Connecticut Seal

General Assembly

Amendment

 

January Session, 2009

LCO No. 7923

   
 

*HB0657807923SRO*

Offered by:

 

SEN. KISSEL, 7th Dist.

 

To: House Bill No. 6578

File No. 726

Cal. No. 661

Strike everything after the enacting clause and substitute the following in lieu thereof:

"Section 1. (NEW) (Effective October 1, 2009) Sections 1 to 5, inclusive, of this act apply to any application for a writ of habeas corpus filed on or after the effective date of this section that is brought by or on behalf of a person who (1) has been convicted of an offense, as defined in section 53a-24 of the general statutes, in order to obtain such person's release by challenging his or her conviction or sentence, or (2) has been found not guilty by reason of mental disease or defect pursuant to section 53a-13 of the general statutes and committed to the jurisdiction of the Psychiatric Security Review Board in order to obtain such person's release by challenging such commitment.

Sec. 2. (NEW) (Effective October 1, 2009) The remedy of habeas corpus is not a substitute for and does not affect any remedy incident to the proceedings in the trial court or direct review of the conviction. Except for the remedies of appeal, petition for a new trial, sentence review in accordance with section 51-196 of the general statutes, sentence reduction or discharge in accordance with section 53a-39 of the general statutes and the authority possessed by the sentencing court at common law to correct an illegal sentence, the remedy of habeas corpus as provided for in sections 1 to 5, inclusive, of this act, comprehends and takes the place of all common law, statutory and other remedies available prior to the effective date of this section for challenging the validity of a conviction, sentence or commitment and shall be used exclusively in place of such remedies.

Sec. 3. (NEW) (Effective October 1, 2009) (a) A claim for relief raised in an application for a writ of habeas corpus, or in an amended application, shall be procedurally barred and no court may decide the claim if it was raised and decided, either on the merits or on procedural grounds, in any earlier proceeding or it could have been raised but was not raised:

(1) At any time prior to the imposition of sentence in the proceeding that resulted in the applicant's conviction or commitment;

(2) In a direct appeal from the proceeding that resulted in the applicant's sentence or commitment; or

(3) In a previous habeas corpus proceeding challenging the same sentence or commitment.

(b) Notwithstanding the provisions of subsection (a) of this section, a court may hear a claim if:

(1) The applicant demonstrates good cause for his or her failure to bring the specific claim in the earlier proceedings and actual prejudice resulting from that failure. For purposes of this subsection, an applicant shows good cause by identifying an objective factor external to the defense that impeded his or her ability to raise the specific claim during the earlier proceedings, and shows actual prejudice by demonstrating that the failure to raise the claim resulted in a finding of guilt, a sentence or a commitment so infected by error that it violates due process. In addition, if proven, the ineffectiveness of counsel for failing to raise the specific claim prior to the imposition of sentence in the proceeding that resulted in the applicant's conviction or commitment, or on direct appeal, may constitute good cause and actual prejudice;

(2) The applicant alleges the existence of newly discovered evidence, including scientific evidence, that could not have been discovered by the exercise of due diligence by the applicant or the applicant's counsel at an earlier proceeding, and the evidence is not cumulative to evidence presented at trial, is not for impeachment purposes and establishes by clear and convincing evidence that the applicant is innocent of the offense or offenses for which he or she was convicted; or

(3) The applicant's claim for relief is based upon a new interpretation of federal or state constitutional law by either the Supreme Court of the United States or the Supreme Court of this state that was previously unavailable and is retroactively applicable to cases on collateral review.

Sec. 4. (NEW) (Effective October 1, 2009) (a) No application for a writ of habeas corpus shall be allowed if filed: (1) More than three years after the date that the sentence was imposed or the commitment ordered if no direct appeal was taken, or (2) more than one year after the date of (A) the final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction, or (B) the denial of a petition for writ of certiorari to the Supreme Court of the United States or issuance of said court's final order following the granting of such petition; whichever is later.

(b) Notwithstanding the provisions of subsection (a) of this section, a court may hear a claim if the applicant establishes due diligence in presenting the claim and:

(1) The applicant establishes that a physical disability or mental disease precluded a timely assertion of the claim;

(2) The applicant alleges the existence of newly discovered evidence, including scientific evidence, that could not have been discovered by the exercise of due diligence by the applicant or the applicant's counsel prior to the expiration of the three-year period for the filing of an application for a writ of habeas corpus, and the evidence is not cumulative to evidence presented at trial, is not for impeachment purposes and establishes by clear and convincing evidence that the applicant is actually innocent of the offense or offenses for which he or she was convicted;

(3) The applicant's claim for relief is based upon a new interpretation of federal or state constitutional law by either the Supreme Court of the United States or the Supreme Court of this state and made retroactively applicable to cases on collateral review; or

(4) The applicant establishes that the evidence on which the claim is based was in the exclusive possession of the state and was not otherwise available to the applicant, was not disclosed prior to the expiration of the time periods set forth in subsection (a) of this section, is favorable to the applicant and is material to the applicant's guilt or punishment.

