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*********************************************** 
TROY MCCARTHY v. COMMISSIONER OF

CORRECTION

(AC 40926)

Prescott, Elgo and Pellegrino, Js.

Syllabus

The petitioner, who had been convicted of murder in connection with the

shooting death of the victim, sought a second writ of habeas corpus,

claiming, inter alia, that his right to due process was violated because

his decision to reject the state’s plea offer was not made knowingly and

voluntarily, and that his trial counsel for bond purposes, E, had rendered

ineffective assistance. At the petitioner’s arraignment, E filed an appearance on the petitioner’s behalf for bond purposes only, and, at subsequent pretrial proceedings, E reiterated that he had appeared for bond

purposes only and informed the court that he did not intend to remain

in the case and that he would return his retainer to the petitioner’s

family. Although the trial court discharged E from the case on March

10, 2004, at some point prior to April 9, 2004, E’s investigator interviewed

two witnesses to the shooting who previously had provided statements

to the police implicating the petitioner. On the basis of the investigator’s

interview notes, E then prepared affidavits for the witnesses in which

they purportedly recanted their prior statements and indicated that the

police had coerced them to make those statements. The trial court

subsequently appointed new counsel, S and K, to represent the petitioner, and the witnesses’ signed affidavits became part of S and K’s

criminal trial file. Thereafter, the petitioner rejected a plea offer from

the state and the case proceeded to trial, at which the petitioner

impeached the two witnesses with their affidavits after they testified

for the state, identified the petitioner as the shooter, and denied telling

the investigator that they had been coerced by the police into making

their prior statements. E thereafter testified for the state, stating that

although he had used the investigator’s notes to prepare the affidavits, he

had made up certain information to fill in narrative gaps. The petitioner

alleged in count one of his second habeas petition that his right to due

process of law was violated because his decision to reject the state’s

plea offer was not knowing and voluntary, in that he was misled as to

the strength of the state’s case against him by virtue of E’s fabrication

of the affidavits without his knowledge. In count three, the petitioner

alleged that E had rendered ineffective assistance by causing him to

misunderstand the strength of the evidence against him by fabricating

the affidavits. The habeas court concluded that the petitioner had procedurally defaulted his due process claim because he failed both to raise

it in his direct appeal and to establish cause for his default. The habeas

court further determined that because E was not representing the petitioner at the time he fabricated the affidavits or at the time the petitioner

rejected the state’s plea offer in reliance on those affidavits, an ineffective assistance of counsel claim against E was not cognizable as a matter

of law. The habeas court rendered judgment denying the habeas petition,

from which the petitioner, on the granting of certification, appealed to

this court. Held:

1. The habeas court properly determined that the petitioner’s due process

claim was subject to procedural default and that the petitioner failed

to demonstrate good cause to excuse the procedural default of that

claim: notwithstanding the petitioner’s claim that his due process claim

was not susceptible to procedural default because it was premised on

E’s alleged ineffective assistance, the plain language of count one, viewed

in the context of the entire amended habeas petition, alleged a freestanding due process claim, not an ineffective assistance of counsel claim,

that could have been raised either at the petitioner’s criminal trial, when

E testified about fabricating the affidavits and the basis for the due

process claim first became apparent, or on direct appeal, on the basis

of the record established by E’s testimony; accordingly, because the

petitioner failed to raise his due process claim at his trial or on direct

appeal, and the respondent Commissioner of Correction raised the
defense of procedural default as to count one, the burden shifted to the

petitioner to prove why the default should be excused, which he failed

to do.

2. The habeas court erred in concluding that the petitioner’s claim that E

rendered ineffective assistance of counsel was not cognizable as a matter

of law because E did not represent the petitioner at the time he fabricated

the affidavits or when the petitioner relied on those affidavits and

rejected the state’s plea offer: ineffective assistance of counsel claims

are not limited to actions taken by attorneys who are counsel of record

or who appeared in court, but may be maintained in cases in which a

nonappearing attorney is alleged to have rendered deficient performance

that subsequently has an adverse impact on the petitioner’s criminal

case if, on the basis of the totality of the circumstances, the nonappearing

attorney was representing the petitioner as counsel for purposes of the

sixth amendment at the time he rendered the deficient performance;

moreover, in the present case, in considering the scope and duration

of the attorney-client relationship, the habeas court unduly focused on

E’s presence in the courtroom, the nature of his written appearance,

and the date on which the criminal court discharged him from the case,

and improperly disregarded evidence that E’s representation was not

limited to appearing for bond purposes and that he continued to perform

out-of-court work on the petitioner’s behalf even after his appearance

was withdrawn, especially given that it was unclear whether E’s retainer

covered professional services beyond representing the petitioner at

arraignment and there was evidence in the record that E prepared the

affidavits and performed out-of-court work on behalf of the petitioner

after the bond hearing; accordingly, because the court focused unduly

on the nature of E’s written appearance and official representation, and

because the question of whether an attorney-client relationship exists

presents a mixed question of law and fact, the case was remanded to

the habeas court for a new trial on count three of the amended habeas

petition and a determination on the issue of whether E continued to

represent the petitioner for purposes of the sixth amendment at the

time he fabricated the affidavits.

Argued March 19—officially released September 17, 2019

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

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

denying the petition, from which the petitioner, on the

granting of certification, appealed to this court.

Reversed in part; new trial.

Robert L. O’Brien, assigned counsel, with whom on

the brief was Christopher Y. Duby, assigned counsel,

for the appellant (petitioner).

Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy,

state’s attorney, Angela R. Macchiarulo, senior assistant state’s attorney, and Michael Proto, assistant state’s

attorney, for the appellee (state).
Opinion

PRESCOTT, J. The petitioner, Troy McCarthy,

appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court

denying his petition for a writ of habeas corpus. In

his underlying criminal case, the petitioner allegedly

rejected a plea offer from the state after being misled

regarding the strength of the state’s case against him

because his prior counsel, Joseph Elder, fabricated affidavits from certain eyewitnesses to the underlying

crime. The habeas court denied the petition on the

ground that an ineffective assistance of counsel claim

was not cognizable because Elder was no longer representing the petitioner when he fabricated the affidavits

or at the time the plea offer was made.

