What happens after the right to counsel ends? Using technology to assist petitioners in state postconviction petitions and federal habeas review.

JurisdictionUnited States
AuthorSmilowitz, Margaret
Date22 June 2017

The right to counsel ends after an individual loses his direct appeal. There are, however, several opportunities for judicial review available to a prisoner, including statutory post-conviction petitions and federal habeas review. Yet state prisoners often cannot pay for counsel during their collateral review, leaving most prisoners to file pro se. Filing for collateral review is a substantively and procedurally complicated process and pro se petitioners have little guidance. The Supreme Court's jurisprudence on prisoners' access to legal research and knowledge is unclear--prisoners must have meaningful access to court but prisons are not required to provide law libraries or legal assistance. Although other opportunities for legal advice are available--such as jailhouse attorneys, pro bono clinics, and information packets--they generally fail to provide enough assistance for pro se petitioners to meaningfully seek collateral review. Without legal assistance, pro se petitioners file procedurally defaulted claims, which back up state court and federal district court dockets. This Comment proposes that state prison systems provide a computer program for state prisoners who lose their direct appeals. The program would provide the prisoners with detailed assistance to make their way through collateral review. Petitions that are well-pled will better serve the constitutional right to habeas review and will promote judicial economy.

TABLE OF CONTENTS INTRODUCTION 494 I. THE GREAT WRIT CONFINED BY STATE COURT PROCEEDINGS 498 II. THE LIMITS OF "MEANINGFUL ACCESS" 504 III. EXISTING METHODS OF LEGAL ADVICE AVAILABLE TO PRO SE POST-CONVICTION PETITIONERS 509 A. Legal Aid Clinics 509 B. The Jailhouse Lawyer 511 C. Form Packets 512 IV. A COMPUTER PROGRAM COULD PROVIDE INMATE LITIGANTS BETTER ACCESS TO THE COURT SYSTEM 514 A. Design Benefits of the Computer Program 514 B. Substantive Information Supplied by the Program 516 C. Potential Problems in Implementing the Computer Program 517 D. The Computer Program Is an Improvement over Existing Options, and Helps Ensure Meaningful Access to the Courts 518 CONCLUSION 519 INTRODUCTION

In the criminal system, the amount of legal advice available to indigent defendants functions as a steep cliff--there is a constitutional right to counsel at the trial and direct appeals stages but not to other forms of collateral relief. (1) Once a state prisoner loses her direct appeal, state and federal law provide judicial review of the appellate court's judgment, including discretionary review by a state supreme court, application for a writ of certiorari to the United States Supreme Court, federal habeas corpus, and state post-conviction proceedings. (2) The Sixth Amendment right to counsel, however, does not require the state to appoint an attorney for these types of collateral relief. (3) Thus, when state prisoners who cannot afford private counsel challenge their custody, they must file their claims pro se. (4)

A state prisoner seeking relief from a judgment by a court of appeals must begin with state post-conviction proceedings. (5) State post-conviction proceedings are frequently procedurally complex so "that even seasoned post-conviction litigators can have difficulties navigating through them." (6) Understanding state post-conviction processes is further complicated by the fact that each state has its own rules for post-conviction proceedings. (7)

The procedural complexity of state collateral proceedings impacts the claims a federal court will hear on a petition for habeas corpus. (8) In order for a prisoner in state custody to have his claims heard by a federal court, the petition must only plead violations of constitutional, federal, or treaty law, (9) and the claims must have already been raised in a petition to the highest state court. (10) A claim alleging a violation of a federal law that was dismissed by a state court because of state procedural rules may not be addressed on the merits by a federal court. (11) The only exception to this prohibition is if a petitioner can show cause, prejudice, some indication that she is "actually innocent," or "a 'fundamental miscarriage of justice.'" (12) The narrow exception means that a petitioner may have potentially valid claims of constitutional violations that are dismissed for procedural default before a federal court can reach the merits. (13)

Dockets are burdened and time is wasted as courts adjudicate claims on procedural missteps, rather than on the merits. (14) Adequate legal representation for pro se petitioners would mitigate the number of claims dismissed on procedural grounds, but it is unlikely that the Court will extend the right to counsel for collateral review. (15) Because the right to be represented by a lawyer in collateral proceedings is unlikely, a way to allow federal courts to spend more time reviewing the substance of habeas claims is to inform pro se petitioners of how to navigate the procedural complications. Providing pro se petitioners with basic legal advice will promote judicial efficiency and better serve the constitutional protections honored by the right to habeas corpus.

