Buie v. Commissioner of Correction , 187 Conn. App. 414 ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
ROBERT BUIE v. COMMISSIONER OF CORRECTION
(AC 40520)
DiPentima, C. J., and Elgo and Harper, Js.
Syllabus
The petitioner, who had been convicted of two counts of aiding and abetting
aggravated sexual assault in the first degree and one count each of
attempt to commit aggravated sexual assault in the first degree, conspir-
acy to commit aggravated sexual assault in the first degree and burglary
in the first degree, sought a writ of habeas corpus, claiming, inter alia,
that he received ineffective assistance from the habeas counsel who
represented him in a prior habeas matter. The habeas court rendered
judgment denying the habeas petition and, thereafter, granted the peti-
tion for certification to appeal, and the petitioner appealed to this court.
On appeal, he claimed that the habeas court improperly determined that
he had received effective assistance from his prior habeas counsel and
his criminal trial counsel. Held that the habeas court properly determined
that, due to the overwhelming evidence of guilt, the petitioner could
not establish prejudice as a result of any allegedly deficient performance
by his criminal trial counsel or his prior habeas counsel; that court
properly concluded that, in light of the evidence presented, which estab-
lished that the victim had been sexually assaulted by two individuals,
the petitioner failed to demonstrate a reasonable probability that, but
for the ineffectiveness of his trial counsel and prior habeas counsel, the
outcome of his criminal trial would have been different, as DNA evidence
matching the victim’s DNA profile was found in the petitioner’s resi-
dence, testing of the victim’s vaginal swabs revealed the presence of
DNA consistent with the petitioner’s DNA, analysis of duct tape recov-
ered from the victim’s apartment and duct tape seized from the petition-
er’s apartment indicated that the items were similar, the victim, who
knew the petitioner and the codefendant, identified them by their voices
to the police while at her neighbor’s apartment, the petitioner’s codefen-
dant made a full confession and implicated the petitioner in the assault,
and the victim’s neighbor provided information to the police that was
consistent with the time frame of the events set forth during the prosecu-
tion’s case.
Argued October 25, 2018—officially released January 22, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Oliver, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Heather Clark, assigned counsel, for the appellant
(petitioner).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Marc G. Ramia, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, Robert Buie,
appeals from the judgment of the habeas court denying
his petition for a writ of habeas corpus. On appeal, the
petitioner claims that the court improperly determined
that he had received effective assistance from his prior
habeas counsel. We conclude that the court properly
determined that the petitioner failed to establish preju-
dice as a result of the allegedly deficient performance
of his prior habeas counsel. Accordingly, we affirm the
judgment of the habeas court.
The following facts and procedural history are rele-
vant to our decision. The petitioner was convicted of
two counts of aiding and abetting aggravated sexual
assault in the first degree in violation of General Stat-
utes §§ 53a-8 and 53a-70a (a) (1), and one count each
of attempt to commit aggravated sexual assault in the
first degree in violation of General Statutes §§ 53a-49
(a) (2) and 53a-70a (a) (1), conspiracy to commit aggra-
vated sexual assault in the first degree in violation of
General Statutes §§ 53a-48 (a) and 53a-70a (a) (1), and
burglary in the first degree in violation of General Stat-
utes § 53a-101 (a) (1). See State v. Buie, 129 Conn. App.
777, 779–80, 21 A.3d 550 (2011), aff’d, 312 Conn. 574,
94 A.3d 608 (2014). During the criminal trial, attorney
Errol Skyers represented the petitioner. His conviction
was upheld on appeal. See id.
During the appeal process, the self-represented peti-
tioner commenced three separate habeas actions.
These matters were consolidated for trial, and attorney
Paul Kraus was appointed to represent the petitioner.
At this habeas proceeding, the petitioner claimed that
Skyers had been ineffective by failing (1) to call an alibi
witness, (2) to question the victim about contracting a
sexually transmitted disease as a result of the assault,
(3) to offer expert testimony regarding the state’s use
of DNA evidence, (4) to challenge the chain of custody
of the DNA evidence and (5) to challenge the testimony
regarding the residence of his codefendant, Beverly
Martin. The habeas court, Cobb, J., denied the petition
for a writ of habeas corpus, and we dismissed the appeal
from that judgment. See Buie v. Commissioner of Cor-
rection, 151 Conn. App. 901, 93 A.3d 182, cert. denied,
314 Conn. 910, 100 A.3d 402 (2014).
On December 5, 2013, the self-represented petitioner
commenced the present habeas action designated CV-
XX-XXXXXXX-S. He also commenced another habeas
action, designated CV-XX-XXXXXXX-S. The habeas court
subsequently consolidated the two matters. On July 6,
2016, the petitioner, now represented by counsel, filed
an amended petition for a writ of habeas corpus. He
alleged numerous instances of ineffective assistance
against Kraus, his first habeas counsel.1 The habeas
court, Oliver, J., conducted a trial on November 8 and 9,
2016; the only witnesses were the petitioner and Skyers.
