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RICHARD GIATTINO v. COMMISSIONER

OF CORRECTION

(AC 37496)

Lavine, Keller and Flynn, Js.

Submitted on briefs September 14—officially released December 6, 2016
(Appeal from Superior Court, judicial district of

Tolland, Fuger, J.)

Jennifer B. Smith, assigned counsel, filed a brief for

the appellant (petitioner).

Maureen Platt, state’s attorney, Leon F. Dalbec, Jr.,

senior assistant state’s attorney, and Eva B. Lenczewski, supervisory assistant state’s attorney, filed a brief

for the appellee (respondent).
Opinion

KELLER, J. The petitioner, Richard Giattino, appeals

from the judgment of the habeas court denying his

amended petition for a writ of habeas corpus. He claims

that the habeas court erred when it (1) declined to

conduct an in camera review of school records pertaining to the victim1 of the underlying crimes; and (2)

rejected the petitioner’s claim that his criminal trial

counsel rendered ineffective assistance. We decline to

reach the merits of the petitioner’s first claim, and conclude that the habeas court did not err with regard to

the second claim. We therefore affirm the judgment of

the habeas court.

In 2011, the petitioner was convicted, following a trial

to the court, Prescott, J., of two counts of sexual assault

in the second degree in violation of General Statutes

§ 53a-71 (a)(1),2 and one count of injury or risk of injury

to, or impairing the morals of, a child in violation of

General Statutes § 53-21 (a) (2).3 Aside from concluding

that the prosecution proved each element of the crimes

beyond a reasonable doubt, the trial court did not set

forth detailed factual findings in rendering its determination of guilt. On the basis of its findings, however,

we can conclude that the trial court was persuaded by

evidence of the following facts.

The petitioner married the victim’s mother in 2009

and shortly thereafter began residing with her and her

family. During the relevant time period, the petitioner,

the victim’s mother, the victim, and the victim’s three

younger siblings all occupied a three bedroom apartment in Naugatuck. The petitioner was then forty-eight

or forty-nine years old, and the victim was fourteen

years old. The victim’s boyfriend, Brandon Jones, then

seventeen years old, and a family friend, Scott Beasley,

also lived with the family in the apartment for substantial periods of time.

At the beginning of the marriage between the petitioner and the victim’s mother, the victim’s relationship

with the petitioner was, by the victim’s account, warm

and close. The victim, who had no relationship with

her biological father, considered the petitioner ‘‘like my

father figure.’’ The petitioner would take the victim and

her siblings for rides on his motorcycle and to a park

to play. The victim would confide in the petitioner about

personal problems, such as if she had an argument with

her boyfriend.

That relationship, however, soon began to change.

One day the petitioner approached the victim to talk

about sex. As the victim later testified at trial: ‘‘[the

petitioner] would say that he wanted to talk to me about

having sex because . . . I was a virgin, and he wanted

me to not be scared for the situations that I would have

when I was older and I did start having sex.’’ The victim

testified that as a result of this conversation she ‘‘was
in shock . . . cause I really didn’t think that he would

say something like that . . . cause I considered him

like my father.’’

The petitioner then took things further. During one

instance in which he approached the victim and started

to talk about sex, the petitioner began kissing the victim

on her mouth and breasts, stopping only when her

mother entered the house. The victim described several

more instances of sexual contact with the petitioner.

The second instance occurred when the victim stepped

out of the shower to find the petitioner standing in

the bathroom. The petitioner began kissing the victim’s

mouth and breasts and inserted his fingers into her

vagina. The third incident occurred as the victim was

changing clothes in the bathroom. The petitioner

entered and again began kissing the petitioner’s mouth

and breasts and digitally penetrated her. The fourth

incident occurred when the victim was again in the

bathroom, this time arranging her hair and texting on

her phone. As the victim was sitting on the toilet, the

petitioner entered the bathroom and approached her.

After a few moments, the petitioner exposed his penis

and, as the victim testified, ‘‘pushed [her] head forward

and . . . made [her] move [her] mouth on his penis.’’

