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*********************************************** 
ROGEAU R. COLLINS v. COMMISSIONER

OF CORRECTION

(AC 42785)

Lavine, Suarez and Devlin, Js.*

Syllabus

The petitioner, who had been convicted of felony murder and robbery in

the first degree, sought a writ of habeas corpus, claiming that his right

to conflict free counsel was violated and that his trial counsel provided

ineffective assistance. Specifically, the petitioner claimed that his trial

counsel had a financial incentive not to retain three expert witnesses

and that he failed to investigate a potential eyewitness and present her

testimony. The habeas court rendered judgment denying the habeas

petition, and the petitioner, on the granting of certification, appealed

to this court. Held:

1. The petitioner could not prevail on his claim that the habeas court erred

in concluding that his trial counsel did not have a conflict of interest:

a. This court concluded, contrary to the determination of the habeas

court, that the petitioner’s conflict of interest claim was not procedurally

defaulted, as it was a type of ineffective assistance of counsel claim

that typically must be raised by way of habeas corpus, rather than by

direct appeal, due to the need for a full evidentiary record of the claim;

neither trial counsel nor the court raised the potential for a conflict of

interest at trial and, consequently, the record on direct appeal was not

adequate to review the claim; accordingly, the claim was not subject to

the procedural default doctrine.

b. The habeas court properly determined that no actual conflict of

interest existed because trial counsel did not have an obligation to

finance the petitioner’s litigation costs or to make his private resources

available to the petitioner: the fee agreement clearly placed responsibility for the payment of experts on the petitioner and his family, and

counsel’s decision not to advance funds to engage experts after the

family failed to do so did not violate his duty of loyalty or otherwise

create a conflict of interest.

2. The habeas court did not err in determining that the petitioner was not

denied his constitutional right to the effective assistance of trial counsel,

reasoning that trial counsel’s failure to investigate the potential eyewitness did not result in any prejudice to the petitioner’s defense: the

habeas court’s conclusion that the witness would not have been willing

to assist the defense at trial, even if she had been contacted by counsel,

was based on a credibility determination that was not clearly erroneous

even though the witness stated at the habeas trial that she would have

testified at the trial if she had been approached by counsel because she

also testified that she witnessed the shooting, knew that the petitioner

had been arrested, and yet made no efforts to contact the police; accordingly, the petitioner did not establish that there was a reasonable probability that the trial outcome would have been different if trial counsel

had investigated the eyewitness.

Argued October 13, 2020—officially released February 23, 2021

Procedural History

Second amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district

of Tolland and tried to the court, Kwak, J.; judgment

denying the petition, from which the petitioner, on the

granting of certification, appealed to this court.

Affirmed.

Jennifer B. Smith, for the appellant (petitioner).

Timothy F. Costello, senior assistant state’s attorney,

with whom, on the brief, were Gail P. Hardy, former
state’s attorney, and Tamara Grosso, assistant state’s

attorney, for the appellee (respondent).
Opinion

DEVLIN, J. The petitioner, Rogeau R. Collins, appeals

from the judgment of the habeas court, Kwak, J., denying his petition for a writ of habeas corpus. On appeal,

the petitioner claims that the court improperly (1) determined that his conflict of interest claim was procedurally defaulted and that, in any event, his trial counsel

did not have a conflict of interest and (2) denied his

ineffective assistance of counsel claim. We affirm the

judgment of the habeas court.

The following recitation of facts was set forth by this

court in the petitioner’s direct appeal from his conviction. ‘‘In March, 2009, Robert Dixon, the victim, resided

in Hartford with his girlfriend. Dixon always carried

two cell phones. He used one cell phone to sell drugs

and the other for personal matters. In addition, he

always wore an expensive pair of Cartier glasses. He

did not store the drugs he sold at his home, but kept

them at a remote location secured in a safe. The key

to the safe was on the same key ring as Dixon’s car keys.

‘‘On March 9, 2009, Dixon exchanged several phone

calls with an individual named Adrian Dean, a friend

of the [petitioner]. At approximately 9:25 p.m. that night,

Dixon left his residence in his vehicle carrying both of

his cell phones and wearing his Cartier glasses. Sometime thereafter, Dean joined Dixon in the vehicle. Dean

then contacted the [petitioner], who was driving around

the Hartford area in his girlfriend’s vehicle. Dean

arranged to meet the [petitioner] at a location in Bloomfield and gave the [petitioner] directions to that location. The [petitioner] followed Dean’s directions and

arrived at the location at approximately the same time

as Dean and Dixon. Dixon and the [petitioner] then

drove their vehicles toward a cul-de-sac at the end of

the road. Dixon turned his vehicle in the cul-de-sac and

came to a stop. The [petitioner] pulled up and stopped

his vehicle to the left of Dixon’s vehicle. The [petitioner]

then exited his vehicle. Both the [petitioner] and Dean,

who had exited Dixon’s vehicle, approached the driver’s

side door of Dixon’s vehicle. Dixon was still sitting in

the driver’s seat of his vehicle. Dean, with a firearm in

one of his hands, opened the driver’s side door of Dixon’s vehicle and shot Dixon in the head. Dean then

asked the [petitioner] to search Dixon’s pockets. The

[petitioner] began patting Dixon’s pockets when Dixon

flinched and attempted to escape the vehicle through

the passenger side door. Dixon was shot seven times

as he attempted to escape and died as a result of the

multiple gunshot wounds. The [petitioner] and Dean

then left the scene in the [petitioner’s] vehicle. The

following morning, on March 10, 2009, Dixon was found

dead by two fishermen. Dixon’s two cell phones, Cartier

glasses, and keys were not found at the scene. The

[petitioner] was arrested on March 24, 2009.
‘‘The state, in a long form information filed on January

11, 2011, charged the [petitioner] with murder in violation of General Statutes § 53a-54a (a), felony murder

in violation of [General Statutes] § 53a-54c, conspiracy

to commit murder in violation of General Statutes

§§ 53a-48 (a) and 53a-54a (a), robbery in the first degree

in violation of [General Statutes] § 53a-134 (a) (2), and

conspiracy to commit robbery in the first degree in

violation of §§ 53a-48 (a) and 53a-134 (a) (2). The jury

found the [petitioner] guilty of felony murder and robbery in the first degree, but not guilty [of] each of the

remaining charges. The court sentenced the [petitioner]

to a total effective term of forty-five years of imprisonment.’’ State v. Collins, 147 Conn. App. 584, 586–88, 82

A.3d 1208, cert. denied, 311 Conn. 921, 86 A.3d 1057

(2014). This court affirmed the trial court’s judgment

on appeal. Id., 598.

