Federalizing Your Case, Preserving Appellate Issues, and What
a Criminal Practitioner Needs to Know About Habeas Corpus
Detroit / Wayne County
Criminal Advocacy Program
September 07, 2012
Bradley R. Hall
Federal Defender Office, Detroit
Bradley_Hall@fd.org
(313) 967-5832
I.
Overview of Federal Habeas Corpus Practice
•
A habeas petition alleges that petitioner is being held in custody in violation of the United
States Constitution. It is generally the last line of attack against a conviction.
•
“Habeas Corpus” = “Produce the Body”
•

Federal court may not order the prosecution to retry a defendant or order a state
evidentiary hearing; federal court’s only power is to issue a writ ordering the
respondent (warden) to release the petitioner from unlawful custody

Typically, the writ is conditioned on curing the constitutional defect (e.g., new trial,
sentencing, hearing, etc.)
In order to prevail in habeas corpus, a petitioner must have given the state courts a fair
opportunity to cure the alleged defect in his proceedings; no sandbagging

•
It is critically important for state court defense counsel to:
•
(1) “Federalize” claims by citing appropriate constitutional provisions and/or
United States Supreme Court cases, and
•
(2) Properly exhaust federal claims by presenting them through a full round
of state court review
If the state courts have reached the merits of a federal claim, the AEDPA prohibits federal
courts from granting habeas relief unless the state court decision was unreasonable

Where the strength of a claim may depend on disputed or unresolved facts, it is
critically important for state court defense counsel to:

(1) Ask for a hearing

(2) Allege in detail the strongest possible set of facts that you could
reasonably hope to prove at the hearing
II.
Federalizing
Duncan v. Henry, 513 U.S. 364 (1995):
PER CURIAM.
Respondent, a rector and dean of a church day school, was tried and convicted in
state court of sexually molesting a 5-year-old student. At trial, respondent
objected to testimony by the parent of another child who claimed to have been
molested 20 years previously. His objection was based on [California law]. On
direct appeal, he pursued his evidentiary objection [under California law].
Respondent then filed a petition for writ of habeas corpus in federal court,
alleging that the evidentiary error amounted to a denial of due process under
the United States Constitution. The District Court granted the petition and the
Court of Appeals for the Ninth Circuit affirmed. The court held that respondent
had exhausted his state remedies even though he had not claimed a violation of
any federal constitutional right in the state proceedings: "In his direct appeal in
state court, Henry did not label his claim a federal due process violation; he
argued rather that Hackett's testimony was erroneously admitted because [it]
resulted in a 'miscarriage of justice' under the California Constitution. However,
to state a federal due process claim it is not necessary to invoke 'the talismanic
phrase "due process of law"' or cite 'book and verse on the federal constitution'"
...
If state courts are to be given the opportunity to correct alleged violations of
prisoners' federal rights, they must surely be alerted to the fact that the
prisoners are asserting claims under the United States Constitution. If a habeas
petitioner wishes to claim that an evidentiary ruling at a state court trial denied
him the due process of law guaranteed by the Fourteenth Amendment, he must
say so, not only in federal court, but in state court. . . .
Respondent did not apprise the state court of his claim that the evidentiary
ruling of which he complained was not only a violation of state law, but denied
him the due process of law guaranteed by the Fourteenth Amendment. . . . The
state court, when presented with respondent's claim of error under the
California Evidentiary Code, understandably confined its analysis to the
application of state law.
Accordingly, the petition for a writ of certiorari is granted and the judgment of
the Court of Appeals is Reversed.

