******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

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 electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and 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

Publications, Judicial Branch, State of Connecticut.

******************************************************
APPENDIX

WAYNE J. JONES, SR. v. COMMISSIONER

OF CORRECTION*

Superior Court, Judicial District of Tolland

File No. CV-12-4004724

Memorandum filed November 21, 2014

Proceedings

Memorandum of decision on petitioner’s petition for

writ of habeas corpus. Petition denied.

Dante R. Gallucci, for the petitioner.

Craig P. Nowak, senior assistant state’s attorney, for

the respondent.
Opinion

OLIVER, J. The petitioner, Wayne Jones, initiated this

petition for a writ of habeas corpus, claiming that his

prior habeas counsel provided him ineffective legal representation during his previous habeas trial. He seeks

an order of this court vacating his conviction and

returning the matter to the criminal court for further

proceedings. The court finds the issues for the respondent, the Commissioner of Correction, and denies the

petition.

I

PROCEDURAL HISTORY

The petitioner was convicted after trial of sexual

assault in the first degree in violation of General Statutes § 53a-70 (a) (1); burglary in the first degree in

violation of General Statutes (Rev. to 2005) § 53a-101

(a) (2); and kidnapping in the first degree in violation

of General Statutes § 53a-92 (a) (2) (B). Attorney Barry

Butler represented the petitioner in the criminal matter.

On December 16, 2005, the trial court (Rodriguez, J.)

imposed a total effective sentence of thirty-five years

imprisonment, execution suspended after twenty-five

years to serve, followed by thirty-five years of probation.

The petitioner appealed from the judgment of conviction, which was affirmed by the Appellate Court. State

v. Jones, 115 Conn. App. 581, 974 A.2d 72, cert. denied,

293 Conn. 916, 979 A.2d 492 (2009).

The petitioner filed his first habeas corpus petition,

Docket No. CV-07-4001687, in which he was represented

by Attorney Joseph Visone. On October 25, 2010, after

trial, the court(T. Santos, J.) denied the habeas petition.

A subsequent appeal of the habeas court’s decision was

dismissed by the Appellate Court on March 27, 2012.

See Jones v. Commissioner of Correction, 134 Conn.

App. 903, 38 A.3d 1253 (2012). This petition followed.

On April 11, 2012, the petitioner brought this petition.

In his one count amended petition dated April 30, 2014,

the petitioner asserts that his prior habeas counsel was

ineffective in failing to establish Attorney Butler’s deficient performance in that Attorney Butler:

1. Failed to adequately discuss with the petitioner

the state’s evidence and to advise him on the applicable

law so as to allow him to make a knowing, intelligent

and voluntary decision to try his case before a jury;

2. Failed to adequately investigate the case, potential

witnesses and potential defenses to the state’s DNA

evidence;

3. Failed to seek an independent evaluation of the

DNA evidence obtained by the state, to determine

whether exculpatory evidence could be obtained;
4. Failed to prepare and present pretrial motions

directed to obtain and preserve potentially exculpatory

DNA evidence;

5. Failed to properly prepare and argue a motion to

suppress the state’s DNA evidence; and

6. Failed to adequately prepare for trial, including

cross-examination of witnesses, rebutting the state’s

DNA evidence and arguing third party culpability as to

the petitioner’s cousin.

The petitioner argues that these several claimed deficiencies are of such magnitude as to render his representation by Attorney Butler constitutionally deficient.

For the following reasons, the several claims fail, and

the court denies the petition.

The entirety of the petition surrounds the DNA evidence presented to the court during the motion to suppress and to the jury during the underlying criminal

trial. Accordingly, the court’s focus will be on facts

found by this court relative to recovered DNA evidence.

