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Buie v. Commissioner of Correction

Court of Appeals of Connecticut

January 22, 2019

ROBERT BUIE
v.
COMMISSIONER OF CORRECTION

          Argued October 25, 2018

         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).

          DiPentima, C. J., and Elgo and Harper, Js.

          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-7Oa (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-7Oa (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), affd, 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 CV-14-4005884-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 ...


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