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*********************************************** 
NABEEL KADDAH v. COMMISSIONER

OF CORRECTION

(AC 42942)

Alvord, Elgo and Alexander, Js.

Syllabus

The petitioner, who had been convicted of the crimes of murder, attempt

to commit murder and unlawful restraint in the first degree, appealed

to this court from the judgment of the habeas court, which denied his

third amended petition for a writ of habeas corpus. The petitioner

claimed that his counsel in the two prior habeas actions rendered ineffective assistance by not pursuing a claim that his counsel at trial and on

direct appeal were ineffective for having failed to challenge the trial

court’s jury instructions as to his affirmative defense of mental disease

or defect and the element of intent required to find him guilty of the

charges against him. The habeas court concluded that, although the

trial court twice included the definition of general intent in its jury

instructions, the jury was not misled into believing that it could find

the petitioner guilty without also finding that he had the specific intent

to kill. The habeas court also concluded that the petitioner failed to

establish that he was prejudiced by prior habeas counsel’s failures to

pursue a claim that trial and appellate counsel rendered ineffective

assistance in choosing not to challenge the trial court’s failure to instruct

the jury that it could find the petitioner not guilty if it determined

that, due to mental disease or defect, he lacked substantial capacity to

appreciate the wrongfulness of his conduct. The habeas court determined that the evidence the petitioner had offered as to the defense of

mental disease or defect was insufficient to overcome the overwhelming

evidence of his guilt. Held:

1. The petitioner could not prevail on his claim that he was prejudiced by

prior habeas counsel’s failures to argue that trial and appellate counsel

rendered ineffective assistance in deciding not to challenge the jury

instructions on the element of intent in the crimes of which he was

convicted; the petitioner’s claim had no reasonable probability of success on appeal, as any possible risk that the jury was misled as to that

element was eliminated by the court’s numerous other proper instructions as to that element.

2. The habeas court properly concluded that the petitioner failed to establish

that he was prejudiced by prior habeas counsel’s failures to challenge

the choice by his trial and appellate counsel not to dispute the jury

instruction as to the defense of mental disease or defect: the habeas court

reasonably determined that the jury likely did not credit the testimony

of the petitioner’s expert witness, M, a psychiatrist and neurologist, that

the petitioner’s medical conditions made it impossible for him to plan,

deliberate and act rationally, as M’s testimony was contradicted by the

state’s witness, B, a psychiatrist, and the court’s finding that the state

thoroughly discredited M’s testimony on cross-examination was not

clearly erroneous; moreover, although the habeas court did not have the

opportunity to evaluate the demeanor of M or B during their testimony

at the petitioner’s criminal trial, it was the habeas court’s exclusive

province to weigh all the evidence before it, which included the transcripts of that trial, and, given the substantial evidence in support of

the petitioner’s guilt, there was no reasonable probability that, but for the

absence of an instruction as to whether he lacked substantial capacity

to appreciate the wrongfulness of his conduct, the result of his criminal

trial would have been different.

Argued February 17, 2021—officially released April 26, 2022

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 dismiss-
ing the petition, from which the petitioner, on the granting of certification, appealed; thereafter, the Supreme

Court reversed the habeas court’s judgment in part and

remanded the case to that court for further proceedings;

subsequently, the court, Newson, J., rendered judgment

denying the petition, from which the petitioner, on the

granting of certification, appealed to this court. Affirmed.

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

the brief, was Christopher Y. Duby, assigned counsel,

for the appellant (petitioner).

Mitchell S. Brody, Jr., senior assistant state’s attorney, with whom, on the brief, were Joseph T. Corradino,

state’s attorney, and Craig P. Nowak, senior assistant

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

ELGO, J. The petitioner, Nabeel Kaddah,1 appeals

from the judgment of the habeas court denying his third

petition for a writ of habeas corpus, which alleged that

his first and second habeas counsel rendered ineffective

assistance. On appeal, the petitioner claims that the

court erred in rejecting his claim that his prior habeas

attorneys were ineffective in not pursuing the claim

that his trial and appellate counsel were ineffective for

their failure to challenge the trial court’s jury instructions as to (1) the element of intent required for the

specific offenses alleged against him and (2) his affirmative defense of mental disease or defect. We disagree

and, accordingly, affirm the judgment of the habeas

court.

The following facts, as set forth by our Supreme Court

in the petitioner’s direct appeal, and procedural history

are relevant to our resolution of the petitioner’s claims.

‘‘Between 3 and 3:30 a.m. on August 27, 1994, the [petitioner], while driving his gray Pontiac Grand Prix,

approached Leanne Kollar on Middle Street in Bridgeport. Kollar, who was working as a prostitute, entered

the [petitioner’s] car in anticipation of engaging in sex

for money. The [petitioner] drove around Bridgeport,

eventually stopping on Salem Street. He turned off the

engine and locked the doors to the vehicle. The [petitioner] then began to choke Kollar, telling her that, if

she removed her clothes, he would not hurt her. Kollar

began to undress, and the [petitioner] reclined her seat

back and started to choke her again. Kollar managed

to open the car door in an attempt to escape, and the

[petitioner] began hitting and punching her. They both

rolled out of the car together, after which the [petitioner] kneeled over Kollar and continued strangling

her. After hitting the [petitioner] and knocking [the petitioner’s] eyeglasses off his face, Kollar was able to flee

to a nearby house. The [petitioner] then drove away.

