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*********************************************** 
MAURICE ROSS v. COMMISSIONER

OF CORRECTION

(SC 20281)

Robinson, C. J., and McDonald, D’Auria,

Mullins, Kahn and Ecker, Js.

Syllabus

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

corpus, claiming, inter alia, that his trial counsel provided ineffective

assistance by failing to object to certain improper remarks by the prosecutor during closing argument. Specifically, the prosecutor stated in her

closing argument that the state’s firearms expert, S, had testified that

a purposeful trigger pull was required to fire the petitioner’s gun, even

though S did not make that statement and was prevented from answering

the prosecutor’s leading question to that effect when the petitioner’s

trial counsel successfully objected to it. The habeas court rendered

judgment denying the petition, concluding that the petitioner had failed

to demonstrate that he suffered prejudice. On the granting of certification, the petitioner appealed to the Appellate Court, which affirmed the

habeas court’s judgment. The Appellate Court concluded that, although

at least one of the prosecutor’s remarks during closing argument was

improper, the doctrine of collateral estoppel barred the petitioner from

litigating the issue of prejudice because, in the petitioner’s direct appeal

from his conviction, the Appellate Court already had determined, in the

context of resolving his claim of prosecutorial impropriety, that the

same improper remarks did not prejudice him. Thereafter, the petitioner,

on the granting of certification, appealed to this court. Held:

1. The Appellate Court incorrectly concluded that the petitioner was collaterally estopped from litigating the issue of whether he was prejudiced by

his trial counsel’s failure to object to the prosecutor’s improper remarks

during closing argument, as the issue in the present case was not identical to that presented in the petitioner’s direct appeal of his conviction:

the petitioner’s claim of prosecutorial impropriety in his direct appeal

required the Appellate Court to apply the factors set forth in State v.

Williams (204 Conn. 540), and, consistent with Williams and its progeny,

the Appellate Court properly considered trial counsel’s failure to object

as evidence that the petitioner was not prejudiced, and it was this

aspect of the Williams analysis that made it impossible to conclude

that collateral estoppel barred the petitioner from litigating the issue

of prejudice in his habeas action; moreover, the application of the doctrine of collateral estoppel would preclude the petitioner from seeking

a remedy for conduct that he claims affected not only his criminal trial

but also his likelihood of success on appeal, and, thus, the application

of that doctrine would be fundamentally unfair and inconsistent with

due process and the principles underlying the writ of habeas corpus.

2. The petitioner failed to demonstrate that he was prejudiced by his trial

counsel’s failure to object to the prosecutor’s improper remarks and,

therefore, could not prevail on the merits of his ineffective assistance

claim: the failure of trial counsel to object to the remarks did not

undermine this court’s confidence in the verdict, as the impropriety

was confined to the prosecutor’s closing argument, and the trial court

instructed the jury that the arguments of counsel did not constitute

evidence; moreover, although the prosecutor mischaracterized S’s testimony, S’s actual testimony constituted strong evidence that the gun that

the defendant used to commit the murder of which he had been convicted

did not fire accidentally, as the petitioner had claimed; furthermore, the

petitioner’s own statements and actions before and after the shooting

provided strong evidence that he acted intentionally, including evidence

that the petitioner believed that the victim had arranged for two of her

male friends to assault him, that he purchased a gun thereafter for the

purpose of killing the men, and that he did not call for help after he

shot the victim.

Argued June 1, 2020—officially released January 11, 2021*
Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

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

denying the petition, from which the petitioner, on the

granting of certification, appealed to the Appellate

Court, Lavine, Elgo and Bear, Js., which affirmed the

habeas court’s judgment, and 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).

Melissa L. Streeto, senior assistant state’s attorney,

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

attorney, and Rebecca Barry, supervisory assistant

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

KAHN, J. The petitioner, Maurice Ross, appeals1from

the judgment of the Appellate Court, which affirmed

the judgment of the habeas court denying his amended

petition for a writ of habeas corpus. The petitioner

claims that the Appellate Court incorrectly concluded

that the doctrine of collateral estoppel barred him from

litigating the issue of whether he was prejudiced by his

trial counsel’s failure to object to the improper comments of the prosecutor during closing argument at his

criminal trial. The respondent, the Commissioner of

Correction, argues that the Appellate Court correctly

held that the doctrine precluded the petitioner from

litigating the issue of prejudice. In the alternative, the

respondent contends that the judgment of the Appellate

Court may be affirmed on the basis that the petitioner

has failed to demonstrate that he suffered prejudice

from his criminal trial counsel’s allegedly deficient performance. Although we conclude that the doctrine of

collateral estoppel does not apply under the circumstances of the present case, we affirm the judgment of

the Appellate Court on the ground that the petitioner

has failed to demonstrate prejudice.

