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DION BUSH v. COMMISSIONER OF CORRECTION

(AC 37238)

Sheldon, Keller and Foti, Js.

Argued September 12—officially released December 6, 2016

(Appeal from Superior Court, judicial district of

Tolland, Mullins, J.)

David J. Reich, for the appellant (petitioner).

Linda Currie-Zeffiro, assistant state’s attorney, with

whom, on the brief, were John C. Smriga, state’s attorney, and Craig Nowak, senior assistant state’s attorney,

for the appellee (respondent).
Opinion

KELLER, J. The petitioner, Dion Bush, appeals from

the judgment of the habeas court denying his amended

petition for a writ of habeas corpus as well as the denial

of his petition for certification to appeal.1 The petitioner

claims that the habeas court erred by not concluding

that his appellate counsel in a prior habeas appeal was

ineffective. Specifically, the petitioner argues that his

prior habeas appellate counsel was ineffective by failing

to properly brief issues on appeal relating to: (1) alleged

ineffectiveness by the petitioner’s criminal trial counsel

for not moving to sever the petitioner’s trial from that

of his codefendant; and (2) an alleged conflict ofinterest

by criminal trial counsel resulting from his representation of another clientthatrendered his representation of

the petitioner ineffective. We conclude that the habeas

court did not abuse its discretion in denying the petition

for certification to appeal, and, accordingly, we dismiss

the appeal.

The following facts underlying the petitioner’s conviction, as set forth by our Supreme Court in the petitioner’s direct appeal, are pertinent to our resolution

of these issues. ‘‘On September 25, 1993, the victim,

Norman Jones, a member of the Brotherhood street

gang, was socializing at a party in Bridgeport. Antoin

Pettway also was present at the party. At some point

during the evening, the victim and Pettway left the party

together and went to the Pequonnock housing project,

where Pettway had an apartment. Upon arriving at the

housing project, Pettway entered his apartment building. The victim, who did not live at Pequonnock,

remained directly outside the building’s front entrance.

‘‘Pettway encountered Robert Robertson, a member

of the Bush Mob gang, in the building’s lobby. Robertson

asked Pettway if the person outside the building’s

entrance was Jones, and Pettway responded affirmatively. Both men then left the lobby. Robertson entered

the stairwell and went upstairs, while Pettway took the

elevator to his apartment.

‘‘Shortly thereafter, Robertson and the [petitioner],

who also was a member of the Bush Mob gang, entered

the lobby from the stairwell. The two men, each of

whom was armed with a handgun, then went to the

building’s front entrance and pointed their guns in the

direction of the victim. Robertson diverted his aim from

the victim and fired once into the air. The [petitioner],

however, fired several rounds at the victim, stopping

only when his gun had been emptied. As the [petitioner]

and Robertson then retreated through the lobby, Bernard Johnson, who had been in the lobby at that time,

asked them why they had shot at the victim. One of the

two men responded thatthey had done so to retaliate for

the recent murder of a Bush Mob gang member.

‘‘Within minutes, Bridgeport police officers arrived
and found the victim lying on the ground a short distance away from the entrance of the building. He had

been shot once in the back and was unconscious. He

subsequently was transported to Saint Vincent’s Medical Center in Bridgeport, where attempts to save his

life proved unsuccessful.’’ (Footnote omitted.) State v.

Bush, 249 Conn. 423, 425–26, 735 A.2d 778 (1999).

The petitioner and Robertson were both charged with

murder as either a principal or an accessory in violation

of General Statutes §§ 53a-54a (a) and 53a-8, and conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a). The petitioner was

represented by Attorney Dante Gallucci, and Robertson

was represented by Attorney Lawrence Hopkins. ‘‘Prior

to trial, the state moved to consolidate the trials of the

[petitioner] and Robertson. Neither the [petitioner] nor

Robertson objected to that motion, and thereafter, the

trial court granted it.2

Immediately before the start of

the state’s case-in-chief, however, Robertson moved to

sever the trials on the ground that there was a potential

for antagonism between his defense and the [petitioner’s].3 Although both the [petitioner] and Robertson

planned to assert that they had not been present when

the victim was shot, Robertson claimed that he might

pursue a different strategy during the trial if, as anticipated, the state presented evidence from which the jury

could infer that the [petitioner] had fired the shot that

had killed the victim. Thereafter, the [petitioner] also

moved for severance claiming that, if Robertson were

to change his theory of defense during trial, there was

a potential for antagonism between his defense and

Robertson’s. The trial court determined that, because

at that time there was no conflict between the defenses

of the [petitioner] and Robertson, the motions for severance on the basis of antagonistic defenses were premature. The court, therefore, denied those motions. In so

doing, however, the court specifically stated that both

the [petitioner] and Robertson could renew their severance motions if an actual conflict between their

defenses arose during trial. Neither the [petitioner] nor

Robertson renewed his motion for severance on the

basis of antagonistic defenses at any time thereafter.’’

(Emphasis in original; footnotes altered.) Id., 426–27.4

During the trial the state called as a witness Maria

Caban, who testified that the petitioner told her that

he had shot the victim and that Robertson was also

present during the shooting. She also testified that the

petitioner told her that Robertson did not fire at the

victim. Instead, he indicated that Robertson ‘‘punked

out’’ and fired a single shot into the air. She also stated

that, subsequent to the shooting, a group of men came

to her apartment to retrieve what she was told was

the murder weapon, and that the petitioner, but not

Robertson, was present at that time.5 During crossexamination of Caban, Hopkins prompted her to reiterate those portions of her testimony that indicated that
Robertson did not fire the shot that killed the victim.