‘‘When the police arrived, Kollar gave them a description of the [petitioner] and told the officers where the

[petitioner] lived, as she had been to his apartment on

prior occasions. The police went to the [petitioner’s]

apartment and waited for him to return. Meanwhile,

the [petitioner] returned to Middle Street and picked

up Jennifer Williamson, another prostitute. The [petitioner] drove to the corner of Maplewood and Laurel

Avenues, where he and Williamson engaged in a physical struggle. The [petitioner] hit Williamson, bit her

on the back and strangled her. During the struggle,

Williamson stopped moving and the [petitioner] pushed

her out of the car and drove away.

‘‘Sara Iza, a resident of Laurel Avenue, saw the [petitioner’s] car on Maplewood Avenue at approximately

5:30 a.m. on August 27, 1994. When her husband, Luis

Iza, went outside to start his car at approximately 6
a.m., he saw Williamson’s naked body lying in the street,

in the same spot where Sara Iza had seen the [petitioner’s] car stop earlier. Malka Shah of the [O]ffice of the

[C]hief [M]edical [E]xaminer testified that Williamson

died from asphyxia, which had been caused by strangulation.

‘‘At his trial, the [petitioner] raised the defenses of

mental disease or defect and, alternatively, extreme

emotional disturbance. The jury rejected these defenses

and found the [petitioner] guilty of the murder of Williamson and the attempted murder and unlawful

restraint of Kollar.’’2

(Footnotes omitted.) State v. Kaddah (Kaddah I), 250 Conn. 563, 565–66, 736 A.2d 902

(1999). Our Supreme Court subsequently affirmed the

petitioner’s conviction on direct appeal. See id., 581.

‘‘In 2001, the petitioner, represented by [A]ttorney

Salvatore Adamo, filed his first petition for a writ of

habeas corpus, alleging that his appellate counsel,

[A]ttorney Glenn Falk, had rendered ineffective assistance in the direct appeal of the underlying criminal

case because he had failed to argue the existence of a

conflict between the petitioner and his trial attorney,

James Ruane, and had failed to raise a Connecticut

constitutional claim. The petitioner further alleged that

Ruane had rendered ineffective assistance in the underlying criminal case. The petitioner alleged, among other

things, that Ruane had asserted the defense of mental

disease or defect against the petitioner’s wishes, did

not permit the petitioner to testify on his behalf and

failed to argue effectively against the sparse medical

evidence used to convict the petitioner. The court,

White, J., denied the habeas petition. The petitioner

appealed from the judgment of the habeas court but

withdrew the appeal before this court rendered judgment.’’ Kaddah v. Commissioner of Correction, 105

Conn. App. 430, 433–34, 939 A.2d 1185, cert. denied,

286 Conn. 903, 943 A.2d 1101 (2008).

In 2004, the petitioner, represented by Attorney

Joseph Visone, filed a second habeas petition alleging

ineffective assistance of counsel by Adamo in the first

habeas proceeding.3

Id., 434. The habeas court, Fuger,

J., denied that petition, along with the petitioner’s petition for certification to appeal. Id. This court subsequently dismissed the petitioner’s appeal from the

denial of the second habeas petition, concluding that

Judge Fuger had not abused his discretion in denying

the petition for certification to appeal. See id., 446.

The petitioner filed the third and present habeas petition on September 28, 2012, alleging, inter alia,4

that

Visone rendered ineffective assistance while representing the petitioner in the second habeas petition by failing to raise certain claims regarding the jury instructions at his criminal trial. See Kaddah v. Commissioner

of Correction (Kaddah III), 324 Conn. 548, 553, 153

A.3d 1233 (2017). More specifically, the petitioner
argued that the trial court improperly instructed the

jury as to (1) the element of intent required to prove

the specific crimes charged by the state and (2) his

affirmative defense of mental disease or defect. The

habeas court initially dismissed the petition on September 29, 2014, concluding that it was ‘‘not cognizable as

a matter of law.’’ Id., 551. Our Supreme Court subsequently reversed in part the judgment of the habeas

court and remanded the case to that court for further

proceedings. See id., 571.

On remand, the habeas court conducted a trial on the

present petition on October 2, 2018. The parties waived

their right to present additional evidence and stipulated

to the claims being resolved based on the record of

the prior habeas trial, of which the court took judicial

notice. On March 13, 2019, the court issued a memorandum of decision in which it denied the petitioner’s

habeas petition. The court granted the petitioner’s

request for certification to appeal, and this appeal followed. Additional facts will be set forth as necessary.

Before considering the petitioner’s claims, we note

the well established precepts that govern our review.

