Lopez v. Commssioner of Correction

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 APPENDIX
RAMON LOPEZ v. WARDEN*
Superior Court, Judicial District of Tollxand
File No. CV-XX-XXXXXXX-S

Memorandum filed May 1, 2019

Proceedings

Memorandum of decision on amended petition for
writ of habeas corpus. Petition denied.
Michael W. Brown and Joshua Grubaugh, for the
petitioner.
Emily D. Trudeau, assistant state’s attorney, for the
respondent.
 Opinion

SFERRAZZA, J. The plaintiff, Ramon Lopez, seeks
habeas corpus relief from a total, effective sentence of
100 years of imprisonment, imposed after a jury trial,
for the crimes of murder, two counts of attempted mur-
der, and two counts of assault in the first degree. Our
Supreme Court affirmed the judgment of conviction on
direct appeal. State v. Lopez, 280 Conn. 779, 911 A.2d
779 (2007).
The petitioner filed a previous habeas action
attacking the effectiveness of his criminal defense coun-
sel, Attorney Lawrence Hopkins. For sentencing, Attor-
ney Robert Berke replaced Attorney Hopkins, and
Attorney Berke’s representation was not the subject of
the first habeas case. On January 4, 2012, Judge Fuger
denied habeas corpus relief. Lopez v. Commissioner of
Correction, Superior Court, judicial district of Tolland,
Docket No. CV-XX-XXXXXXX-S (January 4, 2012). The
Appellate Court affirmed that decision, per curiam.
Lopez v. Commissioner of Correction, 150 Conn. App.
905, 93 A.3d 181, cert. denied, 314 Conn. 922, 100 A.3d
853 (2014).
In the present case, the petitioner pursues claims of
ineffective assistance of defense counsel and previous
habeas counsel, Attorneys Thomas P. Mullany III and
David Rozwaski; a Brady violation; see Brady v. Mary-
land, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963); and a claim of actual innocence. Other grounds
for relief were previously dismissed or have not been
pursued and are deemed abandoned.
Because of the unusually complicated factual circum-
stances and scenarios presented by the evidence and
the complex legal issues propounded, the court has
permitted oversized briefs and granted numerous exten-
sions of time to file such briefs. The petitioner’s counsel
has described the potential factual and legal issues as
‘‘numerous, complicated, [and] wide-ranging.’’ Counsel
has also noted that the record is ‘‘fairly voluminous’’
and acknowledged that the petitioner’s third-party cul-
pability theory is ‘‘at first counterintuitive . . . .’’ These
observations appear apposite.
The court has reviewed the evidence in this case in
great detail, including transcripts of the criminal trial
and the first habeas case and police investigation and
interview reports pertaining to multiple incidents. In
order to set the stage properly and promote a fuller
understanding of the factual and legal questions to be
resolved, the court adopts a somewhat peculiar format
in this memorandum and hopes that these aspirations
can be attained.
First, the court provides a nonexhaustive glossary of
names, aliases, and sobriquets to facilitate a compre-
hensive explanation of the several relationships, loca-
sion.
The petitioner: Ramon Lopez, a/k/a ‘‘Buttafuco.’’
The Pettway store: Located at the northwest corner
of the intersection of Stratford Avenue and Fifth Street
in Bridgeport. It is variously referred to as an all-night
convenience store, a liquor store, and a grocery store.
Manual Rosado: a/k/a Kevin Anderson and ‘‘Cricket.’’
One of the shooting victims in the Pettway store inci-
dent of February 2, 2002.
Shariff Hakeem-Abdul: a/k/a ‘‘Polo’’ and Lonnie
Rosado. The deceased victim of the Pettway store
shooting and brother of Manual Rosado.
Robert Payton (now deceased): ‘‘Rob.’’ A friend of
Manual Rosado, brother of Tony Payton, and cousin to
Brad Rainey.
Tony Payton: ‘‘Tone’’ or ‘‘Tonny.’’ Brother of Robert
Payton and a purported witness to the Pettway store
shooting of February 2, 2002. Walks with a pro-
nounced limp.
Gary Burton: Another shooting victim of the Pettway
store shooting and acquaintance of Robert Payton.
John Dawson: Purported witness to the February 2,
2002 shooting and/or aftermath.
Eddie Hilton: Purported witness to the February 2,
2002 shooting and/or aftermath.
Desiree Jones: Friend of Gary Burton and purported
witness to his shooting and/or aftermath.
Keaga Johnson: Friend of Gary Burton and purported
witness to his shooting and/or aftermath.
Francisco Soares: ‘‘Cisco.’’ An acquaintance of Gary
Burton and purported witness to his shooting and/or
aftermath.
Kenny Soares: Brother of Francisco Soares and
acquaintance of Gary Burton.
John Soares: ‘‘Jay’’; ‘‘Big Jay.’’ Acquaintance of Gary
Burton and cousin to Francisco Soares and purported
witness to his shooting.
John Santos: ‘‘Little Jay.’’ Acquaintance of Gary Bur-
ton.
Michael Lockhart: a/k/a Michael Pettway; ‘‘Chef.’’
Possibly one of the gunmen at the February 2, 2002
shooting.
Bernie Gethers: ‘‘Tank.’’
Lou Diamond: Possible a/k/a Troy Lopez. Alleged
companion to Chef at Pettway store on February 2,
2002, and possible gunman.
Tajah McClain: ‘‘Kaiser’’; ‘‘Kiser’’; ‘‘Boo.’’ Possible
gunman at Pettway store shooting. Walks with a limp.
 April Edwards: A close friend of Tony Payton and
potential witness to the February 2, 2002 shooting, but
never called to testify in criminal case or either
habeas cases.
Michael Jackson: Purported witness to February 2,
2002 shooting and/or aftermath.
Bob Kapel (Capel): Purported witness to February 2,
2002 shooting and/or aftermath.
Jose Rivera: ‘‘Tweety.’’ Possible associate of the peti-
tioner.
‘‘Pooh’’ or ‘‘Phoo’’: Possibly present at February 2,
2002 shooting.
Vincent Wilson: ‘‘Fato’’; ‘‘Fatol.’’ Brad Rainey’s
brother-in-law.
Brad Rainey: Possibly a/k/a Brad Payton. Cousin of
Robert and Tony Payton.
Donna Jones: Purportedly heard February 2, 2002
shooting. Acquaintance of Manual Rosado.
‘‘Weesa’’: Female acquaintance of Robert Payton and
the petitioner.
Irell Pettway: ‘‘Country.’’
P.T. Barnum Apartments: Housing facility on
Anthony Street, Bridgeport.
Jerry Kollock: Convicted of January 27, 2002 home
invasion at Colbert apartment at P.T. Barnum complex.
Companion to Randy Armstrong.
Keisha Bowles: Kollock’s girlfriend.
Randy Armstrong: ‘‘Little Biscuit’’; ‘‘L B.’’ Friend of
Kollock, ‘‘Fato,’’ and Brad Rainey. Shot in the foot on
January 24, 2002, at Greens housing complex. Allegedly
shot accidently by the petitioner.
Nakina Goff: Randy Armstrong’s girlfriend.
Barbie Colbert: Victim of P.T. Barnum home invasion
of January 27, 2002.
Davis Brown: Another victim at Colbert apartment.
Latosha DelGiudice: ‘‘Natasha’’; ‘‘Tosha’’; Tasha.’’
Brad Rainey’s girlfriend and Shayla DelGiudice’s sister.
Lakisha Banks: Friend of Kollock.
Kiva Scutter: ‘‘Aunt Kiva.’’ Colbert’s neighbor.
Shonda Upchurch: Sister of Vincent Wilson and go-
between/mediator for disputants at P.T. Barnum hous-
ing complex.
Javen Eagles: ‘‘Rat.’’ Drifter and friend of Colbert.
Cedelice Davis: Brad Rainey’s friend.
Fifi: Brad Rainey’s cousin.
 Marcus Mahoney: Caucasian friend of ‘‘Polo.’’ Like a
brother to Polo and possible partner in illicit drug busi-
ness with him.
The court now describes the potential evidence as
to three incidents from which one can reasonably glean
the following details. These putative facts are derived
from police investigative notes and reports, hearsay
statements contained therein, as well as evidence intro-
duced at the petitioner’s criminal trial and earlier
habeas trial. Consideration of information included, or
logically deducible, from these sources is necessary
because the petitioner’s Brady violation claims, as well
as the ineffective assistance allegations, require scru-
tiny of the information reasonably available to any of the
petitioner’s counsel and/or imputable to the prosecuting
authority.
RANDY ARMSTRONG SHOOTING
During the early hours of January 25, 2002, Armstrong
was shot in the foot. His companion, Jerry Kollock,
initially drove Armstrong for medical care, but they
decided to stop at Armstrong’s sister’s home first. After
she refused to join them on the trip to the hospital,
Kollock and Armstrong drove to the home of Arm-
strong’s girlfriend, Nakina Goff. Goff agreed to accom-
pany them to the hospital.
When initially questioned by the police regarding how
the injury occurred, Armstrong and Goff related a ficti-
tious tale that the couple had just left Goff’s residence
on foot when unidentified gunmen emerged from a car
and attempted to rob them. They stated the robbers
forced Armstrong to lie on the ground. When the rob-
bers ascertained that Armstrong had no money, they
returned to their vehicle. Before departing, however,
the assailants fired a shot that struck Armstrong in
the foot.
Armstrong and Goff fabricated this scenario because
both Armstrong and Kollock were on parole and had
traveled beyond the geographic limits specified by the
parole conditions. Because Goff’s apartment was closer
to the area permitted by the terms of their parole, Arm-
strong and Kollock hoped that such a minor transgres-
sion would be overlooked.
Eventually, Goff told the police a different, and pre-
sumably truer, story. Armstrong and Kollock had visited
the Greens housing complex, where Kollock and others
drank and ingested drugs. While intoxicated, some
members of the group exuberantly fired guns in the
air. Armstrong told Goff that, as a consequence, the
petitioner had accidently shot him.
