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OREMA TAFT v. COMMISSIONER

OF CORRECTION

(AC 36118)

Lavine, Prescott and Elgo, Js.

Argued May 12—officially released September 8, 2015

(Appeal from Superior Court, judicial district of

Tolland, Kwak, J.)

Mark M. Rembish, assigned counsel, for the appellant (petitioner).

Linda Currie-Zeffiro, senior assistant state’s attorney, with whom, on the brief, was John C. Smriga,

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

PRESCOTT, J. The petitioner, Orema Taft, appeals

following the denial of his petition for certification to

appeal from the judgment of the habeas court denying

his amended petition for a writ of habeas corpus. On

appeal, the petitioner claims that the court abused its

discretion by denying his petition for certification to

appeal, and improperly rejected his claims that his trial

counsel provided ineffective assistance in three ways:

(1) failing to adequately investigate the state’s offer of

a reward and the prior testimony of witnesses at the

trial of his codefendant; (2) failing to cross-examine

witnesses about a witness’ recantation of a prior statement inculpating the petitioner, and about the state’s

offer of a reward; and (3) allegedly conceding during

closing arguments that the petitioner was involved in

the crime.1 We agree with the petitioner that his claim

that his trial counsel rendered deficient performance

by failing to conduct an adequate investigation and by

relying solely on the opinion of an attorney representing

a codefendant regarding the significance, or lack of

significance, of evidence admitted at the trial of the

codefendant, raises an issue that is debatable amongst

jurists of reason. Nevertheless, on the basis of the

record, we conclude that the habeas court did not abuse

its discretion by denying the petition for certification to

appeal with respect to this claim because the petitioner

failed to demonstrate that a debatable issue concerning

prejudice exists. As to the remainder of the petitioner’s

claims, we also conclude that that habeas court did not

abuse its discretion by denying certification to appeal.

Accordingly, we dismiss the appeal.

The following procedural history and facts, as found

by the habeas court and as stated by our Supreme Court

in State v. Taft, 306 Conn. 749, 51 A.3d 988 (2012), are

relevant to this appeal. ‘‘On September 28, 2001, shortly

before 3 a.m., the victim, Zoltan Kiss, was shot and

killed in his car in the area of 1185 Pembroke Street in

Bridgeport. Just prior to the shooting, the victim parked

his car across from 1185 Pembroke Street, exited the

vehicle, approached some individuals on the street to

seek change for a $100 bill and, thereafter, approached

a gate leading to an alley next to 1185 Pembroke Street

(gate). Shortly thereafter, a group of people, including

the [petitioner], exited from behind the gate and followed the victim as he returned to his car. When the

victim reached his car, at least one of the pursuers,

Miguel Zapata, began firing a handgun at the victim.

Additionally, before the gunfire, one witness heard

someone in the group say, ‘Let’s get this mother

fucker.’ ’’ (Footnote omitted.) Id., 751–52.

Both Zapata and the petitioner were eventually

arrested and charged with the victim’s murder. Zapata

and the petitioner were tried separately, with Zapata’s

trial occurring prior to the petitioner’s trial. Zapata was
represented byAttorney Frank O’Reilly during his criminal trial. The prosecutor for both criminal trials was C.

Robert Satti, Jr. During the petitioner’s trial, the state

offered the testimony of five witnesses,2

in addition

to that of the police officers and detectives. ‘‘[T]wo

witnesses, A and B, testified that they had seen the

[petitioner] in the area behind the gate with a number

of other individuals [prior to the shooting]. A and B

also testified that they had seen guns behind the gate

where the [petitioner] and his companions were

located. Both A and B recounted that they had seen

the victim park his car across the street from the gate

and approach the gate. A testified that she had seen

the victim interact with someone behind the gate and

then begin to return to his car. Shortly thereafter, A

saw the group behind the gate chase after the victim,

and A further recounted that she had seen both Zapata

and the [petitioner] carrying guns as they pursued the

victim to his car. B also testified that she had heard

someone say, ‘Let’s get this mother fucker’ before gunfire erupted. Both A and B then testified that they had

heard shouting and gunfire, and had seen the muzzle

flashes as the guns were fired at the victim.

‘‘The state then presented the testimony of another

witness, C, who, at the time of the shooting lived in a

third floor apartment of a nearby building. C stated

that, at approximately 2 or 3 a.m., on September 28,

2001, she had heard gunfire coming from the street

located in front of her apartment. When she went to

investigate the noise, C saw four people—the [petitioner], Zapata, Luisa Bermudez and A—standing in

front of the door of a car on the street. C further

recounted that she had seen the muzzle flashes as the

guns were fired at the victim, and she had heard the

victim screaming. She also stated that, from her perspective, she could only see Zapata holding a gun and

that, after the shooting stopped, the group ran from the

scene.’’ (Footnotes omitted.) Id., 753–54.

