March 19, 2019
[Copyrighted Material Omitted]
Superior Court, Judicial District of Tolland, Oliver, J.
L. OBrien, assigned counsel, with whom on the brief was
Christopher Y. Duby, North Haven, assigned counsel, for the
J. Scheinblum, senior assistant states attorney, with whom,
on the brief, were Gail P. Hardy, states attorney, Angela R.
Macchiarulo, senior assistant states attorney, and Michael
Proto, assistant states attorney, for the appellee (state).
Elgo and Pellegrino, Js.
Conn.App. 800] The petitioner, Troy McCarthy, appeals,
following the granting of his petition for certification to
appeal, from the judgment of the habeas court denying his
petition for a writ of habeas corpus. In his underlying
criminal case, the petitioner allegedly
rejected a plea offer from the state after being misled
regarding the strength of the states case against him
because his prior counsel, Joseph Elder, fabricated
affidavits from certain eyewitnesses to the underlying crime.
The habeas court denied the petition on the ground that an
ineffective assistance of counsel claim was not cognizable
because Elder was no longer representing the petitioner when
he fabricated the affidavits or at the time the plea offer
appeal, the petitioner claims that the habeas court
improperly concluded that (1) count one of his amended
petition alleging a due process violation was procedurally
defaulted because he failed to sustain his burden to
establish good cause for his failure to raise this claim at
trial or on direct appeal and (2) an ineffective assistance
of counsel action regarding Elder was not cognizable because
Elder did not represent him at the time that Elder fabricated
the witnesses affidavits or at the time that the petitioner,
in reliance on these affidavits, rejected the states plea
offer. We conclude that the court properly determined that
count one of the petitioners amended petition was barred by
procedural default. We agree, however, with the petitioner
that the court improperly denied count three of his amended
petition alleging ineffective assistance by [192 Conn.App.
801] Elder because, in assessing his sixth amendment right to
the effective assistance of counsel, the habeas court applied
an unduly narrow view of the scope and duration of the
attorney-client relationship. Accordingly, we affirm in part
and reverse in part the judgment of the habeas court.
relevant facts, as set forth in the habeas courts memorandum
of decision and in this courts decision resolving the
petitioners direct appeal, are as follows: "On
September 25, 2003, the [petitioner] and the victim, Raymond
Moore, were standing near the corner of Westland Street and
Garden Street in Hartford, in front of the former Nelson &
Sons Market, when they engaged in a physical altercation.
After the victim slammed the [petitioner]s body onto the
sidewalk, several people intervened and stopped the fight.
The [petitioner], humiliated, left the scene but stated that
he would be back. Later, the [petitioner] returned with a
gun, but the victim was not there. A friend of the victim,
Robert Ware, and others told the [petitioner] that it wasnt
worth it. The [petitioner], however, responded that the
victim was going to respect him.
"Two days later, on September 27, 2003, the victim
returned to the area and was standing in front of Nelson &
Sons Market speaking with Ware. Ware then went across
Westland Street and entered Melissas Market to buy
cigarettes. A homeless woman from the area, Mary Cauley, who
was on her way to the C-Town Market on Barbour Street,
approached the victim and told him that he should go home to
his family. She then continued on her way to the C-Town
Market, walking north on Garden Street, where she saw the
[petitioner] standing on his front porch. Cauley said hello
to the [petitioner], who instructed her to get out of the
way. When she got to the C-Town Market, Cauley heard
hearing a gunshot, Ware immediately ran out of Melissas
Market as a second gunshot was fired. [192 Conn.App. 802]
Looking up Garden Street, Ware saw the victim falling to the
ground and saw the [petitioner] running in the opposite
direction carrying a gun. At that same time, Maurice Henry,
Chauncey Odum and Tylon Barlow were in a vehicle in the
parking lot behind Nelson & Sons Market smoking blunts.
Henry was in the drivers seat. As he began to drive out of
the parking lot, onto Garden Street, Henry saw the victim
walking north. He then saw the [petitioner] emerge
from the rear yard of a Garden Street building, carrying a
gun. Henry saw the [petitioner] shoot the victim twice."
(Footnote omitted.) State v. McCarthy, 105 Conn.App.
