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*********************************************** 
ERIC HAM v. COMMISSIONER OF CORRECTION

(AC 37998)

Alvord, Keller and Flynn, Js.

Syllabus

The petitioner, who had been convicted of murder and several other crimes

in connection with the shooting death of the victim, sought a writ of

habeas corpus, claiming, inter alia, that he was deprived of his right to

due process because the prosecutor at his criminal trial failed to disclose

material exculpatory evidence. The state’s theory of the case was premised on the shooting having occurred at 2:20 a.m. Hospital records

showed that the petitioner had been admitted at 2:49 a.m. seeking treatment for a gunshot wound that he claimed to have received when he

was accosted on a street in an attempted robbery. L, a police sergeant,

testified for the state that she had been dispatched at 2:05 a.m. to meet

with the petitioner in the hospital. The prosecutor thereafter recalled

L, who testified that after her initial testimony, she checked her daily

notebook and the police department’s activity log, and realized that her

previous testimony was inaccurate and that she had been dispatched

at 2:48 a.m. to meet the petitioner in the hospital. In his habeas petition,

the petitioner alleged, inter alia, that after L’s initial testimony, the state

asked her to produce evidence that contradicted her prior testimony

that she had been dispatched at 2:05 a.m. to meet with the petitioner

in the hospital, and that the prosecutor knew that L’s corrected testimony

was false. The petitioner also claimed that the prosecutor was aware

of and did not disclose to the defense that L had been involved in an

incident five years earlier in which she fatally shot a suspect during an

arrest and that she was subject to prosecution for it at the time that

she testified at the petitioner’s criminal trial. The petitioner further

alleged that H, one of his prior habeas counsel, had rendered ineffective

assistance because, inter alia, she failed to pursue a claim that D, the

petitioner’s criminal trial counsel, had rendered ineffective assistance

by failing to adequately challenge L’s testimony about what time she

was dispatched to meet with the petitioner in the hospital and L’s motivation to testify falsely against him. The habeas court rejected the petitioner’s claims and rendered judgment denying the habeas petition.

Thereafter, the habeas court denied the petition for certification to

appeal, and the petitioner appealed to this court. Held:

1.The habeas court properly denied the petition for certification to appeal

with respect to the petitioner’s claim that the prosecutor failed to disclose material exculpatory evidence concerning L, the petitioner having

failed to demonstrate that the issues he raised were debatable among

jurists of reason, that a court could have resolved them in a different

manner or that they deserved encouragement to proceed further: the

petitioner’s ability to confront L at trial was not undermined to any

significant degree by the prosecutor’s failure to disclose the information

at issue, which lacked an appreciable potential to have altered the jury’s

assessment of L’s credibility, none of the facts surrounding L’s role in

the fatal shooting of the suspect five years earlier supported a reasonable

inference that she was under a threat of prosecution at the time of the

petitioner’s criminal trial, a police internal affairs report that stated that

L had been directed to undergo counseling after the fatal shooting did

not reasonably support an inference that her reputation in the police

department was tarnished or that her job was in jeopardy at the time

of the petitioner’s criminal trial, and there was no merit to the petitioner’s

claim that L had a motive to commit perjury and to fabricate evidence

to support her corrected trial testimony; moreover, even if the prosecutor

suppressed evidence that was favorable to the defense, the petitioner

did not demonstrate that it was material, as the materiality of the evidence was inextricably linked to the petitioner’s theory, which relied

on inferences that were not at all reasonable, that L committed perjury

and fabricated evidence to support the state’s case and to curry favor

with the Office of the State’s Attorney.

2. The habeas court did not abuse its discretion in denying the petition for
certification to appeal with respect to the petitioner’s claim that H

rendered ineffective assistance: because the petitioner failed to prove

that he was prejudiced by D’s performance, he was unable to demonstrate that he was prejudiced by H’s failure to pursue claims that were

related to D’s performance, as the petitioner relied on facts that were

not explored during D’s cross-examination of L, the inferences on which

the petitioner relied were unreasonable in that they were not logically

drawn from the facts in evidence, and his claim of prejudice as to D

was unsubstantiated to the extent that it was based on D’s failure to

cross-examine L about her testimony that she had not referred to additional resources for her corrected testimony other than her personal

notebook and the police daily activity log; moreover, the petitioner did

not dispute that L’s corrected testimony was consistent with police

department records and corroborated by hospital records, and the avenues of inquiry that the petitioner claimed that D should have pursued

were not likely to have been persuasive to the jury, as they were not

logically related to the evidence and the reasonable inferences to be

drawn therefrom.

Argued September 18, 2018—officially released January 15, 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, Fuger, J.; judgment

denying the petition; thereafter, the court denied the

petition for certification to appeal, and the petitioner

appealed to this court. Appeal dismissed.

Vishal K. Garg, for the appellant (petitioner).

Mitchell S. Brody, senior assistant state’s attorney,

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

attorney, and Rebecca A. Barry, assistant state’s attorney, for the appellee (respondent).
Opinion

KELLER, J. The petitioner, Eric Ham, appeals from

the judgment of the habeas court denying his petition

for certification to appeal from the court’s denial of his

third amended petition for a writ of habeas corpus.

The petitioner claims that the habeas court abused its

discretion in denying his petition for certification to

appeal with respect to his claims that (1) the prosecutor

at his criminal trial violated his right to due process by

failing to disclose material exculpatory evidence and

(2) counsel in a prior habeas action deprived him of

his right to the effective assistance of counsel by failing

to pursue a claim of ineffective assistance on the part

of his criminal trial counsel. Because we conclude that

the court properly exercised its discretion in denying

the petition for certification to appeal, we dismiss

the appeal.

The following facts and procedural history are relevant to the present appeal. In 1996, following a jury

trial, the petitioner was convicted of murder in violation

of General Statutes § 53a-54a (a), conspiracy to commit

murder in violation of General Statutes §§ 53a-48 and

53a-54a (a), assault in the first degree in violation of

General Statutes § 53a-59, larceny in the third degree

in violation of General Statutes § 53a-124 (a) (1), conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-124 (a)

(1), and falsely reporting an incident in violation of

General Statutes (Rev. to 1993) § 53a-180 (a) (3) (A).

The court, Hon. William L. Hadden, Jr., judge trial

referee, sentenced the petitioner to a fifty-year term

of imprisonment.

The petitioner brought a direct appeal, during which

he was represented by Attorney William S. Palmieri.

This court affirmed the judgment of conviction, and

our Supreme Court denied the petitioner’s petition for

certification to appeal from this court’s judgment. State

v. Ham, 55 Conn. App. 281, 739 A.2d 1268, cert. denied,

252 Conn. 916, 743 A.2d 1128 (1999).1 This court summarized the facts that reasonably could have been found

by the jury: ‘‘[I]n March, 1993, the [petitioner], accompanied by four masked men, approached Alex Santana

and asked him where to find his cousin, George Flores.

When Santana replied that he had not seen Flores, the

[petitioner] punched Santana in the face, causing him

to be thrown against a store window. The owner of

the store came outside and the [petitioner] and his

companions departed.

‘‘On May 5, 1993, at approximately 11 p.m., the [petitioner] agreed to pay Ronaldo Rivera $40 if he would

steal a large, fast, four door automobile and deliver it

to the [petitioner]. Rivera found such a vehicle on Frank

Street in New Haven and, with the help of a friend,

stole a four door Buick and brought the car to the
[petitioner] and another man on Ward Street at approximately 2 a.m.

‘‘Santana had been riding that night in the car of

his friend, Butch Console, with three other persons,

Marilyn Torres, Melissa Dawson and Dimiris Vega.

When the car stopped on Button Street, the occupants

got out. As they were standing by the car, a man

approached and offered to paint Console’s initials on

the driver’s door. Console agreed and then stood next

to a red station wagon parked on the opposite side of

the street. Meanwhile, his friends stood on the street

side of Console’s car watching the man paint. Console

noticed a car approaching slowly on Button Street. He

saw what he first thought were firecrackers coming

from the rear seat of the car. When he realized it was

gunfire, Console ran around the front of the station

wagon to the sidewalk and knelt to avoid the bullets.

The approaching car was the stolen Buick and contained the [petitioner] and three companions. Gunfire

erupted from the area of the rear seat of the Buick.

One bullet hit Santana in the stomach, resulting in his

hospitalization. Another bullet struck Torres in the

back, causing her death. The evidence indicated that

at least five shots were fired from close range.