‘‘The [ultimate] conclusions reached by the [habeas]

court in its decision [on a] habeas petition are matters

of law, subject to plenary review. . . . [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 a definite and firm conviction

that a mistake has been committed. . . . A reviewing

court ordinarily will afford deference to those credibility determinations made by the habeas court on the

basis of [the] firsthand observation of [a witness’] conduct, demeanor and attitude.’’ (Internal quotation marks

omitted.) Noze v. Commissioner of Correction, 177

Conn. App. 874, 885–86, 173 A.3d 525 (2017).

‘‘In Lozada [v. Warden, 223 Conn. 834, 842–43, 613

A.2d 818 (1992)], our Supreme Court established that

habeas corpus is an appropriate remedy for the ineffective assistance of appointed habeas counsel, authorizing what is commonly known as a habeas on a habeas,

namely, a second petition for a writ of habeas corpus

. . . challenging the performance of counsel in litigating an initial petition for a writ of habeas corpus . . .

[that] had claimed ineffective assistance of counsel at

the petitioner’s underlying criminal trial or on direct

appeal. . . . Nevertheless, the court in Lozada, also

emphasized that a petitioner asserting a habeas on a
habeas faces a herculean task . . . .’’ (Internal quotation marks omitted.) Lebron v. Commissioner of Correction, 204 Conn. App. 44, 50, 250 A.3d 44, cert. denied,

336 Conn. 948, 250 A.3d 695 (2021). ‘‘To prevail on an

ineffective assistance of habeas counsel claim . . . the

petitioner must prove both (1) that his appointed habeas

counsel was ineffective, and (2) that his trial counsel

was ineffective. . . . As to each of these 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. . . . 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 . . . .’’ (Internal

quotation marks omitted.) Crawley v. Commissioner

of Correction, 194 Conn. App. 574, 581–82, 221 A.3d 849

(2019), cert. denied, 334 Conn. 916, 222 A.3d 104 (2020).

‘‘To satisfy the performance prong of the Strickland

test, the petitioner must demonstrate that his attorney’s

representation was not reasonably competent or within

the range of competence displayed by lawyers with

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

court must indulge a strong presumption that counsel’s

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

the challenged action might be considered sound trial

strategy. . . .

‘‘With respect to the prejudice component of the

Strickland test, the petitioner must demonstrate that

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

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

the errors had some conceivable effect on the outcome

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

show that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.’’ (Emphasis added; internal quotation marks omitted.) Wargo v. Commissioner of Correction, 144 Conn. App. 695, 701–702, 73 A.3d 821 (2013),

appeal dismissed, 316 Conn. 180, 112 A.3d 777 (2015).

I

The petitioner first claims that he was prejudiced by

Adamo’s and Visone’s failures to argue that Ruane’s

and Falk’s decisions not to challenge the instruction

provided to the jury at his criminal trial on the intent
element of the charged offenses constituted ineffective

assistance of counsel. We disagree.

The following additional facts are relevant to this

claim. While instructing the jury on intent, the trial court

twice included the definition of general intent, stating

that ‘‘a person acts intentionally with reference or

respect to a result or to conduct described by the statute

defining the offense when the person’s conscious objective is to cause such result or to engage in such conduct’’; (emphasis added); but thereafter specified that,

to find the petitioner guilty of murder, it must find

beyond a reasonable doubt that he killed Williamson

‘‘and that he did so with the specific intention of doing

so.’’5

Immediately preceding this comment, while instructing the jury as to murder, the court explained that the

state was required to prove that, in causing Williamson’s

death, ‘‘he did so with the intent to cause her death. In

other words, is that what he intended to do, to cause

her death?’’

After it concluded its instruction on intent, the court

instructed the jury, with respect to the crime of attempt

to commit murder, that the petitioner ‘‘must have acted

here with the intent to commit the crime of murder,

and specific intent is the intent to kill.’’ The court continued: ‘‘It is not enough to show that the [petitioner] acted

intending to do some other unspecified criminal act.

He must have acted with the same intent, the same

state of mind required for the crime of murder which

I have just explained to you. I refer you again to my

earlier charge on intent and what it means and how it

is to be proven and what the intent is that is required

for the crime of murder.’’ During its deliberations, the

jury sent a note asking the court: ‘‘What is intent?’’ In

response, the trial court restated its prior instruction to

the jury, which included the definitions of both specific

intent and general intent. However, the court finished

the instruction by reminding the jury: ‘‘Intent can be

formed in an instant, but to convict anyone of murder

the intent must be to cause death . . . .’’ (Emphasis

added.)

The petitioner’s trial counsel, appellate counsel, and

two previous habeas attorneys did not object to or raise

any challenge concerning the court’s instructions on

intent. In the present case, the habeas court concluded

that, although the trial court included the definition

of general intent on two occasions in its initial and

supplemental intent instructions, the overall instruction

did not mislead the jury into believing that it could find

the petitioner guilty without finding that he had the

specific intent to kill. We agree.

We begin by noting that ‘‘[t]he specific intent to kill

is an essential element of the crime of murder [and

attempt to commit murder]’’; State v. DeBarros, 58

Conn. App. 673, 680, 755 A.2d 303, cert. denied, 254

Conn. 931, 761 A.2d 756 (2000); and that ‘‘unlawful
restraint in the first degree requires that the defendant

had the specific intent to restrain the victim.’’ State v.

