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*********************************************** 
TAJAH S. MCCLAIN v. COMMISSIONER OF

CORRECTION

(AC 40541)

Prescott, Bright and Bishop, Js.

Syllabus

The petitioner, who had been convicted of, inter alia, murder with a firearm

in connection with the shooting death of the victim, sought a writ of

habeas corpus, claiming, inter alia, that his trial counsel had provided

ineffective assistance and that he was actually innocent. The habeas

court rendered judgment denying the habeas petition and, thereafter,

denied the petition for certification to appeal, and the petitioner appealed

to this court. Held:

1. The habeas court did not abuse its discretion in denying the petition for

certification to appeal with respect to the petitioner’s claim that his trial

counsel provided ineffective assistance:

a. The habeas court properly determined that the petitioner failed to

show that he was prejudiced by his trial counsel’s failure to present a

third-party culpability defense and to produce evidence that another

individual, V, shot the victim; the petitioner failed to demonstrate that

there was a reasonable probability that, but for counsel’s failure to

present a third-party culpability defense, the outcome of his trial would

have been different, as the descriptions of the shooter more closely

matched the physical features of the petitioner than those of V, testimony

at the habeas trial connecting V to the shooting was unreliable, unclear,

and, at most, raised a bare suspicion that V may have been involved in

a shooting, and even if a social media post in which V purportedly

referred to the shooting had been found and properly authenticated, it

failed to constitute an admission by V sufficient to raise a reasonable

doubt as to the petitioner’s culpability.

b. The petitioner failed to show that he was prejudiced by his trial

counsel’s failure to present evidence of an initial segment of a video

recorded police interview of a witness for the state, which the petitioner

alleged had been redacted; the petitioner failed to present any evidence,

apart from his own allegation that he had viewed an original video, that

an initial portion of the video existed or that if it did exist it was not

shown to the jury, and trial counsel’s cross-examination of the witness

and the detective who recorded the interview allowed the jury to weigh

their credibility regarding the nature of the video without the presentation of the purported initial segment of the video.

2. The habeas court properly denied the petition for certification to appeal

with respect to the petitioner’s claim of actual innocence, the petitioner

having failed to establish by clear and convincing evidence that he

was innocent of the murder for which he was convicted and that no

reasonable fact finder would find him guilty of the crime; although the

testimony of B presented by the petitioner at the habeas trial was newly

discovered evidence, B’s testimony was insufficient to prove by clear

and convincing evidence that the petitioner was actually innocent in

light of the overwhelming evidence of the petitioner’s identification as

the shooter at the criminal trial and the habeas court’s conclusion, after

viewing both the petitioner and V, that the petitioner more closely

resembled the description of the shooter, and even if the testimony of

two other witnesses presented by the petitioner at the habeas trial

constituted newly discovered evidence, such testimony was unreliable

and did not constitute clear and convincing evidence of the petitioner’s

actual innocence.

Argued November 27, 2018–officially released February 26, 2019

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.

Jennifer B. Smith, assigned counsel, with whom, on

the brief, was Samuel A. Greenberg, assigned counsel,

for the appellant (petitioner).

Rocco A. Chiarenza, assistant state’s attorney, with

whom, on the brief, were John C. Smriga, state’s attorney, C. Robert Satti, Jr., supervisory assistant state’s

attorney, and Emily Dewey Trudeau, assistant state’s

attorney, for the appellee (respondent).
Opinion

BISHOP, J. The petitioner, Tajah S. McClain, 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. On appeal,

the petitioner claims that the habeas court abused its

discretion in denying his petition for certification to

appeal and improperly rejected (1) his claim that his

trial counsel rendered ineffective assistance, and (2)

his claim of actual innocence. We conclude that the

court did not abuse its discretion in denying the petition

for certification to appeal and, accordingly, dismiss the

petitioner’s appeal.

The following facts and procedural history are relevant to our resolution of this appeal. After a jury trial,

the petitioner was convicted of murder with a firearm

in violation of General Statutes §§ 53a-54a (a) and 53-

202k, assault in the first degree with a firearm in violation of General Statutes §§ 53a-59 (a) (5) and 53-202k,

and carrying a pistol without a permit in violation of

General Statutes § 29-35 (a). The petitioner received a

total effective sentence of sixty-five years incarceration.

