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Bobe v. Commissioner of Correction

2026-01-13

Summary

Holding. The appeal is dismissed because the habeas court did not abuse its discretion in denying the petition for certification to appeal.

Anibal Bobe, convicted of sexual assault in the second degree and risk of injury to a child, appealed after a habeas court denied his petition for certification to appeal from a ruling that rejected his claims. Bobe challenged the denial of his motion to continue the habeas trial and argued that his trial counsel rendered ineffective assistance by relying on a defense centered on the petitioner's HIV-positive status when the victim tested negative. The appellate court concluded that Bobe failed to demonstrate that his claims presented debatable legal issues or deserved appellate review.

Regarding the continuance, the court found that Bobe's counsel acquiesced to proceeding without additional witnesses and did not establish that the denial violated his constitutional right to present evidence. The motion itself lacked specificity, merely referencing vague "issues" and "information," and the reasons offered were speculative. Regarding the ineffective assistance claim, the court upheld the trial strategy of using HIV transmissibility as a defense, finding it was a reasonable choice given the limited evidence available and the strategic calculation that pursuing third-party culpability would have introduced damaging grooming evidence.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether denial of certification to appeal involved debatable issues deserving appellate review
  • Whether denial of a continuance violated the right to present witnesses at trial
  • Whether trial counsel's HIV-based defense theory constituted ineffective assistance

Procedural posture

The petitioner appealed from the habeas court's denial of his petition for certification to appeal following the denial of his habeas petition challenging his criminal conviction.

Authorities cited

Opinion

majority opinion

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Bobe v. Commissioner of Correction

ANIBAL BOBE v. COMMISSIONER

OF CORRECTION

(AC 46765)

Cradle, C. J., and Westbrook and Harper, Js.

Syllabus

The petitioner, who previously had been convicted of, inter alia, sexual assault in the second degree, appealed following the denial of his petition for certification to appeal from the habeas court’s judgment denying his habeas petition. He claimed, inter alia, that the court erred in concluding that his criminal trial counsel did not provide ineffective assistance. Held:

The habeas court did not abuse its discretion in denying the petition for certification to appeal because the petitioner failed to demonstrate that his claims involved issues that were debatable among jurists of reason, that a court could have resolved the issues in a different manner, or that the questions were adequate to deserve encouragement to proceed further.

The petitioner’s claim that the habeas court abused its discretion and violated his due process rights under the federal and state constitutions by denying his motion for a continuance of the habeas trial was unavailing, as the petitioner’s counsel acquiesced to the court’s stated expectation that the trial would conclude if counsel was unable to offer assurances that he had other witnesses under subpoena for the scheduled second day of trial, the lone reference the petitioner’s counsel made to the court prior to the commencement of trial regarding the motion pertained to the court’s stated concerns about the age of the case rather than to the presentation of witness testimony, the written motion was undisputedly silent regarding the need for more time to subpoena additional witnesses, and the reasons advanced by the petitioner’s counsel in support of the motion were speculative in nature.

The habeas court properly concluded that the petitioner failed to establish his claim of ineffective assistance of criminal trial counsel, as he failed to present sufficient evidence to overcome the presumption that his trial counsel’s decision to predicate the defense on the fact that the petitioner had tested positive for human immunodeficiency virus and the victim had not was sound trial strategy.

Argued April 21, 2025—officially released January 13, 2026

Procedural History

Amended petition for a writ of habeas corpus, brought

to the Superior Court in the judicial district of Tolland and tried to the court, Newson, J.; judgment denying

the petition; thereafter, the court, Newson, J., denied

Bobe v. Commissioner of Correction

the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.

J. Patten Brown III, assigned counsel, for the appellant (petitioner).

Olivia M. Hally, deputy assistant state’s attorney,

for the appellee (respondent).

Opinion

HARPER, J. The petitioner, Anibal Bobe, appeals

following the denial of his petition for certification to appeal from the judgment of the habeas court denying

his third revised amended petition for a writ of habeas

corpus. On appeal, the petitioner claims that the court

(1) abused its discretion in denying his petition for certification to appeal, (2) abused its discretion and denied him his “basic constitutional right to present witnesses

at trial,” in violation of due process of law, when it denied his motion for a continuance of the habeas trial, and

(3) improperly concluded that he had failed to prove

ineffective assistance of his criminal trial counsel.1 We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal, and, therefore, we dismiss the appeal.

The following facts, as set forth by this court in the

petitioner’s direct appeal from his criminal conviction,

and procedural history are relevant to the petitioner’s

claims on appeal. “In July, 2012, the . . . victim, then

fourteen years old,2 and his family were homeless. The

victim’s mother was acquainted with the [petitioner],

who allowed them to live in his one bedroom apartment

with him. The [petitioner] helped his landlord with building maintenance and had access to the building’s attic and vacant apartments in the building that required work.

1

For ease of discussion, we address the petitioner’s claims in a different order than they are presented in his appellate brief.

2

In accordance with our policy of protecting the privacy interests of the victims of sexual assault and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity can be ascertained. See General Statutes § 54-86e.

Bobe v. Commissioner of Correction

The [petitioner] asked the victim’s mother if the victim

could help him paint a neighboring vacant apartment.

That apartment had painting mats down on the floor. The

[petitioner] provided the victim with a brown bottle of

liquor that the victim described as ‘[tasting] horrible.’3 The [petitioner] and the victim took off each other’s

clothes. The victim put his mouth on the [petitioner’s]

penis and performed oral sex until the [petitioner] ejaculated on the floor, and the [petitioner] did the same to

the victim.

“On another occasion, the [petitioner] invited the victim to come up to the attic, where there was a bed, to

have ‘sweaty sex.’ The victim went into the attic with the [petitioner], and they took off each other’s clothes and

performed oral sex on each other. The [petitioner] ‘put the tip of his [penis] in [the victim’s anus], but it didn’t go all the way in because [the victim] . . . clenched up . . . and . . . [pushed] away because it . . . [hurt].’ Another time in the vacant apartment, the [petitioner] asked the victim

to ‘turn over so that he [could] stick it in.’ The victim did not want to engage in anal sex, but the [petitioner] told him that ‘[it was] ok’ and fully penetrated the victim’s

anus. The victim described it as a ‘painful,’ ‘awful feeling.’ The victim stated that when the [petitioner] finished it felt like the [petitioner] had ‘[ejaculated] inside [of him].’ The [petitioner] never used a condom during

any of the assaults. Afterward, the victim went to the

bathroom and saw blood in his underwear. The victim

told the [petitioner], but the [petitioner] ‘tried to deny it and say that . . . it wasn’t blood.’ The victim was scared, and he threw away the bloody underwear.

