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       BERNARD SMALLS v. COMMISSIONER OF
                 CORRECTION
                  (AC 40751)
                DiPentima, C. J., and Sheldon and Moll, Js.

                                   Syllabus

The petitioner, who previously had been convicted of murder, risk of injury
   to a child and criminal possession of a firearm, sought a writ of habeas
   corpus, claiming, inter alia, that the habeas counsel who had represented
   him with respect to a previous habeas petition he had filed provided
   ineffective assistance by, inter alia, failing effectively to raise the claim
   that the petitioner’s trial counsel was ineffective for failing to fully
   explain to the petitioner a plea offer he had rejected. The habeas court
   rendered judgment denying the habeas petition, from which the peti-
   tioner, on the granting of certification, appealed to this court. Held
   that the habeas court properly rendered judgment denying the habeas
   petition: that court having found that trial counsel properly had conveyed
   the information regarding the plea offer to the petitioner and that the
   credible evidence presented revealed that trial counsel had fully
   explained to the petitioner all of the charges and their minimum and
   maximum sentences, the petitioner failed to establish that trial counsel’s
   representation of him was deficient, and, therefore, the habeas court
   properly concluded that he likewise failed to establish that prior habeas
   counsel’s representation of him was deficient; moreover, the habeas
   court correctly determined that the petitioner was not prejudiced by
   any alleged deficient performance of either trial counsel or prior habeas
   counsel, as the petitioner’s claim that he would have accepted the plea
   offer of twenty-five years if trial counsel had explained to him that it
   would have resolved all of the charges that were then pending against
   him was belied by the petitioner’s testimony that he had adamantly
   refused to plead guilty to murder and would plead guilty only to man-
   slaughter.
           Argued January 3—officially released March 19, 2019

                             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, Oliver, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
   Naomi T. Fetterman, for the appellant (petitioner).
   Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Patrick Griffin, state’s
attorney, and Adrienne Russo, assistant state’s attor-
ney, for the appellee (respondent).
                          Opinion

  SHELDON, J. Following the granting of his petition
for certification to appeal, the petitioner, Bernard
Smalls, appeals from the judgment of the habeas court
denying his amended petition for a writ of habeas cor-
pus. The petitioner claims that the habeas court erred
in rejecting his claim that his prior habeas attorney
rendered ineffective assistance by failing effectively to
raise his claim that his attorney in his underlying crimi-
nal trial rendered ineffective assistance by failing to
explain to him the implications of a plea offer that he
rejected. We affirm the judgment of the habeas court.
   The following undisputed procedural history is rele-
vant to this appeal. On December 7, 2001, the petitioner
was sentenced to a total effective sentence of fifty years
incarceration after being convicted of murder by use
of a firearm in violation of General Statutes § 53a-54a
(a), risk of injury to a child in violation of General
Statutes (Rev. to 1999) § 53-21 (1), and criminal posses-
sion of a firearm in violation of General Statutes (Rev.
to 1999) § 53a-217 (a). His sentence was enhanced by
a guilty finding of commission of a class A, B or C
felony with a firearm in violation of General Statutes
§ 53-202k. The petitioner’s conviction was affirmed on
direct appeal. See State v. Smalls, 78 Conn. App. 535,
548, 827 A.2d 784, cert. denied, 266 Conn. 931, 837 A.2d
806 (2003).
   The petitioner filed his first habeas petition in 2004.
On July 31, 2007, the petitioner, who was then repre-
sented by Attorney Cheryl A. Juniewic, filed an
amended petition, wherein he alleged, inter alia,1 that he
was denied the effective assistance of his trial counsel,
Michael Moscowitz. The petitioner claimed, inter alia,
that Moscowitz ‘‘did not adequately consult with or
advise [the] petitioner concerning the status of any plea
negotiations, any potential plea agreements or the con-
sequences of accepting a plea agreement as opposed
to the consequences of going to trial before a jury.’’
