Opinion
CV124004880S
05-04-2016
Bruce Zollo (Inmate #214102) v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON RESPONDENT'S MOTION TO DISMISS
Vernon D. Oliver, J.
The petitioner, Bruce Zollo, initiated this petition for a writ of habeas corpus, challenging his convictions after a jury trial of two counts of sexual assault in a spousal or cohabiting relationship in violation of General Statutes § 53a-70b, one count of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A), and one count of attempted sexual assault in a spousal relationship in the first degree in violation of General Statutes § § 53a-49(a) and 53a-70b. The petitioner was sentenced by the court, Hartmere, J., to a total effective sentence of fifty years to serve.
The present petition is not the petitioner's first, as he has sought habeas corpus relief on at least two prior occasions. The petitioner initially had assigned counsel, who was permitted to withdraw, after which the petitioner continued to represent himself and amended the petition. The respondent filed a return to the amended petition and a motion to dismiss seeking dismissal of the entire petition. The dismissal is requested on the grounds that the allegations in the petition fail to state a claim upon which habeas corpus relief can be granted and are successive.
On March 9, 2016, the parties appeared before the court for a hearing on the motion to dismiss and the petitioner's response thereto. For the reasons explained in greater detail below, the motion to dismiss is granted.
I
PROCEDURAL HISTORY
" 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. " Zollo v. Commissioner of Correction, 133 Conn.App. 266, 268-69, 35 A.3d 337 (2012).
The Appellate Court summarized the underlying facts as reasonably found by the jury as follows: " On February 11, 1991, the victim, the estranged wife of the [petitioner], was assaulted by an unknown assailant wearing a ski mask, a jacket, and a long pea coat. At approximately 12:35 p.m., the assailant appeared inside the victim's cellar with a hunting knife in his hand. He grabbed her by the hair, cut her finger with the knife, put a bag over her head and pulled her upstairs, where he handcuffed her hands, wrapped her head in duct tape, and sexually assaulted her for approximately one and one-half hours. During the assault, he also urinated on the victim's chest twice.
" The assailant spoke only twice. In response to the victim's plea that he not kill her because she was the mother of two children, he responded in a low voice, 'I know.' Just before he left the crime scene, the assailant also stated, 'Give me fifteen minutes' in a similar low voice.
" At approximately 2 p.m. on the date of the assault, the victim's neighbor was operating a remote control car in the street in front of the victim's home. A vehicle that the neighbor recognized as belonging to the victim sped past. The neighbor recognized the driver as the [petitioner], Bruce Zollo. The neighbor also observed that the [petitioner] was adjusting a woolen cap on his head as he drove by.
" The neighbor then saw the victim standing in her driveway, wearing only a small jacket or vest. Her head was wrapped in duct tape that covered her eyes, and she was bleeding. The neighbor led the victim into his house and called paramedics, who had difficulty removing the tape from the victim's head, even with the use of trauma scissors.
" The victim had been married to the [petitioner] for eight years at the time of the assault. The couple had separated because of the [petitioner's] drug use. According to the [petitioner's] friend, Paul Norris, the [petitioner], prior to the assault, had expressed a desire to take revenge on his wife for initiating the separation. The [petitioner] asked Norris to participate in sexually assaulting the victim, but Norris refused.
" Shortly after the assault, the [petitioner] arrived at the victim's home and stated that he was concerned that his wife had been raped. While the police were gathering evidence in the victim's home, the [petitioner] requested several times that he be allowed to clean the house before the police entered it. The police uncovered a towel stained with semen, from which the prosecution was able to gather a DNA sample for analysis by Harold Deadman, a forensics expert from the Federal Bureau of Investigation (FBI), who testified at trial." State v. Zollo, supra, 36 Conn.App. 721-22.
