Mack v. Commissioner of Correction

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Mack v. Commissioner of Correction
RICARDO MACK v. COMMISSIONER
OF CORRECTION
(AC 46562)
Clark, Westbrook and Palmer, Js.
Syllabus
The petitioner, who had previously been convicted of, inter alia, murder,
appealed, following the denial of his petition for certification to appeal from
the habeas court’s judgment denying his petition for a writ of habeas corpus.
He claimed, inter alia, that the court improperly rejected his claim that his
prior habeas counsel, M, had rendered ineffective assistance by failing to raise
in his previous habeas action two claims of ineffective assistance against his
criminal trial counsel, P. Held:
The habeas court abused its discretion in denying the petitioner’s petition
for certification to appeal, as his challenge to the court's resolution of the
issue was not frivolous and warranted appellate review.
The habeas court properly rejected the petitioner’s claim that M provided
ineffective assistance by failing to raise claims in his prior habeas action that
P had provided ineffective assistance by failing to object to certain evidence
pertaining to the victim’s autopsy in violation of his right to confrontation
under the United States constitution, as the court properly determined that
the petitioner failed to meet his burden of proving M provided ineffective
assistance, the petitioner having failed to prove that P performed deficiently
in failing to object to the admissibility of the autopsy report and certain
testimony about the report.
The petitioner’s claim that the habeas court improperly rejected his claim
that M provided ineffective assistance by failing to raise claims in his prior
habeas action that P had provided ineffective assistance by failing to advise
him regarding the availability of sentence review and to pursue such review
on his behalf lacked merit, as, even assuming that P rendered ineffective
assistance by failing to represent the petitioner with respect to sentence
review, the petitioner failed to demonstrate that M performed deficiently
by not raising a claim of ineffective assistance against P predicated on P’s
failure to seek sentence review for the petitioner.
Argued September 4, 2025—officially released June 2, 2026
Procedural History
Amended petition for a writ of habeas corpus, brought
to the Superior Court in the judicial district of Tolland,
where the court, Oliver, J., granted the respondent’s
motion to dismiss count one of the petition; thereafter,
the case was tried to the court, Newson, J.; judgment
denying the petition; subsequently, the court, Newson,

Mack v. Commissioner of Correction
J., denied the petition for certification to appeal, and the
petitioner appealed to this court. Affirmed.
Julia K. Conlin, assigned counsel, with whom was
Emily Graner Sexton, assigned counsel, for the appel-
lant (petitioner).
Nicholas Scarlett, deputy assistant state’s attorney,
with whom, on the brief, were Matthew Gedansky,
state’s attorney, and Angela Macchiarulo, supervisory
assistant state’s attorney, for the appellee (respondent).
Opinion
PALMER, J. In this habeas on a habeas,1 the petitioner,
Ricardo Mack, appeals following the denial of his peti-
tion for certification to appeal from the judgment of
the habeas court denying his second petition for a writ
of habeas corpus challenging his 2008 conviction of one
count of murder and two counts of assault in the first
degree. On appeal, the petitioner claims that the habeas
court (1) abused its discretion in denying his petition for
certification to appeal and (2) improperly rejected his
claim that his prior habeas counsel rendered ineffective
assistance by failing to raise in his previous habeas action
two claims of ineffective assistance against his criminal
trial counsel, namely, trial counsel’s failure to object to
certain hearsay testimony concerning the autopsy of the
murder victim and trial counsel’s failure both to advise
the petitioner of his right to sentence review and to seek
such review on the petitioner’s behalf. Although we
agree with the petitioner that the habeas court abused
its discretion in denying his petition for certification
to appeal, we conclude that the habeas court properly
determined that the petitioner failed to meet his burden
of proving ineffective assistance of prior habeas counsel
because the petitioner did not prove that his criminal
1As we discuss more fully hereinafter, “[a] habeas on a habeas occurs
when a petitioner files a subsequent petition for a writ of habeas corpus
challenging the effectiveness of counsel in litigating a previous petition
for a writ of habeas corpus that had claimed ineffective assistance of
counsel at the petitioner’s underlying criminal trial or on direct appeal.”
Haywood v. Commissioner of Correction, 194 Conn. App. 757, 759 n.1,
222 A.3d 545 (2019), cert. denied, 335 Conn. 914, 229 A.3d 729 (2020).

Mack v. Commissioner of Correction
trial counsel performed deficiently. Accordingly, we
affirm the judgment of the habeas court denying the
petitioner’s habeas petition.
The following facts, as set forth by this court in the
petitioner’s direct appeal from his criminal conviction,
and procedural history are relevant to the petitioner’s
claims on appeal. “A shooting resulting in the death of
Chaz Booth and gunshot injuries to two other persons,
Terrice Kimble and Christopher Henry, occurred in the
early morning hours of December 24, 2005, in Hartford.
Booth, Kimble, Henry and the [petitioner] were among
a crowd of people in Papa’s Pizza, which is a restaurant
on Union Place in Hartford. Booth was sitting at a table
near the front of the restaurant on the right side when,
at approximately 2:42 a.m., the [petitioner] raised his
arm and fired several gunshots from a handgun. The
[petitioner] then moved forward, closer to Booth, and
fired additional gunshots before running out the door.2
Ten cartridge cases were recovered from the restaurant.
Booth died from a total of seven gunshot wounds, with
bullet trajectories indicating that the bullets entered
him from the back.
“When the gunshots were fired, Kimble jumped on top
of a table to make his way out of the restaurant. Once he
was outside, he discovered that he had been shot and had
suffered wounds to his arm and torso. Henry was sitting
at the table opposite from where Booth was sitting. When
the gunshots were fired, Henry dropped to the floor and
hid under the table. He discovered that he had been shot
in the leg, so he ‘scooted’ out of the restaurant without
getting up from the floor.
“The [petitioner] fled the restaurant in a red Jeep
Cherokee driven by another person. A Hartford police
officer responded to a report of gunshots being fired at
the restaurant and learned that a red Jeep Cherokee had
2“The restaurant had a security system, which recorded a silent video
from four small cameras inside. Police seized the video, which showed
the shooter and the shooting, but not the victim. The video was admit-
ted as a full exhibit at trial, and portions of the recording were shown
to the jury.” State v. Mack, 129 Conn. App. 127, 129 n.3, 19 A.3d 689,
cert. denied, 302 Conn. 908, 23 A.3d 1245 (2011).

Mack v. Commissioner of Correction
left the scene. On his way to the restaurant, the officer
came upon a motor vehicle accident involving a red Jeep
Cherokee. When the officer approached, the [petitioner]
fled from the vehicle on foot. The officer apprehended
the [petitioner], arrested him and brought him to the
police station. The police recovered the handgun used
in the shooting from the vehicle.
“The [petitioner] made a statement to the police in
which he confessed to the shooting.3 He stated that he
believed that Booth had shot and killed his friend Marlon
Atkinson, also known as ‘Pints,’ in 2004. The [petitioner]
shot Booth at the restaurant in retaliation for Atkinson’s
murder.
“At [the petitioner’s criminal] trial, counsel for the
[petitioner] argued that the [petitioner] had acted in
self-defense. Two witnesses testified in support of this
defense. Jaquan Leggett testified that the [petitioner]
was in a heated conversation with someone at the restau-
rant just prior to the shooting, and that he saw a man
consistent with Booth’s description with a gun in his
hand. Floyd Riley testified that, sometime before the
shooting, the [petitioner] had told him that Booth had
threatened him. The [petitioner] did not mention any
of these facts in his signed confession. Both surviving
victims of the shooting, Kimble and Henry, testified that
they did not recall seeing Booth with a gun, nor did they
recall hearing any argument between the [petitioner]
and Booth.
“At trial, the state [also] presented evidence relating to
the [petitioner’s] consciousness of guilt. Specifically, it
pointed to the [petitioner’s] flight from the restaurant,
the [petitioner’s] flight from the red Jeep Cherokee fol-
lowing the collision and the arrival of the police, and the
alleged effort of the [petitioner], in the form of certain
notes [purportedly written by the petitioner] seized from
3“The court found that the [petitioner] had been advised properly
of his rights and had knowingly, intelligently and voluntarily waived
them.” State v. Mack, 129 Conn. App. 127, 130 n.4, 19 A.3d 689, cert.
denied, 302 Conn. 908, 23 A.3d 1245 (2011).

Mack v. Commissioner of Correction
the cell of an inmate named Marcus Perry, to solicit tes-
timony concerning his claim of self-defense.” (Footnote
altered; footnote in original.) State v. Mack, 129 Conn.
App. 127, 129–30, 19 A.3d 689, cert. denied, 302 Conn.
908, 23 A.3d 1245 (2011).
Following a jury trial, the petitioner was convicted
of one count of murder in violation of General Statutes
§ 53a-54a (a) and two counts of assault in the first degree
with a firearm in violation of General Statutes § 53a-
59 (a) (5). Id., 128. The trial court rendered judgment
accordingly and imposed a total effective sentence of
ninety years of incarceration. Id., 128 n.1. The petitioner
directly appealed from that judgment of conviction,
which this court affirmed.4 Id., 141.
The petitioner commenced his first habeas action in
2011, alleging that his criminal trial counsel, Attorney
Robert Pickering, rendered ineffective assistance by fail-
ing to conduct an adequate investigation into potential
defense witnesses and failing to present the testimony
of those witnesses at trial in support of the petitioner’s
claim of self-defense. Following a trial at which the peti-
tioner was represented by Attorney Bruce McIntyre,
the habeas court rejected those claims and denied the
petition. See Mack v. Warden, Superior Court, judicial
district of Tolland, Docket No. CV-12-4004389-S (August
22, 2014). From that judgment, the petitioner unsuccess-
fully appealed to this court. See Mack v. Commissioner
of Correction, 165 Conn. App. 901, 137 A.3d 118, cert.
denied, 321 Conn. 927, 138 A.3d 287 (2016).
The petitioner commenced a second habeas action in
2015, which underlies the present appeal. On February
23, 2022, the petitioner filed the operative amended
petition for a writ of habeas corpus, which contains two
4In his direct appeal, the petitioner’s sole claim involved the trial
court’s allegedly improper admission into evidence of the handwritten
notes, apparently written by the petitioner and seized from Perry’s cell,
which, the state maintained, reflected an attempt by the petitioner to
persuade Perry to testify falsely on the petitioner’s behalf. State v.
Mack, supra, 129 Conn. App. 128. This court rejected the petitioner’s
contention that the admission of the notes was improper. Id.