Williams, 172 Conn. App. 820, 828, 162 A.3d 84, cert.

denied, 326 Conn. 913, 173 A.3d 389 (2017).

General Statutes § 53a-3 (11) provides: ‘‘A person acts

‘intentionally’ with respect to a result or to conduct

described by a statute defining an offense when his

conscious objective is to cause such result or to engage

in such conduct . . . .’’ As this court has observed,

‘‘[t]he definition of intent as provided in § 53a-3 (11)

embraces both the specific intent to cause a result and

the general intent to engage in proscribed conduct. . . .

[I]t is improper for a court to refer in its instruction to

the entire definitional language of § 53a-3 (11), including

the intent to engage in conduct, when the charge relates

to a crime requiring only the intent to cause a specific

result. . . . This court has further noted, however, that

in cases in which the entire definition of intent was

improperly read to the jury, the conviction of the crime

requiring specific intent almost always has been upheld

because a proper intent instruction was also given.’’

(Internal quotation marks omitted.) State v. Tok, 107

Conn. App. 241, 269–70, 945 A.2d 558, cert. denied, 287

Conn. 919, 951 A.2d 571 (2008), and cert. denied sub

nom. State v. Jourdain, 287 Conn. 920, 951 A.2d 570

(2008).

Moody v. Commissioner of Correction, 127 Conn.

App. 293, 14 A.3d 408, cert. denied, 300 Conn. 943, 17

A.3d 478 (2011), is instructive in this regard. In Moody,

the petitioner claimed that his trial counsel rendered

ineffective assistance in failing to object to the trial

court’s decision to instruct the jury on the entire statutory definition of intent, rather than on specific intent

only. Id., 303. The petitioner contended that the allegedly improper instruction regarding intent ‘‘allowed the

jury to find him guilty without finding that he intended

to cause the specific result’’ and asserted that the jury’s

notes demonstrated this prejudicial impact. Id., 304.

While we acknowledged that it is improper for a court

to refer in its instruction to the entire definitional language of § 53a-3 (11) for a specific intent crime, we

emphasized that reversal of the trial court’s judgment

is not required when a proper instruction on intent is

provided. Id., 305.

In Moody, this court noted that the trial court had

provided the entire statutory definition of intent to the

jury only once in a preliminary and general instruction.

See id., 306. As we explained: ‘‘Although the court

referred back to this instruction three times, it did not

repeat the statutory language. Thereafter, the court

expressly stated the specific intent element of murder

eleven times and assault three times. It also expressly

pointed out that specific intent was an element of murder but not of manslaughter in the first degree. Reading

the charge as a whole, we do not find it reasonably
possible that the jury was misled. Nor, contrary to the

petitioner’s assertion, do we conclude that the jury

notes demonstrate that the jury was misled. The notes

refer to the notion of transferred intent, not the requisite

mental state required for culpability.’’ Id. The court

concluded that, because the petitioner’s claim had no

reasonable probability of success on direct appeal, he

was not prejudiced by his appellate counsel’s failure to

raise it. See id.

Although the court in the present case referenced

general intent twice in its initial and supplemental

charges, those references were followed by correct

instructions concerning the specific intent necessary

to commit murder. See, e.g., State v. Austin, 244 Conn.

226, 236, 710 A.2d 732 (1998) (no reversible error when

improper intent instruction was followed by numerous

proper instructions on elements of murder); cf. State

v. Lopes, 78 Conn. App. 264, 271–72, 826 A.2d 1238

(reversible error when improper intent instruction was

given directly in regard to elements of murder and not

followed by numerous proper instructions), cert.

denied, 266 Conn. 902, 832 A.2d 66 (2003), and cert.

denied, 266 Conn. 902, 832 A.2d 66 (2003); State v.

DeBarros, supra, 58 Conn. App. 683–84 (reversible error

when improper intent instruction not only was given

in initial and two supplemental charges but also was

referred to seven additional times).

Our careful review of the court’s entire charge persuades us that, as in Moody, any possible risk that the

jury was misled about the element of intent was eliminated by the trial court’s numerous proper instructions

on the element of intent in the crimes of murder, attempt

to commit murder, and unlawful restraint. Specifically,

the court stated to the jury both in its murder and

attempt to commit murder charges that, to find the

petitioner guilty of these charges, the state must prove

beyond a reasonable doubt that he intended to cause

the death of Williamson and Kollar. Under the circumstances, we conclude that ‘‘[i]t strains reason to believe

that the jury could have [understood] the challenged

instruction as not requiring that the state prove beyond

a reasonable doubt that the [petitioner] intended to kill

[the victims].’’ (Internal quotation marks omitted.) State

v. Austin, supra, 244 Conn. 237. With respect to the

unlawful restraint charge, the court also stated during

its charge that the state was required to prove beyond

a reasonable doubt that the petitioner specifically

intended to restrain Kollar. Furthermore, while later

instructing the jury as to the petitioner’s intoxication

defense, the court associated the specific intent

required to prove murder and attempt to commit murder with unlawful restraint, stating: ‘‘Certainly the crime

of murder, attempted murder and unlawful restraint all

have a specific intent requirement . . . .’’ The court

added that, if the jury concluded that the petitioner was

intoxicated at the time of the offenses, it could take
that fact into consideration in determining whether he

was ‘‘incapable of forming the required specific intent,

which is a necessary element for the commission of

the various crimes which I have defined for you.’’

