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*********************************************** 
DAVID WEAVING v. COMMISSIONER

OF CORRECTION

(AC 39566)

Keller, Elgo and Flynn, Js.

Syllabus

The petitioner, who had been convicted of the crime of manslaughter in

the second degree in connection with a motor vehicle accident in which

the petitioner’s vehicle struck and killed a child, filed a second petition

for a writ of habeas corpus, claiming that his criminal trial counsel

and his first habeas counsel had rendered ineffective assistance. The

petitioner claimed that his trial counsel was ineffective in failing to

present the testimony of an accident reconstruction expert and that his

prior habeas counsel was ineffective in failing to advance that claim in

the first habeas action. The habeas court rendered judgment denying

the petition and, thereafter, denied the petition for certification to appeal,

and the petitioner appealed to this court. Held that the habeas court

did not abuse its discretion in denying the petition for certification to

appeal; that court properly determined that the petitioner’s criminal trial

counsel was not deficient in failing to present unfavorable testimony

from an accident reconstruction expert, as trial counsel made a reasonable, tactical decision to pursue an alternate theory of defense, and her

representation of the petitioner resulted in an acquittal on the most

serious charge against him, and because the petitioner’s claim against

his trial counsel failed, his claim of ineffective assistance on the part

of his prior habeas counsel also failed.

Argued October 4—officially released December 12, 2017

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

Tolland and tried to the court, Sferrazza, J.; judgment

denying the petition; thereafter, the court denied the

petition for certification to appeal, and the petitioner

appealed to this court. Appeal dismissed.

Samuel Allan Greenberg, assigned counsel, for the

appellant (petitioner).

Laurie N. Feldman, special deputy assistant state’s

attorney, with whom, on the brief, were Maureen Platt,

state’s attorney, and Marc G. Ramia, senior assistant

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

ELGO, J. The petitioner, David Weaving, appeals following the denial of his petition for certification to

appeal from the judgment of the habeas court denying

his petition for a writ of habeas corpus. The petitioner

contends that the habeas court abused its discretion

by denying his petition for certification to appeal and

by rejecting his claims that counsel at both his criminal

trial and his first habeas proceeding rendered ineffective assistance. Having thoroughly reviewed the record,

we conclude that the habeas court properly denied the

petition for certification to appeal and, thus, dismiss

the appeal.

The facts underlying the petitioner’s criminal conviction are set forth in this court’s decision on his direct

appeal. ‘‘Shortly before 7 p.m. on April 27, 2007, the

[petitioner] was driving his motor vehicle south on

Route 69 in Prospect. In Prospect, Route 69 is a residential, two lane road, with one northbound and one southbound lane of travel. Although it was a foggy evening

and the road surface was damp, the [petitioner] was

traveling at approximately 80 miles per hour, well in

excess of the posted speed limit of 45 miles per hour.

As he crested a small hill near Radio Tower Road, the

[petitioner] came upon another car traveling in his lane

at or below the posted speed limit. Approaching a permitted passing zone, the [petitioner] accelerated and

began to cross over into the northbound lane in order

to pass the slower moving vehicle. Just as he was doing

so, the [petitioner] noticed a young boy standing on the

pedals of a bicycle near the center of the northbound

lane. The boy was dressed in dark clothing, the bicycle

he was riding was black and there was no headlamp

on the bicycle. The [petitioner] immediately applied his

brakes and attempted to steer back into the southbound

lane in an effort to avoid hitting the boy. The [petitioner’s] speed, however, coupled with the conditions of

the roadway, made avoiding the boy impossible. The

[petitioner’s] vehicle collided with the bicycle, throwing

the boy onto the hood and windshield and tossing debris

along the side of the road. Despite the efforts of emergency medical personnel and physicians, the boy died

from his injuries. The [petitioner] subsequently was

arrested and charged with manslaughter in the first

degree in violation of General Statutes § 53a-55 (a) (3)

and manslaughter in the second degree in violation of

[General Statutes] § 53a-56 (a) (1).’’ State v. Weaving,

125 Conn. App. 41, 43–44, 6 A.3d 203 (2010), cert. denied,

299 Conn. 929, 12 A.3d 569 (2011).

At the petitioner’s criminal trial, ‘‘a central tenet of

the defense was that the [petitioner] was traveling at

or near the posted speed limit of 45 miles per hour

as he entered the northbound lane to pass the slower

moving vehicle in front of him. Both parties presented

expert testimony as to the [petitioner’s] speed moments
before the collision, focusing particularly on the time

