Ineffective Assistance of Appellate Counsel In Connecticut

In rejecting the claim of ineffective assistance of appellate counsel for not pursuing the suppression issue on direct appeal, the habeas court found that appellate counsel followed the strategy of trial counsel. The court found that appellate counsel concentrated on a direct attack on the lack of sufficient identification and could not raise on appeal an issue not raised at trial, that is, suppression of a suggestive out-of-court identification. Accordingly, the court concluded that the petitioner had not proven that either trial counsel's performance or appellate counsel's performance was deficient. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "'This court does not retry the case or evaluate the credibility of the witnesses.' State v. Amarillo, [198 Conn. 285, 289, 503 A.2d 146 (1986)]." State v. Taylor, 23 Conn. App. 426, 429, 580 A.2d 1004 (1990). "'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.'" State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). "In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony." Clarke v. Commissioner of Correction, 43 Conn. App. 374, 386, 682 A.2d 618, appeal dismissed, 249 Conn. 350, 732 A.2d 754 (1999). We cannot, in a habeas corpus appeal, disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Siano v. Warden, 31 Conn. App. 94, 95, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993). Further, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland v. Washington, supra, 466 U.S. 689; see also Johnson v. Commissioner of Correction, 222 Conn. 87, 98, 608 A.2d 667 (1992); Valeriano v. Bronson, 12 Conn. App. 385, 393-94, 530 A.2d 1100 (1987), aff'd, 209 Conn. 75, 546 A.2d 1380 (1988).