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Hilton v. Commissioner of Correction

JAMES HILTON v. COMMISSIONER

OF CORRECTION

(AC 46270)

Alvord, Moll and Clark, Js.

Syllabus

The petitioner sought relief in a second petition for a writ of habeas corpus,

claiming, inter alia, that R, his counsel during his first habeas action,

and G, his criminal trial counsel, had rendered ineffective assistance by

failing to present expert testimony from a forensic pathologist to support

the petitioner’s claim of actual innocence. The petitioner had been convicted of several crimes, including murder, as a result of a drug related

shooting. K, an associate medical examiner, had performed an autopsy

that showed that the victim died from a single gunshot to the head at

close range. At the petitioner’s criminal trial, K testified that the barrel

of the gun had been touching the victim’s skin when the gun was discharged and that the wound was a typical contact gunshot wound of

entrance. This court upheld the petitioner’s conviction on direct appeal.

At his first habeas trial, R presented the testimony of C, the state’s

chief medical examiner, which was consistent with that of K, and the

testimony of D, a forensic scientist. At that habeas trial, the petitioner

claimed, inter alia, that G had improperly failed to present the testimony

of an expert witness, such as D, to attack K’s testimony. D, however,

testified at the first habeas trial that the victim’s wound could resemble

a contact wound but that he could not conclude with certainty that the

victim had sustained a contact wound. The habeas court denied the

habeas petition, concluding that the petitioner had failed to establish

that G rendered ineffective assistance. This court upheld the habeas

court’s decision, concluding that D had not contradicted K’s opinion at

the criminal trial that the victim’s wound was a contact gunshot wound

and that D’s testimony would not have been helpful at the criminal trial

to establish that the petitioner did not shoot the victim. At the second

habeas trial, the petitioner presented the testimony of W, an expert in

forensic pathology, who disagreed with K’s conclusion that the victim

suffered from a contact wound. The habeas court declined to credit W’s

testimony, reasoning that W had not reviewed certain testimony and

that his opinion did not overcome the overwhelming evidence the state

presented against the petitioner at the criminal trial. The court denied

the habeas petition, concluding that the petitioner failed to establish

that G and R had rendered ineffective assistance. The court thereafter

granted in part and denied in part the petitioner’s petition for certification

to appeal. Held:

1. The habeas court correctly determined that the petitioner had failed to

establish that he was prejudiced as a result of G’s and R’s decisions not
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Hilton v. Commissioner of Correction

to present the testimony of a forensic pathology expert: W’s testimony,

at best, challenged the nature of the victim’s injury and was inconsistent

with that of witnesses at the petitioner’s criminal trial that the petitioner

had been standing next to the victim when the shooting occurred, and

G had presented testimony similar to that of W at the criminal trial;

moreover, W’s testimony did not undermine confidence in the outcome

of the criminal trial, as C’s testimony was consistent with that of K and

other state’s witnesses, and the state had presented what this court

in the petitioner’s two prior appeals characterized as overwhelming

evidence against the petitioner at his criminal trial; accordingly, a reasonable probability did not exist that the outcome of the petitioner’s criminal

trial would have been different had G presented expert testimony from

a forensic pathologist such as W, and, because the petitioner failed to

establish that he was prejudiced by G’s performance, the petitioner’s

ineffectiveness claim necessarily failed as to R.

2. The petitioner could not prevail on his claim that the habeas court abused

its discretion in denying him certification to appeal as to his claim that

the court had applied the wrong legal standard in finding W not credible;

the petitioner failed to demonstrate that his claim was debatable among

jurists of reason, that a court could resolve the issue in a different

manner or that the question was adequate to deserve encouragement

to proceed further.

3. This court dismissed the petitioner’s appeal as to his claim that the habeas

court had applied an erroneous legal standard in concluding that W’s

testimony was not credible when it denied the petitioner certification

to appeal as to that issue: contrary to the petitioner’s contention that

the habeas court should have relied on Lapointe v. Commissioner of

Correction (316 Conn. 225) and assessed W’s credibility in light of

whether a jury could have credited W’s testimony, the petitioner’s claim

was factually distinguishable from Lapointe, in which the state’s case

was relatively weak, whereas the state in the present case had presented

overwhelming evidence against the petitioner, and legally distinguishable from Lapointe, which limited appellate evaluation of an expert

witness’ credibility to claims under Brady v. Maryland (373 U.S. 83),

in which a habeas court’s function, as part of its determination of the

legal question of materiality, is to make a predictive evaluation, rather

than an absolute finding, as to whether the evidence withheld by the

state reasonably could be credited by the ultimate fact finder and, if

so, whether that evidence reasonably could lead to a different result at

a trial; moreover, the court in Lapointe neither precluded a habeas court

from determining the credibility of an expert witness and that witness’

conclusions, as the petitioner claimed, nor did the court in Lapointe

establish that a petitioner is entitled to a new trial by presenting an

expert of sufficient import and credibility, as such a vague standard

could necessitate a new criminal trial in nearly all postconviction habeas
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Hilton v. Commissioner of Correction

proceedings involving expert witnesses; accordingly, this court determined that Lapointe was inapplicable to the petitioner’s case and would

not disturb the habeas court’s factual finding that W was not credible.

Argued January 31—officially released May 7, 2024

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, Klatt, J.; judgment denying the petition; thereafter, the court granted in part

and denied in part the petition for certification to

appeal, and the petitioner appealed to this court.

Affirmed; appeal dismissed in part.

Alexander T. Taubes, for the appellant (petitioner).

Linda F. Rubertone, senior assistant state’s attorney,

with whom, on the brief, were John P. Doyle, Jr., state’s

attorney, and Craig P. Nowak, supervisory assistant

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

Opinion

ALVORD, J. The petitioner, James Hilton, appeals

from the judgment of the habeas court denying his

second petition for a writ of habeas corpus.1 On appeal,

1 The habeas court granted in part and denied in part the petitioner’s

petition for certification to appeal from the judgment of the habeas court.

‘‘We are mindful of our jurisprudence that, following the granting of a petition

for certification to appeal, ‘at least in the absence of demonstrable prejudice,

the legislature did not intend the terms of the habeas court’s grant of certification to be a limitation on the specific issues subject to appellate review.’

James L. v. Commissioner of Correction, 245 Conn. 132, 138, 712 A.2d 947

(1998). Thus, ‘once the habeas court, in its gatekeeping function, certified

that appellate review was warranted, any issue could be presented on appeal,

so long as the opposing party is not prejudiced.’ Logan v. Commissioner

of Correction, 125 Conn. App. 744, 753 n.7, 9 A.3d 776 (2010), cert. denied,

300 Conn. 918, 14 A.3d 333 (2011). In James L., however, the court expressly

noted: ‘This case does not present a question of mixed certification, in which

a habeas court expressly grants permission to appeal with regard to some,

but not all, of the issues on which certification was requested.’ James L. v.

Commissioner of Correction, supra, 138 n.7. It remains unsettled whether

a habeas petitioner is limited in the claims he or she may pursue on appeal

when a habeas court grants certification to appeal as to certain specific

claims and denies certification to appeal as to others.’’ Diaz v. Commis-
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Hilton v. Commissioner of Correction

the petitioner claims that the habeas court (1) improperly rejected his claim that his right to the effective

assistance of counsel was violated when his first habeas

counsel, Attorney David B. Rozwaski, failed to present

the expert testimony of a forensic pathologist in support

of his claim that the petitioner’s criminal trial counsel,

Attorney Al Ghiroli, had provided ineffective assistance

of counsel and (2) abused its discretion in denying his

petition for certification to appeal as to his claim that

the habeas court applied the wrong legal standard in

assessing witness credibility. We affirm the judgment

of the habeas court as it relates to the petitioner’s first

claim. We dismiss the appeal as to the petitioner’s second claim.

