Zollo v. Comm'r of Corr.

133 Conn.App. 266

35 A.3d 337

Bruce ZOLLO

v.COMMISSIONER OF CORRECTION.

No. 31763.

Appellate Court of Connecticut.

Argued Sept. 21, 2011.Decided Jan. 31, 2012.

Lori Welch–Rubin, special public defender, for the appellant (petitioner).

Kathryn Ward Bare, assistant state's attorney, with whom, on the brief, were Mary M. Galvin, former state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

LAVINE, ROBINSON and LAVERY, Js.

LAVINE, J.

The petitioner, Bruce Zollo, appeals following the denial of his petition for certification to appeal from the judgment dismissing his second petition for a writ of habeas corpus. On appeal, the petitioner claims that the second habeas court, Nazzaro, J., (1) abused its discretion by denying his petition for certification to appeal and (2) improperly granted the motion to dismiss his second petition for a writ of habeas corpus (second habeas petition) filed by the respondent, the commissioner of correction. We agree that the habeas court abused its discretion by denying the petition for certification to appeal, but we conclude that the court properly denied the petition for a writ of habeas corpus.

The petitioner was convicted, following a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a–92 (a)(2)(A), sexual assault in a spousal relationship in violation of General Statutes § 53a–70b, attempt to commit sexual assault in a spousal relationship in violation of General Statutes §§ 53a–49 (a) and 53a–70b; State v. Zollo, 36 Conn.App. 718, 720, 654 A.2d 359, cert. denied, 234 Conn. 906, 660 A.2d 859 (1995); for acts perpetrated against his estranged wife (victim). Id., at 721, 654 A.2d 359. The criminal trial court, Hartmere, J., sentenced the petitioner to fifty years in the custody of the respondent. Zollo v. Commissioner of Correction, 93 Conn.App. 755, 756, 890 A.2d 120, cert. denied, 278 Conn. 904, 896 A.2d 108 (2006). The petitioner's sentence was upheld by the sentence review division of the Superior Court. Id.

Following his conviction, the petitioner filed a petition for a writ of habeas corpus, alleging, in part, ineffective assistance of counsel (first habeas petition).¹ The first habeas petition, as amended, was tried on September 23, 2003, before the first habeas court, Hon. William L. Hadden, Jr., judge trial referee. The petition was denied.² Id., at 755–56, 890 A.2d 120. This court dismissed the petitioner's appeal from the denial of his first habeas petition, concluding that Judge Hadden properly concluded that the petitioner had failed to meet the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Zollo v. Commissioner of Correction, supra, 93 Conn.App. at 757–58, 890 A.2d 120.

On September, 13, 2006, the self-represented petitioner filed a second habeas petition. On August 19, 2009, the respondent filed a motion to dismiss the amended second habeas petition, pursuant to Practice Book § 23–29(2) and (3).³ Counsel for the parties appeared before Judge Nazzaro (second habeas court) for argument on the motion to dismiss on October 30, 2009. ⁴ The second habeas court concluded in a memorandum of decision that the second habeas petition constituted a successive petition and granted the respondent's motion to dismiss. Thereafter, the court denied the petitioner's petition for certification to appeal, and the petitioner appealed to this court.

“Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits....

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Mejia v. Commissioner of Correction, 98 Conn.App. 180, 185–86, 908 A.2d 581 (2006), appeal dismissed after remand, 112 Conn.App. 137, 962 A.2d 148, cert. denied, 291 Conn. 910, 969 A.2d 171 (2009); see Lozada v. Deeds, 498 U.S. 430, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991). Although we conclude that the second habeas court abused its discretion by denying the petition for certification to appeal, we conclude that the court properly granted the respondent's motion to dismiss the second habeas petition.

I

The petitioner's first claim is that the second habeas court abused its discretion by denying his petition for certification to appeal because “[j]urists of reason could resolve the motion to dismiss the second petition as successive differently than Judge Nazzaro” did. We agree with the petitioner that the petition for certification to appeal should have been granted, but for a different reason.

We examine the petitioner's underlying claim that the second habeas court improperly granted the respondent's motion to dismiss to determine whether the court abused its discretion in denying the petition for certification to appeal. See Mejia v. Commissioner of Correction, supra, 98 Conn.App. at 186, 908 A.2d 581. The crux of the petitioner's claim is that some jurists may have acceded to the petitioner's request to hold a hearing to determine whether the petitioner's trial counsel conveyed an eighteen year plea offer to him.

“[I]n reviewing a claim of abuse of discretion, we have stated that [d]iscretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) State v. Zillo, 124 Conn.App. 690, 695, 5 A.3d 996 (2010). “In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action.... Our review of a trial court's exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) State v. Williams, 65 Conn.App. 59, 84, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001).

As the second habeas court pointed out when the parties appeared before it to argue the respondent's motion to dismiss, the issue before the court was a matter of law. See Abdullah v. Commissioner of Correction, 123 Conn.App. 197, 201, 1 A.3d 1102 (“conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review” [internal quotation marks omitted] ), cert. denied, 298 Conn. 930, 5 A.3d 488 (2010). We agree that a motion to dismiss may be decided on the pleadings; see Young v. Commissioner of Correction, 104 Conn.App. 188, 193, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008); and we do not conclude that the second habeas court erred in granting the respondent's motion to dismiss on that basis. Given the factual circumstances of this case; see part II of this opinion; the question of whether the second habeas petition was successive is one that was adequate to deserve encouragement to proceed further. We therefore conclude that the petition for certification to appeal should have been granted.

II

The petitioner's second claim is that the second habeas court erred by granting the respondent's motion to dismiss the second habeas petition as successive because he is entitled to a hearing pursuant to Sanders v. Commissioner of Correction, 83 Conn.App. 543, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004).⁵ The respondent disagrees and also argues that the petitioner did not avail himself of certain remedies that were available to him during the first habeas trial. We agree with the respondent.

The following facts, taken from the transcript of the petitioner's first habeas trial, underlie the petitioner's claim of ineffective assistance of counsel. The assistant state's attorney cross-examined the petitioner, in part, as follows:

“Q. What if anything did [trial counsel] tell you that the best strategy would be, to plead guilty?

“A. Plead guilty.

“Q. In fact, did [trial counsel] secure a plea bargain for you?

“A. Yes, he did.

“Q. What was that plea bargain?

“A. Seven years.

“Q. Seven years?

“A. I believe, seven years.

“Q. Whose idea was [it] to reject that?

“A. Mine.

* * *

“Q. Halfway through trial after ... the victim testified, did you then tell [trial counsel], I would like to take the plea bargain offer?

“A. Yes.

“Q. So, the fact that you rejected seven years—

“A. Yes.

“Q. —you went to trial?

“A. Yes.

“Q. —after [the victim] testified, you decided that you liked the plea bargain offer?

“A. Yes.

“Q. What was Judge Hartmere offering at midtrial?

“A. There was none.

“Q. In fact, wasn't there an offer of eighteen years by Judge Hartmere? ⁶

“A. No.

“Q. Why didn't you take the plea bargain offer?

“A. There was no offer after that. They were not offering me anything.”

In his second habeas petition, as amended on August 5, 2009, the petitioner alleges, among other things, that “[t]he claim in this petition was not raised at trial, direct appeal or [in the first habeas petition] as the facts and circumstances necessary to the claim were unknown and unavailable to petitioner until the [first] habeas trial was heard. Petitioner did...