‘‘A few minutes later, the [petitioner] and his companions crashed the Buick on Howard Avenue and abandoned it with the motor running, the rear door open,

a bullet casing on the floor behind the driver’s seat,

and a sheet covering the rear seat wet with blood. The

rear window had been blown out. A second shell was

found on the roof of the car, and a third was found on

Button Street at the shooting scene. The [petitioner]

went to the Hospital of [Saint] Raphael (hospital) at

2:49 a.m. to seek treatment for a gunshot wound. He

spoke with a New Haven police officer at 3:05 a.m. He

gave a statement to Sergeant Diane Langston declaring

that he and his friend had been accosted and shot on

the street in an attempted robbery by two masked men.

The [petitioner] stated that he and his friend then ran

directly to the hospital.

‘‘A ballistics expert testified that the bullet obtained

from Torres’ body matched the .45 caliber shell casing

found on the floor of the Buick. The other casings found

on the roof of the Buick and on Button Street came from

a nine millimeter gun. A fingerprint expert identified

fingerprints found on the interior of the driver’s door as

those of the [petitioner]. Experts from the state forensic

laboratory testified that the blood on the sheet covering

the backseat was consistent with the [petitioner’s]

blood type.’’ Id., 283–85.

In 2012, the petitioner filed an initial petition for a

writ of habeas corpus and, in December, 2014, he filed

the operative, third amended petition.2

In his petition,

the petitioner raised six claims. The claims raised in the

present appeal relate to the court’s denial of portions
of the first and sixth counts of the petition.

In the first count, the petitioner claimed that he was

deprived of his right to due process because the prosecutor at his criminal trial, John Waddock, failed to disclose ‘‘material exculpatory evidence.’’ The petitioner

alleged that this included evidence that the defense

could have used to impeach two of the state’s witnesses,

namely, Langston and Santana. Langston is a retired

sergeant of the New Haven Police Department who, as

a patrol officer in 1993, met with the petitioner during

the early morning of May 6, 1993, and was a witness for

the state at his criminal trial. Central to the petitioner’s

claims concerning Langston is the fact that, on January

8, 1997, she testified, consistent with her police report

in this matter, that, on May 6, 1993, she was dispatched

to meet with the petitioner at the hospital at 2:05 a.m.

On January 13, 1997, the prosecutor recalled Langston

as a witness for the state, and Langston testified that,

following her initial testimony in this case, and on her

own initiative, she checked her personal daily notebook

as well as the police activity log maintained by her

department. Relying on these records, Langston realized that, with respect to the specific time at which she

had been dispatched to meet with the petitioner, her

previous testimony was inaccurate. During her later

testimony, she stated that, on May 6, 1993, she had been

dispatched to meet with the petitioner at 2:48 a.m. It

is undisputed that the time at which Langston had been

dispatched to meet with the petitioner was significant

in light of the fact that the state’s theory of the case was

premised on the shooting having occurred at 2:20 a.m.

Pertinent to the claims raised in the present appeal,

the petitioner alleged that the prosecutor was aware

of, but did not disclose information that the defense

could have used to challenge Langston’s credibility, particularly with respect to her testimony concerning the

time at which she had been dispatched to meet with

him at the hospital on May 6, 1993. Specifically, the

petitioner alleged that the prosecutor failed to disclose

that ‘‘Langston was involved in a previous incident for

which she was subject to prosecution at the time she

testified at the petitioner’s criminal trial,’’ and that, ‘‘[o]n

January 8, 1997, [following her initial testimony at the

petitioner’s criminal trial] the prosecuting authority

asked . . . Langston to obtain and produce evidence

contradicting her prior testimony that she had been

dispatched to speak with the [petitioner] at 2:05 a.m.

on May 6, 1993.’’ The petitioner alleged that there is a

reasonable probability that, had the evidence at issue

been disclosed to the defense in a timely manner, the

outcome of the trial would have been more favorable

to him.

In the second count, the petitioner claimed that he

was deprived of his right to due process because the

prosecutor presented testimony from Langston and
Santana that the prosecutor knew or should have

known to be false, and that the prosecutor failed to

correct their testimony. As relevant to the claims raised

in the present appeal, the petitioner alleged that, during

her trial testimony after she was recalled as witness by

the prosecutor, Langston falsely testified ‘‘that she was

dispatched to meet with [the petitioner] at 2:48 a.m. on

May 6, 1993, and . . . that she checked her personal

notebook and daily activity logs on January 8, 1997, of

her own volition.’’ The petitioner alleged that, but for

the false testimony, the outcome of the trial would have

been more favorable to him.

In the third count, the petitioner claimed that he

was deprived of his right to the effective assistance of

counsel because his trial counsel, William F. Dow, was

deficient in several respects. As relevant to the claims

raised in the present appeal, the petitioner alleged that

Dow ‘‘failed to adequately cross-examine, impeach, or

otherwise challenge the testimony of Diane Langston

concerning the time she was dispatched to meet with

the petitioner and her motivation to testify falsely

against the petitioner . . . .’’ The petitioner alleged that

there was a reasonable probability that, absent Dow’s

deficient performance, the outcome of the trial would

have been more favorable to him.

In the fourth count, the petitioner claimed that he

was deprived of his right to the effective assistance

of counsel because his appellate counsel, William S.

Palmieri, failed to raise certain claims of error. The

petitioner alleged that there was a reasonable probability that, absent Palmieri’s deficient performance, the

outcome of his direct appeal would have been more

favorable to him.

In the fifth count, the petitioner claimed that he was

deprived of his right to the effective assistance of counsel because prior habeas counsel, Frank Cannatelli,

failed to raise or failed adequately to pursue the four

claims that he previously raised in the present petition.

The petitioner alleged that there was a reasonable probability that, absent Cannatelli’s deficient performance,

the outcome of his prior habeas action would have been

more favorable to him.

In the sixth count, the petitioner claimed that he

was deprived of his right to the effective assistance

of counsel because his prior habeas counsel, Hilary

Carpenter, was deficient in a number of ways. Specifically, the petitioner argued that Carpenter failed to raise

or failed adequately to pursue the five claims that he

previously raised in the present petition. One aspect of

his claim concerning Carpenter’s representation was

that she failed to pursue a claim of ineffective assistance

arising from Dow’s failure ‘‘to adequately cross-examine, impeach, or otherwise challenge the testimony of

. . . Langston concerning the time she was dispatched

to meet with the petitioner and her motivation to testify
falsely against the petitioner . . . .’’ The petitioner

alleged that there was a reasonable probability that,

absent Carpenter’s deficient performance, the outcome

of his prior habeas action would have been more favorable to him.

The respondent, the Commissioner of Correction,

denied the substantive allegations in the petition. By

way of defenses, the respondent alleged that, to the

extent that the petitioner was raising claims that could

have been raised in his direct appeal, in prior habeas

actions, or in prior appeals in habeas actions, he was

procedurally defaulted from doing so because ‘‘[he] has

deliberately bypassed the opportunity to contest said

issues,’’ and has not shown cause and prejudice as to

why such claims were not raised previously. Additionally, the respondent alleged that, to the extent that the

petitioner was attempting to relitigate issues that had

been raised and decided in his direct appeal, his prior

petitions, or in prior appeals in habeas actions, he was

barred from doing so under the doctrine of res judicata.

Finally, relying on the petitioner’s history of filing

habeas petitions, the respondent raised the defense of

abuse of the writ. In the petitioner’s reply to the return,

he alleged that none of the defenses relied on by the

respondent applied to his claims.

During the course of three days in January, 2015, the

court, Fuger, J., held a hearing concerning the petition.

With respect to the claims set forth in the petition, the

petitioner presented the testimony of nine witnesses.

These included himself; Dow; Waddock; Palmieri; Cannatelli; Carpenter; Langston; Jason Minardi, a lieutenant

with the New Haven Police Department who previously

had been the officer in charge of its internal affairs

division; and Roy Olson, a retired captain of the New

Haven Police Department who supervised its internal

affairs division for seven years. The court received several exhibits and, at the conclusion of the trial, both

parties filed posttrial briefs.

In its lengthy memorandum of decision filed April

24, 2015, the court addressed all of the claims raised

in the petition. In parts I and II of this opinion, we

discuss in greater detail those portions of the habeas

court’s decision that are relevant to the claims raised

in the present appeal. At this juncture, it suffices to

discuss generally the parameters of the court’s decision.

In counts one and two of the petition, the petitioner

alleged violations of his right to due process resulting

from the prosecutor’s failure to disclose exculpatory

evidence concerning Langston and Santana. Insofar as

these claims related to Langston, the court rejected

them on their merits. Insofar as these claims were

related to Santana, the court deemed the claims to

be abandoned.