The following facts and procedural history, as set

forth by this court in the petitioner’s direct appeal from

his conviction or as undisputed in the record, are relevant to our resolution of the petitioner’s appeal. ‘‘The

victim, William Rodriguez, was shot on July 14, 2000,

at approximately 9 p.m. in the area of Truman Street

and King Place in New Haven. Sergeant Anthony Duff

arrived at the scene of the shooting and discovered the

victim’s body on the sidewalk, surrounded by a crowd

of people. An autopsy performed on the victim’s body

revealed that he died from a single gunshot at close

range to the left side of his head. Bullet fragments

removed during the victim’s autopsy were tested and

found to be consistent with having been fired from

either a .38 special or a .357 magnum firearm. No gun

was ever recovered.

‘‘The shooting was precipitated by a drug turf war.

Anna Rodriguez, the victim’s longtime friend, testified

sioner of Correction, 214 Conn. App. 199, 202 n.1, 280 A.3d 526, cert. denied,

345 Conn. 967, 285 A.3d 736 (2022). In this case, as in Diaz, ‘‘[b]ecause

neither party has challenged the propriety of the habeas court’s unusual

mixed certification order, we leave that issue for another day and simply

address each of the petitioner’s claims in turn.’’ Id.
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Hilton v. Commissioner of Correction

that two days before the murder, she and her boyfriend

had gone to visit the victim, who had just moved to an

apartment on Truman Street. Rodriguez testified that

upon arriving outside the victim’s apartment, her boyfriend sounded his car horn, and the victim and his

girlfriend, Cora Moore, came outside to visit them. At

that point, the [petitioner] suddenly approached on the

passenger’s side of the car and peered inside. When the

[petitioner] recognized Rodriguez’ boyfriend, he

walked away.

‘‘The jury also heard testimony from Sherice Mills,

who stated that on the afternoon of the shooting,

‘Shawn,’ an associate of the victim, verbally confronted

the [petitioner] and one of his associates regarding

Shawn’s drug dealing activities on Truman Street, which

was part of the [petitioner’s] drug territory. During that

conversation, Shawn threatened the [petitioner] and his

associate. The confrontation soon ended, and Shawn

and the victim drove off in the victim’s car.

‘‘Two women testified as eyewitnesses to the actual

shooting. Mills testified that the victim left his porch

to make a drug sale to someone in a car. She testified

that moments later, while the victim was at the car, she

heard the [petitioner] state that he was ‘about to kill

[the victim],’ and observed the [petitioner] walk across

the street and shoot the victim in the head. According

to Mills, the [petitioner] fell to the ground with the

victim, and the [petitioner] ‘kept holding [the victim’s]

head, saying he didn’t mean to do it and [telling] somebody to call the police.’ Mills later identified the [petitioner] as the shooter from an array of photographs.

‘‘A second eyewitness, Simone Williams, who was on

the porch at the time of the shooting, testified about

essentially the same events as did Mills. Williams’ testimony added that the [petitioner] had approached the

victim from behind and stated: ‘You ain’t from around
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Hilton v. Commissioner of Correction

here, son,’ and, ‘You need to move from around here,

son,’ and that she then saw the [petitioner] take a gun

from behind his back and shoot the victim. When the

shooting stopped, Williams testified, the victim fell to

the ground, and the [petitioner] yelled for someone to

call an ambulance. A short time later, the [petitioner]

fled the scene. Williams went to the police station sometime later and related to the police what she had

observed concerning the shooting. At that time, she

positively identified the [petitioner] in a photographic

array and did so again at trial.

‘‘The state also presented testimony from Moore, the

victim’s girlfriend, that while she was in Toisann Henderson’s second floor apartment on Truman Street playing with Henderson’s baby and listening to music, she

heard a gunshot. Minutes after the shooting, Henderson

ran from the porch into the apartment and told Moore

that the [petitioner] had shot her boyfriend. Moore ran

outside where she found the victim lying motionless

on the ground. She fell to the ground and started crying

and hugging him. Shortly thereafter, Duff arrived. On

the basis of the information that the witnesses provided,

Duff dispatched the [petitioner’s] description over the

police radio.

‘‘At trial, the [petitioner] testified that after meeting

with his family, he voluntarily went to the police station,

accompanied by his brother-in-law, Sergeant Nate

Blackman, and provided a statement about the shooting. While he was in police custody, the [petitioner]

stated that he had been sitting on his porch when he

heard a commotion and went to see what was happening. The [petitioner] further told the police that a third

man had drawn a gun, that the [petitioner] had grappled

for the gun, and ‘it went bashing across [the victim’s]

head.’ Later in the interview, the [petitioner] was asked

if he could give more detail about the shooting. It was

at that point that the [petitioner] ended the interview.
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Hilton v. Commissioner of Correction

At trial, [the petitioner] described how several seconds

after he fought with the third man, a fourth man shot

the victim and ran away. Immediately after the gunshot,

the [petitioner] testified, he applied pressure to the victim’s wound to stop the bleeding. [The petitioner] further testified that he left the victim to make sure someone had called an ambulance. When [the petitioner]

returned and saw that the victim was receiving aid, he

went to and sat on the porch. The [petitioner] testified

that he sat on the porch until people in the crowd

began to tell the police that he did the shooting. [The

petitioner] then stated that he became scared, and went

directly to see his children and then to Blackman’s

house.

‘‘During their investigation, the police learned that

after the shooting, the [petitioner] went to see his fiance ́ e, Maybertha Ashley. . . . [H]er sister, Andrea Ashley, testified that the [petitioner] had given his bloody

clothes to his fiance ́ e, who in turn gave them to Andrea

Ashley to wash. When the police arrested the [petitioner] at the police station, they took the clothing he

had worn on the evening of the shooting. The blood

samples and clothes collected from both the victim and

the [petitioner] were sent to the state forensic laboratory. A state’s expert testified that a drop of blood found

on the [petitioner’s] boxer shorts matched the victim’s

blood type and DNA. Despite the fact that the victim had

been shot at fairly close range, there was no detectable

blood on the [petitioner’s] other clothes. The [petitioner] denied ever having his clothes washed after

the shooting, and explained that his clothes were not

covered in blood because he wore his shirt over his

head and his pants around his knees.

‘‘On September 12, 2000, the [petitioner] was charged

with murder, and criminal possession of and carrying
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Hilton v. Commissioner of Correction

a pistol or revolver without a permit.’’ (Footnotes omitted.) State v. Hilton, 79 Conn. App. 155, 157–60, 829

A.3d 890 (2003).

