Alvarez 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. ************************************************  Alvarez v. Commissioner of Correction JORGE ALVAREZ v. COMMISSIONER OF CORRECTION (AC 48298) Alvord, Elgo and Pellegrino, Js. Syllabus The petitioner, who previously had been convicted of murder in the shooting death of the victim, appealed following the denial of his petition for certifi- cation to appeal from the habeas court’s judgment denying his petition for a writ of habeas corpus. He claimed, inter alia, that the court improperly rejected his claim of ineffective assistance on the part of his prior habeas counsel, D. Held: The habeas court did not abuse its discretion in denying the petition for certification to appeal, as the petitioner failed to demonstrate that his claim involved issues that were debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions were adequate to deserve encouragement to proceed further. The petitioner could not prevail on his claim that D rendered ineffective assistance by failing to claim that the petitioner’s criminal trial counsel, A, who did not testify at the habeas trial, had rendered ineffective assistance regarding the questioning of a witness, Y, who had allegedly given the police an unsigned written statement, as the habeas court was not presented with evidence of A’s rationale for his questioning, A may have made a tactical decision not to question Y about the statement or deliberately declined to question him about it once it became clear that the statement would constitute inadmissible hearsay, and, even if D had rendered deficient performance, the petitioner could not establish that he was prejudiced, as Y testified unequivocally at the habeas trial that another witness to the shooting had not made any statements to him about the shooter’s identity, Y had no recol- lection of making a statement to the police, and there was no evidence that his statement would have been admitted at the petitioner’s criminal trial. The habeas court correctly concluded that the petitioner failed to prove his claim of actual innocence by clear and convincing evidence, as the testimony of witnesses at the habeas trial did not constitute newly discovered evidence, and the documents the petitioner proffered were either available at the time of his criminal trial or were not admitted into evidence at his habeas trial. Argued April 14—officially released August 18, 2026 Procedural History Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Streeto, J., granted the respondent’s motion to preclude certain evidence and granted in part  Alvarez v. Commissioner of Correction the respondent’s motion to dismiss; thereafter, the peti- tion was withdrawn in part; subsequently, the case was tried to the court, Streeto, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed. Deren Manesevit, assigned counsel, for the appellant (petitioner). Olivia M. Hally, 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 ELGO, J. The petitioner, Jorge Alvarez, appeals fol- lowing the denial of his petition for certification to appeal from the judgment of the habeas court denying his peti- tion for a writ of habeas corpus. He claims that the court abused its discretion by denying his petition for certifi- cation to appeal and improperly rejected his ineffective assistance of counsel and actual innocence claims. We conclude that the habeas court properly denied the peti- tion for certification to appeal and, accordingly, dismiss the appeal. This case involves a homicide in New Haven. As our Supreme Court recounted in the petitioner’s direct appeal, “[a]t approximately 2 a.m. on January 16, 1988, the victim, Eugene Mabery, was returning home from a friend’s house when he passed by the Oasis Club in New Haven. While outside the club, Mabery became involved in an altercation with Johnnie Baker. A crowd of spectators, including Pamela McCrea and Kenneth Hazard, gathered to watch the fight. After the fighting was halted, and while Mabery was attempting to retrieve a plastic bag containing his gym clothes, the [petitioner] drew a gun and shot him in the upper body. Mabery immediately bent over, exclaimed that he had been shot, gathered his belongings and ran from the scene. A few  Alvarez v. Commissioner of Correction days later . . . his body was found . . . in the backyard of a nearby home. He had died from a gunshot wound to his chest.” State v. Alvarez, 216 Conn. 301, 303, 579 A.2d 515 (1990). The petitioner thereafter was arrested and a trial fol- lowed, at the conclusion of which the jury found him guilty of murder in violation of General Statutes § 53a- 54a. The trial court rendered judgment accordingly and sentenced the petitioner to a term of life imprisonment. Id., 302. The petitioner directly appealed from that judg- ment of conviction, which our Supreme Court affirmed. See id., 320. The petitioner filed his first habeas action in 1990, which he subsequently withdrew. On March 8, 2000, the petitioner commenced his second habeas action. In his operative petition