Every time you file a motion, seek to admit evidence, or raise an objection, consider
whether a federal constitutional right might be implicated. If so, supplement your state law
argument with the federal basis of your claim.
Baldwin v. Reese, 541 U.S. 27 (2004):
A litigant wishing to raise a federal issue can easily indicate the
federal law basis for his claim in a state court petition or brief, for
example, by citing in conjunction with the claim the federal source
of law on which he relies or a case deciding such a claim on
federal grounds, or by simply labeling the claim "federal."
•
Common Pre-Trial Issues
•
Lack of Fair Notice of Crime – Fourteenth Amendment Due Process

•
Application of post-crime statutory change in law – Ex Post Facto Clause

•
Due Process requires that criminal prosecution be foreseeable; “unexpected
and indefensible” amendments to common law doctrines cannot be given
retroactive effect. Rogers v Tennessee, 532 U.S. 451 (2001); Bouie v. City of
Columbia, 378 U.S. 347 (1964); Harris v. Booker, 738 F. Supp. 2d 734 (E.D.
Mich. 2010) (Michigan Supreme Court expanded law to criminalize previously
legal activity); Lancaster v. Burt, ___ F.3d ___, 2012 U.S. App. LEXIS 13305
(6th Cir. Docket No. 10-2112, June 29, 2012) (Michigan Supreme Court
abolished diminished capacity defense).
The ex Post Facto Clause prohibits a prosecution based on a change in law
that occurred subsequent to the crime, such as a retroactive application of
an extension of a statute of limitations period. Stogner v. California, 539 U.S.
607 (2003).
Defective Charging Document or Amendments to Charging Documents – Sixth
Amendment Notice; Fourteenth Amendment Due Process

Under the Sixth and Fourteenth Amendments, defendants have the right to
fair notice of the charges against them. Russell v. United States, 369 U.S. 749
(1962). The government may not proceed to trial based on a different
charge than was contained in the charging document.
•
Denial of Continuance – Sixth Amendment Counsel; Sixth and Fourteenth
Amendment Right to Present a Defense
•
Denial of Funding for Investigators, Experts, Transcripts, Etc. – Fourteenth
Amendment Equal Protection; Fourteenth Amendment Due Process; Sixth
Amendment Counsel; Sixth and Fourteenth Amendment Right to Present a Defense

Examples: Terry v. Rees, 985 F.2d 283 (6th Cir. 1993) (denial of request for
independent pathologist regarding nature of death); Riggins v. Reece, 74 F.3d
732 (6th Cir. 1999) (denial of transcripts where court reporter’s tapes were
not an adequate substitute).

•
NOTE: Allege the facts you are trying to develop
Suggestive Identification Procedures – Fourteenth Amendment Due Process

Conviction violates due process where a witness bases an in-court
identification on an earlier identification procedure that is “so impermissibly
suggestive as to give rise to a substantial likelihood of irreparable
misidentification.” Simmons v. United States, 390 U.S. 377 (1968).
•
Misjoinder of counts or defendants – Fourteenth Amendment Due Process
•
Discovery Violations – Fourteenth Amendment Due Process; Brady; Sixth and
Fourteenth Amendment Right to Present a Defense

Regardless of prosecutor’s good faith or even lack of knowledge of the
evidence, the government’s failure to provide material exculpatory evidence
violates due process. Brady v. Maryland, 373 U.S. 83 (1963); Kyles v. Whitley,
514 U.S. 419 (1995); Robinson v. Mills, 592 F.3d 730 (6th Cir. 2010) (failure to
disclose that eyewitness was an informant in other cases).

Even the failure to provide timely notice of inculpatory evidence may violate
due process.

Prosecutor violates due process by deliberately misleading the defense about
the evidence it intends to produce. Grey v. Netherland, 518 U.S. 152 (1996).
•
Access to Records or Evidence – Sixth Amendment Compulsory Process and
Confrontation; Fourteenth Amendment Due Process

•
Bad faith destruction or failure to preserve evidence – Fourteenth Amendment Due
Process

•
Qualified and unbiased people may not be excluded from jury based on race
or sex. Batson v. Kentucky, 476 U.S. 79 (1986); Snyder v. Louisiana, 552 U.S.
472 (2008).
Systematic Exclusion of minorities in Assembly of Jury Pool – Sixth Amendment “Fair
Cross-Section” Requirement; Duren

•
Defendant must show that government actor knew of the potential
usefulness of evidence. Arizona v. Youngblood, 488 U.S. 51 (1988).
Purposeful Discrimination in Composition of Jury or Jury Pool – Fourteenth
Amendment Due Process and Equal Protection; Batson