when the [petitioner] first applied his brakes. The state’s

expert, a specialist in accident reconstruction, testified

that, according to his forensic and mathematical analyses, the [petitioner] ‘was traveling at a minimal speed

of 83 miles per hour.’ This determination was based

primarily on the length of skid marks caused by the

[petitioner’s] sudden braking, which measured over 360

feet, but also took account of the condition of the roadway at the time of the accident. The defense offered the

expert testimony of a behavioral psychologist trained in

principles of human reaction and response time. During

recross-examination, the defense expert conceded that

the length of the skid marks was consistent with a

finding that the [petitioner] was traveling 83 miles per

hour at the moment when he began braking.’’ (Footnote

omitted.) Id., 44–45. At the conclusion of trial, the jury

found the petitioner not guilty of manslaughter in the

first degree and guilty of manslaughter in the second

degree. This court affirmed that judgment of conviction

on direct appeal. Id., 57.

On August 31, 2009, the petitioner commenced his

first habeas action, with Attorney Andrew J. Cates serving as habeas counsel. His operative petition for a writ

of habeas corpus advanced nineteen claims of ineffective assistance on the part of the petitioner’s criminal

trial counsel, Attorney Cheryl Heffernan. In particular,

the petitioner alleged that Heffernan was deficient in

failing to ‘‘properly vet the credentials’’ of both ‘‘the

human factors expert whose testimony she presented

at trial,’’ and ‘‘the accident reconstructionist retained

by her’’ to determine whether they were ‘‘truly qualified

to render opinions which contradicted and/or

impeached the testimony of the State’s accident reconstructionist . . . .’’ The petition also alleged that Heffernan ‘‘failed to instruct her accident reconstructionist

to undertake an independent investigation into the accident, the conditions of the petitioner’s motor vehicle,

and the like . . . .’’

A habeas trial followed, at which Heffernan testified.

She explained that she had prior experience with accident reconstruction cases and was familiar with the

techniques and methods utilized therein. Heffernan testified that, in handling such cases, she necessarily relies

on experts. As she put it, ‘‘I am a lawyer. . . . I’m not

an engineer. I’m not a reconstructionist. I have to rely

on my experts.’’ Prior to the petitioner’s criminal trial,

Heffernan obtained authorization from the state to procure experts on his behalf. She testified that she initially

sought the assistance of Richard Hermance, an accident

reconstruction expert, due to his solid reputation, and

the fact that her law partner had utilized him ‘‘a number

of times [and] found him to present very well [with] a

tremendous amount of credibility and professionalism

and skill . . . .’’ After securing his services, Heffernan

furnished Hermance with copies of all the evidence
from the scene of the accident, including police reports,

photographs and statements.1

Heffernan testified that, after Hermance reviewed the

evidence, he notified her that he could not offer testimony to challenge the state’s calculations with respect

to the speed of the petitioner’s vehicle. Heffernan nevertheless ‘‘talked to him numerous times and tried to see

if [she] could work something out’’ to present his expert

testimony. Although those efforts were unsuccessful,

Hermance did suggest the retention of a human factors

expert as the ‘‘best way’’ to proceed with the petitioner’s

defense. Heffernan then contacted Patrick McGuire, a

human factors expert, who provided expert testimony

at the petitioner’s criminal trial that, irrespective of the

speed of the petitioner’s vehicle, the accident could not

have been avoided. Heffernan’s trial strategy was to

rely on that testimony to establish that ‘‘regardless of

the speed of [the] vehicle, that [the petitioner] could

not have avoided striking this child because the child

had been in the road improperly and it was a bad situation.’’ In so doing, Heffernan sought to negate the elements of extreme indifference to human life and

recklessness, which are essential to the charged

offenses under §§ 53a-55 (a) (3) and 53a-56 (a) (1),

respectively. As she testified, ‘‘[o]ur argument was that

the speed is not what caused the accident. It was the

circumstances that existed that were beyond [the petitioner’s] control. He could not have reacted in time

regardless of how fast he was going. . . . [T]hat’s

where the reaction time was relevant. So, [McGuire]

was there to testify that [if the petitioner had been]

driving at forty-five miles an hour, which . . . was the

speed limit on that road, that he still would have hit

this child.’’

