Buie v. Commissioner of Correction

B
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           ROBERT S. BUIE v. COMMISSIONER
                  OF CORRECTION
                      (AC 43268)
                  Bright, C. J., and Lavine and Elgo, Js.*

                                  Syllabus

The petitioner, who had been convicted of two counts of the crime of
   aggravated sexual assault in the first degree as an accessory and one
   count each of the crimes of attempt to commit aggravated sexual assault
   in the first degree, conspiracy to commit aggravated sexual assault in
   the first degree and burglary in the first degree, sought a writ of habeas
   corpus, claiming that the trial court abused its authority by denying his
   right to a hearing when it denied his postconviction motion for DNA
   testing pursuant to the applicable statute (§ 54-102kk). The habeas court
   rendered judgment dismissing the habeas petition and, thereafter, denied
   the petition for certification to appeal. On the petitioner’s appeal to this
   court, he claimed that the habeas court improperly determined that it
   lacked subject matter jurisdiction over the habeas petition and denied
   certification to appeal. Held that the appeal was dismissed as moot;
   because, during the pendency of this appeal, this court issued its decision
   in the petitioner’s direct appeal of the trial court’s denial of his motion
   for DNA testing and affirmed that judgment in all respects, and because,
   in that proceeding, the petitioner obtained the very relief he requested
   in this habeas action, namely, a hearing before the sentencing judge on
   his motion for DNA testing pursuant to § 54-102kk, there was no practical
   relief that this court could afford the petitioner.
      Argued November 9, 2020—officially released March 16, 2021

                             Procedural History

  Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Newson, J., rendered judgment dismissing
the petition; thereafter, the court denied the petition
for certification to appeal, and the petitioner appealed
to this court. Appeal dismissed.
   J. Patten Brown III, for the appellant (petitioner).
  Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, was Maureen Platt, state’s attorney,
for the appellee (respondent).
                          Opinion

   PER CURIAM. The petitioner, Robert S. Buie, appeals
from the judgment of the habeas court dismissing his
petition for a writ of habeas corpus and from the denial
of his petition for certification to appeal. He claims
that the court improperly (1) determined that it lacked
subject matter jurisdiction over the habeas petition and
(2) denied his subsequent petition for certification to
appeal. We conclude that the petitioner’s appeal is moot
and, accordingly, dismiss the appeal.
   The petitioner was involved in a sexual assault in
2006, the details of which were recounted by our
Supreme Court in the petitioner’s direct appeal. See
State v. Buie, 

312 Conn. 574

, 577–80, 

94 A.3d 608

(2014).
Following a trial, the jury found the petitioner guilty of
two counts of aggravated sexual assault in the first
degree as an accessory 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). The trial court, Alander, J., rendered judg-
ment in accordance with that verdict and sentenced
the petitioner to a total effective sentence of forty years
of imprisonment and fifteen years of special parole.

Id., 581.

  The petitioner thereafter brought a series of unsuc-
cessful habeas actions, in which he alleged ineffective
assistance on the part of his trial counsel and first
habeas counsel. See Buie v. Warden, Superior Court,
judicial district of Tolland, Docket No. CV-XX-XXXXXXX-
S (May 11, 2017), aff’d, 

187 Conn. App. 414

, 

202 A.3d 453

, cert. denied, 

331 Conn. 905

, 

202 A.3d 373

(2019);
Buie v. Warden, Superior Court, judicial district of Tol-
land, Docket No. CV-XX-XXXXXXX-S (September 28, 2012),
appeal dismissed, 