for a writ of habeas corpus, the petitioner alleged that his criminal trial counsel had rendered ineffective assistance by failing (1) to prepare an alternative ground for the admissibility of a statement given by Hazard, (2) to conduct an adequate investiga- tion, and (3) to object to certain statements made by the prosecutor during closing argument. See Alvarez v. Commissioner of Correction, 79 Conn. App. 847, 849–52, 832 A.2d 102, cert. denied, 266 Conn. 933, 837 A.2d 804 (2003). Following a trial, the habeas court rejected those claims and dismissed the petition. See Alvarez v. Warden, Docket No. CV-00-554379, 2002 WL 31255564 (Conn. Super. September 10, 2002). From that judgment, the petitioner unsuccessfully appealed to this court. See Alvarez v. Commissioner of Correction, supra, 852. The petitioner commenced a third habeas action in 2014. His operative petition, the January 12, 2021 amended petition for a writ of habeas corpus, contained four counts and alleged actual innocence, a due process violation, ineffective assistance on the part of his crimi- nal trial counsel, and ineffective assistance on the part of his habeas counsel in his second habeas action.1 1 In count four of the operative petition, the petitioner alleged in rel- evant part that his “right to the effective assistance of habeas counsel”  Alvarez v. Commissioner of Correction Prior to the start of trial, the petitioner withdrew his due process claim. The habeas court also heard argu- ment from the parties on a motion to dismiss filed by the respondent, the Commissioner of Correction, on succes- sive petition and abuse of writ grounds. The court then granted that motion in part, concluding that the doctrine of res judicata barred the petitioner’s ineffective assis- tance of counsel claim against his criminal trial counsel. A two day trial followed, at which the petitioner offered the testimony of Jeffrey Perry, Lamont Young, McCrea, Joseph Greene, a former detective with the New Haven Police Department who investigated the January 16, 1988 shooting, and Attorney Sebastian O. DeSantis, who served as habeas counsel to the petitioner in the second habeas action. Neither the petitioner nor his criminal trial counsel, Attorney Milo J. Altschuler, testified at the habeas trial. In addition, the petitioner offered documentary evidence, including the transcripts from the petitioner’s criminal trial and the trial of his second habeas action. In its subsequent memorandum of decision, the habeas court concluded that the petitioner had not established deficient performance on the part of DeSantis for fail- ing to raise an ineffective assistance claim in the second habeas action regarding Altschuler’s alleged failure to adequately present the testimony of Young at the had been violated, that his “habeas counsel’s performance was deficient,” and that there was “a reasonable probability that—but for [his] habeas counsel’s deficient performance—the result of [his] habeas proceeding would have been different . . . .” The petitioner did not specify whether those allegations pertained to his counsel’s performance in the first habeas action, which the petitioner withdrew without a trial or adjudi- cation by the court, or his counsel’s performance in the second habeas action, which was dismissed by the court following a habeas trial. On June 28, 2024, the respondent filed a motion in limine to preclude any evidence relating to the petitioner’s purported ineffective assis- tance claim regarding his habeas counsel’s performance in the first habeas action. After hearing argument from the parties, the habeas court granted that motion and thereafter confined its consideration of the petitioner’s claim to the conduct of the petitioner’s counsel in the second habeas action. The petitioner does not contest the propriety of that determination in this appeal.  Alvarez v. Commissioner of Correction petitioner’s criminal trial.2 The court further concluded that the petitioner had not demonstrated prejudice resulting therefrom. In addition, the court concluded that the petitioner had not satisfied his burden of proving his actual innocence by clear and convincing evidence. Accordingly, the court denied the petition for a writ of habeas corpus. The court subsequently denied the peti- tion for certification to appeal, and this appeal followed. On appeal, the petitioner claims that the habeas court abused its discretion in denying the petition for certifica- tion to appeal. Our standard of review for such claims is well established. “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 habeas corpus only by satisfying the two-pronged test enunci- ated 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, [the petitioner] 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 the merits. . . . A petitioner may establish an abuse of discretion by dem- onstrating 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 determining 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.” (Citation omitted; internal quotation marks omitted.) 