Armstrong left the hospital during the afternoon of
that same day, January 25, 2002. He used a cane to
facilitate walking.
At around 2 o’clock that afternoon, Kollock’s girl-
friend, Keisha Bowles, drove Kollock and Armstrong
to Goff’s home. Later, Bowles and Kollock returned to
pick up Armstrong so that Kollock and Armstrong could
meet with their parole officers. After these appoint-
ments concluded, Bowles and Kollock dropped Arm-
strong off at his home.
The next day, January 26, 2002, at around 1 p.m.,
Armstrong and Goff argued, and Goff left from Arm-
strong’s home to go to her own residence. Later that
day, they reconciled, and she and Armstrong talked, by
phone, through the night.
The following day, January 27, 2002, at around 8 a.m.,
Bowles arrived at Goff’s home looking for Kollock.
Bowles thought Armstrong might know of Kollock’s
whereabouts. Bowles told Goff that Kollock had taken
her car the night before, never returned, and that she
received a phone call from Latosha DelGiudice, the
girlfriend of Brad Rainey, that Bowles’ car was stranded
in the East End section of Bridgeport.
When Bowles went to retrieve her car, she found that
it was unlocked, the keys were missing, and the tires
had been flattened. She sought out Kollock and wanted
Armstrong to assist her in that endeavor. Goff called
Armstrong, but Armstrong’s sister answered and told
Goff that Armstrong was asleep and that she had not
seen Kollock.
Goff asserted that she spent the evening of January
26 to 27, 2002, at Armstrong’s residence and returned
to her own home around 8 a.m. that morning.
P.T. BARNUM HOME INVASION
About two hours earlier, around 6 a.m. on January
27, 2002, Barbie Colbert was asleep in her residence,
which was Apartment 108 of the P.T. Barnum Apart-
ments. Sleeping in her bed with her were three of her
children, ages seven, five, and four years. Colbert’s thir-
teen year old son was asleep on a couch in the living
room, and her seventeen year old stepdaughter slept
in another bedroom. Another relative, Davis Brown,
was watching television in the living room.
Earlier that morning, a neighbor, Kiva Scutter, visited
Colbert’s apartment and had awakened Brown. Scutter
then left and announced that she expected to return
shortly. When she exited Colbert’s apartment, she left
the front door to that apartment unlocked.
Suddenly, two armed men rushed into Colbert’s
apartment and demanded money. Brown recognized
Jerry Kollock as one of the robbers. Brown knew Kol-
lock’s family. Brown believed that the second gunman
was Randy Armstrong. Both gunmen had concealed
their lower faces with masks or clothing, and Kollock
shoved a semiautomatic pistol into Brown’s mouth
while ordering Brown to take the gunmen into Colbert’s
bedroom to awaken her. Brown complied.
 At first, Colbert assumes Brown was joking when he
roused her with the news that armed men wanted to
rob them. The gunmen forced Brown onto Colbert’s
bed. They compelled Brown and Colbert to refrain from
looking at them. Kollock struck Brown in the head four
or five times, causing Brown to bleed profusely. Colbert
produced a pillowcase containing $180 and offered it
to the robbers. Kollock told his accomplice to search the
apartment, and his companion ransacked the residence.
The robbers also inquired about the whereabouts of
‘‘Rat,’’ Vincent Wilson.
When the gunmen first accosted Brown in the living
room, Colbert’s thirteen year old son awakened and
arose. Kollock pointed his weapon at the boy and
directed him to remain still. The boy froze, but he was
in position to observe the entire episode.
One of the younger children in Colbert’s bed warned,
‘‘Mommy don’t move! They have guns!’’ As a result of
the pistol-whipping of Brown and fear for their lives,
Colbert screamed.
The scream and commotion brought Colbert’s seven-
teen year old stepdaughter out of her bedroom and to
the doorway of Colbert’s bedroom. The girl tried to
flee, and the gunmen pursued her. She tripped and fell,
and Kollock’s companion pushed his pistol into her
mouth and then pressed it forcibly into her eye.
While so subjugated, Kollock reached underneath the
teenager’s underwear and probed her vagina, possibly
searching for concealed drugs.
At that time, Colbert’s five year old daughter ran
from the bedroom toward the kitchen. She hid under
a kitchen table. Kollock demanded she come out, but
she bravely refused.
A third accomplice, identified by Brown as Brad
Rainey, entered the apartment and urged Kollock and
the other gunman to leave. Kollock or his companion
then fired a shot toward the kitchen table. The bullet
struck a cabinet about three feet from the table. The
three intruders then exited.
Brown and the thirteen year old ran to a window
and saw two cars quickly drive out of parking spaces
directly in front of Colbert’s apartment. Brown recog-
nized one vehicle as belonging to Kollock’s girlfriend,
Bowles.
Both Colbert and her thirteen year old son also recog-
nized Kollock. Colbert occasionally braided customers’
hair, and Kollock had sought such services just a few
weeks before the incident.
Kollock learned that the police suspected him to be
one of the gunmen. He disposed his pistol and went
underground. The police eventually captured him.
PETTWAY STORE SHOOTING
 Our Supreme Court described the evidentiary scaf-
fold that supported the jury’s guilty verdicts as follows:
‘‘In the early morning hours of February 2, 2002, sev-
eral people were gathered inside and outside of Pett-
way’s Variety Store (Pettway’s) at the northwest corner
of the intersection of Stratford Avenue and Fifth Street
in Bridgeport. Stratford Avenue runs in a generally east-
west direction and has one-way traffic heading east.
Fifth Street runs in a generally north-south direction
and ends at Stratford Avenue. The three victims, Shariff
Abdul-Hakeem, also known as ‘‘Polo,’’ his brother, Man-
uel Rosado, and Gary Burton, were standing outside
the store. Lou Diamond and a man known as ‘‘Chef’’
came out of Pettway’s, gave Abdul-Hakeem and Rosado
a ‘‘grim’’ look and then walked north on Fifth Street.
Shortly thereafter, Diamond and Chef, who had covered
the lower parts of their faces with some type of cloths,
turned around and walked back down Fifth Street
toward Pettway’s. At the same time, a third unidentified
person carrying a gun ran from the east side of Fifth
Street to the west side and joined Diamond and Chef.
Meanwhile, a white car had come down Fourth Street,
the next street to the west of Fifth Street, turned east
onto Stratford Avenue and stopped on the north side
of that street. Two men got out of the rear driver’s side
door and the car then crossed Stratford Avenue and
parked on the south side of the street. Although two
men wore cloths over their lower faces, an eyewitness,
Tony Payton, knew both men and was able to identify
them as Boo McClain and the [petitioner]. McClain car-
ried a handgun and the [petitioner] carried a shotgun.
As McClain and the [petitioner] approached Pettway’s,
the [petitioner] said to the people gathered on the side-
walk, ‘‘All right freeze, nobody move,’’ and he cocked
the shotgun. The people on the sidewalk then rushed
toward and started banging on the door to Pettway’s,
which had a ‘‘buzzer lock.’’ The door opened and several
people were able to get inside the store. Rosado, who
was standing outside the store facing Fifth Street,
turned toward Fourth Street to see the reason for the
commotion. He saw the [petitioner], whom he had
known for about one year before the shooting and with
whom he had been incarcerated, aiming a gun at him.
As Rosado dove for the door to Pettway’s, McClain, the
[petitioner] and the three men who were approaching
Pettway’s down Fifth Street opened fire on the crowd.
After the shooting, the [petitioner] yelled, ‘‘I told you I
was going to get you, Polo, I told you I was going to
get you.’’ McClain and the [petitioner] then ran back
up Stratford Avenue and reentered the white car, which
turned around and sped back up Fourth Street. At the
same time, Diamond and Chef ran back up Fifth Street.
A later ballistics analysis revealed that two separate
shotguns and four separate handguns had been used
in the shooting.
 ‘‘Abdul-Hakeem received bullet wounds in his left
calf and left buttock. The bullet that hit his left buttock
exited from the right side of his abdomen, and Abdul-
Hakeem died several hours after the shooting as the
result of uncontrollable bleeding from the wound.
Rosado received shotgun wounds to his legs. Burton
was wounded when a bullet hit him in the ribs and
another bullet grazed his hip.’’ State v. Lopez, supra,
280 Conn. 783–85.
BRADY VIOLATION CLAIMS
In his amended petition, dated July 28, 2017, the peti-
tioner asserts that the prosecution failed to disclose to
the defense or otherwise correct false or misleading
testimony elicited from state’s witnesses Tony Payton
and Manual Rosado; failed to disclose that other sus-
pects in the Pettway store shooting were never prose-
cuted; and failed to disclose the details acquired by
the Bridgeport police regarding the P.T. Barnum home
invasion case.
After a hearing, Judge Oliver previously dismissed
the Brady violation claims premised on nondisclosure
of possible consideration given to Manual Rosado with
respect to federal charges he once faced in exchange
for his cooperation with the state in the state’s case
against the petitioner.
Also, the petitioner’s posttrial brief fails to discuss
the same type of claim with respect to Tony Payton’s
cooperation. Therefore, the court regards that Brady
violation allegation as abandoned.
There are three components needed to establish a
valid Brady violation. Lapointe v. Commissioner of
Correction, 316 Conn. 225, 262, 112 A.3d 1 (2015). The
undisclosed evidence must be favorable to the accused;
it must have been suppressed by the prosecution, wil-
fully or inadvertently; and ‘‘prejudice must have
ensued.’’ (Internal quotation marks omitted.) Id. ‘‘Preju-
dice’’ means that the favorable information withheld
‘‘could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the
verdict.’’ (Internal quotation marks omitted.) Id., 262–
63.