On March 23, 2015, the self-represented petitioner

filed a petition for a writ of habeas corpus. The petitioner filed an amended petition with the assistance of

counsel on February 14, 2018, which was again

amended on April 10, 2018. The second amended petition contained four counts, only two of which are relevant to this appeal.1

In the first count, the petitioner

alleged that his trial counsel, Aaron Romano, had a

conflict of interest and, thus, rendered ineffective assistance. In the second count, the petitioner alleged that

Romano was ineffective for failing to investigate and

present a potentially exculpatory witness to the robbery, Teara Rosario, and that such failure materially

prejudiced the petitioner’s case.2

A trial on the habeas petition was held on June 8 and

12, 2018. On December 28, 2018, the habeas court issued

a memorandum of decision in which it denied each of

the petitioner’s claims. Specifically, as to the first count,

the court concluded that the petitioner’s conflict of

interest claim was procedurally defaulted and that, even

if it were not, the petitioner had failed to demonstrate

that Romano had a conflict of interest. As to the second

count, the court agreed with the petitioner that Romano

was ineffective in not investigating the potentially

exculpatory witness but also found that ‘‘it would be

too speculative to assess whether the absence of [the

witness’] testimony at the criminal trial inured to the

petitioner’s prejudice.’’ Thereafter, the petitioner filed

a petition for certification to appeal from the judgment

denying his petition for a writ of habeas corpus. The

habeas court granted the petition for certification to

appeal. Additional facts will be set forth as necessary.

Before we turn to the petitioner’s claims, we briefly

set forth our standard of review for habeas corpus

appeals. ‘‘The habeas court is afforded broad discretion

in making its factual findings, and those findings will

not be disturbed unless they are clearly erroneous. . . .

Historical facts constitute a recital of external events
and the credibility of their narrators. . . . Accordingly,

[t]he 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 the

habeas court’s factual findings to the pertinent legal

standard, however, presents a mixed question of law

and fact, which is subject to plenary review.’’ (Citations

omitted; internal quotation marks omitted.) Gaines v.

Commissioner of Correction, 306 Conn. 664, 677, 51

A.3d 948 (2012).

I

The petitioner first claims that the habeas court erred

in concluding that his conflict of interest claim was

procedurally defaulted and that, even if it were not,

Romano did not have an actual conflict of interest that

rendered his representation ineffective. Although we

agree that the petitioner’s claim was not procedurally

defaulted, we also agree with the habeas court’s conclusion that Romano did not have a conflict of interest.

The following additional facts are relevant to our

resolution of this claim. After he was arrested, the petitioner was found to be indigent and initially a special

public defender was appointed for him. The petitioner’s

family retained Romano on February 27, 2010, to represent the petitioner in lieu of a special public defender.

The petitioner’s father signed a representation agreement, agreeing to pay Romano a retainer of $25,000,

which included the trial fee, should the case proceed

to trial. The father also agreed that, ‘‘[i]f in the opinion

of [counsel], the services of experts or private investigators or the acquisition of medical, police, or other investigatory reports are necessary in defending [the petitioner] in the abovementioned matter, I agree to pay

the additional costs and fees that may arise as a result

of securing these services.’’

On March 10, 2010, Romano filed a motion for

expenses pursuant to Ake v. Oklahoma, 470 U.S. 68, 87,

105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985),3 arguing that the

petitioner was indigent and that state funding of expert

witnesses was necessary in order to provide effective

assistance of counsel. Specifically, Romano claimed

that he needed a ballistics expert to challenge the state’s

firearms expert, a cell phone expert to challenge the

state’s cell phone expert, a psychologist or psychiatrist

to opine on the voluntariness of the petitioner’s statements, and an independent medical examiner to determine the trajectory of the bullets. The court, Mullarkey,

J., conducted an evidentiary hearing over the course

of three days. Ultimately, the court denied the request

for expenses, concluding that Romano had failed to

make a sufficiently particularized showing of need for

the experts and that the petitioner’s indigency was voluntary.4 The court explained that, because the petitioner’s family had decided to retain and pay Romano, the

petitioner was voluntarily indigent. The court recom-
mended that Romano pay for experts to review the case

using funds he already had received and consult with

the state’s experts, such as the state medical examiner,

before deciding if independent experts were necessary.

Additionally, before adjourning, the court specifically

instructed the petitioner that ‘‘the state will pay for all

experts that the Chief Public Defender’s office determines are necessary if you’re represented by the public defender.’’

Prior to trial, on January 19, 2011, Romano filed an

amended motion for expenses, arguing again that the

petitioner was indigent and that experts were absolutely

necessary to his defense. After a hearing on the motion

held on February 8, 2011, the court, Espinosa, J., denied

the motion, finding that ‘‘[t]he [petitioner] had access

to a special public defender, with all of the advantages

and resources that the Office of the Public Defender

could provide. The [petitioner] knowingly and wilfully

rejected those services by having a private counsel file

an appearance in this case.’’ The court also recommended that Romano consider spending a portion of

the fee that he received on experts and then subsequently seek reimbursement from the petitioner’s family, pursuant to the provision in the retainer agreement.

