October 10, 2003 98-R-0823

FROM:  Christopher Reinhart, Research Attorney

RE:  Death Penalty Appeals Process in Connecticut and Attempts in Other States to Restrict Appeals

You asked for a description of the death penalty appeals process in Connecticut, how long it can take, and how it might be expedited by legislative change.  You also asked what other states have done to attempt to restrict appeals and to give them precedence over other appeals.

The death penalty appeals process involves state and federal courts and direct and post-conviction review of a death sentence.  The Connecticut appeals process involves an automatic sentence review by the Connecticut Supreme Court, a direct appeal of errors at trial and sentencing, and then a state habeas corpus phase.  At the conclusion of state proceedings, a federal habeas petition may be filed and taken through the federal appeals process.  These decisions can also be the subject of a petition for certiorari to the U. S.  Supreme Court.  Connecticut does not have any special rules giving these cases priority over other appeals.

Some states have acted in recent years to shorten the appeals process by placing deadlines on filing briefs, appeals, habeas petitions, and issuing decisions.  Other states have consolidated claims on direct appeal and habeas corpus into one proceeding.  The recently enacted federal Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) attempts to limit federal post-conviction proceedings and shorten the time period involved.  This law also provides an incentive for states to provide counsel to indigent defendants during post-conviction proceedings.  Some states have followed this lead to try to qualify for stricter limits on federal habeas petitions.  These states provide examples of how legislatures can attempt to expedite death penalty cases.

A defendant sentenced to death may seek a direct review in the state courts or begin state and federal habeas corpus proceedings.  He may also appeal to the U. S.  Supreme Court at each of these stages.

In Connecticut, the state Supreme Court automatically reviews a death sentence.  The court must affirm the sentence unless (1) it was the product of passion, prejudice, or any other arbitrary factor or (2) the evidence fails to support the finding of an aggravating factor needed to impose the death penalty.  Additionally, the defendant may seek a direct appeal of his conviction to address any errors at trial.  The court must consolidate the review and appeal for consideration (CGS § 53a-46b).

If the direct appeal fails, the defendant can petition the U. S.  Supreme Court for review of the conviction.  If certiorari is not granted, he may file a state habeas corpus petition.  Habeas petitions generally cannot raise issues that have already been raised and decided on appeal.  The petitions usually involve a claim (1) of ineffective assistance of counsel or (2) for a new trial based on actual innocence (usually due to the discovery of new evidence).  A defendant can then appeal these claims through the Connecticut Supreme Court and denials could be the subject of another petition for certiorari to the U. S.  Supreme Court.  If the defendant is unsuccessful at this point, he may file a federal habeas corpus petition on federal issues in the federal district court.  This claim can be appealed to the court of appeals and then the U. S.  Supreme Court.

The defendant's case can be remanded to the trial court if the state Supreme Court vacates the conviction or the death sentence for one of the above-stated reasons, the defendant's habeas petition (federal or state) is granted, or the U. S Supreme Court finds error.  Upon remand, a new death sentence could be imposed and the appeals process would begin again.

There are no court rules that apply specifically to death penalty appeals.  These cases are subject to the same rules as other appellate cases.  The state does not place any time limits on the filing of a habeas corpus petition but federal law does.  The AEDPA requires a federal habeas petition to be filed within a year of a final determination on the death sentence by the state courts.  A prerequisite for filing a federal habeas is the completion of the state habeas process, which must begin within one year after the final determination.  The one-year period is put on hold while state proceedings are under way and whatever time is remaining from this period is the time allowed to file the federal petition after state proceedings are completed.

CONNECTICUT DEATH PENALTY CASES

None of Connecticut's death penalty cases has reached the end of the appeals process so it is impossible to say how long the process might take.  There are currently five individuals appealing a death sentence and a sixth (Michael Ross) with a death sentence that was reversed and a re-sentencing hearing pending.  None of these cases has moved on to the habeas phase.  It may be several more years before any of these individuals finish their appeals.  But Ross has said that he will not oppose a death sentence or appeal the issue and his case could come to a conclusion much sooner.  The current status of these cases are as follows:

1.  Breton—originally sentenced in 1989, the sentence was reversed by the Supreme Court but reimposed on remand and the case is again awaiting review by the Supreme Court.