During his closing argument on behalf of Robertson,

Hopkins argued that both Johnson and Caban lacked

credibility, but that even if the jury believed their suspect testimony, it was clear that the bullet that killed

the victim had been fired by the petitioner. The jury

convicted the petitioner of murder and conspiracy to

commit murder,6 and the court, Ford, J., imposed a

total effective sentence of sixty years incarceration.

The petitioner, stillrepresented by Gallucci, appealed

his conviction to our Supreme Court, arguing, inter alia,

that the trial court erred by denying his motion to sever

his trial from that of Robertson. Our Supreme Court

affirmed the conviction, concluding that the petitioner

had failed to preserve the claim by failing to renew his

severance motion on the basis of antagonistic defenses

at any time during the trial as permitted by the court.

State v. Bush, supra, 249 Conn. 428.

The petitioner then filed his first petition for a writ

of habeas corpus.7 Represented by Attorney Howard

Wicker, the petitioner claimed that he was deprived of

the effective assistance of counsel at his criminal trial

because Gallucci did not, inter alia: (1) timely move to

sever his trial from that of Robertson; or (2) move to

withdraw from representing the petitioner because of

a conflict of interest. During the petitioner’s first habeas

trial, Gallucci testified as a witness for the respondent,

the Commissioner of Correction, and stated that the

petitioner’s defense was one of general denial, although

the petitioner did not have a supportable alibi. With

regard to Robertson’s defense, Gallucci explained:

‘‘Well, the basic thrust of the defense, that he wasn’t

involved. I recall at some points, [Hopkins] was also

trying to show . . . not only was [Robertson] not there

and [he] didn’t do it, but virtually nobody said [he] did

it. It was a little different than our defense, but basically,

the defenses were consistent; that [they] weren’t there.

[They] didn’t do it.’’ The habeas court, White, J. (first

habeas court), denied the petition, concluding that the

petitioner had failed to show that Gallucci was deficient

in his performance at trial or that the petitioner was

prejudiced by such alleged deficiencies. See Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984). The first habeas court also denied

the petition for certification to appeal. Represented by

Special Public Defender Mary Trainer, the petitioner

appealed the first habeas court’s judgment to this court.

See Bush v. Commissioner of Correction, 92 Conn.

App. 537, 885 A.2d 1265 (2005), cert. denied, 277 Conn.

906, 894 A.2d 986 (2006). This court concluded that the

first habeas court did not abuse its discretion in denying

the petition for certification to appeal.

The petitioner then filed his second petition for a

writ of habeas corpus, the action underlying this appeal.

The petitioner, represented by Attorney Frank Canna-
telli, alleged ineffective assistance by Trainer, Wicker,

and Gallucci.8 After a trial, the habeas court, Mullins,

J. (second habeas court), for reasons detailed subsequently in this opinion, denied the petition for a writ

of habeas corpus as well as a subsequent petition for

certification to appeal. The petitioner then brought the

present appeal. The issues raised in the present appeal

relate only to claims in the petition regarding the alleged

ineffective assistance of Trainer as appellate counsel

in the prior habeas appeal. Additional facts will be set

forth as necessary.

As a preliminary matter, we set forth the applicable

standard of review. ‘‘Faced with a habeas court’s denial

of a petition for certification to appeal, a petitioner can

obtain appellate review of the dismissal of his petition

for [a writ of] habeas corpus only by satisfying the

two-pronged test enunciated by our Supreme Court in

Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994),

and adopted in Simms v. Warden, 230 Conn. 608, 612,

646 A.2d 126 (1994). First, he must demonstrate that

the denial of his petition for certification constituted

an abuse of discretion. . . . Second, if the petitioner

can show an abuse of discretion, he must then prove

that the decision of the habeas court should be reversed

on its merits. . . .

‘‘To prove an abuse of discretion, the petitioner must

demonstrate that the [resolution of the underlying claim

involves issues that] are debatable among jurists of

reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to

deserve encouragement to proceed further. . . . To

prevail on a claim of ineffective assistance of counsel,

a petitioner must show (1) that counsel’s performance

was deficient and (2) that the deficient performance

prejudiced the defense. . . . Furthermore, [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.’’ (Citations omitted; emphasis in original;

internal quotation marks omitted.) Griffin v. Commissioner of Correction, 119 Conn. App. 239, 241–42, 987

A.2d 1037, cert. denied, 295 Conn. 912, 989 A.2d 1074

(2010).

‘‘It is axiomatic that, in order to establish a claim of

ineffective assistance of appellate counsel, a habeas

petitioner must establish both deficient performance

and the resulting prejudice. . . . The performance

prong requires proof that appellate counsel’s performance fell below an objective standard of reasonableness. . . . There is a strong presumption that counsel

has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. . . . Just as the decision of trial

counsel not to object to certain evidence is a matter of

trial tactics, not evidence of incompetency . . . the
tactical decision of appellate counsel not to raise a

particular claim is ordinarily a matter of appellate tactics, and not evidence of incompetency, in light of the

presumption of reasonable professional judgment. . . .

‘‘The prejudice prong requires proof that, had the

prior performance been reasonable rather than inadequate, there is a reasonable probability that the petitioner would have prevailed on the appeal. . . . A

failure to establish either prong will be fatal to a claim

of ineffectiveness of counsel. . . . Our scope of review

regarding the underlying facts found by the habeas

court is the clearly erroneous standard, and the plenary

standard of review applies regarding the legal conclusion of whether those facts amount to ineffectiveness

of counsel.’’ (Citations omitted; emphasis added.)

