************************************************
The “officially released” date that appears near the
beginning of an opinion is the date the opinion will be
published in the Connecticut Law Journal or the date it
is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports. In the event
of discrepancies between the advance release version of
an opinion and the version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is
to be considered authoritative.
The syllabus and procedural history accompanying an
opinion that appear in the Connecticut Law Journal and
subsequently in the Connecticut Reports or Connecticut
Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced
or distributed without the express written permission of
the Commission on Official Legal Publications, Judicial
Branch, State of Connecticut.
************************************************
Freitag v. Commissioner of Correction
KYLE FREITAG v. COMMISSIONER
OF CORRECTION
(AC 47920)
Moll, Clark and Wilson, Js.
Syllabus
The respondent, the Commissioner of Correction, appealed, on the granting of certification, from the habeas court’s judgment granting in part the petitioner’s petition for a writ of habeas corpus. The respondent claimed, inter alia, that the court improperly concluded that the ineffective assistance the petitioner’s trial counsel, O, rendered by incorrectly advising the petitioner that his codefendant was not willing to testify if the case proceeded to trial prejudiced the petitioner. Held:
The habeas court properly concluded that the petitioner was prejudiced by O’s incorrect advice because it found that, but for the deficient advice, the petitioner would have rejected a plea offer and proceeded to trial.
Argued April 21—officially released July 28, 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, Bhatt, J.; judgment granting in
part and denying in part the petition, from which the
respondent, on the granting of certification, appealed
to this court. Affirmed.
Alexander A. Kambanis, deputy assistant state’s attorney, with whom, on the brief, were Paul J. Ferencek,
state’s attorney, Angela Macchiarulo, supervisory assistant state’s attorney, and Jo Anne Sulik and Michael
Proto, senior assistant state’s attorneys, for the appellant (respondent).
Hope J. Estrella, deputy assistant public defender,
for the appellee (petitioner).
PER CURIAM. The respondent, the Commissioner
of Correction, appeals from the judgment of the habeas
court granting in part and denying in part the amended
petition for writ of habeas corpus filed by the petitioner, Kyle Freitag. The habeas court concluded that the
petitioner’s trial counsel, Francis O’Reilly, rendered
Freitag v. Commissioner of Correction
ineffective assistance in connection with his advice to
the petitioner to accept a plea deal offered by the state. On appeal, the respondent claims that the habeas court
improperly concluded that O’Reilly rendered ineffective assistance of counsel by (1) incorrectly advising the petitioner that his codefendant, Terrence Baxter, was
not willing to testify if the case proceeded to trial and (2) misadvising the petitioner concerning the viability
of a self-defense claim. We affirm the judgment of the
habeas court.
Our decision in the petitioner’s prior habeas appeal in
this matter set forth the following facts and procedural
history. “[In 2012, the petitioner] was charged with,
[inter alia] murder, attempted murder, [and] two counts
of assault [in the] first degree . . . . The allegations [underlying those charges] were that the petitioner and [his]
codefendant . . . Baxter, were driving in the petitioner’s minivan on Fort Point Road in Norwalk on October 30,
2012. . . . Baxter was driving, and the petitioner was
in the front passenger seat. At some point, the van
came upon a scooter being driven in the same direction
along the right-hand side of Fort Point Road by a Dajon
Johnson, with a Bancroft Daley riding behind him as a
passenger. The petitioner did not know the driver but
was familiar with . . . Daley from prior interactions on
the street. The two vehicles rode in the same direction
relatively near each other for some period of time, when, according to one independent witness, the van suddenly
accelerated to pull up alongside of the scooter. The petitioner’s claim as to this portion of the incident is that the scooter was behind his vehicle and sped up alongside. In
any event, when the van and the scooter were beside each
other, the petitioner claims to have seen [Daley] reaching toward his waist area. The petitioner pulled out a .32
caliber pistol, reached out of the passenger window, and
shot both parties. . . . Baxter immediately sped off, but the two were captured when the van was stopped about
ten minutes later on the highway. According to [the]
police, the petitioner made several rather unrepentant
statements while in custody about shooting the victims
Freitag v. Commissioner of Correction
because it was me or them. . . . Johnson died as a result of his gunshot wounds, and . . . Daley was left paralyzed from the mid-back down. The only weapon found in the
possession of either victim was a three inch folding knife that was apparently found inside . . . Daley’s pocket.