The victim testified that she did not remember any of

the dates on which the incidents occurred, but that they

all happened in the ‘‘summertime’’ of 2009.4 She later

testified that ‘‘[i]t was at . . . the end of the summertime that this all started that we were just starting to

go back to school.’’ When asked by the court whether

‘‘summertime’’ meant ‘‘like, August,’’ the victim

responded affirmatively.

The victim reported the abuse to Jones and then to

her mother. The victim’s mother forced the petitioner

to leave the apartment. Shortly thereafter, the victim’s

mother took the victim to the family’s nurse practitioner, Judy Moskal-Kanz, for a physical examination.

The victim recounted the sexual abuse to Moskal-Kanz.

Moskal-Kanz did not find any physical evidence of sexual abuse as a result of the physical examination. After

the appointment with Moskal-Kanz, the victim reported

the abuse to a detective at the Naugatuck Police Department and an investigator with the Department of Children and Families (department).

The petitioner was represented at trial by public

defender Tashun Bowden-Lewis. The prosecution’s

case-in-chief consisted of testimony from the victim,

the victim’s mother, Jones, Beasley, Moskal-Kanz, and

the department investigator. The petitioner’s case-inchief consisted solely of his own testimony, in which

he denied the allegations. In closing argument, the petitioner highlighted inconsistencies in the victim’s testimony and prior statements, as well as the lack of any

physical evidence of abuse. The petitioner also contended that the victim had fabricated the charges to
retaliate against the petitioner because he had earlier,

along with the victim’s mother, ordered Jones to move

out of the apartment. After a two day trial, the court

found the petitioner guilty of the previously discussed

three counts. The court sentenced the petitioner to a

total effective term of twenty years imprisonment, execution suspended after twelve years, and twenty years

of probation.

In 2014, the petitioner,represented by Attorney Jason

C. Goddard, filed an amended petition for a writ of

habeas corpus, wherein the petitioner alleged that his

criminal trial counsel rendered ineffective assistance

by, inter alia, failing to obtain records pertaining to the

victim, including the victim’s schoolrecords, in addition

to other alleged failures in the pretrial investigative

process. After a trial, the habeas court, Fuger, J., for

reasons detailed below, denied the petition but granted

the petitioner certification to appeal. The petitioner

then brought the present appeal.

I

The petitioner first claims that the habeas court erred

when it declined to conduct an in camera review of the

victim’s school records. The respondent, the Commissioner of Correction, argues, however, that the habeas

court merely issued a preliminary denial as to the school

records, and that because the petitioner did not renew

his motion for an in camera review, the petitioner failed

to preserve the issue for appeal. We agree with the

respondent, and accordingly decline to review the merits of this claim.

The following additional information is relevant to

our discussion. Prior to the habeas trial, the petitioner

filed a motion with the habeas court requesting disclosure of, inter alia, ‘‘[a]n unredacted copy of the victim’s

school records’’ from two high schools she attended.

The petitioner did not provide any reasons in the motion

as to why such records would contain exculpatory information.

The petitioner subpoenaed the records from the Naugatuck public schools, and an attorney for the schools

brought the records, under seal pursuant to General

Statutes § 10-15b,5

to the court on the morning of the

habeas trial. At the beginning of the trial, the habeas

court questioned the petitioner as to the relevancy of

the victim’s school records. The petitioner’s attorney

responded in part: ‘‘During the trial [the victim] had

indicated . . . that one of the instances [of abuse]

occurred. She recalled one of the instances because

she had gotten into trouble in school that day.6 So, I

looked to—to verify that—sort of, to see if there was

any—any truth to that, and . . . I needed the school

records to see if there was any sort of disciplinary action

taken in and around the time . . . of the incident.’’