The court also rejected the claims raised in counts

three, four, and five of the petition. The court, relying
on the petitioner’s history of filing habeas petitions,

concluded that the respondent properly invoked the

defense of res judicata and that it barred litigation of

the claims of ineffective assistance on the part of Dow,

Palmieri, and Cannatelli.

Furthermore, the court rejected the claim raised in

count six, in which the petitioner alleged ineffective

assistance on the part of Carpenter for failure to pursue

claims of ineffectiveness on the part of Dow, Palmieri,

and Cannatelli. The court rejected each aspect of this

claim on its merits.

Finally, the court addressed the respondent’s defense

of abuse of the writ. In a comprehensive analysis of

the issue, the court concluded that the petitioner had

abused the writ. Particularly troubling in the court’s

view were the claims of impropriety directed at the

prosecutor, concerning whom the court found ‘‘no evidence whatsoever showing any misconduct or impropriety.’’ The court concluded that, although it believed

that the petitioner had abused the writ, it declined to

dismiss the petition in light of the fact that the petitioner’s claim of ineffective assistance on the part of Carpenter had not previously been raised and adjudicated.

Following the court’s denial of the petition for a writ

of habeas corpus, the petitioner filed a petition for certification to appeal. See General Statutes § 52-470. The

petition encompassed the rulings which are the subject

of the present appeal. The court denied the petition.

This appeal followed. Additional facts will be set forth

as necessary.

Before we reach the merits of the petitioner’s claims,

we discuss his burden in demonstrating that he is entitled to relief. ‘‘Faced with a habeas court’s denial of a

petition for certification to appeal, a petitioner can

obtain appellate review of the dismissal of his petition

for habeas corpus only by satisfying the two-pronged

test enunciated by our Supreme Court in Simms v.

Warden, 229 Conn. 178, 640 A.2d 601 (1994), and

adopted in Simms v. Warden, 230 Conn. 608, 612, 646

A.2d 126 (1994). First, he must demonstrate that the

denial of his petition for certification constituted an

abuse of discretion. . . . Second, if the petitioner can

show an abuse of discretion, he must then prove that

the decision of the habeas court should be reversed on

the merits. . . .

‘‘To prove an abuse of discretion, the petitioner must

demonstrate that the [resolution of the underlying claim

involves issues that] are debatable among jurists of

reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to

deserve encouragement to proceed further. . . . In

determining whether the habeas court abused its discretion in denying the petitioner’s request for certification,

we necessarily must consider the merits of the petition-
er’s underlying claims to determine whether the habeas

court reasonably determined that the petitioner’s

appeal was frivolous. . . .

‘‘In evaluating the merits of the underlying claims on

which the petitioner relies in the present appeal, we

observe that [when] the legal conclusions of the court

are challenged, [the reviewing court] must determine

whether they are legally and logically correct . . . and

whether they find support in the facts that appear in

the record. . . . To the extent that factual findings are

challenged, this court cannot disturb the underlying

facts found by the habeas court unless they are clearly

erroneous . . . . [A] finding of fact is clearly erroneous

when there is no evidence in the record to support it

. . . or when although there is evidence to support it,

the reviewing court on the entire evidence is left with

the definite and firm conviction that a mistake has been

committed.’’ (Citation omitted; internal quotation

marks omitted.) Diaz v. Commissioner of Correction,

174 Conn. App. 776, 785–86, 166 A.3d 815, cert. denied,

327 Conn. 957, 172 A.3d 204 (2017).

I

First, we address the petitioner’s claim that the court

improperly denied his petition for certification to appeal

with respect to his claim that the prosecutor violated

his right to due process3 by failing to disclose material

exculpatory evidence. We disagree with the petitioner.

As we previously stated, in count one of his amended

petition for a writ of habeas corpus, the petitioner

alleged in relevant part that the prosecutor was aware

that (1) ‘‘Langston was involved in a previous incident

for which she was subject to prosecution at the time

she testified at [his] criminal trial,’’ and (2) ‘‘[o]n January

8, 1997, the prosecuting authority asked . . . Langston

to obtain and produce evidence contradicting her prior

testimony that she had been dispatched to speak with

[the petitioner] at 2:05 a.m. on May 6, 1993.’’ The petitioner alleged that the prosecutor failed to disclose

this information to the defense, this information was

‘‘exculpatory or otherwise favorable evidence that

should have been disclosed to [him] or his counsel prior

to his criminal trial,’’ and the evidence was ‘‘material

because there is a reasonable probability that—had it

been disclosed in time to be used by the defense during

[his] criminal trial—the result of [his] trial would have

been different and more favorable to [him].’’ As we

discussed previously, in count two, the petitioner

alleged in relevant part that the prosecutor presented

false testimony from Langston, specifically, her testimony that (1) she was dispatched to meet with the

petitioner at 2:48 a.m., on May 6, 1993, and (2) on January 8, 1997, following her initial trial testimony, she

voluntarily checked her daily activity notebook in an

effort to verify the accuracy of her testimony concerning the time at which she had been dispatched to meet
with the petitioner.

In rejecting this claim concerning the prosecutor’s

conduct, the court set forth detailed factual findings.

The court stated in relevant part: ‘‘The court will begin

its discussion with the direct appeal from the criminal

conviction, where the [petitioner’s] second claim . . .

[was] based on the admission into evidence of hospital

records relating to the [petitioner’s] visit to the hospital

for treatment of the gunshot wound that he claimed to

have received in the attempted robbery. The following

additional facts [were] necessary for [the Appellate

Court’s] resolution of this claim. The hospital records

indicated that the [petitioner] was admitted at 2:49 a.m.

on the morning of the crimes. [During the petitioner’s

criminal trial on January 8, 1997] Sergeant Langston

. . . testified that she had taken a statement from the

[petitioner] at the hospital shortly after 2:05 a.m.

Because the state claimed that the shooting occurred

at 2:20 a.m., Langston’s testimony would have provided

the [petitioner] with an alibi if it were correct. [On

January 13, 1997] [t]he state called Langston to testify

once again after the introduction of the hospital

records. It also introduced into evidence, over the [petitioner’s] objection, two previously undisclosed statements by Langston, both of which indicated that she

had not been dispatched to the hospital until 2:48 a.m.

She testified that her earlier testimony was the result

of human error. State v. Ham, supra, 55 Conn. App.

287. The Appellate Court concluded that the hospital

records were properly admitted into evidence because

the only purpose for introducing the hospital records

was to explain the basis for Langston’s correction of

her previous testimony concerning the time of the [petitioner’s] hospital visit . . . . Id., 289.

‘‘This court finds the following additional facts. It is

uncontroverted that Langston testified about the times

of certain events when she first testified during the

criminal trial on January 8, 1997. Attorney Dow crossexamined Langston about the times to which she testified on direct examination and offered her report, which

corroborated her direct testimony, into evidence as a

business record. . . . Dow argued [that the report was

critical to establishing the petitioner’s whereabouts in

the hours following the shooting and that the report

was not so cumulative so as to prejudice the state’s

case]. . . .

‘‘Judge Hadden [acknowledged that the timing of

events described by Langston was undoubtedly relevant

with respect to the issues in the case, but] sustained

the state’s objection to portions of Langston’s report

becoming full exhibits because the report was cumulative to her testimony. . . .

‘‘Attorney Dow then continued his cross-examination

of Langston with a series of questions that sought to

accentuate the times she had testified to. . . . The
prosecutor began his redirect examination by asking

Langston about the accuracy she strives for in her

reports and other recorded information. Langston

acknowledged that she at times made mistakes in her

reports. . . . The prosecutor then sought to question

Langston about when she heard a radio broadcast concerning another incident on Button Street that occurred

during the time that Langston had testified she was

writing her report, to which defense counsel objected

and the jury was excused. . . . The exchange between

Judge Hadden and the prosecutor about the objection

shows that [during his examination on January 8, 1997]

the prosecutor was attempting to somehow show that

the times testified to by Langston were incorrect. . . .

[The prosecutor] ultimately withdrew his question.’’

(Citations omitted; internal quotation marks omitted.)

The habeas court observed that, at the criminal trial

and outside of the presence of the jury, the prosecutor

and Judge Hadden engaged in a colloquy concerning

Langston’s testimony that, on the morning of the shooting, she spoke to the petitioner at the hospital at 2:05

a.m., as well as the evidence that the shooting occurred

at 2:20 a.m. The habeas court observed that, during

that colloquy, the prosecutor acknowledged that this

discrepancy in the state’s case could amount to ‘‘serious

trouble’’ for the state.