“The victim engaged in oral sex with the [petitioner]

approximately two other times, and the [petitioner]

attempted to engage in anal sex with the victim on one

other occasion. The [petitioner] told the victim multiple times ‘not to tell anyone because [they] would both get in 3

“The [petitioner] provided the victim with alcohol on two other occasions.” State v. Bobe, 179 Conn. App. 878, 880 n.2, 181 A.3d 602, cert. denied, 328 Conn. 920, 180 A.3d 964 (2018).

Bobe v. Commissioner of Correction

trouble.’ Initially, the victim did not tell anyone about the assaults because he ‘was scared and . . . [did not]

know what was going to happen’ or ‘what anybody would

think.’ The victim was ‘very concerned’ about whether

his family would be able to stay in the [petitioner’s]

apartment. Later that month, the landlord discovered

that the victim’s family was living in the [petitioner’s] apartment and asked them to leave. In the spring of 2013, the victim told his stepbrother the [petitioner’s] name

and ‘exactly what happened from the beginning . . . to

the end.’ The victim then told his father and stepmother, who contacted the Bridgeport Police Department. The

state subsequently charged the [petitioner] with sexual

assault in the second degree, and two counts of risk of

injury to a child. A three day jury trial commenced on

July 6, 2016, at which the victim testified. The victim’s testimony was corroborated by his stepbrother’s constancy of accusation testimony.

***

“On July 8, 2016, the jury returned a verdict of guilty

as to all charges and, thereafter, the [petitioner] was

convicted and sentenced to a total effective sentence of

thirty-five years of incarceration, execution suspended

after seventeen years, followed by thirty years of probation.” (Footnote added; footnote in original.) State

v. Bobe, 179 Conn. App. 878, 880–83, 181 A.3d 602,

cert. denied, 328 Conn. 920, 180 A.3d 964 (2018). This

court affirmed the judgment of conviction on direct

appeal. Id., 885.

On May 25, 2017, the petitioner, acting as a self-represented party, filed a petition for a writ of habeas corpus. Counsel was appointed in August, 2017. On January 7,

2020, the petitioner filed the operative third revised

amended petition for a writ of habeas corpus (amended

petition). The petitioner claimed in the amended petition that his criminal defense counsel, Arthur Ledford, had

provided ineffective assistance during his underlying

criminal trial and that the trial court had violated his

due process rights at sentencing. In the meantime, the

Bobe v. Commissioner of Correction

parties had entered into a scheduling order that provided that the habeas trial would begin on July 20, 2020.

On June 20, 2020, the petitioner filed a motion to

continue the July 20, 2020 trial “until a time when inperson habeas trials can be safely resumed.” He stated in that motion that “[t]he COVID-19 pandemic has severely

hindered counsel’s ability to prepare for this trial” and that “the mechanics of holding the trial by video will be especially complicated in this matter since the petitioner will need the services of an interpreter, and the nature

of some of the claims will require that counsel have the

ability to consult with the petitioner during the hearing.” The court, Oliver, J., granted the petitioner’s motion,

and, on August 18, 2020, the parties entered into a new

scheduling order that set April 24 and 25, 2023, as the

dates for trial.

On April 12, 2023, the petitioner filed a witness list

that identified fourteen witnesses he “may call” at trial.4 Five days later, on April 17, 2023, the petitioner filed

a motion to continue the habeas trial, which the court,

Newson, J., denied.

The court held the habeas trial on April 24, 2023, and

the petitioner pursued his claim that Ledford had provided ineffective assistance during his underlying criminal trial on the basis of nineteen alleged deficiencies, as well as his claim that the trial court had violated his due process rights at sentencing. The court heard testimony

from two witnesses, Ledford and the petitioner, and several exhibits were admitted into evidence. Thereafter,

the habeas court denied all of the petitioner’s claims. The petitioner filed a petition for certification to appeal the denial of his amended petition,5 which the court denied.

4

In his principal appellate brief, the petitioner states that there were thirteen witnesses listed on his witness list. The witness list, however, names fourteen witnesses.

5

As grounds for his petition for certification to appeal, the petitioner claimed that the habeas court erred in, inter alia, “denying [his] request for a continuance of the habeas trial” and “its reasoning and conclusion that [his] trial counsel did not provide constitutionally deficient performance.”

Bobe v. Commissioner of Correction

This appeal followed. Additional facts and procedural

history will be set forth as necessary.

I

We first address the petitioner’s claim that the court

abused its discretion in denying his petition for certification to appeal. We disagree.

General Statutes § 52-470 (g) provides: “No appeal

from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person’s release may be taken unless the appellant, within ten days after

the case is decided, petitions the judge before whom the

case was tried or, if such judge is unavailable, a judge

of the Superior Court designated by the Chief Court

Administrator, to certify that a question is involved

in the decision which ought to be reviewed by the court

having jurisdiction and the judge so certifies.”

It is well established that, when “[f]aced with the

habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas

court’s ruling constituted an abuse of discretion. . . . A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [a] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . . The required

determination may be made on the basis of the record

before the habeas court and applicable legal principles. . . . If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment

of the habeas court should be reversed on its merits. .

. . Crespo v. Commissioner of Correction, 292 Conn. 804,

811, 975 A.2d 42 (2009); see also Simms v. Warden,

230 Conn. 608, 615–16, 646 A.2d 126 (1994) (adopting

factors identified by United States Supreme Court in

Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860,

112 L. Ed. 2d 956 (1991), as appropriate standard for

Bobe v. Commissioner of Correction

determining whether habeas court abused its discretion

in denying certification to appeal).

