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          KERMIT FRANCIS v. COMMISSIONER
                  OF CORRECTION
                     (AC 39445)
             DiPentima, C. J., and Lavine and Pellegrino, Js.

                                 Syllabus

The petitioner, who had been convicted of, inter alia, murder in connection
   with a shooting that occurred following a drug transaction, filed a third
   petition for a writ of habeas corpus, claiming that the habeas counsel
   who had represented him with respect to his second habeas matter
   had rendered ineffective assistance by failing to question a potentially
   exculpatory witness, K, properly and to present evidence that K had
   been available to testify at his criminal trial. K, who testified at both
   the petitioner’s second and third habeas proceedings, recalled that she
   had seen the victim standing on a porch when she saw a spark of light
   without audible accompaniment. She later observed the victim on the
   ground. K testified that she never saw the actual shooting and did not
   hear a gunshot, and she was inconsistent in her recollection of the
   sequence of events. At the criminal trial, evidence had been adduced
   that an individual on the porch had used a cigarette lighter to light the
   petitioner’s marijuana cigar shortly before the shooting occurred in a
   nearby driveway and that other witnesses had heard the gunshot. The
   habeas court determined that, had K’s testimony been introduced at the
   criminal trial, it would not have undermined the court’s confidence in
   the petitioner’s conviction, and rendered judgment denying the third
   habeas petition. Thereafter, the habeas court granted the petition for
   certification to appeal, and the petitioner appealed to this court. Held
   that the habeas court properly denied the petitioner’s third petition for
   a writ of habeas corpus; that court’s findings were supported by the
   evidence and were not clearly erroneous, as the witnesses at the criminal
   trial were consistent with one another and were bolstered by statements
   that had been given in the immediate aftermath of the crime, and other
   evidence, including the petitioner’s flight to New York under an alias,
   suggested his guilt, the habeas court carefully weighed K’s testimony
   against that evidence and found it to be not credible, as K’s testimony
   at the habeas trial was inconsistent with her prior statements and with
   other witnesses’ recollections, and the habeas court having properly
   determined that, in light of all the other evidence, K’s testimony would
   not have led a reasonable jury to find the petitioner not guilty, the
   petitioner could not prove that he was prejudiced by his prior habeas
   counsel’s purportedly deficient performance at the second habeas trial
   in questioning K improperly or in failing to present evidence of her
   availability to testify at the original criminal trial, or both.
   Submitted on briefs February 22—officially released June 12, 2018

                            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, Sferrazza, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
  Donald F. Meehan and Walter C. Bansley IV filed a
brief for the appellant (petitioner).
  Nancy L. Chupak, senior assistant state’s attorney,
Gail P. Hardy, state’s attorney, and Jo Anne Sulik,
supervisory assistant state’s attorney, filed a brief for
the appellee (respondent).
                          Opinion

  DiPENTIMA, C. J. The petitioner, Kermit Francis,
appeals from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. The
habeas court granted his petition for certification to
appeal to this court; he claims on appeal that he was
prejudiced as a result of the ineffective assistance of
his erstwhile habeas counsel, Michael Day. Specifically,
the petitioner argues that, at his habeas trial, Day failed
(1) to question a witness properly and (2) to present
evidence of that witness’ availability to testify at the
original criminal trial. We affirm the judgment of the
habeas court.
   The following facts, as summarized by our Supreme
Court on the petitioner’s direct appeal, are relevant.
‘‘On December 20, 1993, the [petitioner], along with
Casey Wilcox, Andre Shirley and Corey Rosemond,
were selling crack cocaine in the area of [Wilcox’] resi-
dence at 88 Atwood Street in Hartford. The victim,
Moses Barber, Jr., a regular customer, purchased drugs
from the [petitioner]. After making his purchase, he
walked away. The victim later returned to [Wilcox’]
porch and engaged in an argument with the [petitioner]
concerning the drug sale. The victim and the [petitioner]
left the porch and the [petitioner] proceeded up a dark
driveway between two buildings directly across the
street from [Wilcox’] residence. The victim remained
near the street. As they continued to argue, the [peti-
tioner] approached the victim and shot him. The victim
died later that night as a result of a gunshot wound to
his abdomen.
