Habeas Reform: the Long and Winding Road
| Publication year | 2021 |
| Pages | 295 |
Carl J. Schuman [*]
As most habeas corpus practitioners know, our habeas corpus court, located at the Judicial District of Tolland courthouse in Rockville, is a busy place. In calendar year 2011, the court disposed of 672 cases and added 482 new cases.
Although these numbers actually represent a recent improvement in efficiency, over the longer run the docket has grown considerably.[1] Perhaps the single most important reason for the increase in cases is our Supreme Court's 1986 decision in State v. Leecan.[2] In Leecan, the Court held that a convicted defendant should present all claims of ineffective assistance of trial counsel, including those arguably supported by the record, in "an evidentiary hearing in the trial court where the attorney whose conduct in question may have an opportunity to testify."[3] The theory was that if the defendant's claim was meritorious, "he may often obtain relief in the trial court before his appeal on other issues can be heard, thus mooting such an appeal."[4]
While the practice has evolved so that most prisoners postpone filing their habeas petition until after a final decision in their direct appeal, the Leecan decision has nonetheless resulted in a surge in habeas corpus petitions alleging ineffective assistance of counsel.[5] Many of these petitions have triable issues, and some of them have resulted in substantive relief for prisoners.[6] This relief is consistent with the role of the writ of habeas corpus as a "bulwark against convictions that violate fundamental fairness."[7]
But it is also well recognized that some of the petitions are meritless, repetitious, or stale. Fortunately, "[n]othing in the traditions of habeas corpus requires . . . courts to tolerate needless piecemeal litigation, to entertain collateral proceedings whose only purpose is to vex, harass, or delay."[8] "[H]abeas corpus has traditionally been regarded as governed by equitable principles. . . . Among them is the principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks."[9] "Indeed, the ability to bring a habeas corpus petition at any time is limited by the equitable doctrine of abuse of the writ based on unnecessary successive petitions."[10]
A set of Practice Book rules, [11] statutes, [12] and appellate cases[13] provide some guidance concerning these procedural issues. The two most important procedural rules, however, have remained unchanged since their adoption in 1995.[14] The portion of the principal habeas statute regarding trial of t he petition has not been amended in any substantive way since 1902.[15] It provides simply: "The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require."[16] These authorities have become inadequate to address the current volume of habeas cases.
Efforts to reform the habeas statute have not been lacking. In 2000, the Judiciary Committee of the General Assembly requested that the Connecticut Law Revision Commission prepare recommendations for statutory revisions. In February, 2001, the Commission produced a report that recommended changes to the habeas rules and statutes so as to authorize dismissal of unreasonably delayed petitions, elimination of the right to appeal the denial of a petition for certification to appeal, and other reforms.[17] These proposals did not pass. Informal efforts to amend the statute took place thereafter. The Office of the Chief State's Attorney regularly submitted proposed legislative amendments. These efforts also proved unsuccessful.
In the fall of 2011, Judge Elliot Solomon and I co-chaired a committee that included Chief State's Attorney Kevin Kane, Chief Public Defender Susan Storey, members of their staff, attorney Conrad Seifert, and court officer Tyrone Biniarz. After many meetings and drafts, the committee agreed upon a proposal. Consensus became possible because of a shared concern that the burden of having to address large numbers of frivolous, stale, or repetitious habeas petitions took time, money, staff, and other resources away from more deserving petitions or other important litigation responsibilities. We then submitted our proposal to the Judiciary Committee. On June 8, 2012, that proposal became P.A. 12-115 (Reg. Sess.), An Act Concerning Habeas Corpus Reform (hereinafter, the "Act").
The Act makes two significant changes to our law. First, it creates a new mechanism for screening frivolous claims prior to trial. Second, it adopts a presumption of delay that may result in the dismissal of stale petitions. I will discuss each of these changes in turn. The Act also fails to address some important areas needing reform, a matter I address at the end of this article.
I. Pretrial Screening
The existing Practice Book rules provide that the judicial authority shall promptly review any petition for a writ of habeas corpus and "shall issue the writ unless it appears that:(l) the court lacks jurisdiction; (2) the petition is wholly frivolous on its face; or (3) the relief sought is not available."[18]In addition, Practice Book Section 23-29 states that "[t]he 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 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 to 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) any other legally sufficient ground for dismissal of the petition exists."
These authorities have been of limited utility in disposing of meritless petitions. One of the difficulties is that, unless the petitioner is not in custody, [19] it is not clear under what circumstances the court lacks jurisdiction to hear a petition. Further, a bald allegation that counsel was ineffective at trial, especially by a pro se petitioner, probably satisfies the rule requiring that the petitioner state a claim upon which habeas corpus relief can be granted, even if there is no specific deficiency that the petitioner can cite. Another concern is that these authorities focus on the facial allegations of the petition and the procedural posture of the case, but do not allow for any inquiry into the actual merits of the petition or the underlying criminal case.
Paragraph (b) of the Act attempts to address some of these concerns.[20] Except for claims involving actual innocence, conditions of confinement, and the death penalty, [21] the bill requires the court to determine whether there is "good cause" for some or all of the petition's allegations to proceed to trial if, after the pleadings close—and thus after the petitioner has had an opportunity to obtain appointed counsel and amend the petition—a party requests such a determination or the court notifies the parties of its intention to make one. The parties can then submit exhibits such as documentary evidence, affidavits, and unsworn statements. The court can review an exhibit in camera if a party requests it and would be prejudiced by disclosure at that stage of the proceeding.
Under subdivision (b)(3), the court can find good cause based on the petition and exhibits if they: "(A) allege the existence of specific facts which, if proven, would entitle the petitioner to relief under applicable law, and (B) provide a factual basis upon which the court can conclude that evidence in support of the alleged facts exists and will be presented at trial, provided the court makes no finding that such evidence is contradicted by judicially noticeable facts." If the petition and exhibits do not establish good cause, the bill requires the court to hold a preliminary hearing. After considering the parties' evidence and argument at the hearing, the court must dismiss all or part of a petition, as applicable, if it does not find good cause.
These new provisions are not designed to ensnare bona fide habeas petitions with new procedural hurdles or resolve genuine credibility disputes short of the actual trial. Rather, they address a certain category of petitions that clearly do not present meritorious claims. For example, a petition alleging only that trial counsel was ineffective because he failed to cross-examine certain witnesses might lack good cause because it failed to "allege the existence of specific facts which, if proven, would entitle the petitioner to relief under applicable law . . . ." Alternatively, if the transcript of the trial establishes that trial counsel did adequately cross-examine the witnesses, the court might not find good cause because the petitioner's claim was "contradicted by judicially noticeable facts" in the transcript. Similarly, a petitioner challenging his guilty plea on the ground that the canvass was inadequate might not have good cause to proceed if the transcript revealed a canvass that at least substantially complied with procedural requirements.[22]
A final example is that of a petitioner who raises ineffective assistance of the same trial counsel at the same trial for a second time. Even if the new petition presents different factual specifications of trial counsel's ineffectiveness, the petition should not go forward. Assuming the petition fails t o state new facts or proffer new evidence not reasonably available at the time of the prior petition (and thus there is no newly discovered evidence), ineffective assistance of counsel presents...
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