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Roger B. v. Commissioner of Correction
ROGER B. v. COMMISSIONER
OF CORRECTION*
(AC 47136)
Elgo, Moll and Lavine, Js.
Syllabus
The petitioner, who had been convicted of various crimes as a result of
incidents that occurred between 1995 and 2000, appealed, on the granting
of certification, from the habeas court’s judgment denying his second petition
for a writ of habeas corpus. He claimed, inter alia, that his criminal trial
counsel, C, and his counsel in two previous habeas trials, R and B, had
rendered ineffective assistance by failing to raise a statute of limitations
defense regarding the eighteen month delay between the issuance of the
warrant for the petitioner’s arrest in 2005 and the execution of the warrant
in 2007. Held:
The habeas court properly concluded that the petitioner was required to
present new evidence in his third habeas trial, which B had not previously
introduced, to demonstrate that C and B had rendered ineffective assistance,
as the petitioner’s claim that the court improperly applied the law of the
case doctrine was based on his misunderstanding of that doctrine.
The habeas court incorrectly determined that the petitioner failed to establish that C and B had rendered ineffective assistance of counsel, as the new
evidence presented at the third habeas trial established that the police had
made no attempts at all to serve him with the arrest warrant, and an expert’s
testimony laid bare C’s misunderstanding of the required showing of prejudice under State v. Crawford (202 Conn. 443) that was the basis of C’s
failure to file a motion to dismiss the charges against the petitioner.
The petitioner satisfied his burden to establish that he was prejudiced under
Strickland v. Washington (466 U.S. 668) as a result of C’s failure to rely on
the delay in the execution of the arrest warrant, and, in conjunction with
other evidence adduced at the habeas trial, B’s failure to introduce into
evidence a blank arrest warrant service record form that had been in the
possession of the police, which provided a devastating counterpoint that
would have undermined the credibility of the state’s vague and unsupported
assertions at the criminal trial regarding its efforts to execute the warrant,
left no question that the police did not exercise due diligence in executing
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the petitioner’s full name or to identify the victims or others through
whom the victims’ identities may be ascertained. See General Statutes
§ 54-86e.
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Roger B. v. Commissioner of Correction
the warrant without unreasonable delay; accordingly, the habeas court’s
judgment was reversed and the case was remanded with direction to grant
the writ of habeas corpus, to vacate the petitioner’s conviction and to order
a new trial.
Argued February 19—officially released August 26, 2025
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland, where the petition was withdrawn in part;
thereafter, the case was tried to the court, Bhatt, J.;
judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this
court. Reversed; judgment directed.
Jeremy A. Kemp, assigned counsel, with whom, on
the brief, was Joseph Patten Brown III, assigned counsel, for the appellant (petitioner).
Rebecca R. Zeuschner, deputy assistant state’s attorney, with whom, on the brief, were David R. Shannon,
state’s attorney, and Elizabeth M. Moseley, senior assistant state’s attorney, for the appellee (respondent).
Opinion
MOLL, J. The petitioner, Roger B., appeals, following
the granting of his petition for certification to appeal,
from the habeas court’s judgment denying his amended
petition for a writ of habeas corpus. On appeal, he
claims that the court (1) incorrectly applied the law of
the case doctrine to conclude that it was bound by this
court’s most recent decision in this matter, Roger B. v.
Commissioner of Correction, 190 Conn. App. 817, 212
A.3d 693, cert. denied, 333 Conn. 929, 218 A.3d 70 (2019),
and cert. denied, 333 Conn. 929, 218 A.3d 71 (2019)
(Roger B. II), and (2) improperly denied his habeas
petition, which was predicated on the alleged ineffective assistance of his prior habeas counsel and trial
counsel. We agree with the petitioner’s second claim
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Roger B. v. Commissioner of Correction
and, accordingly, reverse the judgment of the habeas
court.
Because the present case has a somewhat convoluted
procedural history, we first provide a broad outline of
the postconviction proceedings. After the petitioner’s
conviction was affirmed by our Supreme Court on
appeal, on August 21, 2008, he filed a petition for a writ
of habeas corpus (first petition) alleging that his trial
counsel, Attorney Christopher Cosgrove, had rendered
ineffective assistance of counsel. The denial of that
petition was reversed in part by this court and remanded
for a second habeas trial. See Roger B. v. Commissioner
of Correction, 157 Conn. App. 265, 267, 116 A.3d 343
(2015) (Roger B. I). Following the second habeas trial,
this court affirmed the denial of the first petition. See
Roger B. v. Commissioner of Correction, supra, 190
Conn. App. 817. On December 12, 2019, the petitioner
filed a second petition for habeas corpus. The operative
petition is his second amended petition filed on January
5, 2023 (second amended petition). In the second
amended petition, he alleges ineffective assistance of
counsel as to Cosgrove and both of his prior habeas
counsel, Attorney Roger L. Crossland and Attorney
Bruce McIntyre.
On direct appeal, our Supreme Court set forth the
following relevant background.1 Between 1995 and
2000, the petitioner lived with his girlfriend and her
three children. State v. Roger B., 297 Conn. 607, 609, 999
A.2d 752 (2010). During that time period, the petitioner
sexually assaulted two of the children on numerous
occasions. Id., 610. In February, 2000, the two victims
were placed in the custody of the Department of Children and Families (department) for reasons unrelated
We confine our summary of the facts to those necessary to provide
1
context for the issue presented in this appeal. For a full recitation of the
facts that the jury reasonably could have found, see State v. Roger B., 297
Conn. 607, 609–10, 999 A.2d 752 (2010).
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Roger B. v. Commissioner of Correction
to the abuse. Id. Sometime in the next few months,
both victims independently reported the abuse to their
foster mother, who reported the allegations to the
department, which then reported the allegations to the
New Milford Police Department. Id., 610, 612.
‘‘On July 17, 2000, Detective James M. Mullin watched
a forensic interview of the [victims]. . . . On August
31, 2000, the petitioner gave Mullin a statement and
permission for the police to search his apartment and
storage unit. . . . The petitioner left Connecticut
approximately five months after he gave the statement
to Mullin. . . .
‘‘The police completed their investigation in 2000 and
discovered no additional evidence between 2000 and
2005. . . . On July 6, 2005, the police obtained a warrant to arrest the petitioner.’’ (Citations omitted; emphasis omitted.) Roger B. v. Commissioner of Correction,
supra, 190 Conn. App. 823. As the first habeas court
recognized, because ‘‘the sexual abuse was ‘reported’
by the victims to the police on July 17, 2000, when the
police viewed the forensic interviews of the victims,’’
the applicable limitations period of five years; see footnote 5 of this opinion; commenced on that date. See,
e.g., State v. George J., 280 Conn. 551, 566, 910 A.2d
931 (2006) (‘‘the limitations period commences only
when the actual victim notifies the specified authorities’’), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L.
Ed. 2d 573 (2007). Accordingly, the warrant was issued
weeks before the expiration of the limitations period.2
On July 7, 2005, one day after the warrant was issued,
the police posted a wanted persons notice in the
2
In his direct appeal, the petitioner claimed that the almost five year
delay in issuing the warrant violated his constitutional right to due process
pursuant to the fourteenth amendment to the United States constitution.
Our Supreme Court rejected that claim on the ground that the record was
inadequate for review ‘‘because it contain[ed] no evidence demonstrating
that the [petitioner] suffered actual prejudice as a result of the delay.’’ State
v. Roger B., supra, 297 Conn. 612.
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Roger B. v. Commissioner of Correction
National Crime Information Center (NCIC) database.