On appeal, the petitioner claims that the habeas court

improperly concluded that (1) count one of his amended

petition alleging a due process violation was procedurally defaulted because he failed to sustain his burden

to establish good cause for his failure to raise this claim

at trial or on direct appeal and (2) an ineffective assistance of counsel action regarding Elder was not cognizable because Elder did not represent him at the time

that Elder fabricated the witnesses’ affidavits or at the

time that the petitioner, in reliance on these affidavits,

rejected the state’s plea offer. We conclude that the

court properly determined that count one of the petitioner’s amended petition was barred by procedural

default. We agree, however, with the petitioner that the

court improperly denied count three of his amended

petition alleging ineffective assistance by Elder

because, in assessing his sixth amendment right to the

effective assistance of counsel, the habeas court applied

an unduly narrow view of the scope and duration of

the attorney-client relationship. Accordingly, we affirm

in part and reverse in part the judgment of the

habeas court.

The relevant facts, as set forth in the habeas court’s

memorandum of decision and in this court’s decision

resolving the petitioner’s direct appeal, are as follows:

‘‘On September 25, 2003, the [petitioner] and the victim,

Raymond Moore, were standing near the corner of

Westland Street and Garden Street in Hartford, in front

of the former Nelson & Son’s Market, when they

engaged in a physical altercation. After the victim

slammed the [petitioner]’s body onto the sidewalk, several people intervened and stopped the fight. The [petitioner], humiliated, left the scene but stated that he

would be back. Later, the [petitioner] returned with a

gun, but the victim was not there. A friend of the victim,

Robert Ware, and others told the [petitioner] that ‘it

wasn’t worth it.’ The [petitioner], however, responded

that the victim was going to respect him.

‘‘Two days later, on September 27, 2003, the victim
returned to the area and was standing in front of Nelson & Son’s Market speaking with Ware. Ware then went

across Westland Street and entered Melissa’s Market

to buy cigarettes. A homeless woman from the area,

Mary Cauley, who was on her way to the C-Town Market

on Barbour Street, approached the victim and told him

that he should go home to his family. She then continued

on her way to the C-Town Market, walking north on

Garden Street, where she saw the [petitioner] standing

on his front porch. Cauley said hello to the [petitioner],

who instructed her to get out of the way. When she got

to the C-Town Market, Cauley heard gunshots.

‘‘Upon hearing a gunshot, Ware immediately ran out

of Melissa’s Market as a second gunshot was fired.

Looking up Garden Street, Ware saw the victim falling

to the ground and saw the [petitioner] running in the

opposite direction carrying a gun. At that same time,

Maurice Henry, Chauncey Odum and Tylon Barlow

were in a vehicle in the parking lot behind Nelson &

Son’s Market smoking ‘blunts.’ Henry was in the driver’s

seat. As he began to drive out of the parking lot, onto

Garden Street, Henry saw the victim walking north. He

then saw the [petitioner] emerge from the rear yard of

a Garden Street building, carrying a gun. Henry saw the

[petitioner] shoot the victim twice.’’ (Footnote omitted.)

State v. McCarthy, 105 Conn. App. 596, 598–600, 939

A.2d 1195, cert. denied, 286 Conn. 913, 944 A.2d 983

(2008).

The petitioner was arrested on March 1, 2004, and

charged with murder in violation of General Statutes

§ 53a-54a, carrying a pistol without a permit in violation

of General Statutes § 29-35, and criminal possession of

a firearm in violation of General Statutes § 53a-217.

Elder entered a court appearance on the petitioner’s

behalf at his first bond hearing on March 2, 2004. The

appearance form indicated that the appearance was for

bond purposes only. See Practice Book § 3-6. On March

10, 2004, Elder ‘‘informed the court that he did not

intend to file a full appearance in the petitioner’s case,

and that he would return the petitioner’s retainer,’’ and

the court permitted him to withdraw his court appearance. On March 29, 2004, Attorney R. Bruce Lorenzen,

a public defender, entered his appearance on the petitioner’s behalf but withdrew from the case on June

23, 2005, due to a conflict of interest. The court then

appointed special public defenders, Attorneys Michael

O. Sheehan and George G. Kouros, to represent the petitioner.1

Sometime between March 3, 2004, and April 9, 2004,

Elder’s private investigator, Homer Ferguson, interviewed Henry and Cauley, eyewitnesses to the shooting.

Elder prepared affidavits based on Ferguson’s notes

from these interviews. The affidavits were signed by

Henry and Cauley on April 9, 2004. In their affidavits,

both witnesses purportedly recanted the prior state-
ments that they had made to the police implicating the

petitioner in the shooting and, instead, indicated that

the investigating detective had ‘‘intimidated, coerced

and pressured [them] to provide inculpatory testimony

against the petitioner.’’ Their affidavits further indicated

that they did not know who shot the victim. After Lorenzen was appointed to represent the petitioner, Elder

placed the affidavits in the copy of the file he shared

with Lorenzen, and the affidavits ultimately became

part of Sheehan and Kouros’ file.2

The petitioner pleaded not guilty to all charges and

elected a jury trial. During jury selection, the state

extended a plea offer to the petitioner that would have

required him to plead guilty to manslaughter in the first

degree with a firearm in violation of General Statutes

§ 53a-55a in exchange for a maximum sentence of fifteen years of incarceration with a right to argue for a

lower sentence of no less than ten years of incarceration. After consulting with Sheehan and Kouros, the

petitioner rejected the state’s offer and proceeded to

trial.

At the petitioner’s criminal trial, Henry and Cauley

testified for the state and identified the petitioner as

the shooter in the victim’s murder. On cross-examination, the petitioner impeached Henry and Cauley with

the affidavits that had been prepared by Elder. Both

witnesses testified that they never told Ferguson that

the police had intimidated, coerced, and pressured them

to identify the petitioner as the shooter.

The state also called Elder to testify at the petitioner’s

criminal trial. He testified that he had used Ferguson’s

notes from his meetings with Henry and Cauley to prepare the affidavits. The prosecutor asked if he ‘‘[made]

things up’’ in the affidavits, which he answered by saying: ‘‘What I did was, I filled in the gap. And the idea

would be to fill in the gap to see if that would be what

the witness would agree to. It was not information that

came directly from the witness, it was information that

I provided . . . .’’ The prosecutor then asked, ‘‘where

did you get that information from,’’ to which Elder

responded: ‘‘I made it up.’’ The prosecutor asked if he

believed that he had fabricated evidence, and Elder

replied: ‘‘No, because it wasn’t information that would

have been substantial or substantive in that way. It was

information that did not go to the substance of the

case.’’ As an example, Elder noted that Henry’s claim

that he did not witness the shooting was not something

he would fabricate. The prosecutor then asked if Elder

would fabricate the phrase ‘‘out of fear and through

intimidation,’’ and Elder indicated that the phrase was

‘‘something [he] would put in there.’’ When asked if he

often editorialized witnesses’ affidavits, Elder stated:

‘‘I don’t generally do that. But, in doing this particular

one, my recollection is that I felt that it needed a little

oomph.’’ Elder had not informed the petitioner or any
of his attorneys that he had fabricated the affidavits.

