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REYNALDO ARROYO v. COMMISSIONER

OF CORRECTION

(AC 38431)

Alvord, Mullins and Norcott, Js.

Argued January 19—officially released April 25, 2017

(Appeal from Superior Court, judicial district of

Tolland, Sferrazza, J.)

Moira L. Buckley, assigned counsel, for the appellant (petitioner).

Bruce R. Lockwood, senior assistant state’s attorney,

with whom, on the brief, were Maureen Platt, state’s

attorney, and Angela R. Macchiarulo and Michael J.

Proto, senior assistant state’s attorneys, for the appellee (respondent).
Opinion

ALVORD, J. The petitioner, Reynaldo Arroyo, 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

claims that the court(1) abused its discretion in denying

his petition for certification to appeal and (2) improperly concluded that his trial counsel did not provide

ineffective assistance and that his claim of prosecutorial

impropriety was procedurally defaulted. Because the

petitioner has failed to demonstrate that the habeas

court abused its discretion in denying his petition for

certification to appeal, we dismiss the appeal.

The following factual and procedural history is relevant to this appeal. In March, 2001, the petitioner, a

crack cocaine addict, lived with his girlfriend, Sherry

Krick, in her apartment in a condominium complex in

Middletown. Richmond L. Perry, a crack cocaine dealer,

lived in the same condominium complex. The petitioner

knew Perry and often acted as a ‘‘runner,’’ or intermediary, for him in his drug dealing business.

In the afternoon of March 28, 2001, at approximately

2 p.m., the petitioner asked his neighbor, Charles Smith,

if he could borrow money, promising to pay the money

back after he went on ‘‘a mission.’’ Later that evening,

at about 8 p.m., the petitioner and Perry drove to Mike’s

Package Store in Middlefield. While in the store, an

argument ensued between the petitioner, Perry, and the

owner of the store, Edmund Caruso. As the argument

escalated, Perry drew a nine millimeter firearm. In

response, Caruso grabbed his tear gas canister and

sprayed it at Perry and the petitioner. Perry then shot

Caruso several times, and Caruso subsequently died as

a result of his wounds. Following the shooting, the

petitioner and Perry fled from the scene with the package store’s cash register.

When they returned to their condominium complex,

Perry first went home to change his clothing, which

was covered in tear gas, and to shower. After showering,

the petitioner and Perry wrapped the register in the

petitioner’s blanket and carried it into his and Krick’s

apartment, where the petitioner used a screwdriver to

open it. The petitioner and Perry divided the proceeds

from the register and then hid it behind the bedroom

dresser.

That same evening, the petitioner and Perry offered

to sell Smith the firearm that they used in the robbery,

but he declined to purchase it. The petitioner subsequently arranged to sell the firearm to Juan Cruz,

another crack cocaine dealer with whom he was associated. On March 31, 2001, the petitioner and Perry met

with Cruz and sold him the firearm, assuring him that

it was ‘‘clean,’’ i.e., not associated with any crimes.1

In the days following the robbery, the petitioner
spoke to Smith about the result of his ‘‘mission.’’ Two

or three days after the robbery, Smith visited Krick’s

apartment. The petitioner showed Smith the register

behind the bedroom dresser and told him that ‘‘it was

from his mission, but he had to get rid of it.’’ Sometime

thereafter, Smith saw the petitioner throw the register

into the dumpster outside the condominium complex.

The petitioner later told Smith that ‘‘things went bad

when he went to do that mission. Things went bad. The

old man got killed. No one meant for the old man to

get killed.’’

During the course of the investigation of the robbery,

the petitioner made several written and oral statements

to the police.2 The petitioner admitted to knowing

details about the robbery, but he insisted that Perry

committed the robbery and murder and told him about

it afterward. Nevertheless, the petitioner acknowledged

that Perry came to Krick’s apartment with the register

after the robbery. He also admitted that he (1) broke

open the register with his screwdriver, (2) shared the

cash proceeds from the register with Perry, (3) hid the

register behind the dresser in his and Krick’s bedroom,

(4) disposed of the register in a dumpster outside of

his and Krick’s apartment, and (5) facilitated and participated in the sale to Cruz of the firearm used during

the robbery.

Thereafter, the petitioner was charged with felony

murder, murder, robbery in the first degree, larceny in

the fifth degree, and conspiracy to commit robbery in

the first degree. While incarcerated and awaiting trial,

the petitioner made statements to two inmates in which

he admitted to participating in the robbery with Perry

and described what happened during and after the robbery. To one of these inmates, who was the petitioner’s

friend and former roommate, the petitioner further

expressed his concern that his alibi witnesses, Krick

and a ‘‘married guy,’’3 were not corroborating his story

about being home the evening of the robbery.

After a trial, the jury found the petitioner guilty of

felony murder, larceny in the fifth degree, and conspiracy to commit robbery in the first degree. The jury

found him not guilty, however, of murder and robbery

in the first degree, which were the only counts in which

the petitioner was charged with personally possessing

the firearm or shooting the victim.4 State v. Arroyo, 292

Conn. 558, 561–62, 973 A.2d 1254 (2009), cert. denied,

559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010).

The court thereafter rendered judgment accordingly

and sentenced the petitioner to a total effective term

of sixty years imprisonment. The petitioner’s conviction

was affirmed on direct appeal. Id., 561.

The petitioner initiated this habeas action on April

8, 2010. On March 13, 2013, the petitioner filed a six

count amended petition. Relevant to this appeal, the

petitioner claimed that his trial counsel rendered inef-
fective assistance by not (1) offering Perry’s plea hearing transcript as an exhibit;(2) presenting the testimony

of an expert witness; and (3) offering ‘‘a depiction of the

floor plan and/or physical layout’’ of Krick’s apartment.

Additionally, the petitioner claimed that the prosecutor

committed certain improprieties during her case-inchief and closing argument by soliciting and utilizing

Perry’s false trial testimony concerning his plea

agreement with the state. After a two day trial, the

habeas court denied the petition for a writ of habeas

corpus and the petition for certification to appeal. This

appeal followed.

The petitioner claims that the habeas court abused

its discretion by denying his petition for certification

to appeal and erred by denying his claims of ineffective

assistance of trial counsel and prosecutorial impropriety. We conclude that the habeas court did not abuse

its discretion by denying the petition for certification

to appeal.