The record reveals the following relevant facts and

procedural history. Following a jury trial, the petitioner

was convicted of murder in violation of General Statutes

§ 53a-54a (a). See State v. Ross, 151 Conn. App. 687,

688, 95 A.3d 1208, cert. denied, 314 Conn. 926, 101 A.3d

271 (2014), and cert. denied, 314 Conn. 926, 101 A.3d 272

(2014). On appeal to the Appellate Court, the petitioner

claimed that the prosecutor’s improper comments during closing argument violated his constitutional right

to a fair trial. Id. Although the Appellate Court concluded that at least one of the prosecutor’s comments

was improper, it affirmed the judgment of conviction

on the basis of its conclusion that the petitioner had not

been prejudiced by the improper remarks. Id., 688, 706.

The Appellate Court set forth the following relevant

facts that the jury reasonably could have found. ‘‘In

early February, 2009, the [petitioner] and the victim,

Sholanda Joyner, were involved in a romantic relationship. The two had known each other since they were

children, and had dated intermittently during the preceding eleven years. The victim’s relationship with the

[petitioner] was, as the victim’s sister described it, ‘dysfunctional . . . .’

‘‘Several days before February 5, 2009, the [petitioner]

went to the victim’s apartment on Woolsey Street in

New Haven and encountered two of her male acquaintances. A physical altercation between the two men

and the [petitioner] ensued, and the [petitioner] was

forcefully ejected from the victim’s apartment. Shortly

thereafter, the [petitioner] purchased a revolver for the

purpose of killing the two men. The [petitioner]
returned to the victim’s apartment the next morning

and encountered the individuals who had assaulted him

the previous day. After displaying the revolver, the [petitioner] took their money, cell phones, and some drugs.’’

Id., 688–89.

‘‘On February 5, 2009, the victim appeared, crying

. . . at her father’s doorstep. Approximately two

minutes later, the [petitioner] arrived and demanded

that the victim leave with him. Over the protests of the

victim’s stepmother, the [petitioner] grabbed the victim

by the arm and pulled her out the door. Later that

evening, at the home of the victim’s grandmother, the

victim was crying and pleading with the [petitioner] to

leave her alone. The [petitioner] again commanded the

victim to depart with him, and the two left.

‘‘After leaving the house of the victim’s grandmother

at approximately 11 p.m., the [petitioner] and the victim

walked to the victim’s apartment. Along the way, the

victim stopped and purchased some ecstasy pills and

phencyclidine (PCP). The victim and the [petitioner]

smoked the PCP while en route to the victim’s apartment. After arriving at the victim’s home, the [petitioner] and the victim went into the victim’s bedroom,

and both of them ingested ecstasy. At some point, the

[petitioner] retrieved a revolver and asked the victim

if she had ‘set [him] up . . . .’ The [petitioner] then

fired one gunshot into her head, intentionally killing

her. After moving the victim’s body next to the bed, the

[petitioner] left the apartment, locking the door behind

him, and [traveled] to Waterbury for several days. While

in Waterbury, the [petitioner] socialized at a club named

‘Club Paradise.’

‘‘The [petitioner] returned to New Haven on February

8, 2009. Two days later, he encountered Terrence Cornigans outside of a mosque in New Haven. Although the

two men were not acquainted, the [petitioner] confessed to Cornigans that he had killed his girlfriend by

shooting her, and asked for money so that he could

leave the state. Cornigans refused to give the [petitioner] any money, but agreed to drive him home. The

[petitioner] instead directed Cornigans to drive him by

the victim’s apartment on Woolsey Street. Shortly thereafter, Cornigans returned the [petitioner] to the mosque.

Later that night, Cornigans reported to the police what

the [petitioner] had told him about killing his girlfriend.

The police went to the victim’s apartment and discovered her body. The [petitioner] turned himself in to the

police the following day.’’ Id., 689–90.

At his criminal trial, the petitioner admitted that he

had shot the victim but claimed that the gun had fired

accidentally. Id., 690–91. Because the petitioner admitted to the shooting, the key issue at trial was his intent.

In support of its burden to prove that the petitioner

intentionally fired the gun, the state presented the testi-
mony of James Stephenson, a firearms and toolmark

examiner with the state of Connecticut. Stephenson

testified regarding the operation of the petitioner’s gun,

a ‘‘.32 S&W long caliber Harrington & Richardson

revolver . . . .’’ Stephenson had examined the petitioner’s firearm for multiple purposes, including to evaluate

the amount of force required to pull the trigger.2 Stephenson testified that there are two ways to fire the

petitioner’s revolver, single action and double action.

