Bellamy 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. ************************************************  Bellamy v. Commissioner of Correction BRANDON BELLAMY v. COMMISSIONER OF CORRECTION (AC 47162) Suarez, Wilson and Pellegrino, Js. Syllabus The petitioner, who previously had been convicted, after a jury trial, of murder and other crimes, appealed following the granting of his petition for certification to appeal from the habeas court’s judgment denying his petition for a writ of habeas corpus. The petitioner claimed, inter alia, that the court improperly concluded that his criminal trial counsel, C, did not provide ineffective assistance in deciding not to consult with and to call an expert witness to testify about the weaknesses in the identification of the petitioner by D, the only witness at the shooting scene. Held: The habeas court correctly determined that C did not perform deficiently by not consulting with and presenting the testimony of an expert witness on eyewitness identification, as the law in effect at the time of the petitioner’s criminal trial generally disfavored the admission of such testimony, and C’s decision was a reasonable exercise of professional judgment, as he explored substantially the same areas during his cross-examination of D as an expert would have recommended. The petitioner failed to establish that C rendered deficient performance in declining to object to the trial court’s jury instructions on eyewitness identi- fication, as the petitioner lacked evidence to support his claim, the jury was given instructions two different times on the issue of identification, which, read as a whole, were correct, sufficient to guide the jury and consistent with controlling decisional law on the issue at the time of the petitioner’s trial, and the petitioner’s claim was speculative in that he did not establish a reasonable likelihood that the court would have delivered alternative instructions, had C offered them, or that those instructions would have led to a different result at trial. The habeas court properly concluded that C did not render ineffective assis- tance by failing to investigate and present a third-party culpability defense as to B, who allegedly had used the gun involved in the shooting in a prior inci- dent, as C’s decision constituted sound trial strategy in light of his inability to obtain sufficient evidence connecting a third party to the shooting, and the petitioner failed to demonstrate that he was prejudiced by C’s actions, as he did not establish a reasonable likelihood that a third-party culpability defense as to B would have led to a different result at trial. The habeas court correctly determined that the petitioner failed to establish that C rendered deficient performance by not calling witnesses to refute the state’s evidence of motive, as C’s decision not to do so was made on the basis of strategic reasons that were objectively reasonable, as was his decision not to attack the testimony of a witness who had implicated the petitioner in an altercation with the victims that preceded the shooting but who also denied having previously identified the petitioner as the shooter.  Bellamy v. Commissioner of Correction Argued September 8, 2025—officially released August 11, 2026 Procedural History Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the petition was withdrawn in part; thereafter, the case was tried to the court, Newson, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed. James B. Streeto, senior assistant public defender, for the appellant (petitioner). Rebecca Z. Oestreicher, special deputy assistant state’s attorney, with whom, on the brief, were John P. Doyle, Jr., state’s attorney, and Christopher A. Alexy, senior assistant state’s attorney, for the appellee (respondent). Opinion SUAREZ, J. The petitioner, Brandon Bellamy, appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly failed to conclude that his criminal trial counsel had pro- vided ineffective assistance by failing (1) to consult with or call an expert witness on eyewitness identification, (2) to object to the jury instructions provided by the trial court on eyewitness identification, (3) to investigate or present a defense of third-party culpability, and (4) to investigate or call witnesses who could have refuted the state’s evidence on motive. We disagree and, accordingly, affirm the judgment of the habeas court. The following facts and procedural history, as reflected in the record or as set forth in the habeas court’s memo- randum of decision, are relevant to this appeal. Following a jury trial, the petitioner was convicted of two counts of the crime of murder in violation of General Statutes § 53a-54a (a), one count of the crime of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), one count of the crime of criminal possession of a pistol  Bellamy v. Commissioner of Correction in violation of General Statutes § 53a-217c (a), and one count of the crime of carrying a pistol without a permit in violation of General Statutes § 29-35. On January 7, 2011, the petitioner received a total effective sentence of 100 years of incarceration. This court previously set