Carmon v. Warden

Full title: Adam Carmon (#170101) v. Warden

Court: Superior Court of Connecticut

Date published: Jun 13, 2016

CV134005289S (Conn. Super. Ct. Jun. 13, 2016)

Opinion

CV134005289S

06-13-2016

Adam Carmon (#170101) v. Warden

Hon. Vernon D. Oliver, J.

June 13, 2016, Filed

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Hon. Vernon D. Oliver, J.

The petitioner, Adam Carmon, initiated this fourth petition for a writ of habeas corpus, claiming that his underlying criminal counsel, direct appeal counsel, first habeas and second habeas counsel provided him ineffective legal representation. He further claims due process violations, Brady violations, prosecutorial impropriety, and actual innocence. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The respondent denies the claims and asserts several special defenses. The court finds the issues for the respondent and denies the petition.

Procedural History

In the criminal matter State v. Adam Carmon, CR94-0390840, in the New Haven Judicial District, the petitioner was charged with Murder in violation of Connecticut General Statutes § 53a-54a; Assault in the first degree in violation of Connecticut General; Statutes § 53a-59; and Carrying a Pistol without a Permit in violation of Connecticut General Statutes § 29-35(a).

At his jury trial, the petitioner was represented by attorney Richard Silverstein. After being convicted on all charges, the trial court, Hadden, J., on May 26, 1995, sentenced the petitioner to a total effective sentence of eighty-five years to serve. The petitioner appealed the convictions. State v. Carmon, 47 Conn.App. 813, 709 A.2d 7, cert. denied, 244 Conn. 918, 714 A.2d 7 (1998). In his direct appeal, the petitioner was represented by attorney Suzanne Zitser. The following findings of that court are relevant to a disposition of the instant petition:

" The jury reasonably could have found the following facts. On the night of February 3, 1994, Charlene Troutman was in the living room of her apartment located on Orchard Street in New Haven waiting for a taxicab. With her, among others, was her seven month old granddaughter. Shots fired from the street passed through the living room window killing the granddaughter and leaving Troutman permanently paralyzed. At the time the shots were fired, Jaime Stanley and Raymond Jones were stopped at a traffic light near Troutman's apartment and saw a man firing into the apartment. As the shooter ran away, both Stanley and Jones saw his face. Both witnesses identified the defendant during trial as the person who had fired the shots through the window of Troutman's apartment.

" The defendant first claims that the trial court improperly precluded the defendant from cross-examining Stanley regarding the reliability of her identification of the defendant as the shooter, thereby denying him his federal and state constitutional right to confront the witnesses against him. In particular, the defendant wanted to question Stanley about mistaken identifications that she may have made in the past. The trial court held that evidence of possible misidentifications in the past, on unrelated events, was irrelevant to the issue of whether she had in fact seen the defendant on the night of the shooting. We agree.

" In this case, the defendant extensively cross-examined Stanley about her ability to identify, and the conditions under which she identified the defendant. Stanley testified that she was in a position that enabled her clearly to see the defendant. In particular, Stanley testified that she saw the defendant fire a gun, stop, turn and face her, return to his original position and fire through the window a second time. Stanley testified that she was focused on the defendant because of his actions.

" Thereafter, the defendant posed a question to the witness that asked, in a very general way, if she had ever mistaken a person for someone else. That question was asked in the midst of extensive and detailed questioning and had no relevance to the circumstances surrounding the shooting and the subsequent identification of the defendant as the shooter.

" We agree with the trial court that, under the facts of this case, the fact that the witness may have incorrectly identified another person at some point in her life was irrelevant. This information would not have tended to show that her identification of the defendant on the evening of the shooting was unreliable. Without more, this question was not relevant to her ability to identify the defendant on the evening of the shooting.

" The day after the shooting, February 4, 1994, the police questioned Brantley because they had learned that Brantley had been involved in a heated argument with Troutman and other members of her family on the afternoon of the shooting. At that time, Brantley denied any involvement in or knowledge of the shooting. That statement was not made under oath. The next day, February 5, in response to police questions, he stated that, after an altercation with the Troutmans on February 3, he went to Fair Haven to seek the aid of Anthony Little and to find a gun to get revenge for his treatment by the Troutmans. That statement was made under oath.

" On February 7, Brantley told the police that on the evening of the shooting he, Anthony Little and Demetrious Bates drove to the Troutman residence with the intent to rob the Troutmans. While he and Little remained in the car, Bates went to Troutman's apartment window and fired several shots. Bates got back into the car and they drove away.

" On February 18, Brantley told the police that the only truth to the statements he had given on February 5 and 7 was that he had gotten into a fight at the Troutman apartment. Brantley said that the altercation occurred when the Troutmans did not give him the money they owed him for drugs that he had sold to them previously.

" At trial, the defendant called Brantley to the stand for the purposes of contesting the identification of the defendant as the shooter and presenting an alternative theory of liability. Once on the stand, however, Brantley testified that he was neither present at the shooting nor involved in any manner. Thereafter, the defendant was successful in having the court admit the two prior inconsistent statements given under oath by Brantley for substantive purposes under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986).

" Under cross-examination by the state, Brantley testified that the two statements he had given under oath were not true and the only true statement was the one giver on February 18. On the basis of that testimony, the court admitted into evidence, ostensibly under the Whelan doctrine, the February 18 statement Brantley made to the police in which he denied any involvement in the shooting.

" The defense admits that it called Brantley to present evidence that someone other than the defendant had committed the crime. Accordingly, the defendant reasons that any evidence that tended to weaken Brantley's credibility as a witness would be detrimental to the defendant's case and therefore constitute reversible error. This argument fails.

" Evidence of Brantley's tendency to make inconsistent statements regarding the Troutman shooting was first introduced to the jury by the defendant himself. The defendant's questioning of Brantley regarding his involvement prompted him to testify that he had given false statements on February 5 and 7. As a result of that testimony, the defendant was able to introduce those statements for substantive purposes. Likewise, the February 18 statement was introduced by the state to show that the witness' testimony, either live or taken from his sworn statements, was not trustworthy. Therefore, the February 18 statement can be characterized as additional evidence that Brantley's testimony was an accumulation of inconsistencies. Therefore, we conclude that admitting Brantley's February 18 statement was improper; however, it was not harmful under the facts of this case." State v. Carmon, supra, 47 Conn.App. 813-23.

The petitioner filed his first writ in the New Haven Judicial District in 1998 and was assigned docket number CV98-0411202. Attorney Richard Smith was assigned to represent the petitioner. The first habeas court, Meadows, JTR, in denying the petition made the following relevant findings:

" The petitioner in this habeas case claims his trial counsel denied him effective assistance of counsel.

" At the time of trial the petitioner failed to put on any evidence alleged in the amended petition dated October 30, 2001 other than the claims that he was denied effective assistance of trial counsel, Richard Silverstein (Silverstein) because he did not investigate, disclose and present an alibi defense. (See Amended Petition paragraphs 3b and 3c.)