In determining whether evidence was suppressed,
good faith or bad faith is irrelevant. Demers v. State,
209 Conn. 143, 149, 547 A.2d 28 (1988). The state has
the duty to supply to the defense favorable material
that is within its possession or control and which the
state knew or should have known was exculpatory. Id.,
150–51. No request for such evidence is necessary to
trigger this duty. Id., 151. Evidence which is within
the knowledge of state agencies, including local police
departments, is constructively within the state’s posses-
sion. See Gonzalez v. State Elections Enforcement
Commission, 145 Conn. App. 458, 479, 77 A.3d 790,
also Giglio v. United States, 405 U.S. 150, 154–55, 92
S. Ct. 763, 31 L. Ed. 2d 104 (1972).
1
The court declines to treat the prosecutorial decision
not to file charges against persons, other than the peti-
tioner, suspected of participating in the same criminal
enterprise as an accomplice, accessory, or coconspira-
tor, as exculpatory in this case. To be clear, the peti-
tioner makes no claim that these other persons received
favorable treatment in exchange for their cooperation
in the investigation and/or prosecution of the Pettway
store shootings against the petitioner or anyone else.
Nor does the petitioner allege that agents of the state
engaged in conduct to render these other individuals
unavailable to the defense in his case.
Instead, the petitioner argues that ‘‘other perpetrators
named by the supposed eyewitnesses of the Pettway’s
shooting were never seriously investigated by the
police.’’ Petitioner’s Posttrial Brief, p. 10. This argument
appears more in the nature of a tacit recognition by the
state that the police investigation of these persons was
insufficient or that the prosecution lacked confidence
in its eyewitnesses.
The court rejects this type of argument as describing
a valid Brady violation. The prosecutors’ subjective
belief in the relative strength or weakness of their case
is, standing alone, not exculpatory evidence. Specific
information available to the state that prompts that
belief may comprise exculpatory evidence, but the exer-
cise of prosecutorial discretion is, in itself, a profes-
sional conclusion and not a potentially relevant fact.
As such, the Brady rule requires no disclosure of that
type of charging decision.
Also, it would disserve the ends of justice to employ
a doctrine that induces law enforcement agents to arrest
and charge persons of crime when the agents feel evi-
dence to prove the crimes, beyond a reasonable doubt,
may be lacking. The state ought to be free to decline
to charge others of crimes just to avoid claims, such
as the petitioner propounds, by one against whom the
state did prefer charges.
The executive branch ‘‘has broad discretion as to
whom to prosecute and what charges to file.’’ State v.
Santiago, 318 Conn. 1, 25, 122 A.3d 1 (2015). ‘‘Both
the decision to criminally charge an individual and the
choice of which crime should be charged lie within the
discretion of the state and are not ordinarily subject to
judicial review.’’ Reynolds v. Commissioner of Correc-
tion, 321 Conn. 750, 760–61, 140 A.3d 894 (2016), cert.
denied sub nom. Reynolds v. Semple, U.S. , 137
S. Ct. 2170, 198 L. Ed. 2d 241 (2017). There is no legal
principle ‘‘that the state commits misconduct if it
chooses not to bring the most severe charges possible
against a cooperating witness.’’ (Emphasis added.)
Id., 761.
Except for cases where nonprosecution rests on
invidiously discriminatory motives, courts should avoid
intruding on prosecutorial charging decisions. The peti-
tioner has failed to prove a Brady violation based on
the absence of charges lodged against other persons
who might fall under suspicion based on the same or
similar evidence as points to a defendant who was so
charged.
2
The petitioner also contends that State’s Attorney C.
Robert Satti, Jr., failed to disclose exculpatory connec-
tions between the evidence gathered in the P.T. Barnum
Apartments home invasion and the evidence obtained
concerning the Pettway store shootings. The court
determines that this evidence was not suppressed
regardless of its purportedly exculpatory character.
‘‘[I]t is well established that ‘evidence’ is not considered
to have been suppressed within the meaning of the
Brady doctrine if the defendant or his attorney either
knew, or should have known, of the essential facts
permitting him to take advantage of that [evidence].’’
(Emphasis in original; internal quotation marks omit-
ted.) State v. Skakel, 276 Conn. 633, 701, 888 A.2d 985,
cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed.
2d 428 (2006).
The following evidence pertains to the issue of sup-
pression. The police recovered several cartridge casings
from the fusillade of shots fired by the various perpetra-
tors in the Pettway store incident of February 2, 2002.
Among these were spent nine millimeter cartridges dis-
charged from the same gun. Comparison testing dis-
closed that the same pistol that fired these shots was
also used in five previous shootings in the Bridgeport
area.
The written firearms comparison results were trans-
mitted by the State’s Attorney’s office to Attorney Hop-
kins. This report contained the incident and case num-
bers for each earlier incident. In chronological order:
1. Incident number 010429-195 referencing shots fired
on April 29, 2001, at or near the Marina Village area;
2. Incident number 010609-036, referencing shots
fired on June 9, 2001, outside of the Pettway store;
3. Incident number 011012-294, referencing shots
striking victim, Mark Mahoney, on Holley Street on
October 12, 2001;
4. Incident number 011021-041, referencing shots
fired on October 21, 2001, near the intersection of Roger
and Stetson Streets; and
5. Incident number 020122-056, referencing the bullet
fired by Jerry Kollock or accomplice into the kitchen
cabinet during the P.T. Barnum Apartments home inva-
sion of January 27, 2002, as discussed previously.
Attorney Satti testified that his office provided Attor-
ney Hopkins with this report. A copy of this report
was found in Attorney Hopkins’ file, corroborating this
disclosure by the state. The petitioner argues that it
was a Brady violation for the state to fail to go beyond
this disclosure and also provide, without a defense
request, the entire investigation file materials generated
by the police with respect to the earlier shootings.
In State v. Skakel, supra, 276 Conn. 633, a police
report mentioned that a witness was asked to assist in
creating a composite sketch of a person the witness
recalled having seen near the crime scene during the
relevant time frame. Id., 697–98. The sketch itself was
never provided, only the written reference to its exis-
tence. This was the case despite the fact that the defense
had made a discovery request for production of
sketches in general. On appeal, the defendant argued
that the drawing could have bolstered the defense’s
third-party culpability defense because the sketch
somewhat resembled one of the putative third-party
suspects.
Our Supreme Court held that revelation of the exis-
tence of the sketch alone satisfied the constitutional
burden of disclosing exculpatory material under the
Brady rule. Id., 706. ‘‘[T]he composite drawing will not
be deemed to have been suppressed by the state . . .
if the defendant or the defendant’s trial counsel reason-
ably was on notice of the drawing’s existence but never-
theless failed to take appropriate steps to obtain it.’’
Id., 702.
In State v. Skakel, supra, 276 Conn. 633, appellate
counsel had contended that mere knowledge that a
sketch was done was ‘‘[in]adequate notice of the excul-
patory nature of the composite drawing.’’ Id., 704–705.
That is, until the defense saw the actual drawing, the
defense lacked knowledge of its beneficial utility, and
that other evidence misled the defense into opining that
the sketch depicted someone else at whom the defense
wished to point an accusatory finger. Our Supreme
Court responded that ‘‘[n]either of these assertions is
reason to excuse the defense’s failure to have requested
the drawing [specifically].’’ Id., 705. ‘‘We . . . decline
to endorse such an approach because there simply is no
reason why a defendant who is aware of such evidence
should not be required to seek it at a point in time when
any potential constitutional infirmity arising from the
state’s failure to provide the evidence can be avoided
without the need for a new trial.’’ Id., 706. ‘‘We conclude,
therefore, that the facts fully support the trial court’s
determination that the defendant failed to establish that
the state suppressed the composite drawing within the
meaning of Brady.’’ Id., 707.
In other words, the state must disclose the data which
is potentially exculpatory but is not constitutionally
obligated to connect the dots for the defense. The cir-
cumstances of the present case are more compelling
that no Brady violation occurred than those presented
in the Skakel case. This is because the essential fact
that the same weapon that was used in the February
2, 2002 Pettway store shooting had previously been
used in several other cases, including the P.T. Barnum
Apartments home invasion, was disclosed along with
information identifying the files pertinent to those ear-
lier shootings. The potential for this information to help
exonerate the [petitioner] speaks for itself.
The Brady doctrine does not ‘‘permit the defense to
close its eyes to information likely to lead to the discov-
ery of [exculpatory] evidence.’’ Skakel v. State, 295
Conn. 447, 521, 991 A.2d 414 (2010). The court holds
that the state satisfied its constitutional duties under
Brady by providing to the defense the list of specific
incidents/case numbers for which the firearms analyses
showed that one of the weapons used on February 2,
2002, was also used in those shootings. Therefore, the
petitioner has failed to meet his burden of proving his
Brady claims.
INEFFECTIVE ASSISTANCE OF DEFENSE COUNSEL
In the fifth and sixth counts of the amended petition,
the petitioner alleges various instances of ineffective
assistance of trial counsel, Attorney Hopkins. These
claims must be dismissed, pursuant to Practice Book
§ 23-29 (3), because they present the same grounds for
relief denied in his earlier habeas case, namely, the
ineffective assistance of defense counsel and which are
not based on new facts or evidence ‘‘not reasonably
available at the time of the prior petition . . . .’’ The
addition of new specifications of ineffective assistance
against Attorney Hopkins is insufficient to state new
legal grounds different from that raised by the previous
habeas petition. See, e.g., McClendon v. Commissioner
of Correction, 93 Conn. App. 228, 230, 888 A.2d 183,
cert. denied, 277 Conn. 917, 895 A.2d 789 (2006).
Of course, the failure by Attorneys Mullaney and Roz-
waski to assert and prove these specifications of inef-
fective assistance can form the basis for a claim of
ineffective assistance by previous habeas counsel, and
the petitioner asserts just such a claim in the present
case in the eighth count.
INEFFECTIVE ASSISTANCE OF HABEAS COUNSEL
Our Supreme Court has adopted the two-pronged
Strickland test; Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); for evaluat-
ing ineffective assistance claims. Johnson v. Commis-
sioner of Correction, 218 Conn. 403, 425, 589 A.2d 1214
(1991); Ostolaza v. Warden, 26 Conn. App. 758, 761,
603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692
(1992). The Strickland criteria require that the peti-
tioner demonstrate, by a preponderance of the evi-
dence, that his attorney’s performance was substandard
and that there exists a reasonable likelihood that the
outcome of the proceedings would have been different.
