Johnson v. Commissioner of Correction

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Johnson v. Commissioner of Correction
EFRAIN JOHNSON v. COMMISSIONER
OF CORRECTION
(AC 47645)
Elgo, Suarez and Norcott, Js.
Syllabus
The petitioner, who previously had been convicted after a jury trial of felony
murder and kidnapping, appealed following the denial of his petition for
certification to appeal from the habeas court’s judgment denying his peti-
tion for a writ of habeas corpus. He claimed, inter alia, that his criminal trial
counsel rendered ineffective assistance in failing to meaningfully convey to
him the state’s last best plea offer. Held:
The habeas court did not abuse its discretion in denying the petitioner’s peti-
tion for certification to appeal, as the petitioner failed to establish that the
issues he raised were debatable among jurists of reason, that a court could
resolve them in a different manner, or that the questions were adequate to
deserve encouragement to proceed further.
The habeas court properly concluded that the petitioner’s criminal trial
counsel did not render ineffective assistance, as the court’s finding that
counsel adequately conveyed the state’s plea offer to the petitioner was not
clearly erroneous, the court having credited counsel’s testimony that he had
relayed the offer to the petitioner, explained the strengths and weaknesses
of the state’s case, and recommended that the petitioner accept the offer.
The habeas court did not err in denying the petitioner’s claim that the state
violated his right to due process under Brady v. Maryland (373 U.S. 83)
when it failed to disclose to him an alleged agreement not to prosecute a
witness in exchange for the witness’ testimony at the petitioner’s criminal
trial, the petitioner having presented no evidence of any such agreement
or understanding, implicit or explicit, between the state and the witness.
Submitted on briefs January 20—officially released April 28, 2026
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, Bhatt, J.; judgment denying the
petition; thereafter, the court denied the petition for
certification to appeal, and the petitioner appealed to
this court. Appeal dismissed.
J. Patten Brown III, assigned counsel, filed a brief for
the appellant (petitioner).

Johnson v. Commissioner of Correction
Christopher A. Alexy, senior assistant state’s attorney,
and Joseph T. Corradino, state’s attorney, filed a brief
for the appellee (respondent).
Opinion
ELGO, J. The petitioner, Efrain Johnson, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. On
appeal, the petitioner contends that the court abused
its discretion in denying his petition for certification to
appeal and improperly denied his claims that (1) his crimi-
nal trial counsel rendered ineffective assistance when
advising the petitioner of the state’s plea offer, and (2)
the prosecutor’s failure to disclose certain benefits that
allegedly were given to a testifying witness in exchange
for the witness’ cooperation at the petitioner’s criminal
trial violated the petitioner’s rights to due process and to
a fair trial in violation of Brady v. Maryland, 373 U.S.
83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its
progeny. We conclude that the habeas court did not abuse
its discretion in denying the petition for certification to
appeal and, accordingly, dismiss the appeal.
This court previously summarized the facts and pro-
cedural history of the petitioner’s underlying criminal
trial in the petitioner’s direct appeal as follows. “By way
of an amended information dated December 18, 2013,
the state charged the [petitioner] with six offenses: as
a principal in the felony murders of three individuals,
namely, the victim, James Reid, and Basil Williams
(counts one, two, and three, respectively), and as a prin-
cipal in the kidnapping in the first degree for those same
people (counts four, five, and six, respectively).1 . . . For
1 “The [petitioner] was acquitted as to the counts arising from the
felony murder and kidnapping of Reid (counts two and five) and Wil-
liams (counts three and six).” State v. Johnson, 165 Conn. App. 255,
258 n.2, 138 A.3d 1108, cert. denied, 322 Conn. 904, 138 A.3d 933
(2016). Tina Johnson is identified as the victim, who “is unrelated to
the [petitioner].” Id., 258 n.1.

Johnson v. Commissioner of Correction
most of the time relevant to this case, Azibo Aquart2
headed a criminal organization selling crack cocaine and
marijuana in certain cities in southern Connecticut. As
part of this operation, Azibo used certain apartments
at 215 Charles Street in Bridgeport, in particular using
apartment 211 on the second floor to conduct transac-
tions. Azibo considered the apartments his ‘turf’ and
had driven away competitors on prior occasions.
“Azibo’s enterprise involved a number of individu-
als in a variety of tasks. Two such confederates were
Azibo’s brother, Azikiwe Aquart,3 and Rodney Womble.
Other individuals employed by Azibo included: Frankie
Hodges, who sold crack cocaine out of apartment 211 at
215 Charles Street; John Taylor, who sold marijuana on
Azibo’s behalf in Norwalk; Lashika Johnson, the [peti-
tioner’s] sister, who sold crack cocaine and marijuana on
behalf of Azibo and, later, Azikiwe, and who was dating
Azibo for much of the time relevant to this case; and the
[petitioner], who purchased marijuana from Azibo both
for personal use and to resell. A number of the individu-
als working for Azibo’s drug enterprise either began as
customers or were otherwise users of Azibo’s product
themselves.
“During much of August, 2005, the victim, Reid, and
Williams lived in apartment 101 at 215 Charles Street.
Both the victim and Reid used crack cocaine and regularly
purchased it from Azibo’s operation in apartment 211.
“In early August, 2005, the quality of the crack cocaine
that Azibo was selling in 215 Charles Street decreased
substantially. At about this time, the victim stopped
purchasing crack cocaine from Azibo’s operation on
the second floor and began selling crack cocaine out of
2 “Azibo is known by a number of nicknames, including ‘Dee’ and
‘Dready.’ ” State v. Johnson, 165 Conn. App. 255, 258 n.3, 138 A.3d
1108, cert. denied, 322 Conn. 904, 138 A.3d 933 (2016).
3 “Like his brother, Azikiwe was known by a number of nicknames,
including ‘Z,’ ‘Ziggy,’ and ‘Ozzie.’ ” State v. Johnson, 165 Conn. App.
255, 259 n.4, 138 A.3d 1108, cert. denied, 322 Conn. 904, 138 A.3d
933 (2016).

