Johnson v. Commissioner of Correction

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative. The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************  Johnson v. Commissioner of Correction RASHID JOHNSON v. COMMISSIONER OF CORRECTION (AC 47810) Alvord, Elgo and Clark, Js.* Syllabus The petitioner, who had been convicted after a jury trial of murder, felony murder and other crimes as a result of a shooting, appealed following the granting of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claimed, inter alia, that his trial counsel, C, rendered ineffective assistance in failing to request that the court vacate his murder conviction instead of his felony murder conviction. Held: The habeas court properly determined that C did not render ineffective assistance in failing to request that the jury be given an identification instruction pertaining to a witness who testified that he could not identify the petitioner as the shooter, and, even if it were assumed that C’s failure to request the instruction constituted deficient performance, the petitioner did not demonstrate that he was prejudiced, as he could not show that a reasonable probability existed that the outcome of his criminal trial would have been different had the instruction been given. The habeas court properly determined that C’s decision not to challenge the state’s DNA evidence did not constitute ineffective assistance, as it was well within the range of reasonable trial tactics for C to use the DNA evidence, which had a low probative value, to highlight the inadequacy of the state’s case and to support the petitioner’s third-party culpability defense. The petitioner could not prove that C rendered ineffective assistance in fail- ing to request that the trial court vacate the petitioner’s murder conviction instead of his felony murder conviction, as felony murder was not a lesser included offense of murder, the petitioner cited no authority that would have required C to request vacatur of the murder conviction, the felony murder conviction was cumulative of the murder conviction, and, under State v. Polanco (308 Conn. 242) and State v. Miranda (317 Conn. 741), it was appropriate to vacate the cumulative felony murder conviction. The petitioner did not demonstrate that C rendered deficient performance in failing to request that the jury be instructed to consider the murder charge first and to consider the felony murder charge only if it found him not guilty of murder, as the petitioner presented no authority to support his conten- tion, the proposed instruction was not required under law, and C’s failure to advocate for a change in the law that would require such a jury instruction did not constitute deficient performance. * The listing of judges reflects their seniority status on this court as of the date of oral argument.  Johnson v. Commissioner of Correction The petitioner’s appellate counsel, F, did not render ineffective assistance, as the petitioner claimed, in failing to argue that his murder conviction, rather than his felony murder conviction, should have been vacated and that the jury should have been required to consider the murder charge before considering the felony murder charge, as the petitioner offered no legal authority in support of those unpreserved claims and failed to explain how he was prejudiced by F’s failure to raise either claim. The habeas court properly dismissed the petitioner’s claims that the trial court erred in vacating his felony murder conviction and failing to provide certain instructions to the jury, as the petitioner procedurally defaulted on those claims by not raising them at his criminal trial or on direct appeal, and his assertion that the default was cured because his trial and appellate counsel had rendered ineffective assistance was unavailing, this court hav- ing rejected those claims. Argued May 26—officially released September 15, 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 dismissing the petition in part and denying the petition in part, from which the petitioner, on the granting of certification, appealed to this court. Affirmed. Mary F. Boehlert, assigned counsel, for the appellant (petitioner). Connor Reed, special deputy assistant state’s attorney, with whom, on the brief, were John P. Doyle, Jr., state’s attorney, and Silvina Bejleri, deputy assistant state’s attorney, for the appellee (respondent). Opinion ALVORD, J. The petitioner, Rashid Johnson, appeals from the judgment of the habeas court denying in part and dismissing in part his amended petition for a writ of habeas corpus. He claims that the court improperly rejected his claims of ineffective assistance on the part of both his trial and appellate counsel and concluded that the petitioner’s claims regarding trial court error were  Johnson v. Commissioner of Correction procedurally defaulted. We affirm the judgment of the habeas court. The following facts underlying the petitioner’s