•
A trial court’s unreasonable denial of a request for access to confidential
records may violate due process. Pennsylvania v. Ritchie, 480 U.S. 39 (1987).
The “systematic exclusion” of protected classes of people from a jury pool
will violate a defendant’s Sixth Amendment right to a jury drawn from a body
that fairly represents the community. Duren v. Missouri, 439 U.S. 357 (1979).
Common Trial Issues
•
Closure of Courtroom – Sixth Amendment Public Trial

Without consideration of alternatives, closure of courtroom at any stage of
proceedings violates Sixth Amendment. Waller v. Georgia, 467 U.S. 39
(1984); Johnson v. Sherry, 586 F.3d 439 (6th Cir. 2009) (remanding for
hearing on whether defense counsel had a strategic reason for failing to
object to closure).
•
Defendant’s Presence – Sixth Amendment Presence and Confrontation

•
•
•
Defendant’s removal from courtroom may violate the Sixth Amendment.
Gray v. Moore, 520 F.3d 616 (6th Cir. 2008).
Evidentiary Errors Generally – Fourteenth Amendment Due Process; Sixth and
Fourteenth Amendment Right to Present a Defense

Although an error in state evidence law is generally not cognizable in habeas
corpus, it may amount to a due process violation if it renders a trial
fundamentally unfair. Chambers v. Mississippi, 410 U.S. 284 (1973); Ege v.
Yukins, 485 F.3d 364 (6th Cir. 2007) (constitutional error to admit physician’s
testimony, without foundation, that bite mark came from defendant rather
than any of 3.5 million other people).

Prohibiting a defendant from introducing evidence may violate his right to
present a defense. Holmes v. South Carolina, 547 U.S. 319 (2006).

Prohibiting a defendant from testifying about certain matters may violate his
right to testify on his own behalf.
Testimonial Hearsay – Sixth Amendment Confrontation; Crawford

The state may not introduce “testimonial hearsay” from an absent witness
unless he is unavailable for trial and the defendant has had a prior
opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36 (2004).

Forensic reports made for purposes of prosecution may be “testimonial”
where they appear sufficiently formal and solemn. Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009); Bullcoming v. New Mexico, 131 S. Ct.
2705 (2011); Williams v. Illinois, 132 S. Ct. 2221 (2012).
Impeachment – Sixth Amendment Confrontation

Refusal to allow impeachment of a government witness may violate the
Confrontation Clause. Olden v. Kentucky, 488 U.S. 277 (1988) (refusal to
allow cross-examination of victim regarding motive to lie); Vasquez v. Jones,
496 F.3d 564 (6th Cir. 2007) (refusal to allow impeachment of unavailable
witness with prior convictions).
•
Common Jury Instructions Issues
•
Fundamentally unfair – Fourteenth Amendment Due Process

•
Elements of the Offense – Sixth Amendment Jury Trial; Fourteenth Amendment Due
Process

•
All elements must be submitted to the jury for a determination of whether
the defendant has been proven guilty beyond a reasonable doubt. United
States v. Gaudin, 515 U.S. 506 (1995); Sullivan v. Louisiana, 508 U.S. 275
(1993).
Defenses – Sixth and Fourteenth Amendment Right to Present a Defense

•
Generally, in order for an instruction error to violate due process, it must
have a substantial and injurious effect or influence on the verdict such that it
rendered the trial fundamentally unfair. Waddington v. Sarausad, 555 U.S.
179 (2009); Estelle v. McGuire, 502 U.S. 62 (1991).
The right to present a defense includes the right to a jury instruction on any
recognized defense for which there is evidentiary support. Mathews v.
United States, 485 U.S. 58 (1988); United States v. Newcomb, 6 F.3d 1129
(6th Cir. 1993) (instruction on defense necessary even where there is only
weak supporting evidence).
Common Plea/Sentencing Issues
•
Breach of Plea Agreement – Fourteenth Amendment Due Process; Santobello

