Opinion
CV144005884S
05-11-2017
Robert Buie #301057 v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. Vernon D. Oliver, J.
The petitioner, Robert Buie, initiated this second petition for a writ of habeas corpus, claiming that his underlying criminal counsel and first habeas counsel provided him ineffective legal representation. The instant petition is consolidated with TSR-CV16-4007998. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The respondent denies the claims and leaves the petitioner to his proof. The court finds the issues for the respondent and denies the petition.
Procedural History
In the criminal matter State of Connecticut v. Robert Buie, CR07-0358072, in the Waterbury Judicial District, the petitioner was charged with attempted aggravated sexual assault in the first degree, in violation of Connecticut General Statutes § § 53a-49(a)(2) and 53a-70a(a)(1); criminal liability for aggravated sexual assault in the first degree, in violation of General Statutes § § 53a-8 and 53a-70a(a)(1); criminal liability for aggravated sexual assault in the first degree, in violation of General Statutes § § 53a-8 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).
For all purposes relevant to this petition, the petitioner was represented b attorney Errol Skyers. On October 27, 2008, the court, Alander, J., took evidence and heard argument on the petitioner's motion to suppress. The court, on October 29, 2008 denied the motion to suppress. This court adopts the following relevant findings:
" Based upon the evidence presented, I find the following facts. That Detective Michael Slavin was in charge of the police investigation of a sexual assault which occurred at 1812 Meriden Road in Waterbury, Connecticut. That he arrived at approximately 7 a.m. at 1820 Meriden Road, the front of-outside the front of 181 Meriden Road where he met with the defendant and Beverly Martin. They were outside of apartment number seventeen with other police officers.
" At the time the defendant and Beverly Martin were suspects in the alleged sexual assault. They were not, however, under arrest at the time.
" Apartment number seventeen at 1820 Meriden Road is a townhouse with a front entrance on to the street.
" Ms. Martin and the defendant were outside in the front of the townhouse. Both the defendant and Martin said they were willing to come to the police station for further questioning. They voluntarily indicated their willingness to go to the police station. They were not in handcuffs. They were not under arrest. At the time Ms. Martin indicated that before she was willing to go to the police station she needed to obtain some personal belongings that were in apartment number seventeen, specifically, keys and a cell phone. She stated to the police officers, I suppose you guys want to come in with me.
The witness responded--Detective Slavin responded, yes, it would be a good idea and the police accompanied--two police officers accompanied Ms. Martin into the apartment to escort her when she picked up her belongings.
" The reason they did so was because the police at the time knew details of the alleged sexual assault and they knew that a handgun had been involved in the sexual assault and they were concerned for officer safety because they had reason to believe that the handgun might be in the apartment, number seventeen, that Ms. Martin was entering to retrieve her belongings. That the police did not go into the apartment with any intent to search the apartment for evidence or any intent to seize any items. Their intent was solely to accompany Ms. Martin for officer safety.
" Detective Baxter and Detective Mills accompanied Ms. Martin into the apartment. They were gone a very brief period of time. They seized no items when they were in the apartment though they did observe at least one item that they believed was connected to the sexual assault. The police then secured the apartment, posted officers outside the apartment so that no one could enter the apartment. And Detective Slavin told Detective Baxter to apply for a search warrant for apartment number seventeen. The defendant and Ms. Martin were voluntarily transported to the police department. Again, they were not placed in handcuffs.
" At approximately twelve noon a search warrant for apartment number seventeen was signed by Judge Upson. No police officers entered apartment number seventeen prior to the obtaining of the search warrant. That prior to the police entering apartment number seventeen initially to accompany Ms. Martin both the defendant and Ms. Martin said that they both lived in the apartment. At the time the police did not know whose name was on the lease.
" That Lisa Ragaza, who was a crime technician with the Waterbury Police Department, entered apartment number seventeen at 1820 Meriden Road pursuant to the search warrant at approximately 12:15 a.m. In that time certain items were seized including dildos, guns, ammunition, and duct tape. Additionally, photos were taken.
" I find specifically that . . . neither Ms. Ragaza, or any member of the police department were in apartment seventeen at 9:26 or 9:30 a.m. as indicated by the wall clock.
" With those findings of fact, let me address the issues raised by the motion to suppress. Let me first deal with the claim that the police conducted a search inside apartment number seventeen and seized items prior to obtaining the search warrant, so called wall clock issue, what I deem to be the wall clock issue. As I stated, the . . . search warrant as signed by Judge Upson shortly before twelve noon. No police officer or anyone else entered apartment seventeen after the police escorted Ms. Martin out of the apartment upon obtaining her belongings at approximately 7 a.m. The police did not re-enter the apartment until approximately 12:15 a.m. after the signing of the search warrant. I credit Ms. Ragaza's testimony to that effect and find that the time indicated on the wall clock apparently was in error. So I conclude that the police conducted a search and seizure of the items pursuant to a valid search warrant.