Mack v. Commissioner of Correction
counts. In count one, the petitioner alleged ineffective
assistance by Pickering for, inter alia, failing to object to
certain testimony about the victim’s autopsy by the then
state’s chief medical examiner, who had not personally
conducted the autopsy, in violation of the petitioner’s
right to confrontation under the sixth amendment to the
United States constitution.5 In addition, the petitioner
alleged that Pickering rendered ineffective assistance
for failing to advise him regarding the availability of
sentence review and for failing to pursue such review on
his behalf. In count two, the petitioner alleged ineffec-
tive assistance on the part of McIntyre in his first habeas
action due to his failure to raise the issues asserted in
count one.
The respondent, the Commissioner of Correction, filed
a motion to dismiss count one of the operative petition
predicated on successive petition and abuse of writ
grounds and, following a hearing, the court, on August
12, 2022, dismissed count one on those grounds.6 With
respect to count two, the respondent filed a return in
which he either denied the substantive allegations of
the petition or left the petitioner to his proof. At the
habeas trial, which took place on February 23, 2023, the
court heard testimony from the petitioner, McIntyre,
and Pickering.
In its subsequent memorandum of decision dated April
4, 2023, the court concluded that the petitioner did not
establish that McIntyre rendered ineffective assistance
by not alleging in his first habeas action that Pickering
rendered ineffective assistance by failing to raise a con-
frontation clause objection and by failing to advise the
5The sixth amendment to the United States constitution provides in
relevant part: “In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him . . . .” U.S.
Const., amend. VI.
The sixth amendment right to confrontation is made applicable to the
states through the due process clause of the fourteenth amendment to
the United States constitution. See, e.g., Pointer v. Texas, 380 U.S.
400, 403, 406, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).
6On appeal, the petitioner does not challenge the habeas court’s dis-
missal of count one.

Mack v. Commissioner of Correction
petitioner regarding sentence review and failing to seek
such review on the petitioner’s behalf.7 The court, there-
fore, denied the petition for a writ of habeas corpus. The
petitioner then filed a petition for certification to appeal,
which the habeas court denied, and this appeal followed.
I
First, we address the petitioner’s claim that the habeas
court improperly denied his petition for certification to
appeal. We agree with the petitioner.
The following legal principles are applicable to our
consideration of the petitioner’s claim. “In Simms v.
Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our
Supreme Court] concluded that . . . [General Statutes]
§ 52-470 [g]8 prevents a reviewing court from hearing
the merits of a habeas appeal following the denial of
certification to appeal unless the petitioner establishes
that the denial of certification constituted an abuse of
discretion by the habeas court. In Simms v. Warden, 230
Conn. 608, 615–16, 646 A.2d 126 (1994), [our Supreme
Court] incorporated the factors adopted by the United
States Supreme Court in Lozada v. Deeds, 498 U.S.
430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991),
as the appropriate standard for determining whether the
7The court also rejected claims raised by the petitioner that McIntyre
provided ineffective assistance by failing to plead and prove that Picker-
ing did not: challenge the admissibility of the testimony of a handwrit-
ing expert presented by the state; adequately investigate and present a
claim of self-defense; investigate and present the testimony of a certain
potential witness identified by the petitioner; and consult with and pres-
ent the testimony of an expert on gunshot wounds. On appeal, the peti-
tioner does not contest the habeas court’s determination that he failed
to establish ineffective assistance with respect to these other grounds.
8General Statutes § 52-470 (g) provides: “No appeal from the judgment
rendered in a habeas corpus proceeding brought by or on behalf of a per-
son who has been convicted of a crime in order to obtain such person’s
release may be taken unless the appellant, within ten days after the case
is decided, petitions the judge before whom the case was tried or, if such
judge is unavailable, a judge of the Superior Court designated by the
Chief Court Administrator, to certify that a question is involved in the
decision which ought to be reviewed by the court having jurisdiction
and the judge so certifies.”

Mack v. Commissioner of Correction
habeas court abused its discretion in denying certifica-
tion to appeal. This standard requires the petitioner to
demonstrate that the issues are debatable among jurists
of reason; that a court could resolve the issues [in a dif-
ferent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . A peti-
tioner who establishes an abuse of discretion through
one of the factors listed above must then demonstrate
that the judgment of the habeas court should be reversed
on its merits.” (Emphasis in original; footnote added;
internal quotation marks omitted.) Ramos v. Commis-
sioner of Correction, 237 Conn. App. 372, 379–80, 352
A.3d 654 (2026).
“In determining whether the habeas court abused its
discretion in denying the petitioner’s request for certi-
fication, we necessarily must consider the merits of the
petitioner’s underlying [claim] to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive [claim] for the purpose of
ascertaining whether [that claim satisfies] one or more
of the three criteria . . . adopted by [our Supreme Court]
for determining the propriety of the habeas court’s denial
of the petition for certification.” (Internal quotation
marks omitted.) Brown v. Commissioner of Correction,
230 Conn. App. 384, 392, 330 A.3d 134, cert. denied,
351 Conn. 921, 333 A.3d 103 (2025).
As our discussion in part II A of this opinion reflects,
the issue of whether McIntyre rendered ineffective assis-
tance in the first habeas action for failing to allege that
Pickering performed deficiently by not raising a confron-
tation clause objection to the autopsy report and Carver’s
testimony about that report in accordance with Crawford
v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L.
Ed. 2d 177 (2004), gives rise to the question of whether
such a claim would have been novel or untested at the time
of the petitioner’s criminal trial. See, e.g., Santaniello
v. Commissioner of Correction, 230 Conn. App. 741,
768–69, 331 A.3d 739 (counsel’s failure to pursue novel

Mack v. Commissioner of Correction
or untested constitutional argument does not constitute
ineffective assistance), cert. denied, 351 Conn. 926, 333
A.3d 1109 (2025). Although we ultimately reject the
petitioner’s claim with respect to this issue, we agree with
the petitioner that his challenge to the habeas court’s
resolution of the issue is not frivolous and warrants
appellate review under the criteria set forth in Simms
v. Warden, supra, 230 Conn. 615–16.9 Accordingly, we
conclude that the habeas court abused its discretion in
denying the petition for certification to appeal.
II
The petitioner contends that the court improperly
rejected his claim that McIntyre provided ineffective
assistance by failing to raise claims in his prior habeas
action regarding Pickering’s failure (1) to object to the
admission of certain evidence pertaining to the victim’s
autopsy on the basis that it violated the petitioner’s right
to confrontation under the United States constitution
pursuant to Crawford v. Washington, supra, 541 U.S. 36,
because the associate medical examiner who conducted
the autopsy did not testify at the petitioner’s criminal
trial and therefore was not subject to cross-examination
and (2) to advise him regarding the availability of sen-
tence review and to pursue such review on his behalf.
We reject each of these claims.
We begin with an overview of the legal principles that
govern our review of the petitioner’s ineffective assis-
tance of counsel claims. “In Lozada [v. Warden, 223
Conn. 834, 842–43, 613 A.2d 818 (1992)], our Supreme
Court established that habeas corpus is an appropri-
ate remedy for the ineffective assistance of appointed
habeas counsel, authorizing what is commonly known
as a habeas on a habeas, namely, a second petition for a
writ of habeas corpus . . . challenging the performance
9In light of our conclusion that the petitioner is entitled to appellate
review of the habeas court’s denial of his habeas petition, we need not
consider whether the habeas court improperly denied his petition for
certification to appeal with respect to the other issues that we address
herein.