A prosecutor’s failure to abide by the terms of a plea agreement, such as by
arguing in favor of a harsher sentence than agreed, violates due process.
Santobello v. New York, 404 U.S. 257 (1971).
•
The takeaway:

•
This was just a sampling; your client is protected by a wide array of constitutional
rights, including the rights to:

Due Process of Law

Present a Defense

Remain Silent (Miranda)

Counsel of his choosing at all stages (if he’s paying) (Gonzalez-Lopez)

Free from unreasonable searches and seizures (though only cognizable on
habeas if the state court procedures were inadequate to vindicate right)

Effective assistance of counsel (which allows consideration of purely state
law issues)

Etc. Etc. Etc. Etc.
ALWAYS CONSIDER whether your objection under state law would also be possible
under federal law, and if so, give the precise constitutional basis of your objection.
III.
•
The procedural default doctrine, which is also often referred to as the “independent and
adequate state grounds” doctrine, provides essentially that a claim is procedurally
defaulted where (1) the petitioner has failed to comply with a state procedural rule, (2) the
state courts enforced the rule in the petitioner’s case, and (3) the rule is an adequate and
independent state ground for denying review of a federal constitutional claim. Maupin v.
Smith, 785 F.2d 135 (6th Cir. 1986).
•
If these factors are satisfied, the claim is procedurally defaulted and unreviewable in
federal habeas corpus proceedings unless the petitioner can either (1) establish
cause for the failure to follow the procedural rule and actual prejudice resulting
from the constitutional error, Wainwright v. Sykes, 433 U.S. 72 (1977), or (2) show
that the constitutional violation has probably resulted in the conviction of one who
is actually innocent. Murray v. Carrier, 477 U.S. 478 (1986).
•
Thus, if state law requires that a certain type of objection be lodged at a certain
time, it is imperative that trial counsel follow that state procedure, thereby forcing
the state courts to address the issue and allowing the federal courts to do so as well
•
Even if a claim is defaulted, defense counsel should still pursue the constitutional
argument at all opportunities and in all courts, since the federal court may still reach
the issue pursuant to an exception to the procedural default doctrine or if the state
court at some point elects not to enforce the default.


Procedural Default
“[T]he mere existence of a basis for a state procedural bar does not deprive .
. . [federal courts] of jurisdiction; the state courts must actually have relied
on the procedural bar as an independent basis for its disposition of the case.”
Caldwell v. Mississippi, 472 U.S. 320 (1985).
Common state procedural traps:

The most common procedural default problem arises from trial counsel’s failure to
object contemporaneously, which constitutes a forfeiture of the issue and bars
appellate review in the absence of a manifest injustice. People v. Handley, 415 Mich.
356; 329 N.W.2d 710 (1982); Mich. R. Evid. 103(a).

A less common but even more problematic issue is express waiver, which differs
from forfeiture in that it involves counsel’s express approval of a procedure.
Affirmative waiver operates to extinguish the error altogether and completely bars
appellate review of the issue. People v. Carter, 462 Mich. 206; 612 N.W.2d 144
(2000).

Even where trial counsel does object properly, an issue may be defaulted if he fails
to heed the judge’s invitation to re-raise the objection at a later date. In People v.
Clark, 243 Mich. App. 424; 622 N.W.2d 344 (2000), for example, the trial court
denied a motion for a change of venue but suggested that it might revisit the issue
later. Because counsel failed to renew the motion during or after jury selection and
expressed satisfaction with the empanelled jury, the courts refused to reach the
issue on appeal.

An objection to a jury selection procedure made at the day of a scheduled trial shall
not be considered timely unless the objection, with the exercise of reasonable
diligence, could not have been made at an earlier time. Mich. Comp. Laws 600.135.

A defendant’s acceptance of the jury composition will waive any future claim of
discrimination or systematic exclusion in the selection process, even if evidence of
the problem does not arise until later. People v. Powell, 2003 Mich. App. LEXIS 3351.

Objections to jury instructions must be made before the jury begins its deliberations
in order to preserve the error for review. People v. Kelly, 423 Mich. 261; 378 N.W.2d
365 (1985); Mich. Ct. R. 2.516(C).