forth the following facts per- taining to the petitioner’s criminal conviction, as reason- ably could have been found by the jury. “In 2008, two of the victims, Christopher Duncan and Justin Davis, lived together with Duncan’s girlfriend, D,1 in an apartment on the second and third floors of a house located at 124 County Street in New Haven. At times, the third victim, William Burruss, also stayed at the same apartment. On April 18, 2008, Duncan, Davis and Burruss drove to Gotham City, a New Haven nightclub. The [petitioner], with whom the victims were acquainted, also attended Gotham City that night. “Sometime during that evening, an altercation occurred between Burruss and the [petitioner]; the two men pushed each other back and forth for approximately three or four minutes until club security broke up the fight. Following the incident, the three victims stayed at the club until it closed at approximately 3 a.m. without further interaction with the [petitioner]. The victims left the club and, after dropping off another friend, drove back to County Street, listening to loud music on the way. Because the street was dark, the men drove past the house where they lived with the high beams activated to ensure that no one was waiting for them. Seeing no one, they turned around and parked in front of the house. Exiting the car, Duncan dropped something and stopped to pick it up, such that he was behind the others as they approached the house. “Upon coming to the driveway of the house, the victims heard a male voice from the side of the house saying, ‘What up, now?’ A man in a hooded sweatshirt ran out 1 Consistent with this court’s decision in the petitioner’s direct appeal, we decline to identify D by her full name in order to protect her privacy interests. See State v. Bellamy, 149 Conn. App. 665, 667 n.1, 89 A.3d 927 (2014), aff’d, 323 Conn. 400, 147 A.3d 655 (2016).  Bellamy v. Commissioner of Correction from the shadows, firing several gunshots at the victims. Burruss was shot and fell to the ground. Duncan and Davis looked at each other and ran off in opposite direc- tions. Duncan ran toward Goffe Street. He was shot in the arm and fell to the ground. When he jumped back up, he was shot again through the back. He continued to run, and when he reached the nearby street he flagged down a driver, who brought him to a hospital. “D, who was waiting for the victims at the house, had heard the loud music from the car and was coming down from the third floor to open the front door when she heard more than fifteen gunshots from the street. She ran into a bedroom on the second floor of the house and looked out the front window to see what was happening below. She saw a body lying motionless on the sidewalk in front of the house. Farther out into the street, she saw a man facing in the direction of Goffe Street. When the man turned his head, D recognized him as the [petitioner]. She was unable to see whether he was carrying a gun. After a few seconds, the [petitioner] ran off. “D went downstairs and exited the house, where she found Davis lying on the ground by the stairs to the house. After retrieving her cell phone from the apart- ment, she went back outside, where she saw Burruss’ body. She then called emergency dispatch. The police arrived on the scene at approximately 4 a.m. Burruss and Davis were taken to nearby hospitals, where they both were pronounced dead from multiple gunshot wounds. “The crime scene investigators swept the scene for evidence relating to the shooting. Twenty-two nine mil- limeter cartridge casings were recovered from the scene, and it was determined that all had been fired from the same weapon, most likely a Glock semiautomatic pistol. The weapon was never recovered. No fingerprint or DNA evidence recovered by the police tied the [petitioner] to the scene.” (Footnote altered.) State v. Bellamy, 149 Conn. App. 665, 667–69, 89 A.3d 927 (2014), aff’d, 323 Conn. 400, 147 A.3d 655 (2016).  Bellamy v. Commissioner of Correction At the petitioner’s criminal trial, “the critical issue . . . was the identity of the shooter. The state’s primary evidence establishing the [petitioner] as the shooter was the testimony of D. At trial, the defense pursued several strategies for discrediting D’s testimony. This included noting the circumstances of her identification. When the police initially interviewed D on the night of the shooting in April, 2008, she denied having seen anyone respon- sible for the crime. It was not until August, 2010, after having moved out of state, that she communicated with the Office of the State’s Attorney and told an inspector what she had seen that night. She explained her initial hesitance in revealing the identity of the shooter as being based on fear that the [petitioner] would retaliate against her. The defense also highlighted the conditions under which D had witnessed the events in question, including the lighting, the distance, the viewing angle and her emotional state at the time.” Id., 670. On direct appeal, the petitioner claimed, inter alia, that the trial court had improperly delivered prejudicial, erroneous instructions to the jury on the issue of iden- tification. Id., 