2 The habeas court also concluded that the petitioner had not estab- lished deficient performance with respect to his claims that Altschuler had failed to adequately (1) present testimony from Hazard, (2) cross- examine and impeach the testimony of Greene, (3) present evidence of an incomplete and biased police investigation, and (4) present a defense of third-party culpability. The petitioner has not challenged those determinations in this appeal.  Alvarez v. Commissioner of Correction Ramos v. Commissioner of Correction, 172 Conn. App. 282, 294, 159 A.3d 1174, cert. denied, 327 Conn. 904, 170 A.3d 1 (2017). I INEFFECTIVE ASSISTANCE OF COUNSEL The petitioner contends that the habeas court improp- erly rejected his claim that DeSantis had rendered inef- fective assistance by failing to raise a claim of ineffective assistance regarding Altschuler’s questioning of Young at the petitioner’s criminal trial. We disagree. At the outset, we note that, “[t]o succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must dem- onstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment. . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Bowens v. Commis- sioner of Correction, 333 Conn. 502, 537–38, 217 A.3d 609 (2019). An ineffective assistance of habeas counsel claim “is commonly known as a habeas on a habeas, namely, a sec- ond petition for a writ of habeas corpus . . . challenging the performance of counsel in litigating an initial petition for a writ of habeas corpus . . . [that] had claimed inef- fective assistance of counsel at the petitioner’s underly- ing criminal trial or on direct appeal. . . . [A] petitioner asserting a habeas on a habeas faces the herculean task . . . of proving . . . both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. . . . The second habeas petition is inextricably interwoven with the merits of the original judgment by  Alvarez v. Commissioner of Correction challenging the very fabric of the conviction that led to the confinement.” (Citation omitted; internal quotation marks omitted.) Santaniello v. Commissioner of Cor- rection, 230 Conn. App. 741, 749, 331 A.3d 739, cert. denied, 351 Conn. 926, 333 A.3d 1109 (2025). Accord- ingly, to prevail on an ineffective assistance of habeas counsel claim, a petitioner must satisfy “the Strickland standard twice by establishing that both prior habeas counsel and trial or appellate counsel were ineffective.” (Emphasis in original.) Dearing v. Commissioner of Cor- rection, 230 Conn. App. 145, 173, 329 A.3d 988, cert. denied, 351 Conn. 910, 331 A.3d 158 (2025). A The petitioner first challenges the habeas court’s con- clusion that Altschuler did not render deficient perfor- mance by failing to adequately question Young regarding a statement that Young allegedly had made to the police in 1988. The following additional facts, as found by the habeas court or are otherwise undisputed, are relevant to that claim. Young testified at the petitioner’s criminal trial. Young, who was seventeen years old at that time, testi- fied that he was at a phone booth near the Oasis Club in the early hours of January 16, 1988. When an alterca- tion began outside that club, Young testified that he hid behind a tree and watched two individuals fight for approximately ten seconds. Young then heard a gunshot and saw one of the individuals hold his stomach and run into an alleyway. Young testified that he could not rec- ognize and did not know either of the two participants in the altercation. On cross-examination, Young confirmed that, at the time of the altercation, Hazard was standing next to him. Young clarified that Hazard was “not [his] friend” but, rather, was an acquaintance. In addition, Young testified that he had spoken to Detectives Gilbert Burton and Greene the week after the shooting. Later in his cross-examination, Altschuler asked Young if he “ever [told] anybody that the person named  Alvarez v. Commissioner of Correction [Rasheem] did the shooting?” The prosecutor objected and, after excusing the jury, the trial court asked Altschuler if he was “prepared to offer evidence that [Young] did make [the] statement you just asked him about.” Altschuler responded that he was prepared to offer such evidence but explained that “[t]he problem is the person that [Young] reports indicated he made the statement to is not available as of yet. I do have infor- mation that he made this statement, yes.” The March 14, 1989 transcript indicates that a discussion then was held off the record, at the conclusion of which the court noted that Altschuler had “shown [the prosecutor] something.” The prosecutor then withdrew his objection to Altschuler’s question, and the court stated: “[A]s long as [Altschuler] has a good faith basis for asking the question, it is a legitimate question, even though, for whatever reason, it may develop that such evidence is never hereafter put on, the subpoena is out.” When the jury was recalled, Altschuler declined to re-ask Young the question of whether Young had told anyone that a person named Rasheem was the shooter and