  ‘‘On December 21, 1993, Wilcox asked the [petitioner]
for his guns for the purpose of threatening an individual
who had accused Wilcox of shooting the victim. The
[petitioner] went into the basement of a house on
Atwood Street, and emerged with a handgun and rifle,
which he gave to Wilcox. Wilcox, in turn, gave the
weapons to Rosemond and instructed Rosemond to put
the weapons in the trunk of a vehicle parked behind
[Wilcox’] residence. The next morning, Hartford police
officers, armed with a search warrant, seized the weap-
ons from the trunk of the vehicle and, thereafter,
learned that the [petitioner] did not have a permit to
carry a pistol or revolver. Moreover, the police officers
found that the serial number on the pistol had been
ground off.
   ‘‘Thereafter, Wilcox, Shirley and Rosemond gave
statements implicating the [petitioner] in the murder,
and a warrant was issued on December 23, 1993, for
the [petitioner’s] arrest. The [petitioner] was arrested
in New York in June, 1995.’’ (Footnotes omitted.) State
v. Francis, 246 Conn. 339, 342–43, 717 A.2d 696 (1998).
   Following a trial, a jury found the petitioner guilty
of murder in violation of General Statutes (Rev. to 1993)
§ 53a-54a (a), carrying a pistol without a permit in viola-
tion of General Statutes (Rev. to 1993) § 29-35 and alter-
ing or removing an identification mark on a pistol in
violation of General Statutes (Rev. to 1993) § 29-36. See
State v. Francis, supra, 246 Conn. 341–42. The trial
court, Barry, J., sentenced the petitioner to a total
effective sentence of sixty years imprisonment.1
   The petitioner, representing himself, filed a petition
for a writ of habeas corpus dated January 1, 2001, alleg-
ing that his criminal trial counsel, William B. Collins,
had rendered ineffective assistance. Eventually, the
petitioner was assigned counsel, Frank Cannatelli, who
withdrew that first petition with prejudice. That with-
drawal prompted a second habeas action, this time
alleging, among other things, that Cannatelli was inef-
fective for withdrawing the original petition. After a
trial (first habeas trial), the habeas court, Schuman, J.,
partially granted the second petition and restored the
original petition under a new docket number.
   In his restored petition, the petitioner, represented
by Day, alleged that Collins had rendered ineffective
assistance. Specifically, the petitioner alleged that Col-
lins failed to call Fredrica Knight, a potentially exculpa-
tory witness, to testify in the original criminal trial.
After a trial (second habeas trial), the habeas court,
Bright, J., denied the petition in a memorandum of
decision, which this court summarily affirmed. See
Francis v. Commissioner of Correction, 150 Conn. App.
906, 98 A.3d 121 (2014).
   Thereafter, in a new petition, which was amended
on January 4, 2016, the petitioner set forth another
claim of ineffective assistance of counsel. Specifically,
he alleged that Day had rendered ineffective assistance
at the second habeas trial by failing (1) to question
Knight properly and (2) to present evidence of Knight’s
availability to testify at the original criminal trial. That
amended petition is the operative petition in this matter.
On June 30, 2016, after a trial (third habeas trial), the
habeas court, Sferrazza, J., issued a memorandum of
decision denying the operative petition. The habeas
court then granted the petitioner’s petition for certifica-
tion to appeal to this court. This appeal ensued. Addi-
tional facts will be set forth as necessary.
   ‘‘Our standard of review of a habeas court’s judgment
on ineffective assistance of counsel claims is well set-
tled. The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous. . . .
The application of the habeas court’s factual findings
to the pertinent legal standard, however, presents a
mixed question of law and fact, which is subject to
plenary review. . . . Therefore, our review of whether
the facts as found by the habeas court constituted a
violation of the petitioner’s constitutional right to effec-
tive assistance of counsel is plenary. . . .