669. This court upheld the petitioner’s conviction and concluded, with respect to the petitioner’s jury instruction claim, that it had been waived under State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011). See State v. Bellamy, supra, 149 Conn. App. 673–74. Our Supreme Court upheld the judgment of the Appellate Court, which had affirmed the judgment of conviction on direct appeal. See State v. Bellamy, 323 Conn. 400, 147 A.3d 655 (2016). In 2016, the petitioner, in a self-represented capacity, filed a petition for a writ of habeas corpus. In January 2023, the petitioner, then represented by counsel, filed the operative, second amended petition for a writ of habeas corpus, alleging, inter alia, ineffective assistance of counsel.2 Specifically, the petitioner claimed that 2 The petitioner also alleged a claim of actual innocence and a freestand- ing due process claim grounded on his assertion that his conviction was based on suggestive or unreliable identification evidence whose reliability the jury was unable to assess because it was deprived of information crucial to its ability to do so. The petitioner, however, withdrew his  Bellamy v. Commissioner of Correction his criminal trial counsel, Glenn Conway, had rendered ineffective assistance because he failed (1) to conduct a timely and adequate investigation, (2) to investigate the alleged motive as presented by the state, (3) to investi- gate and present an alibi defense,3 (4) to consult with or present an eyewitness identification expert, (5) to object to inadequate or inaccurate jury instructions regarding eyewitness identification, (6) to present evidence from potential witnesses contradicting the state’s evidence of motive, and (7) to pursue a third-party culpability defense. The habeas court, Newson, J., held a trial on June 15 and August 8, 2023. The petitioner testified and actual innocence claim before trial. As to the freestanding due process claim, we agree with the respondent, the Commissioner of Correction, that, on appeal, the petitioner “has declined to pursue any challenge to the habeas court’s resolution of his freestanding due process claims.” See, e.g., McCarthy v. Commissioner of Correction, 192 Conn. App. 797, 810 n.8, 218 A.3d 638 (2019) (“[i]n habeas corpus proceedings, courts often describe constitutional claims that are not tethered to a petitioner’s sixth amendment right to counsel as ‘freestanding’ ”). The petitioner asserts that his criminal trial counsel, Glenn Conway, had rendered ineffective assistance, which deprived the petitioner of his right to a fair trial and, therefore, violated his due process rights. The petitioner’s due process arguments in his principal appellate brief to this court, however, are tethered purely to his ineffective assistance claim, which is the only claim he asserts on appeal. We therefore review the petitioner’s claims solely under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See, e.g., Grant v. Commissioner of Correction, 225 Conn. App. 55, 63–64, 67, 314 A.3d 1 (2024), rev’d on other grounds, 354 Conn. 30, 348 A.3d 463 (2026). 3 The habeas court stated in its memorandum of decision that “the petitioner [had made] a general allegation that . . . Conway was inef- fective for failing to conduct an adequate investigation. Other than the claims that have been addressed [previously], which have all failed, the petitioner has not offered anything specific that he claims . . . Conway failed to discover through investigation that the petitioner claims would have impacted the outcome of the trial. This is nothing more than a ‘catchall’ claim.” The petitioner does not appear to contest this determination on appeal. We therefore address Conway’s investigation solely in the context of the specific claims of ineffective assistance that the petitioner asserts on appeal. The petitioner does not challenge on appeal the habeas court’s rejection of his ineffective assistance claim alleging that Conway was ineffective for failing to investigate and present an alibi defense.  Bellamy v. Commissioner of Correction also presented testimony from, inter alia, an eyewit- ness identification expert, Margaret Kovera, a criminal defense expert, Brian Carlow, and Conway. In support of his claim that Conway had improperly failed to present testimony regarding a third-party culpability defense, the petitioner also presented testimony from Garian Suggs. The respondent, the Commissioner of Correction, did not call any witnesses. On October 10, 2023, the habeas court issued a memo- randum of decision denying the operative habeas petition. As to the petitioner’s claim that Conway had rendered ineffective assistance, the court concluded that the peti- tioner had failed to demonstrate either deficient per- formance or that he had been prejudiced by Conway’s representation. The habeas court first concluded that the petitioner had failed to establish that Conway was ineffective in failing to present testimony from or consult with an eyewitness identification expert. The court noted that, “[a]t the time of [the] petitioner’s trial, the law in Con- necticut disfavored the admission of expert testimony on the issues of eyewitness identification as an intrusion into the province of the jury.”4 The court stated that “the petitioner has presented nothing unique about the particular circumstances of this case, under the law as it existed in 2010, to warrant the admission of expert testimony to help the jury deal with ‘general principles, such as the fact that memories fade over time, that peo- ple under severe stress do not acquire information as well as alert persons not under stress, and that people tend unconsciously to resolve apparent inconsistencies between their memories and after acquired facts.’ ” The court further reasoned that Conway had “substantially explored all of the same areas that an expert would have recommended” during his cross-examination of D. The habeas court also determined that the petitioner had failed to establish that Conway rendered ineffective 4 Evidence concluded at the petitioner’s criminal trial on November 8, 2010. See State v. Bellamy, supra, 323 Conn. 404.  Bellamy v. Commissioner of Correction assistance by failing to object to the trial court’s jury instructions regarding eyewitness identification. The habeas court concluded that “[this] claim fails for lack of evidence.” The court stated that the petitioner had “ques- tioned . . . Conway generally about whether he objected to the instructions given by the court” but “failed to specifically address the portions of the instructions he claims [were] erroneous with . . . Conway and also failed to offer the alternative instructions he claims should have [been] offered by . . . Conway or given by the court.” The habeas court likewise rejected the petitioner’s claim that Conway had rendered ineffective assistance by failing to raise a third-party culpability defense. The petitioner “[asserted] that . . . Conway should have pre- sented a third-party culpability defense directed at a Norman Boone based on information the petitioner has discovered through interviews with . . . Suggs.” The court found that Conway had considered a third-party culpability defense but “was unable to obtain sufficient evidence to connect an actual third party to the shooting. . . . Conway conducted an investigation into . . . Suggs but was unable to find any connection between Suggs and any of the individuals involved in the petitioner’s case.” The court stated that Suggs’ testimony had failed “to establish facts that would have been admissible under a third-party culpability claim . . . .” Moreover, the court concluded that Conway had “made a reasoned decision to proceed with a defense focused on challenging the state’s ability to prove the case beyond a reasonable doubt by attacking the credibility of the only eyewitness . . . .” The court found that “Conway believed that challenging the fact that [D] . . . changed her statement and identified the petitioner nearly two years after she had told the police multiple times that she didn’t see anything, including during a time immediately after the shooting when she believed her boyfriend may be dead, and that there was no physical evidence tying [the petitioner] to the crime, provided [Conway] a solid basis to attack the state’s case.”  Bellamy v. Commissioner of Correction Finally, the habeas court rejected the petitioner’s claim that Conway had rendered deficient performance by fail- ing to investigate the state’s evidence on motive and by failing to call witnesses to refute that evidence, namely, Duncan, who had testified for the state that an alterca- tion between the petitioner and Burruss had occurred at the Gotham City nightclub prior to the shooting. The court noted that the alleged altercation “[was not] heavily relied [on] nor central to the state’s case.” The court also stated that Duncan had “refuted claims that he had identified the petitioner as the shooter, which was potentially very helpful to the petitioner.” The court also found that, “given the lack of relative importance of [the alleged altercation], there is no basis to believe that disproving [that] the altercation between the petitioner and Burrus occurred would have had the probable result of changing the outcome of the trial.” The petitioner filed a timely petition for certification to appeal, which the habeas court granted. This appeal followed. Additional facts and procedural history will be set forth as necessary. We begin by setting forth our well settled standard of review and the legal principles applicable to the petition- er’s claims. “Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a viola- tion of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . “The sixth amendment to the United States constitu- tion guarantees a criminal defendant the assistance of counsel for his defense. . . . It is axiomatic that the right to counsel is the right to the effective assistance of coun- sel. . . . To 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  Bellamy v. Commissioner of Correction (1984). Strickland requires that a petitioner satisfy both a performance and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate 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. . . . Although a petitioner can succeed only if he