instead pursued other lines of inquiry. At the habeas trial in the present case, Young con- firmed that he had witnessed a fight outside the Oasis Club on January 16, 1988, and that he had testified at the petitioner’s criminal trial. The following colloquy ensued between the petitioner’s counsel and Young: “Q. . . . Did [Hazard] make a statement to you indicat- ing that he recognized the shooter? “A. No. “Q. Do you recall whether [Hazard] made any state- ment to you? “A. No. “Q. No, he did not? Or, no, you do not recall? “A. No, he did not make any statements to me.” The petitioner’s counsel then asked Young if he had given “a statement to the police regarding this fight  Alvarez v. Commissioner of Correction outside the Oasis Club,” to which Young replied: “No, I don’t remember.” Young also testified that he did not recall speaking to Greene about the altercation. The petitioner’s counsel then sought to refresh Young’s recol- lection by reviewing a “statement allegedly given by you to the police.” A copy of an unsigned police statement allegedly made by Young and dated January 28, 1988, was admitted into evidence as an exhibit and shared with Young.3 In that statement, Young allegedly indicated that he had witnessed the fight that culminated in the shooting outside the Oasis Club on January 16, 1988, and that he did not know either of the two individuals involved in that incident. Young allegedly stated that, after the fight was over, Hazard had informed him that a “guy named Rasheem” was the shooter. The statement further indicates that Hazard allegedly had told Young that “the guy that got shot [in the January 16, 1988 altercation], that was his cousin,” and that Hazard “said he hates the guy Rasheem” and said that he “can’t stand him.” In that statement, Young also indicated that he did not know the identity of “Rasheem.” After reviewing that exhibit, Young testified that he had no recollection of meeting with the police or making that statement. On appeal, the petitioner claims that Altschuler had rendered deficient performance by failing to question Young regarding the statements contained in that police statement. We disagree. Significantly, the petitioner did not call Altschuler as a witness at the habeas trial in the present case. The habeas court, therefore, was not presented with evidence of Altschuler’s rationale for not pursuing that line of questioning after the pros- ecutor withdrew his objection thereto.4 As this court has observed, “[a]n attorney’s line of questioning on 3 That exhibit is seven pages in length. Its final page contains lines marked “signature” and “date,” which were left blank, as were two lines dedicated to “witness” signatures. The attestation clause for a “notary public” likewise was not completed in any manner. 4 The record indicates that Altschuler did testify at the habeas trial in the petitioner’s second habeas action. The transcript of that trial con- firms that Altschuler was not questioned about his cross-examination of Young at the petitioner’s criminal trial.  Alvarez v. Commissioner of Correction examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel’s trial strategy. . . . The fact that counsel argu- ably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed impor- tance, falls short of establishing deficient performance.” (Internal quotation marks omitted.) Balbuena v. Com- missioner of Correction, 231 Conn. App. 289, 338, 332 A.3d 1008, cert. denied, 352 Conn. 905, 335 A.3d 845 (2025). “Once an attorney makes an informed, strategic decision regarding how to cross-examine a witness, that decision is virtually unchallengeable.” (Internal quota- tion marks omitted.) Taft v. Commissioner of Correction, 159 Conn. App. 537, 557, 124 A.3d 1, cert. denied, 320 Conn. 910, 128 A.3d 954 (2015). As the habeas court noted in its memorandum of deci- sion, Altschuler may have made a tactical decision not to question Young regarding his alleged statement to the police, such as wanting to limit the areas of inquiry available to the prosecutor on redirect examination. See, e.g., Hamlin v. Commissioner of Correction, 113 Conn. App. 586, 590, 967 A.2d 525 (trial counsel testified at habeas trial that she “made a tactical decision not to cross-examine [a witness to a shooting] regarding the petitioner’s alleged statement . . . because it would open the door to other testimony”), cert. denied, 291 Conn. 917, 970 A.2d 728 (2009). In addition, Young testified at the habeas trial that he had no recollection of meeting with the police or making a statement to them regarding what Hazard allegedly had said at the time of the shooting. As a result, there is no evidence as to how Young would have responded if Altschuler asked him about that statement at the peti- tioner’s criminal trial. Furthermore, although the state withdrew its initial objection to Altschuler’s question at the criminal trial fol- lowing an off-the-record discussion outside the presence of the jury, Altschuler may have deliberately declined to question Young further once it became clear that Young’s  Alvarez v. Commissioner of Correction statement to the police that Hazard had told him that the shooter was a “guy named Rasheem” contained a second level of hearsay and, thus, likely was inadmissible. See, e.g., State v. Colon, 272 Conn. 106, 212, 864 A.2d 666 (2004) (“[b]ecause [Maria] Hernandez’ statement contained an additional level of hearsay, namely, what [Virginia] Quintero had told Hernandez, both Quintero’s statement to Hernandez and Hernandez’ statement to the police about what Quintero had told her must be indepen- dently admissible under a hearsay exception in order for Hernandez’ statement to be substantively admissible”), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); In re Alizabeth L.