Bigelow v. Commissioner of Correction
167 A.3d 1054
Conn. App. Ct.2017Background
- Damon Bigelow pleaded guilty in 2008 to multiple drug and related charges pursuant to a consolidated plea resolving numerous pending matters; sentence: 40 years, execution suspended after 15 years, plus probation.
- After plea, Bigelow filed two habeas petitions; this appeal arises from denial of his second habeas petition and the habeas court’s refusal to certify an appeal.
- In the second habeas trial Bigelow alleged ineffective assistance by his trial counsel, Eugene Zingaro (Zingaro), and by his first habeas counsel, Melissa Toddy, for failing to raise Zingaro‑related Strickland claims.
- Specific claims: Zingaro failed to (1) adequately advise re: plea (factual basis, minimum/maximum penalties), (2) investigate the death of an informant (Nicklaus Larson), (3) seek CADAC diversionary examination, and (4) request three days of presentence lockup credit.
- The habeas court credited Zingaro’s testimony, discredited Bigelow’s self‑serving statements, and found no prejudice from any alleged deficiencies; it denied the habeas petition and certification to appeal.
- The Appellate Court dismissed Bigelow’s appeal, concluding he failed to show the denial of certification was an abuse of discretion because his claims were not debatable among jurists of reason and lacked merit on Strickland/Hill analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of plea advice (factual basis; min/max penalties) | Bigelow: Zingaro failed to ensure evidentiary basis and to explain minimum/maximum sentences, so plea not knowing/voluntary | State/Zingaro: Court canvass, Zingaro’s testimony, and record show proper advice and a valid factual basis; petitioner affirmed during canvass | Denied — court credited canvass and Zingaro; no Strickland/Hill prejudice shown |
| Investigation of informant’s death (Larson) | Bigelow: Zingaro failed to investigate Larson’s death; suppressed exculpatory effect might have changed decision to plead | State: Other strong evidence (written statement, undercover officer testimony) made Larson’s absence non‑dispositive; no reasonable probability of different outcome | Denied — even assuming error, insufficient prejudice; plea was rational given exposure to much greater sentences |
| CADAC diversion exam (drug/alcohol dependency) | Bigelow: Zingaro should have moved for examination for diversion due to addiction history | State/Zingaro: No evidence presented at the time suggested addiction; counsel had no good‑faith basis to request exam; even if requested, court likely would have denied | Denied — habeas court credited Zingaro’s observations; no clear error; no prejudice |
| Presentence lockup credit (3 days) | Bigelow: Zingaro ineffective for failing to request 3 days of local lockup credit | State: That credit applied only to a concurrent 5‑year docket; under §53a‑38(b) concurrent sentences merge and discharge date is determined by longest term, so credit would not change release date | Denied — no prejudice because credit would not alter discharge date |
Key Cases Cited
- Simms v. Warden, 229 Conn. 178 (Conn. 1994) (standard for reviewing habeas court denial of certification to appeal)
- Lozada v. Deeds, 498 U.S. 430 (U.S. 1991) (factors for evaluating counsel‑related procedural defaults and certification issues)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance of counsel: performance and prejudice)
- Hill v. Lockhart, 474 U.S. 52 (U.S. 1985) (applies Strickland prejudice analysis to guilty‑plea cases)
- Harris v. Commissioner of Correction, 271 Conn. 808 (Conn. 2004) (merger of concurrent sentences and effect on discharge date)