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ROGER B. v. COMMISSIONER
OF CORRECTION*
(AC 39919)
Lavine, Bright and Pellegrino, Js.
Syllabus
The petitioner, who had been convicted of sexual assault and risk of injury
to a child in connection with certain incidents that occurred between
1995 and 2000, sought a writ of habeas corpus, claiming that his trial
counsel had rendered ineffective assistance by failing to raise a statute
of limitations affirmative defense with respect to an eighteen month
delay between the issuance in 2005 of the warrant for the petitioner’s
arrest and the execution of the warrant in 2007. The petitioner had given
the police a statement in 2000, after which he relocated to Indiana and
then to Alabama. The police completed their investigation in 2000 and
discovered no additional evidence between then and 2005. In 2007, after
the police located the petitioner, he was extradited to Connecticut from
Alabama and served with the arrest warrant. The petitioner contended
that although the arrest warrant was issued within the applicable five
year statute of limitations (§ 54-193a), the issuance of the warrant did
not satisfy § 54-193a because the police did not execute the warrant
without unreasonable delay. The habeas court rendered judgment deny-
ing the habeas petition. The court concluded that trial counsel did not
act deficiently in not filing a motion to dismiss the charges against the
petitioner and that the petitioner had failed to establish that he was
prejudiced by counsel’s failure to challenge the warrant as stale or to
challenge the delay in the execution of the warrant. The habeas court
limited its discussion of the petitioner’s claim to whether the warrant
had been issued within the limitations period of the applicable statute
(§ 54-193) and did not consider whether the delay in the service of the
warrant was unreasonable. The petitioner then appealed to this court,
which reversed the habeas court’s judgment in part and remanded the
case to that court for a hearing in accordance with State v. Crawford
(202 Conn. 443) on the petitioner’s claim with regard to the statute of
limitations affirmative defense. On remand, a different habeas court
rendered judgment denying the habeas petition and concluded that the
petitioner had failed to establish that his trial counsel rendered ineffec-
tive assistance. The second habeas court determined that Crawford did
not apply to the petitioner’s statute of limitations affirmative defense
because the limitations period in § 54-193a had been tolled by § 54-193
(d) as a result of the petitioner’s relocation outside of Connecticut. In
an articulation of its decision, the second habeas court stated that
the petitioner had been elusive, unavailable and unapproachable by
Connecticut law enforcement, and that he had failed to present evidence
that the state could not demonstrate that the delay in executing the
warrant was reasonable. The court thereafter granted the petition for
certification to appeal, and the petitioner appealed to this court. He
claimed, inter alia, that the second habeas court improperly determined
that § 54-193 (d) tolled the statute of limitations and concluded that he
had been elusive, unavailable and unapproachable by the police. Held:
1. The second habeas court properly denied the petition for a writ of habeas
corpus, as the petitioner failed to demonstrate that he was prejudiced
or harmed by his trial counsel’s failure to assert a statute of limitations
affirmative defense:
a. The habeas court incorrectly determined that § 54-193 (d), and not
Crawford, was the controlling law on the petitioner’s statute of limita-
tions affirmative defense claim, as the arrest warrant was issued within
the five year limitation period of § 54-193, and, thus, § 54-193 (d), which
extends the time within which an indictment, information or complaint
may be brought with respect to a person who fled from and resided
outside the state after the commission of the offense, became irrelevant.
b. The habeas court erred in determining that the petitioner had been
elusive, unavailable and unapproachable by the police once the arrest
warrant had been issued, that court having made no factual findings as
to his actions following the date that the warrant was issued, save that
he moved from Indiana to Alabama; whether the warrant was executed
without unreasonable delay is determined by whether the petitioner
was elusive, unavailable and unapproachable, factors that do not come
into play until the date that the warrant has been issued, from which
reasonable time is measured, and the court predicated its findings on
movements by the petitioner that occurred at least four years before
the warrant was issued.
c. The habeas court properly found that the petitioner failed to demon-
strate that the state could not prove that the time in which the arrest
warrant was served was reasonable; the evidence demonstrated that
the petitioner left Connecticut approximately four years before the war-
rant was issued, that he had numerous addresses in Indiana, including
a post office box number, that he moved to Alabama, and that the police
made efforts to locate him through the United States Marshals Service,
and the record demonstrated that the petitioner was promptly served
with the warrant approximately one month after he was located in
Alabama and extradited to Connecticut.
2. The habeas court properly found that trial counsel’s representation of
the petitioner did not fall below an objective standard of reasonableness
and that the petitioner was not prejudiced by his counsel’s performance;
although this court disagreed with the statutory routes by which the
habeas courts reached their conclusions that counsel did not render
deficient performance, the underlying procedural history did not support
a conclusion that trial counsel’s performance was deficient, as the record
did not reveal that the petitioner presented expert testimony to contra-
dict the opinions of his trial counsel and the appellate lawyers with
whom counsel had consulted about the statute of limitations affirmative
defense, both habeas courts agreed that counsel’s decision to forgo a
statute of limitations affirmative defense was legally sound, and the
petitioner’s claim that the delay in the execution of the arrest warrant
violated his right to due process had been rejected in his direct appeal
from his conviction.
Argued March 21, 2018, and January 8, 2019—officially
released June 25, 2019**
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, Cobb, J.; judgment deny-
ing the petition; thereafter, the court denied the petition
for certification to appeal, and the petitioner appealed
to this court, which reversed the judgment in part and
remanded the case for further proceedings; subse-
quently, the matter was tried to the court, Sferrazza,
J.; judgment denying the petition, from which the peti-
tioner, on the granting of certification, appealed to this
court; thereafter, the court, Sferrazza, J., issued an
articulation of its decision. Affirmed.
Deren Manasevit, assigned counsel, for the appel-
lant (petitioner).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were David S. Shepack, state’s
attorney, and Tamara Grosso, assistant state’s attorney,
for the appellee (respondent).
Opinion
LAVINE, J. The primary issue in this appeal from the
denial of the amended petition for a writ of habeas
corpus filed by the petitioner, Roger B., is whether he
was denied the effective assistance of counsel at his
criminal trial because trial counsel failed to assert a
statute of limitations affirmative defense to the criminal
charges against him. We conclude that no such depriva-
tion occurred because the petitioner failed to carry his
burden to prevail on an ineffective assistance of counsel
claim pursuant to the two part test articulated in Strick-
land v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). To succeed under Strickland,
a petitioner must present evidence that ‘‘(1) counsel’s
representation fell below an objective standard of rea-
sonableness, 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.’’ (Emphasis in original.) Johnson v. Com-
missioner of Correction, 285 Conn. 556, 575, 941 A.2d
248 (2008). The petitioner bears ‘‘the burden to prove
that his counsel’s performance was objectively unrea-
sonable.’’ Eubanks v. Commissioner of Correction, 329
Conn. 584, 598, 188 A.3d 702 (2018). ‘‘[A]ctual ineffec-
tiveness claims alleging a deficiency in attorney perfor-
mance are subject to a general requirement that the
defendant affirmatively prove prejudice.’’ (Internal quo-
tation marks omitted.) Fisher v. Commissioner of Cor-
rection, 45 Conn. App. 362, 366–67, 696 A.2d 371, cert.
denied, 242 Conn. 911, 697 A.2d 364 (1997). In the pre-
sent case, the petitioner not only failed to prove that
his counsel’s performance was deficient but also failed
to demonstrate that he was prejudiced by the alleged
deficient performance.1 A detailed review of this case’s
tangled procedural history is required to place this deci-
sion in its proper context.
This is the petitioner’s second appeal challenging the
denial of his amended petition for a writ of habeas
corpus. In Roger B. v. Commissioner of Correction,
157 Conn. App. 265, 278–80, 116 A.3d 343 (2015), this
court reversed in part the judgment of the habeas court,
Cobb, J., and remanded the case with direction to hold
a hearing in accordance with State v. Crawford, 202
Conn. 443, 521 A.2d 1034 (1987), regarding the petition-
er’s claim that his trial counsel rendered ineffective
assistance by failing to assert a statute of limitations
affirmative defense with respect to the eighteen month
delay between the issuance and execution of the war-
rant for the petitioner’s arrest. On remand, the second
habeas court, Sferrazza, J., denied the amended peti-
tion, concluding that the petitioner failed to establish
that his trial counsel rendered ineffective assistance.