“In determining whether the habeas court abused its

discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the

petitioner’s underlying claims to determine whether

the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review

the petitioner’s substantive claims for the purpose of

ascertaining whether those claims satisfy one or more of

the three criteria . . . adopted by [our Supreme Court] for determining the propriety of the habeas court’s denial

of the petition for certification. . . . Villafane v. Commissioner of Correction, 190 Conn. App. 566, 573, 211 A.3d

72, cert. denied, 333 Conn. 902, 215 A.3d 160 (2019).”

(Internal quotation marks omitted.) Owen v. Commissioner of Correction, 234 Conn. App. 481, 489–90, 344

A.3d 158, cert. denied, 353 Conn. 923, 345 A.3d 812

(2025).

For the reasons set forth in parts II and III of this opinion, we conclude that the petitioner has failed to demonstrate that (1) his claims involve issues that are debatable among jurists of reason, (2) a court could resolve the

issues in a different manner, or (3) the questions are

adequate to deserve encouragement to proceed further.

See Villafane v. Commissioner of Correction, supra, 190

Conn. App. 572. Thus, we conclude that the habeas court

did not abuse its discretion in denying the petition for

certification to appeal.

II

We now turn to the petitioner’s claim that the habeas

court abused its discretion and violated his due process

rights under the federal and state constitutions by denying his motion to continue the habeas trial. We are not

persuaded.

The following additional facts and procedural history

are relevant to our resolution of this claim. In the petitioner’s April 17, 2023 motion for a continuance of the

Bobe v. Commissioner of Correction

habeas trial, his counsel stated that he had been representing the petitioner in this matter since 2018 and that the original July, 2020 trial date had been continued to

April 24 and 25, 2023. He explained in the motion that

he was requesting another continuance for the following reasons:

“First, the petitioner was released onto parole in the

last few weeks6 and the undersigned counsel has had

several discussions with the petitioner about his case

that have led the undersigned counsel to the conclusion

that additional time to work with the petitioner on the

case would be beneficial to the petitioner and could either simplify or resolve the matter completely. Second, the

undersigned counsel experienced the death of his mother

in March after nearly six months of a very difficult illness. The undersigned counsel maintained his practice

during this time and was counsel in several jury trials and a handful of habeas trials. However, preparations for the petitioner’s habeas trial [were] impacted by the realities of managing the personal crisis. While the petitioner

has witnesses under subpoena and his exhibits prepared,

the undersigned counsel feels compelled to make this

request in order to assure that the petitioner is receiving the effective assistance of counsel. For example, the petitioner recently clarified some information that had

likely been conveyed to the undersigned some time ago

and the undersigned counsel is concerned that he will

not have sufficient time to adequately prepare the issue

now that he has a fuller understanding of the facts.”

(Footnote added.)

In an order issued that same day, the court, Newson, J.,

ruled that “[t]he motion to continue the trial in this matter, which refers vaguely to ‘issues’ and ‘information’

6

“[I]t is well established in . . . Connecticut jurisprudence that individuals who are on . . . parole satisfy the custody requirement necessary to invoke the jurisdiction of the habeas court.” (Footnote omitted.) Riccio v. Commissioner of Correction, 235 Conn. App. 431, 438–39, 344 A.3d 1212, cert. granted, 353 Conn. 935, __ A.3d __ (2025) .

Bobe v. Commissioner of Correction

that need looking into is DENIED.” The petitioner did

not file a motion to reargue the court’s decision.

At the beginning of the habeas trial on April 24,

2023, the court asked, “Is there anything procedurally or administratively we need to address before we

get started, exhibits, et cetera?” After both counsel

confirmed that there had been an agreement regarding

exhibits, the following colloquy between the court and

the petitioner’s counsel ensued:

“The Court: Okay. Anything else before we proceed?

“[The Petitioner’s Counsel]: And I guess the only other

thing is we’re scheduled for today and tomorrow. Today,

I only have trial counsel and the petitioner. I have the

investigator trying to track down some of these other

witnesses who have not been cooperative, so I guess I

can report to the court then, but I think we might be

done today.

“The Court: Well, are they under subpoena?

“[The Petitioner’s Counsel]: Not in hand. No.

“The Court: So, we have the petitioner and Attorney

Ledford?

“[The Petitioner’s Counsel]: Yes.

“The Court: So, you’ve got fourteen witnesses . . . on

the witness list, and you’re just telling the court as of right now none of these other lay witnesses or professional witnesses are actually under subpoena as we sit

here today?

“[The Petitioner’s Counsel]: The first three are the

keepers of the records—records were delivered to me

that are identical to what’s in the record already. So,

those three record keepers, they’re on the witness list

but I’m not pursuing those. [Stacy Andriolas]7 was out

of the country. She’s returning today. She hasn’t been

7

The petitioner’s counsel initially stated that it was another listed witness who was out of the country but later clarified that he meant Andriolas. Although she was referred to as “Andriola” throughout the

Bobe v. Commissioner of Correction

served. Some of these other individuals have either been

unhelpful, unavailable, or potentially could be deceased

since the last time we were preparing for this trial before COVID started . . . .

“The Court: . . . [S]o, as we stand here right now, who

is ready to testify?

“[The Petitioner’s Counsel]: Attorney Ledford . . .

[a]nd the petitioner. . . .

“The Court: And that’s it?

“[The Petitioner’s Counsel]: Yes, that will likely conclude the evidence. . . .

“The Court: Okay. Well, we’ll address the specifics

afterward, but [counsel], this is a six year old case which was scheduled for trial once. So, it sounded like you first said to me, well, I don’t have anybody else under subpoena, but we’ll show up tomorrow and see what happens.

“[The Petitioner’s Counsel]: So, [Andriolas] talked on

the telephone to . . . our investigator . . . . She was out of the country, returning today. . . . As far as [witnesses six] seven and eight, they have not been cooperative with us for reasons that are probably obvious . . . .

“The Court: Okay. The case is six years old. So, you

haven’t been able to get them under subpoena or find

out where they are to serve them? And, I guess with

[Andriolas], she’s been out of the country since when to

your knowledge?

“[The Petitioner’s Counsel]: I don’t know, Your Honor.

