April 24, 2009

 

2009-R-0178

Death Penalty Appeals and Habeas Proceedings

 

By: Jillian Redding, Legislative Fellow

 

 

You asked for (1) a description of the appeals that are possible for a criminal defendant who has been convicted of a capital felony in Connecticut and sentenced to death, (2) a description of state and federal habeas proceedings, and (3) the status of appeals by inmates sentenced to death in Connecticut.  This report updates OLR Reports 98-R-0823 and 2009-R-0155.

SUMMARY

The death penalty appeals process involves state and federal courts and direct and post-conviction review of a death sentence.  In Connecticut, defendants convicted of a capital offense and sentenced to death have three successive procedures to challenge constitutional defects in their conviction or sentence.  First, they may raise the claim on direct appeal; second, they may petition for state habeas proceedings; and third, at the conclusion of the state proceedings, they may petition for federal habeas corpus. 

 

The 1996 federal Antiterrorism and Effective Death Penalty Act (AEDPA) established a streamlined procedure for habeas corpus claims brought in federal courts.  Among other things, it limits federal habeas proceedings and shortens the time period involved.

stay of execution

When a criminal defendant is convicted and sentenced to death, there is an automatic stay of execution within the appeal time period (CGS § 54-95(c); Conn. Practice Book § 61-15).  The court may also extend this stay of execution when the defendant applies for a writ of error, writ of certiorari, writ of habeas corpus, application for a pardon, motion for reconsideration, motion to set aside the judgment, motion for judgment notwithstanding the verdict, motion for additur or remitter, or petition for a new trial.  (This list is not exhaustive.)  By law, if the defendant does not appeal the conviction or sentence, the penalty will be carried out within six months after the sentence is imposed (CGS § 54-99).

DIRECT APPEAL

By law, the Connecticut Supreme Court must automatically review any death sentence imposed by state courts and will either (1) affirm the sentence or (2) vacate it and remand for a new sentencing hearing (CGS § 53a-46b(a)).  The Court must affirm the sentence unless it finds that (1) the sentence was the product of passion, prejudice, or other arbitrary factor or (2) the evidence fails to support the finding of an aggravating factor under the death penalty statute, CGS § 53a-46a (CGS § 53a-46b(b)).

 

The defendant may also, after receiving a final judgment, file a direct appeal to the state Supreme Court for errors at trial and sentencing.  This appeal is usually consolidated with the automatic sentence review (CGS § 53a-46b(c)). The defendant generally has 20 days to file an appeal or other motion that would render the trial court’s final judgment ineffective (Conn. Practice Book § 63-1(a); § 63-1(c)(1)).  There is an automatic stay of execution during this appeal period.  A direct appeal must challenge errors at the trial level.  If the defendant is solely challenging the effectiveness of counsel, then he or she may forgo a direct appeal and bring a habeas corpus claim.  However, a habeas claim generally may not be used in lieu of a direct appeal if the defendant wishes to challenge errors at trial or the judgment (Smith v. Barbieri, 29 Conn. App. 817, 821, cert. denied, 225 Conn. 902 (1993); Valeriano v. Bronson, 209 Conn. 75, 85 (1991)). 

 

If review of the conviction is affirmed, the defendant may petition for certiorari review to the U.S. Supreme Court.  The case can be remanded to the trial court if the state or U.S. Supreme Court vacates the conviction or the death sentence.  Upon remand, it is possible that a new death sentence is imposed and the appeals process would begin again.  Death penalty cases are subject to the same court rules as other appellate cases. 

STATE HABEAS PROCEDURE

After the direct appeal process ends, the last step in the state procedure is application for a writ of habeas corpus.  A state habeas corpus claim challenges defects in the trial or sentence pertaining to the defendant’s constitutional rights, such as ineffective assistance of counsel, illegal detention, deprivation of liberty, or actual innocence.  The central purpose of the writ is to test the legality of the defendant’s detention where a deprivation of his or her rights has occurred (Vincenzo v. Warden, 26 Conn. App. 132, 136-37 (1991); see also Reed v. Reincke, 155 Conn. 591, 594 (1967)).  Connecticut law does not place any time limits on the filing of habeas corpus petitions.  However, federal law does.