   ‘‘It is well established that [a] criminal defendant is
constitutionally entitled to adequate and effective assis-
tance of counsel at all critical stages of criminal pro-
ceedings . . . . This right arises under the sixth and
fourteenth amendments to the United States constitu-
tion and article first, § 8, of the Connecticut constitu-
tion. . . . As enunciated in Strickland v. Washington,
[466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)], this court has stated: It is axiomatic that the
right to counsel is the right to the effective assistance
of counsel. . . . A claim of ineffective assistance of
counsel consists of two components: [A] performance
prong and a prejudice prong. To satisfy the performance
prong . . . the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. . . . To satisfy the second prong of Strickland,
that his counsel’s deficient performance prejudiced his
defense, the petitioner must establish that, as a result
of his trial counsel’s deficient performance, there
remains a probability sufficient to undermine confi-
dence in the verdict that resulted in his appeal. . . .
The second prong is thus satisfied if the petitioner can
demonstrate that there is a reasonable probability that,
but for that ineffectiveness, the outcome would have
been different. . . . An ineffective assistance of coun-
sel claim will succeed only if both prongs [of Strickland]
are satisfied. . . . The court, however, may decide
against a petitioner on either prong, whichever is eas-
ier.’’ (Citations omitted; internal quotation marks omit-
ted.) Sanders v. Commissioner of Correction, 169
Conn. App. 813, 822–23, 153 A.3d 8 (2016), cert. denied,
325 Conn. 904, 156 A.3d 536 (2017).
   ‘‘The use of a habeas petition to raise an ineffective
assistance of habeas counsel claim, commonly referred
to as a habeas on a habeas, was approved by our
Supreme Court in Lozada v. Warden, 223 Conn. 834,
613 A.2d 818 (1992). In Lozada, the court determined
that the statutory right to habeas counsel for indigent
petitioners provided in General Statutes § 51-296 (a)
includes an implied requirement that such counsel be
effective, and it held that the appropriate vehicle to
challenge the effectiveness of habeas counsel is through
a habeas petition. . . . In Lozada, the court explained
that [t]o succeed in his bid for a writ of habeas corpus,
the petitioner must prove both (1) that his appointed
habeas counsel was ineffective, and (2) that his trial
counsel was ineffective. . . . As to each of those
inquiries, the petitioner is required to satisfy the familiar
two-pronged test set forth in [Strickland]. . . . In other
words, a petitioner claiming ineffective assistance of
habeas counsel on the basis of ineffective assistance
of trial counsel must essentially satisfy Strickland twice
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Gerald W. v. Commissioner of Correction,
169 Conn. App. 456, 463–64, 150 A.3d 729 (2016), cert.
denied, 324 Conn. 908, 152 A.3d 1246 (2017).
  The petitioner’s sole claim on appeal is that the
habeas court improperly determined that he failed to
prove that Day had provided ineffective assistance. We
conclude that the habeas court properly denied the
amended petition for a writ of habeas corpus.
   The petitioner failed to, and cannot, prove that he
was prejudiced by Day’s alleged ineffectiveness. Knight
testified at the second and third habeas trials. Following
a review of the evidence presented at the third habeas
trial as well as the transcripts of both the second habeas
trial and the criminal trial, the third habeas court noted:
‘‘Knight was very sketchy as to the sequence of events
she purportedly perceived. She first testified that, after
school on December 20, 1993, she and two friends
walked to a corner store located about one block from
her residence. The victim . . . was her mother’s boy-
friend. She saw him on or at a porch attached to a
house . . . . She saw a ‘spark’ of light between the
victim and a person other than the petitioner. She heard
no gunshot accompanying the glint of light. Sometime
later, she observed the victim lying on the ground, went
near his body, and spoke to a young man whom she
believes was the petitioner. The man told her to leave
the area. Subsequently, Knight modified her recollec-
tion so that she stated that she noticed the activity
recounted above on her way back from the corner store.
Knight reiterated that she never saw the actual shooting,
but she knew the petitioner was not the shooter.
  ‘‘The other evidence adduced at the criminal trial
both refutes and explains some of Knight’s inconsistent
observations. . . . [Wilcox, Rosemond, Shirley] and
the petitioner regularly sold crack cocaine [at Wilcox’
residence]. . . . During the early evening of December
20, 1993, the petitioner approached the porch . . .
upon which Wilcox, Rosemond, and Shirley loitered.
The petitioner asked for a light in order to smoke a
marijuana cigar. Rosemond obliged.