“The Court: Okay. So . . . we’ll conclude with these two

witnesses today, but counsel, what you’re really telling

me is you don’t, I mean, you don’t actually have any

other witnesses to present. So . . . in trying to be fair . . . we’re not going to conclude today, continue the thing

tomorrow without any actual information that you have

witnesses under subpoena who are bound to appear, only

habeas proceedings, the record reflects that the proper spelling of her last name is “Andriolas.”

Bobe v. Commissioner of Correction

to show up tomorrow to say, the witnesses that I don’t

have under subpoena aren’t here.

“And so, I guess what I’m saying . . . [is] unless the

court can get some assurances from you that you’ve

actually gotten proper service on witnesses and that

there would be some reason for the court to convene

tomorrow, such as to hold a hearing on whether or not

there probably should be a capias or something issued.

“[The Petitioner’s Counsel]: So, my expectation was to

touch base with the investigator at the break. If there’s no . . . information that there’s actually going to be

witnesses here, I plan to conclude today. As far as the

court’s questions about the age of the case, I could give a more detailed explanation of that if you’d like. I did file a motion for a continuance, and I can give you more detail

on that if you’d like, Your Honor . . . it’s up to the court.

“The Court: Okay. Let’s get started.” (Footnote added.)

Thereafter, Ledford and the petitioner testified.

After their testimony concluded, the court inquired as

to whether there were “any additional witnesses from

the petitioner?” The petitioner’s counsel responded that

he did not have any additional witnesses at that time

and that “I expect to rest, but maybe I could have the

lunch hour to confirm that with my investigator.” The

court agreed to recess until 2 p.m. and stated that it

expected that, when the proceedings resumed, the petitioner “either has some actual confirmation that there

are witnesses under process to be here tomorrow or we

proceed with closing arguments at 2 p.m.”

Following the recess, the petitioner’s counsel advised

that “[t]he petitioner is prepared to rest at this point. Talking to [the petitioner], talking to my investigator, I think it’s best to just argue and wrap up based

on what Attorney Ledford [testified to] and what the

record reflects.”8 The respondent, the Commissioner of

Correction, rested as well, and the court heard closing

8

In addition to hearing witness testimony, the court had admitted several exhibits, including transcripts from the underlying criminal

Bobe v. Commissioner of Correction

arguments. The court thereafter rendered judgment

denying the amended petition in a May 25, 2023 memorandum of decision.

In this appeal, citing to the fourteenth amendment

to the United States constitution and article first, § 8, of the Connecticut constitution,9 the petitioner claims

that, “[u]nder the facts and circumstances of this case,

the petitioner’s due process rights were violated when

the . . . court abused its discretion by denying the request for a continuance.” He argues that this denial deprived

him of his “basic constitutional right to present witnesses at trial . . . .”

We begin our analysis by setting forth our standard of

review and relevant legal principles. The United States

Supreme Court has long recognized that “[t]he right to

offer the testimony of witnesses, and to compel their

attendance, if necessary . . . is a fundamental element

of due process of law.” Washington v. Texas, 388 U.S.

14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); see

also State v. Stephanie U., 206 Conn. App. 754, 793,

261 A.3d 748 (2021) (right to present witnesses and

evidence is fundamental right that is essential to fair

trial), cert. denied, 343 Conn. 903, 272 A.3d 1126 (2022), and cert. denied, 343 Conn. 904, 272 A.3d 1127 (2022).

“Although [a] reviewing court ordinarily analyzes a

denial of a continuance in terms of whether the court

proceeding, the arrest warrant affidavit and the petitioner’s medical records.

9

The fourteenth amendment to the United States constitution provides in relevant part that no state shall “deprive any person of life, liberty, or property, without due process of law . . . .”

Article first, § 8, of the Connecticut constitution provides in relevant part that, “[i]n all criminal prosecutions, the accused shall have a right to be heard . . . to be confronted by the witnesses against him; [and] to have compulsory process to obtain witnesses in his behalf . . . . No person shall be . . . deprived of life, liberty or property without due process of law . . . .”

The petitioner does not, however, include a separate state constitutional analysis in his brief, and, thus, he has abandoned any separate claim he may have had under our state constitution. See State v. Lueders, 225 Conn. App. 612, 634 n.21, 317 A.3d 69, cert. denied, 349 Conn. 920, 321 A.3d 402 (2024).

Bobe v. Commissioner of Correction

has abused its discretion . . . [t]his is so where the denial is not directly linked to a specific constitutional right. . . . If . . . the denial of a continuance is directly linked to the deprivation of a specific constitutional right, some

courts analyze the denial in terms of whether there has

been a denial of [such right].” (Internal quotation marks omitted.) Davis v. Commissioner of Correction, 225

Conn. App. 263, 273–74, 315 A.3d 426, cert. denied,

349 Conn. 917, 316 A.3d 741 (2024).

In the present case, even though the petitioner

“couches his claim on appeal in terms of a denial of his

constitutional right [to present witnesses at trial],10 we will review the trial court’s refusal to grant a continuance for an abuse of discretion. Even if the denial of a

motion for a continuance . . . can be directly linked to

a claim of a denial of a specific constitutional right, if the reasons given for the continuance do not support

any interference with the specific constitutional right,

the court’s analysis will revolve around whether the

10

We note that the petitioner argues, in his reply brief, that the “thesis of [his] claim is the violation of his more fundamental right to competent assistance of counsel under Strickland [v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] and its progeny.” The petitioner expressly argued in his principal brief to this court, however, that he “had a basic constitutional right to present witnesses at trial, which the court violated when it denied [his] motion for continuance” and that the court “denied the petitioner’s request to produce crucial witnesses in contravention to his right to present relevant evidence and argument.” See, e.g., State v. Jose G., 102 Conn. App. 748, 755, 929 A.2d 324 (2007) (“It is a well established principle that arguments cannot be raised for the first time in a reply brief. . . . Claims of error by an appellant must be raised in his original brief . . . so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument.” (Internal quotation marks omitted.)), aff’d, 290 Conn. 331, 963 A.2d 42 (2009). Although the petitioner explained in his principal brief that, without these witnesses, he was left with “no evidence to present in support of sixteen out of nineteen claims” and that, consequently, “[h]e could not realistically assert [that] his right to effective assistance of trial counsel was violated,” the predicate for his claim on appeal is that the court prevented his efforts to present additional witnesses at the habeas trial by denying his motion for a continuance, and that is the lens through which we view his claim.

