Zollo v. Commissioner of Correction
133 Conn. App. 266
| Conn. App. Ct. | 2012Background
- Petitioner Bruce Zollo was convicted of first-degree kidnapping, spousal sexual assault, and related offenses for acts against his estranged wife; sentenced to 50 years.
- He filed a first habeas petition which was denied; this court upheld the denial of that petition on Strickland grounds.
- He filed a second habeas petition alleging ineffective assistance of trial counsel for failing to convey an eighteen-year plea offer; the petition was amended in 2009.
- Respondent moved to dismiss the second petition as successive under Practice Book § 23-29(2)-(3).
- The second habeas court dismissed the petition as successive and denied certification to appeal; the petitioner appealed to the Appellate Court.
- The Appellate Court held: (a) abuse of discretion in denying certification to appeal, but (b) proper denial of the writ petition on the merits as a successive petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the denial of certification to appeal was an abuse of discretion | Zollo—denial was abuse; jurists could differ on the ruling | Commissioner—no abuse; issues were legally resolved | Abuse of discretion found in denying certification to appeal |
| Whether the second habeas petition was properly dismissed as successive | Second petition presented new facts not available earlier | Petition premised on the same ground; no new facts reasonably available | Second petition improperly sought new relief; proper dismissal as successive |
| Whether new evidence under § 23-29(3) warranted a hearing (Sanders) | There were new evidentiary facts from midtrial plea discussions | Remedies at time of prior petition not pursued; no new facts not reasonably available | Second petition not saved by new evidence; no Sanders hearing required |
Key Cases Cited
- Simms v. Warden, 229 Conn. 178 (1994) (two-pronged test for appellate review of habeas dismissal)
- Simms v. Warden, 230 Conn. 608 (1994) (adoption of two-prong Simms test)
- Mejia v. Commissioner of Correction, 98 Conn.App. 180 (2006) (abuse-of-discretion standard for certification review)
- Negron v. Warden, 180 Conn. 153 (1980) (second petition generally requires new facts or not reasonably available)
- Carter v. Commissioner of Correction, 109 Conn.App. 300 (2008) (time-of-prior-petition interpretation of §23-29(3); due diligence standard)
- Sanders v. Commissioner of Correction, 83 Conn.App. 543 (2004) (requirement to convey and explain plea offers; ineffective assistance)
- State v. Strickland, 243 Conn. 339 (1997) (statutory interpretation and Practice Book rules applied as in statute)