Ostolaza v. Warden, supra, 761.
As to the performance prong of Strickland, the peti-
tioner must establish that habeas counsel’s representa-
tion fell below an objective standard of reasonableness.
Johnson v. Commissioner of Correction, supra, 218
Conn. 425.
This standard of reasonableness is measured by pre-
vailing, professional practices. Id. The habeas court
must make every effort to eliminate the distorting
effects of hindsight and to reconstruct the circum-
stances surrounding counsel’s conduct from that attor-
ney’s perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective
assistance on the ground of insufficient proof of preju-
dice, the habeas court may address that issue directly
without reaching the question of counsel’s competence.
Pelletier v. Warden, 32 Conn. App. 38, 46, 627 A.2d 1363,
cert. denied, 277 Conn. 920, 632 A.2d 694 (1993). In
order to satisfy the prejudice prong of the Strickland
test, the petitioner must prove that there exists a reason-
able probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been
different. Levine v. Manson, 195 Conn. 636, 640, 490
A.2d 82 (1985). Reasonable probability means a proba-
bility sufficient to undermine confidence in the out-
come; Daeira v. Commissioner of Correction, 107
Conn. App. 539, 542–43, 946 A.2d 249, cert. denied, 289
Conn. 911, 957 A.2d 877 (2008); that is, the petitioner
must show that there is a reasonable probability that
he remains burdened by an unreliable determination of
guilt. Id. Thus, the failure of the petitioner to establish,
by a preponderance of the evidence, either the allega-
tions against trial counsel or habeas counsel, or the
requisite prejudice as to both the first habeas case and
the criminal trial, will defeat a claim for habeas corpus
relief in the present action.
In Lozada v. Warden, 223 Conn. 834, 613 A.2d 818
(1992), our Supreme Court recognized a purely statu-
tory right to raise, in a subsequent habeas action, a
claim of ineffective assistance on the part of previous
habeas counsel in presenting claims of ineffective assis-
tance of trial counsel. Id., 835. However, the petitioner’s
burden becomes a multitiered application of the Strick-
land standard by which allegations of ineffective assis-
tance claims are gauged. Id., 842. To succeed in his bid
for a writ of habeas corpus, the petitioner must prove
both (1) that his habeas counsel were ineffective, and
(2) that his trial counsel was ineffective. Id. Also, the
petitioner must prove that, but for the derelictions of
habeas counsel, he was prejudiced in the sense that
the outcome of the first habeas case was suspect, and
that burden demands proof of the existence of a reason-
able likelihood that the outcome of the original, criminal
trial would have been different. Id., 842–43. The
Supreme Court described this double layered obligation
as ‘‘a herculean task . . . .’’ Id., 843.
Although the amended petition recites sundry specifi-
cations of ineffective assistance of habeas counsel, in
his posttrial brief the petitioner engages in more than
a cursory discussion only as to the following alleged
deficiencies of habeas counsel:
1. That habeas counsel failed to raise and litigate
Attorney Hopkins’ failure to pursue third-party culpabil-
ity theories adequately;
2. That habeas counsel failed to raise and litigate the
insufficiency of Attorney Hopkins’ cross-examination
of Manual Rosado;
3. That habeas counsel failed to raise and litigate
Attorney Hopkins’ failure to connect the Pettway store
shooting of February 2, 2002, to the P.T. Barnum Apart-
ments home invasion that occurred about one week
earlier; and
4. That habeas counsel failed to litigate adequately
Attorney Hopkins’ failure to raise and pursue an alibi
defense. (See Petitioner’s Posttrial Brief, pp. 19–21, 45–
50.)
At the previous habeas trial, Attorney Mullaney repre-
sented the petitioner and was joined, on the third day of
the habeas trial, in that endeavor by Attorney Rozwaski.
The operative, amended petition was dated December
15, 2009, and alleged that Attorney Hopkins represented
the petitioner ineffectively by:
1. Failing to present favorable and available evidence
as to
a. alibi witnesses;
b. the weaknesses regarding the state’s identification
witnesses;
2. Failing to impeach the testimony of Gary Burton,
Manual Rosado, and Tony Payton, properly.
The evidence adduced at the first habeas trial can be
summarized as follows. Vincent Wilson, an incarcerated
felon, testified that he and the petitioner are good
friends, having first met as children. Wilson recounted
that soon after the Pettway store shooting on February
2, 2002, the police interrogated him about whether he
drove the getaway vehicle and whether the petitioner
participated in the shootings. Wilson denied being at
the scene and disclaimed any knowledge concerning
the incident. Wilson stated that the police told him
that Manual Rosado suggested that Wilson might have
driven the getaway car.
Wilson also noted that Attorney Hopkins’ investigator
had interviewed him, but that Attorney Hopkins had
not spoken to him personally. Wilson further avowed
that he was available to testify at the petitioner’s crimi-
nal trial and would have willingly done so. However,
Wilson acknowledged that he did witness a verbal con-
frontation between the petitioner and Manual Rosado
at the Pettway store a few weeks before Rosado was
shot there.
Attorney Mullaney also called upon Ralph Lewis to
testify. He, too, is an incarcerated felon, and he related
that he had met Manual Rosado in jail. Friction between
Rosado and Lewis ensued. Lewis stated that Rosado
told him that Rosado faced federal charges. He also
indicated that Rosado stated he did not see who shot
his brother, Polo, although the police urged him to
report that he could identify his brother’s killer in order
to benefit himself in his federal case. However, Rosado
also related that he resisted the police suggestion
because he did not see who shot his brother.
Lewis first conveyed this information to an investiga-
tor in 2007, which was a few years after the petitioner’s
criminal trial. Lewis conceded that, despite knowing
that charges were pending against his close friend, the
petitioner, he never mentioned his jailhouse conversa-
tion with Rosado to anyone before 2007.
It should be noted that Rosado’s statements to Lewis
essentially conformed to Rosado’s testimony at the peti-
tioner’s criminal trial and to his deposition testimony
in the present habeas case. That is, Rosado consistently
acknowledged his ignorance as to his brother’s shooter,
as opposed to his own assailant, who he identified as the
petitioner. Rosado also maintained that he has always
refused to lie to identify his brother’s killer.
Attorney Mullaney also presented the testimony of
the petitioner’s sister, Rosa Lopez, at the previous
habeas trial. She swore that during February 1, 2002, a
Friday, she and the petitioner were together at their
mother’s residence and agreed to have a Super Bowl
party that Sunday, February 3, 2002. A relative, Star
Semedo, picked up Lopez and the petitioner and drove
them to her home in Ansonia to plan the party. The
party was to take place at Semedo’s residence, and the
expected attendees were Semedo, Lopez, the petitioner,
their parents, and children. Lopez avowed that she and
the petitioner spent the entire evening of February 1
into February 2, 2002, at Semedo’s residence and only
returned to Bridgeport during the afternoon of February
2, 2002. In other words, Lopez testified that the peti-
tioner was in Ansonia at the time of the Pettway store
shootings in Bridgeport.
Lopez attended her brother’s criminal trial and
expected to testify at that trial regarding this alibi. Attor-
ney Hopkins had spoken to her before trial. When she
was not called as a witness, she asked Attorney Hopkins
to explain his decision. Attorney Hopkins simply
informed Lopez that her testimony was not needed.
Star Semedo, an emergency room technician nurse,
also testified at the first habeas trial. She corroborated
that she lived in Ansonia on February 1, 2002; that
she drove Lopez and the petitioner from Bridgeport to
Ansonia on February 1, 2002; that she, Lopez, and the
petitioner planned the Super Bowl party details; and
that Lopez and the petitioner stayed at her residence
in Ansonia until Semedo drove them back to Bridgeport
during the day of February 2, 2002.
Semedo indicated she was available to testify at the
petitioner’s criminal trial, but that no one called upon
her to do so. Semedo acknowledged that she was aware
that she possessed alibi testimony for the charges
against the petitioner early on, but never conveyed that
alibi evidence to the police or to defense counsel despite
that awareness.
At the previous habeas trial, the petitioner testified
consistently with this alibi scenario. He stated that he
communicated these facts to Attorney Hopkins and the
defense investigator, Justine Smith. He wanted and
anticipated Attorney Hopkins to present Lopez and
Semedo as alibi witnesses at his criminal trial. Attorney
Hopkins declined to present the alibi defense.
The petitioner also wanted Attorney Hopkins to
investigate whether Gary Burton described the shooters
to the police as three black males. He urged Attorney
Hopkins to probe this topic when Attorney Hopkins
cross-examined Burton, but Hopkins rejected his sug-
gestion.
On February 2, 2002, the petitioner was arrested by
the police on an unrelated attempted murder charge.
The police arrested the petitioner on charges arising
from the Pettway store shootings about nine months
later. At the time of his arrest on February 2, 2002, the
petitioner resided with his mother in Bridgeport, but
he pretended to live with an uncle in Stratford to avoid
detection for violating a court order or condition of
parole or probation prohibiting him from living in his
mother’s home.
Attorney Mullaney also offered the testimony of
Bridgeport Police Sergeant Giselle Doszpoj. Sergeant
Doszpoj indicated that she initiated the investigation
of the Pettway store shooting on February 2, 2002. She
noted that the investigation files for the case had been
archived, and she lacked access to their contents. She
recollected that, when she interviewed Gary Burton,
he thought the three shooters were possibly African
American.
Habeas counsel also utilized the testimony of Bridge-
port Police Detective Warren DelMonte. Detective Del-
Monte went to the hospital on February 2, 2002, and
interviewed Manual Rosado. The habeas judge disal-
lowed Detective DelMonte from testifying about the
substance of his conversation with Rosado.
A more productive witness was Kiaga Johnson. As
noted previously, she was a friend of Gary Burton and
saw the shootings. She indicated she observed three
assailants and described them as including a black male,
a Hispanic male, and a male with olive toned skin color.
At the 2010 habeas trial, she opined that the petitioner’s
skin color seemed different from any of the assailants.
