioner of Correction,

supra, 143 Conn. App. 800–801.

We agree with the reasoned decision of the habeas

court that Ahern’s advice constituted sound trial strategy and, therefore, did not constitute ineffective assistance of counsel. See, e.g., Toccaline v. Commissioner

of Correction, 80 Conn. App. 792, 815, 837 A.2d 849,

cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied

sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S. Ct.

301, 160 L. Ed. 2d 90 (2004). Accordingly, we conclude

that this claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The habeas court found that Ahern ‘‘did not properly advise the petitioner

as to his right to sentence review after either the March sentencing or the

May 17 correction hearing.’’ It further found that the petitioner suffered

prejudice by this ‘‘absence of access to sentence review’’ and restored his

right to sentence review under General Statutes § 51-195. The issue of sentence review is not before this court on appeal.

2

‘‘The sixth amendment guarantee of a speedy trial is a fundamental right

made applicable to the states through the fourteenth amendment to the

United States constitution. . . . In Barker v. Wingo, [supra], 407 U.S. 514

. . . the United States Supreme Court articulated a balancing test for

determining when a defendant’s constitutionalright to a speedy trial has been

violated. . . . The Supreme Court of the United States and [the Connecticut

Supreme Court] have identified four factors which form the matrix of the

defendant’s constitutional right to speedy adjudication: [l]ength of delay,

the reason for the delay, the defendant’s assertion of his right, and prejudice

to the defendant. . . . A balancing test is to be applied on a case by case

basis. None of the factors standing alone demands a set disposition; rather

it is the total mix which determines whether the defendant’s right was

violated.’’ (Citation omitted; internal quotation marks omitted.) State v.

Gaston, 86 Conn. App. 218, 226, 860 A.2d 1253 (2004), cert. denied, 273

Conn. 901, 867 A.2d 840 (2005); see also State v. Lacks, 58 Conn. App. 412,

417, 755 A.2d 254, cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000).

3 Conway noted that the state cited General Statutes § 54-56b and Practice

Book § 39-30 as the provisions in support of its use of a nolle prosequi.

4 Specifically, the parties stipulated that ‘‘[m]uriatic acid, even in very

large quantities, will not completely dissolve a human body or human body

parts. . . . Muriatic acid as sold at [The] Home Depot and as possessed by

[the petitioner] will not, even in very large quantities, completely dissolve

a human body or human body parts. . . . Muriatic acid is commonly used

to clean concrete, brick and swimming pools.’’

5 We also agree with the habeas court that Ahern’s tactical decision not

to introduce any evidence of muriatic acid did not constitute deficient

performance in this case.