“Attorney Howard Ehring, a public defender, initially
appeared as the petitioner’s criminal defense counsel. In November, 2014, O’Reilly, appointed as assigned counsel,
filed an appearance in lieu of Ehring.
“[The petitioner’s criminal matter was] on the firm
jury list, and . . . was scheduled to begin trial, when [it was] called on the docket [on] January 14, 2015. Following some discussions, an offer involving guilty pleas to
the murder and assault [in the] first degree charges in
exchange for a judicially indicated sentence of a minimum of [twenty-five] years to a maximum of [thirty
years], followed by [ten] years of special parole, with
a right to argue, was conveyed to the petitioner. That
offer was initially rejected by the petitioner, through
[O’Reilly], on the record. While the [trial] court was
explaining the withdrawal of the offer and its impact
on future negotiations, the petitioner changed his mind
and agreed to enter pleas of guilty to one count of murder in violation of General Statutes § 53a-54a (a), and one
count of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). Following the canvass, [the
court accepted the pleas, and] the matter was continued
to March 11, 2015, for sentencing. On February [17,
2015], however, Attorney [Norman A.] Pattis filed an
appearance in lieu of . . . O’Reilly. On April 7, 2015, the petitioner appeared for sentencing represented by . . .
Pattis, where, after hearing from all parties, the court
imposed a sentence of [thirty] years to serve, followed
by [ten] years of special parole on the murder charge,
and [twenty] years concurrent on the assault charge,
for a total effective sentence of [thirty] years, followed by [ten] years of special parole. . . .
“On September 15, 2015, the petitioner, representing himself, filed a petition for a writ of habeas corpus.
Freitag v. Commissioner of Correction
On April 9, 2018, after assigned habeas counsel had
appeared on his behalf, the petitioner filed his operative, two count amended petition . . . . In count one of the
amended petition, the petitioner asserted a claim of ineffective assistance of counsel against O’Reilly, alleging, inter alia, that O’Reilly had (1) incorrectly advised the petitioner that his codefendant, Baxter, had refused, or
would refuse, to testify at his criminal trial, and (2) failed to properly advise the petitioner regarding potential
defenses available to him. The petitioner further alleged that, but for O’Reilly’s deficient performance, he would
not have pleaded guilty but, rather, would have asserted
his right to a trial. In count two of the amended petition, the petitioner asserted a claim of ineffective assistance of counsel against Pattis, alleging, inter alia, that Pattis had failed (1) to present adequate mitigation evidence
at sentencing, and (2) to file a motion to withdraw his
guilty pleas predicated on the ineffective assistance of
counsel rendered by O’Reilly. The petitioner further
alleged that, but for Pattis’ deficient performance, it
was reasonably probable that he would have received a
lesser sentence. On April 30, 2018, the respondent . . .
filed a return, leaving the petitioner to his proof as to his material allegations.
“The matter was tried to the habeas court, Newson,
J., over the course of three days in July, August and
November, 2018. On February 26, 2019, the court
issued a corrected memorandum of decision1 denying
both counts of the amended petition. Thereafter, the
petitioner filed a petition for certification to appeal from the judgment, which the court granted.” (Footnote in
original; footnotes omitted; internal quotation marks
omitted.) Freitag v. Commissioner of Correction, 208
Conn. App. 635, 638–41, 265 A.3d 928 (2021).
On appeal, this court reversed in part the judgment
of the habeas court. This court concluded that Judge
1
“The court issued an original memorandum of decision on February 22, 2019. On February 26, 2019, the court issued the corrected memorandum of decision, which corrected certain typographical errors.” Freitag v. Commissioner of Correction, 208 Conn. App. 635, 641 n.5, 265 A.3d 928 (2021).