‘‘We begin by setting forth the applicable standard

of review and procedural hurdles that the petitioner

must surmount to obtain appellate review of the merits

of a habeas court’s denial of the habeas petition following denial of certification to appeal. In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our

Supreme Court] concluded that . . . [General Statutes] § 52-470 (b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of

certification to appeal unless the petitioner establishes

that the denial of certification constituted an abuse of

discretion by the habeas court.In Simms v. Warden, 230

Conn. 608, 615–16, 646 A.2d 126 (1994), [our Supreme

Court] incorporated the factors adopted by the United

States Supreme Court in Lozada v. Deeds, 498 U.S. 430,

431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as

the appropriate standard for determining whether the

habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to

demonstrate that the issues 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. . . . A

petitioner who establishes an abuse of discretion

through one of the factors listed above must then demonstrate that the judgment of the habeas court should

be reversed on its merits. . . . In determining whether

the habeas court abused its discretion in denying the

petitioner’s request for certification, we necessarily

must consider the merits of the petitioner’s underlying

claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. . . .

‘‘The conclusions reached by the trial court in its

decision to dismiss [a] habeas petition are matters of

law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing

court] must determine whether they are legally and

logically correct . . . and whether they find support

in the facts that appear in the record. . . . To the extent

that factual findings are challenged, this court cannot

disturb the underlying facts found by the habeas court

unless they are clearly erroneous . . . . [A] finding of

fact is clearly erroneous when there is no evidence in

the record to support it . . . or when although there

is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been committed.’’(Citation omitted; emphasis in original; internal quotation marks

omitted.) Brewer v. Commissioner of Correction, 162

Conn. App. 8, 12, 130 A.3d 882 (2015). Having set forth

the standard of review, we will consider the merits of

the claims raised by the petitioner.

I

We begin by addressing the petitioner’s two claims

relating to Perry’s plea agreement with the state. First,

the petitioner claims that the habeas court erroneously

concluded that trial counsel did not render ineffective

assistance when he failed to offer Perry’s plea hearing

transcript as an exhibit. Second, the petitioner claims

that the habeas court erroneously concluded that his

prosecutorial impropriety claim was procedurally

defaulted. That second claim was based on the prosecutor’s alleged solicitation and use during the state’s casein-chief and closing argument of Perry’s false testimony

concerning his plea agreement. The petitioner contends

that the procedural default was cured by good cause,

namely, ineffective assistance of trial counsel in failing

to raise a claim of prosecutorial impropriety at trial and

sentencing and in failing to preserve this issue for direct

appeal. We disagree.

The following additional facts are relevant to both

of these claims. On January 21, 2003, Perry pleaded

guilty to felony murder and robbery in the first degree.

During her recitation of the factual basis for the guilty

pleas, the prosecutor, who was also prosecuting the

petitioner’s case, did not indicate which of the two

defendants the state believed committed the shooting;

instead, she stated that ‘‘Mr. Caruso was shot and killed

by one of the participants in the robbery . . . who was

Mr. Perry or Mr. Arroyo.’’5 After setting forth the factual

basis for the pleas, the prosecutor explained that she

had agreed to recommend a sentence of ‘‘forty-five

years to serve.’’ She emphasized that ‘‘our offer of fortyfive years is predicated and based on [Perry’s]

agreement to testify in a truthful manner only regarding

Mr. Arroyo’s participation in the robbery . . . .’’

During the court’s canvass, Perry repeatedly confirmed that he understood that the recommended sentence of forty-five years was contingent on his truthful

testimony at the petitioner’s criminal trial. After the
court accepted Perry’s guilty pleas, Perry’s counsel

asked the prosecutor to clarify what the state’s definition of truthful was, and the court asked the prosecutor

whether Perry’s last statement6

‘‘was essentially the

truth.’’ The prosecutor agreed that the last statement

was ‘‘essentially the truth,’’ and then she further clarified: ‘‘The state’s understanding of the truth is that Mr.

Perry participated in the robbery, which led to the death

of Mr. Caruso, in conjunction of Mr. Arroyo.’’

On December 1 and 2, 2004, Perry testified at the

petitioner’s criminal trial. During direct examination,

Perry confirmed that the prosecutor was also prosecuting him for his involvement in the robbery and that

although he had pleaded guilty to two offenses, he had

not been sentenced. Perry also confirmed that he was

going to receive a forty-five year sentence, that there

was no chance that the state would recommend less

than forty-five years, and that a condition of him receiving ‘‘the forty-five year offer’’ was not that he identify

the petitioner as the shooter.

Trial counsel began his cross-examination by highlighting that although Perry pleaded guilty to felony

murder and robbery in the first degree, he still had four

pending charges against him—murder, conspiracy to

commit robbery in the first degree, larceny in the fifth

degree, and violation of probation.7 Trial counsel discussed with Perry the fact that his sentencing had been

postponed until after his testimony in the petitioner’s

trial and that, unless he testified ‘‘in a manner satisfactory to the state,’’ he will not receive a forty-five year

sentence. Perry disagreed with trial counsel’s assertion

that receiving a forty-five year sentence was contingent

on his having testified at the petitioner’s trial and

insisted that forty-five years was ‘‘going to be on the

table no matter what.’’

Thereafter, trial counsel thoroughly and systematically reviewed with Perry the maximum term of imprisonment authorized for each of the five crimes with

which he was charged in connection with his involvement in the robbery. Trial counsel emphasized at the

beginning and end of this lengthy analysis that Perry’s

maximum sentencing exposure for all of these crimes

was 185 years imprisonment. Trial counsel further

observed that ‘‘forty-five years would be only about a

quarter of 185.’’

Beginning with this early exchange, a theme emerged

overthe course of trial counsel’s lengthy cross-examination. Perry consistently maintained that there was no

‘‘deal’’ and that a forty-five year sentence was always

‘‘on the table,’’ and trial counsel repeatedly highlighted

for the jury Perry’s actual maximum sentencing exposure, the number of serious charges pending against

him, and the fact that a sentence of forty-five years was

contingent on Perry’s testimony for the state.8
When, toward the end of trial counsel’s cross-examination, Perry continued to deny that he was receiving

a ‘‘deal,’’ trial counsel observed that ‘‘there was a discussion right out here in the public record, in the open

court, about what you would have to do to get this

sentence.’’ Trial counsel then discussed with Perry the

prosecutor’s statements about his plea agreement at

his guilty plea hearing while presenting Perry with and

reading aloud from Perry’s guilty plea hearing transcript.9 Trial counsel did not identify for the jury, however, the document he was showing Perry as Perry’s

guilty plea hearing transcript, nor did trial counsel offer

it as an exhibit.