 

If a defendant brings a state habeas claim without first challenging the validity of the judgment by direct appeal, the claim may be subject to procedural default, meaning the habeas court may dismiss or deny the claim because it appropriately should be addressed by direct appeal.  In such a case of procedural default, the court must review the case under the cause and prejudice standard (Fitzgerald Council v. Comm’r of Correction, 286 Conn. 477 (2008)).  This standard requires the defendant to:

 

demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition . . . . The cause and prejudice test is designed to prevent full review of issues in habeas corpus cases proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence, or ignorance . . . . Therefore, attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of trial and appellate procedure (Fitzgerald, 286 Conn. at 489).

 

Thus, the burden is on the defendant to prove cause and prejudice when the responding party claims procedural default due to lack of a direct appeal (Fitzgerald, 286 Conn. at 489-90).  Cause is present (1) in ineffective assistance of counsel claims, (2) when there is a “subsequent development of constitutional theory” that would have been novel at the time it should have been asserted that it would have been considered unavailable, or (3) when there is a “discovery of new evidence not previously readily discoverable” (Charles Doyle, Cong. Research Report for Congress, RL33391, Federal Habeas Corpus: A Brief Legal Overview, Apr. 26, 2006, available at http://www.fas.org/sgp/crs/misc/RL33391.pdf).

 

Habeas petitions generally cannot raise issues already raised and decided on appeal.  In a habeas proceeding, it is the defendant’s burden to prove the claim alleged.  A defendant can appeal a dismissed or rejected habeas claim to the Connecticut Supreme Court and may further petition for certiorari to the U.S. Supreme Court.   If unsuccessful, he or she may file a federal habeas corpus petition on federal issues in federal district court.

 

If the state habeas claim is granted, the case is remanded for (1) a new trial or (2) a new penalty phase hearing, depending on the error found by the habeas court.  If there is a new trial, the defendant may be convicted and sentenced, once again, to the death penalty, and the appeal and habeas procedure may start over again.  If he or she receives a new penalty phase (sentencing) hearing and the death penalty is imposed again, the defendant may appeal this decision to the state Supreme Court and, ultimately, to the U.S. Supreme Court.

FEDERAL HABEAS PROCEDURE

At the conclusion of the state habeas procedure, the prisoner may file a petition for federal habeas corpus.  The 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) streamlined the federal habeas procedure.  Among other things, the federal statute:

 

1.   establishes a one-year deadline for filing a habeas petition (28 USC §§ 2244(d) and 2255);

 

2.   bars federal habeas relief on a claim already decided by the state court, to eliminate unnecessary delay, “unless adjudication of the claim (a) resulted in a decision that was contrary to [or was an unreasonable application of] clearly established Federal law … or (b) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding” (28 USC § 2254(d));

 

3.   requires the prisoner to exhaust state remedies before bringing a federal habeas claim, unless there is no available state corrective procedures or that process would be ineffective for this defendant (28 USC § 2254(b));

 

4.   allows for the state to waive the exhaustion and procedural defenses, via explicit waiver, thus allowing a defendant to forgo the state exhaustion procedure (28 USC § 2254(b)(3));

 

5.   authorizes the court to dismiss a federal habeas claim on the merits of mixed habeas petitions filed by state prisoners (28 USC § 2254(b)(2));

 

6.   bars repetitious federal habeas petitions (28 USC § 2244(b)); and

 

7.   allows for the tolling of time when a state habeas proceeding is filed.

 

The time limit to file a federal habeas petition period begins from the conclusion of direct review, which includes all direct appeals from sentencing, and likely includes the appeals to the U.S. Supreme Court.  While the time period is tolled when a state habeas petition is filed, it begins running again when those proceedings are completed.

 

The federal habeas court must begin its review of the habeas claim with the state court’s judgment as its starting point for exercising its independent judgment. 

 

The AEDPA limits most individuals to one habeas petition in the federal courts.  In order to submit a second or successive habeas petition, the defendant must request the court of appeals to direct the district court to hear the petition.  If the claim was presented in a previous habeas petition, it must be dismissed.

