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*********************************************** 
TYREESE BOWENS v. COMMISSIONER

OF CORRECTION

(SC 20204)

Robinson, C. J., and McDonald, D’Auria, Mullins, Kahn and Ecker, Js.

Syllabus

The petitioner, who had been convicted of murder, sought a writ of habeas

corpus, claiming, inter alia, that he was actually innocent of the crime,

the eyewitness identification procedures employed in connection with

his criminal case violated his due process rights under the federal constitution, his first habeas counsel provided ineffective assistance of counsel, and his sentence for a crime he committed when he was a juvenile,

without any consideration of the mitigating effects of his youth, violated

the constitutional prohibition against cruel and unusual punishments.

The murder occurred as the victim and another person, P, were sitting

in the victim’s parked car at a well illuminated intersection at around

11 p.m. P saw the shooter approach the car, lean into the driver’s side

window, and shoot the victim. The next day at the police station, P

identified the petitioner’s photograph from a photographic array, and

the petitioner was arrested three days later. Two other witnesses, W

and D, testified at the petitioner’s criminal trial, corroborating P’s

description of the events, but they were unable to identify the petitioner

as the shooter. D identified the petitioner in court as the man she had

seen running on an adjacent street shortly after the shooting, entering

the driveway of a house that the petitioner admitted staying at frequently

at the time of the murder, and as a man she previously had seen in her

neighborhood. In support of the alibi defense the petitioner presented

at his criminal trial, he offered the testimony of three witnesses who

claimed that he was with them at a party at C’s home at the time of

the shooting. H, an investigator retained by the petitioner’s trial counsel,

gave trial counsel a report summarizing an interview with C in which

C indicated that the petitioner had been at the party. Trial counsel

thereafter spoke with C twice during the petitioner’s criminal trial but

did not call her as a witness. The state nevertheless called C as a rebuttal

witness, and she testified that she did not know the petitioner and had

never seen him before. The petitioner’s conviction was upheld on direct

appeal. At the petitioner’s first habeas trial, the habeas court denied his

petition, in which he alleged that his trial counsel had rendered ineffective assistance of counsel. During the petitioner’s second habeas trial, the

petitioner presented the expert testimony of K, who testified regarding

scientific research on the reliability of eyewitness identifications. K

testified that several factors surrounding P’s opportunity to observe the

shooter could have undermined the reliability of P’s identification and

that the composition of the photographic array, as well as the procedures

surrounding P’s viewing of the array, undermined the reliability of her

selection of the petitioner’s photograph. At the second habeas trial, the

petitioner also presented the testimony of three witnesses who claimed

that a third party, N, had made statements to them indicating the petitioner’s innocence and implicating himself in the shooting, although they had

never relayed this information to the police. Following the petitioner’s

second habeas trial, the habeas court rendered judgment denying the

petition. On the granting of certification, the petitioner appealed. Held:

1. The habeas court properly denied the petitioner’s claim of actual innocence, as the petitioner failed to sustain his burden of proving by clear

and convincing evidence, in view of all of the evidence adduced at his

criminal and habeas trials, that he was actually innocent of the victim’s

murder and that no reasonable fact finder would find him guilty of that

crime: K’s critique of P’s eyewitness identification did not constitute

affirmative proof of actual innocence, as P’s testimony was not the only

evidence linking the petitioner to the murder and was largely corroborated by another neutral, credible witness, W, and by D, whose testimony,

if credited, would have severely undermined the petitioner’s alibi defense

by placing him near the crime scene shortly after the shooting; moreover,

there were numerous, significant inconsistencies in the testimony of
the petitioner’s alibi witnesses, two of those alibi witnesses were not

disinterested parties and, therefore, their stories may have been viewed

with skepticism by the jury; furthermore, the habeas court’s determination not to credit the testimony of the petitioner’s third-party culpability

witnesses was not clearly erroneous, as those witnesses failed to report

N’s confessions to law enforcement, N’s reputation for veracity was

subject to challenge by virtue of the witnesses’ descriptions of N as

‘‘crazy,’’ ‘‘under the influence,’’ ‘‘paranoid,’’ and as exhibiting bipolar

behavior, and N’s confession to one of those witnesses appeared to be

inconsistent with P’s account of how the victim spent the evening of

the murder.

2. The habeas court correctly concluded that the identification procedures

employed in connection with the petitioner’s criminal case did not violate

his due process rights: this court declined to consider the petitioner’s

contention that the photographic array from which P selected the petitioner’s photograph was unnecessarily suggestive, as that claim had

been adjudicated in the petitioner’s direct appeal from his criminal

conviction, and K’s testimony that certain variables, such as poor viewing

conditions and the stressful effects of suddenly confronting an armed

assailant, undermined P’s ability to recognize the perpetrator was not

compelling, as the jury reasonably could have credited P’s testimony

that she had an adequate opportunity to observe the perpetrator in view

of the fact that the crime scene had been well illuminated and the fact

that P had several opportunities to observe the petitioner at close range

before she saw that he was carrying a firearm; moreover, a review of

the record did not bear out the petitioner’s contention that he was

convicted solely on the basis of P’s identification of him as the shooter,

as the jury, considering the testimony of W and D together, reasonably

could have concluded that the petitioner was the perpetrator.

3. The habeas court properly rejected the petitioner’s claim that his habeas

counsel had provided ineffective assistance at his first habeas trial by

failing to challenge trial counsel’s decision not to impeach C, as trial

counsel’s decision did not prejudice the petitioner’s defense: the petitioner’s failure to call C to testify at his second habeas trial made it impossible

to know how she would have explained and reconciled her inconsistent

statements to H, and, accordingly, it could not be determined how the

jury at the petitioner’s criminal trial would have weighed her statements;

moreover, in light of other evidence admitted at the petitioner’s criminal

trial, there was no reason to believe that the jury would have viewed

C’s inability to recall meeting the petitioner as overly damaging to his

alibi defense.

4. Even if the habeas court incorrectly concluded that the doctrine of res

judicata barred it from resolving the merits of the petitioner’s claim that

it was cruel and unusual punishment for the trial court to have sentenced

him to a term of imprisonment of fifty years for an offense he committed

when he was seventeen years old without considering the mitigating

effects of his youth pursuant to Miller v. Alabama (567 U.S. 460), and

its progeny, he could not prevail on that claim, as this court rejected

virtually identical claims in State v. McCleese (333 Conn. 378) and State

v. Williams-Bey (333 Conn. 468), in which it held that parole eligibility

under a recent legislative enactment (P.A. 15-84) was an adequate remedy under the state constitution, just as it is under the federal constitution, and that, because parole eligibility negates rather than cures a

Miller violation, resentencing is not required.

(One justice concurring in part and dissenting in part)

Argued February 19—officially released October 22, 2019

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

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

denying the petition, from which the petitioner, on the

granting of certification, appealed. Affirmed.

Katharine Goodbody, assistant public defender, with

whom was Alexandra Harrington, former deputy assistant public defender, for the appellant (petitioner).
Timothy F. Costello, assistant state’s attorney, with

whom, on the brief, were Patrick J. Griffin, state’s

attorney, and Rebecca A. Barry, supervisory assistant

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

KAHN, J. The petitioner, Tyreese Bowens, appeals1

from the judgment of the habeas court denying his

second petition for a writ of habeas corpus challenging

a 1998 murder conviction. On appeal, the petitioner

claims, among other things, that the habeas court incorrectly concluded that (1) he did not establish by clear

and convincing evidence that he is actually innocent of

the murder, (2) the identification procedures employed

in his criminal case did not violate his due process

rights, (3) his first habeas counsel did not provide ineffective assistance of counsel, and (4) his cruel and

unusual punishment claims were barred by the doctrine

of res judicata. We affirm the judgment of the habeas

court.

On direct appeal, the Appellate Court briefly summarized the facts of the case as follows: ‘‘On August 18,

1996, Kevin Hood, the victim, and [T’lara] Phelmetta

were riding around New Haven in [the victim’s] car.

[Shortly after 11 p.m., they stopped in front of Mike’s]

convenience store at the well lit intersection of Columbus Avenue, Arch Street and Washington Avenue. [The

victim] made some purchases at the convenience store,

and, upon his return to the car, Phelmetta noticed a

man with a hooded jacket walking toward the car from

Washington Avenue. The man came up to the front

passenger seat window where she was seated and

peered through from about three feet away. She was

able to look closely at his facial features before he

turned away and walked around the back of the car,

appearing to head away from the car. Suddenly, the

man changed course and again approached the car. As

he walked up to the driver’s side, Phelmetta saw him

withdraw a gun from underneath his shirt. The man

leaned into [the victim’s] open window and shot [him]

several times. Phelmetta jumped out of the car through

her window and fled to safety.