Mack v. Commissioner of Correction
of counsel in litigating an initial petition for a writ of
habeas corpus . . . [that] had claimed ineffective assis-
tance of counsel at the petitioner’s underlying criminal
trial or on direct appeal. . . . Nevertheless, the court in
Lozada also emphasized that a petitioner asserting a
habeas on a habeas faces the herculean task . . . of proving
in accordance with Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), both
(1) that his appointed habeas counsel was ineffective,
and (2) that his trial counsel was ineffective. . . . Any
new habeas trial would go to the heart of the underlying
conviction to no lesser extent than if it were a challenge
predicated on ineffective assistance of trial or appel-
late counsel. The second habeas petition is inextricably
interwoven with the merits of the original judgment by
challenging the very fabric of the conviction that led to
the confinement.” (Internal quotation marks omitted.)
Santaniello v. Commissioner of Correction, supra, 230
Conn. App. 749.
“In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary. . . . In a habeas trial, the
court is the trier of fact and, thus, is the sole arbiter of
the credibility of witnesses and the weight to be given
to their testimony . . . . It is simply not the role of this
court on appeal to second-guess credibility determina-
tions made by the habeas court. . . . [I]t is well established
that [a] criminal defendant is constitutionally entitled
to adequate and effective assistance of counsel at all
critical stages of criminal proceedings. . . . This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of
the Connecticut constitution. . . . It is axiomatic that the
right to counsel is the right to the effective assistance
of counsel. . . .
“To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-pronged
test articulated in Strickland v. Washington, [supra, 466

Mack v. Commissioner of Correction
U.S. 687]. Strickland requires that a petitioner satisfy
both a performance prong and a prejudice prong. To sat-
isfy the performance prong, a claimant must demonstrate
that counsel made errors so serious that counsel was not
functioning as the counsel guaranteed . . . by the [s]ixth
[a]mendment. . . . To satisfy the prejudice prong, a claim-
ant must demonstrate that there is a reasonable prob-
ability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. . . .
“It is axiomatic that courts may decide against a peti-
tioner on either prong [of the Strickland test], whichever
is easier. . . . [T]he petitioner’s failure to prove either
[the performance prong or the prejudice prong] is fatal
to a habeas petition. . . . [A] court need not determine
whether counsel’s performance was deficient before
examining the prejudice suffered by the [petitioner] as a
result of the alleged deficiencies. . . . If it is easier to dis-
pose of an ineffectiveness claim on the ground of lack of
sufficient prejudice . . . that course should be followed.”
(Citations omitted; internal quotation marks omitted.)
Mercer v. Commissioner of Correction, 222 Conn. App.
713, 722–23, 306 A.3d 1073 (2023), cert. denied, 348
Conn. 953, 309 A.3d 303 (2024).
“In order for a petitioner to prevail on a claim of inef-
fective assistance on the basis of deficient performance,
he must show that, considering all of the circumstances,
counsel’s representation fell below an objective standard
of reasonableness as measured by prevailing profes-
sional norms. . . . In any case presenting an ineffective-
ness claim, the performance inquiry must be whether
counsel’s assistance was reasonable considering all the
circumstances. Prevailing norms of practice as reflected
in American Bar Association standards and the like,
e.g., ABA Standards for Criminal Justice . . . are guides
to determining what is reasonable, but they are only
guides. No particular set of detailed rules for counsel’s
conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of
legitimate decisions regarding how best to represent a

Mack v. Commissioner of Correction
criminal defendant. Any such set of rules would inter-
fere with the constitutionally protected independence of
counsel and restrict the wide latitude counsel must have
in making tactical decisions. . . . [J]udicial scrutiny of
counsel’s performance must be highly deferential. It is all
too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is
all too easy for a court, examining counsel’s defense after
it has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable . . . . A fair
assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time. Because of the diffi-
culties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assis-
tance; that is, the [petitioner] must overcome the pre-
sumption that, under the circumstances, the challenged
action might be considered sound trial strategy. . . .
Indeed, our Supreme Court has recognized that [t]here
are countless ways to provide effective assistance in any
given case. Even the best criminal defense attorneys
would not defend a particular client in the same way. . . .
[A] reviewing court is required not simply to give [the
trial attorney] the benefit of the doubt . . . but to affirma-
tively entertain the range of possible reasons . . . counsel
may have had for proceeding as [he] did . . . .
“An evaluation of the prejudice prong involves a con-
sideration of whether there is a reasonable probability
that, absent the errors, the [fact finder] would have had a
reasonable doubt respecting guilt. . . . A reasonable prob-
ability is a probability sufficient to undermine confidence
in the outcome. . . . We do not conduct this inquiry in
a vacuum, rather, we must consider the totality of the
evidence before the judge or jury. . . . Further, we are
required to undertake an objective review of the nature
and strength of the state’s case. . . . [S]ome errors will
have had pervasive effect on the inferences to be drawn

Mack v. Commissioner of Correction
from the evidence, altering the entire evidentiary pic-
ture, and some will have had an isolated, trivial effect.
Moreover, a verdict or conclusion only weakly supported
by the record is more likely to have been affected by
errors than one with overwhelming record support. . . .
[A] court making the prejudice inquiry must ask if the
[petitioner] has met the burden of showing that the deci-
sion reached would reasonably likely have been different
absent the errors. . . .
“In other words, [i]n assessing prejudice under Strick-
land, the question is not whether a court can be certain
counsel’s performance had no effect on the outcome or
whether it is possible a reasonable doubt might have
been established if counsel acted differently. . . . Instead,
Strickland asks whether it is reasonably likely the result
would have been different. . . . The likelihood of a differ-
ent result must be substantial, not just conceivable. . . .
Notably, the petitioner must meet this burden not by use
of speculation but by demonstrable realities.” (Citation
omitted; internal quotation marks omitted.) Id., 729–31.
In sum, “the ultimate focus of [the ineffectiveness]
inquiry must be on the fundamental fairness of the pro-
ceeding whose result is being challenged.” Strickland v.
Washington, supra, 466 U.S. 696. Thus, “[t]the bench-
mark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.”
Id., 686. With these principles in mind, we turn to the
petitioner’s ineffective assistance claims.
A
The petitioner first contends that the court improperly
rejected his claim that McIntyre rendered ineffective
assistance by failing to allege in the first habeas action
that Pickering rendered ineffective assistance for not
objecting to the admission of the victim’s autopsy report,
and testimony about that report, on the basis that it
violated his right to confrontation under Crawford. We
disagree.

Mack v. Commissioner of Correction
The following additional facts and procedural history
are relevant to the petitioner’s claim. At the petitioner’s
criminal trial, the state called as a witness Harold Wayne
Carver II, the state’s chief medical examiner at that
time. Carver testified that the victim’s autopsy had been
conducted by Malka Shah, an associate medical examiner
who, at the time of Carver’s testimony, was retiring from
the Office of the Chief Medical Examiner, effective the
following day. Although Carver did not perform the
autopsy himself, he had reviewed the victim’s autopsy
photographs and the autopsy report prepared by Shah.
Carver explained that the autopsy report was made and
kept in the ordinary course of business of the Office of
the Chief Medical Examiner. The autopsy report and the
autopsy photographs were admitted into evidence as full
exhibits during Carver’s testimony, with no objection
from Pickering.
In his testimony at the petitioner’s criminal trial,
Carver conveyed certain information contained in Shah’s
autopsy report while also providing his own independent
opinions based on his review of the autopsy photographs.
On direct examination, Carver testified, among other
things, that Shah’s report was consistent with his review
of the autopsy photographs regarding the number of
gunshot wounds that the victim had suffered. Carver
explained that the victim was struck by seven projectiles
and that he had a total of eleven gunshot wounds, includ-
ing seven entrance wounds and four exit wounds.10 Carver
further explained that all of the entrance wounds were to
the victim’s back, and all of the gunshot wounds at the
front of the victim’s body were exit wounds. In addition,
Carver provided testimony differentiating between the
entrance and exit wounds based on the appearance of
those wounds as depicted in the autopsy photographs.
During his cross-examination of Carver, Pickering
highlighted the fact that Carver himself had not per-
formed the autopsy and that he was “interpreting”
Shah’s report. Pickering also sought to cast doubt on
Shah’s conclusion that the gunshot wound to the victim’s
10Carver also explained that six bullets had been recovered, three from
the victim’s clothing and three from the victim’s body.

Mack v. Commissioner of Correction
mouth was an exit wound by pointing out, through
Carver, that she had reached that conclusion by a “pro-
cess of elimination.”11 On redirect examination, Carver
explained that he agreed with Shah’s conclusions regard-
ing the entrance and exit wounds based on his indepen-
dent review of the photographs.12
At the habeas trial, Pickering testified that he could
not recall whether he had objected to the admission of
the autopsy report and he also could not say whether he
was aware of Crawford at the time of the petitioner’s
criminal trial. He assumed, however, that the autopsy
report was admissible as a business record and, on that
basis, he would not have objected to it. In addition, he
testified that, if the report “was coming in anyway,” he
was “not going to highlight it.” McIntyre testified that
he did not see an issue with Carver’s testimony in light
of the fact that Carver was the state’s chief medical
examiner at that time and, testifying as an expert in the
field of pathology, he properly could rely on hearsay in
reaching his opinion. As a result, McIntyre did not view
Pickering’s failure to object to such testimony as an
unreasonable exercise of professional judgment.
In its memorandum of decision, the habeas court
rejected the petitioner’s ineffective assistance claim,
concluding that McIntyre did not perform deficiently
in failing to allege that Pickering’s failure to object to
the admissibility of the autopsy report and Carver’s
related testimony because, under Crawford and Davis v.
Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed.
2d 224 (2006)—the controlling United States Supreme
Court precedent at the time of the petitioner’s crimi-
nal trial—the autopsy report was admissible as a busi-
ness record. The habeas court further observed that,
11Carver explained that Shah had recorded a “wound track” associ-
ated with that gunshot wound, tracing the pathway of the bullet from
the wound demarking its apparent point of entry at the back of the
victim’s body to the exit wound. Carver testified that he agreed with
Shah’s conclusion.
12We discuss Carver’s testimony regarding the autopsy photographs
more fully later in this opinion.

