Rogers v. Commissioner of Correction

         Argued September 5, 2019

Page 82

         Appeal from the Superior Court in the judicial district of Tolland and tried to the court, Sferrazza, J.

          Norman A. Pattis, Bethany, with whom, on the brief, was Kevin Smith, New Haven, for the appellant (petitioner).

         Michele C. Lukban, Rocky Hill, senior assistant state’s attorney, with whom, on the brief, were Patrick Griffin, state’s attorney, and Rebecca Barry, supervisory assistant state’s attorney, for the appellee (respondent).

         Lavine, Prescott and Bear, Js.

          OPINION

         PRESCOTT, J.

Page 83

          [194 Conn.App. 341] In this "habeas on a habeas,"^[1] the petitioner, Thomas Rogers, appeals from the habeas court’s judgment denying his amended petition for a writ of habeas corpus.^[2] On appeal, the petitioner claims that the habeas court improperly rejected his claim that his trial counsel, Paul Carty, provided him with ineffective assistance with respect to whether he should have accepted a plea offer. The petitioner asserts that, but for the deficient legal advice he received from his trial counsel, he would have accepted a thirty-five year plea deal. The petitioner also claims that the habeas court improperly rejected his claim that his prior habeas counsel, Frank P. Cannatelli, provided ineffective assistance by failing to raise this claim in his first habeas petition. Having reviewed the record, we conclude that [194 Conn.App. 342] the habeas court properly denied the amended petition for a writ of habeas corpus, and, accordingly, we affirm the judgment of the habeas court.

         The following facts and procedural history are relevant to our disposition of the petitioner’s claim. The petitioner participated in a shooting that occurred on November 20, 1994, that resulted in the death of one of the victims. State v. Rogers, 50 Conn.App. 467, 469, 718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998). After the shooting, the petitioner, along with Isaac Council and Larry McCowen, returned to the apartment of the petitioner’s girlfriend and had a conversation in the living room. Id., at 471, 480-81, 718 A.2d 985. Council’s girlfriend, Safira McLeod, overheard the postshooting conversation between the petitioner, Council, and McCowen. Id., at 480-81, 718 A.2d 985. From the kitchen, which is where she was during the conversation, McLeod was unable to hear everything they were discussing. Id., at 481, 718 A.2d 985. She did, however, hear them discuss a shooting, people running, and someone being hit. Id. During the conversation, the petitioner, Council, and McCowen were laughing. Id. McLeod heard the petitioner’s voice, but she was unable to attribute anything said during the conversation to any one of its participants. Id. Furthermore, McLeod neither heard the petitioner deny participation in the shooting nor dispute what Council and McCowen were saying. Id. The petitioner subsequently was charged with murder, conspiracy to commit murder, attempt to commit murder, criminal possession of a firearm, and illegal possession of a weapon in a motor vehicle.

          The petitioner alleges that his trial counsel assured him that McLeod’s testimony pertaining to the postshooting conversation would not be admitted into evidence because it constituted hearsay.

Page 84

He further [194 Conn.App. 343] alleges that trial counsel did not explain to him that the testimony could be admitted as an adoptive admission.^[3]

          The petitioner, however, also was aware of other parts of McLeod’s potential testimony that were damaging to his defense and that were not within the scope of his trial counsel’s alleged deficient advice regarding the testimony’s admissibility. The habeas court stated that, aside from McLeod’s recollection of the postshooting conversation, McLeod’s testimony included "evidence that the petitioner left with Council and McCowen, dressed as the shooters were attired, in a vehicle that matched that of the shooters at the time [194 ...