Bush v. Comm'r of Corr., 151 A.3d 388, 169 Conn. App. 540 (2016)

Dec. 6, 2016 · Connecticut Appellate Court · AC 37238
151 A.3d 388, 169 Conn. App. 540

Dion BUSH
v.
COMMISSIONER OF CORRECTION

AC 37238

Appellate Court of Connecticut.

Argued September 12, 2016
Officially released December 6, 2016

David J. Reich, for the appellant (petitioner).

Linda Currie-Zeffiro, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Craig Nowak, senior assistant state's attorney, for the appellee (respondent).

Sheldon, Keller and Foti, Js.

KELLER, J.

*542The petitioner, Dion Bush, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus as well as the denial *543of his petition for certification to appeal.1 The petitioner claims that the habeas court erred by not concluding that his appellate counsel in a prior habeas appeal was ineffective. Specifically, the petitioner argues that his prior habeas appellate counsel was ineffective by failing to properly brief issues on appeal relating to: (1) alleged ineffectiveness by the petitioner's criminal trial counsel for not moving to sever the petitioner's trial from that of his codefendant; and (2) an alleged conflict of interest by criminal trial counsel resulting from his representation of another client that rendered his representation of the petitioner ineffective. We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal, and, accordingly, we dismiss the appeal.

The following facts underlying the petitioner's conviction, as set forth by our Supreme Court in the petitioner's direct appeal, are pertinent to our resolution of these issues. "On September 25, 1993, the victim, Norman Jones, a member of the Brotherhood street gang, was socializing at a party in Bridgeport. Antoin Pettway also was present at the party. At some point during the evening, the victim and Pettway left the party together and went to the Pequonnock housing project, where Pettway had an apartment. Upon arriving at the housing project, Pettway entered his apartment building. The victim, who did not live at Pequonnock, remained directly outside the building's front entrance.

"Pettway encountered Robert Robertson, a member of the Bush Mob gang, in the building's lobby. Robertson *544asked Pettway if the person outside the building's entrance was Jones, and Pettway responded affirmatively. Both men then left the lobby. Robertson entered the stairwell and went upstairs, while Pettway took the elevator to his apartment.

"Shortly thereafter, Robertson and the [petitioner], who also was a member of the Bush Mob gang, entered the lobby from the stairwell. The two men, each of whom was armed with a handgun, then went to the building's front entrance and pointed their guns in the direction of the victim. Robertson diverted his aim from the victim and fired once into the air. The [petitioner], however, fired several rounds at the victim, stopping only when his gun had been emptied. As the [petitioner] and Robertson *392then retreated through the lobby, Bernard Johnson, who had been in the lobby at that time, asked them why they had shot at the victim. One of the two men responded that they had done so to retaliate for the recent murder of a Bush Mob gang member.

"Within minutes, Bridgeport police officers arrived and found the victim lying on the ground a short distance away from the entrance of the building. He had been shot once in the back and was unconscious. He subsequently was transported to Saint Vincent's Medical Center in Bridgeport, where attempts to save his life proved unsuccessful." (Footnote omitted.) State v. Bush , 249 Conn. 423, 425-26, 735 A.2d 778 (1999).

The petitioner and Robertson were both charged with murder as either a principal or an accessory in violation of General Statutes §§ 53a-54a (a) and 53a-8, and conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a). The petitioner was represented by Attorney Dante Gallucci, and Robertson was represented by Attorney Lawrence Hopkins. "Prior to trial, the state moved to consolidate the trials of the [petitioner] and Robertson. Neither the [petitioner] nor *545Robertson objected to that motion, and thereafter, the trial court granted it.2 Immediately before the start of the state's case-in-chief, however, Robertson moved to sever the trials on the ground that there was a potential for antagonism between his defense and the [petitioner's].3 Although both the [petitioner] and Robertson planned to assert that they had not been present when the victim was shot, Robertson claimed that he might pursue a different strategy during the trial if, as anticipated, the state presented evidence from which the jury could infer that the [petitioner] had fired the shot that had killed the victim. Thereafter, the [petitioner] also moved for severance claiming that, if Robertson were to change his theory of defense during trial, there was a potential for antagonism between his defense and Robertson's. The trial court determined that, because at that time there was no conflict between the defenses of the [petitioner] and Robertson, the motions for severance on the basis of antagonistic defenses were premature. The court, therefore, denied those motions. In so doing, however, the court specifically stated that both the [petitioner] and Robertson could renew their severance motions if an actual conflict between their defenses arose during trial. Neither the [petitioner] nor *546Robertson renewed his motion for severance on the basis of antagonistic defenses at any time thereafter." (Emphasis in original; footnotes altered.) *393Id. at 426-27, 735 A.2d 778.4