In a single action trigger pull, the hammer is first pulled

back, and then the trigger is pulled. In a double action

trigger pull, the trigger is pulled back all the way without

first cocking the hammer. Stephenson’s tests revealed

that between three and one-half to five and one-half

pounds of pressure are required to fire the weapon in

a single action trigger pull. A double action pull requires

seven and one-half pounds of pressure. During the

state’s direct examination of Stephenson, the following

exchange occurred:

‘‘[The Prosecutor]: Talking about the single action

again . . . with the hammer pulled back, if an individual was holding the gun, and just waving it around,

without more, would that cause the gun to fire a bullet?

‘‘[Stephenson]: It requires a force placed upon that

trigger to cause it to fire. If the person doesn’t have

their finger on the trigger, if the gun is—if you were to

hold the gun in a fashion where, as explained in single

action, if my hand were back here, and I was just waving

it around, it’s not going to fire. It requires that pressure

placed against that trigger to cause it to fire.

‘‘[The Prosecutor]: Is the pressure pulling it backward purposely?

‘‘[Criminal Trial Counsel]: Objection, Your Honor.

Again, to the characterization purposely or not, that’s

a conclusion that I think ultimately is going to go to

this jury. That’s not appropriate.

‘‘[The Court]: Are you claiming it?

‘‘[The Prosecutor]: No, I’ll withdraw it.’’

The prosecutor continued to question Stephenson,

who testified that, with regard to a double action trigger

pull, an individual could not, simply by waving the gun

around with nothing more, cause the gun to fire. The

prosecutor did not repeat the question that had

prompted criminal trial counsel’s objection.

During closing argument, the prosecutor summarized

Stephenson’s testimony as follows: ‘‘The evidence shows,

James Stephenson, the ballistics expert, he indicated

that [he] and other ballistics experts, who check and

recheck each other’s work, examined this gun, and he

stated, based on years of experience, and examining

thousands of guns, this gun does not just go off, as the

[petitioner] claimed, it requires a purposeful trigger pull

of between five pounds and seven and a half pounds.’’
(Emphasis added.) During her rebuttal argument, the

prosecutor again referred to Stephenson’s testimony,

stating, ‘‘Stephenson, [the] ballistics expert, he told you,

ladies and gentlemen of the jury, the gun is safe, don’t

worry, that this gun does not just go off. It takes a

purposeful action, a real pull.’’ (Emphasis added.) Also

in her rebuttal, the prosecutor stated: ‘‘I know a couple

of you indicated on voir dire that you shot guns, you

are familiar with guns, perhaps many of you are not,

however; this is, if you will, the smoking gun. If the

injury to her head, the conduct leading up to that night,

his conduct after, and all of the information that you

have is not enough to prove intent to prove murder,

then you will know when he fired this gun because, as

. . . Stephenson eloquently put it, it takes a purposeful

pull back, it does not go off. We asked him, if you are

shaking the gun around, waving the gun around, even

if you have your finger on the trigger, it doesn’t go off.

No, they tested the gun, there was no malfunction with

it. They test fired it at the laboratory. In order for this to

discharge a bullet, it takes a very deliberate, purposeful

act.’’ (Emphasis added.)

After his conviction was affirmed on direct appeal,

the petitioner instituted the present habeas action,

claiming that his criminal trial counsel rendered ineffective assistance by, inter alia, failing to object to the

prosecutor’s improper remarks during closing argument.3 The habeas court denied the petition. The court

determined that the petitioner had failed to demonstrate, as required by Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), that

he had suffered prejudice by his criminal trial counsel’s

failure to object.

On appeal, the Appellate Court did not address the

question of whether the habeas court correctly concluded that the petitioner had failed to demonstrate

prejudice. Instead, the court held that the petitioner

was collaterally estopped from litigating the issue of

prejudice because, in the direct appeal, the Appellate

Court had ‘‘already determined that the prosecutor’s

improper comments did not prejudice the petitioner.’’

Ross v. Commissioner of Correction, 188 Conn. App.

251, 258, 204 A.3d 792 (2019). The Appellate Court

observed that, in the direct appeal, in support of his

claim of prosecutorial impropriety, the petitioner had

relied on the same improper remarks that now formed

the basis of his claim of ineffective assistance of counsel. Id. The court reasoned, therefore, that it already

had determined in the direct appeal that those remarks

‘‘did not deprive the [petitioner] of a fair trial.’’ (Internal

quotation marks omitted.) Id. Accordingly, the Appellate Court affirmed the judgment of the habeas court

denying the petition. Id., 259. This certified appeal

followed.