The petitioner subsequently was convicted of murder

in violation of § 53a-54a. He was sentenced to fifty years

of incarceration.

On direct appeal, the petitioner claimed that ‘‘(1) the

court improperly denied his motion for a new trial,

(2) the court improperly admitted certain impeachment

evidence for substantive purposes, (3) the court

improperly instructed the jury and (4) he was deprived

of a fair trial due to prosecutorial impropriety.’’ State v.

McCarthy, supra, 105 Conn. App. 598. We subsequently

affirmed his conviction. Id.

The petitioner filed his first petition for a writ of

habeas corpus on January 9, 2007, in which he was

represented by Attorney Robert J. McKay. In his first

habeas action, McKay did not raise a claim of ineffective

assistance of counsel against Elder.3 The habeas court,

Cobb, J., denied the petition on March 22, 2012. McCarthy v. Warden, Docket No. CV-07-4001548-S, 2012 WL

1222247, *1 (Conn. Super. March 22, 2012). The petitioner was granted certification to appeal on March

28, 2012, but the appeal was withdrawn on February

4, 2013.

The petitioner commenced this second habeas corpus action in February, 2013. His amended petition,

filed on December 6, 2016, contained four counts. Count

one raised a due process claim in which he alleged that

his decision to reject the state’s plea offer was not

knowingly and voluntarily made because he was misled

regarding the strength of the state’s case against him

by Elder’s fabrication of the affidavits from eyewitnesses to the underlying crime without his knowledge.

Count two alleged ineffective assistance of counsel by

McKay for failing to plead and litigate in his first habeas

action the freestanding due process claim alleged in

count one. Count three alleged ineffective assistance

of counsel by Elder for causing him to misunderstand

the strength of the evidence against him in the underlying criminal prosecution. Finally, count four alleged

ineffective assistance of counsel by McKay for failing

to plead and litigate the ineffective assistance of counsel

claim alleged in count three.4

In its return, the respondent raised the special

defense of procedural default with respect to count one

of the petitioner’s amended complaint, his freestanding

due process claim. Importantly, the respondent did not

raise procedural default as a special defense to any of

the other claims in the petitioner’s amended petition.5

In his reply, the petitioner asserted that ‘‘[c]laims of

due process that involve or stem from the ineffective

assistance of trial counsel and prior habeas counsel,

as alleged in count one, negate an alleged procedural

default, such that cause and prejudice need not be

shown . . . .’’ The petitioner further asserted that ‘‘the
issue could only properly be raised for the first time in

a habeas petition;’’ therefore, ‘‘[p]rior habeas counsel

was ineffective for failing to raise this issue at that

time.’’

In a memorandum of decision, the habeas court, Oliver, J., denied the petition, concluding, inter alia, that

the freestanding due process claim in count one of the

amended petition was procedurally defaulted. Because

the respondent did not allege that the claim raised by

the petitioner in count three was procedurally

defaulted, the habeas court reached the merits of that

claim. The court, however, concluded that because

Elder’s representation of the petitioner ended on March

10, 2004, an ineffective assistance of counsel claim

against Elder, as a matter of law, could not be maintained with respect to the conduct alleged in count

three of the amended petition.6 The petitioner sought

certification to appeal, which the court granted on September 27, 2017. This appeal followed.

I

The petitioner first claims that the habeas court

improperly concluded that he failed to demonstrate

good cause to overcome procedural default of the due

process claim alleged in count one of the amended

petition. Specifically, the petitioner argues that his due

process claim stems from the ineffective assistance of

Elder and, therefore, is not susceptible to procedural

default. We agree with the habeas court that the due

process claim was procedurally defaulted.

‘‘In essence, the procedural default doctrine holds

that 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 . . . .’’ 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).

Claims that are ‘‘fully capable of being raised and

decided in the trial court or on direct appeal’’ are distinguishable from ‘‘a typical claim of ineffective assistance

of counsel under [Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed 2d 674 (1984)],7 which

can only be adequately litigated in a collateral proceeding . . . .’’ Taylor v. Commissioner of Correction, 324

Conn. 631, 646, 153 A.3d 1264 (2017). Typical claims of

ineffective assistance of counsel require the court to

determine whether ‘‘counsel’s conduct falls within the

wide range of reasonable professional assistance; that

is, the defendant must overcome the presumption that,

under the circumstances, the challenged action might

be considered sound trial strategy.’’ (Internal quotation

marks omitted.) Strickland v. Washington, supra, 689.

‘‘The trial transcript seldom discloses all of the considerations of strategy that may have induced counsel to

follow a particular course of action.’’ State v. Leecan,

198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S.

1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). ‘‘[C]laims
[such as] structural error based on the complete denial

of counsel in a proceeding [however] would be apparent

on the record.’’ Taylor v. Commissioner of Correction,

supra, 646. ‘‘Habeas, as a collateral form of relief, is

generally available to litigate constitutional issues only

if a more direct route to justice has been foreclosed

through no fault of the petitioner.’’ (Internal quotation

marks omitted.) Gaskin v. Commissioner of Correction, 183 Conn. App. 496, 511, 193 A.3d 625 (2018).

If the state ‘‘alleges that a [petitioner] should be procedurally defaulted from now making the claim, the

[petitioner] bears the burden of demonstrating good

cause for having failed to raise the claim directly, and

he must show that he suffered actual prejudice as a

result of this excusable failure.’’ Hinds v. Commissioner of Correction, supra, 151 Conn. App. 852. ‘‘The

cause and prejudice standard 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 . . . . [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. . . . Cause and prejudice must be established

conjunctively. . . . If the petitioner fails to demonstrate either one, a trial court will not review the merits

of his habeas claim.’’ (Internal quotation marks omitted.) Sinchak v. Commissioner of Correction, 173

Conn. App. 352, 366, 163 A.3d 1208, cert. denied, 327

Conn. 901, 169 A.3d 796 (2017).

It is true that ‘‘[a] successful ineffective assistance

of counsel claim can satisfy the cause and prejudice

standard so as to cure a procedurally defaulted claim.’’