(Emphasis added.) Because the petitioner’s claim had

no reasonable probability of success on appeal, we conclude that the petitioner was not prejudiced by any

failure of Adamo and Visone to allege that Ruane and

Falk rendered ineffective assistance with respect to that

claim in the petitioner’s prior proceedings.

II

The petitioner’s second claim is that Adamo and

Visone rendered ineffective assistance by failing to challenge Ruane’s and Falk’s choices not to dispute the trial

court’s instruction on the affirmative defense of mental

disease or defect. The respondent, the Commissioner of

Correction, argues that, because no prejudice resulted

from the failure to challenge the instruction, the petitioner cannot establish the second prong of Strickland.

We agree with the respondent.

The following additional facts are relevant to the

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

raised the affirmative defense of mental disease or

defect. As our Supreme Court noted in Kaddah I, ‘‘[the

petitioner] adduced testimony establishing that, three

months prior to the assaults, his wife had been shot in

the chest during a robbery at a convenience store and

she had remained hospitalized with serious injuries. He

also presented evidence that, one week prior to his

arrest, he had been attacked by an unknown individual

and that the resulting injury required fifty-two stitches

in his back. There was testimony that, on the night in

question, the [petitioner] had been drinking heavily and

was very upset about the recent loss of his passport.’’

Kaddah I, supra, 250 Conn. 577. James Merikangas, a

psychiatrist and neurologist called by the petitioner,

testified that the petitioner ‘‘suffered from brain damage, hypoglycemia, and epilepsy. Merikangas further

testified that alcohol interferes with an epileptic’s ability to modulate behavior, and that the combination of

low blood sugar and alcohol could inhibit the nervous

system to the extent that a person ‘would not know

what he was doing.’ ’’ Id. Merikangas further opined

that the petitioner’s medical conditions ‘‘ma[de] it

impossible for him to plan, deliberate and act rationally’’; and, in his opinion, the petitioner was ‘‘literally

out of his mind,’’ ‘‘was not able to control his conduct,’’

and ‘‘did not have an appreciation for what was going

on.’’

During its charge to the jury, the court gave the following instruction on the mental disease or defect

defense: ‘‘In any prosecution for an offense, it shall be

an affirmative defense that the defendant, at the time

he committed the proscribed act or acts, lacked the

substantial capacity as the result of mental disease or
defect to conform his conduct within the requirements

of the law.’’ (Internal quotation marks omitted.) The

court continued: ‘‘There are basically two elements of

this affirmative defense: 1. That at the time the [petitioner] was committing the proscribed act he had a

mental disease or defect and, 2., that as a result of

that mental disease or defect he lacked the substantial

capacity to control his conduct within the requirements

of the law.’’ The court did not instruct the jury that it

also could acquit the petitioner if it determined that,

due to mental disease or defect, he lacked substantial

capacity ‘‘to appreciate the wrongfulness of his conduct.’’ Although the court did not charge the jury with

respect to the cognitive prong, the petitioner’s trial

counsel neither requested such an instruction nor objected

to the charge provided by the court at trial, and the

petitioner’s appellate counsel and two prior habeas

attorneys did not raise any claim with respect thereto.6

In its memorandum of decision, the habeas court

concluded that the evidence of guilt was ‘‘overwhelming

and uncontroverted, and the evidence the petitioner

offered in the way of [his] affirmative defense was insufficient to overcome it.’’ Therefore, the petitioner failed

to establish the requisite prejudice from ‘‘[a]ny error’’

in the court’s instruction on the mental disease or defect

defense. The petitioner now challenges the propriety

of that determination.

Our analysis begins with the relevant statute that

governs the mental disease or defect defense. General

Statutes § 53a-13 (a) provides that, ‘‘[i]n any prosecution

for an offense, it shall be an affirmative defense that

the defendant, at the time the defendant committed the

proscribed act or acts, lacked substantial capacity, as

a result of mental disease or defect, either to appreciate

the wrongfulness of his conduct or to control his conduct within the requirements of the law.’’ As this court

has observed, ‘‘the affirmative defense of mental disease and defect pursuant to [§] 53a-13 (a), otherwise

known as the insanity defense . . . has both a cognitive and a volitional prong. . . . Under the cognitive

prong [of the insanity defense], a person is considered

legally insane if, as a result of mental disease or defect,

he lacks substantial capacity . . . to appreciate the

[wrongfulness] of his conduct. . . . Under the volitional prong, a person also would be considered legally

insane if he lacks the substantial capacity . . . to [control] his conduct to the requirements of the law.’’ (Internal quotation marks omitted.) State v. Weathers, 188

Conn. App. 600, 607, 205 A.3d 614 (2019), aff’d, 339

Conn. 187, 260 A.3d 440 (2021).

