Judicial District of Tolland

†††† †Habeas; Ineffective Assistance of Counsel; Whether Appellate Court Properly Found that Habeas Court did not Abuse its Discretion in Denying Certification to Appeal on Finding that Habeas Courtís Factual Finding was not Clearly Erroneous.† The petitioner was convicted of murder in connection with a gang related shooting.† He brought this habeas action, claiming that his trial counsel rendered ineffective assistance in failing to call two witnesses, Antonio Rigual and Lester Simonetty, on his behalf.† Rigual is the petitionerís cousin; Simonetty the petitionerís brother.† The habeas court denied the petition, concluding that the petitioner failed to meet his burden of proving that he was prejudiced by counselís allegedly deficient performance.† The habeas court reasoned that it was unlikely that the jury would have found the testimony of either Rigual or Simonetty credible because both are convicted felons and both had motives to be deceptive.† The petitioner sought certification to appeal, which the habeas court denied.† The petitioner appealed, claiming that the habeas court abused its discretion in determining that Rigual and Simonetty were not credible and consequently that he had failed to meet his burden of demonstrating to a reasonable probability that the outcome of his trial would have been different had defense counsel called them as witnesses.† The Appellate Court (138 Conn. App. 594) concluded that the habeas court did not abuse its discretion in denying certification to appeal and dismissed the appeal.† The court noted that the habeas judge, as the trier of facts, was the sole arbiter of the credibility of witnesses and the weight to be given their testimony and that, here, it would not disturb the habeas courtís finding that it was unlikely that a jury would have found Rigual and Simonetty credible.The Supreme Court will decide whether the Appellate Court correctly concluded that the habeas court did not abuse its discretion in denying the petition for certification to appeal insofar as the Appellate Court examined the petitioner's underlying claim of ineffective assistance of counsel and found the habeas court's factual finding not to be clearly erroneous.