Freitag v. Commissioner of Correction
Newson’s conclusion that the petitioner had failed to
establish that O’Reilly rendered ineffective assistance
of counsel was predicated on a clearly erroneous factual
finding, namely, that O’Reilly had advised the petitioner during a meeting prior to the plea hearing “that
it was not likely that Baxter would testify.” (Emphasis
omitted.) Id., 653. In reaching that conclusion, this
court explained that the only witnesses who testified
concerning the meeting in question were the petitioner
and his father [Donald Freitag], both of whom testified
“that O’Reilly . . . told them that Baxter would not testify,” and O’Reilly, who “testified that he did not recall there being any discussion during that meeting about
Baxter’s willingness to testify.” (Emphasis in original.) Id. This court concluded that a new trial was necessary
on the petitioner’s claims that O’Reilly rendered ineffective assistance of counsel because the substance of
his advice about Baxter’s willingness to testify was a
disputed factual issue that was relevant to those claims. Id., 654, 656. This court also concluded that a new trial was required on the petitioner’s claim that Pattis rendered ineffective assistance of counsel by failing to file a motion to withdraw the guilty plea because that claim
was predicated on the premise “that his guilty pleas were not made knowingly, intelligently, or voluntarily in light of O’Reilly’s ineffective assistance of counsel . . . .” Id., 657. Accordingly, this court remanded the case for a
new trial on those claims.2 Id., 662–63.
On remand, the case was retried before the habeas
court, Bhatt, J., on August 15 and December 6, 2023.
The petitioner testified on his own behalf and presented
testimony from Ehring, O’Reilly, Pattis, and his father.
In addition, the petitioner submitted numerous exhibits,
including, without objection, the complete transcript
of the first habeas trial before Judge Newson. That
transcript included the testimony of Baxter and Francis
2
This court affirmed the judgment with respect to the habeas court’s denial of the petitioner’s claim that Pattis rendered ineffective assistance by failing to present adequate mitigation evidence at sentencing. Freitag v. Commissioner of Correction, supra, 208 Conn. App. 662.
Freitag v. Commissioner of Correction
DiScala, Baxter’s counsel from his own criminal case
stemming from the shooting at issue.
The petitioner presented evidence that, from the time
he was detained by the police approximately ten minutes after the shooting until the time of the plea hearing, he had maintained that he acted in self-defense and
intended to pursue that defense at trial. The basis for
the petitioner’s self-defense claim was his belief that the victims were targeting him in retaliation for his testimony on behalf of AJ Brown, the petitioner’s longtime
friend who was acquitted of an unrelated murder in 2009
after he claimed that he acted in self-defense. Following Brown’s acquittal, the police notified the petitioner that his name was on a “hit list” created by the family of the person that Brown had killed. In addition, several
associates of the petitioner were killed, including Brown and another longtime friend of the petitioner who had
testified at Brown’s trial. The petitioner testified that, immediately before the shooting, he saw Daley reach for
a chrome object that the petitioner thought was a gun.3
The petitioner believed that Baxter’s testimony was
critical to his self-defense claim and, until the day of the plea hearing, had understood that Baxter was willing to
testify on his behalf. He testified that he pleaded guilty only because O’Reilly told him just three minutes before
the start of the plea hearing that Baxter was no longer
willing to testify. Shortly after he pleaded guilty, however, the petitioner learned that Baxter was, in fact, still willing to testify. The petitioner retained Pattis for the purpose of withdrawing his guilty plea but ultimately
did not move to withdraw the plea.4
On May 8, 2024, the court issued a memorandum
of decision granting in part the petition. The court
3
The evidence admitted during the habeas trial indicates that no gun was recovered from the scene, but that a folding knife was found in the pocket of one of the victims.