In addition, Heffernan confirmed in her habeas testimony that she consulted with Hermance, her accident

reconstruction expert, in challenging the expert evidence offered by the state. She testified, and the record

confirms, that a Porter hearing2 was held at her behest

prior to the petitioner’s criminal trial, at which the opinions offered by the state’s accident reconstruction

expert were scrutinized. At the conclusion of that hearing, the trial court concluded that the methodology of

the state’s expert was valid.

In its memorandum of decision on the petitioner’s

first habeas action, the court determined, as to all nineteen allegations of ineffective assistance, that the petitioner had not established ‘‘that he was prejudiced in

any way.’’ The court also rejected the petitioner’s contention that Heffernan was deficient in failing to properly vet the credentials of McGuire and Hermance. The

court then addressed the petitioner’s claim that Heffernan failed to instruct Hermance to perform an independent investigation of the accident, stating in relevant

part: ‘‘[T]he court finds [that] [t]he petitioner has failed
to prove any prejudice because the testimony by counsel was that after she consulted with her expert about

the calculations and evidence and diagrams that she

presented, the expert indicated [that he] would not be

able to challenge the results of the state police. [Heffernan] also indicated that she and her investigator both

went out and rechecked the measurements . . . that

were provided by the . . . state police and the various

diagrams, and the court took that testimony reasonably

to indicate that since she raised no challenge, that she

and her investigator also must have come up with similar or the same calculations. . . . [T]he petitioner has

failed to present—and again, it’s their affirmative obligation to provide and present evidence here that, if that

evidence was presented, there would have been some

different or more favorable result; the petitioner has

failed to do that or to present that evidence, so either—

again, for the reason that the petitioner has failed to

present any evidence, the court finds the claim to be

abandoned and it is dismissed. The small amount of

evidence that was presented here all indicated that

counsel had consulted thoroughly with her expert witness and simply was not able to get the results that the

petitioner wanted, and the court finds that . . . there

was no showing of deficient performance in counsel’s

respect on that issue.’’ Weaving v. Warden, Superior

Court, judicial district of Tolland, Docket No. CV-09-

4003183-S, 2012 WL 6965414, *2 (October 2, 2012).

In addition, the court addressed certain claims

regarding Heffernan’s investigation of the accident

reconstruction prepared by the state. In concluding that

those claims were without merit, the court noted that

‘‘in all of these issues or questions regarding the troopers and their qualifications . . . [Heffernan] filed and

litigated an entire Porter hearing, and if that doesn’t

seek to call into question the qualifications and conclusions raised by the state’s expert witness, I don’t know

what does. I mean, that’s a claim by counsel that says

this is junk science or these people aren’t qualified to

testify to the conclusions they’re giving [and should not

be admitted into evidence]; she litigated that motion,

the court denied the motion. And so, going all the way

back to the Porter hearing, the court frankly finds that

it’s [unsure] what else the petitioner claims counsel

should have done; she sought to keep the testimony,

frankly, out of trial, and the court overruled that after

a lengthy hearing on the officer’s qualifications and the

conclusions he reached. And so, that’s an additional

basis why any and all of the claims related to counsel’s

failure to properly cross-examine or question the state’s

expert witnesses and the police officers, who testified

about accident reconstruction, have failed to be

proven.’’ Id., *4. Accordingly, the court denied the petition for a writ of habeas corpus. The petitioner did not

appeal from that judgment.

The petitioner commenced a second habeas action in
2013. His amended petition for a writ of habeas corpus

contained two counts of ineffective assistance. The first

alleged that Heffernan was deficient in failing to present

the testimony of an accident reconstruction expert at

his criminal trial. In the second count, the petitioner

alleged that Cates was deficient in failing to advance

that claim in the first habeas action. At the subsequent

habeas trial, the petitioner presented the testimony of

only one expert witness, Kent E. Boots, an accident

reconstructionist from California. On the basis of certain assumptions that he made regarding the petitioner’s

vehicle at the time of the accident, Boots opined that

its speed ‘‘at the area of impact was somewhat less

than the . . . conclusion that the state police . . .

came to.’’ Utilizing his own friction value, Boots estimated that the petitioner’s vehicle was ‘‘travelling

approximately forty-nine miles per hour at impact.’’