Bobe v. Commissioner of Correction

trial court abused its discretion. . . . In other words, the constitutional right alleged to have been violated must

be shown, not merely alleged. . . .

“The determination of whether to grant a request for

a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of

discretion. . . .

“A reviewing court is bound by the principle that

[e]very reasonable presumption in favor of the proper

exercise of the trial court’s discretion will be made. . . . To prove an abuse of discretion, an appellant must show

that the trial court’s denial of a request for a continuance was arbitrary. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary

as to violate due process. The answer must be found in

the circumstances present in every case, particularly in

the reasons presented to the trial judge at the time the

request is denied. . . . In the event that the trial court acted unreasonably in denying a continuance, the reviewing court must also engage in harmless error analysis. . . .

“Among the factors that may enter into the court’s

exercise of discretion in considering a request for a

continuance are the timeliness of the request for continuance; the likely length of the delay; the age and

complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants,

witnesses, opposing counsel and the court; the perceived

legitimacy of the reasons proffered in support of the

request; the [movant’s] personal responsibility for the

timing of the request; [and] the likelihood that the denial would substantially impair the [movant’s] ability to

defend himself . . . .

“Lastly, we emphasize that an appellate court should

limit its assessment of the reasonableness of the trial

court’s exercise of its discretion to a consideration of

those factors, on the record, that were presented to the

trial court, or of which that court was aware, at the time of its ruling on the motion for a continuance.” (Citations

Bobe v. Commissioner of Correction

omitted; footnote added; internal quotation marks omitted.) State v. Stephenson, 181 Conn. App. 614, 629–31,

187 A.3d 528, cert. denied, 330 Conn. 908, 192 A.3d

427 (2018).

In the present case, the petitioner concedes in his reply brief that his “written motion for continuance is silent

regarding needing more time to subpoena additional

witnesses.” He claims, however, that it was during the

habeas proceeding, on April 24, 2023, when the court

abused its discretion and thwarted his efforts to present additional witnesses at trial. He argues that, on

that date, the “habeas court denied [his] oral request

to argue more details about the motion to continue” he

had filed one week earlier. Moreover, he posits that the

court “denied his request even to present [Andriolas] on

the following day, stating that, unless there was more

concrete information regarding subpoenaed witnesses,

the matter would conclude after the testimony of the two

present witnesses” and that, “[e]ven though the trial was scheduled for April 24 and [25, 2023], the court did [not] allow the petitioner the opportunity to use his second

day of trial to summon any more witnesses.”

Stated simply, we do not agree with the petitioner’s

characterization of the record, particularly with respect to what he says transpired at the habeas trial. In his

motion for a continuance, the petitioner’s counsel represented that he had “witnesses under subpoena and his

exhibits prepared . . . .” When the petitioner’s counsel

appeared for the first scheduled day of the habeas trial, only two of the fourteen witnesses he had listed on his

witness list were present and ready to testify. None of

the other witnesses, including Andriolas, had been subpoenaed, and, although the petitioner’s counsel advised

the court that he had his “investigator trying to track

down some of these other witnesses who have not been

cooperative,” he volunteered that, ultimately, “we might

be done [with the trial] today.”

The court expressed concerns that, despite the age of

the case, counsel had not been able to subpoena other

Bobe v. Commissioner of Correction

witnesses but explained that, if the petitioner’s counsel could provide “some assurances . . . that [he had] actually gotten proper service on witnesses and that there would

be some reason for the court to convene” the following

day, it would, in fact, do so. At that point, the petitioner’s counsel indicated that his “expectation was to touch

base with the investigator at the break. If there’s no . . . information that there’s actually going to be witnesses

here, I plan to conclude today.” (Emphasis added.) The

petitioner’s counsel then shifted his focus to “the court’s questions about the age of the case” and offered to “give a more detailed explanation of that if you’d like. I did file a motion for continuance, and I can give you more detail

on that if you’d like . . . it’s up to the court.” The court proceeded with the trial at that point.

After the petitioner’s two available witnesses testified, the court recessed and afforded the petitioner’s counsel

time to confer with his investigator for the express purpose of ascertaining whether any additional witnesses had been served with “process to be here tomorrow . . . .” Following that recess, the petitioner’s counsel advised that, after having spoken with the petitioner and his investigator, he thought it was “best to just argue and wrap up

based on what Attorney Ledford [testified to] and what

the record reflects,” so he rested the petitioner’s case. At no time prior to doing so did the petitioner’s counsel voice concerns about, let alone object to, concluding without

calling any other witnesses to testify at trial. Although the petitioner’s counsel advised the court that Andriolas had just returned to the country and that his investigator had spoken with her by phone, he did not request that he

be allowed to call her as a witness “the following day,”

as he claims. Instead, our review of the record reflects

that the petitioner’s counsel did not object to the court’s stated expectation that the trial would conclude after the break if he was not able to offer assurances that he had

any other witnesses under subpoena for the following

day; in fact, the record confirms that the petitioner’s

counsel acquiesced to it. See, e.g., No. 2 Fraser Place

Condominium Assn., Inc. v. Mathis, 225 Conn. App.

Bobe v. Commissioner of Correction

534, 547, 316 A.3d 813 (“[w]e repeatedly have held that

[a] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one” (internal quotation marks omitted)), cert. denied, 350

Conn. 905, 323 A.3d 342 (2024).

Finally, the lone reference the petitioner’s counsel

made to the court prior to the commencement of the

trial about the motion for a continuance pertained to

the court’s stated concerns about the age of the case, not the presentation of witness testimony. See id. The court

simply was not made aware, during the proceedings on

April 24, 2023, that the petitioner wished to present

any other witnesses besides Ledford and himself, let

alone that he was seeking a continuance of the trial for

this purpose.