At the petitioner’s criminal trial, the state presented

the testimony of Arkady Katsnelson, an associate medical examiner in the Office of the Chief Medical Examiner, who had performed the victim’s autopsy. Katsnelson testified that, because ‘‘there was no evidence of

soot or gun powder,’’ the victim’s gunshot wound in

this particular case resembled either a ‘‘long distance’’

or a contact wound.2 When asked whether the victim’s

gunshot wound was typical, Katsnelson testified: ‘‘This

gunshot wound, it is not typical from a gunshot wound

which was created from a long distance because a gunshot wound from a distance will be a round shape, and

the round shape wound and the size of the wound will

be slightly bigger than the size of the bullet. In this

particular case, it’s not a typical gunshot wound of

entry which is created from a long distance.’’ Thus,

Katsnelson testified: ‘‘[M]y conclusion is, this gunshot

wound is consistent with a contact gunshot wound of

entrance. It means in this particular case the barrel

of the gun was touching the skin when the gun was

discharged. It is the reason for my conclusion, number

one, there is no evidence of soot or gunpowder around,

and number two, which is extremely important also,

the size of the wound. The wound is 3.2 centimeters in

vertical dimension and it is 1.2 centimeters in horizontal

dimension and it is the reason I believe this gunshot

wound is a typical contact gunshot wound.’’

Following a jury trial, during which the petitioner was

represented by Ghiroli, the petitioner was convicted

2 Katsnelson testified that ‘‘[a] contact wound means, if the barrel of the

gun is touching the skin, touching the body’’ and that a long distance wound

results from a gun generally being ‘‘more than three feet’’ away.
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Hilton v. Commissioner of Correction

of murder in violation of General Statutes § 53a-54a,3

carrying a pistol or revolver without a permit in violation of General Statutes (Rev. to 1999) § 29-35 (a),4 and

criminal possession of a pistol or revolver in violation

of General Statutes (Rev. to 1999) § 53a-217c.5 See State

v. Hilton, supra, 79 Conn. App. 156. ‘‘On September 28,

2001, the court sentenced the [petitioner] to a term of

sixty years imprisonment on the charge of murder, a

consecutive term of five years imprisonment on the

charge of carrying a pistol without a permit and a concurrent term of five years imprisonment on the charge

of criminal possession of a pistol or revolver for a total

effective sentence of sixty-five years imprisonment.’’

Id., 160. The petitioner’s conviction was affirmed on

direct appeal. Id., 170.

Thereafter, the petitioner commenced his first habeas

action, during which he was represented by Rozwaski.

‘‘In his third amended petition, dated December 19,

2011, [the petitioner] alleged, inter alia, that [Ghiroli]

had provided him with ineffective assistance. Specifically . . . [the petitioner] alleged that [Ghiroli] was

3 General Statutes § 53a-54a (a) provides: ‘‘A person is guilty of murder

when, with intent to cause the death of another person, he causes the death

of such person or of a third person or causes a suicide by force, duress or

deception; except that in any prosecution under this subsection, it shall be

an affirmative defense that the defendant committed the proscribed act or

acts under the influence of extreme emotional disturbance for which there

was a reasonable explanation or excuse, the reasonableness of which is to

be determined from the viewpoint of a person in the defendant’s situation

under the circumstances as the defendant believed them to be, provided

nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or

any other crime.’’ 4 General Statutes (Rev. to 1999) § 29-35 (a) provides in relevant part: ‘‘No

person shall carry any pistol or revolver upon one’s person, except when

such person is within the dwelling house or place of business of such person,

without a permit to carry the same issued as provided in section 29-28. . . .’’ 5 General Statutes (Rev. to 1999) § 53a-217c provides in relevant part: ‘‘(a)

A person is guilty of criminal possession of a pistol or revolver when such

person possesses a pistol or revolver, as defined in section 29-27, and (1)

has been convicted of a felony . . . .’’
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Hilton v. Commissioner of Correction

ineffective in failing to cross-examine witnesses properly, failing to present witnesses, failing to prepare the

petitioner to testify and failing to present sentence mitigation evidence.’’6 Hilton v. Commissioner of Correction, 161 Conn. App. 58, 64–65, 127 A.3d 1101 (2015),

cert. denied, 320 Conn. 921, 132 A.3d 1095 (2016).

During the petitioner’s first habeas trial, ‘‘the petitioner argued that [Ghiroli] was ineffective in his crossexamination of Katsnelson regarding the nature of the

victim’s fatal wound.’’ Id., 69. ‘‘[T]he petitioner presented the expert testimony of Harold Wayne Carver II,

the state’s chief medical examiner, and Peter DeForest,

who held a doctorate degree in forensic science, regarding Katsnelson’s autopsy report and conclusions.’’ Id.,

69–70.

When asked whether certain indicia ‘‘conclusively

prove[d] that the wound was made by a contact shot,’’

Carver testified, ‘‘I believe that there’s sufficient evidence here between the photographs and the written

record to make that diagnosis, yes.’’ Carver noted that,

had he looked at the autopsy report without the corresponding photographs, then a ‘‘contact wound would be

on the short list of explanations but would not be the

only one.’’ Carver testified that the abnormal shape of

the wound, however, is ‘‘the major basis for my diagnosis that it was a contact wound . . . .’’

6 ‘‘The third amended petition also alleged that the petitioner had received

ineffective assistance of his appellate attorney, that he was actually innocent

of the crimes charged, and that the state had failed to provide him with

exculpatory information in violation of his due process rights under Brady

v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the United

States constitution and the Connecticut constitution.’’ Hilton v. Commissioner of Correction, 161 Conn. App. 58, 65 n.2, 127 A.3d 1101 (2015), cert.

denied, 320 Conn. 921, 132 A.3d 1095 (2016). The petitioner withdrew his

claims as to his appellate attorney during his first habeas trial, and, in his

appeal following his first habeas trial, the petitioner did not challenge the

court’s denial of his actual innocence and Brady claims. Id.
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Hilton v. Commissioner of Correction

DeForest testified that, on the basis of the autopsy

report and photographs, the wound ‘‘[s]uperficially

. . . could resemble a contact wound.’’ When asked

for his conclusion as to the type of wound the victim

suffered, DeForest responded ‘‘[t]hat it’s—it’s ambiguous. I can’t eliminate the idea of it being a contact shot

where the supporting evidence was not elicited or that

it could be a—a destabilized bullet that caused the

damage and that the scene investigation didn’t find

areas or impact sights where a bullet may have interacted with something else.’’ Thus, due to the wound’s

ambiguities, DeForest testified that he could not conclude with certainty whether the victim suffered from

a contact wound.

After the conclusion of the petitioner’s first habeas

trial, the habeas court issued a memorandum of decision denying the petitioner’s claims. On appeal,7 this

court ‘‘agree[d] with the respondent [the Commissioner

of Correction] and the habeas court that the petitioner

failed to sustain his burden of establishing either deficient performance or prejudice with respect to the

cross-examination of Katsnelson. As to the former, we

have stated that [a]n attorney’s line of questioning on

examination of a witness clearly is tactical in nature.

[As such, this] court will not, in hindsight, second-guess

counsel’s trial strategy. . . . In regard to the latter,

given the other evidence and the inconclusive and indeterminate nature of DeForest’s testimony, the petitioner

failed to sustain his burden of establishing prejudice.’’

