To:	Law Revision Commission Members
From:	David L. Hemond
Date:	February 13, 2001
Re:	Committee report on habeas corpus

 

The Connecticut Law Revision Commission, at its May 16, 2000 regular meeting, pursuant to a request of the Cochairs of the Judiciary Committee, voted to undertake a review of the habeas corpus system in Connecticut. In accordance with that action, a Commission subcommittee chaired by Commission member Judge John Maloney and including Commission members Representative Robert Farr, Jon P. FitzGerald, and Robert W. Grant met with a group of advisors, including representatives of the offices of the Chief State’s Attorney and the Chief Public Defender, to analyze and prepare recommendations concerning that review.

After review, the committee has prepared recommendations, as detailed below, in the following areas:

· Promulgation of a court rule providing judicial discretion to dismiss a habeas petition the filing of which was unreasonably delayed if the delay in filing is not the result of new evidence or new law, or is not otherwise reasonably justifiable, and the State has been prejudiced by the delay. The proposal includes a safe harbor time period for filing of three years for claims of ineffective assistance of counsel and of one year for claims that do not challenge the conviction that provides the grounds for confinement.

· Authority for the Chief Court Administrator to consolidate venue for all habeas petitions contesting incarceration in one judicial district, or to revise that venue as may otherwise be necessary, to improve access to experienced habeas judges and to improve efficiency and equity of resource allocations.

· Elimination of the right to appeal the denial of a petition for certification to appeal.

· Provision of statutory authority for prescreening of inmate cases by public defenders.

· Increased use of administrative grievance procedures by requiring exhaustion of administrative remedies prior to consideration of conditions of confinement claims.

· Strengthening record retention rules to ensure availability of records and exhibits that are necessary for a habeas review.

 

Judicial discretion to dismiss an unreasonably delayed filing

A primary impetus for the Commission’s review of habeas law was the concern expressed by the Office of the Chief State’s Attorney as to the potential for abuse of the writ and for the filing of stale claims when a habeas petition is used to bring claims based on ineffective assistance of counsel. The use of a habeas petition as the proper method by which to raise a claim of ineffective assistance of counsel was expressly approved by the Connecticut Supreme Court in State v. Leecan, 198 Conn. 517, cert. denied, 476 U.S. 1184 (1986). The essence of that case was to direct that claims based on ineffective assistance should be brought as habeas proceedings or as petitions for a new trial rather than pursuant to an appeal because the independent proceeding ensured consideration by the court of a fuller record.

One result of that ruling is that because ineffective assistance claims are now routinely brought as habeas petitions rather than as part of the underlying case, those claims, themselves, have substantially expanded the habeas docket. However, because such a claim requires review of the trial proceedings, a lengthy delay in asserting the claim can prejudice the State in its ability to respond to the allegations. The committee finds that, while procedural limitations on habeas should not preclude a good faith petitioner from access to the court, a petitioner is not entitled to delay the filing of a mature claim in a way that prejudices the State in defending against the petition. While Practice Book Rule 23-29 expressly provides five grounds for summary dismissal of a habeas petition, including legal insufficiency or repetition of the claims, and "any other legally sufficient ground for dismissal", it does not expressly include authority to dismiss a claim based on an unreasonable filing delay by the petitioner that is prejudicial to the State. Because the current procedural rules governing habeas practice are collected in the Practice Book, the committee recommends that the Rules Committee of the Superior Court adopt an appropriate revision to the rules addressing an unreasonable delay in filing.

With respect to claims of ineffective assistance of counsel, the committee recommends language that would allow dismissal of the claim without a hearing on the merits if (1) the claim is filed more than three years after the judgment, and more than one year after the expiration of any appeals, and (2) the claim is not based on new evidence or new law and the delay in filing is not otherwise reasonable, and (3) the delay is prejudicial to the State. In habeas cases where the claim is not attacking the conviction that provides the grounds for confinement – typically conditions of confinement cases – the committee recommends that the analogous safe harbor for filing be reduced to one year.

In the alternative, should the Judges of the Superior Court wish to defer consideration of such a rule, consideration could be given to adoption of the proposed language by statute.

One approach would amend Practice Book Rule 23-29 as follows:

"(a) 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 the 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 proffer new evidence not reasonably available at the time of the prior petition;

(4) the claims asserted in the petition are moot or premature;

(5) as provided in subsection (b) or (c), the state has been prejudiced by an unreasonable delay in filing the claim;

(6) any other legally sufficient ground for dismissal of the petition exists.

(b) A writ of habeas corpus based on a claim of ineffective assistance of counsel may be dismissed without a hearing on the merits of the claim if it is brought more than three years after the date of final judgment in the trial court or more than one year after final disposition of any appeal from that judgment, whichever is later, and (1) the petitioner’s delay in filing the claim is not the result of new evidence or new law, or is not otherwise reasonably justifiable, and (2) the failure to file the claim in a timely manner has prejudiced the state in defending the basis of the incarceration.