Central to its conclusion was the court’s determination
that Crawford did not apply because the applicable
statute of limitations, General Statutes § 54-193a,2 had
been tolled by General Statutes § 54-193 (c), now § 54-
193 (d),3 as a result of the petitioner’s relocation outside
Connecticut. In a subsequent articulation, the second
habeas court found that the petitioner was elusive,
unavailable, and unapproachable when he left Connect-
icut and that he had failed to present evidence that the
state could not demonstrate that the delay in executing
the warrant was reasonable.
In this certified appeal, the petitioner claims that the
second habeas court improperly (1) determined that
§ 54-193 (d) tolled the statute of limitations in analyzing
whether trial counsel rendered ineffective assistance
by failing to raise a statute of limitations affirmative
defense, (2) concluded that the petitioner was elusive,
and unavailable to and unapproachable by the police,
(3) concluded that he failed to demonstrate that the
state would have been unable to show that the police
had acted reasonably in executing the warrant, and (4)
rejected his claim of ineffective assistance of counsel.
We agree with the petitioner’s first two claims but reject
the latter two. We, therefore, affirm the judgment of
the second habeas court albeit on different grounds.4
On direct appeal from the petitioner’s underlying
criminal conviction, our Supreme Court concluded that
the jury reasonably could have found the following facts
on the basis of the evidence presented. See State v.
Roger B., 297 Conn. 607, 609, 999 A.2d 752 (2010)
(affirming conviction of sexual assault and risk of injury
to child). In 1995, the petitioner lived with his girlfriend
and her three children, two girls and a boy. Id., 609.
The girls shared a bedroom, and almost nightly, the
petitioner awakened the older of the two and took her
to the living room where he sexually assaulted her. Id.
In 1996, the petitioner, his girlfriend, and her children
moved to a new home. Id., 610. In the new home, the
petitioner awakened the younger girl, took her to
another room, and sexually assaulted her. Id.
The petitioner’s girlfriend was institutionalized in the
fall of 1999, and the petitioner became the sole care-
taker of the children until Department of Children and
Families (department) personnel removed them
because the petitioner was not one of the children’s
relatives. Id. In time, the girls were placed together in
a foster home. Id. A few months thereafter, the older
girl disclosed to her boyfriend, and later to her foster
mother, that the petitioner had abused her. Id. When
the younger girl told her foster mother that the peti-
tioner had abused her as well, the foster mother
reported the allegations to department personnel. Id.
Department personnel reported the girls’ allegations
of abuse to the New Milford Police Department (police).
Roger B. v. Commissioner of Correction, supra, 157
Conn. App. 272. On July 17, 2000, Detective James M.
Mullin watched a forensic interview of the girls. Id. On
August 31, 2000, the petitioner gave Mullin a statement
and permission for the police to search his apartment
and storage unit. Id. The petitioner left Connecticut
approximately five months after he gave the statement
to Mullin. Id.
The police completed their investigation in 2000 and
discovered no additional evidence between 2000 and
2005. Id. On July 6, 2005, the police obtained a warrant
to arrest the petitioner. Id. When the petitioner left
Connecticut, he moved to Indiana, where he had several
addresses, including a post office box. He later moved
to Alabama where United States marshals found him
in November, 2006. Id., 272–73. The state’s attorney
authorized the petitioner’s extradition from Alabama,
and he was transported to New York. Id. Mullin exe-
cuted the arrest warrant on January 24, 2007. Id., 273.
The petitioner was charged in a substitute information
with offenses that occurred on various dates between
October 1, 1995, and February 1, 2000. A jury found the
petitioner guilty of one count of sexual assault in the
first degree in violation of General Statutes § 53a-70 (a)
(2), two counts of sexual assault in the fourth degree
in violation of General Statutes § 53a-73a (a) (1) (A),
and three counts of risk of injury to a child in violation
of General Statutes § 53-21 (2). In April, 2008, the trial
court, Sheldon, J., sentenced the petitioner to a total
effective term of twenty-nine years in prison, execution
suspended after twenty-three years, and thirty years of
probation. State v. Roger B., supra, 297 Conn. 610–11.
The petitioner’s conviction was affirmed on direct
appeal. Id., 621.
The petitioner filed a petition for a writ of habeas
corpus on August 21, 2008, and an amended petition
on August 25, 2011. Roger B. v. Commissioner of Cor-
rection, supra, 157 Conn. 268–69. In his amended peti-
tion, the petitioner alleged that his trial counsel,
Christopher Cosgrove, had rendered ineffective assis-
tance by failing to assert a statute of limitations affirma-
tive defense, among other things. Id., 269. The habeas
court held an evidentiary hearing on the amended peti-
tion and issued a memorandum of decision on August
16, 2013. Id. The habeas court determined that the stat-
ute of limitations at issue was § 54-193a, which contains
a five year statute of limitations. See footnote 2 of
this opinion.
With respect to the performance prong of Strickland
and the statute of limitations affirmative defense, the
habeas court quoted State v. Crawford, supra, 202 Conn.
450, for the proposition that ‘‘[w]hen an arrest warrant
has been issued, and the prosecutorial official has
promptly delivered it to a proper officer for service, he
has done all he can under our existing law to initiate
prosecution and to set in motion the machinery that
will provide notice to the accused of the charges against
him . . . .’’ (Internal quotation marks omitted.) Roger
B. v. Commissioner of Correction, supra, 157 Conn.
App. 276. The habeas court found that Cosgrove had
‘‘reviewed the statute of limitations issue when he
received the case, did the math, and determined that
the warrant was executed within the applicable statute
of limitations period. Accordingly, he did not act defi-
ciently in not filing a motion to dismiss the charges
. . . .’’
As to the prejudice prong of Strickland v. Washing-
ton, supra, 466 U.S. 687, the habeas court ‘‘found that
the petitioner [had] failed to provide any credible evi-
dence to establish that he was prejudiced at trial by
[Cosgrove’s] failure to challenge the warrant as stale
or the delay in executing it.’’ (Internal quotation marks
omitted.) Roger B. v. Commissioner of Correction,
supra, 157 Conn. App. 275. The habeas court, therefore,
denied the petition for a writ of habeas corpus and,
thereafter, denied a petition for certification to appeal.
Id., 267.
The petitioner filed his first habeas appeal on Septem-
ber 30, 2013; id., 269; claiming that the habeas court
had abused its discretion by denying his petition for
certification to appeal; id., 267; and improperly had
concluded that Cosgrove had not rendered ineffective
assistance because the habeas court ‘‘failed to address
the postwarrant delay [in executing the warrant], find-
ing only that [trial counsel] reasonably calculated that
the warrant had been issued within the period of limita-
tion.’’ (Internal quotation marks omitted.) Id., 276. The
petitioner argued that Cosgrove’s failure to assert a
statute of limitations affirmative defense constituted
ineffective assistance pursuant to State v. Crawford,
supra, 202 Conn. 443, and State v. Ali, 233 Conn. 403,
660 A.2d 337 (1995). Roger B. v. Commissioner of Cor-
rection, supra, 157 Conn. App. 271. Moreover, he con-
tended that the issuance of the warrant for his arrest
did not satisfy the statute of limitations because the
warrant was not executed without unreasonable delay.
Id. Although the warrant had been issued on July 6,
2005, it was not executed until January 24, 2007. See id.
The petitioner noted that our Supreme Court has held
that the ‘‘timely issuance of the arrest warrant [satisfied]
the statute of limitations in the absence of an eviden-
tiary showing of unreasonable delay in its service upon
the defendant.’’ State v. Crawford, supra, 202 Conn.
452.5 In Ali, our Supreme Court held that ‘‘in order to
toll the statute of limitations, an arrest warrant, when
issued within the limitations of § 54-193 (b), must be
executed without unreasonable delay.’’ State v. Ali,
supra, 233 Conn. 415. The petitioner further contended
that Cosgrove’s failure to assert an affirmative defense
rendered his performance deficient and that, if the stat-
ute of limitations defense had been asserted, the out-
come of the criminal trial would have been different.
Roger B. v. Commissioner of Correction, supra, 157
Conn. App. 272.