7 On appeal to this court, the petitioner claimed ‘‘that the court improperly

concluded that [the petitioner] had received effective assistance of counsel

during his criminal trial and at sentencing. Specifically, [the petitioner]

argue[d] that [Ghiroli had] provided ineffective assistance by failing to (1)

secure sufficient information and properly cross-examine two of the state’s

witnesses, (2) present witnesses in support of his defense, (3) prepare the

petitioner to testify and (4) present sentence mitigation evidence.’’ Hilton

v. Commissioner of Correction, supra, 161 Conn. App. 65.
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(Citations omitted; footnotes omitted; internal quotation marks omitted.) Hilton v.Commissioner of Correction, supra, 161 Conn. App. 70–71. This court also

rejected the petitioner’s claim that counsel improperly

failed to present the testimony of DeForest at his criminal trial to attack the testimony of Katsnelson. See id.,

72. This court agreed with the habeas court’s analysis

that ‘‘DeForest’s testimony would not have been helpful

in establishing that the petitioner did not shoot the

victim. Katsnelson had testified at the criminal trial that

the fatal wound was a contact gunshot wound. DeForest

did not contradict this opinion, ‘but could only say that

the evidence was ambiguous, and therefore he could

not offer an opinion as to the type of wound, and therefore could not say that it was not a contact wound.’ ’’ Id.,

73–74. Thus, the petitioner did not sustain his burden

of proving that the testimony of DeForest would have

been helpful to his defense. Id., 74. This court affirmed

the judgment of the habeas court,8 and our Supreme

Court denied the petitioner’s petition for certification

to appeal.

In 2016, the petitioner, then self-represented, filed

this second habeas action. In his operative, second

amended petition for a writ of habeas corpus filed September 23, 2020, the petitioner raised what the habeas

court described as ‘‘a myriad of allegations’’ in thirteen

counts. Relevant to this appeal are the petitioner’s allegations that Ghiroli and Rozwaski rendered ineffective

assistance of counsel by not presenting expert testimony from a forensic pathologist to challenge the testimony of Katsnelson and establish that he was actually

innocent. See footnote 12 of this opinion.

8 The respondent also appealed from the judgment of the first habeas

court. See Hilton v. Commissioner of Correction, supra, 161 Conn. App.

60. On appeal, the respondent claimed ‘‘that the court improperly determined

that the petitioner received ineffective assistance of counsel with respect

to his claim regarding sentence review. As a result of this determination,

the habeas court reinstated the petitioner’s right to apply for sentence

review.’’ Id. The respondent prevailed on appeal, and this court reversed

the judgment. Id., 85.
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Hilton v. Commissioner of Correction

Prior to the start of the habeas trial, on November

30, 2021, the petitioner’s counsel filed an appearance

on the petitioner’s behalf. The matter was tried to the

habeas court, Klatt, J., on December 20, 2021, and May

31, 2022. The court admitted into evidence as full exhibits copies of the transcripts of the petitioner’s underlying criminal trial and first habeas trial, a copy of a report

from the petitioner’s forensic pathology expert, Cyril

H. Wecht, a copy of Katsnelson’s autopsy report, and

photographs taken during the autopsy. Additionally, the

court heard testimony from the following witnesses:

(1) the petitioner; (2) Wecht; (3) Maybertha Ashley; (4)

Attorney Michael Brown, the petitioner’s legal expert;

and (5) Rozwaski. Thereafter, the parties filed posttrial briefs.

Relevant to the petitioner’s appeal, Wecht testified

that, on the basis of his review of Katsnelson’s autopsy

report and photographs, certain testimony from the

petitioner’s criminal trial, including the testimony of

Katsnelson, a police report, the petitioner’s posttrial

brief, and a report from a private investigator service,

it was his ‘‘opinion this gunshot wound, fatal gunshot

wound of the victim’s head, was fired from a distance

beyond twenty-four inches in the absence of gunpowder

residue, stippling powder. I find nothing to contradict

that and everything to support it. So I believe this was

what we would call a gunshot wound of distance or

long-range gunshot wound. I cannot tell you what the

distance would have been beyond the twenty-four

inches. I can’t tell you if that was three feet or four

feet. That, I cannot do, but I can say that I believe it

was a distance gunshot wound and certainly not a tight

contact wound.’’ Wecht testified that, on this basis, he

disagreed with Katsnelson’s conclusion that the victim

suffered from a contact wound.

On February 1, 2023, the court issued a memorandum

of decision denying the petitioner’s petition for a writ
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of habeas corpus. The court stated that its ‘‘discussion

of the claims will track the petitioner’s posttrial brief

and will be limited to only those claims briefed by the

petitioner.’’ Specifically, the court addressed, inter alia,

the petitioner’s contentions that ‘‘counsel failed to properly investigate [Katsnelson’s] report and testimony’’

and that ‘‘counsel failed to hire and utilize a forensic

pathologist or medical examiner to challenge [Katsnelson’s] conclusions.’’ The court found that ‘‘[the petitioner] has failed to prove both the deficient performance and prejudice prongs’’ of his ineffective

assistance of counsel claims.

The petitioner filed a petition for certification to

appeal wherein he stated nine grounds on which he

proposed to appeal. Relevant to this appeal9 are the

following grounds: ‘‘(1) [w]hether the trial court erred

by ruling that the petitioner’s expert was ‘not . . .

credible,’ instead of applying the correct standard under

Lapointe v. Commissioner of Correction, [316 Conn.

225, 112 A.3d 1 (2015)], that is, whether the petitioner’s

expert was of sufficient import and credibility that the

petitioner is entitled to a new trial at which a jury

will evaluate that testimony . . . (3) [w]hether a jury

reasonably could credit the petitioner’s expert’s testimony . . . (4) [w]hether there was strong reason that

the jury might well have found the testimony of the

petitioner’s expert persuasive, considering the expert’s

unquestioned qualifications and experience . . . (5)

[w]hether the testimony of the petitioner’s expert is

sufficient, if credited, to call into question the outcome

of the petitioner’s criminal trial . . . (6) [w]hether the

testimony of the petitioner’s expert and the other evidence presented raises a reasonable probability that

the result of the proceedings would have been different

9 The petitioner did not brief in this appeal three of the grounds raised

in his petition for certification to appeal.
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. . . [and] (7) [w]hether the evidence raises a probability sufficient to undermine the confidence in the outcome of the trial . . . .’’

Thereafter, on February 14, 2023, the habeas court

issued an order on the petition for certification to

appeal, stating in relevant part that ‘‘the petition for

certification to appeal is denied as to the grounds indicated in [inter alia, ground one] . . . because [that

ground is] not debatable among jurists of reason, able

to be resolved in a different manner, or deserving of

encouragement to proceed further. . . . The court

grants the petition for certification to appeal as to

grounds (3) through (7), which all individually and collectively seek to challenge this court’s prejudice determination.’’ (Citations omitted.) This appeal followed.

I

We begin with the petitioner’s claim that the habeas

court improperly rejected his claim that his right to

the effective assistance of counsel was violated when

Rozwaski failed to present the expert testimony of a

forensic pathologist during his first habeas trial in support of the claim that Ghiroli had provided ineffective

assistance of counsel during his criminal trial.10 With

10 ‘‘It is axiomatic that courts may decide against a petitioner on either

prong [of the test set forth in Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], whichever is easier. . . . [T]he

petitioner’s failure to prove either [the performance prong or the prejudice

prong] is fatal to a habeas petition. . . . [A] court need not determine

whether counsel’s performance was deficient before examining the prejudice suffered by the [petitioner] as a result of the alleged deficiencies. . . .

If it is easier to dispose of an ineffectiveness claim on the ground of lack

of sufficient prejudice . . . that course should be followed.’’ (Emphasis

added; internal quotation marks omitted.) Delgado v. Commissioner of Correction, 224 Conn. App. 283, 291–92, 311 A.3d 740, cert. denied, 349 Conn.

902, A.3d (2024). Moreover, ‘‘[i]t is well established that [a] court

deciding an ineffective assistance of counsel claim need not address the

question of counsel’s performance, if it is easier to dispose of the claim on

the ground of insufficient prejudice.’’ (Internal quotation marks omitted.)

