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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, conspiracy 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 petition 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 established 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 residence, testing of the victim’s vaginal swabs revealed the presence of

DNA consistent with the petitioner’s DNA, analysis of duct tape recovered from the victim’s apartment and duct tape seized from the petitioner’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 codefendant 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 prosecution’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 prejudice 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 relevant 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 Statutes §§ 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 aggravated 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 Statutes § 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 petitioner 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 Correction, 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 CV14-4005884-S. He also commenced another habeas

action, designated CV-16-4007998-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 failures.’’ Finally, the court observed that because the petitioner 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. Additional 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 petitioner’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 prevail 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 breakdown 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 Correction, 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 petitioner’s appeal.

The petitioner claims that his first habeas counsel,

Kraus, was ineffective in failing to challenge the effectiveness 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 [petitioner] and Martin on several occasions after moving

into the [residential] complex.’’ Id., 780 n.4. In November, 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 victim] 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 apartment 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 performances. ‘‘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 confidence 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 counsel claim will succeed only if both prongs [of Strickland]

are satisfied. . . . The court, however, may decide

against a petitioner on either prong, whichever is easier.’’ (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, analysis of the duct tape recovered from the victim’s apartment 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 overwhelming evidence of guilt, the petitioner could not

establish prejudice as a result of any allegedly deficient

performance by Skyers or Kraus. His claim of ineffective 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 ‘‘overwhelming evidence of the petitioner’s guilt . . . .’’