Alterisi v. Commissioner of Correction, 145 Conn. App.

218, 222–23, 77 A.3d 748, cert. denied, 310 Conn. 933,

78 A.3d 859 (2013).

We also stress that ‘‘[j]udicial scrutiny of counsel’s

performance must be highly deferential. It is all too

tempting for a defendant to second-guess counsel’s

assistance after conviction . . . and it is all too easy

for a court . . . to conclude that a particular act or

omission of counsel was unreasonable. . . . A fair

assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s

challenged conduct . . . . [A] court must indulge a

strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance

. . . .’’ (Internal quotation marks omitted.) Johnson v.

Commissioner of Correction, 285 Conn. 556, 577, 941

A.2d 248 (2008).

I

The petitioner first argues that the second habeas

court erred by not concluding that Trainer’s performance was deficient for failing to properly brief the

issue of Gallucci’s alleged ineffectiveness for not moving a second time to sever the petitioner’s criminal trial

from Robertson’s. We do not find this argument persuasive.

The following additional facts are relevant to this

claim. In the present appeal, the petitioner points to

two instances in his criminal trial that are offered to

show that he and Robertson pursued antagonistic

defenses necessitating severance. The first instance is

the cross-examination of Caban by Robertson’s defense

counsel, Hopkins, which transpired as follows:

‘‘[Attorney Hopkins]: Miss Caban, you indicated that

at some point shortly after the shooting you had an

opportunity to speak to Mr. Bush, correct?

‘‘[The Witness]: Yes.

‘‘[Attorney Hopkins]: Dion Bush. And he told you at
that time that [Robertson], although he may have been

present, fired one shot and he, as you say, punked out.

Did he tell you that he fired that shot into the air? . . .

‘‘[The Witness]: He—he—excuse me. He said he

wasn’t trying to shoot him.

‘‘[Attorney Hopkins]:Right. He shot—he wasn’ttrying

to shoot him and that he himself, Mr. Bush, in fact,

emptied his . . . weapon into the victim, Norman

Jones, correct? He admitted to you that he killed him?

‘‘[The Witness]: Yeah.

‘‘[Attorney Hopkins]: All right. Now, I think you indicated that somebody at some point in time came to

your apartment to retrieve what you were told was the

murder weapon; is that right?

‘‘[The Witness]: Yeah. . . .

‘‘[Attorney Hopkins]: Let me ask you this: Mr.

Robertson was not there at that time; isn’t that a fact?

‘‘[The Witness]: No, I don’t think he was.

‘‘[Attorney Hopkins]: Okay. And, in fact, you had

named four individuals who were present when you

claimed that that weapon was removed; is that right?

Do you recall that—that Dion Bush was present? Do

you recall telling that to the police in 1996 when you

gave that written statement?

‘‘[The Witness]: I recall.’’ The witness continued to

identify those present when the gun was removed, none

of whom was Robertson.

The petitioner also points to Hopkins’ closing argument, in which he argued, in part: ‘‘Any inference that

one might draw, that I don’t think came out from the

testimony, regarding those facts, which bullet killed

[the victim], the [prosecution] asks you to disregard

that. It doesn’t make any difference. All the testimony

that they put on, it is clear, even if you were to believe

it, that clearly the bullet that killed [the victim] had to

come from Dion Bush, both Maria Caban and [Johnson],

from what he says about the circumstances, assuming

he was there, and assuming you could believe him, both

say through some means the only thing they either

heard or observed, in the case of Mr. Johnson, is Mr.

Robertson firing one shot into the air, not attempting

to hit the person who was the target . . . . Which bullet killed [the victim], as if it has no relevance whatsoever, it has a lot of relevance.’’ According to the

petitioner, this closing argument amounted to ‘‘[e]ssentially . . . prosecuting the petitioner.’’

In regard to the severance issue, the second habeas

court concluded: ‘‘The credible evidence presented in

the prior habeas [trial] established that both the petitioner and Robertson pursued defenses of denial that

they committed the offenses and, therefore, were not

presenting antagonistic defenses. There was no evi-
dence that the petitioner could have strengthened his

own case or arguments in support of severance. [The

first habeas court] relied on the Supreme Court’s decision in State v. Robertson, [254 Conn. 739, 760 A.2d 82

(2000)] . . . which addressed a preserved claim about

severance, contrary to the petitioner’s unpreserved

claim on direct appeal, to conclude that the petitioner’s

and Robertson’s defenses were not antagonistic.9 That

is, there was no basis that necessitated severance of

the codefendants’ trials. [The first habeas court] also

concluded that Attorney Gallucci, who testified about

his tactical reasons for not seeking severance after the

trial court had denied Robertson’s motion for severance, utilized sound tactical judgment by not again

requesting severance. . . . [T]he petitioner has failed

to show both deficient performance and the necessary

prejudice.’’ (Footnotes altered.)

