Zollo v. Warden, State Prison

• Decision Date: 04 May 2016
• Docket Number: CV124004880S
• Parties: Bruce Zollo (Inmate #214102) v. Warden, State Prison
• Court: Connecticut Superior Court

Bruce Zollo (Inmate #214102) v. Warden, State Prison

No. CV124004880S

Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19

May 4, 2016

UNPUBLISHED OPINION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).^[1] 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.^[2] 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.

" 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).^[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.^[4]

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...