" At the habeas trial, the petitioner testified that he had gone to his girlfriend's house, Christal Batts (Christal) because it was her birthday.

" Carmon testified he had a call about a card game that Crystal drove him to at 701 Winchester Avenue 9:30 p.m. The game started at 10 p.m. Carmon stated that around 9:45 p.m. before the game started Mr. Brown arrived. According to Carmon's version, he left the card game at around 11:25, 11:30 p.m. (Transcript Habeas p. 41.) Carmon informed Attorney Silverstein of the name of Brown and when and where he was at the card game after his arrest. After Silverstein represented Carmon, he acknowledged Silverstein spoke to Mr. Brown.

" A claim not included in the amended petition involved an attempt by habeas counsel to bring the issue of police records before the court. The court rejected such an attempt when objected to by the respondent. The petitioner in his post trial brief raised the question of the police reports for the first time. At the habeas trial it was claimed the issue of the report concerning fingerprints and palm prints came from the petitioner Carmon. Trial counsel Silverstein stated he was reasonably certain if the prosecution had turned over the report as exculpatory evidence, he would have investigated it. Further, Silverstein reasonably believed the prosecution had disclosed all exculpatory evidence.

" The thrust of this habeas petition was the attack on trial counsel being ineffective because he did not use the alibi defense. The only witnesses produced at trial by the petitioner were Brown and Crystal whose testimony this court has already discussed who at the request of the respondent these two witnesses were sequestered.

" Silverstein testified that he had a copy of Carmon's statement (Exh. D) supplied by the prosecution and that it played a part in his tactical decision not to pursue an alibi defense because he did not want the statement to come into evidence since Carmon puts himself at the scene at the time of the crime. Silverstein wanted to establish that a third party did the shooting, not the petitioner. (Petition Transcript 5/22/2002 p. 20.)

" Silverstein was aware of the two witnesses, Jaime Stanley and Raymond Jones that put Carmon at the scene as the shooter. As a tactical reason he wanted to raise a reasonable doubt about the identification of Carmon as the shooter.

" Silverstein was appointed as counsel in the trial case after Carmon gave his statement. (Exh. D.) Silverstein testified that Exhibit D did not come in at trial. Silverstein felt the state would introduce the statement which they failed to do.

" The court concludes that the statement (Exh. D) introduced by the respondent has been placed in evidence at this trial to refute the alibi defense now claimed.

" Carmon testified that the signature on the statement (Exh. D) was not his and that at the time he was arrested on other charges they kept asking him did he murder the baby. Further he stated that they left out his alibi of playing cards that night. The petitioner finally admitted that the tape was his voice although he asserted that the tape was doctored and pieced together. From all the evidence adduced at trial this court finds that the testimony of Detective Dease is the more credible evidence before the habeas court.

" The case to offer a defense of misidentification as the issue was a tactical decision. The discrepancies in the alibi defense would have diminished its credibility.

" Counsel is strongly presumed to render adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Minnifield v. Commissioner of Correction, 62 Conn.App. 68, 71-72, 767 A.2d 1262 (2001). The petitioner has failed to meet his burden of proof that counsel was ineffective."

Carmon v. Warden, CV980411202S, 2002 WL 31600999, at *4 (Conn.Super. Nov. 6, 2002). There was no direct appeal. Instead, the petitioner filed his second writ in February 2003 in the New Haven Judicial District, assigned docket number CV03-0474044. The petitioner was represented by attorney Sebastian DeSantis. The Court Silbert, J., in denying the petition, made the following findings:

" In March of 1998, the petitioner filed a petition for writ of habeas corpus, bearing docket number CV98-0411202, in the Judicial District of New Haven. The Court eventually appointed Attorney Richard Smith to represent the petitioner, and Smith filed an Amended Petition, dated October 30, 2001, claiming inadequate and ineffective assistance by petitioner's counsel, Richard Silverstein, Esq. That petition focused primarily on Silverstein's alleged failure to investigate, disclose and present an alibi defense, but the petitioner also raised issues concerning his objection to the seating of a particular juror and his having been inappropriately advised by Silverstein not to testify. The respondent denied the allegations and raised the defense of procedural default. The habeas court, Meadow, JTR, found all of the petitioner's claims to be without merit and denied the petition. In addition, the petitioner had advanced a claim not actually included in his amended habeas petition, concerning certain police records dealing with fingerprints and palm prints. The habeas court declined to consider this claim because it had not been included in the amended petition.

" The afore-mentioned habeas trial on Docket Number CV98-0411202 took place before Judge Meadow on May 2, 2002; May 10, 2002; and May 22, 2002. The witnesses called by the petitioner included: Robert Brown (TH. 5/2/02 at 9-13); Christal Batts (TH. 5/2/02 at 21-30); Attorney Richard Silverstein (TH. 5/10/02 at 3-36); and Adam Carmon (TH. 5/10/02 at 39-66 and 5/22/02 at 25-30). The witnesses called by the respondent were Leroy Dease (TH. 5/22/02 at 6-17) and Attorney Silverstein (TH. 5/22/02 at 19-23).

" The full exhibits introduced at the habeas trial by the petitioner included: three volumes of trial transcripts from the petitioner's criminal trial (Petitioner's Exhibits 1, 2, and 3; TH. 5/2/02 at 8) and the appellate opinion in State v. Carmon . 47 Conn.App. 813, 709 A.2d 7 (1998) (Petitioner's Exhibit 4; TH. 5/2/02 at 9). The respondent's exhibits included: two statements of Arthur Brantley taken on February 5 and 7, 1994, both of which were introduced by the defense at the petitioner's criminal trial (Respondent's Exhibits A and B; TH. 5/10/02 at 24-25); a portion of the criminal trial transcript in State v. Carmon, CR94-0390840, (T. 970-73 and 978-99); the statement of Adam Carmon taken by Detective Leroy Dease on February 15, 1994 (Respondent's Exhibit D; TH. 5/22/02 at 2, 8); the fingerprint card for Adam Carmon taken on February 15, 1994 at the New Haven Police Department (Respondent's Exhibit E; TH. 5/22/02 at 3); the fingerprint card for Adam Carmon taken on February 23, 1994 at the New Haven Police Department. (Respondent's Exhibit F; TH. 5/22/02 at 3); the tape cassette of the recorded statement of Adam Carmon taken by Detective Dease on February 15, 1994 (Respondent's Exhibit G; TH. 5/22/02 at, 3-4, 10); the photo taken of Adam Carmon at the New Haven Police Department on February 15, 1994 (Respondent's Exhibit H; TH. 5/22/02 at 13); and the two photographs which are identified by Adam Carmon in his statement of February 15, 1994 as photo one (J. Wok, a.k.a. Jerry Gates) and photo two (E. Wok, a.k.a. Edward Manning) (Respondent's Exhibit I, consisting of two photos on one paper; TH. 5/22/02 at 14-16.)

