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Johnson v. Commissioner of Correction
RASHID JOHNSON v. COMMISSIONER
OF CORRECTION
(AC 47810)
Alvord, Elgo and Clark, Js.*
Syllabus
The petitioner, who had been convicted after a jury trial of murder, felony murder and other crimes as a result of a shooting, appealed following the granting of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claimed, inter alia, that his trial counsel, C, rendered ineffective assistance in failing to request that the court vacate his murder conviction instead of his felony murder conviction. Held:
The habeas court properly determined that C did not render ineffective assistance in failing to request that the jury be given an identification instruction pertaining to a witness who testified that he could not identify the petitioner as the shooter, and, even if it were assumed that C’s failure to request the instruction constituted deficient performance, the petitioner did not demonstrate that he was prejudiced, as he could not show that a reasonable probability existed that the outcome of his criminal trial would have been different had the instruction been given.
The habeas court properly determined that C’s decision not to challenge the state’s DNA evidence did not constitute ineffective assistance, as it was well within the range of reasonable trial tactics for C to use the DNA evidence, which had a low probative value, to highlight the inadequacy of the state’s case and to support the petitioner’s third-party culpability defense.
The petitioner could not prove that C rendered ineffective assistance in failing to request that the trial court vacate the petitioner’s murder conviction instead of his felony murder conviction, as felony murder was not a lesser included offense of murder, the petitioner cited no authority that would have required C to request vacatur of the murder conviction, the felony murder conviction was cumulative of the murder conviction, and, under State v. Polanco (308 Conn. 242) and State v. Miranda (317 Conn. 741), it was appropriate to vacate the cumulative felony murder conviction.
The petitioner did not demonstrate that C rendered deficient performance in failing to request that the jury be instructed to consider the murder charge first and to consider the felony murder charge only if it found him not guilty of murder, as the petitioner presented no authority to support his contention, the proposed instruction was not required under law, and C’s failure to advocate for a change in the law that would require such a jury instruction did not constitute deficient performance.
*
The listing of judges reflects their seniority status on this court as of the date of oral argument.
Johnson v. Commissioner of Correction
The petitioner’s appellate counsel, F, did not render ineffective assistance, as the petitioner claimed, in failing to argue that his murder conviction, rather than his felony murder conviction, should have been vacated and that the jury should have been required to consider the murder charge before considering the felony murder charge, as the petitioner offered no legal authority in support of those unpreserved claims and failed to explain how he was prejudiced by F’s failure to raise either claim.
The habeas court properly dismissed the petitioner’s claims that the trial court erred in vacating his felony murder conviction and failing to provide certain instructions to the jury, as the petitioner procedurally defaulted on those claims by not raising them at his criminal trial or on direct appeal, and his assertion that the default was cured because his trial and appellate counsel had rendered ineffective assistance was unavailing, this court having rejected those claims.
Argued May 26—officially released September 15, 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 dismissing
the petition in part and denying the petition in part, from which the petitioner, on the granting of certification,
appealed to this court. Affirmed.
Mary F. Boehlert, assigned counsel, for the appellant
(petitioner).
Connor Reed, special deputy assistant state’s attorney,
with whom, on the brief, were John P. Doyle, Jr., state’s attorney, and Silvina Bejleri, deputy assistant state’s
attorney, for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Rashid Johnson, appeals
from the judgment of the habeas court denying in part
and dismissing in part his amended petition for a writ
of habeas corpus. He claims that the court improperly
rejected his claims of ineffective assistance on the part of both his trial and appellate counsel and concluded that the petitioner’s claims regarding trial court error were
Johnson v. Commissioner of Correction
procedurally defaulted. We affirm the judgment of the
habeas court.
The following facts underlying the petitioner’s conviction, as set forth by this court in his direct appeal, are relevant to our resolution of this appeal. “On October
21, 2012, at 7:50 p.m., patrol officers of the New Haven
Police Department responded to a 911 call reporting that
a person had been shot at Brendan Towers, an apartment
complex located at 461 Whalley Avenue. Upon arrival,
police officers located the victim, Christian Garcia, who resided at an apartment on the second floor of Brendan
Towers and was a known marijuana dealer. Garcia was
pronounced dead at the scene; the cause of death was a
gunshot wound. The area was secured and detectives processed the crime scene in which, among items of physical
evidence, they located and seized four spent .40 caliber
cartridge casings, all of which had been fired from the
same handgun. They also located and seized three fired
bullets, one of which was embedded in a door frame and
the other two bore traces of what appeared to be wallboard and/or paint; they observed walls that bore indications
of bullet damage.
“On the same date, at approximately 8:02 p.m., police
received a report that the [petitioner] walked into YaleNew Haven Hospital, Saint Raphael Campus, with a
gunshot wound to his left knee. At the hospital, the
[petitioner] told responding Officer Jason Jackson of the New Haven Police Department that while he was walking on Whalley Avenue he heard three to four gunshots
and felt a pain in his leg and ‘took off’ to the hospital. Acting on this information, Jackson went to canvass the
area for a blood trail or spent shell casings, but found
neither. He found no evidence indicating that a shooting
had occurred at that location.