On May 11, 2017, Judge Oliver issued a thorough
memorandum of decision denying the petition for a writ
of habeas corpus. The court noted that the petitioner
had ‘‘failed to overcome the presumption of competent
representation.’’ Additionally, it stated that he had not
‘‘demonstrated prejudice from his counsel’s alleged fail-
ures.’’ Finally, the court observed that because the peti-
tioner had failed to establish that Skyers had been
constitutionally ineffective, he failed to demonstrate
that he received ineffective assistance from Kraus.
The habeas court subsequently granted the petition
for certification to appeal from the denial of his petition
for a writ of habeas corpus. This appeal followed. Addi-
tional facts will be set forth as needed.
As an initial matter, we set forth the relevant legal
principles and our well-settled standard of review. ‘‘In a
habeas appeal, this court cannot disturb the underlying
facts found by the habeas court unless they are clearly
erroneous, but our review of whether the facts as found
by the habeas court constituted a violation of the peti-
tioner’s constitutional right to effective assistance of
counsel is plenary. . . .
‘‘In Strickland v. Washington, [466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States
Supreme Court established that for a petitioner to pre-
vail on a claim of ineffective assistance of counsel, he
must show that counsel’s assistance was so defective
as to require reversal of [the underlying] conviction
. . . . That requires the petitioner to show (1) that
counsel’s performance was deficient and (2) that the
deficient performance prejudiced the defense. . . .
Unless a [petitioner] makes both showings, it cannot
be said that the conviction . . . resulted from a break-
down in the adversary process that renders the result
unreliable.’’ (Emphasis added; internal quotation marks
omitted.) Stephen J. R. v. Commissioner of Correction,
178 Conn. App. 1, 7–8, 173 A.3d 984 (2017), cert. denied,
327 Conn. 995, 175 A.3d 1246 (2018); see also Ricardo
R. v. Commissioner of Correction, 185 Conn. App. 787,
795–96, A.3d (2018).
‘‘The use of a habeas petition to raise an ineffective
assistance of habeas counsel claim, commonly referred
to as a habeas on a habeas, was approved by our
Supreme Court in Lozada v. Warden, 223 Conn. 834,
613 A.2d 818 (1992). In Lozada, the court determined
that the statutory right to habeas counsel for indigent
petitioners provided in General Statutes § 51-296 (a)
includes an implied requirement that such counsel be
effective, and it held that the appropriate vehicle to
challenge the effectiveness of habeas counsel is through
a habeas petition. . . . In Lozada, the court explained
that [t]o succeed in his bid for a writ of habeas corpus,
the petitioner must prove both (1) that his appointed
habeas counsel was ineffective, and (2) that his trial
counsel was ineffective. Lozada v. Warden, supra, 223
Conn. 842. As to each of those inquiries, the petitioner
is required to satisfy the familiar two-pronged test set
forth in Strickland v. Washington, [supra, 466 U.S. 687].
. . . In other words, a petitioner claiming ineffective
assistance of habeas counsel on the basis of ineffective
assistance of trial counsel must essentially satisfy
Strickland twice . . . .’’ (Citation omitted; internal
quotation marks omitted.) Adkins v. Commissioner of
Correction, 185 Conn. App. 139, 150–51, A.3d ,
cert. denied, 330 Conn. 946, 196 A.3d 326 (2018); Gerald
W. v. Commissioner of Correction, 169 Conn. App. 456,
463–64, 150 A.3d 729 (2016), cert. denied, 324 Conn. 908,
152 A.3d 1246 (2017). We emphasize that the petitioner
faces a ‘‘herculean task . . . .’’ (Internal quotation
marks omitted.) Lebron v. Commissioner of Correc-
tion, 178 Conn. App. 299, 319, 175 A.3d 46 (2017), cert.
denied, 328 Conn. 913, 179 A.3d 779 (2018). Guided by
these principles, we turn to the specifics of the petition-
er’s appeal.
The petitioner claims that his first habeas counsel,
Kraus, was ineffective in failing to challenge the effec-
tiveness of his criminal trial counsel, Skyers, regarding
his failure (1) to make efforts to exclude evidence of
items related to BB guns and firearms, (2) to make
efforts to exclude evidence of date and time stamped
photographs of the residences of the petitioner and
the victim, (3) to make efforts to exclude the victim’s
identification of the petitioner in a photographic array,
(4) to make efforts to exclude hearsay statements made
by the victim to an emergency department nurse, (5)
to object to improper jury instructions and (6) to object
to the prosecutor’s closing argument. The respondent,
the Commissioner of Correction, counters, inter alia,
that as a result of the overwhelming evidence of the
petitioner’s guilt, he cannot establish prejudice, and,
therefore, his habeas action must fail. We agree with
the respondent’s argument.