" Judge Meadow denied the petition in a written Memorandum of Decision, dated November 5, 2002, and granted certification to appeal. The petitioner did not, however, perfect his appeal, nor did he file his own appeal brief after appointed appellate counsel was permitted to withdraw following his filing of an Anders brief.

" The petitioner thereafter filed this, his second petition for writ of habeas corpus, in February of 2003. His Amended Petition again raises claims of ineffective assistance of trial counsel (the general ground raised in the first habeas petition) in Count One. In Count Two, he also raises a claim of ineffective assistance on the part of Attorney Smith, his counsel in the earlier habeas case (Docket No. CV98-0411202.) Finally, in Count Three, he makes a claim of " actual innocence." The respondent filed his Return on February 10, 2006, denying the allegations of the Amended Petition. He also raised the defenses of procedural default and res judicata, arguing that this is a successive petition which attempts to re-litigate claims that were made or that could have been made in the previous habeas petition, and that this petition does not state new facts or proffer new evidence not reasonably available at the time of the prior petition.

" The habeas trial in this case began before the undersigned on February 15, 2006 and continued on May 3, 2006. The final brief was filed on August 11, 2006. By agreement, the Court agreed to take notice of the transcript of the original trial and of the pleadings, exhibits, transcripts, briefs and Memorandum of Decision of Judge Meadow in CV98-0411202. In preparing the exhibits, however, the parties discovered that the exhibits from the latter proceeding had been destroyed, the appeal from Judge Meadow's decision never having been perfected. The parties have reconstructed the exhibits and have stipulated that the packet of materials they have submitted to the court is the equivalent of the original exhibits.

" On the first day of the present proceeding, the witnesses for the petitioner were previous habeas counsel Richard Smith and the petitioner himself. In addition to the exhibits previously mentioned, the petitioner offered as a full exhibit a two-page police report by Detective James Stephenson (petitioner's exhibit 4: supplemental investigation report of Detective James Stephenson in complaint 10607; date of incident 2/3/94; date of report 2/5/94). On the second day of the hearing, the court heard testimony from former Detective Stephenson and New Haven Police Officer George Shelton . . ." As previously mentioned, the petitioner now contends that, in addition to several enumerated alleged failings by his trial counsel, his counsel at his first habeas trial, Richard Smith, Esq., provided ineffective assistance to him at that proceeding. Smith was the first witness called by the petitioner and testified that he was appointed to represent Carmon through the Public Defender's Habeas Corpus Unit. He testified that he interviewed all the people whom the petitioner suggested to him and that he also spoke to Attorney Silverstein. He believes that he reviewed Silverstein's complete trial file, which, he noted, included some police reports, and that he also read the transcripts of the trial. He believed that he had seen a report by Officer Stephenson, then the New Haven Police Department's fingerprint expert, regarding his being dispatched to the crime scene and recalled that this report included references to latent impressions. Smith had this report in his possession prior to filing the first habeas corpus petition. He could not recall, however, whether he had specifically raised the fingerprint issue as a part of that habeas petition. Smith acknowledged a delay in filing his post-trial brief at the original habeas trial due to his wife's having been ill at the time. He denied however, that this personal problem had affected the quality of his representation.

" Smith testified that he did not recall the name " Jaime Stanley, " one of the key eyewitnesses at the criminal trial, nor did he recall whether he had raised issues regarding the possible prejudicial impact of certain in-court identifications. He did not remember the name of the investigator who worked on the case with him. He did recall that there was a " Laurie Reynolds" who was a possible witness, but that she could not be located.

" Smith, in fact, was not the petitioner's original attorney in connection with the first habeas proceeding; rather, it was David Bachman, Esq. who did not complete that representation and turned over his file to Smith. The petitioner also gave Smith additional materials, including police reports. It was during the course of the first habeas trial that the petitioner produced fingerprint reports which he said he had explored with Silverstein and which, allegedly, Silverstein had not pursued during the course of his trial representation. As previously mentioned, Judge Meadow declined to consider this issue at the initial habeas trial as it had not been made a part of the amended petition and was raised for the first time during the habeas trial. Petitioner urges that the failure to raise this issue at trial and/or in connection with the first habeas proceeding deprived him of the effective assistance of counsel in one or both proceedings.

" Carmon had also given Smith the names of several potential witnesses, all of whom were interviewed by Smith and/or his investigator, and two of whom testified at the first habeas trial. Two witness statements were also submitted as evidence, and Silverstein himself testified as a witness at that proceeding.

" Smith recalled meeting with the petitioner several times and discussing an issue about a juror's having read a newspaper article that had something to do with the case. He did not, however, include this issue in his amended habeas petition. He does believe that he questioned Silverstein about it.

" The petitioner himself testified before the undersigned and vigorously denied having shot Ms. Troutman and her granddaughter, Danielle Taft. He claimed that his testimony at the original habeas trial, which was also to the effect that he was innocent of the charges of which he was eventually convicted, was accurate. He denied the content of the statements he is alleged to have made to the police, both in writing and on tape. He claimed that he was forced by Officer Dease to make a statement despite being held for twelve hours and having never been read his rights. He stated that his numerous requests to see an attorney during this period were ignored. He testified that he was aware that police officers had an obligation to advise him of his Miranda rights but that they did not do so during this interview, nor did he ever sign any document indicating that he had received them. He insisted that he was the victim of a " good cop/bad cop" investigation, that he was smacked in the back of his head, that one officer intimidated him by showing him his revolver, that there were a total of four detectives involved in the questioning, and that he felt that these officers were pressuring him to confess. He also claimed that he thought the recorder was turned off during the questioning. He contended that Silverstein filed a motion to suppress his written and recorded statement at his trial, but that the trial court never acted on it. He testified that the failure to resolve this issue played a role in his decision not to testify a trial, particularly with regard to an alibi defense, and that Smith did not follow up on the motion to suppress issue at his first habeas trial. The petitioner also testified that he told Silverstein about his alibi witnesses, including one Mr. Brown. He claimed that Silverstein never followed up on these leads.

" The evidence, however, shows that during the course of the first habeas proceeding, the court extensively reviewed petitioner's written statement to the police, as well as an audiotape of that statement as it was being made. Those statements made no reference to an alibi defense, and Judge Meadow concluded that the decision not to pursue such a defense was hardly ineffective, given the presence of the written and taped statement which would have contradicted any alibi claim.

" Moreover, a review of the record indeed demonstrates that the tape and confession issues were considered and decided by Judge Meadow, as was the issue regarding any alibi witnesses and several other claims made by petitioner in this case. The respondent urges that the court should not consider such issues, contending that they were actually decided on the merits in the first case and that their re-litigation here is barred by the doctrine of res judicata.