In addition to the testimony of A, B, and C, ‘‘the state

presented testimony from several individuals who had

had contact with the [petitioner] while the charges in

the present case were pending. First, D testified that

he was incarcerated in the same prison as the [petitioner], and that the [petitioner] had told him that he

and Zapata had shot a ‘dude’ in a Honda seven times

with a .45 caliber gun. D then recounted that the [petitioner] had told him that he and Zapata had chased

afterthe victim because they wanted to take the victim’s

jewelry. Then, the state presented the testimony of [Germaine O’Grinc],3 who testified that, during one of his

court appearances in connection with a felony charge,

he was in the ‘bullpen lockup’ of the courthouse with

the [petitioner] and Zapata. [O’Grinc] recounted that

Zapata had told him that he was in court because he and

the [petitioner] had shot a person in his car. [O’Grinc]

further testified that the [petitioner] had confirmed or
‘vouched for’ Zapata’s statements and had nodded in

agreement while Zapata was talking to [O’Grinc].’’

(Footnote added.) Id., 755.

On September 19, 2007, following a jury trial, the

petitioner was convicted of one count of murder in

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

count of conspiracy to commit murder in violation of

General Statutes §§ 53a-48 (a) and 53a-54a (a). The trial

court sentenced him to a total effective term of fortyfive years incarceration. At all relevant times during

the criminal trial court proceedings, the petitioner was

represented by Attorney Erroll Skyers.

The petitionerfiled a direct appeal from the judgment

of conviction, raising, among other things, a claim of

ineffective assistance of counsel resulting from his trial

counsel’s failure to cross-examine witnesses about the

reward and his failure to cross-examine a witness about

a prior recantation of a statement inculpating the petitioner. Id., 767–69. Our Supreme Court declined, however, to address the merits of the petitioner’s ineffective

assistance of counsel claim. Id., 769.

On July 8, 2010, the petitioner filed a petition for a

writ of habeas corpus, asserting that he was denied his

right to effective assistance of counsel. He amended

his petition twice, with the second amended petition

being filed on December 10, 2012. Following a habeas

trial, the court issued its memorandum of decision on

August 27, 2013, denying the petition in its entirety, and

finding that the petitioner had failed to prove that he

was denied effective assistance of counsel under the

two-pronged test set forth in Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). On August 30, 2013, the petitionerfiled a petition

for certification to appeal, which the habeas court

denied on September 6, 2013. This appeal followed.

Additional facts relevant to the petitioner’s appeal will

be set forth as necessary.

We begin by setting forth the standard of review

that guides our resolution of the petitioner’s 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.’’ (Emphasis in original; internal quotation marks

omitted.) Tutson v. Commissioner of Correction, 144

Conn. App. 203, 214–15, 72 A.3d 1162, cert. denied, 310

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

I

To decide if the habeas court abused its discretion

by denying certification to appeal, we must look to the

merits of the underlying claim of ineffective assistance

of counsel. ‘‘[I]t is well established that [a] criminal

defendant is constitutionally entitled to adequate and

effective assistance of counsel at all critical stages of

criminal proceedings. Strickland v. Washington,

[supra, 466 U.S. 686]. This right arises under the sixth

and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . As enunciated in [Strickland], this court has

stated: It is axiomatic that the right to counsel is the

right to the effective assistance of counsel.’’ (Internal

quotation marks omitted.) Gaines v. Commissioner of

Correction, 306 Conn. 664, 677–78, 51 A.3d 948 (2012).

To establish ineffective assistance of counsel under

the Strickland standard, ‘‘the claim must be supported

by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness,

and (2) counsel’s deficient performance prejudiced the

defense because there was a reasonable probability

that the outcome of the proceedings would have been

different had it not been for the deficient performance.

. . . Because both prongs of Strickland must be demonstrated for the petitioner to prevail, failure to prove

either prong is fatal to an ineffective assistance claim.’’

(Citations omitted; internal quotation marks omitted.)

Hall v. Commissioner of Correction, 152 Conn. App.

601, 608, 99 A.3d 1200, cert. denied, 314 Conn. 950, 103

A.3d 979 (2014).

A

The petitioner first claims that the habeas court

improperly denied his claim of ineffective assistance of

counsel because Skyers failed to adequately investigate

the facts of his case. Specifically, the petitioner asserts

that Skyers failed to investigate or discover (1) the

state’s offer of a reward; (2) the testimony of witnesses

at Zapata’s trial concerning the reward offered by the
state; and (3) O’Grinc’s testimony at Zapata’s trial, during which O’Grinc recanted a statement inculpating the

petitioner that he previously made to the police. Underlying all three assertions is the petitioner’s predicate

claim that it is deficient performance for an attorney

to rely solely on the representations of a codefendant’s

counsel to decide the scope of an appropriate investigation into his client’s case.