" With respect to the more interesting issue related to whether there was a valid consent to enter the apartment when the police accompanied Ms. Martin for her to obtain her belongings. It is actually axiomatic that searches and seizures inside a home without a warrant are presumptively unreasonable. A warrantless search or entry into a home is not unreasonable, however, under the Fourth amendment to the United States Constitution or Article First section 7 of the Connecticut Constitution when a person with authority to do so has freely consented. It is the state's burden to prove that the consent was freely and voluntarily given, and that the person who purported to consent had the authority to do so. Such consent may not be established by mere acquiescence to police authority.
" When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. That's United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242. Common authority is not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. In addition, a warrantless search is valid when it is based on the consent of a third party who the police, at the time of the search, reasonably believe possesses common authority over the premises but who in fact does not have such authority. Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148. As with other factual determinations bearing upon search and seizure, determination of consent to enter must be judged against an objective standard, would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises.
" So in this case in my view the result rests upon a determination of whether the police could reasonably believe at the time of the search that Ms. Martin possessed common authority over the premises and whether her consent to for the police to enter the apartment was freely given. I do not have to determine for purposes of these proceedings whether Ms. Martin actually possessed common authority over the premises, if I determine that it was reasonable for the police to believe that she possessed common authority. So it's to that issue that I now turn. And the first subpart is whether consent was freely given by Ms. Martin. As I understand the legal standard, the consent must be voluntary. It must be free from any aspect of coercion, it must be the product of an essentially free and unconstrained choice. I find that the facts in this case support an affirmative answer to both of those questions that it was free from any aspect of coercion, and it was essentially her free and unconstrained choice.
" I point to the following facts for that determination. There was no display of weapons by the police or other show of force when conversing with Ms. Martin in obtaining her consent. Ms. Martin was not in--not in handcuffs or restrained in any way. That it was Ms. Martin who initiated the idea of entering the apartment. It was not at the initiation of the police officers. Ms. Martin suggested that the police might want to accompany her and the police simply answered in the affirmative. They did not, as I said, the police did not initiate the request to enter the apartment or the request to go with her into the apartment. Ms. Martin was not under arrest. Ms. Martin had already indicated her willingness to cooperate with the police. She had already agreed to accompany the police to the police station for questioning. Her conversation with the police took place outside in public not in any potentially coercive atmosphere such as a police station. " So I find under the totality of the circumstances that Martin voluntarily consented to the police entering the apartment with her in escorting her within the apartment so that she could retrieve her personal items.
" So the next issue is whether it was objectively reasonable for the police to believe that Martin possessed common authority over the premises. I find that it was for the following reasons. That prior to entry Martin told police that both she and Buie lived in the apartment. That prior to entry the defendant similarly stated that both he and Martin lived in the apartment. The police had no reason to doubt Martin's statement that she lived there. Martin was standing outside in front of the entrance to the townhouse apartment. Though separated from Martin the defendant was nearby. Martin told the police that she had personal items inside the apartment, specifically, keys and a cell phone. The presence of those items inside the apartment were consistent with her statement that she lived there. Buie was present outside the apartment and did not object when police began to enter the apartment with Martin. The search warrant affidavit indicates that the police knew that Ms. Martin was the defendant's girlfriend, a relationship consistent with her living in the apartment with the defendant.
" Finally, the police's intent in entering the apartment was not to conduct a search for evidence rather their intent was to preserve and protect officer safety. The police knew that a prior sexual assault had been accomplished by the use of a handgun and the police knew that Martin and the defendant were suspects and that a handgun could be potentially in the apartment.
" I find that the facts of this case are very similar to the facts of the case in State v. Vazquez, 87 Conn.App. 792, 867 A.2d 15. In that case the Appellate Court found that it was reasonable for police to rely on the apparent authority of the defendant's girlfriend who answered the door and told the police that she lived in the apartment with the defendant, although ultimately it was shown that she did not in fact have such authority, that she did not in fact live there.
" The other issue that was raised by the defendant is also an interesting one which is whether the police were obligated to ask the defendant for his consent prior to entering the apartment. I find that they did not and for the following reasons. They already had the consent of a person who had apparent authority to authorize entry into the apartment. That is Ms. Martin. Under Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208, the U.S. Supreme Court has specifically stated that the police are not required to confirm the actual authority of a consenting individual whose authority is apparent. In that case the U.S. Supreme Court also stated that consent of an individual apparent authority is sufficient to authorize entry. Police are not required to take affirmative steps to find a potentially objecting co-tenant provided that there's evidence that the police have removed the potentially objecting tenant from the residence for the sake of evading a possible objection. Well, that is not the situation, here, there's no evidence that police removed Mr. Buie to be sure he wouldn't object. In fact, the evidence is quite contrary, that Mr. Buie was still present at the entrance to the apartment when Martin gave her consent.
" I think it bears noting this is not a situation such as found in Georgia v. Randolph in which one co-tenant actually objected to the search and the police went in anyway. Georgia v. Randolph, the U.S. Supreme Court invalidated that search finding that when co-tenant actually objects, the police are not allowed to go in. There's no evidence here that Mr. Buie ever objected to their entering the apartment with Ms. Martin. It's also not the situation found in State v. Brunetti where one co-tenant consented and a second declined to sign a written consent to search.