convic- tion, as set forth by this court in his direct appeal, are relevant to our resolution of this appeal. “On October 21, 2012, at 7:50 p.m., patrol officers of the New Haven Police Department responded to a 911 call reporting that a person had been shot at Brendan Towers, an apartment complex located at 461 Whalley Avenue. Upon arrival, police officers located the victim, Christian Garcia, who resided at an apartment on the second floor of Brendan Towers and was a known marijuana dealer. Garcia was pronounced dead at the scene; the cause of death was a gunshot wound. The area was secured and detectives pro- cessed the crime scene in which, among items of physical evidence, they located and seized four spent .40 caliber cartridge casings, all of which had been fired from the same handgun. They also located and seized three fired bullets, one of which was embedded in a door frame and the other two bore traces of what appeared to be wallboard and/or paint; they observed walls that bore indications of bullet damage. “On the same date, at approximately 8:02 p.m., police received a report that the [petitioner] walked into Yale- New Haven Hospital, Saint Raphael Campus, with a gunshot wound to his left knee. At the hospital, the [petitioner] told responding Officer Jason Jackson of the New Haven Police Department that while he was walk- ing on Whalley Avenue he heard three to four gunshots and felt a pain in his leg and ‘took off’ to the hospital. Acting on this information, Jackson went to canvass the area for a blood trail or spent shell casings, but found neither. He found no evidence indicating that a shooting had occurred at that location. “Detective Nicole Natale of the New Haven Police Department, who had been investigating the death of Garcia, went to the hospital to determine if the shoot- ings of Garcia and the [petitioner] were related. The [petitioner] told Natale that he had been shot in front of  Johnson v. Commissioner of Correction the Southern Hospitality Soul Food restaurant on the corner of Whalley and Ellsworth Avenues, and that he had decided to travel on foot to the hospital because he had no cell phone to call for assistance. Detectives, how- ever, examined the hospital surveillance camera footage, which showed the [petitioner] arriving at the emergency room in an automobile. A subsequent investigation led police to the automobile owner, Tywan Samuels, who acknowledged that he had picked up the [petitioner] on Norton Street and had driven him to the hospital on the evening of October 21, 2012. “On October 22, 2012, detectives interviewed Fernando Perez Morales (Perez), a resident of Brendan Towers, who was with Garcia moments before his death. During that interview, Perez provided the following informa- tion. On the morning of October 21, 2012, Perez bumped into Garcia in Brendan Towers at which time Garcia told him that he would call him later to come upstairs to his apartment to smoke marijuana together. When Garcia later called Perez, Perez left his first floor apartment and met Garcia in the hallway of the second floor. When Perez arrived, Garcia told him that he was meeting someone who was coming to purchase marijuana from him. Gar- cia explained that he wanted to have someone with him because he was concerned. When the customer arrived, Garcia was talking to someone who had called his cell phone. Perez described the customer as a young black man who was in his late teens to mid-twenties, stood several inches taller than Perez’ height of five feet, ten inches and was wearing a black hooded sweatshirt with a Monster Energy drink logo, black sweatpants and a ‘do rag’ on his head. After Garcia hung up the phone, the man said he wanted eight bags of marijuana and asked Garcia to show him the product. Garcia handed the man seven bags of marijuana, the man handed them all back to Garcia and then pretended that he was going to take out money but instead pulled out a handgun. Garcia shoved the man into a corner. Perez fled down the stairwell to the first floor when he heard four or five gunshots.  Johnson v. Commissioner of Correction “During the interview, police showed Perez a photo- graphic array to see if he could identify the man with the gun. Perez said he was not certain which photograph showed the man with the gun, but that photograph num- ber three, which was a photograph of the [petitioner], looked most like him. During his trial testimony, Perez was also unable to say whether the [petitioner] was the man he had seen with the gun and testified that he did not see the man fire the gun. “On October 23, 2012, after being released from the hospital, the [petitioner] voluntarily went to the police station with detectives who conducted a video recorded interview. During the interview, the [petitioner] was shown a photograph of Garcia in response to which he denied knowing Garcia and having any dealings with persons in the Brendan Towers. Next, the [petitioner] denied having