Judicial District of Tolland


     Habeas; Death Penalty; Whether Appellate Counsel was Ineffective in Failing to Raise Claims Challenging Legality of Petitioner’s Death Sentence; Whether Public Act Prospectively Repealing Death Penalty Bars Execution of Defendants Sentenced to Death for Crimes Committed Prior to Act’s Effective Date.  In 1991, the petitioner was convicted of capital felony and sentenced to death for the kidnapping and murder of Diane Gellenbeck.  After his death sentence was upheld on appeal,  the petitioner brought this habeas action, claiming that his appellate counsel was ineffective in failing to raise the following claims on appeal: (1) that the trial court’s instructions and the special verdict form allowed the jury to report that it had not found any mitigating factors even if its votes on the factors were not unanimous in contravention of Mills v. Maryland, 486 U.S. 376 (1988), (2) that the trial court’s instructions, in contravention of Caldwell v. Mississippi, 472 U.S. 320 (1985), failed to convey to the jury that if it found an aggravating factor and no mitigating factor the court would be compelled to impose a death sentence; and (3) that the trial court, in contravention of Simmons v. South Carolina, 512 U.S. 154 (1994), improperly refused to instruct the jury that the only alternative to a death sentence was life imprisonment without the possibility of release.  The habeas court determined that the petitioner would not have prevailed on the Mills claim had it been raised on appeal and therefore that he was not prejudiced by counsel’s failure to raise it.  It explained that, based on the trial court’s instructions on aggravating and mitigating factors, as well as the manner in which the jury completed the special verdict forms, it was reasonable to conclude that the jury understood that marking “No” on the special verdict form for mitigating factors meant no mitigant had been proven.  The court also rejected the Caldwell claim for failure to establish prejudice.  It found that the trial judge did nothing to lead the jury to believe that the court, in imposing sentence, would not merely be implementing the jury’s findings or that the jury was not the ultimate determiner of whether the petitioner would be executed or serve a life sentence.  Finally, the habeas court ruled that, because there was no factual basis for asserting a Simmons claim, counsel was not deficient in failing to raise such a claim on appeal and that, alternatively, even if there was deficient performance, the petitioner was not prejudiced as a result.  The court explained that the factual predicate triggering a trial court’s obligation to give a Simmons instruction—some occurrence that might mislead the jury to believe that, if a life sentence was imposed, the petitioner might be released from prison at some point in the future—was missing here.  Accordingly, the court denied the habeas petition.  The petitioner appeals and challenges the denial of his ineffective assistance of counsel claims.  Additionally, the petitioner challenges his death sentence based on the passage of Public Act 2012, No. 12-5, which repealed the death penalty only for crimes committed on or after its effective date.  He claims that, because the passage of the act establishes that the death penalty is inconsistent with present-day standards of decency in Connecticut and no longer serves any valid penological objective, his execution would constitute cruel and unusual punishment and violate his constitutional rights to due process and equal protection.