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Published: 2008-03-26

Federal Habeas Corpus Review



CAUTION : The constitutionality and breadth of the many changes to the law of habeas corpus as the result of recent legislation is currently the subject of multiple court challenges. This overview reflects the law as of September 1999. The practitioner is advised to fully and independently research the topics covered by this overview given the rapid changes in this area of law.

A. Introduction

Following conviction and sentencing in a state court proceeding, an unsuccessful litigant in the state appellate courts may be able to seek redress in the federal courts. That redress could be sought through direct review by the United States Supreme Court or through collateral attack in the federal courts. The outline presents a very brief overview of the collateral attack process in the federal courts by way of a petition for the issuance of a writ of habeas corpus.

The case of Guenter Mannhalt may help to illustrate the interrelationship between the state appellate process and the federal system. During 1981, Mannhalt was convicted in the King County Superior Court in Seattle, Washington with one count of conspiracy to commit robbery, one count of attempted robbery, and several counts of robbery and possession of stolen property. Thereafter, the trial court sentenced Mannhalt to concurrent life terms on six first degree robbery counts and lesser concurrent terms on the remaining counts. The Washington Court of Appeals affirmed the conviction and sentence in State v. Mannhalt , 33 Wn.App. 696, 658 P.2d 15 (1983) and the Washington Supreme Court subsequently denied review.

Mannhalt then filed a habeas corpus petition in the United States District Court for the Western District of Washington claiming that his trial attorney was burdened with a conflict of interest. The parties submitted depositions of the state court prosecutors, and affidavits of the defense attorneys and Mannhalt. Both parties moved for summary judgment. On February 10, 1987, the United States Magistrate issued a report and recommendation finding that Mannhalt's claim had merit. The district court judge rejected the recommendation and granted the state's summary judgment motion. The Magistrate submitted a supplemental report and recommendation on the unconstitutional jury instruction issue, finding the claim meritless. The district court adopted the recommendation and entered judgment on July 20, 1987. Mannhalt appealed and the Ninth Circuit reversed the district court's grant of summary judgment in favor of the respondent, granted Mannhalt's motion for summary judgment and remanded the case for the district court to grant a writ. See Mannhalt v. Reed , 847 F.2d 576, 579 (9th Cir. 1988). The Ninth Circuit explained that the state would be "permitted 90 days from this remand to refile." 847 F.2d at 584. The Supreme Court denied respondent's petition for certiorari in Reed v. Mannhalt , 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 249 (1988).

On retrial, Mannhalt was again convicted of conspiracy, robbery, and possession of stolen property. His sentence was suspended and he was placed on probation. The Washington Court of Appeals affirmed at State v. Mannhalt , 68 Wn.App. 757, 845 P.2d 1023 (1993). The Washington Supreme Court then denied review in an unpublished decision. See State v. Mannhalt , 121 Wn.2d 1017, 854 P.2d 42 (1993). Mannhalt did not seek relief in the federal courts (presumably because he was no longer in custody).

B. SOME GENERAL PRINCIPLES

The writ of habeas corpus is the procedure by which a federal court inquires into illegal detention and, potentially, issues an order directing state authorities to release the petitioner. As described by the United States Supreme Court, "its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraint." Fay v. Noia , 372 U.S. 391, 401-02, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). The Supreme Court has described the writ as a "prisoner-initiated civil remedy informed by equitable principles, and as a statutory procedure over which the courts, or at least the Court, exercises broad regulatory power." J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 2.2 at 15 (3d ed. 1998). Before venturing too far into these legal waters, the practitioner must take care to analyze all relevant statutes ( see 28 U.S.C. §§ 2244-2266), court rules (see Rules Governing Section 2254 Cases in the United States District Courts), and a complex body of Supreme Court caselaw.

If this were not enough, on April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Pub. L. 104-132, 110 Stat. 1214 (1996). Don't be fooled by the title; the statute has little to do with terrorism. Rather, Title I of the AEDPA makes important changes in the statutes governing federal habeas corpus practice for state prisoners and enacts a new set of statutes to govern federal habeas corpus practice in capital cases in "opt-in" States. Upon signing the law, the President claimed that the AEDPA was not intended to make substantive changes for granting the writ. See Statement of the President of the United States upon Signing the Antiterrorism Bill, 1996 WL 203049 (White House, April 24, 1996). The President explained that he would not have signed the bill if he thought the federal courts would interpret it "in a manner that would undercut meaningful habeas corpus review." Id . It is too early to gauge the impact of the AEDPA on federal habeas corpus practice. Some experts fear that President Clinton drastically understated the impact of the new statute (particularly in light of the new review standards articulate in 28 U.S.C. § 2254(d)).

The AEDPA addresses many important aspects of habeas law and practice and, as to them, now occupies the field to the exclusion of previous arrangements. On the whole, however, the AEDPA presupposes the basic framework that was in place. The portions of the AEDPA relevant to habeas corpus review are codified at 28 U.S.C. §§ 2244-66. The Supreme Court recently summarized the effect of Title I of the AEDPA as follows:

Title I of the Act stands more or less independent of the Act's other titles in providing for the revision of federal habeas practice and does two main things. First, in §§ 101-106, it amends § 2244 and §§ 2253-2255 of chapter 153 of Title 28 of the United States Code, governing all habeas corpus proceedings in the federal courts. 110 Stat. 1217-1221. Then, for habeas proceedings against a State in capital cases, § 107 creates an entirely new chapter 154 with special rules favorable to the state party, but applicable only if the State meets certain conditions, including provisions for appointment of postconviction counsel in state proceedings.

Lindh v. Murphy , 521 U.S. 320, 323, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (holding that, in non-capital cases, the new provisions of the AEDPA apply only to cases filed after the AEDPA became effective).

Professor Liebman has prepared a balanced and comprehensive treatise on federal habeas corpus law and procedure. See Liebman, Federal Habeas Corpus Practice and Procedure . In the author's view, Professor Liebman's text is the authoritative work in this field -- and the best place to start (or finish) any research project. The interested practitioner should also consider the following sources: I. Robbins, Habeas Corpus Checklist (1999 ed.); M. Arkin, The Ghost at the Banquet: Slavery, Federalism and Habeas Corpus for State Prisoners , 70 Tul. L.Rev. 1995); J. Blume & D. Voisin, An Introduction to Federal Habeas Corpus Practice and Procedure , 47 S.C. L.Rev. 271 (1996). For excellent discussions regarding the new habeas provisions adopted by the AEDPA, see L. Yackle, A Primer on the New Habeas Corpus Statute , 44 Buff. L.Rev. 381 (1996) and M. Tushnet and L. Yakle, Symbolic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effective Penalty Act and the Prison Litigation Reform Act , 47 Duke L.J. 1 (1997).

C. AVAILABILITY OF FEDERAL HABEAS CORPUS TO PERSONS IN STATE CUSTODY

1. The "Custody" Requirement

The federal courts are empowered by 28 U.S.C. § 2254(a) to inquire into the legality of custody of a person detained "pursuant to the judgment of a State court." The sole ground of inquiry is whether the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." Id.

A habeas petition may only be filed on behalf of a person who is "in custody" pursuant to the judgment of a State Court. Custody is not limited to actual physical detention in a jail or prison. Rather, the petitioner must show that he is "subject to restraints 'not shared by the public generally’" Hensley v. Municipal Ct., 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (quoting Jones v. Cunningham , 371 U.S. 236, 240, 243, 83 S.Ct. 37, 39 L.Ed.2d 285 (1963)). The Supreme Court has held that a parolee is in custody, articulating the following analysis:

History, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus. . . . What matters is that they significantly restrain petitioner’s liberty to do those things which in this country free men are entitled to do. Such restraints are enough to invoke the help of the "Great Writ."

Jones , 371 U.S. at 240. But see Williamson v. Gregoire , 151 F.3d 1180 (9th Cir. 1998) (petitioner who was required to register as sex offender under state law is not "in custody" for purposes of federal habeas corpus).

2. Cognizable Claims

Pursuant to 28 U.S.C. § 2254, a writ of habeas corpus is available on the basis that the petitioner’s conviction or sentence violated the Constitution, laws, or treaties of the United States. In the seminal case of Brown v. Allen , 344 U.S. 443, 458, 73 S.Ct. 397, 97 L.Ed. 469 (1953), the Supreme Court held that all federal constitutional rights that have been incorporated through the Fourteenth Amendment Due Process Clause and thereby made applicable to the states are cognizable on federal habeas corpus and that a habeas petitioner can press such claims even if the they had been fully and fairly adjudicated in the state courts.

It is true that federal habeas review is generally not available to correct errors of state law. See, e.g., Estelle v. McGuire , 502 U.S. 62, 71-72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Gerlaugh v. Stewart , 129 F.3d 1027, 1032 (9th Cir. 1997), cert. denied , --- U.S. ---, 119 S.Ct. 237, 142 L.Ed.2d 195 (1998). Where the state creates a liberty interest, however, it is not correct to say that the question is "merely a matter of state procedural law." Hicks v. Oklahoma , 447 U.S. 343, 346, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980). "[T]he failure of a state to abide by its own statutory commands may implicate a liberty interest protected by the Fourteenth Amendment against arbitrary deprivation by a state." Fetterly v. Paskett , 997 F.2d 1295, 1300 (9th Cir. 1993), cert. denied , 513 U.S. 914, 115 S.Ct. 290, 130 L.Ed.2d 205 (1999). Accord Lambright v. Stewart , 167 F.3d 477, 482 (9th Cir. 1999); Ballard v. Estelle , 937 F.2d 453, 456 (9 th Cir. 1991). Moreover, federal due process may be violated where the State introduces evidence that so "fatally infects the proceedings as to render them fundamentally unfair." Jammal v. Van de Kamp , 926 F.2d 918, 919 (9th Cir. 1991). See generally Dowling v. United States , 493 U.S. 342, 352 (1990) ("We . . . have defined the category of infractions that violate 'fundamental fairness’ very narrowly.").

3. Innocence

In 1866, the Supreme Court wrote:
[I]t is the birthright of every American citizen when charged with a crime, to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and if they are ineffectual, there is an immunity from punishment, no matter how great the offender the individual may be, or how much his crimes may have shocked the sense of justice of the country, or endangered its safety. By the protection of the law, human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamors of an excited people.