Johnson v. Commissioner of Correction
apartment 101. As a consequence, Azibo began losing a
number of customers.
“Azibo was displeased by the victim’s actions and sub-
sequently attempted on at least two occasions to break
into apartment 101 with the assistance of various confed-
erates. During one such instance, Hodges heard a knock
on the door of apartment 211 in the middle of the night.
Looking through the peephole, Hodges observed Azibo,
who was wearing black clothing, a black bandana, and
plastic gloves and motioning for Hodges to join him in
the hallway. Azibo whispered to Hodges to go to the first
floor and knock on the door to a specific apartment. As
Hodges and Azibo headed downstairs, Hodges perceived
that three people were in the second floor laundry room;
although he avoided looking at the people’s faces, he could
see that all of them also were wearing plastic gloves.
While Azibo hid in the stairwell, Hodges knocked on the
door to apartment 101, but nobody came to the door.
Relieved that no one had answered, Hodges informed
Azibo and returned to the second floor while Azibo and
the three other individuals went downstairs.
“Taylor also was present for two of the attempts to
enter the first floor apartment. In the first attempt,
Taylor received a phone call from Azibo. Taking the train
from Norwalk to Bridgeport, Taylor met up with Azikiwe
and Azibo; at Azibo’s direction, the group drove to a
Walgreens store, where Azibo purchased duct tape. The
three then drove to the diner near 215 Charles Street. By
the time they arrived at the diner, it was dark outside.
The group waited at the diner until Azibo got a phone
call, at which point they went out to the parking lot.
The [petitioner] met the three men in the parking lot of
the diner. He brought two bats with him, giving one to
Azikiwe and retaining the other. The bats were the first
weapons that Taylor observed among the four men. In
the parking lot, Azibo told Taylor, Azikiwe, and the
[petitioner] that there were people selling drugs out of
his building, ‘[h]e had a problem’ with this, and the group
was going to go in and ‘confront them.’ The four men

Johnson v. Commissioner of Correction
voluntarily put on masks and latex gloves provided by
Azikiwe,4 entered the building, and waited down the hall
while a young woman knocked on the door to apartment
101. When no one answered, Azibo, Azikiwe, and Taylor
went upstairs, and the [petitioner] left with the bats.5
“A second attempt involving Taylor to enter apartment
101 occurred a few days after the first attempt. During
the day on August 23, 2005, the [petitioner] contacted
Azibo about getting more marijuana. Azibo brought
the marijuana over to the [petitioner] and, giving the
[petitioner] two additional bags, stated that he might
need a favor later. That evening, the [petitioner], with
the assistance of Lashika and others, promoted a party
at a Bridgeport club. Between approximately 1:30 to
2:30 a.m. on August 24, 2005, the group finished clean-
ing up and went to a restaurant in Orange. While there,
Lashika received a phone call from Azibo, who asked to
speak with the [petitioner]. The [petitioner] did not look
upset after receiving this phone call. After finishing
their meal, Lashika and the [petitioner] left the restau-
rant in separate vehicles. Returning home, Lashika saw
Azibo outside her apartment, though she did not see the
[petitioner]; after seeing Azibo, Lashika went to sleep.
“Taylor also received a phone call from Azibo and drove
to Bridgeport that night, where he met up with Azibo
and Azikiwe. Azikiwe drove the group to the parking
lot underneath the apartments at 215 Charles Street.
Exiting the car, Taylor saw the [petitioner] walking up to
them. The [petitioner] again brought two bats with him,
which were the first weapons that Taylor had observed
among the four men on this occasion as well, and all of the
4 “Taylor did not observe anyone threatened, forced, or ordered to put
on the gloves or masks.” State v. Johnson, 165 Conn. App. 255, 261
n.5, 138 A.3d 1108, cert. denied, 322 Conn. 904, 138 A.3d 933 (2016).
5 “It is unclear whether the incident that Hodges observed was, in fact,
the same unsuccessful attempt in which Taylor participated. Hodges
did not recall seeing the [petitioner] or Taylor there that night and
did not see Azibo or his men holding weapons.” State v. Johnson, 165
Conn. App. 255, 261 n.6, 138 A.3d 1108, cert. denied, 322 Conn. 904,
138 A.3d 933 (2016).