The following additional facts are relevant to this

claim. Prior to the petitioner’s arrest, due to the stalled

nature of the investigation of the victim’s murder, the

governor signed an offer of a $50,000 reward for information leading to the ‘‘arrest and conviction’’ of the

guilty parties. A, B, and C knew about the reward and

each received a portion of the reward money after the

petitioner’s conviction. All three witnesses testified at

Zapata’s trial, which occurred prior to the petitioner’s

trial, and O’Reilly cross-examined all three witnesses

about the reward. O’Reilly also cross-examined O’Grinc

about a statement inculpating the petitioner and Zapata,

which O’Grinc had previously made to the police. On

cross-examination, at Zapata’s trial, O’Grinc recanted

his prior statement inculpating the petitioner. State v.

Zapata, 119 Conn. App. 660, 667–68, 989 A.2d 626, cert.

denied, 296 Conn. 906, 992 A.2d 1136 (2010).

In preparation for the petitioner’s trial, Skyers did not

attend Zapata’s trial. Instead, Skyers spoke to O’Reilly

about what had occurred at Zapata’s trial and discussed

with him who the important witnesses were. Relying

on O’Reilly’s representations, Skyers did not order all

of the transcripts from Zapata’s trial, including any portion of O’Grinc’s testimony. Skyers did request and read

the trial transcripts of the testimony of A, B, and C.

At the petitioner’s criminal trial, Skyers did not crossexamine any of the witnesses about the reward and did

not confront O’Grinc about his recantation. O’Grinc

testified against the petitioner in accordance with his

prior statement inculpating the petitioner by stating

that while in lockup with the petitioner and Zapata,

Zapata admitted to his and the petitioner’s involvement

in the murder, and the petitioner nodded in agreement.

The habeas court found that Skyers ‘‘was aware of

and investigated the reward. He spoke with [O’Reilly]

and reviewed relevant portions of the codefendant’s

criminal trial transcripts. After these efforts, [Skyers]

made an informed tactical decision to not pursue a line

of questioning that had already proved to be unfruitful

in [Zapata’s] trial.’’ The habeas court, however, did not

make a specific finding regarding precisely when Skyers

became aware of the reward.4

Inadequate pretrial investigation can amount to deficient performance, satisfying prong one of Strickland,

as ‘‘[c]onstitutionally adequate assistance of counsel

includes competent pretrial investigation.’’ Siemon v.

Stoughton, 184 Conn. 547, 554, 440 A.2d 210 (1981).
Although we acknowledge that ‘‘counsel need not track

down each and every lead or personally investigate

every evidentiary possibility before choosing a defense

and developing it’’; (internal quotation marks omitted)

Gaines v. Commissioner of Correction, supra, 306

Conn. 683; ‘‘[e]ffective assistance of counsel imposes

an obligation [on] 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.’’ (Internal quotation marks

omitted.) Id., 680. ‘‘In other words, counsel has a duty to

make reasonable investigations orto make a reasonable

decision that makes particular investigations unnecessary.’’ (Internal quotation marks omitted.) Id.

If counsel makes strategic decisions after thorough

investigation, those decisions ‘‘are virtually unchallengeable . . . .’’ (Internal quotation marks omitted.)

Id.. In particular, ‘‘our habeas corpus jurisprudence

reveals several scenarios in which courts will not second-guess defense counsel’s decision not to investigate

or call certain witnesses or to investigate potential

defenses, such as when: (1) counsel learns of the substance of the witness’ testimony and determines that

calling that witness is unnecessary or potentially harmful to the case; (2) the defendant provides some information, but omits any reference to a specific individual

who is later determined to have exculpatory evidence

such that counsel could not reasonably have been

expected to have discovered that witness without having received further information from his client; or (3)

the petitioner fails to present, at the habeas hearing,

evidence or the testimony of witnesses that he argues

counsel reasonably should have discovered during the

pretrial investigation.’’ (Footnotes omitted.) Id., 681–82;

see e.g., Norton v. Commissioner of Correction, 132

Conn. App. 850, 859, 33 A.3d 819 (2012) (‘‘[T]he petitioner has not presented us with any beneficial testimony from these witnesses that would demonstrate

how they would have assisted in his case had trial

counsel interviewed them. He makes only the bare allegation,’’ which is not sufficient to show prejudice.), cert.

denied, 303 Conn. 936, 36 A.3d 695 (2012).

