Argued January 22, 2015
[Copyrighted Material Omitted]
Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, T. Santos, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court.
The petitioner, who had been convicted of murder, sought habeas relief in a third amended petition for a writ of habeas corpus, claiming that his prior habeas counsel, K, had provided ineffective assistance at his first habeas trial. The habeas court rendered judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court.
1. The habeas court properly determined that K's alleged failure to investigate the state's case and certain of its witnesses did not constitute ineffective assistance, the petitioner having failed to establish that he was prejudiced by K's performance such that he was deprived of a fair trial because there was a reasonable probability that the result would have been different:
a. The petitioner failed to present evidence that a witness, S, who had identified him in a photographic array, would have provided information beneficial to the petitioner's criminal trial or that the photographic array would have been suppressed had a motion to suppress been filed, as the petitioner merely identified discrepancies in S's statements to the police and did not call S to testify at the habeas trial.
b. K did not render ineffective assistance by failing to pursue or raise deficiencies in the testimony and statements of J and B, who had witnessed the murder, as their testimony was cumulative of that of other witnesses, and the petitioner failed to show that the outcome of the first habeas trial would have been different.
c. K did not provide ineffective assistance by not challenging the failure of the petitioner's trial counsel to seek to preclude evidence of an ammunition box, to retain an expert to examine a fingerprint on the box, and to investigate a gunshot residue test, as the petitioner admitted that no evidence was presented at the habeas trial that the fingerprint did not belong to him or that anything was wrong with the ammunition box, and this court declined to review the petitioner's claims as to the ammunition box and the gunshot residue test, as they were not raised in the habeas petition or addressed in the habeas court's memorandum of decision.
2. The habeas court reasonably concluded that K did not render ineffective assistance in failing to investigate a third-party culpability claim as to M, a witness to the shooting; K's decision not to investigate a third-party culpability claim was sound trial strategy, as the petitioner failed to present any evidence connecting M to the shooting.
3. The habeas court properly determined that K did not render ineffective assistance in failing to investigate and present an alibi defense; the petitioner did not offer testimony to corroborate his alibi claim and, thus, could not demonstrate that K's representation fell below an objective standard of reasonableness, or that it prejudiced the petitioner's defense.
Abdul Mukhtaar, self-represented, with whom, on the brief, were Michael D. Day and Robert J. McKay, assigned counsel, for the appellant (petitioner).
Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Robin S. Schwartz, assistant state's attorney, and Gerard P. Eisenman, former senior assistant state's attorney, for the appellee (respondent).
Beach, Sheldon and Dupont, Js. DUPONT, J. In this opinion the other judges concurred.
[158 Conn.App. 433] In this " habeas on a habeas" case, the petitioner, Abdul Mukhtaar, appeals from the judgment of the habeas court denying his third petition, as amended, for a writ of habeas corpus. This third petition is one in a labyrinth of petitions for a writ of habeas corpus and amended habeas corpus petitions filed by the petitioner. On appeal, the petitioner claims that the habeas court erred when it concluded that his first habeas counsel, Damon A. R. Kirschbaum,
did not render ineffective assistance by failing to investigate (1) the state's case and witnesses; (2) a third-party culpability claim; and (3) the petitioner's alibi defense. We disagree with the petitioner and, accordingly, affirm the judgment of the habeas court.
The habeas court set forth the following factual history in its memorandum of decision. " At approximately 4 p.m. on February 14, 1996, Benjamin Sierra, Jr., was driving his parents' car on Fairfield Avenue in Bridgeport. While stopped at a red light at the intersection [158 Conn.App. 434] of Fairfield and Iranistan Avenues, Sierra spotted two young women, Tracey Gabree and Terri Horeglad, with whom he was acquainted, standing at a nearby pay telephone. Sierra waved to Gabree and Horeglad and they approached and entered Sierra's car. Horeglad sat in the front passenger seat and Gabree sat in the back seat. Gabree asked Sierra for a cigarette. Sierra then turned around and gave her a cigarette and a light. . . . When Sierra turned back toward the front of the car, he observed that his vehicle was blocked by a tan car that was facing the wrong direction on Fairfield Avenue. At that moment, Gabree shouted: `Oh shit, Kareem!' Gabree then fled from Sierra's car. A man, later identified by Sierra and Gabree as the [petitioner], emerged from the tan car and approached the passenger side of Sierra's car, where Horeglad remained seated. Sierra jumped out of his car and asked the [petitioner] what was wrong. The [petitioner], who did not respond, pulled out what appeared to be a .32 or .38 caliber chrome plated revolver and fired four shots at Horeglad, each of which entered the right side of her body. Horeglad died as a result of the gunshot wounds." (Footnote added.)
The petitioner was charged and, following a jury trial, convicted of murder in violation of General Statutes § 53a-54a. On September 19, 1997, the trial court sentenced the petitioner to fifty years imprisonment. The petitioner appealed from the judgment of conviction directly to our Supreme Court and the conviction was affirmed. State v. Mukhtaar, 253 Conn. 280, 750 A.2d 1059 (2000).
The petitioner filed his first petition for a writ of habeas corpus on January 31, 2001, and subsequently [158 Conn.App. 435] withdrew it on February 28, 2001. He filed his second petition for a writ of habeas corpus on April 2, 2001, and subsequently filed an amended petition on December 21, 2006 (second petition). In count one of the second petition, the petitioner alleged ineffective assistance of his trial counsel, Gerald Bodell. Specifically, he alleged that Bodell rendered deficient performance in (1) advising him not to testify at trial and (2) not seeking additional investigation into the possibility of juror bias. In count two, the petitioner alleged juror bias. At the habeas trial on this second petition, the petitioner was represented by his first habeas counsel, Kirschbaum. Following this first habeas trial, the court denied the second petition, and, thereafter, the petitioner's appeal following that denial was dismissed. Mukhtaar v. Commissioner of Correction, 113 Conn.App. 114, 964 A.2d 1251,
cert. denied, 291 Conn. 913, 969 A.2d 175 (2009).
The petitioner filed his third petition for a writ of habeas corpus on January 14, 2008. This petition was subsequently amended on September 8, 2010, (third petition) and is the subject of this appeal. This third petition alleged, inter alia, that the petitioner's first habeas counsel, Kirschbaum, provided ineffective assistance during the petitioner's first habeas trial. The petitioner alleged that Kirschbaum had failed to adequately (1) prosecute a claim that there had been juror intimidation during the criminal trial; (2) investigate the petitioner's alibi that he was in New York when the crime was committed; (3) present available witnesses and evidence to support the petitioner's contention that trial defense counsel was ineffective; (4) present the issue that the trial judge should have recused himself because he had previously presided over the probable cause hearing; (5) present a claim that the jury was not impartial and that the jury instructions were faulty; (6) investigate and present a claim that trial defense counsel failed [158 Conn.App. 436] to properly investigate and present ...