‘‘Thereafter, officers from the New Haven [P]olice

[D]epartment patrolling on Columbus Avenue came

upon the victim. A few minutes later, Phelmetta

returned to the scene and told a police detective that

she had witnessed the shooting and gave a description

of the shooter. The following day, on August 19, 1996,

Phelmetta went to the police station, viewed a photographic array and identified the [petitioner] as the

shooter.’’ State v. Bowens, 62 Conn. App. 148, 149–50,

773 A.2d 977, cert. denied, 256 Conn. 907, 772 A.2d 600

(2001). The petitioner was arrested three days later on

August 22, 1996.

In 1998, the case was tried to a jury, which found

the petitioner guilty of murder, in violation of General

Statutes (Rev. to 1995) § 53a-54a (a). The trial court

rendered judgment in accordance with the verdict and

sentenced the petitioner to a term of imprisonment of
fifty years. The conviction was affirmed on direct

appeal. Id., 149.

In 2004, the petitioner filed his first petition for a writ

of habeas corpus, in which he alleged that his criminal

trial counsel, Attorney Thomas J. Ullmann, had rendered ineffective assistance. Following a trial in 2005

(first habeas), the habeas court denied both the petition

and the petitioner’s petition for certification to appeal.

See Bowens v. Commissioner of Correction, 104 Conn.

App. 738, 936 A.2d 653 (2007) (dismissing appeal), cert.

denied, 286 Conn. 905, 944 A.2d 978 (2008).

In 2017, the petitioner filed a second petition for a

writ of habeas corpus, which is the subject of the present appeal. Following a habeas trial, the court denied

the petition but granted the petitioner’s petition for

certification to appeal. See footnote 1 of this opinion.

Additional facts and procedural history will be set forth

as necessary.

I

The petitioner first contends that the habeas court

incorrectly denied his claim that he is actually innocent

of the victim’s murder. He argues that the evidence

presented at the two habeas trials, taken together with

the evidence admitted at his criminal trial, establishes,

clearly and convincingly, that he was actually innocent

of the victim’s murder. The respondent, the Commissioner of Correction, counters that the habeas court

correctly concluded that (1) claims of actual innocence

are only cognizable in the habeas context when founded

on newly discovered evidence,2

(2) much of the evidence presented by the petitioner at the habeas trial3

was not newly discovered, (3) the petitioner’s actual

innocence claim is barred by the doctrine of res judicata, and (4) the petitioner failed to present sufficient

affirmative proof to establish by clear and convincing

evidence that he was actually innocent. We agree with

the respondent’s fourth point: even if we assume that

the petitioner’s claims were—or were not required to

be—predicated on newly discovered evidence and,

even if we assume that they were not barred by the

doctrine of res judicata, the petitioner failed to sustain

his burden of proving that he is actually innocent. For

that reason, we need not address the other arguments

presented by the respondent.

A

Additional Facts

The following additional facts, which the habeas

court found or the jury reasonably could have found;

see, e.g., Miller v. Commissioner of Correction, 242

Conn. 745, 748, 700 A.2d 1108 (1997); are relevant to the

petitioner’s actual innocence claim. Three interrelated

factual questions dominated the petitioner’s criminal

and habeas trials: (1) whether eyewitnesses accurately

identified the petitioner as the shooter; (2) whether he
presented a believable alibi defense covering the time

period when the murder occurred; and (3) whether

a different individual, namely, the petitioner’s cousin,

Tyshan Napoleon, was the actual perpetrator. Each of

these questions bears on the petitioner’s actual innocence claim.

1

Eyewitness Testimony

At the time of the shooting, the victim’s car was

parked on the north side of Columbus Avenue, facing

west, and just west of the Arch Street intersection, in

front of what was known as Mike’s convenience store.

As we discussed, the state’s case against the petitioner

centered around the testimony of the victim’s date,

Phelmetta. She testified at the criminal trial that she

observed the shooter as he crossed Columbus Avenue

and walked up the street toward the passenger side of

the vehicle where she was seated. The shooter drew

her attention as he approached because, although ‘‘it

was pretty warm that day,’’ he was wearing a hooded

sweatshirt (hoodie) with the hood up. Phelmetta

watched the shooter walk approximately three feet up

the sidewalk, peer at her and the victim through the

passenger side window, circle back around the rear of

the car, step into the street, quickly approach the car

from the driver’s side, pull a pistol from under his hoodie, lean into the open driver’s window where the victim

was seated, and begin firing at close range into the

victim’s chest. At that point, Phelmetta jumped out of

the open car window and fled up Arch Street as she

heard additional shots fired. In all, she recalled hearing

approximately seven shots fired.

Phelmetta also testified that she was able to observe

the shooter’s face and features as he initially

approached the car from the driver’s side, as he looked

at her through the passenger side window, and as he

approached the victim’s side of the car. She described

the shooter as a young, dark complexioned black male,

approximately five feet nine inches, with squinty eyes, a

wide nose, and full lips. The day following the shooting,

Phelmetta identified the petitioner as the shooter from

a photographic array.4 She also identified the petitioner

in court as the shooter.

The state also called two additional witnesses who,

although unable to identify the petitioner as the shooter,

provided testimony that largely corroborated that of

Phelmetta. The first, Daniel Newell, was a local resident

who had just parked on the west side of Arch Street,

at, and facing, the intersection with Columbus Avenue,

when the shooting occurred. He testified that he saw

a young black male wearing a hoodie cross Columbus

Avenue from Washington Avenue and approach the victim’s parked car from behind. He then heard shots and

saw sparks coming out of the car as the young man
stood at the driver’s window. Newell then heard a young

lady scream and saw her exit the passenger side of the

car, without opening the door, and run past his car

along Arch Street. After a couple more shots were fired,

Newell saw the young man walk back across the street

toward Washington Avenue and Frank Street, where

he spoke with a young Hispanic looking male. A short

time later, as Newell drove along Frank Street from the

other direction, he saw the same young black man in

the hoodie running or preparing to run down Frank

Street, away from the crime scene. Finally, Newell testified that, although the intersection at Arch Street and

Columbus Avenue was well lit, he did not pay close

attention to the shooter’s facial features.

Next, another local resident, Hilda Diaz, testified that

she was in her apartment on Frank Street at the time

of the shooting when she heard gunfire. She looked out

of her window and saw two young men—one black,

one with a lighter complexion—running down the

street. The men separated, and she watched the black

man run up a driveway that went behind a yellow house

across the street from her.

Diaz believed that she recognized the young black

male as a man whom she previously had seen frequenting the yellow house. Diaz testified that the black male

‘‘had his hair wild, standing up,’’ just like the man whom

she previously had seen on her street. She stated: ‘‘I

said to myself . . . it looks like the guy. I know him.’’

Although Diaz admitted that she did not see the man’s

face as he ran by, she repeatedly stated that she recognized him from his ‘‘wild’’ hair style. In court, Diaz

identified the petitioner as the man whom she saw

running on Frank Street after the shooting and whom

she previously had seen in her neighborhood, although

she noted that his hair was styled differently at the time

of trial.5

During the second habeas trial, the petitioner presented the expert testimony of Margaret Kovera, a professor of social psychology. Kovera testified regarding

scientific research on the reliability of eyewitness identifications. She explained that studies have found that

various factors may undermine the reliability of eyewitness identifications and that those factors may be counterintuitive to the average juror. Consequently, Kovera

opined, expert testimony on the factors that impact the

reliability of eyewitness identifications can sensitize

jurors to those factors and help jurors to make decisions

that reflect the types of variations in accuracy that have

been observed through research.

Kovera then testified that she had reviewed the circumstances surrounding Phelmetta’s opportunity to

observe the shooter, as well as the procedures used

to obtain her identification of the petitioner from a

photographic array and, subsequently, in court. Kovera

opined that several ‘‘estimator factors’’ could have
undermined the reliability of Phelmetta’s identification.

These included the presence of a weapon, the stress

Phelmetta was under at the time of the shooting, that

the shooter was wearing a hoodie that could have disguised his hairline, that the shooting took place at night,

and that Phelmetta had a relatively short period of time

in which to observe the shooter.

Kovera also noted the presence of various ‘‘system

variables’’ that could have undermined the accuracy of

the identification. She opined that the composition of

the photograph array, as well as the procedures surrounding Phelmetta’s viewing of the array, undermined

the reliability of her identification. With respect to the

array itself, Kovera observed that many of the eight

included photographs were ‘‘fillers’’ that did not look

like the petitioner or closely match Phelmetta’s description of the shooter. For example, the photograph of

the petitioner was one of only two photographs that

depicted individuals wearing hooded sweatshirts, one

of only two photographs that depicted individuals with

‘‘puffy’’ or ‘‘pudgy’’ eyes, and one of only three photographs that had a yellow or sepia tone that caused them

to ‘‘pop out from the other pictures.’’ She also noted

that not all of the photographs depicted individuals with

broad noses and dark complexions.