2.  Cobb—sentenced in 1991, currently awaiting Supreme Court review.

3.  Reynolds—sentenced in 1992, awaiting Supreme Court review.

4.  Johnson—sentenced in 1993, awaiting Supreme Court review.

5.  Ross—originally sentenced in 1987, the Supreme Court reversed the death sentence and returned the case for a new sentencing hearing which is currently pending.

6.  Webb—sentenced in 1991, the Supreme Court upheld the death sentence and the case is currently in the trial court for a hearing on the constitutionality of the use of lethal injection (the method of execution was changed after he was sentenced).

Other states provide examples of ways to expedite the appeals process.  In recent years, many states have attempted to shorten the time period involved in their death penalty appeals process by placing deadlines on filing appeals, habeas petitions, and briefs and on issuing court decisions.  Some have created a system to consolidate claims raised by direct appeal and habeas corpus in one court proceeding.  Others have attempted to meet the AEDPA guidelines by providing post-conviction counsel to indigents to qualify for the stricter time limits on filing federal habeas petitions.

AEDPA provides an incentive to states that are interested in speeding up the appeals process overall.  The deadlines for filing a federal habeas petition, and therefore also a state petition, are shorter if a state implements a program to provide counsel to indigents in state post-conviction proceedings.  Six months, instead of one year, is allowed for filing a federal habeas petition and up to an additional 30 days for “good cause. ” The shorter time limit for filing federal habeas petitions will also require that state petitions be filed within this period.  The AEDPA places further limits on the issues that may be raised and imposes time limits on the district and circuit courts for making decisions.

In Arkansas, the Supreme Court may apply a harmless error review to death sentence appeals in some circumstances.  If the court finds that the jury erred when finding a particular aggravating circumstance when no mitigating circumstances were found, the court can conduct a harmless error review.  The court must determine whether the remaining aggravating circumstances found by the jury exist beyond a reasonable doubt and whether they are enough to justify the death penalty beyond a reasonable doubt.  The death penalty can be affirmed if a majority of the court concludes that the error would not have changed the jury decision (Ark.  Code § 5-4-603).

Arkansas addressed post-conviction proceedings when it adopted the Arkansas Effective Death Penalty Act of 1997 (SB 392) with the express intent of complying with the federal AEDPA to qualify for its stricter time limitations on federal habeas proceedings.  Under the act, the court must appoint counsel for a defendant who wants to proceed to the post-conviction stage within two weeks of the completion of direct appeals after finding indigency and that the defendant accepts counsel or is incompetent to decide.  Appointed attorneys must meet specific criteria and experience, except the court may appoint uniquely qualified attorneys who do not meet specified standards.  The attorney who represented the defendant at trial and direct appeal cannot represent him in the post-conviction stage unless both the defendant and the attorney request it.  The court must appoint a second attorney if the trial counsel continues representation.  A defendant must waive the right to counsel in open court to proceed pro se.

Deadlines are used to move the process along.  Within 50 days of filing a post-conviction petition, the judge must convene a status conference.  A hearing, if necessary, must be scheduled within the next 180 days unless there is good cause for a continuance.  The judge must issue a decision within 30 days of receipt of the hearing transcript or any briefs requested by the court.  If no hearing is held, the judge must issue a decision within 120 days of the date the petition is filed.

California's statute states that appeals are to be handled expeditiously.  On direct appeal, a petitioner must file his appellate brief with the Supreme Court within seven months of the certification of the record or receipt of the record by counsel.  If the record is more than 10,000 pages, the law allows an extra 15 days per 1,000 pages.  The respondent brief is due within the next 120 days and a similar extension is allowed.  A reply brief can then be filed within 60 days.  The court must reach a decision and issue an opinion within 210 days of the completion of briefing for the appeal or for a habeas petition if they are heard at the same time (Cal.  Penal § 190. 6, Rules Ct.  § 39. 50).