On redirect examination, the prosecutor asked Perry:

‘‘Defense attorney asked you if you were getting fortyfive years for your truthful cooperation,’’ and Perry

agreed. The prosecutor then asked Perry to confirm

that the sentence was forty-five years and that there

was ‘‘[n]ot a possibility . . . that I’m going to recommend any less of that sentence . . . ?’’ Perry agreed

with the prosecutor’s statements and then said: ‘‘Fortyfive years always been on the table. I could of seen if

you came with forty-four years, I would have thought

that was a deal. Common sense will tell you that fortyfive, forty-five years has been on the table the whole

time. That’s not a deal.’’ The prosecutor did not correct

Perry’s false assertion that there was no deal; she stated

that she had no further questions.

During summation, trial counsel and the prosecutor

commented on Perry’s plea agreement with the state.

Trial counsel utilized Perry’s staunch refusal ‘‘to

acknowledge he was getting any benefit at all’’ or the

extent of his participation in the robbery to demonstrate

Perry’s lack of credibility. In particular, trial counsel

referred to how, when he presented Perry with the

transcript from his plea hearing, in which the prosecutor indicated that he would be sentenced to forty-five

years imprisonment for testifying truthfully against the

petitioner, Perry continued to refuse to acknowledge

the benefit he was receiving.10 During her rebuttal argument, the prosecutor responded that an agreement to

a sentence of forty-five years imprisonment was not

much of a benefit in light of Perry’s young age and the

fact that he will have to spend the next forty-five years

in prison with fellow inmates knowing that he testified

against his codefendant.

During its final charge to the jury, the court included

a special credibility instruction concerning Perry’s testimony. In relevant part, the court admonished the jury

that it should ‘‘carefully scrutinize the testimony of

Richmond Perry’’ and ‘‘keep in mind that he may, in his

own mind, be looking for or hoping for some favorable

treatment in the sentence or disposition of his own

case. And that therefore he may have such an interest

in the outcome of this case that his testimony may have
been colored by that fact. Therefore, then, you must

look with particular care at the testimony of an accomplice and scrutinize it very carefully before you

accept it.’’

In his habeas petition, the petitioner alleged that trial

counsel rendered ineffective assistance when he failed

to offer Perry’s plea hearing transcript as an exhibit.

Additionally, the petitioner claimed that the prosecutor

committed certain improprieties during her case-inchief and closing argument by soliciting and utilizing

Perry’s false testimony concerning the nature and existence of his plea agreement. In his return, the respondent, the Commissioner of Correction, pleaded that the

petitioner’s claim of prosecutorial impropriety was procedurally defaulted because it was not raised before

the trial court or on appeal. In his reply, the petitioner

argued that ‘‘[a]ny alleged procedural default is cured

by good cause and prejudice,’’ namely, ineffective assistance of trial counsel.11

At the habeas trial, the petitioner called his trial counsel as a witness. Trial counsel recalled that ‘‘Perry

insisted that forty-five [years] was on the table and

that’s always been on the table,’’ and he agreed that

Perry’s testimony in that respect was inaccurate. Trial

counsel further acknowledged that during cross-examination he used Perry’s plea hearing transcript to refresh

Perry’s recollection but he did not offer it as an exhibit,

even though he could have offered it as impeachment

evidence or substantively as a Whelan statement. 12 Trial

counsel explained, however, that because he crossexamined Perry extensively on his truthfulness and

Perry repeatedly admitted that he lied to the police in

his written statements, ‘‘[i]t got to the point where it

was becoming tedious . . . for the jury to even hear it.’’

In its memorandum of decision, the habeas court

rejected the petitioner’s claim of ineffective assistance

of counsel and determined that his claim of prosecutorial impropriety was procedurally defaulted. With

respect to the claim of ineffective assistance of counsel,

the habeas court assumed, arguendo, that trial counsel

rendered deficient performance by not offering Perry’s

plea hearing transcript as an exhibit. The court further

held that the petitioner failed to satisfy the prejudice

prong of Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), because its

‘‘confidence in the jury’s verdictremain[ed] high despite

the inaccuracy of Perry’s description of his plea

agreement.’’ With respect to the petitioner’s claim that

the prosecutor committed certain improprieties by failing to correct Perry’s misrepresentation of his plea

agreement, the court held that the claim was procedurally defaulted because ‘‘[t]he petitioner submitted no

evidence of any good cause justifying his failure to

assert any previously omitted trial misconduct claim at

trial or on appeal.’’
A

The petitioner argues that trial counselrendered ineffective assistance when he failed to offer Perry’s plea

hearing transcript as an exhibit because the transcript

demonstrates that (1) Perry’s plea agreement was contingent on his having testified ‘‘truthfully’’ at the petitioner’s criminal trial; (2) the state’s definition of

‘‘truthfully’’ required Perry to identify the petitioner as

the shooter; (3) Perry had a significant incentive to lie

and to identify the petitioner as the shooter at trial; and

(4) ‘‘the prosecutor was willing to give the jury the

wrong impression, by soliciting and eliciting false testimony and then perpetuating it in summation, about a

plea deal that was critical to the key witness’ credibility.’’ The respondent replies that in light of the totality

of the evidence before the jury, the petitioner cannot

prove there is a reasonable probability that but for trial

counsel’s alleged errors the result of the proceeding

would have been different. We agree with the

respondent.

To succeed on a claim of ineffective assistance of

counsel, a petitioner must satisfy the two-pronged test

articulated in Strickland v. Washington, supra, 466 U.S.

687. Strickland requires that a petitioner satisfy both

a ‘‘performance prong’’ and a ‘‘prejudice prong.’’ To

satisfy the performance prong, ‘‘a [petitioner] must

show that counsel’s conduct fell below an objective

standard of reasonableness for competent attorneys [as

measured by prevailing professional norms].’’ Davis v.

Commissioner of Correction, 319 Conn. 548, 555, 126

A.3d 538 (2015), cert. denied sub nom. Semple v. Davis,

U.S. , 136 S. Ct. 1676, 194 L. Ed. 2d 801 (2016);

Iovieno v. Commissioner of Correction, 242 Conn. 689,

703, 699 A.2d 1003 (1997). To satisfy the prejudice

prong, ‘‘a [petitioner] must show a reasonable probability that the outcome of the proceeding would have been

different but for counsel’s errors.’’ Davis v. Commissioner of Correction, supra, 555. ‘‘The claim will succeed only if both [Strickland] prongs are satisfied. . . .

It is well settled that [a]reviewing court can find against

a petitioner on either ground, whichever is easier.’’

