Opinion
No. CV06-4001322-S
November 4, 2009
MEMORANDUM OF DECISION ON RESPONDENT'S MOTION TO DISMISS
Respondent's motion to dismiss requests that this court dismiss this petition Pursuant to Practice Book Section 23-29(2) and 23-39(3).
The respondent claims the petitioner filed a previous habeas corpus petition regarding the same conviction on February 22, 2001 under docket number CV01-0448341 in the Judicial District of New Haven. In a final amended petition dated September 4, 2002, the respondent avers, the petitioner alleged several claims of ineffective assistance of counsel including, but not limited to, trial counsel's failure to adequately convey all pretrial plea offers. After a hearing on the merits, the court, Hadden, J. dismissed the petition. (Exhibits "A" and "B" Transcripts of proceedings in re Zollo v. Warden, CV01-0448341, 2004 WL 1730216 (Conn.Super.) Here, the petitioner filed an amended petition on August 9, 2009. In this action, the petitioner again alleges ineffective assistance of his former trial counsel, David Eagan. The respondent claims this action constitutes an abuse of the writ by raising the same or similar claims raised or which could have been raised in the prior petition. The respondent contends the instant petition is a successive petition and should be dismissed. As a further basis to justify dismissal, the respondent claims that the petitioner has not raised any new facts or proffered any new evidence not available in the previous action.
The parties came before this court on October 30, 2009 for a hearing on the motion to dismiss. In evidence are transcripts of the entire hearing before Judge Hadden with respect to the previously litigated habeas. (Exhibits "A" and "B.") Both the petitioner and the respondent offered little argument, for the most part resting on their respective briefs. For the following reasons, the motion to dismiss is granted.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "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 . . ." (Internal citations and quotation marks omitted.) 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). Nevertheless, the petitioner ". . . bears the burden of proving that the court has subject matter jurisdiction." Id.
Practice Book § 23-29 provides in relevant part that: "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 (1) the court lacks jurisdiction; (2) the petition, or a count thereof, fails to state a claim upon which relief can be granted; (or)(3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition[.]" "In this context, a `ground' has been defined as `sufficient legal basis for granting the relief sought.'" Tirado v. Commissioner of Correction, 24 Conn.App. 152, 156, 586 A.2d 625 (1991). A habeas court may also dismiss all or part of a habeas corpus petition if . . . "any other legally sufficient ground for dismissal of the petition exists." Practice Book § 23-29(5).
The United States Supreme Court in McCleskey v. Zant, 499 U.S. 467, 494-95, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), noted that abuse of the writ could be accomplished by raising a claim in a subsequent petition that could have been raised in the first petition. The respondent correctly points out the policy concerns underpinning this notion. (Memorandum in support of Motion to Dismiss at 2.) Among the concerns: significant cost of habeas review, desirability of final judgments, the burden on scarce judicial reserves, the effect on the passage of time, and the prospect of successive petitions, depleting the resources needed for other litigants in their first habeas cases. Id. At 489-92. The petitioner's opportunity to meet the cause and prejudice standard will not advance to an evidentiary hearing if it is clear that the petitioner cannot satisfy this burden as a matter of law. McCleskey at 494. Practice Book Section 23-29(3) permits the court to dismiss the pending application without hearing if the previous application on the same legal grounds was denied, unless new facts or evidence are proffered. Iasell v. Manson, 12 Conn.App. 268, 271-82, 530 A.2d 1075, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987). Even if a court finds the grounds stated in the second petition are different, the petitioner must show that he has not abused the writ by failing to raise the claim in his previous petition. Id., at 272-73.
In State v. Bruce Zollo, in the Superior Court, Judicial District of Milford, the petitioner was convicted of one count of Kidnapping in the first degree in violation of Connecticut General Statutes Section 53a-92 and three counts of Sexual Assault in a Spousal Relationship in violation of Connecticut General Statutes Section 53a-70b, and one count of Robbery in the first degree with a dangerous instrument in violation of Connecticut General Statutes Section 53a-134(a)(3). The conviction was affirmed on appeal. State v. Zollo, 36 Conn.App. 718, 654 A.2d 359, cert. denied, 234 Conn. 906, 660 A.2d 859 (1995). The court, Hartmere, J., sentenced the petitioner to a term of imprisonment of fifty years. While in the custody of the Commissioner of Correction, on February 22, 2001, the petitioner filed a petition for writ of habeas corpus alleging ineffective assistance of counsel. An amended petition was filed September 4, 2002. On July 8, 2004, following a hearing on the merits of the claim, the court, Hadden, J., dismissed all claims of ineffective assistance of counsel.