This court’s opinion in the petitioner’s direct appeal;

see State v. McClain, 154 Conn. App. 281, 283–84, 105

A.3d 924 (2014), aff’d, 324 Conn. 802, 155 A.3d 209

(2017); sets forth the following facts: ‘‘On July 17, 2010,

a group of more than ten people were drinking alcohol

in the area known as ‘the X,’ located behind the Greene

Homes Housing Complex in Bridgeport [Greene

Homes]. Shortly before 5:22 a.m., the victim, Eldwin

Barrios, was sitting on a crate when all of a sudden the

[petitioner] and at least two other men jumped on him,

and started punching and kicking him. The victim kept

asking them why they were hitting him, but no one

answered. The [petitioner] then was passed a chrome

or silver handgun and he fired one shot, intended for

the victim. The bullet, however, struck one of the other

men in the back of the leg. The man who had just been

shot yelled, ‘you shot me, you shot me, why you shot

me,’ to which the [petitioner] replied, ‘my bad.’ As this

was happening, the victim got up and tried to run away,

but the [petitioner] fired several shots at him. Three of

the [petitioner’s] shots hit the victim—one in the leg,

one in the arm, and one in the torso—at which point,

the victim fell to the ground and died.

‘‘The [petitioner] was arrested three days after the

murder. Following a jury trial, the [petitioner] was convicted and sentenced to a total effective sentence of

sixty-five years incarceration.’’ (Footnote omitted.) This

court affirmed the petitioner’s conviction on direct

appeal. Id., 283.1 Thereafter, our Supreme Court

affirmed this court’s judgment. State v. McClain, 324

Conn. 802, 805, 155 A.3d 209 (2017).

On September 3, 2013, the petitioner, in a self-repre-
sented capacity, filed a petition for a writ of habeas

corpus. On April 1, 2016, the petitioner, represented by

counsel, filed the operative amended petition. In the

amended petition, the petitioner alleged that (1) his

constitutional right to the effective assistance of trial

counsel was violated, (2) his right to due process was

violated by the state’s failure to disclose or otherwise

correct false testimony, pursuant to Brady v. Maryland,

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

and (3) he was actually innocent. By memorandum of

decision issued on May 11, 2017, the habeas court

denied the amended petition, concluding that the petitioner did not meet his burden of proving a Brady

violation, did not prove that he was prejudiced by his

trial counsel’s performance, and did not prove his actual

innocence. The court thereafter denied the petition for

certification to appeal from its decision. This appeal

followed. Additional facts will be set forth as necessary.

We begin by setting 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 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. . . .

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. . . . 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 the merits. . . . In

determining whether there has been an abuse of discretion, every reasonable presumption should be given in

favor of the correctness of the court’s ruling . . . [and]

[r]eversal is required only where an abuse of discretion

is manifest or where injustice appears to have been

done.’’ (Internal quotation marks omitted.) Peeler v.

Commissioner of Correction, 161 Conn. App. 434, 442–

43, 127 A.3d 1096 (2015).

‘‘In determining whether the habeas court abused

its discretion in denying the petitioner’s request for

certification, we necessarily must consider the merits of

the petitioner’s underlying claims to determine whether

the habeas court reasonably determined that the petitioner’s appeal was frivolous.’’ (Internal quotation

marks omitted.) Mercado v. Commissioner of Correction, 183 Conn. App. 556, 561, 193 A.3d 671, cert. denied,

330 Conn. 918, 193 A.3d 1211 (2018).

I
The petitioner first claims that the habeas court

abused its discretion by denying his certification to

appeal from its decision regarding the petitioner’s claim

of ineffective assistance of trial counsel. Specifically,

the petitioner claims that his trial counsel rendered

ineffective assistance by failing to present (1) a thirdparty culpability defense and (2) evidence of an initial

segment of a video recorded police interview of a state’s

witness that the petitioner alleges exists. In response,

the respondent, the Commissioner of Correction,

argues, in relevant part, that the habeas court properly

denied the petition for a writ of habeas corpus because

the petitioner failed to establish that he was prejudiced

by an alleged deficiency in his trial counsel’s performance. We agree with the respondent.

‘‘The habeas court is afforded broad discretion in

making its factual findings, and those findings will not

be disturbed unless they are clearly erroneous. . . .

Historical facts constitute a recital of external events

and the credibility of their narrators. . . . Accordingly,

[t]he habeas judge, as the trier of facts, is the sole arbiter

of the credibility of witnesses and the weight to be

given to their testimony. . . . The application of the

habeas court’s factual findings to the pertinent legal

standard, however, presents a mixed question of law

and fact, which is subject to plenary review.’’ (Internal

quotation marks omitted.) Antwon W. v. Commissioner

of Correction, 172 Conn. App. 843, 849, 163 A.3d 1223,

cert. denied, 326 Conn. 909, 164 A.3d 680 (2017).