California adopted legislation creating the California Habeas Resource Center in 1997 to set standards for competency of counsel, provide compensation rates for post-conviction proceedings, and increase financing for investigations and expenses of counsel.  For state post-conviction proceedings, the Supreme Court must appoint counsel to represent an indigent defendant who accepts counsel or cannot competently decide.  Appointed counsel cannot have represented the defendant at trial or on direct appeal unless the defendant expressly requests it.  A defendant can proceed without counsel if he fully understands the legal consequences.  Rules of Court must be adopted for competency standards and appointment of counsel (Cal.  Gov't Code 8-68650 to 68654).

This act attempts to meet the guidelines of AEDPA.  It has already been the topic of a U. S.  Supreme Court case.  The Ninth Circuit Court of Appeals held that California did not meet the AEDPA requirements but the Supreme Court in Calderon, Warden, et al.  v.  Ashmus, et al, (May 26, 1998, No.  97-391) ruled that the issue was not properly before the courts and overturned the decision.  The Supreme Court held that a case and controversy did not exist in Calderon and it was not proper for courts to determine the issue of whether California met the AEDPA requirements on the facts of this case.

Colorado

In 1997, Colorado adopted HB 1225 to reorganize its death penalty appeals process into a system of unitary review and to attempt to qualify for the shorter time limits under AEDPA.  Under the act, automatic review by the Colorado Supreme Court is combined with all other appeals.  If a defendant seeks direct review and post-conviction appeal from a trial court decision, the Colorado Supreme Court consolidates the issues (Colo.  Rev.  Stat.  § 16-12-207).  The law's intent is for the Supreme Court to give priority to these cases over all others, except as otherwise required by the state constitution.

The appeals process begins with a hearing that must be held within five days of the imposition of the death sentence.  At the hearing, the court must (1) advise the defendant of his rights, (2) appoint appellate and post-conviction counsel, if necessary, (3) order the prosecution to provide the defense with all discoverable material within five days, (4) order delivery of all information to the defense attorneys appointed to represent indigent defendants within five days, if necessary, (5) order post-conviction review motions filed within 150 days, and (6) order the delivery of transcripts.  This hearing should determine whether the defendant will pursue post-conviction review (Colo.  Rev.  Stat.  § 16-12-204, Court Rule 32. 2).

The court must appoint post-conviction counsel if the defendant is indigent and he accepts counsel or is unable to competently accept counsel.  The court must appoint one or more attorneys who meet minimum qualifications and experience.  Post-conviction counsel and trial counsel cannot be the same unless the defendant requests it.  For trial counsel to continue in the case, the trial court must find after full discussion that (1) the defendant understands that new counsel can be appointed, (2) he waives the right to challenge the effectiveness of trial counsel at any stage, (3) the waiver is knowing, intelligent, and voluntary, and (4) the trial counsel agrees to continue representation.  Ineffectiveness of counsel during post-conviction review is not a basis for relief (Colo.  Rev.  Stat.  § 16-12-205).

Issues that were previously raised on direct reviews cannot be the subject of post-conviction review.  The court may hear claims alleging (1) new evidence of material facts that could not have previously been known by reasonable diligence, (2) the conviction or sentence violated the U. S.  or Colorado constitutions, (3) the defendant was convicted under a statute that violates the U. S.  or Colorado constitutions, (4) the conduct for which he was prosecuted was constitutionally protected, (5) the judgment was rendered without jurisdiction over the defendant or the subject matter, (6) any other grounds properly serving as the basis for collateral attack on a criminal judgment, or (7) ineffective assistance of trial counsel.  The attorney-client privilege is automatically waived when alleging ineffective assistance of counsel, with respect to information related to that claim.  A motion for reconsideration or rehearing of a trial court ruling on a motion for post-conviction review is not allowed but the trial court's ruling can be reviewed on appeal to the Colorado Supreme Court (Colo.  Rev.  Stat.  § 16-12-206).

All proceedings must be completed within two years after the date the death sentence is imposed and no extensions are permitted (Colo.  Rev.  Stat.  § 16-12-208).  No further post-conviction review is available unless the defendant shows that the (1) failure to raise a claim within the time limit resulted from government interference in violation of the U. S.  or Colorado constitutions, (2) facts of the claim were not known and could not have been discovered through due diligence, or (3) right asserted is a constitutional right recognized by the U. S.  or Colorado Supreme Court after the time period had expired and the “constitutional right applies retroactively. ” A motion must be filed with the trial court within 30 days of the discovery of the claim (Colo.  Rev.  Stat.  § 16-12-209).

