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ABDUL MUKHTAAR v. COMMISSIONER

OF CORRECTION

(AC 34193)

Beach, Sheldon and Dupont, Js.

Argued January 22—officially released July 7, 2015

(Appeal from Superior Court, judicial district of

Tolland, T. Santos, J.)
Abdul Mukhtaar, self-represented, with whom, on

the brief, were Michael D. Day and Robert J. McKay,

assigned counsel, for the appellant (petitioner).

Leon F. Dalbec, Jr., senior assistant state’s attorney,

with whom, on the brief, were John C. Smriga, state’s

attorney, Robin S. Schwartz, assistant state’s attorney,

and Gerard P.Eisenman,former senior assistant state’s

attorney, for the appellee (respondent).
Opinion

DUPONT, J. In this ‘‘habeas on a habeas’’ case, the

petitioner, Abdul Mukhtaar, appeals from the judgment

of the habeas court denying his third petition, as

amended, for a writ of habeas corpus. This third petition

is one in a labyrinth of petitions for a writ of habeas

corpus and amended habeas corpus petitions filed by

the petitioner. On appeal, the petitioner claims that the

habeas court erred when it concluded that his first

habeas counsel, Damon A. R. Kirschbaum, did not renderineffective assistance by failing to investigate (1)the

state’s case and witnesses; (2) a third-party culpability

claim; and (3) the petitioner’s alibi defense.1 We disagree with the petitioner and, accordingly, affirm the

judgment of the habeas court.

The habeas court set forth the following factual history in its memorandum of decision. ‘‘At approximately

4 p.m. on February 14, 1996, Benjamin Sierra, Jr., was

driving his parents’ car on Fairfield Avenue in Bridgeport. While stopped at a red light at the intersection

of Fairfield and Iranistan Avenues, Sierra spotted two

young women, Tracey Gabree and Terri Horeglad, with

whom he was acquainted, standing at a nearby pay

telephone. Sierra waved to Gabree and Horeglad and

they approached and entered Sierra’s car. Horeglad sat

in the front passenger seat and Gabree sat in the back

seat. Gabree asked Sierra for a cigarette. Sierra then

turned around and gave her a cigarette and a light. . . .

When Sierra turned back toward the front of the car,

he observed that his vehicle was blocked by a tan car

that was facing the wrong direction on Fairfield Avenue.

At that moment, Gabree shouted: ‘Oh shit, Kareem!’2

Gabree then fled from Sierra’s car. A man, later identified by Sierra and Gabree as the [petitioner], emerged

from the tan car and approached the passenger side of

Sierra’s car, where Horeglad remained seated. Sierra

jumped out of his car and asked the [petitioner] what

was wrong. The [petitioner], who did not respond,

pulled out what appeared to be a .32 or .38 caliber

chrome plated revolver and fired four shots at Horeglad,

each of which entered the right side of her body. Horeglad died as a result of the gunshot wounds.’’ (Footnote added.)

The petitioner was charged and, following a jury trial,

convicted of murder in violation of General Statutes

§ 53a-54a. On September 19, 1997, the trial court sentenced the petitioner to fifty years imprisonment. The

petitioner appealed from the judgment of conviction

directly to our Supreme Court and the conviction was

affirmed. State v. Mukhtaar, 253 Conn. 280, 750 A.2d

1059 (2000).

The petitioner filed his first petition for a writ of

habeas corpus on January 31, 2001, and subsequently

withdrew it on February 28, 2001. He filed his second
petition for a writ of habeas corpus on April 2, 2001,

and subsequently filed an amended petition on December 21, 2006 (second petition). In count one of the

second petition, the petitioner alleged ineffective assistance of his trial counsel, Gerald Bodell. Specifically,

he alleged that Bodell rendered deficient performance

in (1) advising him not to testify at trial and (2) not

seeking additional investigation into the possibility of

juror bias. In count two, the petitioner alleged juror

bias. At the habeas trial on this second petition, the

petitioner was represented by his first habeas counsel,

Kirschbaum. Following this first habeas trial, the court

denied the second petition, and, thereafter, the petitioner’s appeal following that denial was dismissed. Mukhtaar v. Commissioner of Correction, 113 Conn. App.

114, 964 A.2d 1251, cert. denied, 291 Conn. 913, 969

A.2d 175 (2009).