satis- fies both prongs, a reviewing court can find against the petitioner on either ground. . . . “We . . . are mindful that [a] fair assessment of attorney performance requires that every effort be made to elimi- nate 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 difficulties inherent in making the evaluation, a court must indulge a strong presump- tion that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [peti- tioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all signifi- cant decisions in the exercise of reasonable professional judgment. . . . Similarly, the United States Supreme Court has emphasized that a reviewing court is required not simply to give [counsel] the benefit of the doubt . . . but to affirmatively entertain the range of possible rea- sons . . . counsel may have had for proceeding as [he or she] did. . . . “In assessing prejudice under Strickland, the ques- tion is not whether a court can be certain counsel’s per- formance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. . . . Instead, Strickland asks whether it is reasonably likely the result would have been different. . . . The likelihood of a different result  Bellamy v. Commissioner of Correction must be substantial, not just conceivable. . . . In a habeas proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities.” (Internal quotation marks omitted.) Ayuso v. Commissioner of Correction, 215 Conn. App. 322, 348–50, 282 A.3d 983, cert. denied, 345 Conn. 967, 285 A.3d 736 (2022). We now turn to the merits of the petitioner’s claims. I The petitioner first claims that the habeas court improperly determined that Conway was not ineffective by failing to consult with, or present the testimony of, an eyewitness identification expert. We are not persuaded.5 The following legal principles are relevant to our reso- lution of this claim. “[T]here is no per se rule that requires a trial attorney to seek out an expert witness. However, this court noted that in some cases, the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of coun- sel. . . . [F]ailing to retain or utilize an expert witness is not deficient when part of a legitimate and reasonable defense strategy. . . . Our appellate courts repeatedly have rejected a petitioner’s claim that his trial counsel rendered deficient performance by failing to call an expert witness at trial on the ground that trial counsel’s decision was supported by a legitimate strategic reason.” (Cita- tion omitted; internal quotation marks omitted.) Revels v. Commissioner of Correction, 229 Conn. App. 461, 486, 327 A.3d 418 (2024), cert. denied, 351 Conn. 906, 330 A.3d 133 (2025). Moreover, “[i]t is the petitioner’s burden to demonstrate that an expert was necessary to establish an asserted defense.” Dearing v. Commissioner of Correction, 230 Conn. App. 145, 158, 329 A.3d 988, cert. denied, 351 Conn. 910, 331 A.3d 158 (2025). 5 Because we conclude that the habeas court properly determined that the petitioner had failed to establish that Conway rendered deficient performance, we need not address Strickland’s prejudice prong. See, e.g., Revels v. Commissioner of Correction, 229 Conn. App. 461, 479 n.9, 327 A.3d 418 (2024), cert. denied, 351 Conn. 906, 330 A.3d 133 (2025).  Bellamy v. Commissioner of Correction On appeal, the petitioner asserts that “[a]n expert wit- ness was critical for the defense Conway was pursuing, a [defense of] mistaken identification. An expert could have educated the jury on the grave weaknesses of [D’s] identification . . . .” According to the petitioner, expert testimony on eyewitness science would not have been absolutely barred at the time of his criminal trial in 2010 because the trial court had the discretion to admit the testimony of such an expert. We agree with the habeas court that Conway did not render deficient performance by failing to consult with, or present the testimony of, an expert on eyewitness identification. We consider Conway’s performance in light of the controlling law on eyewitness identification in effect at the time of the petitioner’s criminal trial. This court previously has stated that “[c]ounsel . . . performs effec- tively when he elects to maneuver within the existing law . . . .” (Internal quotation marks omitted.) Bennett v. Commissioner of Correction, 182 Conn. App. 541, 561, 190 A.3d 877, cert. denied, 330 Conn. 910, 193 A.3d 50 (2018). At the time of the petitioner’s criminal trial in 2010, “the controlling law on the issue [of eyewitness identification expert testimony] was State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986), overruled in part by State v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012), in which our Supreme Court observed that the reliability of eyewitness identification is within the knowledge of jurors and expert testimony generally would not assist them in determining the question. . . . Such testimony is also disfavored because . . . it invades the province of the jury to determine what weight or effect it wishes to give to eyewitness testimony.” (Internal quotation marks omitted.) Bennett v. Commissioner of Correction, supra, 562. In 2012, two years after the petitioner’s criminal