This court agreed with the petitioner that the habeas
court’s analysis under § 54-193 (c) was improper, as it
failed to consider whether the delay in serving the war-
rant after it was issued was unreasonable. The habeas
court’s ‘‘discussion of the petitioner’s claim that [Cos-
grove] was ineffective in failing to assert a statute of
limitations affirmative defense was limited to the issu-
ance of the warrant within the statute of limitations.
Although the habeas court discussed the delay in execu-
tion of the warrant as it affected the petitioner’s defense,
the court focused on Cosgrove’s testimony that no wit-
nesses went missing and that the witnesses were able
to recall the events in concluding that the petitioner’s
defense had not been hindered.’’ Id., 278. This court
stated that a proper resolution of the petitioner’s claim
under State v. Crawford, supra, 202 Conn. 443, and
State v. Ali, supra, 233 Conn. 403, required the habeas
court to consider whether ‘‘there was a reasonable prob-
ability that the petitioner would have succeeded on a
statute of limitations affirmative defense that was based
on unreasonable delay in executing the warrant. Such
analysis would include considering whether the peti-
tioner had [put] forth evidence to suggest that [he] was
not elusive, was available and was readily approach-
able, such that the burden [would have] shift[ed] to the
state to prove that the delay in executing the warrant
was not unreasonable. State v. Woodtke, [130 Conn.
App. 734, 740, 25 A.3d 699 (2011)]; see Gonzalez v.
Commissioner of Correction, [122 Conn. App. 271, 286
and n.6, 999 A.2d 781, cert. denied, 298 Conn. 913, 4
A.3d 831 (2010)] . . . .’’ (Emphasis added; internal quo-
tation marks omitted.) Roger B. v. Commissioner of
Correction, supra, 157 Conn. App. 278–79.
In addition, this court concluded that the record was
inadequate to review the alternative ground proffered
by the respondent, the Commissioner of Correction, to
affirm the habeas court’s judgment, which was that trial
counsel was not ineffective in failing to challenge the
eighteen month delay in the service of the warrant
‘‘[b]ecause [the] petitioner’s decision to flee the state
tolled the statute of limitations,’’ pursuant to § 54-193
(d) and State v. Ward, 306 Conn. 698, 711, 52 A.3d 591
(2012). Roger B. v. Commissioner of Correction, supra,
157 Conn. App. 279–80 n.11.6 This court, therefore,
reversed the judgment in part and remanded the case
for a new hearing at which the petitioner could ‘‘present
his claim that his trial counsel was ineffective for failing
to raise a statute of limitations affirmative defense.’’7
Id., 280. The respondent was not precluded from raising
his alternative ground for affirmance on remand. Id.,
280 n.11.
On remand, the petitioner filed a pretrial brief in
which he set forth the evidence adduced at the first
habeas trial, ‘‘suggest[ing] that [he] was not elusive,
was available and was readily approachable,’’ and
argued that, given such evidence, the respondent bore
the burden of proving that the delay in executing the
warrant was not unreasonable. (Internal quotation
marks omitted.)
The second habeas court held a hearing on August
29, 2016, receiving evidence solely on the claim that
Cosgrove had rendered ineffective assistance by failing
to pursue a statute of limitations affirmative defense
to the criminal charges against the petitioner.8 The court
issued a memorandum of decision on November 23,
2016, in which it denied the petitioner’s amended peti-
tion. Thereafter, the court granted the petition for certi-
fication to appeal.
The petitioner appealed, claiming that in analyzing
his ineffective assistance of counsel claim, the second
habeas court (1) incorrectly determined that § 54-193
(d) tolled the statute of limitations and (2) improperly
rejected his claim of ineffective assistance of counsel.9
The appeal initially was argued on March 21, 2018. On
July 31, 2018, we sua sponte issued an articulation order
stating that ‘‘[t]his court retains jurisdiction over this
appeal and the case is remanded to [the second habeas
court] for further factual findings on the basis of the
existing record. See Barlow v. Commissioner of Correc-
tion, 328 Conn. 610, 614–15, 182 A.3d 78 (2018);10 Prac-
tice Book § 60-2 (8). In particular, the court is to make
factual findings related to the petitioner’s statute of
limitations defense as discussed by this court in Roger
B. v. Commissioner of Correction, [supra, 157 Conn.
App. 278–79] . . . including whether the petitioner was
not elusive, was available and was readily approach-
able, and if so, whether the delay in executing the war-
rant was unreasonable.’’
The second habeas court issued its articulation on
August 7, 2018, finding in part that the petitioner knew
of the sexual misconduct complaints against him when
he left Connecticut and that he was elusive, unavailable,
and unapproachable by Connecticut law enforcement,
except through extradition. Moreover, the petitioner
failed to demonstrate that a reasonable likelihood exists
that the state would have been unable to show that the
police acted reasonably and did not generate unjustifi-
able delay in executing the warrant.
On August 10, 2018, the petitioner filed a motion to
correct an allegedly erroneous factual finding in the
articulation and a motion for additional briefing on the
second habeas court’s formulation and application of
the law. We denied the petitioner’s motion to correct,
but granted the motion for supplemental briefing. After
the parties submitted supplemental briefs, we heard
additional argument from the parties on January 8, 2019.
Although we agree with the petitioner that the second
habeas court improperly determined that the petition-
er’s claim was controlled by § 54-193 (d), rather than
Crawford, we conclude that the court properly deter-
mined that Cosgrove’s legal representation was not defi-
cient, and that the petitioner failed to prove prejudice in
that he failed to present evidence that it was reasonably
likely that the state could not present evidence that the
delay in executing the warrant was reasonable.
I
STATUTE OF LIMITATIONS AFFIRMATIVE DEFENSE
On appeal, the petitioner claims that the second
habeas court improperly (1) determined that § 54-193
(d) tolled the statute of limitations in analyzing whether
Cosgrove rendered ineffective assistance by failing to
raise a statute of limitations affirmative defense, (2)
concluded that the petitioner was elusive, unavailable,
and unapproachable by the police, and (3) concluded
that he failed to show that it was unlikely that the state
would have been unable to prove that the police had
acted reasonably in executing the warrant. We agree
with the petitioner’s first two claims, but not his third.
‘‘Our standard of review of a habeas court’s judgment
on ineffective assistance of counsel claims is well set-
tled. The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous. . . .
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. . . . Therefore, our review of whether
the facts as found by the habeas court constituted a
violation of the petitioner’s constitutional right to effec-
tive assistance of counsel is plenary.’’ (Citation omitted;
internal quotation marks omitted.) Sanders v. Commis-
sioner of Correction, 169 Conn. App. 813, 822, 153 A.3d 8
(2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017).
‘‘To the extent that we are required to review conclu-
sions of law or the interpretation of the relevant statute
by the [habeas] court, we engage in plenary review.’’
Location Realty, Inc. v. Colaccino, 287 Conn. 706, 717,
949 A.2d 1189 (2008); see also Washington v. Commis-
sioner of Correction, 287 Conn. 792, 799–800, 950 A.2d
1220 (2008). ‘‘[W]hen the plaintiff asserts that the facts
found were insufficient to support the court’s legal con-
clusion, th[e] issue presents a mixed question of law
and fact to which we apply plenary review. . . . We
must therefore decide whether the court’s conclusions
are legally and logically correct and find support in the
facts that appear in the record.’’ (Internal quotation
marks omitted.) State v. Derks, 155 Conn. App. 87, 92,
108 A.3d 1157, cert. denied, 315 Conn. 930, 110 A.3d
432 (2015).
The second habeas court issued a memorandum of
decision following the remand hearing, in which it made
the following findings of fact. ‘‘On July 6, 2005, an arrest
warrant issued authorizing the apprehension of the peti-
tioner for having sexually assaulted his girlfriend’s two
young daughters . . . from October, 1995, to February,
2000. The pertinent statute of limitations was . . . § 54-
193a, which permitted prosecution for such crimes
within a period of five years from the time when the
victims notified law enforcement officials of the . . .
assaults. Unquestionably, the arrest warrant issued
within the designated period of time. The [police] prom-
ulgated a wanted persons notice regarding the peti-
tioner on July 7, 2005, one day after the judicial authority
issued the arrest warrant.’’ The court also found that
approximately four years before the arrest warrant was
issued, the petitioner had left Connecticut. United
States marshals located him in Alabama, where he was
apprehended on December 11, 2006. The police
returned him to Connecticut and executed the arrest
warrant on January 24, 2007.