The petitioner filed his third petition for a writ of

habeas corpus on January 14, 2008. This petition was

subsequently amended on September 8, 2010, (third

petition) and is the subject of this appeal. This third

petition alleged, inter alia, that the petitioner’s first

habeas counsel, Kirschbaum, provided ineffective assistance during the petitioner’s first habeas trial. The petitioner alleged that Kirschbaum had failed to adequately

(1) prosecute a claim that there had been jurorintimidation during the criminal trial;(2)investigate the petitioner’s alibi that he was in New York when the crime

was committed; (3) present available witnesses and

evidence to support the petitioner’s contention that trial

defense counsel was ineffective; (4) present the issue

that the trial judge should have recused himself because

he had previously presided over the probable cause

hearing; (5) present a claim that the jury was not impartial and that the jury instructions were faulty;(6)investigate and present a claim that trial defense counsel failed

to properly investigate and present evidence to impeach

a witness’ identification of the petitioner; and (7) investigate the factual bases for the petitioner’s habeas

claims, present evidence in support of third-party culpability, and present available witnesses and establish the

petitioner’s defense to the criminal charge.

The matter was tried before the habeas court, T.

Santos, J., over the course of three days. The habeas

court heard testimony from Michael Johnston, William

Birch, Bridgeport police Detective Donald A. Jacques,

the petitioner, Suzanne Zitser-Curtis,3 and Kirschbaum.

On December 5, 2011, the habeas court issued a memorandum of decision denying the third petition, and, on

December 22, 2011, granted the petition for certification

to appeal. This appeal followed.

On appeal, the petitioner claims that the habeas court

erred when it concluded that Kirschbaum did notrender

ineffective assistance of counsel. Specifically, the petitioner argues that Kirschbaum was ineffective because
he failed to investigate the state’s case and witnesses,

the petitioner’s third-party culpability claim, and the

petitioner’s alibi defense.4

We begin by setting forth our well settled standard

of review governing ineffective assistance of counsel

claims. ‘‘In a habeas appeal, this court cannot disturb

the underlying facts found by the habeas court unless

they are clearly erroneous, but our review of whether

the facts as found by the habeas court constituted a

violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.’’ (Internal quotation marks omitted.) McClean v. Commissioner of

Correction, 103 Conn. App. 254, 262, 930 A.2d 693

(2007), cert. denied, 285 Conn. 913, 943 A.2d 473 (2008).

‘‘To succeed on a claim of ineffective assistance of

counsel, a habeas petitioner must satisfy the twopronged test articulated in Strickland v. Washington,

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

(1984).’’ (Internal quotation marks omitted.) Santaniello v. Commissioner of Correction, 152 Conn. App.

583, 587, 99 A.3d 1195, cert. denied, 314 Conn. 937, 102

A.3d 1115 (2014). ‘‘In Strickland . . . the United States

Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he

must show that counsel’s assistance was so defective

as to require reversal of [the] conviction . . . . That

requires the petitionerto show (1)that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a

[petitioner] makes both showings, it cannot be said that

the conviction . . . resulted from a breakdown in the

adversary process that renders the result unreliable.

. . . Because both prongs . . . must be established for

a habeas petitioner to prevail, a court may dismiss a

petitioner’s claim if he fails to meet either prong. . . .

‘‘To satisfy the performance prong [of the Strickland

test] the petitioner must demonstrate that his attorney’s

representation was not reasonably competent or within

the range of competence displayed by lawyers with

ordinary training and skill in the criminal law. . . . [A]

court must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances,

the challenged action might be considered sound trial

strategy. . . .

‘‘With respect to the prejudice component of the

Strickland test, the petitioner must demonstrate that

counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.

. . . It is not enough for the [petitioner] to show that

the errors had some conceivable effect on the outcome

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

show that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the
proceeding would have been different.’’(Citations omitted; internal quotation marks omitted.) Holloway v.

Commissioner of Correction, 145 Conn. App. 353, 364–

65, 77 A.3d 777 (2013). ‘‘A reasonable probability is a

probability sufficient to undermine confidence in the

outcome.’’ Strickland v. Washington, supra, 466 U.S.

694.

