Opinion
No. (AC 26017).
Argued December 2, 2005.
officially released February 14, 2006.
Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, White, J., granted the respondent's motion to dismiss and rendered judgment thereon; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.
Jancis L. Fuller, pro se, the appellant (petitioner).
Sarah Hanna, special deputy assistant state's attorney, with whom, on the brief, were Christine Collyer, special deputy assistant state's attorney, Matthew C. Gedansky, state's attorney, and Angela R. Macchiarulo, assistant state's attorney, for the appellee (respondent).
Opinion
The petitioner, Jancis L. Fuller, appeals following the habeas court's denial of her petition for certification to appeal from the judgment dismissing her amended petition for a writ of habeas corpus. We dismiss the appeal.
The petitioner appeared pro se before the habeas court and before this court.
The defendant was convicted of two counts of attempt to commit assault in the first degree and one count of carrying a pistol or revolver without a permit. This court affirmed the judgment of conviction. State v. Fuller, 56 Conn. App. 592, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000). In 1998, the petitioner, alleging ineffective assistance of counsel, filed a petition for a writ of habeas corpus. The court dismissed the petition on the ground of the petitioner's failure to prosecute the action with reasonable diligence. This court affirmed the dismissal. Fuller v. Commissioner of Correction, 75 Conn. App. 814, 817 A.2d 1274, cert. denied, 263 Conn. 926, 823 A.2d 1217 (2003).
In 2004, the petitioner filed the present petition for a writ of habeas corpus. On June 10, 2004, the respondent commissioner of correction filed a motion to dismiss the action on the ground that the petitioner had abused the writ. The respondent argued that the petitioner had reasserted legal claims that she raised in the first petition, changing only the factual basis of the claims, and that she could have raised these claims in her first petition. See McCleskey v. Zant, 499 U.S. 467, 489, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991) ("petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice").
On August 18, 2004, the court held a hearing on the respondent's motion to dismiss. The petitioner presented ample evidence and argument in opposition to the respondent's motion. In an oral ruling, the court concluded that the petition essentially set forth the same claims, "in a reformulated or reworded fashion," as those that appeared in the petitioner's prior petition. The court further concluded that to the extent that the petition contained newly presented claims, the petitioner had had a full and fair opportunity to present those claims in her prior petition for a writ of habeas corpus. The court dismissed the petition on the grounds of abuse of the writ and procedural default. The court subsequently denied the petition for certification to appeal.
The court also concluded that to the extent that the petitioner had raised a claim of actual innocence, she failed to substantiate her claim with newly discovered evidence and, to the extent that she had challenged the legality of her sentence, that she was barred from raising such a claim for the first time in the present action.