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LEONARD R. TALTON v. COMMISSIONER
OF CORRECTION
(AC 36039)
Lavine, Alvord and Bishop, Js.
Argued November 20, 2014—officially released January 27, 2015
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
Albert J. Oneto IV, assigned counsel, for the appel-
lant (petitioner).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Michael
Dearington, state’s attorney, and Adrienne Maciulew-
ski, deputy assistant state’s attorney, for the appellee
(respondent).
Opinion
ALVORD, J. The petitioner, Leonard R. Talton,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
denying his second petition for a writ of habeas corpus.
The petitioner claims that the court (1) abused its dis-
cretion in denying his petition for certification to
appeal, and (2) improperly concluded that he was not
deprived of the effective assistance of appellate counsel
and prior habeas counsel. We dismiss the petitioner’s
appeal.
The underlying facts were set forth in this court’s
opinion in State v. Talton, 63 Conn. App. 851, 779 A.2d
166, cert. denied, 258 Conn. 907, 782 A.2d 1250 (2001),
in which this court affirmed the trial court’s judgment
of conviction. This court determined that the jury rea-
sonably could have found the following facts: ‘‘On
March 22, 1997, at approximately 8:30 p.m., a shooting
occurred at the Quinnipiac Terrace Housing Complex
. . . in New Haven. As a result, the victim, Tyrone Bel-
ton, died after receiving a single gunshot wound to the
chest. A friend of the victim, Tacumah Grear, witnessed
the shooting and the events that had led to the shoot-
ing.’’ Id., 853.
There were two assailants, one wearing a camouflage
mask and the other wearing a hood pulled tightly over
his head. Grear saw the hooded man point a gun at
Belton and fire it. After the assailants fled, the police
arrived and questioned Grear. Grear chose not to iden-
tify the assailants, even though he knew both of them
prior to the night in question and recognized the men
as the petitioner and the petitioner’s brother. A few
days later, however, Grear informed the police that the
petitioner had been the shooter and that the petitioner’s
brother had been the accomplice. Id., 854. The peti-
tioner was arrested, tried before a jury and convicted
of murder, conspiracy to commit murder, criminal pos-
session of a firearm and carrying a pistol without a
permit. Id., 852.
On direct appeal, the petitioner claimed, inter alia,
that he was deprived of a fair trial because the trial
court improperly allowed uniformed correction officers
to be present during jury selection. Id., 853. The peti-
tioner was represented by Richard E. Condon, Jr., a
special deputy assistant public defender. This court
declined to address the merits of that claim, however,
because the record was inadequate. The record was
devoid of any detail with regard to the correction offi-
cers’ behavior or their proximity to the petitioner. With-
out that information, this court concluded that any
decision it made respecting that claim would be entirely
speculative. Id., 861.
Following the petitioner’s unsuccessful appeal, the
petitioner’s first habeas counsel, Sebastian O. DeSantis,
filed a petition for a writ of habeas corpus. The peti-
tioner claimed that his trial counsel, Lawrence Hopkins,
provided ineffective assistance because he failed to
investigate properly and to present an alibi defense.
The first habeas court, Fuger, J., denied the petition,
and this court affirmed the judgment. Talton v. Com-
missioner of Correction, 84 Conn. App. 608, 854 A.2d
764, cert. denied, 271 Conn. 930, 859 A.2d 585 (2004).
Subsequently, the petitioner filed his second petition
for a writ of habeas corpus, the present action, alleging
that Condon and DeSantis rendered ineffective assis-
tance on direct appeal and during the first habeas pro-
ceeding, respectively. Specifically, he claims that
Condon’s representation was deficient because he
‘‘failed to file a motion for rectification to create an
appellate record’’ regarding the location of correction
officers during the criminal trial. With respect to
DeSantis, the petitioner claims that his representation
was deficient because he failed to challenge Hopkins’
failure to create a record regarding the location of the
correction officers during the criminal trial.1
The matter was tried before the present habeas court
(second habeas court), Newson, J., the morning of May
2, 2013. The second habeas court heard testimony from
DeSantis and the petitioner. The petitioner submitted
one exhibit, a copy of an excerpt from the transcript
of one day of jury selection during his criminal trial. The
respondent, the Commissioner of Correction, submitted
six exhibits, some of which related to disciplinary viola-
tions committed by the petitioner during his period of
incarceration. After the parties rested, counsel made
brief closing arguments. The court then took a recess
and reconvened at noon to give its oral ruling.
