A petition for a new trial, as explained in the 2007 Appellate Court case of Small v. State, "is not a criminal action," and no authority supported the contention that the constitutional requirement of effective assistance of counsel required trial counsel to continue his representation after the conclusion of the criminal trial by commencing such a civil proceeding. A jury found Gilberto Lopez guilty of two counts of risk of injury to a child. Lopez's trial counsel, Mario DeMarco, filed a petition for a new trial pursuant to C.G.S. §52-570 and Practice Book §42-55 predicated on the victim's recantation of her allegations following the conclusion of trial. The court denied the motion noting, inter alia, that a petition for a new trial cannot be heard until after sentencing, which had not taken place. The court denied Lopez's motion for a judgment of acquittal and sentenced Lopez. The conviction was affirmed on appeal. Lopez filed this petition for a writ of habeas corpus amended to allege ineffective assistance of trial and appellate counsel and actual innocence. The habeas court denied the petition but granted certification to appeal. Lopez appealed challenging only the propriety of the court's determination that DeMarco did not render ineffective assistance of counsel. He argued that DeMarco's failure to pursue a renewed petition for a new trial following sentencing or to advise him of his rights with respect thereto constituted deficient performance. The Appellate Court disagreed and affirmed the judgment. The petitioner presented no authority indicating that the constitutional requirement of effective assistance of counsel required DeMarco to continue his representation after the conclusion of trial by commencing such a civil proceeding on his behalf. Even assuming that DeMarco was required to advise Lopez of his rights with respect to the petition for a new trial, the petitioner did not satisfy his burden in demonstrating that DeMarco's performance was deficient. The record was devoid of any evidence as to whether DeMarco discussed commencing a petition for a new trial with the petitioner and what, if any, advice he provided. Neither side called DeMarco as a witness. The petitioner's testimony failed to address what advice he received from DeMarco regarding the petition. The claim failed for lack of proof.

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