The petitioner appealed from the judgment of conviction and raised four claims on direct appeal, namely " that the trial court improperly (1) permitted the DNA expert witness to testify that the possibility that the DNA profile of a semen sample found at the crime scene came from someone other than the [petitioner] was not statistically significant, (2) permitted the expert to testify to the statistical probability of the DNA match, (3) permitted the expert to testify to the statistical significance of a nonmatching DNA probe, (4) instructed the jury (a) to apply a conclusive presumption and directed a verdict of guilty, (b) on the threat of use of force, a statutory alternative the [petitioner] claims was unsupported by the evidence, (c) on attempt, thus violating the [petitioner's] right not to be convicted except upon proof beyond a reasonable doubt, and (d) on the presumption of innocence and the meaning of reasonable doubt in a manner that violated the [petitioner] due process right to a fair trial." Id., 720-21.
The Appellate Court affirmed the judgment of conviction. Id., 736. The petitioner filed a petition for certification to appeal from the Appellate Court's judgment, but which was denied by the Supreme Court. State v. Zollo, 234 Conn. 906, 660 A.2d 859 (1995).
" Following his conviction, the petitioner filed a petition for a writ of habeas corpus, alleging, in part, ineffective assistance of counsel (first habeas petition). 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. 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.
" Specifically, the petitioner alleged, in relevant part, " ineffective assistance of counsel at trial because his counsel had failed (1) to investigate the case, (2) to cross examine the state's witnesses adequately, (3) to conduct an adequate defense, (4) to challenge the admissibility of the state's DNA evidence and (5) to preserve for appeal issues regarding the DNA evidence." Zollo v. Commissioner of Correction, supra, 93 Conn.App at 756, 890 A.2d 120."
" Judge Hadden found that the petitioner's trial counsel was a credible witness, but that the petitioner was not a credible witness. Zollo v. Commissioner of Correction, supra, 93 Conn.App. at 757, 890 A.2d 120. On the basis of Judge Hadden's 'review of the trial court proceedings during the petitioner's criminal trial and the evidence adduced at the hearing on the second amended petition for a writ of habeas corpus, the habeas court concluded that, rather than showing that the petitioner's trial counsel provided ineffective assistance, the evidence suggested that his counsel had done an excellent job of representing the petitioner. Additionally, the court concluded that the petitioner had presented no evidence that had his trial counsel provided ineffective assistance, he was prejudiced so as to leave in question the verdict that had been rendered.' Id. "
" 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). Counsel for the parties appeared before Judge Nazzaro (second habeas court) for argument on the motion to dismiss on October 30, 2009. 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 [the Appellate Court]." Zollo v. Commissioner of Correction, supra, 133 Conn.App. 269-70.
" 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 . . . (2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted, (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition . . .' (Emphasis added.)"
The petitioner filed a petition for certification to appeal from the Appellate Court's decision in the second habeas, and which was granted by the Supreme Court, limited to the following issue " Did the Appellate Court properly affirm the dismissal of the petitioner's second habeas petition as successive, where it is argued by the petitioner that a fact that was first discovered during the initial habeas proceeding constituted 'new evidence' sufficient to support the second petitioner?" Zollo v. Commissioner of Correction, 304 Conn. 910, 39 A.3d 1120 (2012). The Supreme Court granted the respondent's motion to dismiss the appeal on May 1, 2013, after the appeal was fully briefed but not yet argued.
The petitioner also filed a third habeas corpus petition on November 25, 2009, which was assigned docket number CV09-4003283 in the judicial district of Tolland. " Following the appointment of counsel, a two-count Amended Petition was filed . . . count one alleging ineffective assistance against prior habeas counsel, and count two alleging a due process violation. The respondent filed an Amended Return . . . generally denying the allegations in the petition, and raising the special defense of procedural default as to count two of the petition. The petitioner filed a reply to the return . . . and the matter was tried to the court[, Newson, J.] . . ." Zollo v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-09-4003283-S (July 2, 2012) (2012 WL 3089766). " The essence of the petitioner's first set of claims in [the third petition was] that his prior habeas counsel failed to adequately prove that his prior criminal trial counsel failed to properly advise him regarding certain plea offers, the substance of the evidence the State had against him, the strengths and weaknesses of the State's case and any possible defenses thereto, and to generally assure that the petitioner was fully aware of his rights and options as they related to either accepting a plea offer or going to trial." *10.