That notice specified that the warrant was nonextraditable and identified Mullin as the contact person regarding extradition. On that same day, the police received
notice through the NCIC database that the petitioner
was living at 120 Berry Street in Greenfield, Indiana.3
Despite that notice, the warrant was not made extraditable until sixteen months later, in November, 2006,
when Attorney David S. Shepack, then the state’s attorney for the judicial district of Litchfield, authorized
extradition from any location within the continental
United States. The habeas court found that ‘‘[t]he importance of making the warrant extraditable is that if an
individual who is sought is located in another state,
where Connecticut police do not have jurisdiction, Connecticut can receive cooperation of local law enforcement, take that individual into custody, and begin extradition proceedings to Connecticut.’’
Mullin testified at the petitioner’s criminal trial and
two of the habeas trials regarding the efforts undertaken
by the New Milford police to execute the warrant. At
the criminal trial, when asked why the warrant was
not issued until almost five years after the petitioner’s
crimes had been reported, Mullin responded, ‘‘[b]ecause
that’s when it was drawn up.’’ He testified that he first
learned, at some unspecified time, from motor vehicle
records that the petitioner had relocated to Indiana.
He acknowledged that the police also learned that the
petitioner had obtained a driver’s license in Indiana
under his name and that he used his Social Security
number in connection with employment. Mullin further
testified that the police ‘‘eventually’’ identified an
address for the petitioner and ‘‘had some marshals go
out there to see if he was out there, but he had left
3
The petitioner relocated within Indiana on several occasions before
eventually moving to Alabama. Roger B. v. Commissioner of Correction,
supra, 190 Conn. App. 823–24.
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Roger B. v. Commissioner of Correction
already.’’ The police finally located the petitioner in
Alabama, Mullin testified, through his Social Security
number and employment records. When asked why he
had not contacted the petitioner’s family members to
learn of his location, Mullin testified that he wanted to
avoid the possibility that they might alert the petitioner
about the warrant.
During the first habeas trial, Mullin admitted that he
first learned of the petitioner’s location in Indiana when
the New Milford police received the NCIC notice with
that information one day after the warrant was issued.
He produced several documents pertaining to his attempts
to locate and arrest the petitioner. ‘‘These documents
were a letter from . . . Shepack dated November 8,
2006, three printouts dated December 11, 2006, and a
printout dated January 24, 2007. There were no documents in his file recording any efforts made between
July 6, 2005, and November 8, 2006.’’ Mullin could not
recall whether he had gone to the petitioner’s last
known location in Connecticut to attempt to serve the
warrant. He stated that, at some point, members of the
United States Marshals Service went to the petitioner’s
address in Indiana, then informed him that the petitioner was not at that location. He could not recall the
names of the marshals who went to the petitioner’s
Indiana residence, did not provide the names of the
marshals with whom he communicated, and acknowledged that he had no documentation of those communications or of the alleged attempt to serve the warrant
on the petitioner in Indiana, but stated that it was not
unusual for documentation of such communications to
be lacking. Mullin testified again at the third habeas
trial. With the exception of an inability to recollect many
of the relevant events given the passage of time, much
of his testimony largely mirrored that provided in the
first habeas trial.
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Roger B. v. Commissioner of Correction
Although it is unclear from the record when the petitioner relocated to Alabama, law enforcement ultimately found him living there. On December 11, 2006,
the police department of Huntsville, Alabama, posted
multiple notices on the national law enforcement telecommunications service, first inquiring whether the
warrant for the petitioner’s arrest was still active and
whether Connecticut would extradite, then informing
the New Milford police that the petitioner had been
arrested as a fugitive from justice. On January 24, 2007,
the petitioner was transported to New York, where he
was served with the arrest warrant and taken into custody.
‘‘The petitioner was charged in a substitute information with offenses that occurred on various dates
between October 1, 1995, and February 1, 2000. A jury
found the petitioner guilty of one count of sexual assault
in the first degree in violation of General Statutes § 53a70 (a) (2), two counts of sexual assault in the fourth
degree in violation of General Statutes § 53a-73a (a) (1)
(A), and three counts of risk of injury to a child in
violation of General Statutes § 53-21 (2). In April, 2008,
the trial court, Sheldon, J., sentenced the petitioner to
a total effective term of twenty-nine years in prison,
execution suspended after twenty-three years, and
thirty years of probation. . . . The petitioner’s conviction was affirmed on direct appeal.’’ (Citation omitted.)
Roger B. v. Commissioner of Correction, supra, 190
Conn. App. 824.
Although the petitioner’s trial counsel, Cosgrove, was
aware of the availability of a statute of limitations claim,
he did not file a motion to dismiss or assert an affirmative defense on the basis of the delays in both issuing
and executing the arrest warrant because ‘‘he did not
believe that there was a basis for doing so.’’ Specifically,
Cosgrove ‘‘determined that the delays did not hinder
the defense in any way, in that no new information
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Roger B. v. Commissioner of Correction
arose during the period, no witnesses went missing,
and the witnesses were able to recall events.’’ He arrived
at that conclusion after conducting his own research,
then consulting with appellate lawyers for the Office
of the Chief Public Defender.
At the trial on his first habeas petition, during which
he was represented by Crossland, the petitioner claimed
that Cosgrove had rendered ineffective assistance by
failing to file a motion to dismiss or to assert an affirmative defense predicated on the applicable statute of
limitations.4 Roger B. v. Commissioner of Correction,
supra, 190 Conn. App. 825–26. The habeas court denied
the petition. In its memorandum of decision, the court
first noted that the arrest warrant had been issued
approximately two weeks prior to the expiration of the
five year limitations period set forth in General Statutes
(Rev. to 1999) § 54-193a.5 In its analysis of the petitioner’s ineffective assistance claim, although the court
found that the warrant was executed on January 24,
2007, which indisputably is beyond the five year limitations period, it did not consider whether the delay in
executing the warrant was reasonable. The court simply
stated that Cosgrove had not performed deficiently by
failing to file a motion to dismiss because he ‘‘did the
math and determined that the warrant was executed
within the applicable statute of limitations period.’’
4
In his first petition, the petitioner alleged additional grounds in support
of his claim of ineffective assistance of counsel and raised two additional
claims: an actual innocence claim and the due process claim that our
Supreme Court had rejected in the direct appeal. See footnote 2 of this opinion.
5
General Statutes (Rev. to 1999) § 54-193a, which has subsequently been
repealed, was the applicable statute of limitations at the time that the petitioner committed the offenses and provided in relevant part: ‘‘Notwithstanding the provisions of section 54-193, no person may be prosecuted for any
offense involving sexual abuse, sexual exploitation or sexual assault of a
minor except within two years from the date the victim attains the age of
majority or within five years from the date the victim notifies any police
officer or state’s attorney acting in his official capacity of the commission
of the offense . . . .’’
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Roger B. v. Commissioner of Correction
On appeal, this court reversed in part the judgment
of the habeas court. See Roger B. v. Commissioner of
Correction, supra, 157 Conn. App. 289. Specifically, this
court concluded that, in rejecting the petitioner’s claim
that Cosgrove was ineffective in failing to raise a statute
of limitations defense, the habeas court improperly limited its discussion to the facts pertaining to the issuance
of the warrant within the limitations period and failed
to consider whether the delay in executing the warrant
was reasonable. Id., 278–79. Accordingly, this court
remanded the case to the habeas court for a second
trial on the petition, limited to the issue of whether
Cosgrove had rendered ineffective assistance by failing
to raise a statute of limitations defense based on the
state’s delay in executing the warrant. See id., 279–80.
This court explained that, on remand, if the petitioner
met his initial burden to prove that he was not elusive
and was available and readily approachable, ‘‘the burden would shift, and the subsequent evidentiary analysis would include consideration of whether the respondent [the Commissioner of Correction] would have
succeeded in proving that the delay was not unreasonable. This analysis would involve [an] examination of
the police actions leading up to the execution of the
warrant.’’ Id., 279.