" As will be discussed in greater detail below, although the petitioner lists a large number of claimed failings on Silverstein's part, most of them were actually decided in the first habeas trial. Although it is certainly arguable that the balance of the petitioner's claims against Silverstein could and should have been raised in the first habeas petition, the failure to have done so does not preclude their consideration here. Fernandez v. Commissioner of Correction, supra .

" Most of these issues raised by the petitioner, as will be discussed, are totally devoid of evidentiary support. There are, however, three matters on which evidence has been presented and which must be considered new and hence ripe for adjudication in this case. The first is whether there is anything in the alleged fingerprint evidence and reports that might suggest that the alleged failure to explore them with greater diligence, either by trial counsel or petitioner's first habeas counsel, or both, constituted ineffective assistance of counsel. The second is whether any of Judge Meadow's adverse findings in the first habeas proceeding were the result of ineffective assistance of counsel on the part of Attorney Smith. The final issue which is ripe for adjudication is petitioner's claim of " actual innocence."

" In his pursuit of the first of these issues, the fingerprint claim, the petitioner produced two new witnesses at the continuation of this habeas trial on May 3, 2006. The first of these was James Stephenson, now a Firearm and Tool Mark Examiner for the State Forensic Laboratory but a Detective with the Bureau of Identification of the New Haven Department of Police Service at the time of the offenses that led to the petitioner's convictions. Stephenson testified that he had been assigned to the crime scene on February 4, 1999 and had processed latent fingerprints on two items at or near the crime scene. One was a window of the apartment where the shooting had occurred, and the other was a cartridge box, empty but capable of holding 9mm as well as other types of cartridges. The cartridge box was slightly damaged and found near 806 Orchard Street, in front of a church located not far from the site of the shooting. Although he was able to process prints on both items, he does not know of his own knowledge whether the prints were identifiable. In particular, he neither had, nor has, any knowledge of whether any of the latent prints could be identified as those of the petitioner, nor was he aware that the prints had ever been identified as those of anyone else. He further testified that he knew of no independent evidence that the shooter had ever actually touched the window in question.

" Detective George Shelton, Jr., currently a latent print examiner with the New Haven Department of Police Service, also testified for the petitioner to the effect that none of the prints on the window matched those of the petitioner. On cross examination by the respondent, however, he also stated that none of the prints on the window matched those of any of several known individuals whose names were given to him as possible suspects by petitioner's present counsel.

" As for the cartridge box, Shelton was able to locate it at the Police property room, but he was not able to locate the actual latent prints processed from it by Stephenson. He was therefore obviously unable to indicate whether those prints were identifiable and, if so, whether they matched those of the petitioner, the other individuals whose names were given to him by petitioner's counsel, or anyone else. There was no testimony as to when these prints were last seen.

" At the first habeas proceeding, Smith had attempted to raise the claim about Silverstein's alleged failure to pursue the issue of the latent fingerprints on the window and/or the cartridge box. Smith did not, however, seek to have these items tested himself. Petitioner's present counsel's request for such additional testing on the storm window and cartridge box did not, as will be discussed below, yield any evidence tending to support the contention that the failure to pursue the issues constituted ineffective assistance of counsel on the part of Silverstein and/or Smith.

" Petitioner argues that he is entitled to an inference that the missing fingerprint evidence would have been favorable to him.

" Petitioner has not presented the court with any reason at all to believe that the fingerprint evidence in this case was intentionally destroyed. To the contrary, given the facts that the conviction was long ago affirmed on appeal and that the denial of his first habeas petition was not appealed at all, petitioner has given the court no cause to conclude that the New Haven Department of Police Service was under any obligation to continue to preserve any evidence relating to the case so long after all appeal rights had either been exhausted, as in the case of the original trial, or waived. As in the case of the first habeas . . . Shelton's inability to locate the latent prints lifted from the cartridge box some dozen years after the crime does not justify an inference that the police " intentionally" destroyed anything. Unpreserved, untested evidence is not " presumed" to be exculpatory. Boles v. Commissioner of Correction . 89 Conn.App. 596, 603, 874 A.2d 820, cert. denied 276 Conn. 901, 884 A.2d 1024; Correia v. Rowland . 263 Conn. 453, 474, 820 A.2d 1009 (2003). Moreover, the cartridge box, which could once have contained bullets of the same caliber as those fired by the perpetrator, was not found directly at the crime scene but rather some distance down the street, and there was no other evidence that might have linked the box to the shooter. It is sheer speculation, hardly rising to the level needed to establish ineffective assistance of counsel, that effective counsel could have used the prints, ever if preserved, identified and found not to match those of the petitioner (or to have matched some other identifiable person), would have produced a different result.

" As to the latent prints lifted from the storm window, there was no testimony from any witness at either of the prior proceedings to the effect that the perpetrator actually touched the window. Rather, the only eyewitness testimony relating to the window was from Stanley, and that was only to the effect that the perpetrator fired through it. There is thus no more reason to believe that any latent prints on the window came from the perpetrator than there is to believe that they came from any other individual who might have had occasion to be seen near the window but who was not observed to have touched it. Indeed, it is more likely that the prints came from someone other than the shooter, such as one or more tenants or visitors to the apartment, given the lack of evidence that the shooter ever touched the window.

" With regard to any claim of ineffectiveness in investigating this issue, Silverstein had established during the course of the trial that the windows involved were approximately 58" from the bottom of the sill to the ground and that they appeared to be soiled. T.157, 251, 259. He testified at the first habeas proceeding that he had visited the crime scene several times; TH. 5/10/02 at 7-8 and he had investigated such issues as the visibility into the apartment from the street and the angle of the bullet trajectories. TH. 5/10/02 at 7-8, 25-26. The fingerprint evidence, such as it is, that was produced for this habeas trial does not establish that Silverstein was ineffective in his investigation or that the results of the trial would have changed had he pursued this area more thoroughly at trial.

" In the second count of the Amended Petition, petitioner alleges that Richard Smith, his habeas counsel, was ineffective by virtue of his not having raised the issues as set forth in the amended petition as outlined above and/or not effectively pursuing those which he did raise during the first habeas proceeding habeas matter. He charges that Smith did not fully investigate claims or otherwise properly represent the petitioner.

" Although, by the time he testified at this proceeding, Smith seemed to have both a poor recollection and a rather weak grasp of the issues surrounding the initial habeas trial, it is actually unnecessary to reach the question of whether he provided ineffective assistance to the petitioner because the petitioner has still failed, as a threshold matter, to show that his trial counsel's representation was ineffective. Beyond that, petitioner has not demonstrated that there was anything that Smith could or should have done to that might have produced a different outcome in the first habeas proceeding. Because he has not satisfied the dual requirements under Lozada and the two prongs under Strickland he cannot prevail on the second count of his petition.