‘‘The petitioner’s right to the effective assistance of

counsel is assured by the sixth and fourteenth amendments to the federal constitution, and by article first,

§ 8, of the constitution of Connecticut. In Strickland v.

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

Ed. 2d 674 (1984)], the United States Supreme Court

established that for a petitioner to prevail on a claim

of ineffective assistance of counsel, he must show that

counsel’s assistance was so defective as to require

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

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

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

resulted from a breakdown in the adversary process

that renders the result unreliable. Because both prongs

. . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails

to meet either prong. Accordingly, a court need not

determine the deficiency of counsel’s performance if

consideration of the prejudice prong will be dispositive

of the ineffectiveness claim. . . .

‘‘With respect to the prejudice component of the

Strickland test, the petitioner must demonstrate that

counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.
. . . It is not enough for the [petitioner] to show that

the errors had some conceivable effect on the outcome

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

show that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

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

reasonable probability that, absent the errors, the fact

finder would have had a reasonable doubt respecting

guilt.’’ (Internal quotation marks omitted.) Weinberg

v. Commissioner of Correction, 112 Conn. App. 100,

106–107, 962 A.2d 155, cert. denied, 291 Conn. 904, 967

A.2d 1221 (2009).

Because the habeas court in the present case determined that the petitioner had not proven that he was

prejudiced by the performance of his trial counsel without reaching the deficiency prong, ‘‘our focus on review

is whether the court correctly determined the absence

of prejudice.’’ (Internal quotation marks omitted.) Mercado v. Commissioner of Correction, supra, 183 Conn.

App. 565; see also Weinberg v. Commissioner of Correction, supra, 112 Conn. App. 108.

A

We first address the petitioner’s argument that he

was prejudiced by his trial counsel’s failure to present

a third-party culpability defense. Specifically, the petitioner argues that his trial counsel’s failure to produce

evidence that Carlos Vidal shot the victim constituted

ineffective assistance of counsel.

‘‘It is well established that a defendant has a right to

introduce evidence that indicates that someone other

than the defendant committed the crime with which

the defendant has been charged. . . . The defendant

must, however, present evidence that directly connects

a third party to the crime. . . . It is not enough to show

that another had the motive to commit the crime . . .

nor is it enough to raise a bare suspicion that some

other person may have committed the crime of which

the defendant is accused. . . .

‘‘The admissibility of evidence of third party culpability is governed by the rules relating to relevancy. . . .

Relevant evidence is evidence having any tendency to

make the existence of any fact that is material to the

determination of the proceeding more probable or less

probable than it would be without the evidence. . . .

Accordingly, in explaining the requirement that the

proffered evidence establish a direct connection to a

third party, rather than raise merely a bare suspicion

regarding a third party, [our Supreme Court has] 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 [fact finder’s] determination.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Arroyo, 284 Conn. 597, 609–610, 935 A.2d 975 (2007);

see also Johnson v. Commissioner of Correction, 330

Conn. 520, 564, A.3d (2019).

The following additional facts are relevant to this

claim. During the habeas trial, Donald J. Cretella, Jr.,

the petitioner’s trial counsel, testified that he recalled

seeing a police investigative report about the shooting

that described an individual speaking with the police

and referencing a man named Carlos Vidal. The habeas

court subsequently admitted that report as an exhibit

for the purpose of showing what may have been available to Cretella at the time of trial. The petitioner’s

habeas counsel then asked Cretella to read the following portion of the report that was relevant to his testimony: ‘‘Jesenia Rhodes called me then came in to talk.

She stated Fro’s real name is Charlie or Carlos Vidal.

He lives on Catherine [Street], he pulled a gun on a girl,

she has a restraining order against him, [and] he lives

at his aunt’s house at 104 Catherine [Street] which is

across the street from his girlfriend’s house . . . . His

mother is [Eleanor] and she lives at 59 Edwin. Jesenia

on [July 19, 2010] went on Fro’s MySpace account2

. . .

and found a picture of a tombstone that stated ‘this is

where niggas go when they fuck with me 1986.’ This

concern[ed] Jesenia because [the victim’s] birth year is

1986. Jesenia took a picture of the tombstone before

Fro removed it from the account. Jesenia stated someone . . . saw Vidal at Wentfield Park getting out of a

rental car with a gun. . . . Before she left I showed

her a picture of . . . Vidal [date of birth March 23,

1986,] and she stated that was Fro.’’ (Footnote added.)

Cretella did not recall having a conversation with the

petitioner about the report. He also did not investigate

the information it contained because his strategy was

to present an alibi defense, and, at the time, he believed

that the third-party culpability defense was weak. Sergeant John Losak, the Bridgeport police officer who

authored the report, testified at the habeas trial that

Rhodes had provided him with information regarding

the MySpace post but indicated that there was nothing

in the post that was exculpatory for the petitioner.