" Again, there's no evidence here that the defendant ever objected to entry or declined to consent to police entry into the apartment. And, again, it is important to note that the defendant is not claiming that he actually objected to the police entry. He's only claiming that the police were obligated to ask him for his consent. Which does raise the interesting issue of whether the police are required to seek consent of a person who they believe is a co-tenant of the premises in this case the defendant and who is present at the scene prior to entering the premises when they have already obtained the voluntary consent of a person who they reasonably believe is a co-tenant with common authority over the apartment.
" And, I conclude that they do not and I specifically rely on the following language from Georgia v. Randolph . In that case the U.S. Supreme Court stated as follows; we have to admit that we are drawing a fine line, and the fine line is between when there actually has been an objection by a co-tenant and when there has not been any objection by a tenant. It a potential defendant with self-interest in objecting is, in fact, at the door and objects, the co-tenant's permission does not suffice for a reasonable search. Whereas, the potential objector nearby, but not invited to take part in the threshold colloquy, loses out.
" That's this case. Mr. Buie was nearby. He wasn't invited to take part in the issue of consent and in the opinion of the U.S. Supreme Court in Georgia v. Randolph, he loses out.
So for those reasons the motion to suppress is denied. State v. Buie, 2008 WL 4983924 (Conn.Sup.Ct. 2008) (Alander, J.).
On November 5, 2008, the petitioner, after jury trial, was convicted on all five counts. On January 9, 2009, the court sentenced the petitioner to a total effective sentence of forty years to serve followed by fifteen years of special parole. The petitioner appealed. In affirming the judgment, the Appellate Court made the following findings relevant to the resolution of the instant matter:
" The defendant, Robert S. Buie, appeals from the judgment of conviction, rendered following a jury trial, of two counts of aiding and abetting aggravated sexual assault in the first degree in violation of General Statutes § § 53a-8 and 53a-70(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). On appeal, the defendant claims that the court erred in denying his motion to suppress all evidence seized from his apartment because it improperly concluded that the police were permitted to enter his apartment without a search warrant pursuant to the apparent authority doctrine. Specifically, the defendant claims that although the apparent authority doctrine is recognized as an exception to the warrant requirement under federal law, it violates article first, § 7, of the constitution of Connecticut. We do not agree and, accordingly, affirm the judgment of the trial court.
" On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In September 2005, LB moved into an apartment adjoining the defendant's apartment in a residential complex (complex). Upon moving into her new apartment, LB first encountered the defendant, and, approximately one month later, LB also met the defendant's girlfriend, Beverly Martin.
" On the night of November 18, 2006, LB and a friend visited two bars, and LB arrived home at approximately 1:30 a.m. the following day. LB fell asleep on her living room couch, and, at approximately 4:26 a.m., with her apartment completely dark, she awoke to what she believed was a gun pressed against her head.
" The person holding the gun to her head ordered LB to put her hands behind her back. LB recognized the voice as that of the defendant. A man later identified as the defendant then forced LB 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 her pants removed, the defendant and Martin then took turns inserting a dildo into LB's vagina and rectum while holding the gun to her head. When they were finished, the defendant inserted his penis into LB's vagina.
" After the defendant and Martin left LB's apartment, LB went to a neighbor's apartment and had the neighbor call the police. Officer Joseph Farina arrived at the complex and spoke to LB. LB told Farina that the defendant and Martin had raped her. After an ambulance transported LB to the hospital, Farina and several officers began searching for the defendant and Martin. Farina found the defendant sitting in front of the complex, speaking with two officers.
" Sergeant Michael Slavin arrived at the complex at approximately 7 a.m. Slavin learned that the defendant and Martin were willing to go to the detective bureau for further questioning about the incident involving LB. Prior to departing the complex, Martin stated that she wanted to retrieve some items from " her room." Without prompting, Martin stated to Slavin, " I suppose you guys want to come with me . . ." Slavin agreed, and Detective Richard Baxter and another detective accompanied Martin into the apartment. While in the apartment, Baxter observed something that he believed was connected to the sexual assault. When he exited the apartment, he told Slavin about what he had seen in the defendant's apartment. Officers secured the apartment, and the defendant and Martin were transported to the detective bureau. Later, after the police obtained a search warrant for the defendant's apartment, they recovered, among other things, a flesh-colored dildo, a black dildo, two BB guns, a container of BBs and roll of duct tape.
" When LB arrived at the hospital, she met with Christina Strachan, an emergency room nurse. Strachan examined LB and noticed a lump on the back of her head, which was consistent with blunt trauma. Strachan also observed red marks on the back of LB's neck and her left shoulder and marks on both knees, consistent with a rug rash. Finally, Strachan observed that the bottom wall of LB's vagina was very tender, which Strachan stated occurs when the vagina is penetrated and the woman is not aroused. After her medical examinations were complete, an officer drove LB to the police station where she identified the defendant and Martin in a photographic array as her attackers.