(c) A writ of habeas corpus that does not contest the conviction that is the basis of the petitioner’s confinement may be dismissed without a hearing on the merits of the claim if it is brought more than one year after the date of the event with respect to which habeas relief is sought and, except as provided in subsection (d), more than one year after disposition of any proceeding to exhaust administrative remedies that is required by [the section requiring exhaustion of administrative remedies] if (1) the petitioner’s delay in filing the claim is not the result of new evidence or new law, or is not otherwise reasonably justifiable, and (2) the failure to file the claim in a timely manner has prejudiced the state in defending the claims made in the petition for habeas relief.

(d) The period specified in subsection (c) is not tolled by an administrative proceeding that was applied for more than one year after the date of the event with respect to which habeas relief is sought."

 

 

 

Consolidation of venue for habeas petitions

Both State’s Attorneys and Public Defenders indicated support for consolidation of habeas venue for persons incarcerated in the custody of the state. Consolidation would facilitate more efficient allocation of resources by those offices and by the Judicial branch. Consolidation would also facilitate specialization by the habeas court and ensure that habeas petitions were routinely considered by judges with substantial experience in habeas matters. Finally, consolidation would ameliorate the discrepancy in resource allocation to habeas matters that occurs among the current habeas districts. The committee finds that this result can best be accomplished by providing flexibility to the Chief Court Administrator to set the requirements for venue. That authority may be provided by revision of subsection (a) of section 52-466 to provide as follows:

"(a)(1) An application for a writ of habeas corpus by a person committed to the custody of the state of Connecticut as the result of a criminal conviction shall be made to the superior court, or to a judge thereof, for such judicial district or judicial districts as may be designated by the Chief Court Administrator. In any case in which the application is filed in a judicial district other than a designated judicial district, the clerk of the court for that district shall transfer the petition to the clerk for the judicial district so designated.

(2) An application for a writ of habeas corpus, other than an application pursuant to subdivision (1) of this subsection, shall be made to the superior court or to a judge thereof for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of his liberty [, provided any application made by or on behalf of a person confined in the Connecticut Correctional Institution, Enfield-Medium or the Carl Robinson Correctional Institution, Enfield, shall be made to the superior court or a judge thereof for the judicial district of Tolland]."

 

Elimination of the right to appeal denial of a petition for certification to appeal

Both State’s Attorneys and Public Defenders support eliminating the right in a habeas case to further appeal the denial of a petition to certify an appeal. Appellate practice with respect to habeas matters has proved problematic for both offices. Where a state habeas petition is denied, exhaustion requirements for purposes of a federal habeas currently require petitioners to first appeal a denial of the applicant’s petition for certification to appeal. Practitioners often view the required appeal from the denial of certification to be a barrier to filing a federal habeas petition rather than as avenue to sympathetic review. This aspect of the state appellate process is therefore often reduced to a pro forma exercise to satisfy "exhaustion" requirements, expending substantial resources without usefully advancing habeas practice. Moreover, the purpose of a "certification" procedure is to eliminate appeal as a matter of right, allowing only appeals that raise reasonable substantive issues. The current practice of allowing appeal of the denial of the certification undermines that role of the certification process.

The committee notes that the existing problematic right to appeal the denial of a petition for certification is not grounded in the constitution, and can be legislatively revised. See the discussion in Iovieno v. Commissioner of Correction, 242 Conn. 689 (1997). The current practice of allowing appeal from denial of the certification stems from Connecticut Supreme Court decisions in Sims v. Warden, 229 Conn. 178 (1994) and Carpenter v. Meachum, 229 Conn. 193 (1994) in which a divided court found such a right to appeal. As noted, the committee finds the practice that has resulted to be problematic and recommends that the pro forma appellate practice that stems from the right to appeal the denial of a petition for certification be eliminated. The ten day period for petition in the current statute has been extended to twenty days to mirror the more usual period for appeal.

That result may be obtained by revising subsection (b) of section 52-470 to read:

"(b) No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of a crime may be taken unless the appellant, within [ten] twenty days after the case is decided, petitions either the judge before whom the case was tried or a judge of the Supreme Court or Appellate Court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies. The judge to whom the petition is brought shall render a decision thereon either granting or denying certification. Denial of certification by the judge to whom the petition has been brought shall be a final judgment and may not be appealed."

 

Provision of statutory authority for prescreening by public defenders

Resolution or disposition of habeas matters are routinely delayed by the dynamics of existing habeas practice under which public defenders are not appointed as counsel until after the original pro se filing of the petition. As practice has developed, public defenders are not positioned to counsel petitioners until after the initial claims are already in court. Typically, this results in a substantial delay of the case while the public defenders conduct interviews, gather materials, and otherwise investigate the case to ascertain the legal sufficiency of the allegations. Again, as a matter of practice, that investigation often leads to an amendment of the habeas claims, often in substantially different form from the original filing. During this process, the case sits, docketed on the court calendar, expending judicial resources and requiring ongoing monitoring by the state’s attorneys.

The committee finds that the handling of habeas claims could be facilitated by explicitly empowering public defenders to prescreen cases and provide appropriate counsel. Notice of such representation should be given to the State’s Atttorney to assist that office in protecting its record for those cases.