The habeas court continued: ‘‘The jury then returned

to the courtroom, and redirect examination continued

with [the prosecutor] asking Langston about her having

made, during the course of her career, mistakes in

police reports as to times of events. . . . Dow then

questioned Langston on recross-examination to emphasize the times that Langston had testified to and that

she strives for accuracy in her reports. . . . Court then

adjourned and resumed on January 13, 1997.’’ (Citation omitted.)

The habeas court observed that, on January 13, 1997,

Langston was recalled as a witness by the state and

questioned about the accuracy of her prior testimony,

on January 8, 1997, concerning the time at which she

had been dispatched to meet with the petitioner at the

hospital on May 6, 1993. The prosecutor asked Langston

if she had referred to a police activity log as well as

her daily notebook, neither of which she had with her

during her testimony on January 8, 1997. Langston testified that she had occasion to review these materials.

The prosecutor offered a page from Langston’s daily

notebook covering May 6, 1993, and Dow objected to

its admission on the ground that the document had not

been disclosed to the defense previously. Dow argued

that the state, having been aware of the discrepancy in

Langston’s testimony concerning the time at which she

had been dispatched to meet with the petitioner, should

have disclosed the document to the defense on January

8, 1997, or, at the very latest, on the morning of January
13, 1997. Nonetheless, the court admitted the document

from Langston’s daily notebook as a full exhibit. Over

Dow’s objection, the court also admitted the daily activity log that was maintained by the police department.

The court denied Dow’s motion to strike Langston’s

testimony of January 13, 1997, observing that the state

‘‘[had] . . . a right to bring out through the offering of

these exhibits and the testimony of this witness what,

from the state’s perspective, is the accurate [time] that

this sergeant went to the hospital and when she interviewed the [petitioner]. The defense has full and ample

opportunity to cross-examine her with respect to the

contents of both of these exhibits. . . .

‘‘The jury then returned to the courtroom and the

direct examination of Langston continued, with the

prosecutor asking a series of questions related to the

notebook excerpt and the daily activity log that supported Langston’s testimony that her prior testimony

about when she was at [the hospital] was incorrect.

. . . Langston acknowledged that the times she put in

her report and testified to in her initial testimony [on

January 8, 1997] were incorrect due to human error.

. . .

‘‘Dow used his cross-examination to emphasize [that]

Langston’s original testimony was correct and [to]

undermine the credibility of her subsequent corrections. . . . Dow also questioned Langston as to how

she came to realize that her initial testimony was incorrect . . . .’’ (Citations omitted; internal quotation

marks omitted.)

The habeas court referred to the transcript of Dow’s

extensive cross-examination of Langston during the

criminal trial on January 13, 1997, during which Dow

elicited from Langston that, shortly after she left the

courthouse after testifying on January 8, 1997, she

reported for duty at the police department. Upon her

arrival, she reviewed her personal notebook as well as

the police daily activity logs. She testified that, with

respect to the timing of when she had been dispatched

to meet with the petitioner, she had ‘‘ ‘conducted [her]

own investigation as to times’ ’’ and immediately noted

her mistake concerning her testimony and the time that

appeared in her report, the document on which she

relied during her testimony on January 8, 1997. Thereafter, Dow elicited from Langston that she had not

attempted to contact the prosecutor’s office immediately, but spoke to an inspector in the prosecutor’s

office, whom she identified as ‘‘Ortiz,’’ about the matter

by telephone on Saturday, January 11, 1997. During

Dow’s examination, Langston acknowledged that it was

important for a police officer who was testifying in a

murder prosecution to be as accurate and complete as

possible with respect to key facts. She testified that,

during her initial testimony, she merely had relied on

the time set forth in her police report. At that time,
Langston testified, she believed her report to be

accurate.

The habeas court stated: ‘‘Dow then questioned Langston about whether she had spoken with any of the

police detectives involved in the investigation of the

petitioner’s offenses, as well as whether she was aware

that all police reports are signed under penalty for making a false statement.’’ The court set forth a portion

of Dow’s cross-examination of Langston in which she

testified that, on Saturday, January 11, 1997, she discussed with Ortiz the fact that her January 8, 1997

testimony was erroneous with respect to the time at

which she had been dispatched to meet with the petitioner and that Ortiz instructed her to bring any relevant

documents to court with her on Monday, January 13,

1997. As the court observed, Dow explored the times

in Langston’s report, the accuracy of the report at the

time it was prepared, and the fact that she had reviewed

the report three times prior to her initial testimony.

The court continued: ‘‘In the present matter . . .

Langston testified on direct examination [during the

habeas trial] that she spoke with [the prosecutor] about

the times in her report after completing her initial testimony. According to Langston, she told [the prosecutor]

that if there were any time errors in her report, those

errors could be rectified by receiving other records

maintained by the police department (e.g., the daily

activity log). Langston again acknowledged, consistent

with her testimony the second time she testified during

the criminal trial, that she put incorrect times in her

report, but that her personal notebook and the police

activity log contained the correct times. Langston indicated that the likely source of the incorrect time in her

report was the petitioner himself, because the report

pertained to the incident in which the petitioner claimed

that he and a friend had been the victims of a shooting

and robbery.

‘‘As to her history with internal affairs . . . Langston

testified that she was unaware of having such a history

prior to testifying in the petitioner’s criminal trial. The

officer-involved shooting [of Ronald Carney in 1992] in

which Langston used deadly force to protect a fellow

police officer occurred approximately five years prior

to the petitioner’s criminal trial and, as mandated by

department policy, was investigated by internal affairs.

. . . Langston acknowledged that she sought out counseling to help her deal with the trauma she experienced

after the shooting. Langston was not charged with any

offenses after the state’s attorney’s office also investigated the shooting.4

‘‘[At the habeas trial, the prosecutor] presented brief

testimony. Although he could not recall many of the

details surrounding the underlying criminal case he

prosecuted, [he] recalled that Langston testified twice

and that the times she testified to the first time were
incorrect. [The prosecutor] could neither recall whether

he asked Langston to find evidence showing her times

were incorrect, nor if Langston told him that she could

obtain documents that demonstrated the correct times,

nor what he disclosed to the defense, nor whether he

was aware of any internal affairs investigations into

Langston. [The prosecutor] acknowledged that the timing of when Langston spoke with the petitioner at the

hospital was in contention and that Langston corrected,

with supporting documentation, her initially incorrect

testimony during her second appearance.

‘‘The petitioner’s former defense counsel, Attorney

Dow, testified [at the habeas trial] that part of the

defense strategy evolved in tandem with Langston’s

report and initial testimony, which essentially would

have made her the petitioner’s alibi witness. Langston’s

initial testimony undeniably was helpful to the petitioner because he could not have been in the hospital

giving a statement to Langston at the time the shooting

occurred on Button Street. Thus, Dow strove to enhance

her credibility when Langston first testified. Attorney

Dow was not surprised by, and even anticipated, that

the state would attempt to correct Langston’s incorrect

testimony. Knowing that such correction was forthcoming, Dow used that temporary advantage to the petitioner’s benefit by engaging in plea negotiations with the

state. The petitioner was not interested in accepting a

plea agreement. When Langston returned to testify for

the second time, Dow rigorously cross-examined her

about her efforts to correct her testimony while also

continuing to underscore the credibility of her initial

testimony. However, Langston’s corrected testimony

was consistent not only with police department records,

but was also corroborated by hospital records that

showed the petitioner’s admission time to be later than

what was contained in Langston’s [inaccurate] report.

‘‘[At the habeas trial] Lt. Jason Minardi, who previously was the officer in charge of internal affairs for

the New Haven Police Department . . . could not

locate any disciplinary records pertaining to Langston.

According to Minardi, a finding that there was no disciplinary violation would result in the purging of the internal affairs file three years after the investigation into

the incident was completed. When wrongdoing is found,

however, the files are retained for thirty years after

someone is terminated or retires.5 Counseling is not a

form of discipline. Captain Olson, who prepared the

memorandum regarding the 1992 officer-involved

shooting, testified that he did not know if Langston was

ever disciplined for the two off-duty incidents mentioned in his memorandum, nor did he know any other

information about either disciplinary actions, if any, or

whether Langston was charged with offenses.

According to Olson, internal affairs reports were kept

indefinitely until 1994, when the department’s policy

changed, at which point the purging [of files], including
retroactively purging of files where no misconduct was

found, described by Lt. Minardi, began.

‘‘Given the foregoing testimonies (which the court

finds credible both individually and collectively), the

court concludes that the petitioner has failed to show

that the prosecutor was aware of Langston’s prior officer-involved shooting, let alone that she was subject to

prosecution for her action during that incident. The

petitioner has also presented no credible evidence that

the prosecutor asked Langston to obtain and produce

evidence contradicting her initial testimony. The due

process claims in count one as to Langston are without merit.