‘‘[When] applied to a claim of ineffective assistance

of prior habeas counsel, the Strickland standard

requires the petitioner to demonstrate that his prior

habeas counsel’s performance was ineffective and that

this ineffectiveness prejudiced the petitioner’s prior

habeas proceeding. . . . [T]he petitioner will have to

prove that one or both of the prior habeas counsel, in

presenting his claims, was ineffective and that effective

representation by habeas counsel establishes a reasonable probability that the habeas court would have found

that he was entitled to reversal of the conviction and a

new trial . . . .’’ (Emphasis omitted; footnote omitted.)

Harris v. Commissioner of Correction, 108 Conn. App.

201, 209–10, 947 A.2d 435, cert. denied, 288 Conn. 911,

953 A.2d 652 (2008). ‘‘Therefore, as explained by our

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

613 A.2d 818 (1992), a petitioner claiming ineffective

assistance of habeas counsel on the basis of ineffective

assistance of [trial] counsel must essentially satisfy

Strickland twice: he must prove both (1) that his

appointed habeas counsel was ineffective, and (2) that

his [trial] counsel was ineffective.’’ (Internal quotation

marks omitted.) Ham v. Commissioner of Correction,

152 Conn. App. 212, 230, 98 A.3d 81, cert. denied, 314

Conn. 932, 102 A.3d 83 (2014). ‘‘We have characterized

this burden as presenting a herculean task . . . .’’

(Internal quotation marks omitted.)Alterisi v.Commissioner of Correction, 145 Conn. App. 218, 227, 77 A.3d

748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013).

We will now address each of the petitioner’s claims

of ineffective assistance individually, cognizant that in

order to set forth a prima facie case of ineffective assistance of the petitioner’s first habeas counsel on the

ground of ineffective assistance of trial counsel, the

petitioner must setforth a prima facie case ofineffective

assistance of trial counsel. See Ham v. Commissioner

of Correction, supra, 230.

On appeal, the petitioner asserts, inter alia, that the

court improperly concluded that Kirschbaum did not

renderineffective assistance. Underthis rubric,the petitioner raises three claims. We will address each of these

claims in turn.

I

FAILURE TO INVESTIGATE

The petitioner first claims that the habeas court erred

when it concluded that Kirschbaum did not render ineffective assistance by failing to investigate the state’s
case and witnesses. Because the petitioner makes several arguments in this regard, we will address each

in turn.

A

The petitioner’s first argument is that Kirschbaum

was ineffective as habeas counsel because he failed to

pursue or raise the deficiencies in the multiple statements that Sierra gave to the police after the shooting.

Additionally, the petitioner argues that Kirschbaum rendered ineffective assistance at the first habeas trial by

failing to claim that trial counsel’s performance was

deficient because trial counsel did not file a motion to

suppress a photographic array that the police showed

to Sierra.

We first note the following additional relevant facts,

which our Supreme Court outlined in its decision on

the petitioner’s direct appeal. During the petitioner’s

criminal trial, Sierra testified about the shooting. State

v. Mukhtaar, supra, 253 Conn. 299. He stated that he had

been interviewed by officers of the Bridgeport Police

Department after the incident. Id. The police officers

had shown him a photographic array and asked him

whether the photograph of the shooter appeared in

the array. Id. Sierra testified that he had selected the

petitioner’s photograph from the array, but insisted that

he had told the police that he was not certain about

the identification and that all he could say was that the

shooter looked similar to the person depicted in the

selected photograph. Id. Sierra also testified that he

had given the police a written, signed statement about

the shooting the day after the incident. Id.

According to the petitioner, however, Sierra gave a

written statement on the actual day of the shooting in

which he indicated that he did not get a good look at

the shooter’s face because he was ‘‘more interested in

the gun that was in his hand.’’ On the basis of this

assertion, the petitioner argues that Bodell, and thereafter Kirschbaum, should have investigated the discrepancies among Sierra’s statements. He argues that if

Sierra had been properly investigated, the attorneys

would have found that Sierra’s statement and photographic identification were unreliable, and that a

motion to suppress the photographic array was warranted during the criminal trial. The respondent, the

Commissioner of Correction, argues, however, that the

petitioner did not expressly raise this issue in his third

habeas petition and did not introduce any evidence at

the habeas hearing to support his claim. We agree with

the respondent.