Kovera also noted that the police officers brought

Phelmetta to the police station to make the identification, that they did not utilize a double-blind procedure,

and that there was no indication that the administering

officer ever advised her that the perpetrator might not

be depicted in the array. As a result, Kovera concluded,

Phelmetta might have surmised that the police had the

shooter in custody, that his picture was included in the

array, and that she could identify it simply by the process of eliminating those photographs that were inconsistent with her recollection. Kovera also opined that

it was poor police procedure, and potentially biasing,

for the police officers to have shown Phelmetta a second photographic array containing the petitioner’s picture just prior to her in-court identification of him at

trial.

Finally, Kovera testified regarding Diaz’ testimony

that she recognized the man she saw running on Frank

Street after the shooting as the petitioner because of

his distinctive hair style. Kovera opined that the fact

that Diaz observed the subject at night, from a distance,

and while he was running and wearing a hoodie all

could have impacted the reliability of her recognition

of the petitioner. Kovera also assumed that Diaz’ identification was a cross-racial identification, which, Kovera

opined, was ‘‘problematic in that there’s a very significant body of literature showing that people make more

mistakes when identifying somebody of another race

than they do of their own.’’

The petitioner characterized Kovera’s testimony as
newly discovered evidence. In support of that position,

Kovera testified that, although the first scientific studies

of the reliability of eyewitness identifications were conducted in the late 1970s, it was not until the late 1980s

or early 1990s that discussion began regarding whether

scholars in her field could provide expert testimony in

criminal trials. She stated that the ‘‘solidification’’ of

the role of science in identifications occurred with the

publication of a white paper by the American Psychology Law Society in 1998 but that eyewitness identification experts were not used in Connecticut’s trial courts

until 2012. She also highlighted some ‘‘really recent’’

research into the conditions under which the confidence of an eyewitness identification correlates with

accuracy. Finally, she opined that her report would

have assisted the jury in weighing the eyewitness testimony in the petitioner’s criminal case.

In support of his actual innocence claim, the petitioner argued that new science, encapsulated in Kovera’s testimony, established that his conviction had

been obtained solely on the basis of an unreliable eyewitness identification. In rejecting this claim, the habeas

court ruled that (1) affirmative evidence of actual innocence necessary to support a habeas claim must be

newly discovered, (2) Kovera’s testimony was not newly

discovered evidence; rather, it was a change in the

rules of evidence that permitted the petitioner to proffer

testimony regarding the reliability of eyewitness identification that he could not have introduced at his 1998

trial, and (3) in any event, Kovera’s testimony, if credited, did not qualify as affirmative proof of the petitioner’s innocence but, rather, merely weakened the state’s

case by casting doubt on the reliability of their star

witness. The petitioner challenges all three conclusions

on appeal.

2

Alibi Defense

The relevant facts regarding the petitioner’s alibi

defense are set forth in full in part III A of this opinion.

In brief, the victim was killed at approximately 11:18

p.m. on August 18, 1996. The petitioner testified that

he left his mother’s house in Hamden at approximately

10 p.m., travelled by taxicab with his friend, Celena

Jackson, to her cousin’s birthday celebration in the Fair

Haven section of New Haven, and then left Fair Haven

by taxicab after midnight, returning to Hamden with

Jackson around 1 a.m. Jackson’s testimony largely mirrored that of the petitioner, and two of the other three

adults who were allegedly at the celebration, her cousins Turquoise Cox and Stacy Bethea, also confirmed

that the petitioner was with them on the night of the

murder. The other attendee, Jackson’s cousin, Crystal

Bethea, did not recall the petitioner being present or

ever having met him previously.
The habeas court did not discuss the petitioner’s alibi

at length. The court did note, however, that Diaz’ testimony, if credited by the jury, placed the petitioner in

the vicinity of the murder just moments after it occurred

and, therefore, undercut his alibi defense.

3

Third-Party Culpability

In both of his habeas actions, the petitioner contended not only that he was in Fair Haven at the time

of the murder but also that he could identify the actual

shooter: his cousin, Napoleon. The first habeas action

was filed in 2003 and tried in mid-2005, a few months

after Napoleon died in a shoot-out with the police. In

that petition, the petitioner contended that ‘‘Napoleon

was and is the person who killed [the victim] . . . .’’

At trial, however, his habeas counsel, Attorney Frank

Cannatelli, conceded that the petitioner was unable to

establish at that time that any specific third party had

committed the crime.

In his second habeas petition, the petitioner again

contended that he was actually innocent of the victim’s

murder. At his habeas trial, he produced, for the first

time, three witnesses, each of whom testified that, prior

to his death, Napoleon had confessed to the crime and

lamented that the petitioner had been wrongly convicted. Those witnesses were Joseph Burns, Napoleon’s

former coworker, roommate, and childhood friend;

Tychiah Harrison, Burns’ ex-wife and a cousin of both

the petitioner and Napoleon; and Amika Collins, a childhood friend of the petitioner and the mother of Napoleon’s child.

Burns testified that, at some point in 2000, he offered

a ride to Napoleon, who seemed to be angry and upset.

When Burns asked what was wrong, Napoleon replied

that he was thinking about the petitioner, who was

in prison. Napoleon stated that the petitioner ‘‘really

shouldn’t be there’’ and elaborated that, ‘‘I did that shit,

man. I did that shit. He shouldn’t . . . be there.’’ When

Burns asked Napoleon how he could allow the petitioner to ‘‘go down for this,’’ Napoleon replied, ‘‘I ain’t

going back to jail.’’

Burns conceded that he never reported this conversation to the police, explaining that ‘‘[w]e don’t believe

in going to the police.’’ He also stated that he feared

Napoleon would retaliate had he gone to the authorities.

Harrison testified that, in 1996, Napoleon was living

on Frank Street in New Haven. She recalled that his

moods were often ‘‘high and low’’ and he seemed to be

angry and ‘‘under the influence.’’ She had seen him in

possession of a gun on a number of occasions, and she

knew that he was selling drugs and had weapons at

that time.

Later, on one occasion in 2001 or 2002, Napoleon
showed up unannounced at Harrison’s North Branford

home. He was crying and told Harrison and her husband, Doug, ‘‘[T]his shit is killing me. I need someone

to talk to. You know Tyreese didn’t kill that dude. . . .

Tyreese couldn’t have done that. That, that wasn’t Tyreese. He wasn’t about that life.’’ Napoleon then admitted:

‘‘[I]t was me.’’

Harrison also related a second conversation with

Napoleon that occurred several weeks after the first.

Napoleon had again appeared at Harrison’s home and

told her that the petitioner had been ‘‘across town with

his girl,’’ presumably at the time of the murder. She

also testified that Napoleon indicated, with respect to

some unspecified date, possibly the date of the murder,

that ‘‘that dude came over here, he came over here,’’

and ‘‘I had to run and get my piece, and I ran off the

porch after him.’’

Harrison conceded that she did not report Napoleon’s

statements to the police, despite knowing that the petitioner was incarcerated, because she did not think the

police could do anything. She claimed, however, that

she told her grandmother, Irene Johnson, whom she

believed would know the appropriate people to notify,

as well as her Aunt Thelma.

Harrison’s characterizations of Napoleon, however,

were inconsistent with eyewitnesses’ descriptions of

the shooter. Harrison testified that, in 1996, Napoleon

‘‘didn’t really have too much hair’’ and that it was ’’very,

very short to his scalp and like he was losing his hair

on top. Like it was like fading. It was very, very thin.’’

She also described Napoleon as light skinned, for a

person of color. In addition, she characterized his

demeanor when making his confession as ‘‘paranoid’’

and ‘‘[under] [t]he influence or just crazy . . . [m]aybe

both . . . .’’

Finally, Collins testified that, in late 2004, Napoleon

told her that he ‘‘[g]ets away with a lot of things that

he’s done, that his cousin was locked up for something

that he did, just because his name was Ty.’’ Napoleon

reiterated, ‘‘they got the wrong Ty.’’ Collins admitted

that she never told anyone what Napoleon had said,

even though she knew that the petitioner was in prison.

She claimed that she was afraid of Napoleon and was

testifying at the habeas trial only because he was dead.

With respect to the third-party culpability testimony,

the habeas court found as follows: ‘‘Despite being

related to the petitioner by blood or marriage and having

occasionally lived in the same house where the petitioner and . . . Napoleon sometimes resided, none of

the three witnesses who testified at the present habeas

trial that Napoleon implicated himself as the real

shooter came forward with this information until after

Napoleon’s tragic death some years after the petitioner’s criminal trial. In order to credit the testimony of
[Burns], Harrison, and Collins, a fact finder would have

to believe that these three individuals, all of whom were

well aware [of] the petitioner’s plight, chose to ignore

the grievous injustice suffered by their kin for years

while he languished in prison.