On October 19, 2006, at a hearing on the petitioner’s

motion to suppress before the trial court (Rodriguez,

J.), Dr. Michael Bourke, lead criminalist at the Connecticut State Forensic Science Laboratory, testified to the

proper procedures for the acceptance of potential DNA

evidence from an outside agency, as well as the proper

procedures for the preservation, testing, analysis and

comparison of DNA samples in his facility. The doctor

also testified to state and federal regulations and protocols designed to maintain the integrity of both the

nationwide computerized DNA database, known as

‘‘CODIS’’ (Combining DNA Index) in general and the

State Laboratory in particular. Comparing the testimony

provided by Dr. Bourke to the subsequent trial testimony of State Laboratory employees, this court finds

nothing in the evidence to suggest that there were any

improprieties in the processing and analysis of the DNA

evidence submitted to the State Laboratory in the petitioner’s underlying criminal trial.

Karen Lamy, a criminalist at the Connecticut State

Forensic Science Laboratory’s forensic biology section,

testified at the petitioner’s criminal trial. Ms. Lamy testified to the submission of the sexual assault evidence

collection kit to the laboratory, her examination of vaginal smears collected from the victim by medical personnel, and heridentification of spermatozoa and red blood

cells on the smear. The evidence collected from the

smear was submitted by Ms. Lamy for DNA analysis.

Ms. Lamy later received buccal swabs from the petitioner and the victim’s boyfriend that were submitted

for DNA analysis.

Christine Roy, a forensic science examiner for the

Connecticut State Forensic Science Laboratory, testified at the petitioner’s criminal trial. Ms. Roy examined
the results of the vaginal smear and buccal swabs submitted to her section by Ms. Lamy for the presence of

physiological fluids and DNA testing. Ms. Roy obtained

DNA profiles from the vaginal smear. Ms. Roy also

examined known DNA profiles of the petitioner and

the victim’s boyfriend from buccal swabs submitted by

law enforcement, as well as a known DNA profile of

the victim from the sexual assault evidence collection

kit. Ms. Lamy testified that after a DNA extraction process and subsequent analysis, all of the petitioner’s DNA

profile was identified as being present in the DNA mixture of spermatozoa obtained from the vaginal swab

contained in the sexual assault collection kit taken from

the victim of the sexual assault for which the petitioner

stood trial. Ms. Lamy further testified that the expected

frequency of individuals who could be a contributor to

the DNA profile from the sperm-rich fraction of the

vaginal smear is approximately one in six hundred fifty

thousand in the African-American population. The affidavit in support of the search and seizure warrant that

authorized the taking of a buccal swab DNA sample

from the petitioner identifies him as ‘‘Black.’’

Ms. Lamy further testified that Dwayne White, the

petitioner’s cousin, was eliminated as a contributor to

the DNA profile of spermatozoa taken from the vaginal

smear contained in the sexual assault collection kit

obtained from the victim after the sexual assault for

which the petitioner stood trial.

At the petitioner’s trial on his previous habeas petition, much the same evidence was presented to the

trial court. Attorney Visone’s examination of the several

witnesses called was thorough and well within the range

of competent representation.

During the instant habeas trial, the petitioner submitted a number of exhibits as well the testimony of himself

and criminal trial counsel. The petitioner and respondent submitted into evidence portions of the trial transcript from the underlying criminal trial and motion to

suppress. The respondent also submitted into evidence

the 2010 habeas trial transcript and memorandum of

decision.

Attorney Butler testified to his representation of the

petitioner at the underlying criminal trial in 2006. He

further testified to his experience as a criminal defense

attorney for the past twenty-eight years, including as a

trial attorney in private practice, a part A public

defender, and a public defender in the office’s Capital

Defense and Trial Services Unit (hereinafter capital

unit). Attorney Butler testified to extensive experience

in the trial of serious felony offenses, including sexual

assault and murder. Prior to representing the petitioner

in the underlying trial, Attorney Butler represented

approximately forty other clients accused of similar

crimes. During the course of his experience as a criminal defense attorney, Attorney Butler became very
familiar with the use of DNA evidence in criminal prosecutions, including its collection, preservation and analysis. In addition to formal training, Attorney Butler, using

the resources of the capital unit, availed himself of the

increased access to experts and emerging technologies

in the area of DNA forensics.