During the trial the state called as a witness Maria Caban, who testified that the petitioner told her that he had shot the victim and that Robertson was also present during the shooting. She also testified that the petitioner told her that Robertson did not fire at the victim. Instead, he indicated that Robertson "punked out" and fired a single shot into the air. She also stated that, subsequent to the shooting, a group of men came to her apartment to retrieve what she was told was the murder weapon, and that the petitioner, but not Robertson, was present at that time.5 During cross-examination of Caban, Hopkins prompted her to reiterate those portions of her testimony that indicated that *547Robertson did not fire the shot that killed the victim. During his closing argument on behalf of Robertson, Hopkins argued that both Johnson and Caban lacked credibility, but that even if the jury believed their suspect testimony, it was clear that the bullet that killed the victim had been fired by the petitioner. The jury convicted the petitioner of murder and conspiracy to commit murder,6 and the court, *394Ford, J. , imposed a total effective sentence of sixty years incarceration.

The petitioner, still represented by Gallucci, appealed his conviction to our Supreme Court, arguing, inter alia, that the trial court erred by denying his motion to sever his trial from that of Robertson. Our Supreme Court affirmed the conviction, concluding that the petitioner had failed to preserve the claim by failing to renew his severance motion on the basis of antagonistic defenses at any time during the trial as permitted by the court. State v. Bush , supra, 249 Conn. at 428, 735 A.2d 778.

*548The petitioner then filed his first petition for a writ of habeas corpus.7 Represented by Attorney Howard Wicker, the petitioner claimed that he was deprived of the effective assistance of counsel at his criminal trial because Gallucci did not, inter alia: (1) timely move to sever his trial from that of Robertson; or (2) move to withdraw from representing the petitioner because of a conflict of interest. During the petitioner's first habeas trial, Gallucci testified as a witness for the respondent, the Commissioner of Correction, and stated that the petitioner's defense was one of general denial, although the petitioner did not have a supportable alibi. With regard to Robertson's defense, Gallucci explained: "Well, the basic thrust of the defense, that he wasn't involved. I recall at some points, [Hopkins] was also trying to show ... not only was [Robertson] not there and [he] didn't do it, but virtually nobody said [he] did it. It was a little different than our defense, but basically, the defenses were consistent; that [they] weren't there. [They] didn't do it." The habeas court, White, J. (first habeas court), denied the petition, concluding that the petitioner had failed to show that Gallucci was deficient in his performance at trial or that the petitioner was prejudiced by such alleged deficiencies. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first habeas court also denied the petition for certification to appeal. Represented by Special Public Defender Mary Trainer, the petitioner appealed the first habeas court's judgment to this court. See Bush v. Commissioner of Correction , 92 Conn.App. 537, 885 A.2d 1265 (2005), cert. denied, 277 Conn. 906, 894 A.2d 986 (2006). This court concluded that the first habeas court did not abuse its discretion in denying the petition for certification to appeal.

The petitioner then filed his second petition for a writ of habeas corpus, the action underlying this appeal.

*549The petitioner, represented by Attorney Frank Cannatelli, alleged ineffective assistance by Trainer, Wicker, and Gallucci.8 After a trial, the habeas court, Mullins, J. (second habeas court), for reasons detailed subsequently in this opinion, denied the petition for a writ of habeas corpus as well as a subsequent petition for certification to appeal. The petitioner then brought the present appeal. The issues raised in the present appeal relate only to claims in the petition regarding *395the alleged ineffective assistance of Trainer as appellate counsel in the prior habeas appeal. Additional facts will be set forth as necessary.

As a preliminary matter, we set forth the applicable standard of review. "Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for [a writ of] habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. ... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. ...

"To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to *550deserve encouragement to proceed further. ... To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. ... Furthermore, [i]n a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation ... but by demonstrable realities. " (Citations omitted; emphasis in original; internal quotation marks omitted.) Griffin v. Commissioner of Correction , 119 Conn.App. 239, 241-42, 987 A.2d 1037, cert. denied, 295 Conn. 912, 989 A.2d 1074 (2010).