-T., 213 Conn. App. 541, 592–93, 278 A.3d 547 (2022) (discussing hearsay within hearsay). For all of those reasons, we conclude that the petitioner has failed to demonstrate that Altschuler ren- dered deficient performance at the petitioner’s criminal trial. He has not established that Altschuler’s conduct was not reasonably competent or that it fell outside the range of competence displayed by lawyers with ordinary training and skill in the criminal law. Accordingly, the petitioner cannot prevail on his claim that DeSantis had rendered ineffective assistance by failing to raise a claim of ineffective assistance regarding Altschuler’s questioning of Young at the petitioner’s criminal trial. See Santaniello v. Commissioner of Correction, supra, 230 Conn. App. 749; Dearing v. Commissioner of Cor- rection, supra, 230 Conn. App. 173. B Even if we were to conclude otherwise, the petitioner could not prevail. To succeed on a claim of ineffective assistance, the petitioner also must satisfy the prejudice prong of Strickland by demonstrating “that there is a rea- sonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been dif- ferent.” (Internal quotation marks omitted.) Bowens v. Commissioner of Correction, supra, 333 Conn. 537–38. The petitioner has not done so in the present case.  Alvarez v. Commissioner of Correction Significantly, Young testified at the habeas trial that he had no recollection of meeting with the police or mak- ing a statement to them regarding what Hazard had told him at the time of the shooting. Young also testified unequivocally that Hazard “did not make any state- ments” to him regarding the identity of the shooter. As the habeas court aptly noted in its memorandum of decision, “there is no evidence regarding what additional testimony [Young] might have given or how, if at all, it would have altered the outcome of the [petitioner’s] criminal trial.” In addition, the petitioner did not offer any evidence indicating that the trial court would have admitted Young’s statement to the police at the criminal trial. As we previously observed, that statement contains hearsay within hearsay. See Conn. Code Evid. § 8-7 (“[h]earsay within hearsay is admissible only if each part of the combined statements is independently admissible under a hearsay exception”). Moreover, that alleged statement was not signed by Young, the witnesses to that state- ment, or a notary public. See footnote 3 of this opinion. Because (1) Young testified unequivocally at the habeas trial that Hazard did not make any statements to him regarding the identity of the shooter, (2) Young had no recollection of making a statement to the police, and (3) there is no evidence that the statement in question would have been admitted at the petitioner’s criminal trial, we agree with the habeas court that the petitioner failed to satisfy the prejudice prong of Strickland. II ACTUAL INNOCENCE The petitioner also contends that the habeas court improperly rejected his actual innocence claim. We dis- agree. “[A]ctual innocence—sometimes referred to as factual innocence—is distinct from legal innocence. . . . Actual innocence is not demonstrated merely by showing that there was insufficient evidence to prove guilt beyond a  Alvarez v. Commissioner of Correction reasonable doubt. . . . Instead, actual innocence requires affirmative proof that might tend to establish that the petitioner could not have committed the crime, that a third party committed the crime, or that no crime occurred. . . . The petitioner must therefore do more than expose deficiencies in the state’s proof.” (Citations omitted; internal quotation marks omitted.) Moon v. Commissioner of Correction, 354 Conn. 181, 194, 350 A.3d 496 (2026). For that reason, “[a] petitioner who seeks habeas cor- pus relief on the basis of a freestanding claim of actual innocence bears a heavy burden . . . to establish that, notwithstanding his conviction, he is entitled to a new trial. . . . [A petitioner must satisfy] a two part test . . . to succeed on a claim of actual innocence. First, the peti- tioner must establish by clear and convincing evidence that, taking into account all of the evidence—both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial—he is actu- ally innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.” (Citations