However, she acknowledged that the attackers’ faces
were partially concealed and that there may have been
additional shooters besides the three she noticed.
As mentioned previously, Attorney Rozwaski appeared
as habeas counsel on March 11, 2011, the third day of
the previous habeas trial. On that day, Attorney Berke
testified that he took over the petitioner’s criminal case
after the jury returned its verdict. Attorney Berke had
his investigator, John McNichols, look into the petition-
er’s alibi claim and contact Rosa Lopez and Star Semedo
in particular. Attorney Berke spoke to Semedo by
phone. Semedo told Attorney Berke that the petitioner
and his sister stayed overnight at her Ansonia residence
but not on the evening and night of the Pettway store
shootings on February 1 into February 2, 2002.
At the first habeas trial, Attorney Hopkins testified
that he had experience handling many criminal defense
cases, including serious felony allegations, before repre-
senting the petitioner. He related that he hired Justin
Smith as his investigator. Attorney Hopkins employed
his customary approach of meeting with his client,
engaging in preliminary discussions with the prosecu-
tor, obtaining discovery, and developing a sense of the
strengths and weaknesses of both sides of the case.
The petitioner denied any involvement in the Pettway
store shootings. Attorney Hopkins decided that the criti-
cal defense tactic would be to try to discredit the credi-
bility and reliability of the two eyewitnesses that identi-
fied the petitioner as one of the assailants, namely,
Manual Rosado and Tony Payton.
Attorney Hopkins opted to eschew an alibi defense
based on reasons both general and particular. After
discussing the alibi evidence with the petitioner, Attor-
ney Hopkins concluded that such evidence would prove
more detrimental than beneficial. He regarded the alibi
defense as generally a ‘‘bad idea’’ that seldom produced
favorable results. Attorney Hopkins felt that unless the
alibi evidence was ‘‘entirely solid,’’ any deficiencies in
that evidence create a very negative view of the defen-
dant in the minds of jurors. That negative view may taint
other, stronger defense arguments. Attorney Hopkins’
‘‘instinct’’ was to avoid using alibi evidence ‘‘like the
plague.’’
This court’s more than forty-five years of experience
in the field of criminal law litigation finds Attorney
Hopkins’ general view of the ineffectiveness of an alibi
defense as not lacking some experiential basis. Of
course, each case presents unique circumstances, and
the utility of presenting alibi evidence must be evaluated
with those specific features in mind. But, any chink in
the armor of the alibi defense arising at trial, exposes
the defense to claims of contrivance and, inferentially,
a consciousness of guilt. Also, strong alibi evidence
often induces the prosecution to reevaluate the charges
against an accused, so that ‘‘solid’’ alibi cases seldom
reach the trial stage.
In particular, Attorney Hopkins was concerned that
the petitioner was a convicted felon who had tried to
use false alibi evidence in a previous criminal case.
Also, Attorney Hopkins presumed, erroneously, that the
petitioner’s arrest on February 2, 2002, was for the
Pettway store shootings. Instead, that arrest pertained
to unrelated charges. This mistake led Attorney Hop-
kins to reckon that if the petitioner had a legitimate
alibi, he and his family members would have immedi-
ately informed the police of his true whereabouts for
the evening of February 1 into February 2, 2002. So
while Attorney Hopkins’ general apprehension about
using the alibi as a defense may have been profession-
ally understandable, his decision particularly and
arrived at purposely to disregard such evidence in the
petitioner’s particular case was based on a nonexistent
factual foundation.
Because Attorney Hopkins harbored this negative
opinion, he never pursued that line of defense at the
petitioner’s criminal trial, despite his client’s imploring
him to do so and his knowledge of the availability of the
prospective testimony of Rosa Lopez and Star Semedo.
That is not to say, of course, that such alibi evidence
was reasonably likely to produce a different outcome
had such evidence been presented, but it does establish
that Attorney Mullaney, as habeas counsel, was war-
ranted in alleging this deficiency in the earlier habeas
case.
Attorney Mullaney also introduced evidence that
Attorney Hopkins failed to challenge the reliability of
Manual Rosado’s identification of the petitioner, as hav-
ing shot him, by calling Latosha DelGiudice as a defense
witness. Ms. DelGiudice, also a convicted felon, testified
at the first habeas trial that she visited Rosado at the
hospital some hours after he was shot. At that time,
Rosado accused her of setting him up and blamed her
boyfriend, Brad Rainey, for the incident. She indicated
that Rosado never mentioned the petitioner at that time.
Along a similar vein, Attorney Mullaney proffered the
testimony of Lakesha Bowles, the girlfriend of Jerry
Kollock, who disclosed that she received several phone
calls from Manual Rosado on February 2, 2002, wherein
Rosado also accused her of assisting in arranging the
Pettway store attack. Bowles was under federal indict-
ment at the time of her habeas testimony.
Attorney Mullaney called Attorney Norm Pattis as a
criminal defense expert to demonstrate the substandard
nature of Attorney Hopkins’ representation. Attorney
Pattis is a very experienced lawyer whose background
includes expertise in the field of criminal defense work.
Attorney Pattis opined that the putative alibi testimony
of Rosa Lopez and Star Semedo would have enhanced
rather than detracted from Attorney Hopkins’ attempt
to discredit the identification testimony of Manual
Rosado and Tony Payton. This was the case because
evidence that an individual was elsewhere is completely
compatible with misidentification.
Attorney Pattis stated that Attorney Hopkins’ failure
to interview the alibi witnesses departed from the mini-
mum exercise of reasonable legal assistance ordinarily
expected of competent defense counsel. This expert
doubted whether any lawyer can accurately assess the
usefulness of potential witnesses without ever inter-
viewing those individuals.
At the previous habeas trial, the petitioner confirmed
that his arrest, for the charges he stands convicted for
the present case, came about nine months after the
Pettway store shootings. He also stated that he never
attempted to utilize a false alibi defense in any other
case.
Judge Fuger denied habeas corpus relief; Lopez v.
Commissioner of Correction, supra, Superior Court,
Docket No. CV-XX-XXXXXXX-S; and the Appellate Court
affirmed his decision, per curiam. Lopez v. Commis-
sioner of Correction, supra, 150 Conn. App. 905. Judge
Fuger specifically found that the testimony of Rosa
Lopez and Star Semedo lacked credibility. ‘‘This court
. . . finds that the alibi evidence is not worthy of belief
and that [Attorney Hopkins] cannot be held to be inef-
fective for failing to present a defective alibi defense.’’
Lopez v. Commissioner of Correction, supra, Superior
Court, Docket No. CV-XX-XXXXXXX-S.
Consequently, the habeas court determined that the
petitioner had failed to meet his burden of proving
either prong of the Strickland standard with respect to
Attorney Hopkins’ refusal to offer alibi evidence at the
petitioner’s criminal trial. Id. ‘‘[D]efense counsel made
the correct strategic judgment in not pursuing this alibi
and calling these missing witnesses in order to establish
an alibi defense that may well have led a jury to con-
clude that the petitioner was lying to escape a finding
of guilty.’’ Id.
1
The petitioner now contends that habeas counsel
rendered ineffective assistance by his strategic decision
to press Attorney Hopkins’ failure to present alibi evi-
dence as the principal ground in the previous habeas
case and that Attorney Mullaney’s unsuccessful attempt
to do so was, itself, constitutionally infirm. The court
rejects this contention.
Attorney Mullaney had available to him the evidence
that was available to Attorney Hopkins bearing on a
third-party culpability defense. Attorney Mullaney also
utilized the services of an investigator, Jacqueline
Bainer, who thoroughly briefed him as to the results
of her findings concerning evidence of third-party culpa-
bility. In particular, Bainer sought and obtained evi-
dence concerning the possibility that the Pettway store
shootings of February 2, 2002, were retaliation for the
P.T. Barnum Apartments home invasion which occurred
about one week earlier. The gist of this putative defense
appears to be that Brad Rainey sought revenge against
Manual Rosado and his brother, Polo, for having botched
the home invasion of Colbert’s apartment by firing a gun
at a young child and groping the vagina of a teenage girl.
It should be recalled that three victims of that home
invasion, namely, Colbert, her thirteen year old son,
and Davis Brown, all positively identified Jerry Kollock
as one of the perpetrators and possibly the person who
fired the shot that lodged in the kitchen cabinet. A
firearms expert determined that round was discharged
from one of the handguns used in the Pettway store
shootings.
Brown also identified the second gunman as Randy
Armstrong, Kollock’s frequent companion, and the per-
son whom the petitioner had accidently shot in the foot
two days before the home invasion. Brown also named
Brad Rainey as the third accomplice who urged the
gunmen to leave Colbert’s apartment and make their
getaway.
On the other hand, after Jerry Kollock’s arrest, Kol-
lock told Bainer that his cohorts were Polo and Manual
Rosado, with Rosado being the lookout. To complicate
matters further, Bridgeport Police Sergeant Larose
received information that Robert Payton (deceased)
was the second gunman.
Bainer also uncovered evidence that the petitioner
and Robert Payton had a ‘‘beef’’ stemming from a dis-
pute between the mother of the petitioner’s child and
Rosado’s sister. Robert Payton, who was killed in a
later incident, was one of the persons at the Pettway
store on February 2, 2002, who managed to escape into
the relative safety of the store unscathed.
Investigator Bainer urged Attorney Mullaney to raise
an ineffective assistance claim in the first habeas case
based on Attorney Hopkins’ failure to obtain the infor-
mation she uncovered and present a third-party culpa-
bility defense, in addition to the lack of an alibi defense
which Attorney Mullaney did litigate. This third-party
culpability claim is premised on speculation that Brad
Rainey and Tank Gethers harbored great resentment
against Polo, Manual Rosado, and Robert Payton for
having botched the home invasion, coupled with Man-
ual Rosado’s initial failure to identify the petitioner as
the person who shot him to the police and Latosha
DelGiudice. Despite Bainer’s earnest discussions with
Attorney Mullaney on this point, Attorney Mullaney
deliberately chose to confine the ineffective assistance
specifications to the allegations recited above, i.e., pri-
marily the failure by Attorney Hopkins to present an
alibi defense.