At the habeas trial, the petitioner raised the issue of

Sierra’s statements in the context of his judicial impartiality claim. Specifically, the petitioner alleged that

Kirschbaum was ineffective for failing to argue that

the trial judge should have recused himself because
he previously had presided over the probable cause

hearing during which Sierra testified regarding his statements to police and his identification of the petitioner

in a photographic array. As to Sierra’s statements themselves, the petitioner argued broadly that Kirschbaum

failed to present available witnesses. In response to

this broad allegation, the habeas court found that ‘‘no

credible evidence was presented to substantiate the

claimed ineffective assistance of prior habeas counsel.’’

The habeas court held that the petitioner ‘‘neither

affirmatively proved deficient performance nor, assuming such deficient performance, demonstrated to this

court that its confidence in the outcome of the criminal

jury trial should be undermined.’’

In the present appeal, the petitioner must show not

only that counsel’s performance was deficient, but also

that the deficient performance prejudiced the defense.

Even if we assume, arguendo, that Kirschbaum’s failure

to investigate Sierra satisfies the performance prong of

Strickland, the petitionerfailed to present any evidence

showing that Sierra would have provided information

that would have been beneficialto the petitioner’s criminal trial or that, had a motion to suppress been filed,

the photographic array would have been suppressed.

The petitioner merely identifies discrepancies between

Sierra’s statement on the day of the shooting and his

statement and photographic identification on the day

after the shooting. Furthermore, Sierra was not called

to testify at the petitioner’s habeas trial. We conclude,

therefore, that the court properly concluded that the

petitioner failed to show both that Kirschbaum’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s first habeas proceeding.

B

Next, the petitioner argues that in light of the circumstances surrounding Johnston’s testimony and statement and Birch’s testimony and statement, the habeas

court should have made a finding that Bodell, as trial

counsel, was ineffective in his representation of the

petitioner and, in turn, should have found that Kirschbaum was ineffective for not pursuing or raising the

deficiencies in these witnesses’ testimony at the first

habeas trial.

The following additional facts, as described by the

habeas court in its memorandum of decision, are relevant to our resolution of this claim. ‘‘The petitioner

presented testimony from Michael Johnston and William Birch, who both witnessed the shooting in February, 1996, nearly fifteen years prior to testifying in the

instant habeas corpus proceeding. According to the

petitioner, a central issue regarding Mr. Johnston’s identification of the shooter is the discrepancy between the

statement given to the police, which does not mention

the shooter’s hairstyle, and a subsequent statement

given in 2003, which indicates the shooter had his hair
styled in cornrows or dreadlocks. Mr. Johnston testified

before [the habeas] court that he only had a quick look

at the shooter’s hairstyle, but could not describe it well.

When asked if he could describe the shooter’s hairstyle,

Mr. Johnston indicated: ‘Not really, because I believe I

thought he had kind of longish hair, but he was also

wearing a hood and very baggy khaki clothing.’ Mr.

Johnston was then asked whether he recalled ‘saying

at some point that that person had cornrows or dreadlocks,’ to which he answered: ‘I don’t think it was dreadlocks more than he had short hair that looked like it

was—I don’t know how to explain it. It was short, and

it seemed to be some type of style . . . like tied in

knots or parted like.’ . . .

‘‘As to William Birch, the petitioner’s focus is on his

estimation of the shooter’s height as being approximately five feet, nine inches, which is slightly more

than other estimates provided by witnesses. For example, Mr. Johnston’s statement to the police indicates

that the shooter was five feet, six inches, or five feet,

seven inches. Mr. Birch also testified that the police

did not seem particularly interested in obtaining a statement from him because numerous people had come

forward to provide information, but on February 14,

1996, the day of the shooting, Mr. Birch provided a

statement to Detective Jacques accompanied by a diagram of the crime scene.’’ (Citation omitted; footnotes omitted.)

In its memorandum of decision, the habeas court

found that the discrepancies that the petitioner was

focusing on would only have been inconsistencies that

the jury would have assessed and assigned weight to

along with otheridentifications and evidence. The court

concluded: ‘‘Had the testimonies of both Mr. Johnston

and Mr. Birch been impeached to a greater extent, or

even entirely excluded, the fact remains that other witnesses such as Sierra and Gabree identified the petitioner as the shooter.’’ In other words, the court held

that the testimony of Johnston and Birch was cumulative. On the basis of the foregoing, the court concluded

that the evidence presented at the habeas trial failed

to undermine the court’s confidence in the outcome of

the criminal trial.