Grant v. Commissioner of Correction, 342 Conn. 771, 783–84, 272 A.3d

189 (2022). Thus, because we conclude that the habeas court properly
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respect to the prejudice prong, the petitioner contends

that the court improperly determined that he failed to

show that he was prejudiced by Ghiroli’s and Rozwaski’s decisions not to present a forensic pathology

expert to provide testimony similar to that of Wecht.11

The petitioner maintains that ‘‘[a]n objective review of

the state’s case against the petitioner reveals that [the

petitioner’s] scientific expert evidence would raise

more than a reasonable probability that the result of

the proceeding would have been different if it had it

been presented at the criminal trial.’’12 The respondent

determined that the petitioner had failed to establish prejudice, we need

not address the performance prong. 11 As noted previously in this opinion, the habeas court granted certification to appeal as to the petitioner’s grounds challenging the court’s determination that the petitioner had failed to demonstrate prejudice. 12 The petitioner claims that ‘‘[t]he trial court erred because a jury reasonably could credit the petitioner’s scientific expert evidence, which proves

the petitioner’s innocence by clear and convincing evidence and raises more

than a reasonable probability that the result of the proceedings would have

been different but for prior counsel’s failure to present the evidence.’’ The

respondent argues, inter alia, that, had Wecht testified at the petitioner’s

criminal trial, such testimony would not have proved the petitioner’s innocence because the jury instead would have weighed Wecht’s testimony with

the totality of the evidence that had been presented. In support of this

contention, the respondent relies on Summerville v. Warden, 229 Conn.

397, 641 A.2d 1356 (1994), for the proposition that the testimony of a petitioner’s new expert is ‘‘nothing more than a[n] [additional] expert opinion derived

from an interpretation of the underlying autopsy data that [other experts]

ha[ve] already interpreted.’’ Id., 437. Our Supreme Court in Summerville

also stated that a petitioner’s new expert testimony ‘‘is not the kind of

evidence that renders prior expert opinions . . . scientifically impossible

or improbable. Indeed, if it were, [t]he ultimate result would be a neverending battle of [pathologists] appointed [or retained] as experts for the sole

purpose of discrediting a prior [pathologist’s] diagnosis.’’ (Internal quotation

marks omitted.) Id. Wecht’s testimony at the petitioner’s habeas trial would

not have satisfied the clear and convincing standard because his testimony

did not unquestionably establish the petitioner’s innocence and was, at most,

contradictory to, and offered to discredit a portion of, the state’s evidence

at the underlying criminal trial. See Ross v. Commissioner of Correction,

217 Conn. App. 286, 305–306, 288 A.3d 1055, cert. denied, 346 Conn. 915,

290 A.3d 374 (2023); Myers v. Commissioner of Correction, 215 Conn. App.

592, 616–17, 284 A.3d 309 (2022), cert. denied, 346 Conn. 1021, 293 A.3d 897

(2023), and cert. denied sub nom. Myers v. State, 346 Conn. 1021, 293 A.3d
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disagrees and argues that the petitioner has failed to

prove prejudice because he has not shown a reasonable

probability that the outcome of the petitioner’s criminal

trial would have changed had the jury heard testimony

similar to that of Wecht. We agree with the respondent.

The following procedural history is relevant to our

resolution of this claim. In its memorandum of decision,

the habeas court stated in relevant part: ‘‘[The petitioner] has argued that the expert testimony of [Wecht],

combined with his testimony . . . would establish the

prejudice prong of [Strickland v. Washington, 466 U.S.

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

petitioner] argues that . . . [Wecht’s] testimony that

the gunshot was fired from a distance of at least greater

than two feet supports his testimony that another person, at least eight feet away fired the fatal shot. . . .

‘‘[The petitioner] however chooses to ignore the

remaining evidence in the state’s case. There were multiple witnesses to the argument and ongoing feud

between him and the victim. Identification was not an

issue, as all parties knew each other. There were two

eyewitnesses who remained on the scene and gave

statements to the police identifying [the petitioner] as

the shooter and placing him standing right next to the

victim when he was shot. There were no witnesses to

[the petitioner’s] third and fourth individuals. . . .

‘‘In short, [the petitioner] has failed to demonstrate

that there is a reasonabl[e] probability that the outcome

of the criminal trial would have been different had . . .

[Wecht] . . . testified. The state had abundant evidence, motive, and forensic testimony to support its

case against [the petitioner]. [Wecht’s] testimony fails

to show not only the necessary performance prong, but

also the prejudice prong. The state’s evidence against

897 (2023). Accordingly, the petitioner did not meet the high burden of proof

necessary to sustain a claim of actual innocence.
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[the petitioner] was overwhelming and his claims

against trial counsel must fail.

‘‘In addition, any of [the petitioner’s] claims as against

habeas counsel must fail by the same reasoning. [The

petitioner’s] posttrial brief ignores the testimony of

[Carver] and submits that the testimon[y] of . . .

[Wecht] . . . [is] sufficient to undermine the confidence in the outcome of the habeas trial. [First habeas]

counsel did in fact offer expert medical testimony from

a more than qualified witness. His testimony was consistent with [that of Katsnelson] and other state’s witnesses. [Wecht’s] testimony at best challenged [the]

nature of the injury and was inconsistent with eyewitness testimony, but did nothing to overcome the state’s

evidence and undermine this court’s confidence in the

outcome of the jury trial.’’

Our standard of review and the relevant legal principles on ineffective assistance of counsel claims are well

settled. ‘‘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. . . .13

To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged

test articulated in Strickland v. Washington, [supra,

466 U.S. 687]. Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong.

To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . .

13 ‘‘[T]he state and federal constitutional standards for review of ineffective

assistance of counsel claims are identical and the rights afforded are essentially coextensive in nature and, thus, do not require separate analysis.’’

(Internal quotation marks omitted.) Jordan v. Commissioner of Correction,

197 Conn. App. 822, 830 n.8, 234 A.3d 78 (2020), aff’d, 341 Conn. 279, 267

A.3d 120 (2021).
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by the [s]ixth [a]mendment. . . . To satisfy the prejudice prong, a claimant must demonstrate that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.’’ (Citation omitted; footnote in original;

internal quotation marks omitted.) Jordan v. Commissioner of Correction, 197 Conn. App. 822, 829–30, 234

A.3d 78 (2020), aff’d, 341 Conn. 279, 267 A.3d 120 (2021).

‘‘An evaluation of the prejudice prong involves a consideration of whether there is a reasonable probability

that, absent the errors, the [fact finder] would have had

a reasonable doubt respecting guilt. . . . A reasonable

probability is a probability sufficient to undermine confidence in the outcome. . . . We do not conduct this

inquiry in a vacuum, rather, we must consider the totality of the evidence before the judge or jury. . . . Further, we are required to undertake an objective review

of the nature and strength of the state’s case. . . . As

our Supreme Court [has explained], [s]ome errors will

have had pervasive effect on the inferences to be drawn

from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect.

Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected

by errors than one with overwhelming record support.

. . . [A] court making the prejudice inquiry must ask

if the [petitioner] has met the burden of showing that

the decision reached would reasonably likely have been

different absent the errors. . . .

‘‘In other words, [i]n assessing prejudice under

Strickland, the question is not whether a court can

be certain counsel’s performance had no effect on the

outcome or whether it is possible a reasonable doubt

might have been established if counsel acted differently.