The court stated: ‘‘[O]bviously, the date of arrest,
January 24, 2007, was beyond the five year time limit
afforded by § 54-193a for offenses committed between
1995 and 2000.’’ ‘‘Cosgrove recognized a possible viola-
tion of the statute of limitations. He researched that
issue and discussed the question with appellate lawyers
for the Office of the Chief Public Defender. As a result,
[Cosgrove] opined that, without proof of actual preju-
dice to the petitioner caused by the delay, no viable
statute of limitations affirmative defense existed. [Cos-
grove] explained his legal opinion to the petitioner, and
he declined to present such a defense at trial. . . .
‘‘Cosgrove represented the petitioner within the
bounds of effective assistance by deciding not to raise
a statute of limitations defense. Central to this . . .
finding is that [Cosgrove’s] assessment of the law
regarding execution of a stale warrant was correct; that
is, the running of the allotted time for service of the
arrest warrant was tolled by . . . § 54-193 (d) in light
of the petitioner’s relocation outside Connecticut. The
result was that both the issuance and service of the
arrest warrant occurred within the five year period, as
expanded by the petitioner’s absence from Connecti-
cut. . . .
‘‘The legal significance of [the] application of § 54-
193 [(d)] is that the entire question of unreasonable
delay becomes one of a denial of due process rather
than a statute of limitations violation. This is because
the rule announced in State v. Crawford, [supra, 202
Conn. 443], becomes inapposite. In Crawford, our
Supreme Court held that, even where an arrest warrant
has issued within the statute of limitations, that warrant
must be served without unreasonable delay . . . . But
in Crawford, the arrest came after the five year [limita-
tion period] had elapsed.
‘‘In footnote 8 [of its opinion, the court in Crawford]
explicitly stated that its decision avoided any consider-
ation of tolling under § 54-193 [(d)] because the [state]
failed to raise that question in that case. . . . Thus, the
Crawford holding only applies to situations where no
tolling under § 54-193 [(d)] comes into play to bring
the service of the arrest warrant within the five year
[limitation period] such that the warrant cannot be
deemed stale. . . .
‘‘[T]he analysis set forth in [Crawford] arrives at the
proper interpretation of the meaning of the word prose-
cution necessary to satisfy a purely statutory rule,
namely, that [the] time constraint set forth in § 54-193a,
in the situation when the issuance of an arrest warrant
and the execution of it fall on opposite sides of the
mandated time limit. Where, as in the present case,
both issuance and service take place within the five
year period, as elongated by the tolling provision con-
tained in § 54-193 [(d)] because the petitioner relocated
outside of Connecticut during the five year period, the
trial court would never have had occasion to address
the Crawford holding. . . .
‘‘Thus, [Cosgrove’s] opinion, that a statute of limita-
tions affirmative defense was unlikely to succeed with-
out a showing of actual prejudice sufficient to establish
an unfair trial, was accurate. The court finds that the
petitioner has failed to satisfy his burden of proving,
by a preponderance of the evidence, either prong of
the [Strickland v. Washington, supra, 466 U.S. 668]
standard.’’ (Citations omitted; emphasis omitted; inter-
nal quotation marks omitted.)
A
The petitioner claims that the second habeas court
wrongly concluded that § 54-193 (d), not State v. Craw-
ford, supra, 202 Conn. 450–52, governs the resolution
of his claim that Cosgrove rendered ineffective assis-
tance by failing to raise a statute of limitations affirma-
tive defense with respect to the eighteen month delay
between the issuance and the execution of the arrest
warrant. We agree with the petitioner that Crawford,
not the statute, is controlling.
‘‘An accused’s primary protection from having to
answer to stale criminal charges is the statute of limita-
tions.’’ State v. Echols, 170 Conn. 11, 16–17, 364 A.2d
225 (1975). ‘‘A statute of limitations . . . [ensures] that
a defendant receives notice, within a prescribed time,
of the acts with which he is charged, so that he and
his lawyers can assemble the relevant evidence [to pre-
pare a defense] before documents are lost [and] memo-
r[ies] fade . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Jennings, 101 Conn. App. 810,
818, 928 A.2d 541 (2007). ‘‘The policies underlying stat-
utes of limitations are best served when exceptions are
interpreted narrowly in favor of the accused and the
state has a strong incentive to ensure that a defendant
is provided timely notice of charges.’’ State v. Swebilius,
325 Conn. 793, 814, 159 A.3d 1099 (2017). ‘‘A statute of
limitations claim is an affirmative defense for which
the burden rests with the defendant to prove the ele-
ments of the defense by a preponderance of the evi-
dence.’’ State v. Woodtke, supra, 130 Conn. App. 740.
‘‘A statute of limitations affirmative defense on the
basis of unreasonable delay in execution of the warrant
is properly considered according to the framework set
forth in [State v. Crawford, supra, 202 Conn. 450] and
articulated in subsequent appellate decisions.’’ Roger
B. v. Commissioner of Correction, supra, 157 Conn.
App. 273. Pursuant to Crawford, ‘‘[w]hen an arrest war-
rant has been issued, and the prosecutorial official has
promptly delivered it to a proper officer for service, he
has done all he can under our existing law to initiate
prosecution and to set in motion the machinery that
will provide notice to the accused of the charges against
him. When the prosecutorial authority has done every-
thing possible within the period of limitation to evi-
dence and effectuate an intent to prosecute, the statute
of limitations is [satisfied].11 . . . An accused should
not be rewarded, absent evidence of a lack of due dili-
gence on the part of the officer charged with executing
the warrant, for managing to avoid apprehension to a
point in time beyond the period of limitation. . . .
[H]owever . . . some [time] limit as to when an arrest
warrant must be executed after its issuance is necessary
in order to prevent the disadvantages to an accused
attending stale prosecutions . . . .’’ (Citation omitted;
footnote added and footnote omitted.) State v. Craw-
ford, supra, 450.
Adopting the approach of the Model Penal Code,12
the court in Crawford held: ‘‘[I]n order to [satisfy] the
statute of limitations, an arrest warrant, when issued
within the time limitations of § 54-193 (b),13 must be
executed without unreasonable delay. . . . We do not
adopt a per se approach as to what period of time to
execute an arrest warrant is reasonable. A reasonable
period of time is a question of fact that will depend on
the circumstances of each case. If the facts indicate
that an accused consciously eluded the authorities, or
for other reasons was difficult to apprehend, these fac-
tors will be considered in determining what time is
reasonable. If, on the other hand, the accused did not
relocate or take evasive action to avoid apprehension,
failure to execute an arrest warrant for even a short
period of time might be unreasonable and fail to [satisfy]
the statute of limitations.’’ (Citation omitted; emphasis
added; footnote added.) Id., 450–51. Moreover, the
‘‘timely issuance of the arrest warrant [satisfied] the
statute of limitations in the absence of an evidentiary
showing of unreasonable delay in its service upon the
defendant.’’ Id., 452.14
On the basis of footnote 8 in Crawford, the habeas
court in the present case and the respondent both postu-
late that controlling precedent does not require the
application of Crawford to the petitioner’s claim. Not-
withstanding the footnote, the court in Crawford sum-
marized the proper application of § 54-193 (d) as
follows: ‘‘[Section 54-193 [(d)] . . . which tolls the stat-
ute as to the person who has fled from and resides
outside the state after the commission of the offense,
simply extends the time within which an indictment,
information or complaint may be brought.’’ (Emphasis
added; internal quotation marks omitted.) Id., 450 n.12.
In State v. Ali, supra, 233 Conn. 412, however, our
Supreme Court held that the defendant’s departure from
the state was not dispositive of his unreasonable delay
claim because ‘‘the outcome [was] controlled by [Craw-
ford].’’ Our Supreme Court explicitly rejected the state’s
argument that ‘‘by leaving the jurisdiction immediately
after the . . . incident, the defendant intended to
evade the authorities and . . . the statute of limitations
was satisfied.’’ Id. Connecticut courts consistently have
applied this framework to claims of unreasonable delay
in the execution of an arrest warrant issued within the
limitation period, regardless of whether a defendant
has relocated outside the state. See State v. Figueroa,
235 Conn. 145, 177–78, 665 A.2d 63 (1995); State v.
Derks, supra, 155 Conn. App. 93–95; Axel D. v. Commis-
sioner of Correction, 135 Conn. App. 428, 434–36, 41
A.3d 1196 (2012); Gonzalez v. Commissioner of Correc-
tion, supra, 122 Conn. App. 276–77; Thompson v. Com-
missioner of Correction, 91 Conn. App. 205, 210–12,
880 A.2d 965 (2005), appeal dismissed, 280 Conn. 509,
909 A.2d 946 (2006).
In the present case, the information was filed within
the five year limitation period, when the judicial author-
ity signed the petitioner’s arrest warrant on July 6, 2005.