Johnson v. Commissioner of Correction
men put on latex gloves and masks provided by Azikiwe.
Taking care not to be seen, the group went upstairs to
apartment 101. During this period, Taylor observed
that both the [petitioner] and Azikiwe were armed with
baseball bats, while Azibo had a gun. Once there, one
or more members of the group forced open the door to
apartment 101, and the four men entered the apartment.
“Inside the apartment, Azibo instructed Taylor to
stand by the living room window and to take a lookout
position. Azibo and Azikiwe then proceeded to use duct
tape to bind the victim and Reid in the first bedroom.
While duct taping these two individuals, Azibo’s gloves
ripped, and he replaced them; Azikiwe similarly replaced
his gloves while in the apartment. The [petitioner] like-
wise participated in binding the victim’s wrists and
ankles to some degree. While in the apartment, Taylor
also observed the [petitioner] standing in the hallway by
the bathroom near the first bedroom. Walking between
the window at which he was stationed and the bedroom,
Taylor saw both Azibo and Azikiwe strike the victim
and Reid in the head multiple times with the baseball
bats. At some point while the men were in the apart-
ment, Williams was bound and injuries similar to those
suffered by the victim and Reid were inflicted upon
him. Additionally, one of the four participants inserted
several screws into the doorjamb of the front door from
the inside before leaving through the window. Again,
Taylor did not observe the [petitioner] being threatened
by, or try to stop, Azibo and Azikiwe during their time
in apartment 101.
“Eventually, the four left the apartment: Taylor and
Azikiwe in one vehicle, and the [petitioner] and Azibo in
another. The [petitioner] observed a black drill in a bag
that Azibo brought with him to the car after leaving the
apartment. The [petitioner], Azibo, and Azikiwe recon-
vened at Lashika’s apartment, where the [petitioner]
frequently stayed. Lashika was awakened by voices in
her living room, two of which she was able to identify
as the [petitioner] and Azibo. Leaving her bedroom, she
discovered the [petitioner], Azibo, and Azikiwe sitting

Johnson v. Commissioner of Correction
in the living room. Azibo and Azikiwe were wearing only
undershirts, shorts, and socks. Azibo asked Lashika to
take the garbage bags and a black electric drill belonging
to Azibo to a dumpster down the street. Lashika disposed
of the bags as requested, wearing plastic gloves to move
the items. When she returned, Azibo asked her to move
his car and retrieve clothing for him from his apartment,
which she did. Azibo, Azikiwe, and the [petitioner] were
all there when she came back from this second errand.
“Later that morning, the victim’s son, Leroy Whitting-
ham, attempted to call his mother multiple times, but was
unable to reach her. At or about 10 a.m., he walked over
to his mother’s apartment; getting no response when he
knocked on her front door, he walked around the side of
the building to the window of her bedroom. Discovering
the window open, Whittingham pushed the blinds aside
and saw the victim and Reid. Both parties were bound in
duct tape on the floor, and there was blood on the floor
and ceiling. Whittingham entered the apartment and
called 911 from his cell phone. An ambulance and police
were dispatched.
“Karen O’Donnell, an emergency medical technician for
American Medical Response, and her partner, Rosanna
Mendoza, received the call at approximately 10:15 a.m.
Driving toward the address to which they were directed,
O’Donnell saw a person waving them down and pointing
to the apartment building behind the diner. O’Donnell
and her partner entered the building; while they were
walking up the stairs toward the apartment, Whitting-
ham kicked open the front door. Discovering the victim
and Reid in the first bedroom and Williams in the second
bedroom, O’Donnell and her partner quickly determined
that all three residents were deceased.
“Investigators processed the apartment over the course
of three days. They discovered the screws that had been
affixed to the front door and door frame from inside
the apartment, which would have prevented the door
from being opened. Investigators also discovered various
items and removed them from the apartment for further

Johnson v. Commissioner of Correction
examination; these items included pieces of latex and
latex gloves, samples of blood-like substances, the duct
tape used to bind the head, hands, and feet of the three
residents, and two plastic bags stuck together with duct
tape. Additionally, after removing the duct tape binding
the victim’s wrists, investigators discovered a piece of
latex attached to the inside of the duct tape. No weapons
were recovered from the apartment.
“The items collected were turned over to the state
forensic laboratory, and forensic testing determined
that many of the fingerprints that were discovered in the
apartment or on the items seized as evidence were attrib-
utable to Azikiwe and Azibo. DNA was also extracted
from the various gloves, latex fragments, and other
items recovered from apartment 101, and was submit-
ted for further testing. This testing compared DNA
profiles developed from these recovered samples to pro-
files of known samples taken from the involved parties.
The profiles developed for each sample were then cross-
referenced with a database, which allows the technicians
to determine the frequency with which an individual
within the three major population groups of Connecti-
cut (African-American, Caucasian, or Hispanic) would
be expected to be a contributor. This testing identified
Azikiwe, Azibo, and the [petitioner] as contributors to
the various samples, while none of the three of them
or Taylor could be eliminated as a contributor to other
samples.6 Only the [petitioner] was a contributor to the
sample of DNA taken from the latex fragment recovered
from the duct tape binding the victim’s wrists; each of
the other known samples was eliminated. The expected
frequency of a person being a contributor to that par-
ticular sample was one in seven billion individuals from
the three population groups.7
6 “Each of the decedents also was identified as a contributor to, or
was not eliminated as a contributor to, many of the samples.” State v.
Johnson, 165 Conn. App. 255, 265 n.7, 138 A.3d 1108, cert. denied,
322 Conn. 904, 138 A.3d 933 (2016).
7 “This statistical frequency applies to all potential contributors to
a sample.” State v. Johnson, 165 Conn. App. 255, 265 n.8, 138 A.3d
1108, cert. denied, 322 Conn. 904, 138 A.3d 933 (2016).