Mack v. Commissioner of Correction
“although [Carver] necessarily referred to the findings
made by . . . Shah, he offered his own independent expla-
nation as to what those findings meant and also added
additional expert information explaining the meaning
of the photographs depicting the injuries suffered by
the victim.” Accordingly, the habeas court rejected the
petitioner’s claims of ineffective assistance by Pickering
and McIntyre with respect to Pickering’s failure to object
to the admissibility of the autopsy report and Carver’s
testimony about the report.
Before turning to the merits of the petitioner’s ineffec-
tive assistance claim, we first undertake a brief review of
Crawford and its progeny to place the petitioner’s claim
in proper context. “Prior to Crawford, the United States
Supreme Court had not distinguished between testi-
monial and nontestimonial statements for purposes of
determining when the admission of hearsay statements of
unavailable witnesses in criminal cases violated the con-
frontation clause of the sixth amendment. See Crawford
v. Washington, supra, 541 U.S. 71–72 (Rehnquist, C. J.,
concurring in the judgment). Rather, under the previ-
ous test forth set in Ohio v. Roberts, 448 U.S. 56, 100 S.
Ct. 2531, 65 L. Ed. 2d 597 (1980), overruled in part by
Crawford v. Washington, [supra, 541 U.S. 36] all such
statements were admissible if they had ‘adequate indicia
of reliability . . . [which] can be inferred . . . where the
evidence falls within a firmly rooted hearsay exception . . .
[or pursuant to] a showing of particularized guarantees
of trustworthiness.’ . . . Id., 66. . . . To satisfy the con-
stitutional demand of confrontation prescribed by the
sixth amendment, the court [in Crawford] reformulated
the test to distinguish between testimonial and nontes-
timonial statements, holding that testimonial evidence
is not admissible under the sixth amendment, unless
the witness is unavailable and the defendant had a prior
opportunity to cross-examine the witness.” (Citation
omitted.) Santaniello v. Commissioner of Correction,
supra, 230 Conn. App. 763–64.

Mack v. Commissioner of Correction
The issue in Crawford was whether a tape-recorded
statement that the defendant’s wife had given to the
police was properly admitted into evidence even though
she was unavailable to testify at trial due to the marital
privilege. Crawford v. Washington, supra, 541 U.S. 40.
The court in Crawford held that, regardless of its “indi-
cia of reliability”; id., 42; the tape recording was barred
under the confrontation clause because the statement,
like other such statements obtained pursuant to police
interrogation, was testimonial and therefore inadmis-
sible without the opportunity for cross-examination.
Id., 68–69. As to other types of statements, however,
the court declined “to spell out a comprehensive defini-
tion of ‘testimonial.’ ” Id., 68. Nevertheless, the court
broadly explained that “[v]arious formulations of this
core class of testimonial statements exist: [1] ex parte
in-court testimony or its functional equivalent—that
is, material such as affidavits, custodial examinations,
prior testimony that the defendant was unable to cross-
examine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially . . .
[2] extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions,
prior testimony, or confessions . . . [and] [3] statements
that were made under circumstances which would lead an
objective witness reasonably to believe that the statement
would be available for use at a later trial . . . . Regard-
less of the precise articulation, some statements qualify
under any definition . . . .” (Citations omitted; internal
quotation marks omitted.) Id., 51–52.
Soon thereafter, in Davis v. Washington, supra, 547
U.S. 813, the United States Supreme Court expounded
on the third category of statements in determining, inter
alia, the admissibility of hearsay statements made to a
911 operator. Id., 817–19, 823–28. In distinguishing
between testimonial and nontestimonial statements made
to the police, the court applied a “primary purpose” test
with respect to such statements, explaining as follows:
“Statements are nontestimonial when made in the course
of police interrogation under circumstances objectively

Mack v. Commissioner of Correction
indicating that the primary purpose of the interrogation
is to enable police assistance to meet an ongoing emer-
gency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emer-
gency, and that the primary purpose of the interrogation
is to establish or prove past events potentially relevant
to later criminal prosecution.” Id., 822.
The United States Supreme Court subsequently applied
its holding in Crawford to forensic tests and reports,
concluding, in Melendez-Diaz v. Massachusetts, 557
U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009),
that certificates attesting to the laboratory analysis of
suspected cocaine “[fell] within the core class of testimo-
nial statements” and, consequently, were inadmissible
without an opportunity for cross-examination. (Internal
quotation marks omitted.) Id., 310. In Bullcoming v. New
Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d
610 (2011), the court reaffirmed its holding in Melendez-
Diaz, concluding that a laboratory report certifying the
defendant’s blood-alcohol level was a testimonial state-
ment under Crawford, and, as such, its admission at trial
through a witness who did not perform the blood alcohol
test violated the defendant’s right to confrontation.
Id., 657, 661–62. The United States Supreme Court has
subsequently decided several confrontation clause cases
concerning a state’s use of forensic evidence,13 but it has
never opined expressly as to whether autopsy reports
are testimonial hearsay subject to the protection of the
confrontation clause.
13See, e.g., Smith v. Arizona, 602 U.S. 779, 802–803, 144 S. Ct.
1785, 219 L. Ed. 2d 420 (2024) (“A [s]tate may not introduce the tes-
timonial out-of-court statements of a forensic analyst at trial, unless
she is unavailable and the defendant has had a prior chance to cross-
examine her. . . . Neither may the [s]tate introduce those statements
through a surrogate analyst who did not participate in their creation.
. . . And nothing changes if the surrogate . . . presents the out-of-court
statements as the basis for his expert opinion.” (Citations omitted.));
Williams v. Illinois, 567 U.S. 50, 79, 132 S. Ct. 2221, 183 L. Ed. 2d 89
(2012) (plurality opinion) (confrontation clause does not bar expert from
relying on and describing nontestifying analyst’s DNA profile where
profile is not admitted for its truth and is not testimonial).

Mack v. Commissioner of Correction
In the present appeal, the petitioner contends that
Shah’s statements, admitted through the autopsy
report and Carver’s testimony about the report’s find-
ings, were testimonial in nature under Crawford and
ensuing precedent, and, because Shah was not subject
to cross-examination, the admission of the report and
Carver’s testimony violated his right to confrontation.
Because Pickering failed to object to the admission of
that evidence on the basis of Crawford, the petitioner
contends that McIntyre should have raised an ineffec-
tive assistance claim against Pickering on that ground
in the first habeas action.
In response, the respondent maintains that Pickering’s
failure to raise a Crawford objection did not constitute
deficient performance because, inter alia, it would have
required a novel legal argument. Specifically, the respon-
dent argues that, although the opinion in Crawford was
issued in 2004, four years before the petitioner’s criminal
trial, there was little or no indication at any time before
the trial that Crawford applied to autopsy reports. The
respondent further contends that there is “a lack of clar-
ity even today as to how Crawford would apply to Carver’s
expert opinion interpreting Shah’s report” because the
United States Supreme Court has never addressed the
precise question, and our Supreme Court has declined to
resolve the issue in several recent cases.14 Given the state
of the law at the time of the petitioner’s trial, we agree
with the respondent that Pickering’s failure to raise a
confrontation clause objection to the admissibility of the
autopsy report and Carver’s testimony concerning the
report did not constitute ineffective assistance.
“[C]ounsel’s failure to advance novel legal theories or
arguments does not constitute ineffective performance.
. . . To conclude that counsel is obligated to recognize and
to preserve previously undecided constitutional claims,
the viability of which is purely speculative, would be to
14See State v. Villanueva, 352 Conn. 439, 475 and n.17, 337 A.3d 734
(2025); State v. Robles, 348 Conn. 1, 9 and n.5, 301 A.3d 498 (2023);
State v. Campbell, 328 Conn. 444, 511, 180 A.3d 882 (2018).

Mack v. Commissioner of Correction
require criminal defense lawyers to possess a measure of
clairvoyance that the sixth amendment surely does not
demand. . . . Thus, the failure of counsel to pursue a novel
constitutional argument does not constitute ineffective
assistance.” (Internal quotation marks omitted.) Santa-
niello v. Commissioner of Correction, supra, 230 Conn.
App. 768–69. “Counsel . . . performs effectively when he
elects to maneuver within the existing law, declining to
present untested . . . legal theories.” (Internal quotation
marks omitted.) Ledbetter v. Commissioner of Correction,
275 Conn. 451, 462, 880 A.2d 160 (2005), cert. denied
sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S. Ct.
1368, 164 L. Ed. 2d 77 (2006).
As the respondent points out, it was not until the
decision in Melendez-Diaz v. Massachusetts, supra,
557 U.S. 305, which was not issued until the year after
the petitioner’s criminal trial, that the United States
Supreme Court clarified that scientific evidence in the
form of forensic tests and reports—as distinguished
from the eyewitness statements to the police at issue
in Crawford and Davis—is subject to the protections
of the confrontation clause. Id., 311. Although Justice
Scalia, writing for the majority in Melendez-Diaz, char-
acterized the case as “involv[ing] little more than the
application of our holding in Crawford”; id., 329; prior
to the Melendez-Diaz decision, such forensic evidence
was routinely regarded as admissible at trial without
testimony from the analyst or examiner who conducted
the scientific analysis. Indeed, in his dissenting opinion
in Melendez-Diaz, Justice Kennedy made this very point,
explaining that, “[u]ntil today, scientific analysis could
be introduced into evidence without testimony from the
‘analyst’ who produced it. This rule has been established
for at least [ninety] years . . . [y]et the court undoes
it based on two recent opinions [that is, Crawford and
Davis] that say nothing about forensic analysts . . . .”15
Id., 330 (Kennedy, J., dissenting).
15Chief Justice Roberts and Justices Breyer and Alito joined Justice
Kennedy’s dissenting opinion in Melendez-Diaz v. Massachusetts,
supra, 557 U.S. 305.