The petitioner’s claim is not that Trainer failed to

raise the severance issue on appeal, but rather that

her appellate brief did not persuasively or sufficiently

articulate the severance claim. More precisely, the petitioner claims that the second habeas court erred in

concluding that Trainer was not ineffective because she

‘‘failed to specifically document that (1) [Gallucci] had

no tactical reason for failing to preserve the severance

issue; (2) [the first habeas court’s] finding that [our

Supreme Court’s] opinion in State v. Robertson, supra,

[254 Conn. 739] is dispositive of the petitioner’s severance issue is in error; [and] (3) [the first habeas court’s]

determination that the codefendants did not have antagonistic defenses is not supported by the record.’’10

We conclude that Trainer adequately raised these

issues in her appellate brief. On appeal from the denial

of the petition for certification to appeal the denial of

the first habeas petition, Trainer argued that the first

habeas court’s finding that Gallucci chose not move for

severance on the basis of trial tactics was error.11

Trainer also objected to the first habeas court’s reliance

on State v. Robertson, supra, 254 Conn. 739,12 and noted

the allegedly antagonistic defenses of the petitioner

and Robertson.13

Moreover, the petitioner has not persuaded us that

the manner in which Trainer briefed the severance

claim prejudiced him because he has not shown that

Gallucci’s performance was deficient or that his decision not to move for severance prejudiced the petitioner. In his testimony before the habeas courts,

Gallucci advanced several tactical reasons why he

chose not to move for severance, namely, that: (1) in

his experience, joint criminal trials have the benefit of

tending to sow reasonable doubt among jurors as to all

defendants where the evidence suggests that only one

defendant—but it is unclear which one—committed the

act; (2) he did not want to draw the ire of the judge

and jury by moving to sever on the heels of one such
motion by Robertson; and (3) he believed that severance would better enable the prosecution to strike a

deal with Robertson in which he would testify against

the petitioner in exchange for a lesser sentence.

‘‘[I]t is all too easy for a court . . . to conclude that

a particular act or omission of counsel was unreasonable . . . [and that] [a] fair assessment of attorney performance requires that every effort be made to eliminate

the distorting effects of hindsight . . . .’’ (Internal quotation marks omitted.) Johnson v. Commissioner of

Correction, supra, 285 Conn. 577. As did the first habeas

court, the second habeas court found that Gallucci had

strong strategic reasons not to move for severance,

and concluded that both the petitioner and Robertson

pursued nonantagonistic defenses of denial during the

criminal trial. Under a plenary standard of review, we

conclude that the petitioner has not demonstrated error

in the second habeas court’s determination that Gallucci’s strategic reasons for not moving to sever the

trials were sound.

We also agree with the second habeas court’s determination that the petitioner and Robertson did not pursue antagonistic defenses. Antagonistic defenses

necessitating severance occur ‘‘[w]hen . . . the jury

can reasonably accept the core of the defense offered

by either defendant only if it rejects the core of the

defense offered by his codefendant . . . . To compel

severance the defenses must be antagonistic to the

point of being irreconcilable and mutually exclusive.

. . . Such compelling prejudice does not arise where

the conflict concerns only minor or peripheral matters

which are not at the core of the defense.’’ (Citation

omitted; internal quotation marks omitted.) State v.

Booth, 250 Conn. 611, 621, 737 A.2d 404 (1999), cert.

denied, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471

(2000). ‘‘[W]e willreverse a trial court’s ruling on joinder

only where the trial court commits an abuse of discretion that results in manifest prejudice to one or more

of the defendants.’’ (Internal quotation marks omitted.)

Id., 620. The second habeas courtlooked favorably upon

the findings of the first habeas court and adopted its

reasoning. The first habeas court concluded that the

petitioner’s and Robertson’s defenses were not antagonistic because they were not defenses of such a nature

that in order for the jury to accept the defense of one

defendant, it would have had to reject the defense of

the other.It noted that the credible evidence established

that both the petitioner and Robertson pursued

defenses of denial and that both sought to attack the

credibility of the state’s witnesses, but did not succeed.

It further concluded that there was no basis for severance, and that even if Gallucci had renewed a motion

for severance, it would have been denied. We observe

that, before the jury could have begun to consider and

determine which of the two defendants may have fired

the fatal shot, it first would have had to reject their
mutual, nonantagonistic defenses that they were not

present.

Nor can we conclude that, had the petitioner succeeded in severing the trials, there was ‘‘a reasonable

probability that the outcome of the proceedings would

have been different . . . .’’ Johnson v. Commissioner

of Correction, supra, 285 Conn. 575. The petitioner has

not identified any key piece of evidence that would

have been excluded from his trial had the two trials

been severed.14 In particular, the state still would have

been able to present the testimony of Caban and Johnson, and Johnson’s statement to the police, all of which

implicated the petitioner as the person who shot the

victim, as well as portions of ‘‘three tape-recorded telephone conversations between the [petitioner] and

unidentified third parties . . . indicat[ing] that [he]

had been involved in plans to threaten Johnson and

Caban in an attempt to influence their testimony.’’ State

v. Bush, supra, 249 Conn. 429.

As the second habeas court noted, ‘‘the Appellate

Court’s [prior] review . . . to determine whether the

prior habeas court abused its discretion entailed review

of this claim, the facts presented in support thereof, as

well as the [first] habeas court’s legal conclusions.’’15

The second habeas court further found, and we agree,

that ‘‘[Trainer’s] testimony [in the second habeas trial]

did not provide any evidence helpful to the petitioner.’’

We therefore agree with the second habeas court that

the petitioner has neither shown that Trainer was deficient for failing to properly brief these issues, nor that

the petitioner was prejudiced by Trainer’s allegedly deficient performance with regard to the severance issue.

Accordingly, as to the severance issue, the petitioner

has not ‘‘demonstrate[d] that the [resolution of the

underlying claim involves issues that] are debatable

among jurists of reason; that a court could resolve the

issues [in a different manner]; or that the questions are

adequate to deserve encouragement to proceed further.’’ (Internal quotation marks omitted.) Griffin v.

Commissioner of Correction, supra, 119 Conn. App.

242. Thus, as to this issue, we reject the petitioner’s

claim that the second habeas court abused its discretion

in denying the petition for certification to appeal.