Johnson v. Commissioner of Correction
“Frank Evangelista, associate medical examiner for
the state, conducted the autopsy of the victim in August,
2005. External and internal examinations revealed pro-
found and substantial injuries to the victim’s wrist,
face, skull, and brain.8 These injuries, both external
and internal, were consistent with blunt force trauma
and would have required multiple blows. Consequently,
Evangelista concluded that the victim’s death had been
caused by blunt head trauma inflicted by another party.
The autopsies of Reid and Williams revealed that they
had suffered similar injuries, which caused their deaths.
“A few days after August 24, 2005, the [petitioner]
went to a music concert with Lashika, Azibo, and
Azikiwe, and when the [petitioner’s] sister drove him
to Philadelphia a few weeks later, Azikiwe joined them.
Although the [petitioner] did not know that Azikiwe
would be joining them on the trip to Philadelphia, he did
not voice any reluctance about Azikiwe joining them.
When Lashika eventually inquired about what happened
at 215 Charles Street, the [petitioner] responded that he
had not hurt or killed anyone, though he had ‘roughed
somebody up,’ that he had helped tie up someone, and
that the group had gotten rid of the bats they had with
them in the apartment.
“On March 6, 2007, the [petitioner] was interviewed
by Christopher Munger, a special agent with the Federal
Bureau of Investigation (FBI), at its Bridgeport office.
When asked about his involvement in the events at 215
Charles Street, the [petitioner] changed his story mul-
tiple times. He first claimed that he had not been there
8 “In particular, Evangelista’s external examination of the body
revealed multiple visible injuries to her head and face as well as a wrist
fracture that, although not visible, could be felt clearly through the
skin. During his subsequent internal examination, Evangelista observed
numerous internal injuries consistent with blunt force trauma, includ-
ing lacerations and bruises to the exterior of the victim’s head, damage
to her left eyeball, fractures in her skull and cheekbones, and bruising
and bleeding in the brain.” State v. Johnson, 165 Conn. App. 255, 265
n.9, 138 A.3d 1108, cert. denied, 322 Conn. 904, 138 A.3d 933 (2016).

Johnson v. Commissioner of Correction
for seven to nine years. When told that his DNA had been
recovered from apartment 101, the [petitioner] asked
if he could ‘start over.’ In his second version of events,
the [petitioner] told the agent that he had been asked
by Azibo on August 23, 2005, to go up to the door and
pretend to be interested in buying crack cocaine, that he
got into a verbal altercation with the woman who opened
the door, that during this incident, he spit in her face, she
slammed the door, and that he left afterward. When told
that the DNA had been recovered from the latex glove
fragment in the duct tape bindings, the [petitioner] asked
to start over again. This time, the [petitioner] provided
an account of his involvement that placed him in the
apartment binding the victim’s wrists and feet with duct
tape on the day that she was killed.
“Over the course of the investigation, cell phones were
seized from the [petitioner] and Azikiwe, and investi-
gating detectives became aware of a phone number that
ultimately was attributed to Azibo. Information was
obtained both from these cell phones, and from records
of the associated service providers for these phones and
numbers associated with Womble, Taylor, the victim,
and Lashika. Analyzing this information, agents with
the FBI were able to identify a number of calls during the
days leading up to the murders between the phones asso-
ciated with Azibo, Azikiwe, the [petitioner], and Taylor.
In particular, this information showed that: the phone
seized from the [petitioner] had been in contact with
the phone associated with Azibo seven times on August
24, 2005, the first time being at 1:47 a.m. and the last
at 5:50 a.m.; the last phone to call the phone associated
with Azibo was the phone associated with Taylor; there
was no contact between the phone associated with Azibo
and any other phone between 5:04 and 5:43 a.m.; and
the first number that the phone associated with Azibo
called after 5:43 a.m. on August 24, 2005, was the phone
associated with the [petitioner].” (Footnotes in original.)
State v. Johnson, 165 Conn. App. 255, 258–67, 138 A.3d
1108, cert. denied, 332 Conn. 904, 138 A.3d 933 (2016).

Johnson v. Commissioner of Correction
The petitioner subsequently was charged with three
counts of felony murder in violation of General Statutes
§ 53a-54c9 and three counts of kidnapping in violation
of General Statutes § 53a-92 (a) (2) (A).10 Id., 258. Prior
to the commencement of the petitioner’s criminal trial,
the state sent counsel for the petitioner a plea offer,
memorialized in a letter dated November 26, 2013, which
stated in relevant part: “The [s]tate’s last best offer in
this case would permit the [petitioner] to enter guilty
pleas to three counts of kidnapping in the first degree
for an agreed sentence of twenty . . . years in the custody
of the [C]ommissioner of [C]orrection, followed by five
. . . years special parole. The [s]tate would enter a nolle
prosequi on each count of felony murder. In addition, the
[s]tate would join the [petitioner’s] request to award him
jail credit from the date of his arrest on federal charges
in 2007, although he is only legally entitled to credit on
a sentence in this case from August 17, 2011, the date
of his arrest on these charges.”11 The petitioner declined
the state’s offer and proceeded to trial.
Following a jury trial, the petitioner was found guilty
of the felony murder and kidnapping of Tina Johnson
and was acquitted of all other charges and lesser included
9 General Statutes § 53a-54c provides in relevant part: “A person is
guilty of murder when, acting either alone or with one or more persons,
such person commits or attempts to commit . . . kidnapping . . . and, in
the course of and in furtherance of such crime or of flight therefrom,
such person, or another participant, if any, causes the death of a person
other than one of the participants . . . .”
Although § 53a-54c was amended in 2015; see Public Acts 2015,
No. 15-211, § 3; that amendment has no bearing on the merits of this
appeal. In the interest of simplicity, we refer to the current revision
of the statute.
10 General Statutes § 53a-92 (a) provides in relevant part: “A person is
guilty of kidnapping in the first degree when he abducts another person
and . . . (2) he restrains the person abducted with intent to (A) inflict
physical injury upon him . . . .”
11 The petitioner was involved in two criminal cases regarding this
incident, one federal criminal case and one state criminal case. In his
federal trial, “the [D]istrict [C]ourt granted the defense motion for
judgment of acquittal on the basis that there was no evidence that [the
petitioner] was part of the [other defendants’] criminal enterprise.”
After the federal trial, the state prosecuted the petitioner in regard to