omitted; internal quotation marks omitted.) Id., 192–93. Although our Supreme Court has not yet addressed the issue of whether an actual innocence claim must be supported by newly discovered evidence; see id., 196 n.3; Gould v. Commissioner of Correction, 301 Conn. 544, 551 n.8, 22 A.3d 1196 (2011); “the Appellate Court consistently has held that a claim of actual innocence must be based on newly discovered evidence . . . .” Moon v. Commissioner of Correction, supra, 354 Conn. 196 n.3; see also Ross v. Commissioner of Correction, 217 Conn. App. 286, 302, 288 A.3d 1055 (collecting cases), cert. denied, 346 Conn. 915, 290 A.3d 374 (2023). As this court has explained, “[t]o prove actual innocence the petitioner must be able to show that based on proffered  Alvarez v. Commissioner of Correction newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could [find] proof of guilt beyond a reasonable doubt. . . . To permit a petitioner to bring a substantial claim of actual innocence based on evidence that is not newly discovered would be inconsistent with our Supreme Court’s conclusion that the standard governing a claim of actual innocence should be more demanding than the standard used for determining whether a new trial should be granted because of newly discovered evidence. . . . We view this holding as one that balances the societal interests of finality, comity, and conservation of scarce judicial resources, against the benefit of dispos[ing] of the case as law and justice require. . . . Entertaining claims of actual innocence that are not based on newly discovered evidence would have a disruptive effect on the finality of judgments because it would permit a petitioner to raise allegations that, absent proof of an antecedent constitu- tional violation that affected the result of his criminal trial, could have been raised at the criminal trial. . . . [That] evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner’s criminal trial by the exercise of due diligence.” (Citations omitted; internal quotation marks omitted.) Nemhard v. Commissioner of Correc- tion, 157 Conn. App. 368, 374–75, 117 A.3d 915, cert. denied, 319 Conn. 902, 122 A.3d 637 (2015). This panel is bound by that precedent. See, e.g., Ross v. Commissioner of Correction, supra, 217 Conn. App. 303 (declining to depart from Appellate Court precedent regarding newly discovered evidence requirement); Doe v. West Hartford, 168 Conn. App. 354, 379, 147 A.3d 1083 (2016) (“[a] previous decision of [the] Appellate Court [is] binding until it is overruled either by our Supreme Court or by an en banc panel of this court” (internal quotation marks omitted)), aff’d, 328 Conn. 172, 177 A.3d 1128 (2018). In his September 30, 2024 posttrial brief to the habeas court, the petitioner acknowledged that precedent and then averred in relevant part: “Assuming [the habeas  Alvarez v. Commissioner of Correction court] finds that newly discovered evidence is necessary to support the claim of actual innocence in conjunction with all other evidence presented, the petitioner acknowledges that he has not met his burden of proof.” It therefore is not surprising that the court, in its memorandum of decision, concluded that the petitioner had not presented any newly discovered evidence. On appeal, the petitioner has reversed course and now claims that he did present newly discovered evidence at the habeas trial, namely: (1) an affidavit that McCrea executed in 2006; (2) an affidavit executed by Perry in 2005; (3) the unsigned police statement allegedly made by Young and dated January 28, 1988; (4) the January 27, 1988 police incident report; (5) McCrea’s habeas trial testimony; and (6) Perry’s habeas trial testimony. We begin with the January 28, 1988 police statement allegedly made by Young and the January 27, 1988 police incident report. Those documents plainly were available at the time of the petitioner’s criminal trial. They are, by definition, not newly discovered evidence. The affidavits of McCrea and Perry also require little discussion. Those documents were not admitted into evidence as full exhibits in the present case. Accordingly, the habeas court properly did not consider them in rul- ing on the petitioner’s actual innocence claim.5 See, e.g., State v. King, 350 Conn. 303, 343, 324 A.3d 81 (2024) 5 The petitioner also argues that the habeas court failed to consider “the entire constellation of evidence” in ruling on his actual innocence claim. We disagree. Unless “[a] statement [by the court] suggest[s] that the court did not consider [certain] testimony, we . . . are entitled to presume that the trial court acted properly and considered all the evidence.” (Internal quotation marks omitted.) Moye v. Commissioner of Correction, 168 Conn. App. 207, 230, 145 A.3d 362 (2016), cert. denied, 324 Conn. 905, 153 A.3d 653 (2017). In this case, the court specifically indicated that it had considered all properly admitted evidence by “listening to the testimony [of the witnesses], reading the transcripts [from the petitioner’s criminal trial and his