Not every failure to investigate, however, can be dismissed as trial strategy. Here, the petitioner’s claim of

inadequate investigation is premised on the underlying

assertion that Skyers relied solely on the representations of O’Reilly when investigating what occurred at

Zapata’s trial and deciding what evidence from Zapata’s

trial was important to the petitioner’s case.

We agree for the following reasons that, under the

circumstances of this case, Skyer’s sole reliance on the

representations and opinions of O’Reilly regarding what

evidence from Zapata’s trial would be important for the

defense of the petitioner raises a meritorious claim of

deficient performance.5 First, O’Reilly would not have
been privy to privileged conversations between Skyers

and the petitioner. Knowledge ofthose communications

would be significant in order to analyze the relative

importance of the evidence and testimony presented at

Zapata’s trial. Moreover, O’Reilly had no duty of loyalty

to the petitioner to exercise care and appropriate professional judgment in assessing the importance to the

petitioner of the evidence in Zapata’s trial. Indeed, in

these circumstances, it may well be that because Zapata

already had been convicted at his trial, Zapata might

have had personal interests that significantly diverged

from the interests of the petitioner. Simply put, the

petitioner is entitled to counsel who has not abdicated

to another his or her duty to make an informed and

independent assessment of the importance of evidence

to the client’s case.6

Our conclusion is supported by Rios v. Rocha, 299

F.3d 796 (9th Cir. 2002). In Rios, the United States

Court of Appeals for the Ninth Circuit held that the trial

attorney failed to adequately investigate the defendant’s

case because he relied solely on the investigation

reports and trial materials prepared by the attorney for

the codefendant.7

Id., 807. The trial attorney relied solely

on the investigative efforts of the codefendant’s attorney in locating and interviewing the witnesses; he personally interviewed only one of the fifteen witnesses.

Id., 806. In reversing the District Court’s conclusion

that the investigation was constitutionally adequate, the

United States Court of Appeals for the Ninth Circuit

held that it is ‘‘unreasonable for [an attorney] to rely

solely on the investigation performed for a co-defendant, because the co-defendant’s interests in the case

might well conflict with [the defendant’s] own. [The

codefendant’s attorney] testified, for example, that he

was looking for information to exculpate [the codefendant], not [the defendant].’’ Id., 808. In other words,

reliance on the investigation of a codefendant’s attorney

is not a substitute for proper investigation. Thus, in

Rios, it was deficient performance for the trial attorney

not to conduct further investigation before deciding to

‘‘abandon a potentially meritorious defense . . . .’’ Id.

In a related context, federal appeals courts have also

concluded that it is deficient performance for a defendant’s counsel to rely solely on a prosecutor’s investigation into the facts. For example, in Alcala v. Woodford,

334 F.3d 862, 891–92 (9th Cir. 2003), the United States

Court of Appeals for the Ninth Circuit held that there

is deficient performance if trial counsel relies solely on

the investigation of the prosecution, stating that ‘‘trial

counsel’s reliance on the prosecution’s investigation is

no more reasonable than the reliance on a co-defendant’s investigation in Rios.’’ The United States Court

of Appeals for the Eleventh Circuit similarly has held

that it is deficient performance for trial counsel to rely

solely on the prosecutor’s investigations, as trial counsel ‘‘could not have made an informed tactical decision’’
to refrain from calling a medical expert witness. Holsomback v. White, 133 F.3d 1382, 1387–88 (11th Cir.

1998) (‘‘[I]t appears from the record that counsel preferred simply to rely on the prosecutor’s references to

the lack of physical evidence as the sole source of

information on the subject. . . . Having conducted no

investigation into the significance of the lack of medical

evidence that [the victim] had been sexually abused,

however, [the defendant’s] counsel could not have

made an informed tactical decision . . . . In these circumstances, we cannot say that counsel’s decision not

even to contact the physicians as part of his pre-trial

investigation was professionally reasonable.’’ [Citation

omitted; internal quotation marks omitted.]).

Although there are no Connecticut cases on point,

the decisions of the Ninth and Eleventh Circuits are

instructive in defining what it means for an attorney to

conduct an investigation so as to be able to make an

informed strategic decision.8 Reliance solely on a codefendant’s attorney is not enough.9

For similar reasons, courts have held, or at least

intimated, that counsel also has a duty to request and

review the trial transcripts from a codefendant’s separate trial that occurred prior to the defendant’s trial.10

Both the United States Courts of Appeal for the Fifth

and the Eighth Circuits have held that defense counsel’s

failure to review the codefendant’s trial transcripts constitutes deficient performance. See Owens v. Dormire,

