I.
Count One— Ineffective Assistance by Attorney Catalano
The
petitioner alleges numerous failures by Attorney Catalano.
Several bases for deficient performance were withdrawn at the
habeas trial, namely the allegations in paragraph 28,
subsections B, C, J, K, L, P, and Q. The petitioner’s
post-trial brief also specified that subsections G and U were
withdrawn.[1] Additionally, paragraph 32,
subsections A, C, and D were withdrawn, as well paragraphs
37, 38, and 40. The court will address the remaining
allegations in seriatim, either individually or grouped
together when it facilitates the court’s analysis and
discussion.[2]
"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 ...
As enunciated in Strickland v. Washington, [ 466
U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], [our
Supreme Court] has stated: It is axiomatic that the right to
counsel is the right to the effective assistance of counsel
... A claim of ineffective assistance of counsel consists of
two components: a performance prong and a prejudice prong ...
The claim will succeed only if both prongs are satisfied ...
"To prove his or her entitlement to relief pursuant to
Strickland, a petitioner must first satisfy what the
courts refer to as the performance prong; this requires that
the petitioner demonstrate that his or her counsel’s
assistance was, in fact, ineffective in that counsel’s
performance was deficient. To establish that there was
deficient performance by the petitioner’s counsel, the
petitioner must show that counsel’s representation fell below
an objective standard of reasonableness ... A reviewing court
must view counsel’s conduct with a strong presumption that it
falls within the wide range of reasonable professional
assistance ... The range of competence demanded is reasonably
competent, or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal law
...
"
‘[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
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.’
(Internal quotation marks omitted.) Mukhtaar v.
Commissioner of Correction, 158 Conn.App. 431, 449, 119
A.3d 607 (2015). In reconstructing the circumstances, ‘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 ...’ (Internal quotation marks
omitted.) Michael T. v. Commissioner of Correction,
319 Conn. 623, 632, 126 A.3d 558 (2015), quoting Cullen
v. Pinholster, 563 U.S. 170, 196, 131 S.Ct. 1388, 179
L.Ed.2d 557 (2011)." Spearman v. Commissioner of
Correction, 164 Conn.App. 530, 538-39, 138 A.3d 378,
cert. denied, 321 Conn. 923, 138 A.3d 284 (2016).
"
‘The reasonableness of counsel’s actions may be determined or
substantially influenced by the [petitioner’s] own statements
or actions. Counsel’s actions are usually based, quite
properly, on informed strategic choices made by the
[petitioner] and on information supplied by the [petitioner].
In particular, what investigation decisions are reasonable
depends critically on such information. For example, when the
facts that support a certain potential line of defense are
generally known to counsel because of what the defendant has
said, the need for further investigation may be considerably
diminished or eliminated altogether. And when a defendant has
given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel’s
failure to pursue those investigations may not later be
challenged as unreasonable.’ Strickland v. Washington,
supra, 466 U.S. at 690-91, 104 S.Ct. 2052.
"
‘Defense counsel will be deemed ineffective only when it is
shown that a defendant has informed his attorney of the
existence of the witness and that the attorney, without a
reasonable investigation and without adequate explanation,
failed to call the witness at trial. The reasonableness of an
investigation must be evaluated not through hindsight but
from the perspective of the attorney when he was conducting
it.’ State v. Talton, 197 Conn. 280, 297-98, 497
A.2d 35 (1985). Furthermore, ‘[t]he failure of defense
counsel to call a potential defense witness does not
constitute ineffective assistance unless there is some
showing that the testimony would have been helpful in
establishing the asserted defense.’ Id., at 297, 497
A.2d 35.
"In
making this determination, a court hearing an ineffectiveness
claim must consider the totality of the evidence before the
judge or the jury ... Some errors will have had a pervasive
effect on the inferences to be drawn from the evidence
altering the entire evidentiary picture, and some will have
had an isolated, trivial effect. Moreover, a verdict or
conclusion only weakly supported by the record is more likely
to have been affected by errors than one with overwhelming
record support ... [T]he ultimate focus of inquiry must be on
the fundamental fairness of the proceeding whose result is
being challenged ... The benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result." (Citations omitted; internal quotation marks
omitted.) Gaines v. Commissioner of Correction, 306
Conn....