(Citations omitted; emphasis in original; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 713, 946 A.2d 1203, cert. denied

sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481,

172 L. Ed. 2d 336 (2008).

We are not persuaded that there is a reasonable probability that had the jury been presented with Perry’s

plea hearing transcript the outcome of the petitioner’s

criminal trial would have been different. As our

Supreme Court observed on direct appeal, the state

presented ‘‘strong evidence that the [petitioner] had

participated in the robbery.’’ State v. Arroyo, supra, 292

Conn. 575. The petitioner admitted to the police that

he (1) broke open the register with his screwdriver, (2)
shared the cash proceeds from the register with Perry,

(3) hid the register behind the dresser in his and Krick’s

bedroom, (4) disposed of the register in a dumpster

outside of his and Krick’s apartment, and (5) facilitated

and participated in the sale of the firearm used during

the robbery to shoot the victim. Although the petitioner

maintained in his statements to the police that he did

not participate in the robbery, the petitioner admitted

to Smith and two fellow inmates to being involved in

the robbery.13 Finally, the state presented evidence that

a jacket seized from the petitioner and Krick’s apartment, which matched the description of the jacket the

petitioner admitted to wearing on March 28, 2001, was

contaminated with the active ingredient in the tear gas

used by the victim to fight off his attackers.

Perry, as an admitted participant in the robbery, was

an important witness. Trial counsel’s thorough and surgical cross-examination of Perry, however, made the

jury abundantly aware of Perry’s motive to lie and to

implicate the petitioner in the robbery. Throughout the

course of cross-examination, trial counselreminded the

jury of Perry’s original charges, of the charges that

remained pending against Perry, of Perry’s maximum

sentencing exposure for each of those charges as well

as his total maximum sentencing exposure, and of the

fact that Perry’s sentencing had been postponed until

after he testified against the petitioner. Trial counsel

also reviewed Perry’s prior inconsistent statements

with him in detail, and Perry admitted on numerous

occasions that he had lied to the police in all of his

written statements. Trial counsel further demonstrated

that Perry’s lies in his written statements were often

designed either to establish that he was not present for

the robbery or, when he became aware that physical

evidence placed him in the midst of the robbery, to

mitigate his role in the robbery by suggesting that he

was present for the robbery by happenstance, not as

an active participant.

The petitioner argues that ‘‘simply because [trial

counsel] cross-examined Perry extensively regarding

the plea deal does not mean that he was effective in

showing that Perry was untruthful.’’ We disagree. It is

clear from the jury’s verdict that the jury did not credit

all of Perry’s testimony. Perry insisted at trial that the

petitioner shot the victim. Nevertheless, the jury found

the petitioner not guilty of robbery in the first degree

and murder, the only counts in which the petitioner

was charged with either personally possessing the firearm used in the robbery or shooting the victim. See

footnote 4 of this opinion.

Therefore, we conclude that the habeas court did

not abuse its discretion when it denied the petitioner’s

petition for certification to appeal as to his claim of

ineffective assistance of counsel that was based on trial

counsel’s failure to offer Perry’s plea hearing transcript
as an exhibit.

B

The petitioner’s second claim concerning Perry’s plea

agreement with the state is that the prosecutor committed certain improprieties when she (1) solicited false

testimony from Perry on direct examination,(2) permitted Perry’s false testimony to stand on cross-examination, and (3) ‘‘made statements and suggested

inferences to the jury that were false and in which

she emphasized Perry’s false testimony.’’ The petitioner

claims that the habeas court erred when it concluded

that this claim was procedurally defaulted. The petitioner contends that he satisfied the cause and prejudice

standard by proving that ‘‘trial counsel’s failure to raise

the issue of prosecutorial [impropriety] at trial or at

sentencing, and particularly by failing to mark Perry’s

plea hearing transcript as either a full trial exhibit or

an exhibit for [identification] constituted ineffective

assistance of counsel . . . .’’ The respondent argues

that because the habeas court rejected the petitioner’s

claim of ineffective assistance of counsel, the habeas

court properly found that the petitioner failed to satisfy

the cause and prejudice standard. We agree with the

respondent.

‘‘We begin our analysis by setting forth the appropriate standard of review on appeal. Our review of a

determination of the application of procedural default

involves a question of law over which our review is

plenary.’’ (Internal quotation marks omitted.) Wilcox v.

Commissioner of Correction, 162 Conn. App. 730, 740,

129 A.3d 796 (2016).

Under the procedural default doctrine, ‘‘a claimant

may not raise, in a collateral proceeding, claims that

he could have made at trial or on direct appeal in the

original proceeding,’’ unless he can prove that his

default by failure to do so should be excused. Hinds

v. Commissioner of Correction, 151 Conn. App. 837,

852, 97 A.3d 986 (2014), aff’d, 321 Conn. 56, 136 A.3d

596 (2016). ‘‘When a respondent seeks to raise an affirmative defense of procedural default, the rules of practice require that he or she must file a return to the

habeas petition ‘alleg[ing] any facts in support of any

claim of procedural default . . . or any other claim

that the petitioner is not entitled to relief.’ Practice

Book § 23-30 (b). ‘If the return alleges any defense or

claim that the petitioner is not entitled to relief, and

such allegations are not put in dispute by the petition,

the petitioner shall file a reply.’ Practice Book § 23-31

(a). ‘The reply shall allege any facts and assert any

cause and prejudice claimed to permit review of any

issue despite any claimed procedural default.’ Practice

Book § 23-31 (c).’’ Johnson v. Commissioner of Correction, 285 Conn. 556, 567, 941 A.2d 248 (2008).

‘‘The cause and prejudice standard [of reviewability]
is designed to prevent full review of issues in habeas

corpus proceedings that counsel did not raise at trial

or on appeal for reasons of tactics, [inadvertence] or

ignorance . . . . In order to satisfy this standard, the

[habeas] petitioner must demonstrate both good cause

for failing to raise a claim at trial or on direct appeal

and actual prejudice from the underlying impropriety.

. . . [T]he existence of cause for a procedural default

must ordinarily turn on whether the [petitioner] can

show that some objective factor external to the defense

impeded counsel’s efforts to comply with the [s]tate’s

procedural rule. . . .

‘‘With respect to the actual prejudice prong, [t]he

habeas petitioner must show not merely that the errors

at . . . trial created the possibility of prejudice, but

that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional

dimensions. . . . Such a showing of pervasive actual

prejudice can hardly be thought to constitute anything

other than a showing that the prisoner was denied fundamental fairness at trial. . . . [A] habeas petitioner’s

showing of ineffective assistance of counsel demonstrates such actual prejudice.’’ (Citations omitted;

emphasis in original; internal quotation marks omitted.)