198 F.3d 679, 682 (8th Cir. 1999) (‘‘[w]e concede that

trial counsel’s failure to read a co-defendant’s trial transcripts may constitute deficient performance under

Strickland’’), cert. denied, 530 U.S. 1265, 120 S. Ct. 2725,

147 L. Ed. 2d 988 (2000); Westley v. Johnson, 83 F.3d

714, 721 (5th Cir. 1996)(‘‘We are persuaded that counsel

was deficient in not at least reviewing the transcripts

of [the codefendant’s] trial. A reasonable counsel would

have reviewed the testimony of [a witness from the

codefendant’s trial] . . . who would eventually testify

against [counsel’s] client.’’), cert. denied, 519 U.S. 1094,

117 S. Ct. 773, 136 L. Ed. 2d 718 (1997). Specifically, the

Fifth Circuit has held that it is constitutionally deficient

performance not to order and review the testimony of

a witness from the codefendant’s trial if that witness

will latertestify at the petitioner’s criminal trial. Westley

v. Johnson, supra, 721.

We do not mean to suggest that defense counsel’s

failure to read the entire transcript of the trial of a

codefendant will always constitute deficient performance.11 In this case, however, Skyers’ decision as to

the need or importance of conducting that review or

additional investigation was based solely upon O’Reilly’s representations and judgment, which, for the reasons we have stated, should not have been relied upon

as the sole basis on which to make that decision. This

is particularly true considering the fact that Skyers did
not order or review any of O’Grinc’s testimony from

Zapata’s trial, even though Skyers knew that O’Grinc

would also testify against the petitioner at the petitioner’s trial. Accordingly, we conclude that the petitioner’s

claim regarding Skyers’ deficient performance as it

relates to his allegedly inadequate investigation of the

petitioner’s case is debatable amongst jurists ofreason.

B

Having concluded that the petitioner raised a meritorious claim that Skyers’ investigation of the petitioner’s

case was constitutionally inadequate, we turn to the

question of whether the petitioner was prejudiced by

this potentially deficient performance. We conclude

that the court properly found that the petitioner failed

to demonstrate any prejudice by any lack of a proper

investigation, and, thus, it did not abuse its discretion

by denying the petition for certification to appeal as to

this claim.

To prove prejudice, a 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.’’ Strickland v. Washington, supra, 466 U.S.

694. ‘‘In a habeas corpus proceeding, the petitioner’s

burden of proving that a fundamental unfairness had

been done is not met by speculation . . . but by

demonstrable realities.’’ (Internal quotation marks

omitted.) Crawford v. Commissioner of Correction,

285 Conn. 585, 599, 940 A.2d 789 (2008). To meet this

standard, the petitioner must offer evidence of what

benefit the additional investigation—reading the entire

transcript of the codefendant’s trial—would have provided and how that would have changed the jury’s verdict. See Nguyen v. Archuleta, 369 Fed. Appx. 889, 894

(10th Cir. 2010) (‘‘[the petitioner] does not indicate that

there actually were inconsistent statements given or

that his counsel could have impeached the witnesses

who testified at his trial [if he had read the transcript]’’);

United States v. Dung Vu, 215 Fed. Appx. 9, 12 (1st

Cir.) (requiring petitioner to both identify beneficial

sections of transcript not reviewed and to show that

additional benefit provided by transcript is more than

minor), cert. denied, 552 U.S. 828, 128 S. Ct. 45, 169 L.

Ed. 2d 42 (2007); Westley v. Johnson, supra, 83 F.3d

721–22 (finding no prejudice because there was only

proof of minimal additional benefit from full use of

transcript). As discussed previously in this opinion, to

prove that the habeas court abused its discretion by

denying certification to appeal this claim, the burden is

on the petitioner to establish that it is at least debatable

among jurists of reason that prejudice exists.

The petitioner offered no evidence at the habeas trial

as to what Skyers would have discovered if he had read

the entire transcript of Zapata’s trial. The petitioner did
not provide the habeas court with those trial transcripts.

Furthermore, the petitioner also did not offer evidence

regarding how O’Grinc or A, B and C would have testified if they had been cross-examined about the recantation orreward,respectively. Accordingly, we agree with

the habeas court’s conclusion that the petitioner was

not prejudiced by the deficiencies in Skyer’s investigation.