596, 598-600, 939 A.2d 1195, cert. denied, 286 Conn. 913, 944
A.2d 983 (2008).
petitioner was arrested on March 1, 2004, and charged with
murder in violation of General Statutes § 53a-54a, carrying a
pistol without a permit in violation of General Statutes §
29-35, and criminal possession of a firearm in violation of
General Statutes § 53a-217. Elder entered a court appearance
on the petitioners behalf at his first bond hearing on March
2, 2004. The appearance form indicated that the appearance
was for bond purposes only. See Practice Book § 3-6. On March
10, 2004, Elder "informed the court that he did not
intend to file a full appearance in the petitioners case,
and that he would return the petitioners retainer," and
the court permitted him to withdraw his court appearance. On
March 29, 2004, Attorney R. Bruce Lorenzen, a public
defender, entered his appearance on the petitioners behalf
but withdrew from the case on June 23, 2005, due to a
conflict of interest. The court then appointed special public
defenders, Attorneys Michael O. Sheehan and George G. Kouros,
to represent the petitioner.
Conn.App. 803] Sometime between March 3, 2004, and April 9,
2004, Elders private investigator, Homer Ferguson,
interviewed Henry and Cauley, eyewitnesses to the shooting.
Elder prepared affidavits based on Fergusons notes from
these interviews. The affidavits were signed by Henry and
Cauley on April 9, 2004. In their affidavits, both witnesses
purportedly recanted the prior statements that they had made
to the police implicating the petitioner in the shooting and,
instead, indicated that the investigating detective had
"intimidated, coerced and pressured [them] to provide
inculpatory testimony against the petitioner." Their
affidavits further indicated that they did not know who shot
the victim. After Lorenzen was appointed to represent the
petitioner, Elder placed the affidavits in the copy of the
file he shared with Lorenzen, and the affidavits ultimately
became part of Sheehan and Kouros file.
petitioner pleaded not guilty to all charges and elected a
jury trial. During jury selection, the state extended a plea
offer to the petitioner that would have required him to plead
guilty to manslaughter in the first degree with a firearm in
violation of General Statutes § 53a-55a in exchange for a
maximum sentence of fifteen years of incarceration with a
right to argue for a lower sentence of no less than ten years
of incarceration. After consulting with Sheehan and Kouros,
the petitioner rejected the states offer and proceeded to
petitioners criminal trial, Henry and Cauley testified for
the state and identified the petitioner as [192 Conn.App.
804] the shooter in the victims murder. On
cross-examination, the petitioner impeached Henry and Cauley
with the affidavits that had been prepared
by Elder. Both witnesses testified that they never told
Ferguson that the police had intimidated, coerced, and
pressured them to identify the petitioner as the shooter.
state also called Elder to testify at the petitioners
criminal trial. He testified that he had used Fergusons
notes from his meetings with Henry and Cauley to prepare the
affidavits. The prosecutor asked if he "[made] things
up" in the affidavits, which he answered by saying:
"What I did was, I filled in the gap. And the idea would
be to fill in the gap to see if that would be what the
witness would agree to. It was not information that came
directly from the witness, it was information that I provided
...." The prosecutor then asked, "where did you get
that information from," to which Elder responded:
"I made it up." The prosecutor asked if he believed
that he had fabricated evidence, and Elder replied: "No,
because it wasnt information that would have been
substantial or substantive in that way. It was information
that did not go to the substance of the case." As an
example, Elder noted that Henrys claim that he did not
witness the shooting was not something he would fabricate.
The prosecutor then asked if Elder would fabricate the phrase
"out of fear and through intimidation," and Elder
indicated that the phrase was "something [he] would put
in there." When asked if he often editorialized
witnesses affidavits, Elder stated: "I dont generally
do that. But, in doing this particular one, my recollection
is that I felt that it needed a little oomph." Elder had
not informed the petitioner or any of his attorneys that he
had fabricated the affidavits.
petitioner subsequently was convicted of murder in violation
of § 53a-54a. He was sentenced to fifty years of
Conn.App. 805] On direct appeal, the petitioner claimed that
"(1) the court improperly denied his motion for a new
trial, (2) the court improperly admitted certain impeachment
evidence for substantive purposes, (3) the court improperly
instructed the jury and (4) he was deprived of a fair trial
due to prosecutorial impropriety." State v.
McCarthy, supra, 105 Conn.App. at 598, 939 A.2d 1195. We
subsequently affirmed his conviction. Id.
petitioner filed his first petition for a writ of habeas
corpus on January 9, 2007, in which he was represented by
Attorney Robert J. McKay. In his first habeas action, McKay
did not raise a claim of ineffective assistance of counsel
against Elder. The habeas court, Cobb, J.,
denied the petition on March 22, 2012. McCarthy v.
Warden, Docket No. CV- 07-4001548-S, 2012 WL ...