General Assembly Raised Bill No. 6427
January Session, 2011 LCO No. 3282
*03282_______JUD*
Referred to Committee on Judiciary
Introduced by:
(JUD)
General Assembly
Raised Bill No. 6427
January Session, 2011
LCO No. 3282
*03282_______JUD*
Referred to Committee on Judiciary
Introduced by:
(JUD)
AN ACT CONCERNING POST-CONVICTION PROCEDURES IN DEATH PENALTY CASES.
Be it enacted by the Senate and House of Representatives in General Assembly convened:
Section 1. (NEW) (Effective from passage) (a) No application for a writ of habeas corpus filed by or on behalf of a person challenging a conviction of a capital felony under section 53a-54b of the general statutes entered on or after the effective date of this section or a sentence imposed in accordance with section 53a-46a of the general statutes on or after the effective date of this section shall be allowed if filed (1) more than three years after the date that the sentence was imposed 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 a writ of certiorari to the Supreme Court of the United States or issuance of the final order of the Supreme Court of the United States 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 attorney prior to the expiration of the three-year period for the filing of an application for a writ of habeas corpus, and the evidence (A) is not cumulative to evidence presented at trial, (B) is not for impeachment purposes, and (C) 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 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.
Sec. 2. 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] execution of 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, execution of 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, execution of 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 an application for 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 execution 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] Whenever execution of the sentence 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 of the sentence and the final order of the court, which warrant shall be forthwith served upon the warden or his deputy.
Sec. 3. Section 54-102kk of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):
(a) Notwithstanding any other provision of law governing postconviction relief, any person who was convicted of a crime and sentenced to incarceration may, at any time during the term of such incarceration, file a petition with the sentencing court requesting the DNA testing of any evidence that is in the possession or control of the Division of Criminal Justice, any law enforcement agency, any laboratory or the Superior Court. The petitioner shall state under penalties of perjury that the requested testing is related to the investigation or prosecution that resulted in the petitioner's conviction and that the evidence sought to be tested contains biological evidence.
(b) After notice to the prosecutorial official and a hearing, the court shall order DNA testing if it finds that:
(1) A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing;
(2) The evidence is still in existence and is capable of being subjected to DNA testing;
(3) The evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing; and
(4) The petition before the Superior Court was filed in order to demonstrate the petitioner's innocence and not to delay the administration of justice.
(c) After notice to the prosecutorial official and a hearing, the court may order DNA testing if it finds that:
(1) A reasonable probability exists that the requested testing will produce DNA results which would have altered the verdict or reduced the petitioner's sentence if the results had been available at the prior proceedings leading to the judgment of conviction;
(2) The evidence is still in existence and is capable of being subjected to DNA testing;
(3) The evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing; and
(4) The petition before the Superior Court was filed in order to demonstrate the petitioner's innocence and not to delay the administration of justice.
(d) Notwithstanding the provisions of subsections (b) and (c) of this section, whenever any person convicted of a capital felony under section 53a-54b and sentenced to death in accordance with section 53a-46a files a petition pursuant to subsection (a) of this section requesting the DNA testing of evidence, the court shall, without a hearing, order such DNA testing.
[(d)] (e) The costs of DNA testing ordered pursuant to this section shall be borne by the state or the petitioner, as the court may order in the interests of justice, except that DNA testing shall not be denied because of the inability of the petitioner to pay the costs of such testing.
[(e)] (f) In a proceeding under this section, the petitioner shall have the right to be represented by counsel and, if the petitioner is indigent, the court shall appoint counsel for the petitioner in accordance with section 51-296.
This act shall take effect as follows and shall amend the following sections:
Section 1 from passage New section
Sec. 2 from passage 54-95(c)
Sec. 3 from passage 54-102kk
This act shall take effect as follows and shall amend the following sections:
Section 1
from passage
New section
Sec. 2
from passage
54-95(c)
Sec. 3
from passage
54-102kk
Statement of Purpose:
To streamline the process for filing habeas corpus petitions, appeals and requests for DNA testing of evidence in cases where the defendant has been convicted of a capital felony.
[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]