4
The petitioner testified that Pattis advised him that it would be better to pursue the withdrawal of the guilty plea by way of a habeas petition rather than a motion to withdraw. Pattis testified that he did not believe he advised the petitioner in that regard but, rather, that he had
Freitag v. Commissioner of Correction
concluded that O’Reilly rendered ineffective assistance of counsel by incorrectly advising the petitioner that Baxter was unwilling to testify and by improperly advising
the petitioner regarding the viability of his self-defense claim, and, therefore, that the petitioner established both of his claims as to O’Reilly. The court first found that
Baxter was willing to testify at the petitioner’s criminal trial. The court found DiScala, who testified that Baxter was willing to testify on the petitioner’s behalf and that he and Baxter met with O’Reilly to discuss Baxter’s testimony, to be “extremely persuasive.” The court noted that
DiScala’s credibility “cannot be . . . impugned” because he “ha[d] no motivation to misrepresent Baxter’s position or the subject of the conversation between Baxter, himself
and . . . O’Reilly . . . .” The court found that O’Reilly nevertheless told the petitioner shortly before the plea
hearing that Baxter was not willing to testify. The court concluded that O’Reilly’s advice in this regard “was
incorrect and constitutes deficient performance.” (Footnote omitted.) With respect to the claim that O’Reilly
performed deficiently by misadvising the petitioner as
to the viability of his self-defense claim, the court found that O’Reilly “did not believe [that] Baxter was necessary or important to the defense of self-defense,” and that
O’Reilly’s assessment in that regard was unreasonable
because “Baxter’s testimony would have been extremely
helpful to corroborate [the petitioner’s] testimony and
also to establish that [the petitioner] could not retreat with complete safety . . . .” Finally, the court concluded that the petitioner was prejudiced by O’Reilly’s deficient performance. The court found that “[t]his is not a case
where [the petitioner] changed his plea because he was
convinced of the strength of the state’s case, or because he believed he would lose at trial or receive a hefty sentence and wanted to cut his losses. The court has no doubt that [the petitioner] intended to go to trial and only changed advised the petitioner not to move to withdraw his plea because he had concerns about the self-defense claim and thought that the petitioner would receive a much longer sentence if convicted after trial.
Freitag v. Commissioner of Correction
his mind because . . . O’Reilly told him that Baxter would not testify.”
The court went on to reject the petitioner’s claim that
Pattis rendered ineffective assistance of counsel by failing to file a motion to withdraw the guilty plea. The
court found that “[t]he credible testimony establishes
that . . . Pattis believed that [the petitioner] was innocent but did not believe that he would get a better result after a trial,” and that Pattis “did not seek a motion to withdraw because he was not instructed to do so by [the
petitioner].” The court noted that “[t]he calculus facing . . . Pattis was entirely different than that facing . . . O’Reilly” because, “[a]t the time . . . Pattis represented [the petitioner], a plea had already been entered and [the petitioner] was subject to a much shorter sentence than
he previously was.” The court concluded that, “[u]nder
those circumstances, [it could not] conclude that . . . Pattis performed deficiently.” The court therefore granted
in part the amended petition, vacated the petitioner’s
convictions, and ordered the case restored to the trial
court docket. The respondent subsequently filed a petition for certification to appeal, which the habeas court
granted.
On appeal, the respondent concedes that, in light of
the habeas court’s factual findings and underlying credibility determinations, the court properly concluded that O’Reilly performed deficiently in advising the petitioner that Baxter was not willing to testify. The respondent
claims, however, that the habeas court erred in concluding that O’Reilly’s inaccurate advice about Baxter’s
willingness to testify prejudiced the petitioner. The
respondent also claims that the court erred in concluding that O’Reilly’s advice regarding the viability of a
self-defense claim constituted deficient performance.
We conclude that the habeas court properly concluded
that the petitioner was prejudiced by O’Reilly’s incorrect advice regarding Baxter’s willingness to testify. Because that conclusion is sufficient to uphold the habeas court’s judgment granting the amended petition, we need not
Freitag v. Commissioner of Correction
address the respondent’s claim that the court erred in
concluding that O’Reilly performed deficiently in his
advice about the viability of the self-defense claim.
The following legal principles and standard of review
are relevant to this appeal. “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.” (Internal quotation marks omitted.) Humble v. Commissioner of
Correction, 180 Conn. App. 697, 703–704, 184 A.3d
804, cert. denied, 330 Conn. 939, 195 A.3d 692 (2018).
“[T]he governing legal principles in cases involving
claims of ineffective assistance of counsel arising in
connection with guilty pleas are set forth in Strickland
[v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984)] and Hill [v. Lockhart, 474 U.S. 52,
106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)]. [According to]
Strickland, [an ineffective assistance of counsel] claim
must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of
reasonableness, and (2) counsel’s deficient performance
prejudiced the defense because there was a reasonable
probability that the outcome of the proceedings would
have been different had it not been for the deficient
performance. . . . Under . . . Hill . . . which . . . modified the prejudice prong of the Strickland test for claims of
ineffective assistance when the conviction resulted from
a guilty plea, the evidence must demonstrate that there
is a reasonable probability that, but for counsel’s errors, [the petitioner] would not have pleaded guilty and would
have insisted on going to trial.” (Emphasis omitted;
internal quotation marks omitted.) Cruz v. Commissioner of Correction, 206 Conn. App. 17, 24, 257 A.3d
399, cert. denied, 340 Conn. 913, 265 A.3d 926 (2021).