Johnson v. Commissioner of Correction
offenses. The trial court subsequently sentenced the peti-
tioner to a total effective term of fifty years of imprison-
ment. See State v. Johnson, supra, 165 Conn. App. 267.
The petitioner appealed from that judgment, which this
court affirmed. See id., 304.
On September 3, 2019, the petitioner filed a petition
for a writ of habeas corpus. His operative petition, the
July 14, 2020 amended petition for a writ of habeas
corpus, contained three counts. Count one alleged inef-
fective assistance of counsel on the part of his criminal
trial counsel, Attorney Todd Bussert, on a variety of
grounds, including his failure to “meaningfully convey”
the state’s last best plea offer.12 Counts two and three
alleged that the petitioner’s rights to due process and a
fair trial were violated. On January 23, 2024, the respon-
dent, the Commissioner of Correction, filed a return in
response to the petitioner’s amended petition for a writ
of habeas corpus. At the habeas trial, the court heard
testimony from the petitioner, Bussert, and State’s
Attorney Joseph T. Corradino, who was the prosecutor
at the petitioner’s criminal trial.
In its subsequent memorandum of decision, the habeas
court concluded, inter alia, that the petitioner had not
demonstrated deficient performance on the part of Bus-
sert for failing to “meaningfully convey the plea offer of
twenty years . . . .” The court also rejected the petitioner’s
due process claims for lack of proof and, accordingly,
denied the amended petition for a writ of habeas corpus.
The petitioner then filed a petition for certification to
appeal to this court, which the habeas court denied, and
this appeal followed.
I
On appeal, the petitioner first claims that the habeas
court abused its discretion in denying his petition for
his involvement in the homicides that took place. The state “trial was
duplicative of the federal trial in terms of the evidence presented.”
12 At the petitioner’s habeas trial, the petitioner withdrew multiple
allegations of deficient performance on the part of Bussert. In this
appeal, the petitioner claims that Bussert performed deficiently by
failing to meaningfully convey the state’s plea offer to the petitioner.

Johnson v. Commissioner of Correction
certification to appeal and wrongfully denied his claim
that Bussert performed deficiently when he represented
the state’s plea offer to the petitioner. We disagree.
Our standard of review is well established. “Faced with
the habeas court’s denial of certification to appeal, a peti-
tioner’s first burden is to demonstrate that the habeas
court’s ruling constituted an abuse of discretion. . . . If
the petitioner succeeds in surmounting that hurdle, the
petitioner must then demonstrate that the judgment
of the habeas court should be reversed on its merits.”
(Citations omitted.) Simms v. Warden, 230 Conn. 608,
612, 646 A.2d 126 (1994).
“A petitioner may establish an abuse of discretion
by demonstrating that the issues are debatable among
jurists of reason . . . [a] court could resolve the issues [in a
different manner] . . . or . . . the questions are adequate to
deserve encouragement to proceed further. . . . In deter-
mining whether the habeas court abused its discretion
in denying the petitioner’s request for certification, we
necessarily must consider the merits of the petitioner’s
underlying claims to determine whether the habeas court
reasonably determined that the petitioner’s appeal was
frivolous. . . .
“A claim of ineffective assistance of counsel consists
of two components: a performance prong and a prejudice
prong. To satisfy the performance prong . . . the peti-
tioner must demonstrate that his attorney’s representa-
tion was not reasonably competent or within the range of
competence displayed by lawyers with ordinary training
and skill in the criminal law. . . . To show prejudice from
ineffective assistance of counsel where a plea offer has
lapsed or been rejected because of counsel’s deficient
performance, defendants must demonstrate a reason-
able 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 canceling it or the trial court refusing
to accept it, if they had the authority to exercise that