Regarding his representation of the petitioner, Attorney Butler testified credibly that he familiarized himself

with the entirety of the state’s case against the petitioner, including the potential introduction of DNA evidence implicating his client. He testified to meeting

several times with the petitioner during the course of

the prosecution,reviewing the allegations and the anticipated evidence to be introduced against him at trial,

including DNA evidence. The court finds, based on his

testimony, that Attorney Butler took great pains to

make the petitioner aware of the strength of the state’s

evidence against him, especially as it related to any

potential defense strategies. The court finds that,

despite compelling evidence identifying the petitioner

as a contributor to DNA contained within a sample of

biological material collected in relation to the sexual

assault, the petitioner insisted on a defense strategy of

mistaken identity, i.e., that the victim misidentified the

petitioner as the perpetrator of the sexual assault.

The court further credits Attorney Butler’s testimony

of his extensive preparation for the trial of the underlying criminal matter, including the filing and litigation

of a motion to suppress the results of a DNA sample

taken from the petitioner based on a lack of probable

cause to seize the buccal sample, the pretrial investigation and interview of the state’s expert witness, and

the exploration of third party culpability as a potential

defense. As testified to at the habeas trial, a third party

culpability defense directed to the petitioner’s cousin

would have been unavailing, as the cousin was excluded

as a contributor of DNA to the sample of biological

material connected to the sexual assault.

Attorney Butler testified to his strategic reasoning

in not seeking an independent evaluation of the DNA

analysis performed by the employees at the State Police

Forensic Science Laboratory. Based on his training and

specific experience and familiarity with the state’s

potential trial witnesses, a decision was made to interview and cross-examine these witnesses at trial, rather

than to create additional evidence potentially damaging

to the defense by hiring an outside consultant. There

is no evidence to support a contention that an outside

DNA evaluation would have successfully challenged the

conclusions of the state’s expert witnesses. The trial

record makes clearthatthe petitioner,through Attorney

Butler, did indeed mount a defense, though unsuccessful, to contest the inculpatory effect of the state’s

DNA evidence.

The petitioner testified that the sole basis of the cur-
rent petition is his belief that Attorney Visone’s representation was ineffective in that he failed to establish

the several claimed deficiencies in Attorney Butler’s

representation only as it relates to issues surrounding

DNA evidence at the criminal trial. Contrary to the

assertions in the petition, the petitioner testified on

redirect examination that, after meeting with Attorney

Visone, he was in agreement with the claims presented

in the amended petition filed by counsel in the prior

habeas matter.

The petitioner’s testimony at the habeas trial was

loose, equivocal, contradictory and unconvincing. He

testified alternatively that he never discussed the state’s

potential DNA evidence with Attorney Butler, but that

he was made aware ‘‘through [his] attorneys’’ that the

state intended to offer DNA evidence against him at

trial. He furthertestified that he ‘‘only saw [his attorney]

once’’ prior to trial, that Attorney Butler ‘‘never came

to see [him] in jail,’’ and that he met with Attorney

Butlerthree to fourtimes.Itis clearfrom the petitioner’s

testimony that Attorney Butler did indeed discuss with

him at prison visits the nature and elements of the

offenses against him, the anticipated evidence to be

presented, including DNA, potential defenses to the

charges, the motion to suppress, and whether the petitioner would decide to take the case to trial. It is also

clearthat the petitioner did not like what he was hearing

when he ‘‘ended the conversation and . . . left.’’ The

petitioner testified that he unequivocally told Attorney

Butler that he wanted a trial and wanted his defense

strategy to be that of mistaken identity, as he ‘‘told

[Attorney Butler], I didn’t do this,’’ and that he was ‘‘not

at the crime scene.’’ It is evident from the entire record

that the petitioner refuses to accept, despite the best

efforts of counsel, the scientific conclusion that being

identified as a contributor of DNA to a biological sample

collected at a sexual assault crime scene, even in a

mixture with other contributors as in the underlying

criminal matter, is compelling evidence of identity and

of being present at the crime scene.

II

DISCUSSION

‘‘A criminal defendant’s right to the effective assistance of counsel . . . is guaranteed by the sixth and

fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution. . . . To succeed on a claim of ineffective

assistance of counsel, a habeas petitioner must satisfy

the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).’’ (Citations omitted.) Small v. Commissioner of

Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert.

denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.