On March 21, 2012, the United States Supreme Court released its decisions in Missouri v. Frye, 566 U.S., 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), and Lafler v. Cooper, 566 U.S., 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). The petitioner sought permission from the third habeas court to file a supplemental brief addressing how these decisions impacted his case. Judge Newson permitted both parties to file supplemental briefs. Subsequently, the claims were denied for the reasons articulated in the third habeas court's memorandum of decision. Central to that court's decision was determination that the testimonies by Attorneys Egan and Springer, respectively defense counsel and first habeas counsel, were consistent and credible, while the petitioner's testimony " lacked any real credibility[.]" Zollo v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-09-4003283-S (July 2, 2012) (*10, 2012 WL 3089766). As to the petitioner's due process claim, the third habeas court concluded that the jury was not instructed properly pursuant to State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), but that the error was harmless.
The petitioner then filed this petition, again challenging the identical convictions and sentence for at least the fourth time.
II
DISCUSSION
On May 19, 2015, the petitioner filed an amended petition that is supplemented with numerous attached documents. In count one, the petitioner alleges ineffective assistance by prior habeas counsel. The petitioner identifies various failures by several of his prior attorneys, including Attorney Justine Miller, who represented the petitioner in the most recent petition preceding this matter. In count two, the petitioner also alleges ineffective assistance by Attorney Justine Miller, although it is limited to the due process claim in the third petition. The motion to dismiss seeks dismissal of these claims on the bases that they fail to state a claim upon which relief can be granted and are successive.
" In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action . . . The principle that a plaintiff may rely only upon what he has alleged is basic . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint . . ." (Internal citations and quotation marks omitted.) Abdullah v. Commissioner of Correction, 123 Conn.App. 197, 201-02, 1 A.3d 1102, cert. denied, 298 Conn. 930, 5 A.3d 488 (2010).
" '[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party . . . The modern trend . . . is to construe pleadings broadly and realistically, rather than narrowly and technically.' (Citation omitted; internal quotation marks omitted.) Hill v. Williams, 74 Conn.App. 654, 655-56, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003). The courts adhere to this rule to ensure that pro se litigants receive a full and fair opportunity to be heard, regardless of their 'lack of legal education and experience . . .' Higgins v. Hartford County Bar Assn., 109 Conn. 690, 692, 145 A. 20 (1929). " This rule of construction has limits, however. 'Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.' . . ." Oliphant v. Commissioner of Correction, 274 Conn. 563, 569-70, 877 A.2d 761 (2005).
" [A] person convicted of a crime is entitled to seek a writ of habeas corpus on the ground that his attorney in his prior habeas corpus proceeding rendered ineffective assistance . . . To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective and (2) that his trial counsel was ineffective. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unworkable . . . Only if the petitioner succeeds in [this] herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel." Harris v. Commissioner of Correction, 126 Conn.App. 453, 457-58, 11 A.3d 730, cert. denied, 300 Conn. 932, 17 A.3d 69 (2011).
The petitioner has never, and clearly could not have, asserted a claim of ineffective assistance by Attorney Miller, as she represented him in the immediate preceding petition. The claim against Attorney Miller inherently cannot be successive, and the fact that the petitioner has frequently sought habeas corpus relief against other prior attorneys in the entire chain of representation is not a bar to this newest, albeit repetitive, claim. Id., 459 n.1 (Appellate Court in appeal from habeas court's denial of fourth habeas corpus petition noting petitioner in the future not barred from bringing forth new claims that have never previously been raised); but see Stanley v. Commissioner of Correction, 164 Conn.App. 244 (2016) (in affirming habeas court's denial of fourth habeas corpus petition, Appellate Court with approval quoting habeas court's observation that " this case is a prime example of the abuse of the habeas corpus process . . . [I]t could not have been the intent of the legislature to allow cases of this nature to come before the court in what, so far, has shown to be an unending loop.").