Wilcox v. Commissioner of Correction, supra, 162

Conn. App. 740–41; see also Johnson v. Commissioner

of Correction, supra, 285 Conn. 567–68.

In the present case, to satisfy the cause and prejudice

standard, the petitioner first would have to establish

that trial counsel rendered ineffective assistance by not

raising a claim of prosecutorial impropriety at trial or

preserving the issue for appeal. To prove ineffective

assistance of counsel, the petitioner would have to

establish that there is a reasonable probability that the

outcome of the petitioner’s trial would have been different but for trial counsel’s error. See Davis v. Commissioner of Correction, supra, 319 Conn. 555. That is, the

petitioner would have to establish that had a claim of

prosecutorial impropriety been raised by trial counsel,

a court would have concluded that a prosecutorial

impropriety occurred and that it deprived him of his

right to a fair trial. See State v. Fauci, 282 Conn. 23,

32, 917 A.2d 978 (2007).

On the basis of our review of the record, we cannot

conclude that the habeas court erred in finding that the

petitioner’s prosecutorial impropriety claim was procedurally defaulted. As we discussed in part I A of this

opinion, the state presented ‘‘strong evidence that the

[petitioner] had participated in the robbery.’’ State v.

Arroyo, supra, 292 Conn. 575. Trial counsel thoroughly

cross-examined Perry concerning his motive to lie to

avoid a significantly longer sentence and additional convictions. The jury’s verdict further reveals that the jury,

at the very least, did not credit Perry’s testimony that

the petitioner possessed the firearm used in the robbery
or shot the victim. Accordingly, because the petitioner

failed to prove that trial counsel rendered ineffective

assistance by not raising a claim of prosecutorial impropriety before the trial court or by failing to preserve

this issue for appeal, he has failed to satisfy the cause

and prejudice standard.

Therefore, we conclude that the habeas court did

not abuse its discretion when it denied the petitioner’s

petition for certification to appeal as to his claim of

prosecutorial impropriety.

II

The petitioner next claims that the habeas court erroneously concluded that trial counsel did not render

ineffective assistance when he failed to consult with

experts about whether the tear gas found on the petitioner’s jacket was the result of a secondary transfer14

from the register and to call an expert to testify concerning that secondary transfer theory.15 The respondent

argues that the habeas court properly concluded that

trial counsel rendered effective assistance because trial

counsel testified that he consulted with several experts

about the secondary transfer theory, but none provided

an opinion that was helpful to the defense. We agree

with the respondent.

At the petitioner’s criminal trial, Dr. Jack Hubball, a

criminalist in the chemistry section of the state forensic

laboratory, testified that on one of the jackets officers

seized from the petitioner and Krick’s apartment he

located ‘‘two [reddish brown] droplet-like stains on the

upper left hand portion’’ of the jacket. Hubball tested

the chemical makeup of those droplets and determined

that they contained traces of a chemical compound

known as CS, which was the active ingredient in the

tear gas canister found near the victim’s body. Hubball

testified that he believed that the droplets were the

result of the chemical compound being sprayed directly

onto the jacket and were not the result of a secondary

transfer from another object.

At the habeas trial,the petitioner calledKamran Loghman, an expert on tear gas, and trial counsel as witnesses. Loghman did not dispute Hubball’s finding that

there was CS on the petitioner’s jacket and agreed that

CS was an active ingredient in the brand of tear gas

found near the victim’s body. Instead, Loghman opined

that because of the physical and chemical properties

of CS, it would not ‘‘cause any kind of shape on any

article of clothing’’ and ‘‘[i]t doesn’t discolor fabrics.’’

As a result, Loghman concluded that ‘‘something else

that got saturated and contaminated came into contact

with this pullover [jacket] and passed on the tear gas.’’

He acknowledged, however, that he could not determine when that secondary transfer occurred and that

the transfer could have happened inside the package

store.
Trial counsel testified that it was important to the

defense to neutralize the tear gas evidence because it

was the only physical evidence that placed the petitioner in the package store. As a result, he consulted

with several experts on tear gas, including Loghman.

Loghman, in particular, confirmed that the substance

on the jacket was CS and provided referrals to other

experts who might help him address the issues.

Although trial counsel did not recall asking Loghman

specifically about the secondary transfer theory,16 he

recalled asking other experts whether the CS on the

jacket was a smear or a droplet and ‘‘what opinion we

might get as to getting a contact transfer from a cash

register.’’ Trial counsel testified that none of these

experts rendered a positive or helpful opinion, and,

therefore, he decided not to call an expert witness to

rebut Hubball’s testimony.

The habeas court concluded that the petitioner failed

to establish that trial counsel rendered deficient performance by not calling an expert witness on tear gas

because trial counsel ‘‘made diligent efforts to locate

and consult with an expert such as Loghman . . . but

none [of the experts he contacted] were willing to provide the defense with useful information.’’17

‘‘Paramount to the effective assistance of counsel is

the obligation by the attorney to investigate all surrounding circumstances of the case and to explore all

avenues that may potentially lead to facts relevant to

the defense of the case.’’ Walton v. Commissioner of

Correction, 57 Conn. App. 511, 521, 749 A.2d 666, cert.

denied, 254 Conn. 913, 759 A.2d 509 (2000). ‘‘We are

mindful that, under certain circumstances, the failure

to use any expert can result in a determination that a

criminal defendant was denied the effective assistance

of counsel.’’ (Emphasis in original.) Peruccio v. Commissioner of Correction, 107 Conn. App. 66, 76, 943

A.2d 1143, cert. denied, 287 Conn. 920, 951 A.2d 569

(2008). Nevertheless, ‘‘the question of whether to call

an expert witness always is a strategic decision.’’

(Emphasis in original.) Michael T. v. Commissioner of

Correction, 319 Conn. 623, 636 n.7, 126 A.3d 558 (2015).

‘‘[S]trategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; [but] strategic choices made after

less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.’’

(Internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 680, 51 A.3d 948

(2012).

In the present case, the habeas court credited trial

counsel’s testimony that he consulted with multiple

experts about the possibility that the CS on the petitioner’s jacket was the result of a secondary transfer from

the register, but none of those experts provided opin-
ions that were helpful to the defense. As a result, trial

counsel made a reasonable tactical decision not to

retain an expert witness for trial. Therefore, we cannot

conclude that the habeas court erred in denying the

petitioner’s claim.