" On January 16, 2007, the police arrested the defendant in New York City, with the assistance of the United States Marshals Service's violent fugitive task force, and one day later, Martin surrendered at the Waterbury police station. The defendant was charged with two counts of aiding and abetting aggravated sexual assault in the first degree and one count each of attempted aggravated sexual assault in the first degree, conspiracy to commit aggravated sexual assault in the first degree and burglary in the first degree.
" On March 4, 2008, the defendant filed a motion to suppress all evidence seized from his apartment. Specifically, the defendant claimed that because Martin did not live with him in his apartment, the " police were without authority to enter into the apartment without [his] consent in the course of conducting [their] investigation, " and, therefore, they violated his state and federal constitutional rights. On October 27, 2008, the court held a hearing on the defendant's motion. The defendant testified that Martin only had access to his apartment when he also was present in the apartment, that Martin's name was not on the lease and that only he and his former wife had keys to the apartment. He also claimed that he and Martin were not in a romantic relationship and were nothing more than friends. Finally, the defendant argued that because he was present at the scene, the police were obligated to obtain his permission before entering the apartment.
" Slavin also testified at the hearing and stated that on November 19, 2006, the police did not know who held the lease for the defendant's apartment. He claimed, however, that " I feel that [Martin] said she was living there. She obviously had personal belongings there. We felt she established residency there. Therefore . . . she was able to give consent for the officers to go in with her." When asked whether the defendant told him that Martin lived in the apartment, Slavin responded that " Ms. Martin told us she lived there."
" On October 29, 2008, the court denied the defendant's motion to suppress in an oral decision. Before issuing its decision, the court made several findings of fact. The court first concluded that Slavin was in charge of the police investigation of the sexual assault and that when he arrived at the complex, he met with the defendant and Martin, who were not under arrest at the time. The court then concluded that Martin had indicated that before she was willing to go to the police station, she needed to obtain some personal belongings that were in the apartment, specifically, keys and a cellular telephone. She stated to the officers, " I suppose you guys want to come in with me." The court found that the police agreed to follow Martin because " the police at the time knew details of the alleged sexual assault, and they knew that a handgun had been involved in the sexual assault and they were concerned for officer safety because they had reason to believe that the handgun might be in the apartment . . . that . . . Martin was entering to retrieve her belongings. That the police did not go into the apartment with any intent to search the apartment for evidence or any intent to seize any items. Their intent was solely to accompany . . . Martin for officer safety."
" After making these factual findings, the court, citing Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), stated that " a warrantless search is valid when it is based on the consent of a third party whom the police, at the time of the search, reasonably believe possesses common authority over the premises but who in fact does not have such authority." The court concluded that Martin voluntarily provided the police with permission to enter the apartment and that it was reasonable for the police to have believed that Martin possessed common authority over the apartment. The court based this determination on its findings that Martin told the police that both she and the defendant lived in the apartment, that Martin had personal items in the apartment, that the defendant was present outside the apartment and did not object when the police entered the apartment with Martin and because the police knew that Martin was the defendant's girlfriend. The court also relied on State v. Vazquez, 87 Conn.App. 792, 867 A.2d 15, cert. denied, 273 Conn. 934, 875 A.2d 544 (2005), in which this court, without adopting the apparent authority doctrine, held that it was reasonable for the police to rely on the apparent authority of the defendant's girlfriend when she answered the door and told the police that she lived in the apartment with the defendant, although she in fact did not live there. Finally, citing Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), the court concluded that the police were not obligated to ask the defendant for his consent prior to entering the apartment even though he was nearby.
" On November 5, 2008, after a jury trial, the defendant was found guilty on all counts. On January 9, 2009, the court sentenced the defendant to a total effective term of forty years imprisonment and fifteen years of special parole. This appeal followed.
" The defendant claims that the trial court erred in not granting his motion to suppress the evidence seized from his apartment because our state constitution prohibits searches based on apparent authority. Specifically, the defendant argues that, pursuant to State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992), article first, § 7, of the constitution of Connecticut provides greater protection than the fourth amendment to the United States constitution, and, therefore, searches based on apparent authority violate the rights of Connecticut citizens . . .
" We conclude, however, that the defendant has not satisfied the third prong of Golding because the alleged constitutional violation of his rights pursuant to article first, § 7, of the constitution of Connecticut does not clearly exist. After considering the public policy behind the enactment of article first, § 7, prior case law from this state and our sister states and other relevant public policies, we conclude that the apparent authority doctrine does not violate our state constitution, and, accordingly, affirm the judgment of the court . . .
" To protect against the concerns articulated in Marsala, therefore, we conclude that a warrantless entry by the police pursuant to the apparent authority doctrine is valid only when it is based on the consent of a third party who the police, at the time of the entry, reasonably believe possesses common authority over the premises, but, in reality, does not. The reasonableness of the belief must be measured by an objective standard. See Illinois v. Rodriguez, supra, 497 U.S. at 186, 188, 110 S.Ct. 2793. Additionally, this conclusion must be made after an appropriate inquiry given the factual circumstances facing the police as to the third party's common authority over the premises. Each case, of course, must be judged in light of its own facts and circumstances.