On our careful review of the record, we conclude

that there was not a reasonable probability that, but

for the absence of an instruction on the cognitive prong

in the petitioner’s affirmative defense of mental disease

and defect, the result of the proceeding would have
been different. Cf. Wargo v. Commissioner of Correction, supra, 144 Conn. App. 702. In its memorandum

of decision, the habeas court specifically found that

Merikangas’ testimony was ‘‘entirely discredited during

the state’s [cross-examination].’’7

Our own review of the state’s cross-examination supports the habeas court’s conclusion. First, Merikangas

admitted that, before he met or evaluated the petitioner,

he authored a letter to the petitioner’s counsel, stating

that, after listening to the petitioner’s police interrogation, he believed that the petitioner had been ‘‘ ‘coached’ ’’

in advance by the police. Merikangas also admitted that,

when he interviewed the petitioner, he met with him

for only ninety minutes and never asked the petitioner:

(1) for a mental health or medical history, (2) what, if

anything, he remembered about the events of August

27, 1994, or (3) if he had, in fact, been coached by

the police, as Merikangas initially believed. Moreover,

Merikangas conceded that the petitioner was ‘‘an overachieving student and athlete through high school,’’ had

obtained college credits, and always held regular

employment, despite his brain damage. Most tellingly,

Merikangas was unable to identify any medical evidence

that either hypoglycemia or an epileptic seizure was

connected to homicidal behavior.8 Thereafter, the state

offered Karen Brody, a psychiatrist, as a rebuttal witness, who contradicted Merikangas’ opinion. See Kaddah I, supra, 250 Conn. 577–78. The jury thus was left

to determine which of the two experts it believed—a

proverbial battle of the experts.

Although the habeas court did not have the opportunity to evaluate the demeanor of either Merikangas or

Brody on the witness stand, it remains the exclusive

province ‘‘of the habeas court, as the trier of fact, to

consider, sift, and weigh all the evidence’’ before it.

(Internal quotation marks omitted.) Houghtaling v.

Commissioner of Correction, 203 Conn. App. 246, 279,

248 A.3d 4 (2021). It is axiomatic that the habeas court’s

proper review of the evidence necessarily includes its

review of the transcripts of a petitioner’s criminal trial.

See, e.g., Chase v. Commissioner of Correction, 210

Conn. App. 492, 500, 270 A.3d 199 (2022) (court relied

in part on petitioner’s criminal trial transcripts to assess

trial counsel’s performance and strategic choices). In

its review of the record, which included the challenges

to Merikangas’ credibility and the ultimate outcome

reached by the jury, the court reasonably determined

that Merikangas’ opinion was likely not perceived as

credible to the jury. Accordingly, the court’s finding that

Merikangas’ testimony was ‘‘thoroughly discredited’’ on

cross-examination is not clearly erroneous.

Moreover, we reiterate that, as this court has held,

‘‘[i]n making [the] determination [of whether counsel’s

performance resulted in prejudice at a petitioner’s criminal trial], a court hearing an ineffectiveness claim must
consider the totality of the evidence before the judge

or the jury. . . . Some errors will have had a pervasive

effect on the inferences to be drawn from the evidence,

altering the entire evidentiary picture, and some will

have had an isolated, trivial effect. Moreover, a verdict

or conclusion only weakly supported by the record is

more likely to have been affected by errors than one

with overwhelming record support. . . . [T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.

. . . The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a

just result.’’ (Internal quotation marks omitted.) Antwon

W. v. Commissioner of Correction, 172 Conn. App. 843,

870–71, 163 A.3d 1223, cert. denied, 326 Conn. 909, 164

A.3d 680 (2017); see also Gaines v. Commissioner of

Correction, 306 Conn. 664, 688, 51 A.3d 948 (2012) (‘‘In

order to prevail on a claim of ineffectiveness of counsel,

the petitioner must show that there is a reasonable

probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to

undermine confidence in the outcome. . . . [T]he

question is whether there is a reasonable probability

that, absent the [alleged] errors, the [fact finder] would

have had a reasonable doubt respecting guilt.’’ (Citation

omitted; internal quotation marks omitted.)).

Given the substantial evidence in support of the petitioner’s guilt and the aforementioned challenges to the

petitioner’s expert witness’ credibility, we cannot conclude that, but for trial counsel’s failure to request the

petitioner’s preferred instruction, there is a reasonable

probability that the petitioner would not have been

convicted. See Anton W. v. Commissioner of Correction, supra, 172 Conn. App. 872 (in light of ‘‘totality of

the evidence admitted in the petitioner’s criminal trial,’’

possible instructional error ‘‘had no effect on the jury’s

decision to credit’’ relevant testimony).

Accordingly, the habeas court properly determined

that, regardless of trial counsel’s actions with respect

to the language omitted in the instruction on the affirmative defense of mental disease or defect, the outcome

of the petitioner’s criminal trial would not have differed

in any way. For that reason, the habeas court properly

concluded that the petitioner failed to meet his burden

with respect to the prejudice prong of Strickland.