Johnson v. Commissioner of Correction
discretion under state law. To establish prejudice in this
instance, it is necessary 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. . . .
“Because a petitioner’s failure to satisfy either prong
is fatal to a habeas petition . . . our courts, in review-
ing ineffective assistance of counsel claims, can find
against a petitioner . . . on either the performance prong
or the prejudice prong, whichever is easier . . . . It is well
established that the failure to adequately advise a client
regarding a plea offer from the state can form the basis
for a sixth amendment claim of ineffective assistance of
counsel.” (Citations omitted; internal quotation marks
omitted.) Dixon v. Commissioner of Correction, 233
Conn. App. 851, 856–58, 342 A.3d 260, cert. denied,
353 Conn. 918, 345 A.3d 808 (2025).
Regarding rejected plea offers, our Supreme Court
has explained that “the specific underlying question of
whether there was a reasonable probability that a habeas
petitioner would have accepted a plea offer but for the
deficient performance of counsel is one of fact, which
will not be disturbed on appeal unless clearly erroneous.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed. . . .
Because it is the [habeas] court’s function to weigh the
evidence and determine credibility, we give great defer-
ence to its findings. . . . In reviewing factual findings,
[w]e do not examine the record to determine whether
the [court] could have reached a conclusion other than
the one reached. . . . Instead, we make every reasonable
presumption . . . in favor of the [habeas] court’s ruling.”
(Citations omitted; internal quotation marks omitted.)
Barlow v. Commissioner of Correction, 343 Conn. 347,
357–58, 273 A.3d 680 (2022); see also Dixon v. Commis-
sioner of Correction, supra, 233 Conn. App. 861 (“It is

Johnson v. Commissioner of Correction
well established that the appellate courts of this state
cannot evaluate the credibility of the witnesses. . . .
Rather, we must defer to the [trier of fact’s] assessment
of the credibility of the witnesses based on its firsthand
observation of their conduct, demeanor and attitude.
. . . The habeas judge, as the trier of facts, is the sole
arbiter of the credibility of witnesses and the weight to
be given to their testimony.” (Internal quotation marks
omitted.)).
In the present case, the habeas court found that the
“credible evidence from [Bussert] establishes that he ade-
quately conveyed the twenty year offer to [the petitioner],
explaining to him that [Bussert] believed he would get
convicted after the state trial and that he should accept
the offer,” and that “he adequately explained all com-
ponents of that offer to [the petitioner].” At the habeas
trial, Bussert testified that he had relayed the state’s
plea offer to the petitioner, explained the strengths and
weaknesses of the state’s case to the petitioner, and rec-
ommended that the petitioner accept the state’s offer.
We further note that, prior to the commencement of the
petitioner’s state criminal trial, the court thoroughly
canvassed the petitioner regarding his decision to reject
a plea offer from the state.13 Although the petitioner
testified somewhat to the contrary, specifically, that
he was unaware that the plea offer only contemplated
pleading guilty to the kidnapping charges and that he
was unaware of the retroactive confinement credit to
2007, such testimony does not persuade us that the court
erroneously found that Bussert adequately conveyed the
13 It is unclear if this rejected plea offer is the same offer that was
memorialized in the November 26, 2013 letter, or some other offer.
The following colloquy occurred between the petitioner and the court:
“The Court: So, once . . . your federal case was resolved . . . myself and
[Bussert] and the prosecutor had a number of serious discussions about
your case to see whether or not there was a possibility of resolving the
case short of trial. And I assume [Bussert] kept you up to speed on what
was happening here in court in Bridgeport?
“[The Petitioner]: Yes, Your Honor.
“The Court: Okay. . . . [A]ll those discussions ultimately came down
to a proposal to you that, if you were willing to enter pleas, that the

Johnson v. Commissioner of Correction
state’s plea offer. The habeas court could have chosen
not to credit the petitioner’s testimony. Bussert testified
that he relayed the state’s offer to the petitioner, and the
habeas court credited that testimony.14 Moreover, Bus-
sert testified to the petitioner’s unwillingness to enter
state would recommend a sentence of twenty years as a penalty in your
case. I assume that was conveyed to you by [Bussert]?
“[The Petitioner]: Yes, Your Honor.
“The Court: “Okay. And did you and [Bussert] . . . generally talk about
the subject matter of the pros and cons of either accept[ing] a plea offer
or going to trial? Did you discuss that back and forth with him?
“[The Petitioner]: Yes.
“The Court: Okay. And did he answer any questions that you might
have had about . . . one path versus a different path?
“[The Petitioner]: Yes.
“The Court: All right. And my understanding is that you have elected
not to resolve the case on the twenty year offer but, instead, have the
case . . . go to trial . . . is that right?
“[The Petitioner]: Yes.
“The Court: Okay. So . . . that’s your choice to make and you could
make it. . . . But . . . before we leave it, I just need to say this to you,
sir, and that is this . . . each of these charges is a felony murder . . .
carrying a mandatory minimum sentence of twenty-five years [of]
imprisonment and a maximum sentence of sixty years [of] imprison-
ment; do you understand that?
“[The Petitioner]: Yes.
“The Court: And on a murder charge in Connecticut, there [is] no parole.
In other words, you don’t do half or two thirds or even 85 percent of
your sentence and then go in front of a parole board. It’s day-for-day
time that you serve these murder charges; do you understand that?
“[The Petitioner]: Yes.
“The Court: . . . My experience is that, on cases like this, if someone
is convicted after trial they [would receive] sentences far greater than
twenty years [of imprisonment]. You realize [that] you run the risk of
getting a much more severe sentence if you lose your trial; you under-
stand that, sir?
“[The Petitioner]: Yes. . . .
“The Court: Okay. . . . I just need to make sure you understand the risks
in terms of choosing one course over another. And . . . it sounds to me
like you’ve given this some thought and you’re firm in your conviction
that you want to go to trial.
“[The Petitioner]: Yes.”
14 Although Bussert testified, at one point, that he had not discussed
the retroactive prison credit with the petitioner, Bussert later clari-
fied that he “had a conversation” with the petitioner “consistent with
. . . what was reflected in that letter from [the state] in terms of the
parameter of the offer.” Moreover, on cross-examination, Bussert