“Detective Nicole Natale of the New Haven Police
Department, who had been investigating the death of
Garcia, went to the hospital to determine if the shootings of Garcia and the [petitioner] were related. The
[petitioner] told Natale that he had been shot in front of
Johnson v. Commissioner of Correction
the Southern Hospitality Soul Food restaurant on the
corner of Whalley and Ellsworth Avenues, and that he
had decided to travel on foot to the hospital because he
had no cell phone to call for assistance. Detectives, however, examined the hospital surveillance camera footage,
which showed the [petitioner] arriving at the emergency
room in an automobile. A subsequent investigation led
police to the automobile owner, Tywan Samuels, who
acknowledged that he had picked up the [petitioner] on
Norton Street and had driven him to the hospital on the
evening of October 21, 2012.
“On October 22, 2012, detectives interviewed Fernando
Perez Morales (Perez), a resident of Brendan Towers,
who was with Garcia moments before his death. During
that interview, Perez provided the following information. On the morning of October 21, 2012, Perez bumped
into Garcia in Brendan Towers at which time Garcia told
him that he would call him later to come upstairs to his
apartment to smoke marijuana together. When Garcia
later called Perez, Perez left his first floor apartment and met Garcia in the hallway of the second floor. When Perez arrived, Garcia told him that he was meeting someone
who was coming to purchase marijuana from him. Garcia explained that he wanted to have someone with him
because he was concerned. When the customer arrived,
Garcia was talking to someone who had called his cell
phone. Perez described the customer as a young black
man who was in his late teens to mid-twenties, stood
several inches taller than Perez’ height of five feet, ten inches and was wearing a black hooded sweatshirt with
a Monster Energy drink logo, black sweatpants and a ‘do
rag’ on his head. After Garcia hung up the phone, the
man said he wanted eight bags of marijuana and asked
Garcia to show him the product. Garcia handed the man
seven bags of marijuana, the man handed them all back to
Garcia and then pretended that he was going to take out
money but instead pulled out a handgun. Garcia shoved
the man into a corner. Perez fled down the stairwell to
the first floor when he heard four or five gunshots.
Johnson v. Commissioner of Correction
“During the interview, police showed Perez a photographic array to see if he could identify the man with
the gun. Perez said he was not certain which photograph
showed the man with the gun, but that photograph number three, which was a photograph of the [petitioner],
looked most like him. During his trial testimony, Perez
was also unable to say whether the [petitioner] was the
man he had seen with the gun and testified that he did
not see the man fire the gun.
“On October 23, 2012, after being released from the
hospital, the [petitioner] voluntarily went to the police station with detectives who conducted a video recorded
interview. During the interview, the [petitioner] was
shown a photograph of Garcia in response to which he
denied knowing Garcia and having any dealings with
persons in the Brendan Towers. Next, the [petitioner]
denied having a cell phone, but provided the police with
a number after telling them that he had lost the phone
on the morning of October 21, 2012. Shortly after the
[petitioner] left the police station at noon, his cell phone, which had been inactive during his hospitalization, was
activated and used to place a call to a phone that was
registered to the mother of a female acquaintance of the
[petitioner]. In addition, the police obtained cell phone records from the [petitioner’s] cell phone that revealed
several outgoing and incoming calls throughout the
entire day of October 21, 2012. The cell phone records
also confirmed that there was a cell phone call between
the [petitioner] and Garcia moments prior to the murder.
Moreover, detectives interviewed Garcia’s father who,
after being shown seven photographs, identified the
photograph of the [petitioner] as a person who had stayed at Garcia’s apartment in Brendan Towers in the past.
“After further investigation, on May 6, 2013, the
police arrested the [petitioner] pursuant to a warrant
charging him with Garcia’s murder. In February, 2014,
an intelligence officer employed by the Department of
Correction reviewed a letter that had been handwritten by the [petitioner] while he was incarcerated at the
Johnson v. Commissioner of Correction
Northern Correctional Institution. The letter was dated
February 6, 2014, and addressed to Christopher Graham
by his street name ‘Ugg’ and was contained in an envelope addressed to Graham’s girlfriend in New Haven.
The letter provided in pertinent part: ‘They don’t got
shit. It’s just this one dumb ass Poppy that live in them buildings where the freaking shit went down. His name
Fernando Perez. His brother stay up there, he live wit[h] him. Ro might know what door he live at, but be smart
bro, because wit[h]out him, they hit, because wit[h] him
they all set . . . .’ The [petitioner] put his correct name and inmate number on the letter. The parties stipulated
that this letter had been written by the [petitioner].
“Following a trial, the jury returned a verdict finding
the [petitioner] guilty of murder, felony murder, robbery in the first degree and carrying a pistol without a permit. The court sentenced the [petitioner] to forty years of
incarceration, followed by ten years of special parole.”
(Footnotes omitted.) State v. Johnson, 171 Conn. App.