(Footnote added.)
After several more exchanges, the court stated: ‘‘Well

. . . at this point I don’t see any reason that I need to

examine them. . . . Again, I’m not going to categorically rule out that there’s that possibility because I

haven’t heard anything, but based on what I have heard,

it doesn’t seem like it’s too likely . . . . I’m going to

allow the subpoenaed records to be lodged with the

court. . . . Now, both of these records [the school

records and other records the petitioner subpoenaed]

shall remain sealed. In the event we get to the point

that I think it might be necessary to determine whether

they should be unsealed, then we’ll bring that up on a

second day of trial, so that I don’t have to tie up [the

individuals who brought the records to the court]. So,

I’m going to put the onus on you, Mr. Goddard, to—

you know, you’ve got to convince me that you’re over

the hurdle . . . . Until that, I’m not going to order them

unsealed. Is that clear?’’ The petitioner’s attorney

replied that it was.

Although the petitioner questioned his criminal trial

counsel at the habeas trial concerning the latter’s decision not to seek disclosure of the school records, the

petitioner never renewed his motion for in camera

review of the records or otherwise sought a definitive

ruling from the court on the matter before the close of

evidence. In lieu of oral closing arguments, the petitioner and the respondent submitted posttrial briefs.

The following legal principles govern our disposition

of this claim. ‘‘Practice Book § 60-5 provides in relevant

part that [t]he court shall not be bound to consider a

claim unless it was distinctly raised at the trial or arose

subsequent to the trial. . . . For us [t]o review [a]

claim, which has been articulated for the first time on

appeal and not before the trial court, would result in

a trial by ambuscade of the trial judge. . . . We have

repeatedly indicated our disfavor with the failure,

whether because of a mistake of law, inattention or

design, to object to errors occurring in the course of a

trial until it is too late for them to be corrected, and

thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of

appeal.’’ (Internal quotation marks omitted.) Ferraro

v. Ridgefield European Motors, Inc., 313 Conn. 735,

758–59, 99 A.3d 1114 (2014). Our Supreme Court has

concluded that the failure to renew a motion following

a preliminary denial results in abandonment of that

claim on appeal. See, e.g., State v. Francis, 246 Conn.

339, 352, 717 A.2d 696 (1998) (‘‘because the trial court

had ruled only preliminarily and allowed the defendant

the opportunity to renew this line of questioning once

its relevancy had been established, we conclude that

this issue is not reviewable’’).

At the outset, we conclude that the previously discussed ruling of the habeas court was a preliminary

one. It was, therefore, ‘‘incumbent on the [petitioner]
to seek a definitive ruling . . . in order fully to comply

with the requirements of our rules of practice for preserving his claim of error . . . .’’ State v. Johnson, 214

Conn. 161, 170, 571 A.2d 79 (1990). The fact that the

ruling was preliminary, and that the petitioner was free,

at a point later in the habeas trial, to make his offer of

proof as to the relevancy of the school records, is plain

from the language of the habeas court, which clearly

placed such burden on the petitioner.7

The petitioner argues thatthis issue was subsequently

preserved because, first, ‘‘he explicitly addressed how

the records would have been favorable to the defense

in his posttrial brief,’’ and, second, the habeas court

‘‘expressly ruled on the claim in its memorandum of

decision . . . .’’ We address, and dispose of, each argument in turn.

First, even assuming, arguendo, that the petitioner

could successfully renew his motion for in camera

review after the close of evidence in a posttrial brief,

our review of the brief discloses that he made no such

request. To be sure, the petitioner’s posttrial brief

argued that his criminal trial counsel performed deficiently in not obtaining the victim’s school records. The

petitioner thus claims that he renewed his motion for

in camera review in his posttrial brief because he ‘‘thoroughly marshaled the evidence . . . to show how the

victim’s educational records would have been

important to obtain to impeach the victim’s credibility,

and how they contained information that would have

been material to his defense.’’ This argument is without

merit. It was not the habeas court’s responsibility to

divine the petitioner’s intent, or, sua sponte, to raise

again the issue of in camera review. We thus reject the

petitioner’s argument that his posttrial brief somehow

served to renew his motion to conduct an in camera

review of the victim’s school records.