A motion for change of venue or a continuance must be made to adequately raise a
defendant’s claim that adverse pretrial publicity will affect his right to a fair trial.
People v. Freeman, 16 Mich. App. 63; 167 N.W.2d 810 (1969).

The failure to timely file a formal motion to appoint an expert waives review of
defendant’s claim that he was denied due process by the trial court’s refusal to
appoint an expert. People v. Leonard, 224 Mich. App. 569; 569 N.W.2d 663 (1997).

The failure to timely move for severance or otherwise object to the joinder of
charges waives appellate review of a defendant’s claim of misjoinder. People v.
Mayfield, 221 Mich. App. 656; 562 N.W.2d 272 (1997); Mich. Ct. R. 6.120.

The failure to timely move for severance of defendants charged in a single
indictment or information, or the failure to substantiate the allegations in support of
a motion to sever, precludes appellate review of the issue. People v. Dunlap, 87
Mich. App. 528; 274 N.W.2d 62 (1978); Mich. Ct. R. 6.121.

The failure to move for a mistrial based upon the improper testimony, even where
defendant’s objection to the testimony was sustained, may be considered
tantamount to failing to preserve the issue for review. People v. Nash, 244 Mich.
App. 93; 625 N.W.2d 87 (2000) (“because defendant objected to the reference to a
polygraph test, but did not move for a mistrial, it appears that defendant was
satisfied with the court's handling of the matter. The court sustained the objection,
struck the response from the record, and instructed the jury to disregard the
answer. On this record, defendant did not receive an adverse ruling from the trial
court from which to appeal.”).

A defendant seeking production of an out-of-state witnesses under Mich. Comp.
Laws 767.93 must file a petition for production which includes the exact location of
each witness and a showing that each witness is material, and must be filed in a
timely manner. A request made four days before trial is not timely. People v.
Williams, 114 Mich. App. 186; 318 N.W.2d 671 (1982).

A defendant who seeks to introduce evidence of a victim’s sexual conduct must
comply with the pre-trial notice and hearing requirements under Mich. Comp. Laws
750.520j(2). People v. Wilhelm (On Rehearing), 190 Mich. App. 574; 476 N.W.2d 753
(1991).

Notice of defenses: Mich. Comp. Laws 768.20 requires a detailed written notice of
intent to claim an alibi to be filed within 15 days of arraignment but not less than 10
days before trial. Mich. Comp. Laws 768.20a requires written notice of an intent to
claim an insanity defense not less than 30 days before trial. Notice defects may
preclude testimony, according to Mich. Comp. Laws 768.21.

A defendant’s failure to raise the statute of limitations as a defense before or during
trial waives a later claim that the trial court lacked jurisdiction. People v. Kurzawa,
202 Mich. App. 462; 509 N.W.2d 816 (1993). A defendant’s nolo contendere plea
may waive a statute of limitations claim. People v. Allen, 192 Mich. App. 592; 481
N.W.2d 800 (1992).


Speedy trial rights are waived by counsel’s request or agreement to a delay. New
York v. Hill, 528 U.S. 110 (2000).

A defendant waives his right to appellate review of the prosecutor’s impeachment
by prior conviction under Mich. R. Evid. 609 by choosing not to testify and be
impeached or by introducing the conviction on direct examination in an attempt to
“remove the sting.” People v. Finley, 431 Mich. 506; 431 N.W.2d 19 (1988); People v.
Rodgers, 248 Mich. App. 702; 645 N.W.2d 294 (2001); Ohler v. United States, 529
U.S. 753 (2000).

By deciding not to testify at trial, a defendant waives appellate review of the trial
court’s decision to allow evidence that he exercised his Miranda right to remain
silent. People v. Boyd, 470 Mich. 363; 682 N.W.2d 459 (2004).

If a defendant wishes to argue on appeal that the trial court erred by failing to give a
particular jury instruction, including a cautionary instruction, he must request the
instruction. People v. Okopski, 208 Mich. App. 66; 527 N.W.2d 780 (1994).