" Finally, although the petitioner has raised a claim of what he calls " actual innocence, " this appears to be nothing more than the petitioner's continued denial of his involvement in the crime, and he has not buttressed this claim with any new evidence. Whatever ambiguities may exist concerning the identity of latent prints found on the apartment window and cartridge box, there has been absolutely no testimony or other evidence tending to suggest that the mere existence of those prints, even if combined with uncertainty about why they are currently missing, would add anything of substance to the petitioner's claim of innocence. As previously discussed, the fact that the latent prints from the cartridge box are now missing does not under the circumstances of this case, entitle the petitioner to an inference that they would have been helpful to his claim.

" The " actual innocence" claims raised in this case do little more than invite the court to speculate, first, that the cartridge box produced prints that were identifiable second, that the prints would not have matched those of the defendant and/or that they would have matched those of someone else who the petitioner felt might have been a suspect in the case; and, third, that the absence of the defendant's fingerprints on this cartridge would have changed the outcome of the trial. He invites the court to draw an adverse inference against the State because of the absence of the latent prints from the New Haven Police Department, based on such Kronisch v. United States, supra . The petitioner did not, however, give the court any basis for concluding that this item, reported missing a dozen years after the offense and long after trial, appeal and the first habeas proceeding had been completed, had disappeared under circumstances that would justify such an inference. Nor has he given the court any reason to believe that the discovery of a cartridge box, whose relation to the shooting appears to be only that it was found not far from the crime scene and once may have contained cartridges of the same caliber as those involved in the shooting, would be likely to change the outcome of the trial merely because it lacked the defendant's fingerprints or even if it had those of some other identifiable. In light of the foregoing, the court concludes that the petitioner has fallen far short of the meeting the burden required to establish " actual innocence" as a basis for granting the Writ."

Carmon v. Warden, CV030474044S, 2006 WL 3491669, at *15 (Conn.Super. Nov. 14, 2006). The Appellate Court, in affirming the habeas court's judgment, made the following findings:

" On appeal, the petitioner claims that the habeas court improperly concluded that Silverstein's failure to investigate more fully the fingerprint evidence with respect to the storm window and the cartridge box, and to introduce that evidence at the criminal trial, did not constitute ineffective assistance. Specifically, he argues that all of the fingerprint evidence was favorable to the petitioner because none of his fingerprints were identified on the window or the box. The petitioner further argues that because Stanley testified that the shooter was so close to the window, a juror reasonably could conclude that was more likely than not that the shooter actually touched it. Further, according to the petitioner, the failure of habeas counsel to raise those deficiencies of trial counsel in the first habeas proceeding likewise constituted ineffective assistance

" On the basis of that testimony, the habeas court made the following factual findings and conclusions: (1) no evidence had been presented to support a finding that the fingerprint evidence had been intentionally destroyed; (2) the court had no reason to conclude that the New Haven police department was under any obligation to preserve evidence relating to the shootings when the petitioner's appeal rights had been either exhausted or waived in the criminal case and the first habeas proceeding; (3) unpreserved, untested evidence is not presumed to be exculpatory; (4) the cartridge box was not found directly at the crime scene, and there was no other evidence to connect that box with the shooter; (5) even if the fingerprints from the box had been preserved, identified and found not to match those of the petitioner, it is sheer speculation that a different result would have been produced; (6) there was no evidence that the shooter actually touched the storm window at the crime scene; (7) it is more likely that the fingerprints from the window were placed there by someone other than the shooter, such as a tenant or visitor to the apartment building, given the lack of evidence that the shooter actually touched the window; (8) Silverstein had visited the crime scene on several occasions and had investigated such issues as the visibility into the apartment from the street and the angle of the bullet trajectories; and (9) the fingerprint evidence produced for the habeas trial did not establish that Silverstein was ineffective in his investigation or that the result of the criminal trial would have been different had he investigated that issue more thoroughly. Because the petitioner failed to show that his trial counsel's performance had been deficient, the habeas court concluded that his claim against Smith with respect to his representation during the first habeas proceeding likewise failed.

" We conclude that the facts as found, which are fully supported by the record, do not constitute a violation of the petitioner's constitutional right to effective assistance of counsel. The habeas court properly determined that the petitioner failed to show that the performance of his trial counsel, Silverstein, or his habeas counsel in the first habeas proceeding, Smith, was ineffective. The petitioner's argument that the shooter probably touched the window because he was close to it, that he left his fingerprints on that window, that those fingerprints were the ones processed by Stephenson and that the result of the criminal proceedings would have been different if the jury knew that the petitioner's fingerprints did not match those from the window is, as the habeas court found, sheer speculation. Accordingly, Silverstein's failure to investigate that matter further was not deficient performance.

" The petitioner's argument with respect to the cartridge box is even more tenuous. That box was not found at the crime scene, and there was no evidence as to when or how it was deposited in the area of a church located near the crime scene. The box was empty, the caliber of the ammunition that had been contained in that box was unknown, there was no eyewitness testimony that the shooter had been seen taking cartridges from a box, and there was no other testimony or evidence linking that box to the crime scene. The fact that the fingerprints processed from the box were no longer available for comparison with the petitioner's fingerprints twelve years after the shootings did not give rise to a presumption that the evidence would have been favorable to the petitioner. As noted by the habeas court, no evidence had been presented to show that the fingerprints from the box were intentionally destroyed. We conclude that the habeas court correctly determined that the petitioner was not entitled to an inference that the missing fingerprint evidence would have been favorable to him. " [U]npreserved, untested evidence is not presumed to be exculpatory." Correia v. Rowland, 263 Conn. 453, 474, 820 A.2d 1009 (2003). " The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner. United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989) (petitioner could not succeed on claim of ineffective assistance of counsel because he failed to show what further investigation would have revealed and how it would have helped him) . . ." (Citation omitted.) Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001).

" Because the habeas court properly concluded that the petitioner's trial counsel had not provided constitutionally ineffective assistance, the petitioner could not prevail on his argument that his habeas counsel in the first habeas proceeding rendered ineffective assistance by failing to claim that his trial counsel's performance was deficient with respect to the investigation of the fingerprint evidence. See Lozada v. Warden, supra, 223 Conn. at 842-43, 613 A.2d 818."

Carmon v. Commr. of Correction, 114 Conn.App. 484, 488-93, 969 A.2d 854, cert. denied, 293 Conn. 906, 978 A.2d 1108 (2009). On April 7, 2008, the petitioner filed his third writ in the Tolland Judicial District, which was resolved without a hearing on the merits as the habeas court, Newson, J., entered a default judgment against the petitioner for failure to comply with the respondent's motion for a more specific statement. The habeas court's decision was affirmed on appeal. Carmon v . Commissioner of Correction, 148 Conn.App. 780, 87 A.3d 595 (2014). On February 3, 2013, the petitioner filed the writ giving rise to the instant matter.

The court heard the trial of this matter on December 7, 8 and 9, 2015. The petitioner offered the following witnesses: Detective (Retired) James Stephenson, the petitioner, attorney Jeffrey Beck, attorney Silverstein, attorney Sebastian DeSantis, Sgt. Jacqueline Hoyte and Detective Christopher Grice. There were also a number of exhibits entered into evidence. The parties submitted simultaneous post-trial briefs.