"It is axiomatic that, in order to establish a claim of ineffective assistance of appellate counsel, a habeas petitioner must establish both deficient performance and the resulting prejudice. ... The performance prong requires proof that appellate counsel's performance fell below an objective standard of reasonableness. ... There is a strong presumption that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. ... Just as the decision of trial counsel not to object to certain evidence is a matter of trial tactics, not evidence of incompetency ... the tactical decision of appellate counsel not to raise a particular claim is ordinarily a matter of appellate tactics, and not evidence of incompetency, in light of the presumption of reasonable professional judgment. ...

"The prejudice prong requires proof that, had the prior performance been reasonable rather than inadequate, there is a reasonable probability that the petitioner would have prevailed on the appeal. ... A failure to establish either prong will be fatal to a claim of ineffectiveness of counsel. ... Our scope of review regarding the underlying facts found by the habeas court is the clearly erroneous standard, and the plenary *551standard of review applies regarding the legal conclusion of whether those facts amount to ineffectiveness of counsel." (Citations omitted; emphasis added.) Alterisi v. Commissioner of Correction , 145 Conn.App. 218, 222-23, 77 A.3d 748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013).

We also stress that "[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 ... and it is all too easy for a court ... to conclude that a particular act or omission of counsel was *396unreasonable. ... 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 .... [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ...." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction , 285 Conn. 556, 577, 941 A.2d 248 (2008).

I

The petitioner first argues that the second habeas court erred by not concluding that Trainer's performance was deficient for failing to properly brief the issue of Gallucci's alleged ineffectiveness for not moving a second time to sever the petitioner's criminal trial from Robertson's. We do not find this argument persuasive.

The following additional facts are relevant to this claim. In the present appeal, the petitioner points to two instances in his criminal trial that are offered to show that he and Robertson pursued antagonistic defenses necessitating severance. The first instance is the cross-examination of Caban by Robertson's defense counsel, Hopkins, which transpired as follows:

*552"[Attorney Hopkins]: Miss Caban, you indicated that at some point shortly after the shooting you had an opportunity to speak to Mr. Bush, correct?

"[The Witness]: Yes.

"[Attorney Hopkins]: Dion Bush. And he told you at that time that [Robertson], although he may have been present, fired one shot and he, as you say, punked out. Did he tell you that he fired that shot into the air? ...

"[The Witness]: He-he-excuse me. He said he wasn't trying to shoot him.

"[Attorney Hopkins]: Right. He shot-he wasn't trying to shoot him and that he himself, Mr. Bush, in fact, emptied his ... weapon into the victim, Norman Jones, correct? He admitted to you that he killed him?

"[The Witness]: Yeah.

"[Attorney Hopkins]: All right. Now, I think you indicated that somebody at some point in time came to your apartment to retrieve what you were told was the murder weapon; is that right?

"[The Witness]: Yeah. ...

"[Attorney Hopkins]: Let me ask you this: Mr. Robertson was not there at that time; isn't that a fact?

"[The Witness]: No, I don't think he was.

"[Attorney Hopkins]: Okay. And, in fact, you had named four individuals who were present when you claimed that that weapon was removed; is that right? Do you recall that-that Dion Bush was present? Do you recall telling that to the police in 1996 when you gave that written statement? "[The Witness]: I recall." The witness continued to identify those present when the gun was removed, none of whom was Robertson.

*553The petitioner also points to Hopkins' closing argument, in which he argued, in part: "Any inference that one might draw, that I don't think came out from the testimony, regarding those facts, which bullet killed [the victim], the [prosecution] asks you to disregard that. It doesn't make any difference. All the testimony that they put on, it is clear, even if you were to believe it, that clearly the bullet that killed [the victim] had to come from Dion Bush, both Maria Caban and [Johnson], from what he says about the circumstances, assuming he was there, and assuming you could believe him, both say through some means the only thing they either heard or observed, *397in the case of Mr. Johnson, is Mr. Robertson firing one shot into the air, not attempting to hit the person who was the target .... Which bullet killed [the victim], as if it has no relevance whatsoever, it has a lot of relevance." According to the petitioner, this closing argument amounted to "[e]ssentially ... prosecuting the petitioner."