In addition, even if the petitioner had offered the

witnesses’ testimony or the Zapata transcripts as evidence, he did not establish how this evidence would

tend to demonstrate that Skyers would have changed

his defense strategy and chosen to cross-examine the

witnesses about the reward and recantation. Indeed,

the habeas court found that if the witnesses had been

cross-examined about the reward, Satti would have

been able to rehabilitate them on redirect examination

with evidence damaging to the petitioner: ‘‘Further buttressing [Skyers’] tactical decision was the very reasonable concern of opening the door to additional [and

harmful rehabilitation] questioning,’’ namely, that A, B,

and C would have testified to having other motives for

testifying at the criminal trial other than the reward—

C was motivated to testify by almost being killed in the

past for being thought as a snitch in the present case;

B was motivated to testify by fear as Zapata had tried

to murder her in the courtroom during Zapata’s trial;

and A was motivated to testify by being arrested and

forced to testify pursuant to a capias warrant. As for

O’Grinc, Satti would have shown that the petitioner,

Zapata, and O’Grinc had a prior history, including

alleged participation in the same drug operation and a

familial relationship between Zapata and O’Grinc. The

habeas court found Satti and Skyers’ testimony at the

habeas trial credible as to the rehabilitation evidence

being more harmful than the cross-examinations

being beneficial.

We agree with the habeas court’s conclusion that the

petitioner failed to established that he was prejudiced

by Skyers’ deficient performance, as he did not offered

any evidence of how the result of his trial would have

been different if Skyers had reviewed the Zapata trial

transcript in its entirety and had cross-examined the

witnesses about the reward and recantation. See Strickland v. Washington, supra, 466 U.S. 694. The petitioner

has failed to prove how any additional information, if

it did exist, about the reward or recantation would

have altered Skyers’ defense strategy or impeachment

strategy. The petitioner has provided no testimony from

the witnesses as to what they would have said on crossexamination about the reward or the recantation. In

sum, the petitioner has offered no evidence proving

that a different cross-examination of O’Grinc or A, B,

and C would have altered the jury’s verdict.

Accordingly, the petitioner has failed to establish that
the issue of prejudice is debatable among jurists of

reason, that a court could resolve the issue in a different

manner, or that the issue is adequate to deserve encouragement to proceed further. We, therefore, conclude

that the habeas court did not abuse its discretion by

denying the petition for certification to appeal as to

this claim.

II

The petitioner next claims that the habeas court

improperly denied his claim that Skyers’ failure to adequately cross-examine witnesses at the petitioner’s

criminal trial amounted to ineffective assistance of

counsel. In support of this claim, the petitioner makes

two arguments. First, the petitioner claims that Skyers

should have impeached O’Grinc about his priorrecantation. Second, the petitioner claims that Skyers should

have impeached A, B, and C about their potential bias

stemming from the reward offer. The respondent, the

Commissioner of Correction, contends that Skyers

made informed tactical decisions, which deserve deference, that these lines of impeachment would not be

fertile. We agree with the respondent and, therefore,

conclude that the habeas court did not abuse its discretion by denying the petition for certification to appeal

as to this claim.

A claim of deficient cross-examination is a claim

against an attorney’s strategic and tactical decisions,

and ‘‘[this] court will not, in hindsight, second-guess

counsel’s trial strategy.’’ (Internal quotation marks

omitted.) Velasco v. Commissioner of Correction, 119

Conn. App. 164, 172, 987 A.2d 1031, cert. denied, 297

Conn. 901, 994 A.2d 1289 (2010). Accordingly, when

challenging a trial attorney’s line of impeachment on

cross-examination of a witness, the petitioner must

‘‘overcome the presumption that trial counsel’s crossexamination of [the witness] represented a sound trial

strategy.’’ Antonio A. v. Commissioner of Correction,

148 Conn. App. 825, 832, 87 A.3d 600, cert. denied, 312

Conn. 901, 91 A.3d 907 (2014). Once an attorney makes

an informed, strategic decision regarding how to crossexamine a witness, that decision is ‘‘virtually unchallengeable.’’ Strickland v. Washington, supra, 466 U.S.

690. ‘‘As a general rule, a habeas petitioner will be

able to demonstrate that trial counsel’s decisions were

objectively unreasonable only if there [was] no . . .

tactical justification for the course taken.’’ (Internal

quotation marks omitted.) Lynn v. Bliden, 443 F.3d 238,

247 (2d Cir. 2006), cert. denied, 549 U.S. 1257, 127 S.

Ct. 1383, 167 L. Ed. 2d 168 (2007).

As the habeas court made no findings as to if Skyers

knew about the recantation when O’Grinc testified at

the petitioner’s trial, and the petitioner did not seek an

articulation from the habeas court, we assume for the

purposes of this claim that Skyers knew about the

recantation at the time that O’Grinc testified at the
petitioner’s trial. Assuming that Skyers knew of the

recantation, Skyer offered a strategic, plausible reason

for not utilizing that line of impeachment. On the basis

of Skyers’ testimony and other evidence, the habeas

court found that it was a strategic decision not to crossexamine O’Grinc about the recantation; had Skyers

cross-examined O’Grinc about the recantation, Satti

would have been able to introduce harmful rehabilitation evidence, negating the benefit of the cross-examination. Thus, we must defer, as the habeas court did,

to Skyers’ informed, strategic decision.