Because the warrant was issued within the limitation
period, § 54-193 (d) became irrelevant. The only ques-
tion that remained was whether the warrant was exe-
cuted without unreasonable delay. See State v.
Crawford, supra, 202 Conn. 451–52. We reject the sec-
ond habeas court’s conclusion that the statute extended
the time in which the warrant could be served. We
conclude, therefore, that the habeas court incorrectly
determined that § 54-193 (d), not Crawford, is the con-
trolling law on a statute of limitations affirmative
defense in the present case.
B
The petitioner also claims that the second habeas
court improperly found that (1) he was elusive, unavail-
able, and unapproachable, and (2) the execution of the
warrant was reasonable. We agree with the petitioner
that the court erred in finding that he was elusive,
unavailable, and unapproachable, but disagree that the
court improperly determined that the delay in executing
the warrant was reasonable.
Following oral argument in March, 2018, we ordered
the second habeas court to articulate its findings as to
‘‘whether the petitioner was not elusive, was available
and was readily approachable, and if so, whether the
delay in executing the warrant was unreasonable.’’ In
its August 7, 2018 articulation, the second habeas court
made the following factual findings: ‘‘[I]t is incontro-
vertible that the petitioner knew of the sexual miscon-
duct complaints against him before he moved to Indiana
and Alabama. He remained out of Connecticut for the
entire time between the issuance of the arrest warrant
on July 7, 2005, to his apprehension in Alabama on
December 11, 2006, and extradition to Connecticut.
Upon his return to Connecticut, the arrest warrant was
served. The court, guided by State v. Ward, [supra,
306 Conn. 698], finds that the petitioner was elusive,
unavailable, and unapproachable by Connecticut law
enforcement personnel except through extradition.
‘‘Alternatively, employing the common meanings of
elusive, available, and approachable, uninfluenced by
the holding of State v. Ward, supra, [306 Conn. 698],
the court also finds that the petitioner acted elusively
and was unavailable and unapproachable. [The police]
interviewed the petitioner regarding the allegations of
child molestation against him in August, 2000. The peti-
tioner acknowledged that he knew, at that time, that the
victims had undergone forensic interviews. In January,
2001, about five months later, he [left] Connecticut for
Indiana, where he [married] a woman he met online
and [began] a new life. He moved from Indiana to Ala-
bama in September, 2006.
‘‘The petitioner testified at the first habeas trial . . .
and he never stated that he left a forwarding address
upon his departure from Connecticut. Nor was any
other evidence adduced at either habeas hearing that
he notified any governmental agency in Connecticut,
such as the United States Postal Service, about his new
residence in Indiana. While it is true that he never con-
cealed his identity while in Indiana or Alabama, that
circumstance falls short of proving, by a preponderance
of the evidence, that he remained available and
approachable to Connecticut law enforcement officers
while in those states.’’
1
The petitioner claims that the second habeas court
improperly found that he was elusive and unavailable
to and unapproachable by the police. We agree.
The petitioner does not take issue with the facts
found by the second habeas court, but disputes its con-
clusions that he was elusive, unavailable, and unap-
proachable. The court predicated its findings on the
fact that the petitioner knew that there was an ongoing
criminal investigation, that he left Connecticut approxi-
mately five months after he gave a statement to the
police and permitted them to search his property. The
court relied on language in Ward, specifically, ‘‘§ 54-
193 [(d)] may toll the statute of limitations when a
defendant absents himself from the jurisdiction with
reason to believe that an investigation may ensue as
the result of his actions.’’ State v. Ward, supra, 306
Conn. 711. Ward, however, is factually distinct from
the present case. In that case, the defendant, a Massa-
chusetts resident, whose employment took him to Con-
necticut; id., 704; sexually assaulted the victim in her
Killingly home in 1988. Id., 701. The defendant immedi-
ately returned to Massachusetts. Id., 713. The victim
did not know the defendant; id., 701; and his identity
was not discovered until 2006. Id., 704. Following his
conviction of sexual assault in the first degree, the
defendant appealed and claimed, in part, that the trial
court had improperly denied his motion to dismiss the
charges pursuant to § 54-193 (b). Id., 700–701.
On appeal, the defendant argued that the state ‘‘did
not present any evidence to show that he was aware
of a criminal investigation against him and that he fled
in order to avoid prosecution. In response, the state
contend[ed] that the term fled does not require an intent
to avoid arrest or prosecution and that any absence
from the jurisdiction, regardless of intent, tolls the stat-
ute of limitations. [Our Supreme Court agreed] with the
state that the plain language of § 54-193 [(d)] does not
require the defendant to leave the state with the intent
of avoiding prosecution.’’ Id., 710. The court ascertained
that the term fled means, in the context of § 54-193 (d),
to run from an investigation. Id., 711. It reviewed the
facts and determined that ‘‘it [was] undisputed that the
defendant returned to Massachusetts after the commis-
sion of a crime and continued to reside there until
his arrest more than twenty years later.’’ Id., 713. It
concluded, therefore, that the state had presented suffi-
cient evidence to toll the statute of limitations. Id.,
713–14.
The issue in the present case, however, is not whether
the statute of limitations had been tolled while the peti-
tioner was absent from the state or even why he left
the state. The issue is whether he was elusive, unavail-
able, or unapproachable once the warrant for his arrest
had been issued. Section 54-193 (d) ‘‘simply extends
the time within which an indictment, information or
complaint may be brought.’’ (Internal quotation marks
omitted.) State v. Crawford, supra, 202 Conn. 450 n.12.
Crawford teaches that the ‘‘timely issuance of the arrest
warrant [satisfied] the statute of limitations in the
absence of an evidentiary showing of unreasonable
delay in its service upon the defendant.’’ Id., 452. It is
undisputed that the warrant for the petitioner’s arrest
was issued within the statute of limitations. Factors to
consider when determining whether the warrant was
executed without unreasonable delay are whether the
petitioner was elusive, unavailable and unapproacha-
ble. Those factors do not come into play until the war-
rant has been issued, because the measure of
reasonable time is from the date the warrant is issued.
In the present case, the second habeas court considered
the petitioner’s movements that occurred at least four
years before the warrant was issued. The court made
no factual findings as to the petitioner’s actions follow-
ing the date the warrant was issued, save that he moved
from Indiana to Alabama, demonstrating that he was
elusive and unavailable and unapproachable.15 For the
foregoing reasons, the second habeas court erred in its
determination that the petitioner was elusive, unavail-
able, and unapproachable.16
2
The petitioner also claims that the second habeas
court improperly concluded that the delay in executing
the warrant was not unreasonable and that the burden
was on him to prove that the respondent could not
demonstrate that the delay in the execution of the war-
rant was reasonable. We disagree.
The following portion of the second habeas court’s
articulation is relevant to our resolution of the petition-
er’s claim: ‘‘Even if the petitioner could establish that
he was available and approachable by the [police] while
he was out of state, the petitioner has failed to demon-
strate that a reasonable likelihood exists that the prose-
cution would have been unable to show that [the police]
acted unreasonably and generated unjustifiable delay
in executing the arrest warrant. It must be kept in mind
that this is a habeas case assessing whether the petition-
er’s defense counsel represented him within the bounds
of reasonable competency by opining that an attack on
the tardiness of arrest would be unsuccessful unless
actual prejudice to the defense resulted from delay.
Present habeas counsel has acknowledged that actual
prejudice never occurred. The burden rests with the
petitioner to prove that . . . Cosgrove’s legal research,
consultation with experienced appellate defense coun-
sel on this issue, and interpretation of the statutes and
relevant case law fell below that exhibited by ordinarily
competent criminal defense practitioners at the time.