The court must schedule a hearing within 60 days of the filing of motions if a hearing is necessary.  The court must enter its order on all motions within 30 days of the hearing or within 30 days of the last day for filing motions if there is no hearing.  These timing requirements may be extended on a showing of extraordinary circumstances that could not be foreseen and prevented (Court Rules 32. 2).

A notice to appeal all post-conviction review decisions must be filed with the Supreme Court within five days of the trial court's order on post-conviction review motions.  The defendant must file a brief within 180 days of filing the notice of appeal and the prosecution has 120 days from that date to file its answer brief.  The defense may file a reply brief within 60 days of that filing.  Extensions are allowed under extraordinary circumstances.  Briefs' lengths are limited and extensions are allowed only on a showing of compelling need (Court Rules 32. 2).

The trial court and Supreme Court can both sanction counsel for willfully failing to comply with these requirements, including imposing a contempt order, removal from representation on the case or before the court, and referral for disciplinary action (Court Rules 32. 2).

Florida requires that defendants file a notice of appeal within 30 days of a final judgment.  The defendant then has 60 days after the record is filed with the Supreme Court to file a brief.  The state must file its brief within 45 days of that date and the defendant then has another 30 days to file a reply brief.  The court can order a party to show cause for delay and may order sanctions.  A defendant must file a petition for a late appeal within two years after the expiration of the filing period unless (1) he was not aware that the appeal was untimely or was not advised of his right to appeal, and (2) he should not have ascertained the facts alleged through reasonable diligence.  A defendant must file allegations of ineffective assistance of appellate counsel within two years after the conviction is final on direct review unless the defendant claims that counsel misled him about the results of the appeal.  The court may dismiss a second or successive petition if it does not allege new grounds and the prior determination was on the merits or failed to assert these grounds (Fla.  App.  Rule 9. 140).

Defendants must file all post-conviction motions challenging the judgment, sentence, or appellate decision within one year of the state Supreme Court's decision on direct appeal or the U. S.  Supreme Court ruling on a petition for certiorari.  The court must assign post-conviction counsel within 30 days after the judgment and sentence becomes final.  It can extend the one-year filing period on a showing of good cause (Rules of Crim.  Pro.  3. 850).  By law, the one-year requirement may be waived for claims based on facts that were unknown and could not have been known through due diligence or based on a fundamental constitutional right that was established after the period expired which applies retroactively (Fla.  Stat.  Ch.  924. 051).  The court must conduct hearings and release a decision within 90 days of the state filing its response to a post-conviction motion.  The state Supreme Court has 200 days after notice is filed to reach a decision on an appeal of an order from the trial court or an extraordinary writ in a post-conviction proceeding (Fla.  Stat.  Ch.  924. 055).  If post-conviction relief is denied then the defendant has 90 days to seek further relief and the failure to do so is grounds for issuing a death warrant (Fla.  Stat.  Ch.  922. 095).  The statute also provides that a petition for federal habeas corpus may be filed within 90 days of the state Supreme Court issuing a decision in a post-conviction proceeding

Florida attempts to consolidate appeals by requiring that all petitions to the Supreme Court for extraordinary relief, including habeas corpus and other petitions when it has original jurisdiction, must be filed with the appeal of the circuit court's order on post-conviction motions (Rules of Crim.  Pro.  3. 851)

In Idaho, the state Supreme Court conducts an automatic sentence review, which must be consolidated with any direct appeals.  Defendants must file motions for post-conviction relief on any legal or factual challenge that is known or should be known within 42 days of the judgment imposing sentence.  The failure to raise a claim during this period means that it is waived.  New counsel may be appointed if there is a reasonable basis for litigating the ineffectiveness of counsel (Idaho Code § 19-2719).

The district court must hear and decide a post-conviction claim within 90 days of the date the motion or petition was filed.  The court may extend this period if it finds that extraordinary circumstances make a fair consideration of the claim impossible but the Supreme Court must independently judge these grounds to be sufficient.  The court must consolidate appeals from post-conviction motions with any appeal of the conviction or sentence (Idaho Code § 19-2719).