We similarly must defer to Skyers’ strategic decision

not to cross-examine A, B, and C about the state’s offer

of a reward. The habeas court made no findings of fact

as to when Skyers became aware of the reward, and

the record is ambiguous. In light of this ambiguity, we

assume for the purposes of this claim that Skyers knew

of the reward at the petitioner’s probable cause hearing,

when he first could have cross-examined C about the

reward. The habeas court found that the testimony of

Satti and Skyers was credible that the rehabilitation

evidence was more harmful than the potential benefit

of the cross-examinations. Thus, Skyers made an

informed, strategic decision not to cross-examine the

witnesses about the reward.12

Accordingly, the petitioner has failed to demonstrate

that this 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. See

Simms v. Warden, supra, 230 Conn. 616. We, therefore,

conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal

as to this claim.

III

Lastly, the petitioner claims that the habeas court

improperly denied his petition for certification to appeal

with respect to his claim of ineffective assistance of

counsel based on Skyers’ closing argument. We agree

with the respondent that the habeas court did not abuse

its discretion in denying certification to appeal this

claim.

The following additional facts are relevant to this

claim. At the petitioner’s criminal trial, in his closing,

Skyers stated that ‘‘[i]t is not unreasonable that if something drastic occurs where you’re not intimately

involved, but you know the persons who are involved,

and they run, you run, too.’’ The petitioner objects to

the use of the phrase ‘‘intimately involved,’’ arguing that

it concedes the petitioner’s involvement in the crime.

At the habeas trial, Skyers explained that by using the

phrase ‘‘intimately involved,’’ he did not intend to imply

that the petitioner was involved in criminal activity;

rather, he meant that ‘‘a person can be aware of people
around them that are doing something, and when he

sees those persons run, and he knows who they are,

then he runs as well. Without being involved in

anything.’’

We previously rejected a similar claim of ineffective

assistance of counsel in Haywood v. Commissioner of

Correction, 153 Conn. App. 651, 105 A.3d 238, cert.

denied, 315 Conn. 908, 105 A.3d 235 (2014). In Haywood,

the petitioner alleged that trial counsel’s closing argument amounted to deficient performance under a claim

of ineffective assistance of counsel because counsel

had conceded that an attempted armed robbery had

occurred. Id., 659. Although the petitioner claimed that

this statement conceded his guilt, we concluded that

it was consistent with counsel’s defense strategy of

showing that the petitioner, although present, was not

a participant in the attempted robbery. Id., 659–60.

The same reasoning applies in the present case. The

habeas court found Skyers’ testimony credible and that

Skyers’ statement in closing argument was in line with

his defense strategy, which included establishing that

the petitioner was present at the scene of the crime,

but that he did not participate in it. We agree with the

habeas court that Skyers’ closing argument did not fall

below an objective standard of reasonableness. Thus,

Skyers made an informed, strategic decision, and we

must defer to it.

Accordingly, the petitioner has failed to establish that

the issue of whether Skyers’ closing argument constituted deficient performance under prong one of Strickland is debatable amongst jurists of reason, that a court

could resolve the issue in a different manner, or that

the question raised is adequate to deserve encouragement to proceed further. We, therefore, conclude that

the petitioner has failed to demonstrate that the habeas

court abused its discretion by denying the petition for

certification to appeal as to this claim.

The appeal is dismissed.

In this opinion the other judges concurred.

1

In appellate his brief, the petitioner set forth his claims in a different

order; however, for the sake of clarity and efficiency, we have reordered

the claims and arguments.

2 The criminal court sealed the names of the witnesses, and, thus, they

are referred to by initial in this opinion. State v. Taft, supra, 306 Conn. 753 n.7.

3 O’Grinc’s name is no longer sealed, but it was at the time of the

direct appeal.

4 At the habeas trial, Skyers could not recollect if he knew about the

reward at the probable cause hearing. The habeas court made no specific

finding regarding whether Skyers knew, at the time of the petitioner’s criminal trial, that O’Grinc had recanted his statement to the police.

5 Although Skyers testified regarding his usual practices in investigating

a criminal case involving one of his clients, he did not state whether his

investigation of this case was consistent with his general practices.

