September 18, 2017
A. Barber, assigned counsel, for the appellant (petitioner).
Matthew A. Weiner, assistant state's attorney, with whom,
on the brief, were Patrick J. Griffin, state's attorney,
and Grayson Colt Holmes, former special deputy assistant
state's attorney, for the appellee (respondent).
DiPentima, C. J., and Lavine and Mullins, Js. [*]
petitioner, Adam Carmon, appeals from the judgment of the
habeas court, dismissing in part and denying in part, his
fourth petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court improperly concluded
that he failed to establish that (1) the state had violated
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963), by withholding critical exculpatory
evidence at the time of his criminal trial, (2) his criminal
trial counsel, first habeas counsel, and second habeas
counsel all had provided ineffective assistance, and (3) he
was entitled to immediate release on the basis of actual
innocence. We affirm the judgment of the habeas court.
opinion of this court from the petitioner's direct appeal
set forth the following facts underlying the petitioner's
conviction: ‘‘On the night of February 3, 1994,
Charlene Troutman was in the living room of her apartment
located on Orchard Street in New Haven waiting for a taxicab.
With her, among others, was her seven month old
granddaughter. Shots fired from the street passed through the
living room window killing the granddaughter and leaving
Troutman permanently paralyzed. At the time the shots were
fired, Jaime Stanley and Raymond Jones were [in a vehicle]
stopped at a traffic light near Troutman's apartment and
saw a man firing into the apartment. As the shooter ran away,
both Stanley and Jones saw his face. Both witnesses
identified the [petitioner] during trial as the person who
had fired the shots through the window of Troutman's
apartment.'' State v. Carmon, 47 Conn.App.
813, 815, 709 A.2d 7, cert. denied, 244 Conn. 918, 714 A.2d 7
basis of this evidence, following a guilty verdict by the
jury, the trial court rendered judgment of conviction against
the petitioner for murder, assault in the first degree and
carrying a pistol without a permit. Id., 814-15. The
court then sentenced the petitioner to a total effective term
of eighty-five years incarceration. Following a direct
appeal, this court affirmed the judgment of conviction, and
our Supreme Court denied the petition for certification to
appeal. State v. Carmon, 244 Conn. 918, 714 A.2d 7
the petitioner filed a petition for a writ of habeas corpus
claiming that his criminal trial counsel, Richard
Silverstein, as well as his appellate counsel, Suzanne
Zitser, had provided ineffective assistance; the habeas court
denied that petition, but granted the petition for
certification to appeal. See Carmon v. Commissioner of
Correction, 114 Conn.App. 484, 486, 969 A.2d 854, cert.
denied, 293 Conn. 906, 978 A.2d 1108 (2009). The petitioner
filed an appeal, which we dismissed after he failed to file
an appellate brief. Id., 486-87.
petitioner then filed a second petition for a writ of habeas
corpus, claiming again that his criminal trial counsel had
provided ineffective assistance. In this second petition, he
included allegations of deficient performance that had not
been alleged in his first petition. Id., 487.
Specifically, the petitioner alleged, in relevant part, that
Silverstein had performed deficiently because he had failed
to investigate and to introduce fingerprint evidence taken
from a storm window at the crime scene and from an empty
ammunition cartridge box found near the crime scene.
a habeas trial, the court issued a memorandum of decision
denying the petition for a writ of habeas corpus.
Id. We affirmed the judgment of the habeas court on
appeal, and our Supreme Court denied the petition for
certification to appeal. Carmon v. Commissioner of
Correction, 293 Conn. 906, 978 A.2d 1108 (2009).
the petitioner filed a third petition for a writ of habeas
corpus, claiming that his criminal trial counsel, first
habeas counsel, and second habeas counsel all had provided
ineffective assistance. See Carmon v. Commissioner of
Correction, 148 Conn.App. 780, 782, 87 A.3d 595 (2014).
He also alleged that several material witnesses had given
false testimony during his criminal trial, that the state had
withheld exculpatory evidence, that his conviction was
rendered on the basis of prosecutorial impropriety, and that
he is actually innocent. Id. When the petitioner
failed to respond to the request by the respondent, the
Commissioner of Correction, for a more specific statement,
the habeas court defaulted the petitioner and rendered
judgment dismissing the petitioner's third habeas case.
Id., 784. We affirmed that judgment on appeal.
the pendency of the petitioner's appeal from the judgment
of dismissal of his third habeas petition, however, the
petitioner filed the present habeas petition, his fourth. In
this petition, the petitioner alleged: as to count one, his
criminal trial counsel, and his first and second habeas
counsel all had provided ineffective
assistance; as to count two, the state knew or should
have known that the testimony of several of its witnesses was
false; as to count three, the state violated his right to due
process by permitting the witnesses to provide false
testimony; as to count four, the state violated Brady v.
Maryland, supra, 373 U.S. 83, by not turning over
exculpatory evidence; as to count five, the prosecutor
committed impropriety, which was based on the allegations in
counts two through four of the petition; and, as to count
six, actual innocence.
respondent asserted several special defenses: (1) as to count
one, the respondent asserted that the fourth petition was
successive as to the petitioner's criminal trial counsel
and first habeas counsel, and that the petitioner failed to
state a claim as to his second habeas counsel; (2) as to
counts two through five, the petitioner had procedurally
defaulted on those counts; and, as to count six, the petition
was successive. The petitioner responded, inter alia, that
there was newly discovered evidence in the form of a
fingerprint analysis report that proved that the fingerprints
on the ammunition box found near the crime scene belonged to
Arthur Brantley, an early suspect in this shooting. The
petitioner contended that this report had not been disclosed
by the prosecution at the time of his last petition that was
decided on the merits, namely, the second petition for a writ
of habeas corpus.
trial, the habeas court determined that the allegations in
count one, which were that his trial counsel, and his first
and second habeas counsel had provided ineffective assistance
by failing to investigate and to call certain expert
witnesses, were abandoned due to inadequate briefing.
Additionally, the court found that those allegations were
‘‘without factual foundation and support in the
record.'' The court further found that the petitioner
had failed to prove that the failure of his criminal trial
counsel to introduce the fingerprint analysis report was
prejudicial to the petitioner. In addition, the court found
that neither the petitioner's first nor his second habeas
counsel had the fingerprint analysis report, but that the
petitioner failed to establish that he was prejudiced by
their failure to obtain and to present this evidence because
it was not material. Accordingly, the court rejected count
one of the fourth habeas petition.
counts two and three of the fourth petition, regarding the
allegations of perjured testimony, the court found that the
petitioner was procedurally defaulted from raising these
claims, and it dismissed them. As to count four, alleging a
Brady violation, the court found that the petitioner
had failed to prove that the state had not disclosed, at the
time of his criminal trial, the fingerprint analysis report.
The court also found that this evidence, even if not
disclosed, was not material. As to count five of the fourth
petition, the court rejected the allegations in that count on
the basis of its rejection of counts two through four, which
formed the basis of the alleged prosecutorial impropriety
allegation in count five. As to count six, the actual
innocence claim, the court concluded that the fingerprint
analysis report was not newly discovered evidence because the
petitioner did not establish that his criminal trial counsel
did not have the report at the time of trial. Alternatively,
the court found, even if it were to assume arguendo that this
evidence was newly discovered, on the basis of the