Mack v. Commissioner of Correction
Justice Kennedy further explained that “Crawford and
Davis dealt with ordinary witnesses”; id.; who, unlike
forensic experts, had “witness[ed] (that is, perceive[d]) an
event that gives him or her personal knowledge of some
aspect of the defendant’s guilt”; id., 343–44; and whose
testimony, therefore, “may not be admitted without the
witness appearing at trial to meet the accused face to
face.” Id., 330. According to Justice Kennedy, however,
“nothing in the [c]onfrontation [c]lause’s text, history,
or precedent justifies the [c]ourt’s decision to expand
[Crawford and Davis]”; id., 344; to include “[l]aboratory
analysts who conduct routine scientific tests” because
they “are not the kind of conventional witnesses to whom
the [c]onfrontation [c]lause refers.” Id., 357 (Kennedy,
J., dissenting). Although Justice Kennedy’s view con-
cerning the applicability of Crawford to forensic reports
and testimony did not carry the day, his point regarding
the dearth of precedent prior to Melendez-Diaz treating
forensic evidence as within the purview of the confron-
tation clause supports the respondent’s assertion that
Pickering’s failure, prior to Melendez-Diaz, to object to
the autopsy report and Carver’s hearsay testimony did
not constitute deficient performance.
Consistent with the distinction recognized by Jus-
tice Kennedy in his dissent in Melendez-Diaz between
conventional witnesses and forensic analysts, the great
weight of post-Crawford authority prior to Melendez-
Diaz had concluded that autopsy reports were not tes-
timonial within the meaning of Crawford. See, e.g.,
United States v. De La Cruz, 514 F.3d 121, 133 (1st
Cir. 2008), cert. denied, 557 U.S. 934, 129 S. Ct. 2858,
174 L. Ed. 2d 600 (2009); United States v. Feliz, 467
F.3d 227, 233–34 (2d Cir. 2006), cert. denied sub nom.
Erbo v. United States, 549 U.S. 1238, 127 S. Ct. 1323,
167 L. Ed. 2d 132 (2007); Sharifi v. State, 993 So. 2d
907, 931–32 (Ala. Crim. App. 2008); State v. Lackey,
280 Kan. 190, 202, 120 P.3d 332 (2005), overruled on
other grounds by State v. Davis, 283 Kan. 569, 158 P.3d
317 (2006); State v. Edwards, 173 N.C. App. 757, 620
S.E.2d 320 (2005); State v. Craig, 110 Ohio St. 3d 306,

Mack v. Commissioner of Correction
322, 853 N.E.2d 621 (2006); Moreno Denoso v. State,
156 S.W.3d 166, 180–81 (Tex. App. 2005); see also C.
Zabrycki, comment, “Toward a Definition of ‘Testimo-
nial’: How Autopsy Reports Do Not Embody the Quali-
ties of a Testimonial Statement,” 96 Cal. L. Rev. 1093,
1100 (2008) (explaining that “[a]n extensive survey of
the [post-Crawford] case law indicates that every court
of last resort or intermediate court has held that autopsy
reports are not testimonial”). Indeed, the petitioner has
identified no case, and we are aware of none, in which an
appellate court—state or federal—had decided, prior to
the petitioner’s criminal trial, that autopsy reports were
testimonial and, therefore, subject to the protection of
the confrontation clause.16
Among the courts that addressed the issue post-Craw-
ford but before Melendez-Diaz, the most significant for
present purposes is United States v. Feliz, supra, 467
F.3d 233–34, in which the United States Court of Appeals
for the Second Circuit, in 2006, considered whether
autopsy reports qualify as business records and, if so,
whether their classification as such renders them non-
testimonial under Crawford. Id., 233–37. In considering
the issue, the court in Feliz observed that Crawford itself
had characterized business records as nontestimonial;17
id., 233; and, further, that Chief Justice Rehnquist, in
his concurring opinion in Crawford, “praised what he
considered to be Crawford’s per se exclusion of business
records from the definition of testimonial.”18 Id., 236.
16We note that at least one case decided after Crawford but prior to
Melendez-Diaz, namely, State v. Johnson, 756 N.W.2d 883 (Minn. App.
2008), held that the admission of an autopsy report through the testi-
mony of a medical examiner who did not perform the autopsy violated
the defendant’s right to confrontation. Id., 887, 891–92. The opinion
in Johnson, however, was not issued until more than six months after
the conclusion of the petitioner’s criminal trial and, consequently, it
was not available to Pickering when the petitioner’s case was tried.
17See Crawford v. Washington, supra, 541 U.S. 55–56 (explaining
that, historically, there were always exceptions to general rule excluding
hearsay statements, and “[m]ost” of those exceptions “covered state-
ments that by their nature were not testimonial—for example, business
records or statements in furtherance of a conspiracy”).
18See Crawford v. Washington, supra, 541 U.S. 76 (Rehnquist, C.
J., concurring) (“[t]o its credit, the [c]ourt’s analysis of ‘testimony’

Mack v. Commissioner of Correction
Following a comprehensive analysis of the issue, the
court in Feliz held, first, that the autopsy reports quali-
fied as business records, and second, that such “reports
are not testimonial within the meaning of Crawford and,
thus, do not come within the ambit of the [c]onfronta-
tion [c]lause . . . .”19 Id., 229. Although decisions of the
Second Circuit are not binding on our courts, they are
“particularly persuasive” in resolving issues of federal
law. (Internal quotation marks omitted.) State v. Langs-
ton, 346 Conn. 605, 618–19, 294 A.3d 1002 (2023), cert.
denied, ___ U.S. ___, 144 S. Ct. 698, 217 L. Ed. 2d 391
(2024). Accordingly, in the absence of any controlling or
compelling contrary authority—indeed, in the absence of
any contrary precedent—Feliz provided a sound basis for
Pickering’s decision not to object to the autopsy report
or Carver’s testimony in reliance on the report.
Notably, not long after Melendez-Diaz and Bullcom-
ing v. New Mexico, supra, 564 U.S. 647, were decided,
the Second Circuit Court of Appeals reconsidered its
reasoning in Feliz and concluded, in United States v.
James, 712 F.3d 79 (2d Cir. 2013), cert. denied, 572
U.S. 1134, 134 S. Ct. 2660, 189 L. Ed. 2d 208 (2014),
that determining whether an autopsy report is testimo-
nial depends not on whether the report properly may be
excludes at least some hearsay exceptions, such as business records and
official records”).
19The court in Feliz further explained: “[W]here a statement is prop-
erly determined to be a business record . . . it is not testimonial within
the meaning of Crawford, even where the declarant is aware that it may
be available for later use at trial.” (Citation omitted.) United States v.
Feliz, supra, 467 F.3d 236. Such a statement “cannot be testimonial
because a business record is fundamentally inconsistent with what the
Supreme Court has suggested comprise the defining characteristics of
testimonial evidence. . . . [T]he essence of the business record exception
contemplated in Crawford is that such records or statements are not
testimonial in nature because they are prepared in the ordinary course
of regularly conducted business and are by their nature not prepared
for litigation.” (Citations omitted; footnote omitted; internal quotation
marks omitted.) Id., 233–34.
We further note that the court in Feliz also concluded that the autopsy
reports qualified as nontestimonial public records and, for that reason,
as well, the reports were deemed to fall outside the purview of the con-
frontation clause. Id., 237.

Mack v. Commissioner of Correction
classified as a business record, as the court in Feliz had
decided, but, rather, whether “the autopsy report . . . was
prepared with the primary purpose of creating a record
for use at a later criminal trial.” Id., 97. Concluding that
the autopsy was “ ‘routine’ ”; id., 98; the cause of death
was “ ‘undetermined’ ”; id., 99; no one involved in the
autopsy process suspected either that the victim had
been murdered or that the medical examiner’s report
would be used at a criminal trial, and the autopsy was
performed “substantially before any criminal investiga-
tion into [the victim’s] death had begun,” the court in
James held that the autopsy was not testimonial and,
therefore, its admission into evidence did not violate
the confrontation clause. Id.
More recently, in Garlick v. Lee, 1 F.4th 122 (2d Cir.
2021), cert. denied, ___ U.S. ___, 142 S. Ct. 1189,
212 L. Ed. 2d 54 (2022), the Second Circuit Court of
Appeals concluded that the autopsy report at issue was
testimonial because, among other considerations, it
was “performed in aid of an active police investigation
. . . [p]reparations for the autopsy commenced at [the]
request [of the police] . . . [t]he autopsy was performed
in the presence of . . . two detectives . . . [and] [a]fter
completing the autopsy, [the medical examiner who per-
formed the autopsy] promptly notified law enforcement
of her findings, and the police consequently dropped
charges against [the suspect initially charged with the
victim’s murder] and pursued a murder charge against
[the defendant].” Id., 134. In view of these facts, the
court concluded that “[t]he circumstances under which
the autopsy report was created would lead any objective
witness to believe that the [report] would be available for
use at a later trial.”20 (Internal quotation marks omitted.)
20It bears mention that the United States Supreme Court has not
always been entirely consistent with respect to the terminology it has
used to describe the test for determining whether a hearsay statement
is testimonial. Recently, in Smith v. Arizona, 602 U.S. 779, 144 S. Ct.
1785, 219 L. Ed 2d 420 (2024), the court recognized that it has char-
acterized that test somewhat differently from time to time, observing
that testimonial hearsay represents a “category whose contours we have
variously described”; id., 784; and offering the following examples:
“statements ‘made in the course of police interrogation’ were testimo-
nial when ‘the primary purpose of the interrogation [was] to establish

