Weaving v. Commissioner of Correction, 178 Conn. App. 658

Background

In 2007 David Weaving struck and killed a child while attempting to pass another vehicle on a foggy two‑lane road; he was convicted of second‑degree manslaughter and acquitted of first‑degree manslaughter.
At trial the state’s accident‑reconstruction expert estimated the petitioner’s speed at about 83 mph based largely on 360+ feet of skid marks; the defense presented a human factors expert who testified the collision was unavoidable regardless of speed.
Trial counsel Cheryl Heffernan retained and consulted an accident‑reconstruction expert (Hermance) who concluded he could not contradict the state’s speed calculation; Heffernan therefore pursued a trial strategy relying on human‑factors testimony to negate recklessness.
First habeas petition (filed 2009) alleged 19 ineffective‑assistance claims against Heffernan, including failure to properly vet or direct experts; the habeas court rejected all claims and petitioner did not appeal.
Second habeas petition (filed 2013) alleged Heffernan was ineffective for not calling an accident reconstructionist at trial and that first habeas counsel (Cates) was ineffective for failing to raise that claim; the habeas court denied relief and refused certification to appeal.
On appeal the Connecticut Appellate Court affirmed denial of certification, concluding Heffernan’s choice to rely on a human‑factors theory after consulting a reconstruction expert was a reasonable strategic decision, and therefore both habeas claims failed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was ineffective for not presenting an accident‑reconstruction expert’s testimony at trial	Heffernan failed to call or properly direct a reconstructionist; a different expert could have contested state’s speed estimate	Heffernan consulted a qualified reconstructionist who found the state’s speed calculation correct and reasonably chose an alternate human‑factors defense	Counsel’s performance was not deficient; strategic choice after consultation was reasonable
Whether first habeas counsel was ineffective for not raising the trial‑expert claim in the first habeas petition	Cates should have litigated the failure‑to‑call‑expert claim earlier	Because the underlying trial‑counsel claim is meritless, failure to raise it is not prejudicial	Habeas counsel claim fails because petitioner cannot show trial‑counsel ineffectiveness
Whether a defense attorney must continue searching for experts after an unfavorable opinion	Petitioner argues counsel should have kept seeking an expert who would support a lower speed	State argues no obligation to search until a favorable expert is found once a competent expert advises against it	No duty to continue searching; reliance on a consulted expert is reasonable
Whether denial of certification to appeal was an abuse of discretion	Petitioner contends there are debatable issues deserving appellate review	State contends claims lack merit and certification was properly denied	Court did not abuse discretion; certification denial affirmed

Key Cases Cited

Lozada v. Warden, 223 Conn. 834 (establishing that claims of ineffective habeas counsel require proving both habeas‑counsel and trial‑counsel ineffective)
Strickland v. Washington, 466 U.S. 668 (two‑prong test for ineffective assistance of counsel)
Hinton v. Alabama, 134 S. Ct. 1081 (selection of expert is a strategic choice entitled to deference when based on reasonable investigation)
State v. Porter, 241 Conn. 57 (framework for pretrial inquiry into expert qualifications)
Abreu v. Commissioner of Correction, 172 Conn. App. 567 (discussing need to satisfy Strickland twice when alleging ineffective habeas counsel)
Brian S. v. Commissioner of Correction, 172 Conn. App. 535 (rejecting claim where trial counsel consulted an expert and reasonably declined to call or seek further experts)
Stephen S. v. Commissioner of Correction, 134 Conn. App. 801 (attorney entitled to rely on consulted expert)
Bharrat v. Commissioner of Correction, 167 Conn. App. 158 (upholding reasonable strategic decision not to call an expert)