Habeas Corpus

Step 0: What Options are Available?
o State prisoner… (= person convicted in a state criminal case)
 State habeas—unlikely to remedy situation; state judges elected—won’t protect minority
 Federal habeas
 Direct review to Supreme Court
o Federal prisoner…
 Federal habeas [§2255]—increased with rise in federalization of crimes
 Direct review to Supreme Court

Step 1: Is Defendant in Custody?
o You must be in custody to petition for the writ—imprisonment not required.
 include everybody who is in custody, including parole.
o Petitioner bears the burden of proving unlawful detention by a preponderance of evidence
o Petitioner may only challenge current sentences for which they are in custody—expungement is
only available post-conviction remedy.

Lackawanna—∆ was given an enhanced sentence based on prior convictions for which he had already
completed the sentence. Held that ∆ was not in “custody” for the completed sentence and may not
challenge enhancement based on claim that prior convictions were unconstitutionally obtained.

Step 2: Is the Habeas Petition Time Barred?
o AEDPA Filing Deadlines:
 Tolling starts on the date when judgment being challenged became final.
 Excludes any period during which a properly filed collateral attack was pending before
state courts.
 Capital cases = 6 months (assuming competent post-conviction bar)
 Non-capital cases = 12 months
 Tolling??

Step 3: Is it a first or successive petition?
o Is it “successive”?
 A mixed petition dismissed under Rose v. Lundy before claims in petition were
adjudicated is not successive [Slack v. McDaniel; Castro v. US].
 Then it’s a “First Petition”, go to Step 4 
o If Successive…
 Petition raises the same claim
 DISMISSED: a claim presented in a successive petition that was presented in a
prior application shall be dismissed [AEDPA § 2244(b)(1)].
o Try to show that petition isn’t successive…
 Petition raises a different claim
 DISMISSED, unless…
o New rule “made retroactive” by Supreme Court that was previously
unavailable [AEDPA § 2244(b)(2)]
 made = expressly held to be retroactive [Tyler v. Cain].
o Factual basis for claim could not have previously been discovered through
due diligence and would be sufficient to establish by clear and convincing
evidence that, but for constitutional error no reasonable factfinder would
have found the applicant guilty [AEDPA §2244(b)(2)]
 Before AEDPA: Claim meets cause and prejudice requirement or
actual innocence[McClesky v. Zant]
AND
o Court of Appeals has authorized successive petition.
 The CA decision is not reviewable [Felker v. Turpin].
 Go to Step 4 

Step 4: Has there been complete exhaustion of state proceedings?
o All available state remedies [AEDPA 2254(b)]
 Not met if petitioner has right under law of the State to raise, by any available procedure,
the question presented (includes discretionary review) [O’Sullivan v. Boerckel].
 If you failed to exhaust a remedy that was available to you—you’re going to be
barred today from raising it [O’Sullivan v. Boerckel].
 In exhausting remedies, all HC claims must have been presented fairly before state
courts.
o Exception:
 Ineffective Corrective Process—state process so clearly deficient as to render futile any
effort to obtain relief.
 Go to Step 5
o Mixed Petition
 DISMISSED… but petitioner may:
 strike the unexhausted claims and go forwarded on properly exhausted claims.
 get petition dismissed, exhaust claims and refile (not successiveSlack)
o Go to Step 5

Step 5: Does petition seek protection of a “new rule” or does it rely on an existing rule of constitutional law?
o If an existing rule…
 rule is dictated by precedent…
 go to Step 6
o If “new rule”… federal court severely limited
 “new” = rule created after trial [O’Dell v. Netherland]
 argue: rule is not new, but dictated by precedent—newness not determined by the
date announced, but by the extent to which it is dictated by precedent.

O’Dell v. Netherland—∆ committed 3 murders and sentenced to death in 1988. On 3 occasions,
the prosecutor said to the jury: “if you don’t give him death, he’ll be out there doing it again.”
Trial judge refused to give instruction to jury about “life without possibility of parole.” In 1992,
in Simmons held that if at anytime in a capital case, a prosecutor makes such an assertion, the ∆ is
constitutionally entitled to an instruction about the possibility of life without possibility of parole.
Rule NOT applied.


Rule: habeas petitions seeking relief not supported by law in effect when the judgment
was entered probably should not be granted [Teague v. Lane].
 Nor can new rules be announced at HC, unless court is prepared to apply them
retroactively.
Retroactivity exceptions: new rule can be applied reotroactively if:
 goes to trial court’s jurisdiction to hear the claim
o e.g., redefines substantive crime [Bousley v. United States]
 claim implicates procedures essential to an accurate determination of guilt or
innocence
o Court has yet to find new rule that falls under this exception.