The petitioner nevertheless contends that ‘‘[t]he

habeas court’s findings regarding [trial counsel’s]

efforts were clearly erroneous’’ because ‘‘[trial counsel]

never asked the critical question about secondary transfer’’ when speaking to potential expert witnesses.

Instead, the petitioner states that trial counsel erroneously ‘‘focused on whether the marks were ‘droplets

or smears,’ ’’ which Loghman testified was irrelevant

because CS does not ‘‘cause any kind of shape on any

article of clothing’’ and ‘‘[i]t doesn’t discolor fabrics.’’

As previously stated, however, trial counsel testified

at the habeas trial that when speaking with experts on

tear gas he asked the experts both whether the CS on

the jacket was a smear or a droplet and ‘‘what opinion

we might get as to getting a contact transfer from a

cash register.’’ Although the petitioner’s expert witness

might contend that the issue of whether the stains were

smears or droplets is a red herring, the critical aspect

of trial counsel’s testimony was that he asked experts

about the secondary transfer theory. None of these

experts was willing to give him a favorable opinion on

that theory. Accordingly, we cannot conclude that the

habeas court’s finding that trial counsel made diligent

efforts to locate an expert on the secondary transfer

issue was clearly erroneous.

Therefore, we conclude that the habeas court did not

abuse its discretion in denying the petitioner’s petition

for certification to appeal as to his claim of ineffective

assistance of counsel that was based on trial counsel’s

failure to call a tear gas expert at trial.

III

The petitioner’s final claim is that the habeas court

erroneously concluded that trial counsel did not render

ineffective assistance when he ‘‘failed to introduce photographs or other evidence of the physical layout of

[Krick’s] apartment’’ because they would have ‘‘buttress[ed] the credibility of the petitioner’s alibi witness,’’

Marcel Bartelle. The respondent argues that the habeas

court properly rejected the petitioner’s claim of ineffective assistance of counsel because trial counsel made

a reasonable tactical decision not to introduce those

photographs and potentially weaken the alibi witness’

testimony. We agree with the respondent.

The following additional facts are relevant to this

claim. In his first and second written statements to the

police, the petitioner stated that he was home with

Krick on the evening of March 28, 2001, the night of

the robbery. He admitted in both statements, however,

that Perry came to Krick’s apartment at one point that
night with a black man, identified at the habeas trial

as Darcel Moody, and the register, which he helped

Perry carry into Krick’s apartment, open with a screwdriver, and hide behind the dresser. In his third written

statement, the petitioner claimed to have been home

the entire evening of March 28, 2001, with Krick and

Bartelle. The petitioner continued to acknowledge that

Perry came by his apartment with Moody and the register after the robbery and that he helped Perry carry in,

open, and hide the register.

At the petitioner’s criminal trial, Bartelle testified that

he went to the petitioner and Krick’s apartment after

work, between 6:30 p.m. and 7 p.m. Bartelle testified

that when he arrived the petitioner was alone and that

they remained alone until approximately 9:30 p.m. when

Perry arrived. The reason Perry came over, Bartelle

explained, was that he wanted to purchase some crack

cocaine. Bartelle testified that Perry remained briefly

at the apartment to find out what Bartelle wanted to

purchase and to pick it up. Bartelle stated that on the

two brief occasions Perry was at Krick’s apartment,

Perry was alone, and that he never saw Perry carry

anything into the apartment, aside from the crack

cocaine. Bartelle stated that Krick returned home at

approximately 11 p.m. and asked him to leave, which

he did. Bartelle maintained that between the time he

arrived at the apartment and the time he left the apartmentthe petitioner neverleft his presence in the kitchen

for more than two or three minutes. Bartelle testified

that, as a result, if the petitioner had been prying open

a register while he was at the apartment, he would have

been aware of it, but he did not see or hearthe petitioner

carry in or pry open a register.

At the habeas trial, the petitioner asked trial counsel

why he did not introduce photographs of Krick’s apartment for the purpose of explaining why Bartelle might

not have seen Perry come to the apartment with Moody

if Moody had remained standing at the front door to

the apartment. Trial counsel responded that he did not

recall why he did not introduce photographs for that

particular purpose.18 The habeas court concluded that

trial counsel did notrenderineffective assistance by not

introducing evidence of the physical layout of Krick’s

apartment to explain why Bartelle did not see anyone

with Perry. The habeas court reasoned that ‘‘even an

innocuous error by Bartelle as to who arrived at Krick’s

condominium when, and with whom, could reflect

badly on Bartelle as a witness. Rather than appear to

concede the likelihood that Perry had a companion

when he came to Krick’s place, [trial counsel] elected

to present the alibi defense contained in Bartelle’s version of these events unsullied by inconsistency or

mistake.’’

We agree with the habeas court that the petitioner

failed to establish that trial counselrendered ineffective
assistance by not introducing evidence of the physical

layout of Krick’s apartment to explain why Bartelle did

not see Moody. We have recognized repeatedly that

because of the difficulties inherent in evaluating an

attorney’s performance in hindsight, ‘‘a court must

indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional

assistance; that is, the [petitioner] must overcome the

presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

. . . [C]ounsel is strongly presumed to have rendered

adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment.’’

(Internal quotation marks omitted.) Henderson v. Commissioner of Correction, 104 Conn. App. 557, 572, 935

A.2d 162 (2007), cert. denied, 285 Conn. 911, 943 A.2d

470 (2008). The petitioner failed to overcome this presumption in the present case. Bartelle’s testimony was

inconsistent with the petitioner’s statements in several

respects. We agree with the habeas court that it was

a reasonable tactical decision for trial counsel not to

emphasize further the inconsistency concerning

Moody’s presence at Krick’s apartment on March 28,

2001 by introducing evidence of the apartment’s layout

in an attempt to explain why Bartelle might not have

seen Moody.

Therefore, we conclude that the habeas court did not

abuse its discretion in denying the petitioner’s petition

for certification to appeal as to his claim of ineffective

assistance of counsel that was based on trial counsel’s

failure to introduce evidence of the layout of Krick’s

apartment to explain why Bartelle might not have

seen Moody.

The appeal is dismissed.

In this opinion the other judges concurred.

1 Police officers, with the assistance of the petitioner, subsequently recovered the firearm from Cruz.

2

In his first two written statements to the police, the petitioner used an

alias, Juan Roman.