Losak further recalled that the information compiled

over the course of the investigation did not suggest

that there was more than one suspect at the scene of

the shooting.
The petitioner’s habeas counsel also presented the

testimonies of Silas Cox, a purported eyewitness to the

shooting, Madeline Griffin, Vidal’s aunt, and Shemayah

Ben-Israel, an inmate who had shared a holding cell

with Vidal in 2014. Cox testified that he was present at

a section of the Greene Homes commonly referred to

as the ‘‘X’’ in 2010 when the shooting occurred, and

that he saw ‘‘a Spanish looking guy with a gun shoot

and then run away.’’ Cox described the shooter as having white skin and braided hair, not a shaved head as

the petitioner had at the time of the shooting. During

cross-examination, Cox described his extensive criminal record and acknowledged he had been in jail from

February to November, 2010, which period encompasses the July, 2010 date of the shooting. Cox later

backtracked from this acknowledgment and stated that

he did not recall the exact dates that he had been incarcerated in 2010 because he had ‘‘an extensive history

of coming back and forth to jail . . . .’’

Griffin testified that the victim had robbed her, and

that when she told Vidal that the victim had robbed

her, he began waving a silver gun around. Griffin stated

that this encounter happened before a 2010 car accident

in which she had been involved. Griffin further testified

that her sister, Eleanor, who is also Vidal’s mother,

had told her that someone named ‘‘Boo’’ had called

Eleanor’s house asking for Vidal to meet him in the

Greene Homes with the victim, and that ‘‘it had to do

with a gun.’’ Griffin also stated that Eleanor had asked

her if Vidal could stay at her house because he had

been shot. Griffin’s statements regarding what Eleanor

had said to her were admitted at the habeas trial, over

hearsay objections, for the purpose of showing what

information may have been available to Cretella at the

time of the criminal trial. Griffin provided more information about her 2010 accident during cross-examination,

stating that she had been involved in a car accident in

June, 2010, and that, as a consequence, she had developed memory problems. She also stated that she had

been diagnosed with mental health issues, including

schizophrenia, for which she takes medication.

Ben-Israel testified that while he was in a holding

cell in MacDougall-Walker Correctional Institution with

Vidal in 2014, they had a conversation during which

Vidal expressed his concern that ‘‘a warrant was going

to pop up for his arrest . . . for that incident that happened in the [Greene Homes].’’ Ben-Israel also testified

that Vidal had been talking about the petitioner, and

that Vidal had told him that ‘‘he was supposed to turn

himself in, but . . . he wasn’t going to turn himself in

for nobody. And that is pretty much what he said. He

said fuck—he said fuck [the petitioner], basically.’’ BenIsrael further stated that he had been familiar with the

case because he had seen a post that Vidal had made

on Facebook in which he bragged ‘‘about what was
done in the [Greene Homes].’’3 During cross-examination, Ben-Israel acknowledged that he was serving a

twelve year sentence for robbery and that he had a

previous criminal record under a different name. He

also acknowledged that the Facebook post by Vidal

that he allegedly saw did not indicate that Vidal had

killed the victim.

The petitioner also testified at the habeas trial. He

stated that the only discussion he had with Cretella

about Vidal was regarding Rhodes’ reference to Vidal

in Losak’s report. The petitioner recalled that when he

asked Cretella about sequestering Rhodes, Cretella cut

him off and told him not to worry about her.

The habeas court explicitly addressed the MySpace

post and Ben-Israel’s testimony in rejecting the petitioner’s claim that Cretella failed to investigate or present

a third-party culpability defense. The court determined

that it was unclear whether Cretella successfully could

have authenticated the MySpace post as having been

authored by Vidal. The court concluded that, even if

the post had been admitted into evidence, it failed ‘‘to

comprise a clear admission by Vidal that he, and not

the petitioner, shot the victim’’; (emphasis in original);

and noted that ‘‘it was the petitioner, and not Vidal,

whose appearance more closely resembled the shooter’s description [given] by most witnesses.’’

After reviewing the record, we agree with the habeas

court’s conclusion that, despite the evidence presented,

the petitioner failed to demonstrate that there was a

reasonable probability that, but for the trial counsel’s

failure to present a third-party culpability defense, the

outcome of his trial would have been different. We

agree that even if a third-party culpability defense had

been asserted at the petitioner’s trial, the purported

MySpace post, assuming that it was found and properly

authenticated, would have failed to constitute an admission by Vidal sufficient to raise a reasonable doubt of

the petitioner’s culpability.4 Sergeant Losak confirmed

that he had been made aware of the post, but testified

that the investigation of the shooting did not corroborate the information that the post allegedly contained.

