James CUNNINGHAM, Sr.
COMMISSIONER OF CORRECTION
October 16, 2019
from the Superior Court, Judicial District of Tolland, Edward
J. Mullarkey, J.
E. Mortimer, assigned counsel, for the appellant
N. Feldman, special deputy assistant states attorney, with
whom, on the brief, were John C. Smriga, states attorney,
and Emily Dewey Trudeau, assistant states attorney, for the
Moll and Eveleigh, Js.
Conn.App. 64] 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 [195 Conn.App. 65] rejected his
claims that his trial counsel rendered
ineffective assistance by (1) failing to conduct an adequate
pretrial investigation into the petitioners theory of
self-defense, and (2) referring to the petitioner as a
"bully" during closing argument. We affirm the
judgment of the habeas court.
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., at 522, 146 A.3d
1029. The petitioner shot the victim three times, with the
fatal shot to the chest causing the victim to die within
minutes. Id. The petitioners neighbor helped him
wrap the victims body in a tarp and attach it to a metal
rack on the back of the petitioners Hummer. Id. The
petitioner threw the murder weapon in a river and drove the
Hummer to his grandmothers 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., at 523, 146 A.3d 1029.
According to the petitioners 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 [195 Conn.App. 66] 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.,
at 521, 146 A.3d 1029. The petitioner subsequently pleaded
guilty to a charge of criminal possession of a firearm in
violation of General Statutes § 53a-217 (a). Id., at
527, 146 A.3d 1029. The court sentenced the petitioner to a
term of sixty years of incarceration. Id. The
petitioners conviction was affirmed on direct appeal.
Id., at 521, 538, 146 A.3d 1029.
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 petitioners 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 counsels assistance was so defective as to require
reversal of [the underlying] conviction .... That requires
the petitioner to show (1) that counsels 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 ...