The judgment is affirmed.

In this opinion the other judges concurred.

1 We note that the petitioner’s first name has been spelled ‘‘Nabil’’ in other

appellate decisions. See Kaddah v. Commissioner of Correction, 299 Conn.

129, 130, 7 A.3d 911 (2010); State v. Kaddah, 250 Conn. 563, 564, 736 A.2d

902 (1999); Kaddah v. Commissioner of Correction, 105 Conn. App. 430,

431, 939 A.2d 1185, cert. denied, 286 Conn. 903, 943 A.2d 1101 (2008). In

the present case, we use the spelling ‘‘Nabeel’’ for consistency with the
pleadings. See Kaddah v. Commissioner of Correction, 324 Conn. 548, 551

n.1, 153 A.3d 1233 (2017).

2 The petitioner was convicted of murder in violation of General Statutes

§ 53a-54a, attempt to commit murder in violation of General Statutes §§ 53a49 and 53a-54a, and unlawful restraint in the first degree in violation of

General Statutes § 53a-95 (a). State v. Kaddah, supra, 250 Conn. 564.

3 The petitioner also filed a series of unsuccessful habeas petitions in

federal court; see Kaddah v. Brighthaupt, United States District Court,

Docket No. 3:11-cv-1809 (SRU) (D. Conn. August 6, 2013); Kaddah v. Lee,

United States District Court, Docket No. 3:08cv519 (SRU) (D. Conn. October

7, 2008); Kaddah v. Strange, United States District Court, Docket No.

3:00CV1642 (CFD) (D. Conn. January 18, 2001); which do not affect our

analysis in this appeal.

4 We note that the operative pleading with respect to the third habeas

petition includes six counts claiming ineffective assistance of counsel in

connection with the criminal trial, the direct appeal, and the two prior

habeas petitions. On the first day of trial, the habeas court, acting sua sponte,

dismissed counts one, two, four, and five of the amended petition, which

alleged ineffective assistance of counsel in connection with the criminal

trial and the direct appeal but did not pertain to prior habeas counsel. See

Kaddah v. Commissioner of Correction, 324 Conn. 548, 551–52 n.4, 153

A.3d 1233 (2017). The petitioner does not challenge the propriety of this

decision on appeal to this court.

5 The court’s instruction to the jury was as follows: ‘‘I am now going to

define for you under Connecticut law what intent is. I am going to read this

definition only one time to you, although it will apply many times during

the balance of this charge because at least five of these crimes or lesser

included offenses require an intent element, and therefore this definition

that I am going to give you will apply whenever you hear the word ‘intent’

or whenever you hear an element of a specific intent to do something.

‘‘This is the definition we are talking about. . . . Our statute provides

that a person acts intentionally with reference or respect to a result or to

conduct described by the statute defining the offense when the person’s

conscious objective is to cause such result or to engage in such conduct.

Intentional conduct is purposeful conduct rather than conduct that is accidental or inadvertent.

‘‘Now intent is a mental process. Intention can only in most cases be

proven by the actions and statements of the person whose acts are being

examined. No one can be expected to come into court and testify that he

looked into another person’s mind and saw therein a certain intention. It

is often impossible and never necessary to prove criminal intent by

direct evidence.

‘‘Intent may be and usually is proven by the circumstantial evidence as

I have explained that term to you. Therefore, one way in which the jury

can determine what a person’s intention was at any given time is first by

determining what the person’s conduct was, including any statements he

or she made and what circumstances were surrounding that conduct, and

then from that conduct and those circumstances inferring what his or her

intention was.

‘‘In other words, a person’s intention may be inferred from his conduct.

You may infer from the fact that the [petitioner] engaged in conduct, that

he intended to engage in that conduct. You should infer such conduct only

if you are satisfied of it beyond a reasonable doubt.

‘‘This inference is not a necessary one. That is, you are not required to

infer intent from the accused’s conduct, but it is an inference that you may

draw if it is reasonable and a logical inference. I remind you that the burden

of proving intent beyond a reasonable doubt is always upon the state.

‘‘Do not be confused by the word ‘intent.’ It does not require any specific

length of time to form an intent. Intent can be formed in an instant, but to

convict anyone of murder the intent must be to cause death, and in summary

in order for the accused to be found guilty of murder, you must find proven

beyond a reasonable doubt that the [petitioner] killed Jennifer Williamson

and that he did so with the specific intention of doing so.’’ (Emphasis added.)

6 We note that the petitioner acknowledges in the present petition that

the two prongs of the mental disease or defect defense are disjunctive but

alleges deficient performance because, if counsel had requested a charge

on the cognitive prong, the trial court would have been required to give

that instruction based on the evidence. Although the petitioner does not

claim that trial counsel was deficient in pursuing the defense based on the

volitional prong, the petitioner nevertheless argues that there was no strate-
gic reason for failing to seek an instruction on the cognitive prong. Because

the habeas court did not make any factual findings as to the petitioner’s

claim of deficient performance, we do not address the question of whether

the decision not to challenge Ruane’s and Falk’s actions with respect to the

trial court’s instructions constituted deficient performance on the part of

Adamo or Visone. See, e.g., Small v. Commissioner of Correction, 286 Conn.