After a careful review of the record, we conclude

that the habeas court properly determined that the petitioner failed to introduce any credible evidence that,

but for Kirschbaum’s failure to highlight discrepancies

in the testimony of Johnston and Birch, the outcome

of his first habeas trial would have been different and,

thus, that the petitioner failed to satisfy the prejudice

prong of Strickland.

5

C

The petitioner makes two final claims with respect

to Kirschbaum’s failure to investigate the state’s case.
First, the petitioner argues that Kirschbaum should

have challenged Bodell’s failure to file a motion in

limine to preclude from evidence the ammunition box

found in the petitioner’s car and failure to retain a

fingerprint expert to examine the fingerprint found on

this box. In his principal brief to this court, the petitioner asserted the following with respect to the state’s

evidence at his criminal trial: ‘‘After the shooting incident, Detective Richard Herlihy testified that he examined and photographed the cream colored car found

on Laurel Street. Detective Herlihy discovered a box

containing forty-four Blazer .38 caliber special bullets

in the glove box. The box normally holds fifty bullets.

A fingerprint was found on the box that matched the

petitioner, but there was no way of knowing when the

fingerprint was put on the box. Edward Jachimowicz,

a firearms expert at the state forensics laboratory, testified that when he compared the four bullets taken from

the body of Terry Horeglad to the bullets found in the

box of forty-four, he found that both sets of bullets

were the same caliber, but the bullets from the victim

were different from the bullets found in the box. Attorney Bodell did not file a motion in limine to preclude

that box found in the cream colored car, nor did he

retain an expert to examine the fingerprint on the found

box of bullets.’’

In addition, the petitioner argues that Kirschbaum

failed to investigate the gunshot residue test that was

performed on Roderick McCoy, another suspect in the

shooting. In his principal brief to this court, the petitioner asserts the following with respect to the evidence

at his criminal trial: ‘‘To demonstrate to the jury that

a gunshot residue test was conducted on Roderick

McCoy, the state presented two witnesses on rebuttal—

Detective Richard Donaldson, Bridgeport [Police

Department], and Dr. Virginia Maxwell, state forensics

laboratory. Detective Donaldson took a sample from

McCoy, and Dr. Maxwell tested the sample and found

no gunshotresidue. Dr. Maxwelltestified that she would

[not] have found any residue of a gunshot if the person

was wearing gloves and that the weather conditions

may influence [where] the residue would be deposited

other than the hand.’’

At oral argument before this court, the petitioner

admitted that no evidence was presented at the habeas

trial indicating that the fingerprint on the ammunition

box did not belong to him or that anything was ‘‘wrong’’

with the ammunition box. Furthermore, claims with

regard to the ammunition box and the gunshot residue

test were neither raised in the petitioner’s third petition

nor addressed in the habeas court’s memorandum of

decision. Consequently, we decline to review them. See

Velasco v. Commissioner of Correction, 119 Conn. App.

164, 166 n.2, 987 A.2d 1031, cert. denied, 297 Conn. 901,

994 A.2d 1289 (2010).
II

THIRD-PARTY CULPABILITY CLAIM

Next, the petitioner claims that Kirschbaum was ineffective because he failed to adequately investigate and

present a third-party culpability claim regarding McCoy.

The petitioner argues that Kirschbaum should have presented the third-party culpability claim demonstrating

ineffective assistance of trial counsel and that if he had,

there is a reasonable probability that the outcome of

the criminal trial and the first habeas trial would have

been different. We are not persuaded.

We begin our analysis of the petitioner’s claim by

setting forth the applicable legal principles. ‘‘It is well

established that a defendant has a right to introduce

evidence that indicates that someone other than the

defendant committed the crime with which the defendant has been charged. . . . The defendant must, however, present evidence that directly connects a third

party to the crime. . . . It is not enough to show that

another had the motive to commit the crime . . . nor

is it enough to raise a bare suspicion that some other

person may have committed the crime of which the

defendant is accused. . . .