In its ruling, the second habeas court made the follow-
ing determinations: (1) the petitioner’s only exhibit
‘‘merely references the fact that there are correction
officers’’ in the courtroom; (2) the petitioner ‘‘failed
to meet his burden of proof to show that [Condon’s]
performance was in any way deficient or that [the peti-
tioner] was in any way prejudiced because . . . he’s
failed to show by any reasonable basis that appellate
counsel could have [filed a motion for rectification],
and he’s failed to show what, if anything, would have
been the result of this information, had it come for-
ward’’; (3) with respect to the claims against DeSantis,
his prior habeas counsel, the petitioner was required to
prove that both DeSantis and Hopkins were ineffective,
and he ‘‘failed to prove . . . that either counsel was
ineffective as to any of the claims presented’’; (4) ‘‘the
minimal evidence that was presented here was the peti-
tioner’s claim that there were correction officers sitting
behind [him]’’; (5) the evidence presented failed to
establish that the mere presence of correction officers
in the courtroom violated the petitioner’s constitutional
rights; (6) accordingly, the petitioner failed to demon-
strate that Hopkins’ performance or DeSantis’ perfor-
mance was deficient for failure to vigorously address
the issue; (7) DeSantis testified that he believed that
he must not have raised the issue during the first habeas
proceeding because he believed it was not a viable
issue; and (8) the petitioner additionally failed to prove
that he was prejudiced by the alleged failures of
DeSantis or Hopkins. For those reasons, the second
habeas court denied the petitioner’s second petition
for a writ of habeas corpus. Subsequently, the second
habeas court denied the petition for certification to
appeal from the judgment, and this appeal followed.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
he must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
Second, if the petitioner can show an abuse of discre-
tion, he must then prove that the decision of the habeas
court should be reversed on its merits. . . .
‘‘To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further . . . .
‘‘We examine the petitioner’s underlying claim of inef-
fective assistance of counsel in order to determine
whether the habeas court abused its discretion in deny-
ing the petition for certification to appeal. 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 erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Internal quotation marks omitted.) Day
v. Commissioner of Correction, 151 Conn. App. 754,
757–58, 96 A.3d 600, cert. denied, 314 Conn. 936, 102
A.3d 1113 (2014).
To prevail on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy two require-
ments. ‘‘First, the [petitioner] must show that counsel’s
performance was deficient. . . . Second, the [peti-
tioner] must show that the deficient performance preju-
diced the defense. . . . Unless a [petitioner] makes
both showings, it cannot be said that the conviction
. . . resulted from a breakdown in the adversarial pro-
cess that renders the result unreliable. . . . A
reviewing court need not address both components of
the inquiry if the [petitioner] makes an insufficient
showing on one.’’ (Citation omitted; internal quotation
marks omitted.) Ramey v. Commissioner of Correc-
tion, 150 Conn. App. 205, 209, 90 A.3d 344, cert. denied,
314 Conn. 902, 99 A.3d 1168 (2014). ‘‘When a petitioner
is claiming ineffective assistance of appellate counsel,
his burden is to prove that there is a reasonable proba-
bility that but for appellate counsel’s error, the peti-
tioner would have prevailed in his direct appeal.’’
Charles v. Commissioner of Correction, 112 Conn. App.
349, 351, 962 A.2d 868, cert. denied, 290 Conn. 922, 966
A.2d 235 (2009).