trial, our Supreme Court released its decision in State v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012), which overruled Kemp and concluded that Kemp was “out of step with the widespread judicial recognition that eye- witness identifications are potentially unreliable in a  Bellamy v. Commissioner of Correction variety of ways unknown to the average juror.” Id., 234.6 The court stated that cross-examination “often is not as effective as expert testimony at identifying the weak- nesses of eyewitness identification testimony because cross-examination is far better at exposing lies than at countering sincere but mistaken beliefs.” Id., 243. The court further reasoned that “some circumstances undoubtedly call for more than mere cross-examination of the eyewitness.” (Internal quotation marks omitted.) Id., 244. A We first conclude that, because the law in effect at the time of the petitioner’s criminal trial generally disfa- vored the admission of expert testimony on eyewitness identification, the habeas court correctly determined that Conway did not perform deficiently by not presenting an expert witness on the issue of eyewitness identifica- tion. See, e.g., Bennett v. Commissioner of Correction, supra, 182 Conn. App. 562 (because law in effect at time of petitioner’s criminal trial discouraged use of expert testimony on issue of eyewitness identification, peti- tioner’s criminal trial counsel did not perform deficiently by not presenting expert testimony); see also Davis v. Commissioner of Correction, 186 Conn. App. 366, 378, 199 A.3d 562 (2018) (same), cert. denied, 330 Conn. 962, 199 A.3d 560 (2019). We also disagree with the petitioner that Conway’s failure to present an expert witness on eyewitness iden- tification was based on a misunderstanding of the appli- cable law. Specifically, the petitioner contends that our Supreme Court’s decision in State v. Outing, 298 Conn. 34, 3 A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131 6 The habeas court noted that the petitioner was not claiming that Guilbert should be applied retroactively. On appeal, the petitioner similarly has not argued that Guilbert should be applied retroactively to his case. At the time the habeas court released its memorandum of decision, our Supreme Court had not yet decided Tatum v. Commissioner of Correction, 349 Conn. 733, 758, 322 A.3d 299 (2024), in which the court held that the principles in Guilbert did not apply retroactively.  Bellamy v. Commissioner of Correction S. Ct. 1479, 179 L. Ed. 2d 316 (2011), stands for the proposition that, at the time of the petitioner’s crimi- nal trial, expert testimony on the issue of eyewitness identification was admissible at the discretion of the trial court. The petitioner relies on the fact that Conway had testified at the habeas trial that he believed that, in Outing, “the judge denied the motion for an identi- fication expert. That was the state of the law as far as I knew it around that time frame.” The petitioner asserts that Conway’s “mistaken interpretation constituted ineffective assistance of counsel”7 and argues that the present case would have been the “perfect vehicle” for challenging Kemp and State v. McClendon, 248 Conn. 572, 730 A.2d 1107 (1999) (expert testimony on reliabil- ity of eyewitness identification was unnecessary because average juror knows about factors affecting reliability of such identifications and disfavoring expert testimony on reliability of eyewitness identification because it invades province of the jury to determine what weight to give such evidence), overruled in part by State v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012). In Outing, however, our Supreme Court expressly declined to address the merits of the defendant’s claim that Kemp and McClendon should be overruled. See State v. Outing, supra, 298 Conn. 55. Although it is true that the court stated that it was “open to reconsidering Kemp 7 According to the petitioner, Conway’s habeas testimony reflects a mistaken belief that testimony on the issue of eyewitness identification was categorically barred at the time of the petitioner’s criminal trial. The petitioner similarly argues that the habeas court had “misinterpreted both Guilbert and Outing to hold that expert testimony was absolutely barred.” We do not interpret Conway’s testimony, or the habeas court’s memorandum of decision, so broadly. Conway’s testimony that the denial of a motion for an identification expert by the trial court in Outing was “the state of the law” was consistent with Outing itself as well as with contemporaneous decisional law indicating that such testimony gener- ally was disfavored. It is unreasonable to interpret Conway’s testimony to reflect a belief that such testimony was categorically barred. Fur- thermore, in its memorandum of decision, the court stated that, “[a]t the time of the petitioner’s trial, the law in Connecticut disfavored the admission of expert testimony on the issues of eyewitness identification as an intrusion into the province of the jury.”  