Mack v. Commissioner of Correction
Id. Thus, the Second Circuit Court of Appeals’ treatment
of autopsy reports for confrontation clause purposes
changed markedly after Melendez-Diaz was decided.21
Instead of acknowledging that Feliz, James and Gar-
lick reflect the extent to which Melendez-Diaz upended
widely held assumptions about the admissibility of foren-
sic evidence by holding that the state’s use of such evi-
dence is subject to the requirements of the confrontation
clause, the petitioner maintains that Pickering should
have anticipated the holding in Melendez-Diaz because it
is based, ultimately, on the reasoning of Crawford, which
was decided four years before the petitioner’s criminal
trial. The petitioner further maintains that Pickering
should have objected to Carver’s testimony about the
autopsy report because that testimony—which cast seri-
ous doubt on the petitioner’s claim of self-defense by
or prove past events potentially relevant to later criminal prosecution’;
[Davis v. Washington, supra, 547 U.S. 822] . . . statements made to
police to ‘meet an ongoing emergency’ were ‘not procured with a primary
purpose of creating an out-of-court substitute for trial testimony’;
[Michigan v. Bryant, 562 U.S. 344, 358, 359, 131 S. Ct. 1143, 179 L.
Ed. 2d 93 (2011)]; [and] . . . testimonial certificates of the results of
forensic analysis were created ‘under circumstances which would lead
an objective witness reasonably to believe that the statement[s] would
be available for use at a later trial . . . .’ [Melendez-Diaz v. Massachu-
setts, supra, 557 U.S. 311] . . . .” Smith v. Arizona, supra, 784–85;
see also id., 802 (to “count as testimonial . . . the . . . primary purpose
[of the documents at issue] must have a focus on court” (internal quo-
tation marks omitted)). These differences, however, have no bearing
on our analysis in the present case because the issues we must decide
are unrelated to the precise way in which the United States Supreme
Court has characterized the test for ascertaining whether a statement
is testimonial.
21Soon after Melendez-Diaz was decided, a considerable number of
courts across jurisdictions adopted the same methodology for resolving
confrontation clause challenges to the admissibility of autopsy reports
that the court in Melendez-Diaz had announced for forensic laboratory
reports more generally. See, e.g., United States v. Ignasiak, 667 F.3d
1217, 1231 (11th Cir. 2012); United States v. Moore, 651 F.3d 30, 72–73
(D.C. Cir. 2011), aff’d sub nom. Smith v. United States, 568 U.S. 106,
133 S. Ct. 714, 184 L. Ed. 2d 570 (2013); Commonwealth v. Avila, 454
Mass. 744, 762–63, 912 N.E.2d 1014 (2009); State v. Locklear, 363
N.C. 438, 452, 681 S.E.2d 293 (2009); Cuesta-Rodriguez v. State, 241
P.3d 214, 226–28 (Okla. Crim. App. 2010), cert. denied, 565 U.S. 885,
132 S. Ct. 259, 181 L. Ed. 2d 151 (2011); Wood v. State, 299 S.W.3d
200, 208–10 (Tex. App. 2009).

Mack v. Commissioner of Correction
establishing that the victim had been shot exclusively
and repeatedly in the back—would have been inadmis-
sible under the methodology first employed in Crawford
for traditional witness testimony. In support of his con-
tention concerning the inadmissibility of Carver’s testi-
mony, the petitioner identifies several factors that, he
claims, establish that the primary purpose of the autopsy
was to aid the state in proving that the petitioner had
murdered the victim, namely, the autopsy was performed
to establish the cause and manner of the victim’s death,
there was a suspect in custody, there was no ongoing
emergency, and bullets recovered from the victim’s body
had been turned over to the police.
The petitioner may well be correct that, under Melen-
dez-Diaz and subsequent United States Supreme Court
precedent, the autopsy report and Carver’s testimony
about the report would constitute testimonial and,
therefore, excludable, hearsay, even though neither
the United States Supreme Court nor our Supreme Court
has expressly addressed the applicability of Melendez-
Diaz to autopsy reports. Even assuming that to be the
case, however, it is beside the point for present pur-
poses because we must decide only whether Pickering
was professionally obligated to raise an objection to
Carver’s testimony at the petitioner’s criminal trial in
2008, and not whether it would be necessary for him to
do so today, eighteen years later. See, e.g., Santaniello
v. Commissioner of Correction, supra, 230 Conn. App.
768–69 (counsel’s performance must be evaluated in
context of law in existence at time of criminal trial). As
we have discussed, prior to Melendez-Diaz, courts had
not applied the then recent holdings in Crawford and
Davis to forensic reports generally or to autopsy reports
specifically and, consequently, we cannot conclude that
Pickering was required to break new ground by objecting
to Carver’s forensic testimony on confrontation clause
grounds.22 Accordingly, in light of the law as it existed
22Although autopsy reports were invariably viewed as nontestimonial
at the time of the petitioner’s criminal trial, such that their admission
was not barred by Crawford, courts have observed that it was unclear
even after Melendez-Diaz and Bullcoming whether the admissibility
of autopsy reports was subject to the restrictions of the confrontation

Mack v. Commissioner of Correction
when the petitioner’s criminal trial took place, we reject
the petitioner’s contention that Pickering performed
deficiently in failing to object to the autopsy report and
Carver’s testimony on the basis of Crawford. As a neces-
sary consequence of this conclusion, we also reject the
petitioner’s contention that McIntyre rendered ineffec-
tive assistance in not raising a claim that Pickering was
deficient in not seeking to exclude the autopsy report and
Carver’s related testimony.23
We further conclude that, even if Pickering’s failure
to raise a confrontation clause objection to the admissi-
bility of the autopsy report and Carver’s corresponding
testimony about the report constituted deficient perfor-
mance, the petitioner has failed to satisfy the prejudice
prong of Strickland. The petitioner contends that “[t]he
autopsy evidence constituted the only evidence in the
case supporting the notion that all of the shots were to
the victim’s back,” which “severely undermined” the
petitioner’s claim of self-defense at his criminal trial.
The petitioner further maintains that, but for McIntyre’s
clause. See, e.g., Vega v. Walsh, 669 F.3d 123, 128 n.2 (2d Cir. 2012)
(“a fair issue exists as to whether [classifying autopsy reports as non-
testimonial] would have been contrary to or an unreasonable application
of Melendez-Diaz or Bullcoming, even assuming they had already been
decided [at the time of the defendant’s trial], as there are significant
differences between narcotics and blood alcohol analyses and autopsies”);
Nardi v. Pepe, 662 F.3d 107, 112 (1st Cir. 2011) (“That close decisions
in the later [United States] Supreme Court cases extended Crawford to
new situations hardly shows the outcomes were clearly preordained.
And, even now it is uncertain whether, under its primary purpose test,
the [United States] Supreme Court would classify autopsy reports as
testimonial. . . . In all events, we stress the present [post-Melendez-Diaz
and Bullcoming] uncertainty of the law [more than seven years post-
Crawford] only to emphasize that it was even more unsettled at the time
of Crawford just how far that decision would be extended beyond state-
ments taken by the police for specific use at trial.” (Citations omitted.)).
23In view of our determination that Pickering’s failure to object to
Carver’s testimony about the autopsy report did not constitute ineffec-
tive assistance, we need not address the reasonableness of Pickering’s
strategic decision not to object to that testimony so as not to draw the
jury’s attention to it; see, e.g., Revels v. Commissioner of Correction,
229 Conn. App. 461, 478, 327 A.3d 418 (2024) (counsel may, for stra-
tegic reasons, decide not to focus jury’s attention on certain evidence),
cert. denied, 351 Conn. 906, 330 A.3d 133 (2025); notwithstanding
Pickering’s own testimony in the present case that he could not recall
whether he was aware of Crawford at the time of the petitioner’s trial.

Mack v. Commissioner of Correction
failure to raise a claim that Pickering was ineffective for
not challenging the evidence pertaining to Shah’s find-
ings and conclusions, there is a reasonable probability
that the result of the proceedings would have been dif-
ferent. We disagree.
As previously noted, at the petitioner’s criminal trial,
Pickering’s defense strategy included a claim of self-
defense. In support of the claim, Pickering adduced tes-
timony from two witnesses, Leggett and Riley. Leggett
was at Papa’s Pizza on the night of the shooting and
claimed to have seen the victim—who, Leggett asserted,
had a gun—about to shoot the petitioner first. Riley
was not at Papa’s Pizza that night but testified that he
overheard a phone conversation between the victim and
the petitioner more than one month before the shooting,
during which the victim told the petitioner that he was “a
hard person to hit and that he wasn’t going to miss him
next time.” Riley testified that, one or two days prior to
the phone call, he saw shattered glass falling from the
petitioner’s car, and the petitioner stated that someone
had shot at him. In closing argument, Pickering under-
scored Leggett’s and Riley’s testimony in support of the
petitioner’s self-defense claim, as well as the fact that,
because the victim was not visible in the video footageof
the shooting, the video did not directly contradict the
petitioner’s version of the shooting.24
The petitioner is correct that the state, in disproving
his claim of self-defense,25 relied, in part, on the evidence
that all the shots fired by the petitioner had entered the
victim’s back and that such evidence provided a strong
rebuttal to the petitioner’s claim that he shot the victim
24See footnote 2 of this opinion.
25“[A] defendant has no burden of persuasion for a claim of self-defense;
he has only a burden of production. That is, he merely is required to
introduce sufficient evidence to warrant presenting his claim of self-
defense to the jury. . . . Once the defendant has done so, it becomes
the state’s burden to disprove the defense beyond a reasonable doubt.”
(Internal quotation marks omitted.) Jordan v. Commissioner of Correc-
tion, 197 Conn. App. 822, 837, 234 A.3d 78 (2020), aff’d, 341 Conn.
279, 267 A.3d 120 (2021).