On February 8, 2011, the petitioner moved to suppress

his statements made to the police, arguing that the

statements were tainted, as they were obtained as the

result of an arrest made without probable cause, and

were involuntary. Romano presented no expert testimony to support the argument, nor did he argue specifically that the petitioner’s cognitive deficiencies affected

the voluntariness of the statements. The court denied

the motion, finding that the statements were made

knowingly and voluntarily. The introduction of evidence at trial began on March 15, 2011. Romano did

not present any expert witnesses at trial.

A

The petitioner argues that the habeas court’s determination that his conflict of interest claim was procedurally defaulted because he did not raise the claim at

trial or on direct appeal was improper. We agree with

the petitioner.

A habeas court’s conclusion that a petitioner’s claim

was in procedural default involves a question of law,

over which our review is plenary. Johnson v. Commissioner of Correction, 285 Conn. 556, 566, 941 A.2d

248 (2008).

We begin with a review of the procedural default

rule. ‘‘Under the procedural default doctrine, a [petitioner] may not raise, in a collateral proceeding, claims

that he could have made at trial or on direct appeal in

the original proceeding, unless he can prove that his

default by failure to do so should be excused.’’ (Internal

quotation marks omitted.) Cator v. Commissioner of
Correction, 181 Conn. App. 167, 199, 185 A.3d 601, cert.

denied, 329 Conn. 902, 184 A.3d 1214 (2018). Ordinarily,

if the state ‘‘alleges that a [petitioner] should be procedurally defaulted from now making the claim, the [petitioner] bears the burden of demonstrating good cause

for having failed to raise the claim directly, and he must

show that he suffered actual prejudice as a result of

this excusable failure.’’ Hinds v. Commissioner of Correction, 151 Conn. App. 837, 852, 97 A.3d 986 (2014),

aff’d, 321 Conn. 56, 136 A.3d 596 (2016). This cause and

prejudice test derives from Wainwright v. Sykes, 433

U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), and

was held by our Supreme Court to be ‘‘the appropriate

standard for reviewability in a habeas corpus proceeding of constitutional claims not adequately preserved

at trial because of a procedural default . . . .’’ Johnson

v. Commissioner of Correction, 218 Conn. 403, 409, 589

A.2d 1214 (1991); see also Jackson v. Commissioner

of Correction, 227 Conn. 124, 132, 629 A.2d 413 (1993)

(holding that ‘‘the Wainwright cause and prejudice

standard should be employed to determine the reviewability of habeas claims that were not properly pursued

on direct appeal’’). The procedural default doctrine,

however, is limited to claims that could have been raised

at the trial level. See Hinds v. Commissioner of Correction, supra, 853.

Conflict of interest claims are a species of ineffective

assistance of counsel claims. See Santiago v. Commissioner of Correction, 87 Conn. App. 568, 582, 867 A.2d

70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005)

(‘‘[w]here a constitutional right to counsel exists, our

[s]ixth [a]mendment cases hold that there is a correlative right to representation that is free from conflicts

of interest’’). Our Supreme Court has explained that

ineffective assistance of counsel claims are generally

more appropriately resolved on collateral review:

‘‘Almost without exception, we have required that a

claim of ineffective assistance of counsel must be raised

by way of habeas corpus, rather than by direct appeal,

because of the need for a full evidentiary record for

such [a] claim. . . . Moreover, we have stated as our

preference that all of the claims of ineffective assistance, those arguably supported by the record as well

as others requiring an evidentiary hearing, be evaluated

by the same trier in the same proceeding. . . . On the

rare occasions that we have addressed an ineffective

assistance of counsel claim on direct appeal, we have

limited our review to allegations that the defendant’s

sixth amendment rights had been jeopardized by the

actions of the trial court,

5

rather than by those of his

counsel. . . . We have addressed such claims, moreover, only where the record of the trial court’s allegedly

improper action was adequate for review or the issue

presented was a question of law, not one of fact requiring further evidentiary development.’’ (Citations omitted; emphasis in original; footnote added; internal quo-
tation marks omitted.) State v. Crespo, 246 Conn. 665,

687–88, 718 A.2d 925 (1998) (declining to review conflict

of interest claim on direct appeal), cert. denied, 525

U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999).

In State v. Navarro, 172 Conn. App. 472, 474, 160

A.3d 1116, cert. denied, 326 Conn. 910, 164 A.3d 681

(2017), this court examined a conflict of interest claim

predicated on dual representation. In declining to

review the claim on direct appeal, this court stated that

the defendant’s ‘‘ineffective assistance [claim] should

be resolved . . . after an evidentiary hearing in the trial

court where the attorney whose conduct is in question

may have an opportunity to testify.’’ (Internal quotation

marks omitted.) Id., 491. The same need for testimony

applies to the present case. Romano never raised the

potential for a conflict of interest with the court, nor

did the court raise the issue on its own. As such, it was

not until the habeas trial itself that Romano explained

on the record specifically why he declined to pay for

experts using the retainer. Thus, we see no reason to

depart from our Supreme Court’s guidance that ineffective assistance of counsel claims are more appropriately

resolved on collateral review. We conclude that the

petitioner’s conflict of interest claim is not subject to

the procedural default doctrine and decline to apply

the Wainwright cause and prejudice test, as the record

on direct appeal was not adequate to review the claim.6

B

Having concluded that the petitioner’s claim is not

subject to procedural default, we proceed to consider

the merits of his conflict of interest claim. The petitioner

argues that Romano had an actual conflict of interest

‘‘because he had a personal financial incentive to not

retain and present the testimony of three experts once

the trial court denied his motion for state funding for

the cost of those experts.’’7 We are not persuaded.

We begin by setting forth the general legal principles

concerning conflicts of interest in the representation

of criminal defendants. ‘‘It is well established that the

sixth amendment to the United States constitution guarantees the right to effective assistance of counsel. . . .