The petitioner was represented at the second trial
on the first petition by McIntyre, who called no witnesses and introduced no new evidence, instead relying
solely on the transcripts and evidence from the first
habeas trial. A single witness testified at trial, Cosgrove,
who was called by the respondent. The habeas court
again denied the petition. The court relied on former
General Statutes § 54-193 (d), now General Statutes
§ 54-193 (e), which provided in relevant part: ‘‘If the
person against whom an . . . information . . . for
any of said offenses is brought has fled from and resided
out of this state during the period so limited, it may be
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Roger B. v. Commissioner of Correction
brought against such person at any time within such
period, during which such person resides in this state
. . . .’’ The petitioner’s relocation outside the state of
Connecticut, the court reasoned, had tolled the statute
of limitations, thus rendering the delay in the execution
of the arrest warrant irrelevant because both the issuance and service of the warrant had occurred within
the limitations period. The only claim that Cosgrove
could have raised on the petitioner’s behalf at trial,
the court explained, was that the warrant was stale in
violation of his right to due process, a claim that would
have required him to prove that the delay was unjustifiable because it resulted in actual prejudice to the petitioner. See footnote 4 of this opinion. The habeas court
concluded that Cosgrove had correctly determined that
this was a showing he could not make.
This court affirmed the judgment of the habeas court.
See Roger B. v. Commissioner of Correction, supra,
190 Conn. App. 853. During the pendency of that appeal,
this court had ordered sua sponte the habeas court to
make additional factual findings on the basis of the
existing record related to the petitioner’s statute of
limitations defense, including whether the petitioner
‘‘was not elusive, was available and was readily
approachable, and if so, whether the delay in executing
the warrant was unreasonable.’’ Id., 830.
In its articulation issued in response to this court’s
order, the habeas court again theorized that the statute
of limitations had been tolled pursuant to § 54-193 (d)
when the petitioner relocated outside Connecticut.
Given that principle, the court reasoned, § 54-193 (d)
represented a legislative determination that relocation
outside Connecticut constitutes elusive behavior. Even
in the absence of that legal starting point, however, the
court explained, it independently had arrived at the
same finding by ‘‘employing the common meanings of
[the terms] elusive, available, and approachable . . . .’’
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Roger B. v. Commissioner of Correction
Relying on the petitioner’s relocation to Indiana within
months after having been questioned by the police,
without leaving a forwarding address, the court determined that the petitioner had failed to sustain his burden to prove that he was not elusive and was available
and readily approachable.
This court concluded that the habeas court improperly determined that (1) § 54-193 (d) had tolled the
statute of limitations, and (2) the petitioner had failed
to prove that he was not elusive and was available and
readily approachable. See Roger B. v. Commissioner
of Correction, supra, 190 Conn. App. 840. Section 54-193 (d), this court explained, applies only to toll the
statute of limitations prior to the issuance of a warrant.
Id., 841. Because the warrant for the petitioner’s arrest
had issued within the limitations period, § 54-193 (d)
was inapplicable to the present case. Id. The inquiry as
to whether the petitioner was elusive, this court stated,
pertained to whether the delay in executing the warrant
was reasonable. See id. In arriving at its determination
that the petitioner had failed to show that he was not
elusive, however, the habeas court improperly focused
almost exclusively on his movements and actions prior
to the issuance of the warrant and made no factual
findings regarding the petitioner’s postissuance actions,
except to find that the petitioner had moved from Indiana to Alabama.6 Id., 842.
This court also concluded, however, that the habeas
court properly determined that the petitioner had not
met his burden to prove both prongs of the test set
forth in Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to establish
ineffective assistance of counsel. To prevail under
6
The state has not challenged in this appeal the habeas court’s determination that this court’s decision in Roger B. II established that the petitioner
was not elusive.
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Roger B. v. Commissioner of Correction
Strickland, this court explained, the petitioner had to
prove both that Cosgrove’s failure to raise the statute
of limitations was objectively unreasonable and that
the petitioner was prejudiced by that failure because
there was a reasonable probability that the state would
have been unable to prove that the delay in executing
the warrant was reasonable. See Roger B. v. Commissioner of Correction, supra, 190 Conn. App. 842–46; see
also State v. Crawford, 202 Conn. 443, 450–51, 521 A.2d
1034 (1987) (setting forth principles governing claim
challenging prosecution based on execution of warrant
outside statute of limitations); State v. Woodtke, 130
Conn. App. 734, 741–42, 25 A.3d 699 (2011) (applying
burden shifting test to evaluate defendant’s statute of
limitations claim pursuant to Crawford). In concluding
that the petitioner had failed to demonstrate that Cosgrove’s performance was deficient, this court observed
that, in addition to conducting his own research, Cosgrove had consulted appellate lawyers for the Office of
the Chief Public Defender, and that the petitioner had
not presented any ‘‘expert testimony to contradict the
opinions of Cosgrove and the appellate lawyers with
whom he consulted.’’ Roger B. v. Commissioner of Correction, supra, 852. As to prejudice, this court concluded that the petitioner had ‘‘failed to demonstrate
[that there was a reasonable probability] that the state
would not have been able to prove that the delay in
the execution of the warrant was reasonable.’’ Id., 853.
The petitioner subsequently filed his second petition
for a writ of habeas corpus. In his second amended
petition, he claims that Cosgrove rendered ineffective
assistance by failing to raise the statute of limitations
at trial and that Crossland and McIntyre also rendered
ineffective assistance as a result of their various alleged
failures in litigating this claim in support of the first
habeas petition.7 At the third habeas trial, the petitioner
7
The second amended petition also alleged in a separate count that,
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Roger B. v. Commissioner of Correction
called Mullin, Shepack, Crossland, Attorney Derin
Manasevit, who represented the petitioner in both of
his prior habeas appeals, and Attorney Frank Riccio,
who offered expert testimony. In addition to documentary evidence introduced in the first two habeas trials,
the petitioner introduced three new pieces of evidence,
which we discuss in detail herein.
In its memorandum of decision, the habeas court
observed that, because Crossland’s representation of
the petitioner in the first habeas trial had resulted in
the granting of a new trial on the first petition; see
Roger B. v. Commissioner of Correction, supra, 157
Conn. App. 289; the court was not required to consider
whether Crossland had rendered ineffective assistance.
That is, to prevail on the second petition, the petitioner
was required to prove only that McIntyre and Cosgrove
had rendered ineffective assistance. In considering
whether the petitioner had made that showing, the
habeas court took as its starting point this court’s conclusions in Roger B. v. Commissioner of Correction,
supra, 190 Conn. App. 817, as to the first petition,
namely, that the petitioner had satisfied his burden to
prove that he was not elusive and was available and
readily approachable, but that he had failed to prove
both prongs of Strickland. Given this court’s holding
in Roger B. II affirming the denial of the first petition,
the habeas court explained that, for the petitioner to
prevail on the second petition, he was required to produce new evidence at the third trial, which, if it had
been produced earlier during the habeas proceedings,
would have demonstrated that Cosgrove’s failure at the
criminal trial to raise the state’s delay in executing the
with due diligence, his conviction, sentence, and incarceration were obtained
in violation of his right to due process pursuant to the fifth and fourteenth
amendments to the United States constitution, and article first, §§ 8 and 9,
of the Connecticut constitution. This count was the subject of a motion to
dismiss and subsequently was withdrawn.
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Roger B. v. Commissioner of Correction
warrant was objectively unreasonable, and that, if Cosgrove had raised the statute of limitations, there was a
reasonable probability that the state would have been
unable to prove that the delay was reasonable. The
court denied the petition based on its conclusion that
the petitioner had failed to demonstrate that Cosgrove
rendered ineffective assistance of counsel. The petitioner then filed a petition for certification to appeal,
which the court granted, and this appeal followed.