Moreover, we agree with the court’s determination that,

because Ben-Israel’s testimony concerned a 2014 conversation he had with Vidal ‘‘that first came to light

about one month before the habeas trial in 2017 . . .

Cretella could hardly be faulted for not premising a

third-party [culpability] defense on an event which had

not yet occurred at the time of the petitioner’s criminal

trial in 2012.’’

Additionally, although the court did not specifically

discuss the testimony of Cox and Griffin, the court

reasonably could have concluded that their testimony

did not help the petitioner because it was unclear

whether Cox was in prison at the time of the shooting,

and because Griffin’s memory and mental health issues
raise questions as to the reliability of her testimony.

Additionally, the testimony of Cox and Griffin did not

directly connect Vidal to the shooting in the present

case but, rather, at the most, raised a bare suspicion

that he may have been involved in a shooting. See State

v. Arroyo, supra, 284 Conn. 609–610. Finally, as we will

discuss further in part II of this opinion, the court found

that the evidence at both the criminal and habeas trials

provided descriptions of the shooter that more closely

matched the physical features of the petitioner than

those of Vidal.

Accordingly, the habeas court correctly determined

that the petitioner was not prejudiced by Cretella’s

alleged failure to investigate and present a third-party

culpability defense.

B

The petitioner next argues that he was prejudiced by

his trial counsel’s failure to present evidence of an initial

segment of a video recorded police interview of Eduardo Martorony, a witness for the state. The petitioner

alleges that an initial portion of the video in which

Detective Harold Dimbo intentionally left Martorony

alone in the interview room had been redacted. We are

not persuaded.

The following additional facts are relevant to this

claim. Cretalla testified during the habeas trial that he

recalled that, during the petitioner’s criminal trial, the

police video of Martorony was played to corroborate

Martorony’s trial testimony. During Cretella’s testimony

before the habeas court, the video was played to show

what information had been available to Cretella. The

video began by showing Martorony sitting alone in an

interview room looking through police materials. Cretella recalled this initial portion of the video but did not

recall whether that initial portion was played for the

jury at the criminal trial or whether redactions were

made to the first part of the video. Cretella did recall

that redactions were made to the latter part of the

video and that there was a portion of the video showing

Martorony sitting alone in the room for a longer period

of time than shown in the recording entered into evidence. He testified, however, that this portion may have

occurred later in the interview.

Cretella additionally testified that he thought Martorony’s review of the police material during the video

could have suggested that he saw information that

would have helped him testify about something he actually may not have witnessed. Cretella stated that he

cross-examined Martorony regarding the material left

in the interview room and that, although he also crossexamined Dimbo about Martorony’s interview, he did

not recall whether he specifically asked Dimbo about

the material left in the room because he did not want

to walk into a ‘‘potential trap’’ by asking questions with
potential answers he did not know. Finally, Cretella

testified that, in his experience as an attorney, having

viewed ‘‘hundreds’’ of police interviews, it is not uncommon for the videos of such interviews to start before

the interviewer has entered the room.

Dimbo, who interviewed Martorony during the video,

testified that he had met with Martorony before the

interview to discuss the case. Dimbo stated that, at

this initial meeting, Martorony had provided him with

information about the shooting on his own accord. Specifically, Dimbo recalled that Martorony told him that

he had witnessed a shooting and provided him with the

nicknames of those involved. Dimbo then stated that,

after hearing those nicknames, he suspected that the

petitioner was the shooter. Dimbo also testified that

the material Martorony was seen examining in the video

contained only a photograph of the victim, Dimbo’s

notes from his previous discussion with Martorony, and

a photo array. He stated, as well, that apart from the

photo array, everything included in the material was

information that had been provided directly to him by

Martorony. Dimbo further testified that Martorony was

left alone in the interview room before the recording

began because he needed to leave the room to turn on

the video recorder.

The petitioner testified that he had viewed an original

video in which Dimbo had left Martorony alone in the

interview room because he said he had forgotten something, and the petitioner contended that during his criminal trial, he wanted Cretella to question Dimbo about

why he subsequently did not return to the room with

anything.

In assessing the petitioner’s claim that Cretella failed

to present the alleged initial segment of the video

recorded police interview, the habeas court determined

that the allegation that the video had been redacted

was ‘‘simply unproven speculation.’’ The court concluded that no credible evidence supported the petitioner’s suggestion that the recording began earlier than

shown to the jury simply because it abruptly started

with Martorony reviewing police material.