a cell phone, but provided the police with a number after telling them that he had lost the phone on the morning of October 21, 2012. Shortly after the [petitioner] left the police station at noon, his cell phone, which had been inactive during his hospitalization, was activated and used to place a call to a phone that was registered to the mother of a female acquaintance of the [petitioner]. In addition, the police obtained cell phone records from the [petitioner’s] cell phone that revealed several outgoing and incoming calls throughout the entire day of October 21, 2012. The cell phone records also confirmed that there was a cell phone call between the [petitioner] and Garcia moments prior to the murder. Moreover, detectives interviewed Garcia’s father who, after being shown seven photographs, identified the photograph of the [petitioner] as a person who had stayed at Garcia’s apartment in Brendan Towers in the past. “After further investigation, on May 6, 2013, the police arrested the [petitioner] pursuant to a warrant charging him with Garcia’s murder. In February, 2014, an intelligence officer employed by the Department of Correction reviewed a letter that had been handwrit- ten by the [petitioner] while he was incarcerated at the  Johnson v. Commissioner of Correction Northern Correctional Institution. The letter was dated February 6, 2014, and addressed to Christopher Graham by his street name ‘Ugg’ and was contained in an enve- lope addressed to Graham’s girlfriend in New Haven. The letter provided in pertinent part: ‘They don’t got shit. It’s just this one dumb ass Poppy that live in them buildings where the freaking shit went down. His name Fernando Perez. His brother stay up there, he live wit[h] him. Ro might know what door he live at, but be smart bro, because wit[h]out him, they hit, because wit[h] him they all set . . . .’ The [petitioner] put his correct name and inmate number on the letter. The parties stipulated that this letter had been written by the [petitioner]. “Following a trial, the jury returned a verdict finding the [petitioner] guilty of murder, felony murder, robbery in the first degree and carrying a pistol without a permit. The court sentenced the [petitioner] to forty years of incarceration, followed by ten years of special parole.” (Footnotes omitted.) State v. Johnson, 171 Conn. App. 328, 330–34, 157 A.3d 120, cert. denied, 325 Conn. 911, 158 A.3d 322 (2017). On December 15, 2023, the petitioner filed an amended petition for a writ of habeas corpus, claiming, in relevant part, ineffective assistance of trial counsel in his criminal trial and ineffective assistance of appellate counsel in his direct appeal, as well as related errors made by the trial court. With respect to his trial counsel, the petitioner claimed in counts one through four of his petition that Attorney Glenn M. Conway was ineffective because he failed (1) to request a jury instruction on identification of the petitioner; (2) to object to DNA evidence presented by the state; (3) to argue that the petitioner’s murder conviction, rather than his felony murder conviction, should be vacated; and (4) to request a jury instruction requiring jurors to first consider the murder charge and to consider the felony murder charge only if they found him not guilty on the murder charge. With respect to the alleged errors made by the trial court, the petitioner claimed in counts five and six of the petition that the  Johnson v. Commissioner of Correction court had improperly vacated the felony murder con- viction, rather than the murder conviction, and had failed to instruct the jurors to first consider the murder charge and to consider the felony murder charge only if they found him not guilty of murder. In counts seven and eight of the petition, the petitioner claimed that his appellate counsel, Attorney Daniel Foster, had rendered ineffective assistance because, on direct appeal, he failed to raise claims arising from the aforementioned alleged trial court errors. On January 30, 2024, the respondent, the Commis- sioner of Correction, filed a return in which he claimed that counts five and six of the amended habeas petition were procedurally defaulted. On February 9, 2024, the petitioner filed a reply asserting that his claims were not procedurally defaulted and, alternatively, that “he is able to overcome default as he can prove cause and prejudice.” The habeas court, Bhatt, J., conducted a trial on April 29, 2024, in which it heard testimony from Attorney Conway and Attorney Foster. The petitioner submit- ted as exhibits transcripts from his criminal trial. In its memorandum of decision, issued May 24, 2024, the court denied the petitioner’s claims of ineffective assistance on the part of both trial counsel and appellate counsel and dismissed the claims alleging trial court error on the ground that they were procedurally defaulted. The court granted the petitioner’s petition for certification to