For claims of ineffective assistance of appellate counsel, as explained in the 2011 Connecticut Appellate Court case of Moody v. Commissioner of Correction, the court "must assess whether there is a reasonable probability that, but for appellate counsel's failure…the petitioner would have prevailed in his direct appeal…" Following a jury trial, Edward B. was found guilty on counts of sexual assault in the first degree and risk of injury to a child. His conviction was affirmed on direct appeal. He filed a fourth amended petition for a writ of habeas corpus alleging, relevantly, ineffective assistance of appellate counsel. The habeas court denied the petition but granted certification to appeal. Edward B. appealed claiming that the habeas court improperly determined that his appellate counsel's performance was not deficient and that the petitioner did not suffer prejudice from counsel's performance. The Appellate Court affirmed the judgment. The petitioner argued that his appellate counsel failed to brief adequately a claim that he "was not afforded the opportunity to cross-examine an available witness in violation of both his [f]ederal and [s]tate constitutional rights." The witness was Florence Freudenthal, a social worker, who did not testify. Dr. John Leventhal testified regarding Freudenthal's statements to him that the victim indicated that the petitioner had penetrated her. The petitioner claimed that the trial court improperly admitted Leventhal's testimony into evidence and that there was a reasonable probability that the Appellate Court would have overturned his conviction due to insufficient evidence of sexual intercourse by penetration had counsel adequately briefed that claim. The Appellate Court assumed, without deciding that the testimony violated the petitioner's constitutional rights and that his claim on direct appeal had merit. Nevertheless, the petitioner could not prevail because admitting the challenged testimony was found harmless beyond a reasonable doubt. The state presented copious evidence that the petitioner penetrated the victim. The Appellate Court discussed the abundant evidence of penetration when it rejected the petitioner's insufficient evidence claim on direct appeal and did not rely on the challenged testimony in affirming the conviction. There was no reasonable probability that the petitioner would have prevailed on direct appeal but for the alleged errors of counsel.

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