‘‘As noted above, the revelations of these witnesses

about . . . Napoleon were withheld until after Napoleon’s unfortunate demise. The surfacing of these accusations only after Napoleon could no longer be called

to account taints their testimony with the scent of fabrication to benefit the petitioner. One can argue that

these witnesses delayed reporting the conversations

with . . . Napoleon, which exonerated the petitioner,

for fear of these reports leading to Napoleon’s arrest.

Napoleon was also a relative of the witnesses. However,

clear and convincing proof is more exacting than that

sufficient to establish a probability of actual innocence.

Clear and convincing evidence is substantial and

unequivocal evidence that demonstrates a very high

probability that the fact to be proven is true . . . .

‘‘It is at least equally persuasive that these witnesses

took advantage of Napoleon’s earthly departure as a

convenient occasion to cast false blame on him to rescue the petitioner from his fate as it is to believe that

these witnesses allowed the petitioner to sit in prison

for years for a crime of which they knew he was innocent. The equivocal motivations for the witnesses’

belated revelations fail to convince the court, by clear

and convincing evidence, that the petitioner is factually

innocent of [the victim’s] murder [or] that no reasonable

fact finder would convict the petitioner of that crime

after consideration of a combination of the evidence

adduced at both the criminal trial and the habeas proceedings . . . .’’ (Citations omitted.)

B

Governing Law

Habeas corpus relief in the form of a new trial on

the basis of a claim of actual innocence requires that

the petitioner satisfy the two criteria set forth in Miller

v. Commissioner of Correction, supra, 242 Conn. 747.

Under Miller, ‘‘the petitioner [first] must establish by

clear and convincing evidence that, taking into account

all of the evidence—both the evidence adduced at the

original criminal trial and the evidence adduced at the

habeas corpus trial—he is actually innocent of the crime

of which he stands convicted. Second, the petitioner

must also establish that, after considering all of that

evidence and the inferences drawn therefrom as the

habeas court did, no reasonable fact finder would find

the petitioner guilty of the crime.’’ Id.

As to the first prong, we emphasized in Miller that

‘‘the clear and convincing standard . . . is a very

demanding standard and should be understood as such,

particularly when applied to a habeas claim of actual
innocence, where the stakes are so important for both

the petitioner and the state. . . . [That standard]

should operate as a weighty caution upon the minds of

all judges, and it forbids relief whenever the evidence is

loose, equivocal or contradictory. . . . [The standard

requires] extraordinarily high and truly persuasive demonstration[s] of actual innocence.’’ (Citations omitted;

internal quotation marks omitted.) Id., 795.

Moreover, ‘‘actual innocence [must be] demonstrated

by affirmative proof that the petitioner did not commit

the crime.’’ (Emphasis added.) Gould v. Commissioner

of Correction, 301 Conn. 544, 561, 22 A.3d 1196 (2011).

‘‘Affirmative proof of actual innocence is that which

might tend to establish that the petitioner could not

have committed the crime . . . that a third party committed the crime, or that no crime actually occurred.’’

(Emphasis omitted.). Id., 563. ‘‘Clear and convincing

proof of actual innocence does not, however, require

the petitioner to establish that his or her guilt is a factual

impossibility.’’ Id., 564. In part for these reasons, we

emphasized in Miller that ‘‘truly persuasive demonstrations of actual innocence after conviction in a fair trial

have been, and are likely to remain, extremely rare.’’

(Internal quotation marks omitted.) Miller v. Commissioner of Correction, supra, 242 Conn. 805–806.

C

Analysis

1

With respect to Kovera’s expert testimony, we agree

with the conclusion of the habeas court that, as a matter

of law, Kovera’s critique of Phelmetta’s eyewitness identification did not constitute affirmative proof of actual

innocence. The court explained that ‘‘[a] more vigorous

attack on the witnesses’ acumen and memory when

identifying the petitioner as the perpetrator only weakens the prosecution case rather than [tending] to establish that the petitioner could not have committed the

crime . . . . Simply casting doubt on the reliability of

a state’s witness, even a star witness, fails to qualify as

affirmative proof of innocence . . . .’’ (Citation omitted; emphasis omitted.) In other words, the fact that an

identification is made under less than ideal conditions,

even conditions that render it highly suspect, does not

mean that the identification is necessarily inaccurate

or that no reasonable jury could credit it.6

If that were

the case, then many convictions obtained on the basis

of eyewitness testimony would have to be nullified.

The habeas court also observed that, as a factual

matter, Phelmetta’s testimony was not the only evidence tending to link the petitioner to the crime. Rather,

her account of events was largely corroborated by that

of another neutral, credible witness, namely, Newell.

In addition, Diaz testified that an individual, whose hair

she recognized as that of the petitioner, ran behind
a house that the petitioner tended to frequent, mere

moments after the shooting occurred nearby, and at a

time when the petitioner claimed to have been across

town in Fair Haven. So, although Diaz could not link

the petitioner directly to the shooting, her identification,

if credited, would have severely undermined his alibi

defense.7

Indeed, the fact that the petitioner took the stand

and offered an alibi defense at his criminal trial made

Diaz’ testimony especially damaging. As Michael Sheehan, the petitioner’s criminal defense expert, testified

at the habeas trial, presenting a weak, implausible, or

easily rebutted alibi is an especially risky defense strategy. Although a defendant always enjoys the presumption of innocence, ‘‘it is generally acknowledged that

an attempt to create a false alibi constitutes evidence

of the defendant’s consciousness of guilt.’’ (Internal

quotation marks omitted.) Skakel v. Commissioner of

Correction, 329 Conn. 1, 64, 188 A.3d 1 (2018), cert.

denied, U.S. , 139 S. Ct. 788, 202 L. Ed. 2d 569

(2019).

In the present case, it was not only Diaz’ testimony

and the fact that Crystal Bethea did not recall the petitioner having attended Cox’ birthday celebration that

might have led the jury to question the veracity of the

petitioner’s story. During his closing argument, the prosecutor pointed to the numerous, significant inconsistencies in the testimony of the petitioner’s alibi witnesses

as evidence that they had fabricated the alibi story. He

also emphasized that the petitioner himself admitted

to having briefly left Cox’ celebration, ostensibly to

‘‘walk around the projects’’; no one was able to verify

where the petitioner went during that period or how

long he was gone.8 Moreover, Sheehan, the petitioner’s

own expert, conceded that the petitioner’s two principal

alibi witnesses, Jackson and Cox, were not disinterested parties, and, therefore, their stories might have

been viewed with skepticism by the jury.9

For these reasons, we conclude that there is substantial evidence to support the habeas court’s determination that the petitioner failed to establish by clear and

convincing evidence that he is actually innocent of the

charged crime. See Miller v. Commissioner of Correction, supra, 242 Conn. 803 (defining standard of review).

For essentially the same reasons; see Gould v. Commissioner of Correction, supra, 301 Conn. 559 n.14; we

conclude that the petitioner also failed to satisfy the

second prong of Miller, namely, to demonstrate that

no reasonable jury with knowledge of the evidence

presented at the habeas trial would have found him

guilty beyond a reasonable doubt. See Miller v. Commissioner of Correction, supra, 747. At the end of the

day, the jury, in order to find the petitioner guilty, must

have determined that the eyewitness testimony of Phelmetta and Diaz, as linked and corroborated by Newell’s
testimony, was substantially more credible than that of

the petitioner and his alibi witnesses.10 It is certainly

possible that, had it been given the opportunity to filter

the testimony of the state’s witnesses through the lens

of Kovera’s critique, the jury would have weighed the

competing stories differently and come to a different

conclusion. But we are not prepared to say, on this

record, that no reasonable jury, having heard Kovera’s

testimony, could nevertheless find the petitioner guilty

beyond a reasonable doubt. Accordingly, even assuming, for the sake of argument, that Kovera’s testimony

constituted new evidence, we are not persuaded that,

if credited, it would have constituted affirmative proof

of the petitioner’s actual innocence.

2

We also are not prepared to gainsay the habeas

court’s determination that the petitioner failed to prove

by clear and convincing evidence that Napoleon was the

actual perpetrator. Although the court did not expressly

state that the petitioner’s third-party culpability witnesses—Burns, Harrison, and Collins—lacked credibility, the court’s determination that their testimony was

tainted ‘‘with the scent of fabrication’’ was tantamount

to such a finding. Because the habeas court is the sole

arbiter of the credibility of witnesses and the weight

to be given to their testimony, we must defer to that

finding.11 See, e.g., Sanchez v. Commissioner of Correction, 314 Conn. 585, 604, 103 A.3d 954 (2014).