Beard v. Banks—rule requiring that capital sentencing juries consider mitigating
circumstances even if they are no found unanimously does not fit exception.
Schriro v. Summerlin—rule requiring that jury rather than judge find all
aggravating factors in death penalty proceedings did not meet exception.
Step 6: WAIVER BAR: Was issue raised in trial proceeding and was there procedural default?
o If yes, go to Step 7
o If no… is there:
 Did Government raise Waiver Bar issue?
 Habeas court is not required to raise W-B issue sua sponte [Trest v. Cain]

Adequate and Independent State Procedural Rule (In order to have a state procedural
bar, must it always be based on adequate/ind. rule? i.e., is this part of every analysis
before applying Wainwright/Carrier exceptions???)
 Default under adequate and independent state rule bars federal HC.
o Adequacy: whether rule served any legitimate purpose—only if it’s a
rule that is often ignored by state courts would it be found inadequate.
o Independence: if state court decided the case on substantive grounds
there is grounds to argue that the rule was not the basis for the dismissal.
 Basically, the reason to affirm a conviction has no relevance to
substance or constitutional violations—it is purely procedural…
 Applies to all proc. defaults, interest in resolving claims in appropriate forum,
finality and state having opportunity to resolve its own errors [Coleman].
o Failure to appeal bars HC as to whatever constitutional claims ∆ could
have raised…
 Gives rise to 6A ineffective assistance of counsel claim on HC…
 May be defaulted if there is time period available to raise
such claims dictated by state rules.
 Exception: Lee v. Kemna—In exceptional cases, failure to comply with state
rules does not constitute state grounds adequate to bar federal habeas review—if
the “rule’s essential requirements were substantially met” and nothing would be
gained by fulfillment.
o
Lee v. Kemna—counsel didn’t put continuance motion in writing as required by state rule;
oral motion and other information on record was sufficient to preclude federal bar.

Two elements of a waiver [Wainwright v. Sykes]:
 state prisoner has not raised a federal constitutional claim in state court; and
 state criminal procedure calls that failure to raise the claim a waiver—
overwhelmingly likely that state crim pro will call failure to raise a waiver .
o Unless…
 Cause and Prejudice, or
 Actual Innocence

CAUSE AND PREJUDICE—almost impossible standard
 Cause…
o factual or legal basis of the claim was not reasonably available at the time
the claim should have been made
 subject to Teague—must meet one of the exceptions…
 Engle v. Isaac—∆ convicted of homicide under Ohio instruction which
placed burden of self-defense on ∆. On habeas, instruction was challenged.
Court held that there was a basis for constitutional claim through Winship and
cases in other circuits. No cause.
o state officials interfere with counsel’s ability to avoid default


inhibits/prevents filing of objection
prevent discovery of crucial information
default applied inconsistently so as to be arbitrary

o default is the result of attorney error rising to the level of ineffective
assistance of counsel.



STATE PRISONERS: Where there is a time-period following final judgment
where you can raise ineffective assistance of counsel claims, failure to raise
claim will effect a federal bar [Edwards v. Carpenter]
 FEDERAL PRISONERS ONLY: under § 2255, claim does not need to
be raised on appeal to constitute cause [Massaro v. US].
no right to counsel in state postconviction proceedings—error at this level is no
constitutionally ineffective [Coleman v. Thompson]
Prejudice…
o Test: is there a reasonable probability that the error affected the outcome
of the proceeding [Strickler v. Greene]
 US v. Frady—Cause found. No prejudice because untainted evidence
weighed heavily towards guilt.

ACTUAL INNOCENCE [Murray v. Carrier]
 1. Address all nondefaulted claims and other grounds for cause to excuse the
procedural fault [Dretke v. Haley]
o applies to actual innocence of sentence or of the crime alleged.

2. Actual Innocence Standard: Preponderance of Evidence—more likely than
not that no reasonable juror would have convicted the petitioner [Schlup v. Delo].
Rarely applied.
o Bousley v. US—∆ convicted of crime for “using a firearm” though he merely
possessed firearm. ∆ pled guilty. SC later reinterprets “use” as “brandishing in
conjunction with crime.” Claim for actual innocence because substantive interpretation of
the statute has changed.