II

The petitioner also claims that Trainer did not provide

effective assistance of counsel because she failed to

adequately brief the issue of an alleged conflict of interest by Gallucci resulting from his representation of

another client that rendered his representation of the

petitioner ineffective. We do not agree.

The following additional facts, as set forth by the

second habeas court, are relevant to this claim. ‘‘This

alleged conflict of interest, according to the petitioner,

arose from [Gallucci] representing the petitioner and
also representing another defendant, one Jamar

McKnight . . . . The petitioner’s posttrial brief argues

that he wants to ‘alert the court of a more larger conflict

issue. During the testimony, the petitioner testified that

he was upset that [Gallucci] represented him at the

same time [Gallucci] represented . . . McKnight.

McKnight was a case that was up on appeal at the

time [Gallucci] represented [the petitioner]. The only

relevance to this case is that the gun used by McKnight

[in the crime that he had been convicted of] was also

the same gun used here to killthe victim ofthis shooting.

From a review of the whole record, it is clear that

although the prosecutor [who prosecuted the petitioner

also] prosecuted [McKnight], and although . . . [Gallucci] also represented [the petitioner], neither counsel

brought this fact to the attention of [the criminal trial

court]. The petitioner believes that this was a reason

that [Gallucci] never pursued a third-party culpability

defense, namely, that [the petitioner] did not do this

crime, but McKnight did. This is relevant because the

[first habeas court] put that responsibility of bringing

the conflict issue up to the trial court on the [petitioner],

who was a juvenile when arrested, and in his early

twenties when he went to trial. Neither attorney who

tried this case brought this fact to the attention of the

court, or [the criminal trial judge], so [the petitioner]

could be asked whether he would waive any potential

or actual conflict.’ ’’

In addressing this claim, we apply the following standard of review pertaining to ineffective assistance of

counsel claims based on an actual conflict of interest:

‘‘The sixth amendment to the United States constitution

as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to

effective assistance of counsel. . . . As an adjunct to

this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest.

. . . Thus, [t]he underlying right to conflict free representation is effective assistance of counsel. . . .

‘‘In a case of a claimed conflict of interest . . . in

order to establish a violation of [his constitutional

rights] the [petitioner] has a two-pronged task. He must

establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest

adversely affected his lawyer’s performance. . . .

Unlike other claims of ineffective assistance of counsel,

where a petitioner claims that his counsel’s performance was deficient because of an actual conflict of

interest, prejudice does not need to be established. . . .

Instead, [w]here there is an actual conflict of interest,

prejudice is presumed because counsel[has] breach[ed]

the duty of loyalty, perhaps the most basic of counsel’s

duties.’’ (Citations omitted; internal quotation marks

omitted.) Hedge v. Commissioner of Correction, 152

Conn. App. 44, 50–51, 97 A.3d 45 (2014), cert. denied,
321 Conn. 921, 138 A.3d 282 (2016).

The second habeas court observed that ‘‘[t]he evidence presented . . . encompasses [Wicker’s] testimony about his investigation of [the first] habeas claims

and which claims to pursue when he amended the petition. Senior Assistant State’s Attorney [Cornelius] Kelly

testified that he prosecuted McKnight and the petitioner, and was unaware of any connection between

the cases. Both Wicker and Kelly recalled testimony by

a firearms expert that the shells from the McKnight

shooting were of a similar type compared to those from

the Bush/Robertson shooting. [Gallucci] testified that

he represented McKnight at trial and on appeal. Gallucci

did not see any conflict of interest that arose during

the course of his representation because he represented

McKnight first and completed the direct appeal prior

to representing the petitioner.’’

The second habeas court concluded that ‘‘the petitioner has failed to show that there was a conflict of

interest that precluded [Gallucci] from representing the

petitioner. There is no evidence that there was any

linkage between the McKnight case and the petitioner’s

case, nor is there any evidence showing that the shells

were fired from the same weapon.16 While the petitioner’s allegations of ineffective assistance have now

broadened to include habeas appellate counsel, the evidence is no greater than that presented to the first

habeas court. . . . [T]he Appellate Court’s review of

this claim to determine whether the prior habeas court

abused its discretion entailed review of this claim, the

facts presented in support thereof, as well as the habeas

court’s legal conclusions.17 Accordingly, this basis of

ineffective assistance by [Trainer] also mustfail.’’(Footnotes added.)

On appeal, the petitioner argues that Trainer failed

to adequately brief the claim that Gallucci ‘‘could not

have investigated McKnight because to do so would

have violated his duty under the Rules of Professional

Conduct, Rule 1.7.’’ Due to this purported inability to

conduct an investigation, the petitioner claims, Gallucci

failed to provide effective representation.

Although it is not clear to us how rule 1.7 of the Rules

of Professional Conduct18 prohibits an investigation of

the type described by the petitioner, we conclude nonetheless that the issue of whether Gallucci labored under

a conflict of interest is not ‘‘debatable among jurists of

reason . . . .’’ (Internal quotation marks omitted.)

Griffin v. Commissioner of Correction, supra, 119

Conn. App. 242. The second habeas court found credible

Gallucci’s testimony that McKnight had no involvement

in the shooting for which the petitioner and Robertson

were prosecuted and that he saw no link between the

two cases aside from the petitioner knowing McKnight,

and would have sought removal from the petitioner’s

case had he observed any link. Gallucci further indi-
cated that the petitioner did not advise him that

McKnight was or could have been the shooter. Our

review of the record reveals nothing to disturb these

findings.19 We must therefore conclude that Gallucci

did not ‘‘actively [represent] conflicting interests

. . . .’’ (Internal quotation marks omitted.) Hedge v.