‘‘As to the due process claim in count two as to

Langston, the examination by the prosecutor and

defense counsel during the first day she testified itself

demonstrated to Langston that she needed to look into

whether the times in her report were correct or whether

she had erred when producing her report. If anything,

both the state and Langston had an obligation to correct

testimony that was incorrect. . . . Consequently, the

claim in count two as it pertains to Langston, which

alleges that the prosecutor knew or should have known

Langston’s initial testimony was false and failed to correct it, is incongruous.’’ (Citations omitted; footnote in

original; footnote added.)

Additionally, in rejecting the petitioner’s argument

that the nondisclosed evidence concerning Langston

was material, the court stated: ‘‘The petitioner’s posttrial brief makes the outlandish argument that ‘the fact

that Langston was potentially subject to prosecution

for the shooting death of Ronald Carney [in 1992] provided her with a motive to fabricate evidence to comply

with the prosecuting authority’s request that she obtain

evidence showing that her January 8, 1997 testimony

was false, in order to avoid being prosecuted for the

shooting of Carney.’ Such argument has no basis in fact.

It is the petitioner’s argument that contains grandiose

and fantastical reasons or motives for Langston fabricating evidence so that she could avoid being prosecuted for the shooting that occurred five years prior to

the petitioner’s trial.’’ (Citation omitted.)

On appeal, the petitioner argues that the court

improperly rejected his claim that the prosecutor failed

to disclose (1) that Langston was involved in the shooting incident in 1992 ‘‘and that she had a lengthy internal

affairs history that was described in an internal affairs

report concerning that shooting,’’6 and (2) ‘‘that the

prosecuting authority had requested that Langston

obtain evidence contradicting her initial testimony

about the time she was dispatched to meet with the

petitioner.’’ The petitioner argues that the court improperly determined that the prosecutor lacked knowledge

of Langston’s internal affairs history. In this regard, the

petitioner argues that the habeas court ignored well
settled authority in support of the proposition that

knowledge of any information known to the police

department is imputed to the prosecutor, and that the

prosecutor is under a duty to learn of and to disclose

to the defense any information contained in police personnel files that is relevant to an officer’s credibility.

Moreover, the petitioner argues that the court improperly concluded that no credible evidence supported his

claim that the prosecutor had asked Langston to obtain

evidence contradicting her initial trial testimony. In this

regard, the petitioner argues that the court found credible the prosecutor’s testimony at the present habeas

trial, but the court ‘‘apparently overlooked’’ evidence

that, at a prior habeas trial, the prosecutor testified

that, at the time of the criminal trial, he had, in fact,

asked Langston to investigate in an effort to determine

whether there was any evidence to support her corrected testimony.

‘‘Whether the petitioner was deprived of his due process rights due to a . . . violation [under Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963)] is a question of law, to which we grant plenary

review. . . . The conclusions reached by the [habeas]

court in its decision to [deny] the habeas petition are

matters of law, subject to plenary review. . . . Thus,

[w]here the legal conclusions of the court are challenged, we must determine whether they are legally and

logically correct . . . and whether they find support

in the facts that appear in the record. . . . Also, [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.’’ (Citation omitted;

internal quotation marks omitted.) Stevenson v. Commissioner of Correction, 165 Conn. App. 355, 363, 139

A.3d 718, cert. denied, 322 Conn. 903, 138 A.3d 933

(2016).

‘‘It is well established that suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either

to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution. . . . To establish a

Brady violation the defendant bears the burden of demonstrating: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the

defense; and (3) that it was material.’’ (Citations omitted; internal quotation marks omitted.) Demers v. State,

209 Conn. 143, 149–50, 547 A.2d 28 (1988). ‘‘If . . . the

petitioner has failed to meet his burden as to one of

the three prongs of the Brady test, then we must conclude that a Brady violation has not occurred.’’ Morant

v. Commissioner of Correction, 117 Conn. App. 279,

296, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d

1080 (2009).

‘‘Under the last Brady prong, the prejudice that the

defendant suffered as a result of the impropriety must
have been material to the case . . . . [T]he evidence

will be deemed material only if there would be a reasonable probability of a different result if the evidence had

been disclosed. . . . This standard is met if the favorable evidence could reasonably be taken to put the

whole case in such a different light as to undermine

confidence in the verdict.’’ (Citations omitted; internal

quotation marks omitted.) Lapointe v. Commissioner

of Correction, 316 Conn. 225, 262–63, 112 A.3d 1 (2015);

see also Greene v. Commissioner of Correction, 330

Conn. 1, 29, 190 A.3d 851 (2018) (discussing Brady’s

materiality prong).

‘‘It is well established that impeachment evidence

may be crucial to a defense, especially when the state’s

case hinges entirely upon the credibility of certain key

witnesses. . . . The rule laid out in Brady requiring

disclosure of exculpatory evidence applies to materials

that might well alter . . . the credibility of a crucial

prosecution witness.’’ (Internal quotation marks omitted.) State v. Esposito, 235 Conn. 802, 815–16, 670 A.2d

301 (1996).

Before the habeas court, the petitioner articulated

an argument with respect to the materiality of the undisclosed information concerning Langston. The petitioner

argued: ‘‘Langston had previously been involved in the

shooting death of Ronald Carney. As a result of that

incident, Lieutenant Roy Olson of the New Haven Police

Department produced a memorandum regarding the

shooting of Ronald Carney and the involvement of

Diane Langston and other officers in that shooting. The

memorandum outlined Langston’s prior internal affairs

history. The memorandum stated that Langston had

two previous internal affairs files, each involving offduty conduct. Langston also had several memoranda

in her internal affairs files that were issued while she

was in the training academy. Langston had accumulated

all of these files in just over three years of service as

a police officer. As a result of one of the internal affairs

investigations and the memoranda from the training

academy, Langston was told to see a doctor for counseling. Under New Haven Police Department policy, Langston would have been told to undergo counseling as a

result of a pattern of behavior that was detrimental to

the department. Had the prosecuting authority turned

over the fact that Langston had been involved in the

shooting death of Ronald Carney and the internal affairs

reports of the local police department concerning the

shooting, the defense would have been aware of all of

the foregoing facts.

‘‘The evidence concerning the shooting death of Ronald Carney and the fact that the prosecuting authority

requested that Langston obtain a specific piece of evidence [related to the timing of when she had been

dispatched to meet with the petitioner] . . . would

have been relevant to the credibility of . . . Langston
because it tended to show that she had a motive to

testify falsely in order to secure a conviction. First, the

fact that Langston was potentially subject to prosecution for the shooting death of Ronald Carney provided

her with a motive to fabricate evidence to comply with

the prosecuting authority’s request that she obtain evidence showing that her January 8, 1997 testimony was

false, in order to avoid being prosecuted for the shooting of Carney. Additionally, Langston’s lengthy internal

affairs history and the fact that she specifically had

been required to undergo counseling were all facts

showing that she had engaged in conduct that was harmful to her reputation in the police department. It would

have been reasonable for the jury to infer that Langston’s reputation within the police department would

have been further harmed had she provided the key

piece of evidence that led to an acquittal in a high profile

case and that she would fabricate evidence to avoid

harming her reputation.’’ (Footnotes omitted.) The petitioner continued his argument concerning materiality

by emphasizing the importance of Langston’s trial testimony. The petitioner raises similar materiality arguments before this court.7

We need not resolve the issue of whether the prosecution suppressed evidence concerning Langston that was

favorable to the defense because, in our plenary review

of the constitutional issue presented, we agree with the

habeas court’s assessment that the evidence, if admissible in whole or in part, was not material. The touchstone

of a materiality analysis under Brady concerns the overall fairness of the trial and whether the prosecutor’s

failure to disclose undermines our confidence in the

verdict. Lapointe v. Commissioner of Correction,

supra, 316 Conn. 263. We must consider ‘‘if the withheld

evidence is of sufficient import or significance in relation to the original trial evidence that it reasonably

might give rise to a reasonable doubt about the petitioner’s guilt.’’ Id. The prosecutor’s failure to disclose information concerning Langston’s internal affairs history

and her involvement in the shooting death of Carney

five years prior to the petitioner’s criminal trial does

not undermine our confidence in the verdict.

