JAMES CUNNINGHAM, SR.
COMMISSIONER OF CORRECTION
October 16, 2016
petition for a writ of habeas corpus, brought to the Superior
Court in the judicial district of Tolland and tried to the
court, Hon. Edward J. Mullarkey, judge trial
referee; judgment denying the petition, from which the
petitioner, on the granting of certification, appealed to
this court. Affirmed.
E. Mortimer, assigned counsel, for the appellant
N. Feldman, special deputy assistant state's attorney,
with whom, onthe brief, were John C. Smriga, state's
attorney, and Emily Dewey Trudeau, assistant state's
attorney, for the appellee (respondent).
Keller, Moll and Eveleigh, Js.
petitioner, James Cunningham, Sr., appeals from the judgment
of the habeas court denying his amended petition for a writ
of habeas corpus. The petitioner claims that the court
improperly rejected his claims that his trial counsel
rendered ineffective assistance by (1) failing to conduct an
adequate pretrial investigation into the petitioner's
theory of selfdefense, and (2) referring to the petitioner as
a ‘‘bully'' during closing
argument. We affirm the judgment of the habeas
following underlying procedural history and facts, which are
set forth in more detail on direct appeal, are relevant to
our resolution of this appeal. See State v.
Cunningham, 168 Conn.App. 519, 146 A.3d 1029, cert.
denied, 323 Conn. 938, 151 A.3d 385 (2016). On the night of
August 5, 2012, an altercation arose between the petitioner
and the victim, who were friends and who had been living
together for several weeks. Id., 522. The petitioner
shot the victim three times, with the fatal shot to the chest
causing the victim to die within minutes. Id. The
petitioner's neighbor helped him wrap the victim's
body in a tarp and attach it to a metal rack on the back of
the petitioner's Hummer. Id. The petitioner
threw the murder weapon in a river and drove the Hummer to
his grandmother's house, concealing it in a hedge.
Id. At his criminal trial, the petitioner admitted
to the events of the shooting and to the subsequent
concealing of the body, but testified that he had shot the
victim in self-defense. Id., 523. According to the
petitioner's version of events, he shot the victim after
the victim attacked him and tried to grab his pistol.
Id. Two theories of the defense offered at trial
were self-defense and that the petitioner had acted at most
with the appropriate mens rea for manslaughter, but not
murder. Id. Neither the state nor the defense
requested an instruction on a lesser included offense.
Id. Following a jury trial, the petitioner was found
guilty of murder in violation of General Statutes §
53a-54a (a) and carrying a pistol without a permit in
violation of General Statutes § 29-35 (a). Id.,
521. The petitioner subsequently pleaded guilty to a charge
of criminal possession of a firearm in violation of General
Statutes § 53a-217 (a). Id., 527. The court
sentenced the petitioner to a term of sixty years of
incarceration. Id. The petitioner's conviction
was affirmed on direct appeal. Id., 521, 538.
the petitioner filed an amended petition for a writ of habeas
corpus alleging ineffective assistance of his trial counsel,
Matthew Couloute. The court denied the petition, reasoning,
inter alia, that the petitioner had not proven either
deficient performance or prejudice on his claims of
inadequate pretrial investigation and improper use of the
word ‘‘bully'' during closing argument.
The court granted the petitioner's petition for
certification to appeal. This appeal followed.
first set forth our standard of review. ‘‘In
Strickland v. Washington, [466 U.S. 668');">466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984)], the United States Supreme
Court established that for a petitioner to prevail on a claim
of ineffective assistance of counsel, he must show that
counsel's assistance was so defective as to require
reversal of [the underlying] conviction . . . . That requires
the petitioner to show (1) that counsel's performance was
deficient and (2) that the deficient performance prejudiced
the defense. . . . Unless a [petitioner] makes both showings,
it cannot be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the result
unreliable. . . . To satisfy the performance prong . . . the
petitioner must demonstrate that his attorney's
representation was not reasonably competent or within the
range of competence displayed by lawyers with ordinary
training and skill in the criminal law. . . . To satisfy the
prejudice prong, [the petitioner] must demonstrate that there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. . . . A court can find against a
petitioner, with respect to a claim of ineffective assistance
of counsel, on either the performance prong or the prejudice
prong.'' (Citation omitted; internal quotation marks
omitted.) Stephen J. R. v. Commissioner
of Correction, 178 Conn.App. 1, 7-8, 173 A.3d 984
(2017), cert. denied, 327 Conn. 995, 175 A.3d 1246 (2018).
petitioner claims that the court improperly rejected his
claim that his trial counsel rendered ineffective assistance
by failing to investigate adequately a self-defense theory.
court determined that although the count of the petition
alleging inadequate pretrial investigation was
‘‘very unspecific, '' the petitioner had
not proven either inadequate pretrial
investigation or a reasonable probability that the
result of the trial would have been different. At the habeas
trial, the petitioner presented only the testimony of himself
and Couloute. The court ...