Id. Indeed, ‘‘[i]f a petitioner can prove that his attorney’s

performance fell below acceptable standards, and that,

as a result, he was deprived of a fair trial or appeal, he

will necessarily have established a basis for cause and

will invariably have demonstrated prejudice.’’ (Internal

quotation marks omitted.) Johnson v. Commissioner

of Correction, 285 Conn. 556, 570, 941 A.2d 248 (2008).

It is with these principles in mind that we turn to the

petitioner’s claim that the court improperly concluded

that he failed to demonstrate good cause to overcome

procedural default of the due process claim alleged in

count one of the amended petition. ‘‘The habeas court’s

conclusion that the petitioner is procedurally defaulted

from raising his [due process] claim before the habeas

court involves a question of law. Our review is therefore

plenary.’’ Chaparro v.Commissioner of Correction, 120

Conn. App. 41, 46, 990 A.2d 1261, cert. denied, 297 Conn.

903, 994 A.2d 1287 (2010).

As an initial matter, we agree with the court that the

petitioner alleged a freestanding8 due process claim in

the first count of his amended petition, not an ineffec-
tive assistance of counsel claim as he asserted in his

reply to the state’s return and in his brief on appeal.

‘‘It is well settled that [t]he petition for a writ of habeas

corpus is essentially a pleading and, as such, it should

conform generally to a complaint in a civil action. . . .

It is fundamental in our law that the right of a plaintiff

to recover is limited to the allegations of his complaint.

. . . [Although] the habeas court has considerable discretion to frame a remedy that is commensurate with

the scope of the established constitutional violations

. . . it does not have the discretion to look beyond the

pleadings and trial evidence to decide claims not raised.

. . . The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues

to be decided, and to prevent surprise. . . . [T]he [petition] must be read in its entirety in such a way as to

give effect to the pleading with reference to the general

theory upon which it proceeded, and do substantial

justice between the parties.’’ (Internal quotation marks

omitted.) Newland v. Commissioner of Correction, 322

Conn. 664, 678, 142 A.3d 1095 (2016).

The plain language of count one of the amended

petition alleges a due process claim, not an ineffective

assistance of counsel claim. Count one is titled ‘‘Due

Process Violation: Involuntary Plea on Account of Petitioner’s Fundamental Misunderstanding of the State’s

Evidence’’ and alleges that the petitioner’s ‘‘conviction

and incarceration are illegal because they were

obtained in violation of his state and federal constitutional rights to due process of law . . . .’’ Moreover, a

reading of the entire amended petition supports the

conclusion that count one alleges a freestanding due

process claim because the petitioner also alleges in

count three a separate claim of ineffective assistance

of counsel by Elder. That count is based on the same

conduct by Elder and would be duplicative of count

one if it was interpreted as the petitioner argues. This

construction of the amended petition supports the

court’s conclusion that the due process claim in count

one, although related to the claim of ineffective assistance by Elder, is a separate, freestanding due process

claim subject to procedural default, unless the petitioner establishes good cause and prejudice for having

failed to raise the claim at trial or on direct appeal.

The petitioner’s assertion that he could not pursue

this argument on direct appeal because it was unpreserved at the underlying criminal trial is unavailing. The

petitioner was not only capable of raising the freestanding due process claim on direct appeal, but could have

raised the issue at trial when it first became apparent.

When Elder testified to having fabricated portions of

the witnesses’ affidavits at the petitioner’s underlying

criminal trial, the petitioner became aware of the conduct forming the basis of his freestanding due process

claim. At that time, the petitioner could have moved

for a mistrial pursuant to Practice Book § 42-439 or
moved for a new trial pursuant to Practice Book

§ 42-53.10

The petitioner also was capable of raising the freestanding due process claim on direct appeal. Although

the defendant’s claim is based on allegations against

his first trial counsel that are similar to a typical claim

of ineffective assistance of counsel, the petitioner

alleged a freestanding due process claim. As our

Supreme Court noted in Taylor v. Commissioner of

Correction, supra, 324 Conn. 646, a typical claim of

ineffective assistance of counsel can adequately be litigated only in a collateral proceeding because an analysis of counsel’s conduct under Strickland necessarily

requires an inquiry into the strategic considerations that

caused the attorney to pursue a particular course of

action, which is usually not reflected in the record of

the underlying trial.

It is true that the petitioner’s due process claim

requires the court adjudicating it to consider Elder’s

conduct outside of the courtroom, a topic that typically

could adequately be explored only in a collateral proceeding. In the present case, however, the state questioned Elder at the criminal trial about his fabrication

of the affidavits. The petitioner, therefore, had a record

of the conduct that formed the basis of the freestanding

due process claim that he wanted to have reviewed on

appeal. The freestanding due process claim in count

one, therefore, was fully capable of being raised on

direct appeal, if not at trial, and the petitioner was

required to show good cause to overcome the procedural default of this claim.

We further agree with the habeas court that the petitioner failed to demonstrate good cause for procedurally defaulting his claim. The petitioner argues that the

freestanding due process claim in count one is not susceptible to procedural default because the default

derives from the ineffective assistance of Elder, which

necessarily established a basis for cause and prejudice

by virtue of the nature of the claim. As the court

explained in Johnson, because a petitioner must meet

the two-pronged test announced in Strickland to prevail

on an ineffective assistance of counsel claim, he will

‘‘necessarily have established a basis for cause and will

invariably have demonstrated prejudice’’ to overcome

procedural default in so doing. (Internal quotation

marks omitted.) Johnson v. Commissioner of Correction, supra, 285 Conn. 570. Because the petitioner

alleged a freestanding due process claim, the rationale

of Johnson does not apply to the present case. To avoid

procedurally defaulting count one of his amended petition, the petitioner was required to demonstrate good

cause for his failure to raise this issue at trial or on

direct appeal, when it first could have been raised. The

petitioner failed to do so.

Instead of asserting that his trial and appellate coun-
sel, Sheehan and Kouros, were ineffective for failing to

raise the due process claim at trial or on direct appeal,

the petitioner claims Elder and McKay were ineffective

for actions they took during pretrial proceedings and

on collateral appeal during his first habeas case, respectively. This mere assertion of ineffectiveness by Elder

and McKay is insufficient to show that some objective

factor external to the defense impeded counsel’s efforts

to raise this issue at trial or on direct appeal when it

was first capable of being raised. We, therefore, conclude that the court properly determined that count one

of the amended petition was procedurally defaulted.