3 The petitioner’s alibi witness at trial, Marcel Bartelle, is married.

4 With respect to the charge of murder, the state alleged that ‘‘Reynaldo

Arroyo with intent to cause the death of another person did cause the death

of such person, namely, Edmund Caruso, by use of a firearm . . . .’’ With

respect to the charge of robbery in the first degree, the state alleged that

the petitioner ‘‘did commit a robbery of Edmund Caruso, and in the course

of the commission of the robbery, Reynaldo Arroyo was armed with a deadly

weapon, to wit: a nine millimeter pistol . . . .’’

Conversely, with respect to the charge of felony murder, the state alleged

that ‘‘Reynaldo Arroyo and Richmond Perry did commit a robbery [of Mike’s

Package Store] [a]nd in the course of and in furtherance of such crime,

Reynaldo Arroyo or another participant, to wit, Richmond Perry, did cause

the death of a person other than one of the participants, namely, Edmund

Caruso . . . .’’ With respect to the charge of conspiracy to commit robbery,

the state alleged that ‘‘Reynaldo Arroyo with intent that conduct constituting

[robbery in the first degree] be performed . . . did agree with another

person, namely, Richard Perry, to engage in or cause the performance of

such conduct . . . . In pursuance of such conspiracy, Reynaldo Arroyo and

Richmond Perry committed one or more overt acts . . . .’’ The overt acts

listed all alleged joint conduct by the petitioner and Perry, e.g., ‘‘Reynaldo

Arroyo and Richmond Perry did enter such store armed with a weapon, to
wit, a nine millimeter handgun.’’

5 The prosecutor also explained that Perry had given several statements

and that, ‘‘in essence, he admits in at least one of his statements that was

given April 10th that he was at the robbery where Mr. Caruso was killed.

And he admits that he was at the package store during the robbery and that

Mr. Caruso was killed as a result of that.’’ In each of the statements provided

by Perry, however, he implicated someone other than himself, including the

petitioner, as the shooter.

6

In Perry’s last written statement, he admitted to being present for the

robbery, but he identified the petitioner as the instigator of the robbery and

the shooter.

7 The violation of probation was unrelated to the robbery information.

8 For example, trial counsel engaged in the following colloquies with Perry

concerning his motive to testify to obtain a lower sentence:

‘‘[Trial Counsel]: So, you’re sitting here today telling us that you have

pled guilty to robbery [in the] first degree, felony murder, and agree to a

sentence of forty-five years, which is no deal even though you can get 180,

but you didn’t commit a robbery, right? That’s what you’re telling us?

‘‘[Perry]: I was in the store with [the petitioner]; that’s what made me

guilty for pushing the dude that [the petitioner] shot the dude, so that’s why

I’m pleading guilty.

***

‘‘[Trial Counsel]: Okay. How many lies have we got so far in this statement,

Mr. Perry?

‘‘[Perry]: I don’t know. I told you in four statements I lied about it. But

it’s no reason for me to lie about it now because what’s the reason for me

to lie about it? I got forty-five years on mine, so what’s the reason for me

to lie about it?

‘‘[Trial Counsel]: Forty-five years when you could get 185, Mr. Perry—

‘‘[Perry]: What is forty-five . . .

‘‘[Trial Counsel]: —in many people’s minds.

‘‘[Perry]: It’s no reason for me to lie about it . . . .

‘‘[Trial Counsel]: And that’s the point, you didn’t help him do anything

because you were innocent, you are completely innocent of anything—

‘‘[Perry]: Nn.

‘‘[Trial Counsel]: —in the store, except pushing that old man with your

hands, like this . . . and driving the car, I guess, back, is that it, back to

the apartment, that’s what you’re guilty of, right?

‘‘[Perry]: Yep.

‘‘[Trial Counsel]: And that’s why you plead to a set, to two offenses for

which you’re getting forty-five years for pushing a man and driving a car

back after a committed crime that you didn’t even know it was going to

happen, right?

‘‘[Perry]: Yep.

‘‘[Trial Counsel]: But of course we know it has nothing to do with 185

years?

‘‘[Perry]: It was always forty-five years on the table.

***

‘‘[Trial Counsel]: And of course, you wouldn’t lie in court, is that what

you’re trying to get us to understand?

‘‘[Perry]: . . . I wouldn’t be on the stand and just come on the stand on

my own just to tell some lies on the statement.

‘‘[Trial Counsel]: You’re on the stand.

‘‘[Perry]: I mean on the stand.

‘‘[Trial Counsel]: Well, you’re getting, you’re getting a plea bargain,

aren’t you?

‘‘[Perry]: It’s not a plea bargain. It always been forty-five years on the

table, so.

‘‘[Trial Counsel]: And how do you think it got to be the forty-five years

on the table, that it just appeared for this type of crime that has been

committed. The state just out of the goodness of their hearts offered you

forty-five years for nothing?

‘‘[Perry]: Well, you have to ask my lawyer that. He came to me with that,

so. You have to ask him that.

***

‘‘[Trial Counsel]: And you are not testifying here today that you didn’t

know that if you reneged on your promise and did not testify as set out for

you, that there would be no agreed recommendation and the state would

be asking for a much higher sentence at the time you got sentenced. You’re

not testifying to that are you?
‘‘[Perry]: Once again, I’ve been had forty-five years on the table, and that’s

all I’ve been hearing.’’

9

In relevant part, the following exchange occurred while trial counsel

presented Perry with his plea hearing transcript:

‘‘[Trial Counsel]: Let me see if this refreshes you of your recollection.

This part right here, read that. What you had to do in order to get the benefit

of this, the offer from the prosecutor of forty-five years, is to testify in a

truthful manner only regarding [the petitioner’s] participation in the robbery,

that’s correct, isn’t it?

‘‘[Perry]: She added on to it, but I knew forty-five years was on the table.

‘‘[Trial Counsel]: But you agree that’s what was said, right?

‘‘[Perry]: That’s on the paper.

‘‘[Trial Counsel]: Okay. And that if you should renege on that promise

and decide not to do that, there is no agreed recommendation and the state

would ask for a much higher sentence at that time, isn’t that correct?

‘‘[Perry]: I, she never told me that part.

‘‘[Trial Counsel]: But it was said, wasn’t it?

‘‘[Perry]: No, it was not said.

‘‘[Trial Counsel]: Well, take a look.

‘‘[Perry]: It’s on the paper, but it was never said.

‘‘[Trial Counsel]: Well, you were standing in open court, weren’t you?

‘‘[Perry]: That was never said to me.

‘‘[Trial Counsel]: I see. But it is on the paper, right?