appeal. This appeal followed. Additional facts and procedural history will be provided as necessary. I The petitioner first claims that “the habeas court erro- neously concluded [that he] failed to establish his bur- den of demonstrating that his trial counsel, [Attorney] Conway, provided ineffective assistance of counsel and prejudiced the petitioner.” The petitioner maintains that his trial counsel provided ineffective assistance by failing to “(i) request a jury instruction on identification; (ii) object to the admission of DNA evidence as being more  Johnson v. Commissioner of Correction prejudicial than probative; (iii) argue that the murder charge should have been vacated instead of the felony murder charge, and (iv) request a jury instruction that required the jury to consider the murder charge first and only consider felony murder if murder was not proven.” We are not persuaded. We first set forth the well settled standard of review governing challenges to a habeas court’s judgment on ineffective assistance of counsel claims. “The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. . . . Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of wit- nesses and the weight to be given to their testimony. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review. . . . “A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washing- ton, [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. This right arises under the sixth and four- teenth 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 effective assistance of counsel. . . . A claim of ineffec- tive assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . To satisfy the prejudice prong, [the petitioner] must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The  Johnson v. Commissioner of Correction claim will succeed only if both prongs are satisfied. . . . Consequently, [i]t is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.” (Internal quotation marks omitted.) Raynor v. Commissioner of Correction, 222 Conn. App. 584, 600–601, 306 A.3d 25 (2023), cert. denied, 348 Conn. 944, 307 A.3d 910 (2024). With respect the performance prong, the following legal principles guide our review. “[J]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] 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 par- ticular 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 assistance; 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 affir- matively entertain the range of possible reasons . . . counsel may have had for proceeding as [he] did . . . .” (Emphasis in original; internal quotation marks omit- ted.) Id., 610–11. We note, however, that “[a] court need not deter- mine the deficiency of counsel’s performance if con- sideration of the prejudice prong will be dispositive of  Johnson v. Commissioner of Correction the ineffectiveness claim.” (Internal quotation marks omitted.) Mercado v. Commissioner of Correction, 183 Conn. App. 556, 562–63, 193 A.3d 671, cert. denied, 330 Conn. 918, 193 A.3d 1211 (2018). Thus, when a habeas court “determine[s] that the petitioner ha[s] not proven that he was prejudiced by the performance of his trial counsel, our focus on review is whether the [habeas] court correctly determined the absence of prejudice. . . . With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. . . . It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Rather, [t]he [petitioner] must show that there is a rea- sonable probability that, but for counsel’s unprofes- sional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.” (Internal quotation marks omit- ted.) Raynor v. Commissioner of Correction, supra, 222 Conn. App. 616. A The petitioner claims that the habeas court improperly concluded that Attorney Conway’s failure to request that the jury receive an identification instruction did not amount to ineffective assistance. He argues that, due to this failure, Attorney Conway’s representation fell below the standard of reasonable competence that is expected of defense counsel. We are not persuaded. The following facts and procedural history are rel- evant to our review. At the petitioner’s criminal trial, Perez testified that the day after Garcia was killed, he spoke with the police and that, when they provided him with a photographic array, he told the police, “I’m not sure . . . who did it.” In his testimony, Perez confirmed  Johnson v. Commissioner of Correction that he had selected number three out of the group of photographs and wrote in his witness comment, “I saw the photos, and the one that looks the most like him, it’s number three.”1 When the prosecutor asked Perez if the person with the gun that night was in the courtroom, Perez testified, “I’m unable to say because I’m not sure who the person is . . . .” On cross-examination, Attorney Conway inquired about the photograph Perez selected during his interview with the police, asking, “[y]ou didn’t pick out somebody who you—you’re not saying that that person is