Commissioner of Correction, supra, 152 Conn. App.

51. In other words, the petitioner cannot prevail on this

claim because he has not progressed beyond a ‘‘mere

theoretical division of loyalties’’; (internal quotation

marks omitted) Santiago v. Commissioner of Correction, 87 Conn. App. 568, 589, 867 A.2d 70, cert. denied,

273 Conn. 930, 873 A.2d 997 (2005); and has failed to

point to specific instances in the record that suggest

compromise of his interests for the benefit of

McKnight.20 Although it was established that the same

gun was used in both crimes, the record fails to support

the existence of an actual conflict of interest because

no other evidence suggests a connection between the

two crimes. Even if Gallucci had explored the possibility that McKnight was somehow involved in the shooting for which the petitioner was on trial, nothing in the

record supports the theory that further investigation

would have disclosed information supporting such conjecture.21

Finally, we note that Trainer’s appellate brief squarely

and extensively addressed the conflict of interest

issue.22

Accordingly, with respect to this claim, the petitioner

has not ‘‘demonstrate[d] that the [resolution of the

underlying claim involves issues that] are debatable

among jurists of reason; that a court could resolve the

issues [in a different manner]; or that the questions are

adequate to deserve encouragement to proceed further.’’ (Internal quotation marks omitted.) Griffin v.

Commissioner of Correction, supra, 119 Conn. App.

242. We therefore conclude that the habeas court did

not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

1 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.’’

2

‘‘A joint trial expedites the administration of justice, reduces the congestion oftrial dockets, conserves judicial time, lessens the burden upon citizens

who must sacrifice both time and money to serve upon juries, and avoids

the necessity of recalling witnesses who would otherwise be called to testify

only once. . . . [W]here proof of the charges against the defendants is

dependent upon the same evidence and alleged acts . . . severance should

not be granted except for the most cogent reasons.’’ (Citation omitted;

internal quotation marks omitted.) State v. Robertson, 254 Conn. 739, 765,
760 A.2d 82 (2000).

3

‘‘Robertson also moved for severance on the ground that certain statements made by the [petitioner] concerning the shooting were admissible

only against the [petitioner] and would cause him substantial prejudice.

The trial court, however, determined that such statements were admissible

against both the [petitioner] and Robertson, and therefore, concluded that

Robertson was not entitled to severance on that ground.’’ (Emphasis omitted.) State v. Bush, supra, 249 Conn. 426 n.4.

4

‘‘On several occasions during the trial, Robertson renewed his motion

for severance on the ground that certain additional statements made by the

[petitioner] were not admissible against him and caused him undue prejudice. The trial court determined that, although those additional statements

were not admissible against Robertson, they were not unduly prejudicial,

and therefore, Robertson was not entitled to severance on that ground.’’

(Emphasis omitted.) State v. Bush, supra, 249 Conn. 427 n.5.

5 There also was testimony by Johnson, who had witnessed the shooting

and, approximately one year later, gave a statement to the police. In his

statement, which was admitted at the criminal trial as an exhibit under State

v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct.

597, 93 L. Ed. 2d 598 (1986), he indicated that he knew the petitioner and

knew Robertson by his street name, ‘‘Dulla,’’ and that he saw Robertson

fire one shot into the air and the petitioner fire the rest of the shots, killing

the victim. During the criminal trial, however, he testified that everything

in his statement to the police with respect to Robertson and the petitioner

had been a lie and that the shooters, who both held their guns straight out

and fired at the victim, had masks on, and that he did not recognize them.

He also indicated that he could not tell how many shots each of the shooters

had fired. During closing arguments, the primary focus of Hopkins’ references to Johnson was that neither Johnson’s testimony nor his statement

was reliable, that he probably was not even at the scene at the time of the

shooting, and that he had fabricated it all in order to obtain favorable

treatment from the prosecution in his own criminal cases. The petitioner

cites to only one brief portion of Hopkins’ closing argument that references

Johnson’s statement that Robertson shot into the air in support of the

petitioner’s claim that his and Robertson’s defenses were antagonistic. The

petitioner fails to mention that Johnson’s inconsistent statements were

exploited significantly by Hopkins and Gallucci to buttress the petitioner’s

and Robertson’s defenses that they were not present at the time of the

shooting.

6 The record of the criminal trial does not reveal whether the jury found

the petitioner guilty of murder as a principal or an accessory, or whether

it found Robertson guilty of murder as a principal or an accessory. There

was some evidence, however, through the testimony of Johnson, that both

the petitioner and Robertson fired shots in the direction of the victim, and

the court instructed the jury that ‘‘[a] defendant would be guilty of murder

if the injury is caused by the shooting of the victim, even though it was not

the defendant’s gunshot but that of another with whom he is acting in

concert that caused the death of [the victim]. It is of no consequence that

the evidence may not clearly establish that the death of [the victim] was

caused by [the petitioner] or [Robertson], or an accomplice, one to the other

. . . . If you are not satisfied beyond a reasonable doubt that [the petitioner]

personally . . . participated in the murder, you must consider whether he

intentionally aided or abetted some other person in the commission of

the murder in question. The same applies to [Robertson].’’ Ultimately, our

Supreme Court, on the basis of its review of the facts presented to the jury,

determined that the petitioner was convicted of murder; see State v. Bush,

supra, 249 Conn. 424; and Robertson was convicted of murder as an accessory. See State v. Robertson, 254 Conn. 739, 740, 760 A.2d 82 (2000).