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

Relevant evidence is evidence having any tendency to

make the existence of any fact that is material to the

determination of the proceeding more probable or less

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

Accordingly, in explaining the requirement that the

proffered evidence establish a direct connection to a

third party, rather than raise merely a bare suspicion

regarding a third party, we have stated: Such evidence

is relevant, exculpatory evidence, rather than merely

tenuous evidence of third party culpability [introduced

by a defendant] in an attempt to divert from himself

the evidence of guilt. . . . In other words, evidence

that establishes a direct connection between a third

party and the charged offense is relevant to the central

question before the jury, namely, whether a reasonable

doubt exists as to whetherthe defendant committed the

offense. Evidence that would raise only a bare suspicion

that a third party, rather than the defendant, committed

the charged offense would not be relevant to the jury’s

determination.’’ (Citations omitted; internal quotation

marks omitted.) State v. Arroyo, 284 Conn. 597, 609–10,

935 A.2d 975 (2007).

In the present case, McCoy was the individual identified as a potentially culpable third party. McCoy was

detained following the February 14, 1996 shooting but

was ultimately released. During the habeas trial, the

petitioner testified that he had asked Bodell to investigate McCoy during the underlying criminal trial and

had asked Kirschbaum to investigate McCoy in prepara-
tion for the first habeas trial, but neither of them acquiesced in this request. The petitioner testified that he

told Kirschbaum: ‘‘Mr. McCoy was a material witness.

He witnessed the crime. The police even have in their

police reports that a witness by the name of Mr. Lindy

(phonetic) identified Mr. McCoy as going to the car that

was used in the killing. The police pulled Mr. McCoy

off the city bus, brought him back to the scene of the

crime, and the witnesses, supposedly they identify him.

Mr. McCoy was brought to the police station, given an

atomic absorption, a gunpowder residue test. He gave

testimony or whatever to the police. Gunpowder residue test came back negative and they let him go. They

let him go.’’

Next, the respondent elicited testimony from Kirschbaum regarding his investigation into the third-party

culpability issue.Kirschbaum testified: ‘‘My recollection

is that [McCoy] was the only possible third party culpability witness. I could be wrong about that, but I also

recall talking to [the petitioner] about that issue, and I

recall thinking about that issue, and the problem [was]

that I didn’t see how to use it as a third party culpability

defense, and I had information, and if it’s the person

I’m thinking of, and it might not be because it’s been

awhile, that there was someone that was found going,

trying to get into cars on a street that was nearby that

may have been a street where the car that the shooter

was in had gone to, and it did not seem like a particularly

compelling third party culpability defense in that just,

mechanically, it didn’t sort of make sense.’’ Kirschbaum

further testified: ‘‘It certainly was a decision that I made

and the type of decision that lawyers make, whether

it’s strategic—whether it was a good strategy or not, I

don’t know, but I mean it was certainly—it was a lawyer—a decision that I would make as a lawyer.’’ On

cross-examination by the petitioner, Kirschbaum

acknowledged that the petitioner had asked him to contact McCoy and stated that he had no recollection of

asking his investigator to contact or investigate McCoy.

In the memorandum of decision following the habeas

trial, the court held: ‘‘[A]s to the allegations that Mr.

Kirschbaum failed to . . . present evidence in support

of third party culpability . . . the court finds that no

credible evidence was presented to substantiate the

claimed ineffective assistance of prior habeas counsel.

The petitioner neither affirmatively proved deficient

performance nor, assuming such deficient performance, demonstrated to this court that its confidence

in the outcome of the criminal jury trial should be

undermined.’’

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

reasonable the habeas court’s conclusion that the petitioner failed to affirmatively prove that Kirschbaum’s

failure to investigate the third-party culpability claim

constituted ineffective assistance of counsel. As to the
performance prong of Strickland, the petitioner has

not demonstrated that Kirschbaum’s decision not to

investigate a third-party culpability claim involving

McCoy was anything other than sound trial strategy.

In reviewing ineffective assistance of counsel claims,

‘‘[j]udicial scrutiny of counsel’s performance must be

highly deferential. It is all too tempting for a defendant

to second-guess counsel’s assistance after conviction

or adverse sentence, and it is all too easy for a court,

examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission

of counsel was unreasonable. . . . A fair assessment

of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s

perspective atthe time.Because of the difficulties inherent in making the evaluation, a court must indulge a

strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance;

that is, the [petitioner] must overcome the presumption

that, under the circumstances, the challenged action

might be considered sound trial strategy.’’(Internal quotation marks omitted.) Smith v. Commissioner of Correction, 148 Conn. App. 517, 526–27, 85 A.3d 1199, cert.

denied, 312 Conn. 901, 91 A.3d 908 (2014).