Langston’s initial direct examination was brief; the

substance of the testimony elicited from Langston by

the prosecutor may be summarized as follows. Langston

testified that she was dispatched to meet with the petitioner at the hospital at 2:05 a.m. on May 6, 1993. Thereafter, she spoke with the petitioner while he was in the

emergency room, and he told her that he and a friend

were leaving a store in New Haven when they were

accosted by two black males. According to Langston,

the petitioner told her that he sustained a gunshot injury

when the men attempted to rob them and that he and

his friend proceeded directly to the hospital. Certainly,

Langston’s testimony with respect to when she was

dispatched to meet with the petitioner was an important
part of the state’s case. It was not, however, the only

evidence of when the petitioner was present at the

hospital.8

The petitioner’s ability to confront Langston was not

undermined to any significant degree by the prosecutor’s failure to disclose the information at issue because

the information at issue lacked an appreciable potential

to have altered the jury’s assessment of Langston’s credibility. The internal affairs report at issue refers extensively to the conduct of the three police officers who

were involved in the incident during which Langston

shot Carney, yet it does not suggest that Langston acted

wrongfully or unlawfully during that incident. The

report states, among other things, that Carney resisted

when Officer Richard Pelletier attempted to handcuff

him following a criminal trespass complaint. During the

struggle, Carney struck another officer, Joseph Boyd,

and gained possession of his service weapon. A struggle

ensued between Carney and Pelletier, during which

time Carney discharged Boyd’s weapon into the air.

Langston sought to assist Pelletier when Carney

‘‘attempted to train the weapon at her while pulling at

the trigger.’’ Langston, after taking cover, watched from

a safe distance as Carney continued to struggle with

Pelletier while Pelletier held Carney’s hands and arms

upward so that he was unable to use Boyd’s weapon.

Langston summoned additional police assistance, but

became concerned when it appeared that Pelletier was

losing ground in the struggle and there was a serious

threat to officer safety. Langston fired a single fatal

gunshot at Carney, striking him in the back of the head.

Likewise, the internal affairs report refers to the fact

that Langston was directed to receive counseling as a

result of ‘‘off-duty conduct in Bridgeport’’ and that

‘‘[s]he does have several memoranda in her internal

affairs files which were issued while she was in the

training academy.’’

None of the facts surrounding Langston’s role in Carney’s death supports a reasonable inference that, at the

time of the petitioner’s criminal trial, she was living

under a realistic or imminent threat of prosecution for

her role in Carney’s death. Moreover, the scant information in the report concerning counseling does not reasonably support an inference that, at the time of the

petitioner’s criminal trial, Langston’s reputation in the

police department was tarnished or that her job was

in jeopardy. The further and critical inference on which

the petitioner relies to demonstrate materiality is, as

the court aptly characterized it, ‘‘outlandish . . . .’’ In

an attempt to link the Carney shooting and the internal

affairs report to the testimony at issue in this case, the

petitioner argues that it would have been reasonable

for the jury to infer that Langston had not merely a

motive to commit perjury in an effort to convict an

innocent person, but a motive to fabricate evidence,

namely, the evidence that supported her corrected trial
testimony concerning the time at which she had been

dispatched to meet with him. This reasoning strains credulity.

The petitioner also argues that a Brady violation

occurred because the prosecutor failed to disclose that,

at the time of the criminal trial, he asked Langston

to obtain and produce evidence that contradicted her

initial trial testimony.9 Consistent with our previous

analysis, even if we were to assume that, in this regard,

the prosecutor suppressed evidence that was favorable

to the defense, the petitioner has not demonstrated

that this evidence was material. The materiality of this

evidence is inextricably linked to the petitioner’s theory

that, because Langston either feared prosecution

related to Carney’s death or because she was concerned

for her standing in the New Haven Police Department,

Langston committed perjury and fabricated evidence

in an attempt to lend support to the state’s case and,

thus, curry favor with the Office of the State’s Attorney.

As we have explained previously, the inferences on

which this theory relies are not at all reasonable.

For the foregoing reasons, we are not persuaded that

the resolution of the petitioner’s Brady claim involves

issues that are debatable among jurists of reason, that

a court could resolve the issues in a different manner,

or that the questions involved deserve encouragement

to proceed further. Accordingly, we conclude that the

petitioner has failed to demonstrate that the habeas

court improperly denied his petition for certification to

appeal with respect to this claim.

II

Next, the petitioner claims that the habeas court

improperly denied his petition for certification to appeal

with respect to his claim that counsel in a prior habeas

action, Carpenter, deprived him of his right to the effective assistance of counsel by abandoning the claim that

trial counsel, Dow, deprived him of his right to the

effective assistance of counsel by failing to adequately

examine, impeach, and challenge the testimony that

Langston provided after she was recalled as a witness

by the state.10 We disagree with the petitioner.

As we discussed previously in this opinion, in count

six of his third amended petition for a writ of habeas

corpus, the petitioner claimed in relevant part that, in

a prior habeas action, Carpenter rendered ineffective

assistance in that she failed to plead, argue, and prove

the claim set forth in count three of his petition. In claim

three, the petitioner alleged that Dow had rendered

ineffective assistance during the criminal trial by failing

adequately to ‘‘cross-examine, impeach, or otherwise

challenge the testimony of . . . Langston concerning

the time she was dispatched to meet with the petitioner

and her motivation to testify falsely against the petitioner . . . .’’
In rejecting this aspect of the petitioner’s claim of

ineffective representation by Carpenter, the habeas

court essentially determined that the petitioner could

not prevail because there was no evidence that Dow

performed deficiently as trial counsel. The court stated:

‘‘This court’s review of the criminal trial transcripts

demonstrates that Attorney Dow vigorously questioned

Langston, whether to support her initial testimony or

challenge her ensuing corrections, and the petitioner

has not presented any evidence as to how Attorney Dow

could have any better challenged Sergeant Langston on

the dispatch times or her purported motivations for

presenting false testimony.’’

Presently, the petitioner focuses on what he believes

to be Carpenter’s failure in the prior habeas action to

substantiate adequately his claim that Dow’s second

cross-examination of Langston, after she was recalled

as a witness by the state, was deficient. In his appellate

brief, the petitioner argues that in the prior habeas

action, Carpenter raised a claim concerning Dow’s deficient performance as it related to his cross-examination

of Langston and that Carpenter ‘‘was aware that the

claim could be supported by impeachment evidence

contained in Langston’s internal affairs file.’’ He argues

that Carpenter’s performance as habeas counsel ‘‘was

deficient because she entirely failed to investigate the

claim and abandoned it at the petitioner’s habeas

trial.’’11

Previously, we discussed Langston’s initial trial testimony as well as her later trial testimony, which was

presented after she was recalled as a witness by the

state. The petitioner accurately observes that Langston’s initial trial testimony tended to undermine the

state’s theory of the case and that her later testimony

was unfavorable to the defense. He argues that Dow

‘‘did nothing to prepare to impeach [Langston’s] later

testimony. [Dow’s] failure to prepare to do so was

wholly deficient. There is a reasonable probability

that—had [Dow] properly impeached Langston’s recall

testimony in a way that preserved the reliability of her

initial testimony, the petitioner would have been acquitted.’’ According to the petitioner, Dow was deficient

for failing to learn of Langston’s role in the shooting

death of Carney in 1992 and her ‘‘internal affairs history,’’ and that these failures prejudiced the petitioner

because such facts would have supported his theory,

which we explored in part I of this opinion, that Langston ‘‘had a motive to testify falsely against [him].’’ Once

more, the petitioner asserts that it would have been

reasonable for the jury to infer that Langston’s ‘‘history

of impropriety’’ motivated her to testify untruthfully

in the state’s favor in order to avoid prosecution for

shooting Carney, to protect her standing in the police

department generally, and to protect her job. The petitioner asserts that he was prejudiced by Dow’s failure
because, had he challenged Langston in the manner

described, he would have cast serious doubt on the

credibility of her later testimony.

Moreover, the petitioner argues, Dow ‘‘failed to elicit

testimony from Langston showing that she was aware

that sources existed that could accurately state the time

she was dispatched [to meet with the petitioner], but

that she elected not to investigate or to obtain those

in preparation for her recall testimony.’’ Specifically,

the petitioner argues that ‘‘Dow never inquired about

Langston’s reasons for believing that her notepad and

police logbook were more accurate than her sworn

police report. He also failed to inquire about whether

other materials existed that would indicate the time

she was dispatched to meet with petitioner, and

whether she confirmed the accuracy of her notepad

and police logbook with those materials.’’