7 The operative petition in the first habeas trial was the petitioner’s

amended petition, dated October 7, 2003.

8 The claim against Gallucci was limited to his capacity as trial counsel.

The respondent filed a special defense that the third count of the petition,

alleging ineffective assistance by Gallucci, should be barred as a successive

petition. In its memorandum of decision, the second habeas court ruled that

all but one claim in the third count had been abandoned, and that the

remaining claim constituted a successive petition.

9 Our Supreme Court, in concluding that the trial court properly denied

Robertson’s motion for severance, ‘‘decline[d] to hold that a separate trial

is necessary whenever any potentially incriminating evidence against one

codefendant is introduced during a joint trial.’’ (Internal quotation marks
omitted.) State v. Robertson, supra, 254 Conn. 768. In doing so, it considered

the trial court’s numerous instructions to the jury to consider the cases

against the petitioner and Robertson independently, as well as Robertson’s

failure to prove that he suffered substantial injustice as a result of the joint

trial. Id.

10 The petitioner also argues that Gallucci performed deficiently in not

moving to sever the trials because the joint trial resulted in the admittance

of evidence of a tattoo on Robertson’s arm displaying the words ‘‘Bush

Mob’’ and a picture of a fist holding a gun. This ‘‘highly prejudicial’’ evidence

would not have been admitted, the petitioner argues, had he and Robertson

been tried separately. Although, in separate counts in his amended petition

in the second habeas trial, the petitioner did fault Wicker and Gallucci for,

respectively, failing to properly brief the issue and for not objecting to the

introduction of such evidence—claims that were later abandoned in the

petitioner’s posttrial brief—the petitioner did not raise a similar claim in

his petition with respect to Trainer, whose performance as prior appellate

counsel is the sole issue in this appeal. We also note that, although the issue

of the tattoo was discussed in testimony during the second habeas trial, the

second habeas court did not address the issue in its memorandum of decision. Therefore, as the petitioner did not raise this distinct claim in his

petition, nor was it addressed by the second habeas court, we decline to

review it. See Henderson v. Commissioner of Correction, 129 Conn. App.

188, 197–98, 19 A.3d 705 (‘‘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.’’ [Citation omitted;

internal quotation marks omitted.]), cert. denied, 303 Conn. 901, 31 A.3d

1177 (2011); see also Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn.

210, 232, 828 A.2d 64 (2003) (‘‘It is well established that [i]t is the appellant’s

burden to provide an adequate record for review. . . . It is, therefore, the

responsibility of the appellant to move for an articulation or rectification

of the record where the trial court has failed to state the basis of a decision

. . . to clarify the legal basis of a ruling . . . or to ask the trial judge to

rule on an overlooked matter. . . . In the absence of any such attempts,

we decline to review this issue.’’ [Internal quotation marks omitted.]).

11 Trainer argued in her appellate brief that‘‘the [first habeas] court accepts

[Gallucci’s] explanation that his failure to move for severance was strictly

strategy. . . . However, as the petitioner points out in his testimony, certain

[in]culpatory evidence was admitted at trial, which wouldn’t have come in,

had it not been for [Robertson]. . . . As such, there was ample reason to

move for severance. Most importantly, such a motion would have preserved

the issue for appeal. [Gallucci] explains his actions by stating that the court

and the jurors were impatient with cocounsel’s severance requests. One

offer of motion would have preserved the issue. . . . There was probably

very little chance that a motion by the petitioner for severance would have

been granted. The habeas court consistently denied [Robertson’s] motions

for severance. Petitioner’s counsel only had to request once to preserve the

issue. It is unreasonable to think that one motion would have caused such

a problem with the court and the jury. By his failure to move, [Gallucci]

has severely prejudiced the petitioner’s future appellate success.’’ (Citations omitted.)

12 Trainer argued that ‘‘[t]he court states that, even if [Gallucci’s] actions

amounted to ineffective assistance, his actions did not cause prejudice to

the petitioner’s case and therefore did not satisfy the second prong of

Strickland. . . . In support of this conclusion, the court points to the appeal

taken by [Robertson] in which the issue of severance was raised and denied

by [our Supreme] Court. . . . The court assumes that an appeal by the

petitioner would also fail. . . . Petitioner’s attorney, Attorney Wicker, correctly responds that the court cannot support that analogy because the

petitioner’s appeal probably would have been far strongerthan [Robertson’s]

and potentially raise[d] totally different issues. . . . However, the court

adopts [Gallucci’s] reasoning that his actions were tactical and dismisses

the petitioner’s claim.’’ (Citations omitted.)

13 Trainer argued that ‘‘[Robertson’s] attorney raised questions that harmed

the petitioner in an effort to assist [Robertson].’’

14 To be sure, the petitioner argues that the evidence of Robertson’s ‘‘Bush

Mob’’ tattoo; see footnote 10 of this opinion; would not have been admitted

against the petitioner had the trials been severed, and that such evidence

was prejudicial to him. However, for the reasons set forth in footnote 10

of this opinion, we decline to review the merits of this claim. We do note,

though, that according to Gallucci’s testimony in the second habeas trial,
the tattoo was far from the only evidence suggesting that the petitioner was

a member of a gang. Gallucci testified: ‘‘[T]here had been so many references,

even in the questions that were objected to, to Bush Mob, Bush Gang, Bush

Gang, Bush Mob, that at some point everybody was going to be aware of

the fact . . . .’’