In his amended petition dated August 20, 2015, the petitioner asserts in his first count, both broadly and with specificity, ineffective assistance of underlying trial counsel (Silverstein), direct appeal counsel (Zitser), first habeas counsel (Smith) and second habeas counsel (DeSantis), during every conceivable phase of the last two decades of litigation. In the second count, the petitioner asserts a due process violation in that the underlying conviction has as its foundation " perjured testimony" set forth by the prosecuting authority. Count three of the petition is a vague, generally superfluous due process claim based on " an unreliable conviction obtained by perjury." The fourth count asserts a Brady violation based on the prosecuting authority withholding exculpatory evidence. Count five asserts prosecutorial impropriety based on all of the foregoing assertions. The sixth and final count of the amended petition claims actual innocence based on all of the foregoing assertions.

In the return, the respondent asserts a number of special defenses. As to Count One: successive petition as to attorney Silverstein's representation; successive petition as to attorney Smith's representation; and Failure to state a claim as to attorney DeSantis' representation. As to Counts Two through Five: Procedural Default. As to Count Six: successive petition.

II

Law/Discussion

A. Civil Matters-Generally

Standard of Proof

The standard of proof in civil actions, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v . Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).

Burden of Proof

" While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it." Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence. Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1982). Failure to do so results in judgment for the defendant. Id.

The Proceedings

" The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v . DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 274 Conn. 906, 876 A.2d 1198 (2005). " It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . it is the quintessential function of the factfinder to reject or accept certain evidence . . ." (citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). " The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v . Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). " [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). " The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. " The determination of credibility is a function of the trial court." Heritage Square, LLC, v . Eoanou, 61 Conn.App. 329, 333, 764 A.2d 199 (2001).

Credibility

It is well established that " [i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude . . . An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007) (See also Dadio v. Dadio, 123 Conn. 88, 92-93, 192 A. 557 (1937)). Such observation may include all genuine and spontaneous reactions of the witness in the courtroom, whether or not on the stand, but only to the extent that they bear on the witness's credibility. State v. McLaughlin, 126 Conn. 257, 264-65, 10 A.2d 758 (1939). It is generally inappropriate for the trier [of fact] to assess the witness's credibility without having watched the witness testify under oath. Shelton v. Statewide Grievance Committee, 277 Conn. 99, 111, 890 A.2d 104 (2006).

" 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 their testimony . . ." Mahon v . Commissioner of Correction, 157 Conn.App. 246, 116 A.3d 331, cert. denied, 317 Conn. 917, 117 A.3d 855 (2015). " It is well established that a reviewing court is not in the position to make credibility determinations . . . This court does not retry the case or evaluate the credibility of 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." (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 117 Conn.App. 120, 126, 977 A.2d 772. 117 Conn.App. 120, 126, 977 A.2d 772, cert. denied, 294 Conn. 904, 982 A.2d 647 (2009).

B. Habeas Corpus Matters-Generally

" The right to petition for a writ of habeas corpus is enshrined in both the United States constitution and the Connecticut constitution. See U.S. Const., art. I, § 9; Conn. Const., art. I, § 12. Indeed, it has been observed that the writ of habeas corpus holds an honored position in our jurisprudence . . . The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness.

The writ has been described as a unique and extraordinary legal remedy . . . It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired." (Citations omitted; internal quotation marks omitted.) Fine v. Commissioner of Correction, 147 Conn.App. 136, 142-43, 81 A.3d 1209 (2013).

1. Actual Innocence

The petitioner asserts that he is actually innocent of the criminal charges. In support of this contention he offers the report (Petitioner's exhibits 12 and 25) authored by Detective Robert Benson identifying Brantley's fingerprints on an ammunition box tray as " newly discovered" evidence.

Regarding the report, our appellate court has recently addressed the proper standard and analysis for evaluating a freestanding claim of actual innocence:

To prove actual innocence the petitioner must be able " to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could [find] proof of guilt beyond a reasonable doubt." (Internal quotation marks omitted.) Williams v. Commissioner of Correction, 240 Conn. 547, 548, 692 A.2d 1231 (1997). " Actual innocence, also referred to as factual innocence . . . is different than legal innocence. Actual innocence is not demonstrated merely by showing that there was insufficient evidence to prove guilt beyond a reasonable doubt . . . Rather, actual innocence is demonstrated by affirmative proof that the petitioner did not commit the crime

" [T]he proper standard for evaluating a freestanding claim of actual innocence is twofold. First, the petitioner must establish by clear and convincing evidence that taking into account all of the evidence" both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial" he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime." (Citation omitted; internal quotation marks omitted.) Jackson v. Commissioner of Correction, 149 Conn.App. 681, 706, 89 A.3d 426 cert. granted on other grounds, 313 Conn. 901, 96 A.3d 558 (2014).

Nemhard v. Commissioner of Correction, 157 Conn.App. 368, 374, 117 A.3d 915 (2015).

Our Appellate and Supreme Courts have further discussed the actual innocence jurisprudence as follows:

" Our Supreme Court recently clarified the actual innocence standard in Gould . . . In Gould, the habeas court found that the petitioner was entitled to relief on his actual innocence claim after the recantations of testimony that was the sole evidence of [the petitioner's] guilt . . . On appeal, our Supreme Court held that the clear and convincing burden . . . requires more than casting doubt on evidence presented at trial and the burden requires the petitioner to demonstrate actual innocence through affirmative evidence that the petitioner did not commit the crime . . . Recantations of inculpatory criminal, trial testimony undoubtedly are relevant to a determination of actual innocence. But evidence of that nature must be accompanied by affirmative evidence of innocence to meet [the] standard of clear and convincing evidence of actual innocence." (Citations omitted; emphasis in original; internal quotation marks omitted.) Harris v. Commissioner of Correction, 134 Conn.App. 44, 49-50, 37 A.3d 802, cert. denied, 304 Conn. 919, 41 A.3d 306 (2012).

" Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime even though it is unknown who committed the crime, that a third party committed the crime or that no crime actually occurred . . . Clear and convincing proof of actual innocence does not, however, require the petitioner to establish that his or her guilt is a factual impossibility." (Citations omitted; emphasis in original.) Gould v. Commissioner of Correction, supra, 301 Conn. at 563-64.

" With respect to the first component of the petitioner's burden, namely, the factual finding of actual innocence by clear and convincing evidence . . . [t]he appropriate scope of review is whether, after an independent and scrupulous examination of the entire record, we are convinced that the finding of the habeas court that the petitioner is actually innocent is supported by substantial evidence. This is the same scope of review that we apply to the ultimate finding by a trial court regarding whether a confession in a criminal case is voluntary . . . The weight of the interests at stake in the factual determination by the habeas court in the present case compels the same heightened level of scrutiny." (Internal quotation marks omitted.) Harris v. Commissioner of Correction, supra, 134 Conn.App. 51.