For these reasons, our review of the petitioner’s claim

that the court abused its discretion when it denied his

motion for a continuance is predicated on the petitioner’s written motion for a continuance, which is undisputedly

“silent regarding needing more time to subpoena additional witnesses,” and the court’s ruling thereon. See

State v. Stephenson, supra, 181 Conn. App. 629–31. As

grounds for the motion, the petitioner’s counsel stated

that “the petitioner recently clarified some information

that had likely been conveyed to the [petitioner’s] counsel some time ago and the [petitioner’s] counsel is concerned that he will not have sufficient time to adequately prepare the issue now that he has a fuller understanding of the facts.” In requesting that the habeas trial be “continued to another available date later in 2023,” the

petitioner’s counsel also explained that his mother had

died “in March,” following a six month illness, but that

that he had maintained his practice and was counsel in

“several jury trials and a handful of habeas trials” during that time. Nonetheless, he indicated that “preparations

for the petitioner’s habeas trial [were] impacted by the

realities of managing the personal crisis.”

After considering the reasons the petitioner proffered

in his motion for a continuance, the court denied it. The

Bobe v. Commissioner of Correction

court found that the motion “refers vaguely to ‘issues’

and ‘information’ that need looking into,” and it declined to continue the trial. In other words, the court denied the petitioner’s motion because the reasons the petitioner

proffered in support of his request for a continuance

were speculative.

Our Supreme Court has held that “a trial court does not

act arbitrarily or unreasonably when it denies a motion

for a continuance that is supported by mere speculation.” State v. Delgado, 261 Conn. 708, 714–15, 805 A.2d

705 (2002). The petitioner’s counsel confirmed in the

motion for a continuance that he had been representing

the petitioner since 2018 and that the trial had already

been continued once before, in 2020, at which time “the

currently set dates” he was seeking to continue had been

selected. He was, nonetheless, requesting a continuance

in order to address “information” he admittedly had been

provided “some time ago” but had only just “recently

clarified,” and he was concerned that he would not have

enough time to “prepare the issue . . . .” Without specificity as to what the “information” and the “issue” to

which the information related were, it was impossible

for the court to assess the propriety of the request of

the petitioner’s counsel and to determine whether a

continuance was reasonable under the circumstances.

Indeed, the request of the petitioner’s counsel for more

time to grapple with old information, made one week

before a trial date that had been established more than

two years earlier, appears, on its face, to be untimely. See State v. Walker, 215 Conn. 1, 10, 574 A.2d 188 (1990)

(it is “well within” court’s discretion to deny “patently tardy” request for continuance). The bald, nonspecific

references set forth in the petitioner’s motion offered

nothing to explain this delinquency, let alone something

that might have served to excuse it.

To this end, we acknowledge that the petitioner’s counsel indicated that his mother had been ill for several

months and that she had died sometime “in March,”

which was the month preceding the filing of the April 17,

Bobe v. Commissioner of Correction

2023 motion. We also note, however, that the petitioner’s counsel confirmed that he “maintained his practice” and,

in fact, served as counsel in several trials during that

time. It was the preparation by the petitioner’s counsel

for this particular habeas trial that “was impacted by the realities of managing the personal crisis.” Although we

are sympathetic to the distress and impediments that

such circumstances may have on family members and

loved ones, and we readily acknowledge that such circumstances may sometimes present reasonable grounds

for the granting of a continuance, the fact remains that, in the present case, the petitioner’s counsel offered no

specificity as to what “the realities” were and how they

“impacted” his ability to work on this case among all

others. Indeed, he did not even expressly state, until just prior to trial, that his inability to clarify old “information,” and the need for more time to “prepare the [related] issue,” had anything to do with “the personal crisis.”

A court’s consideration of a request for a continuance

is necessarily informed by the facts and circumstances

of each individual case and the reasons presented for the request. See State v. Stephenson, supra, 181 Conn. App.

629–31. We conclude that the speculative nature of the

reasons advanced by the petitioner’s counsel in support

of the motion for a continuance in the present case gave

the habeas court no reason to grant the motion. See State v. Delgado, supra, 261 Conn. 714–15; State v. Davis,

135 Conn. App. 385, 395–96, 42 A.3d 446, cert. denied,

305 Conn. 916, 46 A.3d 171 (2012). As such, with respect

to the petitioner’s claim that the habeas court acted

unreasonably in denying his motion for a continuance,

we conclude that he has failed to demonstrate that his

claim involves an issue that is debatable among jurists

of reason, could be resolved in a different manner, or

deserves encouragement to proceed further.

III

Finally, we address the petitioner’s claim that the

habeas court improperly concluded that he failed to

prove that Ledford rendered ineffective assistance at

Bobe v. Commissioner of Correction

his criminal trial. Abandoning all but one of the nineteen bases he presented to the habeas court as support

for this claim,11 the petitioner argues on appeal that

Ledford was ineffective solely because he “present[ed]

an inflammatory and prejudicial defense” on his behalf

by offering evidence that the petitioner had tested positive for human immunodeficiency virus (HIV) “in a case

in which the petitioner was accused of homosexual child

sexual assault.” The respondent counters that the habeas

court properly concluded that the petitioner failed to

establish his claim of ineffective assistance of criminal trial counsel. We agree with the respondent.

The following additional facts and procedural history

are relevant to our resolution of this claim. Ledford’s

theory of defense at the criminal trial was based on the

premise that, because the petitioner was HIV positive

and the victim was not, the victim’s claim that the petitioner had unprotected sex with him on numerous occasions was doubtful. This theory was based on Ledford’s

“understanding [that] there would be a good chance that

[the victim] would’ve become HIV positive” if what the

victim was claiming was true. Ledford described it as a

“sort of commonsense” theory.

Ledford testified that, at the time he represented the

petitioner, he had thirteen or fourteen years of experience as a criminal practitioner and that he had handled

approximately four or five direct sexual assault cases

during that time. He explained that he had met with the

petitioner many times before the trial, that the petitioner consistently maintained that the allegations against him

were untrue, and that the petitioner had rejected two

plea offers and insisted on going to trial.

In preparation for the trial, Ledford and his investigator, Eric Eichler, attempted to procure from the

petitioner “names and addresses—things we needed

to investigate, things we needed to look into,” and

11

See, e.g., Joseph v. Commissioner of Correction, 153 Conn. App. 570, 574, 102 A.3d 714 (2014) (deeming claims not briefed on appeal to be abandoned), cert. denied, 315 Conn. 911, 106 A.3d 304 (2015).