On the basis of our review of the record, we conclude

that the habeas court reasonably determined that the

petitioner offered insufficient evidence to support his

allegation that an initial segment of the video existed

or that, even if it existed, it was not shown to the

jury. No evidence of an initial portion of the video was

presented at the habeas trial apart from the petitioner’s

allegation that he had viewed an ‘‘original video.’’ Moreover, the court found that Cretella’s cross-examination

of both Martorony and Detective Dimbo at the petitioner’s criminal trial ‘‘decidedly put before the jury the

possibility that Martorony previewed police documents,

photographs, and/or notes and simply repeated information that he believed the police wanted to hear.’’
Accordingly, we agree with the habeas court’s assessment that because the jury was able to weigh Martorony

and Dimbo’s credibility regarding the nature of the

video without the presentation of any purported initial

segment of the video, no prejudice resulted from Cretella’s alleged failure to present additional evidence

regarding the nature of the video.

The record demonstrates that, even if Cretella had

provided deficient performance regarding the thirdparty culpability defense or the purported missing portion of the video, the petitioner’s ineffective assistance

claims do not involve issues that are debatable among

jurists of reason with respect to the prejudice prong of

the Strickland test. We conclude, therefore, that the

habeas court did not abuse its discretion in denying the

petition for certification to appeal from that court’s

determination that the petitioner failed to prove that

he was prejudiced by the ineffective assistance of counsel at his criminal trial.

II

The petitioner also claims that the court abused its

discretion in denying his petition for certification to

appeal with respect to his claim of actual innocence.

We are not persuaded.

We begin by setting forth the relevant legal principles

that govern our analysis. ‘‘[T]he proper standard for

evaluating a freestanding claim of actual innocence,

like that of the petitioner, is twofold. First, the petitioner

must establish by clear and convincing evidence that,

taking into account all of the evidence—both the evidence adduced at the original criminal trial and the

evidence adduced at the habeas corpus trial—he is actually innocent of the crime of which he stands convicted.

Second, the petitioner must also establish that, after

considering all of that evidence and the inferences

drawn therefrom as the habeas court did, no reasonable

fact finder would find the petitioner guilty of the

crime. . . .

‘‘Actual innocence is not demonstrated merely by

showing that there was insufficient evidence to prove

guilt beyond a reasonable doubt. . . . Rather, actual

innocence is demonstrated by affirmative proof that

the petitioner did not commit the crime. . . . Affirmative proof of actual innocence is that which might tend

to establish that the petitioner could not have committed the crime even though it is unknown who committed

the crime, that a third party committed the crime or that

no crime actually occurred.’’ (Citation omitted; internal

quotation marks omitted.) Carmon v. Commissioner

of Correction, 178 Conn. App. 356, 371, 175 A.3d 60

(2017), cert. denied, 328 Conn. 913, 180 A.3d 961 (2018).

This court has held that ‘‘[a] claim of actual innocence

must be based on newly discovered evidence. . . .

This evidentiary burden is satisfied if a petitioner can
demonstrate, by a preponderance of the evidence, that

the proffered evidence could not have been discovered

prior to the petitioner’s criminal trial by the exercise

of due diligence.’’ (Internal quotation marks omitted.)

Ampero v. Commissioner of Correction, 171 Conn. App.

670, 687, 157 A.3d 1192, cert. denied, 327 Conn. 953,

171 A.3d 453 (2017).

The following additional facts are relevant to this

claim. During the habeas trial, the petitioner described

Vidal as a light-skinned African American, approximately five feet, seven to eight inches tall, and with

cornbraids. The petitioner additionally testified that he

himself, as opposed to Vidal, never had cornbraids.

Vidal also appeared with his counsel during the habeas

trial through a video conference and, through his counsel, invoked his right against self-incrimination. When

the petitioner’s counsel indicated his desire to put

Vidal’s skin color, hairstyle, and other physical characteristics into the record, the court responded: ‘‘Well I

can—certainly I can see Mr. Vidal presently, so I can

take—my observations are certainly evidence in the

case of how he appears. And with that, I don’t think

you can ask him how his hair was, etc.’’ The court then

asked Vidal if he would be willing to answer questions

about his height and weight, and although his counsel

did not agree to permit him to do so, Vidal did stand

up and turn to the side when the court requested that

he do so.