" [O]ur Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence . . . This court, nevertheless, has held that a claim of actual innocence must be based on newly discovered evidence . . . [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered . . . This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Citation omitted; internal quotation marks omitted.) Gaston v. Commissioner of Correction, 125 Conn.App. 553, 558-59, 9 A.3d 397 (2010), cert. denied, 300 Conn. 908, 12 A.3d 1003 (2011). Jackson v. Commissioner of Correction, 149 Conn.App. 681, 706, 89 A.3d 426 (2014).

First, this court finds that the petitioner has not set forth sufficient evidence to establish that the record in question (Petitioner's exhibits 12 and 25) was not properly disclosed during the underlying trial discovery process. Silverstein was uncertain at the habeas trial as to receiving the report during discovery, stating alternately that he doesn't " recall being given that, " he doesn't " recall anything about a box or fingerprints, " that he " can't say" whether he had the report, but he " tend[s] to think" that he didn't have the report because he would have brought it to the jury's attention as it tends to implicate someone other than the petitioner in the shooting.

Additionally, this court finds that, as the petitioner was able to receive the document via a FOI request and current petitioner's counsel was able to subpoena the document from the New Haven Police Department records center without apparent trouble, the implications in the petitioner's post-trial brief of a conscious effort to destroy and/or hide this document is unconvincing. Accordingly, the report cannot be considered as newly discovered evidence.

Assuming, arguendo, that the report and the information contained therein can be considered newly discovered evidence, the report and its contents do not constitute affirmative proof of factual innocence in that, as relates to the other evidence in the case, it does not tend to establish that the petitioner could not have committed the crime or that a third party committed the crime, as suggested by the petitioner.

Upon lengthy review of the entire record of two decades of litigation, including previous court decisions, trial transcripts and numerous exhibits, the petitioner has failed to establish by clear and convincing evidence that he is actually innocent. In terms of independent factual findings of fact, this court cites, for example, the eyewitness testimony, statements from the petitioner, and the reasonable inferences to be drawn therefrom, in support of a finding that the petitioner has failed to establish that no reasonable factfinder could find the petitioner guilty of the crimes of which he stands convicted.

Additionally, this court agrees with previous courts having heard this matter in the past in putting this " newly discovered evidence" into proper perspective:

" The petitioner's argument with respect to the cartridge box is even more tenuous. That box was not found at the crime scene, and there was no evidence as to when or how it was deposited in the area of a church located near the crime scene. The box was empty, the caliber of the ammunition that had been contained in that box was unknown, there was no eyewitness testimony that the shooter had been seen taking cartridges from a box, and there was no other testimony or evidence linking that box to the crime scene . . . As noted by the habeas court, no evidence had been presented to show that the fingerprints from the box were intentionally destroyed."

Carmon v. Commissioner of Correction, supra, 114 Conn.App. 493. This court further agrees that:

" The " actual innocence" claims raised in this case do little more than invite the court to speculate . . . that the absence of the defendant's fingerprints on this cartridge would have changed the outcome of the trial. He invites the court to draw an adverse inference against the State because of the absence of the latent prints from the New Haven Police Department, based on such Kronisch v. United States, supra . The petitioner did not, however, give the court any basis for concluding that this item, reported missing a dozen years after the offense and long after trial, appeal and the first habeas proceeding had been completed, had disappeared under circumstances that would justify such an inference. Nor has he given the court any reason to believe that the discovery of a cartridge box, whose relation to the shooting appears to be only that it was found not far from the crime scene and once may have contained cartridges of the same caliber as those involved in the shooting, would be likely to change the outcome of the trial merely because it lacked the defendant's fingerprints or even if it had those of some other identifiable person. In light of the foregoing, the court concludes that the petitioner has fallen far short of the meeting the burden required to establish " actual innocence" as a basis for granting the writ.

Carmon v. Warden, supra, CV030474044S, 2006 WL 3491669, at *15. Based on the credible evidence in the record and reasonable inferences to be drawn therefrom, this court finds that the evidence of Brantley's fingerprints on that cartridge box do not render the petitioner's conviction unreliable and is not likely to have changed the outcome of his trial.

Finally, this court credits and agrees, based on the whole record, with the evaluation of the Brantley third-party liability defense testified to by attorney Silverstein: " . . . it was kind of a red herring to put [Brantley] up as the shooter . . ." This view is bolstered by the unchallenged instant habeas trial testimony from Silverstein that he was made privy to the pre-trial investigation of the prosecuting authority that " exonerated" Arthur Brantley, eliminating him as a suspect and convincing Silverstein that Brantley as the shooter was " impossible."

2. Brady Violation

The petitioner asserts that the prosecuting authority improperly withheld exculpatory evidence favorable to him at his criminal trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

" The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness . . . To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal . . . In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 419, 641 A.2d 1356 (1994).

The constitutional violation claimed by the defendant is the failure to disclose potentially exculpatory evidence by the state, to wit: Detective Benson's February 11, 1994 report identifying latent prints lifted from an ammunition tray as belonging to Arthur Brantley (Petitioner's exhibits 12 and 25). " In Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. 1194, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Internal quotation marks omitted.) State v. Rivera, 152 Conn.App. 248, 255, 96 A.3d 1285, cert. denied, 314 Conn. 934, 102 A.3d 85 (2014). " To establish a Brady violation, the [defendant] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [defendant], and (3) it was material [either to guilt or to punishment] . . . Impeachment evidence as well as exculpatory evidence falls within Brady's definition of evidence favorable to an accused." (Citation omitted; internal quotation marks omitted.) State v. Richard W., 115 Conn.App. 124, 137, 971 A.2d 810, cert. denied, 293 Conn. 917, 979 A.2d 493 (2009); State v. Giovanni P., 155 Conn.App. 322, 342, 110 A.3d 442, 456-57 (2015).

" [E]vidence is not considered to have been suppressed within the meaning of the Brady doctrine if the defendant or his attorney either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence . . . Documents that are part of public records are not deemed suppressed if defense counsel should know of them and fails to obtain them because of lack of diligence in his own investigation." (Citations omitted; internal quotation marks omitted.) United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995).

" Not every failure by the state to disclose favorable evidence rises to the level of a Brady violation. Indeed, a prosecutor's failure to disclose favorable evidence will constitute a violation of Brady only if the evidence is found to be material. " The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial . . ." United States v. Bagley, supra, 473 U.S. at 675, 105 S.Ct. 3375. " In a classic Brady case, involving the state's inadvertent failure to disclose favorable evidence, the evidence will be deemed material only if there would be a reasonable probability of a different result if the evidence had been disclosed. Bagley's touchstone of materiality is a 'reasonable probability' of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A 'reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression 'undermines confidence in the outcome of the trial.'" Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)." Adams v. Commissioner of Correction, supra, 309 Conn. 370-71.