We are likewise not persuaded by the petitioner’s

second argument that the habeas court ‘‘did not consider [his] claim abandoned because it expressly ruled

on the claim in its memorandum of decision . . . .’’ In

its memorandum of decision, the habeas court concluded in part: ‘‘The petitioner asserts that his trial

defense counsel failed to locate and introduce pertinent

evidence that would have led the trial judge to conclude

that the petitioner was not guilty. Nevertheless, the

petitioner introduced no evidence that had any probative value to show that there was any such exculpatory

material out there. To be sure, the petitioner tried to

engage in speculative explorations of medical, psychological, and school records of the victim, but since the

petitioner did not offer anything concrete to even suggest that there was any reliable admissible evidence

contained therein, these records were not unsealed.’’

We do not believe that this portion of the habeas

court’s memorandum of decision constitutes a ‘‘ruling’’
on a motion for in camera review of the school records,

particularly in light of the fact that, as explained previously, the petitioner did not renew his motion for in

camera review in his posttrial brief or otherwise.

Rather, the court appeared merely to be referencing its

preliminary ruling on the motion, not articulating a new

one. Accordingly, the petitioner’s request for in camera

review of the victim’s school records is not deemed

preserved merely because the habeas court briefly

addressed the issue in its memorandum of decision.

As a final matter, we address the petitioner’s argument, made in passing in his appellate brief, that the

habeas court erred because it ‘‘appeared to have

assumed, without conducting a complete factual

inquiry, that the victim would not consent to the release

of her educational records.’’ The petitioner refers to a

point in the habeas trial when the court, the petitioner,

and the respondent discussed whetherthe victim would

waive her right to confidentiality as to certain sealed

records that the petitioner subpoenaed. The relevant

portion of that discussion is as follows:

‘‘The Court: . . . I have two sealed envelopes here

with material that apparently you’ve subpoenaed. . . .

One is the—[the petitioner’s] medical file. I presume

you have—since you subpoenaed it, that you have no

objection to [it] being unsealed.

‘‘[The Petitioner’s Counsel]: No objection, Your

Honor. . . .

‘‘The Court: And then I have some information from

the Wheeler Clinic. . . . Ms. [Eva B.] Lenczewski

[counsel for the respondent], do you know if the person

who’s referred to in these records intends to waive the

confidentiality of the records?

‘‘[The Respondent’s Counsel]: Your Honor, I’ve not

had any contact with her. I can’t imagine that she would.

This was a—

‘‘The Court: Well, she might. I don’t know.

‘‘[The Petitioner’s Counsel]: Well, she’s here today.

I—

‘‘The Court: I . . . I have no idea, first of all, who

she is. I presume that you might, Ms. Lenczewski.

‘‘[The Respondent’s Counsel]: I would presume that

that is a record of the victim, the minor child at the

time, and I would object to any—even questioning her

about the consent to open them. It sounds like it’s a

fishing expedition.

‘‘The Court: Well, I can’t say it’s a fishing expedition

yet, but it certainly is beginning to have that appearance.

But the first question is, whether it is or it isn’t . . .

would you be able to discuss with the person to whom

the records pertain as to whether he or she would be

willing to waive confidentiality? If so, then that elimi-
nates a lot of problems. If not, then—well, we’re right

where we are anyway.

‘‘[The Respondent’s Counsel]: I would do that if Your

Honor wished. I’m told by counsel that the individual

is present, and he’ll . . .

‘‘The Court: You’ve never spoken to her, I take it?

‘‘[The Respondent’s Counsel]: I have never met her.

‘‘The Court: So, you don’t know her?

‘‘[The Respondent’s Counsel]: No.

‘‘The Court: In the most broad terms possible, what

is it you expect to see in these records?’’

Citing no legal authority, the petitioner argues that

the habeas court erred when, after the preceding colloquy, it ‘‘immediately turned to the question of whether

the petitioner had made the requisite showing to overcome a lack of consent, without having confirmed that

the victim had, in fact, decided not to waive her consent.’’ The record reveals, however, that this discussion

was confined to the subject of the victim’s confidential

mental health records. There was no discussion during

the habeas trial as to whether the victim should be

asked to consentto an in camera review of her confidential school records. Moreover, our review of the record

shows that the petitioner did not raise this claim before

the habeas court. Accordingly, we elect not to review

its merits. See Ferraro v. Ridgefield European Motors,

Inc., supra, 313 Conn. 758–59.