Here, Kirschbaum opined that he did not think it was

a particularly compelling third-party culpability defense

in that it ‘‘just, mechanically, it didn’t sort of make

sense.’’ He testified that not investigating McCoy or

presenting him as a witness in the first habeas trial was

a decision that he made ‘‘as a lawyer.’’ The habeas

court reasonably concluded that the petitioner had not

overcome the presumption that Kirschbaum’s conduct

fell within the wide range of reasonable professional

assistance, and the habeas court properly determined

that habeas counsel’s performance was not deficient.

Moreover, as to the prejudice prong of Strickland,

the petitioner has failed to present evidence showing

that McCoy had any connection to the shooting. As

stated previously, ‘‘[t]he defendant must . . . present

evidence that directly connects a third party to the

crime. . . . It is not enough to show that another had

the motive to commit the crime . . . nor is it enough

to raise a bare suspicion that some other person may

have committed the crime of which the defendant is

accused.’’ (Internal quotation marks omitted.) State v.

Arroyo, supra, 284 Conn. 609. Accordingly, the petitioner has not established that he was prejudiced by

Kirschbaum’s actions.

For the foregoing reasons, we conclude that the

habeas court properly concluded that Kirschbaum did

not render ineffective assistance when he failed to

investigate a third-party culpability claim.

III
ALIBI DEFENSE

In his final claim, the petitioner argues that he was

denied the effective assistance of trial counsel and,

thereafter, habeas counsel, because both Bodell and

Kirschbaum failed to investigate and present an alibi

defense at the criminal trial and at the first habeas trial.

We are not persuaded.

The following testimony, presented at the habeas

trial, is relevant to our resolution of this claim. The

petitioner testified that he had two alibis for his whereabouts when the shooting took place on February 14,

1996. The first alibi was that he was visiting his sister

in New Jersey. The second was that he was in New York

buying cocaine to bring back and sell in Bridgeport. The

petitionerfurther testified that he knew his sister would

not support his first alibi, which was that he was in

New Jersey at the time of the shooting. Thereafter,

Kirschbaum testified that although the petitioner had

told him about the second alibi, ‘‘it was a difficult issue

to investigate . . . .’’ Specifically, Kirschbaum testified: ‘‘I do remember that there was an issue of whether

there were video cameras at the train station, and

whetherthere was still videotape and whether we could

recover that, and I specifically recall having my investigator do that and her reporting to me that—that there

was no such videotape available, so I think that is

related to the—the trip to New York. Iremembertalking

to [the petitioner] about that, and my—about additional

evidence of, you know, people to go find to corroborate

that he was in New York working on this drug deal,

and I don’t have any specific recollection of anyone

being interviewed, located or interviewed.’’

After hearing testimony and reviewing the exhibits,

the court issued a memorandum of decision detailing

the evidence that had been presented at the habeas trial

regarding the petitioner’s alibi. The court stated: ‘‘Mr.

Kirschbaum testified that the only alibi defense the

petitioner had apprised trial defense counsel of was the

petitioner being with his sister in New Jersey, and it

turned out that the sister did not support his alibi. The

petitioner testified during the first habeas corpus proceeding that he had another alibi, one that stood in

conflict with the previously asserted alibi his sister was

to provide, in that he was in New York for a drug deal.

The petitioner had apprised Mr. Kirschbaum of this

second alibi, and former habeas counsel spoke with his

investigator. According to Mr. Kirschbaum, the second

alibi was difficult to investigate, but was investigated

to the extent possible given the information provided

by the petitioner, and therefore remained unsubstantiated.’’ The habeas court concluded: ‘‘Given the foregoing, the petitioner failed to prove both deficient

performance and the required prejudice. The second

alibi was investigated but not substantiated. Additionally, the petitioner has not affirmatively shown that the
second alibi defense that he was in New York when

the murder was committed has any merit.’’

In this appeal, the petitioner claims that Bodell and

Kirschbaum were ineffective in failing to furtherinvestigate an alibi defense.6

In his principal brief, the petitioner alleges that the only thing Bodell did to present

his alibi defense was put his father, Ahab Testman, on

the witness stand at the criminal trial. According to the

petitioner, Testman testified at the criminal trial that

he gave his son a ride to the train station on February

14, 1996, the day of the shooting, and the petitioner

returned one week later. The petitioner claims that

Bodell was ineffective in not further investigating his

alibi claim and, specifically, in not investigating and

discovering the location where the petitioner’s train

traveled to and the date and time of travel. Furthermore,

the petitioner claims that Kirschbaum was ineffective

in failing to make any further investigation in preparation for the first habeas trial.