. . . Instead, Strickland asks whether it is reasonably

likely the result would have been different. . . . The

likelihood of a different result must be substantial, not
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just conceivable. . . . Notably, the petitioner must

meet this burden not by use of speculation but by

demonstrable realities.’’ (Citations omitted; internal

quotation marks omitted.) Madera v. Commissioner of

Correction, 221 Conn. App. 546, 555–56, 302 A.3d 910,

cert. denied, 348 Conn. 928, 305 A.3d 265 (2023).

‘‘Our Supreme Court, in Lozada v. Warden, [223

Conn. 834, 843, 613 A.2d 818 (1992)], established that

habeas corpus is an appropriate remedy for the ineffective assistance of appointed habeas counsel, authorizing . . . a second petition for a writ of habeas corpus

. . . challenging the performance of counsel in litigating an initial petition for a writ of habeas corpus . . .

[that] had claimed ineffective assistance of counsel at

the petitioner’s underlying criminal trial or on direct

appeal. . . . [T]he court in Lozada also emphasized

that a petitioner asserting a habeas on a habeas faces

the herculean task . . . of proving in accordance with

[Strickland] both (1) that his appointed habeas counsel

was ineffective, and (2) that his trial counsel was ineffective. . . .

‘‘Simply put, a petitioner cannot succeed . . . on a

claim that his habeas counsel was ineffective by failing

to raise a claim against trial counsel or prior habeas

counsel in a prior habeas action unless the petitioner

ultimately will be able to demonstrate that the claim

against trial or prior habeas counsel would have had a

reasonable probability of success if raised.’’ (Citations

omitted; internal quotation marks omitted.) Crocker v.

Commissioner of Correction, 220 Conn. App. 567, 585–

86, 300 A.3d 607, cert. denied, 348 Conn. 911, 303 A.3d

10 (2023).

We now turn to the merits of the petitioner’s claim,

recognizing that the claimed ineffective assistance

regarding his first habeas counsel, Rozwaski, must fail

if the claim of ineffective assistance of his trial counsel,
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Ghiroli, is without merit. See Lebron v. Commissioner

of Correction, 204 Conn. App. 44, 50, 250 A.3d 44, cert.

denied, 336 Conn. 948, 250 A.3d 695 (2021). For the

reasons that follow, we conclude that the habeas court

properly determined that the petitioner has failed to

satisfy the prejudice prong of Strickland. Specifically,

the petitioner has failed to show that, had Ghiroli presented testimony similar to that of Wecht during the

petitioner’s criminal trial, there exists a reasonable

probability that the outcome of that proceeding would

have been different.

In the present case, the habeas court determined

that Wecht’s testimony did not undermine the state’s

‘‘abundant evidence, motive, and forensic testimony to

support its case against [the petitioner].’’ The court

characterized the state’s evidence against the petitioner

as ‘‘overwhelming,’’ and emphasized evidence of the

‘‘multiple witnesses to the argument and ongoing feud

between [the petitioner] and the victim,’’ and the ‘‘two

eyewitnesses who remained on the scene and gave

statements to the police identifying [the petitioner] as

the shooter and placing him standing right next to the

victim when he was shot.’’ We agree with the court that

the state presented overwhelming evidence against the

petitioner. This court has, on two prior occasions, recognized the strength of the state’s case against the petitioner. First, in the petitioner’s direct appeal following

his criminal trial, this court stated that ‘‘the evidence

against the [petitioner] was overwhelming.’’ State v.

Hilton, supra, 79 Conn. App. 168. Subsequently, in the

petitioner’s appeal following his first habeas trial, this

court observed that ‘‘the petitioner failed to carry his

burden of demonstrating that there is a reasonable probability that the outcome of the trial would have been

different had he been more prepared, given the strong

and overwhelming evidence presented by the state.’’
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Hilton v. Commissioner of Correction, supra, 161

Conn. App. 76.

Additionally, the habeas court determined that

Wecht’s testimony did not undermine confidence in the

outcome of the petitioner’s criminal trial because the

petitioner’s first habeas counsel, Rozwaski, presented

the testimony of Carver, which was ‘‘consistent with

[that of Katsnelson] and other state’s witnesses.’’ At the

petitioner’s first habeas trial, Carver addressed Katsnelson’s conclusion that the victim suffered a contact

wound and testified that, had he looked at the autopsy

report without the corresponding photographs, then a

‘‘contact wound would be on the short list of explanations but would not be the only one.’’ When asked,

however, whether Katsnelson’s conclusion that the victim suffered from a contact shot was proper, Carver

responded, ‘‘I believe that there’s sufficient evidence

here between the photographs and the written record

to make that diagnosis, yes.’’ Carver also discussed the

abnormality of the shape of the wound by testifying

that ‘‘the major basis for my diagnosis that it was a

contact wound [is] the fact [that] part of th[e] edge of

the hole doesn’t have an abrasion. . . . That would

indicate that the forces that created that part of the

hole came from inside, not from the outside. And the

only way to do that would be the gasses from a contact

wound.’’ The habeas court determined that, on the basis

of Carver’s earlier testimony, the petitioner had failed

to sustain his burden of proving prejudice because the

testimony of Wecht was insufficient ‘‘to undermine . . .

confidence in the outcome of the habeas trial. [Rozwaski] did in fact offer expert medical testimony from

a more than qualified witness. His testimony was consistent with [that of Katsnelson] and other state’s witnesses. [Wecht’s] testimony at best challenged [the]

nature of the injury and was inconsistent with eyewitness testimony, but did nothing to overcome the state’s
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evidence and undermine this court’s confidence in the

outcome of the jury trial.’’14 Accordingly, on the basis

of the record before us, including the overwhelming

evidence the state presented against the petitioner, we

conclude that the petitioner has failed to demonstrate a

reasonable probability that the outcome of the criminal

trial would have been different had Ghiroli presented

expert testimony from a forensic pathologist, such as

Wecht.

In sum, we conclude that the habeas court correctly

determined that the petitioner had failed to sustain his

burden of establishing prejudice under Strickland as

to Ghiroli’s decision not to present expert testimony

and, therefore, the petitioner’s claim of ineffective assistance of counsel against Rozwaski necessarily fails. We,

therefore, conclude that the court properly denied the

petitioner’s petition for a writ of habeas corpus on

this claim.

II

The petitioner next claims that the habeas court

abused its discretion in denying him certification to

appeal with respect to his claim that the court applied

the wrong legal standard in finding Wecht not credible.

He contends that the court should have used the standard set forth by our Supreme Court in Lapointe v.

Commissioner of Correction, supra, 316 Conn. 225. We

conclude that Lapointe is inapplicable to the present

case and that the court’s finding that Wecht was not

credible is not clearly erroneous.

14 Rozwaski also presented the testimony of DeForest on the petitioner’s

behalf. DeForest testified that, pursuant to his review of Katsnelson’s

autopsy report and photographs, the wound ‘‘[s]uperficially . . . could

resemble a contact wound.’’ When asked to render an opinion as to what

type of gunshot wound the victim suffered, DeForest testified: ‘‘The—that

I can’t reach a conclusion. That it’s—it’s ambiguous,’’ and could have resulted

from either a long distance or a contact gunshot. As a result, DeForest

testified that he could not conclude, to a reasonable degree of scientific

certainty, that the victim had not sustained a contact gunshot wound.
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‘‘The following legal principles are relevant to our

resolution of the petitioner’s claim. General Statutes

§ 52-470 (g) provides: No appeal from the judgment

rendered in a habeas corpus proceeding brought by or

on behalf of a person who has been convicted of a

crime in order to obtain such person’s release may be

taken unless the appellant, within ten days after the

case is decided, petitions the judge before whom the

case was tried or, if such judge is unavailable, a judge

of the Superior Court designated by the Chief Court

Administrator, to certify that a question is involved in

the decision which ought to be reviewed by the court

having jurisdiction and the judge so certifies.