Moreover, even if we were to construe the habeas

court’s determination as a legal, rather than factual,

conclusion, there is ample authority for the court’s conclusion that a witness’ failure to report a purported

third-party confession to law enforcement calls his or

her credibility into question. See, e.g., State v. Bryant,

202 Conn. 676, 703, 523 A.2d 451 (1987) (friends or

acquaintances of defendant may be expected to convey

exculpatory information to police); Moye v. Warden,

Docket No. CV-09-4003191, 2012 WL 3006297, *3 (Conn.

Super. June 22, 2012) (same), aff’d sub nom. Moye v.

Commissioner of Correction, 147 Conn. App. 325, 81

A.3d 1222 (2013), aff’d, 316 Conn. 779, 114 A.3d 925

(2015); State v. Sands, 123 N.H. 570, 612, 467 A.2d 202

(1983) (noting cases from other jurisdictions).

Nevertheless, the petitioner contends that the habeas

court’s findings with respect to the third-party culpability testimony of Burns, Harrison, and Collins are clearly

erroneous because those findings rest on an inaccurate

understanding of the relationship between the witnesses, Napoleon, and the petitioner. Specifically, the

habeas court opined that it was especially implausible

that those witnesses would permit the petitioner to

languish unjustly in prison when they were ‘‘related to

the petitioner by blood or marriage and . . . occasionally lived in the same house [on Frank Street] where

the petitioner . . . sometimes resided . . . .’’ The
petitioner argues that only Harrison, the petitioner’s

cousin, was his kin, and that only Burns ever resided

with the petitioner on Frank Street.

This, however, ignores the fact that Burns also was

essentially family to the petitioner, having lived with

him when the two were children and having dated Harrison in high school and married her in 2010.12 Of the

petitioner’s cousin Napoleon, Burns testified, ‘‘that’s my

extended family. I’m actually closer to his family, than

I am to my own.’’ And of the petitioner himself, Burns

volunteered that ‘‘we were all close. We was like fingers

in the same hand.’’ For her part, Collins was a childhood

friend of the petitioner and, while she was never married to Napoleon, did reside with and have a daughter

with him.

The record reveals a number of reasons why the

habeas court may have declined to credit the petitioner’s witnesses. First, Burns and Harrison were married

for some unspecified period of time while the petitioner

was incarcerated, beginning in 2010. Harrison, however,

testified that she related Napoleon’s confessions only

to her grandmother and her great aunt, whereas Burns

stated that he had never shared Napoleon’s confession

with anyone else. The habeas court reasonably could

have found it to be improbable that the couple, both

of whom had known the petitioner since childhood and

both of whom had been close compatriots of Napoleon

over the years, would never once during their married

life have compared notes on the topic or remarked that

the petitioner was serving time for Napoleon’s crime.

Second, even if one takes the confession testimony

at face value, Napoleon’s reputation for veracity was

subject to challenge. The witnesses variously described

Napoleon as ‘‘crazy,’’ ‘‘under the influence,’’ ‘‘paranoid,’’

and exhibiting bipolar behavior. And Napoleon’s confession to Harrison that he chased the victim off of

his porch on Frank Street, presumably just before the

murder, appears to be inconsistent with Phelmetta’s

account of how she and the victim spent the evening

in question. For these reasons, we conclude that the

habeas court’s decision not to credit the testimony of

Burns, Harrison, and Collins was not clearly erroneous

and that court’s determination that the petitioner failed

to establish his actual innocence by clear and convincing evidence was not incorrect.

II

The petitioner’s second claim also revolves around

Kovera’s expert testimony as to the questionable reliability of eyewitness identifications. The petitioner contends that he was convicted solely on the basis of Phelmetta’s identification of him as the shooter and that

that identification was so unreliable as to violate his

constitutional right to due process of law.13 We are

not persuaded.
A

A due process challenge to an eyewitness identification presents a mixed question of law and fact that we

review de novo. See, e.g., State v. Marquez, 291 Conn.

122, 137, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S.

Ct. 237, 175 L. Ed. 2d 163 (2009). Although we must

defer to any factual findings of the habeas court in this

regard, we do so only after conducting a scrupulous

examination of the record to ascertain whether those

findings are supported by substantial evidence. See id.

The following well established principles guide our

resolution of this issue. The due process clause of the

fourteenth amendment has been construed to bar, in a

criminal prosecution, the admission of evidence deriving from unnecessarily suggestive identification procedures. See Neil v. Biggers, 409 U.S. 188, 196, 93 S. Ct.

375, 34 L. Ed. 2d 401 (1972). In applying this protection,

‘‘each case must be considered on its own facts, and

. . . convictions based on eyewitness identification at

trial following a pretrial identification by photograph

will be set aside on that ground only if the photographic

identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of

irreparable misidentification.’’ (Internal quotation

marks omitted.) Id., 196–97. ‘‘But if the indicia of reliability are strong enough to outweigh the corrupting

effect of the [police arranged] suggestive circumstances, the identification evidence ordinarily will be

admitted, and the jury will ultimately determine its

worth.’’ Perry v. New Hampshire, 565 U.S. 228, 232,

132 S. Ct. 716, 181 L. Ed. 2d 694 (2012).

Moreover, when police misconduct or other state

action is not implicated, and the challenge is simply to

the reliability of the identification itself, the United

States Supreme Court has made clear that the federal

constitution ‘‘protects a defendant against a conviction

based on evidence of questionable reliability, not by

prohibiting [the] introduction of the evidence, but by

affording the defendant means to persuade the jury

that the evidence should be discounted as unworthy of

credit.’’ Id., 237. As that court further explained in Perry,

‘‘the potential unreliability of a type of evidence does

not alone render its introduction at the defendant’s trial

fundamentally unfair. . . . The fallibility of eyewitness

evidence does not, without the taint of improper state

conduct, warrant a due process rule requiring a trial

court to screen such evidence for reliability before

allowing the jury to assess its creditworthiness.’’ (Citations omitted.) Id., 245.

The Supreme Court explained its reasons for

rejecting ‘‘a broadly applicable due process check on

eyewitness identifications . . . . [The] unwillingness

to enlarge the domain of due process . . . rests, in

large part, on our recognition that the jury, not the
judge, traditionally determines the reliability of evidence. . . . We also take account of other safeguards

built into our adversary system that caution juries

against placing undue weight on eyewitness testimony

of questionable reliability. These protections include

the defendant’s [s]ixth [a]mendment right to confront

the eyewitness . . . the defendant’s right to the effective assistance of an attorney, who can expose the flaws

in the eyewitness’ testimony during cross-examination

and focus the jury’s attention on the fallibility of such

testimony during opening and closing arguments [and]

[e]yewitness-specific jury instructions, which . . .

likewise warn the jury to take care in appraising identification evidence. . . . The constitutional requirement

that the government prove the defendant’s guilt beyond

a reasonable doubt also impedes convictions based on

dubious identification evidence.’’ (Citations omitted;

footnote omitted.) Id., 244–47. Accordingly, ‘‘[w]hen no

improper law enforcement activity is involved . . . it

suffices to test reliability through the rights and opportunities generally designed for that purpose, notably,

the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence,

and jury instructions on both the fallibility of eyewitness

identification and the requirement that guilt be proved

beyond a reasonable doubt.’’ Id., 233.

B

With these principles in mind, we turn our attention

to Kovera’s testimony suggesting that the identification

procedures used in the present case were unnecessarily

suggestive. Relying on Kovera’s testimony, the petitioner appears to allege that both system variables, such

as the officers’ use of an unnecessarily suggestive photographic array, and estimator variables, such as poor

visibility, a short exposure duration, and the fear inspiring presence of a firearm, fatally undermined Phelmetta’s ability to identify the perpetrator.

We decline to consider the petitioner’s first contention, that system variables rendered the photographic array from which Phelmetta selected him

unnecessarily suggestive, because essentially the same

claim was adjudicated in the petitioner’s direct appeal.

See, e.g., Carpenter v. Commissioner of Correction,

274 Conn. 834, 845 n.8, 878 A.2d 1088 (2005) (‘‘if an issue

was litigated on appeal, the petitioner is not entitled to

bring a habeas petition challenging the outcome of the

appeal’’ [emphasis omitted]). Specifically, the Appellate

Court considered and rejected the petitioner’s argument

that the array was unnecessarily suggestive because

only two of the eight photographs depicted individuals

wearing hoodies and because the array included pictures of light skinned males who did not have the facial

features that Phelmetta had described. See State v.Bowens, supra, 62 Conn. App. 158–61. The fact that Kovera

discussed certain other obvious factors, such as that
the petitioner’s photograph was one of several photographs in the array that had a yellowish hue, does not

permit him to relitigate the claim in this habeas action.