‘‘Our Supreme Court has recently reminded the lower
courts, with respect to ineffective assistance claims, it
is the petitioner who bears the burden to prove that his
counsel’s performance was objectively unreasonable.
Eubanks v. Commissioner of Correction, [supra, 329
Conn. 598]. When the record is devoid of evidence on
an essential issue, the decision must be against the
habeas petitioner. Id. This default outcome may even
result in a criminal case where an accused is attempting
to establish the affirmative defense of undue delay
. . . . We cannot assume, nor could the trial court, that
the warrant was not executed with due diligence. . . .
[State v. Crawford, supra, 202 Conn. 451]. It is . . .
presumed until the contrary appears that a public offi-
cer acting officially has done his duty. Id.’’ (Emphasis
altered; internal quotation marks omitted.)
The second habeas court found that the police prom-
ulgated a wanted persons notice one day after the arrest
warrant was judicially authorized and that it is not
known whether the Indiana authorities received notice
or acted upon it. When the police in Alabama appre-
hended the petitioner, he promptly was extradited to
Connecticut and arrested on the warrant.17 Because the
record is bereft of evidence pointing to a lack of dili-
gence on the part of any law enforcement agency, the
second habeas court concluded that the petitioner had
failed to show the existence of a reasonable probability
that at the criminal trial the prosecution would not have
been able to justify the delay between the time the
warrant was issued and executed when the petitioner
was outside of Connecticut for the entire time.
On appeal, the petitioner takes issue with the second
habeas court’s finding that the record is bereft of evi-
dence pointing to a lack of diligence on the part of any
law enforcement agency. He claims that his counsel
examined Mullin with respect to actions taken by the
police to locate the petitioner. Indeed, the record dis-
closes that criminal and habeas counsel questioned Mul-
lin about efforts to locate the petitioner outside
Connecticut. The petitioner, however, has not identified
what specific evidence proves that the delay in serving
the warrant was unreasonable.
‘‘A reasonable period of time is a question of fact
that will depend on the circumstances of each case. If
the facts indicate that an accused consciously eluded
the authorities, or for other reasons was difficult to
apprehend, these factors will be considered in
determining what time is reasonable.’’ Id. ‘‘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.)
Thompson v. Commissioner of Correction, 184 Conn.
App. 215, 222, 194 A.3d 831, cert. denied, 330 Conn. 930,
194 A.3d 778 (2018). ‘‘If the facts revealed by the record
are insufficient, unclear or ambiguous as to whether a
constitutional violation has occurred, we will not
attempt to supplement or reconstruct the record, or to
make factual determinations, in order to decide the
[petitioner’s] claim.’’ State v. Golding, 213 Conn. 233,
240, 567 A.2d 823 (1989). As our Supreme Court ‘‘fre-
quently has observed, a trial court is in the best position
to observe the demeanor of the parties, witnesses,
jurors and others who appear before it.’’ Hurley v. Heart
Physicians, P.C., 298 Conn. 371, 396, 3 A.3d 892 (2010).
On the basis of the record before us, we conclude
that the second habeas court’s finding that the peti-
tioner failed to demonstrate that the state could not
prove that the time in which the warrant was served was
reasonable was not in error. The evidence demonstrates
that the petitioner left the state approximately four
years before the warrant was issued; he had numerous
addresses in Indiana, including a post office box num-
ber; he moved to Alabama; and the police made efforts
to locate the petitioner through the United States Mar-
shals Service. The record further demonstrates that
approximately one month after United States marshals
located the petitioner in Alabama, he was extradited
to Connecticut and promptly served with the warrant.
‘‘Connecticut cases have determined that a delay in
executing an arrest warrant is not unreasonable when
a defendant has relocated outside of the state. See, e.g.,
Gonzalez v. Commissioner of Correction, [supra, 122
Conn. App. 285–86] (in habeas corpus case alleging
ineffective assistance of counsel, habeas court found
that petitioner would likely not succeed on motion to
dismiss when he had relocated to Puerto Rico and
authorities did not have his address) . . . Merriam v.
Warden, [Docket No. CV-XX-XXXXXXX, 2007 WL 2034825,
*14 (Conn. Super. May 25, 2007)] (finding no unreason-
able delay when defendant fled state after learning of
victim’s mother’s intention to contact police and police
continued in their effort to locate him), appeal dis-
missed, 111 Conn. App. 830, 960 A.2d 1115 (2008), cert.
denied, 290 Conn. 915, 965 A.2d 553 (2009); State v.
Tomczak, Superior Court, judicial district of Tolland,
Docket No. CR-9659766 (August 21, 1996) (17 Conn. L.
Rptr. 478) (finding delay of nearly five years reasonable
where defendant left Connecticut before warrant issued
and police continued to make efforts to locate defen-
dant after he left state).’’ State v. Woodtke, supra, 130
Conn. App. 743–44.
The petitioner also claims that the habeas court
improperly shifted the burden to him to demonstrate
that the warrant was not served within a reasonable
time. As the second habeas court properly noted, the
burden is on the petitioner to demonstrate that his
counsel’s representation was objectively unreasonable.
See Eubanks v. Commissioner of Correction, supra,
329 Conn. 598. The petitioner, therefore, failed to dem-
onstrate that even if Cosgrove asserted a statute of
limitations affirmative defense, it would have been suc-
cessful. Consequently, the petitioner has failed to dem-
onstrate that he was prejudiced or harmed by
Cosgrove’s representation.
II
STRICKLAND ANALYSIS
The petitioner claims that the habeas court improp-
erly determined that Cosgrove did not render ineffective
assistance for failing to assert a statute of limitations
affirmative defense to the criminal charges. We
disagree.
Under both the federal and state constitutions a crimi-
nal defendant is entitled to the effective assistance of
counsel. A defendant, however, is not entitled to error
free representation. See Cosby v. Commissioner of Cor-
rection, 57 Conn. App. 258, 259–60, 748 A.2d 352 (2000).
‘‘[A] petitioner [is] not entitled to error free representa-
tion, only representation falling within the range of com-
petence demanded of attorneys in criminal cases . . . .
Without an analysis of whether [an attorney’s] perfor-
mance had fallen below an objective standard of reason-
ableness . . . the habeas court [is] without ground to
determine that there had been deficient performance.’’
(Citations omitted; internal quotation marks omitted.)
Commissioner of Correction v. Rodriquez, 222 Conn.
469, 478–79, 610 A.2d 631 (1992), overruled in part on
other grounds by Simms v. Warden, 229 Conn. 178,
185, 186 n.12, 640 A.2d 601 (1994).
To prevail on a claim of ineffective assistance of
counsel, the petitioner first ‘‘must show that counsel’s
performance was deficient. This requires [a] showing
that counsel made errors so serious that counsel was
not functioning as the counsel guaranteed the [peti-
tioner] by the [s]ixth [a]mendment. Second, the [peti-
tioner] must show that the deficient performance
prejudiced the defense. This requires [a] showing that
counsel’s errors were so serious as to deprive the [peti-
tioner] of a fair trial, a trial whose result is reliable. . . .
The sixth amendment, therefore, does not guarantee
perfect representation, only a reasonably competent
attorney.’’ (Internal quotation marks omitted.) Marshall
v. Commissioner of Correction, 184 Conn. App. 709,
713–14, 196 A.3d 388, cert. denied, 330 Conn. 949, 197
A.3d 389 (2018). The reality is that lawyers, like other
professionals, perform with widely varying levels of
effectiveness. Strickland v. Washington, supra, 466 U.S.
691, does not require error free representation; it
requires competent representation. Id., 690.
As previously stated, ‘‘[a] claim of ineffective assis-
tance of counsel consists of two components: a perfor-
mance prong and a prejudice prong.’’ Gaines v.
Commissioner of Correction, 306 Conn. 664, 678, 51
A.3d 948 (2012). ‘‘This requires [a] showing that counsel
made errors so serious that counsel was not functioning
as the counsel guaranteed the defendant by the [s]ixth
[a]mendment. Second, the defendant must show that
the deficient performance prejudiced the defense. This
requires [a] showing that counsel’s errors were so seri-
ous as to deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversarial process
that renders the result unreliable.’’ (Internal quotation
marks omitted.) Skakel v. Commissioner of Correction,
325 Conn. 426, 442, 159 A.3d 109 (2016). It bears
repeating that ‘‘Strickland does not guarantee perfect
representation, only a reasonably competent attorney.