Ex Parte Milligan , 71 U.S. (4 Wall.) 2, 118-19, 18 L.Ed. 281 (1866). More than 100 years later, the Court explained that the "constitutional rights of criminal defendants are granted to the innocent and guilty alike." Kimmelman v. Morrison , 477 U.S. 356, 380, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

Relying on this cardinal principle, the federal courts have often noted that innocence is not a pre-requisite for relief in a habeas corpus case. In Justice Holmes’ words, "what we have to deal with is not the petitioner’s innocence or guilt but solely the question whether their constitutional rights have been preserved." Moore v. Dempsey , 261 U.S. 86, 87-88, 43 S.Ct. 265, 67 L.Ed. 543 (1923). Accord Walberg v. Israel , 766 F.2d 1071, 1078 (7th Cir.) (Posner, J.), cert. denied , 474 U.S. 1031, 106 S.Ct. 546, 88 L.Ed.2d 975 (1985) ("Guilty as [petitioner] undoubtedly is -- unworthy member of the community as he undoubtedly is -- he was entitled to a better procedure.").

Along these same lines, the Court had often noted that it will not weigh the evidence when considering a habeas petition. See, e.g., Ex Parte Lange , 85 U.S. (18 Wall.) 163, 175, 21 L.Ed. 872 (1874); Hyde v. Shine , 199 U.S. 62, 84, 25 S.Ct. 760, 50 L.Ed. 90 (1905). More recently, in Townsend v. Sain , 372 U.S. 293, 317, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), for example, the Court stated that "the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." This thread has been picked up in several other cases. See Barefoot v. Estelle , 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) ("Federal courts are not forums in which to relitigate state trials."); Jackson v. Virginia , 443 U.S. 307, 324, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979)(question of evidentiary sufficiency usually not cognizable in habeas corpus because it implicates no constitutional right).

Notwithstanding these precedents, the Supreme Court has recently changed course and, in a series of cases, acknowledged that factual innocence may be of great significance in habeas corpus cases. See generally Herrera v. Collins , 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (assuming that actual innocence may make out a claim in a capital case); Schlup v. Delo , 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (noting that actual innocence will provide the court a "gateway" to reach otherwise defaulted claims). See generally Carriger v. Stewart , 132 F.3d 463, 477 (9th Cir. 1997) (en banc), cert. denied , --- U.S. ---, 118 S.Ct. 1827, 140 L.Ed.2d 963 (1998).

D. LIMITATIONS ON AVAILABILITY OF FEDERAL HABEAS CORPUS

1. Exhaustion of State Remedies

The federal habeas corpus statute requires that the petitioner exhaust all avenues of relief open to him in the state courts before bringing a federal action. The Supreme Court has consistently held that exhaustion of state remedies requires that petitioners "’fairly presen[t]’ federal claims to the state courts in order to give the State the 'opportunity to pass upon and correct alleged violations of its prisoners' federal rights.’" Duncan v. Henry , 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (quoting Picard v. Connor , 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)).

The Court reiterated these principles in O’Sullivan v. Boerckel , --- U.S. ---, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999), concluding that a state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement. It does not matter whether the state court’s review mechanism is discretionary; the claim must be presented to the state’s highest court before it can be presented for habeas corpus review.

The exhaustion doctrine requires that insofar as possible a petitioner must present any issues (the facts and the law) to the state courts by whatever procedures are available before the petitioner may ask a federal court to rule on those issues. Even a claim of a "clear violation" of the Constitution cannot excuse the petitioner’s failure to exhaust state remedies. See, e.g., Duckworth v. Serrano , 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981). Once the petitioner’s issues have been presented to the state’s highest appellate court it should be unnecessary to resubmit those issues to the state court by an alternative procedure. See Brown v. Allen , 344 U.S. 443, 447-50, 73 S.Ct. 397, 9 L.Ed.2d 469 (1953).

The doctrine, first announced in Ex parte Royall , 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), is now codified at 28 U.S.C. § 2254(b)(1). That statute provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that --the applicant has exhausted the remedies available in the courts of the state, or that there is either an absence of available in the courts of the State; or
  1. there is an absence of available State corrective process; or
  2. circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1).

Thus, the AEDPA confirms the general requirement that a prisoner attacking a state conviction or sentence must exhaust state remedies before seeking federal relief. Yet it modifies prior law in two respects. First, the new statute authorizes a federal court to deny relief on the merits, despite a prisoner’s failure to exhaust state remedies. See 28 U.S.C. § 2254(b)(2). When, however, a federal court initially thinks a claim is meritorious, the court may not act promptly but must withhold judgment while the prisoner first seeks relief in state court.

Second, the AEDPA provides that a federal court may not infer a waiver of the exhaustion requirement from a State’s failure to insist on exhaustion. See 28 U.S.C. § 2254(b)(3). Rather, respondent’s waiver can only be found on the basis of an express statement by the authorized state’s attorney. This new provision apparently overrules a portion of Granberry v. Greer , 481 U.S. 129, 134-35, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), the Supreme Court decision holding that a federal court may overlook a prisoner’s failure to exhaust in cases in which the state does not raise the exhaustion point.

2. Fourth Amendment Claims: Stone v. Powell

The Supreme Court imposed a significant restriction on the extent of relief available to state prisoners under federal habeas corpus in Stone v. Powell , 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067, (1976). The prisoners in Stone alleged that certain evidence should have been excluded at trial since it was seized in violation of their Fourth Amendment rights. Motions to suppress the objectionable evidence had been denied in their trials. The Supreme Court ultimately denied federal habeas corpus and explained:
We conclude that where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.

428 U.S. at 494. The relevant inquiry is whether the petitioner had a full and fair opportunity to litigate his claim, not whether he did in fact do so or whether the state court reached a correct resolution. See Ortiz-Sandoval v. Gomez , 81 F.3d 891, 899 (9th Cir. 1996).

The Supreme Court has thus far limited Stone to Fourth Amendment exclusionary claims. The Court refused to invoke Stone in a habeas corpus proceeding alleging that there was insufficient evidence to support the prisoner’s conviction beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 61 L.Ed.2d 560 (1979). Claims for ineffective assistance of counsel are not barred by Stone , even if the claim is that counsel was incompetent for failing to properly litigate a fourth amendment issue. See Kimmelman v. Morrison , 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Stone does not preclude litigation of claims under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See Withrow v. Williams , 507 U.S. 680, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993). See also Reed v. Farley , 512 U.S. 339, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994) (noting narrowness of Stone doctrine and Court’s consistent refusal to extend it).

3. Failure to Comply with State Procedures -- The Procedural Default Doctrine

If a petitioner fails to comply with a rule of state procedure, that petitioner thereafter may be barred from receiving federal habeas corpus relief on the claim because of the "independent and adequate" state procedural grounds doctrine. See generally Bousley v. United States , 523 U.S. 614, 118 S.Ct. 1604, 1613, 140 L.Ed.2d 828 (1998); Coleman v. Thompson , 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The Supreme Court first announced a waiver-based doctrine in Fay v. Nora , 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). The Court subsequently extended Fay , and in 1977, relied on the principles to significantly restrict habeas corpus relief available to correct constitutional defects. See Wainwright v. Sykes , 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

The prisoner in Wainwright claimed that certain statements used against him at trial had been taken in violation of his Miranda rights. The prisoner had not challenged these statements either at trial or on appeal of his conviction. The first challenge to the statements was raised in state habeas corpus proceedings. The state courts refused to grant relief because of the prisoner’s noncompliance with a state contemporaneous objection rule, requiring a motion to suppress the objectionable evidence prior to trial. The Supreme Court held that the contemporaneous objection rule amounted to an independent and adequate state procedural ground that barred federal habeas corpus review absent a showing of prejudice and cause for failure to object.

The Supreme Court elaborated on the meaning of Wainwright in Coleman v. Thompson , and held that the doctrine applies to all cases in which a state prisoner has "defaulted" federal claims pursuant to an independent and adequate state procedural rule. See 501 U.S. at 750. See generally Beam v. Paskett , 3 F.3d 1301 (9th Cir. 1993), cert. denied , 511 U.S. 1060, 114 S.Ct. 1631, 128 L.Ed.2d 354 (1994).

The procedural default doctrine should not come into play unless a default cognizable in federal court has occurred. The doctrine may not apply if the state fails to apprise the federal courts in a timely fashion of a state procedural rule. See generally Gray v. Netheland , 518 U.S. 152, 168, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). Moreover, the doctrine will not bar federal habeas corpus review unless the state court decision contains a plain statement that the state court is avoiding the federal constitutional question because of the defendant’s failure to comply with a state procedural rule. See Harris v. Reed , 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). "State courts may not avoid deciding federal issues by involving procedural rules that they do not apply evenhandedly to all similar cases." Hathorn v. Lovorn , 457 U.S. 255, 263, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982) (quoting Barr v. City of Columbia , 378 U.S. 146, 149, 84 S.Ct. 1734, 12 L.Ed.2d 766 (1964)).

Even when all of the preconditions of the procedural default rule are satisfied, the doctrine will not apply if the petitioner can show (1) an excuse for the default by demonstrating cause for the default and actual prejudice as a result of the alleged violation of federal law or (2) a fundamental miscarriage of justice. See Murray v. Carrier , 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Noltie v. Peterson , 9 F.3d 802, 804-05 (9th Cir. 1993).

4. The Nonretroactivity Doctrine: Teague v. Lane

In 1989, the Supreme Court adopted a new approach to retroactivity that profoundly changed the law of habeas corpus and narrowed the range of relief that is available in habeas corpus proceedings. See Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). The Teague doctrine can be briefly stated as follows: With two exceptions, a prisoner may not seek to enforce a "new rule" of law in federal habeas corpus proceedings if the new rule was announced after the petitioner’s conviction became "final" or if the petitioner is seeking to establish a wholly new rule or to apply a settled precedent in a novel way that would result in the creation of a new rule. See Odell v. Netherland , 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997).

"The nonretroactivity principle prevents a federal court from granting habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final." Caspari v. Bohlen , 510 U .S. 383, 389 (1994). The Teague Court identified two exceptions: (1) rules prohibiting punishment for "private, primary individual conduct beyond the power of the criminal law-making authority to proscribe"; (2) rules that are "implicit in the concept of ordered liberty." Lambrix v. Singletarry , 520 U.S. 518, 117 S.Ct. 1517, 138 L.Ed.2d 351 (1997).