15 In this court’s per curiam decision dismissing the prior habeas appeal,

it stated: ‘‘In dismissing the habeas petition, the [first habeas] court determined that the petitioner had failed to prove that there was any conflict of

interest. The [first habeas] court also found that the petitioner had failed

to establish that his counsel was deficient or that the petitioner was consequently prejudiced, in failing to renew the motion for severance of the

petitioner’s case from that of the [Robertson] because, in the absence of

antagonistic defenses between the defendants, there was no basis for a

severance. . . . After a careful review of the record and briefs, we conclude

that the petitioner has not demonstrated that the issues he raises are debatable among jurists of reason, that a court could resolve the issues in a

different manner or that the questions raised deserve encouragement to

proceed further.’’ (Citations omitted.) Bush v. Commissioner of Correction,

supra, 92 Conn. App. 539–40. One of the major problems with the petitioner’s

claims is that this court has already rejected the claim that severance was

warranted orthat Gallucci had a conflict of interest. The petitioner seemingly

argues that, in reviewing the first habeas appeal, this court presumably

relied on only whatever arguments were set forth in Trainer’s brief. The

petitioner fails to acknowledge that, in resolving the severance and conflict

of interest claims presented, the reviewing court would also consider the

entire record, including the decision of the first habeas court and the arguments set forth in the state’s brief. See Alterisi v. Commissioner of Correction, supra, 145 Conn. App. 223 (plenary review of whether facts found

amounted to ineffective assistance of counsel).

16 There actually was uncontroverted evidence presented atthe petitioner’s

criminal trial that the same gun was used in both the murder for which

McKnight was charged and the subsequent murder for which the petitioner

and Robertson were charged. During-cross examination, Hopkins elicited

the testimony of James Stephenson, a criminalist firearms and tool mark

examiner employed by the Connecticut State Police, who testified that he

had compared eight cartridge casings relating to McKnight’s case with eight

of the nine cartridge casings in evidence in the petitioner’s case, and had

determined that all sixteen cartridges had been fired from the same gun.

Although it does not affect our resolution of this claim, we nonetheless

conclude that the second habeas court’s factual finding that there was no

evidence that the same gun had been used in both murders is clearly

erroneous.

17 See footnote 15 of this opinion.

18 Rule 1.7 of the Rules of Professional Conduct provides:

‘‘(a) Except as provided in subsection (b), a lawyer shall not represent

a client if the representation involves a concurrent conflict of interest. A

concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another

client; or

(2) there is a significant risk that the representation of one or more clients

will be materially limited by the lawyer’s responsibilities to another client,

a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest

under subsection (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide

competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one

client against another client represented by the lawyer in the same litigation

or the same proceeding before any tribunal; and

(4) each affected client gives informed consent, confirmed in writing.’’

19 At most, the record reflects a potential connection between the cases,

as detailed herein, but such potential is not a sufficient basis for disturbing

the second habeas court’s ruling. In addition to the testimony of Stephenson

contained in the transcript of the criminal trial, which was a full exhibit in

the second habeas trial; see footnote 16 of this opinion; Wicker, in his

testimony to the second habeas court, stated that it was his recollection

that the same weapon was used in both the McKnight case and the petitioner’s case, but that ‘‘[t]he weapon was the only issue [he] recall[ed] of commonality . . . .’’ Gallucci testified in the second habeas trial that he
‘‘remember[ed] there was a ballistics report that . . . purportedly linked

the weapon to the shooting [involving McKnight] . . . but I don’t remember

as I’m sitting here if it actually was testified to because it was a lot of offthe-record stuff . . . .’’ Gallucci further stated that ‘‘I don’t take everything

[firearms examiners] say for gospel . . . but even assuming it was the same

gun and that was correct, I didn’t see the link because [McKnight] had

nothing to do with our case.’’

20 We note that pursuing a third-party culpability defense based on only

the commonality of the gun used in fact may have been to the detriment

of the petitioner because, as Gallucci explained in the second habeas trial,

it could have served to connect the petitioner to a ‘‘stash house’’ through

which guns were shared, or even to the crime of which McKnight was convicted.

21 ‘‘[I]n explaining the requirement that the proffered evidence [in support

of a third-party culpability defense] establish a direct connection to a third

party, rather than raise merely a bare suspicion regarding a third party, we

have stated: Such evidence is relevant, exculpatory evidence, rather than

merely tenuous evidence of third party culpability [introduced by a defendant] in an attempt to divert from himself the evidence of guilt. . . . In

other words, evidence that establishes a direct connection between a third

party and the charged offense is relevant to the central question before the

jury, namely, whether a reasonable doubt exists as to whether the defendant

committed the offense. Evidence that would raise only a bare suspicion

that a third party, rather than the defendant, committed the charged offense

would not be relevant to the jury’s determination.’’(Citation omitted; internal

quotation marks omitted.) State v. Arroyo, 284 Conn. 597, 609–10, 935 A.2d

975 (2007).

22 In her appellate brief, Trainer claimed that evidence introduced at the

criminal trial showed that the same gun was used in both murders and that,

because of his impaired loyalty, Gallucci was unable to introduce evidence

that McKnight was already convicted for a murder in which the same gun

was used. Trainer also argued that ‘‘[j]oint representation of conflicting

interests is suspect because of what it tends to prevent the attorney from

doing. . . . For example, in the current [case], the conflict of interest clearly

could have precluded [Gallucci] from exploring alternative defenses or from

seeking consideration from the state for his client. . . . Because the petitioner has shown that his attorney had an actual conflict of interest, which

adversely affected his representation, the court should reverse the judgment

of the habeas court . . . .’’ (Citation omitted.)