Step 7: Is it an issue that can be raised on habeas?
o Is issue federal constitutional?
 Must be federal constitutional issue—a claim for actual innocence not based on an
underlying constitutional violation is not sufficient.
 Herrera v. Collins—∆ and brother sentenced for murder. Brother dies in jail and ∆ comes
forward with new evidence suggesting brother was solely responsible for murder. No Habeas.
o Relitigation of claims allowed [Brown v. Allen]


Rose v. Mitchell—discrimination in grand jury selection process.
Withrow v. Williams—Miranda-based claims. Wouldn’t reduce federal docket because claims can be
framed as “true voluntariness” claims.
o UNLESS, Search and Seizure claim…
 was there a full and fair opportunity for hearing?
 If yes, DISMISSED.
o Rationale: 4A violations do not impair truthfinding process.
 If no, go to Step 8

Step 8: Can federal court conduct independent fact-finding?
o A hearing is required whenever [Townsend v. Sain]…
 merits of factual dispute were not resolved in state hearing
 state factual determination is not fairly supported by record as a whole
 fact-finding procedure employed by state court was not adequate
 substantial allegation …
 material facts …
 if for any reason, appears that state trier of fact did not afford petitioner a full and fair
hearing
o Standard of Review: factual determinations by state are presumed to be correct—petitioner bears
burden of rebutting presumption by clear and convincing evidence [§ 2254(e)(1)].
o Failure to develop factual basis of claim 

No difference b/w failing to raise claim and failing to develop claim with facts [Keeney v. Tamayo-Reyes]

Turns on who’s at fault for failure to develop claim…
 Lawyer’s failure is imputed to ∆, unless ∆ can show ineffective assistance.

if it’s ∆’s fault—then no evidentiary hearing unless... [Michael Williams v. Taylor]



(A) Claim relies on:
o New rule of constitutional law, made retroactive on collateral review by SC, that was
previously unavailable; OR
o A factual predicate that could not have been previously discovered through the existence
of due diligence
(B) The facts underlying the claim would be sufficient to establish by clear and convincing
evidence that but for constitutional error, no reasonable factfinder would have found the applicant
guilty of the underlying offense [§ 2254(e)(2)].
Note: standard is almost impossible to meet.

If it’s not ∆’s fault—petitioner is entitled to evidentiary hearing if she can meet TamayoReyes cause and prejudice standard.


Note: proof of no fault usually means there was cause—so ∆ really just needs to prove prejudice.
Step 9: Can federal court grant habeas relief?
o AEDPA is not entitled to retroactive application [Lindh v. Murphy]
o Focus: any claim that was adjudicated on merits in State court proceedings.
o Writ may be granted with respect to claim if…
 resulted in decision that was contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme Court [§ 2254(d)(1)]
 Terry Williams v. Taylor—
 clearly established = applies holdings from SC (as opposed to dicta)
 contrary to =
o arrives at a conclusion opposite to that reached by SC on a question of law
o decides case differently than SC on set of materially indistinguishable
facts
 unreasonable application = objectively unreasonable (“an unreasonable
application is different from an incorrect one”)
o
o
o


Terry Williams v. Taylor—VA SC unreasonably applied Strickland by requiring ∆s to
show something more than a reasonable probabilyt that ineffective assistance would have
changed the outcome of their case.
Ramdass v. Angelone—∆ convicted of 3 felonies—this would render him parole
ineligible. Under Simmons, judge must inform jury when ∆ is parole ineligible. But, 3 rd
conviction was entered after capital sentencing hearing. Reasonable application.
Bell v. Cone—∆’s counsel failed to offer mitigating evidence or make closing argument at
∆’s capital sentencing proceeding. SC held that it was reasonable for state court to find
that Strickland was not violated on these facts.
decision based on unreasonable determination of facts [§ 2254(d)(2)]
 Claim: state presents insufficient evidence to allow jury to convict BARD
 Probably contains Teague’s second exception…
Step 10: What are Post-Habeas Proceedings Options?
o If writ is granted…
 state may:
 appeal granting of writ of habeas corpus, or
 retry ∆ for the same offense after the writ is granted
 Note: right to retrial is not of much use—where that petition has been granted 15 years
after the trial that led to it. Witnesses are long gone, evidence is stale. Realistically, if
state doesn’t win on appeal, prisoner will be release.
o If writ is not granted…
 Petitioner may seek a certificate of appealability (“COA”)…
 Standard: whether there is a substantial belief that petitioner will win on appeal [Miller
El v. Cockrell]


Miller El v. Cockrell—State used huge number of challenges to remove all but one AfricanAmerican. All challenges were used to remove AAs—but didn’t have enough to remove all.
Burden is on ∆ to show that there was an exclusion; then there’s a burden on prosecution to show
some race-neutral explanation. Then judge decides if there’s been systematic racial exclusion.
Miller El’s lawyer found memo in office that said as official advice not to take any minorities no
matter how well-educated or how good they look. 5th Circuit ignored—back to Supreme Court.
Relevant Policy:
o Desire for finality—there should be a moment where a sentence is final.
o Concern for comity—what system of courts does the constitution envision? It was supposed to
look like a state system on one side and a federal court system on the other.