This unending loop is created by several factors. First, the statutes governing habeas corpus petitions, General Statutes § § 52-466 through 52-470, do not limit how often someone can challenge the identical conviction and sentence via habeas corpus. Second, case law does not foreclose a habeas corpus petitioner from bringing a claim of ineffective assistance of counsel that has never before been raised, even if that claim is against the third, fourth or even later habeas attorney. Harris v. Commissioner of Correction, supra, 126 Conn.App. 459 n.1. At least one habeas court, however, has interpreted the relevant statutes and case law in a manner that attempts to place a reasonable limitation on the number of times a habeas petitioner can allege ineffectiveness claims. Kaddah v. Arnone, Superior Court, judicial district of Tolland, Docket No. CV-12-4004952-S (September 29, 2014) (2014 WL5472126) (interpreting habeas statute and case law to permit a habeas on a habeas, but ineffective assistance claims beyond that fail to state a claim for which habeas corpus relief is available).
The appeal from the habeas court's decision is pending in the Supreme Court, SC 19512, is fully briefed and ready to be assigned for oral arguments.
Another habeas court likened this unending loop to an ever-growing chain. " Successive habeas petitions can be likened to chain building. With each new petition challenging the immediately preceding counsel's representation, a new link is added on to the existing chain. The first Strickland prong may only require an attack of one or more prior links; the second Strickland prong, however, requires attacking the entire chain back to the first link. The Herculean task of prevailing on multiple successive habeas corpus petitions illustrates the difficult and mighty task of breaking the entire chain and, eventually, allowing a habeas court to conclude that its confidence in the outcome of the underlying criminal proceeding has been sufficiently undermined. The more links that have been added to the chain and the longer it has become, the more Herculean and Sisyphean the task becomes. The ability to keep adding yet another link to the chain potentially enables the never-ending creation of new claims that have never been previously raised and litigated on the merits, for the most recent attorney's representation will not have been challenged in any of the preceding habeas corpus petitions. How 'ultimate justice' may so be obtained is highly questionable. Iovieno v. Commissioner of Correction, 242 Conn. 689, 715-18, 699 A.2d 1003 (1997) (en banc) (Callahan, C.J., dissenting) (discussing erosion of the writ of habeas corpus as a summary proceeding, with limited appellate rights, resulting from repeated petitions and ensuing appeals)." Harris v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-05-4000393-S (April 2, 2009) (*23, 2009 WL 1142574), aff'd, Harris v. Commissioner of Correction, supra, 126 Conn.App. 453.
At some juncture in this unending loop or constantly growing chain, serial petitions make the finality of a criminal conviction a chimera, and the importance of the Great Writ is eroded and diluted by repetitive petitioning for a writ of habeas corpus. With each additional attorney whose representation is challenged, the petitioner must affirmatively prove both deficient performance and the resultant prejudice. " To satisfy the prejudice prong, [the petitioner] must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . .' (Citation omitted; internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 308 Conn. 463, 470, 68 A.3d 624, cert. denied sub nom. Dzurenda v. Gonzalez, 134 S.Ct. 639, 187 L.Ed.2d 445 (2013); Ostolaza v. Warden, 26 Conn.App. 758, 765, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992) (" In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation but by demonstrable realities").
Based upon the foregoing, the court concludes that the petitioner's claims in his fourth habeas corpus petition are too tenuous and remote to undermine a habeas court's confidence in the outcome of the criminal trial. The court has reviewed the amended petition and its attachments, which consist of copies of prior decisions, pleadings, portions of transcripts and court documents. Construing the petitioner's filings broadly and realistically, the court concludes that he cannot prove that his criminal trial was fundamentally unfair by making the necessary showing of prejudice. Stated somewhat differently, the petitioner here fails to state a claim upon which habeas corpus relief can be granted.
CONCLUSION
Although the motion to dismiss cannot be granted on the ground that the petitioner's claims are successive, the motion to dismiss is granted because the petition fails to state a claim upon which habeas corpus relief can be granted. Practice Book § 23-29(2). Judgment shall enter dismissing the petition for a writ of habeas corpus.
It is so ordered.