Under the Court’s decisions, a federal court is obliged to apply the nonretroactivity doctrine by proceeding in three steps at the outset of its final adjudication of a claim:

First, the court must ascertain the date on which the defendant’s conviction and sentence became final for Teague purposes. Second, the court must "[s]urve[y] the legal landscape as it existed" and "determine whether a state court considering [the defendant’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution. Finally, even if the court determines that the defendant seeks the benefit of a new rule, the court must decide whether that rule falls within one of the two narrow exceptions to the nonretroactivity principle.

Caspari , 510 U.S. at 390.

  • The AEDPA appears to modify and incorporate a form of the Teague doctrine in 28 U.S.C. § 2254(d). The Teague doctrine may diminish in importance depending upon the manner in which the federal courts construe and apply Section 2254(d).

5. Abusive and Successive Petitions

Practitioners must distinguish between "abusive" and "successive" petitions. An abusive petition is usually a second or subsequent federal habeas corpus petition that raises a new claim that could have been raised in an earlier petition. A successive petition is a second or subsequent federal habeas corpus petition that raises the same claims as those raised and rejected in a prior petition. See Kuhlmann v. Wilson , 477 U.S. 436, 444 n.6, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) (plurality opinion).

Even before enactment of the AEDPA, it was difficult to convince any federal court to consider, let alone to grant, an abusive or successive habeas corpus petition. See generally 28 U.S.C. § 2244 (1994); Habeas Corpus Rule 9. Once the government bears its burden of pleading "abuse of the writ," the burden to disprove abuse then becomes the petitioner’s. As explained by the Supreme Court in a somewhat different context:

Controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.

Sanders v. United States , 373 U.S. 1, 15, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963)). The court subsequently explained that the "ends of justice" required federal courts to entertain a successive habeas corpus petition "only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence." Kuhlmann , 477 U.S. at 454. See also McClesky v. Zant , 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (federal courts would consider merits of new claim raised in second habeas petition only if petitioner demonstrates a fundamental miscarriage of justice would otherwise result).

The AEDPA tightened the screws and radically shifted the legal landscape regarding abusive or successive petitions. See 28 U.S.C. § 2244. "Before a second or successive petition permitted by [the AEDPA] is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the petition." 28 U.S.C. § 2244(b)(3)(A). Thus, the new statute creates "a 'gate-keeping’ mechanism," whereby a petitioner must obtain the permission of the court of appeals before filing a second or successive petition in the district court. See generally Felker v. Turpin , 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing 28 U.S.C. § 2244(b)(3)). The Felker Court ultimately concluded that this statute was constitutional, in part because it did not preclude the filing of a successive petition directly in the United States Supreme Court.

Under 28 U.S.C. § 2244(b)(2), Congress enacted very severe limitations on the federal court’s power to consider new-claim petitions. Such petitions must be dismissed unless either (1) they rely on a new rule of constitutional law or (2) the petitioner makes a prima facie showing that "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence" and "the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." Id .

The AEDPA goes even farther as to same claim petitions. 28 U.S.C. § 2244(b)(1) appears to require the dismissal of claims that were previously presented in a federal habeas petition. See generally Martinez-Villareal v. Stewart , 118 F.3d 628, 630 (9th Cir. 1997), aff’d , 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998).

E. SOME PROCEDURAL MATTERS

A comprehensive discussion of the multifaceted rules and procedures governing federal habeas corpus proceedings is well beyond the scope of this overview. As a threshold matter the practitioner must consult the Rules Governing Section 2254 Cases in the United States District Courts ("Habeas Corpus Rules"). These rules may be found in the volume containing 28 U.S.C.A. § 2254, and in the West pamphlet Federal Civil Judicial Procedure and Rules (1998 ed.). The Habeas Corpus Rules are exhaustively covered in Liebman’s text and this excellent treatment includes a useful outline that discusses the interplay of all relevant rules and statutes. See Liebman at § 3.5b. The practitioner should also take care to consult the local rules of the particular court in which the habeas corpus petition is filed and the circuit court rules governing habeas corpus appeals.

A habeas corpus case is a hybrid proceeding (part civil, part criminal, and part appellate), but it is generally described as civil in nature. As noted in Habeas Corpus Rule 11, the Federal Rules of Civil Procedure may be applied "to the extent that they are not inconsistent with these rules provides." The district court need not apply these rules, and often will not, when considering such petitions.

1. Time Limitations

Habeas Corpus Rule 9(a) provides that a habeas corpus petition may be dismissed if it has been delayed to the prejudice of the responding state. The Supreme Court has refused to presume prejudice, even after a delay of five years. See Lonchar v. Thomas , 517 U.S. 314, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996).

The AEDPA changed this landscape, shortening the time for filing a federal habeas petition to one year. Section 101 of AEDPA amended 28 U.S.C. § 2244 by adding the following provision:

  1. A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
    1. the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review;
    2. the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
    3. the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
    4. the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
  2. The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

Few courts have been called upon to interpret the several provisions contained in Section 2244(d). Practitioners must exercise extreme caution and assume that the federal court might conclude that the time period will run on the earliest possible date .

A few points should be considered. First, the one-year limitation period begins to run from the latest of several events, typically the end of direct review in the state court. See 28 U.S.C. § 2244(d)(1). Second, the AEDPA provides that the one-year limitation period is tolled when a petitioner is pursuing "properly filed" claim for postconviction relief. See 28 U.S.C. § 2244(d)(2). The federal courts have generally concluded that "properly filed" as used in this statute means that the petition was filed in conformance with the basic technical rules of the state court. See generally Lovasz v. Vaughn , 134 F.3d 146, 148-49 (3rd Cir. 1998); Galindo v. Johnson , 19 F.Supp. 2d 697 (W.D.Tex. 1998); Ellis v. Johnson , 11 F.Supp.2d 695, 698 (N.D.Tex. 1998); Williams v. Vaughn , 3 F.Supp.2d 567, 577 (E.D. Pa. 1998); Holloway v. Corcoran , 980 F.Supp. 160, 162 n.5 (D.Md. 1997); Hughes v. Irvin , 967 F.Supp. 775, 778 (E.D.N.Y. 1997). But see Dictado v. DuCharme , --- F.3d ---, 1999 WL 646953 (9th Cir., August 26, 1999).

It is unclear whether a federal habeas corpus proceeding will be deemed as "pending" at any time before a habeas petition itself has been filed with the District Court. In one recent case, however, an en banc panel of the Ninth Circuit noted that a threshold request for appointment of counsel and for leave to file a petition for habeas corpus commences the habeas "case" within the meaning of the AEDPA. See Calderon v. United States District Court , 163 F.3d 530 (9th Cir. 1998) (en banc) ("Kelly ").

Finally, some courts have noted that the time limitations set forth in the AEDPA are not jurisdictional. See Calderon v. U.S. Dist. Court for Eastern Dist. of California , 112 F.3d 386, 390-91 (9th Cir. 1997) ("Beeler "). Consequently, these limitations may be subject to "equitable tolling." "Equitable tolling will not be available in most cases, as extensions of time will only be granted if 'extraordinary circumstances’ beyond a prisoner's control make it impossible to file a petition on time." Beeler , 112 F.3d at 391 (citing Alvarez-Machain v. United States , 107 F.3d 696, 701 (9th Cir.1997)).

2. The Respondent

The Habeas Corpus Rules specify that the proper respondent in a federal habeas corpus petition is the person "having custody of the applicant." Habeas Corpus Rule 2(a). This usually is the person who can directly produce the petitioner in court and who can release the prisoner from custody if ordered to do so. Thus, when the petitioner is imprisoned, the petition should name either the warden or superintendent of the facility in which the petitioner is incarcerated and/or the director of the state corrections department. In an appropriate case, the petitioner may chose to name the state attorney general as well. When the petitioner is not imprisoned, the proper respondents generally are the person and agency immediately responsible for supervising the petitioner and assuring that his behavior conforms to those restraints on his liberty that render him in custody (e.g., probation officer, parole officer, etc.).

3. Claim Identification

Before filing any habeas corpus petition, the petitioner (or his counsel) must take care to identify and raise all potential federal claims that might be the basis for habeas corpus relief. Given the exhaustion requirement, it is indispensable that all investigation and claim identification go forward expeditiously to ensure that these claims are identified early and properly presented in the state courts. Professor Liebman’s text serves as an excellent starting place for novices and experts alike. The text lists numerous sources of potential factual information (see Liebman at § 11.2b) and hundreds of examples of federal habeas corpus claims that have prevailed ( see Liebman at § 11.2c).

My general impression is that habeas petitioners who prevail will most often obtain relief for three sorts of claims: ineffective assistance of counsel, violations of the due process principles announced in Brady v. Maryland , 373 U.S. 83, 87, 108, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and/or instances of juror misconduct. But each case is factually and legally unique. A word to the wise: be creative and do not cut corners. I recently prevailed in a habeas petition case based on a claim that judicial hanging would constitute cruel and unusual punishment because the petitioner (who weighed more than 400 pounds) would likely be decapitated during the hanging process. See Rupe v. Wood , 863 F.Supp. 1307, rev’d as moot , 93 F.3d 1434, 1438-39 (9th Cir.), cert. denied , 519 U.S. 1142, 117 S.Ct. 1017, 136 L.Ed.2d 894 (1997). Most attorneys (including my friends) thought I was loopy when they first learned that I raised such a claim in the federal court.

4. Form of Petition

Each federal habeas corpus petition must "be in substantially the form annexed to" the Habeas Corpus Rules. See Habeas Corpus Rule 2(c). A model form habeas corpus petition is available from the clerk’s office at most United States District Courts. The petition should be typewritten or legibly handwritten (see Habeas Corpus Rule 2(c)), signed under penalty of perjury by the petitioner (see Habeas Corpus Rule 2(c)), and accompanied by two conformed copies of the petition (see Habeas Corpus Rule 3(a)).

Keep in mind that each petition must include information relevant to: the petitioner’s custody status; the convictions and judgments under which he has been detained; the state court proceedings in which the claims were exhausted; information relating to any other federal habeas corpus petition filed by the petitioner challenging the conviction at issue; and a statement of relief sought. Perhaps most importantly, the habeas rules require the petitioner to "specify all the grounds for relief which are available to the [petitioner] and of which he has or by exercise of reasonable diligence should have knowledge and [to] set forth in summary form the facts supporting each of the grounds thus specified." Habeas Corpus Rule 2(c). This "fact pleading" requirement should be distinguished from the "notice pleading" rules applicable to other federal civil cases. See Fed. R. Civ. P. 8.