328, 330–34, 157 A.3d 120, cert. denied, 325 Conn. 911,
158 A.3d 322 (2017).
On December 15, 2023, the petitioner filed an amended
petition for a writ of habeas corpus, claiming, in relevant part, ineffective assistance of trial counsel in his criminal trial and ineffective assistance of appellate counsel in his direct appeal, as well as related errors made by the trial court. With respect to his trial counsel, the petitioner
claimed in counts one through four of his petition that
Attorney Glenn M. Conway was ineffective because he
failed (1) to request a jury instruction on identification of the petitioner; (2) to object to DNA evidence presented by the state; (3) to argue that the petitioner’s murder
conviction, rather than his felony murder conviction,
should be vacated; and (4) to request a jury instruction
requiring jurors to first consider the murder charge and
to consider the felony murder charge only if they found
him not guilty on the murder charge. With respect to
the alleged errors made by the trial court, the petitioner claimed in counts five and six of the petition that the
Johnson v. Commissioner of Correction
court had improperly vacated the felony murder conviction, rather than the murder conviction, and had
failed to instruct the jurors to first consider the murder charge and to consider the felony murder charge only if
they found him not guilty of murder. In counts seven
and eight of the petition, the petitioner claimed that his appellate counsel, Attorney Daniel Foster, had rendered
ineffective assistance because, on direct appeal, he failed to raise claims arising from the aforementioned alleged
trial court errors.
On January 30, 2024, the respondent, the Commissioner of Correction, filed a return in which he claimed
that counts five and six of the amended habeas petition
were procedurally defaulted. On February 9, 2024, the
petitioner filed a reply asserting that his claims were not procedurally defaulted and, alternatively, that “he is able to overcome default as he can prove cause and prejudice.”
The habeas court, Bhatt, J., conducted a trial on April
29, 2024, in which it heard testimony from Attorney
Conway and Attorney Foster. The petitioner submitted as exhibits transcripts from his criminal trial. In its memorandum of decision, issued May 24, 2024, the court
denied the petitioner’s claims of ineffective assistance
on the part of both trial counsel and appellate counsel
and dismissed the claims alleging trial court error on
the ground that they were procedurally defaulted. The
court granted the petitioner’s petition for certification to appeal. This appeal followed. Additional facts and
procedural history will be provided as necessary.
I
The petitioner first claims that “the habeas court erroneously concluded [that he] failed to establish his burden of demonstrating that his trial counsel, [Attorney]
Conway, provided ineffective assistance of counsel and
prejudiced the petitioner.” The petitioner maintains that his trial counsel provided ineffective assistance by failing to “(i) request a jury instruction on identification; (ii) object to the admission of DNA evidence as being more
Johnson v. Commissioner of Correction
prejudicial than probative; (iii) argue that the murder
charge should have been vacated instead of the felony
murder charge, and (iv) request a jury instruction that
required the jury to consider the murder charge first and only consider felony murder if murder was not proven.”
We are not persuaded.
We first set forth the well settled standard of review
governing challenges to a habeas court’s judgment on
ineffective assistance of counsel claims. “The habeas
court is afforded broad discretion in making its factual
findings, and those findings will not be disturbed unless they are clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. . . . Accordingly, [t]he habeas judge, as the
trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed
question of law and fact, which is subject to plenary
review. . . .
“A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984)]. 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 effective assistance of counsel. . . . A claim of ineffective assistance of counsel consists of two components: a
performance prong and a prejudice prong. To satisfy the
performance prong . . . the petitioner must demonstrate
that his attorney’s representation was not reasonably
competent or within the range of competence displayed
by lawyers with ordinary training and skill in the criminal law. . . . To satisfy the prejudice prong, [the petitioner] must demonstrate that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The
Johnson v. Commissioner of Correction
claim will succeed only if both prongs are satisfied. . . . Consequently, [i]t is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.” (Internal quotation marks omitted.) Raynor
v. Commissioner of Correction, 222 Conn. App. 584,
600–601, 306 A.3d 25 (2023), cert. denied, 348 Conn.
944, 307 A.3d 910 (2024).
With respect the performance prong, the following
legal principles guide our review. “[J]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] 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 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.) Id., 610–11.
We note, however, that “[a] court need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of
Johnson v. Commissioner of Correction
the ineffectiveness claim.” (Internal quotation marks
omitted.) Mercado v. Commissioner of Correction, 183
Conn. App. 556, 562–63, 193 A.3d 671, cert. denied, 330
Conn. 918, 193 A.3d 1211 (2018). Thus, when a habeas
court “determine[s] that the petitioner ha[s] not proven
that he was prejudiced by the performance of his trial
counsel, our focus on review is whether the [habeas] court correctly determined the absence of prejudice. . . . With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel’s errors
were so serious as to deprive the [petitioner] of a fair
trial, a trial whose result is reliable. . . . It is not enough for the [petitioner] to show that the errors had some
conceivable effect on the outcome of the proceedings. . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . .
When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable
doubt respecting guilt.” (Internal quotation marks omitted.) Raynor v. Commissioner of Correction, supra, 222
Conn. App. 616.