In its memorandum of decision, the habeas court

first indicated that ‘‘[t]he newly discovered evidence

proffered by the petitioner’’ was the testimony of BenIsrael. The court then found ‘‘that the petitioner . . .

failed to satisfy his burden of proving, by clear and

convincing evidence, affirmatively that [he] did not murder the victim.’’ The court determined that ‘‘[a] combination of credible, newly discovered evidence with that

previously produced at the petitioner’s criminal trial

show[ed] that the more accurate and persuasive

description of the shooter more closely matched the

physical features of the petitioner than those of Vidal.’’

The court stated that it had ‘‘viewed Vidal’s complexion

and other physical characteristics personally.’’ The

court also noted that, during the criminal trial, it was

established that three persons who knew the petitioner

on the day of the shooting identified him as the gunman:

(1) Kyle Mason, the other individual who was shot and

who provided a recorded statement to police on the

day of the incident; (2) Henry Brandon, who saw the

petitioner receive a silver pistol from one of his companions and fire the shot that struck Mason; and (3) Martorony, who was speaking with the victim just as the

assailants approached to attack and ‘‘identified the petitioner as the person who employed a chrome-colored,

semi-automatic pistol to shoot the victim.’’ The court

concluded that, given the inculpatory evidence against

the petitioner, ‘‘vague boasts [allegedly] by Vidal of
some nonspecific involvement in the victim’s demise

falls far short of clear and convincing evidence of the

petitioner’s innocence.’’

On appeal, the petitioner argues that (1) Ben-Israel’s

testimony was newly discovered evidence that could

not have been discovered prior to, or during, the petitioner’s criminal trial despite the exercise of due diligence, and (2) the testimony of Cox and Griffin also

could be considered newly discovered evidence provided that this court determines that the exercise of

due diligence would not have unearthed their testimony. The respondent argues that the petitioner’s claim

should ‘‘be rejected because the habeas court acted

well within its role as fact finder in concluding that the

proffered evidence was insufficient to meet the ‘extraordinarily high’ burden of proving the petitioner’s actual

innocence by clear and convincing evidence.’’

Because it is clear that Ben-Israel’s testimony, which

came to light one month before the 2017 habeas trial,

could not have been discovered prior to the petitioner’s

2012 criminal trial through due diligence, we agree with

the habeas court that the testimony constitutes newly

discovered evidence. We also agree with the habeas

court that such testimony fails to establish clearly and

convincingly that the petitioner is actually innocent.

In his testimony during the habeas trial, Ben-Israel

stated that Vidal told him about the shooting in the

Greene Homes, but also stated that he knew about

the shooting apart from his conversation with Vidal.

Moreover, Ben-Israel repeatedly stated that the social

media post by Vidal that he allegedly saw was on Facebook, not MySpace, and that the post did not indicate

that Vidal, and not the petitioner, had killed the victim.

Ben-Israel’s testimony was not only contradictory to

the inculpatory evidence presented against the petitioner, but it also failed to unequivocally undermine

such evidence. See Gould v. Commissioner of Correction, 301 Conn. 544, 560, 22 A.3d 1196 (2011) (‘‘[T]he

clear and convincing evidence standard should operate

as a weighty caution upon the minds of all judges, and

it forbids relief whenever the evidence is loose, equivocal or contradictory. . . . We equated the clear and

convincing burden with an extraordinarily high and

truly persuasive [demonstration] of actual innocence

. . . .’’ [Citation omitted; internal quotation marks omitted.]). The habeas court considered the overwhelming

evidence of the petitioner’s identification as the shooter

at the criminal trial with its own viewing of the petitioner and Vidal during the habeas trial, and reasonably

concluded that the petitioner, not Vidal, more closely

resembled the shooter identified by eyewitnesses. As

such, we conclude that, in light of the evidence presented at the habeas trial, Ben-Israel’s testimony did

not support the petitioner’s actual innocence claim.

We next turn to the petitioner’s argument, which was
not raised during the habeas trial, that the testimony

of Cox and Griffin could be newly discovered evidence.5

In his brief before this court, the petitioner merely

restates the relevant portions of Cox and Griffin’s testimony without offering an argument or legal authority

as to how such testimony could be considered newly

discovered.