II

The petitioner next claims that the court improperly

concluded that an ineffective assistance of counsel

claim regarding Elder could not be maintained because

Elder did not represent him at the time that Elder fabricated the witnesses’ affidavits or at the time that the

petitioner rejected the state’s plea offer in reliance on

the affidavits. For the reasons that follow, we conclude

that the habeas court improperly denied count three

of the amended petition because it applied an unduly

narrow legal view of the scope and duration of the

attorney-client relationship, and, thus, the case should

be remanded for a new trial on that count.

The following additional facts, as set forth in the

habeas court’s decision denying the petitioner’s first

petition for a writ of habeas corpus, are relevant to this

claim. ‘‘The petitioner was arraigned . . . on March 2,

2004. At that proceeding, Elder appeared for the purpose of bond only. The case was transferred to Part A

and continued to March 9, 2004. On March 9, 2004,

when the case was called, Elder did not appear, nor

did any other attorney for the petitioner. On March

10, 2004, the trial court, Solomon, J., explained to the

petitioner that Elder had been in a different court the

day before and that it had ordered Elder to appear in

court that day, March 10, 2004, at 10:00 a.m. The court

explained that Elder’s response to that message,

through [his] secretary, was that he could not appear

in the petitioner’s matter on March 10 because he had

a matter in Enfield, but that he would withdraw his bond

only appearance and refund the petitioner’s family’s

retainer. The court expressed its frustration with

Elder’s failure to appear, particularly in view of the

serious nature of the charges.

‘‘Later that day, the case was recalled, and Elder

appeared. Elder explained that his appearance had been

for bond only, he did not intend to file a full appearance

in the case and that he would return the petitioner’s

family’s retainer. The court ordered Elder out of the

case and continued the matter for the petitioner to

apply for a public defender or to obtain private counsel.

At the next court appearance on March 29, 2004, public

defender [Lorenzen] filed his appearance on the peti-
tioner’s behalf.’’ McCarthy v. Warden, supra, 2012 WL

1222247, *5.

In concluding that an ineffective assistance of counsel claim regarding the fabricated affidavits was not

cognizable, the habeas court was required to consider

the nature and duration of the attorney-client relationship between the petitioner and Elder. This question

necessarily involves a consideration of the attorneyclient relationship in general, as well as a factual inquiry

into the events surrounding Elder’s procurement of the

falsified affidavits.11 The United States Supreme Court

has determined that the question of whether an attorney

‘‘represented’’ a defendant or served as counsel within

the meaning of the sixth amendment presents a mixed

question of fact and law over which an appellate court

exercises plenary review. See Cuyler v. Sullivan, 446

U.S. 335, 341–42, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).

At the outset, it is important to review some of the

well established legal principles regarding the formation and termination of the attorney-client relationship

and the fundamental obligations of a lawyer to a client

and a former client. ‘‘An attorney-client relationship

is established when the advice and assistance of the

attorney is sought and received in matters pertinent to

his profession. . . . With respect to termination of the

relationship, our Supreme Court has stated: The formal

termination of the relationship occurs when the attorney is discharged by the client, the matter for which

the attorney was hired comes to a conclusion, or a

court grants the attorney’s motion to withdraw from

the representation. A de facto termination occurs if the

client takes a step that unequivocally indicates that

he has ceased relying on his attorney’s professional

judgment in protecting his legal interests, such as hiring

a second attorney to consider a possible malpractice

claim or filing a grievance against the attorney.’’ (Citation omitted; emphasis omitted; internal quotation

marks omitted.) In re Ceana R., 177 Conn. App. 758,

769, 172 A.3d 870, cert. denied, 327 Conn. 991, 175 A.3d

1244 (2017).

For purposes of the sixth amendment and a petitioner’s right to effective assistance of counsel, we agree

with the United States Court of Appeals for the Seventh

Circuit that an ineffective assistance of counsel claim

may be cognizable with respect to the actions of an

attorney who is not appearing in court or who is not

counsel of record. See Stoia v. United States, 22 F.3d

766, 769 (7th Cir. 1994). As that court stated: ‘‘An attorney’s constitutional ineffectiveness can manifest itself

at trial even though the attorney never appears in court.

For example, a defendant may hire more than one attorney to work on his criminal case, but only one of them

may actually enter an appearance and represent him

in court. . . . Also, an attorney hired to do ‘behind

the scenes’ work may, through deficient performance,
negatively impact the trial counsel’s ability to give the

defendant an adequate defense.’’ (Emphasis added.)

Id.12

In determining the scope and duration of the attorneyclient relationship in the present case, the habeas court

narrowly focused on the courtroom component of

Elder’s representation of the petitioner. The cornerstone of the court’s analysis was whether Elder had

filed a written appearance with the court at the time

he fabricated the affidavits. Indeed, the court began its

analysis by emphasizing that ‘‘Elder appeared in the

petitioner’s case for bond purposes only.’’ The court

then declared that ‘‘Elder’s official representation of

the petitioner ended on March 10, 2004, when the court

ordered him out of the case.’’ (Emphasis added.)

Finally, the court noted that ‘‘[t]he petitioner had not

produced any evidence that [he] retained [Elder’s] services after he withdrew from the case.’’13 (Emphasis

added.)

The habeas court’s analysis suggests that it determined as irrelevant evidence that Elder was acting on

the petitioner’s behalf and for his benefit when he fabricated the affidavits. It is evident from the court’s analysis in its memorandum of decision that it was most

persuaded by the limited nature of the initial appearance filed by Elder and the subsequent withdrawal of

that appearance. The court’s reasoning fails to recognize that the sixth amendment right to effective assistance of counsel may extend, in the words of Stoia, to

an attorney who performs ‘‘behind the scenes’’ work

that, through deficient performance, negatively impacts

the ability of the petitioner to assess the strength of

the state’s case and the decision to accept or reject a

plea offer. See Stoia v. United States, supra, 22 F.3d 769.

The habeas court’s use of the phrase ‘‘official representation’’ and its narrow focus on the nature of Elder’s

written appearance does not find support in our habeas

jurisprudence or our rules of practice. The filing of a

written appearance merely permits an attorney to

appear in court and be heard on behalf of a party,

entitles the attorney to confer with the prosecutor in

a criminal case, and allows the attorney to receive copies of all notices required to be given by statute. Practice

Book § 3-7. The filing of an appearance by one attorney

does not mean that the petitioner is prevented from

retaining other attorneys who will not appear in court

on his behalf but may perform important out-of-court

work on his behalf, including investigating potential

eyewitnesses and obtaining written statements from

them. Thus, even though Elder may not have been counsel of record after March 10, 2004, Elder may have

continued to serve as the petitioner’s counsel behind

the scenes. Thus, the fact that Elder filed a limited

appearance in court is not dispositive, but is merely

one factor in determining the scope and duration of
the attorney-client relationship in the present case. See

State v. Murphy-Scullard, Docket. No. A07-1319, 2008

WL 4470378, *4 (Minn. App. October 7, 2008) (‘‘[f]ormally retaining an attorney is an important, although

not dispositive, factor for the purposes of being deemed

’counsel’ under the [s]ixth [a]mendment and its guarantee of effective assistance of counsel’’).