This year, Idaho adopted HB 840 to create the Office of the State Appellate Public Defender.  This office will provide counsel to indigent appellants.  The new law provides qualifications for public defenders and allows payment for other counsel if there is a conflict of interest.

A defendant must file an application for writ of habeas corpus within 180 days of the date the court appoints counsel or within 45 days after he files the original brief on direct appeal.  He must file amendments or supplemental applications within this period or they will be considered untimely or subsequent.  But amendments or supplements filed within 90 days of the applicable date are not considered untimely or subsequent if there is a good reason why they were not raised in the initial application (Tex.  Crim.  Proc.  Code § 11. 071).

An untimely or subsequent petition cannot be considered on the merits unless (1) its factual or legal basis was unavailable on the date the previous application was filed or the date on which the ability to file a timely application expired, (2) a preponderance of the evidence shows that no rational juror could have found the defendant guilty beyond a reasonable doubt, or (3) clear and convincing evidence shows that no rational juror would have supported the state's special issues but for a violation of the U. S.  Constitution.  A legal basis is unavailable if it was not recognized or could not have been reasonably formulated from a decision of the U. S.  Supreme Court or a state or federal appellate court.  A factual basis is unavailable if it could not be discovered through reasonable diligence (Tex.  Crim.  Proc.  Code § 11. 071).

The court of criminal appeals must issue an order finding that the requirements are satisfied before the convicting court can proceed with an untimely or subsequent application.  The court will appoint and compensate an attorney for these proceedings if the conditions are met to allow the petition.  The failure to file a petition is a waiver of all grounds for relief that were available before the last date on which an application could be timely filed (Tex.  Crim.  Proc.  Code § 11. 071).

Arizona requires courts to appoint counsel for indigent defendants in post-conviction proceedings and has adjusted several post-conviction relief deadlines (1997, SB 1003).  Montana clarified the post-conviction grounds for relief (1997, SB 216).  South Carolina has filing deadlines for post-conviction proceedings, requires courts to appoint counsel for indigent defendants, and specifies qualifications for attorneys.

Federal law, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (P. L.  104-132), attempts to limit federal habeas proceedings, gives more attention to state proceedings, and shortens the time period involved.  The act makes several changes.

1.  It places a strict one year deadline on filing federal habeas corpus petitions.  The one-year time period begins from the conclusion of direct review which means all direct appeals from sentencing, probably including the appeals to the U. S.  Supreme Court.  This time period is tolled once a state post-conviction petition is filed and begins running again when those proceeding are completed.  Whatever time is left on this one year period will be the time left to prepare and file the federal habeas petition.  The federal law anticipates that the same team of lawyers will handle both state and federal habeas petitions.

2.  Under AEDPA, the federal courts do not begin with a de novo review of constitutional claims but must use the state court's judgment as their starting point for exercising their independent judgment.  A petition cannot be granted unless (a) the decision was contrary to federal law as determined by the U. S.  Supreme Court or was an unreasonable application of federal law or (b) the decision was based on an unreasonable determination of the facts in the state court proceeding.

3.  AEDPA limits most individuals to one habeas petition in the federal courts.  An individual must request the court of appeals to direct the district court to hear a second or successive petition.  A claim that was presented in a previous petition must be dismissed.  New claims are allowed if (a) they rely on a new rule of constitutional law that was previously unavailable or (b) they are based on new facts that could not have been discovered earlier by due diligence and these facts would establish by clear and convincing evidence that no reasonable factfinder would have found the defendant guilty but for constitutional error.  The Supreme Court has called this a “gatekeeping” mechanism and the decision by the court of appeals is not appealable and cannot be the subject of a petition for rehearing or a writ of certiorari.

4.  An appeal from a federal district court decision on the federal habeas claim must be certified by the circuit court or the Supreme Court and the court must specify the issues to be appealed.

5.  Federal evidentiary hearings are limited.  (Marshall J.  Hartman and Jeanette Nyden, “Habeas Corpus and the New Federalism after the Anti-Terrorism and Effective Death Penalty Act of 1996,” 30 John Marshall Law Review 337 (1997))

CR: lc