Notably, the prejudice analysis under Hill is not
“reduced to a comparison between the sentence imposed
pursuant to a plea bargain with the likely outcome of a
Freitag v. Commissioner of Correction
trial.” Carraway v. Commissioner of Correction, 144
Conn. App. 461, 474, 72 A.3d 426 (2013), appeal dismissed, 317 Conn. 594, 119 A.3d 1153 (2015). Although
“[t]he prospect of an acquittal, or a more favorable sentence after a trial, is clearly relevant in considering
whether counsel’s advice with respect to a plea offer
would have changed had he not performed deficiently”;
id.; “such a prediction is not dispositive in resolving
an ineffective assistance claim of this kind.” Id., 475.
Rather, “the likelihood of an acquittal or a shorter sentence is a factor to be considered in assessing whether an attorney who had found different evidence or considered
advancing an affirmative defense would have advised
his client to reject a plea offer and go to trial . . . [but] [t]he bottom line issue that must be resolved is whether, but for counsel’s allegedly deficient performance, the
petitioner would have insisted on a trial.” (Citation
omitted.) Id., 475–76.
In the present case, the court properly concluded that
the petitioner was prejudiced by O’Reilly’s incorrect
advice regarding Baxter’s willingness to testify because
it found that, but for that deficient advice, the petitioner “would have continued to reject the [plea] offer and
proceeded to trial . . . .” In support of that finding, the court expressly credited the petitioner’s testimony “that [he] was insistent on a trial and only changed his mind
in the midst of rejecting the offer because he believed
that Baxter, who was necessary to his self-defense claim, would no longer be testifying for him.” The court further found that “[t]he testimony from [the petitioner] and his father [was] consistent and credible that [the petitioner] intended to reject the offer that day, that . . . O’Reilly told him that Baxter would not testify and that this was
surprising to the petitioner and his family.” The court
found that the petitioner still intended to reject the offer after the meeting with O’Reilly, but that, “in the midst
of the plea canvas, he changed his mind and credibly
testified that he did so because he believed that, without Baxter, he would be unable to corroborate his defense
of self-defense and he was left with no alternative.”
Freitag v. Commissioner of Correction
The court noted that the petitioner’s testimony in this
regard was supported by, among other things: Ehring’s
testimony that the petitioner intended to pursue a selfdefense claim and that Baxter “was important to the
defense” and “ ‘would’ve been persuasive to a jury’ ”; the petitioner’s father, who corroborated the petitioner’s
testimony that he intended to reject the plea and go to
trial and that he changed his plea just minutes after
O’Reilly told him that Baxter was no longer willing to
testify; and Pattis’ testimony that he and the petitioner discussed Baxter’s availability as a witness between the
plea and sentencing. The court found that “[t]his is not
a case where [the petitioner] changed his plea because
he was convinced of the strength of the state’s case, or
because he believed he would lose at trial or receive a hefty sentence and wanted to cut his losses.” The court stated
that it “ha[d] no doubt that [the petitioner] intended to go to trial and only changed his mind because . . . O’Reilly told him that Baxter would not testify.”
