Federal Habeas Corpus for Trial Lawyers

Publication year2004
CitationVol. 73 No. 1 Pg. 20-27
Kansas Bar Journals
Volume 73.

73 J. Kan. Bar Assn. 1, 20-27 (2004). Federal Habeas Corpus for Trial Lawyers

Kansas Bar Journal
73 J. Kan. Bar Assn. 1, 20-27 (2004)

Federal Habeas Corpus for Trial Lawyers

By Jean K. Gilles Phillips and Elizabeth Cateforis

I. Introduction

On April 24, 1996, new federal legislation, the Antiterrorism and Effective Death Penalty Act (AEDPA), became law.(fn2) The most significant provisions of AEDPA substantially changed the federal habeas corpus statutes controlling a state inmate's pursuit of post-conviction relief in federal courts. Under AEDPA, the burden of properly presenting and preserving federal constitutional issues for federal review falls squarely on trial and appellate counsel. This article is designed to provide the defense practitioner with the basic AEDPA knowledge necessary to effectively present a state client's federal constitutional claims and preserve them for federal review.

II. Cognizable Issues

Federal habeas corpus is the mechanism by which violations of a state inmate's federal constitutional rights may be brought before a federal court.(fn3) Most federal constitutional violations, including due process violations, are cognizable on habeas corpus review.(fn4) Mere errors of state law are not reviewed in federal court.(fn5) Practically speaking, the requirement that the claim raise a federal constitutional violation means, for example, a hearsay argument based on state law should also be raised as a Sixth Amendment Confrontation Clause issue at trial and on appeal. If the evidentiary challenge is made only on state hearsay grounds, then any constitutional confrontation clause issue is lost for federal review.

There are two long-standing and valid exceptions to the availability of federal review of federal constitutional claims. Fourth Amendment exclusionary rule claims cannot be raised on federal habeas review if there was an opportunity for full and fair litigation on the claim.(fn6) If a motion to suppress is filed and litigated in state court and in the appellate courts, then the issue has gone as far as it can. But, the failure to litigate a Fourth Amendment issue can serve as a basis for a Sixth Amendment claim of ineffective assistance of counsel. That claim, after being exhausted in state court, would be cognizable on federal habeas review.(fn7)

The second exception excludes claims based on the ineffectiveness or incompetence of counsel during federal or state post-conviction proceedings.(fn8) The right to counsel, and thus the right to effective assistance of counsel, ends at the conclusion of direct review as a right. The right does not encompass the pursuit of discretionary review in the state's highest court or the filing of a petition for a writ of certiorari in the U.S. Supreme Court.(fn9) The Court has repeatedly refused to extend the right to effective assistance of counsel to post-conviction proceedings.

Although federal constitutional violations are cognizable on federal habeas review, AEDPA requires that the violation be of "clearly established" Court precedent.(fn10) No longer can federal habeas be an avenue to generate new constitutional law in the lower courts. While the Court decisions have restricted federal habeas review over the course of the last 20 years, AEDPA explicitly narrows the availability of review. Federal habeas is now a remedy only for the violation of already established federal constitutional rights.(fn11) The Court has stated that "clearly established [f]ederal law" means "the governing legal principle or principles set forth by the Court at the time the state court renders its decision."(fn12) A petitioner may not rely on the Court's dicta in arguing a constitutional claim.(fn13) Although this requirement limits the expansion of constitutional criminal procedure through federal habeas, it is not an absolute barrier. The Court recognizes that a federal court may "grant habeas relief based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced."(fn14)

This restriction of cognizable claims to violations of "clearly established" Court precedent has two ramifications. First, federal constitutional issues being presented in state court must be raised and argued in relation to the applicable Court precedent. For example, if there is an issue of redaction of a co-defendant's statement, the clearly established precedent of Bruton v. United States,(fn15) Richardson v. Marsh,(fn16) and Gray v. Maryland(fn17) must be cited. The second - and just as significant - ramification is that, because claims of clearly established Court precedent can be litigated on federal habeas, state prisoners with federal constitutional issues of first impression must use the direct review process and seek relief through a petition for a writ of certiorari to the Court.

If the constitutional issue to be litigated does not have direct, on-point case precedent, such as with the co-defendant confession and Bruton, the petitioner can still look to general principles of due process and fundamental fairness. For example, there is no clearly established Court precedent holding that the abolition of the insanity defense is unconstitutional. Similarly, if an expert witness on child interviewing techniques is prohibited from testifying in a child molestation case, the practitioner will not find an on-point Supreme Court case holding that such testimony cannot constitutionally be excluded. Rather, the defense attorney, in addition to arguing any state law claims, can argue that the client's rights to due process, a fundamentally fair trial, and/or the right to present a defense were violated as these broad principles are clearly established precedents that may be favorable to the petitioner.(fn18)

III. One-Year Statute of Limitations

The second most significant change is the imposition of a time limit for filing a habeas corpus petition in federal court. Prior to AEDPA, there was no time limit for a state inmate seeking federal habeas review.(fn19) The petitioner could take an exhausted federal constitutional claim into federal court at anytime.(fn20) The statute now contains a one-year period of limitation for a state petitioner to file a federal habeas corpus petition.(fn21) The one year is treated as 365 calendar days.(fn22)

There are four distinct starting points for calculating the deadline, depending on four different circumstances. The common starting point for most state inmates is "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."(fn23) This time period includes time the case spends on direct appeal, on petition for review before the state supreme court, and the 90 days allowed for the filing of a certiorari petition even if the petition is not filed.(fn24) For example, if a state petitioner's petition for review in the Kansas Supreme Court is denied on April 1, 2003, then the 90 days for filing a petition for certiorari would end on July 1, 2003, and, if no petition is filed, the one-year period would begin and the federal habeas petition would be due on July 1, 2004. If a petition is filed, then, of course, the one-year period does not start until certiorari is decided.

In addition to the initial one year from when the conviction became final, the statute recognizes three other dates which can trigger, or change, the beginning of a one-year period. First, if the petitioner is prevented from filing a petition due to an impediment created by state action in violation of the Constitution or laws of the United States, the petitioner will have one year from when such impediment is removed in which to file a habeas petition in federal court.(fn25)

Second, the statute allows a petitioner who is out of time or is filing a second or successive petition to receive an additional one year in which to file a federal habeas petition based on new rules of constitutional law.(fn26) According to the statute, the one-year time period begins on the date the new rule of federal constitutional law was issued by the Court.(fn27) While this provision is frequently litigated, it is very narrow, requiring that the rule of constitutional law being asserted be "newly recognized by the Court and made retroactively applicable to cases on collateral review."(fn28) Thus, unlike the Teague v. Lane(fn29) retroactivity analysis utilized by petitioners who are filing a federal habeas petition within the one year of the conviction becoming final,(fn30) petitioners who are out of time or filing successive petitions can only rely on new constitutional rights the Court holds to be retroactive.(fn31)

Finally, AEPDA allows for a new one-year clock in the event that newly discovered evidence arises. In calculating a deadline for federal habeas review, the petitioner begins with "[T]he date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of reasonable diligence."(fn32) The thorny issue presented by the beginning date relating to "newly discovered evidence" is determining what "could have been discovered through the exercise of reasonable diligence" means. If there is DNA evidence available and the state petitioner knows it exists, but simply does not have the funds available at the time to test the material, when does the clock start ticking? When the petitioner obtains the funds and submits the material for testing or when the test results are returned? Or will the time be calculated from the date the petitioner learned about the DNA evidence? These questions have not yet been addressed.

Tolling of the one-year period is recognized for "[t]he time during...

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