The habeas court’s narrow focus on the status of

Elder’s ‘‘official representation’’ simply begs the question: If he no longer represented the petitioner, why

would Elder continue to expend time and money

investigating the eyewitnesses and then fabricate the

affidavits, at great risk to his own personal and professional interests, if his representation of the petitioner

had ended? It is difficult to imagine Elder engaging in

such a frolic if he was not doing so as part of his

continuing representation of the petitioner.

Indeed, the habeas court failed to consider other facts

that suggest Elder continued to work on the petitioner’s

behalf after his written appearance was withdrawn on

March 10, 2004. For example, the court did not consider,

as was conceded by the state, that the witnesses’ affidavits were prepared sometime between the bond hearing

on March 2, 2004, and April 9, 2004, when Ferguson,

acting within the scope of his employment with Elder,

had the eyewitnesses sign their affidavits. It is clear

that, sometime between April 9, 2004, when the affidavits were signed, and April 30, 2004, when Lorenzen

used the fabricated affidavits during his cross-examination of Henry at the probable cause hearing, Elder gave

Lorenzen a copy of his file containing the fabricated

affidavits without alerting him or the petitioner to their

fraudulent nature.

The habeas court presumably also failed to consider

the fact that the petitioner was not appointed new counsel on March 10, 2004, when Elder last appeared in

court on the petitioner’s behalf. In fact, the court continued the matter for the petitioner to apply for a public

defender or obtain new private counsel, leaving a period

of time during which it is unclear whether and when

the petitioner began to rely on the advice of an attorney

other than Elder, thereby signaling a de facto termination of the attorney-client relationship. Finally, there is

no indication that the habeas court considered whether

Elder’s representation was truly limited, given that he

had been paid a retainer that appeared to cover professional services that extended beyond representing the

petitioner at his arraignment.14

We agree with the petitioner that a sixth amendment

ineffective assistance of counsel claim is not limited

solely to those attorneys appearing in court on his

behalf but may extend to cases in which a nonappearing

attorney engages in deficient performance that

adversely impacts his case at a later time. Thus, the

habeas court should have considered the totality of the
circumstances regarding Elder’s representation of the

petitioner when analyzing the scope and duration of

the attorney-client relationship in the present case.

It is true that courts in other jurisdictions have

declined to extend the sixth amendment right to effective assistance of counsel to bad advice from an attorney if the petitioner has otherwise received adequate

advice from another attorney acting on his behalf. These

cases are, however, distinguishable from the present

case.

In United States v. Martini, 31 F.3d 781, 782 (9th

Cir. 1994), the petitioner received conflicting advice

regarding a plea offer. The attorney who was originally

retained to represent the petitioner had urged him to

accept the offer. Id. Dissatisfied with this advice, the

petitioner sought a second opinion from an attorney

who was not familiar with the case and who, based on

the petitioner’s understated representations about the

strength of the state’s case, advised him that ‘‘the case

might be ’triable,’ ’’ advice that the petitioner later

claimed constituted ineffective assistance of counsel.

Id. In concluding that the sixth amendment right to the

effective assistance of the counsel did not extend to

the second opinion that he had received, the court

stated: ‘‘If a criminal defendant in fact receives effective

assistance of counsel from the lawyer he has retained

to meet the prosecution’s case, he cannot later claim

that he received ineffective assistance of counsel from

another lawyer he chose to consult.’’ Id., 782–83.

Following Martini, the Sixth Circuit Court of Appeals

in Santosuosso v. United States, Docket No. 95-3146,

1996 WL 15631, *3 (6th Cir. 1996), concluded that an

ineffective assistance of counsel claim did not extend

to an attorney’s advice where that attorney was not

counsel of record and the defendant had received adequate advice from another attorney who was counsel

of record. In Santosuosso, the petitioner was represented by an attorney who had arranged a plea bargain

and advised that he accept it. Id., *1. On the same day

that his attorney of record convinced him to accept the

plea offer, the petitioner met with two other attorneys

who urged him to reject the plea offer, fire his current

attorneys, and hire them instead. Id. The petitioner did

so and subsequently claimed that the advice from those

attorneys to reject the offer constituted ineffective

assistance of counsel. Id., *2. Citing Martini, the court

concluded that the petitioner had received adequate

advice from his attorney of record, which satisfied the

sixth amendment right. Id., *3. The court noted that,

‘‘[t]he opposite conclusion, that whenever a criminal

defendant acts upon what turns out to be bad advice

he is entitled to relief for ineffective assistance, would

leave a defendant free to reject a plea bargain, go to

trial to test the waters, and then vacate the resulting

sentence when the trial proves more costly than the
plea agreement.’’ Id.

In a similar case, the United States District Court for

the Western District of Michigan concluded in United

States v. Logan, 257 F. Supp. 3d 880, 890–91 (W. D.

Mich. 2017), aff’d, 910 F.3d 864 (6th Cir. 2018), cert.

denied, U.S. , 139 S. Ct. 1589, 203 L. Ed. 2d

745 (2019), that the sixth amendment right to effective

assistance of counsel does not guarantee the right to

effective assistance of two attorneys in a case where

the attorneys have given conflicting advice. In Logan,

the petitioner was appointed counsel by the court, but

his family had also retained a different attorney to represent him. Id., 882–83. When the court disallowed the

appointed lawyer to withdraw and the retained attorney

to enter his appearance based on the tardy nature of

the request, the petitioner continued to seek advice

from the attorney he had retained to his detriment. Id.,

883. The court concluded that the retained attorney was

acting within the scope of the attorney-client relationship when he gave the petitioner poor advice, but this

poor advice did not negate the adequate advice and

effective representation the petitioner had received

from appointed counsel. Id., 889.

The present case does not turn on any poor advice

that he allegedly received from Elder. The petitioner

also does not assert that his trial attorneys, who represented him at the time he received the plea offer,

engaged in deficient performance in rendering him

advice regarding whether to accept the plea offer.