During the pendency of this appeal, this court
remanded the case to the habeas court ‘‘to resolve the
following questions: (1) whether the habeas court credited the testimony of . . . Mullin that only local
attempts to serve an arrest warrant would be logged
in the warrant service record, which was introduced in
the third habeas trial as exhibit 30; and (2) whether
. . . McIntyre’s decision not to introduce the warrant
service record into evidence in the second habeas trial
was objectively reasonable, particularly considering the
determination of the third habeas court as set forth in
its October 4, 2023 memorandum of decision that, if
McIntyre had introduced it into evidence, ‘there is a
reasonable probability that, combined with all the other
evidence, he would have been able to show that the
state would not have been able to prove that the delay
was reasonable.’ ’’ We discuss the habeas court’s findings in response to this court’s order in part II of this
opinion. Additional facts and procedural history will be
set forth as necessary.
I
The petitioner first claims that the habeas court
improperly concluded that, unless he produced new
evidence that, had it been produced earlier in the habeas
proceedings, would have demonstrated that Cosgrove
rendered ineffective assistance, this court’s conclusions
in Roger B. v. Commissioner of Correction, supra, 190
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Roger B. v. Commissioner of Correction
Conn. App. 817, required that the petition be denied.
The petitioner contends that, in doing so, the habeas
court improperly applied the law of the case doctrine.
We disagree.
The petitioner’s claim reflects a misunderstanding of
the law of the case doctrine, the concept of precedential
authority, the required showing in a ‘‘habeas on a
habeas’’ action, and the decision of the habeas court.
Although a trial court decision ‘‘does not establish binding precedent’’ (internal quotation marks omitted); In
re Emma F., 315 Conn. 414, 432, 107 A.3d 947 (2015);
‘‘[t]he law of the case doctrine expresses the practice
of judges generally to refuse to reopen what [already]
has been decided . . . . New pleadings intended to
raise again a question of law which has been already
presented on the record and determined adversely to
the pleader are not to be favored. . . . [When] a matter
has previously been ruled [on] interlocutorily, the court
. . . may treat that [prior] decision as the law of the
case, if it is of the opinion that the issue was correctly
decided, in the absence of some new or overriding circumstance.’’ (Internal quotation marks omitted.) Glastonbury v. Sakon, 172 Conn. App. 646, 657, 161 A.3d
657 (2017).
In the present case, the habeas court did not consider
the effect of a previous ruling of a trial court but, rather,
this court’s decision in Roger B. v. Commissioner of
Correction, supra, 190 Conn. App. 817, affirming the
final judgment of the second habeas court denying the
petitioner’s first petition for a writ of habeas corpus.
Under these circumstances, the law of the case doctrine
simply does not apply, and there is no indication in
the decision of the habeas court that it relied on that
doctrine. Instead, the court relied on a principle of black
letter law, reasoning that, unless the present case is
distinguishable from Roger B. II, that decision constitutes controlling precedent that the habeas court was
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required to follow. See, e.g., Ferrigno v. Cromwell
Development Associates, 44 Conn. App. 439, 443, 689
A.2d 1150 (1997) (‘‘[i]t is axiomatic that [a] decision
of [an appellate court] is a controlling precedent until
overruled or qualified’’ (internal quotation marks omitted)), aff’d, 244 Conn. 189, 708 A.2d 1371 (1998). The
court’s statement that the petitioner was required to
produce new evidence in order for the court to depart
from the holding of Roger B. II is properly grounded
on that principle.
The habeas court’s conclusion also finds support in
the legal principles governing the court’s consideration
of a ‘‘habeas on a habeas,’’ the term commonly used to
refer to a petition for a writ of habeas corpus that raises
a claim of ineffective assistance of prior habeas counsel.
See, e.g., Sinchak v. Commissioner of Correction, 126
Conn. App. 684, 686, 14 A.3d 343 (2011). In Lozada v.
Warden, 223 Conn. 834, 842–43, 613 A.2d 818 (1992),
‘‘our Supreme Court established that habeas corpus is
an appropriate remedy for the ineffective assistance of
appointed habeas counsel, authorizing what is commonly known as a habeas on a habeas, namely, a second
petition for a writ of habeas corpus . . . challenging
the performance of counsel in litigating an initial petition for a writ of habeas corpus . . . [that] had claimed
ineffective assistance of counsel at the petitioner’s
underlying criminal trial or on direct appeal. . . . [T]he
court in Lozada . . . emphasized that a petitioner
asserting a habeas on a habeas faces the herculean
task . . . of proving in accordance with Strickland v.
Washington, [supra, 466 U.S. 687], both (1) that his
appointed habeas counsel was ineffective, and (2) that
his trial counsel was ineffective.’’ (Internal quotation
marks omitted.) Lebron v. Commissioner of Correction, 204 Conn. App. 44, 50, 250 A.3d 44, cert. denied,
336 Conn. 948, 250 A.3d 695 (2021).
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Accordingly, to prevail on his second habeas petition,
the petitioner was required to demonstrate not only
that Cosgrove had rendered ineffective assistance, but
also that McIntyre’s failure to make that required showing in the second trial on the first petition constituted
ineffective assistance. The habeas court properly concluded that, to meet his burden, the petitioner would
have to present new evidence, not introduced by McIntyre, that demonstrated that both Cosgrove and McIntyre had rendered ineffective assistance of counsel.
II
The petitioner next claims that the habeas court
improperly concluded that he failed to prove that Cosgrove and McIntyre had rendered ineffective assistance
of counsel. He points out that, because the habeas
court’s analysis began with this court’s conclusion in
Roger B. II that he had established that he was not
elusive and was available and readily approachable,
the only remaining issues were whether he also had
satisfied his burden to prove that (1) there was a reasonable probability that, if Cosgrove had relied on Crawford at trial, the state would have been unable to demonstrate that the delay in executing the warrant was
reasonable, (2) Cosgrove’s failure to raise Crawford
during the criminal trial constituted deficient performance, and (3) McIntyre’s failure to make this showing
in the second trial on the first petition constituted ineffective assistance of counsel. The petitioner argues that
the habeas court improperly concluded that he had
failed to meet his burden and relies on three new pieces
of documentary evidence introduced during the third
habeas trial, as well as testimony from two new witnesses, Shepack and Riccio. That new evidence, he
contends, demonstrates that the state would have been
unable to prove that the delay in executing the warrant
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was reasonable, thus proving both deficient performance and prejudice as to both Cosgrove and McIntyre
pursuant to Strickland.
As we explained in part I of this opinion, given this
court’s decision in Roger B. II, we conclude that the
habeas court properly began with the proposition that
the petitioner had established that he was not elusive
and was available and readily approachable. We also
conclude that the findings of the habeas court regarding
the new evidence and testimony introduced by the petitioner establish that both McIntyre and Cosgrove had
rendered ineffective assistance of counsel. See Roger
B. v. Commissioner of Correction, supra, 190 Conn.
App. 844 (‘‘[i]n a habeas appeal, this court cannot disturb the underlying facts found by the habeas court
unless they are clearly erroneous, but our review of
whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right
to effective assistance of counsel is plenary’’ (internal
quotation marks omitted)).
A
We begin by reviewing the relevant legal principles.
The standard of review in a habeas corpus proceeding
challenging the effective assistance of trial counsel is
well settled. ‘‘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. . . . [T]his court
cannot disturb the underlying facts found by the habeas
court unless they are clearly erroneous . . . . 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.’’ (Internal quotation marks omitted.) Lebron v.
Commissioner of Correction, supra, 204 Conn. App. 51.
‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the twopronged test articulated in Strickland v. Washington,
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[supra, 466 U.S. 687]. Strickland requires that a petitioner satisfy both a performance prong and a prejudice
prong. To satisfy the performance prong, a claimant
must demonstrate that counsel made errors so serious
that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment.’’ (Internal quotation marks omitted.) Tierinni v. Commissioner of Correction, 230 Conn. App. 318, 328–29, 329 A.3d 969, cert.
denied, 351 Conn. 917, 332 A.3d 293 (2025). ‘‘[T]here
is a strong presumption in favor of concluding that
counsel’s performance was competent. . . . In order
to overcome that presumption, the petitioner bears the
burden of proving that counsel’s representation fell
below an objective standard of reasonableness. . . .