With this standard in mind, we look to the petitioner’s
first claim that Condon failed to provide effective assis-
tance of counsel because he did not file a motion for
rectification of the record when he represented the
petitioner in the direct appeal. Specifically, the peti-
tioner argues that Condon should have attempted to
augment the record because ‘‘the record needed to con-
tain, at a minimum, evidence of the number of officers
present in the courtroom and their proximity to the
[petitioner].’’ By failing to obtain such information, it
is claimed that Condon should have known that the
Appellate Court would find the record inadequate and
decline to review that claim.
We conclude that the second habeas court properly
determined that the petitioner failed to prove that Con-
don’s failure to file a motion for rectification or augmen-
tation of the record constituted deficient performance
or that the petitioner’s defense had been prejudiced at
the criminal trial.2 As noted by the court, the only evi-
dence presented during the second habeas trial regard-
ing the location of the correction officers was the
petitioner’s exhibit indicating that two or three correc-
tion officers were coming in and out of the courtroom
and the petitioner’s testimony that two to three correc-
tion officers were sitting directly behind him.3 The peti-
tioner, having been present during jury selection and
the trial, was in a position to give a detailed account
of the circumstances surrounding the placement and
behavior of the correction officers. He provided nothing
more than what was stated by the court, and no other
witness provided additional information with respect
to this issue.4
The petitioner has failed to satisfy his burden of proof
in this matter because his evidence that two to three
correction officers were in close proximity to the peti-
tioner in the courtroom simply is insufficient for him
to prevail. ‘‘Whether the presence of security personnel
in a courtroom during trial was so prejudicial to the
defendant as to deprive him of his right to a fair trial
is decided on a case-by-case basis. . . . It is not the sort
of inherently prejudicial practice that, like shackling,5
should be permitted only where justified by an essential
state interest specific to each trial. . . . While shack-
ling and prison clothes are unmistakable indications of
the need to separate a defendant from the community
at large, the presence of guards at a defendant’s trial
need not be interpreted as a sign that he is particularly
dangerous or culpable. Jurors may just as easily believe
that the officers are there to guard against disruptions
emanating from outside the courtroom or to ensure that
tense courtroom exchanges do not erupt into violence.’’
(Citations omitted; footnote added; internal quotation
marks omitted.) State v. Higgins, 265 Conn. 35, 76, 826
A.2d 1126 (2003). For these reasons, the petitioner’s
claim with respect to Condon, his appellate counsel,
fails.6
The petitioner’s second claim of ineffective assis-
tance is directed against his prior habeas counsel. He
argues that DeSantis’ representation was deficient
because he failed to challenge Hopkins’ failure to create
a record regarding the location of the correction officers
during the criminal trial.
With respect to a claim of ineffective assistance of
prior habeas counsel, a petitioner is required ‘‘to demon-
strate that his prior habeas counsel’s performance was
ineffective and that this ineffectiveness prejudiced the
petitioner’s prior habeas proceeding. . . . [T]he peti-
tioner will have to prove that . . . the prior habeas
counsel, in presenting his claims, was ineffective and
that effective representation by habeas counsel estab-
lishes a reasonable probability that the habeas court
would have found that he was entitled to reversal of
the conviction and a new trial . . . . Therefore, as
explained by our Supreme Court in Lozada v. Warden,
223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming
ineffective assistance of habeas counsel on the basis
of ineffective assistance of trial counsel . . . must
prove both (1) that his appointed habeas counsel was
ineffective, and (2) that his trial counsel was ineffec-
tive. . . .
‘‘Furthermore, for any ineffective assistance claim,
we also are cognizant that the performance inquiry must
be whether counsel’s assistance was reasonable consid-
ering all the circumstances. . . . Judicial scrutiny of
counsel’s performance must be highly deferential. . . .
Because of the difficulties inherent in making the evalu-
ation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reason-
able professional assistance; that is, the [petitioner]
must overcome the presumption that, under the circum-
stances, the challenged action might be considered
sound trial strategy.’’ (Emphasis in original; internal
quotation marks omitted.) Edwards v. Commissioner
of Correction, 141 Conn. App. 430, 438–39, 63 A.3d 540,
cert. denied, 308 Conn. 940, 66 A.3d 882 (2013).