In regard to the severance issue, the second habeas court concluded: "The credible evidence presented in the prior habeas [trial] established that both the petitioner and Robertson pursued defenses of denial that they committed the offenses and, therefore, were not presenting antagonistic defenses. There was no evidence that the petitioner could have strengthened his own case or arguments in support of severance. [The first habeas court] relied on the Supreme Court's decision in State v. Robertson , [254 Conn. 739, 760 A.2d 82 (2000) ] ... which addressed a preserved claim about severance, contrary to the petitioner's unpreserved claim on direct appeal, to conclude that the petitioner's and Robertson's defenses were not antagonistic.9 That *554is, there was no basis that necessitated severance of the codefendants' trials. [The first habeas court] also concluded that Attorney Gallucci, who testified about his tactical reasons for not seeking severance after the trial court had denied Robertson's motion for severance, utilized sound tactical judgment by not again requesting severance. ... [T]he petitioner has failed to show both deficient performance and the necessary prejudice." (Footnotes altered.)

The petitioner's claim is not that Trainer failed to raise the severance issue on appeal, but rather that her appellate brief did not persuasively or sufficiently articulate the severance claim. More precisely, the petitioner claims that the second habeas court erred in concluding that Trainer was not ineffective because she "failed to specifically document that (1) [Gallucci] had no tactical reason for failing to preserve the severance issue; (2) [the first habeas court's] finding that [our Supreme Court's] opinion in State v. Robertson , supra, [254 Conn. at 739, 760 A.2d 82 ] is dispositive of the petitioner's severance issue is in error; [and] (3) [the first habeas court's] determination that the codefendants did not have antagonistic defenses is not supported by the record."10

*555*398We conclude that Trainer adequately raised these issues in her appellate brief. On appeal from the denial of the petition for certification to appeal the denial of the first habeas petition, Trainer argued that the first habeas court's finding that Gallucci chose not move for severance on the basis of trial tactics was error.11 Trainer also objected to the first habeas court's reliance on State v. Robertson , supra, 254 Conn. at 739, 760 A.2d 82,12 and noted *556the allegedly antagonistic defenses of the petitioner and Robertson.13

Moreover, the petitioner has not persuaded us that the manner in which Trainer briefed the severance claim prejudiced him because he has not shown that Gallucci's performance was deficient or that his decision not to move for severance prejudiced the petitioner. In his testimony before the habeas courts, Gallucci advanced several tactical reasons why he chose not to move for severance, namely, that: (1) in his experience, joint criminal trials have the benefit of tending to sow reasonable doubt among jurors as to all *399defendants where the evidence suggests that only one defendant-but it is unclear which one-committed the act; (2) he did not want to draw the ire of the judge and jury by moving to sever on the heels of one such motion by Robertson; and (3) he believed that severance would better enable the prosecution to strike a deal with Robertson in which he would testify against the petitioner in exchange for a lesser sentence.

"[I]t is all too easy for a court ... to conclude that a particular act or omission of counsel was unreasonable ... [and that] [a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight ...." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction , supra, 285 Conn. at 577, 941 A.2d 248. As did the first habeas court, the second habeas court found that Gallucci had strong strategic reasons not to move for severance, and concluded that both the petitioner and Robertson *557pursued nonantagonistic defenses of denial during the criminal trial. Under a plenary standard of review, we conclude that the petitioner has not demonstrated error in the second habeas court's determination that Gallucci's strategic reasons for not moving to sever the trials were sound.

We also agree with the second habeas court's determination that the petitioner and Robertson did not pursue antagonistic defenses. Antagonistic defenses necessitating severance occur "[w]hen ... the jury can reasonably accept the core of the defense offered by either defendant only if it rejects the core of the defense offered by his codefendant .... To compel severance the defenses must be antagonistic to the point of being irreconcilable and mutually exclusive. ... Such compelling prejudice does not arise where the conflict concerns only minor or peripheral matters which are not at the core of the defense." (Citation omitted; internal quotation marks omitted.) State v. Booth , 250 Conn. 611, 621, 737 A.2d 404 (1999), cert. denied, 529 U.S. 1060, 120 S.Ct. 1568, 146 L.Ed.2d 471 (2000). "[W]e will reverse a trial court's ruling on joinder only where the trial court commits an abuse of discretion that results in manifest prejudice to one or more of the defendants." (Internal quotation marks omitted.) Id. at 620, 737 A.2d 404. The second habeas court looked favorably upon the findings of the first habeas court and adopted its reasoning. The first habeas court concluded that the petitioner's and Robertson's defenses were not antagonistic because they were not defenses of such a nature that in order for the jury to accept the defense of one defendant, it would have had to reject the defense of the other. It noted that the credible evidence established that both the petitioner and Robertson pursued defenses of denial and that both sought to attack the credibility of the state's witnesses, but did not succeed.