The respondent does not challenge any of the court’s
factual findings or claim that the court applied the wrong legal standard. Rather, the respondent claims that, as
a matter of law, the court erred in concluding that the
petitioner was prejudiced by O’Reilly’s deficient performance because the petitioner did not move to withdraw
his guilty plea after retaining Pattis. The respondent
contends that “the petitioner necessarily failed to demonstrate that, had he received fully competent advice,
he would have rejected the plea offer and insisted on
going to trial because, when he had the opportunity to
pursue that avenue before sentencing, he eschewed such
an effort.”5
The respondent does not cite any authority that supports the proposition that a petitioner who retains a new
5
The respondent’s argument that the petitioner necessarily could not prevail on his claim because he did not avail himself of the opportunity to withdraw his plea prior to sentencing is akin to a waiver or procedural default defense. Specifically, the respondent does not claim that the court made clearly erroneous factual findings or applied the wrong legal standard but, rather, that the petitioner’s failure to assert his
Freitag v. Commissioner of Correction
attorney after entering his guilty plea but does not move to withdraw the plea prior to sentencing is precluded
from establishing in a subsequent habeas proceeding that
he was prejudiced by his counsel’s deficient advice.6 The prejudice inquiry in the present case ultimately came
down to the factual question of whether the petitioner
would have pleaded guilty if not for O’Reilly’s inaccurate advice regarding Baxter’s willingness to testify. See
Barlow v. Commissioner of Correction, 343 Conn. 347,
356–57, 273 A.3d 680 (2022) (although “question of
claim earlier precluded him from prevailing before the habeas court. See, e.g., Saunders v. Commissioner of Correction, 343 Conn. 1, 17, 272 A.3d 169 (2022) (noting that procedural default is forfeiture rule that applies when petitioner “fail[s] to make the timely assertion of a right” (internal quotation marks omitted)); Fine v. Commissioner of Correction, 147 Conn. App. 136, 143, 81 A.3d 1209 (2013) (“[w]aiver is the intentional relinquishment or abandonment of a known right” (internal quotation marks omitted)). The respondent, however, did not raise either defense before the habeas court. Thus, we have no occasion to consider whether procedural default or waiver may apply under the current circumstances, namely, when a petitioner is aware of the factual basis for a claim that his counsel rendered ineffective assistance in connection with his guilty plea and was represented by a different attorney at sentencing. See, e.g., Milner v. Commissioner of Correction, 63 Conn. App. 726, 734, 779 A.2d 156 (2001) (procedural default is affirmative defense that must be alleged by respondent in return).
6
Contrary to the respondent’s contention, Cruz v. Commissioner of Correction, supra, 206 Conn. App. 17, does not support his argument. In Cruz, the habeas court found that the petitioner in that case was not credible in testifying that he would not have pleaded guilty but for his counsel’s advice. Id., 23–24. In support of that finding, the court relied in part on the fact that the petitioner had filed a motion to withdraw his plea but did not pursue that motion on the advice of replacement counsel who was appointed to represent him at sentencing. Id., 23. Although the court in Cruz may have determined, after considering the evidence presented in that case, that the petitioner’s failure to pursue his motion to withdraw undermined his credibility regarding the effect that his counsel’s advice had on his decision to plead guilty, the court in the present case found otherwise. Nothing in Cruz suggests that we intended that decision to preclude a habeas court from exercising its customary role to evaluate the credibility of witnesses. On the contrary, Cruz reiterated the well established principle that the habeas court “is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony . . . [and] [t]his court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . .” (Internal quotation marks omitted.) Id., 24–25.
Freitag v. Commissioner of Correction
whether a habeas petitioner’s sixth amendment rights
have been violated is a mixed determination of law and
fact that requires the application of legal principles to the historical facts of [the] case . . . the specific underlying question of whether there was a reasonable probability
that a habeas petitioner would have accepted a plea offer but for the deficient performance of counsel is one of
fact, which will not be disturbed on appeal unless clearly erroneous” (citations omitted; internal quotation marks
omitted)); see also Cullen v. United States, 194 F.3d
401, 405 (2d Cir. 1999) (“the determination of the likelihood that [the petitioner] would have accepted the plea
bargain if he had been fully informed of its terms and
accurately advised of the likely sentencing ranges under
the plea bargain and upon conviction after trial was, like all predictions of what might have been, a factual issue, albeit a hypothetical one”). The resolution of that issue required the court to weigh the competing evidence and
decide which testimony it deemed credible. After hearing the testimony and weighing the evidence, the court
credited the petitioner’s testimony that he would have
gone to trial if he had known that Baxter was willing
to testify, and it is not our role as an appellate court to second guess that determination. See Barlow v. Commissioner of Correction, supra, 367–68 (“[t]o the extent
that the contemporaneous evidence was equivocal . . . it
was up to the habeas court, as the finder of fact, to weigh the equivocal contemporaneous evidence in assessing
whether to believe all, none, or some of the petitioner’s testimony . . . [and] we will not second-guess the habeas court’s credibility determination” (citations omitted;
internal quotation marks omitted)). Accordingly, we
conclude that the court did not err in concluding that the petitioner was prejudiced by O’Reilly’s incorrect advice
regarding Baxter’s willingness to testify.
The judgment is affirmed.