" We are sensitive to the concerns that, in some instances, police might improperly seek to obtain consent to search from someone lacking authority to give such consent. We are confident, however, that if such instances occur, aggressive defense lawyers will be able to invoke court processes to protect their clients' rights to be free from unreasonable searches.
" In the present case, Martin invited the police into the apartment. She not only told the police that she lived in the apartment, but the defendant did not object when the police entered his apartment with Martin and Martin's personal belongings were in the defendant's apartment. It was reasonable for the police to believe that Martin had common authority over the apartment. Pursuant to the apparent authority doctrine, we conclude that the police did not violate the defendant's rights pursuant to article first, § 7, of the constitution of Connecticut, and, therefore, the defendant has not satisfied the third prong of Golding ."
State v. Buie, 129 Conn.App. 777, 21 A.3d 550 (2011). Thereafter, the Connecticut Supreme Court granted certification to appeal on one issue: " Did the Appellate Court properly conclude that, in the context of a search of a private home, the apparent authority doctrine does not violate [the State Constitution]." State v. Buie, 303 Conn. 903, 31 A.3d 1179 (2011). On the merits, the Supreme Court affirmed the court below, adopting its decision with some clarification. State v. Buie, 312 Conn. 574, 94 A.3d 608 (2014). The petitioner was represented on appeal by attorney Neal Cone.
During the pendency of the direct appeal, the petitioner filed three pro se petitions for a writ of habeas corpus, assigned docket numbers CV09-4003185, CV10-4003599, and CV12-4004375. The three matters were consolidated under the latter docket number. The petitioner was represented by attorney Paul Kraus. In his amended petition, the petitioner asserted the following constitutional deficiencies as to underlying counsel Skyers:
a. Counsel failed to call Barbara Ferreira as an alibi witness;
b. Counsel failed to question the complaining witness, J.B., re: contracting sexually transmitted disease as a result of the alleged offense;
c. Offer adequate expert testimony re: DNA evidence presented by the respondent;
d. Challenge the DNA evidence based on a challenge to the respondent's chain of custody; and
e. Rebut or challenge any testimony re: Beverly Martin's residence.
At the close of evidence and after arguments from counsel, the court, Cobb, J., denied all five claims based on the petitioner's failure to carry his burden of proof. Buie v. Warden, 2012 WL 7831271 (Conn.Sup.Ct. 2012) (Cobb, J.). The Connecticut Appellate Court dismissed the appeal per curiam. Buie v. Commissioner of Correction, 151 Conn.App. 901, 93 A.3d 182 (2014), and the Connecticut Supreme Court denied the petition for certification to appeal. Buie v. Comm'r of Corr., 314 Conn. 910, 100 A.3d 402 (2014).
On December 5, 2013, while both his direct appeal and habeas appeal were pending, the petitioner filed the pro se petition giving rise to the instant matter, assigned docket number CV14-4005884. He subsequently filed another pro se writ assigned docket number CV16-4007998. The matters were consolidated under the former docket number. In amended petition filed July 6, 2016, the petitioner asserts the following:
1. First habeas counsel was ineffective in failing to assert the following several deficiencies of underlying counsel at the suppression hearing:
a. That underlying counsel failed to properly object to the admission of photographs of the victim's residence;
b. That underlying counsel failed to properly object to the admission of photographs of the petitioner's residence; and
c. That underlying counsel failed to properly prepare the petitioner to testify at the suppression hearing.
2. First habeas counsel was ineffective in failing to assert the constitutional deficiency of underlying counsel at the underlying trial in failing to file a motion in limine and object to several pieces of evidence and related testimony submitted at the underlying trial as irrelevant, as more prejudicial than probative and inadmissible evidence of other crimes.
3. First habeas counsel was ineffective in failing to assert the constitutional deficiency of underlying counsel at the underlying trial in failing to file a motion in limine and object to several pieces of evidence and related testimony submitted at the underlying trial as irrelevant, and as more prejudicial than probative.
4. First habeas counsel was ineffective in failing to assert the constitutional deficiency of underlying counsel at the underlying trial in failing to file a motion in limine and object to certain testimony from the victim as inadmissible constancy of accusation evidence that was not related to medical diagnosis or treatment.
5. First habeas counsel was ineffective in failing to assert the constitutional deficiency of underlying counsel at the underlying trial in failing to properly object to the admission of photographs of the victim's residence.
6. First habeas counsel was ineffective in failing to assert the constitutional deficiency of underlying counsel at the underlying trial in failing to properly object to the admission of photographs of the petitioner's residence.
7. First habeas counsel was ineffective in failing to assert the constitutional deficiency of underlying counsel at the underlying trial in failing to adequately cross examine the victim regarding:
a. A civil defective premises action filed against the property management company and/or landowner; and
b. The eviction proceedings pursued against the victim prior to the date of the sexual assault. (Based on the lack of evidence and analysis at trial, the court deems these claims abandoned.)