6 Our decision by no means should be interpreted to prohibit defense

counsel from speaking with a codefendant’s counsel about the codefendant’s

case and from relying, in part, on the information provided by the codefendant’s counsel. Discussing how the codefendant’s case was tried, potential

issues with the defense strategy, and the strengths and weaknesses of the
state’s case are useful pieces of information that can inform and shape

defense counsel’s own defense strategy. Furthermore, there may be cases

in which defense counsel’s reliance on the assessments of a codefendant’s

counsel concerning the codefendant’s case is reasonable if that reliance is

confirmed by the well-informed, independent judgment of defense counsel.

Sole reliance, however, on the representations of the codefendant’s counsel,

where no independent judgment has been exercised, is unreasonable, and

may well be deficient performance.

7 The codefendant’s attorney gave the trial attorney ‘‘a list of his witnesses

shortly before trial along with a brief synopsis of each witness’s testimony.’’

Rios v. Rocha, supra, 299 F.3d 807.

8 Two Connecticut cases have discussed, but not decided, whether it is

deficient performance for defense counsel to rely solely on the investigative

efforts of a prosecutor. In Johnson v. Commissioner of Correction, 285

Conn. 556, 581, 941 A.2d 248, 265 (2008), our Supreme Court held that trial

counsel’s reliance on the results of DNA testing performed by the state did

not prejudice the petitioner because there was no evidence to establish that

additional, independent DNA testing would have provided exculpatory

evidence.

In Davis v. Commissioner of Correction, 147 Conn. App. 343, 351, 81

A.3d 1226 (2013), cert. granted on other grounds, 311 Conn. 921, 86 A.3d

467 (2014), the petitioner argued that ‘‘counsel’s failure to investigate his

case beyond a review of the documentation provided by the prosecution

constituted a complete denial of representation.’’ The court appears to have

rejected this claim solely on prejudice grounds, concluding that the lack of

an investigation did not constitute a structural violation of the petitioner’s

right to effective assistance of counsel that obviated the need for demonstrating any particular prejudice. Id., 353.

9 Our conclusion in the present case does not conflict with the court’s

conclusion in Gaines v. Commissioner of Correction, supra, 306 Conn.

681–82, that an attorney’s investigation is not constitutionally deficient with

respect to a potential witness’ prior testimony, when the attorney knows

the substance of that testimony and decides that it is unhelpful or harmful.

To know the substance of potential testimony, an attorney must rely on a

reliable source of information, like the defendant, and must actually be

aware of the substance of the testimony. See Mozell v. Commissioner of

Correction, 291 Conn. 62, 79–80, 967 A.2d 41 (2009) (counsel’s decision not

to investigate further reasonable when defendant told him that witness

would not cooperate, witness’ attorney said that witness would not cooperate, and after he read police report stating that witness was not eyewitness

to crime). ‘‘Counsel’s actions are usually based, quite properly, on informed

strategic choices made by the [petitioner] and on information supplied by

the [petitioner]. In particular, what investigat[ory] decisions are reasonable

depends critically on such information. For example, when the facts that

support a certain potential line of defense are generally known to counsel

because of what the defendant has said, the need for further investigation

may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations

would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.’’ Strickland v. Washington, supra, 466 U.S. 690–91.

10 Some federal courts of appeal have concluded that it is not necessary

to decide whether the failure to read the transcripts from a codefendant’s

trial is deficient performance, instead deciding those cases on the prejudice

prong of Strickland. See Nguyen v. Archuleta, 369 Fed. Appx. 889, 894 (10th

Cir. 2010); United States v. Dung Vu, 215 Fed. Appx. 9, 12 (1st Cir.) (deciding

ineffective assistance of counsel claim on basis of lack of prejudice when

trial attorney did not request transcripts of codefendant’s trial), cert. denied,

552 U.S. 828, 128 S. Ct. 45, 169 L. Ed. 2d 42 (2007).

11 There may be cases where it is not necessary to read the entire transcript

of the trial of the codefendant. For instance, codefendants’ alleged participation in a crime may be distinct enough from each other to obviate the

need to review the codefendant’s entire trial transcript. Therefore, defense

counsel’s failure to order and review the transcript of the codefendant’s

trial is not per se deficient performance. The scope of counsel’s obligation

to investigate must be addressed on a case-by-case basis, and we do not

intend to suggest a blanket rule for all occasions.

12 The petitioner argues that failure to cross-examine about a reward

can never be ‘‘sound trial strategy’’ pursuant to the holding in Reynoso v.

Giurbino, 462 F.3d 1099, 1110–14 (9thCir. 2006). The petitioner misinterprets
Reynoso, which merely held that under no trial strategy offered by the

respondent in that case could the decision not to cross-examine about the

reward be ‘‘sound,’’ as the trial attorney did not make an informed decision

and cross-examining about the reward would not have been harmful to the

defense strategy or to the petitioner. Id. Those facts distinguish the present

case from Reynoso.