A
The petitioner claims that the habeas court improperly
concluded that Attorney Conway’s failure to request
that the jury receive an identification instruction did
not amount to ineffective assistance. He argues that,
due to this failure, Attorney Conway’s representation
fell below the standard of reasonable competence that
is expected of defense counsel. We are not persuaded.
The following facts and procedural history are relevant to our review. At the petitioner’s criminal trial,
Perez testified that the day after Garcia was killed, he
spoke with the police and that, when they provided him
with a photographic array, he told the police, “I’m not
sure . . . who did it.” In his testimony, Perez confirmed
Johnson v. Commissioner of Correction
that he had selected number three out of the group of
photographs and wrote in his witness comment, “I saw
the photos, and the one that looks the most like him, it’s number three.”1 When the prosecutor asked Perez if the
person with the gun that night was in the courtroom,
Perez testified, “I’m unable to say because I’m not sure
who the person is . . . .”
On cross-examination, Attorney Conway inquired
about the photograph Perez selected during his interview
with the police, asking, “[y]ou didn’t pick out somebody
who you—you’re not saying that that person is the person that you saw that night, correct,” to which Perez
responded, in part, “[n]o, never I say that was the person. I said they could, like, could be—no. That could be the
person, like, he not could be the person.” When asked
whether he could make an in-court identification of the
petitioner as the man who had the gun that night, Perez
responded, “I’m not saying that it’s him, I’m not saying
it’s not him, and I can’t say for sure that it’s him. When the incident took place, I just saw him but he had a hoodie on, it was dark, he had a do-rag, and I can’t be certain
that it was him or not.” Attorney Conway also asked
Perez: “[Y]ou never saw that person even fire a gun?”
to which Perez responded in relevant part: “No.” Later,
when Attorney Conway sought to confirm that Perez had
told the police that he would not be able to identify the person with the gun, Perez testified: “I told them that I couldn’t identify the person exactly because I didn’t get to see the face. The person wasn’t looking at me.”
At the habeas trial, Attorney Conway testified that,
to his recollection, this case involved an identity issue, explaining that “the only two people in that hallway
[were] the victim and whoever shot him. And being as the
victim had died, there was nobody else who could identify [the petitioner]. That’s my recollection.” He also testified that he remembered Perez testifying that he witnessed
1
The witness comment was presented as evidence as part of a state’s exhibit. The comment was written in Spanish and, at trial, Perez confirmed that he wrote the comment, which was then translated into English by the court’s Spanish-speaking interpreter.
Johnson v. Commissioner of Correction
the initial altercation, fled down the stairs and then heard four or five gunshots. When asked whether he recalled
that Perez “was able to pinpoint [the petitioner] from a
photo[graphic] array and testified to what he saw during
the course of the trial,” Attorney Conway responded,
“[y]es.” Later, when asked by the petitioner’s counsel
whether he had requested an identity instruction at
the criminal trial, Attorney Conway responded in part
that “[the eyewitness identification instruction] would
have been a standard request that I would have made.”
Shortly thereafter, when asked if Perez had identified the petitioner, Attorney Conway recalled: “I think [Perez]
identified that there was a person who pulled a gun in
the course of a transaction. I don’t believe he [identified] [the petitioner]. I had a private investigator actually
speak to him, and he was very reluctant to come in. . . . [M]y recollection is, he couldn’t positively identify [the petitioner].”
In his posttrial brief, the petitioner argued that Attorney Conway should have requested the following instruction: “In this case, the state has presented evidence that an eyewitness identified the [petitioner] in connection
with the crime charged. Identification is a question of
fact for you to decide, taking into consideration all the evidence that you have seen and heard in the course of
the trial. The identification of the [petitioner] by a single witness as the one involved in the commission of a crime
is, in and of itself, sufficient to justify a conviction of such a person, provided, of course, that you are satisfied beyond a reasonable doubt of the identity of the [petitioner] as the one who committed the crime.”
In its memorandum of decision, the habeas court made
the following findings: “Attorney Conway testified that
he would have requested [an identification] instruction.
The record reveals that no such instruction was given;
however, the requests made by the defense are not on the
record and have not been provided to this court.” The
court concluded that, “[e]ven assuming deficient performance, [the petitioner] has not demonstrated prejudice.”
Johnson v. Commissioner of Correction
We agree with the habeas court that, even assuming
that Attorney Conway had rendered deficient performance, the petitioner has not demonstrated prejudice.
In his appellate brief, the petitioner argues that “[h]ad [Attorney] Conway requested the jury receive the identification instruction it would have emphasized to the
jury that there was no direct eyewitness that testified
or identified the petitioner as the shooter.” It is unclear, however, how an instruction that “the state has presented evidence that an eyewitness identified the [petitioner] in connection with the crime charged” would emphasize that
there was “no direct eyewitness” testimony. Perez testified that he could not positively identify the petitioner as the man he saw with the gun, and Attorney Conway
elicited testimony on cross-examination that emphasized
the lack of eyewitness identification. Accordingly, the
petitioner cannot demonstrate prejudice because he has
not shown that there is a reasonable probability that the outcome of his criminal trial would have been different.