‘‘[Perry]: It’s on paper. But no matter what, I have forty-five years on the

table, and I was gonna take the stand anyway.’’

10 Trial counsel argued in relevant part: ‘‘And when I presented him with

a transcript, the transcript of his plea hearing where he pled guilty and had

him read it, read where he, where the state’s attorney indicated that he was

getting this sentence to testify truthfully but against the defendant Arroyo

only. He got a plea bargain deal to testify against Reynaldo Arroyo . . . .’’

11 The petitioner also argued in his reply that the procedural default was

cured by the ineffective assistance of appellate counsel in failing to raise a

claim of prosecutorial impropriety on appeal. At the conclusion of the habeas

trial, however, the petitioner withdrew his claim of ineffective assistance

of appellate counsel.

12 See State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86 (allowing the

substantive use of prior written inconsistent statements, signed by declarant,

who has personal knowledge of facts stated, when declarant testifies at trial

and is subject to cross-examination), cert. denied, 479 U.S. 994, 107 S. Ct.

597, 93 L. Ed. 2d 598 (1986); see also Conn. Code Evid. § 8-5 (1).

13 Police officers interviewed the petitioner after Smith provided a written

statement concerning his conversations with the petitioner about the robbery to see if the petitioner thought the statement was accurate. The petitioner told the police officers that it was accurate except that he did not

tell Smith that he was personally involved in the robbery. Instead, he stated

that during his conversation with Smith, he was ‘‘imagining’’ what occurred

inside the package store during the robbery and that that must have confused

Smith about his involvement in the robbery. (Emphasis added.)

14 The parties and the witnesses in the present case have used both the

terms ‘‘secondary transfer’’ and ‘‘contact transfer’’ to describe the phenomenon of tear gas transferring from the register onto the petitioner’s jacket.

For consistency, we referto this phenomenon as ‘‘secondary transfer’’ unless

we quote a witness’ testimony.

15 The petitioner also claims that the habeas court ‘‘incorrectly precluded

the petitioner from recalling [his habeas expert witness] [Kamran] Loghman

to rebut’’ trial counsel’s testimony that ‘‘he had consulted with Loghman

prior to the criminal trial.’’ The respondent argues that the petitioner’s claim

is unreviewable because he did not raise it in his petition for certification

to appeal. We agree with the respondent.

‘‘This court has determined that a petitioner cannot demonstrate that the

habeas court abused its discretion in denying a petition for certification to

appeal if the issue that the petitioner later raises on appeal was never

presented to, or decided by, the habeas court. . . . Under such circumstances, a review of the petitioner’s claims would amount to an ambuscade

of the [habeas] judge.’’ (Internal quotation marks omitted.) Tutson v. Commissioner of Correction, 144 Conn. App. 203, 217, 72 A.3d 1162, cert. denied,

310 Conn. 928, 78 A.3d 145 (2013).

Neither the petition for certification to appeal nor the petitioner’s application for a waiver of fees, costs and expenses include an evidentiary claim

that the court erred in precluding him from recalling Loghman to testify as
to whether trial counsel contacted him. In his petition for certification to

appeal, the petitioner listed five grounds, only one of which relates to the

expert witness issue: ‘‘5. Whether the court erred in denying the petition

based on its finding that trial counsel was not ineffective for failing to call

a tear gas expert?’’ The language in this fifth ground for appeal is insufficient

to raise distinctly, and thereby preserve, the petitioner’s evidentiary claim.

See Foote v. Commissioner of Correction, 151 Conn. App. 559, 571, 96 A.3d

587 (Keller, J., concurring) (‘‘well settled in our decisional law is that a

petitioner is unable to demonstrate that a habeas court abused its discretion

in denying a petition for certification to appeal on the basis of questions

that were not raised distinctly before the habeas court at the time that it

considered the petition for certification to appeal’’), cert. denied, 314 Conn.

929, 102 A.3d 709 (2014); accord Melendez v. Commissioner of Correction,

141 Conn. App. 836, 841, 62 A.3d 629, cert. denied, 310 Conn. 921, 77 A.3d

143 (2013); Campbell v. Commissioner of Correction, 132 Conn. App. 263,

267, 31 A.3d 1182 (2011). Accordingly, we decline to review it for the first

time on appeal.

16 Trial counsel explained that if he had discussed the secondary transfer

theory with Loghman, he would have noted that discussion in his notes,

which he did not.

17 In its memorandum of decision, the court found that trial counsel ‘‘consulted with Loghman, ‘although Mr. Loghman forgot about that consultation.’ ’’ (Emphasis in original.) The petitioner claims that ‘‘[t]he habeas court

committed clear error when it concluded that [trial counsel] had consulted

with Loghman ‘although Loghman forgot about the consultation.’ ’’ We disagree with the petitioner to the extent that he argues that the habeas court’s

finding that trial counsel consulted with Loghman was clearly erroneous

because trial counsel testified that he consulted with Loghman.

We agree with the petitioner, however, that the habeas court’s finding

that ‘‘Loghman forgot about the consultation’’ was clearly erroneous. At the

habeas trial, the petitioner first called Loghman to testify. After Loghman’s

testimony, the petitioner called trial counsel, who unexpectedly testified

that Loghman was one of the experts he consulted. The next day, the

petitioner sought to recall Loghman telephonically as a witness, even though

he had been released as a witness and left the state. Habeas counsel represented that Loghman ‘‘had no recollection of talking to [trial counsel]’’ and

that Loghman’s firm had a strict policy about not having ‘‘casual conversations without being retained.’’ The habeas court did not permit habeas

counsel, however,to recall Loghman. See footnote 15 of this opinion. Accordingly, the habeas court’s finding that Loghman forgot about his conversation

with trial counsel is not supported by any evidence in the record. See State

v. Duntz, 223 Conn. 207, 236, 613 A.2d 224 (1992) (statements made by

attorneys not facts in evidence; finder of fact may not properly consider

them as evidence); Tevolini v. Tevolini, 66 Conn. App. 16, 26, 783 A.2d 1157

(2001) (‘‘representations of counsel are not, legally speaking, evidence’’

[internal quotation marks omitted]); see also Anderson v. Commissioner

of Correction, 114 Conn. App. 778, 784, 971 A.2d 766 (habeas court’s factual

findings reviewed under clearly erroneous standard), cert. denied, 293 Conn.

915, 979 A.2d 488 (2009).

18 Trial counsel did introduce into evidence several photographs of Krick’s

apartment at trial for other purposes.