the per- son that you saw that night, correct,” to which Perez responded, in part, “[n]o, never I say that was the person. I said they could, like, could be—no. That could be the person, like, he not could be the person.” When asked whether he could make an in-court identification of the petitioner as the man who had the gun that night, Perez responded, “I’m not saying that it’s him, I’m not saying it’s not him, and I can’t say for sure that it’s him. When the incident took place, I just saw him but he had a hoodie on, it was dark, he had a do-rag, and I can’t be certain that it was him or not.” Attorney Conway also asked Perez: “[Y]ou never saw that person even fire a gun?” to which Perez responded in relevant part: “No.” Later, when Attorney Conway sought to confirm that Perez had told the police that he would not be able to identify the person with the gun, Perez testified: “I told them that I couldn’t identify the person exactly because I didn’t get to see the face. The person wasn’t looking at me.” At the habeas trial, Attorney Conway testified that, to his recollection, this case involved an identity issue, explaining that “the only two people in that hallway [were] the victim and whoever shot him. And being as the victim had died, there was nobody else who could identify [the petitioner]. That’s my recollection.” He also testified that he remembered Perez testifying that he witnessed 1 The witness comment was presented as evidence as part of a state’s exhibit. The comment was written in Spanish and, at trial, Perez con- firmed that he wrote the comment, which was then translated into English by the court’s Spanish-speaking interpreter.  Johnson v. Commissioner of Correction the initial altercation, fled down the stairs and then heard four or five gunshots. When asked whether he recalled that Perez “was able to pinpoint [the petitioner] from a photo[graphic] array and testified to what he saw during the course of the trial,” Attorney Conway responded, “[y]es.” Later, when asked by the petitioner’s counsel whether he had requested an identity instruction at the criminal trial, Attorney Conway responded in part that “[the eyewitness identification instruction] would have been a standard request that I would have made.” Shortly thereafter, when asked if Perez had identified the petitioner, Attorney Conway recalled: “I think [Perez] identified that there was a person who pulled a gun in the course of a transaction. I don’t believe he [identified] [the petitioner]. I had a private investigator actually speak to him, and he was very reluctant to come in. . . . [M]y recollection is, he couldn’t positively identify [the petitioner].” In his posttrial brief, the petitioner argued that Attor- ney Conway should have requested the following instruc- tion: “In this case, the state has presented evidence that an eyewitness identified the [petitioner] in connection with the crime charged. Identification is a question of fact for you to decide, taking into consideration all the evidence that you have seen and heard in the course of the trial. The identification of the [petitioner] by a single witness as the one involved in the commission of a crime is, in and of itself, sufficient to justify a conviction of such a person, provided, of course, that you are satisfied beyond a reasonable doubt of the identity of the [peti- tioner] as the one who committed the crime.” In its memorandum of decision, the habeas court made the following findings: “Attorney Conway testified that he would have requested [an identification] instruction. The record reveals that no such instruction was given; however, the requests made by the defense are not on the record and have not been provided to this court.” The court concluded that, “[e]ven assuming deficient perfor- mance, [the petitioner] has not demonstrated prejudice.”  Johnson v. Commissioner of Correction We agree with the habeas court that, even assuming that Attorney Conway had rendered deficient perfor- mance, the petitioner has not demonstrated prejudice. In his appellate brief, the petitioner argues that “[h]ad [Attorney] Conway requested the jury receive the iden- tification instruction it would have emphasized to the jury that there was no direct eyewitness that testified or identified the petitioner as the shooter.” It is unclear, however, how an instruction that “the state has presented evidence that an eyewitness identified the [petitioner] in connection with the crime charged” would emphasize that there was “no direct eyewitness” testimony. Perez testi- fied that he could not positively identify the petitioner as the man he saw with the gun, and Attorney Conway elicited testimony on cross-examination that emphasized the lack of eyewitness identification. Accordingly, the petitioner cannot demonstrate prejudice because he has not shown that there is a reasonable probability that the outcome of his criminal trial would have been different. B The petitioner