With respect to these materials, the petitioner draws

our attention to Langston’s testimony at the habeas trial

that computer generated dispatch records on the police

department’s computers as well as ‘‘reel-to-reel tapes’’

would have provided a record of the time at which she

was dispatched to meet with the petitioner on May 6,

1993, and that such records were immune to human

error. At the habeas trial, Langston testified, however,

that she did not feel a need to refer to these records,

but, in determining the accuracy of her later testimony,

relied on her personal notebook and the police activity

log. Although the petitioner refers to Langston’s testimony in this regard, he does not refer to the content

of these other materials, and it does not appear that

they were part of the evidence presented at the habeas

trial. Nonetheless, the petitioner argues that Dow prejudiced the petitioner by failing to explore this avenue

of cross-examination because ‘‘had Dow . . . elicit[ed]

the fact that she was aware of the computer generated

dispatch records and reel-to-reel tapes, there is a reasonable probability that the jury would have acquitted

the petitioner. Specifically, such testimony would have

shown that both the prosecuting authority and Langston

were aware that there was a record of the dispatch

time that was not subject to human error, but that the

prosecuting authority elected not to present that record

to the jury. This would have raised reasonable questions

as to why that evidence had not been presented and cast

doubt on the reliability of Langston’s recall testimony.

There is a reasonable probability that the jury would

have concluded that those records were not presented

because they corroborated Langston’s initial testimony

that the petitioner was in the hospital at the time of

the shooting and, accordingly, acquitted the petitioner.’’

In this aspect of his claim, the petitioner argues that

Dow was deficient simply for not drawing attention to

the fact that the state failed to present these additional

records, not that these additional records actually

undermined the substance of Langston’s later tes-
timony.

Before addressing the merits of the petitioner’s claim,

we set forth basic governing principles. ‘‘The use of a

habeas petition to raise an ineffective assistance of

habeas counsel claim, commonly referred to as a habeas

on a habeas, was approved by our Supreme Court in

Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992).

In Lozada, the court determined that the statutory right

to habeas counsel for indigent petitioners provided in

General Statutes § 51-296 (a) includes an implied

requirement that such counsel be effective, and it held

that the appropriate vehicle to challenge the effectiveness of habeas counsel is through a habeas petition.

. . . In Lozada, the court explained that [t]o succeed

in his bid for a writ of habeas corpus, the petitioner

must prove both (1) that his appointed habeas counsel

was ineffective, and (2) that his trial counsel was ineffective. Lozada v. Warden, supra, 842. As to each of

those inquiries, the petitioner is required to satisfy the

familiar two-pronged test set forth in Strickland v.

Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984)]. First, the [petitioner] must show that

counsel’s performance was deficient. . . . Second, the

[petitioner] must show 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. . . . Lozada

v. Warden, supra, 842–43. In other words, a petitioner

claiming ineffective assistance of habeas counsel on

the basis of ineffective assistance of trial counsel must

essentially satisfy Strickland twice . . . .

‘‘In any case presenting an ineffectiveness claim, the

performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. . . . Judicial scrutiny of counsel’s

performance must be highly deferential and courts 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.

. . . [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable; [but] strategic choices made

after less than complete investigation are reasonable

precisely to the extent that reasonable professional

judgments support the limitations on investigation.

. . . With respect to the prejudice prong, the petitioner

must establish that if he had received effective representation by habeas counsel, there is a reasonable probability that the habeas court would have found that he

was entitled to reversal of the conviction and a new

trial . . . .

‘‘It is well settled that in reviewing the denial of a
habeas petition alleging the ineffective assistance of

counsel, [t]his 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.’’ (Citations omitted; internal quotation

marks omitted.) Gerald W. v. Commissioner of Correction, 169 Conn. App. 456, 463–65, 150 A.3d 729 (2016),

cert. denied, 324 Conn. 908, 152 A.3d 1246 (2017). This

court has described a petitioner’s burden in this regard

as a ‘‘ ‘herculean task.’ ’’ Toccaline v. Commissioner of

Correction, 177 Conn. App. 480, 499, 172 A.3d 821, cert.

denied, 327 Conn. 986, 175 A.3d 45 (2017).

The petitioner’s claim that Carpenter’s representation

deprived him of his right to the effective assistance of

counsel in that she failed to investigate and pursue

the claim that Dow’s cross-examination of Langston

deprived the petitioner of his right to adequate representation at the criminal trial depends on his proving, under

the principles enunciated in Strickland, that Dow performed deficiently and that his deficient representation

was prejudicial. We need not consider whether Dow

performed deficiently because the petitioner has failed

to satisfy his burden of proving under Strickland’s second prong that Dow’s performance prejudiced him.

To the extent that the petitioner’s claim is based on

Dow’s failure to pursue cross-examination related to

Langston’s role in the shooting death of Carney in 1992

or to any of the information contained in the internal

affairs report authored by Olson in 1992, the claim of

prejudice is wholly unpersuasive. As we have discussed

at length in part I of this opinion, the petitioner relies

on facts that were not explored during Dow’s crossexamination of Langston, including the fact that she

fatally shot Carney in 1992 in the course of her duty as

a police officer. Also, the internal affairs report that

was filed following the shooting referred to the fact

that she ‘‘[had] two previous internal affairs files, each

involving off-duty conduct in Bridgeport’’; several memoranda in her files were issued while she was in the

training academy; and she had been directed to see a

counselor. From these scant facts, the petitioner invites

us to presume that a jury reasonably could have inferred

that Langston had engaged in egregious wrongdoing

such that she not only feared for her reputation and

her career as a police officer, but that she feared prosecution. Furthermore, the petitioner invites us to presume that a jury reasonably could have inferred that,

in an attempt to curry favor with the Office of the State’s

Attorney and to enhance her reputation as a police

officer, Langston decided to correct her initial testimony, which was accurate, so that the state could successfully prosecute the petitioner for a crime that he

did not commit. According to the petitioner, a jury reasonably could have inferred that this effort to assist the
state did not merely consist of Langston fabricating her

testimony after she was recalled as a witness by the

state, but her fabrication of evidence to support her

testimony. The inferences on which the petitioner relies

are unreasonable because they are not logically drawn

from the facts in evidence.

To the extent that the petitioner’s claim is based on

Dow’s failure to cross-examine Langston with respect

to the fact that her recall testimony was based on her

review of her personal notebook and police daily activity logs, but that she had not referred to additional

resources including computer generated dispatch

records and reel-to-reel tapes, the claim of prejudice

is unsubstantiated. The petitioner relies on Langston’s

testimony that she did not deem it necessary to conduct

further research into these additional resources as well

as his belief that, unlike the documents on which Langston relied, these resources would have been immune

to human error. The petitioner argues that if Dow had

brought these facts to the jury’s attention during his

cross-examination of Langston, the jury surely would

have found Langston’s recall testimony to be untrue

and that a finding of not guilty would have followed.

During her testimony at the habeas trial, Langston

testified with respect to her belief that her police report

was inaccurate because, therein, she had written as her

dispatch time a time provided to her by the petitioner

when she spoke with him at the hospital. She testified

that her recall testimony was based on her personal

notebook and the police activity log, which she believed

to be accurate, and that she did believe it was necessary

for her to refer to computer generated dispatch records

in the custody of the police department. Langston did

not appear to deflect the petitioner from conducting a

further inquiry into the accuracy of her testimony. She

testified that she believed that a record of her dispatch

time was stored by the police department on ‘‘reel-toreel tapes’’ and was ‘‘sure those tapes are still available.’’

The petitioner has not presented any evidence to demonstrate that the computer generated records on which

his claim heavily depends actually demonstrate that

Langston’s recall testimony, her personal notebook, or

the police activity log were, in fact, inaccurate.

The evidence that is most damaging to the petitioner’s

claim of prejudice comes in the form of the petitioner’s

hospital records, which were introduced into evidence

at his criminal trial and, thus, were fodder for the jury’s

consideration. It is undisputed that the hospital records

reflect that, on May 6, 1993, emergency medical registration occurred at 2:49 a.m., an initial nursing assessment

of the petitioner in the emergency department occurred

at 2:55 a.m., the petitioner was examined by a doctor

at 2:55 a.m., the petitioner was observed by a nurse at

3 a.m., and the petitioner was interviewed by the police

at 3:05 a.m. The state’s theory of the case was that the
shooting of the victim occurred in New Haven at 2:20

a.m. The habeas court found, and the petitioner does

not dispute, that ‘‘Langston’s corrected testimony was

consistent not only with police department records, but

also was corroborated by hospital records that showed

the petitioner’s admission time to be later than what

was contained in Langston’s report.’’12

The petitioner has failed to demonstrate that the

alleged deficiencies in Dow’s cross-examination of Langston prejudiced him. As the habeas court found, ‘‘Dow

rigorously cross-examined [Langston] about her efforts

to correct her testimony while also continuing to underscore the credibility of her initial testimony.’’ We

observe that not only did the petitioner’s hospital

records corroborate Langston’s recall testimony, but

the avenues of inquiry that the petitioner argues Dow

should have pursued were not logically related to the

evidence and the reasonable inferences to be drawn

therefrom, and, thus, were not likely to have been persuasive to the jury. Because the petitioner has failed

to prove that Dow’s performance prejudiced him, he is

likewise unable to demonstrate that, in the prior habeas

action, Carpenter’s failure to pursue the claim related

to Dow’s performance caused him prejudice.