Some courts allow petitioners to deviate from the specified form as long as the petition contains "substantially" the same information elicited by the court-approved form. I have attached two sample petitions that I filed in recent years. See Appendix A ( Arntsen ) and Appendix B (Pirtle ). It is my preference to list the legal claims in the petition and then to incorporate the facts and legal arguments contained in a Memorandum in Support of Petition for a Writ of Habeas Corpus. Some practitioners prefer to include the factual allegations in the petition itself. Except in unusual circumstances, I also file a declaration that includes one copy of pertinent legal documents, court orders, transcripts, and declarations.

Except in cases where the court grants the petitioner in forma pauperis status, the statutory filing fee is $5. See 28 U.S.C. § 1914(a). Habeas Corpus Rule 4 provides that the petitioner need not serve a copy of the petition on respondent or on the legal officer likely to represent respondent, the court serves the respondent and the state’s attorney general by certified mail. Nevertheless, I always mail a courtesy copy to the state attorney general to move the process a long.

5. Where to File: Personal Jurisdiction and Venue

In nearly every case, the federal district court in the State in which the custodian of the petitioner resides has personal jurisdiction over the habeas corpus actions brought by the petitioner. See generally Braden v. 30 th Judicial Cir. Ct. , 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). If the petitioner files in a district without personal jurisdiction, the appropriate remedy is not dismissal but rather transfer to the proper court.

Under 28 U.S.C. § 2241(d), venue is appropriate in both the district in which the prisoner is in custody and the district in which he was convicted and sentences. Many districts have enacted rules that modify this provision and counsel should check with the court to determine the appropriate district to file a habeas corpus petition. In appropriate circumstances, a party may move to transfer the case to a more convenient forum pursuant to 28 U.S.C. § 1404(a) and 28 U.S.C. § 2241(d).

F. PROCEEDINGS AFTER THE PETITION IS FILED

While habeas proceedings are civil in nature, the federal courts tend to handle them differently than other civil matters. It is noteworthy that the federal district court judge assigned to the case will usually refer it to a United States Magistrate Judge under 28 U.S.C. § 636. See generally Norris v. Schotten , 146 F.3d 314 (6th Cir. 1998) (entry of a final judgment by a magistrate judge pursuant to 28 U.S.C. § 636(a) does not violate Article III). Moreover, notwithstanding the general practice in civil cases, the district court is likely to consider the petition by reference to the Habeas Corpus Rules rather than the Federal Rules of Civil Procedure.

1. Preliminary Consideration and Summary Proceedings

Habeas Corpus Rule 4 provides as follows:
The original petition shall be presented promptly to a judge of the district court in accordance with the procedure of the court for assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified. Otherwise the judge shall order the respondent to file an answer or other pleadings within the period of time fixed by the court or to take such other action as the judge deems appropriate. In every case a copy of the petition and any order shall be served by certified mail on the respondent and the attorney general of the state involved.

Thus, a habeas corpus petition may be summarily rejected in appropriate circumstances. Under Habeas Corpus Rule 4, the court may dismiss in advance of the state’s answer if the petitioner’s filings plainly show that the petitioner is not entitled to relief. Unless patently false, the facts in the petition must be presumed to be true for summary dismissal purposes. See generally Blackledge v. Allison , 431 U.S. 63, 76, 97 S.Ct. 1621, 1630, 52 L.Ed.2d 136 (1977).

2. The State’s Response

Respondent is not obliged to answer the petition unless the court expressly orders an answer. See generally Habeas Corpus Rules 3-5. In the answer, the state must include: a response to the allegations in the petition, a statement regarding exhaustion, a discussion of the available transcripts, an attachment containing relevant transcripts, and an attachment containing certain state court pleadings and/or orders. See Habeas Corpus Rule 5. The state may include within (or along with) the Answer a request for summary judgment or dismissal.

If the state’s Answer raises what appear to be legally sufficient affirmative defenses, the Petitioner should file a responsive pleadings -- sometimes referred to as a "Traverse to the Answer" -- in order to explain why the defenses are not meritorious.

3. Fact Development

If the state’s response disputes the petitioner’s factual allegations, thereby creating a genuine issue of material fact, then summary judgment or dismissal is inappropriate. In that event, the petitioner should respond to the state’s pleadings by asking the district court to authorize procedures to resolve factual disputes. Remember, a habeas corpus proceeding is akin to a civil action.
(a) Discovery
Habeas Corpus Rule 6(a) allows parties to engage in discovery in the discretion of the court "for good cause shown." The rule provides, in pertinent part:
A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise . . . .

Id .

"Denial of an opportunity for discovery is an abuse of discretion when the discovery is necessary to fully develop the facts of a claim." Teague v. Scott , 60 F.3d 1167, 1172 (5th Cir. 1995). Accord Coleman v. Zant , 708 F.2d 541, 547 & n.9 (11th Cir. 1983) (discovery permitted to assist Petitioner in showing that the state court fact-finding was not adequate). Recognizing this key principle, several courts have held that good cause is shown, and discovery is warranted, where an evidentiary hearing is needed. See, e.g., McDaniel v. United States District Court for Nevada , 127 F.3d 886, 888 (9th Cir. 1997); Jones v. Wood , 114 F.3d 1002, 1008-10 (9th Cir. 1997).

Pre-hearing discovery is particularly appropriate in a capital case. The Supreme Court re-affirmed this principle in Bracy v. Gramley , 520 U.S. 899, 117 S.Ct. 1793, 1796-97, 138 L.Ed.2d 97 (1997). There, the defendant was tried, convicted, and sentenced to death before then-Judge Thomas J. Maloney for his role in an execution-style triple murder. Maloney was later convicted on federal charges of taking bribes from criminal defendants. See United States v. Maloney , 71 F.3d 645 (7th Cir. 1995), cert. denied , 519 U.S. 927, 117 S.Ct. 295, 136 L.Ed.2d 214 (1996).

In his federal habeas petition, Bracy claimed that he was denied a fair trial because "in order to cover up the fact that [Maloney] accepted bribes from defendants in some cases, [he] was prosecution oriented in other cases." United States ex rel. Collins v. Welborn , 868 F.Supp. 950, 990 (N.D. Ill. 1994). Bracy also sought discovery in support of this claim. Specifically, he requested (1) the sealed transcript of Maloney’s trial; (2) reasonable access to the prosecution’s materials in Maloney’s case; (3) the opportunity to depose persons associated with Maloney; and (4) a chance to search Maloney’s rulings for a pattern of pro-prosecution bias. The district court rejected Bracy’s claims and denied his supplemental motion for discovery, concluding that his "allegations contain insufficient specificity or good cause to justify further discovery." 868 F.Supp. at 991. The Seventh Circuit adopted the district court’s reasoning and found that Bracy had not shown "good cause" for discovery. See Bracy v. Gramley , 81 F.3d 684, 690-96 (7th Cir. 1996).

The Supreme Court reversed in a unanimous decision. As a threshold matter, the Court noted that Maloney had engaged in corrupt practices in other cases and that Bracy had articulated a plausible theory of how the judge’s bias may have affected Bracy’s case. As the Court explained: "This is, of course, only a theory at this point; it is not supported by any solid evidence of petitioner’s trial lawyer’s participation in any such plan." Bracy , 117 S.Ct. at 1799. Nevertheless, the justices unanimously concluded that Bracy had shown "good cause" for discovery under Rule 6(a). See id . Relying upon its prior decision in Harris v. Nelson , 394 U.S. 286, 295, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), the Court set forth the following test:

Where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief, it is the duty of the courts to provide the necessary facilities and procedures for an adequate inquiry.

Id .

(b) Evidentiary Hearing
Habeas Corpus Rule 8(a) provides:

If the petition is not dismissed at a previous stage in the proceeding, the judge, after the answer and the transcript and record of state court proceedings are filed, shall, upon a review of those proceedings and of the expanded record, if any, determine whether and evidentiary hearing is required.

Id. When discussing this rule, the Supreme Court has held that the federal judiciary must resolve any factual disputes material to a claim appropriately raised in a habeas corpus petition and that resolution of such factual disputes requires an evidentiary hearing in most cases. See, e.g., Ford v. Wainwright , 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).

When deciding whether to hold an evidentiary hearing, the Court must first consider the seminal case of Townsend v. Sain , 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). In Townsend , the Supreme Court reversed the district court’s dismissal of a habeas corpus application because the lower court improperly refused to hold an evidentiary hearing. The Court identified a strong federal policy favoring hearings, because punishment obtained in violation of the Constitution is intolerable and the "opportunity for redress, which presupposes the opportunity to be heard, to argue and present evidence, must never be totally foreclosed." Townsend , 372 U.S. at 322. The "hearing power" must be broad and independent since a narrow view of the hearing power would totally subvert Congress’ specific aim in passing the Act of February 5, 1867, of affording state prisoners a forum in federal trial courts for the determination of claims of detention in violation of the Constitution. The language of Congress, the history of the writ, the decisions of this Court, all make clear that the power of inquiry on federal habeas corpus is plenary.

Townsend , 372 U.S. at 292.

The Townsend Court ultimately held that a district court always has the authority to hold evidentiary hearings on habeas corpus claims. The Court also identified six situations where a hearings is mandatory:

If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing.

Townsend , 372 U.S. at 313.

In 1992, the Supreme Court imposed one limit on the reach of Townsend . See Keeney v. Tamayo-Reyes , 504 U.S. 1, 11, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). The Keeney Court ruled that a hearing is not mandatory under Townsend ’s fifth circumstance -- where "the material facts were not adequately developed at the state court hearing" -- unless the Petitioner can show cause for failing to develop the material facts in state court and prejudice resulting therefrom. See generally Chacon v. Wood , 36 F.3d 1459 (9th Cir. 1994) (discussing Keeney ).