   ‘‘A little later, the victim also approached the group
and complained to the petitioner about whether a drug
transaction between them was satisfactorily fulfilled.
Following some argument, the petitioner crossed the
street to enter a driveway or alleyway . . . . The victim
followed the petitioner but stopped on the sidewalk at
the beginning of the driveway. The petitioner proceeded
down the driveway toward the rear of the buildings.
   ‘‘The petitioner emerged from the alley carrying a
pistol. The victim tussled with the petitioner, followed
by an audible gunshot. The victim staggered backward
a few steps and then collapsed. Wilcox, Rosemond, and
Shirley ran across the street to where the victim lay.
The petitioner ran away, and no one encountered him
again that night. A girl also came over to the victim,
and Wilcox told her to call an ambulance.
  ‘‘After full review of the evidence, the court finds it
highly unlikely that a jury would find Knight’s putative
testimony very persuasive. This witness repeatedly
stated that she never saw or heard anyone shoot the
victim. Instead, she recalled a spark of light without
audible accompaniment. Knight may very well have
seen the assisted lighting of the petitioner’s marijuana
cigar. It should be noted that evidence of the use of
the cigarette lighter shortly before the argument
between the petitioner and the victim was introduced
at the criminal trial at which Knight never testified.
Thus, that testimony was not an attempt to explain
away Knight’s perception of a flash of light among the
group of young men.
   ‘‘Also, other witnesses in the neighborhood heard
the gunshot, which must have been quite audible. Yet,
Knight observes only a quick ‘spark’ of light uncoupled
from the sound of gunfire.
  ‘‘At the criminal trial, Wilcox described a young
female approach the victim while he stood nearby the
body. Wilcox mentioned that he engaged the girl in a
brief conversation. His testimony came sixteen years
before Knight testified at the [second habeas trial]. It
appears likely that a fact finder would find Knight’s
identification of the person to whom she spoke sincere
but mistaken. In sum, the addition of her testimony fails
to undermine the court’s confidence in the petitioner’s
convictions.’’ (Emphasis in original.)
   It is clear that the habeas court in the third habeas
trial carefully weighed Knight’s putative testimony
against the rest of the evidence adduced at the original
criminal trial and found it not to be credible. ‘‘[A] pure
credibility determination . . . is unassailable.’’ Breton
v. Commissioner of Correction, 325 Conn. 640, 694, 159
A.3d 1112 (2017); see also Sanchez v. Commissioner
of Correction, 314 Conn. 585, 604, 103 A.3d 954 (2014)
(‘‘we must defer to the [trier of fact’s] assessment of
the credibility of the witnesses based on its firsthand
observation of their conduct, demeanor and attitude’’
[internal quotation marks omitted]); Taylor v. Commis-
sioner of Correction, 284 Conn. 433, 448, 936 A.2d 611
(2007) (‘‘[t]he habeas judge, as the trier of facts, is the
sole arbiter of the credibility of witnesses and the
weight to be given to their testimony’’ [internal quota-
tion marks omitted]).
  The habeas court’s findings are supported by the
evidence. Not only are the other witnesses’ testimonies
consistent with one another, but they are bolstered by
statements given in the immediate aftermath of the
crime. Knight’s testimony, on the other hand, is consis-
tent neither with her early statements nor with any of
the other witnesses’ recollections. Additionally, other
evidence was presented at the criminal trial to suggest
the petitioner’s guilt, most salient of which was his
flight to New York under an alias, which is strong cir-
cumstantial evidence of consciousness of guilt. Thus,
the court’s findings were not clearly erroneous.
   On this record, therefore, the habeas court properly
determined that, in light of all the other evidence,
Knight’s testimony would not have led a reasonable
jury to find the petitioner not guilty. As a result, the
petitioner cannot prove that he was prejudiced by Day’s
purportedly deficient performance at the second habeas
trial in questioning Knight improperly or in failing to
present evidence of her availability to testify at the
original criminal trial, or both.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
    On the petitioner’s direct appeal, our Supreme Court reversed his convic-
tion of altering or removing an identification mark on a pistol, but affirmed
his conviction of the remaining offenses. State v. Francis, supra, 246 Conn.
352–56, 359.