8. First habeas counsel was ineffective in failing to assert the constitutional deficiency of underlying counsel at the underlying trial in failing to interview and call as a witness Barbara Ferreira to support the petitioner's alibi defense.
9. First habeas counsel was ineffective in failing to assert the constitutional deficiency of underlying counsel at the underlying trial in failing to secure and present evidence of the results of a test of the petitioner for chlamydia that the victim claimed to have contracted from the petitioner (this claim was withdrawn at the start of the habeas trial).
10. First habeas counsel was ineffective in failing to assert the constitutional deficiency of underlying counsel at the underlying trial in failing to prepare the petitioner to testify at trial.
11. First habeas counsel was ineffective in failing to assert the constitutional deficiency of underlying counsel at the underlying trial in failing to object to certain jury instructions.
12. First habeas counsel was ineffective in failing to assert the constitutional deficiency of underlying counsel at the underlying trial in failing to request a jury instruction related to the petitioner's alibi defense.
13. First habeas counsel was ineffective in failing to assert the constitutional deficiency of underlying counsel at the underlying trial in failing to object to move for a mistrial based on portions of the closing argument of the trial prosecutor.
14. First habeas counsel was ineffective in failing to assert the constitutional deficiency of underlying counsel at the underlying trial based on counsel's " improper" closing argument.
15. First habeas counsel was ineffective in failing to assert the constitutional deficiency of underlying counsel at the underlying trial in failing to object or move for a mistrial based on the trial prosecutor's rebuttal closing argument.
The respondent, in a return dated November 2, 2016, denies the claims. The court heard the trial of this matter on November 8 and 9, 2016. The petitioner offered the following witnesses: himself and attorney Errol Skyers. There were also a number of exhibits entered into evidence, including exhibits from the underlying trial and pleadings from the first habeas trial. The petitioner submitted both pre-trial and post-trial briefs.
II
Law/Discussion
A. Civil Matters-Generally Standard of Proof
The standard of proof in civil actions, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
Burden of Proof
" While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it." Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence. Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1982). Failure to do so results in judgment for the defendant. Id.
The Proceedings
" The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). " It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . it is the quintessential function of the factfinder to reject or accept certain evidence . . ." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). " The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). " [Nothing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). " The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. " The determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333, 764 A.2d 199 (2001).
Credibility
It is well established that " [i]t is within the province of the trial court, when sitting as the factfinder, to weigh the evidence presented and determine the credibility and effect to be given the evidence . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude . . . An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [factfinder] . . . [who has] an opportunity to observe the demeanor o the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation mark omitted.) State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007) (See also Dadio v. Dadio, 123 Conn. 88, 92-93, 192 A. 557 (1937)). Such observation may include al genuine and spontaneous reactions of the witness in the courtroom, whether or not on the stand, but only to the extent that they bear on the witness's credibility. State v. McLaughlin, 126 Conn. 257, 264-65, 10 A.2d 758 (1939). It is generally inappropriate for the trier [of fact] to assess the witness's credibility without having watched the witness testify under oath. Shelton v. Statewide Grievance Committee, 277 Conn. 99, 111, 890 A.2d 104 (2006).
" The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous . . . Historical facts constitute a recital of external events and the credibility of their narrators . . . Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given their testimony . . ." Mahon v. Commissioner of Correction, 157 Conn.App. 246, 116 A.3d 331, cert. denied, 317 Conn. 917, 117 A.3d 855 (2015). " It is well established that reviewing court is not in the position to make credibility determinations . . . This court does not retry the case or evaluate the credibility of witnesses . . . Rather, we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude." (Internal quotation mark omitted.) Lewis v. Commissioner of Correction, 117 Conn.App. 120, 126, 977 A.2d 772, 117 Conn.App. 120, 126, cert. denied, 294 Conn. 904, 982 A.2d 647 (2009).
B. Habeas Corpus Matters-Generally
" The right to petition for a writ of habeas corpus is enshrined in both the United States constitution and the Connecticut Constitution. See U.S. Const., art. I, § 9; Conn. Const., art. I, § 12. Indeed, it has been observed that the writ of habeas corpus holds a honored position in our jurisprudence . . . The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness . . . The writ has been described as a unique and extraordinary legal remedy . . . It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired." (Citations omitted, internal quotation marks omitted.) Fine v. Comm'r of Corr., 147 Conn.App. 136, 142-43, 81 A.3d 1209 (2013).
1. Ineffective Assistance of Counsel
" A criminal defendant's right to the effective assistance of counsel . . . 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, 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, 466 U.S. 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.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 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 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 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. at 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., 689.
Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. at 686.
" [A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); see also Elsey v. Commissioner of Correction, 126 Conn.App. 144, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011) (" [b]ecause both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong" [internal quotation marks omitted]).
2. Prior Habeas Counsel
The petitioner asserts that first habeas counsel, Paul Kraus, was ineffective during the prior habeas trial in the myriad ways previously stated.
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 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 hi claims, was ineffective and that effective representation by habeas counsel established 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, supra, 113 Conn.App. at 394.