This does not mean that a habeas petitioner is entitled to an evidentiary hearing in federal court only if he can satisfy Keeney ’s "cause and prejudice" standard. This same argument was put to rest in Seidel v. Merkle , 146 F.3d 750 (9th Cir. 1998). There, the State maintained that the district court erred in granting an evidentiary hearing without first requiring the Petitioner to demonstrate cause for his failure to develop the facts in state court and actual prejudice resulting from that failure. The Ninth Circuit rejected this claim and instead held that a federal court always retains the power to hold a hearing even though one was not required. See 146 F.3d at 753 (citing Pagan v. Keane , 984 F.2d 61, 63-65 (2d Cir. 1993); Clemmons v. Delo , 124 F.3d 944, 951-52 (8th Cir. 1997)).

The AEDPA sets forth new and strict limitations to the evidentiary hearings in federal habeas corpus cases. 28 U.S.C. § 2254(e) provides:

(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

(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 unless the applicant shows that --

  1. the claim relies on --
    1. a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
    2. a factual predicate that could not have been previously discovered through the exercise of due diligence; and
  2. 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.

Few courts have interpreted these new provisions. When litigating such matters, practitioners must consider what it means to say that an "applicant failed to develop" a claim in the state court. The federal courts have fairly uniformly held that a petitioner cannot be said to have "failed to develop" the factual bases for a claim unless the undeveloped record is a result of his own decision or omission. See, e.g., Cardwell v. Greene , 152 F.3d 331, 337-38 (4th Cir. 1998), cert. denied , --- U.S. ---, 119 S.Ct. 587, 142 L.Ed.2d 491 (1998); McDonald v. Johnson , 139 F.3d 1056 (5th Cir. 1998); Love v. Morton , 112 F.3d 131 (3 rd Cir. 1997); Burris v. Parke , 116 F.3d 256, 258 (7th Cir.), cert. denied , --- U.S. ---, 118 S.Ct. 462, 139 L.Ed.2d 396 (1997). As a general proposition, the AEDPA should not preclude an evidentiary hearing in federal court where an applicant has diligently sought to develop the factual basis of a claim for habeas relief, but has been denied the opportunity to do so by the state court. See generally Jones v. Wood , 114 F.3d 1002, 1009 (9th Cir. 1998) (applicant did not fail to develop the claim); Baja v. DuCharme , --- F.3d ---, 1999 WL 591824 (9th Cir., August 9, 1999) (applicant did fail to develop the claim).

Under Habeas Corpus Rule 8(c), the district court must appoint counsel for a qualified petitioner if an evidentiary hearing is required. "These rules do not limit the appointment of counsel under 18 U.S.C. § 3006A at any stage of the case if the interest of justice so requires." Habeas Corpus Rule 8(c).

4. The Merits

(a) Review of State Court Determinations
(1) Factual Determinations -- The Presumption of Correctness

Even before enactment of the AEDPA, 28 U.S.C. § 2254(d) (1994) provided that state court factual determinations were presumed to be correct unless the petitioner could satisfy certain criteria. The Supreme Court has interpreted this to mean that the federal court must accord to the state court decision a "high measure of deference." Sumner v. Mata , 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981). This requires more than simple disagreement before a federal court can reject the state court’s findings. The federal court must conclude that the findings lacked even "fair support" in the record. See Maggio v. Fulford , 462 U.S. 111, 103 S. Ct. 2261, 76 L. Ed. 2d 794 (1983); Marshall v. Lonberger , 459 U.S. 422, 103 S. Ct. 843, 74 L. Ed. 2d 646 (1983). The AEDPA simplifies but does not substantially alter the preexisting provisions governing the effect of state court findings of fact. See 28 U.S.C. 2254(e)(1).

(2) Legal Determinationss

28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court 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 --

(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts In light of the evidence presented in the State court proceeding.

Although the relevant provision is sometimes said to require "deference" to even erroneous state court determinations of law and of mixed questions of law and fact, the relevant provision of the statute does not contain the word "deference," does not appear to require substantive deference, and might be unconstitutional if it did.

There is considerable debate about the construction and constitutionality of § 2254(d). See generally A. Chen, Shadow Law: Reasonable Unreasonableness, Habeas Theory, and the Nature of Legal Rules , -- Buff. L. Rev. --- (1999); R. Tabak, Habeas Corpus as a Crucial Protector of Constitutional Rights: A Tribute Which May Also Be a Eulogy , 26 Seton Hall. L. Rev. 1477 (1996); E. Lee, Section 2254(d) of the New Habeas Statute: An (Opinionated) User’s Manual , 51 Vand. L.Rev. 103 (1998); J. Liebman & W. Ryan, "Some Effectual Power": The Quantity and Quality of Decisionmaking Required of Article III Court , 98 Colum. L. Rev. 696 (1998); K. Scheidegger, Response: Habeas Corpus, Relitigation and the Legislative Power , 98 Colum. L.Rev. 888 (1998). See also Liebman at § 30.

The circuit courts have reached varied, and somewhat conflicting, results when interpreting this important provision. See, e.g., O’Brien v. Dubois , 145 F.3d 16, 21-23 (1st Cir. 1998); Cardwell v. Greene , 152 F.3d 331, 339 (4th Cir.), cert. denied , --- U.S. ---, 119 S.Ct. 587, 142 L.Ed.2d 491 (1998); Drinkard v. Johnson , 97 F.3d 751, 767-68 (5th Cir. 1996), cert. denied , 520 U.S. 1107, 137 L. Ed. 2d 315, 117 S.Ct. 1114 (1997); Lindh v. Murphy , 96 F.3d 856, 869, 887 (7th Cir. 1996), rev’d on other grounds , 521 U.S. 320, 138 L.Ed.2d 481, 117 S.Ct. 2059 (1997); Delgado v. Lewis , 181 F.3d 1087 (9 th Cir. 1999); Neelley v. Nagle , 138 F.3d 917, 923 (11th Cir. 1998). The United States Supreme Court is likely to weigh in on the subject before the end of this term. See Williams v. Taylor , Supreme Court Case No. 98-8384.

(b) Prejudice
In recent years, the Supreme Court has recognized essentially two categories of constitutional errors: (1) "trial-type" errors and (2) "structural" errors. See, e.g., Arizona v. Fulminante , 499 U.S. at 307-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Rose v. Clark , 478 U.S. 570, 577-78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). Trial-type errors are subject to harmless-error analysis, while structural errors require automatic reversal. As explained by the Court, "Some constitutional violations . . . by their very nature cast so much doubt on the fairness of the trial process that, as a matter of law, they can never be considered harmless." Satterwhite v. Texas , 486 U.S. 249, 256, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). See also Brecht v. Abrahamson , 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

Most errors are of the "trial" variety. Upon finding that a criminal trial has been infected with constitutional error in the presentation of the case to the jury, a court usually must make a further determination as to whether the error was harmless. See Brecht , 507 U.S. at 637-38. In Brecht , the Supreme Court held that the correct harmless error standard in most habeas corpus cases is "whether the error 'had substantial and injurious effect or influence in determining the jury's verdict. ’" See 507 U.S. at 619 (quoting and adopting the standard set forth in Kotteakos v. United States , 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

[The question is not ] were [the jurors] right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury's decision. . . .

Brecht , 507 U.S. at 642-43 (Stevens, J, concurring).

In rejecting the "beyond a reasonable doubt" harmless error standard was announced in Chapman v. California , 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Court explained that "[s]tate courts are fully qualified to identify constitutional error and evaluate its prejudicial effect on the trial process under Chapman " and that "it scarcely seems logical to require federal habeas courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in on direct review." 507 U.S. at 636.

The Supreme Court has recently expounded upon the meaning of the holding in Brecht :

[T]he Brecht opinion, in this respect, did not speak for a Court majority. Four Members of the Court, supporting application of Chapman ’s standard, dissented. And, Justice Stevens, while a Member of the majority, stated explicitly that the Kotteakos standard applied in its entirety . [citation omitted] (Stevens, J., concurring) (agreeing, in part, because that standard "places the burden on prosecutors to explain why those errors were harmless").

O'Neal v. McAninch, 513 U.S. 432, 439, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). The O'Neal Court also gave practical advice to courts reviewing cases of constitutional error: Don’t concern yourselves with where the burden lies, instead ask "Do I, the judge, think that the error substantially influenced the jury’s decision." 513 U.S. 437. In cases where a court cannot decide whether the error influenced the verdict, the writ should issue to "avoid a grievous wrong - holding a person in custody in violation of the Constitution." 513 U.S. at 442.

G. HABEAS CORPUS APPEALS

Habeas corpus appeals generally proceed according to the requirements of the federal statutes and rules governing federal civil appeals. Thus, the petitioner may appeal from a final order, decision, or judgment. FRAP 4(a) is applicable to habeas corpus proceedings. See Browder v. Director , 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Houston v. Lack , 487 U.S. 266, 272, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Thus, assuming that the petitioner does not file a motion for reconsideration (within the 10-day period), he has a 30-day period to file his notice of appeal. See 28 U.S.C. § 2107; FRAP 4(a). FRAP 3(c) establishes the general requirements for the content of a notice of appeal.

Although habeas corpus proceedings follow normal civil appellate procedures in most respects, federal habeas corpus is unique in one important respect. In contrast to the unrestricted availability of appeals in most other civil litigation, there is no appeal as of right for prisoners in habeas corpus cases. Instead, the prisoner must obtain leave to appeal by making a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).

Prior to the enactment of the AEDPA, the petitioner was required to obtain a "certificate of probable cause" to appeal. See generally Barefoot v. Estelle , 463 U.S. 880, 892-93, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); 28 U.S.C. § 2253 (1994). The AEDPA replaced the "certificate of probable cause" with a new procedural device called a "certificate of appealability." Practitioners generally refer to the new device as a "COA." The new procedure employs the same substantive standard as the preexisting certificate of probable cause; the petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). See, e.g., Nelson v. Walker , 121 F.3d 828, 823-33 & n.3 (2d Cir. 1997). But see Williams v. Calderon , 83 F.3d 281, 286 (9th Cir. 1996) ("The standard for obtaining a certificate of appealability under the Act is more demanding than the standard for obtaining a certificate of probable cause under the law as it existed prior to enactment of the Act.").

The AEDPA seems to say that only the Supreme Court or a circuit judge may issue the COA, although most courts have ruled that a district judge may issue a certificate in the first instance. See generally United States v. Asrar , 116 F.3d 1268, 1270 (9th Cir. 1997). The COA must list the specific issues to be raised on appeal. See Hiivala v. Wood , --- F.3d ---, 1999 WL 705101 (9th Cir., Sept. 13, 1999); Lackey v. Johnson , 116 F.3d 149, 151 (5 th Cir. 1997).