Where a constitutional right to counsel exists, our

[s]ixth [a]mendment cases hold that there is a correlative right to representation that is free from conflicts of

interest.’’ (Citations omitted; internal quotation marks

omitted.) State v. Vega, 259 Conn. 374, 386, 788 A.2d

1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L.

Ed. 2d 56 (2002).8

‘‘In a case of a claimed conflict of interest . . . in

order to establish a violation of the sixth amendment the

defendant has a two-pronged task. He must establish

(1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely

affected his lawyer’s performance. . . . Where there is
an actual conflict of interest, prejudice is presumed

because counsel [has] breach[ed] the duty of loyalty,

perhaps the most basic of counsel’s duties. Moreover,

it is difficult to measure the precise effect on the defense

of representation corrupted by conflicting interests.

. . . Accordingly, an ineffectiveness claim predicated

on an actual conflict of interest is unlike other ineffectiveness claims in that the petitioner need not establish

actual prejudice.’’ (Emphasis in original; internal quotation marks omitted.) Grover v. Commissioner of Correction, 183 Conn. App. 804, 813, 194 A.3d 316, cert.

denied, 330 Conn. 933, 194 A.3d 1196 (2018).

‘‘An actual conflict of interest is more than a theoretical conflict. The United States Supreme Court has cautioned that the possibility of conflict is insufficient to

impugn a criminal conviction. . . . A conflict is merely

a potential conflict of interest if the interests of the

defendant may place the attorney under inconsistent

duties at some time in the future. . . . To demonstrate

an actual conflict of interest, the petitioner must be

able to point to specific instances in the record which

suggest impairment or compromise of his interests for

the benefit of another party.’’ (Emphasis altered; internal quotation marks omitted.) Tilus v. Commissioner

of Correction, 175 Conn. App. 336, 349–50, 167 A.3d

1136, cert. denied, 327 Conn. 962, 172 A.3d 800 (2017);

see Cuyler v. Sullivan, 446 U.S. 335, 345–50, 100 S. Ct.

1708, 64 L. Ed. 2d 333 (1980). ‘‘Whether the circumstances of . . . counsel’s representation, as found by

the habeas court, amount to an actual conflict of interest is a question of law [over] which our review is

plenary.’’ Shefelbine v. Commissioner of Correction,

150 Conn. App. 182, 193, 90 A.3d 987 (2014).

The petitioner claims that Romano breached his duty

of loyalty to him when Romano declined to use his

retainer to pay expert witness fees. Specifically, in his

brief, the petitioner states: ‘‘Here, counsel’s representation of the petitioner was materially limited because he

had a financial interest in not presenting the testimony

of these experts because he would have had to use his

retainer fee to pay for them. His financial interests were

inconsistent with the petitioner’s interests, who had an

interest in challenging the state’s evidence and mounting a defense to these serious charges by way of presentation of expert testimony on three important issues.’’

We can identify no Connecticut or federal authority

holding that counsel’s failure to apply funds from a

retainer agreement to the hiring of expert witnesses

creates a conflict of interest. This court previously has

found no conflict of interest where a fee agreement

provided for a fixed fee of $7500 for all work leading

up to trial and payment of $250 an hour with a $5000

retainer once the case was placed on the trial list. See

Grover v. Commissioner of Correction, supra, 183

Conn. App. 808, 814. The petitioner in Grover was
unable to pay the full trial retainer and, subsequently,

accepted a plea agreement. Id., 809. In his habeas petition the petitioner claimed ‘‘that [counsel] had a financial incentive to convince the petitioner to accept a

plea rather than proceed to trial due to the fact that the

petitioner was unable to pay [counsel’s] trial retainer

in full.’’ Id. This court declined to find a conflict of

interest, explaining that ‘‘[w]e do not agree that the

petitioner’s inability to pay the outstanding balance of

the trial retainer created such a conflict. According

to the testimony of [counsel], which the habeas court

credited in its entirety, although he was disappointed

that the trial retainer had not been paid in full, [counsel]

valued his professional reputation above any single fee.

He testified that his advice throughout the pendency

of the criminal case was based on his overall assessment

of the facts and not the financial situation of the petitioner.’’ Id., 814–15. Moreover, this court has also concluded that a $300,000 retainer for the entire representation, without regard to whether the case was resolved

by plea agreement or trial, does not represent an actual

conflict of interest. See Shefelbine v. Commissioner of

Correction, supra, 150 Conn. App. 193.

Federal courts have rejected conflict of interest

claims arising from fee agreements similar to the one

in the present case. In Williams v. Vasquez, 817 F. Supp.

1443, 1472 (E.D. Cal. 1993), aff’d sub nom. Williams v.

Calderon, 52 F.3d 1465 (9th Cir. 1995), cert. denied, 517

U.S. 1183, 116 S. Ct. 1588, 134 L. Ed. 2d 686 (1996), the

petitioner claimed that his trial counsel had a conflict

of interest because ‘‘he was placed in the position

whereby he had to personally pay for ancillary defense

services, or [forgo] the use of such services.’’ (Internal

quotation marks omitted.) Id. In rejecting this claim,

the District Court for the Eastern District of California

stated: ‘‘Although the [s]ixth [a]mendment guarantee of

effective assistance of counsel includes the collateral

right to counsel’s undivided loyalty . . . counsel’s duty

of loyalty does not impose an ancillary obligation to

personally finance his client’s defense investigation

and/or expert costs. In other words, no conflict of interest existed. Counsel’s failure to financially support [the]

[p]etitioner’s defense does not constitute a violation

of his duty of loyalty or of [the] [p]etitioner’s [s]ixth

[a]mendment right to effective assistance of counsel.’’