B
The petitioner next challenges the habeas court’s conclusion that Attorney Conway’s decision not to challenge
the DNA evidence offered by the state did not amount
to deficient performance or prejudice him. The petitioner asserts that “there is no tactical justification for [Attorney] Conway not challenging the DNA evidence
coming in as evidence, as it was more prejudicial than
probative.” We disagree.
The following facts and procedural history are relevant
to our review of this portion of the claim. At the petitioner’s criminal trial, the state’s DNA expert, Steven
Bryant, testified on direct examination that a DNA profile was obtained from the surface of one of the bullets
and that “[the petitioner] was consistent with being the
source of that DNA profile.” Bryant further testified
that “[t]he expected frequency of individuals who could
be the source of that DNA profile is one in two in the
African American population, one in three in the Caucasian and Hispanic populations, approximately.” On
Johnson v. Commissioner of Correction
cross-examination, Attorney Conway noted that there
are thirty million African Americans in the United States and, shortly thereafter, asked, “[s]o if I understand the statistic, then . . . what you’re saying is, it’s conceivable that there are 15 million other people who . . . could—that sample could’ve been consistent with just in the United
Stated alone?” Bryant responded, “[y]ou would expect
to find approximately 15 million African Americans
that would match that profile, yes.” Further on in the
colloquy, the trial court sought clarification from Bryant and asked, “[y]ou can’t say with confidence that this was an African American who was a DNA contributor?”
Bryant responded, “[c]orrect.”
During his closing argument, Attorney Conway raised
doubts concerning the evidentiary value of the DNA
evidence, stating, in part, “there were approximately
70 million to 100 other—million—Americans who fit
that profile who it could’ve been ‘consistent’ with. . . . [T]he state doesn’t have to prove their case to an absolute certainty, but they’re going to have to do better than the same DNA as to 70 to 100 million other people.”
At the habeas trial, Attorney Conway testified that,
based on the circumstantial evidence showing that the
petitioner was at the location of the shooting, the theory of defense was that the petitioner “had gone there to buy some weed from Mr. Garcia and that there was somebody
else who intervened to rob Mr. Garcia, and they came
from a side door. And it matched up pretty well with
the bullets—where the bullet holes were in the walls
and the angles of the trajectories. You know, it wasn’t
a bad—it was a viable . . . third-party liability scenario.” He confirmed that, in light of this theory of defense,
he sought to use the DNA evidence to the petitioner’s
advantage. Later, when the habeas court asked if it was
his testimony that he did not seek to preclude the DNA
testimony, Attorney Conway elaborated: “Well, I don’t
recall if I sought to preclude it and it came in over my
objection. I don’t recall on that issue. Part of my thought process—because of the nature of the mixture—I was so
Johnson v. Commissioner of Correction
used to having the one in seven billion testimony come in that when I had this, you know, watered-down statistic,
part of me, I think, thought that, great, I can actually use this to our advantage to show that it’s a positive thing. It proves nothing.” In its memorandum of decision,
the court found that “Attorney Conway testified that
he believed the DNA testimony that could not exclude
[the petitioner] was helpful to their theory that there
was a third party” and concluded that “[t]here [was] no
deficient performance . . . .”
As this court repeatedly has noted, “[t]he decision of a
trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency . . . . [T]here is a strong presumption that the trial strategy employed by a
criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment. . . . It is well established that [a] reviewing court must view counsel’s
conduct with a strong presumption that it falls within
the wide range of reasonable professional assistance and
that a tactic that appears ineffective in hindsight may
have been sound trial strategy at the time.” (Internal
quotation marks omitted.) Raynor v. Commissioner of
Correction, supra, 222 Conn. App. 611–12.
In the present case, the theory of defense was thirdparty culpability, and Bryant testified that one would
expect to “find approximately 15 million African Americans that would match th[e] profile” of the DNA in evidence. At the habeas trial, Attorney Conway testified
that he sought to use the DNA evidence as a means of
highlighting the inadequacy of the state’s evidence while advancing the theory that another person was responsible
for the shooting. In light of Bryant’s testimony and the
low probative value of the DNA evidence, we find that it
was well within the range of reasonable trial tactics for Attorney Conway to use the DNA evidence to support the
petitioner’s third-party culpability defense. The habeas
court, therefore, properly determined that Attorney
Conway’s decision not to object to the DNA evidence did
not amount to deficient performance.
Johnson v. Commissioner of Correction
C
The petitioner next challenges the habeas court’s conclusion that Attorney Conway’s failure to ask that the
trial court vacate the murder conviction instead of the
felony murder conviction did not amount to deficient
performance. He contends that “[Attorney] Conway did
not consult with his client and did not advocate for his
client. Had he, the petitioner contends, the trial court
would have vacated the . . . murder [charge], as it was
not bound to only vacate the felony murder conviction.”
We are not persuaded.