APPENDIX A ( Arntsen )

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

RICKY ARNTSEN, )

)

Petitioner, ) NO.

)

v. ) PETITION FOR A WRIT

) OF HABEAS CORPUS

TANA WOOD, )

)

Respondent. ) EVIDENTIARY HEARING

____________________________________ ) REQUESTED

Petitioner Ricky Arntsen, through his attorney Todd Maybrown, avers as follows:

I. PARTIES

1.1. Ricky Arntsen, Petitioner herein, is confined at the Washington State Penitentiary in Walla Walla, Washington. During 1993, Petitioner was convicted in the King County Superior Court of one count of murder in the second degree and he is sentenced to a term of 288 months in custody. See King County Superior Court Cause No. 93-1-02920-5.

1.2. Respondent Tana Wood is the Superintendent of the Washington State Penitentiary in Walla Walla, Washington.

II. JURISDICTION

2.1. The United States District Court has jurisdiction over this petition for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2254 and 1331. Petitioner is in custody pursuant to judgment of a Washington state court, and seeks relief on the ground that his imprisonment and sentence are in violation of his rights under the United States Constitution.

III. VENUE

3.1. Venue is proper in the United States District Court for the Western District of Washington because Petitioner's conviction was obtained in the King County Superior Court in Seattle, Washington. See 28 U.S.C. § 2241(d).

IV. PROCEDURAL HISTORY

4.1. On April 27, 1993, the State filed an information charging Petitioner with one count of second degree felony murder in violation of RCW 9A.32.050(1)(a) and (b).

4.2. Petitioner was tried in the King County Superior Court on the charge during September 1993. After trial, the jury returned a verdict of guilty.

4.3. Petitioner appealed his conviction to the Washington Court of Appeals. On February 3, 1997, the Washington Court of Appeals affirmed Petitioner's conviction in an unpublished decision. See Court of Appeals No. 34399-8-I.

4.4. During the course of the appeal, Petitioner filed a personal restraint petition in the Washington Court of Appeals pursuant to RAP 16. See Court of Appeals No. 38357-4-I.

4.5. Petitioner filed a petition for review to the Washington Supreme Court, seeking review of the decisions in Court of Appeals Nos. 34399-8-I and 38357-4-I. See Washington Supreme Court No. 65299-6. The court denied review on July 8, 1997. See State v. Arntsen , 132 Wn.2d 1011, 940 P.2d 653 (1997).

4.6. Thereafter, on January 23, 1998, Petitioner filed a second PRP in the Washington Court of Appeals. See Court of Appeals No. 42035-6-I. In support of his petition, Petitioner presented affidavits from several witnesses. Acting Chief Judge Kennedy issued an order dismissing the petition on January 23, 1998.

4.7. Petitioner then filed a motion for discretionary review in the Washington Supreme Court. A commissioner of the Washington Supreme Court entered a ruling denying review on May 29, 1998. Thereafter, on June 22, 1998, Petitioner filed a motion to modify the commissioner's ruling pursuant to RAP 17.7.

V. GROUNDS FOR RELIEF

The grounds on which Petitioner contends his conviction is contrary to the Constitution of the United States are as follows:

5.1. The Identification Procedures used in this Case Were So Suggestive as to Deprive Petitioner of his Due Process Rights under the fourteenth amendment ;

5.2. PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL ; and

5.3. PETITIONER WAS DENIED HIS FOURTEENTH AMDENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL ;

The factual claims and legal arguments that support these claims are set forth in Petitioner's Memorandum in Support of Petition for Writ of Habeas Corpus. These factual claims and legal arguments are hereby incorporated by reference. If not for these several errors Petitioner would have established that he was actually innocent of the offense with which he was charged.

VI. EXHAUSTION

6.1. All grounds for relief raised in this petition for a writ of habeas corpus have previously been presented to the Washington Supreme Court.

VII. RELIEF REQUESTED

Wherefore, Petitioner Ricky Arntsen prays that this Court:

7.1. Issue a writ of habeas corpus to have Petitioner brought before the court to the end that he may be discharged from his unconstitutional conviction;

7.2. Require Respondent to bring forward the entire record of the state court proceedings, and to specify any proceeding in the case that has been reported but not transcribed;

7.3. Require Respondent to file an answer admitting or denying each and every factual allegation herein;

7.4. Allow Petitioner to conduct discovery and to expand the record relating to the issues raised by this Petition;

7.5. Conduct a hearing at which proof may be offered concerning the allegations in this petition that Respondent does not admit;

7.6. Allow Petitioner sufficient time to brief the issues of law raised by this petition; and

7.7. Grant such other and further relief as may be appropriate.

DATED this 7th day of July, 1998.

 

______________________________

Todd Maybrown

ALLEN, HANSEN & MAYBROWN, P.S.

1001 Fourth Avenue Plaza, Suite 4301

Seattle, WA 98154

(206) 447-9681

APPENDIX B ( Pirtle )

HON. JUSTIN QUACKENBUSH

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WASHINGTON

BLAKE PIRTLE, )

) NO. CT-98-5028-JLQ

Petitioner, )

)

v. ) FIRST AMENDED

) PETITION FOR A WRIT

JOHN LAMBERT ) OF HABEAS CORPUS

)

Respondent. )

) THIS IS A CAPITAL CASE

____________________________________)

Petitioner Blake Pirtle, through his attorneys Todd Maybrown and James Lobsenz, avers as follows:

I. PARTIES

1.1. Blake Pirtle, Petitioner herein, is confined at the Washington State Penitentiary in Walla Walla, Washington. On July 30, 1993, the Spokane County Superior Court entered a judgment on a verdict of guilty on two counts of aggravated first-degree murder and a sentence of death. See State v. Pirtle , Spokane County Superior Court Cause No. 92-1-00955-3.

1.2. Respondent John Lambert is the Superintendent of the Washington State Penitentiary in Walla Walla, Washington.

II. JURISDICTION

2.1. The United States District Court has jurisdiction over this petition for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2254 and 1331. Petitioner is in custody pursuant to judgment of a Washington state court, and seeks relief on the ground that his imprisonment and sentence are in violation of his rights under the United States Constitution.

III. VENUE

3.1. Venue is proper in the United States District Court for the Eastern District of Washington because Petitioner's conviction was obtained in the Spokane County Superior Court in Spokane, Washington. See 28 U.S.C. § 2241(d).

IV. PROCEDURAL HISTORY

4.1. On May 20, 1992, the Spokane County Prosecuting Attorney filed an information charging Petitioner with two counts of aggravated first-degree murder in violation of RCW 9A.32.030.030 and RCW 10.95.020. See State v. Pirtle , Spokane County Superior Court Cause No. 92-1-00955-3.

4.2. On July 19, 1992, the Spokane County Prosecuting Attorney filed a Notice of Special Sentencing Proceeding to determine whether the death penalty should be imposed in Petitioner’s case.

4.3. The Spokane Public Defender’s Office was appointed to represent Petitioner during proceedings in the Spokane County Superior Court. Donald Westerman, the , represented Petitioner during all proceedings in the Spokane County Superior Court. Beginning in , John Rodgers assisted Westerman in his representation of Petitioner.

4.4. Petitioner’s guilt phase trial began on May 24, 1993. The jury returned verdicts of guilty on June 25, 1993.

4.5. The sentencing phase of the trial began on June 28, 1993. The jury returned its verdict, finding that there were not sufficient mitigating circumstances to merit leniency and that the death penalty should be imposed, on July 1, 1993.

4.6. On July 30, 1993, Spokane County Superior Court Judge Michael Donohue entered a judgment of guilty on all counts and sentenced Petitioner to death.

4.7. Petitioner appealed the judgment and sentence directly to the Washington Supreme Court. See State v. Pirtle , Washington Supreme Court Cause No. 60661-7. On October 12, 1995, the Washington Supreme Court affirmed Petitioner's judgment of conviction and death sentence. See State v. Pirtle , 127 Wn.2d 628, 904 P.2d 245 (1995).

4.8. Petitioner then made application to the United States Supreme Court for a Writ of Certiorari. The United States Supreme Court denied certiorari on June 24, 1996. See Pirtle v. Washington , 518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996). The Washington Supreme Court issued its mandate on June 27, 1996.

4.9. On July 18, 1996, Spokane County Superior Court Judge Michael Donohue signed a death warrant for Blake Pirtle.

4.10. On July 22, 1996, the Washington Supreme Court issued an order staying Petitioner’s execution until entry of a certificate of finality in Petitioner's personal restraint proceedings.

4.11. Petitioner’s counsel on appeal, Joan Fisher, subsequently provided notice that attorneys Jeffry Finer and Charles Dorn would agree to represent Petitioner in his personal restraint proceedings. On August 19, 1996, the Washington Supreme Court appointed Finer and Dorn to represent Petitioner in his personal restraint proceedings.

4.12. On February 19, 1997, Petitioner’s counsel filed a Personal Restraint Petition. See In re Pirtle , Washington Supreme Court Cause No. 64300-8.

4.13. On May 13, 1997, the Washington Supreme Court denied the first Personal Restraint Petition on the merits.

4.14. Thereafter, on June 11, 1997, the Washington Supreme Court reconsidered its order of May 13, 1997 and appointed Todd Maybrown to represent Petitioner in his personal restraint proceedings. The court then set a new briefing scheduling, and allowed Petitioner time to file an amended personal restraint petition and an opening brief.

4.14. Petitioner’s new counsel filed an amended personal restraint petition and supporting documentation on September 10, 1997. At that same time, Petitioner filed a motion for the court to schedule a reference hearing under RAP 16.12 and to allow pre-hearing discovery.

4.15. On October 1, 1998, the Washington Supreme Court issued its ruling denying Petitioner’s first amended personal restraint petition on the merits. See In re Pirtle , 136 Wn.2d 367 (1998).

4.16. Petitioner’s counsel filed a timely motion for reconsideration on October 18, 1998. The Washington Supreme Court granted the motion in part and denied the motion in part on December 7, 1998. Thereafter, on December 29, 1998, the Washington Supreme Court issued its "certificate of finality" in Washington Supreme Court Cause No. 64300-8.