Mack v. Commissioner of Correction
only because the victim had pulled a gun on him first. Con-
trary to the petitioner’s argument, however, the autopsy
report and Carver’s testimony about the report was not
the only evidence establishing that all seven of the peti-
tioner’s shots struck the victim in the back. Carver also
provided detailed testimony, based on his independent
examination of the autopsy photographs, that the gun-
shot wounds to the victim’s back were entrance wounds
and the gunshot wounds at the front of the victim’s body
were exit wounds.
More particularly, on redirect examination, Carver
explained that the autopsy photograph of the petitioner’s
back revealed that “there are . . . seven holes, and these all
have the characteristic appearance of an entrance wound.
. . . When a bullet goes in it scrapes away the outer layer
of skin. These have not totally dried so that there’s this
pink area where . . . the pigment in your skin is in that
outer layer. Everything’s pink after about a half of a mil-
limeter inside. And these are round. A round bullet goes
in your skin at ninety degrees; it makes a circle. If it goes
in at an angle, it makes an oval. But these are a typical
appearance of a place where a bullet went into a body.”
Carver also explained that the gunshot wounds to the
front of the victim’s body, specifically, to his upper left
chest, his left arm, and the left side of his mouth, were
exit wounds. With respect to the wounds to the victim’s
upper left chest and left arm, Carver testified, with
reference to the autopsy photographs, that “the one on
the arm, and I’ve examined this up close . . . there’s no
dark marks around the edge. So, this bullet did not touch
the outer layer of skin coming out. So, that’s what an
exit wound looks like. The other two are very similar in
appearance. They have a little darkness around them,
but not all the way around. This one, no darkness here,
no darkness here. This one, a little bit over here. So,
these are exit wounds. . . . [T]hese definitely have the
appearance of places where bullets came out of a body
as opposed to where bullets went in.”
Shortly thereafter, Carver made it perfectly clear that

Mack v. Commissioner of Correction
he was not simply reciting Shah’s conclusions regard-
ing the gunshot wounds but, rather, that he had also
reached his own independent conclusions, separate and
apart from the autopsy report, based on his review of the
autopsy photographs. After Carver answered a question
by reference to what Shah had stated in the autopsy
report, the prosecutor clarified: “But based on your back-
ground, your training, your experience, your review of
the photographs, all seven entrance wounds were in the
back and those three in the chest area and arm were exit
wounds[?]” Carver responded: “Yes.” Thereafter, the
following colloquy took place between the prosecutor
and Carver:
“[The Prosecutor]: Pickering made it a point of fact
that you did not hands-on perform the autopsy.26 But
with respect to gunshot wounds, you’re able to tell a lot
from the photos. Aren’t you?
“[Carver]: Oh, yes.
“[The Prosecutor]: In fact, independent of what . . .
Shah says, is it your conclusion, based on your back-
ground, training, experience and the photographs you
saw that those seven holes in [the victim’s] back are all
entrance wounds?
“[Carver]: Yes. . . . If I were to analyze this from the
photographs, absent her written report, I would reach
the same conclusions.
“[The Prosecutor]: And with respect to the exit wound
in the mouth, as well as the left chest and arm?
“[Carver]: Yes.
“[The Prosecutor]: That those are exit wounds?
“[Carver]: Yes.” (Footnote added.)
26On cross-examination, Pickering attempted to cast doubt on Carver’s
conclusions by emphasizing that Carver had not performed the autopsy
himself. In doing so, Pickering stated to Carver, “[y]ou’re really just
interpreting the report at this point in time,” to which Carver responded:
“Absolutely. I frequently poke my nose into a gunshot wound autopsy,
but I don’t remember having poked my nose into this one.”

Mack v. Commissioner of Correction
It is apparent that this portion of Carver’s testimony
detailing his conclusions about the entry and exit wounds
sustained by the victim—testimony that was based solely
on his examination of the autopsy photographs and not
on the autopsy report—provided a wholly independent
basis for the jury to conclude that all the shots fired by
the petitioner were to the victim’s back.27
Our Supreme Court reached the same conclusion on
materially similar facts in State v. Robles, 348 Conn. 1,
9, 301 A.3d 498 (2023), a case in which the defendant
claimed that his right to confrontation was violated by
the testimony of James Gill, the chief medical examiner
at the time, concerning an autopsy that Gill did not per-
sonally perform but was instead conducted by a former
assistant medical examiner. Id., 5, 8. Gill testified about
the former assistant medical examiner’s autopsy report,
which the defendant claimed was testimonial because
it had been performed in anticipation of trial, and also
offered his own opinion, predicated on his examination
of several photographs from the autopsy, that the victim
had been shot and killed at a range of approximately six
inches. Id., 8–11. Our Supreme Court held that Gill’s
testimony expressing his opinion that the victim had
been shot at close range was based solely on his exami-
nation of the autopsy photographs, and not from the
autopsy report, and that, because defense counsel had
the opportunity to cross-examine Gill about his testi-
mony with respect to the photographs, that testimony
did not violate the confrontation clause. Id., 11. Finally,
our Supreme Court in Robles further determined that,
even if Gill’s testimony about the autopsy report had
been improperly admitted, his testimony based solely
on the autopsy photographs constituted “admissible,
27The petitioner does not claim that Pickering should have objected
either to the admission of the autopsy photographs or to Carver’s testi-
mony setting forth his independent opinion based on his review of those
photographs. See, e.g., State v. Lebrick, 334 Conn. 492, 528, 223 A.3d
333 (2020) (“[when] . . . expert witnesses present their own independent
judgments, rather than merely transmitting testimonial hearsay, and are
then subject to cross-examination, there is no [c]onfrontation [c]lause
violation” (internal quotation marks omitted)).

Mack v. Commissioner of Correction
independent and compelling evidence”; id., 12; that the
victim had been shot at close range. Id., 14. As in Robles,
Carver’s admissible and independent testimony, based on
the autopsy photographs, concerning the entry and exit
wounds suffered by the victim, was compelling evidence,
separate and apart from the autopsy report, in support
of the state’s theory of the case, namely, that the peti-
tioner intentionally shot and killed the victim and was
not acting in self-defense when he did so.28
Moreover, the petitioner’s claim of self-defense was
substantially discredited by other evidence presented at
trial. Most significantly, the state introduced evidence
that the petitioner, having been advised of his rights,
confessed to the police that he shot the victim in retali-
ation for the murder of his friend. Detective Michael
Sheldon of the Hartford Police Department testified
that he conducted an interview of the petitioner shortly
after the crime occurred. Sheldon testified: “I asked
[the petitioner] why this happened. And he told me that
his friend Marlon Atkinson was murdered in Hartford
back in July of 2004. He said that him and Marlon had
shared a lot of good memories together. . . . He said that
[Atkinson] had murdered a guy by the name of Kevin
Johnson. . . . Kevin Johnson was an associate of Chaz
Booth from what I understand.” When asked by the
prosecutor: “Did [the petitioner] indicate why he killed
Chaz Booth?” Sheldon responded: “He said this was
retaliation for what he did to Marlon Atkinson. . . . He
said when he entered Papa’s [Pizza] he saw Chaz Booth
inside. He said he had started thinking about what he
28As the petitioner correctly points out in attempting to distinguish
the present case from Robles, in contrast to the present case, the autopsy
report in Robles was not admitted into evidence. See State v. Robles,
supra, 348 Conn. 10. We are not persuaded that this distinction makes
a difference, however, in view of Carver’s explicit and compelling
testimony expressing his opinion, based solely on the photographs,
regarding the exit and entry wounds. In addition, the jury in Robles
was well aware of the content of the autopsy report, even though it had
not been introduced into evidence, because a portion of Gill’s testimony
was devoted expressly to the findings and conclusions of the autopsy
report. See id., 9–10.