On cross-examination, Boots acknowledged, consistent with McGuire’s expert testimony at the petitioner’s

criminal trial, that the accident would have occurred

whether the vehicle was travelling forty-nine or eightythree miles per hour. Boots further noted that, at the

criminal trial, the petitioner had testified that he could

not see over or around the vehicle in front of him just

prior to the accident, and that he made the decision to

pass that vehicle without being able to see if there was

a hazard ahead. For that reason, Boots opined that,

irrespective of the speed of the petitioner’s vehicle, it

would have been impossible for the petitioner to perceive the boy in the road when he attempted to pass

in the opposite lane. On the basis of his training and

experience as both a law enforcement officer and an

accident reconstructionist, Boots also opined that it

was not safe for the petitioner to enter the opposite

lane in such circumstances.

By memorandum of decision filed July 25, 2016, the

habeas court rejected the petitioner’s claims. It stated:

‘‘[T]he dispositive flaw in the petitioner’s accusation of

legal incompetence by Attorney Heffernan is that she

did, in fact, consult with an experienced and wellregarded accident reconstructionist, [Hermance], a person whom her law firm had utilized in other cases.

Hermance reviewed the pertinent materials concerning

the fatal accident and concluded that the state’s expert

opinion as to the petitioner’s speed of about eighty-three

miles per hour was correct. Based on that unfavorable

conclusion, Attorney Heffernan chose to rely exclusively on the expert testimony of McGuire that the collision was inevitable even if the petitioner was traveling

at the speed limit; i.e., speed did not contribute to causing the fatality. The petitioner presented no criminal

defense expert who criticized Attorney Heffernan’s

decision. The court is unaware of any professional obligation of defense counsel to keep consulting with different experts until one can be found whose opinions

comport with those desired by the defense. . . . Attor-
ney Heffernan sought advice from an appropriate

source. She acted reasonably in relying on that advice,

especially because Hermance’s opinions matched those

of the state’s accident reconstructionist. Her approach

of utilizing, instead, the human factor specialist appears

to this court to have been professionally sound and

resourceful and even a bit ingenious. Certainly, this

tactic met or exceeded the skill possessed by ordinarily

competent defense lawyers. Consequently, the court

determines that the petitioner has failed to satisfy his

burden of proving, by a preponderance of the evidence,

that Attorney Heffernan’s representation’’ was deficient. In light of that determination, the court also

rejected the claim of ineffective assistance on the part

of Cates. The court therefore denied the petition for a

writ of habeas corpus. The petitioner then filed a petition for certification to appeal to this court, which the

habeas court denied, and this appeal followed.

At the outset, we note that ‘‘[t]he standard of review

and legal principles that govern our consideration of

the petitioner’s claims on appeal are well settled. The

use of a habeas petition to raise an ineffective assistance

of habeas counsel claim . . . was approved by our

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

613 A.2d 818 (1992). In Lozada, the court determined

that the statutory right to habeas counsel for indigent

petitioners provided in General Statutes § 51-296 (a)

includes an implied requirement that such counsel be

effective, and it held that the appropriate vehicle to

challenge the effectiveness of habeas counsel is through

a habeas petition. . . . [T]he court explained that [t]o

succeed in his bid for a writ of habeas corpus, the

petitioner must prove both (1) that his appointed habeas

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

was ineffective. . . . As to each of those inquiries, the

petitioner is required to satisfy the familiar two-pronged

test set forth in Strickland v. Washington, [466 U.S.

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

the [petitioner] must show that counsel’s performance

was deficient. . . . Second, the [petitioner] must show

that the deficient performance prejudiced the defense.

. . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a

breakdown in the adversary process that renders the

result unreliable. . . . In other words, a petitioner

claiming ineffective assistance of habeas counsel on

the basis of ineffective assistance of trial counsel must

essentially satisfy Strickland twice . . . .’’ (Emphasis

in original; internal quotation marks omitted.) Abreu

v. Commissioner of Correction, 172 Conn. App. 567,

574–75, 160 A.3d 1077, cert. denied, 326 Conn. 901, 162

A.3d 724 (2017). Our Supreme Court has characterized

that task as a ‘‘herculean’’ one. Lozada v. Warden,

supra, 843.