next challenges the habeas court’s con- clusion that Attorney Conway’s decision not to challenge the DNA evidence offered by the state did not amount to deficient performance or prejudice him. The peti- tioner asserts that “there is no tactical justification for [Attorney] Conway not challenging the DNA evidence coming in as evidence, as it was more prejudicial than probative.” We disagree. The following facts and procedural history are relevant to our review of this portion of the claim. At the peti- tioner’s criminal trial, the state’s DNA expert, Steven Bryant, testified on direct examination that a DNA pro- file was obtained from the surface of one of the bullets and that “[the petitioner] was consistent with being the source of that DNA profile.” Bryant further testified that “[t]he expected frequency of individuals who could be the source of that DNA profile is one in two in the African American population, one in three in the Cau- casian and Hispanic populations, approximately.” On  Johnson v. Commissioner of Correction cross-examination, Attorney Conway noted that there are thirty million African Americans in the United States and, shortly thereafter, asked, “[s]o if I understand the statistic, then . . . what you’re saying is, it’s conceivable that there are 15 million other people who . . . could—that sample could’ve been consistent with just in the United Stated alone?” Bryant responded, “[y]ou would expect to find approximately 15 million African Americans that would match that profile, yes.” Further on in the colloquy, the trial court sought clarification from Bry- ant and asked, “[y]ou can’t say with confidence that this was an African American who was a DNA contributor?” Bryant responded, “[c]orrect.” During his closing argument, Attorney Conway raised doubts concerning the evidentiary value of the DNA evidence, stating, in part, “there were approximately 70 million to 100 other—million—Americans who fit that profile who it could’ve been ‘consistent’ with. . . . [T]he state doesn’t have to prove their case to an absolute certainty, but they’re going to have to do better than the same DNA as to 70 to 100 million other people.” At the habeas trial, Attorney Conway testified that, based on the circumstantial evidence showing that the petitioner was at the location of the shooting, the theory of defense was that the petitioner “had gone there to buy some weed from Mr. Garcia and that there was somebody else who intervened to rob Mr. Garcia, and they came from a side door. And it matched up pretty well with the bullets—where the bullet holes were in the walls and the angles of the trajectories. You know, it wasn’t a bad—it was a viable . . . third-party liability scenario.” He confirmed that, in light of this theory of defense, he sought to use the DNA evidence to the petitioner’s advantage. Later, when the habeas court asked if it was his testimony that he did not seek to preclude the DNA testimony, Attorney Conway elaborated: “Well, I don’t recall if I sought to preclude it and it came in over my objection. I don’t recall on that issue. Part of my thought process—because of the nature of the mixture—I was so  Johnson v. Commissioner of Correction used to having the one in seven billion testimony come in that when I had this, you know, watered-down statistic, part of me, I think, thought that, great, I can actually use this to our advantage to show that it’s a positive thing. It proves nothing.” In its memorandum of decision, the court found that “Attorney Conway testified that he believed the DNA testimony that could not exclude [the petitioner] was helpful to their theory that there was a third party” and concluded that “[t]here [was] no deficient performance . . . .” As this court repeatedly has noted, “[t]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency . . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment. . . . It is well established that [a] reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time.” (Internal quotation marks omitted.) Raynor v. Commissioner of Correction, supra, 222 Conn. App. 611–12. In the present case, the theory of defense was third- party culpability, and Bryant testified that one would expect to “find approximately 15 million African Ameri- cans that would match th[e] profile” of the DNA in evi- dence. At the habeas trial, Attorney Conway testified that he sought to use the DNA evidence as a means of highlighting the inadequacy of the state’s evidence while advancing the theory that another person was responsible for the shooting. In light of Bryant’s testimony and the low probative value of the DNA evidence, we find that it was well within the range of reasonable trial tactics for Attorney Conway to use the DNA evidence to support the petitioner’s third-party culpability defense. The habeas court, therefore, properly determined that Attorney Conway’s decision not to object to the DNA evidence did not amount to deficient performance.  