 

The AEDPA also offers states expeditious habeas procedures in capital cases, such as establishing a 180-day statute of limitations for filing federal habeas petitions after the state proceedings have ended in capital cases (28 USC § 2263).  No states have implemented the expeditious procedures suggested in AEDPA because of the requirements set forth in it (see, e.g., 28 USC §§ 2261 – 2266).

 

If the federal habeas claim is granted, the court may order (1) a new trial or (2) a new sentencing hearing, depending on the error found it found.  In the case of a new trial, the defendant may be convicted and sentenced, once again, to the death penalty, and the appeal and habeas procedure may start over again.  If the defendant receives a new sentencing hearing and the death penalty is applied, he or she may appeal to the U.S. Supreme Court.

CONNECTICUT DEATH ROW INMATES

As of March 4, 2009, there are 10 prisoners under a death sentence, as shown in Table 1.  Four have filed habeas claims.  Those who have not filed habeas claims are awaiting resolution from a direct appeal, which is still before the Connecticut Supreme Court.

 

Table 1: Inmates Sentenced to Death as of March 4, 2009

 

Name

Offense Date

Sentencing Date

Direct Appeal

Habeas

Robert Breton

December 13, 1987

·         October 27, 1989

 

·         January 9, 1998

·         August 22, 1995 overturns sentence (235 Conn. 206)

·         June 24, 2003 new sentence upheld (264 Conn. 327)

·         U.S. Supreme Court cert. denied December 1, 2003 (540 U.S. 1055)

State habeas

·         Filed December 2, 2003

Daniel Webb

August 24, 1989

September 12, 1991

·         Remand for hearing on constitutionality of lethal injection July 30, 1996 (238 Conn. 389)

·         Affirmed February 15, 2000 (252 Conn. 128)

·         U.S. Supreme Court cert. denied October 2, 2000 (531 Conn. 835)

State habeas

·         Filed October 17, 2000

·         Trial completed January 25, 2007

Sedrick Cobb

December 16, 1989

August 13, 1991

·         August 8, 1995 (234 Conn. 763)

·         Affirmed December 7, 1999 (251 Conn. 285)

·         U.S. Supreme Court cert. denied October 2, 2000 (531 Conn. 841)

·         State habeas corpus filed October 17, 2000

·         Judgment November 8, 2004

·         Appeal to Appellate Court December 7, 2004

·         Appeal to Supreme Court April 4, 2005

Table 1: - Continued –

Name

Offense Date

Sentencing Date

Direct Appeal

Habeas

Richard Reynolds

December 18, 1992

April 13, 1995

·         Affirmed June 3, 2003 (264 Conn. 1)

·         U.S. Supreme Court cert. denied March 8, 2004 (541 Conn. 908)

State habeas

·         Filed March 19, 2004

Todd Rizzo

September 30, 1997

·         August 13, 1999

 

 

·         June 23, 2005

·         Remand for new penalty phase November 14, 2003

 

·         Direct appeal pending from September 26, 2005

 

Robert Courchesne

September 15, 1998

January 15, 2004

Direct appeal pending from March 30, 2004

 

Russell Peeler, Jr.

January 7, 1999

December 10, 2007

Direct pending from February 26, 2008

 

Jessie Campbell III

August 26, 2000

August 16, 2007

Direct appeal pending from November 26, 2007

 

Eduardo Santiago

December 13, 2000

January 31, 2005

Direct appeal pending from March 29, 2005

 

Lazale Ashby

December 2, 2002

March 28, 2008

Direct appeal pending from July 14, 2008

 

 

In addition, a current state habeas corpus case involves nine of the 10 inmates currently sentenced to death in Connecticut (In re: Claims of Racial Disparity in Death Penalty Cases).  This case consolidates all racial disparity claims by inmates sentenced to death.  It was filed on August 29, 2005 and involves the following inmates:

 

1.   Lazale Ashby

 

2.   Robert Breton

 

3.   Jessie Campbell

 

4.   Sedrick Cobb

 

5.   Robert Courchesne

 

6.   Russell Peeler, Jr.

 

7.   Richard Reynolds

 

8.   Eduardo Santiago

 

9.   Daniel Webb

 

JR:ak