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.
The petitioner testified that he never met with attorney Kraus in person, instead speaking by telephone and through written correspondence. The petitioner testified that, although he discussed his preferred claims with counsel, attorney Kraus did not reciprocate by discussing the claims counsel decided to pursue. The petitioner did not testify that attorney Kraus failed to pursue any viable claims upon which the petitioner insisted.
Attorney Kraus did not testify in the instant matter. The court notes that the petitioner must then overcome the presumption of competent legal representation even in his absence. " Counsel is strongly presumed to render adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Minnifield v. Commissioner of Correction, 62 Conn.App. at 71-72 (2001). The court evaluates the reasonableness of his actions in the context of the whole record.
a. Errol Skyers
Attorney Skyers testified to his extensive state and federal experience as criminal defense attorney, including having tried cases involving allegations of sexual assault.
During the instant habeas trial, counsel was unable to recall a great many detail from the 2008 underlying trial. He was, therefore, unable to detail a rationale for a number of the actions taken at trial. Counsel testified credibly that he received and reviewed all discovery provided by the prosecuting authority. Attorney Skyers testified to investigating the witnesses provided by the petitioner, studying and evaluating the DNA testing results and reviewing police reports. He also testified credibly to meeting with the petitioner, discussing his anticipated trial testimony and preparing for said testimony.
Counsel also followed up on potential witnesses provided by the petitioner. Curiously, the petitioner wished to have his co-defendant called as a trial witness in support of an alibi defense. In this regard, counsel testified that his trial strategy was negatively affected by the co-defendant's full confession and implication of the petitioner. " Defense counsel will be deemed ineffective only when it is shown that defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial." (Internal quotation marks omitted.) Morquecho v. Commissioner of Correction, 164 Conn.App. 676, 684, 138 A.3d 424 (2016).
Counsel testified to his recollection, supported by the trial record, of the discovery of a sex toy, with the victim's DNA on it, in the petitioner's apartment. Counsel also testified to his recollection, supported by the trial record, of the discovery of duct tape similar to that used to bind the victim, within the petitioner's apartment. It should also be noted as it relates to the time available to prepare for trial that the petitioner filed a pro se motion for a speedy trial that had to be accommodated.
As to the decision not to object to the admission of the photographs in question, counsel testified to a possible plan to make a claim as to the diminished value of the photographs. Counsel did contest the time-date stamp evidence at the suppression hearing. Additionally, counsel conceded that the trial prosecutor had adequate foundation for the entry of the photographs and he had no substantial objections to make related to the content of the photos. Further, counsel testified credibly that the content of the photographs was a significant part of the prosecution case, but not the time-date stamp information.
A great many of the claims in the amended petition challenge underlying counsel's decision not to object at several points at trial based on current petitioner counsel's analysis of the law and rules of evidence. This challenge clearly implicates, among other things, the strategic decisions of counsel.
" [T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment . . . An [e]xperienced [litigator may] utilize the trial technique of not objecting to inadmissible evidence to avoid highlighting it in the minds of the jury." (Citation omitted; internal quotation marks omitted.) Servello v. Commissioner of Correction, 95 Conn.App. 753, 761, 899 A.2d 636, cert. denied, 280 Conn. 904, 907 A.2d 91 (2006).
Underlying counsel testified that he discussed the operability of the B.B. gun with the petitioner. While he could not recall why he did not object to the admission of the B.B. guns at trial, counsel testified credibly that he litigated the motion to suppress items seized, including the B.B. guns, without success. Further, counsel testified that, based on the nature of the charges, the admission of the guns did not demonstrate any additional culpability for the petitioner. The court notes the many pre-trial motions filed by diligent predecessor counsel, including a motion to suppress that was adopted and litigated by underlying counsel (Ex. 2).
Additionally, counsel testified credibly that he discussed a potential alibi defense as the petitioner claimed he was not in the victim's apartment at the time of the offense. As to the decision not to call Barbara Ferreira as a trial witness, underlying counsel testified credibly that, having been provided with the statement Ms. Ferreira gave to the police, he attempted to contact her, although he was uncertain of the value of the potential testimony. It is noteworthy that Ms. Ferreira was not called as a witness at the underlying trial, first habeas trial or the instant matter. Additionally, the court's review of the information provided by Ms. Ferreira to police (Ex. 9) is not inconsistent with the timeline asserted by the victim and the prosecution.
" The failure of [trial] counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense." (Internal quotation marks omitted.) Dunkley v. Commissioner of Correction, 73 Conn.App. 819, 824, 810 A.2d 281 (2002), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003). As it relates to Ms Ferreira, this court finds that her testimony would not have been helpful in establishing an alibi defense.
As it further relates to an alibi defense, as well as the challenged photo arrays, counsel correctly and credibly testified that, as the victim was personally acquainted with both defendants prior to the sexual assault, there were no reasonable bases upon which to suppress the identifications.