Ct. 481, 172 L. Ed. 2d 336 (2008). The petitioner has the

burden to establish that ‘‘(1) counsel’s representation
fell below an objective standard of reasonableness, and

(2) counsel’s deficient performance prejudiced the

defense because there was a reasonable probability

that the outcome of the proceedings would have been

different had it not been for the deficient performance.’’

(Emphasis in original.) Johnson v. Commissioner of

Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008),

citing Strickland v. Washington, supra, 694.

‘‘To satisfy the performance prong, a claimant must

demonstrate that counsel made errors so serious that

counsel was not functioning as the counsel guaranteed

. . . by the [s]ixth [a]mendment.’’ (Internal quotation

marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert.

denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126

S. Ct. 1368, 164 L. Ed. 2d 77 (2006), quoting Strickland

v. Washington, supra, 466 U.S. 687. It is not enough for

the petitioner to simply prove the underlying facts that

his attorney failed to take a certain action. Rather, the

petitioner must prove, by a preponderance of the evidence, that his counsel’s acts or omissions were so

serious that counsel was not functioning as the ‘‘counsel’’ guaranteed by the sixth amendment, and as a result,

he was deprived of a fair trial. Harris v. Commissioner

of Correction, 107 Conn. App. 833, 845–46, 947 A.2d 7,

cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).

Under the second prong of the test, the prejudice

prong, the petitioner must show that ‘‘counsel’s errors

were so serious as to deprive the [petitioner] of a fair

trial, a trial whose result is reliable.’’ (Internal quotation

marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).

When assessing trial counsel’s performance, the

habeas court is required to ‘‘indulge a strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance . . . .’’ Strickland v. Washington, supra, 466 U.S. 689. The United

States Supreme Court explained:

‘‘A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances

of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.

Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action might be considered

sound trial strategy. . . . There are countless ways to

provide effective assistance in any given case. Even the

best criminal defense attorneys would not defend a

particular client in the same way.’’ (Citation omitted;

internal quotation marks omitted.) Id.
Ultimately, ‘‘[t]he benchmark for judging any claim

of ineffectiveness must be whether counsel’s conduct

so undermined the properfunctioning of the adversarial

process that the trial cannot be relied on as having

produced a just result.’’ Id., 686.

III

ATTORNEY BUTLER

A

Pretrial Investigation

The petitioner claims that the pretrial investigation

by his attorney was deficient in that he failed to properly

investigate, evaluate and challenge the state’s proffered

DNA evidence. Had counsel done so, the petitioner

claims, he would have discovered exculpatory DNA

evidence showing that it was a third party, perhaps

even the petitioner’s cousin, who committed the sexual

assault. As previously stated in this decision, based on

this court’s review of the relevant portions of both the

criminal and habeas trial transcripts, all available evidence contradicts the possibility of third party culpability. The court finds that the petitioner has failed to

prove this claim.

‘‘The reasonableness of an investigation must be evaluated not through hindsight but from the perspective

of the attorney when he was conducting it. . . . The

burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.’’ (Citations omitted; internal quotation marks omitted.)

Norton v. Commissioner of Correction, 132 Conn. App.

850, 858–59, 33 A.3d 819, cert. denied, 303 Conn. 936,

36 A.3d 695 (2012).

B

Evidence and Examination of Witnesses

The petitioner next claims that his trial attorney performed deficiently during the course of the trial by

failing to adequately cross-examine witnesses from the

State Laboratory and present evidence in the petitioner’s defense. ‘‘An attorney’s line of questioning on examination of a witness clearly is tactical in nature. [As

such, this] court will not, in hindsight, second-guess

counsel’s trial strategy.’’ (Internal quotation marks

omitted.) Velasco v. Commissioner of Correction, 119

Conn. App. 164, 172, 987 A.2d 1031, cert. denied, 297

Conn. 901, 994 A.2d 1289 (2010). Similarly, ‘‘the presentation of testimonial evidence is a matter of trial strategy

. . . .’’ (Citation omitted; internal quotation marks

omitted.) Bowens v. Commissioner of Correction, 104

Conn. App. 738, 744, 936 A.2d 653 (2007), cert. denied,

286 Conn. 905, 944 A.2d 978 (2008).

‘‘[C]ross-examination is a sharp two-edged sword and

more criminal cases are won by not cross-examining

adverse witnesses, or by a very selective and limited
cross-examination of such witnesses, than are ever won

by demolishing a witness on cross-examination.’’(Internal quotation marks omitted.) State v. Clark, 170 Conn.