Attorney Mullaney testified at the present habeas
trial, and he recounted that, in his judgment, the peti-
tioner had a strong claim of ineffective assistance based
on Attorney Hopkins’ decision to forgo an alibi defense.
Attorney Mullaney exercised that professional judg-
ment and experience by opting to avoid muddying the
habeas case with weaker claims such as the convoluted,
third-party culpability argument. Attorney Mullaney’s
experience persuaded him that third-party culpability
defenses often fail because the evidence relies on a
good deal of conjecture and innuendo, as in the petition-
er’s case. The court agrees with Attorney Mullaney’s
assessment that Attorney Hopkins’ failure to present
an alibi defense, based on the known and available
testimony of Rosa Lopez and Star Semedo, was a much
stronger claim than the third-party culpability claim
suggested by Bainer’s investigation.
It must be observed that the petitioner, at the habeas
on a habeas trial, never presented a legal expert who
criticized habeas counsel’s representation. The peti-
tioner did proffer the testimony of Attorney Kenneth
Simon, but that expert confined his opinions to an evalu-
ation of Attorney Hopkins’ performance in the crimi-
nal case.
Effective advocates bear no general constitutional
obligation to raise or argue every conceivable issue.
Tillman v. Commissioner of Correction, 54 Conn. App.
749, 757, 738 A.2d 208, cert. denied, 251 Conn. 913,
739 A.2d 1250 (1999). To the contrary, a scattershot
approach ‘‘runs the risk of burying good arguments
. . . in a verbal mound made up of strong and weak
contentions.’’ (Internal quotation marks omitted.) Id.
Habeas courts must be ‘‘highly deferential’’ to attorneys’
decisions to winnow out less persuasive claims in order
to focus on the stronger ones. Spearman v. Commis-
sioner of Correction, 164 Conn. App. 530, 539, 138 A.2d
378, cert. denied, 321 Conn. 923, 138 A.2d 284 (2016).
‘‘[S]trategic choices made after thorough investiga-
tions of law and facts relevant to plausible options are
virtually unchallengeable . . . .’’ (Internal quotation
marks omitted.) Arroyo v. Commissioner of Correc-
tion, 172 Conn. App. 442, 467–68, 160 A.3d 425, cert.
denied, 326 Conn. 921, 169 A.3d 235 (2017); see also
Bree v. Commissioner of Correction, 189 Conn. App.
411, 207 A.3d 539 (2019).
 In the present action, the credible evidence discloses
that Attorney Mullaney retained the services of an inves-
tigator who diligently researched the shootings where
the same handgun was used that predated the Pettway
store incident of February 2, 2002. Bainer and Attorney
Mullaney had frank discussions about the evidence
Bainer’s investigation produced. Attorney Mullaney
made the tactical decision to restrict the earlier habeas
claims to Attorney Hopkins’ refusal to present available
alibi evidence.
This court finds that Attorney Mullaney’s tactical
decision in this regard falls well within the realm of
reasonable, professional advocacy for habeas counsel
in his position. As described previously, Attorney Hop-
kins misunderstood the charges for which the petitioner
was arrested on February 2, 2002, believing those
charges to pertain to the Pettway store shootings of
that date. He erroneously concluded that the lack of
protest to the police by the petitioner’s family based
on an alibi for the evening of February 1 into February
2, 2002, cast doubt on the efficacy of an alibi defense
and would jeopardize the petitioner’s entire criminal
case. Attorney Hopkins also feared that the petitioner
had tried to employ a false alibi in a previous criminal
matter. Attorney Mullaney felt that the petitioner could
have successfully refuted any assertion that the peti-
tioner had previously attempted to use a fictitious alibi.
Previous habeas counsel also assessed that Attorney
Hopkins had three alibi witnesses, including the peti-
tioner, who could establish a viable alibi defense and
were available to testify at the petitioner’s criminal trial.
Attorney Mullaney also stated that the alibi evidence
would not have undermined the defense that Attorney
Hopkins did pursue, namely, that Tony Payton and Man-
ual Rosado had misidentified the petitioner as one of
the shooters in the Pettway store attack.
On the other hand, the petitioner’s present denigra-
tion of Attorney Mullaney’s decision not to add a claim
that Attorney Hopkins should have also pursued a third-
party culpability defense appears counterintuitive and
abstruse.
The petitioner submits that Attorney Hopkins, and
derivatively, habeas counsel, ought to have attempted
to demonstrate that the Pettway store shootings were
prompted by the excesses engaged in during the P.T.
Barnum Apartment home invasion of the week before.
Specifically, that Polo, Manual Rosado, and, possibly,
Robert Payton, were targeted by Tank Gethers and Brad
Rainey, affiliates of Polo, Rosado, and Payton, in retri-
bution for having fired a weapon, with a nexus to Rainey
and Gethers, during the home invasion; and for molesta-
tion of the teenage stepdaughter of Colbert, an unto-
ward act which would incite unwanted attention and
notoriety to the home invasion. To be clear, the peti-
tioner contends that the Pettway store shootings were
not, as one might otherwise suppose, the actions of
rival drug dealers or gang members, but rather one with
internecine character.
Just who participated in the P.T. Barnum Apartments
home invasion was in dispute, as mentioned earlier.
Davis Brown identified Kollock, Armstrong, and Rainey
as the perpetrators. Kollock told Bainer that his accom-
plices were Polo and Manual Rosado. Brad Rainey, a/
k/a Brad Payton, was the cousin of Tony and Robert
Payton. The court also notes that Attorney Hopkins
lacked the benefit of the information later revealed by
Marcus Mahoney.
In addition to this scenario, the petitioner points to
the testimony of the first habeas trial of Latosha DelGiu-
dice. In her testimony, Latosha DelGiudice related that,
when she visited Manual Rosado in the hospital, he
accused her boyfriend, Brad Rainey, of using her to
set him and his brother up for the attack. She further
testified at the first habeas trial that Rosado never men-
tioned the petitioner at all.
The court finds this third-party culpability evidence
and the inferences sought to be drawn from it to be
tangled, tenuous, and conjectural. By comparison, the
evidence regarding Attorney Hopkins’ failure to present
alibi evidence appears clear, concise, internally consis-
tent, and not laden with suppositions and surmise. The
court concludes that Attorney Mullaney’s decision to
pursue only the stronger ineffective assistance claim
of lack of an alibi defense rather than the more nebulous
third-party culpability claim was a reasonable exercise
of professional judgment based on diligent investigation
and competent understanding of the law.
Unsuccessful strategic decisions that are the result
of the reasonable exercise of professional judgment
comprise effective assistance despite an unfavorable
outcome. Stephen S. v. Commissioner of Correction,
134 Conn. App. 801, 809–10, 40 A.3d 796, cert. denied,
304 Conn. 932, 43 A.3d 660 (2012). Therefore, the court
determines that the petitioner has failed to prove the
deficient performance component of the Strickland test
regarding the representation at the first habeas trial by
Attorneys Mullaney and Rozwaski regarding the failure
to raise Attorney Hopkins’ failure to investigate and
present a third-party culpability defense.
2
The petitioner also alleges that Attorneys Mullaney
and Rozwaski rendered ineffective assistance by inade-
quately proffering evidence of Attorney Hopkins’ failure
to pursue the alibi defense. To reiterate, no legal expert
testified in the present habeas case that previous habeas
counsel were deficient in any manner.
Specifically, the petitioner complains that his habeas
attorneys ‘‘inadequately’’ challenged Attorney Hopkins’
testimony about his misunderstanding that an alibi
defense is an affirmative defense; that habeas counsel
should have ‘‘better developed’’ Attorney Hopkins’ mis-
interpretation of the charges for which the petitioner
was arrested on February 2, 2002; and that Attorney
Norm Pattis was a poor choice of an expert witness to
demonstrate Attorney Hopkins’ deficiencies. The court
rejects these claims because the petitioner has failed
to prove the prejudice prong of the Strickland criteria,
i.e., that there exists a reasonable likelihood that the
outcome of the first habeas case would have been favor-
able but for these purported deficiencies.
As elaborated previously, Judge Fuger denied habeas
corpus relief because he found the testimony of the
alibi witnesses, Rosa Lopez and Star Semedo, lacked
credibility. That dispositive finding, affirmed per curiam
by the Appellate Court, bears no relation to the decision
to call Attorney Pattis as an expert witness. Nor did
Attorney Hopkins’ erroneous view of the law or the
basis for the petitioner’s arrest on February 2, 2002,
contribute to that finding. The adverse decision by
Judge Fuger hinged on the witnesses’ nonbelievability,
which determination cannot be attributed to the defi-
ciencies alleged by the petitioner on the part of his
former habeas counsel.
3
The final allegation of ineffective assistance by
habeas counsel, as set forth in the petitioner’s posttrial
brief, is that previous habeas counsel ought to have
attacked Attorney Hopkins’ cross-examination of Man-
ual Rosado more vigorously. Again, no legal expert
decried habeas counsel’s representation on this issue.
The petitioner’s posttrial brief contains little discussion
as to this claim, and the court treats it as abandoned.
In sum, the court denies the amended petition on the
ground of ineffective assistance of habeas counsel.
ACTUAL INNOCENCE CLAIM
Habeas corpus relief in the form of a new trial based
on actual innocence requires the petitioner to satisfy
the criteria set forth in Miller v. Commissioner of Cor-
rection, 242 Conn. 745, 700 A.2d 1108 (1997).
The Miller criteria comprise a two part test which
requires a habeas petitioner asserting an actual inno-
cence claim to prove, by clear and convincing evi-
dence, that:
1. The petitioner is actually innocent of the crime for
which he or she stands convicted; and
2. No reasonable fact finder would convict the peti-
tioner of that crime after consideration of a combination
of the evidence adduced at both the criminal trial and
the habeas proceeding. Miller v. Commissioner of Cor-
rection, supra, 242 Conn. 746–47; see also Gould v.