Johnson v. Commissioner of Correction
any plea agreements. In light of the deference applied
to the court’s credibility assessments and the weight
afforded to testimony, we conclude that the habeas
court’s finding that Bussert had adequately conveyed the
state’s plea offer to the petitioner is not clearly errone-
ous.15 See Barlow v. Commissioner of Correction, supra,
343 Conn. 357–58; Dixon v. Commissioner of Correction,
supra, 233 Conn. App. 861.
II
The petitioner also claims that the habeas court abused
its discretion in denying his petition for certification
to appeal because it had improperly denied his claims
regarding his rights to due process and to a fair trial.
The petitioner’s substantive claim is that the prosecu-
tor’s failure to disclose certain benefits that allegedly
were given to a testifying witness in exchange for the
witness’ cooperation at the petitioner’s criminal trial
violated the petitioner’s rights to due process and to
a fair trial under Brady and its progeny. We disagree.
We begin with our standard of review. “The prereq-
uisite of any claim under . . . Brady . . . is the existence
of an undisclosed agreement or understanding between
the cooperating witness and the state. . . . Normally, this
is a fact based claim to be determined by the trial court,
subject only to review for clear error. . . . [T]he burden
is on the defendant to prove the existence of undisclosed
exculpatory evidence. . . .
testified affirmatively that he had relayed the plea offer of twenty years
of imprisonment, as extended by the state to the petitioner.
15 Although the habeas court did not address the prejudice prong of
the ineffective assistance of counsel test, it is axiomatic that “a court
may resolve ineffective assistance of counsel claims on either the per-
formance prong or the prejudice prong.” Williams v. Commissioner
of Correction, 223 Conn. App. 745, 762, 310 A.3d 381, cert. denied,
349 Conn. 901, 312 A.3d 586 (2024). Accordingly, “[i]n light of our
determination that the petitioner failed to establish that [counsel’s]
performance was deficient, we need not address the prejudice prong.”
(Internal quotation marks omitted.) Jan G. v. Commissioner of Correc-
tion, 237 Conn. App. 115, 143 n.25, 350 A.3d 1156, cert. granted, 354
Conn. 930, . . . A.3d . . . (2026).

Johnson v. Commissioner of Correction
“Whether the petitioner was deprived of his due pro-
cess rights due to a Brady violation is a question of law,
to which we grant plenary review. . . . [W]here the legal
conclusions of the court are challenged, we must deter-
mine whether they are legally and logically correct . . .
and whether they find support in the facts that appear
in the record.” (Citations omitted; internal quotation
marks omitted.) Brown v. Commissioner of Correction,
230 Conn. App. 384, 398, 330 A.3d 134, cert. denied,
351 Conn. 921, 333 A.3d 103 (2025). To the extent that
the petitioner challenges the factual basis of the court’s
decision, however, “we must determine whether the facts
set out in the memorandum of decision are supported
by the evidence or whether, in light of the evidence and
the pleadings in the whole record, those facts are clearly
erroneous.” (Internal quotation marks omitted.) Id., 399;
see also Barlow v. Commissioner of Correction, supra,
343 Conn. 357–58. Moreover, “[t]he question of whether
there existed an agreement between [a witness] and the
state is a question of fact . . . .” (Internal quotation marks
omitted.) Diaz v. Commissioner of Correction, 174 Conn.
App. 776, 798, 166 A.3d 815, cert. denied, 327 Conn.
957, 172 A.3d 204 (2017).
The “suppression by the prosecution of evidence favor-
able to an accused upon request violates due process
where the evidence is material either to guilt or to pun-
ishment, irrespective of the good faith or bad faith of the
prosecution.” Brady v. Maryland, supra, 373 U.S. 87.
As our Supreme Court has observed, “[i]t is well estab-
lished that [i]mpeachment evidence as well as exculpa-
tory evidence falls within Brady’s definition of evidence
favorable to an accused. . . . A plea agreement between
the state and a key witness is impeachment evidence
falling within the definition of exculpatory evidence
contained in Brady. . . .
“The [United States] Supreme Court established a
framework for the application of Brady to witness plea
agreements in Napue v. Illinois, 360 U.S. 264, 79 S.
Ct. 1173, 3 L. Ed. 2d 1217 (1959), and Giglio v. United