Bellamy v. Commissioner of Correction and McClendon”; id., 62; it is equally true that Conway did not have an obligation to use the petitioner’s case to try to overturn our Supreme Court’s precedent. As this court previously has stated, “[t]o impose on counsel the duty to foretell what tack our Supreme Court would take on this subject represents the height of post hoc reason- ing, which is not the task of a court on habeas review.” Outing v. Commissioner of Correction, 190 Conn. App. 510, 535–36, 211 A.3d 1053, cert. denied, 333 Conn. 903, 214 A.3d 382 (2019), cert. denied sub nom. Outing v. Cardona, 589 U.S. 1220, 140 S. Ct. 1166, 206 L. Ed. 2d 212 (2020). The petitioner relies on Justice Palmer’s concurring opinion in State v. Outing, 298 Conn. 88, to argue that Conway should have consulted with or presented testi- mony from an expert witness on eyewitness identifica- tion. In that concurring opinion, Justice Palmer stated that our Supreme Court “has an obligation to reconsider and overrule Kemp because its holding is invalid and because its application results in evidentiary rulings that deprive defendants of a fair opportunity to demonstrate the weaknesses inherent in eyewitness identifications, evidence that results in more wrongful convictions than any other evidence.” Id., 124. Although Justice Palm- er’s view ultimately prevailed with the majority of our Supreme Court in Guilbert, the majority of the court in State v. Outing, supra, 34, did not adopt his view. See Muckle v. Pressley, 185 Conn. App. 488, 496 n.7, 197 A.3d 437 (2018) (“a concurring opinion from our Supreme Court is not binding authority”). The major- ity in State v. Outing, supra, 34, expressly declined to overrule Kemp, and we therefore cannot conclude that Conway rendered deficient performance by following the controlling case law in effect at the time of the peti- tioner’s criminal trial.8 See, e.g., Grant v. Commissioner 8 Similarly, we disagree with the petitioner’s reliance on State v. Maner, Docket No. CR-XX-XXXXXXX, 2011 WL 3671909 (Conn. Super. July 19, 2011), a nonbinding Superior Court decision released approxi- mately six months after the petitioner’s criminal trial. The trial court in Maner relied extensively on Justice Palmer’s concurring opinion in  Bellamy v. Commissioner of Correction of Correction, 225 Conn. App. 55, 73, 314 A.3d 1 (2024) (“[b]ecause [counsel’s] decision not to consult with or present the testimony of an eyewitness expert was not inconsistent with the law at the time of the petitioner’s trial, we agree with the habeas court’s determination that her decision was reasonable”), rev’d on other grounds, 354 Conn. 30, 348 A.3d 463 (2026).9 B Similarly, we reject the petitioner’s argument that Conway’s decision not to consult with an expert witness constituted deficient performance because “an expert would have been greatly helpful in educating the jury and assisting Conway in attacking the one piece of evidence he could not ignore: [D]’s identification.” We agree with the respondent that Conway’s decision to not consult an eyewitness identification expert was a reasonable exercise of his professional judgment. Conway testi- fied at the habeas trial that he did not consult with an eyewitness identification expert because it was a “blos- soming science” at the time. Moreover, the petitioner acknowledges that, at trial, “[Conway] argued [that] stress, distance, poor lighting, and the length of time between [the] incident and [the] identification rendered [D’s] identification unreliable.” As stated previously, under the controlling law at the time of the criminal State v. Outing, 298 Conn. 88, to conclude that expert testimony on eyewitness identification was admissible. See State v. Maner, supra, *10–11. As stated previously in this opinion, however, the majority of our Supreme Court in State v. Outing, supra, 34, declined to overrule Kemp and McClendon. 9 We disagree with the petitioner’s attempt to distinguish Grant on the ground that, in that case and in other cases, “counsel considered using an expert, but decided against it on a tactical basis,” whereas, in the present case, Conway believed such testimony was categorically barred. As noted previously, we do not interpret Conway’s testimony so broadly. See footnote 7 of this opinion. Moreover, this court in Grant noted, similar to the present case, that, “at the time of the petitioner’s case, the science was still relatively new, there was no standard or expectation at that time to call an eyewitness identification expert and such an expert would typically not have been admissible at trial.” (Internal quotation marks omitted.) Grant v. Commissioner of Correc- tion, supra, 225 Conn. 71.  Bellamy v. Commissioner of Correction trial in this case, the admission of expert testimony on the issue of identification was generally disfavored. The habeas court determined, and we agree, that Conway had explored substantially the same areas during his cross-examination of D that an expert would have recom- mended.10 See, e.g., Love v. Commissioner of Correction, 223 Conn. App. 658, 671–72, 308 A.3d 1040 (rejecting petitioner’s claim that habeas court improperly con- cluded that his trial counsel’s failure to consult with eyewitness identification expert constituted deficient performance