Commissioner of Correction, 301 Conn. 544, 557–58,
22 A.3d 1196 (2011).
The first component of the Miller criteria requires
the petitioner to produce affirmative proof that he did
not purposefully participate in the charges for which he
was convicted. ‘‘Affirmative proof of actual innocence
is that which might tend to establish that the petitioner
could not have committed the crime even though it is
unknown who committed the crime, that a third party
committed the crime or that no crime actually
occurred.’’ (Emphasis in original.) Gould v. Commis-
sioner of Correction, supra, 301 Conn. 563. ‘‘Clear and
convincing proof of actual innocence does not, how-
ever, require the petitioner to establish his or her guilt
is a factual impossibility.’’ Id., 564.
Before embarking on this analysis, the court must
confront a preliminary question. In the Gould case, our
Supreme Court recognized, in a footnote, that the court
has never decided whether the affirmative evidence of
innocence must be newly discovered. Id., 551 n.8. The
Supreme Court acknowledged, however, that the Appel-
late Court has imposed such a requirement. Id.
Indeed, the Appellate Court has consistently and
repeatedly demanded that affirmative proof of actual
innocence be newly discovered. McClain v. Commis-
sioner of Correction, 188 Conn. App. 70, 88, 204 A.3d
82, cert. denied, 331 Conn. 914, 204 A.3d 702 (2019),
Corbett v. Commissioner of Correction, 133 Conn. App.
310, 315, 34 A.3d 1046 (2012); Vasquez v. Commissioner
of Correction, 128 Conn. App. 425, 444, 17 A.3d 1089,
cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011); Gaston
v. Commissioner of Correction, 125 Conn. App. 553,
558–59 (2010), cert. denied, 300 Conn. 908, 12 A.3d 1003
(2011); Weinberg v. Commissioner of Correction, 112
Conn. App. 100, 119, 962 A.2d 155, cert. denied, 291
Conn. 904, 967 A.2d 1221 (2009); Grant v. Commis-
sioner of Correction, 103 Conn. App. 366, 369, 928 A.2d
1245, cert. denied, 284 Conn. 921, 933 A.2d 723 (2007);
Johnson v. Commissioner of Correction, 101 Conn.
App. 465, 469–70, 922 A.2d 221 (2007); Batts v. Commis-
sioner of Correction, 85 Conn. App. 723, 726–27, 858
A.2d 856, cert. denied, 272 Conn. 907, 863 A.2d 697
(2004); Clarke v. Commissioner of Correction, 43 Conn.
App. 374, 379, 682 A.2d 618 (1996), appeal dismissed,
249 Conn. 350, 732 A.2d 754 (1999); Williams v. Com-
missioner of Correction, 41 Conn. App. 515, 530, 677
A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692
A.2d 1231 (1997). This court is, of course, bound by
these holdings of the Appellate Court.
The Appellate Court has stressed that habeas judges
are bound by the requirement that the evidence of actual
innocence be newly discovered. Thompson v. Commis-
sioner of Correction, 172 Conn. App. 139, 158, 158 A.3d
814, cert. denied, 325 Conn. 927, 169 A.3d 232 (2017).
‘‘[E]ven though the final resolution of the newly discov-
ered evidence standard has yet to be addressed by the
Supreme Court, it is beyond argument that insofar as
any Superior Court considering a [claim] of actual inno-
cence in a habeas petition, the matter is closed.’’
(Emphasis added.) Id.
Newly discovered evidence is ‘‘such that it could not
have been discovered previously despite the exercise
of due diligence . . . .’’ Skakel v. State, 295 Conn. 447,
466–67, 991 A.2d 414 (2010). Due diligence is reasonable
diligence. Id., 506. The query to be answered is ‘‘what
evidence would have been discovered by a reasonable
[criminal defendant] by persevering application and
untiring efforts in good earnest.’’ (Internal quotation
marks omitted.) Id., 507.
The petitioner avers that Manual Rosado’s habeas
deposition contained inconsistencies when compared
to his criminal trial testimony; that evidence linked the
P.T. Barnum Apartments home invasion incident to the
Pettway store shootings; that Latosha DelGiudice’s pre-
vious habeas trial testimony regarding Rosado’s failure
to mention the petitioner as his assailant; and the pres-
ent habeas trial testimony of Marcus Mahoney consti-
tute clear and convincing evidence of the petitioner’s
actual innocence. The court disagrees.
1
First, the evidence connecting the weapon used at
the P.T. Barnum Apartments home invasion with one
also discharged during the Pettway store shootings can-
not be fairly characterized as newly discovered.
The state provided Attorney Hopkins with a copy of
the firearms analysis that ascertained that some rounds
fired during the Pettway store shootings were dis-
charged from the same pistol that either Kollock or
Polo fired during the P.T. Barnum Apartments home
invasion. Indeed, Attorney Mullaney’s investigator used
that report to investigate the five previous incidences
in which that weapon was used. Therefore, potentially
favorable, alternative explanations for the motivation
for the Pettway store shootings, and by whom harbored,
were available for production at the petitioner’s crimi-
nal trial in the exercise of reasonable diligence. The
petitioner has alleged just such a claim in his specifica-
tions of ineffective assistance by defense counsel and
previous habeas counsel.
Consequently, the court cannot afford relief based
on the claim that this was newly discovered evidence
of the petitioner’s actual innocence, standing alone.
2
Contrary to the petitioner’s assessment, the court
finds that Manual Rosado’s criminal trial testimony and
his later habeas deposition testimony were, as to essen-
tial details, significantly consistent and trustworthy;
principally, as to who shot him. Any discrepancies go
to credibility or the absence of it. It must be kept in
mind that, under the Miller criteria, newly discovered
evidence that merely weakens the prosecution case,
even that which severely weakens it, fails to comprise
affirmative evidence of innocence.
In Gould v. Commissioner of Correction, supra, 301
Conn. 544, 546–47, our Supreme Court reversed a
habeas court’s determination of actual innocence based
on the total recantation of the only witness who posi-
tively identified the defendants as the perpetrators of
a murder of a shopkeeper. Her recantation stated that
she was not at the scene when the shooting occurred,
in direct contradiction to her trial testimony. The fact
that the habeas court credited her recantation was irrel-
evant as to the claim of actual innocence. This was so
because her revised story did not prove the defendants
did not commit the murder but only that she was igno-
rant of who did. Such renunciation by a witness failed
to constitute affirmative evidence of innocence. Id.,
557–59.
In order to satisfy the affirmative evidence criterion
of the Miller standard, the petitioner must prove, by
clear and convincing evidence, that no crime occurred;
that someone else committed the crime; or that the
person convicted could not have committed the crime,
even if the true perpetrator remains unknown. Id., 563.
Actual innocence means factual innocence and is not
equivalent to legal insufficiency of the evidence. Id.,
560. The petitioner’s burden is to prove he is actually
innocent of the crime rather than merely that the state
could no longer prove his guilt beyond a reasonable
doubt. Id., 561. ‘‘Although the postconviction evidence
[the petitioner] presents casts a vast shadow of doubt
over the reliability of his conviction, nearly all of it
serves only to undercut the evidence presented at trial,
not affirmatively to prove [his] innocence.’’ (Internal
quotation marks omitted.) Id.
The petitioner’s proof in the present case focuses on
Rosado’s initial failure to tell the police and others that
the petitioner shot him; the nature and substance of
threats conveyed to him before the shooting, and that
he accused Brad Rainey of being behind the Pettway
store shooting. None of these inconsistencies demon-
strates that no shootings occurred, that someone else
shot Rosado instead of the petitioner, or that the peti-
tioner could not have been his assailant.
Thus, the putative inconsistencies by Rosado when
comparing his criminal trial testimony to his habeas
deposition cannot form the foundation of the petition-
er’s actual innocence claim. That is not to say that
such inconsistencies are irrelevant to that claim when
considered in conjunction with newly discovered evi-
dence that satisfies the Miller test, but such supposed
discrepancies, standing alone, fail to meet that test.
3
 Next, the petitioner relies on the testimony of Latosha
DelGiudice presented during the first habeas trial.
There, she avowed that, about five or six hours after
Rosado was shot, she snuck into the hospital to visit
him. She related that Rosado voiced his suspicions that
Brad Rainey, the father of Latosha’s child, enlisted her
to set up Rosado to be shot at the Pettway store. This
accusation by Rosado was predicated on phone conver-
sations he had with Latosha DelGiudice shortly before
the shooting. She swore that Rosado never mentioned
the petitioner at all.
First, such evidence is not proof of the petitioner’s
innocence. Rosado may have been mistaken or correct
in his conjecture that Brad Rainey lurked behind the
Pettway store shootings. However, witnesses counted
the number of gunmen ranging from two to five. Rainey
could have been the moving force behind the attack
without exonerating the petitioner; that is, the peti-
tioner could have shot Rosado while acting in concert
with Rainey. At least four handguns and two shotguns
were fired during the Pettway store shooting. Rosado’s
suspicions about Rainey do not exculpate the peti-
tioner, although such evidence could be used to
impeach Rosado’s credibility.
Also, if Rosado suspected Latosha DelGiudice of
complicity in the attack, Rosado would have good rea-
son to withhold from her, and indirectly from Brad
Rainey, and the petitioner, his complete knowledge of
what happened. He was shot and his brother killed and
vengeance was on his mind.
But more significantly, even if one assumes,
arguendo, that Latosha DelGiudice’s testimony that
Rosado failed to remark to her that the petitioner was
the person that shot him and that Rosado harbored a
belief that Brad Rainey was also responsible for the
attack, is evidence of the petitioner’s actual innocence,
her testimony was vulnerable to counterattack by the
admission of testimony of other potential witnesses.
The petitioner offered and the court admitted exhibit
43, which consists of several documents prepared by
the Bridgeport police during the investigation of the
Pettway store shootings.
Shayla DelGiudice is Latosha’s sister and gave the
police a statement on February 8, 2002, that she visited
Rosado at the hospital during his thirteen hour stay
there. Latosha had also mentioned that she and her
sister visited Rosado at the hospital during Latosha’s
second trip there. Shayla stated that Rosado told her
that the petitioner shot him.