[T]he performance inquiry must be whether counsel’s
assistance was reasonable considering all the circumstances. . . . Thus, the question of whether counsel’s
behavior was objectively unreasonable is not only one
on which the petitioner bears the burden of proof; its
resolution turns on a fact intensive inquiry.’’ (Emphasis
in original; internal quotation marks omitted.) Banks
v. Commissioner of Correction, 225 Conn. App. 234,
246–47, 314 A.3d 1052, cert. denied, 349 Conn. 922, 321
A.3d 1130 (2024).
‘‘With respect to the prejudice component of the
Strickland test, the petitioner must demonstrate that
counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.
. . . It is not enough for the [petitioner] to show that
the errors had some conceivable effect on the outcome
of the proceedings. . . . Rather, [t]he [petitioner] must
show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’’ (Internal quotation marks
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omitted.) Soto v. Commissioner of Correction, 215
Conn. App. 113, 120, 281 A.3d 1189 (2022).
It is well established that ‘‘the issuance of an arrest
warrant within the limitation period set forth in [the
applicable statute of limitations] commences a prosecution for purposes of satisfying the statute of limitations,
so long as the warrant is executed without unreasonable
delay.’’ State v. A. B., 341 Conn. 47, 49, 266 A.3d 849
(2021); see also State v. Crawford, supra, 202 Conn.
450–51. ‘‘When an arrest warrant has been issued, and
the prosecutorial official has promptly delivered it to
a proper officer for service, he has done all he can
under our existing law to initiate prosecution and to
set in motion the machinery that will provide notice
to the accused of the charges against him. When the
prosecutorial authority has done everything possible
within the period of limitation to evidence and effectuate an intent to prosecute, the statute of limitations
is [satisfied].’’ (Footnote omitted.) State v. Crawford,
supra, 450. Our Supreme Court has recognized, however, that ‘‘some limit as to when an arrest warrant
must be executed after its issuance is necessary in order
to prevent the disadvantages to an accused attending
stale prosecutions, a primary purpose of statutes of
limitation[s].’’ Id.
In light of that recognition, our Supreme Court has
held that, ‘‘in order to [satisfy] the statute of limitations,
an arrest warrant, when issued within the time limitations . . . must be executed without unreasonable
delay’’ and has declined to ‘‘adopt a per se approach
as to what period of time to execute an arrest warrant
is reasonable.’’ Id., 450–51. Instead, the court has stated
that ‘‘[a] reasonable period of time is a question of fact
that will depend on the circumstances of each case. If
the facts indicate that an accused consciously eluded
the authorities, or for other reasons was difficult to
apprehend, these factors will be considered in
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determining what time is reasonable. If, on the other
hand, the accused did not relocate or take evasive
action to avoid apprehension, failure to execute an
arrest warrant for even a short period of time might be
unreasonable and fail to [satisfy] the statute of limitations.’’ Id., 451.
To prevail on a claim that a delay in executing a
warrant was unreasonable pursuant to Crawford, the
defendant bears the initial burden to prove that he ‘‘was
not elusive, was available and was readily approachable
. . . .’’ (Internal quotation marks omitted.) State v.
Swebilius, 325 Conn. 793, 804–805, 159 A.3d 1099
(2017). When the defendant has met that burden,
thereby demonstrating ‘‘his availability for arrest, he
has done all that is required to carry his burden; the
burden then shifts to the state to demonstrate that any
period of delay in executing the warrant was not unreasonable.’’ Id., 804; see also State v. Woodtke, supra, 130
Conn. App. 740 (‘‘once a defendant puts forth evidence
to suggest that she was not elusive, was available and
was readily approachable, the burden shifts to the state
to prove that the delay in executing the warrant was
not unreasonable’’ (internal quotation marks omitted)).
With respect to the nature of the state’s burden to
show reasonableness, our Supreme Court has declined
‘‘to specify the precise actions that [law enforcement
officials] must undertake to serve a warrant with due
diligence, or the precise timeline within which they
must act . . . .’’ State v. Swebilius, supra, 325 Conn.
808. The state must, however, ‘‘present some credible
and persuasive factual basis for inaction when [such
officials] fail to observe the statute of limitations. This
requirement is consistent with the principle that, when
a judicial doctrine, for all practical purposes, extends
the statute [of limitations] beyond its stated term, that
doctrine should be applied in only limited circumstances . . . .’’ (Internal quotation marks omitted.) Id.,
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808–809. The court recently elaborated on the meaning
of ‘‘due diligence’’ in this context, explaining that it
‘‘means doing everything reasonable, not everything
possible. . . . Due diligence does not require a party
to do everything possible to attain its objective, but, at
the same time, it requires something more than nonchalance. The state exercises due diligence, in short, if it
undertakes efforts to execute a warrant by persevering
application . . . [made] in good earnest.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Freeman, 344 Conn. 503, 518–19, 281 A.3d 397 (2022).
As this court has explained, in the habeas context,
the petitioner bears the burden to prove both the performance and prejudice prongs of Strickland. That requirement, when understood in conjunction with the Crawford burden shifting test, means that a habeas petitioner
who asserts an ineffective assistance of counsel claim
predicated on Crawford must first prove that he was
not elusive and was available and readily approachable.
Although that showing would shift the burden to the
state in a direct proceeding, in a habeas action, because
the petitioner must prove both Strickland prongs in
order to prevail, if a petitioner demonstrates he was
not elusive, he must then prove that (1) his trial counsel’s failure to challenge the delay in executing the
warrant was objectively unreasonable, and (2) if trial
counsel had challenged the arrest warrant on the basis
of the statute of limitations, there is a reasonable probability that the state would have been unable to demonstrate that any delay in executing the warrant was reasonable. Compare Gonzalez v. Commissioner of
Correction, 122 Conn. App. 271, 285–86, 999 A.2d 781
(because petitioner failed to prove he was not elusive,
burden would not have shifted at trial, and petitioner
failed to prove reasonable probability existed that he
would have prevailed on motion to dismiss), cert.
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Roger B. v. Commissioner of Correction
denied, 298 Conn. 913, 4 A.3d 831 (2010), with Thompson v. Commissioner of Correction, 91 Conn. App. 205,
215–16, 880 A.2d 965 (2005) (upon concluding that petitioner demonstrated that he had not been elusive,
reviewing court applied Crawford burden shifting
inquiry within Strickland context and determined that,
had petitioner filed motion to dismiss, reasonable probability existed that trial court would have dismissed
failure to appear charge), appeal dismissed, 280 Conn.
509, 909 A.2d 946 (2006).
B
We next summarize the new evidence and testimony
presented at the third habeas trial and the habeas
court’s findings regarding that new evidence. The petitioner produced three new pieces of documentary evidence and new testimony at the third habeas trial that he
contends demonstrate that the police failed to exercise
reasonable diligence in executing the warrant and that
Cosgrove’s and McIntyre’s performances were deficient. We first discuss the new documentary evidence,
exhibits 22, 23, and 30. Briefly, exhibits 22 and 23 are
notices posted on national law enforcement databases
after the warrant was made extraditable; exhibit 30 is
the arrest warrant service record form that the New
Milford police had on file for the petitioner. We discuss
each of the exhibits in turn.
1
Exhibits 22 and 23 are printouts of entries into the
NCIC database. The New Milford police entered exhibit
22 into the NCIC database on November 16, 2006, about
one week after the warrant was made extraditable. The
entry indicates that it modifies the information pertaining to the ‘‘wanted person’’ who is the subject of
the entry, then identifies the petitioner by name, lists
the offenses charged in the warrant, and identifies his
address as 120 Berry Street in Greenfield, Indiana. The
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warrant is expressly designated in the entry as ‘‘extraditable.’’ Exhibit 23 comprises two entries into the NCIC
database made by the United States Marshals Service
in Indianapolis on November 20, 2006. The two entries
were logged into the database nine minutes apart and
set forth virtually identical information. Specifically,
both provide that ‘‘full extradition’’ had been authorized
‘‘unless otherwise noted’’ in a field reserved for miscellaneous remarks.8 In the miscellaneous remarks field,
both entries noted that Connecticut ‘‘will extradite from
any location’’ and named Mullin as the contact person.