With respect to the issue of whether estimator variables, such as poor viewing conditions and the stressful

effects of suddenly confronting an armed assailant, rendered Phelmetta’s identification so unreliable as to violate the petitioner’s fourteenth amendment rights, the

United States Supreme Court in Perry specifically

rejected the theory that factors of this sort that cast

doubt on the trustworthiness of an eyewitness identification constitute a due process violation: ‘‘[Many] factors bear on the likelihood of misidentification . . . for

example, the passage of time between exposure to and

identification of the defendant, whether the witness

was under stress when he [or she] first encountered

the suspect, how much time the witness had to observe

the suspect, how far the witness was from the suspect,

whether the suspect carried a weapon, and the race

of the suspect and the witness. . . . To embrace [the

petitioner’s] view would thus entail a vast enlargement

of the reach of due process as a constraint on the

admission of evidence.’’ (Citations omitted; internal

quotation marks omitted.) Perry v. New Hampshire,

supra, 565 U.S. 243–44.

We further note that Kovera’s testimony that estimator variables undermined Phelmetta’s ability to recognize the perpetrator was not especially compelling in

light of the evidence presented at trial. Several witnesses testified that the intersection where the crime

occurred was well lit. Phelmetta testified that she had

several opportunities to observe the perpetrator at close

range, before she saw that he was carrying a firearm

and before she became aware that he posed any threat.

There also is no indication in the record that Phelmetta

is of a different race than the petitioner. Although there

were certain minor inconsistencies between Phelmetta’s trial testimony, the testimony of other witnesses,

and Phelmetta’s prior statements to the police, the jury

reasonably could have credited her trial testimony that

she had an adequate opportunity to observe the perpetrator.

Our review of the record also does not bear out the

petitioner’s contention that Phelmetta’s identification

was the only evidence tying him to the crime. Newell’s

testimony largely corroborated that of Phelmetta. He

testified that he saw a young black male wearing a

hoodie cross Columbus Avenue, approach the victim’s

car from behind, and fire into the driver’s window as

a female passenger fled the vehicle from the passenger

side. Newell reported seeing the same individual a short

time later on Frank Street, just around the time that Diaz

saw a man fitting the same description, who appeared

to be the petitioner, running down and across Frank

Street.
It is true that Newell himself was not able to identify

the petitioner as the shooter and, also, that there was

some ambiguity as to whether Diaz actually identified

the petitioner or merely observed that the individual

whom she saw running down Frank Street immediately

after the shooting looked like the petitioner and ran

behind a house that was frequented by the petitioner.

There is no doubt, however, that the jury, considering

Newell’s and Diaz’ testimony together, reasonably could

have concluded that the petitioner was the perpetrator.

At the very least, the testimony of Diaz, a neighbor,

that a man who looked remarkably like the petitioner

ran behind a house frequented by the petitioner

moments after the shooting would have given the jury

reason to doubt the petitioner’s alibi defense that he

spent the evening at a party on the other side of town.

For all of these reasons, we conclude that the habeas

court correctly concluded that the identification procedures employed in this case did not violate the petitioner’s due process rights.

III

We next consider the petitioner’s claim that his first

habeas counsel, Cannatelli, provided ineffective assistance by failing to pursue a claim against his trial counsel, Ullmann, for failing to properly impeach the state’s

alibi rebuttal witness, Crystal Bethea (Crystal). We are

not persuaded.14

A

The following additional facts are relevant to this

issue. The petitioner presented an alibi defense at trial.

He took the stand and testified that, on the evening of

the shooting, he had been at his mother’s home at 56

Glemby Street in Hamden, together with his friend,

Jackson, and his parents. He and Jackson then decided

to leave to attend a birthday celebration for Jackson’s

cousin, Cox, at Crystal’s home in the Fair Haven section

of New Haven. They called for a taxicab from Metro

Taxi and, at approximately 10 p.m., more than one hour

before the shooting occurred, traveled by taxicab from

Hamden to the celebration.

The petitioner further testified that he and Jackson

remained at Cox’ residence for ‘‘a couple of hours.’’

Around midnight, the petitioner called for another taxicab and requested a driver named Nina, with whom he

was acquainted. When Nina arrived, the petitioner and

Jackson traveled in her taxicab to a diner, where they

ordered take-out food. They then smoked marijuana in

the taxicab as Nina drove them back to 56 Glemby

Street in Hamden, where they arrived at approximately

1 a.m.

The petitioner further testified that, on the day of the

murder, he was never present at the intersection where

the shooting occurred and also that he was never on

Frank Street that day. He also specifically denied that
he shot the victim.

The defense presented four additional witnesses in

support of the alibi. First, Jackson testified that she

and the petitioner traveled by taxicab from Hamden to

the celebration in Fair Haven at 9:30 p.m. and remained

there until approximately 1 a.m. She also recalled that

she called for a taxicab to take herself and the petitioner

home but denied that she and the petitioner previously

knew Nina or requested her as the driver. She did testify,

however, that they took the taxicab to a diner, purchased food, and smoked marijuana with Nina, the

driver, before returning to Hamden. Jackson recalled

that she arrived at her home in Hamden at approximately 2 a.m.

Second, Stacy Bethea (Stacy) testified that she was

already at 4 Bailey Street in Fair Haven with her cousins,

Cox and Crystal, and their respective children, when

Jackson arrived with the petitioner. Stacy recalled that

Jackson and the petitioner later departed in a taxicab,

but she could not remember at what times they arrived

or left the residence. She also testified that she had not

known the petitioner prior to that night, never saw him

again, could not recall what he looked like, and could

not identify him in court.

Cox was the petitioner’s third alibi witness. She confirmed that her birthday is August 18, the same date as

the charged murder. She testified that, on the night of

the shooting, she was celebrating at Crystal’s Fair

Haven apartment. She recalled that the petitioner and

Jackson arrived there by taxicab sometime between

9:30 and 10 p.m. and stayed at the party for approximately three hours. Cox also remembered seeing Jackson call for a taxicab before Jackson and the petitioner

departed around 12:30 or 1 a.m.

Cox, like Jackson, testified that she had learned of

the petitioner’s arrest on August 19, the day following

the murder, notwithstanding testimony by police officers, and the petitioner’s own acknowledgement, that

he was not arrested until three days later, on August

22. Both Cox and Jackson admitted that they did not

go to the police to inform them that the petitioner had

been with them in Fair Haven at the time of the shooting.

The petitioner’s final alibi witness was Francis Anderson, a manager from Metro Taxi. Anderson authenticated documents from his company’s computerized

database that memorialized two telephone calls that

the company had received on August 18 and 19, 1996. On

the basis of those records, he testified that the company

dispatched a taxicab to 56 Glemby Street in Hamden

at 10:03 p.m., with a stated destination of 4 Bailey Street

in Fair Haven, and that the company dispatched another

taxicab at 12:51 a.m. to 4 Bailey Street, with a stated

destination of ‘‘56 Geny Street’’ in New Haven.15

Anderson testified that the driver of the taxicab that
responded to the second call was female but that he

could not recall her name. He also conceded that the

records did not specify whether a taxicab actually went

to Glemby Street in Hamden at 10:03 p.m., who, if anyone, it picked up at that location, or whether it ever

went to Bailey Street in New Haven. Likewise, he could

not confirm whether a taxicab actually went to 4 Bailey

Street in New Haven at 12:51 a.m., whether it picked

up anyone at that location, or whether it transported

anyone anywhere after that.16 Finally, on cross-examination, Anderson estimated that it would take only ten

minutes to travel from Bailey Street to Frank Street in

New Haven.

The petitioner did not call Crystal to testify, even

though she also allegedly had been present at her home

for Cox’ celebration at the time the murder transpired.

The state called Crystal as a rebuttal witness. She testified that she did not know the petitioner and that she

had never seen him before.

On cross-examination, Crystal indicated that she

recalled that Cox, Jackson, and Stacy were present at

her apartment on the evening of August 18, 1996, but

that she did not recall the petitioner being there. Ullmann was able to establish that she had been drinking

alcohol that night.

At the second habeas trial, Ullmann testified that he

began representing the petitioner in September, 1996.

He learned at their first meeting that the petitioner had

a potential alibi defense, and he filed a notice of alibi

shortly thereafter. He testified that his investigator,

Donna Harris, was able to identify, locate, and interview

three of the potential alibi witnesses: Cox, Jackson, and

Crystal. In his case file, Ullmann retained a handwritten

investigative report in which Harris memorialized a September, 1996 phone interview she had conducted with

Crystal. In the report, Harris recounted: ‘‘Ms. Bethea

relates the following. On August 18, 1996, she arrived

home (4 Bailey St.—New Haven) between 9:30-10 p.m.

[The petitioner, Jackson and Cox] were already there.

Everyone stayed until 12:30-1 a.m. when [the petitioner,

Jackson and Cox] left by cab. Cab was called from

her apartment.’’