Here the petitioner alleges in paragraph 8 of his final amended complaint that trial counsel: "a. Failed to adequately and with sufficient frequency meet with the petitioner prior to sentencing to address the petitioner's concerns and establish a strategy to mitigate the sentence, despite knowing that petitioner, based upon the facts of the case, faced extremely enhanced jeopardy to a lengthy term of incarceration; b. Failed to adequately and thoroughly investigate, research and prepare for sentencing; c. Failed to attend at or properly prepare the petitioner for his `PSI interview' despite knowing that negative information contained in the PSI resulting therefrom could put the petitioner in a very negative light to the sentencing court, Hartmere, J." Amended petition, August 4, 2009.
In the prior petition for writ of habeas corpus, the petitioner alleged that his public defender, David Egan was ineffective in that he (a) failed to investigate the case; (b) failed to adequately cross examine witnesses; (c) failed to conduct an adequate defense; (d) failed to challenge the admissibility of the state's DNA evidence; failed to preserve issues regarding DNA for appeal; and in his brief claimed deficiencies with respect to sentencing and sentence review. Zollo v. Remi Acosta, CV01-0448341, WL 1730216 (Conn.Super.), (Hadden, J.) In its decision, the court made clear it considered the entire record of the criminal trial, and the testimony and evidence on each claim and dismissed the petition. With respect to the claim regarding sentencing, the court specifically remarked: "The transcript of the sentencing reveals that Mr. Egan made a complete and adequate argument on behalf of his client. The petitioner has failed to prove that Mr. Egan was deficient in the representation of the petitioner at sentencing . . . or that he was prejudiced . . ." Id.
"[A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief . . . But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition . . . Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated in different language . . . Simply put, [a]n applicant must . . . show that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground . . ." (Internal citations and quotation marks omitted.) Mejia v. Commissioner of Correction, 98 Conn.App. 180, 189-90, 908 A.2d 581 (2006), appeal dismissed after remand, 112 Conn.App. 137, 962 A.2d 148 (2009).
A plain reading of the issues litigated in the first petition for writ of habeas corpus and the allegations sought to be put forward here do not give rise to a reasonable inference that any new facts or evidence are put forth that otherwise would not have been available at the time of the first habeas with respect to petitioner's trial counsel. The petitioner's response to the respondent's claim for dismissal is set forth in the "Petitioner's Reply Memorandum to Motion to Dismiss" wherein he alleges a claim under Sanders v. Commissioner of Correction, 83 Conn.App 543, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004). The Petitioner now claims that his trial attorney failed to adequately communicate to him a plea offer of eighteen years. Id. The petitioner asserts this issue only "came to his attention during testimony in his earlier habeas . . ." Id. A review of the transcript of testimony of Mr. Egan at the prior habeas trial indicates that the issue of plea offers and the petitioner's insistence to refuse to plea bargain or even consider an offer of seven years was litigated. (Exhibit "A" at p. 102.) Here, the claim sought to be advanced clearly could have been brought in the prior petition. Permitting the instant petition to go forward to an evidentiary hearing based upon the procedural and substantive history of this case would permit an injustice, waste of resources and reward a petitioner for bringing the same claim in piece meal fashion over a period of years, albeit with a slightly different legal twist. There are no new facts alleged or new evidence proffered which were not knowable or which could not have been pleaded prior to the petitioner's trial on the merits of his prior habeas petition. Litigating or re-litigating claims that were brought or could have been brought previously drains the already limited resources available to review such claims. The petitioner has advanced no argument or evidence to contradict the inescapable conclusion that he seeks a second hearing on his claims of ineffective assistance of counsel. The present writ is successive. Permitting the petitioner to litigate or re-litigate his claims for ineffective assistance of counsel is abusive.
For the foregoing reasons, the Motion to Dismiss is granted. Judgment shall enter dismissing the petition for a writ of habeas corpus.
It is so ordered.