The following procedural history is relevant to our
resolution of this portion of the claim. At the petitioner’s sentencing, the trial court sought counsel’s input with
respect to the count of felony murder because the petitioner also had been convicted of murder. The court noted the guidance in our Supreme Court’s decision in State
v. Adams, 308 Conn. 263, 272–73, 63 A.3d 934 (2013),
defining felony murder as a type of murder. When the
trial court asked counsel for their respective positions on addressing the second count of felony murder, Attorney
Conway stated, “I would move to vacate the verdict on
the second count as indicated in that case. Felony murder is an alternative means of committing murder, and that
being the case, I think it would be appropriate for the
court to vacate . . . the verdict on the second count.” The court then recognized another legal development, stating
that “State v. [Polanco, 308 Conn. 242, 61 A.3d 1084
(2013)] says now we should vacate the lesser included
offense. This is a little bit different because felony murder is not a lesser included offense of murder, but it is essentially a duplicative count and the question arises
that . . . frankly, none of us I think, it’s fair to say, have the definitive answer for whether—for purposes of this
sentencing hearing—the felony murder count ought to
be treated in the same way as a lesser included offense.” The prosecutor raised his concern as it related to the
potential for appeal, stating, “[i]f Your Honor vacates
felony murder and sentences only on the first count, what if that first count gets reversed, vacated, or something
Johnson v. Commissioner of Correction
like on some kind of an appeal?” When the court made
its decision to vacate the felony murder conviction, it
responded to this concern by vacating it “without prejudice to reconsideration if the [murder] conviction . . . is . . . reversed for any reason.”
At the habeas trial, Attorney Conway testified that he
did not recall the trial court vacating the felony murder conviction but remembered that the petitioner was not
sentenced on both the murder and felony murder convictions. At one point, Attorney Conway testified that “[i]t would not have a practical difference to raise the issue of which conviction should have been vacated.” Conversely,
he confirmed that, if the petitioner were to win on an
evidentiary claim, the petitioner would have received
a new trial. Attorney Conway also testified that he did
not recall any case law that would have supported the
claim that the murder conviction, instead of the felony
murder conviction, should have been vacated and stated
that, if he had thought he would succeed in raising such
a claim, he would have done so. In its memorandum of
decision, the habeas court concluded that “[t]here is no
deficient performance because [the petitioner] cannot
show that there is any such requirement in our law” that
Attorney Conway should have asked the court to vacate
the murder conviction.
In his appellate brief, the petitioner similarly has not
cited any legal authority that would have required Attorney Conway to request that the murder conviction be
vacated. The petitioner maintains that Attorney Conway
“should have argued that the court’s reliance on Polanco
was misplaced” because that case addressed a double
jeopardy issue arising from a conviction of a crime and
its lesser included offense, whereas, here, the felony
murder conviction was not a lesser included offense
of murder. As the habeas court explained, however:
“[The petitioner] ignores State v. Miranda, 317 Conn.
741, 120 A.3d 490 (2015), in which our Supreme Court
extended the vacatur remedy to cumulative homicide
convictions arising from the same incident. In that case,
Johnson v. Commissioner of Correction
the court held ‘that the remedy set forth in Polanco
should extend to scenarios like the defendant’s, thus
making it appropriate to vacate his cumulative felony
murder conviction.’ [Id.] 751. Thus, the remedy in this
case was appropriate. While it is true that Miranda was
issued a few months after [the petitioner’s] sentencing,
our Supreme Court’s decision in Polanco already foretold
this outcome in dicta. State v. Polanco, supra, 308 Conn. 249 n.3 (‘we are aware of no reason why our holding, of
logical necessity, would not apply with equal force to
other scenarios in which cumulative convictions violate
the double jeopardy clause’).”
Additionally, the habeas court found that “[the petitioner] cannot show that the trial court either was
required to vacate the murder conviction or would have
done so had Attorney Conway requested it. Thus, he has
not proven prejudice.”2 We agree with the habeas court’s
assessment and conclude that the petitioner has failed
to prove ineffective assistance of counsel as it concerns Attorney Conway’s decision not to request that the murder conviction be vacated.
D
In his final argument in support of his claim of ineffective assistance of his trial counsel, the petitioner
maintains that the habeas court improperly concluded
that he was not prejudiced by Attorney Conway’s failure
to ask for a jury instruction requiring the jury to first consider the murder charge and to consider the felony
murder charge only if it found him not guilty on the
murder charge. We disagree.
The following facts and procedural history are relevant to our review of this portion of the petitioner’s
claim. During the petitioner’s criminal trial, the court
instructed the jury in relevant part: “[T]he [petitioner] 2
In his posttrial brief, related to the claim that Attorney Conway should have consulted the petitioner on this matter, the petitioner conceded that, “[g]iven that murder and felony murder are alternative theories of murder, it would not make a difference as to which conviction would remain and which conviction should be vacated . . . .”
Johnson v. Commissioner of Correction
is charged with committing four separate offenses or
crimes. Each count alleges a separate crime, joined for
convenience of the trial in one formal Information. You
must consider each count separately. When you return to
the courtroom, you will be asked whether the [petitioner] is guilty as charged or not guilty with respect to each
count, and you will render your verdict accordingly.”