(Citations omitted.) Id., 1473. In affirming the judgment

of the District Court, the Court of Appeals for the Ninth

Circuit observed: ‘‘The quality of such representation

might well improve if counsel were to volunteer to

place her private financial resources at [the] defendant’s

disposal. As the [D]istrict [C]ourt correctly noted, counsel is under no obligation to do so.’’ Williams v. Calderon, 52 F.3d 1465, 1473 (9th Cir. 1995), cert. denied,

517 U.S. 1183, 116 S. Ct. 1588, 134 L. Ed. 2d 686 (1996).

In Bonin v. Calderon, 59 F.3d 815, 827 (9th Cir. 1995),

the United States Court of Appeals for the Ninth Circuit
again considered a habeas petitioner’s claim that his

trial counsel had a conflict of interest because trial

counsel’s substitution as retained counsel deprived the

defendant of state funded investigators and expert witnesses, thereby requiring counsel to pay for any investigators or experts out of his own pocket. In rejecting

this claim, the court noted that ‘‘[t]his allegation of

conflict is . . . inadequate under Cuyler [v. Sullivan,

supra, 446 U.S. 335]. . . . [A]n assertion of conflict

based on the fact that payment for any investigation or

psychiatric services could have come from counsel’s

pocket [forcing] counsel to choose between [the client’s] interests and his own . . . is the same theoretical

conflict that exists . . . in any pro bono or

underfunded appointment case. . . . While such

arrangements create a theoretical conflict of interest,

they do not typically create actual conflicts under

Cuyler.’’ (Citations omitted; internal quotation marks

omitted.) Id.

In United States v. Stitt, 552 F.3d 345, 350 (4th Cir.

2008), cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L.

Ed. 2d 48 (2009), the petitioner argued that ‘‘under the

financial agreement between him and [counsel], [counsel] was required to pay for all case-related expenses

out of his own pocket and that [counsel], not wishing

to incur the costs of an out-of-state investigator, thus

declined to pursue any investigation [out of state].’’

However, the United States Court of Appeals for the

Fourth Circuit noted that the District Court had made

the express factual finding, to the contrary, that counsel

‘‘were paid flat fees for their services, with costs and

expenses to be paid as they arose . . . . Petitioner’s

family agreed to raise the money for any additional costs

and expenses.’’ (Internal quotation marks omitted.) Id.,

351. After determining that this finding was not clearly

erroneous, the court concluded that a fee agreement

where counsel is paid a flat fee and must seek additional

costs and expenses from the petitioner’s family did not

represent an actual conflict. Id.

The petitioner in the present case asserts that Williams, Bonin, and Stitt are distinguishable because the

written fee agreement in the present case allowed

Romano to advance the funds for experts and then

pursue legal action against the petitioner’s family for

reimbursement. The petitioner’s effort to distinguish

Williams, Bonin, and Stitt on the ground that Romano

could bring an action for reimbursement is unpersuasive. The fact that there might be a theoretical path to

reimbursement does not create a conflict of interest

where otherwise one does not exist. Those cases stand

for the proposition that trial counsel has no obligation

to finance a defendant’s litigation costs and, further, is

under no obligation to put counsel’s private resources

at the defendant’s disposal. Advancing funds for experts

amounts to exactly that.
The petitioner relies heavily on State v. Cheatham,

296 Kan. 417, 292 P.3d 318 (2013), for the proposition

that ‘‘[a] fee agreement creates a conflict of interest

between a client and his attorney where the fee agreement pits the attorney’s interest in getting paid against

those of the client.’’ In Cheatham, the Kansas Supreme

Court addressed the propriety of a flat fee arrangement

in a death penalty case and concluded that the agreement in that case did constitute a conflict of interest.

Id., 453. However, the court stressed several key facts

that differentiate Cheatham from the present case.

First, counsel in Cheatham was not paid any fees before

the trial and thus operated under the presumption that

there was ‘‘little likelihood of any payment because [the

defendant] was indigent, which [counsel] knew.’’ Id.

Indeed, by the time of collateral proceedings, counsel

testified that he still was owed the $50,000 retainer. Id.,

451. Second, ‘‘[counsel], a solo practitioner with a ‘high

volume’ law practice requiring near daily court appearances, [had] little financial incentive to invest the significant time commitment a capital case requires.’’ Id., 453–

54. Additionally, we note that when counsel in

Cheatham took the case he was aware that the defendant would not be able to pay for expenses or expert

witnesses. Id., 422. Ultimately, the court in Cheatham

characterized the representation as ‘‘[bearing] a greater

resemblance to a personal hobby engaged in for diversion rather than an occupation that carried with it a

responsibility for zealous advocacy.’’ Id., 454. An unpaid

flat fee agreement in a death penalty case that incentivizes an attorney to do no more than the minimum necessary to secure a fee rather than seek acquittal is far

from the situation in the present case, in which a written

fee agreement placed the responsibility to pay for

experts and investigators squarely on the petitioner’s

family. We find Cheatham inapposite to the claimed

conflict of interest in the present case.

Given that this court has declined to find a conflict

of interest between a defendant and counsel in flat

fee cases, consistent with our holdings in Grover and

Shefelbine and the holdings in the federal case law cited

herein, we conclude that Romano did not have an actual

conflict of interest. The fee structure in the present case

is essentially the same fee structure that was present

in Stitt, for which the Court of Appeals for the Fourth

Circuit concluded there was no actual conflict of interest. See United States v. Stitt, supra, 552 F.3d 351.

Further, an actual conflict of interest is more than a

theoretical conflict. The United States Supreme Court

has cautioned that ‘‘the possibility of conflict is insufficient to impugn a criminal conviction.’’ Cuyler v. Sullivan, supra, 446 U.S. 350. A conflict is merely ‘‘a potential

conflict of interest if the interests of the defendant may

place the attorney under inconsistent duties at some

time in the future.’’ (Emphasis in original; internal quotation marks omitted.) Santiago v. Commissioner of
Correction, supra, 87 Conn. App. 589. In the present

case, there was a written fee agreement that clearly

delineated the financial arrangement involved in

Romano’s representation of the petitioner. The responsibility to pay for experts and investigators was placed

squarely on the petitioner and his family. When they

defaulted on this obligation, counsel’s decision not to

advance funds for experts did not violate his duty of

loyalty or otherwise create a conflict of interest.9 We

therefore cannot conclude that Romano had an actual

conflict of interest.