Johnson v. Commissioner of Correction
States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104
(1972). . . . [D]ue process is . . . offended if the state,
although not soliciting false evidence, allows it to go
uncorrected when it appears. . . . If a government witness
falsely denies having struck a bargain with the state, or
substantially mischaracterizes the nature of the induce-
ment, the state is obliged to correct the misconception.
. . . Regardless of the lack of intent to lie on the part of
the witness, Giglio and Napue require that the prosecu-
tor apprise the court when he knows that his witness is
giving testimony that is substantially misleading. . . .
A new trial is required if false testimony could . . . in
any reasonable likelihood have affected the judgment
of the jury. . . . The prerequisite of any claim under the
Brady, Napue, and Giglio line of cases is the existence
of an undisclosed agreement or understanding between
the cooperating witness and the state.” (Citations omit-
ted; internal quotation marks omitted.) State v. Ouel-
lette, 295 Conn. 173, 185–86, 989 A.2d 1048 (2010);
see also Diaz v. Commissioner of Correction, supra, 174
Conn. App. 798 (“Any . . . understanding or agreement
between any state’s witness and the state police or the
state’s attorney clearly falls within the ambit of Brady
principles. . . . An unexpressed intention by the state
not to prosecute a witness does not.” (Internal quotation
marks omitted.)).
This agreement between the state and the testifying
witness need not be an explicit agreement for it to fall
within the ambit of Brady and its progeny. Our Supreme
Court has observed that the state’s “practice of informal,
off-the-record leniency understandings with cooperating
witnesses . . . often involve a prosecutor’s suggesting—
although not promising—that a favorable recommenda-
tion to the sentencing judge and/or a reduction in the
charges against the witness might be forthcoming in
exchange for the witness’ testimony inculpating another
defendant. . . . [T]hese ‘hypothetical’ outcomes serve as
a real incentive to motivate a witness to testify for the
state.” (Citations omitted.) Marquez v. Commissioner
of Correction, 330 Conn. 575, 603–604, 198 A.3d 562
(2019). As this court has observed, “what constitutes

Johnson v. Commissioner of Correction
an agreement or understanding between the state and
a cooperating witness for Brady purposes is broadly
defined and must be determined on a case-by-case basis.
Evidence of such an agreement is not limited to what
might be deemed formal plea agreements pertaining
to specific charges, promises to recommend a specific
sentence, or even express promises by the state to bring
a witness’ cooperation to the attention of a sentencing
judge. In light of its potentially high value to the defense
as fodder for impeachment, evidence that reasonably
suggests that an informal understanding between the
state and a cooperating witness exists, or reasonably
may be viewed as an inducement by the state, falls within
the ambit of what must be disclosed.” Brown v. Commis-
sioner of Correction, supra, 230 Conn. App. 412; see also
Diaz v. Commissioner of Correction, supra, 174 Conn.
App. 798 (“evidence that merely suggests an informal
understanding between the state and a state’s witness
may constitute impeachment evidence for purposes of
Brady” (emphasis in original)).
In the present case, the habeas court found that there
was no evidence in the record that there had been any
understanding, informal or otherwise, between Taylor
and the state in exchange for Taylor’s testimony. The
petitioner nevertheless contends that the state’s general
practice of declining to prosecute defendants after they
had already been convicted in a federal court constitutes a
benefit. As the petitioner argues, Taylor, who had pleaded
guilty to federal charges and who was not charged by
the state, was therefore the beneficiary of this general
practice, which should have been disclosed to the jury.
The petitioner’s claim, however, must fail because,
on the basis of our careful review of the record, the peti-
tioner presented no evidence at the habeas trial that any
such agreement or understanding, implicit or otherwise,
existed between Taylor and the state in exchange for Tay-
lor’s testimony at the petitioner’s underlying criminal
trial.16 See Owen v. Commissioner of Correction, 234
16 Taylor’s agreement with the federal prosecuting authority was
disclosed, and Bussert elicited testimony at the petitioner’s underlying

Johnson v. Commissioner of Correction
Conn. App. 481, 498, 344 A.3d 158 (“It is . . . well estab-
lished that the burden of establishing grounds for relief
in a habeas corpus proceeding rest[s] with the petitioner.
. . . The petitioner, as the plaintiff in a habeas corpus
proceeding, bears a heavy burden of proof.” (Internal
quotation marks omitted.)), cert. denied, 353 Conn. 923,
345 A.3d 812 (2025). Specifically, there is no evidence in
the record that the state explicitly or implicitly expressed
to Taylor or his attorney its decision not to prosecute
Taylor, much less in some exchange for his testimony.
There similarly is no evidence in the record that Taylor
knew of the state’s decision or general practice of declin-
ing to prosecute defendants who had been convicted in
federal court.17 In light of the foregoing, we conclude
that the court did not err in denying the petitioner’s
due process claim and, subsequently, did not abuse its
discretion in denying the petitioner’s petition for certi-
fication to appeal.
Thus, we conclude that the petitioner has failed to
establish that the issues he raised are debatable among
jurists of reason, that a court could resolve them in a
different manner or that the questions he raised are
adequate to deserve encouragement to proceed further.
See, e.g., Santana v. Commissioner of Correction, 208
Conn. App. 460, 469–70, 264 A.3d 1056, cert. denied,
340 Conn. 920, 267 A.3d 857 (2022). We therefore con-
clude that the habeas court did not abuse its discretion
in denying the petitioner’s petition for certification to
criminal trial regarding that plea offer and cooperation agreement,
including other benefits Taylor incurred from the federal government.
In that testimony, Taylor stated that he had received no benefits from
the state, such as a promise not to prosecute, other than the benefits
he received from the federal government.
17 Taylor was not produced as a witness at the petitioner’s habeas trial.
As the court found, “any claims directed at [Bussert’s] cross-examination
of [Taylor] are denied for lack of proof. The court cannot evaluate the
effectiveness of any further questioning without . . . responses to those
questions. . . . Similarly, the [petitioner’s] due process claims must be
denied.” Moreover, as the petitioner admits in his principal appellate
brief, “there is no mention of any discussion that took place between the
prosecuting authorities and Taylor regarding the practices of the state.”

Johnson v. Commissioner of Correction
appeal from the judgment denying his amended petition
for a writ of habeas corpus.
The appeal is dismissed.
In this opinion the other judges concurred.