Having reviewed the record of the present appeal, we

can improve little on the habeas court’s well reasoned
analysis. As this court previously has observed, ‘‘[a] trial

attorney is entitled to rely reasonably on the opinion of

an expert witness . . . and is not required to continue

searching for a different expert.’’ (Citation omitted.)

Stephen S. v. Commissioner of Correction, 134 Conn.

App. 801, 816, 40 A.3d 796, cert. denied, 304 Conn. 932,

43 A.3d 660 (2012). Moreover, it is well established that

when a criminal defense attorney consults with ‘‘an

expert in a relevant field’’ who thereafter apprises counsel that he or she cannot provide favorable testimony,

counsel is ‘‘entitled to rely reasonably on [that] opinion

. . . and [is] not required to continue searching for a

different expert.’’ Id., 817; see also Brian S. v. Commissioner of Correction, 172 Conn. App. 535, 544, 160 A.3d

1110 (‘‘[t]he fact that the petitioner later was able to

present testimony at his habeas trial from . . . a different expert, perhaps more specialized than [the expert

originally consulted by his criminal trial counsel] . . .

did not establish that counsel’s performance was deficient for relying on [the original] expert opinion in preparation for the petitioner’s criminal trial’’), cert. denied,

326 Conn. 904, 163 A.3d 1204 (2017).

As the United States Supreme Court has explained in

the context of ineffective assistance of counsel claims,

‘‘[t]he selection of an expert witness is a paradigmatic

example of the type of ‘strategic choic[e]’ that, when

made ‘after thorough investigation of [the] law and

facts,’ is ‘virtually unchallengeable.’ ’’ Hinton v. Alabama, U.S. , 134 S. Ct. 1081, 1089, 188 L. Ed. 2d 1

(2014); accord Brian S. v. Commissioner of Correction,

supra, 172 Conn. App. 543–44 (rejecting claim of deficient performance when trial counsel consulted with

expert, made strategic decision not to present his testimony at trial or to seek another opinion, and ‘‘strategized that the best course of action’’ was alternate theory

of defense); Bharrat v. Commissioner of Correction,

167 Conn. App. 158, 170, 143 A.3d 1106 (rejecting claim

of deficient performance when trial counsel consulted

with expert but ultimately ‘‘made the reasonable, strategic decision not to call an expert witness at the underlying criminal trial’’), cert. denied, 323 Conn. 924, 149 A.3d

982 (2016); Stephen S. v. Commissioner of Correction,

supra, 134 Conn. App. 817 (emphasizing that ‘‘trial counsel is entitled to make strategic choices in preparation

for trial’’). The record in the present case indicates that,

after consulting with an expert in accident reconstruction and utilizing his expertise to challenge the state’s

expert testimony in a pretrial Porter hearing, Heffernan

made a reasonable, tactical decision to pursue an alternate theory of defense, rather than offering that expert’s

unfavorable testimony. The record also indicates that

Heffernan’s representation of the petitioner ultimately

resulted in an acquittal on the most serious charge

before the jury.

We conclude that the petitioner has failed to demonstrate that Heffernan rendered deficient performance
at his criminal trial. He has not established that Heffernan’s conduct was not reasonably competent, or that

it fell outside the range of competence displayed by

lawyers with ordinary training and skill in the criminal

law. Accordingly, the petitioner cannot prevail on his

claims that his criminal trial counsel and his first habeas

counsel rendered ineffective assistance. See Abreu v.

Commissioner of Correction, supra, 172 Conn. App.

583 (‘‘because the petitioner failed to establish that he

had a viable claim of ineffective assistance of trial counsel, his assertion that his prior habeas counsel provided

ineffective assistance by failing to raise that claim similarly lacks merit’’). We therefore conclude that the court

did not abuse its discretion by denying the petition for

certification to appeal. See Lozada v. Deeds, 498 U.S.

430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms

v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).

The appeal is dismissed.

In this opinion the other judges concurred.

1

In her testimony, Heffernan acknowledged that, aided by an investigator,

she conducted her own inspection of the scene of the accident, and the

skid marks from the petitioner’s vehicle in particular. She nonetheless testified that, because the scene had changed since the date of the accident and

the skid marks had faded, that investigation was of no value.

2 See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523

U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).