Both Crossland and McIntyre testified that, although
they had seen these documents, they decided not to
introduce them into evidence. Crossland testified that
he viewed exhibit 22 as duplicative of other pieces of
evidence that he had introduced during the first habeas
trial and that he did not ‘‘see the value of saying the
same thing a third or fourth time.’’ McIntyre concurred
in Crossland’s evaluation of exhibit 22 and stated that,
rather than introduce it into evidence in the second
habeas trial, he had decided to rely on the evidence
adduced by Crossland in the first trial. As to exhibit
23, Crossland explained that he viewed the entry as
potentially confusing because, rather than simply stating that full extradition had been authorized, it added
the qualification, ‘‘unless otherwise noted in the MIS
field.’’ McIntyre was not asked why he decided not to
introduce exhibit 23 into evidence.
The petitioner contended that exhibit 22 demonstrated that, had his warrant been made extraditable
at an earlier time, he would have been apprehended
and extradited sooner. The habeas court, however,
8
The entry identified the field as the ‘‘MIS field,’’ which is the field reserved
in the NCIC database for ‘‘miscellaneous remarks.’’ See appendix_c_ncic
_abbreviations_final.pdf (last visited August 20, 2025).
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Roger B. v. Commissioner of Correction
found this exhibit to be duplicative of evidence presented in support of the first petition. The court considered the significance of exhibit 22 in conjunction with
exhibit 20, the July 7, 2005 entry posted in the NCIC
database by the New Milford Police Department, which
listed the warrant as nonextraditable. That is, the court
reasoned, exhibit 22, when compared with exhibit 20,
merely demonstrates that, shortly after the warrant was
made extraditable, the NCIC database was updated
accordingly. That same proposition, however, had been
proven through different evidence presented in the first
two habeas trials. That evidence included the July 7,
2005 NCIC entry, which was introduced as a full exhibit
in the first two habeas trials, and demonstrated that
the warrant initially was nonextraditable. The court
noted that other relevant evidence introduced in the
first two trials included: Shepack’s November 8, 2006
letter authorizing the extradition of the petitioner from
anywhere within the continental United States; two
December 11, 2006 entries posted in the law enforcement telecommunications system by the Huntsville,
Alabama police department, the first inquiring as to
whether the warrant remained active, and the second
informing the New Milford Police Department that the
petitioner had been arrested as a fugitive from justice;
a December 11, 2006 facsimile cover page from the
New Milford Police Department to the Huntsville Police
Department noting that extradition authorization and
a copy of the arrest warrant were attached; and a
December 11, 2006 entry in the NCIC database by the
Huntsville Police Department indicating that the petitioner had been located and noting that full extradition
had been authorized.
In light of this evidence introduced in the prior habeas
trials, the habeas court concluded that exhibit 22
offered nothing new in support of the petitioner’s argument. The evidence adduced at the prior habeas trials,
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Roger B. v. Commissioner of Correction
the court explained, demonstrated that the warrant was
not made extraditable until November, 2006, approximately sixteen months after the warrant was issued,
and that the petitioner was located and arrested soon
thereafter.
With respect to exhibit 23, the two November 20,
2006 entries posted in the NCIC database by the United
States Marshals Service in Indiana indicating that the
warrant was extraditable, the habeas court rejected the
petitioner’s arguments that this evidence would undermine Mullin’s testimony that he had communicated previously with the United States Marshals Service regarding this case and that the exhibit also would prove that
the New Milford Police Department failed to exercise
due diligence in executing the warrant. The court concluded that exhibit 23 had little value and demonstrated
simply that the United States Marshals Service was
informing the New Milford Police Department of its
awareness that the warrant was now extraditable.
2
The third piece of new evidence introduced at the
habeas trial was exhibit 30, an arrest warrant service
record form relating to the petitioner. The headings on
the form list the petitioner’s case number, specify the
date the warrant was logged into the system, and identify Mullin as the officer assigned to the case. The
remainder of the form, which includes spaces for officers to log attempts to serve the warrant, is blank. The
petitioner argued that this exhibit would have demonstrated that the New Milford police failed to make any
efforts to execute the warrant.
Crossland testified that Mullin had provided him with
the arrest warrant service record during the first habeas
trial, but Crossland had decided not to use it because
he was concerned that the document was a ‘‘gimmick’’
or a ‘‘poison pill . . . .’’ McIntyre determined not to
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Roger B. v. Commissioner of Correction
offer the document into evidence, believing that it
lacked ‘‘value’’ because it was unsigned and gave no
indication of when it was created or by whom. Although
he admitted that, if used in conjunction with the
absence of any documentary evidence of any contacts
with the United States Marshals Service, the document
could have been useful to prove that there were no
such contacts, he emphasized that, in his view, the blank
record proved, at most, a failure to document attempts
to serve the warrant, not a failure to make such
attempts. Given the ambiguity of the blank form, McIntyre was concerned that, if he had attempted to present
it as evidence, he would be faced with a ‘‘trial within
the trial’’ over its meaning and significance.
Mullin also offered testimony regarding the arrest
warrant service record. He acknowledged that the form
reflected that the warrant was logged into the system
on July 7, 2005, and that the form’s purpose was to
keep track of attempts to serve the warrant. He could
not recall, however, whether he had made any attempts
to serve the warrant, or when he had learned that the
petitioner was living out of state. Moreover, his testimony as to whether an attempt to serve the warrant
on the petitioner outside the state of Connecticut would
be entered into the warrant service record was equivocal. He first stated that it would not be entered, but
then suggested that, under certain circumstances, such
an attempt might be logged on the form. He then stated
that only local attempts would be logged on the form.
In response to this court’s May 29, 2025 remand order,
requesting that the habeas court clarify whether it credited Mullin’s testimony that only local attempts to serve
the warrant would be logged on the warrant service
record, the habeas court did not find it ‘‘to be either
credible or not credible.’’ The court cited to the twentythree years that had passed between the relevant events
and Mullin’s testimony at the time of the third habeas
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trial, noted that Mullin’s recollection had to be refreshed
several times during his testimony, and, finally, noted
the equivocal nature of Mullin’s testimony.
Notwithstanding the habeas court’s understandable
difficulty in determining whether to credit Mullin’s testimony, it is significant that the court nonetheless made
the factual finding that the arrest warrant service record
is intended to log ‘‘all attempts made to serve a warrant
. . . .’’ (Emphasis in original.) That factual finding renders immaterial the court’s inability to determine
whether to credit Mullin’s testimony that the record
was used to log only local attempts.
The habeas court further determined that the arrest
warrant service record was a ‘‘significant document
that should have been introduced at the prior habeas
trial by [McIntyre] and, had he introduced it, there is
a reasonable probability that, combined with all the
other evidence, he would have been able to show that
the state would not have been unable to prove that
the delay was reasonable.’’ The court explained: ‘‘The
warrant service record is a document that exists for
precisely one reason: to document any attempts made
to serve a warrant. In [the petitioner’s] case, it is completely blank. At the prior habeas trials, Mullin was
asked to bring the police department’s file pertaining
to [the petitioner], which he did, and to produce from
that file any documentation to support his testimony
that he made attempts to locate [the petitioner] in order
to serve the warrant. There were no documents in his
file recording any efforts made between July 6, 2005,
and November 8, 2006, nor was there documentation of
any communications with the [United States Marshals
Service]. Mullin testified that he was aware, as of the
day after the warrant was signed, of [the petitioner’s]
address in Indiana. Yet the only evidence of any attempt
made by Mullin to serve the warrant is his testimony
of unspecified attempts to contact the [United States
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Roger B. v. Commissioner of Correction
Marshals Service] at times unknown, that are not documented in any fashion.’’ On the basis of these facts, the
court concluded that, in light of the blank arrest warrant
service record, the evidence did not demonstrate that
the state had exercised due diligence by undertaking
efforts to execute the warrant ‘‘ ‘by persevering application’ . . . .’’ (Emphasis omitted.) See State v. Freeman,
supra, 344 Conn. 519.