‘‘Faced with the habeas court’s denial of certification

to appeal, a petitioner’s first burden is to demonstrate

that the habeas court’s ruling constituted an abuse of

discretion. . . . A petitioner may establish an abuse of

discretion by demonstrating that the issues are debatable among jurists of reason . . . [a] court could

resolve the issues [in a different manner] . . . or . . .

the questions are adequate to deserve encouragement

to proceed further. . . . The required determination

may be made on the basis of the record before the

habeas court and applicable legal principles. . . . If

the petitioner succeeds in surmounting that hurdle, the

petitioner must then demonstrate that the judgment of

the habeas court should be reversed on its merits. . . .

‘‘In determining whether the habeas court abused

its discretion in denying the petitioner’s request for

certification, we necessarily must consider the merits of

the petitioner’s underlying [claim] to determine whether

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

the petitioner’s substantive [claim] for the purpose of

ascertaining whether [that claim satisfies] one or more

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

Court] for determining the propriety of the habeas
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court’s denial of the petition for certification.’’ (Internal

quotation marks omitted.) Glen S. v. Commissioner of

Correction, 223 Conn. App. 152, 158–59, 307 A.3d 951,

cert. denied, 348 Conn. 951, 308 A.3d 1038 (2024).

For the reasons set forth in part III of this opinion,

we conclude that the petitioner has failed to demonstrate that his claim is debatable among jurists of reason, that a court could resolve the issue in a different

manner, or that the question is adequate to deserve

encouragement to proceed further. Thus, we conclude

that the habeas court did not abuse its discretion in

denying the petition for certification to appeal on this

ground.

III

The petitioner’s substantive claim on appeal, relying

on Lapointe v. Commissioner of Correction, supra, 316

Conn. 225, is that the habeas court applied the wrong

legal standard in assessing witness credibility. Specifically, the ‘‘[p]etitioner’s argument is that the trial court

erred when it made an assessment of who it thought

was ‘more credible’ . . . without determining, as a

matter of law, if a reasonable jury could credit the

petitioner’s scientific expert evidence—which it could.’’

(Citation omitted; emphasis omitted.) The respondent

disagrees and asserts, inter alia, that Lapointe is inapplicable in the present case because of its ‘‘explicit limitation on its exception to [the] general rule of deference

to a fact finder’s credibility assessment.’’ We agree with

the respondent.

The following additional procedural history is relevant to our resolution of this claim. In its memorandum

of decision, the habeas court stated: ‘‘The primary focus

of [the petitioner’s] claims is the autopsy and the conclusions reached by [Katsnelson], in particular the distance

that the deadly shot was fired from. This issue has now

been litigated in the criminal trial and both habeas trials.
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The jury and two separate habeas courts have heard

from a total of four experts: [Katsnelson]; [DeForest];

[Carver]; and [Wecht]. [The petitioner] now posits that

[Wecht’s] conclusions and testimony prove his innocence. This court does not agree.’’

Specifically, the court determined that ‘‘[t]hree of the

four experts found that there were indicia of a contact

wound. Only [Wecht] completely ruled out the possibility of a contact wound. The court does not find

[Wecht’s] assessment to be credible, especially because

he did not review [Carver’s] testimony from the first

habeas trial. [Carver] observed a stellate tear and evidence of a blowback laceration. Additionally, [Wecht]

did not provide any explanation for the causes of the

oval wound. Nor did [Wecht’s] evaluation address the

potential effects of the victim[’s] being kept alive for a

day or more so that organs could be harvested from

his cleaned and disinfected body, the blood from the

wound washing away gunshot residue, or the beginnings of the healing process making residue in the

wound difficult to detect. The more credible evidence

establishes that the shot that killed the victim was a

contact shot.

‘‘Because the court does not find [Wecht’s] conclusion that the shot could not have been fired from less

than twenty-four inches to be credible, [the petitioner’s]

claims premised thereon must fail.’’

As noted previously, the habeas court denied the

petitioner certification to appeal as to his claim that

the legal standard used by the court to assess witness

credibility was erroneous. In denying certification to

appeal on this ground, the court stated that it found

‘‘Wecht’s conclusion that the shot could not have been

fired from less than twenty-four inches to be not credible. The court did not find [Wecht] credible based on

the totality of all evidence from the criminal, prior
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habeas, and current habeas trials. [Wecht] did not

review all relevant evidence, and his opinion was contradicted by the factual findings regarding the shape of

the wound, stellate tearing, and evidence of a blowback

laceration. It is this lack of foundation supporting

[Wecht’s] conclusion about the shot distance that

caused the court to find him not credible as an expert

witness.

‘‘Contrary to the petitioner’s argument in the petition

for certification to appeal, Lapointe v. Commissioner

of Correction, [supra, 316 Conn. 225], does not preclude

a habeas court from determining that an expert witness

and their conclusion are not credible. Nor does

Lapointe establish a standard that a petitioner is entitled to a new trial by presenting an expert who is of

sufficient import and credibility. Such a vague standard

could necessitate a new criminal trial in nearly all postconviction habeas proceedings involving expert witnesses. A habeas court’s credibility assessments and

how they impact the prejudice prong of the ineffective

assistance of counsel standard would be rendered

meaningless if a habeas court had to grant a new trial

upon the presentation of expert testimony that was of

sufficient import and credibility.’’ (Emphasis omitted;

internal quotation marks omitted.) Accordingly, the

court denied the first ground of the petition for certification to appeal on the ground that it is ‘‘not debatable

among jurists of reason, able to be resolved in a different

manner, or deserving of encouragement to proceed further.’’

In addition to our well settled standard of review on

ineffective assistance of counsel claims set forth in part

I of this opinion, the following additional legal principles are relevant to our resolution of this claim. ‘‘The

habeas judge, as the trier of facts, is the sole arbiter of

the credibility of witnesses and the weight to be given

their testimony. . . . Questions of whether to believe
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or to disbelieve a competent witness are beyond our

review.’’ (Internal quotation marks omitted.) Fields v.

Commissioner of Correction, 179 Conn. App. 567, 575,

180 A.3d 638 (2018). ‘‘The habeas court is afforded broad

discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . Thus, [t]his court does not retry the case

or evaluate the credibility of the witnesses.’’ (Internal

quotation marks omitted.) Necaise v. Commissioner of

Correction, 112 Conn. App. 817, 825, 964 A.2d 562, cert.

denied, 292 Conn. 911, 973 A.2d 660 (2009).

On appeal, the petitioner argues that we should deviate from these principles in light of our Supreme Court’s

decision in Lapointe v. Commissioner of Correction,

supra, 316 Conn. 225. We disagree.

In Lapointe, our Supreme Court ‘‘granted the respondent’s petition for certification to appeal, limited to

the following issue: ‘Did the Appellate Court properly

determine that the [petitioner’s] first habeas counsel

was ineffective for failing to pursue a claim that the

state had suppressed evidence in violation of Brady v.