V. GROUNDS FOR RELIEF

5.1. Petitioner contends that his convictions and death sentence are contrary to the Constitution of the United States for the following reasons:

CLAIM 1. THE PROSECUTOR VIOLATED PETITIONER’S FIFTH AMENDMENT RIGHT TO REMAIN SILENT, EIGHTH AMENDMENT RIGHTS TO A RELIABLE PENALTY HEARING AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW, BY ELICITING TESTIMONY REGARDING AN INVOLUNTARY AND UN-MIRANDIZED CUSTODIAL STATEMENT MADE BY PETITIONER AT THE TIME OF HIS ARREST; THIS UNCONSTITUTIONAL AND INVOLUNTARY STATEMENT WAS IMPROPERLY ADMITTED AT TRIAL, IN PART, BECAUSE THE PROSECUTOR NEVER PROVIDED DISCOVERY TO THE DEFENSE REGARDING THE STATEMENT AND THE TRIAL COURT NEVER HELD A HEARING AS TO THE ADMISSIBILITY OF THE STATEMENT.

CLAIM 2. PETITIONER’S TRIAL ATTORNEYS WERE BURDENED WITH ACTUAL CONFLICTS OF INTEREST ON ACCOUNT OF THEIR REPRESENTTION OF TWO OF THE PRIMARY WITNESSES THAT TESTIFIED AGAINST PETITIONER; THESE CONFLICTS VIOLATED PETITIONER'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, EIGHTH AMENDMENT RIGHTS TO A RELIABLE PENALTY HEARING AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

CLAIM 3. THE STATE OF WASHINGTON VIOLATED WASHINGTON’S DISCOVERY RULES AND THE FUNDAMENTAL REQUIREMENTS OF BRADY V. MARYLAND AND NAPUE V. ILLINOIS BY FAILING TO DISCLOSE MITIGATING AND IMPEACHING EVIDENCE REGARDING TWO JAILHOUSE INFORMANT WITNESSES AND BY INVITING ONE OF THESE INFORMANTS TO PRESENT FALSE AND MISLEADING TESTIMONY, THEREBY VIOLATING PETITIONER’S SIXTH AMENDMENT RIGHT TO COUNSEL, EIGHTH AMENDMENT RIGHTS TO A RELIABLE PENALTY HEARING AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

CLAIM 4. AFTER MEETING WITH SPOKANE POLICE DETECTIVES INVESTIGATING THE CASE AGAINST PETITIONER, ONE JAILHOUSE INFORMANT SOUGHT TO OBTAIN, AND ACTUALLY OBTAINED, INCRIMINATING INFORMATION FROM PETITIONER EVEN THOUGH PETITIONER HAD ALREADY BEEN CHARGED AND WAS REPRESENTED BY COUNSEL, THEREBY VIOLATING PETITIONER’S FIFTH AMENDMENT RIGHT TO REMAIN SILENT, SIXTH AMENDMENT RIGHT TO COUNSEL AND TO EFFECTIVE ASSISTANCE OF COUNSEL, EIGHTH AMENDMENT RIGHTS TO A RELIABLE PENALTY HEARING AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

CLAIM 5. THE TRIAL COURT CONDUCTED NUMEROUS HEARINGS AND CONFERENCES IN PETITIONER’S ABSENCE, THEREBY VIOLATING PETITIONER’S FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHT TO BE PRESENT AT ALL CRITICAL STAGES OF HIS TRIAL, SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL, SIXTH AMENDMENT RIGHT TO CONFRONTATION AND CROSS-EXAMINATION, EIGHTH AMENDMENT RIGHTS TO A RELIABLE PENALTY HEARING AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

CLAIM 6. PETITIONER RECEIVED DEFICIENT LEGAL REPRESENTATION DURING THE GUILT PHASE OF HIS TRIAL, IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

CLAIM 7. ONE OF THE JURORS SEATED IN PETITIONER’S TRIAL COMMITTED MISCONDUCT AND VIOLATED THE COURT’S INSTRUCTIONS WHEN SHE DEBATED CERTAIN ISSUES REGARDING PETITIONER’S CASE AND DISCUSSED IMPORTANT ASPECTS OF THE EVIDENCE PRESENTED AT TRIAL WITH MEMBERS OF HER FAMILY BEFORE ALL OF THE EVIDENCE WAS IN, THEREBY VIOLATING PETITIONER’S SIXTH AMENDMENT RIGHT TO A FAIR AND IMPARTIAL JURY, EIGHTH AMENDMENT RIGHTS TO A RELIABLE PENALTY HEARING AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

CLAIM 8. THE PROSECUTOR COMMITTED MISCONDUCT BY POSING IMPROPER AND INFLAMMATORY QUESTIONS TO PETITIONER'S SISTER AND BY MAKING IMPROPER ARGUMENTS, THEREBY VIOLATING PETITIONER’S EIGHTH AMENDMENT RIGHTS TO A RELIABLE PENALTY HEARING AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

CLAIM 9. THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY THAT THE TERM "REASONABLE DOUBT" COULD BE EQUATED WITH "ABIDING FAITH," THEREBY VIOLATING PETITIONER’S FIFTH AND SIXTH AMENDMENT RIGHT TO A JURY DETERMINATION THAT HE IS GUILTY OF EVERY ELEMENT OF THE CRIME WITH WHICH HE IS CHARGED BEYOND A RESONABLE DOUBT, EIGHTH AMENDMENT RIGHTS TO A RELIABLE PENALTY HEARING AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

CLAIM 10. PETITIONER RECEIVED DEFECIENT LEGAL REPRESENTATION DURING HIS APPEAL, IN VIOLATION OF HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

CLAIM 11. THE TRIAL COURT IMPROPERLY EXCLUDED EVIDENCE OF DAWNYA CALBREATH’S STATEMENTS REGARDING THE DEATH PENALTY, THEREBY VIOLATING PETITIONER’S EIGHTH AMENDMENT RIGHTS TO A RELIABLE PENALTY HEARING AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

CLAIM 12. THE TRIAL COURT’S PENALTY PHASE INSTRUCTIONS WERE UNCONSTITUTIONALLY VAGUE AND CONFUSING AND LIMITED THE JURY’S CONSIDERATION OF MITIGATING CIRCUMSTANCES, THEREBY VIOLATING PETITIONER’S EIGHTH AMENDMENT RIGHTS TO A RELIABLE PENALTY HEARING AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

CLAIM 13. THE TRIAL COURT REFUSED TO INSTRUCT THE JURY ON THE LESSER CHARGE OF FELONY MURDER, THEREBY VIOLATING PETITIONER'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

CLAIM 14. PETITIONER RECEIVED DEFICIENT LEGAL REPRESENTATION DURING THE PENALTY PHASE OF HIS TRIAL, IN VIOLATION OF PETITIONER'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, EIGHTH AMENDMENT RIGHTS TO A RELIABLE PENALTY HEARING AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

CLAIM 15. PETITIONER WAS PREJUDICED BY EACH OF THE ERRORS LISTED ABOVE. MOREOVER, PETITIONER HAS IDENTIFIED AN ACCUMULATION OF ERRORS SUCH THAT PETITIONER’S TRIAL PROCEEDINGS WERE FUNDAMENTALLY UNFAIR, THEREBY VIOLATING PETITIONER’S EIGHTH AMENDMENT RIGHTS TO A RELIABLE PENALTY HEARING AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

CLAIM 16. THE WASHINGTON STATE SUPREME COURT’S PROPORTIONALITY REVIEW PROCESS IS STANDARDLESS AND PROVIDED PETITIONER NO NOTICE OF THE REVIEW THAT WOULD ULTIMATELY BE CONDUCTED IN HIS CASE, THEREBY VIOLATINGHIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW. MOREOVER, THE REVIEW DOES NOT GUARD AGAINST THE ARBITRARY IMPOSITION OF THE DEATH PENALTY, IN VIOLATION OF THE EIGHTH AMENDMENT RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

CLAIM 17. EXECUTION BY HANGING CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AMENDMENT. PUNISHMENT PURSUANT TO NEWLY-AMENDED RCW WOULD VIOLATE THE EX POST FACTO AND BILL OF ATTAINDER CLAUSES OF THE FIFTH AMENDMENT IF APPLIED TO PETITIONER IN THIS CASE.

CLAIM 18. EXECUTION BY LETHAL INJECTION CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AMENDMENT, AND THE EX POST FACTO AND BILL OF ATTAINDER CLAUSES OF THE FIFTH AMENDMENT, IF APPLIED TO PETITIONER IN THIS CASE.

IV. FACTUAL AND LEGAL SUPPORT

6.1. The factual claims and legal arguments that support the claims set forth in Section V are fully set forth in Petitioner's Memorandum in Support of Petition for Writ of Habeas Corpus. These factual claims and legal arguments are hereby incorporated by reference.

VII. EXHAUSTION

7.1. Consistent with 28 U.S.C. § 2254(b), all grounds for relief raised in this first amended petition for a writ of habeas corpus have previously been raised before the Washington Supreme Court. See State v. Pirtle , Washington Supreme Court Cause No. 60661-7; In re Pirtle , Washington Supreme Court Cause No. 64300-8.

VIII. RELIEF REQUESTED

Wherefore, Petitioner Blake Pirtle prays that this Court:

8.1. Permit Petitioner to file this First Amended Petition for Writ of Habeas Corpus consistent with the time limits set forth in 28 U.S.C. § 2244.

8.2. Permit Petitioner to amend this Petition to include any additional claims or allegations not presently known to him or his counsel, that are identified or uncovered in the course of review, discovery, investigation, and litigation of this habeas corpus petition.

8.3. Require Respondent to file an answer to this Petition in the form prescribed by Rule 5 of the Rules Governing § 2254 Cases in the United States District Court, identifying all state proceedings conducted in Petitioner’s case, including any proceedings that have not been recorded or transcribed, and specifically admitting or denying the factual allegations set forth in this Petition.

8.4. Permit Petitioner to respond to any affirmative defenses raised by Respondent in his Answer.

8.5. Require Respondent to bring forth and file with this Court accurate and complete copies of all documents and proceedings relating to Petitioner’s conviction and sentence, including the records and transcripts in State v. Pirtle , Spokane County Superior Court Cause No. 92-1-00955-3; State v. Pirtle , Washington State Supreme Court Cause No. 60661-7; and In Re Pirtle , Washington State Supreme Court Cause No. 64300-8.