An unconditional guilty or nolo contendere plea waives appellate review of most
issues except for those that would preclude the state from prosecuting the
defendant regardless of his factual guilt. People v. New, 427 Mich. 482; 398 N.W.2d
358 (1986).
Ineffective Assistance of Counsel
•
For postconviction or appellate counsel, the most common way to overcome a
procedural default is to argue that trial counsel was ineffective for failing to raise an
objection, federalize a claim, or otherwise comply with a state procedural rule.

Note that in order to rely on the ineffectiveness of counsel to overcome a
procedural default, the IAC claim itself must have been exhausted and not
defaulted. An IAC claim raised for the first time in habeas proceedings will be
meaningless.
IV.
•
Exhaustion
28 U.S.C. § 2254(b)(1): “An application for a writ of habeas corpus . . . shall not be granted
unless . . . the applicant has exhausted the remedies available in the courts of the State . . . ”
•
O'Sullivan v. Boerckel, 526 U.S. 838 (1999):
Federal habeas relief is available to state prisoners only after they
have exhausted their claims in state court. In this case, we are
asked to decide whether a state prisoner must present his claims
to a state supreme court in a petition for discretionary review . . . .
Because the exhaustion doctrine is designed to give the state
courts a full and fair opportunity to resolve federal constitutional
claims before those claims are presented to the federal courts, we
conclude that state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one
complete round of the State's established appellate review
process.

In Michigan, therefore, if a defendant will later wish to present his federal claim in a
habeas petition, he must first present it to (1) the trial court, (2) the Michigan Court
of Appeals, and (3) the Michigan Supreme Court.


It is not necessary to present a federal claim to the United States Supreme
Court in order to exhaust it for purposes of a later habeas petition.
EVEN IF YOUR CLAIM HAS NO MERIT UNDER EXISTING MICHIGAN LAW, YOU MUST
PRESENT IT TO THE STATE COURTS IN ORDER TO EXHAUST IT FOR FEDERAL REVIEW
V.
Making a Factual Record for Habeas Corpus

Pre-1996 standard of review for federal habeas corpus: de novo

Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA):
•
Deferential standard – 28 U.S.C. § 2254(d)(1):
An application for a writ of habeas corpus . . . shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim . . . resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States . . . .
•
Limited factual development – 28 U.S.C. § 2254(e)(2):
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim [in the
absence of certain exceptions not relevant here]

Williams v. Taylor, 529 U.S. 420 (2000)

Held that 28 U.S.C. § 2254(e)(2), which precludes a federal evidentiary hearing
where a petitioner has “failed to develop the factual basis of a claim in State court
proceedings,” allows a federal hearing if the petitioner tried unsuccessfully to
develop the facts in support of his claim in state court.

The Court explained that “a failure to develop the factual basis of a claim is not
established unless there is lack of diligence, or some greater fault, attributable to
the prisoner or the prisoner’s counsel.”

So long as a habeas petitioner tried to develop the facts to support his claim in state
court, (e)(2) will not bar him from a hearing in federal court

Cullen v. Pinholster, 131 S. Ct. 1388 (2011):

Consistent with prevailing practice in the lower courts, the district court held a
hearing and considered new evidence in its analysis of whether the state court was
unreasonable under (d)(1).

Court holds that in resolving (d)(1), district courts cannot review evidence that
wasn’t before the state courts:
We . . . hold that review under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the merits.
Section 2254(d)(1) refers, in the past tense, to a state-court adjudication
that “resulted in” a decision that was contrary to, or “involved” an
unreasonable application of, established law. This backward-looking
language requires an examination of the state-court decision at the time
it was made. It follows that the record under review is limited to the
record in existence at that same time--i.e., the record before the state
court.

But how is it possible that (e)(2)/Williams permit a hearing while (d)(1)/Pinholster
prohibit consideration of the evidence in that hearing?