In the instant matter, the petitioner has failed to establish, based on the evidence presented, that the prosecuting authority failed to disclose the Benson report to underlying trial counsel. The court details factual support for this finding in the Actual Innocence section of this decision. Additionally, for the reasons discussed in the same section of this decision, the court finds that the evidence is not material. In the absence of this evidence, it is this court's considered opinion that the petitioner received a fair trial.

3. Ineffective Assistance of Counsel

" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 694.

" 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.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687. It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the " counsel" guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial. Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).

Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).

When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, 466 U.S. 689. The United States Supreme Court explained:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. (Citation omitted; internal quotation marks omitted) Id. 689.

Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. 686.

" [A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); see also Elsey v. Commissioner of Correction, 126 Conn.App. 144, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011) (" [b]ecause both prongs of the Strickland test 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]).

As to attorney Silverstein not introducing the fingerprint evidence during the underlying trial, this court has stated in greater detail in the Actual Innocence section of this decision factual and legal support for a finding that the petitioner has failed to establish prejudice.

4. Prior Habeas Counsel (Smith and DeSantis)

The petitioner asserts that first and second habeas counsel were ineffective in not introducing the information contained in the Benson report (Petitioner's exhibits 12 and 25) during the prior habeas trials.

This court is convinced that neither prior habeas counsel was in possession of the police report detailing the identification of latent fingerprints lifted from the cartridge box as belonging to Arthur Brantley. As such, their seeming inability to locate that report is claimed to be ineffective by the petitioner.

For assessing claims of ineffective assistance based on the performance of prior habeas counsel, the Strickland standard is as follows. " [When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding . . . [T]he petitioner will have to prove that . . . prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . . Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of [appellate] counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his [trial] counsel was ineffective." (Citations omitted; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, supra, 113 Conn.App. 394.

Therefore, in order to set forth a prima facie case of ineffective assistance of habeas counsel on the ground of ineffective assistance of trial counsel, the petitioner must set forth a prima facie case of ineffective assistance of trial counsel.

" [A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006).

In the instant matter, because the petitioner has failed to establish a reasonable probability that the outcomes of the criminal trial, direct appeal, first habeas trial and second habeas trial would have been different, as discussed in the several previous iterations of this matter and by this court in the Brady and Actual Innocence sections of this decision, the petitioner has failed to establish prejudice. " Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009). The significance of this evidence is greatly overstated by the petitioner.

5. Due Process (Testimony & Conviction)/Prosecutorial Impropriety

The petitioner asserts, in counts two and three of the amended petition, claims that " perjured" testimony from three witnesses constitutes a due process violation, that a number of other errors, omissions and misconduct undermines the reliability of the conviction, and that misconduct by the prosecuting authority was violative of the petitioner's right to a fair trial. The respondent alleges that the petitioner is barred from submitting these counts to this court because of procedural default. Specifically, the petitioner could have presented this claim on direct appeal or the two prior habeas trials but neglected to do so without good cause.

Procedural Default

Under the cause and prejudice criteria of Wainwright, a habeas petitioner is prohibited from raising for the first time claims of legal defects which occurred at the criminal trial level, including constitutional deprivations, unless the habeas petitioner can demonstrate good cause for the default and actual prejudice sustained as a result. Johnson v. Commissioner, 218 Conn. 403, 417, 589 A.2d 1214 (1991). These hurdles also apply equally to claims which could have been presented on direct appeal. Jackson v. Commissioner, 227 Conn. 124, 132, 629 A.2d 413 (1993).

While ignorance or incompetence of counsel may constitute ineffective assistance which may, and sometimes must, be raised in a habeas action, such ignorance or incompetence of counsel is not good cause under the Wainwright analysis, Johnson v. Commissioner, supra, 422. The existence of good cause for a procedural default either at trial or on appeal must derive from " some objective factor external to the defense [which] impeded [the petitioner's] efforts to comply with the state's procedural rule." Crawford v. Commissioner, 294 Conn. 165, 191, 982 A.2d 620 (2009).

In regards to the prejudice prong of the cause and prejudice standard, a petitioner also must establish that actual prejudice resulted from the error, " infecting his entire trial with error of constitutional dimensions" and denying him " fundamental fairness" at trial. (Internal quotation marks omitted.) Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). " The showing of prejudice required under Wainwright v. Sykes, [ supra, 433 U.S. 72] is significantly greater than that necessary under the more vague inquiry suggested by the words plain error . . . The habeas petitioner must show not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions" (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 493-94.

In Johnson v. Commissioner, 218 Conn. 403, 589 A.2d 1214 (1991), our Supreme Court adopted the " cause and prejudice" standard espoused by the U.S. Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which standard limits the reviewability of claims first raised in a habeas corpus action. In Johnson, supra, the cause and prejudice test was made applicable to procedural defaults which occurred at the trial level. This standard was extended to apply to the failure to raise claims on appeal in Jackson v. Commissioner, 227 Conn. 124, 132, 629 A.2d 413 (1993). The burden of proving good cause and prejudice for procedural default rests with the habeas petitioner, Johnson v. Commissioner, supra, 409.

In this case, the petitioner submitted no credible evidence of any good cause justifying his failure to assert these claims at trial, on appeal, or in either or both of the prior habeas trials. Indeed, to some extent they were actually raised. Good cause must be external to the defense and be some factor besides attorney error. Jackson v. Commissioner, supra, 137. The mere failure of counsel to recognize the factual or legal ground does not constitute good cause to excuse default. Parker v. Commissioner, 27 Conn.App. 675, 682, 610 A.2d 1305 (1992), cert. denied, 223 Conn. 909, 612 A.2d 57 (1992). Here the petitioner has failed to establish good cause to excuse the default. Accordingly, the petitioner is defaulted on counts two and three of the petition and they are dismissed.

6. Alibi Witnesses/Investigation/Expert Witnesses/Involuntary Statements

The petitioner asserts a number of claims within the general ineffective assistance claim relating to alleged failure in the investigations by underlying, first and second habeas counsel. However, the lengthy brief of the petitioner fails to analyze or refer to evidence in support of those claims.

The courts of this state have held that " [i]t is not the responsibility of the trial judge, without some specific request from a petitioner, to search a record, often, in a habeas case, involving hundreds of pages of transcript, in order to find some basis for relief for a petitioner . . . The responsibility of a habeas court, in confronting an often voluminous trial court record, is to respond to those claims fairly advanced by the petitioner. The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration." (Citation omitted.) Solek v. Commissioner of Correction, 107 Conn.App. 473, 480-81, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).

Again, the petitioner sets out in his amended petition, without analysis, that the failure to investigate and call certain experts and other witnesses was deficient. The Court considers these claims abandoned. To the extent they are not deemed abandoned, they are without factual foundation and support in the record.

III

Conclusion

For the foregoing reasons, the petition is denied. Judgment shall enter for the respondent.