Background
Ricardo Mack was convicted in 2008 of one count of murder and two counts of assault in the first degree stemming from a December 2005 shooting at a restaurant in Hartford. The victim, Chaz Booth, was shot seven times in the back; two other patrons were injured. Mack confessed to police but raised a self-defense claim at trial, asserting that Booth had threatened him. He was sentenced to ninety years of incarceration. Mack’s direct appeal was unsuccessful.
In 2011, Mack filed his first habeas petition, represented by attorney Bruce McIntyre, claiming trial counsel Robert Pickering rendered ineffective assistance by failing to adequately investigate and present defense witnesses in support of his self-defense claim. The habeas court rejected these claims, and Mack’s appeal of that judgment also failed.
In 2015, Mack filed a second habeas petition alleging that McIntyre rendered ineffective assistance by failing to raise in the first petition two claims of ineffective assistance against Pickering: (1) failing to object on confrontation clause grounds to the victim’s autopsy report and related testimony, and (2) failing to advise Mack of his right to sentence review and pursue such review on his behalf. The habeas court denied the second petition, and Mack appealed the denial of certification to appeal.
The Court’s Holding
The appellate court held that the habeas court abused its discretion in denying Mack’s petition for certification to appeal. The court concluded that Mack’s challenge to the habeas court’s resolution of the confrontation clause issue was not frivolous and warranted appellate review, as the question involved whether a claim about confrontation clause protections would have been novel or untested at the time of his 2008 trial.
However, on the merits, the court affirmed the habeas court’s dismissal of the petition. The court found that Mack failed to establish ineffective assistance by McIntyre regarding the autopsy evidence claim because he failed to prove that trial counsel Pickering performed deficiently. Under the controlling Crawford v. Washington and Davis v. Washington precedents at the time of trial, the autopsy report was admissible as a business record, and Carver (the testifying medical examiner) offered independent expert opinions based on his review of the autopsy photographs—not mere repetition of the absent examiner’s findings.
The court also rejected Mack’s claim regarding sentence review, finding that even assuming Pickering had rendered ineffective assistance by failing to advise Mack of sentence review rights, Mack failed to demonstrate that McIntyre performed deficiently by not raising such a claim in the first habeas petition.
Key Takeaways
- A habeas court abuses its discretion by denying certification to appeal when the underlying issue is debatable among reasonable jurists and warrants appellate review, even if the appellate court ultimately affirms on the merits.
- Ineffective assistance of habeas counsel (“habeas on habeas”) requires proving both that prior habeas counsel failed to perform and that trial counsel was deficient—a demanding standard that burdens petitioners with overlapping constitutional claims.
- An objection to autopsy testimony on confrontation clause grounds may not have been required under law existing at trial, even if the testifying examiner did not personally perform the autopsy, provided that examiner offered independent expert analysis.
- Failure to pursue sentence review does not automatically constitute ineffective assistance if such review rights were not clearly established or if trial counsel’s strategic decision was reasonable under the circumstances.
Why It Matters
This decision clarifies the standard for appellate review of habeas denials in Connecticut. While the court granted Mack appellate review, it reinforced the high bar for “habeas on habeas” claims, requiring petitioners to prove deficiency by both prior habeas counsel and trial counsel. The opinion explains when confrontation clause protections apply to autopsy evidence—an important distinction for defense strategies in homicide cases, particularly regarding whether cross-examination of the medical examiner who conducted the autopsy is constitutionally required or whether expert reliance on that examiner’s report may suffice.
The decision also illustrates the difficulty of relitigating trial counsel’s performance through multiple layers of habeas review. By holding that counsel’s failure to pursue a novel constitutional argument at the time of trial does not constitute deficient performance, the court imposed limits on how far back-door ineffective assistance claims can reach. For litigators handling capital and serious felony cases, the ruling underscores the importance of preserving objections and pursuing appellate remedies at the earliest opportunity rather than waiting for habeas review.