This Comment proposes that state prison systems make a computer program available to pro se petitioners when they lose their direct appeal. (16) The computer program should provide inmates with information on the process of collateral review as well as provide information on procedural requirements and relevant legal precedent. The goal of this Comment is not to write a blueprint for how a state might implement the program. Instead, this Comment seeks to draw attention to one way that computer technology could provide more and better legal information to inmates who lack other resources.

The program developed by Illinois Legal Aid Online (ILAO) provides a useful starting point. (17) Although the ILAO program was developed for civil pro se litigants who are not in custody, a similar version could be developed for state and federal post-conviction petitions. ILAO's program is a useful model because it has a multimedia interface that guides pro se litigants through a variety of legal issues involved in filing a claim. (18)

Like ILAO's program, a computer program created for post-convictions filings would need to explain procedural information as well as provide an overview of claims available to inmates through a post-conviction appeal. The goal of the program would be to make judicial review of habeas petitions more meaningful by informing petitioners of the procedural process of both state post-conviction review and federal habeas review. If pro se petitioners are informed of the procedural requirements as well as the basic law relating to their case, the petitions that reach a federal judge can be reviewed on the merits. Without this basic legal information, many pro se petitioners' claims are procedurally defaulted. Although many of these claims are unreviewable on the merits, they still expend substantial government resources (19)--the state must still respond and a judge must still issue a decision on a procedurally invalid claim. Federal habeas claims will be better supported if inmates have access to legal resources at the crucial stage when they lose access to counsel.

To explain why this computer program is needed and is better than existing options of legal advice to pro se petitioners, Part I provides a brief history of the writ of habeas corpus and explains the writ's intimate connection with state post-conviction review, focusing on the procedural requirements of filing a habeas petition. Part II examines the limitations on the right to counsel. Part III surveys existing methods of providing legal advice without counsel and addresses the problems with these methods in providing advice for post-conviction petitioners. Part IV explains why a computer program is the best option for pro se inmates seeking collateral review, using Illinois law as an example. Although the details of post-conviction processes vary by state, specific requirements for filing a post-conviction petition in Illinois will be addressed to show how a computer program could be designed to aid pro se petitioners as they interact with the rules in their jurisdiction.


    The right to petition for a writ of habeas corpus has existed since the time of the Magna Carta. (20) The writ was included in the Constitution's Bill of Rights to provide a procedure for "securing to the petitioners their constitutional rights." (21) The Supreme Court "has steadfastly insisted that 'there is no higher duty than to maintain [the writ] unimpaired.'" (22) The core purpose of the writ is to ensure "freedom from unlawful restraint," which is a "fundamental precept of liberty." (23)

    The writ does not exist to determine whether the petitioner is factually guilty or innocent of the crime committed. (24) Instead, the writ calls for a reviewing court to determine if the petitioner was provided due process. (25) It is especially important for state convictions to receive a second look because of the pervasive budget cuts affecting state justice systems. (26) Judges, prosecutors and public defenders must grapple with an increasing number of cases with fewer resources to adequately investigate, litigate and decide those claims--leading to a greater propensity for unconstitutional convictions. (27)

    Despite the tremendous constitutional importance of the writ, an overwhelming majority--ninety three percent--of federal habeas petitioners file their petitions pro se. (28) These petitioners lack even basic legal advice. (29) Their claims, as a result, are frequently haphazard, handwritten complaints that have a very small chance of success. (30) Petitioners with counsel are fifteen times more likely to receive post-conviction relief. (31) This is partially due to the fact that a pro se petitioner must rely on the inadequate research...

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