Also, Shayla DelGiudice’s boyfriend, Daniel Vereen,
also spoke to Rosado at the hospital. Vereen corrobo-
rated that Rosado named the petitioner as his shooter
at that time.
 While one never knows for certain whether a witness
will later testify in accordance with the substance of
what the police recorded the witness as saying at an
earlier time, the possibility that the benefit of Latosha
DelGiudice’s testimony would be devastatingly under-
mined by the testimony of her sister and Vereen looms
large. Therefore, the court assigns diminished weight to
the existence of Latosha DelGuidice’s testimony, even
if regarded as evidence of actual innocence.
4
The testimony of Marcus Mahoney, during the pres-
ent case, is clearly newly discovered. Mahoney first
revealed his knowledge about the P.T. Barnum Apart-
ments home invasion and the Pettway store shootings,
to anyone in an official or quasi-official capacity, years
after the petitioner’s conviction. This revelation
occurred when Mahoney agreed to speak with the peti-
tioner’s habeas investigator while he was confined at
Webster Correctional Institution.
Mahoney presently serves a prison term and has sev-
eral felony convictions in his past. From early adoles-
cence, he has regularly used street drugs, including
blunts, heroin, and ecstasy. He, Polo, and Robert Payton
engaged in the sale of illicit drugs together in the Pett-
way store area of Bridgeport. Mahoney and Polo were
so close that Mahoney regarded Polo as his brother.
To recapitulate, Brad Rainey was Robert and Tony
Payton’s cousin and father of Latosha DelGiudice’s
child. Latosha DelGiudice and Manual Rosado also sold
drugs, cooperatively.
Mahoney testified that Rainey had a long-standing
feud with the Rosado brothers and their associates. In
the fall of 2001, Rainey shot Mahoney, striking him
five times. The gun used by Rainey was the very same
weapon used in the P.T. Barnum Apartments home
invasion and at the Pettway store shooting. Mahoney
has been shot two or three other times, including in
the presence of Manual Rosado.
The gun in question appears well traveled. Besides
the three incidents mentioned herein, it was also traced
to at least two other shootings in 2001. Although Maho-
ney’s testimony was sketchy on this point, it appears
that the weapon belonged to Tank Gethers and/or
Rainey, but kept in a garage to which Mahoney and
Polo had access.
Mahoney stated that he knew the petitioner but had
no significant dealings with him.
Mahoney, Polo, Manual Rosado, Tank Gethers, and
Kollock believed that Barbie Colbert was a major drug
dealer at the P.T. Barnum Apartments complex. They
decided her apartment would make a lucrative target
to rob. Mahoney and Polo surveilled her residence, and
the group conceived a plan to conduct the robbery.
That plan entailed Kollock and Polo entering Colbert’s
apartment with guns drawn to induce the occupants to
relinquish money and/or drugs. The handguns were to
be used as ‘‘props’’ and not to be fired. The guns were
supplied by Gethers.
In the early hours of January 27, 2002, Kollock, Polo,
and Rosado left to execute the robbery. They returned
around 7 a.m. The loot garnered was divided among
the conspirators. However, Polo revealed that the rob-
bery got out of hand, resulting in a shot fired at a young
child and a teenage girl sexually assaulted.
Gethers was outraged by these departures from the
plan. The gun could now be linked to that shooting and
possibly traced to him. The assault would also heighten
scrutiny by the police and/or the victim’s associates.
Mahoney avowed that he was at the Pettway store
on February 2, 2002, when Polo was killed. He heard
someone shout, ‘‘Oh, shit!’’ He saw three gunmen whose
faces were partially obscured by bandanas. Mahoney
believed the three masked men to be Brad Rainey, Tank
Gethers, and an individual he only knows as ‘‘K.’’ Bullets
began to whiz by, and Mahoney quickly ran across the
street from the Pettway store, jumped a fence, and hid
by or in his car. He recollected that Tank held a pump
type shotgun.
Mahoney was uncertain as to what the result of the
attack was. He phoned Polo, Manual Rosado, and
Robert Payton, but no one returned his calls at first.
Eventually, Robert Payton called Mahoney and
informed him that Polo was dead and Manual Rosado
wounded and in the hospital. Robert Payton cautioned
Mahoney to stay away from the hospital and remain
quiet about what had transpired.
About thirteen hours later, Rosado left the hospital
and, along with Robert Payton went to Mahoney’s resi-
dence. Tank Gethers drove up and an argument
between Mahoney and Gethers ensued because Maho-
ney told him he knows who was responsible for the
shooting. Gethers threatened Mahoney. Mahoney left
the area, spending two or three months in Boston.
Mahoney testified that he did not see the petitioner,
Tony Payton, or April Edwards at or near the Pettway
store at the time of the shootings.
After he returned to Bridgeport, Mahoney learned
that the police arrested the petitioner for his involve-
ment in the Pettway store shootings. Despite believing
the petitioner was innocent, Mahoney refrained from
communicating his knowledge to the authorities. He
attributed his silence to self-preservation, a reluctance
to be labeled as a ‘‘rat,’’ and a desire to avoid involve-
ment in the case, generally.
When interviewed by the petitioner’s habeas investi-
gator years later, Mahoney decided to tell what he
believed he knew about the incident because he regret-
ted that an innocent man was convicted of his close
friend’s murder when the real culprit was Brad Rainey.
The issue for the court to adjudicate, then, is whether
Mahoney’s exculpatory testimony, in combination with
all the other evidence adduced, including the testimony
of Latosha DelGiudice and the evidence connecting the
P.T. Barnum Apartments home invasion with the Pett-
way store shootings, along with the original criminal
trial evidence, establishes clear and convincing proof
that no reasonable jury would convict the petitioner, if
it received such evidence, and that the petitioner is
factually innocent of the crimes. The petitioner faces
a ‘‘heavy burden’’ to prevail under the Miller standard.
(Internal quotation marks omitted.) Gould v. Commis-
sioner of Correction, supra, 301 Conn. 567.
Contrary to the petitioner’s position, the court finds
the testimony of Manual Rosado identifying the peti-
tioner as his assailant to be very credible. He has stead-
fastly maintained that identification.
Rosado’s identification was corroborated by Tony
Payton. Tony Payton observed the events unfold from
a relatively safe vantage point and did not labor under
the confusion, stress, and/or fear that the fusillade must
have engendered in the minds and memories of those
more exposed to its dangers. His supposed motives to
lie appear very shallow.
The racial classifications and skin color testimony of
the witnesses appears to the court to be particularly
unuseful. Given the lack of reason for neutral witnesses
to reflect upon and recollect the precise skin tones of
persons firing bursts of bullets at targets unknown to
them, at night, in a poorly lit area, it is entirely unsurpris-
ing that these witnesses’ reports vary.
Gary Burton, a victim, thought the assailants were
three black men, possibly. One of his female compan-
ions perceived the attackers to be composed of one
black male, one Hispanic male, and one olive toned
male. Of course, the shooters’ lower faces were con-
cealed. Therefore, the court attributes little significance
to which of the witnesses’ diverse descriptions of skin
color comport with the petitioner’s complexion or not.
Furthermore, through information received by the
police as contained in exhibit 43, it is now the case that
two individuals, Shayla DelGiudice and Daniel Vereen,
said that they heard Rosado name the petitioner as his
shooter very soon after the event while at the hospital.
Rosado has persistently denied knowing who killed
his brother, Polo, and has refused to speculate on that
question, nor has he stated he personally recognized
any shooter besides the petitioner. If Rosado were of
a mind to frame the petitioner, it seems incongruous
that his mendacity would stop there and allow his broth-
er’s killer to remain unidentified.
 Also, Rosado’s identification of the petitioner as the
person who shot him is not negated by his suspicion
that Brad Rainey played some role in the event. As
noted previously, evidence was adduced that the peti-
tioner had engaged in menacing conduct toward Rosado
and Robert Payton at the Pettway store before February
2, 2002. The petitioner’s proof fails to dispel the possibil-
ity that Rosado’s antagonists, Rainey and the petitioner,
acted in concert.
It is clear that the same handgun fired at the P.T.
Barnum Apartments home invasion was also used in
the Pettway store shooting. But it is also apparent that
weapon was well traveled. Gethers, and/or Rainey may
have used the weapon, but it was also used to facilitate
crimes by other persons.
Mahoney’s testimony is fraught with circumstances
that expose his credibility and/or reliability to deroga-
tion. His testimony conflicts with that of Tony Payton
as to whether Payton and April Edwards were near the
Pettway store during the shooting. No other eyewitness
corroborated Mahoney’s testimony as to the core issue
of the identities of the shooters.
Mahoney bore a grudge against Brad Rainey. Maho-
ney testified that Rainey shot him five times because
Rainey believed Mahoney had issued a threat to ‘‘get’’
Rainey previously. Mahoney acknowledged that the
assailants wore bandanas concealing their lower faces
and that, upon hearing bullets whiz by, he immediately
fled the scene by running away from the locus of the
gunfire. Mahoney claimed to regard Polo as his brother
but allowed Polo’s real killers to remain at large for
years while the petitioner languished in prison for a
shooting Mahoney knew he did not commit. These cir-
cumstances place great strain on the believability or
accuracy of Mahoney’s testimony, given years later.
Keeping in mind that the Miller level of proof goes
beyond a mere preponderance to require a petitioner
to bear the heavy burden of demonstrating his factual
innocence by clear and convincing evidence, the peti-
tioner has failed to carry that burden. Clear and convinc-
ing evidence is substantial and unequivocal evidence
that produces a very high probability that the fact to
be proven is true. State v. Thompson, 305 Conn. 412,
425, 45 A.3d 605 (2012), cert. denied, 568 U.S. 1146,
133 S. Ct. 988, 184 L. Ed. 2d 767 (2013); see Gould v.
Commissioner of Correction, supra, 301 Conn. 560.
For these reasons, the amended petition for habeas
corpus relief is denied.
* Affirmed. Lopez v. Commissioner of Correction, 208 Conn. App. ,
A.3d (2021).