II

The petitioner next claims that the habeas court erred

when it rejected his claim that his criminal trial counsel

rendered ineffective assistance. Specifically, the petitioner claims that his criminal trial counsel was deficient in failing (1) to adequately cross-examine the

victim about, inter alia, inconsistencies in her testimony, and (2) to obtain the victim’s school records.

The petitioner also argues that these deficiencies were

prejudicial to him. For the reasons provided below, the

petitioner cannot prevail on these claims.

A

The petitioner first claims that his criminal trial counsel performed deficiently in cross-examining the victim.

More specifically, the petitioner asserts that counsel

failed to challenge the victim with respect to ‘‘several

glaring inconsistencies’’ in her testimony and failed to

adequately cross-examine her in order to establish a

more definite time period during which the alleged

instances of abuse occurred. The respondent argues,

however, that these issues are not reviewable because

the petitionerfailed to raise them in his amended habeas

petition, and the habeas court did not address their

merits in its decision. We agree with the respondent

and therefore decline to review the merits of this claim.
The following legal principles guide our analysis.

‘‘Practice Book § 60-5 provides . . . that [t]he court

shall not be bound to consider a claim unless it was

distinctly raised at the trial or arose subsequent to the

trial.’’ (Internal quotation marks omitted.) Ferraro v.

Ridgefield European Motors, Inc., supra, 313 Conn.

758–59. ‘‘A petition for a writ of habeas corpus must

set forth specific grounds for the issuance of the writ.

Practice Book § 23-22 (1) specifically provides that the

petition shall state the specific facts upon which each

specific claim of illegal confinement is based and the

relief requested . . . . A reviewing court will not consider claims not raised in the habeas petition or decided

by the habeas court. . . . Appellate review of claims

not raised before the habeas court would amount to an

ambuscade of the [habeas] judge.’’ (Internal quotation

marks omitted.) Rodriguez v. Commissioner of Correction, 131 Conn. App. 336, 351, 27 A.3d 404 (2011), aff’d,

312 Conn. 345, 92 A.3d 944 (2014).

As to the petitioner’s argument that his criminal trial

counsel was deficient in failing to challenge the victim

with respect to inconsistencies in her testimony, the

petitioner identifies two such inconsistencies. The first

occurred when, at the criminal trial, the victim testified

that the petitioner had abused her five times,8

in contrast to a statement to the police in which she reported

six to seven instances. The second claimed inconsistency occurred when, as previously discussed in footnote 4 of this opinion, in response to a question from

the prosecution as to whether the petitioner initiated

any other sexual contact with the victim in the petitioner’s bedroom, the victim recounted another incident

that did not involve any physical contact. In his

amended habeas petition, the petitioner did not assert

these claims of failure to explore inconsistencies in

the victim’s testimony, nor did the habeas court, in its

written memorandum of decision, address them. We

therefore decline to reach the merits of these claims.

As to the petitioner’s argument that his criminal trial

counsel was deficient in failing to adequately crossexamine the victim in order to establish a more definite

time period during which the alleged instances of abuse

occurred, thereby forgoing an opportunity to impeach

the victim or develop an alibi defense, this particular

claim also does not appear in the amended habeas petition, nor did the habeas court address the matter. We

therefore decline to reach the merits of this claim as

well.

In his reply brief, the petitioner nonetheless argues

that the preceding issues were preserved because, first,

in his amended habeas petition, he asserted that his

criminal trial counsel was ineffective for failing to

obtain the victim’s school records. The petitioner continues: ‘‘The sole purpose in obtaining these records

was to cross-examine, impeach, or otherwise challenge
the victim’s testimony. There was no other reason to

obtain these records.’’ Such a position essentially obligates the habeas court to divine the petitioner’s intent.