In the present case, DeSantis testified at the second
habeas trial. Counsel for both parties questioned him
as to the reason that he failed to include a claim in the
first petition for a writ of habeas corpus that Hopkins’
representation was deficient because he did not create
an adequate record concerning the location of the cor-
rection officers in the courtroom. DeSantis testified that
in determining which issues to raise in a habeas case,
he meets with the client, reviews trial counsel’s file,
obtains and reviews the trial court record, obtains and
reviews the appellate record and decision, and reviews
all of the transcripts. He also testified that he tends to
include as many issues as he can in a habeas petition,
knowing that the issues can be narrowed as the matter
progresses. In this case, DeSantis testified that after
conducting his investigation, he brought all claims that
he believed were colorable claims. The second habeas
court, in discussing the performance of DeSantis,
expressly stated in its ruling that ‘‘habeas counsel indi-
cated that he remembers the matter and believes that
he must not have raised it because after reviewing it,
he believed it not to be a viable issue.’’
The decision of DeSantis not to include this particular
claim in the first habeas petition clearly ‘‘falls into the
category of trial strategy or judgment calls that we
consistently have declined to second guess.’’ (Internal
quotation marks omitted.) Crocker v. Commissioner of
Correction, 126 Conn. App. 110, 132, 10 A.3d 1079, cert.
denied, 300 Conn. 919, 14 A.3d 333 (2011). Moreover,
for the reasons previously discussed in connection with
the petitioner’s claims against Condon for failure to
address the correction officers issue, we likewise con-
clude that the petitioner has failed to prove that any
alleged errors by DeSantis and Hopkins prejudiced his
defense. Accordingly, the petitioner’s claim against his
prior habeas counsel fails.
Upon our examination of the record and briefs, as
well as the court’s resolution of the issues presented
in the habeas petition, we are not persuaded that the
court abused its discretion in denying the petition for
certification to appeal. The petitioner has not demon-
strated that the issues presented are debatable among
jurists of reason, that a court could resolve the issues
in a different manner or that the questions are adequate
to deserve encouragement to proceed further. See
Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860,
112 L. Ed. 2d 956 (1991); Simms v. Warden, supra, 230
Conn. 616.
The appeal is dismissed.
In this opinion the other judges concurred.
1
Although the petitioner’s operative petition included other claims of
deficient performance with respect to Condon and DeSantis, the petitioner
expressly limited his claim to alleged deficiencies regarding the issue of the
presence of the correction officers during his criminal proceeding. During
his closing argument in the second habeas trial, counsel for the petitioner
stated: ‘‘The issue—the sole issue is the location of the correction officers
during the course of [the petitioner’s] trial. [DeSantis] did not address the
fact that [Hopkins] did not lay a foundation or lay a record for the Appellate
Court to make . . . an intelligent decision as to whether the location of
these correction officers was raising prejudice in the minds of the jury. The
same would be said for [Condon], who did not seek rectification to try to
set the stage as to . . . where the correction officers were at that time.’’
In the petitioner’s appellate brief, he makes the statement that ‘‘he was
denied a fair trial because of the prejudicial effect of being placed in shackles
and surrounded by officers in front of the jury . . . .’’ Although such allega-
tions were made in the operative petition, habeas counsel did not pursue
those claims during the second habeas trial. The petitioner did not testify
at the second habeas trial that he had been shackled and surrounded by
officers in front of the jury. The sole claim was that the mere presence of
the correction officers in the courtroom in close proximity to the petitioner
deprived him of a fair trial. The petitioner testified only that there were two
to three correction officers sitting behind him. There was no other evidence
relative to the behavior or location of the correction officers or whether
they were armed or uniformed.
2
The petitioner argues that the second habeas court made the finding
that ‘‘Condon could not have corrected the record on appeal to reflect this
information’’ and that such a finding was ‘‘clearly erroneous.’’