Finally, the present case, unlike Martini, does not

involve a petitioner who received conflicting advice

from various counsel and later claimed that one attorney’s advice was deficient while the other attorney’s

advice was not.

Instead, under the unusual circumstances of this

case, the petitioner argues that his decision to reject

the state’s plea offer was negatively impacted by the

deficient performance of Elder, who, acting within the

scope of his representation of the petitioner while

investigating the state’s case, decided to fabricate evidence by putting words into the mouths of the state’s

witnesses. This distinction renders Martini and its

progeny inapposite.

Instead, we are guided by those courts, in addition

to Stoia, that have concluded that the sixth amendment

right to effective assistance of counsel, in certain circumstances, may extend to the performance of an attorney who did not directly represent a petitioner in court,

but whose conduct negatively impacted the petitioner’s

representation at a later time. In State v. MurphyScullard, supra, 2008 WL 4470378, *1, the petitioner

was represented at her guilty plea hearing by two attorneys of record from the public defender’s office. The

petitioner’s case was first being handled by Attorney

Sara Sjoholm, but in anticipation of passing the case
to a second attorney, Kelly Madden, both were present

for the guilty plea. Id. During the hearing, only Sjoholm

discussed the plea agreement with the petitioner and

addressed the court. Id. There was, however, evidence

that Madden had discussed the decision to plead guilty

with the petitioner before the date of the hearing. Id.,

*4. The court concluded that, because Madden was one

of the petitioner’s attorneys of record and had ‘‘some

minimal involvement in counseling’’ the petitioner

regarding the plea offer, the sixth amendment protections extended to her conduct. Id.

In United States v. Chezan, Docket No. 10 CR 905-

1, 2014 WL 8382792, *16-17 (N.D. Ill. October 14, 2014)

(report and recommendation adopted by federal District Court), United States Magistrate Judge Sheila Finnegan considered whether the sixth amendment right

to effective assistance of counsel extended to advice

given to the petitioner by an immigration attorney

regarding the immigration consequences of his pending

criminal matter, although the immigration attorney

never appeared in the criminal court. Importantly, the

petitioner’s criminal attorney relied on the advice from

the immigration attorney when advising the petitioner

on how to proceed with his criminal case. Id., *13. The

court found that it was undisputed that the immigration

attorney was retained to provide and did provide legal

advice to the petitioner and, thus, concluded that there

was ‘‘no question that the [s]ixth [a]mendment applies

to this type of representation.’’ Id., *17. The circumstances in the present case are more like those faced

by the petitioners in Chezan and Murphy-Scullard, in

which counsel, acting within the scope of the attorneyclient relationship, influenced the advice of a subsequent counsel in a way that prejudiced the petitioners.

We also are not persuaded by the respondent’s

attempt to distinguish Stoia v. United States, supra, 22

F.3d 766, from the present case by arguing that there

is ‘‘no evidence that Elder ‘called the shots’ or directly

controlled the petitioner’s defense from behind the

scenes.’’ Stoia imposes no such test. Although the court

in Stoia employed such language in assessing the level

of involvement of the attorney suffering from an

improper conflict of interest in that case; id., 769–70;

Stoia does not suggest that a petitioner must demonstrate that the nonappearing counsel must have ‘‘called

the shots’’ in the case. Instead, Stoia simply recognizes

that, for the purpose of determining whether counsel

is representing a petitioner, the sixth amendment may

extend to nonappearing counsel who ‘‘negatively

impact the trial counsel’s ability to give the defendant

an adequate defense.’’

We simply are unconvinced by the respondent’s

assertion that the petitioner’s sixth amendment right

to effective assistance of counsel is so narrow so as

to leave unprotected a defendant whose prior counsel
engages in deficient performance, unbeknownst to subsequent counsel, that influences the conduct of other

attorneys in the case or the defendant’s critical decision

on whether to accept a plea. Elder’s alleged conduct

may well have negatively impacted the propriety of the

advice given by his subsequent counsel regarding the

plea offer.15 Moreover, contrary to the state’s assertion,

there is little dispute that Elder impacted the petitioner’s defense from behind the scenes when he, in the

course of investigating the state’s case, fabricated witnesses’ affidavits without informing the petitioner or his

new attorneys, thereby influencing every subsequent

decision made on the basis of those fabricated affidavits.

In sum, by unduly focusing on the limited nature of

Elder’s court appearance and his subsequent withdrawal of that appearance, the habeas court precluded

the possibility that Elder continued to represent the

petitioner for purposes of the sixth amendment when

he fabricated the affidavits. The existence of those fabricated affidavits allegedly played a crucial role in the

petitioner’s decision to reject a plea offer to manslaughter in the first degree with a firearm that would have

resulted in his serving a ten to fifteen year period of

incarceration. Instead, the defendant rejected the plea

offer, was subsequently convicted of murder, and is

now serving a sentence of fifty years of incarceration.

In remanding this case for a new trial on the third

count of the amended petition, we do not mean to

suggest that the habeas court is required to reach the

legal conclusion that Elder was representing the petitioner for purposes of the sixth amendment when he

fabricated the affidavits or that the petitioner was necessarily prejudiced by this conduct. Instead, we simply

conclude that the petitioner is entitled to a determination by the habeas court that is not limited to consideration of the status of Elder’s formal appearance in court

during the relevant period.

The judgment is reversed with respect to the habeas

court’s denial of count three of the operative amended

habeas petition, and the case is remanded for a new

trial on that count; the judgment is affirmed in all

other respects.

In this opinion the other judges concurred.

1 Sheehan and Kouros represented the petitioner at trial and in his subsequent direct appeal.

2

It is not apparent from this record when Elder created the affidavits or

when Lorenzen took custody of the file containing them. It is evident,

however, that the affidavits were created before April 9, 2004, when they

were signed by both witnesses and that Lorenzen was in possession of them

on April 30, 2004, because he impeached Henry with his affidavit during

cross-examination at the probable cause hearing on that date. The file containing the affidavits, therefore, must have been passed to Lorenzen between

April 9 and April 30, 2004.