Bobe v. Commissioner of Correction

“[e]verything that [the petitioner] gave was really

vague.” For example, the petitioner told Ledford and

Eichler that they needed to investigate “the old man

with the eyes, and he’s down by the beach.” As Ledford

understood it, the petitioner was claiming that this man

was sexually assaulting the victim. The petitioner also

discussed “certain people” with Ledford, but “he couldn’t name them, didn’t know where they lived.” Even so,

Ledford and his investigator made efforts to find out

what they could with the limited information they had.

In fact, Eichler went to the beach to try to find “the old man with the eyes,” but he was unsuccessful.

Ledford testified that the theory of defense he ultimately pursued materialized from his own review of

the police reports and the records that he had, which

revealed that the victim was not HIV positive. When it

“came out that [the petitioner] was HIV positive,” and

Ledford considered the victim’s claims that he and the

petitioner had had unprotected sex multiple times, he

thought “there would be a good chance that [the victim]

would’ve become HIV positive [as well] and, thus, creating a defense.”

Ledford also testified that, prior to trial, he had considered pursuing a third-party culpability defense related

to the victim’s brother, who also had been charged with

sexually assaulting both his younger sister and the victim. The petitioner, however, had been having a consensual sexual relationship with the victim’s brother,

who was then an adult, and the victim’s brother also

had been included on the state’s witness list. Ledford

stated that, even though the petitioner’s relationship

with the victim’s brother was consensual, the victim’s

brother was going to testify that “he’d been groomed”

by the petitioner.12 Ledford believed, therefore, that

the collective testimony of the victim’s brother and the

victim would demonstrate a pattern by the petitioner of

12

Ledford explained that grooming is a “process. It’s befriending [children], maybe giving them alcohol, getting them things—ready to be more open to a relationship and, eventually, sexual intercourse.”

Bobe v. Commissioner of Correction

grooming younger boys because it would have established

that the petitioner bought each of them alcohol, had taken each of them on walks and had spent time alone with each

of them. As such, although he was “ready to start to go

down that road,” when the prosecutor decided not to call

the victim’s brother as a witness, Ledford decided not to call him either. He was concerned that, if he pursued the third-party culpability defense, the “grooming evidence”

that would invariably be presented to the jury if the

victim’s brother testified would be very damaging to the

petitioner’s case. Thus, the “HIV [defense] was what [he] had left.” Ledford thought it “was probably the clearer

path, and, strategically, that’s the one I thought was

the best to go with,” so that is the defense he pursued.

In so doing, Ledford reviewed the petitioner’s medical

records, and he consulted with and called one of the petitioner’s treating physicians, Karin Michels-Ashwood,

to testify at trial. Michels-Ashwood, who testified as

an expert witness, stated that the petitioner was HIV

positive and that it was more probable than not that the

HIV would have been transferred to the victim if the

petitioner had had unprotected sex with him. Although

Ledford acknowledged that there was not a 100 percent

chance of transmittal from unprotected sex, he “thought

there was a good likelihood and enough to create a reasonable doubt based on my general understanding of

the disease.” Moreover, Ledford recognized that the

evidence in support of the defense “might” have been

inflammatory, but “[i]t was really all [he] thought [they] had left.” Ledford further testified that he had informed the petitioner about the defense and that the petitioner

understood it.

The petitioner testified that he had spoken with Ledford and an investigator about his case. Although he

testified that he had provided Ledford with names of

potential witnesses to contact because he believed they

could testify in his favor, he could not identify anyone

by name. He also confirmed that he would go on walks

with the victim, which included walking to the park and

Bobe v. Commissioner of Correction

the beach before returning to the apartment where the

petitioner was living with the victim and his family.

The petitioner maintained his innocence and described

the allegations against him as a “plot that the [victim’s] mother did.”

The habeas court rejected the petitioner’s ineffective assistance of counsel claim. In its May 25, 2023

memorandum of decision, the court concluded that the

petitioner failed to establish that Ledford’s pursuit of a defense predicated on the petitioner’s HIV positive status (1) constituted deficient performance and (2) impacted

the outcome of the case. It reasoned that, “[i]n the present case, the petitioner professed his innocence and was

not interested in discussing any type of plea agreement,

so counsel’s hands were tied, although he did not have

much to work with. The victim was going to testify, had

provided detailed accounts of the sexual encounters, and

one of his siblings was going to testify as a corroborating constancy witness. There was ample evidence that

the petitioner had access to the child. He even admitted

taking regular walks with him while watching the child

on behalf of his mother. Sometimes, the [choice] of the

‘best’ defense theory is limited by the circumstances. . . . The petitioner simply told counsel that, ‘I didn’t do it,’ claimed that [the victim’s] mother was fabricating the

allegations in order to retaliate against him for kicking the family out of his apartment and made vague references to an unknown male he was unable to name as the

possible perpetrator. Neither in his discussions with

defense counsel or in his testimony before this court was the petitioner able to offer any substantive evidence,

such as a third party, an alibi, or other information,

which could separate him from the allegations against

him. Under the circumstances, counsel attempted to use

the one piece of information he had that might be able

to indirectly ‘prove’ the alleged acts did not happen.”

(Citation omitted.)

For these reasons, the court found that it was not

“unreasonable for [Ledford] to have tried to make a

Bobe v. Commissioner of Correction

defense out of the only plausible evidence that could

have ‘separated’ [the petitioner] from the victim.” In

fact, the court “strain[ed] to figure out how one could

possibly determine that offering the petitioner’s HIV

medical status under the guise that a transmissible disease should have been transmitted to the victim if the

claims made by the victim were true was so inflammatory

as to render the choice an unreasonable one.” (Emphasis

in original.) It also found that the petitioner failed to establish that “disclosing the HIV status impacted the

outcome of the case.”

Before we address the substance of the petitioner’s

ineffective assistance of counsel claim, we first set forth our standard of review and the general principles governing such a claim. “Our standard of review of a habeas

court’s judgment on ineffective assistance of counsel

claims is well settled. In 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 . . . .