Ullmann subsequently interviewed Crystal on two

occasions during the petitioner’s criminal trial. The second interview took place at the courthouse on June 5,

1998. This was the same day that the state rested its

case and the defendant presented his alibi witnesses,

and just four days before the state called her to testify

as a rebuttal witness.

At the second habeas trial, Ullmann was questioned

as to why, when Crystal testified at trial that she had

never met the petitioner, he did not confront her with

her prior conflicting statement to Harris that the petitioner had attended Cox’ celebration. Ullmann testified
that he could not recall his reasoning. The petitioner

did not call Crystal to testify at the habeas trial, and,

although Harris testified, she was unable to recall the

details of her conversation with Crystal.

The petitioner then called Sheehan, a highly experienced criminal defense attorney, as a legal expert. Sheehan remarked that Crystal’s unimpeached testimony

was ‘‘important,’’ ‘‘dramatic’’ and ‘‘powerful,’’ and he

opined that a reasonable defense attorney would have

either confronted her with her prior statement or called

Harris to testify. As to Cannatelli, Sheehan observed

that he had alleged ineffective assistance by Ullmann

on several bases, but, Sheehan opined, those claims

were weaker than a claim premised on Ullmann’s failure

to impeach Crystal with her statement to Harris. Consequently, Sheehan opined that, assuming that Ullmann

had no strategic reason for failing to impeach Crystal’s

testimony, Cannatelli’s failure to claim that Ullmann

was ineffective for failing to impeach Crystal also

was unreasonable.

The habeas court found that the petitioner had failed

to prove his claim related to Ullmann’s decision not to

impeach Crystal because the petitioner had not established either necessary element of an ineffective assistance claim, namely, deficient performance or prejudice. See part III B of this opinion. As to deficient

performance, the habeas court stated that, in light of the

presumption that counsel acted competently, Ullmann’s

excellent reputation, and the fact that Ullmann spoke

twice with Crystal in the week before her testimony and

made a strategic decision not to call her as a witness,

the court was ‘‘hesitant to draw the inference that such

omission was the result of oversight rather than discretion.’’ The court speculated that ‘‘[w]hatever information he gleaned from her, motivated . . . Ullmann to

decline to call Crystal as a witness and may have caused

him to be cautious when cross-examining her as a rebuttal witness.’’

With respect to prejudice, the habeas court noted,

among other things, that (1) the petitioner did not call

Crystal to testify at the habeas proceeding, and so failed

to establish how she would have responded if confronted with her statement, (2) the state’s brief direct

examination of Crystal was limited to asking whether

she previously had seen the petitioner, (3) Ullmann was

able to establish on cross-examination that Crystal had

been drinking on the night in question, and (4) Crystal’s

testimony did not figure prominently in either attorney’s

closing arguments, which focused primarily on the testimony of Phelmetta and Diaz. Accordingly, the habeas

court found that the petitioner’s claim that Ullmann

provided ineffective assistance of counsel lacked merit,

and, as such, the petitioner could not prove that Cannatelli was ineffective in failing to challenge Ullmann’s

failure to impeach Crystal during the first habeas trial.
B

The following well established principles govern our

analysis of this claim. ‘‘[T]he habeas court is afforded

broad discretion in making its factual findings, and

those findings will not be disturbed unless they are

clearly erroneous. . . . The application of the habeas

court’s factual findings to the pertinent legal standard,

however, presents a mixed question of law and fact,

which is subject to plenary review. . . .

‘‘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). Strickland requires that a petitioner satisfy both

a performance prong and a prejudice prong. To satisfy

the performance prong, a claimant must demonstrate

that counsel made errors so serious that counsel was

not functioning as the counsel guaranteed . . . by the

[s]ixth [a]mendment. . . . To satisfy the prejudice

prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. . . . Although a petitioner can succeed

only if he [or she] satisfies both prongs, a reviewing

court can find against a petitioner on either ground.

. . . (Citation omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 330

Conn. 520, 537–38, 198 A.3d 52 (2019).

C

With these principles in mind, we now consider

whether the habeas court correctly concluded that Ullmann’s decision not to impeach Crystal with her alleged

statement to Harris did not constitute deficient performance or prejudice the petitioner’s defense. Because

we agree with the habeas court that Ullman’s failure

to question Crystal regarding that statement did not

prejudice the petitioner’s defense, we need not determine whether that court also correctly determined that

Ullman’s performance was not deficient. See id.

As we discussed, the petitioner did not call Crystal

to testify at the habeas trial. Without knowing how

Crystal would have explained and reconciled her allegedly inconsistent statements to Harris, it is impossible

to know how the jury would have weighed them at the

petitioner’s criminal trial. Cf. Gallimore v. Commissioner of Correction, supra, 112 Conn. App. 483; Adorno

v. Commissioner of Correction, 66 Conn. App. 179, 186,

783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428

(2001). That fact alone precludes a finding of prejudice.

It is also noteworthy in this regard that Stacy’s activities and movements on the night of the murder tracked

those of Crystal. Although Stacy testified that she did

recall the petitioner attending the celebration, she also

could not recall what he looked like or identify him in
court. Further, the petitioner’s own testimony was not

necessarily inconsistent with Crystal’s rebuttal testimony. Specifically, in testifying as to his whereabouts

and activities on the night of the murder, the petitioner

stated that he spent only a few minutes in the presence

of Crystal during Cox’ celebration. Further, he conceded that, during that period, he sat on a couch off to

the side and largely remained quiet, while the four

women sat in the kitchen talking among themselves.

Accordingly, there is no reason to think that the jury

would have viewed Crystal’s inability to recall meeting

the petitioner as overly damaging to his alibi defense.

We thus conclude that, even if Ullmann’s representation

of the petitioner was deficient, the petitioner has failed

to establish that he was prejudiced thereby.

IV

Lastly, we consider the petitioner’s argument that the

habeas court incorrectly concluded that his cruel and

unusual punishment claims were barred by the doctrine

of res judicata. Because we resolved the identical underlying constitutional questions in two other recent cases;

see State v. McCleese, 333 Conn. 378, A.3d

(2019); State v. Williams-Bey, 333 Conn. 468, A.3d

(2019); we need not decide whether the habeas

court misapplied the doctrine of res judicata.

The following additional procedural history is relevant to this issue. In March, 2016, the petitioner filed

in the Superior Court a motion to correct an illegal

sentence pursuant to Practice Book § 43-22. Relying on

Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L.

Ed. 2d 407 (2012),17 and its progeny, he argued that it

was cruel and unusual punishment for the trial court

to have sentenced him to a term of imprisonment of

fifty years for an offense that he committed at the age

of seventeen, without first considering the mitigating

impacts of his youth. The petitioner acknowledged that,

in State v. Delgado, 323 Conn. 801, 151 A.3d 345 (2016),

and State v. Boyd, 323 Conn. 816, 151 A.3d 355 (2016),

we concluded that the legislature’s enactment of No.

15-84 of the 2015 Public Acts (P.A. 15-84)18 ‘‘offers a

constitutionally adequate remedy under the eighth

amendment to those who qualify for parole under its

provisions.’’ (Internal quotation marks omitted.) State

v. Delgado, supra, 808. He argued, however, that those

cases did not resolve the issues of whether (1) the

availability of parole adequately vindicates his rights

under the constitution of Connecticut, and (2) P.A. 15-

84 established a constitutionally adequate parole procedure.

The court rejected the petitioner’s argument, concluding that resentencing was not required under the

state constitution. Following what it believed to be the

mandate of Delgado and Boyd, the court dismissed the

petitioner’s motion in March, 2017, rather than denying

it. In May, 2017, the petitioner appealed from the dis-
missal of his motion. See State v. Bowens, Connecticut

Appellate Court, Docket No. AC 40727 (appeal filed

May 18, 2017). In August of that year, the Appellate

Court, sua sponte, stayed that appeal pending this

court’s disposition in Williams-Bey.

At the same time, the petitioner also raised his cruel

and unusual punishment claims in the present habeas

action, including in the operative second amended petition, which he filed in April, 2017. Although the respondent had raised a defense of res judicata only with

respect to issues that the petitioner had raised on direct

appeal or in the first habeas action, the habeas court,

sua sponte, ruled that ‘‘[t]he respondent’s res judicata

defense bars this claim from being relitigated in this

habeas case’’ because the precise claim had been litigated in the motion to correct an illegal sentence.

On appeal to this court, the petitioner contends that

his cruel and unusual punishment claims should not

have been denied on the basis of res judicata because

(1) his motion to correct an illegal sentence was dismissed rather than denied on its merits, and (2) it would

be perverse to require that, ‘‘before seeking to correct

an illegal sentence in the habeas court, a defendant

either must raise the issue on direct appeal or file a

motion pursuant to [Practice Book] § 43-22 with the trial

court’’ (emphasis added); Cobham v. Commissioner of

Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001); but

then to conclude that filing such a motion pursuant to

§ 43-22 precludes a defendant from bringing a subsequent habeas action.