I
We first address the petitioner’s claim that the Appellate Court incorrectly concluded that he was collaterally

estopped from litigating the issue of whether his criminal trial counsel’s failure to object to the prosecutor’s

improper remarks prejudiced him. The respondent contends that the respective prejudice prongs of the tests

for prosecutorial impropriety and ineffective assistance

of counsel present identical issues. See State v. Williams, 204 Conn. 523, 539–40, 529 A.2d 653 (1987); see

also Strickland v. Washington, supra, 466 U.S. 694–95.

Specifically, the respondent claims that, because the

prejudice prongs of both tests require the petitioner to

prove that, but for the predicate conduct, it is probable,

or likely, that the result of the proceedings would have

been different, they are identical for purposes of the

doctrine of collateral estoppel. Therefore, the respondent argues, because the Appellate Court already

applied Williams in the petitioner’s direct appeal to

conclude that the prosecutor’s improper remarks did

not prejudice him, he is collaterally estopped from

arguing in the habeas action that, pursuant to Strickland, he was prejudiced by his criminal trial counsel’s

failure to object to those remarks.4 Because we conclude that the issue in the present case is not identical

to that presented in the direct appeal, we agree with

the petitioner.

‘‘[T]he doctrines of collateral estoppel and res judicata, commonly referred to as issue preclusion and

claim preclusion, respectively, have been described as

related ideas on a continuum. [C]laim preclusion prevents a litigant from reasserting a claim that has already

been decided on the merits. . . . [I]ssue preclusion

. . . prevents a party from relitigating an issue that has

been determined in a prior suit.’’ (Internal quotation

marks omitted.) Board of Education v. New Milford

Education Assn., 331 Conn. 524, 532 n.5, 205 A.3d 552

(2019). ‘‘For an issue to be subject to collateral estoppel,

it must have been fully and fairly litigated in the first

action. It also must have been actually decided and the

decision must have been necessary to the judgment.’’

(Emphasis omitted; internal quotation marks omitted.)

State v. Charlotte Hungerford Hospital, 308 Conn. 140,

146, 60 A.3d 946 (2013).

This court has applied the doctrines of collateral

estoppel and res judicata in the habeas context. See,

e.g., In re Application for Writ of Habeas Corpus by

Ross ex rel. Ross, 272 Conn. 653, 662, 866 A.2d 542

(2005) (appeal barred by doctrine of collateral estoppel

because plaintiffs in error had ‘‘been afforded a full and

fair opportunity to litigate the issue of . . . alleged

incompetency [of defendant] in prior proceedings’’);

McCarthy v. Warden, 213 Conn. 289, 294–96, 567 A.2d

1187 (1989) (doctrine of res judicata precluded relitigation of identical due process claim between identical

parties previously adjudicated in federal court), cert.
denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d

667 (1990). In the criminal context generally, we have

observed that ‘‘[w]hether two claims . . . are the same

for the purposes of res judicata should . . . be considered in a practical frame and viewed with an eye to all

the circumstances of the proceedings.’’ (Internal quotation marks omitted.) McCarthy v. Warden, supra, 295.

In applying the doctrine of res judicata in the habeas

context, we have recognized the significance of the

unique circumstances raised by collaterally attacking a

final judgment. Specifically, we have stated that,

‘‘[a]lthough the doctrine of res judicata in its fullest

sense bars claims that could have been raised in a prior

proceeding, such an application in the habeas corpus

context would be unduly harsh. . . . Unique policy

considerations must be taken into account in applying

the doctrine of res judicata to a constitutional claim

raised by a habeas petitioner. . . . Foremost among

those considerations is the interest in making certain

that no one is deprived of liberty in violation of his or

her constitutional rights. . . . With that in mind, we

limit the application of the doctrine of res judicata in

circumstances such as these to claims that actually

have been raised and litigated in an earlier proceeding.’’

(Internal quotation marks omitted.) State v. Miranda,

274 Conn. 727, 773, 878 A.2d 1118 (2005) (Katz, J., dissenting).5

The same policy considerations that we have relied

on to circumscribe the application of the doctrine of

res judicata to habeas proceedings guide us in applying

the doctrine of collateral estoppel in this context.6 That

is, the writ of habeas corpus permits a collateral attack

on a final judgment in order to provide ‘‘a remedy for

a miscarriage of justice or other prejudice. . . . As this

court stated in Bunkley v. Commissioner of Correction,

222 Conn. 444, 460–61, 610 A.2d 598 (1992) [overruled

in part on other grounds by Small v. Commissioner of

Correction, 286 Conn. 707, 946 A.2d 1203, cert. denied

sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481,

172 L. Ed. 2d 336 (2008)], the principal purpose of the

writ of habeas corpus is to serve as a bulwark against

convictions that violate fundamental fairness.’’ (Internal quotation marks omitted.) Kaddah v. Commissioner of Correction, 324 Conn. 548, 561, 153 A.3d 1233

(2017). We must therefore carefully balance the interests of finality that drive the doctrine of collateral estoppel against the constitutional rights secured by the writ.

