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


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    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 . . . .’’
    

Document Info

Docket Number: AC40520

Citation Numbers: 202 A.3d 453, 187 Conn. App. 414

Judges: DiPENTIMA, DiPentima, Elgo, Harper

Filed Date: 1/22/2019

Precedential Status: Precedential

Modified Date: 10/19/2024