707, 716, 946 A.2d 1203 (‘‘[w]hen the record on appeal is devoid of factual

findings by the habeas court as to the performance of counsel, it is improper

for an appellate court to make its own factual findings’’), cert. denied sub

nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).

7 The petitioner contends that this was an improper credibility determination on the part of the habeas court because Merikangas did not testify

during the habeas trial and, as a result, the habeas court was not able to

evaluate Merikangas’ demeanor. Because it is undisputed that the parties

had stipulated to the use of transcripts and exhibits, which constituted the

entirety of the evidence before the court, it is self-evident that the court

could not make a credibility determination. Thus, although the habeas court

used the term ‘‘discredited’’ in discussing the state’s cross-examination, we

construe this statement more appropriately as reflecting the court’s finding

as to the value of that testimony after considering and weighing Merikangas’

testimony in the context of the court’s review of the record, which finding

is subject to the clearly erroneous standard of review. See, e.g., Noze v.

Commissioner of Correction, supra, 177 Conn. App. 885–86.

8 We additionally note that, during the prosecutor’s cross-examination of

Merikangas, the following colloquy occurred:

‘‘[The Prosecutor]: [Quoting the petitioner’s testimony from the taped

interview with the inspector] ‘We start to talk before she took her clothes

off. Then, I don’t know. I was driving. I stop. I park my car. I don’t know

where, and remove to the back seat with her. She took off her clothes. I

don’t know. I tried to kiss her or something. Also, she ask me about money,

and I told her the same thing. I don’t—I—I don’t pay money for sex. Maybe

I told her. I don’t know exactly, but because I know I don’t pay money for

sex. I try to make sex with her. She doesn’t want. Then I don’t know how

she hit me in my eyes, and this moment I feel pain in my eyes. I don’t

remember. I hit her, and she bite me.’ Are you suggesting that that short

area is something that [the petitioner] would have memorized based upon

what police officers had told him before they turned the tape on?

‘‘[Merikangas]: No. . . .

‘‘[The Prosecutor]: You have testified, Doctor, that having heard the audiotape, it was in fact played to the jury earlier, that in your opinion the

[petitioner] was on that day actually unable to tell the police what had

happened?

‘‘[Merikangas]: The part you read to me had a dozen ‘I don’t know’s’ in

it, and that is my opinion, that he was not able to give an accurate description

of what happened.

‘‘[The Prosecutor]: You would consider anything he might have to say

reliable if it could be . . . verified by independently acquired information?

‘‘[Merikangas]: I wouldn’t consider it reliable as an index of his actual

thought processes and memory. There may be parts of it that are corroborated. . . .

‘‘[The Prosecutor]: For instance, Doctor, [the petitioner] on the tape tells

the police that both victims left his car naked leaving their clothing in his car.

‘‘[Merikangas]: Well, I think that there was clothing in his car. . . .

‘‘[The Prosecutor]: It turns out that their clothing was found in his car.

‘‘[Merikangas]: Well, that’s how he knew the clothing was in his car. They

found the clothing in his car.

‘‘[The Prosecutor]: That would not—that would indicate to you, Doctor,

would it not, that he could recall that fact they left his car naked; they left

their clothes in his car?

‘‘[Merikangas]: No, I wouldn’t draw that conclusion.

‘‘[The Prosecutor]: Doctor, [the petitioner] on that tape told the police

that he had been drinking two different brands of beer—

‘‘[Merikangas]: Right.

‘‘[The Prosecutor]: —Budweiser and Miller?

‘‘[Merikangas]: Right.

‘‘[The Prosecutor]: When the police officers actually removed the Budweiser and Miller from that car just in March of this year, it turns out it is

Budweiser and Miller. Would that not indicate to you when he spoke to the

police on that tape he was able to recall the brands of beer he was drinking?

‘‘[Merikangas]: That’s possible.

‘‘[The Prosecutor]: [The petitioner], Doctor, on the tape told the police

that he bit the homicide victim, and he pointed out the location on her body

where he bit her. It turns out, when her body is found lying on the street

by the police officers, that she has bite marks right just about right where

[the petitioner] said you could find them. Wouldn’t that indicate that when

he was speaking to the police he could recall that segment of what he

had done?

‘‘[Merikangas]: I don’t recall the interaction around that particular seg-
ment. . . . I don’t see that kind of thing on the tape. I think the jury has

heard this tape if you say they heard it. . . .

‘‘[The Prosecutor]: . . . Would that not indicate that he could in fact

recall where he bit her?

‘‘[Merikangas]: It could indicate that.

‘‘[The Prosecutor]: The [petitioner] told the police when he departed the

first crime scene where there was a surviving victim, and describing it he

said there were some bushes up in the vicinity of the car. That’s on the

tape. It turns out that when the [petitioner’s] car is seized, some of those

bushes are hanging on the car. Would that not indicate he could recall at

least that much of what had occurred?

‘‘[Merikangas]: Apparently it would, yes.’’