The court made the following statements in its ruling: ‘‘There’s no proof
here that appellate counsel could have even rectified the record or gotten
these things placed on the record. This is—it sounds like, at least from the
evidence that was presented to this court, this was information that was
never, in fact, placed on the record.
‘‘Where one thinks of rectification, again, it’s mostly things that are
either—were placed on the record and were incorrect; things that the court
failed to rule on, although they were placed before the court such as a
motion where maybe the court rules on three of the issues raised and forgets
to do the fourth, and things of that sort.
‘‘Here, we’re talking about events, at least from the limited evidence that
was presented before the court, that were possibly never addressed on the
record other than this conversation where [Hopkins] mentions there are
[correction officers] coming in and out of the courtroom.’’
Aside from whether the court’s statements with respect to a motion for
rectification or augmentation of the record may have been inaccurate, it is
clear from a reading of the entire ruling that the court’s questioning of the
procedural vehicle proposed by the petitioner to elicit the information about
the correction officers did not form the basis of the court’s denial of the
petition. Moreover, and more significantly, the court properly focused on
the petitioner’s failure ‘‘to show, what, if anything, would have been the
result of this information, had it come forward. Would it have changed [the]
appeal at all, and that is also his burden . . . .’’ The record reflects that
no evidence was presented to show what information would have been
forthcoming if an evidentiary hearing had been held on a motion to augment
the record and whether that information would have led to a different result
in the direct appeal. See Young v. Commissioner of Correction, 120 Conn.
App. 359, 375, 991 A.2d 685 (petitioner did not demonstrate reasonable
probability existed that, but for counsel’s failure to request articulation, he
would have prevailed on appeal), cert. denied, 297 Conn. 905, 995 A.2d
635 (2010).
3
The petitioner states that his testimony is uncontroverted with respect
to the location of the correction officers. Even if uncontroverted, however,
the habeas court was not required to credit the petitioner’s testimony.
‘‘[O]rdinarily the trial court has discretion to reject even uncontested evi-
dence, on the theory that the fact finder is uniquely well situated to make
determinations of witness credibility. . . . The fact that certain evidence
is not controverted does not mean that it must be credited.’’ (Citations
omitted; internal quotation marks omitted.) State v. DeMarco, 311 Conn.
510, 521 n.4, 88 A.3d 491 (2014).
4
Although the petitioner was not required to call them as witnesses, we
note that he did not call Hopkins or anyone else who had been present
during his criminal trial to testify as to the security measures that had been
employed. Condon did not testify at the second habeas trial and, accordingly,
we do not know his reason for not filing a motion to rectify or augment
the record.
5
As noted in State v. Woolcock, 201 Conn. 605, 617 n.5, 518 A.2d 1377
(1986), ‘‘[i]t has even been said that [a]n appellate court will not find error
on the ground that the defendant was shackled unless it is shown that the
jury saw the shackles.’’ (Internal quotation marks omitted.) On appeal, the
petitioner has not made the claim that he was shackled in front of the jury.
It may be that shackles, if any, were removed before the jurors entered the
courtroom or that the petitioner was positioned in such a way that shackles
were not visible to the jury. At any rate, shackling is not an issue before us.
6
Moreover, the evidence presented by the respondent at the second
habeas trial indicated that the petitioner had been placed at Northern Correc-
tional Institution, the state’s most secure correctional institution, because
of disciplinary violations during his period of incarceration. Some of those
violations involved threatening and assaults on correction officers. The
second habeas court referred to the petitioner’s history of disciplinary viola-
tions when his counsel was arguing that the defense had been prejudiced
by the presence of the correction officers in the courtroom. The court asked:
‘‘But, I mean, just for purposes of argument, what’s the prejudice? You have
a person who’s admittedly in Northern because of disciplinary issues, in
the highest security prison we’ve got in the state, he’s in on murder charges,
and he’s representing himself at trial.’’