Moreover, we consider the question of whether the

issues presented in the habeas action and the direct

appeal are identical, ‘‘in a practical frame,’’ and view it

‘‘with an eye to all the circumstances of the proceedings.’’ (Internal quotation marks omitted.) McCarthy v.

Warden, supra, 213 Conn. 295.

Although, when viewed broadly, the question presented by the prejudice prongs of both Williams and
Strickland—whether the petitioner was deprived of his

right to a fair trial—suggests that the issues are identical, there is a key distinction between the operation

and focus of the two tests, which answer the ultimate

question by employing substantially different means,

by evaluating the effect of different conduct undertaken

by different actors. See Strickland v. Washington,

supra, 466 U.S. 687; State v. Williams, supra, 204 Conn.

539. Williams evaluates the prejudicial effect of the

conduct of the prosecutor; Strickland’s focus is on the

prejudicial effect of defense counsel’s conduct. As a

result, the analyses employed by Williams and Strickland differ. It is undeniable that there is considerable

overlap in the evaluation of prejudice for both claims.

Understood practically, however, the connection

between the issue of prejudice and trial counsel’s failure

to object differs significantly in the two contexts. In a

habeas action, trial counsel’s failure to object forms the

basis for a petitioner’s claim that counsel’s performance

was deficient. With respect to the prejudice prong of

Strickland, the question is whether the effect of that

failure to object prejudiced the petitioner. By contrast,

on direct appeal, the same failure to object operates to

support the conclusion that the alleged prosecutorial

impropriety did not prejudice a defendant.

The petitioner’s claim of prosecutorial impropriety

in the direct appeal required the Appellate Court to

apply what have come to be known as the Williams

factors. See State v. Williams, supra, 204 Conn. 540.

Specifically, in Williams, we explained that, in

determining whether a defendant was deprived of his

due process right to a fair trial by prosecutorial impropriety, courts should consider: ‘‘[1] the extent to which

the [impropriety] was invited by defense conduct or

argument . . . [2] the severity of the [impropriety]

. . . [3] the frequency of the [impropriety] . . . [4] the

centrality of the [impropriety] to the critical issues in

the case . . . [5] the strength of the curative measures

adopted . . . and [6] the strength of the state’s case.’’

(Citations omitted.) Id. In evaluating the severity of the

impropriety, we have accorded significant weight to

defense counsel’s failure to object, explaining that such

a failure is ‘‘a strong indicator that [defense] counsel

did not perceive [the improprieties] as seriously jeopardizing the defendant’s fair trial rights.’’ State v. Jones,

320 Conn. 22, 38, 128 A.3d 431 (2015); see also State

v. Angel T., 292 Conn. 262, 289, 973 A.2d 1207 (2009)

(‘‘[w]hen considering whether prosecutorial [impropriety] was severe, this court consider[s] it highly significant that defense counsel failed to object to any of the

improper remarks, [to] request curative instructions,

or [to] move for a mistrial’’ (internal quotation marks

omitted)). Accordingly, ‘‘the fact that defense counsel

did not object to one or more incidents of [impropriety]

must be considered in determining whether and to what

extent the [impropriety] contributed to depriving the
defendant of a fair trial and whether, therefore, reversal

is warranted.’’ State v. Stevenson, 269 Conn. 563, 576,

849 A.2d 626 (2004).

Consistent with Williams and its progeny, in determining whether the petitioner had been prejudiced by

the prosecutor’s improper remarks during closing argument, the Appellate Court on direct appeal gave significant weight to criminal trial counsel’s failure to object

to those remarks at trial. Specifically, in concluding that

the improper remarks had not deprived the petitioner of

his right to a fair trial, the Appellate Court considered it

‘‘highly significant that [criminal trial] counsel failed to

object to any of the improper remarks, [to] request curative instructions, or [to] move for a mistrial. [Criminal

trial] counsel, therefore, presumably [did] not view the

alleged impropriety as prejudicial enough to seriously

jeopardize the [petitioner’s] right to a fair trial. . . .

Given the [petitioner’s] failure to object, only instances

of grossly egregious misconduct will be severe enough

to mandate reversal.’’ (Internal quotation marks omitted.) State v. Ross, supra, 151 Conn. App. 701. On appeal,

accordingly, the Appellate Court properly considered

criminal trial counsel’s failure to object as evidence that

the petitioner was not prejudiced by the prosecutor’s

improper remarks.