Even assuming, arguendo, that the testimony of Cox

and Griffin could be considered newly discovered, we

conclude that such testimony, when weighed against

the other evidence presented against the petitioner at

the habeas trial, did not constitute affirmative proof of

the petitioner’s innocence. ‘‘To disturb a long settled

and properly obtained judgment of conviction, and thus

put the state to the task of reproving its case many

years later, the petitioners must affirmatively demonstrate that they are in fact innocent.’’ (Emphasis in

original.) Gould v. Commissioner of Correction, supra,

301 Conn. 567. As previously discussed in part I A of this

opinion, the testimony of Cox and Griffin was unreliable

and did not constitute clear and convincing evidence

of the petitioner’s actual innocence. Carmon v. Commissioner of Correction, supra, 178 Conn. App. 371

(‘‘the petitioner must establish by clear and convincing

evidence that, taking into account all of the evidence

. . . he is actually innocent of the crime of which he

stands convicted’’ [internal quotation marks omitted]);

see also Turner v. Commonwealth, 56 Va. App. 391,

411, 694 S.E.2d 251 (2010) (‘‘the petitioner has not met

his burden . . . because . . . relief [on a petition for

a writ of actual innocence is available] only to those

individuals who can establish that they did not, as a

matter of fact, commit the crime for which they were

convicted and not to those who merely produce evidence contrary to the evidence presented at their criminal trial’’ [internal quotation marks omitted]), aff’d, 282

Va. 227, 717 S.E.2d 111 (2011). On the basis of our own

review, we conclude that the habeas court properly

found that the petitioner had not established by clear

and convincing evidence that he is innocent of the murder for which he was convicted, and the petitioner failed

to establish that no reasonable fact finder would find

him guilty of the crime.

On the basis of the foregoing, we conclude that the

habeas court did not abuse its discretion in denying the

petition for certification to appeal. We are not persuaded that the issues, as presented by the petitioner,

are debatable among jurists of reason, that they reasonably could be resolved differently, or that they raise

questions deserving further appellate scrutiny.

The appeal is dismissed.

In this opinion the other judges concurred.

1

In his direct appeal, the petitioner claimed ‘‘that the trial court (1) improperly limited his cross-examination of an eyewitness, and (2) committed plain

error by not instructing the jury on the doctrine of consciousness of guilt.’’

State v. McClain, supra, 154 Conn. App. 283.
2

‘‘MySpace is a social networking website where members can create

profiles and interact with other members. Anyone with Internet access can

go onto the MySpace website and view content which is open to the general

public such as a music area, video section, and members’ profiles which

are not set as private. However, to create a profile, upload and display

photographs, communicate with persons on the site, write blogs, and/or

utilize other services or applications on the MySpace website, one must be

a member. Anyone can become a member of MySpace at no charge so long

as they meet a minimum age requirement and register. . . . To establish a

profile, a user needs only a valid email account. . . . Generally, a user

creates a profile by filling out a series of virtual forms eliciting a broad

range of personal data, culminating in a multimedia collage that serves as

one’s digital face in cyberspace.’’ (Citation omitted; internal quotation marks

omitted.) State v. Devalda, 306 Conn. 494, 511 n.19, 50 A.3d 882 (2012).

3

‘‘Facebook is a social networking website that allows private individuals

to upload photographs and enter personal information and commentary on

a password protected profile.’’ (Internal quotation marks omitted.) State v.

Kukucka, 181 Conn. App. 329, 334 n.3, 186 A.3d 1171, cert. denied, 329 Conn.

905, 184 A.3d 1216 (2018).

4 For a third-party culpability defense to succeed, a defendant need only

present evidence that creates a reasonable doubt as to whether the defendant

committed the offense. See State v. Arroyo, supra, 284 Conn. 609–610 (‘‘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’’).

In the present case, although the habeas court may have overstated the

quality of evidence adequate to sustain a third-party culpability defense in

concluding that the MySpace post would have failed to constitute a ‘‘clear

admission’’ by Vidal of his culpability, the record provides ample support

for the court’s conclusion that such a defense would not have been successful

in raising a reasonable doubt as to the petitioner’s culpability in this case.

5 We may properly review the petitioner’s argument that the testimony of

Cox and Griffin could be considered newly discovered evidence because it

is derived from the petitioner’s actual innocence claim. See Michael T. v.

Commissioner of Correction, 319 Conn. 623, 635 n.7, 126 A.3d 558 (2015)

(‘‘[w]e may . . . review legal arguments that differ from those raised before

the trial court if they are subsumed within or intertwined with arguments

related to the legal claim raised at trial’’ [internal quotation marks omitted]);

see also State v. Fernando A., 294 Conn. 1, 31 n.26, 981 A.2d 427 (2009)

(‘‘[although we are mindful that] the plaintiff did not [previously] raise . . .

all of the theories that he raises in his writ . . . those theories are related

to a single legal claim, and . . . there is substantial overlap between these

theories under the case law’’ [internal quotation marks omitted]); Rowe v.

Superior Court, 289 Conn. 649, 663, 960 A.2d 256 (2008) (same).

In the present case, the petitioner’s argument regarding the testimony of

Cox and Griffin is subsumed within his actual innocence claim raised before

the habeas court. As such, we may review this argument.