Even if we were to assume, for the sake of argument,

that the petitioner is correct that the habeas court

should have resolved his constitutional claims on the

merits, he cannot prevail on those claims. After the

present case was argued, we released our decisions in

State v. McCleese, supra, 333 Conn. 378, and State v.

Williams-Bey, supra, 333 Conn. 468, in which we

rejected virtually identical claims. Specifically, we held

in those cases that (1) parole eligibility under P.A. 15-

84 is an adequate remedy under our state constitution

just as it is under the federal constitution, and (2)

because the opportunity for parole negates, rather than

cures, a Miller violation, resentencing is not required,

and P.A. 15-84 is constitutionally sound. Accordingly,

we need not determine whether the habeas court

improperly applied the doctrine of res judicata.

The judgment is affirmed.

In this opinion, ROBINSON, C. J., and McDONALD,

D’AURIA and MULLINS, Js., concurred.

1 The petitioner, on the granting of certification, appealed from the judgment of the habeas court to the Appellate Court, and we transferred the

appeal to this court pursuant to General Statutes § 51-199 (c) and Practice

Book § 65-1.

2 On the respondent’s motion, we permitted the parties to submit supplemental briefs to address the issue of whether newly discovered evidence

is required to sustain a claim of actual innocence in the habeas context.
3 Unless otherwise noted, all references to the habeas trial are to the

petitioner’s second habeas trial, which is the subject of the present appeal.

4 The trial court denied the petitioner’s motion to suppress Phelmetta’s

identification, ruling that the identification procedure was not unnecessarily

suggestive, and the Appellate Court upheld that ruling on direct appeal.

State v. Bowens, supra, 62 Conn. App. 157–61.

5 The petitioner’s mother, Alice Buie, and his cousin, Tychiah Harrison,

both confirmed that, in the summer of 1996, the petitioner lived at or regularly

visited and stayed at a house at 24-26 Frank Street that Buie’s family owned.

The petitioner himself admitted to having stayed at that location two to

three times per week in August, 1996.

6 See, e.g., Cook v. Ohio, Docket No. 2:15-cv-02669, 2016 WL 374461, *10

(S.D. Ohio February 1, 2016), report and recommendation adopted and

affirmed, 2016 WL 770998 (S.D. Ohio February 29, 2016); Hale v. McDonald,

Docket No. ED CV 09-00570-DMG (VBK), 2010 WL 4630268, *16 (C.D. Cal.

July 30, 2010), report and recommendation accepted and adopted, 2010 WL

4628056 (C.D. Cal. November 8, 2010), aff’d sub nom. Hale v. Cate, 530 Fed.

Appx. 636 (9th Cir. 2013); Coleman v. Thompson, 798 F. Supp. 1209, 1216–17

(W.D. Va.), aff’d, 966 F.2d 1441 (4th Cir.), cert. denied, 504 U.S. 992, 112 S.

Ct. 2983, 119 L. Ed. 2d 600 (1992); see also Carriger v. Stewart, 132 F.3d

463, 477 (9th Cir. 1997) (‘‘[a]lthough the postconviction evidence [that the

petitioner] presents casts a vast shadow of doubt over the reliability of his

conviction, nearly all of it serves only to undercut the evidence presented

at trial, not affirmatively to prove [his] innocence’’), cert. denied, 523 U.S.

1133, 118 S. Ct. 1827, 140 L. Ed. 2d 963 (1998); G. Weiss, ‘‘Prosecutorial

Accountability After Connick v. Thompson,’’ 60 Drake L. Rev. 199, 242 (2011)

(‘‘evidence that challenges the credibility of a witness for the prosecution

is of a different category than true Brady [v. Maryland, 373 U.S. 83, 87, 83

S. Ct. 194, 10 L. Ed. 2d 215 (1963)] material, which tends to show the actual

innocence of the criminal defendant’’ [footnote omitted]).

7 The petitioner contends that Diaz never actually identified him as the

individual whom she saw on Frank Street after the shooting but, rather,

merely noted a resemblance between the men. The jury, however, reasonably

could have interpreted Diaz’ testimony that, ‘‘I said to myself . . . it looks

like the guy. I know him,’’ together with her identification of the petitioner

at trial, as a positive identification.

8 The prosecutor also highlighted other aspects of the petitioner’s testimony that lacked credibility, such as his bizarre statements that, even though

he was living alone several days each week at the house on Frank Street

and already had a child of his own, he was bound by a self-imposed ‘‘curfew’’

and so rarely went out in the evenings.

9

Jackson testified that she was a close friend of the petitioner’s and that

he had dated Cox for a while.

10 The petitioner takes issue with the habeas court’s statement that ‘‘[t]he

sequence of events surrounding the shooting of the victim described by

. . . Phelmetta [was] unassailable.’’ The petitioner contends that this determination is clearly erroneous because (1) Kovera’s testimony called into

question Phelmetta’s ability to accurately perceive and recall the events

surrounding the murder, and (2) Newell described the events immediately

preceding the shooting as having transpired much more quickly than did

Phelmetta, and without the shooter having first peered into her side of the

car, which could suggest that Phelmetta had less of an opportunity to observe

the shooter than she indicated at trial. The habeas court did not determine,

however, that Phelmetta’s identification of the petitioner was unassailable.

We take the court’s point simply to be that the overall sequence of events

that the jury reasonably could have found—a man wearing a hoodie

approached the car from across Columbus Avenue, walked up to the victim’s

window, fired point blank into the car, crossed back onto Washington Street,

and was seen fleeing on Frank Street a few minutes later—is generally

consistent with the testimony of Phelmetta, Newell and Diaz, each of whom

was an unbiased observer.

11 For the same reason, we are not persuaded by the petitioner’s argument

that the habeas court gave insufficient credence to the testimony of those

witnesses that they did not notify law enforcement of Napoleon’s confessions

for fear that he would retaliate. Of course, the court may have discounted

that testimony because none of the witnesses came forward to clear the

petitioner’s name even after Napoleon died, or for twelve years thereafter.

12 The two were no longer married at the time of the habeas trial in 2017.

13 In his habeas petition, the petitioner alleged violations of his due process

rights under both the fourteenth amendment to the United States constitu-
tion and article first, §§ 8 and 9, of the constitution of Connecticut. However,

because the petitioner has neither briefed the state constitutional question

nor presented any argument as to why article first, §§ 8 and 9, affords

broader protection than its federal counterpart, we limit our analysis to

the petitioner’s rights under the fourteenth amendment. See, e.g., State v.

Delgado, 323 Conn. 801, 805 n.4, 151 A.3d 345 (2016); State v. Gonzalez, 278

Conn. 341, 347 n.9, 898 A.2d 149 (2006).

14 Because we resolve the petitioner’s actual innocence claim on the merits;

see part I of this opinion; we need not address his predicate claim that

Cannatelli acted deficiently in failing to withdraw that claim during the first

habeas trial. The petitioner states in his brief that he contends that Cannatelli

provided ineffective assistance only to overcome the respondent’s assertion

that that his actual innocence claim is barred by the doctrine of res judicata.

15 Anderson stated that, to the best of his knowledge, there is no Geny

Street in either New Haven or Hamden, suggesting that the entry was likely

a scrivener’s error.

16 The call records indicate that both calls were for a single passenger.

That is to say, on each document, the field titled ‘‘# Psgrs’’ has an entry of

‘‘1.’’ Anderson’s testimony did not indicate whether, if the call had in fact

been made for two passengers, Metro Taxi’s ordinary business practice

would have been to indicate that by entering a ‘‘2’’ on the ‘‘# Psgrs’’ field

of the form. It is impossible to know, then, whether the jury may have

interpreted those documents as evidence that only Jackson attended Cox’

celebration.

17 In Miller, the United States Supreme Court held that mandatory life

imprisonment without the possibility of parole for those who were under

the age of eighteen at the time of their crimes violates the eighth amendment’s

prohibition against cruel and unusual punishment. See Miller v. Alabama,

supra, 567 U.S. 489.

18 Public Act 15-84, codified at General Statutes § 54-125a (f) (1) (A),

provides in relevant part: ‘‘[A] person convicted of one or more crimes

committed while such person was under eighteen years of age, who is

incarcerated on or after October 1, 2015, and who received a definite sentence or total effective sentence of more than ten years for such crime or

crimes prior to, on or after October 1, 2015, may be allowed to go at large

on parole in the discretion of the panel of the Board of Pardons and Paroles

for the institution in which such person is confined, provided . . . if such

person is serving a sentence of fifty years or less, such person shall be

eligible for parole after serving sixty [percent] of the sentence or twelve

years, whichever is greater . . . .’’