. . . Representation is constitutionally ineffective only
if it so undermined the proper functioning of the advers-
arial process that the defendant was denied a fair trial.’’
(Citations omitted; internal quotation marks omitted.)
Harrington v. Richter, 562 U.S. 86, 110, 131 S. Ct. 770,
178 L. Ed. 2d 624 (2011).
With respect to the performance prong, the question
is whether ‘‘counsel’s representation fell below an
objective standard of reasonableness.’’ Strickland v.
Washington, supra, 466 U.S. 688. ‘‘As a general rule, a
habeas petitioner will be able to demonstrate that trial
counsel’s decisions were objectively unreasonable only
if there [was] no . . . tactical justification for the
course taken.’’ (Internal quotation marks omitted.)
Mozell v. Commissioner of Correction, 291 Conn. 62,
79, 967 A.2d 41 (2009). ‘‘Counsel’s decision need not
have been the best decision, or even a good one; it need
only fall within the wide range of reasonable decisions
that a defense attorney in counsel’s position might
make. See, e.g., Harrington v. Richter, supra, 562 U.S.
110; Strickland v. Washington, supra, 466 U.S. [689].’’
Skakel v. Commissioner of Correction, supra, 325 Conn.
454. ‘‘To satisfy the performance prong, a [petitioner]
must demonstrate that counsel made errors so serious
that counsel was not functioning as the counsel guaran-
teed . . . by the [s]ixth [a]mendment [to the United
States constitution].’’ (Internal quotation marks omit-
ted.] Small v. Commissioner of Correction, 286 Conn.
707, 713, 946 A.2d 1203, cert. denied sub nom. Small
v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d
336 (2008).
‘‘[T]he performance inquiry must be whether coun-
sel’s assistance was reasonable considering all the cir-
cumstances. . . . Judicial 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 cir-
cumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the
time.’’ (Emphasis added; internal quotation marks omit-
ted.) Skakel v. Commissioner of Correction, supra, 325
Conn. 443.
‘‘Because of the difficulties inherent in making [this]
evaluation, a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance, that is, the defen-
dant must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . . There 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. . . . Thus,
a court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel’s challenged con-
duct on the facts of the particular case, viewed as of
the time of counsel’s conduct. . . . At the same time,
the court should recognize that counsel is strongly pre-
sumed to have rendered adequate assistance and [to
have] made all significant decisions in the exercise of
reasonably professional judgment.’’ (Internal quotation
marks omitted.) Id., 443–44.
‘‘[T]he United States Supreme Court has emphasized
that 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
. . . . [S]trategic choices made after thorough investi-
gation of law and facts relevant to plausible options
are virtually unchallengeable; [but] strategic choices
made after less than complete investigation are reason-
able precisely to the extent that reasonable professional
judgments support the limitations on investigation.’’
(Internal quotation marks omitted.) Brian S. v. Com-
missioner of Correction, 172 Conn. App. 535, 539–40,
160 A.3d 1110, cert. denied, 326 Conn. 904, 163 A.3d
1204 (2017).
In the present case, both the first and the second
habeas courts found facts that supported their conclu-
sions that Cosgrove’s representation did not fall below
that of criminal defense counsel guaranteed by the sixth
amendment. Even though we conclude that both courts
incorrectly analyzed the statute of limitations affirma-
tive defense pursuant to § 54-193 (d), their analysis of
the Strickland performance prong was reasonable and
proper. The first habeas court found that Cosgrove ‘‘did
not consider challenging the warrant delays in execut-
ing or serving the warrant because he did not believe
that there was a basis for doing so. Although he
reviewed the issue, he determined that the delays did
not hinder the defense in any way, in that no information
arose during the period, no witnesses went missing,
and the witnesses were able to recall events. Although
. . . Cosgrove did not challenge the delays by way of
a motion to dismiss the charges, he did question . . .
Mullin on cross-examination with respect to the delay
in issuing the warrant to show the ineptitude of the
police investigation.’’
The second habeas court found that Cosgrove ‘‘repre-
sented the petitioner within the bounds of effective
assistance by deciding not to raise a statute of limita-
tions defense.’’ ‘‘The proper measure of attorney perfor-
mance remains simply reasonableness under prevailing
professional norms.’’ Strickland v. Washington, supra,
466 U.S. 688. The court further found that Cosgrove
‘‘recognized a possible violation of the statute of limita-
tions. He researched that issue and discussed the ques-
tion with the appellate lawyers for the Office of the
Chief Public Defender. As a result . . . Cosgrove
opined that, without proof of actual prejudice to the
petitioner caused by the delay, no viable statute of limi-
tations affirmative defense existed. . . . Cosgrove
explained his legal opinion to the petitioner, and he
declined to present such a defense at trial.’’ The second
habeas court found that Cosgrove represented the peti-
tioner within the bounds of effective assistance by
deciding not to raise a statute of limitations defense.
The court’s finding was predicated in part on its conclu-
sion that ‘‘Cosgrove’s assessment of the law regarding
execution of a stale warrant was correct, that is, the
running of the allotted time for service of the arrest
warrant was tolled by virtue of . . . § 54-193 (d), in
light of the petitioner’s location outside Connecticut.
The result was that both the issuance and the service
of the arrest warrant occurred within the five-year
period as expanded by the petitioner’s absence from
Connecticut.’’ (Emphasis in original.)
The findings of both the first and second habeas
courts reveal that Cosgrove was aware of a possible
statute of limitations affirmative defense.18 The habeas
court found that Cosgrove reviewed the applicable stat-
ute of limitations, ‘‘did the math,’’ and determined that
the warrant had been executed within the statute of
limitations. The second habeas court found that Cos-
grove researched the issue and consulted with the
appellate lawyers in the chief public defender’s office.
The second habeas court also found that on the basis
of Cosgrove’s knowledge of the underlying facts, his
knowledge of the law, research, and consultation with
other lawyers, Cosgrove made the correct strategic
decision not to file a motion to dismiss or to assert a
statute of limitations affirmative defense because ser-
vice of the warrant was timely under a proper reading
of the statute of limitations.
On appeal, the petitioner has not shown that Cos-
grove’s decision was objectively unreasonable in that
it fell below the standard of reasonableness as mea-
sured by prevailing professional practice. See Moore v.
Commissioner of Correction, 186 Conn. App. 254, 269,
199 A.3d 594 (2018) (citing Strickland v. Washington,
supra, 466 U.S. 687–88), cert. granted on other grounds,
330 Conn. 970, 200 A.3d 700 (2019). Indeed, it appears
to have been entirely reasonable. The record does not
reveal that at the habeas trial or on remand the peti-
tioner presented expert testimony to contradict the
opinions of Cosgrove and the appellate lawyers with
whom he consulted. Moreover, two judges of the Supe-
rior Court agreed that Cosgrove’s decision to forgo a
statute of limitations affirmative defense was legally
sound. In view of those facts, we conclude that the
second habeas court properly found that Cosgrove’s
representation of the petitioner did not fall below the
objective standard of reasonableness. Although we dis-
agree with the statutory routes by which the habeas
courts reached their ultimate conclusions that Cosgrove
did not render deficient performance, the underlying
procedural history does not support a conclusion that
Cosgrove’s performance was deficient. The petitioner,
therefore, cannot prevail on his claim of ineffective
assistance of counsel under Strickland, as his claim
fails to satisfy the performance prong.
Moreover, the petitioner has not carried his burden
to prove by a preponderance of the evidence that he was
prejudiced by Cosgrove’s representation. The habeas
court noted that in his criminal appeal, the petitioner
claimed that the delay by the police in applying for the
arrest warrant violated his constitutional right to due
process pursuant to the fourteenth amendment to the
United States constitution. State v. Roger B., supra,
297 Conn. 611. Our Supreme Court rejected the claim,
finding that the record contained no evidence that the
petitioner suffered ‘‘actual prejudice as a result of the
delay.’’ Id., 615. In the present case, the petitioner has
failed to demonstrate that the state would not have
been able to prove that the delay in the execution of
the warrant was reasonable. The petitioner, therefore,
was not harmed by Cosgrove’s failure to assert a statute
of limitations affirmative defense or to file a motion
to dismiss.