Finally, counsel testified credibly that he had no issue with the rebuttal closing argument of the trial prosecutor related to " pebbles" and a " scale, " describing it as a " demonstration of relative weight" as opposed to a dilution of the reasonable doubt standard. The court concurs with this analysis and finds that the argument does not run afoul of the legal standard. As it relates to the additional claims re: error in jury instructions, the petitioner has failed to establish prejudice, in the context of the entire trial.
b. The Petitioner
The petitioner was the only other witness to testify in the instant matter. H testified that he only met with underlying counsel " one time" prior to trial. For the petitioner, the " main issue" for trial was his strong desire to have his co-defendant, Beverly Martin, testify during the defense case-in-chief. He maintained this stance eve after having been provided by counsel with the statement Ms. Martin gave to police placing the petitioner at the scene of the crime with the sex toy and duct tape in his hands. This court strongly concurs with the strategic decision of underlying counsel not to call Ms. Martin as a trial witness in light of the foregoing.
The petitioner's alibi lacks credibility. The petitioner offered no corroborative evidence of his presence at a bar, or ordering Chinese food during the relevant time period. Additionally, the habeas trial testimony from the petitioner that he was unaware that Ms. Martin remained in his home until the police brought her outside would have been contradicted by Ms. Ferreira based on the information contained in the supplemental police report (Ex. 9). Based on this contradiction, as well as comparing the petitioner's testimony with other evidence more consistent with the record, the court finds that the petitioner is not a credible witness. Accordingly, there was no prejudice to the lack of an alibi jury instruction.
Pre-trial Investigation
" The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when (s)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).
Testimonial Evidence and Examination of Witnesses
" [A]n 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).
" 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 establishing deficient performance." (Citation omitted; internal quotation marks omitted.) Velasco v. Comm'r of Corr., 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).
The in-trial decision of a criminal attorney cross examining a witness to ask or not ask one particular question should be subject to analysis in the habeas context only in the rarest of circumstances. Crocker v. Commissioner of Correction, 126 Conn.App. 110, 132, 10 A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d 333 (2011).
" [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 (1976).
In the instant matter, the petitioner has failed to overcome the presumption of competent representation. Regarding the filing of motions in limine, several of the items related to the claim were previously litigated at the suppression hearing with rulings adverse to the petitioner. It is not reasonably probable that the same judge would make different rulings related to the same evidence. Accordingly, the petitioner has failed to establish deficient performance. Additionally, as it relates to the other items seized and testimony adduced, including the date and time-stamped photographs, the petitioner has failed to establish the reasonable probability that the proposed objections would have been sustained. " Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009). It is this court's finding that, in diligently and closely examining the underlying trial transcripts in search of colorable claims, the petitioner has lost sight of the overwhelming evidence of the petitioner's guilt, which has been previously set forth in this decision. It is a facile legal position to state simply that, had counsel suppressed all of the physical evidence, then this sexual assault trial would have come down to " credibility contest" between the petitioner and the victim. The court disagrees that reasonably competent habeas counsel must raise every colorable claim, as opposed to evaluating the likelihood of success on each claim and raising only those claims counsel deems most likely to succeed. Doing otherwise does indeed dilute potentially successful claims with those that are merely " viable." It should be the duty of habeas counsel, as with underlying criminal trial counsel, to employ an articulable, comprehensive trial strategy based on practical realities, rather than to make every possible claim based on the fact that they simply can be made.
" A petitioner also must establish that actual prejudice resulted from the error, " infecting his entire trial with error of constitutional dimensions" and denying him " fundamental fairness" at trial. Murray v. Carrier, 477 U.S. at 494. " The showing of prejudice required under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), is significantly greater than that necessary under the more vague inquiry suggested by the words 'plain error.' . . . The habeas petitioner must show not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimension . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Murray v. Carrier, 477 U.S. at 493-94.
A review of the transcripts and exhibits from the petitioner's trial reveals the strength of the state's case and leads this court to determine that there is no reasonable probability that the outcome would have been different. The petitioner again has no demonstrated prejudice from his counsel's alleged failures. Green v. Lynaugh, 868 F.2d 176 (5th Cir.) (per curiam), cert. denied, 493 U.S. 831, 110 S.Ct. 102, 107 L.Ed.2d 66 (1989); Correll v. Thompson, 63 F.3d 1279 (4th Cir. 1995), cert. denied sub nom; Correll v. Jabe, 516 U.S. 1035, 116 S.Ct. 688, 133 L.Ed.2d 593 (1996).
As the petitioner has failed to establish a reasonable probability that the outcomes of the criminal trial, direct appeal and first habeas trial would have been different, the petitioner has failed to establish prejudice. " Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009). In addition to restating claims previously litigated, the petitioner raises numerous other claims that fail to raise the reasonable probability that the result of the trial would have been more favorable to the petitioner. The petitioner has not demonstrated that " 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, supra, 275 Conn. 458.
Finally, as the petitioner has failed to establish the ineffective assistance of underlying counsel Skyers, he has likewise failed to establish the ineffective assistance of first habeas counsel Kraus.
III
Conclusion
For the foregoing reasons, the petition is denied. Judgment shall enter for the respondent.