In the petitioner’s direct appeal, we set forth the
following facts that the jury reasonably could have
found. In September, 2005, the victim moved into an
apartment adjoining the petitioner’s apartment. State
v. Buie, supra, 129 Conn. App. 780. At that time, she
met the petitioner and, approximately one month later,
she met Martin. Id. The victim ‘‘socialized with the [peti-
tioner] and Martin on several occasions after moving
into the [residential] complex.’’ Id., 780 n.4. In Novem-
ber, 2006, the victim returned to her apartment at
approximately 1:30 a.m., after socializing with a friend.
Soon thereafter, she fell asleep on her living room
couch. Approximately three hours later, ‘‘with [her]
apartment completely dark, [the victim] awoke to what
she believed was a gun pressed against her head.’’
Id., 780.
‘‘The person holding the gun to her head ordered [the
victim] to put her hands behind her back. [The victim]
recognized the voice as that of the [petitioner]. A man
later identified as the [petitioner] then forced [the vic-
tim] to put her arms behind her back and put a piece
of duct tape over her mouth and also bound her hands
together with duct tape. With [the victim’s] pants
removed, the [petitioner] and Martin then took turns
inserting a dildo into [the victim’s] vagina and rectum
while holding the gun to her head. When they were
finished, the [petitioner] inserted his penis into [the
victim’s] vagina.’’ Id., 780–81.
Following the assault, the victim went to the apart-
ment of another neighbor and asked her to call the
police. Id., 781. The victim told the responding police
officer that the petitioner and Martin had ‘‘raped her.’’
Id. After obtaining a search warrant for the petitioner’s
apartment, the police seized, inter alia, two dildos, two
BB guns and a roll of duct tape. Id., 782.
In order to prevail in this habeas proceeding, the
petitioner must establish, inter alia, that he suffered
prejudice as a result of his counsels’ deficient perfor-
mances. ‘‘To satisfy the second prong of Strickland,
that his counsel’s deficient performance prejudiced his
defense, the petitioner must establish that, as a result
of his trial counsel’s deficient performance, there
remains a probability sufficient to undermine confi-
dence in the verdict that resulted in his appeal. . . .
The second prong is thus satisfied if the petitioner can
demonstrate that there is a reasonable probability that,
but for that ineffectiveness, the outcome would have
been different. . . . An ineffective assistance of coun-
sel claim will succeed only if both prongs [of Strickland]
are satisfied. . . . The court, however, may decide
against a petitioner on either prong, whichever is eas-
ier.’’ (Internal quotation marks omitted.) Francis v.
Commissioner of Correction, 182 Conn. App. 647, 651–
52, 190 A.3d 985, cert. denied, 330 Conn. 903, 191 A.3d
1002 (2018).
In the present case, the evidence established that the
victim had been sexually assaulted by two individuals;
the disputed issue was whether the petitioner was one
of the assailants.2 The habeas court, considering the
evidence,3 properly concluded that the petitioner failed
to demonstrate a reasonable probability that, but for
the ineffectiveness of Kraus and Skyers, the outcome
of his criminal trial would have been different. The
police discovered a dildo in the petitioner’s residence
that contained the victim’s DNA profile. Testing of the
victim’s vaginal swabs revealed the presence of DNA
consistent with the petitioner’s DNA. Additionally, anal-
ysis of the duct tape recovered from the victim’s apart-
ment and the roll of duct tape that was seized from the
petitioner’s apartment indicated that the items were
‘‘similar.’’ The victim, who knew both the petitioner and
Martin, identified these individuals by their voices to
the police while at her neighbor’s apartment. See State
v. Buie, supra, 129 Conn. App. 781. At the habeas trial,
Skyers testified that Martin had made a ‘‘full confession
and [implicated] the petitioner’’ in the assault of the
victim. Additionally, Barbara Ferreira, the victim’s
neighbor, provided information to the police that was
consistent with the time frame of the events set forth
during the prosecution’s case.
On the basis of this record, we conclude that the
habeas court properly determined that, due to the over-
whelming evidence of guilt, the petitioner could not
establish prejudice as a result of any allegedly deficient
performance by Skyers or Kraus. His claim of ineffec-
tive assistance of counsel, therefore, must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See generally Kaddah v. Commissioner of Correction, 324 Conn. 548,
550, 153 A.3d 1233 (2017) (Connecticut law permits second petition for
writ of habeas corpus challenging performance of counsel in litigating first
petition for writ of habeas corpus); Johnson v. Commissioner of Correction,
168 Conn. App. 294, 308, 145 A.3d 416 (petitioner has right to effective
assistance of habeas counsel), cert. denied, 323 Conn. 937, 151 A.3d 385
(2016).
2
We note that the habeas court specifically found that the petitioner’s
alibi lacked credibility.
3
The habeas court characterized the state’s case as containing ‘‘over-
whelming evidence of the petitioner’s guilt . . . .’’