In response to this court’s May 29, 2025 remand order,
the habeas court found that McIntyre’s decision not to
introduce the arrest warrant service record was not
objectively reasonable. McIntyre’s proffered basis for
his decision, that the record was unsigned, not filled
out, and it was unknown whether it had been brought
to the attention of any detective, did not provide a
reasonable explanation for his decision. The arrest warrant service record, the court found, ‘‘which is meant
to log all attempts made to serve a warrant, is blank.
Introducing the document can only help [the petitioner]
establish that the state did not attempt to serve the
warrant with due diligence and without unreasonable
delay. Indeed, it serves to establish that the police made
no attempts at all to serve the warrant. [McIntyre’s]
argument that the [record] ‘might only establish that
the police did not record attempts to serve the warrant’
also fails because that was precisely already the state’s
argument: that they did attempt to serve the warrant
despite scant to no evidence to support that position.
Failing to introduce that document falls below the standard of a reasonably competent defense attorney.’’
(Emphasis in original.)
3
The petitioner also presented the expert testimony
of Riccio. Riccio testified that, as of the time of the
habeas trial, he had been practicing as a criminal
defense attorney for twenty-four years and that he had
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testified as a legal expert on approximately twentyfive occasions. Over the course of his career, he had
encountered issues involving an unreasonable delay in
executing a warrant at least ten times. He testified that
the primary means by which defendants challenge the
delayed execution of a warrant is to file a motion to
dismiss, although he acknowledged that some defendants elect to assert an affirmative or special defense.
In a motion to dismiss predicated on an allegedly unreasonable delay in executing a warrant, a defendant sets
forth facts in support of his initial burden to prove that
he was not elusive. If the defendant carries his burden,
the state then must prove the delay was reasonable by
presenting evidence that it exercised due diligence in
executing the warrant. If the state is unable to make
that showing, the case is dismissed. Riccio testified
that, pursuant to Crawford, a defendant need not prove
‘‘actual prejudice’’ as a result of the delay, such as missing witnesses. Instead, the focus is entirely on the reasonableness of the delay itself, beginning with the consideration of whether the defendant was elusive, and,
if not, whether the state exercised due diligence in
executing the warrant. A criminal defense attorney who
fails to file a motion to dismiss when there is evidence
that there has been an unreasonable delay in executing
a warrant, Riccio testified, does not meet the standard
of care, and failing to file such a motion would make
it difficult to raise the issue on appeal. In a case such
as the present one, in which the police were aware that
the petitioner was living openly in another state but
waited more than one year to execute the warrant,
which was marked nonextraditable for the majority of
that time period, Riccio testified, the standard of care
would require filing a motion to dismiss predicated on
Crawford.
The habeas court credited Riccio’s testimony that
‘‘reasonably competent criminal defense attorneys
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would have raised this clear statute of limitations issue
in the trial court.’’ The court did not, however, view
the testimony, ‘‘which is expert opinion testimony, as
the kind of evidence needed for this court to conclude
differently than’’ this court did in Roger B. II. The habeas
court reasoned that this court, ‘‘[f]aced with this exact
record,’’ had concluded that Cosgrove did not perform
deficiently; the habeas court therefore considered itself
bound by this court’s holding in Roger B. II.
C
In light of the habeas court’s findings regarding the
new evidence and testimony presented at the third
habeas trial, we now consider whether the petitioner
established both prongs of Strickland as to Cosgrove
and McIntyre. As we stated in part I of this opinion, the
habeas court properly concluded that, in the absence
of new evidence, it was bound by this court’s holding
in Roger B. II that the petitioner had failed to demonstrate that Cosgrove’s failure to raise the state’s delay in
executing the warrant constituted ineffective assistance
of counsel. We part ways with the habeas court, however, as to whether the petitioner accomplished that
task in the third habeas trial. As we explain, we conclude that, given the habeas court’s underlying factual
findings regarding the warrant service record and the
expert testimony introduced by the petitioner, he established both deficient performance and prejudice as to
Cosgrove and McIntyre. We discuss each of these in
turn.
1
The blank warrant service record is relevant to our
consideration of Strickland’s prejudice prong and to
our consideration of whether McIntyre’s performance
was deficient. Standing alone, the blank form would
raise some questions concerning whether the New Milford police made any attempts to execute the arrest
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warrant. Considered in conjunction with the other evidence adduced at the habeas trial (i.e., evidence that
supported the petitioner’s claim that the New Milford
police failed to make any significant effort to execute
the warrant), the production of the blank warrant service record satisfies the petitioner’s burden to demonstrate prejudice.
The habeas court’s factual findings aptly capture the
necessary context for this determination. We begin with
the most basic finding—that eighteen months passed
between the issuance of the warrant, two weeks prior
to the expiration of the statute of limitations, and its
execution. Of course, the passage of time, while relevant, is not dispositive as to whether the police failed
to exercise due diligence in serving a warrant. Both
this court and our Supreme Court have emphasized that
there is no ‘‘per se approach as to what period of time
to execute an arrest warrant is reasonable.’’ State v.
Crawford, supra, 202 Conn. 451; see also State v. Soldi,
92 Conn. App. 849, 856, 887 A.2d 436 (noting absence
of per se approach in context of considering whether
five year delay in serving defendant with arrest warrant
was reasonable), cert. denied, 277 Conn. 913, 895 A.2d
792 (2006). The more pertinent inquiry is—what transpired during that time period? That is, in determining
whether a habeas petitioner has demonstrated a reasonable probability that the state would be unable to demonstrate that the delay in executing the warrant was
reasonable, courts must consider ‘‘whether the defendant may have been difficult to apprehend’’ during the
relevant time period, and ‘‘the police department’s
actions in executing the warrant.’’ State v. Woodtke,
supra, 130 Conn. App. 744. We turn to these two factors.
Without question, even given the petitioner’s showing
that he was not elusive, his relocation to Indiana five
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months after Mullin questioned him, as well as his subsequent relocations within that state and then to Alabama, are relevant to the inquiry insofar as those relocations may demonstrate that the petitioner may have
been difficult to apprehend. Crawford and its progeny
recognize the significance of a wanted person’s relocation in evaluating the reasonableness of the state’s
efforts to execute a warrant. See, e.g., State v. Ali,
233 Conn. 403, 415, 660 A.2d 337 (1995) (recognizing
relevance of relocation by accused in determining
whether police efforts in executing arrest warrant were
reasonable); State v. Crawford, supra, 202 Conn. 451
(same). That significance is diminished, however, by
the fact that the New Milford police received notice on
July 7, 2005—the day after the warrant issued—that
the petitioner lived at 120 Berry Street in Greenfield,
Indiana. Indeed, locating the petitioner appears not to
have been the problem. At the petitioner’s criminal trial,
Mullin acknowledged that he independently had been
able to locate the petitioner through Indiana’s motor
vehicle records.
Another factor that minimizes the significance of the
petitioner’s relocation outside Connecticut is that he
was located and apprehended within two months after
the warrant was made extraditable, despite the fact
that, by that time, he had moved from Indiana to Alabama. The quick turnaround after the warrant was made
extraditable must be understood in conjunction with
the trial court’s finding that, with respect to a wanted
person who is located outside the jurisdiction of Connecticut, designating a warrant as extraditable allows
Connecticut law enforcement to ‘‘receive cooperation
of [out-of-state] local law enforcement, take that individual into custody, and begin extradition proceedings
to Connecticut.’’ Consistent with the court’s finding,
that is precisely what happened in the present case—
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as soon as the warrant was made extraditable, out-ofstate local law enforcement acted on it. Specifically,
the multiple entries in the NCIC database shortly after
it was updated to reflect the change in the warrant’s
status—by both the United States Marshals Service and
the police department of Huntsville, Alabama—indicate
that the reason for the lack of prior efforts on the
part of out-of-state law enforcement was the failure to
designate the warrant as extraditable.