In drawing the inference of lack of prejudice on the

basis of criminal trial counsel’s failure to object, the

Appellate Court, consistent with Williams and its progeny, presumed that counsel was competent. The heavy

reliance placed on criminal trial counsel’s failure to

object as evidence of a lack of prejudice in a direct

appeal could naturally lead to a claim of ineffective

assistance in a subsequent habeas action. It is this

aspect of the Williams analysis—reliance on counsel’s

failure to object as evidence of a lack of prejudice—

that renders it impossible to conclude that collateral

estoppel bars the petitioner from litigating the issue of

whether he was prejudiced at trial and on direct appeal

by his criminal trial counsel’s failure to object to the

prosecutor’s improper remarks.

As for Williams’ heavy reliance on trial counsel’s failure to object as evidence of a lack of prejudice, in the

present case, the application of the doctrine of collateral estoppel would leave the petitioner with no ability

to establish how his criminal trial counsel’s failure to

object affected his trial and his appeal.7 Put differently,

applying the doctrine under these circumstances would

effectively preclude him from seeking a remedy for

conduct that he claims affected not only his criminal

trial but also his likelihood of success on appeal.

Applying the doctrine of collateral estoppel to bar the

petitioner from litigating whether his criminal trial

counsel’s failure to object to the improper remarks prejudiced him at trial and on direct appeal would be fundamentally unfair and, therefore, inconsistent with due
process and the principles underlying the writ of

habeas corpus.

II

We next address the issue of whether the judgment of

the Appellate Court may be affirmed on the alternative

ground that the petitioner has failed to demonstrate that

he suffered prejudice from his criminal trial counsel’s

failure to object to the improper remarks made by the

prosecutor during closing argument. We conclude that

the petitioner failed to demonstrate prejudice as

required by Strickland.

‘‘To succeed on a claim of ineffective assistance of

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

[supra, 466 U.S. 687]. Strickland requires that a petitioner satisfy both a performance prong and a prejudice

prong. To satisfy the performance prong, a claimant

must demonstrate that counsel made errors so serious

that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment. . . . To satisfy

the prejudice prong, a claimant must demonstrate that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different.’’ (Internal quotation marks

omitted.) Meletrich v. Commissioner of Correction, 332

Conn. 615, 626–27, 212 A.3d 678 (2019). A reasonable

probability is one that is ‘‘sufficient to undermine confidence in the verdict that resulted in his appeal.’’ (Internal quotation marks omitted.) Hickey v. Commissioner

of Correction, 329 Conn. 605, 618, 188 A.3d 715 (2018).

As we already have noted, a reviewing court may

resolve the petitioner’s claim on either ground. Meletrich v. Commissioner of Correction, supra, 627.

‘‘The habeas judge, as the trier of facts, is the sole

arbiter of the credibility of witnesses and the weight

to be given to their testimony. . . . The application of

historical facts to questions of law that is necessary

to determine whether the petitioner has demonstrated

prejudice under Strickland, however, is a mixed question of law and fact subject to our plenary review.’’

(Citation omitted; internal quotation marks omitted.)

Michael T. v. Commissioner of Correction, 307 Conn.

84, 90–91, 52 A.3d 655 (2012). In Diaz v. Commissioner

of Correction, 125 Conn. App. 57, 67, 6 A.3d 213 (2010),

cert. denied, 299 Conn. 926, 11 A.3d 150 (2011), the

Appellate Court reflected on the ‘‘interplay’’ between a

petitioner’s direct appeal and subsequent habeas action,

observing that its conclusion in the direct appeal, that

the trial court’s improper comment had constituted

harmless error, ‘‘while not dispositive, [was] persuasive.’’

The petitioner in the present case must demonstrate

that there is ‘‘a reasonable probability that, but for counsel’s [alleged] unprofessional errors, the result of the
proceeding would have been different.’’ Strickland v.

Washington, supra, 466 U.S. 694. Our review of the

record persuades us that the petitioner has failed to

demonstrate at the habeas court that he was prejudiced

by his criminal trial counsel’s failure to object to the

improper remarks.

We begin with the Appellate Court’s decision in the

direct appeal, discounting that decision’s reliance on

criminal trial counsel’s failure to object. The Appellate

Court agreed with the petitioner that the prosecutor’s

mischaracterization of the testimony of the state’s firearms expert during closing argument was improper.

State v. Ross, supra, 151 Conn. App. 695. Specifically,

the prosecutor stated several times in her closing argument that Stephenson had testified that a purposeful

pull was required to fire the petitioner’s revolver,

despite the fact that Stephenson did not make that

statement, and, in fact, was prevented from answering

the prosecutor’s leading question to that effect when

criminal trial counsel successfully objected to it. See

id., 698. In rejecting the petitioner’s claim that he was

prejudiced by the improper remarks, the Appellate

Court relied on the trial court’s general instructions.