To the contrary: it is the petitioner’s responsibility to

clearly present his claim to the habeas court, as well

as the specific facts upon which his claim relies. See

Rodriguez v. Commissioner of Correction, supra, 131

Conn. App. 351.

Second, the petitioner argues that he properly raised

these claims because, in his posttrial brief, he asserted:

‘‘Counsel failed to obtain documentary evidence that

would have compromised the victim’s credibility, failed

to adequately cross-examine the victim regarding her

glaring inconsistencies, many of which proved the incidents could not have happened.’’ The petitioner’s posttrial brief goes on to discuss alleged ineffectiveness

by his criminal trial counsel for, inter alia, failing to

adequately cross-examine the victim about the time line

of the abuse. However, we again observe that ‘‘[a]

reviewing court will not consider claims not raised in

the habeas petition or decided by the habeas court.’’

(Internal quotation marks omitted.) Rodriguez v. Commissioner of Correction, supra, 131 Conn. App. 351;

see also Elsey v. Commissioner of Correction, 126

Conn. App. 144, 169, 10 A.3d 578 (‘‘[i]t is well settled that

[t]he petition for a writ of habeas corpus is essentially a

pleading and, as such, it should conform generally to

a complaint in a civil action. . . . The principle that a

plaintiff may rely only upon what he has alleged is basic.

. . . It is fundamental in our law that the right of a

plaintiff to recover is limited to the allegations of his

complaint. . . . This court is not bound to consider

claimed errors unless it appears on the record that the

question was distinctly raised . . . and was ruled upon

and decided by the court adversely to the appellant’s

claim.’’ [Internal quotation marks omitted.]), cert.

denied, 300 Conn. 922, 14 A.3d 1007 (2011). Thus, even

if we were to conclude that the petitioner raised in his

posttrial brief his claim that his criminal trial counsel

was ineffective in cross-examining the victim, such

claim would still be unpreserved on appeal because

the petitioner did not distinctly raise it in his habeas

petition, nor did the habeas court specifically rule on

it in its memorandum of decision. We therefore decline

to review the merits of the petitioner’s claim that his

criminal trial counsel was ineffective for failing to adequately cross-examine the victim.

B

The petitioner next claims that his criminal trial counsel performed deficiently because she did not obtain

the victim’s school records. The petitioner asserted this

claim in his amended habeas petition, as well as in his

posttrial brief. Furthermore, the habeas court

addressed this issue in its memorandum of decision.

The petitioner has therefore preserved this claim for
appeal. However, for the reasons provided below, the

petitioner cannot prevail with respect to this claim.

We begin with the applicable standard of review.

‘‘[T]he right to counsel is the right to the effective assistance of counsel. . . . There are two components of a

claim of ineffective assistance of counsel. First, the

defendant must show that counsel’s performance was

deficient. . . . Second, the defendant must show that

the deficient performance prejudiced the defense.’’

(Citation omitted; internal quotation marks omitted.)

Johnson v. Commissioner of Correction, 218 Conn. 403,

424, 589 A.2d 1214 (1991).

‘‘The underlying historical facts found by the habeas

court may not be disturbed unless the findings were

clearly erroneous. . . . Historical facts constitute a

recital of external events and the credibility of their

narrators. So-called mixed questions of fact and law,

which require the application of a legal standard to

the historical-fact determinations, are not facts in this

sense. . . . Whether the representation a defendant

received at trial was constitutionally inadequate is a

mixed question of law and fact. . . . As such, that question requires plenary review by this court unfettered

by the clearly erroneous standard.’’ (Internal quotation

marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 597–98, 940 A.2d 789 (2008).

The habeas court concluded with regard to this claim:

‘‘The petitioner asserts that his trial defense counsel

failed to locate and introduce pertinent evidence that

would have led the trial judge to conclude that the

petitioner was not guilty. Nevertheless, the petitioner

introduced no evidence that had any probative value

to show that there was any such exculpatory material

out there. To be sure, the petitioner tried to engage in

speculative explorations of medical, psychological, and

school records of the victim, but since the petitioner

did not offer anything concrete to even suggest that

there was any reliable admissible evidence contained

therein, these records were not unsealed. . . . Simply

put, there is no basis at all in any of the evidence put

forth to conclude that [the petitioner’s criminal trial

counsel] was in any way ineffective.’’