Justice Breyer’s Concurring Opinion in Pinholster:
Like the Court, I believe that its understanding of 28 U.S.C. § 2254(d)(1)
does not leave AEDPA's hearing section, § 2254(e), without work to do.
An offender who believes he is entitled to habeas relief must first present
a claim (including his evidence) to the state courts. If the state courts
reject the claim, then a federal habeas court may review that rejection on
the basis of the materials considered by the state court. If the federal
habeas court finds that the state-court decision fails (d)'s test (or if (d)
does not apply), then an (e) hearing may be needed.
For example, if the state-court rejection assumed the habeas petitioner's
facts (deciding that, even if those facts were true, federal law was not
violated), then (after finding the state court wrong on a (d) ground) an (e)
hearing might be needed to determine whether the facts alleged were
indeed true.

Ballinger v. Preslesnik, 2012 U.S. Dist. LEXIS 227352 (E.D. Mich. 09-13886, Feb. 23, 2012):
The state appellate court effectively passed these [factual] questions on to this
Court. It concluded that Petitioner's claim was meritless without providing Petitioner
with any opportunity to develop a record to support his claim. . . .
28 U.S.C. §2254(d) did not bar a hearing on Petitioner's claim. In Pinholster, the
Supreme Court held that habeas review under § 2254(d) is "limited to the record
that was before the state court." Applying § 2254(d) review here, the Court
concluded that the state court unreasonably applied clearly established law in
denying Petitioner's claim. . . .
Respondent [argues] that any merits analysis of a habeas petitioner's substantive
claims must be funneled through §2254(d). But §2254(d) is worded in the negative.
It states that habeas relief may not be granted unless the state court adjudication is
contrary to Supreme Court law or results from an unreasonable application of facts
or law. . . . It is designed as a bar to habeas relief that states "a necessary, but not a
sufficient, condition for habeas relief." Jackson v. McKee, 525 F.3d 430, 438 (6th Cir.
2008). . . .
Pinholster . . . held that a habeas court may not consider new evidence in
determining under §2254(d) whether a state court decision was unreasonable. It
does not hold that a habeas court may not consider new evidence in determining
whether a petitioner is being held in custody in violation of his constitutional rights
under §2254(a). None of the cases cited by Respondent in its motion to reconsider
the Court's order granting an evidentiary hearing involve a situation, as here, where
the Court determined that §2254(d)'s hurdle had been cleared but a hearing was still
required to determine whether, in fact, Petitioner's constitutional rights had been
violated. . . .
The hearing ordered by the Court was not held to determine whether the state
court's adjudication was reasonable-the type of hearing barred by Pinholster-but to
determine under §2254(a) whether Petitioner is being held in custody in violation of
his constitutional rights. In other words, having determined that the state court
unreasonably decided Petitioner's claim, the Court was not in a position to grant or
deny relief because absent a hearing it was not known whether Petitioner's claim
was meritorious.

The takeaway:

When an objection, argument, or claim depends on factual development, allege the
strongest possible set of facts that you could reasonably hope to prove.

If you file a motion seeking funds for an investigator, you should cite state
law and the appropriate state and federal provisions (Equal Protection, Due
Process, Right to Present a Defense), and you should tell the judge in detail
the facts you hope to develop though the investigator. What particular
witnesses you hope to locate, what you anticipate they’ll say, and how
credible they’ll be.

Same goes for a motion seeking funds for an expert on mistaken eyewitness
IDs, false confessions, arson, ballistics, etc. etc. etc. Tell the judge what you
anticipate the expert saying and how credible you expect her to be.

If the judge denies the motion, and the Michigan courts affirm that decision,
the reasonableness of their holdings will be judged against the facts you
alleged, assuming them to be true. For 2254(d)(1) purposes, it does not
matter whether those facts were actually true.

If (d)(1) is satisfied, a federal court will be free to hold a hearing to determine
the actual facts, and it will be free to apply a de novo standard of review at
that hearing.
VI.
Resources

Randy Hertz and James Leibman, Federal Habeas Corpus Practice and Procedure

SADO/CRDC Habeas Book

Central California Appellate Program Habeas/Federalization Resources:
http://www.capcentral.org/procedures/federalize/index.asp