*558It further concluded that there was no basis for severance, and that even if Gallucci had renewed a motion for severance, it would have been denied. We observe that, before the jury could have begun to consider and determine which of the two defendants may have fired the fatal shot, it first would have had to reject their mutual, nonantagonistic defenses that they were not present.

Nor can we conclude that, had the petitioner succeeded in severing the trials, there was "a reasonable probability that the outcome of the proceedings would have been different ...." Johnson v. Commissioner of Correction , supra, 285 Conn. at 575, 941 A.2d 248. The petitioner has not identified any key piece of evidence that would have been excluded from his trial had the two trials been severed.14 In particular, *400the state still would have been able to present the testimony of Caban and Johnson, and Johnson's statement to the police, all of which implicated the petitioner as the person who shot the victim, as well as portions of "three tape-recorded telephone conversations between the [petitioner] and unidentified third parties ... indicat[ing] that [he] had been involved in plans to threaten Johnson and Caban in an attempt to influence their testimony." State v. Bush , supra, 249 Conn. at 429, 735 A.2d 778.

As the second habeas court noted, "the Appellate Court's [prior] review ... to determine whether the *559prior habeas court abused its discretion entailed review of this claim, the facts presented in support thereof, as well as the [first] habeas court's legal conclusions."15 The second habeas court further found, and we agree, that "[Trainer's] testimony [in the second habeas trial] did not provide any evidence helpful to the petitioner." We therefore agree with the second habeas court that the petitioner has neither shown that Trainer was deficient for failing to properly brief these issues, nor that the petitioner was prejudiced by Trainer's allegedly deficient performance with regard to the severance issue.

Accordingly, as to the severance issue, the petitioner has not "demonstrate[d] that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." (Internal quotation marks omitted.) Griffin v.

*560Commissioner of Correction , supra, 119 Conn.App. at 242, 987 A.2d 1037. Thus, as to this issue, we reject the petitioner's claim that the second habeas court abused *401its discretion in denying the petition for certification to appeal.

II

The petitioner also claims that Trainer did not provide effective assistance of counsel because she failed to adequately brief the issue of an alleged conflict of interest by Gallucci resulting from his representation of another client that rendered his representation of the petitioner ineffective. We do not agree.

The following additional facts, as set forth by the second habeas court, are relevant to this claim. "This alleged conflict of interest, according to the petitioner, arose from [Gallucci] representing the petitioner and also representing another defendant, one Jamar McKnight .... The petitioner's posttrial brief argues that he wants to 'alert the court of a more larger conflict issue. During the testimony, the petitioner testified that he was upset that [Gallucci] represented him at the same time [Gallucci] represented ... McKnight. McKnight was a case that was up on appeal at the time [Gallucci] represented [the petitioner]. The only relevance to this case is that the gun used by McKnight [in the crime that he had been convicted of] was also the same gun used here to kill the victim of this shooting. From a review of the whole record, it is clear that although the prosecutor [who prosecuted the petitioner also] prosecuted [McKnight], and although ... [Gallucci] also represented [the petitioner], neither counsel brought this fact to the attention of [the criminal trial court]. The petitioner believes that this was a reason that [Gallucci] never pursued a third-party culpability defense, namely, that [the petitioner] did not do this crime, but McKnight did. This is relevant because the [first habeas court] put that responsibility of bringing *561the conflict issue up to the trial court on the [petitioner], who was a juvenile when arrested, and in his early twenties when he went to trial. Neither attorney who tried this case brought this fact to the attention of the court, or [the criminal trial judge], so [the petitioner] could be asked whether he would waive any potential or actual conflict.' "

In addressing this claim, we apply the following standard of review pertaining to ineffective assistance of counsel claims based on an actual conflict of interest: "The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to effective assistance of counsel. ... As an adjunct to this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest. ... Thus, [t]he underlying right to conflict free representation is effective assistance of counsel. ...