The petitioner claims that ‘‘[t]here was no reasonable

strategic basis for [the petitioner’s criminal trial counsel] not to obtain the victim’s [school] records because

the prosecuting authority’s case was based entirely on

the credibility of the victim, and the only information

that she had to undermine the credibility of the victim

was obtained from biased sources.’’ The petitioner

argues that had his criminal trial attorney obtained the

records, she would have been able to, first, impeach

the victim by revealing that she had been skipping

school and was suspended for stealing, and that she

deceived her parents as to her involvement in both of

these activities; and, second, establish a time line of
the abuse that could have led to the development of

an alibi defense. We address, and dispose of, each argument as follows.

As to the petitioner’s argument that the victim’s

school records would have disclosed material with

which to impeach the victim’s credibility—namely, that

the victim had been skipping school and was suspended

for stealing—the problem, of course, is that because

the habeas court did not unseal the victim’s school

records, we do not in fact know whether those factual

assertions are correct.9 Thus, we cannot conclude on

this basis that the petitioner’s criminal trial counsel

performed deficiently in failing to obtain the victim’s

school records.

We likewise find no merit in the petitioner’s second

argument that, had his criminal trial counsel obtained

the victim’s school records, ‘‘she could have used them

to cross-examine the victim about the date that school

started and narrow down the time line of the five incidents of sexual abuse.’’ The petitioner’s argument in this

regard appears to proceed as follows: the petitioner’s

criminal trial counsel failed to obtain the victim’s 2009–

2010 school calendar,10 which would have shown that

the victim began school on August 27, 2009. Using this

date and the victim’s testimony concerning the time

line of the abuse, including, apparently, her testimony

that one incident occurred on the afternoon of a day

when she had been disciplined at school, the petitioner

reasons that the instances of abuse could have occurred

only within a period of three consecutive days in late

August, 2009. The petitioner continues: ‘‘Had trial counsel narrowed down the time line of the abuse to a three

day period, she could have developed an alibi defense

to present at the petitioner’s trial.’’

This argument relies on a faulty factual premise, to

wit: the victim testified that all of the instances of abuse

occurred in August, 2009. The more plausible reading

of the victim’s testimony is that the abuse merely began

in August, 2009, at about the time that the victim’s

school year began.11 Moreover, this claim rests on the

unproven premise that, had specific dates been identified by means of the calendar and other school records,

the petitioner could have provided compelling alibi evidence for such dates.12 This being the case, we fail to

see how the victim’s school calendar or disciplinary

record (the existence of which, we have noted, is

entirely conjectural at this point) provide any material

exculpatory to the petitioner. See Griffin v. Commissioner of Correction, 119 Conn. App. 239, 241–42, 987

A.2d 1037 (‘‘[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]), cert. denied, 295

Conn. 912, 989 A.2d 1074 (2010).
Accordingly, the habeas court’s conclusion that the

petitioner failed to demonstrate that his criminal trial

counsel performed deficiently was not in error, as there

is no evidence that the victim’s school records contained evidence that could have been employed to exonerate the petitioner. Consequently, we need not address

the petitioner’s prejudice argument. See Ham v. Commissioner of Correction, 301 Conn. 697, 704, 23 A.3d

682 (2011) (‘‘[a] court can find against a petitioner, with

respect to a claim of ineffective assistance of counsel,

on eitherthe performance prong orthe prejudice prong,

whichever is easier’’).

The judgment is affirmed.

In this opinion the other judges concurred.

1

In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse and the crime of risk of injury to a child, we decline

to identify the victim or others through whom the victim’s identity may be

ascertained. See General Statutes § 54-86e.