For the foregoing reasons, we affirm the judgment
of the second habeas court denying the amended peti-
tion for a writ of habeas corpus.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the petitioner’s full name or to identify the victims or others through
whom the victims’ identities may be ascertained. See General Statutes
§ 54-86e.
** Following supplemental briefing, this court heard additional argument
on January 8, 2019.
1
In resolving the petitioner’s claims, we take a different route than the
one taken by this court in the petitioner’s first habeas appeal. We do so on
the basis of additional facts found by the second habeas court on remand.
2
General Statutes § 54-193a, which is titled, ‘‘Limitation of prosecution
for offenses involving sexual abuse of minor,’’ provides in relevant part:
‘‘Notwithstanding the provisions of section 54-193, no person may be prose-
cuted for any offense, except a class A felony, involving sexual abuse, sexual
exploitation or sexual assault of a minor except within . . . five years from
the date the victim notifies any police officer or state’s attorney acting in
such police officer’s or state’s attorney’s official capacity of the commission
of the offense . . . .’’
Although § 54-193a has been amended since the date of the crimes underly-
ing the petitioner’s conviction, the amendments to that statute are not rele-
vant to the claims on appeal. Accordingly, we refer to the current revision
of the statute. We further note that this court has applied Crawford when
considering statute of limitations claims under § 54-193a. See Roger B. v.
Commissioner of Correction, supra, 157 Conn. App. 274 n.8; State v. Derks,
155 Conn. App. 87, 93–95, 108 A.3d 1157, cert. denied, 315 Conn. 930, 110
A.3d 432 (2015); see generally Gonzalez v. Commissioner of Correction,
122 Conn. App. 271, 999 A.2d 781, cert. denied, 298 Conn. 913, 4 A.3d
831 (2010).
3
General Statutes § 54-193 (d) provides: ‘‘If the person against whom an
indictment, information or complaint for any of said offenses is brought
has fled from and resided out of this state during the period so limited, it
may be brought against such person at any time within such period, during
which such person resides in this state, after the commission of the offense.’’
In this opinion, we refer to the current codification of the statute, i.e.,
§ 54-193 (d).
In State v. Ward, 306 Conn. 698, 52 A.3d 591 (2012), our Supreme Court
placed judicial gloss on the term fled, which previously had been undefined.
Specifically, the court construed fled to mean ‘‘when a defendant absents
himself from the jurisdiction with reason to believe that an investigation
may ensue as the result of his actions.’’ Id., 711.
4
‘‘[T]his court repeatedly has observed, if a trial court reaches a correct
decision but on mistaken grounds, an appellate court will sustain the trial
court’s action if proper grounds exist to support it . . . .’’ (Internal quotation
marks omitted.) Stevens v. Commissioner of Correction, 112 Conn. App.
385, 394, 963 A.2d 62 (2009), quoting State v. Johnson, 289 Conn. 437, 450
n.16, 958 A.2d 713 (2008).
5
The statute of limitations at issue in Crawford was General Statutes
(Rev. to 1983) § 54-193 (b). State v. Crawford, supra, 202 Conn. 445–46 n.4.
This court, however, has applied Crawford when considering statute of
limitations claims under § 54-193a.
6
‘‘In support of [the alternative basis], the respondent relies on State v.
Ward, supra, 306 Conn. 698, interpreting General Statutes (Rev. to 1987)
§ 54-193 (c), which is now § 54-193 (d), and provides: ‘If the person against
whom an indictment, information or complaint for any of said offenses is
brought has fled from and resided out of this state during the period so
limited, it may be brought against such person at any time within such
period, during which such person resides in this state, after the commission
of the offense.’ ’’ Roger B. v. Commissioner of Correction, supra, 157 Conn.
App. 279 n.11.
7
The judgment was reversed only with respect to the petitioner’s claim
that Cosgrove rendered ineffective assistance for failing to assert a statute
of limitations affirmative defense. The judgment denying the petitioner’s
remaining claims of ineffective assistance of trial counsel was affirmed in
all other respects. Roger B. v. Commissioner of Correction, supra, 157 Conn.
App. 289.
8
The parties stipulated to the admission of all exhibits offered at the first
habeas trial, as well as the transcripts from that proceeding. The petitioner
rested on his pretrial brief and called no witnesses, stating that there was
an adequate factual basis in the existing record on which the court could
render a decision. The respondent presented testimony from Cosgrove. At
the conclusion of Cosgrove’s testimony, the second habeas court asked
counsel for the respondent whether she would be raising the issue of § 54-
193 (d), given footnote 11 of this court’s opinion in Roger B. v. Commissioner
of Correction, supra, 157 Conn. App. 279. See footnote 5 of this opinion.
The respondent filed a posttrial brief raising that issue, to which the peti-
tioner replied.
9
In his appellate brief, the petitioner maintained that (1) the respondent
abandoned any claim that § 54-193 (d) is applicable, (2) the second habeas
court ignored controlling precedent when applying § 54-193 (d) rather than
State v. Crawford, supra, 202 Conn. 443, (3) § 54-193 (d) is inapposite when
a suspect has been identified and an arrest warrant has been issued, (4)
indefinite tolling is disfavored by the law, (5) the second habeas court’s
findings of fact do not support the application of § 54-193 (d) as construed
by State v. Ward, supra, 306 Conn. 698, (6) interpreting § 54-193 (d) to
apply under the circumstances presented in the present case renders it
an unconstitutional violation of equal protection law, (7) the petitioner
established that he was easily accessible and not elusive as required by
Crawford, (8) the respondent, when given a second chance, offered no
evidence to show the delay in serving the warrant was not unreasonable,
and (9) defense counsel rendered ineffective assistance in failing to assert
a statute of limitations defense and the petitioner was prejudiced thereby.
10
A reviewing court may remand a case to the trial court to make additional
factual findings. Barlow v. Commissioner of Correction, supra, 328
Conn. 614–15.
11
In State v. Ali, supra, 233 Conn. 413 n.8, our Supreme Court explained
that Crawford ‘‘used the term ‘tolled,’ as well as other forms of the verb
‘toll,’ in connection with § 54-193 (b) merely to describe the practical effect
of a delay in the execution of an arrest warrant. Of course, in light of the
traditional meaning of the term ‘toll’ within the parlance of statutes of
limitations, namely as a synonym for ‘suspended’; see Black’s Law Dictionary
(6th Ed. 1990); a ‘prosecution’ within the applicable time period satisfies,
rather than ‘tolls,’ the statute of limitations. Only § 54-193 [(d)] specifically
concerns the tolling of the statute of limitations.’’ (Emphasis added.)
12
‘‘[A] prosecution is commenced either when an indictment is found [or
an information filed] or when a warrant or other process is issued, provided
that such warrant . . . is executed without unreasonable delay.’’ 1 A.L.I.
Model Penal Code and Commentaries (1985) § 1.06 (5), p. 9.
13
General Statutes § 54-193 (b), which is within the section titled, ‘‘Limita-
tion of prosecution for certain violations or offenses,’’ provides: ‘‘No person
may be prosecuted for any offense, other than an offense set forth in subsec-
tion (a) of this section, for which the punishment is or may be imprisonment
in excess of one year, except within five years next after the offense has
been committed.’’
Although § 54-193 (b) has been amended since the date of the crimes
underlying the petitioner’s conviction, the amendments to that statute are
not relevant to the claim on appeal. Accordingly, we refer to the current
revision of the statute.
14
Our Supreme Court did not consider the effect of § 54-193 (d), if any,
because ‘‘[t]he prosecution [did] no[t] claim that the defendant was out of
the state at any period after the commission of the offenses charged . . . .’’
State v. Crawford, supra, 202 Conn. 447 n.8.
15
The evidence showed that the police had the petitioner’s operator’s
license with his current address at the time the warrant was issued.
16
The petitioner also argued that the inferences that the second habeas
court drew from its factual findings are erroneous. We need not address
this argument because we conclude that the court improperly considered
the petitioner’s actions prior to the issuance of the warrant.
17
The petitioner does not claim that the second habeas court’s underlying
factual findings are clearly erroneous.
18
This court may take judicial notice of the files of the trial court in the
same or other cases. See Disciplinary Counsel v. Villeneuve, 126 Conn.
App. 692, 703 n.15, 14 A.3d 358 (2011).