The court then explained the elements that the state
needed to prove beyond a reasonable doubt as to both
murder and felony murder. The next day, during jury
deliberations, the court received a question from the jury, asking, “can the [petitioner] be convicted of both murder and felony murder. We would also like a clarification of
the definition of intent to commit murder.” The court
addressed the jurors and clarified that the petitioner
could be convicted of both murder and felony murder, but
that they “must understand that while this is a possible
outcome, it is not a required outcome. Your duty is to
consider each count separately.” The court then read to
the jury the portion of its charge explaining the element of intent with respect to murder.
During the habeas trial, the petitioner’s counsel asked
Attorney Conway, “were the jury instructions set up so
that . . . if the jury found one theory of murder, they
didn’t have to then go to the other alternative theory?”
Attorney Conway responded: “No, I can’t—I don’t think
I’ve ever seen that in a murder, felony murder case.”
Attorney Conway also confirmed that he did not raise an
objection regarding the jury instructions as they related to whether the jury could find the petitioner guilty on
one of the murder charges over the other. In its memorandum of decision, the habeas court stated: “There is
no deficient performance because there is no basis for
such an argument and it is not required by our case law.
Attorney Conway cannot have performed deficiently.
Furthermore, [the petitioner] has not demonstrated
prejudice, in that he would have been acquitted of murder and convicted of felony murder based on that argument. He was convicted of both, and the felony murder
Johnson v. Commissioner of Correction
conviction was vacated, thus resulting in the same goal
he seeks through this argument.”
The petitioner’s appellate brief is devoid of legal
authority to support his contention that Attorney Conway should have requested the petitioner’s proposed jury
instruction. Rather, he asserts that the role of defense
counsel is to advocate for his client and that, “[s]ometimes, this requires a defense counselor to advocate for
a change in the law or for a court to administer the law
in a fair way.” He further argues that requesting such
a jury instruction “would have been advocating for his
client, even if no case law required it.” It is well settled that “counsel’s failure to advance novel legal theories or arguments does not constitute ineffective performance.
. . . Nor is counsel required to change then-existing law to provide effective representation. . . . Counsel instead performs effectively when he elects to maneuver within
the existing law, declining to present untested . . . legal theories.” (Internal quotation marks omitted.) Martinez
v. Commissioner of Correction, 147 Conn. App. 307, 319
n.8, 82 A.3d 666 (2013), cert. denied, 311 Conn. 917, 85
A.3d 652 (2014). Thus, trial counsel’s failure to advocate for a change in the law that would require such a jury
instruction, as the petitioner suggests Attorney Conway
should have done, does not constitute deficient performance. We, therefore, agree with the habeas court’s
conclusion that the petitioner has not demonstrated
deficient performance by Attorney Conway for his failure
to request the petitioner’s proposed jury instruction.
Accordingly, the petitioner’s claim of ineffective assistance of trial counsel fails.
II
The petitioner also claims that “the habeas court erroneously concluded the petitioner failed to establish his
burden of demonstrating that his appellate counsel,
[Attorney] Foster, provided ineffective assistance of
counsel and prejudiced the petitioner.” The petitioner
maintains that “[Attorney] Foster was ineffective for
failing to raise a claim that the murder conviction should
Johnson v. Commissioner of Correction
have been vacated in lieu of the felony murder conviction, and that jury instructions should have been provided that would have required the jury to first consider murder and only consider felony murder if murder was not proven.”
We disagree with the petitioner.
At the habeas trial, Attorney Foster testified that, in
representing the petitioner on his direct appeal, he raised two preserved evidentiary claims that would have warranted a new trial on all charges if he could have proved that the evidence was improperly admitted and harmful to the petitioner. Attorney Foster confirmed that
the claims raised on appeal were the strongest claims.
He testified that he did not recall there being any case
law to support the claims that the murder conviction
should have been vacated and that the jury should have
been required to consider the murder charge first. As
that concerned the jury instruction, Attorney Foster
did not see it as a strong issue, noting that, although it could have been raised on appeal, “[i]t’s hard to see how it would have been something that would meet the State v.
Golding [213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015)] test. . . . And, you know, hard to see
how it wouldn’t have been harmless error if, in fact, he
was convicted of murder and his conviction of felony
murder was vacated. . . . So . . . I think it would have
been difficult to defend.” Attorney Foster also testified that “[i]t would not have a practical difference to raise the issue of which conviction should have been vacated.”
In its memorandum of decision, the habeas court concluded that there was no deficient performance, reasoning that the claims the petitioner argued Attorney Foster should have raised were not preserved, and that Attorney
Foster had testified that he was unaware of any legal basis to support either claim and did not believe they would
have been successful on appeal. Furthermore, the court
concluded that the petitioner “has not shown that he
would have prevailed on appeal had these claims of trial
court error been raised.”
Johnson v. Commissioner of Correction
“The two-pronged test set forth in Strickland equally
applies to claims of ineffective assistance of appellate counsel. . . . Although appellate counsel must provide effective assistance, he [or she] is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions. . . .
Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out
weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. . . . Most cases present only one, two, or three significant
questions. . . . The effect of adding weak arguments will be to dilute the force of stronger ones. . . . Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims
cannot be considered conduct falling below the level of
reasonably competent representation. . . . To establish
that the petitioner was prejudiced by appellate counsel’s ineffective assistance, the petitioner must show that,
but for the ineffective assistance, there is a reasonable probability that, if the issue were brought before us on
direct appeal, the petitioner would have prevailed. . . . To ascertain whether the petitioner can demonstrate
such a probability, we must consider the merits of the
underlying claim.” (Citations omitted; internal quotation marks omitted.) Davis v. Commissioner of Correction, 198 Conn. App. 345, 354–55, 233 A.3d 1106, cert.
denied, 335 Conn. 948, 238 A.3d 18 (2020).
As discussed in part I C and D of this opinion, the petitioner’s appellate brief does not offer any legal authority that would have required the trial court to vacate
the murder conviction instead of the felony murder
conviction or that would have required the jurors to
first consider the charge of murder and to consider the
charge of felony murder only if they did not find him
guilty of murder. Because there is no merit to these
claims, Attorney Foster’s decision not to pursue them
does not amount to conduct that falls below reasonably
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competent representation. We, therefore, agree with the
habeas court that there was no deficient performance.
Moreover, even assuming that Attorney Foster had
rendered deficient performance, the petitioner’s appellate brief does not offer any elaboration or analysis
explaining how the failure to raise either claim caused
prejudice. The petitioner asserts that, “had [Attorney]
Foster done his job properly, [he] would have won his
appeal.” Because the petitioner’s argument offers nothing more than conjecture, it fails to demonstrate the
requisite prejudice. See, e.g., Santos v. Commissioner
of Correction, 186 Conn. App. 107, 131, 198 A.3d 698
(“[m]ere conjecture and speculation are not enough to
support a showing of prejudice” (internal quotation
marks omitted)), cert. denied, 330 Conn. 955, 197 A.3d
893 (2018). Accordingly, we conclude that the petitioner
has failed to prove ineffective assistance of appellate
counsel.
III
The petitioner also claims that “the habeas court erroneously dismissed the petitioner’s claims regarding trial court error on the ground the claims were procedurally
defaulted . . . .” The petitioner maintains that the trial court improperly vacated the murder charge instead
of the felony murder charge and failed to provide jury
instructions that would have required the jurors to first consider the murder charge and to consider the felony
murder charge only if they found the petitioner not guilty of murder. We do not agree.
As an initial matter, “a habeas court’s conclusion
that a petitioner’s claim is barred by the procedural
default doctrine involves a question of law over which
we exercise plenary review. . . . Under the procedural
default doctrine, a claimant may not raise, in a collateral proceeding, claims that he could have made at trial or
on direct appeal in the original proceeding and that if
the state, in response, alleges that a claimant should be procedurally defaulted from now making the claim, the
Johnson v. Commissioner of Correction
claimant bears the burden of demonstrating good cause
for having failed to raise the claim directly, and he must show that he suffered actual prejudice as a result of this excusable failure. . . .
“The cause and prejudice standard [of reviewability]
is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, [inadvertence] or ignorance . . . . [T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can
show that some objective factor external to the defense
impeded counsel’s efforts to comply with the [s]tate’s
procedural rule. . . .
“[A] successful ineffective assistance of counsel claim
can satisfy the cause and prejudice standard so as to
cure a procedurally defaulted claim. . . . Indeed, [i]f a petitioner can prove that his attorney’s performance
fell below acceptable standards, and that, as a result, he was deprived of a fair trial or appeal, he will necessarily have established a basis for cause and will invariably
have demonstrated prejudice. . . .
“Ineffective assistance of counsel is an objective factor external to the defense because the [s]ixth [a]mendment itself requires that responsibility for the default
be imputed to the [s]tate. . . . In other words, it is not the gravity of the attorney’s error that matters, but that it constitutes a violation of [the] petitioner’s right to counsel, so that the error must be seen as an external factor, i.e., imputed to the [s]tate. . . . Although a petitioner is bound by his counsel’s inadvertence, ignorance, or tactical missteps, regardless of whether counsel is flouting
procedural rules or hedging against strategic risks, a
petitioner is not bound by the ineffective assistance of his counsel.” (Citations omitted; internal quotation marks
omitted.) Canady v. Commissioner of Correction, 231
Conn. App. 603, 627–29, 333 A.3d 797, cert. denied,
352 Conn. 901, 334 A.3d 1006 (2025).
As discussed, the petitioner did not raise these claims at his criminal trial or on direct appeal from his conviction.
Johnson v. Commissioner of Correction
The only basis for cause asserted by the petitioner is the alleged ineffective assistance of his trial and appellate counsel. As expressed in parts I and II of this opinion, the petitioner has not established that either his trial or appellate counsel provided ineffective assistance by not raising these claims. The petitioner, therefore, has failed to show the requisite cause to overcome the bar of procedural
default. Accordingly, the habeas court did not improperly dismiss the petitioner’s claim alleging trial court error.
The judgment is affirmed.
In this opinion the other judges concurred.