The actions undertaken by the New Milford police
in executing the warrant were at best minimal. The
record reveals that designating a warrant as extraditable does not require significant time or effort on the
part of law enforcement. Mullin testified that, once the
target of a warrant is determined to be living outside
this jurisdiction, the police contact the state’s attorney’s
office to have the warrant made extraditable and then
update the NCIC database accordingly. Consistent with
that testimony, the warrant for the petitioner’s arrest
was made extraditable by virtue of a single sentence
letter sent by Shepack to Mullin on November 8, 2006,
stating: ‘‘Please be advised that the [s]tate of Connecticut authorizes extradition of [the petitioner] . . . from
any location within the continental United States.’’ And
the decision to designate a warrant as extraditable,
Shepack testified, ordinarily ‘‘should be made within
hours.’’ In the present case, that decision was made
sixteen months after the warrant issued, despite the
fact that the New Milford police learned, one day later,
the particular street address where the petitioner lived
in Indiana. Although it is true that the petitioner subsequently relocated within Indiana, and then to Alabama,
it was undisputed that the New Milford police were
aware that he lived outside this jurisdiction and that
he had a driver’s license in Indiana under his name and
used his Social Security number to obtain employment.
At no point during any of the three habeas trials or the
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criminal trial, however, was any evidence presented
providing an explanation for the failure to make the
warrant extraditable during those sixteen months.
Evidence of other efforts to execute the warrant,
of course, would be relevant to our consideration of
whether the police exercised due diligence. Mullin’s
testimony at the criminal trial and the habeas trials
suggested that, notwithstanding his failure to have the
warrant made extraditable, he had been in communication with the United States Marshals Service, and it had
unsuccessfully attempted to serve the warrant on the
petitioner in Indiana. His testimony, in fact, was the
sole evidence presented that any attempts had been
made to serve the warrant on the petitioner prior to
November, 2006. The habeas court aptly described Mullin’s testimony, however, as vague—he provided no
names, no times or dates, locations, and no documentation of any of the alleged communications with the
United States Marshals Service.
The blank arrest warrant service record, which the
habeas court expressly found had one purpose—i.e., it
was intended to document all attempts to serve the
warrant on the petitioner—provides a devastating counterpoint to Mullin’s vague and unsupported testimony
regarding efforts to execute the warrant prior to November, 2006. This record is precisely the type of evidence
that evinces the ‘‘nonchalance’’ that our Supreme Court
deemed the opposite of the ‘‘ ‘persevering application’ ’’
required to support a conclusion that law enforcement
exercised due diligence in executing a warrant. State
v. Freeman, supra, 344 Conn. 519. As we stated, this
document alone would not have sufficed to demonstrate prejudice. We view it, however, in light of the
failure of the New Milford police to designate the warrant as extraditable, a task that easily could have been
accomplished soon after the warrant’s issuance; the
fact that the petitioner’s street address was known to
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Roger B. v. Commissioner of Correction
the police one day after the warrant was issued; the
evidence that the petitioner used his own name and
Social Security number to obtain a driver’s license and
employment; and the absence of any documentary evidence demonstrating that the New Milford police made
any efforts, prior to November, 2006, to execute the
warrant. Considered in this context, the blank warrant
service record leaves no question that, in the present
case, the police did not exercise due diligence in executing the warrant without unreasonable delay. Accordingly, we conclude that the petitioner has demonstrated
that he was prejudiced by McIntyre’s failure to introduce the warrant service record during the second
habeas trial, and that he was prejudiced by Cosgrove’s
failure to rely at the criminal trial on the delay in executing the warrant.
Given the significance of this document, we agree
with the conclusion of the habeas court that McIntyre’s
proffered reasons for not introducing it—that it was
unsigned, not filled out, and it was unknown whether
it had been brought to the attention of any detective—
were not reasonable. The reason the warrant service
record provides significant support for the petitioner’s
position is precisely because it is not filled out. As the
habeas court explained, the warrant service record
would have helped to ‘‘establish that the state did not
attempt to serve the warrant with due diligence and
without unreasonable delay. Indeed, it serves to establish that the police made no attempts at all to serve the
warrant.’’ (Emphasis omitted.) This document would
have undermined the credibility of Mullin’s uncorroborated and vague testimony regarding attempts to execute the warrant. We agree with the habeas court that
failing to introduce it was objectively unreasonable.
2
Riccio’s testimony provides precisely the piece of
evidence that this court observed in Roger B. v. Commissioner of Correction, supra, 190 Conn. App. 852,
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Roger B. v. Commissioner of Correction
was lacking in support of the claim in the petitioner’s
first habeas petition that Cosgrove rendered deficient
performance by failing to file a motion to dismiss or to
assert an affirmative defense based on the delay in
executing the warrant. Two aspects of Riccio’s testimony are key to our conclusion that the petitioner satisfied his burden to prove that Cosgrove’s performance
was deficient. First, his testimony made clear that the
primary means by which a delay in executing a warrant
would be challenged would be by way of a motion to
dismiss. Considering that such a motion would be filed
outside the presence of a jury, the worst that could
have happened to the petitioner is that Cosgrove would
not have prevailed on the motion. In other words, the
petitioner could not have suffered any prejudice had
Cosgrove filed a motion to dismiss. Indeed, as Riccio
testified, failing to file a motion to dismiss precluded
the petitioner from raising a claim challenging a denial
of that motion in the direct appeal.
In fact, Cosgrove offered no strategic reason for failing to file a motion to dismiss and only stated that he
believed he did not have a basis for filing one. Riccio’s
testimony reveals the key flaw in that rationale. His
testimony highlighted that Cosgrove was relying on an
incorrect legal rule when he concluded that, because
he could not demonstrate actual prejudice resulting
from the delay, such as missing witnesses or destroyed
evidence, he had no basis for filing a motion to dismiss.
Ricco correctly testified that, when the issue is whether
a state’s delay in executing a warrant beyond the applicable limitations period was unreasonable, a defendant
need not demonstrate actual prejudice. Cosgrove’s
belief that he would have to make that showing reflects
an incorrect understanding of the required showing of
prejudice under State v. Crawford, supra, 202 Conn.
450–51, in which our Supreme Court set forth the applicable principles that govern a defendant’s claim that
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Roger B. v. Commissioner of Correction
the state has executed a warrant outside the statute of
limitations. Specifically, under Crawford and its progeny, the prejudice to a defendant is having to defend
a criminal action that the state lacked authority to bring.
See Thompson v. Commissioner of Correction, supra,
91 Conn. App. 216 (petitioner satisfied burden to show
prejudice by demonstrating reasonable probability that,
if trial counsel had filed motion to dismiss based on
delay in executing warrant, motion would have been
granted). Accordingly, Riccio’s testimony demonstrated
that Cosgrove misunderstood the applicable law and
failed to file a motion to dismiss despite the absence
of any prejudice that would have inured to the petitioner
had Cosgrove done so. We therefore agree with the
habeas court’s conclusion that a reasonably competent
attorney ‘‘would have raised this clear statute of limitations issue in the trial court.’’ Therefore, we conclude
that the petitioner demonstrated that Cosgrove’s performance was deficient.
The judgment is reversed and the case is remanded
with direction to grant the second amended petition
for a writ of habeas corpus, to vacate the petitioner’s
underlying conviction of sexual assault in the first
degree, sexual assault in the fourth degree, and risk of
injury to a child, and to order a new trial.
In this opinion the other judges concurred.