Background
Ricardo Mack was convicted in 2008 of murder and two counts of first-degree assault with a firearm arising from a Christmas Eve 2005 shooting at Papa’s Pizza in Hartford. Mack had confessed to the retaliatory killing of Chaz Booth—shooting him seven times, all in the back—and wounding two others. He was sentenced to 90 years of incarceration. His direct appeal was affirmed, and his first habeas petition, alleging trial counsel was ineffective for failing to investigate a self-defense theory, was also denied.
In this second-generation habeas—a “habeas on a habeas”—Mack challenged the performance of his first habeas counsel, Attorney Bruce McIntyre. Specifically, Mack alleged McIntyre was ineffective for failing to raise two claims: (1) that trial counsel, Attorney Robert Pickering, should have objected to autopsy testimony on Confrontation Clause grounds under Crawford v. Washington, 541 U.S. 36 (2004), and (2) that Pickering failed to advise Mack about his right to sentence review. The habeas court (Newson, J.) denied the petition after trial and also denied certification to appeal.
The Court’s Holding
The Appellate Court first held that the habeas court abused its discretion in denying certification to appeal, finding the Confrontation Clause question was “debatable among jurists of reason” under the Simms/Lozada standard. On the merits, however, the court affirmed denial of both claims.
On the Confrontation Clause issue, the autopsy had been performed by Dr. Malka Shah, who did not testify. Instead, Dr. Harold Wayne Carver II, then chief medical examiner, testified based on his review of the autopsy report and photographs. The court found Pickering’s failure to object was not deficient performance for two independent reasons. First, at the time of the 2008 trial, the law was unsettled as to whether autopsy reports were “testimonial” under Crawford. While Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011), later addressed the issue, those cases had not yet been decided. Under Santaniello v. Commissioner of Correction, 230 Conn. App. 741 (2025), counsel’s failure to pursue a “novel or untested constitutional argument” does not constitute ineffective assistance. Second, there was no prejudice: Mack had confessed in detail, surveillance video showed him shooting first and closing on the prone victim, multiple eyewitnesses contradicted the self-defense theory, and Mack’s own notes trying to solicit false testimony demonstrated consciousness of guilt.
On sentence review, the court assumed arguendo that Pickering was deficient in not pursuing sentence review for Mack. But it found McIntyre could not be faulted because Mack never raised the sentence review issue with McIntyre during the first habeas proceeding. Without that communication, McIntyre had no way to identify the claim.
Key Takeaways
- Second-generation habeas petitioners face a “herculean task” under Lozada v. Warden, 223 Conn. 834 (1992): they must prove ineffective assistance under Strickland at two layers—both trial counsel and first habeas counsel.
- Trial counsel’s failure to anticipate future developments in constitutional law—here, the extension of Crawford to autopsy reports—does not constitute deficient performance when the law was unsettled at the time of trial.
- A habeas petitioner who fails to communicate a potential claim to habeas counsel cannot later fault that counsel for not raising it; the petitioner’s own silence defeats the ineffective-assistance claim at the performance prong.
Why It Matters
This decision illustrates the steep procedural hurdles facing Connecticut prisoners pursuing second-generation habeas claims. The layered Strickland analysis means that even potentially meritorious underlying claims—like a Crawford Confrontation Clause violation involving surrogate expert testimony—can fail if the petitioner cannot demonstrate deficient performance at each level of representation. For Connecticut criminal defense attorneys, the case confirms that counsel is not expected to be clairvoyant: the absence of a Crawford objection at a 2008 trial, before Melendez-Diaz and Bullcoming settled the issue, was objectively reasonable. The sentence review holding carries its own practical lesson: clients must affirmatively raise potential claims with their habeas counsel, because counsel cannot be deemed ineffective for failing to discover issues the client never flagged. Connecticut practitioners representing habeas petitioners should take care to systematically elicit all potential claims from their clients at the outset—a practice that not only improves the quality of representation but also insulates counsel from later ineffective-assistance challenges in successive proceedings.