Id., 702–703. Those instructions advised the jury that

arguments made by counsel are not testimony or evidence, and that it must base its verdict solely on the

evidence. See id. The Appellate Court acknowledged

that the impropriety went to a central issue in the case—

the petitioner’s mental state—and was not invited by

criminal trial counsel. Id., 705. The state’s evidence

regarding the petitioner’s mental state, however, was

strong. The Appellate Court summarized the evidence

on which it relied in arriving at that conclusion: ‘‘[T]he

state presented evidence that the [petitioner] and the

victim were involved in a tumultuous relationship, that

the [petitioner] believed the victim had arranged for

two of her male acquaintances to assault him, that he

purchased a revolver for the purpose of killing these

two men, and that immediately before shooting the

victim in the head, he asked her, ‘are you trying to set

me up?’ Moreover, the state presented evidence that

the [petitioner] did not summon help for the victim

after shooting her, but instead left the apartment, locked

the door behind him, and fled to Waterbury, where

he socialized at a nightclub with another individual.’’

Id., 704.

In its memorandum of decision denying the petition,

the habeas court observed that ‘‘[t]he petitioner proffered no evidence at the habeas trial regarding prejudice

that differs from that evaluated by the Appellate Court

on direct appeal.’’ Our review of the record before the

habeas court reveals that, on the issue of the prosecutor’s improper remarks, the petitioner presented solely

the testimony of his criminal trial counsel, which pertained not to prejudice, but to whether his criminal

trial counsel’s failure to object, to request a curative
instruction or to move for a mistrial constituted deficient performance.8 On the issue of prejudice, habeas

counsel argued to the habeas court that the improper

remarks went to the key issue in the case—whether

the petitioner intended to pull the trigger.

The failure of the petitioner’s criminal trial counsel

to object to the improper remarks does not undermine

our confidence in the verdict. The impropriety was confined to the prosecutor’s closing argument, and the

court instructed the jury that the arguments of counsel

do not constitute evidence. The improper remarks also

must be understood in the context of the strength of

the state’s case. Although the prosecutor incorrectly

stated that Stephenson testified that the petitioner’s

revolver required a ‘‘purposeful’’ pull to fire, Stephenson’s actual testimony constituted strong evidence that

the gun did not fire accidentally, as the petitioner had

claimed. Specifically, the prosecutor asked Stephenson,

‘‘if an individual was holding the gun, and just waving

it around, without more, would that cause the gun to

fire a bullet?’’ Stephenson responded: ‘‘It requires a

force placed upon that trigger to cause it to fire. If the

person doesn’t have their finger on the trigger, if the

gun is—if you were to hold the gun in a fashion where,

as explained in single action, if my hand were back

here, and I was just waving it around, it’s not going to

fire. It requires that pressure placed against that trigger

to cause it to fire.’’

As the Appellate Court observed, the evidence presented by the state demonstrated that the petitioner

believed that the victim had arranged for two of her

male friends to assault him, that the petitioner purchased a gun shortly thereafter for the purpose of killing

the men, and that, immediately prior to shooting her,

the petitioner accused the victim of setting him up.

State v. Ross, supra, 151 Conn. App. 704. Additional

evidence presented by the state, on which the jury properly could have relied to conclude that the petitioner

intentionally pulled the trigger, revealed that he did not

call for help after he shot the victim. Instead, he left her

body in her apartment and went to Waterbury, where

he went to a club and stayed for several days. Five days

after shooting the victim, the petitioner approached a

stranger outside of a mosque in New Haven, Cornigans,

and told him that he had shot the victim. Specifically,

the petitioner told Cornigans that he and the victim

were in her apartment. He was on the bed when he

heard a knock on the door and saw rays of light. He

then walked toward the victim, said, are you trying to

‘‘set me up’’ and shot her in the temple. When he spoke

to Cornigans, the petitioner did not state that he accidentally shot the victim when he was waving the gun

around. He did, however, ask Cornigans to help him

move the body and asked for money so he could leave

the state.
The state’s evidence that the petitioner intentionally

shot the victim was compelling. Although Stephenson’s

testimony countered the petitioner’s claim that he shot

the victim accidentally, it was the petitioner’s own statements and actions before and after the shooting that

provided the strongest evidence that he acted intentionally. He purchased the gun for the purpose of killing two

men who he believed assaulted him upon the victim’s

request. He admitted to Cornigans that he said to the

victim, you ‘‘set me up,’’ and that he then shot her in

the temple. All of his actions, including leaving her body

in the apartment, going to parties in Waterbury, and

asking Cornigans to help him move the body and to

give him money so he could leave the state, provided

evidence of consciousness of guilt and defied his claim

of an accidental shooting. In light of the strength of the

state’s case, we conclude that the petitioner has failed

to demonstrate a ‘‘reasonable probability that, but for

counsel’s [alleged] unprofessional errors, the result of

the proceeding would have been different.’’ (Internal

quotation marks omitted.) Meletrich v. Commissioner

of Correction, supra, 332 Conn. 627.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