Because we conclude that there was no actual conflict of interest between the petitioner and Romano, we

do not reach the second prong of the conflict of interest

analysis concerning whether the conflict of interest

adversely affected counsel’s performance.

II

The petitioner next claims that the habeas court

improperly concluded that he received effective assistance of counsel. Specifically, the petitioner claims that

the habeas court correctly concluded that Romano’s

performance was deficient for failing to investigate a

potential witness, but that the court erred in concluding

that Romano’s failure to investigate the witness and to

present her testimony did not prejudice the petitioner’s

case. We do not agree.

The following additional facts are relevant to our

resolution of this claim. The petitioner testified at the

habeas trial that he did not have a gun with him on the

night of the shooting and that Dean ordered him at

gunpoint to participate in the robbery. He claimed that

he was ordered to pat down the victim, but that he did

not fire any shots. This testimony was contradicted by

the ballistics evidence presented at the criminal trial,

which suggested that there were bullets fired from two

different guns based on distinctive ballistic markings.

The petitioner contends that trial testimony from the

potential witness could have corroborated his version

of the events, namely, that he was acting under duress

when he participated in the robbery.

The petitioner testified at the habeas trial that there

was a woman, Rosario, in his car with him on the night

of the murder who witnessed the shooting. At the time,

he only knew the woman as ‘‘T.’’ He explained that he

saw the woman on the street that night and that,

because he had not seen her in four years, she got into

his car and joined him as they drove around Hartford.

After his arrest, the petitioner explained to the police

that he had picked up the woman earlier that night. He

told the police that she rode in the backseat of the car

to the location of the murder and was dropped off

afterward on Mather Street in Hartford. He described

the witness to the police as ‘‘half black and half Spanish

with a funny nose and a big forehead’’ with ‘‘shoulder
length’’ hair and mentioned that she hangs out at a

smoke shop on Mather Street, but he was not able to

provide her name. It was not until the petitioner was

incarcerated that he learned from another inmate that

the witness’ name is Teara Rosario.

The petitioner also testified at the habeas trial that

he had told Romano to find ‘‘T’’ and that she lived on

Marvin Street. Romano testified that he was aware of

the description of the woman in the police report and

that he and the petitioner had discussed the potential

witness. He considered the woman to be a potential

witness, but, due to the petitioner’s vague description

of her and lack of a name, he thought that it was doubtful

that an investigator would be able to locate the woman.

Romano testified at the habeas trial that he believed

that hiring a private investigator to find Rosario was

necessary and that he requested expenses to do so.

After his motion for expenses was denied, Romano

made no effort to locate the woman either personally

or through a private investigator. After learning of the

witness’ name while he was incarcerated, the petitioner

was able to hire a private investigator to locate Rosario

for the habeas trial. Rosario testified at the habeas trial

that she ran into the petitioner in Hartford on the evening of the shooting and got into his car. While she was

driving around with the petitioner, he received a ‘‘chirp’’

from Dean on his push-to-talk mobile phone. Rosario

heard Dean ask the petitioner to pick him up and give

him a ride. Rosario testified that there was no mention

of a robbery or plans to confront Dixon on this call.

The petitioner first drove to a house where Dean had

indicated that he was located. Upon determining that

Dean was not there, they drove for approximately ten

minutes and parked near a hotel, where Rosario saw

Dean standing near another car in which Dixon, the

victim, was seated in the driver’s seat. Dean started

walking toward the petitioner’s vehicle. Rosario testified that Dean had a gun but that the petitioner did not.

Dean opened the petitioner’s car door and ordered him

out of the car. Rosario then saw Dean and the petitioner

approach Dixon’s car, where Dean pointed his gun at

Dixon and said something to the petitioner. The petitioner leaned into the car to pat down Dixon, then

stepped away from the car, at which point Dean started

shooting at Dixon. Although Rosario testified that only

Dean had a gun, at one point she also stated ‘‘[a]nd

then they just start shooting.’’10 Rosario stayed in the

petitioner’s car during the confrontation and could not

hear what was said between the three men. After the

petitioner and Dean ran back to the petitioner’s car,

Rosario asked to be dropped off.

Rosario was asked at the habeas trial ‘‘had the

defense attorney come and found you, would you have

testified at [the petitioner’s] trial and told this story?’’

She responded that she would have done so. However,

she also testified that she was aware that a crime had
been committed and had made no efforts to speak to

the police even after hearing that the petitioner had

been arrested, despite characterizing their relationship

as that of ‘‘good friends.’’ She then explained on redirect

that she did not go to the police because she did not

want to be involved, as she was afraid that she would

end up in jail or that the victim’s family or Dean’s family

could hurt her or her family.

The habeas court agreed that the petitioner provided

Romano with ‘‘very little useful information’’ that could

be used to locate the woman but ultimately ruled that

counsel’s representation was deficient because counsel

took no steps to locate her: ‘‘Hiring one or more . . .

expert witnesses can readily be distinguished from utilizing an investigator to find and interview a potential

fact or eyewitness who is identified in the police report.

The police report placed an unknown woman (i.e., ‘T’)

inside the vehicle during the robbery and shooting. Reasonably competent defense counsel would hire and utilize an investigator to conduct an investigation that is

limited in scope: finding ‘T’ and discerning if she had

information that would assist the defense. The court

finds that . . . Romano was deficient for not utilizing

an investigator to locate . . . Rosario.’’

However, the court concluded that Romano’s failure

to investigate Rosario did not result in prejudice to the

petitioner. The court found that ‘‘she was not willing

to come forward and assist the defense at the time of

the trial for fear of the codefendant, Dean. Efforts by

counsel to locate . . . Rosario would not, therefore,

have likely resulted in her cooperating with the investigation in a manner that assisted the defense.’’ Ultimately, the habeas court determined that, ‘‘[a]lthough

this court has concluded that . . . Romano was deficient for not utilizing an investigator to locate . . .