Concluding that ‘‘the petitioner has failed to prove

both deficient performance and the required prejudice,’’

the habeas court credited Kirschbaum’s testimony at

the habeas trial. Kirschbaum testified that the second

alibi was difficult to investigate but was investigated

to the extent possible, given the information provided

to him. ‘‘The reasonableness of an investigation must

be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.

. . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional

judgment . . . .’’ (Internal quotation marks omitted.)

Burgos-Torres v. Commissioner of Correction, 142

Conn. App. 627, 639, 64 A.3d 1259, cert. denied, 309

Conn. 909, 68 A.3d 663 (2013). Although the petitioner

claims that he was in New York at the time of the

shooting, he did not offer testimony at his habeas trial

of any individuals or any evidence that could corroborate this. As a result, he cannot demonstrate, as he

must, that Kirschbaum’s representation fell below an

objective standard of reasonableness or that Kirschbaum’s alleged deficient performance prejudiced the

petitioner’s defense. Accordingly, we find reasonable

the habeas court’s conclusion that the petitioner failed

to prove both deficient performance and the required

prejudice with regard to his alibi defense.

Having carefully reviewed the issues raised by the

petitioner, we conclude that the habeas court did not

err when it concluded that Kirschbaum did not render

ineffective assistance.

The judgment is affirmed.

In this opinion the other judges concurred.

1 At oral argument before this court, the petitioner conceded that the only

issue raised in this appeal relates to the failure of Kirschbaum to render

effective assistance of counsel. The hearing on the present habeas petition
was held by the habeas court, T. Santos. J., and it is that court’s judgment

that is the subject of this appeal.

2 At oral argument before this court, the petitioner stated that his nickname

is ‘‘Kareem’’ and that Gabree knew of the petitioner because she said she

had purchased drugs from him.

3

In his third petition, the petitioner refers to his appellate counsel as

‘‘Susan Zitser.’’ At the habeas trial, however, she spelled her name for the

record as ‘‘Suzanne Zitser-Curtis.’’ Therefore, we will refer to her as her

name appears on the record.

4 The petitioner failed to reiterate several claims on appeal that he had

raised in his third habeas petition. In particular, the petitioner failed to

include in his briefing the following allegations against Kirschbaum: (1)

failure to present the jury intimidation issue and present testimony from

appellate counsel; (2) failure to present the issue that the trial judge should

have recused himself because he had previously presided over the probable

cause hearing; and (3) failure to present a claim that the jury was not

impartial and that the jury instruction was faulty. Additionally, the petitioner

failed to include three additional counts in his brief that had been alleged

in the third petition. Specifically, these three counts alleged: (1) that the

petitioner’s trial counsel provided ineffective assistance of counsel; (2) that

the petitioner’s appellate counsel, Suzanne Zitser-Curtis, provided ineffective

assistance of counsel; and (3) actual innocence. The petitioner has not

addressed any of the foregoing arguments in his brief to this court, and,

therefore, they are deemed abandoned. See Atkinson v. Commissioner of

Correction, 125 Conn. App. 632, 636 n.5, 9 A.3d 407 (2010), cert. denied,

300 Conn. 919, 14 A.3d 1006 (2011).

5 Along with his claims about Sierra, Johnston, and Birch, the petitioner

claims in his principal brief to this court that there were circumstances

surrounding the testimony of Gabree and Sheriff Michael Gariano that should

have made both Bodell and Kirschbaum conduct further investigation. The

petitioner did not raise these specific claims in his third petition, and they

were not addressed in the habeas court’s memorandum of decision. Therefore, we decline to review them. See Velasco v. Commissioner of Correction,

119 Conn. App. 164, 166 n.2, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994

A.2d 1289 (2010).

6

In his principal brief to this court, the petitioner does not make it clear

which alibi he is referring to, as his alibis have continued to evolve from

his criminal trial to his second habeas trial. He simply alleges in the brief

that his trial counsel and habeas counsel did not investigate his ‘‘alibi claim

. . . .’’ For purposes of our analysis, we will analyze his first alibi and his

second alibi together as one alibi defense.