Mack v. Commissioner of Correction
had done to Marlon and said he knew he had to pay for
what he did. He said he had a .45 caliber Glock on him,
dark in color, and he started shooting at Chaz. He said
he knew Chaz went down and he kept firing at him.” The
petitioner’s confession was memorialized in a written
statement, which the petitioner signed. Sheldon read
the petitioner’s written statement into the record and it
was admitted into evidence as a full exhibit. The written
statement also indicated that the petitioner had killed
the victim in retaliation. Finally, and notably, the peti-
tioner’s statement contained no mention that the victim
had a gun, that the victim pointed a gun at the petitioner,
or that he was in fear for his life or safety when he shot
the victim. It is apparent that the petitioner’s confession
was powerful evidence that directly and unambiguously
contradicted his claim of self-defense.
In addition to the evidence adduced by the state that
the petitioner shot the victim in the back and confessed to
shooting the victim in retaliation for his friend’s murder,
several witnesses who were at Papa’s Pizza on the night of
the shooting testified that they never saw the victim with
a gun, and no gun was found on the victim. Furthermore,
the surveillance video of the shooting revealed that the
petitioner fired the first shot and had the opportunity
to retreat but, instead, moved closer to the victim and
continued to shoot him repeatedly while he lay on the
ground. Finally, the state introduced consciousness of
guilt evidence based on the petitioner’s decision to flee
from the scene of the shooting and his attempt, leading
up to trial, to convince a fellow inmate, Perry, to testify,
falsely, that he had seen the victim with a gun.
It is apparent that the state’s case against the peti-
tioner was extremely strong, and, as a result, any preju-
dice flowing from Pickering’s alleged improper failure
to challenge the admissibility of the autopsy report and
Carver’s testimony about it falls well short of undermin-
ing our confidence in the outcome of the trial. See Coc-
como v. Commissioner of Correction, 203 Conn. App. 704,
727, 252 A.3d 383 (“[T]he strength of the state’s case is a

Mack v. Commissioner of Correction
significant factor in determining whether [any deficient
performance] caused prejudice to the petitioner. The
stronger the case, the less probable it is that a particular
error caused actual prejudice.” (Internal quotation marks
omitted.)) cert. denied, 336 Conn. 943, 249 A.3d 737
(2021). Thus, we conclude that the petitioner has failed
to demonstrate either that Pickering provided ineffec-
tive assistance in his representation of the petitioner at
his criminal trial or that McIntyre provided ineffective
assistance in his representation of the petitioner in his
first habeas action.
B
The petitioner also asserts that the habeas court
improperly rejected his claim of ineffective assistance
with respect to McIntyre’s failure to raise a claim in the
first habeas action regarding sentence review.29 Spe-
cifically, the petitioner contends that McIntyre per-
formed deficiently by failing to allege that Pickering
rendered ineffective assistance by failing to advise him
with respect to the availability of sentence review and
by failing to pursue such review on his behalf. The peti-
tioner’s claim lacks merit.
“Under article first, § 8, of the Connecticut constitu-
tion and the sixth and fourteenth amendments to the
United States constitution, the petitioner had a right
to the effective assistance of counsel with respect to
access to sentence review. [T]he sentencing process is
a critical stage of a criminal trial. . . . Accordingly, an
indigent criminal defendant has a constitutional right
to appointed counsel at sentence review. . . . The right to
counsel at sentence review would be meaningless unless
it also implied the right to effective assistance of such
counsel. . . . It would equally be meaningless if it were
not afforded at the time when invocation of sentence
29See General Statutes § 51-194 et seq. (establishing sentence review
division and procedure for obtaining sentence review); see also State
v. Nardini, 187 Conn. 109, 120–22, 445 A.2d 304 (1982) (discussing
statutory scheme establishing sentence review).

Mack v. Commissioner of Correction
review is at issue.” (Citations omitted; internal quotation
marks omitted.) James L. v. Commissioner of Correc-
tion, 245 Conn. 132, 144, 712 A.2d 947 (1998); see also
Consiglio v. Warden, 153 Conn. 673, 677 n.1, 220 A.2d
269 (1966) (“[t]he entire sentence review procedure is
sufficiently a part of the original trial so that [an indi-
gent criminal defendant is entitled to] representation in
sentence review proceedings, including any resentencing
made necessary by the action of the review division”).
Furthermore, under Practice Book § 43-23, “[i]t is the
responsibility of the counsel of record at the time of
sentencing to represent the defendant at the hearing
before the sentence review division of the Superior Court,
unless, for exceptional reasons, such counsel is excused
by the division.”30
In the present case, it is undisputed that Pickering did
not file a sentence review application on the petitioner’s
behalf and the petitioner never had his sentence reviewed
by the sentence review division. At the habeas trial,
Pickering testified that he had not been retained by the
petitioner to represent him for the sentence review pro-
cess. Pickering further testified that it was his practice
to have a discussion with his clients when they received
a packet of paperwork from the court, after sentencing,
providing them with notice of the right to appeal and
the right to sentence review.31 He typically would tell
his clients to read through the papers and make them
aware of the deadlines contained therein, including the
deadline to file an application for sentence review. In
addition, he would have explained to the petitioner that
he had the option to retain him or other counsel for any
posttrial matters.
30We note that, under General Statutes § 51-195, in the discretion of
the sentence review division, a defendant who seeks sentence review
may receive a greater or lesser sentence than was imposed after trial.
31With respect to sentence review, General Statutes § 51-195 provides
in relevant part that written notice of the right to sentence review
shall be given by the clerk of the court to any defendant who, like the
petitioner, has been convicted after a trial and has been sentenced to
confinement for three years or more.

Mack v. Commissioner of Correction
The petitioner testified that, although he subsequently
became aware of the sentence review process, he was
not informed about that process by Pickering in 2008.
In addition, the petitioner testified that, if Pickering
had discussed the sentence review process with him, he
would have wanted to pursue such review. The petitioner
further testified that he never discussed sentence review
with McIntyre.
McIntyre testified that he could not recall whether
Pickering had filed an application for sentence review
on the petitioner’s behalf. McIntyre also could not recall
any discussion with the petitioner about the issue of
sentence review, and Pickering’s failure to apply for
sentence review on the petitioner’s behalf was not an
issue raised in the first habeas action.
The habeas court concluded that, even assuming that
Pickering had rendered ineffective assistance by “failing
to perfect the petitioner’s right to sentence review,” the
petitioner failed to establish that McIntyre performed
deficiently by not raising that as an issue in the first
habeas action. The court explained in relevant part:
“This claim does not require much discussion. During
direct examination, the petitioner admitted that he
never discussed this sentence review claim with Attor-
ney McIntyre . . . . So, although trial counsel did have a
responsibility to [file] an application for sentence review
if the petitioner had requested it, there would have been
no way for Attorney McIntyre to have known about the
petitioner’s claim that he did not understand the right
to apply for sentence review or that Attorney Pickering
failed to honor his request to file the application without
the petitioner telling him. . . . Therefore, even if the court
assumed for purposes of argument that Attorney Picker-
ing was ineffective for failing to perfect the petitioner’s
right to sentence review, Attorney McIntyre could not
be found to have performed deficiently for failing to
pursue a claim he was unaware of and could only have
known about from the petitioner. . . . Therefore, since
the petitioner cannot meet his burden of establishing the
two Strickland factors against both trial counsel and
Attorney McIntyre, this claim fails.” (Citations omitted;
emphasis in original; footnote omitted.)

Mack v. Commissioner of Correction
We agree with the habeas court that the petitioner
failed to demonstrate that McIntyre performed defi-
ciently by failing to raise a claim of ineffective assistance
against Pickering with respect to the issue of sentence
review. The evidence presented at the habeas trial estab-
lishes that, although the petitioner became aware of the
sentence review process at some point after his criminal
trial in 2008,32 he did not raise sentence review as an issue
with McIntyre or otherwise indicate that he would have
wanted to pursue sentence review had he known about it.
The petitioner’s testimony reflects, instead, that he and
McIntyre did not discuss the issue of sentence review.
“The reasonableness of counsel’s actions may be deter-
mined or substantially influenced by the defendant’s
own statements or actions. Counsel’s actions are usually
based, quite properly, on informed strategic choices made
by the defendant and on information supplied by the
defendant. . . . [I]nquiry into counsel’s conversations with
the defendant may be critical to a proper assessment of
counsel’s investigation decisions, just as it may be criti-
cal to a proper assessment of counsel’s other litigation
decisions.” Strickland v. Washington, supra, 466 U.S.
691; see also, e.g., Angel C. v. Commissioner of Correc-
tion, 226 Conn. App. 837, 854–55, 319 A.3d 168 (trial
counsel did not render deficient performance for alleged
failure to investigate certain witnesses where petitioner
did not bring such witnesses to counsel’s attention), cert.
denied, 350 Conn. 908, 323 A.3d 1091 (2024).
The petitioner suggests that McIntyre could have dis-
covered that Pickering rendered deficient performance
with respect to the petitioner’s right to sentence review
“simply by reviewing the record.” On the contrary, a
review of the record would have revealed only that a
sentence review application had not been filed on the
petitioner’s behalf and would have shed no light on the
reason why the application was not filed. Accordingly,
there was nothing in the record to alert McIntyre to
the fact that the petitioner would have wanted to apply
32The record does not reveal precisely when the petitioner became
aware of the sentence review process. However, the petitioner did not
testify that he remained unaware of sentence review by the time of his
first habeas action.

Mack v. Commissioner of Correction
for sentence review or that any decision already made
by the petitioner not to make such an application was
anything but an informed one. See, e.g., Eastwood v.
Commissioner of Correction, 114 Conn. App. 471, 483,
969 A.2d 860 (petitioner decided not to seek sentence
review upon advice from counsel about possibility that he
could receive increased sentence), cert. denied, 292 Conn.
918, 973 A.2d 1275 (2009); Valentin v. Commissioner
of Correction, 94 Conn. App. 751, 758, 895 A.2d 242
(2006) (petitioner voluntarily decided to forgo applying
for sentence review upon counsel’s advice that risk of
increased sentence outweighed possible benefit). Thus,
even assuming that Pickering rendered ineffective assis-
tance by failing to represent the petitioner with respect
to sentence review, the petitioner failed to demonstrate
that McIntyre performed deficiently by not raising a
claim of ineffective assistance against Pickering predi-
cated on Pickering’s failure to seek sentence review for
the petitioner.
The judgment is affirmed.
In this opinion the other judges concurred.