The habeas court rejected the petitioner’s claim, finding
that ‘‘the twenty-five year offer of pleading to murder
was in fact conveyed to [the petitioner], and he rejected
that offer.’’ This court dismissed the petitioner’s appeal
from the judgment of the habeas court. See Smalls v.
Commissioner of Correction, 146 Conn. App. 909, 78
A.3d 307 (2013), cert. denied, 311 Conn. 931, 87 A.3d
579 (2014).
  On March 12, 2012, the petitioner commenced this
habeas action, claiming ineffective assistance by Junie-
wic in his prior habeas action. He filed a second
amended petition on January 20, 2017, wherein he
claimed that Juniewic rendered ineffective assistance
by, inter alia, failing effectively to raise the claim that
Moscowitz was ineffective for failing to fully explain
the plea offer to him.
   After a two day trial, the habeas court rendered a
decision rejecting the petitioner’s claim that Juniewic
rendered ineffective assistance to him in his previous
habeas action. The habeas court concluded that the
petitioner failed to prove that Juniewic’s representation
of him was deficient or prejudicial. The court explained
its ruling as follows: ‘‘In the instant matter, all of the
credible evidence adduced at the habeas trial clearly
demonstrates that the petitioner would not have
accepted any plea offer for a murder charge from the
prosecuting authority. Attorney Moscowitz testified
credibly at the habeas trial that he reviewed with the
petitioner the nature and elements of the charges
against him, the minimum and maximum sentences he
could receive if convicted, and what the state would
have to prove in order to convict the petitioner of the
charges. Attorney Moscowitz also testified that he pre-
sented a twenty-five year offer to the petitioner and
advised him to take it, but the petitioner refused to
plead guilty unless the [principal charge was] reduced
from murder to manslaughter, which [the state’s attor-
ney] was unwilling to do. The petitioner also testified
at the habeas trial that he did not want to plead guilty
to a murder charge. Furthermore, [the state’s attorney]
testified that he was responsible for all decisions regard-
ing the charges the petitioner faced, and he was not
willing to reduce the murder charge in this case. As a
result, the court finds that Attorney Moscowitz properly
conveyed the information regarding the plea offer to the
petitioner, and therefore his conduct did not constitute
deficient performance. Furthermore, it is not reason-
ably probable that the petitioner was going to accept
the plea offer given the fact that he admitted that he
did not want to plead [guilty] to a murder charge. As
a result, the petitioner has failed to sustain his burden
of establishing that Attorney Moscowitz was ineffective
for failing to properly explain a plea offer, and therefore
his claim of ineffective assistance against Attorney
Juniewic must be denied.’’ The habeas court granted
the petitioner’s petition for certification to appeal, and
this appeal followed.
   The petitioner claims that the habeas court erred in
rejecting his claim that Juniewic rendered ineffective
assistance in his first habeas action. Specifically, the
petitioner claims that Juniewic rendered ineffective
assistance by failing effectively to argue that Moscow-
itz’s representation of him was ineffective because he
failed to explain that the twenty-five year plea offer
would have resolved all charges that were then pending
against him. We disagree.
  ‘‘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. [Id.,] 842. As to each of those
inquiries, the petitioner is required to satisfy the familiar
two-pronged test set forth in Strickland v. Washington,
[466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)]. First, the [petitioner] must show that counsel’s
performance was deficient. . . . Second, the [peti-
tioner] must show that the deficient performance preju-
diced the defense. . . . Unless a [petitioner] makes
both showings, it cannot be said that the conviction
. . . resulted from a breakdown in the adversary pro-
cess that renders the result unreliable. . . . Lozada v.
Warden, supra, 842–43. 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 . . . .
   ‘‘In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assis-
tance was reasonable considering all the circum-
stances. . . . Judicial scrutiny of counsel’s
performance must be highly deferential and courts must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance; that is, the [petitioner] must overcome the
presumption that, under the circumstances, the chal-
lenged action might be considered sound trial strategy.
. . . [S]trategic choices made after thorough investiga-
tion of law and facts relevant to plausible options are
virtually unchallengeable; [but] strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.