Rosario, it would be too speculative to assess whether

the absence of her testimony at the criminal trial inured

to the petitioner’s prejudice.’’

As a preliminary matter, we set forth the general

principles surrounding ineffective assistance of counsel

claims and our standard of review. ‘‘In Strickland v.

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

2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of

ineffective assistance of counsel, he must show that

counsel’s assistance was so defective as to require

reversal of [the] conviction . . . . That requires the

petitioner to show (1) that counsel’s performance was

deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes

both showings, it cannot be said that the conviction

. . . resulted from a breakdown in the adversary process that renders the result unreliable. . . . Because

both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s
claim if he fails to meet either prong.’’ (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 128 Conn. App. 425, 430, 17 A.3d 1089, cert.

denied, 301 Conn. 926, 22 A.3d 1277 (2011).

As to the first prong, the habeas court found that

Romano’s representation was deficient because

Romano did not hire an investigator to locate and to

interview Rosario. The respondent, the Commissioner

of Correction, has not challenged this finding on appeal.

‘‘To satisfy the second prong of Strickland, that his

counsel’s deficient performance prejudiced his defense,

the petitioner must establish that, as a result of his

trial counsel’s deficient performance, there remains a

probability sufficient to undermine confidence in the

verdict that resulted in his appeal. . . . The second

prong is thus satisfied if the petitioner can demonstrate

that there is a reasonable probability that, but for that

ineffectiveness, the outcome would have been different.’’ (Internal quotation marks omitted.) Horn v. Commissioner of Correction, 321 Conn. 767, 776, 138 A.3d

908 (2016).

‘‘In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court

unless they are clearly erroneous, our review of whether

the facts as found by the habeas court constituted a

violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.’’ (Internal quotation marks omitted.) Griffin v. Commissioner of Correction, 119 Conn. App. 239, 241, 987 A.2d 1037, cert.

denied, 295 Conn. 912, 989 A.2d 1074 (2010). With the

foregoing principles in mind, we now address the merits

of the petitioner’s claim.

The petitioner claims that the court erred in concluding that Romano’s failure to investigate Rosario and to

present her testimony did not prejudice the petitioner’s

case. We are not persuaded. Because the court’s conclusion was premised on a factual finding, we first apply

the clearly erroneous standard of review to that finding.11 ‘‘The habeas court is afforded broad discretion in

making its factual findings, and those findings will not

be disturbed [on appeal] unless they are clearly erroneous. . . . Thus, [t]his court does not retry the case or

evaluate the credibility of the witnesses. . . . Rather,

we must defer to the [trier of fact’s] assessment of

the credibility of the witnesses based on its firsthand

observation of their conduct, demeanor and attitude.

. . . 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. . . . Thus, the court’s

factual findings are entitled to great weight. . . . Furthermore, [a] finding of fact is clearly erroneous when

there is no evidence in the record to support it . . .

or when although there is evidence to support it, the

reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been
committed.’’ (Citations omitted; internal quotation

marks omitted.) Orcutt v. Commissioner of Correction,

284 Conn. 724, 741–42, 937 A.2d 656 (2007).

The habeas court’s conclusion of no prejudice was

predicated on its finding that Rosario would not have

been willing to assist the defense at the time of the

trial. Although the petitioner stresses that Rosario

responded in the affirmative when asked if she would

have testified if approached by defense counsel, there

is sufficient support in the record to discredit her statement. Even after characterizing her relationship with

the petitioner as that of ‘‘good friends’’ and unequivocally stating that she witnessed Dean shoot the victim

and that she knew the petitioner had been arrested,

Rosario testified that she made no efforts to contact

the police to tell them what she had witnessed. The

following colloquy occurred on redirect examination

of Rosario:

‘‘Q. Miss Rosario, why didn’t you go to the police?

‘‘A. Because I didn’t want to be involved.

‘‘Q. Why not?

‘‘A. I have a life and children and I was pregnant. And

I didn’t know what possibly—what could happen. . . .

‘‘Q. Did you believe that someone could hurt you or

your family if you came forward in this case?

‘‘A. Yes. . . .

‘‘Q. Who were you afraid might hurt you or your

family?

‘‘A. The victim’s family or [Dean’s] family.’’

In arguing that the court’s factual finding is clearly

erroneous, the petitioner contends that ‘‘[t]he habeas

court ignored the distinction between Rosario not coming forward independently, and Rosario coming forward if she was approached by trial counsel and asked

to testify.’’ However, we agree with the respondent that

‘‘[t]he habeas court’s conclusion that the petitioner

failed to establish that Rosario would have presented

helpful testimony amounted to a discrediting of her

testimony that, if she had been located and called to

testify at the criminal trial, she would have testified in

the same manner as she testified at the habeas trial.’’

The habeas court’s finding that Rosario was not willing

to assist the defense at the time of the trial is an implicit

credibility finding. The habeas court was free to reject

her testimony that she would have testified at the petitioner’s criminal trial as she did at the habeas trial. We

must assume that the habeas court carefully weighed

Rosario’s testimony that she would have cooperated if

approached by counsel against her testimony that she

was afraid to be involved, and found the former to be

not credible. ‘‘[A] pure credibility determination . . .

is unassailable.’’Breton v.Commissioner of Correction,
325 Conn. 640, 694, 159 A.3d 1112 (2017); see also Sanchez v. Commissioner of Correction, 314 Conn. 585,

604, 103 A.3d 954 (2014) (‘‘[W]e must defer to the [trier

of fact’s] assessment of the credibility of the witnesses

based on its firsthand observation of their conduct,

demeanor and attitude. . . . 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.’’

(Internal quotation marks omitted.)). Accordingly, we

cannot conclude that the habeas court’s factual finding

is clearly erroneous.