"In a case of a claimed conflict of interest ... in order to establish a violation of [his constitutional rights] the [petitioner] has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance. ... Unlike other claims of ineffective assistance of counsel, where a petitioner claims that his counsel's performance was deficient because of an actual conflict of interest, prejudice does not need to be established. ... Instead, [w]here there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties." (Citations omitted; internal quotation marks omitted.) Hedge v. Commissioner of Correction , 152 Conn.App. 44, 50-51, 97 A.3d 45 (2014), cert. denied, 321 Conn. 921, 138 A.3d 282 (2016).

*562*402The second habeas court observed that "[t]he evidence presented ... encompasses [Wicker's] testimony about his investigation of [the first] habeas claims and which claims to pursue when he amended the petition. Senior Assistant State's Attorney [Cornelius] Kelly testified that he prosecuted McKnight and the petitioner, and was unaware of any connection between the cases. Both Wicker and Kelly recalled testimony by a firearms expert that the shells from the McKnight shooting were of a similar type compared to those from the Bush/Robertson shooting. [Gallucci] testified that he represented McKnight at trial and on appeal. Gallucci did not see any conflict of interest that arose during the course of his representation because he represented McKnight first and completed the direct appeal prior to representing the petitioner."

The second habeas court concluded that "the petitioner has failed to show that there was a conflict of interest that precluded [Gallucci] from representing the petitioner. There is no evidence that there was any linkage between the McKnight case and the petitioner's case, nor is there any evidence showing that the shells were fired from the same weapon.16 While the petitioner's allegations of ineffective assistance have now broadened to include habeas appellate counsel, the evidence is no greater than that presented to the first *563habeas court. ... [T]he Appellate Court's review of this claim to determine whether the prior habeas court abused its discretion entailed review of this claim, the facts presented in support thereof, as well as the habeas court's legal conclusions.17 Accordingly, this basis of ineffective assistance by [Trainer] also must fail." (Footnotes added.)

On appeal, the petitioner argues that Trainer failed to adequately brief the claim that Gallucci "could not have investigated McKnight because to do so would have violated his duty under the Rules of Professional Conduct, Rule 1.7." Due to this purported inability to conduct an investigation, the petitioner claims, Gallucci failed to provide effective representation.

Although it is not clear to us how rule 1.7 of the Rules of Professional Conduct18 *403prohibits an investigation of the type described by the petitioner, we conclude nonetheless that the issue of whether Gallucci labored under a conflict of interest is not "debatable among jurists of reason ...." (Internal quotation marks omitted.) *564Griffin v. Commissioner of Correction , supra, 119 Conn. App. at 242, 987 A.2d 1037. The second habeas court found credible Gallucci's testimony that McKnight had no involvement in the shooting for which the petitioner and Robertson were prosecuted and that he saw no link between the two cases aside from the petitioner knowing McKnight, and would have sought removal from the petitioner's case had he observed any link. Gallucci further indicated that the petitioner did not advise him that McKnight was or could have been the shooter. Our review of the record reveals nothing to disturb these findings.19 We must therefore conclude that Gallucci did not "actively [represent] conflicting interests ...." (Internal quotation marks omitted.) Hedge v. Commissioner of Correction , supra, 152 Conn.App. at 51, 97 A.3d 45. In other words, the petitioner cannot prevail on this claim because he has not progressed beyond a "mere theoretical division of loyalties"; (internal quotation marks omitted) Santiago v. Commissioner of Correction , 87 Conn.App. 568, 589, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005) ; and has failed to point to specific instances in the record that suggest compromise of his interests for the benefit of McKnight.20 Although it was established that the same *565gun was used in both crimes, the record fails to support the existence of an actual conflict of interest because no other evidence suggests a connection between the two crimes. Even if Gallucci had explored the possibility that McKnight was somehow involved in the shooting for which the petitioner was on trial, nothing in the record supports the theory that further investigation would have disclosed information supporting such conjecture.21 *404Finally, we note that Trainer's appellate brief squarely and extensively addressed the conflict of interest issue.22 *566Accordingly, with respect to this claim, the petitioner has not "demonstrate[d] that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." (Internal quotation marks omitted.) Griffin v. Commissioner of Correction , supra, 119 Conn.App. at 242, 987 A.2d 1037. We therefore conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.