Cunningham v. Commissioner of Correction

          Argued October 16, 2016

         Procedural History

         Amended 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.

          James E. Mortimer, assigned counsel, for the appellant (petitioner).

          Laurie 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.

          OPINION

          PER CURIAM.

         The 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.^[1] We affirm the judgment of the habeas court.

         The 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.

         Thereafter, 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.

         We 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).

         I

         The 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. We disagree.

         The 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^[2] 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 ...