(c) A new three-year period shall not commence upon a resentencing that results from an order of the review division in accordance with section 51-196 of the general statutes, an order reducing a sentence or discharging a defendant in accordance with section 53a-39 of the general statutes or an order issued pursuant to the sentencing court's authority at common law to correct an illegal sentence. Any claim for relief based upon such resentencing must be brought within one year of the date that the new sentence was imposed.

Sec. 5. (NEW) (Effective October 1, 2009) (a) The provisions of section 51-296 of the general statutes shall not apply at a proceeding initiated by the filing of a second or subsequent application for a writ of habeas corpus. The court before which a second or subsequent application is pending may, if it determines that the grounds for relief raised in the application are not frivolous, that the interests of justice will be furthered and, after investigation by the public defender or his or her office, that the applicant is indigent as defined under chapter 887 of the general statutes, designate a public defender, assistant public defender or deputy assistant public defender or appoint counsel from the trial list established under section 51-291 of the general statutes, to represent such indigent applicant.

(b) The ineffectiveness or incompetence of any counsel who represented the applicant in an earlier habeas corpus proceeding shall not be a ground for relief in a second or subsequent application.

(c) For the purposes of this section, "a second or subsequent application" means an application for a writ of habeas corpus filed after a first application for a writ of habeas corpus is filed.

Sec. 6. Subdivision (2) of subsection (a) of section 52-466 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2009, and applicable to any application made on or after said date):

(2) An application for a writ of habeas corpus claiming illegal confinement or deprivation of liberty, made by or on behalf of an inmate or prisoner confined in a correctional facility as a result of a conviction of a crime, shall be made to the superior court [, or to a judge thereof,] for the judicial district of Tolland.

Sec. 7. Subsection (c) of section 54-95 of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):

(c) [In any criminal prosecution in which the defendant has been sentenced to death and has taken an appeal to the Supreme Court of this state or the Supreme Court of the United States or brought a writ of error, writ of certiorari or petition for a new trial, the taking of the appeal, the making of the application for a writ of certiorari or the return into court of the writ of error or petition for a new trial shall, unless, upon application by the state's attorney and after hearing, the Supreme Court otherwise orders, stay the execution of the death penalty until the clerk of the court where the trial was had has received notification of the termination of any such proceeding by decision or otherwise, and for thirty days thereafter. ] In any criminal prosecution in which the defendant has been sentenced to death, the sentence shall be stayed during the pendency of the direct appeal and for thirty days thereafter. If the defendant brings a petition for writ of certiorari to the Supreme Court of the United States, the sentence shall be stayed until the Supreme Court of the United States has finally determined the matter and for ten days thereafter. If the defendant brings an application for a writ of habeas corpus or a timely petition for a new trial, the sentence shall be stayed until the matter is finally determined and for thirty days thereafter. The filing of a petition for certification to appeal the denial of a writ of habeas corpus or the filing of an appeal from the denial of a petition for a new trial shall stay the execution of the sentence until any appeal to the Appellate Court or Supreme Court of this state is finally determined and for ten days thereafter or until ten days after the petition for certification is denied if no appeal is filed. Only the first application for a writ of habeas corpus or petition for a new trial shall give rise to an automatic stay pursuant to this subsection. If the defendant brings a second or subsequent application for a writ of habeas corpus or petition for a new trial, any motion for a stay of the sentence shall be made to the Supreme Court of this state and shall only be granted upon a showing by the defendant of a likelihood of success upon the merits. No appellate procedure shall be deemed to have terminated until the end of the period allowed by law for the filing of a motion for reargument, or, if such motion is filed, until the proceedings consequent thereon are finally determined. When execution is stayed under the provisions of this section, the clerk of the court shall forthwith give notice thereof to the warden of the institution in which such defendant is in custody. If the original judgment of conviction has been affirmed or remains in full force at the time when the clerk has received the notification of the termination of any proceedings by appeal, [writ of certiorari, writ of error or] petition for a new trial or application for a writ of habeas corpus, and the day designated for the infliction of the death penalty has then passed or will pass within thirty days thereafter, the defendant shall, within said period of thirty days, upon an order of the court in which the judgment was rendered at a regular or special criminal session thereof, be presented before said court by the warden of the institution in which the defendant is in custody or his deputy, and the court, with the judge assigned to hold the session presiding, shall thereupon designate a day for the infliction of the death penalty and the clerk of the court shall issue a warrant of execution, reciting therein the original judgment, the fact of the stay of execution and the final order of the court, which warrant shall be forthwith served upon the warden or his deputy.

Sec. 8. (NEW) (Effective October 1, 2009) In any habeas corpus proceeding pending in the courts of this state on September 30, 2009, the law in effect prior to October 1, 2009, shall govern such proceeding. "

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2009

New section

Sec. 2

October 1, 2009

New section

Sec. 3

October 1, 2009

New section

Sec. 4

October 1, 2009

New section

Sec. 5

October 1, 2009

New section

Sec. 6

October 1, 2009, and applicable to any application made on or after said date

52-466(a)(2)

Sec. 7

from passage

54-95(c)

Sec. 8

October 1, 2009

New section