8.6. Permit Petitioner to utilize the procedures for discovery in Habeas Corpus Rule 5, and Fed. R. Civ. P. 26-37, to the extent necessary to fully develop and identify the facts supporting this Petition, and any defenses thereto raised by Respondent’s Answer.

8.7. Conduct an evidentiary hearing to resolve any factual disputes raised in relation to the claims in this Petition, by Respondent’s answer to this Petition, or by Petitioner’s Response to any of the affirmative defenses raised in Respondent’s Answer.

8.8. Allow Petitioner sufficient time to brief the issues of law raised by this Petition.

8.9. Issue a writ of habeas corpus to direct Respondent to release the petitioner from custody, unless he is given a new trial or new proceedings are conducted to cure all constitutional defects in the state proceedings that resulted in Petitioner’s present convictions and death sentence.

8.10. Grant such other and further relief as may be appropriate.

DATED this ____ day of May 1999.

Respectfully submitted,

Attorneys for Blake Pirtle

 

 

___________________________________

TODD MAYBROWN

Allen, Hansen & Maybrown

 

 

___________________________________

JAMES LOBSENZ

Carney, Badley, Smith & Spellman

VERIFICATION

Todd Maybrown states as follows:

1. I am an attorney appointed to represent Blake Pirtle in this habeas corpus action.

2. To avoid unnecessary delay in the filing of this Petition, I am verifying the petition on Petitioner’s behalf.

3. Based on my review of the state court record, I know all of the facts described in this Petition and verify them to be true.

4. Petitioner Blake Pirtle has reviewed Petitioner’s Placeholder Petition and hasprovided a signed Verification that demonstrates that Petitioner approves of the filing of this Petition.

I swear under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

DATED this ____ day of May, 1999 at Seattle, Washington.

______________________________

Todd Maybrown

Attorney for Petitioner Blake Pirtle

CLAIM 13. THE TRIAL COURT INSTRUCTED THE JURY NOT TO CONSIDER SYMPATHY WHEN DECIDING WHETHER PETITIONER SHOULD BE EXECUTED, THEREBY VIOLATING PETITIONER’S EIGHTH AMENDMENT RIGHT TO A RELIABLE PENALTY HEARING AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

CLAIM 13. THE TRIAL COURT INSTRUCTED THE JURY NOT TO CONSIDER SYMPATHY WHEN DECIDING WHETHER PETITIONER SHOULD BE EXECUTED, THEREBY VIOLATING PETITIONER’S EIGHTH AMENDMENT RIGHT TO A RELIABLE PENALTY HEARING AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.14. THE QUESTION POSED TO THE JURY, BASED UPON RCW 10.95.060(4), IS UNCONSTITUTIONALLY VAGUE AND CONFUSING, THEREBY RESULTING IN A DEATH PENATLY PROCESS THAT IS ARBITRARY AND CAPRICIOUS AND IN VIOLATION OF PETITIONER’S EIGHTH AMENDMENT RIGHT TO A RELIABLE PENALTY HEARING AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

Checklist

  1. THE ANTI-TERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996 ("AEDPA")
    • Pub. L. 104-32, 110 Stat. 1214 (effective April 24, 1996).
    • 28 U.S.C. §§ 2244-66.
    • STATUTE OF LIMITATIONS :
      • The AEDPA sets a one-year limitation period in all non-capital cases. See 28 U.S.C. § 2244(d)(1).
      • The period runs from the latest of several events, typically the end of direct review.
      • The limitations period is tolled when person is pursuing "properly filed" post-conviction relief. See generally Lovasz v. Vaughn , 134 F.3d 146, 147 (3rd Cir. 1998); Tinker v. Hanks , 172 F.3d 990 (7th Cir. 1999); Dictado v. DuCharme , --- F.3d ---, 1999 WL 646953 (9th Cir., August 26, 1999).
      • These provisions raise interesting issues regarding equitable tolling and due process. See, e.g., Calderon v. United States District Court , 163 F.3d 530 (9th Cir. 1998) (en banc) ("Kelly "); Calderon v. U.S. Dist. Court for Eastern Dist. of California , 112 F.3d 386, 390-91 (9th Cir. 1997) ("Beeler ").
    • EXHAUSTION OF CLAIMS IN STATE COURT
      • The exhaustion requirement is now codified in 28 U.S.C. § 2254(b)(1).
      • The federal court may deny relief on the merits, despite the petitioner's failure to exhaust. See 28 U.S.C. § 2254(b)(1).
      • The state may waive the exhaustion requirement -- but only expressly. See 28 U.S.C. § 2254(b)(1).
    • EVIDENTIARY HEARINGS IN FEDERAL COURT
      • 28 U.S.C. § 2254(e) provides:
        1. In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
        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 unless the applicant shows that --
          1. the claim relies on --
            1. a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
            2. a factual predicate that could not have been previously discovered through the exercise of due diligence; and
          2. 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.
      • Few courts have interpreted these provisions.
      • Perhaps the most important question will be: What does it mean to say that an "applicant failed to develop" a claim in the state court? The federal courts have uniformly held that a petitioner cannot be said to have "failed to develop" the factual bases for a claim unless the undeveloped record is a result of his own decision or omission. See, e.g., Cardwell v. Greene , 152 F.3d 331, 337-38 (4th Cir. 1998), cert. denied , --- U.S. ---, 119 S.Ct. 587, 142 L.Ed.2d 491 (1998); McDonald v. Johnson , 139 F.3d 1056 (5th Cir. 1998); Love v. Morton , 112 F.3d 131 (3rd Cir. 1997). As a general proposition, section 2254(e)(2) should not preclude an evidentiary hearing in federal court where an applicant has diligently sought to develop the factual basis of a claim for habeas relief, but has been denied the opportunity to do so by the state court. See generally Jones v. Wood , 114 F.3d 1002, 1009 (9th Cir. 1998) (applicant did not fail to develop the claim); Baja v. DuCharme , --- F.3d ---, 1999 WL 591824 (9th Cir., August 9, 1999) (applicant did fail to develop the claim).
    • STANDARD FOR ADJUDICATION
      28 U.S.C. § 2254(d) provides:
      • An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court 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
        1. 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; or
        2. resulted in a decision that was based on an unreasonable determination of the facts In light of the evidence presented in the State court proceeding.
      • Although the relevant provision is sometimes said to require "deference" to even erroneous state court determinations of law and of mixed questions of law and fact, the relevant provision of the statute does not contain the word "deference," does not appear to require substantive deference, and might be unconstitutional if it did.
      • The circuit courts have reached varied, and somewhat conflicting, results when interpreting these provisions. See, e.g., O'Brien v. Dubois , 145 F.3d 16, 21-23 (1st Cir. 1998); Cardwell v. Greene , 152 F.3d 331, 339 (4th Cir.), cert. denied , --- U.S. ---, 119 S.Ct. 587, 142 L.Ed.2d 491 (1998); Drinkard v. Johnson , 97 F.3d 751, 767-68 (5th Cir. 1996), cert. denied , 520 U.S. 1107, 137 L. Ed. 2d 315, 117 S.Ct. 1114 (1997); Lindh v. Murphy , 96 F.3d 856, 869, 887 (7th Cir. 1996), rev'd on other grounds , 521 U.S. 320, 138 L.Ed.2d 481, 117 S.Ct. 2059 (1997); Delgado v. Lewis , 181 F.3d 1087 (9th Cir. 1999); Neelley v. Nagle , 138 F.3d 917, 923 (11th Cir. 1998). The Supreme Court is likely to weigh in on the subject in Williams v. Taylor , Case No. 98-8384.
    • RETROACTIVITY OF THE AEDPA (and its draconian provisions)
      • The AEDPA does not apply retroactively to habeas cases that were pending before April 24, 1996. See Lindh v. Murphy , 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
    • APPEALABILITY
      • A "certificate of appealability" must be obtained to pursue an appeal.
      • The standard is almost identical as standard for a "certificate of probable cause." But see Williams v. Calderon , 83 F.3d 281, 286 (9th Cir. 1996) ("The standard for obtaining a certificate of appealability under the Act is more demanding than the standard for obtaining a certificate of probable cause under the law as it existed prior to enactment of the Act.")
      • The AEDPA seems to say that only the Supreme Court or a circuit judge may issue the certificate, although most courts have ruled that a district judge may issue a certificate in the first instance. See generally United States v. Asrar , 116 F.3d 1268, 1270 (9th Cir. 1997).
      • The certificate must list specific issues to be raised on appeal. See Hiivala v. Wood , --- F.3d ---, 1999 WL 705101 (9 th Cir., Sept. 13, 1999); Lackey v. Johnson , 116 F.3d 149, 151 (5th Cir. 1997).
    • ABUSIVE AND SUCCESSIVE PETITIONS
      • The AEDPA establishes very strict limitations on the filing and consideration of abusive and successive petitions. See Greenawalt v. Stewart , 105 F.3d 1268, 1277 (9th Cir. 1997) (discussing 28 U.S.C. § 2244(b)).
      • The "gatekeeping" provision is constitutional, largely because an original successor can be filed in the Supreme Court. See Felker v. Turpin , 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996).
    • DEATH PENALTY CASES
      • Chapter 154 includes special rules for death penalty cases.
      • The State must "opt in" to obtain benefit of the provisions under 28 U.S.C. §§ 2261-66. These provisions set forth a very short limitation period (six months) and a very short timetable for court action.
      • As of today, no court has held that any state has satisfied the "opt-in" provisions to obtain the benefits under Chapter 154. See generally Carter v. Johnson , 110 F.3d 1098, 1104 (5th Cir. 1997) (Texas); Death Row Prisoners of Pennsylvania v. Ridge , 106 F.3d 35 (3d Cir. 1997) (Pennsylvania); Scott v. Anderson , 958 F.Supp. 330, 332-33 (N.D. Ohio 1998) (Ohio); Booth v. Maryland , 940 F.Supp. 849, 853-53 (D.Md. 1996) (Maryland); Austin v. Bell , 927 F.Supp. 1058, 1061-62 (M.D. Tenn. 1996) (Tennessee).
      • During 1998, the Supreme Court reversed as non-justiciable a district court's ruling preliminarily enjoined California from attempting to invoke any of AEDPA's benefits in death penalty cases. See Calderon v. Ashmus , --- U.S. ---, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998) (reversing Ashmus v. California , 935 F.Supp. 1048 (N.D.Cal. 1996), aff'd , 123 F.3d 1199 (9th Cir. 1997)).