273, 287–88, 365 A.2d 1167, cert. denied, 425 U.S. 962,

96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976). ‘‘The fact that

counsel arguably could have inquired more deeply into

certain areas, or failed to inquire at all into areas of

claimed importance, falls short of establishing deficient

performance.’’ Velasco v. Commissioner of Correction,

supra, 119 Conn. App. 172.

Based on the whole record, the court finds that as

to both the motion to suppress and the criminal trial,

Attorney Butler did properly investigate and pursue all

reasonable avenues in an effort to challenge the integrity of the state’s evidence implicating the petitioner in

the underlying sexual assault. There is no evidence of

the existence of any DNA evidence that would have

been exculpatory of the petitioner in the commission

of the crimes of which he was convicted.

Additionally, based on a review of the transcript of

the motion to suppress, this court is not persuaded of

the probability that an examination of Dr. Bourke on

law enforcement forensic evidence collection methods

before the jury would have yielded a different verdict.

There is not sufficient evidence in the record to suggest

that there existed any testimony available from any

known witness, including Dr. Bourke, that would have

been helpful in establishing the petitioner’s asserted

defense. See Nieves v. Commissioner of Correction, 51

Conn. App. 615, 624, 724 A.2d 508, cert. denied, 248

Conn. 905, 731 A.2d 309 (1999).

IV

ATTORNEY VISONE

The petitioner alleged that his habeas counsel in a

prior proceeding was ineffective for failing to raise a

claim of ineffective assistance of trial counsel on the

ground that trial counsel failed to sufficiently challenge

the state’s expected DNA evidence.

For assessing claims of ineffective assistance based

on the performance of prior habeas counsel, the Strickland standard is as follows: ‘‘[When] applied to a claim

of ineffective assistance of prior habeas counsel, the

Strickland standard requires the petitioner to demonstrate that his prior habeas counsel’s performance was

ineffective and that this ineffectiveness prejudiced the

petitioner’s prior habeas proceeding. . . . [T]he petitioner will have to prove that . . . prior habeas counsel, in presenting his claims, was ineffective and that

effective representation by habeas counsel establishes

a reasonable probability that the habeas court would

have found that he was entitled to reversal of the conviction and a new trial . . . . Therefore, as explained by

our Supreme Court in Lozada v. Warden, 223 Conn. 834,

613 A.2d 818 (1992), a petitioner claiming ineffective
assistance of habeas counsel on the basis of ineffective

assistance of [appellate] counsel must essentially satisfy Strickland twice: he must prove both (1) that his

appointed habeas counsel was ineffective, and (2) that

his trial counsel was ineffective.’’ (Citations omitted;

internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 113 Conn. App. 378, 394, 966

A.2d 780 (2009).

Therefore, in order to set forth a prima facie case of

ineffective assistance of habeas counsel on the ground

of ineffective assistance of trial counsel, the petitioner

must set forth a prima facie case of ineffective assistance of trial counsel. In the instant matter, because

the petitioner failed to set forth a prima facie case

regarding the ineffective assistance of his trial counsel,

he has not set forth a prima facie case of ineffective

assistance of his habeas counsel. Additionally, a full

review of the habeas trial transcript as well as the

habeas trial court’s memorandum of decision reveals

no deficiencies in Attorney Visone’s representation at

the trial on the previous habeas corpus petition.

V

CONCLUSION

For all of the foregoing reasons, the petition is denied.

Judgment shall enter for the respondent.

* Affirmed. Jones v. Commissioner of Correction, 169 Conn. App. 405,

A.3d (2016).