. . . With respect to the prejudice prong, the petitioner
must establish that if he had received effective represen-
tation by habeas counsel, there is a reasonable probabil-
ity that the habeas court would have found that he
was entitled to reversal of the conviction and a new
trial . . . .
   ‘‘It is well settled that in reviewing the denial of a
habeas petition alleging the ineffective assistance of
counsel, [t]his court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Internal quotation marks omitted.)
Adkins v. Commissioner of Correction, 185 Conn. App.
139, 150–52, 196 A.3d 1149, cert. denied, 330 Conn. 946,
196 A.3d 326 (2018).
   ‘‘To show prejudice from ineffective assistance of
counsel where a plea offer has . . . been rejected
because of counsel’s deficient performance, defendants
must demonstrate a reasonable probability they would
have accepted the earlier plea offer had they been
afforded effective assistance of counsel. Defendants
must also demonstrate a reasonable probability the plea
would have been entered without the prosecution can-
celing it or the trial court refusing to accept it, if they
had the authority to exercise that discretion under state
law. To establish prejudice in this instance, it is neces-
sary to show a reasonable probability that the end result
of the criminal process would have been more favorable
by reason of a plea to a lesser charge or a sentence of
less prison time.’’ (Internal quotation marks omitted.)
Mahon v. Commissioner of Correction, 157 Conn. App.
246, 253–54, 116 A.3d 331, cert. denied, 317 Conn. 917,
117 A.3d 855 (2015).
   The petitioner claims on appeal that the habeas court
erred in concluding that Juniewic’s performance was
neither deficient nor prejudicial based on her alleged
failure properly to raise his argument that Moscowitz
failed to advise him that the twenty-five year plea offer
would have resolved all of the charges then pending
against him. Although the habeas court found that Mos-
cowitz properly had conveyed the information regard-
ing the plea offer to the petitioner, the petitioner claims
that that finding is erroneous based on Moscowitz’s
testimony in the petitioner’s first habeas trial that the
parties ‘‘didn’t get into details about the other charges’’
during the plea negotiations. The petitioner claims that
because the other charges were not discussed during
the plea negotiations, Moscowitz could not have
advised him and, in fact, did not advise him, that his
acceptance of the twenty-five year offer on the murder
charge would have resolved all of the charges against
him. Moscowitz, however, testified in this habeas action
that he did not recall the proposed structure of the
twenty-five year plea offer, but that that sentence would
be ‘‘the controlling sentence,’’ and he had explained
that to the petitioner. Although the petitioner testified
that Moscowitz did not explain the charges that were
pending against him, or the sentences associated with
those charges, the habeas court did not find that testi-
mony credible. Rather, the habeas court found that the
credible evidence presented revealed that Moscowitz
had fully explained to the petitioner all of the charges
and their minimum and maximum sentences. Because
the petitioner failed to establish that Moscowitz’s repre-
sentation of him was deficient, the habeas court prop-
erly concluded that he likewise failed to establish that
Juniewic’s representation of him was deficient.
  Moreover, the petitioner testified, and Moscowitz
confirmed, that he had adamantly refused to plead
guilty to murder and would only plead guilty to man-
slaughter. The petitioner testified: ‘‘It was just mainly
the title, but the number really . . . didn’t matter. It
was the title, meaning murder or manslaughter.’’ He
also testified: ‘‘I just didn’t want that . . . murder title
on my name . . . because I . . . believe that it wasn’t
intentional. I didn’t . . . mean to kill him.’’ Thus, the
petitioner’s claim that he would have accepted the
twenty-five year offer if Moscowitz had explained to
him that it would resolve all of the charges that were
then pending against him is belied by his own testimony.
We therefore conclude that the habeas court also cor-
rectly determined that the petitioner was not prejudiced
by any alleged deficient performance by either Moscow-
itz or Juniewic.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
    In that petition, the petitioner also claimed that his appellate counsel,
on his direct appeal, was ineffective and that his right to due process was
violated because of prosecutorial impropriety. Those claims are not relevant
to this appeal.