Maryland, [373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d

215 (1963)],’ ’’ and ‘‘answer[ed] the certified question in

the affirmative because the testimony of the petitioner’s

experts was more than sufficient to call into question

the reliability of the petitioner’s conviction. Indeed,

even if that expert testimony only tended to support

the petitioner’s claim that he could not have murdered

the victim, in view of the tenuous nature of the state’s

case against the petitioner—based as it was on his

suspect admissions—the state’s Brady violation would

warrant a new trial because, as the United States

Supreme Court has recognized, exculpatory evidence

of even ‘minor importance’ may well be ‘sufficient to

create a reasonable doubt’ when, as in the present case,

‘the [guilty] verdict is already of questionable validity

. . . .’ United States v. Agurs, 427 U.S. 97, 113, 96 S.
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Hilton v. Commissioner of Correction

Ct. 2392, 49 L. Ed. 2d 342 (1976). Accordingly, [our

Supreme Court] affirm[ed] the judgment of the Appellate Court reversing in part the judgment of the third

habeas court and ordering a new trial.’’ (Emphasis

added.) Lapointe v. Commissioner of Correction,

supra, 316 Conn. 234.

The present case is both factually and legally distinguishable from Lapointe. As set forth in part I of this

opinion, this court twice has identified the state’s evidence against the petitioner as ‘‘overwhelming’’; Hilton

v. Commissioner of Correction, supra, 161 Conn. App.

76; State v. Hilton, supra, 79 Conn. App. 168; whereas

our Supreme Court in Lapointe stated that its conclusion took ‘‘due account of the fact that the state’s case

against the petitioner was relatively weak, founded as

it was on highly questionable admissions.’’ Lapointe v.

Commissioner of Correction, supra, 316 Conn. 261.

Thus, because we agree that the state presented overwhelming evidence against the petitioner, the petitioner’s appeal is factually distinguishable from Lapointe.

Next, the petitioner’s legal argument is different from

that raised in Lapointe. In the present case, the petitioner challenges the habeas court’s finding that Wecht

was not credible. The court determined, in light of finding Wecht not credible, that the petitioner had failed

to establish that the outcome of his criminal trial would

have been different had a jury heard Wecht’s testimony.

Accordingly, the court concluded that the decisions of

Ghiroli and Rozwaski not to present the expert testimony of a forensic pathologist did not constitute ineffective assistance of counsel. In contrast, the petitioner

in Lapointe argued that prior counsel ‘‘rendered ineffective assistance in failing to demonstrate that the state

withheld certain exculpatory evidence prior to trial in

violation of Brady . . . .’’ Id., 229. This distinction is

significant. In Lapointe, our Supreme Court determined

that, ‘‘for purposes of the present case, which involves
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the suppression of exculpatory evidence by the state,

our task is not to determine whether the jury more

likely than not would have credited [the] testimony

[of the petitioner’s witnesses], such that the petitioner

would have prevailed at a new trial. . . . The question,

rather, is whether the jury reasonably could have credited the testimony of the petitioner’s witnesses.’’ (Citation omitted; emphasis in original.) Id., 293–94. In other

words, the court stated that, ‘‘[i]n such circumstances,

when the habeas court’s assessment of the expert testimony has nothing to do with the personal credibility

of the expert witness but instead is based entirely on

the court’s evaluation of the foundational soundness of

the witness’ professional opinion, this court is as well

situated as the habeas court to assess that testimony

for Brady purposes.’’ Id., 269.

Our Supreme Court explained its reasoning for limiting an appellate court’s evaluation of the credibility

of an expert witness specifically to Brady claims as

follows: ‘‘Our conclusion in this regard is limited to

the kind of fact-finding that is implicated in the Brady

context. In cases involving claims under Brady, the

function of the habeas court is to determine whether

the evidence withheld by the state is sufficiently credible that a jury reasonably could credit it and, if so,

whether the evidence also is sufficiently pertinent to

an issue in the case that it reasonably could lead to a

different result. This predictive evaluation of the evidence is different from the ordinary case, in which the

fact finder is responsible for the ultimate assessment

of credibility. Thus, as the Pennsylvania Supreme Court

recently explained, ‘[a]ssessing credibility for purposes

of [Brady] prejudice is not necessarily the same thing

as assessing credibility at a trial.’ Commonwealth v.

Johnson, 600 Pa. 329, 359, 966 A.2d 523 (2009).’’

Lapointe v. Commissioner of Correction, supra, 316

Conn. 272 n.42. The court further stated that,
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‘‘[b]ecause, in addressing a claim under Brady, a habeas

court’s credibility determination is not an ‘absolute’

finding, as the factual findings of the ultimate finder of

fact are, but merely is a threshold evidentiary assessment required for the purpose of determining whether

the ultimate finder of fact reasonably could credit the

evidence, the principle that reviewing courts typically

defer to credibility findings in the Brady context has

its sole basis in the fact that the habeas court is ordinarily in a better position to judge credibility, and is

not based on the general prohibition against appellate

fact-finding. Consequently, when this court is in as good

a position as the habeas court to assess credibility for

the purpose of reviewing a claim under Brady,

reviewing the habeas court’s credibility assessment de

novo does not place this court in the improper role of

finding ultimate facts but merely allows this court to

carry out its proper role of determining the legal question of materiality under Brady.’’ Id.

A petitioner’s claim of ineffective assistance of counsel outside of the Brady context is, therefore, treated

differently from a petitioner’s claim implicating Brady.

With respect to the former, this court has articulated

a ‘‘well settled standard of review governing challenges

to a habeas court’s judgment on ineffective assistance

of counsel claims. In a habeas appeal, this court cannot

disturb the underlying facts found by the habeas court

unless they are clearly erroneous, but our review of

whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right

to effective assistance of counsel is plenary. . . . In a

habeas trial, the court is the trier of fact and, thus, is

the sole arbiter of the credibility of witnesses and the

weight to be given to their testimony . . . . It is simply

not the role of this court on appeal to second-guess

credibility determinations made by the habeas court.’’
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(Internal quotation marks omitted.) Delgado v. Commissioner of Correction, 224 Conn. App. 283, 290–91,

311 A.3d 740, cert. denied, 349 Conn. 902, A.3d

(2024).

In the present case, both the petitioner’s principal

appellate brief and reply brief set forth scant argument

as to why this court should apply Lapointe to his claim

on appeal. Significantly, the petitioner does not (1)

address our Supreme Court’s limitation of Lapointe

to Brady claims, (2) attempt to reconcile the factual

dissimilarities between his claims on appeal and

Lapointe, or (3) provide argument as to why this court

should read Lapointe beyond the Supreme Court’s language to apply its reasoning to his ineffective assistance

of counsel claim. Accordingly, we will not deviate from

our well settled rule that ‘‘[i]t is simply not the role of

this court on appeal to second-guess credibility determinations made by the habeas court.’’ (Internal quotation

marks omitted.) Fields v. Commissioner of Correction,

supra, 179 Conn. App. 569. Therefore, on the basis of

the record before us, we conclude that the present case

is not governed by Lapointe. Accordingly, we will not

disturb the habeas court’s finding that Wecht was not

credible. See Perez v. Commissioner of Correction,

194 Conn. App. 239, 243, 220 A.3d 901 (‘‘[t]he issue of

credibility is not debatable among jurists of reason and,

thus, cannot be used to overturn the decision of a

habeas court’’ (internal quotation marks omitted)), cert.

denied, 334 Conn. 910, 221 A.3d 43 (2019).

The judgment is affirmed with respect to the petitioner’s claim of ineffective assistance of counsel; the

appeal is dismissed as to the petitioner’s remaining

claim.

In this opinion the other judges concurred.