2 General Statutes § 53a-71 (a) provides in relevant part: ‘‘A person is

guilty of sexual assault in the second degree when such person engages in

sexual intercourse with another person and . . . (1) Such other person is

thirteen years of age or older but under sixteen years of age and the actor

is more than three years older than such other person . . . .’’

3 General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who

. . . (2) has contact with the intimate parts . . . of a child under the age

of sixteen years or subjects a child under sixteen years of age to contact

with the intimate parts of such person, in a sexual and indecent manner

likely to impair the health or morals of such child . . . shall be guilty of

. . . a class B felony . . . .’’

4 When asked by the prosecution on direct examination whether the petitioner initiated any other sexual contact with her in the bedroom belonging

to the petitioner and the victim’s mother, the victim recounted another

incident that occurred between the third and fourth incidents described

previously. As the victim described it, however, the encounter did not involve

any physical contact between her and the petitioner. The victim testified

that she entered the bedroom to find the petitioner sitting on the bed

watching television. The victim testified that ‘‘I stood there for a second, I

was watching a show with him, and he got up and I was—was going to go

into the bathroom to use the bathroom, and he got up and he stood in front

of me and I was—I just—like, I kept my head down, I didn’t really—I didn’t

even look at him, I kept my head down and I—when I looked—I looked up

cause he said—he was, like, [victim’s name], I looked up, and I was, like,

what? He said—I—and he—my little brother had to come home, and he

knocked on the door and he sat back down, and I opened the door and I

walked out and I left.’’

5 General Statutes § 10-15b (c) provides in relevant part: ‘‘If any private

or public school is served with a subpoena issued by competent authority

directing the production of school or student records in connection with

any proceedings in any court, the school upon which such subpoena is

served may deliver such record or at its option a copy thereof to the clerk

of such court. . . . Any such record or copy so delivered to such clerk

shall be sealed in an envelope . . . . No such record or copy shall be open

to inspection by any person except upon the order of a judge of the court

concerned, and any such record or copy shall at all times be subject to the

order of such judge. . . .’’

6

In her testimony in the criminal trial, the victim indicated that the third

instance of sexual abuse described previously occurred on a day when her

school called home to report that she ‘‘had gotten into trouble . . . .’’

7 This conclusion is further borne out by the fact that the court ordered

the sealed records lodged with it until their relevancy was established.

8 We note that one of these instances, as described by the victim, did not

involve physical contact. See footnote 4 of this opinion.

9 To be sure, the petitioner testified before the habeas court that the victim

was disciplined by her school for stealing a cell phone. However, in its

memorandum of decision, the habeas court concluded in part: ‘‘The peti-
tioner is deemed not to be credible as almost all of his statements in his

testimony were self-serving and unworthy of belief.’’ As explained previously, we must accept the credibility determinations of the habeas court

unless they are clearly erroneous. See Crawford v. Commissioner of Correction, supra, 285 Conn. 597. Our review of the record does not reveal, and the

petitioner has not identified, any evidence persuading us that this credibility

determination is clearly erroneous. Additionally, the petitioner presented

no evidence purporting to show that the victim had been skipping school.

10 For reasons that are not immediately apparent, the petitioner seems to

equate the victim’s generic school calendar with her confidential school

records. There is no evidence that the victim’s school calendar, which was

entered as an exhibit in the habeas trial, is confidential.

11 As previously discussed, the victim initially testified before the trial

court that the instances of abuse happened in the ‘‘summertime’’ of 2009.

However, after being prompted to clarify by the trial court, she stated that

‘‘[i]t was at . . . the end of the summertime that this all started that we

were just starting to go back to school.’’ When asked by the court whether

‘‘summertime’’ meant ‘‘like, August,’’ the victim answered, ‘‘Yes.’’

12 It is perplexing that the petitioner argues that his criminal trial counsel

performed deficiently for failing to pursue an alibi defense, while at the

same time providing no information whatsoever as to what that alibi might

have been, despite the fact that, under the petitioner’s (albeit flawed)reasoning, ‘‘[t]here was only a three day period in which the five [instances of

abuse] could have occurred.’’ (Emphasis omitted.)