Having accepted the habeas court’s finding that Rosario would not have assisted the defense at the time of

trial, we agree with the habeas court’s ultimate conclusion that Romano’s failure to investigate the potential

witness resulted in no prejudice to the petitioner’s

defense. We agree with the habeas court’s conclusion

that ‘‘it would be too speculative to assess whether the

absence of her testimony at the criminal trial inured to

the petitioner’s prejudice.’’ The petitioner cannot establish that there is a reasonable probability that the outcome of his trial would have been different even if

Romano had investigated Rosario.12

Because we have concluded that the habeas court’s

ruling was proper pursuant to its credibility determination of Rosario, we decline to address the petitioner’s

claim that the habeas court erroneously found that

Rosario did not substantially corroborate the petitioner’s version of events.

The judgment is affirmed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 The second amended habeas petition included claims of conflict of interest, ineffective assistance of trial counsel, a violation of due process, and

actual innocence. The habeas court denied all four counts. On appeal, the

petitioner challenges only the counts pertaining to conflict of interest and

ineffective assistance of counsel.

2 The petitioner alleged seventeen potential failures of trial counsel in the

second amended petition, but he advances only the failure to investigate

Rosario on appeal. The habeas court denied all seventeen allegations of

ineffective assistance.

3

In Ake v. Oklahoma, supra, 470 U.S. 86–87, the United States Supreme

Court held that, when an indigent defendant’s mental state at the time of

the offense is likely to be a significant factor at trial, due process requires

that a state provide access to a psychiatric expert to assist in preparing

a defense.

4 The petitioner has not challenged the indigency finding or the denial of

the motion for expenses.

5 Because the petitioner argues on appeal that the conflict of interest

arises from the conduct of Romano in not paying for experts himself, rather

than from the trial court’s findings of indigency and denial of the various

motions for funding for expert witnesses, we conclude that this exception

does not apply to the petitioner’s appeal.

6

In support of its assertion that the petitioner’s conflict of interest claim

is procedurally defaulted, the respondent, the Commissioner of Correction,

has also framed this claim as a failure to appeal from the denial of the

motions for ancillary expenses and the findings of indigency. Specifically,

the respondent argues that ‘‘[b]ecause the petitioner has presented no evidence and argument to explain why he did not previously challenge the

trial court’s ruling on Romano’s request for ancillary funds, and has only
argued why he did not claim a conflict of interest at trial and on direct

appeal, he necessarily has failed to establish the requisite cause and prejudice

to excuse his procedural default.’’ The petitioner’s claim, however, is directed

not at the denial of the motions for ancillary expenses but rather at Romano’s

conduct in the aftermath of such denials. We conclude that the petitioner’s

failure to raise the trial courts’ indigency findings and denial of payment

for ancillary expenses in his direct appeal does not preclude the petitioner

from making a conflict of interest claim in a habeas corpus proceeding.

7 We note that the petitioner does not argue on appeal that his counsel’s

failure to call the experts constituted ineffective assistance.

8 The petitioner’s statement of issues and introductory portion of his

conflict of interest argument also aver that his rights under article first, §§ 8

and 9, of the constitution of Connecticut were violated. However, beyond

these cursory mentions, the petitioner’s brief does not contain any substantive analysis of potential Connecticut constitutional violations. Accordingly,

we decline to review these claims. See State v. Buhl, 321 Conn. 688, 724,

138 A.3d 868 (2016) (‘‘We repeatedly have stated that [w]e are not required

to review issues that have been improperly presented to this court through

an inadequate brief. . . . Analysis, rather than mere abstract assertion, is

required in order to avoid abandoning an issue by failure to brief the issue

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

9 As the respondent, the Commissioner of Correction, correctly points

out, if Romano unreasonably failed to investigate the petitioner’s case or

to present any expert witness at trial, the petitioner’s recourse would be to

claim, under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984), that Romano rendered ineffective assistance of counsel.

In the present case, the petitioner made that claim only with respect to

Romano’s failure to locate and to call Rosario, the potential eyewitness.

10 Insofar as this statement suggests that there were two shooters, we

note that the petitioner describes this statement as a mistake, which is

amply supported by evidence in the record, as Rosario repeatedly testified

that Dean was the only person with a gun.

11 The petitioner, citing State v. Clark, 297 Conn. 1, 997 A.2d 461 (2010),

claims that ‘‘when a constitutional issue turns upon a factual finding, a

reviewing court must conduct a scrupulous examination of the record to

determine whether a lower court’s finding is supported by substantial evidence.’’ Although Clark includes language supporting that statement, Clark

and the line of cases cited therein make it clear that the substantial evidence

standard applies to ‘‘review of a trial court’s findings and conclusions in

connection with a motion to suppress.’’ Id., 7; see State v. DeMarco, 311

Conn. 510, 519, 88 A.3d 491 (2014); State v. Burroughs, 288 Conn. 836, 843,

955 A.2d 43 (2008). Accordingly, we apply the well established definition

of clearly erroneous when evaluating the court’s factual findings.

12 We note that the petitioner claims that ‘‘the habeas court failed to

state and apply the correct prejudice standard—the ‘reasonable probability’

standard. . . . Nowhere in the habeas court’s decision . . . does it state

or apply the ‘reasonable probability’ standard.’’ We agree with the respondent

that the habeas court expressly stated that it was applying the prejudice

test from Strickland, which is the reasonable probability standard. The

habeas court appropriately and extensively discussed the relevant principles

from Strickland, as well as our Supreme Court’s ineffective assistance of

counsel jurisprudence as set forth in Gaines v. Commissioner of Correction,

supra, 306 Conn. 664. The mere fact that the habeas court did not use the

precise phrase ‘‘reasonable probability’’ in its conclusion regarding Rosario’s

testimony is insufficient to give us the impression that the court failed to

apply the appropriate standard, particularly where we have agreed with the

habeas court’s prejudice determination.