Johnson v. Commissioner of Correction C The petitioner next challenges the habeas court’s con- clusion that Attorney Conway’s failure to ask that the trial court vacate the murder conviction instead of the felony murder conviction did not amount to deficient performance. He contends that “[Attorney] Conway did not consult with his client and did not advocate for his client. Had he, the petitioner contends, the trial court would have vacated the . . . murder [charge], as it was not bound to only vacate the felony murder conviction.” We are not persuaded. The following procedural history is relevant to our resolution of this portion of the claim. At the petitioner’s sentencing, the trial court sought counsel’s input with respect to the count of felony murder because the peti- tioner also had been convicted of murder. The court noted the guidance in our Supreme Court’s decision in State v. Adams, 308 Conn. 263, 272–73, 63 A.3d 934 (2013), defining felony murder as a type of murder. When the trial court asked counsel for their respective positions on addressing the second count of felony murder, Attorney Conway stated, “I would move to vacate the verdict on the second count as indicated in that case. Felony murder is an alternative means of committing murder, and that being the case, I think it would be appropriate for the court to vacate . . . the verdict on the second count.” The court then recognized another legal development, stating that “State v. [Polanco, 308 Conn. 242, 61 A.3d 1084 (2013)] says now we should vacate the lesser included offense. This is a little bit different because felony mur- der is not a lesser included offense of murder, but it is essentially a duplicative count and the question arises that . . . frankly, none of us I think, it’s fair to say, have the definitive answer for whether—for purposes of this sentencing hearing—the felony murder count ought to be treated in the same way as a lesser included offense.” The prosecutor raised his concern as it related to the potential for appeal, stating, “[i]f Your Honor vacates felony murder and sentences only on the first count, what if that first count gets reversed, vacated, or something  Johnson v. Commissioner of Correction like on some kind of an appeal?” When the court made its decision to vacate the felony murder conviction, it responded to this concern by vacating it “without preju- dice to reconsideration if the [murder] conviction . . . is . . . reversed for any reason.” At the habeas trial, Attorney Conway testified that he did not recall the trial court vacating the felony murder conviction but remembered that the petitioner was not sentenced on both the murder and felony murder convic- tions. At one point, Attorney Conway testified that “[i]t would not have a practical difference to raise the issue of which conviction should have been vacated.” Conversely, he confirmed that, if the petitioner were to win on an evidentiary claim, the petitioner would have received a new trial. Attorney Conway also testified that he did not recall any case law that would have supported the claim that the murder conviction, instead of the felony murder conviction, should have been vacated and stated that, if he had thought he would succeed in raising such a claim, he would have done so. In its memorandum of decision, the habeas court concluded that “[t]here is no deficient performance because [the petitioner] cannot show that there is any such requirement in our law” that Attorney Conway should have asked the court to vacate the murder conviction. In his appellate brief, the petitioner similarly has not cited any legal authority that would have required Attor- ney Conway to request that the murder conviction be vacated. The petitioner maintains that Attorney Conway “should have argued that the court’s reliance on Polanco was misplaced” because that case addressed a double jeopardy issue arising from a conviction of a crime and its lesser included offense, whereas, here, the felony murder conviction was not a lesser included offense of murder. As the habeas court explained, however: “[The petitioner] ignores State v. Miranda, 317 Conn. 741, 120 A.3d 490 (2015), in which our Supreme Court extended the vacatur remedy to cumulative homicide convictions arising from the same incident. In that case,  Johnson v. Commissioner of Correction the court held ‘that the remedy set forth in Polanco should extend to scenarios like the defendant’s, thus making it appropriate to vacate his cumulative felony murder conviction.’ [Id.] 751. Thus, the remedy in this case was appropriate. While it is true that Miranda was issued a few months after [the petitioner’s] sentencing, our Supreme Court’s decision in Polanco already foretold this outcome in dicta. State v. Polanco, supra, 308 Conn. 249 n.3 (‘we are aware of no reason why our holding, of logical necessity, would not apply with equal force to other scenarios in which cumulative convictions vio