3

In his first petition for a writ of habeas corpus, the petitioner claimed

that he was deprived of the effective assistance of counsel by his trial

attorneys, Sheehan and Kouros, because they: ‘‘(1) failed to object to the

testimony of [Ware], a late disclosed state’s witness; (2) failed to request a
continuance to investigate Ware’s testimony; (3) failed to move for a mistrial

subsequent to Ware’s testimony; (4) failed to object to the testimony of

[Elder], the petitioner’s bond counsel or cross-examine him; (5) failed to

file a motion for a mistrial after Elder testified; (6) failed to file a notice of

alibi or to subpoena alibi witnesses; (7) failed to investigate the evidence

or state’s witnesses prior to trial; (8) misrepresented the state’s plea offer;

(9) failed to adequately present evidence of third-party culpability, and in

particular, that [Odum] was in possession of a firearm of the same caliber

as the murder weapon; (10) failed to cross-examine Odum as to his possession of the gun; and (11) failed to request a jury charge on third-party

culpability.’’ McCarthy v. Warden, supra, 2012 WL 1222247, *2.

4 The habeas court denied counts two and four of the amended petition,

the so-called ‘‘habeas on a habeas’’ counts; see Kaddah v. Commissioner

of Correction, 324 Conn. 548, 550, 153 A.3d 1233 (2017); on the ground that

the petitioner failed to produce evidence sufficient to overcome the strong

presumption that McKay’s decision not to raise in the petitioner’s first habeas

action the claims now asserted in counts one and three fell within the wide

range of competence required by the sixth amendment. See Strickland v.

Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). On

appeal, the petitioner has failed to raise and separately brief any claim

challenging the habeas court’s denial of counts two and four. Although he

does address McKay’s alleged deficient performance in his argument that

he satisfies the cause and prejudice standard necessary to avoid procedural

default with respect to count one, we conclude that such briefing, untethered

to any specific claim directed at the court’s resolution of count two, is

inadequate to avoid abandoning a challenge to the denial of count two. See

Artiaco v. Commissioner of Correction, 180 Conn. App. 243, 248–49, 182

A.3d 1208, cert. denied, 328 Conn. 931, 184 A.3d 758 (2018).

5 Moreover, during the habeas trial, the respondent did not assert, as he

did during oral argument before this court, that he had raised procedural

default in his return with respect to count three. The habeas court, in

reviewing the pleadings with counsel prior to trial, expressly stated that it

viewed the respondent’s allegation of procedural default as directed only

to count one, and counsel for the respondent made no attempt to clarify

or assert otherwise. Moreover, during posttrial arguments, the respondent

reiterated that he was ‘‘still pursuing the procedural default in count 1.’’

6 Because the habeas court concluded that Elder was not representing

the petitioner within the meaning of the sixth amendment when he fabricated

the affidavits, it did not reach the question of whether Elder’s performance

fell below acceptable standards or if the petitioner was prejudiced by Elder’s

alleged deficient performance.

7

‘‘A convicted defendant’s claim that counsel’s assistance was so defective

as to require reversal of a conviction . . . has two components. First, the

defendant must show that counsel’s performance was deficient. This requires

showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the [s]ixth [a]mendment.

Second, the defendant must show that the deficient performance prejudiced

the defense. This requires showing that counsel’s errors were so serious as

to deprive the defendant of a fair trial, a trial whose result is reliable. Unless

a defendant makes both showings, it cannot be said that the conviction

. . . resulted from a breakdown in the adversary process that renders the

result unreliable.’’ Strickland v. Washington, supra, 466 U.S. 687.

8

In habeas corpus proceedings, courts often describe constitutional

claims that are not tethered to a petitioner’s sixth amendment right to

counsel as ‘‘freestanding.’’ See, e.g., Moye v. Commissioner of Correction,

316 Conn. 779, 785–86, 114 A.3d 925, 928 (2015).

9 Practice Book § 42-43 provides in relevant part: ‘‘Upon motion of a

defendant, the judicial authority may declare a mistrial at any time during

the trial if there occurs during the trial an error or legal defect in the

proceedings, or any conduct inside or outside the courtroom which results

in substantial and irreparable prejudice to the defendant’s case. . . .’’

10 Practice Book § 42-53 (a) provides: ‘‘Upon motion of the defendant, the

judicial authority may grant a new trial if it is required in the interests of

justice. Unless the defendant’s noncompliance with these rules or with other

requirements of law bars his or her asserting the error, the judicial authority

shall grant the motion: (1) For an error by reason of which the defendant

is constitutionally entitled to a new trial; or (2) For any other error which

the defendant can establish was materially injurious to him or her.’’

11 We recognize that the petitioner did not call Elder as a witness at the

second habeas trial. Because we conclude that the habeas court applied an
incorrect legal standard in concluding that Elder was not the petitioner’s

counsel for purposes of the sixth amendment, that failure is not fatal to the

petitioner’s claim on appeal.

12 In Stoia, the petitioner brought an ineffective assistance of counsel

claim regarding one of his several attorneys, Raymond Takiff, who suffered

from an improper conflict of interest but who had never appeared in court

on his behalf. Stoia v. United States, supra, 22 F.3d 767–68. The court

concluded that the petitioner’s sixth amendment right to counsel was implicated, despite the fact that Takiff never appeared in court, because his

conflict of interest negatively impacted the performance of other counsel

and his defense as a whole. Id., 773.

13 This statement by the habeas court is incorrect for at least two reasons.

First, if Elder’s representation of the petitioner continued beyond the end

of Elder’s in-court participation, then there would have been no need for

the petitioner to again retain Elder. Second, the petitioner did produce

evidence that Elder continued to represent him after March 10, 2004. That

evidence included the undisputed fact that Elder and his investigator continued to work on the petitioner’s case after that date. From that fact, a court

would be entitled to infer that the attorney-client relationship continued

unabated until sometime later.

14 If the retainer covered only professional services performed by Elder

during the petitioner’s arraignment, then there would have been no need

for Elder to represent to the court that he intended on returning the retainer

to the petitioner’s family.

15 If Sheehan and Kouros knew or should have known that the affidavits

were fabricated and subject to attack by the state, they arguably would

have had a duty to their client to investigate the procurement of the affidavits

in order to assess and provide advice to the petitioner regarding the strength

of the state’s case. Under those circumstances, Elder’s deficient performance

would have been ameliorated or cured by the constitutionally effective

representation of subsequent counsel. The habeas court did not reach this

question because it concluded that Elder, for purposes of the sixth amendment, simply did not represent the petitioner at the time he fabricated

the affidavits. If, on remand, the habeas court concludes that Elder was

representing the petitioner for purposes of the sixth amendment during the

relevant period, then it would need to reach the question of whether the

petitioner, or Sheehan and Kouros, reasonably relied on the accuracy of

the affidavits without further investigation.