“[I]t is well established that [a] criminal defendant

is constitutionally entitled to adequate and effective

assistance of counsel at all critical stages of criminal

proceedings. . . . This right arises under the sixth and

fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . It is axiomatic that the right to counsel is the right to the effective assistance of counsel. . . .

“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)]. 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. . . .

Bobe v. Commissioner of Correction

To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. . . . Because both

prongs . . . must be established for a habeas petitioner

to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. . . .

“In order for a petitioner to prevail on a claim of ineffective assistance on the basis of deficient performance, he must show that, considering all of the circumstances,

counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional norms. . . . In any case presenting an ineffectiveness claim, the performance inquiry must be whether

counsel’s assistance was reasonable considering all the

circumstances. Prevailing norms of practice as reflected

in American Bar Association standards and the like,

e.g., ABA Standards for Criminal Justice . . . are guides to determining what is reasonable, but they are only

guides. No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of

legitimate decisions regarding how best to represent a

criminal defendant. Any such set of rules would interfere with the constitutionally protected independence

of counsel and restrict the wide latitude counsel must

have in making tactical decisions. . . .

“[J]udicial scrutiny of counsel’s performance must be

highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or

adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel

was unreasonable . . . . 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

Bobe v. Commissioner of Correction

evaluation, a court must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound

trial strategy. . . . Indeed, our Supreme Court has recognized that [t]here 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. . . . [A] reviewing court is required not simply to give [the trial attorney] the benefit of the doubt . . . but to affirmatively entertain the range of possible reasons . . . counsel may have had for proceeding as [he] did . . . .” (Emphasis in original; internal quotation marks omitted.) Morales v. Commissioner of Correction, 220

Conn. App. 285, 304–306, 298 A.3d 636, cert. denied,

348 Conn. 915, 303 A.3d 603 (2023).

Applying the foregoing principles, we agree with the

habeas court’s conclusion that, under the facts and circumstances of this case, Ledford’s decision to predicate

the petitioner’s defense on the fact that the petitioner

was HIV positive and the victim was not, was sound trial

strategy and that the petitioner failed to prove otherwise. Ledford, an experienced criminal practitioner, testified that he investigated what he could, considered the

evidence and weighed different avenues of defense, and

that, after doing so, he determined that this presented

not just the “clearer path” to a possible acquittal, but the only viable defense he could pursue under the circumstances. Although he acknowledged that there was not

a 100 percent chance of transmittal from unprotected

sex, he thought there was enough of a chance to create

a reasonable doubt and that pursuing the defense was

therefore worthwhile.

“[S]trategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after

less than complete investigation are reasonable precisely to the extent that reasonable professional judgments

Bobe v. Commissioner of Correction

support the limitations on investigation.” (Internal quotation marks omitted.) Love v. Commissioner of Correction, 223 Conn. App. 658, 669, 308 A.3d 1040, cert.

denied, 348 Conn. 958, 310 A.3d 960 (2024). Ledford’s

decisions to devise and pursue the defense he presented

at the habeas trial were plainly strategic and tactical

decisions, and, thus, they are presumed reasonable unless proven otherwise. See Morales v. Commissioner of Correction, supra, 220 Conn. App. 306.

The petitioner argues that Ledford’s strategic decisions regarding his defense are not entitled to deference in this case because (1) Ledford’s investigation

into the defense was inadequate and (2) his decision to

introduce the evidence regarding the petitioner’s HIV

status was “not based on a calculated decision, but on the uninformed opinion that there was not a better defense

available to the petitioner.” He posits that Ledford’s

“decision to not call third-party culpability witnesses

at trial and to not pursue other avenues of defense are

directly tied to his premature decision to pursue the

HIV [transmissibility] defense, which was grounded in

an incomplete investigation.”

The petitioner’s argument is belied by the record.

Although Ledford did testify as to his “understanding”

regarding HIV transmissibility, and he described the

defense as based on “common sense,” the fact remains that his “commonsense” understanding was well informed.

Ledford reviewed the petitioner’s medical records and

explored the propriety of the theory of defense with a

medical professional before proceeding with it. Moreover, and more importantly, Michels-Ashwood expressly

testified, as an expert at trial, that it was more probable than not that the HIV would have been transferred to the

victim if the petitioner had unprotected sex with him as

the victim had claimed. In other words, Michels-Ashwood

provided direct support for the theory of defense Ledford investigated and pursued. Moreover, Ledford explained

that pursuing a third-party culpability defense and calling the victim’s brother to testify at trial in support

Bobe v. Commissioner of Correction

thereof would have opened the door to the issue of grooming, which he determined would have been damaging

to the petitioner’s case. As such, the defense Ledford

pursued was, in his determination, “what [he] had left.”

These are precisely the types of “judgment calls that we

consistently have declined to second guess.” (Internal

quotation marks omitted.) Morales v. Commissioner of

Correction, supra, 220 Conn. App. 314.

On the basis of our review of the record, we conclude

that the petitioner failed to demonstrate that his ineffective assistance of counsel claim involved issues that

are debatable among jurists of reason, could have been

resolved in a different manner, or deserves encouragement to proceed further. The petitioner failed to present sufficient evidence to overcome the presumption that

Ledford’s decision to pursue a defense predicated on the

fact that the petitioner was HIV positive and the victim

was not was sound trial strategy.13 Indeed, we agree

with the habeas court’s determination that this was the

“only plausible evidence that could have ‘separated’ [the petitioner] from the victim.”

In summary, because the petitioner has failed to show

that his claims on appeal involve issues that are debatable among jurists of reason, that a court could resolve

the issues in a different manner, or that the issues are

adequate to deserve encouragement to proceed further,

the habeas court did not abuse its discretion in denying

the petition for certification to appeal with respect to

these claims.

The appeal is dismissed.

In this opinion the other judges concurred.

13

In light of this conclusion, we need not address the prejudice prong of the Strickland test. See, e.g., Fair v. Commissioner of Correction, 205 Conn. App. 282, 294, 256 A.3d 163 (“[i]n its analysis, a reviewing court may look to the performance prong or to the prejudice prong [of the Strickland test], and the petitioner’s failure to prove either is fatal to a habeas petition” (internal quotation marks omitted)), cert. denied, 338 Conn. 910, 258 A.3d 1280 (2021).