* January 11, 2021, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 This court granted the petitioner’s petition for certification to appeal,

limited to the following issues: (1) ‘‘Did the Appellate Court correctly determine that the doctrine of collateral of estoppel precluded the petitioner

from litigating the issue of whether [criminal trial] counsel’s failure to object

to the prosecutor’s improper comments during the petitioner’s criminal trial

prejudiced him as part of an ineffective assistance of counsel claim under

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984), because the Appellate Court had previously held in the petitioner’s

direct appeal from his criminal conviction that those same improper comments did not deprive him of a fair trial?’’ And (2) ‘‘[i]f the doctrine of

collateral estoppel does not preclude the petitioner from litigating the issue

of prejudice, can the petitioner prevail under Strickland v. Washington,

supra, 466 U.S. 668?’’ Ross v. Commissioner of Correction, 331 Conn. 915,

915–16, 204 A.3d 703 (2019).

2 One of Stephenson’s coworkers had performed an initial examination

of the firearm and confirmed that it was functioning properly. Stephenson

cosigned the report on that examination.

3 The petitioner also claimed, before the habeas court, that his criminal

trial counsel rendered ineffective assistance by failing to present expert

testimony of a toxicologist in support of a planned intoxication defense.

The Appellate Court concluded that the habeas court had properly rejected

this claim. See Ross v. Commissioner of Correction, 188 Conn. App. 251,

255, 204 A.3d 792 (2019). That determination is not before us in this certified appeal.

4 The respondent concedes that the claims presented in the petitioner’s

direct appeal and in his habeas action are different. In the direct appeal,

the petitioner claimed that the prosecutorial improprieties deprived him of

his right to due process, whereas, in this habeas action, he argues that his

criminal trial counsel’s ineffective assistance violated his right to counsel

under the sixth and fourteenth amendments to the United States constitution.

Thus, claim preclusion could not apply to the petitioner’s claim of ineffective

assistance of counsel.

5 Outside of the habeas context, res judicata, or claim preclusion, prevents

the parties to a prior action, or their privies, from pursuing not only claims

that were actually made in the prior action, but also any claims that could

have been raised. See, e.g., Ventres v. Goodspeed Airport, LLC, 301 Conn.

194, 215–16, 21 A.3d 709 (2011) (concluding that res judicata precluded
parties to prior action from litigating claim that was not, but could have

been, made in prior action).

6 We are guided by the analysis of the Appellate Court in Diaz v. Commissioner of Correction, 125 Conn. App. 57, 6 A.3d 213 (2010), cert. denied,

299 Conn. 926, 11 A.3d 150 (2011). In that case, the Appellate Court concluded

that the petitioner’s claim of ineffective assistance of counsel was not barred

by the doctrine of res judicata. Id., 63. In his direct appeal, the petitioner

in Diaz argued that a comment made by the trial court in its final charge

to the jury violated his fourteenth amendment right to due process. Id., 60,

63. The court concluded that the remark, although improper, constituted

harmless error. Id., 60. In the petitioner’s subsequent habeas action, he

claimed that his criminal trial counsel had rendered ineffective assistance

by failing to object to the improper remark. Id. The habeas court determined

that the doctrine of res judicata barred the petitioner’s claim. Id., 61. On

appeal, the Appellate Court held that the habeas court had improperly

applied the doctrine of res judicata because the two claims—a fourteenth

amendment due process claim and an ineffective assistance of counsel claim

alleging violations of the sixth and fourteenth amendments to the United

States constitution—were not identical. Id., 63. The Appellate Court concluded that the petitioner’s ineffective assistance claim was ‘‘a separate

claim, thus requiring separate legal analysis.’’ Id., 66.

7 Our ruling is limited to the circumstances presented in this case and

does not preclude the application of collateral estoppel in the habeas context.

For example, it might be appropriate to apply the doctrine of collateral

estoppel to a subsequent habeas claim when the lack of an objection by

defense counsel is either not an issue or was not held against a defendant

on direct appeal. That question is not before us.

8 The petitioner’s criminal trial counsel testified that it was his practice

to object to improper remarks during closing argument only for ‘‘egregious’’

improprieties. For less severe improprieties, he testified, he preferred to

avoid ‘‘highlighting’’ any improper remarks. He explained that it was his

view that interrupting opposing counsel during closing argument results in

‘‘bad vibes’’ from the jury. He did not offer any strategic reason for failing

to object outside of the presence of the jury, to request a curative instruction,

or to move for a mistrial.