prior habeas trial], considering the evidence, and reviewing the posttrial briefs of both parties . . . .” The court further stated that “[a]ny evidence in the record not specifically mentioned in this decision that would support conclusions contrary to those reached by the court in its legal analysis,  Alvarez v. Commissioner of Correction (“when acting as triers of fact, [judges] consider only properly admitted evidence when rendering their deci- sion”); Moye v. Commissioner of Correction, 168 Conn. App. 207, 234, 145 A.3d 362 (2016) (“A [trier of fact] is bound to consider all the evidence which has been admit- ted, as far as admissible, for all the purposes for which it was offered and claimed. . . . [This principle is] fully applicable in habeas corpus trials.” (Emphasis altered; internal quotation marks omitted.)), cert. denied, 324 Conn. 905, 153 A.3d 653 (2017). The petitioner also contends that McCrea’s testimony at the habeas trial constituted newly discovered evidence. We do not agree. Days after the shooting in 1988, McCrea provided a signed statement to the police, in which she indicated that she saw the petitioner shoot Mabery. See State v. Alvarez, supra, 216 Conn. 312. At the petition- er’s criminal trial, McCrea recanted that statement and testified that “she had not seen who shot the victim.”6 Id., 313. For that reason, McCrea’s testimony at the habeas trial that she did not recall seeing anyone shoot Mabery and did not know who shot him is consistent with her prior testimony at the petitioner’s criminal trial. We agree with the habeas court that McCrea’s testimony at the habeas trial was not newly discovered evidence.7 In addition, the petitioner claims that Perry’s testi- mony at the habeas trial, in which he invoked his fifth whether said evidence was contested or uncontested by the parties, was considered and discredited or otherwise rejected by the court.” 6 After McCrea recanted her statement identifying the petitioner as the shooter, the state introduced her prior written inconsistent state- ment into evidence for substantive purposes under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). On direct appeal, our Supreme Court concluded that the trial court did not abuse its discretion in admitting McCrea’s prior statement into evidence. See State v. Alvarez, supra, 216 Conn. 314. 7 The habeas court further declined to credit her testimony, stating in relevant part: “Given the age of the case, McCrea could not recall much, if anything, about the case, her trial testimony, the statement she gave to [the] police, or whether she even witnessed the shooting. She also acknowledged that various medications she currently takes impact her ability to accurately recall relevant events. The petitioner  Alvarez v. Commissioner of Correction amendment right against self-incrimination, constituted newly discovered evidence. We disagree. The record before us indicates that Perry had testi- fied at the trial in the petitioner’s second habeas action. DeSantis testified that, when he asked Perry if he had committed the murder on January 16, 1988, Perry invoked his fifth amendment right against self-incrim- ination. At the habeas trial in the present case, Perry testified that he had “no knowledge” as to whether some- one other than the petitioner had shot Mabery. Perry was also asked a series of questions about the circumstances surrounding that shooting, to which he invoked his fifth amendment right against self-incrimination.8 After con- firming that he had testified at the petitioner’s previous habeas trial, Perry stated that he had “no further testi- mony.” Perry’s testimony thus does not constitute newly discovered evidence of the petitioner’s actual innocence. Moreover, Perry’s testimony does not constitute sub- stantive evidence that the petitioner is actually innocent of the murder of Mabery. Perry testified that he had “no knowledge” that the petitioner did not kill Mabery. That avers in his posttrial brief that her habeas testimony ‘that [Greene] fed her information before her statement was taken’ renders unworthy of belief her police statement identifying the petitioner as the shooter. However, during her habeas testimony, McCrea reviewed her statement to [Greene] and had no independent recollection of the facts contained therein, given its age and her medication. Therefore, the court does not credit her habeas testimony that [Greene] told her what to say in her statement. Her hazy and inconsistent recollection of events is woefully insufficient to satisfy the petitioner’s stringent burden of proving actual innocence by clear and convincing evidence.” 8 Specifically, the petitioner’s counsel asked Perry if he (1) “ever offer[ed] [the petitioner] money in exchange for his silence . . . related to this murder conviction,” (2) knew “anything about police corruption in the New Haven police force at the time . . . of [the petitioner’s crimi- nal] trial,” (3) exercised “a level of control over the Newhallville area of New Haven” at the time of that trial, and (4) had