151 Conn. App. 901

, 

93 A.3d 182

, cert.
denied, 

314 Conn. 910

, 

100 A.3d 402

(2014).
   On March 12, 2018, the petitioner filed the present
petition for a writ of habeas corpus,1 in which he sought
review of the ‘‘court’s denial of [his] motion for postcon-
viction DNA testing.’’ More specifically, he alleged that
the trial court ‘‘abused its authority [by] denying [his]
right to a hearing’’ pursuant to General Statutes § 54-
102kk. Nowhere in his petition did the petitioner allege
precisely when such a motion for DNA testing was
denied or which trial court decided that motion. By
way of relief, the petitioner asked the habeas court to
order a hearing on his motion for DNA testing.
   On June 7, 2019, the habeas court, Newson, J., issued
an order, in which it stated that the petitioner’s failure
‘‘to contest the conviction or the conditions of confine-
ment . . . deprives the habeas court of jurisdiction.’’
The court thus rendered a judgment of dismissal pursu-
ant to Practice Book § 23-29.2 The petitioner filed a
petition for certification to appeal from that judgment,
which the court denied, and this appeal followed.
   On appeal, the petitioner challenges the propriety of
both the dismissal of his habeas petition for lack of
subject matter jurisdiction and the denial of his petition
for certification to appeal. We conclude that the appeal
is moot and, therefore, do not address those claims.
  In his appellate brief, the petitioner avers that the
present habeas action is predicated on the trial court’s
denial of his June 8, 2018 postconviction motion for
DNA testing pursuant to § 54-102kk.3 That motion was
denied on December 3, 2018, in a thorough memoran-
dum of decision issued by Judge Alander, who had
presided over the petitioner’s criminal trial and sentenc-
ing. From that judgment, the petitioner appealed to this
court, which affirmed the judgment of the trial court.
See State v. Buie, 

201 Conn. App. 903

, 

240 A.3d 320

,
cert. denied, 

335 Conn. 984

, 

242 A.3d 106

(2020).
   ‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[this] court’s subject matter jurisdiction.’’ (Internal quo-
tation marks omitted.) State v. Boyle, 

287 Conn. 478

,
485, 

949 A.2d 460

(2008). Under our well established
mootness jurisprudence, ‘‘[a]n actual controversy must
exist not only at the time the appeal is taken, but also
throughout the pendency of the appeal. . . . When,
during the pendency of an appeal, events have occurred
that preclude an appellate court from granting any prac-
tical relief through its disposition of the merits, a case
has become moot.’’ (Internal quotation marks omitted.)

Id., 486.

   Subsequent to the commencement of this habeas
appeal, this court issued its decision in the petitioner’s
direct appeal of Judge Alander’s December 3, 2018
denial of his June 8, 2018 motion for DNA testing and
affirmed the propriety of that judgment in all respects.
See State v. 

Buie, supra

, 

201 Conn. App. 903

. In that
proceeding, the petitioner obtained the very relief he
requested in this habeas action—namely, a hearing
before the sentencing judge on his motion for DNA
testing pursuant to § 54-102kk. As a result, the present
appeal is moot, as there is no practical relief that this
court can afford the petitioner.4 See State v. Martin,

211 Conn. 389

, 393–94, 

559 A.2d 707

(1989). This court,
therefore, lacks subject matter jurisdiction over the
petitioner’s appeal.
   The appeal is dismissed.
   * The listing of judges reflects their seniority status on this court as of
the date of oral argument.
   1
     The petitioner filed the present habeas action in a self-represented capac-
ity. He is represented by counsel in this appeal.
   2
     Practice Book § 23-29 provides in relevant part: ‘‘The judicial authority
may, at any time, upon its own motion or upon motion of the respondent,
dismiss the petition, or any count thereof, if it determines that: (1) the court
lacks jurisdiction . . . .’’
   3
     We recognize that the petitioner filed the present habeas action approxi-
mately three months before that postconviction motion for DNA testing
was filed with the trial court. On appeal, the petitioner has provided no
explanation for that anomaly.
   Although his March 12, 2018 petition for a writ of habeas corpus suggests
that the petitioner made an earlier request for DNA testing before a different
trial judge, the petitioner has neither identified that request nor provided
any record whatsoever of that request or the court’s ruling thereon.
   4
     At oral argument before this court, the petitioner’s counsel conceded
that there was no practical relief available to the petitioner.

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