Adding a new subsection (d) to section 51-296 as follows would accomplish that result:

"(d) Prior to the filing of a habeas corpus petition, a public defender, assistant public defender, deputy assistant public defender, or a special public defender, upon a determination that an inmate is indigent pursuant to subsection (a) of section 51-297 and upon notice to the state, shall be authorized to represent the inmate and file a habeas corpus petition on behalf of the inmate. Representation of the inmate under this subsection shall be subject to any subsequent appointment of counsel by the court."

 

Increased use of administrative grievance procedures by requiring exhaustion of administrative remedies prior to consideration of conditions of confinement claims

Approximately 40% of the habeas docket consists of "conditions of confinement" claims that challenge the manner in which a person is incarcerated rather than the underlying grounds for the incarceration. While "conditions of confinement" claims reflect serious issues that may be constitutionally entitled to habeas review, the committee finds that those issues are most susceptible to redress, and ought to be first considered, at the administrative level, either within the context of the existing grievance process within the Department of Corrections, or pursuant to an independent administrative grievance procedure. The committee recommends, therefore, that consideration by the Superior Court of a "conditions of confinement claim" should be conditioned on exhaustion by the petitioner of his available administrative remedies. Further consideration should be given, with input from the Department of Corrections, the Attorney General, and the Correctional Ombudsman, to the adequacy and effectiveness of the existing administrative remedies, and, if necessary, to revision of that administrative process.

A revision to effect that result might be structured as follows:

"If a person committed to the custody of the State of Connecticut as the result of a criminal conviction applies for a writ of habeas corpus that does not challenge the basis of that conviction, it shall be a sufficient defense that the applicant has failed to exhaust administrative remedies that are available to address the circumstances complained of."

 

Strengthening of record retention rules to ensure availability of records and exhibits that are necessary for a habeas review

Record retention rules that prohibit the destruction of necessary records and exhibits are critical to the integrity of the habeas process. This is a matter of common sense. While a person’s liberty is at stake, evidence that may shed light on the legality of his conviction must be preserved. Destruction of records is currently addressed by C.G.S. section 51-36 and by Practice Book rule 7-13. In particular, Practice Book rule 7-13(i) does not allow destruction of a file where there has been conviction of a felony charge until expiration of the sentence. However, section 7-13 also allows the file to be stripped and it is unclear to what extent necessary exhibits, records, and other evidence is being, or, as a matter of practice, may be, destroyed. The committee recommends strengthening of these record retention rules for cases involving incarceration and a potential habeas action. To accomplish that result, section 51-36 may be amended to include new language as follows:

Sec. 51-36. Microfilming, destruction and transferring of court records.

"(a) The Chief Court Administrator may cause any and all court records, papers or documents other than records concerning title to land, required to be retained indefinitely or for a period of time defined by (1) rules of court, (2) directives promulgated by the Office of the Chief Court Administrator or (3) statute, to be microfilmed. The device used to reproduce such records on film shall be one which accurately reproduces the original thereof in detail. Such microfilm shall be considered and treated the same as the original records, papers or documents, provided a certificate of authenticity appears on each roll of microfilm. A transcript, exemplification or certified copy thereof shall for all purposes be deemed to be a transcript, exemplification or certified copy of the original. The original court records, papers or documents so reproduced may be disposed of in such manner as approved by the Office of the Chief Court Administrator. For purposes of this subsection, microfilm shall include microcard, microfiche, microphotograph, electronic medium or any other process which actually reproduces or forms a durable medium for so reproducing the original.

(b) [Any] Except as provided in subsection (c) of this section, any judge of the Superior Court may order that official records of evidence or judicial proceedings in said court, the Court of Common Pleas or the Circuit Court, including official notes and tapes of evidence or judicial proceedings concerning title to land, taken more than seven years prior to the date of such order by any stenographer or official court reporter, be destroyed by the person having the custody thereof.

(c) In criminal cases in which the defendant has been convicted of a felony, the official records of evidence or judicial proceedings may not be destroyed until expiration of twenty years from the date of disposition or upon expiration of the sentence, whichever is later. For purposes of this subsection, official records of evidence or judicial proceedings include the unstripped court file, all exhibits from the parties whether marked for identification or admitted as full exhibits, and the transcripts of all proceedings held in the matter including the transcript of the voir dire.

[(c)] (d) All court records other than records concerning title to land may be destroyed in accordance with rules of court. Records concerning title to land shall not be subject to any such destruction, except that official notes and tapes of evidence or judicial proceedings concerning title to land may be destroyed. All court records may be transferred to any agency of this state or to any federal agency in accordance with rules of court or directives promulgated by the Office of the Chief Court Administrator, provided records in any action concerning title to land terminated by a final judgment affecting any right, title or interest in real property shall be retained for not less than forty years in the office of the clerk of the court location in which the judgment was rendered. Any other Judicial Department books, records, papers or documents may be destroyed or transferred to any agency of this state or to any federal agency in accordance with directives promulgated by the Office of the Chief Court Administrator."