For the foregoing reasons, we are not persuaded that

the resolution of the petitioner’s claim concerning ineffective representation by Carpenter involves issues that

are debatable among jurists of reason, that a court could

resolve the issues in a different manner, or that the

questions involved are adequate to deserve encouragement to proceed further. Accordingly, the petitioner

has failed to demonstrate that the court abused its discretion in denying the petition for certification to appeal

with respect to this claim.

The appeal is dismissed.

In this opinion the other judges concurred.

1

In his direct appeal, the petitioner claimed: ‘‘(1) except for the larceny

charges, there was insufficient evidence to establish his guilt beyond a

reasonable doubt with respect to the other crimes, (2) he was denied his

right to confront his accusers and (3) the trial court gave incorrect jury

instructions concerning proof beyond a reasonable doubt and consciousness

of guilt.’’ State v. Ham, supra, 55 Conn. App. 283.

2 The petitioner alleged in relevant part that, prior to filing the present

petition for a writ of habeas corpus, he filed seven other petitions for a writ

of habeas corpus. The petitioner alleged that, in 2001, he withdrew the first

petition, brought under docket number CV-01-0341487, without prejudice.

He alleged that, in 2002, the habeas court, Carroll, J., dismissed the second

petition that he brought under docket number CV-02-0344847.

He alleged that, in 2002, the habeas court, Carroll, J., dismissed the third

petition that he brought under docket number CV-02-0345701.

He alleged that, in 2003, the habeas court, White, J., dismissed the fourth

petition that he brought under docket number CV-02-0349430.

He alleged that, in 2004, the habeas court, White, J., dismissed the fifth

petition, which had not been assigned a docket number.

He alleged that, in 2008, following a trial, the habeas court, dos Santos,

J., denied the sixth petition, which was brought under docket number CV05-4000598. In this action, the petitioner was represented by Attorney Frank

Cannatelli. Subsequently, our Supreme Court affirmed the judgment of the

habeas court. Ham v. Commissioner of Correction, 301 Conn. 697, 23 A.3d

682 (2011).
The petitioner further alleged that, in 2012, following a trial, the habeas

court, Newson, J., denied his seventh petition for a writ of habeas corpus

that was brought under docket number CV-09-4003016. In this action, the

petitioner was represented by Attorney Hilary Carpenter. Subsequently, this

court affirmed the judgment of the habeas court. Ham v. Commissioner of

Correction, 152 Conn. App. 212, 98 A.3d 81, cert. denied, 314 Conn. 932,

102 A.3d 83 (2014).

3 The petitioner alleges a violation of his right to due process under the

federal and state constitutions. Because the petitioner has not provided this

court with an independent analysis of his claim under the state constitution,

we deem his state constitutional claim to be abandoned and limit our analysis

to the federal constitution. See State v. Hearl, 182 Conn. App. 237, 271 n.28,

190 A.3d 42, cert. denied, 330 Conn. 903, 192 A.3d 425 (2018).

4 The court observed that there was evidence that Langston had two

previous internal affairs files, each involving off-duty conduct in Bridgeport,

but that there was no evidence that Langston was aware of these files.

Additionally, the court observed that there was evidence that Langston had

‘‘several memoranda in her internal affairs files which were issued while

she was in the training academy.’’ See footnote 6 of this opinion.

5 The court credited Langston’s testimony that she retired on June 30, 2011.

6 The internal affairs report was introduced into evidence at the habeas

trial. The lengthy report, prepared by Olson, addressed to the chief of the

New Haven Police Department, and dated March 13, 1992, detailed the

activities of Langston and two other police officers in the shooting death

of Carney on January 6, 1992. The report detailed, among other things, a

physical struggle between Carney and three police officers, including Langston, following a complaint of criminal trespass. During this struggle, Carney

gained possession of one of the officer’s pistols and caused it to discharge.

After Langston attempted to restrain Carney, Carney attempted to point the

weapon at Langston while pulling at the trigger. After she took cover, Langston observed that Carney was gaining the upper hand in his struggle with

one of the officers. She discharged her service weapon once, fatally shooting

Carney. The report does not conclude that Langston’s conduct in this incident

was improper in any way.

The report also includes the following: ‘‘Officer Diane Langston was

employed by this department on July 31, 1989. She has two previous internal

affairs files, each involving off-duty conduct in Bridgeport. One of the files

was turned over to Major Thomas Muller and the second resulted in you

causing her to . . . [obtain counseling]. She does have several memoranda

in her internal affairs files which were issued while she was in the training

academy. These memoranda and the latter incident in Bridgeport were the

reason she was directed by you to see [a counselor].’’

7 The petitioner argues, as well, that, during the habeas trial, Langston

was less than forthcoming about whether she had an ‘‘internal affairs history’’

and that she falsely testified at the habeas trial that she had not been asked

to see a counselor as a result of her off-duty conduct. Accordingly, the

petitioner argues that, had Langston testified in a similar manner at his

criminal trial, he would have had the ability to challenge her credibility by

means of the internal affairs report. This aspect of the claim, which is based

merely on speculation as to how Langston might have testified at the criminal

trial, is not persuasive.

8 As we explain in greater detail in part II of this opinion, the state presented

hospital records that corroborated Langston’s testimony that, after the police

were notified that the petitioner had been shot, she had been dispatched

to meet with the petitioner at the hospital after 2:20 a.m.

9 As part of this claim, the petitioner challenges the habeas court’s finding

that he ‘‘presented no credible evidence that the prosecutor asked Langston

to obtain and produce evidence contradicting her initial testimony’’ at the

petitioner’s criminal trial. The petitioner accurately refers to the fact that he

presented evidence that, at a prior habeas trial, the prosecutor acknowledged

that, prior to Langston’s subsequent testimony on April 13, 1997, he had

‘‘requested . . . Langston to conduct some investigation to see whether

. . . information [concerning the fact that her initial trial testimony was

inaccurate] would be available and [whether that information was] something I would be able to put before the jury.’’ When he was presented with

this testimony during the present habeas trial, the prosecutor stated that

although it did not refresh his recollection of the relevant events, on the

basis of his prior testimony he agreed with the respondent’s counsel when

she asked him if he would ‘‘accept’’ that the version of events described in

his prior testimony was accurate.
The petitioner argues that the habeas court ‘‘apparently overlooked’’ this

testimony of the prosecutor and that, on the basis of this testimony, this

court should be left with the definite and firm conviction that the habeas

court’s factual finding is clearly erroneous. In light of our conclusion that

the evidence at issue was not material for purposes of Brady, we conclude

that any error in the court’s factual finding was harmless.

10 Although the petitioner claims that he was deprived of his right to the

effective assistance of prior habeas counsel under the federal and state

constitutions, he has not provided this court with an independent analysis

of his claim under the state constitution. Accordingly, we deem his claim

under the state constitution to be abandoned and limit our review to the

federal constitution. See State v. Hearl, supra, 182 Conn. App. 271 n.28.

11 At the present habeas trial, Carpenter acknowledged that she ‘‘abandoned’’ the claim related to Dow’s cross-examination of Langston.

12 Rather than challenging the accuracy of the hospital records, the petitioner argues that, in evaluating prejudice, this court should discount the

importance of the records because, during its deliberations, the jury

requested to rehear Langston’s testimony in its entirety. From this fact, the

petitioner argues that this court must conclude that Langston’s testimony

was ‘‘among the most important parts of the case.’’ There is absolutely no

indication in the trial court record with respect to why the jury wanted to

rehear Langston’s testimony, nor any reason to infer that, in resolving the

factual issues in this case, the jury improperly focused solely on Langston’s

testimony rather than the evidence in its entirety. The petitioner has not

referred this court to any relevant authority to support the proposition

that, in our evaluation of whether Carpenter’s representation caused him

prejudice, we should not consider all of the matters in the trial court record

that are relevant to an evaluation of Dow’s performance and the prejudice,

if any, that it caused the petitioner. The fact that the jury asked to rehear

the entirety of Langston’s testimony does not in any way undermine the

significance of the hospital records in our evaluation of prejudice.