It`s no secret that an evidentiary hearing significantly increases your chances of habeas corpus relief. But what does seem to be a big secret is how a state prisoner can obtain that hearing in the federal habeas court. Basically, there are two main concepts at work: Developing the factual basis of the claim, and the determination of those facts by the court. If you`re a state prisoner filing for habeas relief, it`s important to understand this because the process for state prisoners is much more difficult than it is for federal prisoners in federal court.
The Standard for Obtaining an Evidentiary Hearing in Federal Court
The courts recognize three general circumstances when a court must hold an evidentiary hearing on a state prisoner`s habeas petition in federal court:
- If you allege facts, that if true, would entitle you to relief (Schriro v. Landrigan, 550 U.S. 465 (2007));
- Fact-based claims that are non-frivolous and would survive summary dismissal (Blackledge v. Allison, 431 U.S. 63 (1977)); or
- Other reasons beyond your control had prevented you from developing the facts in state court, the state court refused to provide a “full and fair” hearing, or the factual issues weren`t resolved by the state court (Porter v. Zook, 898 F.3d 408 (4th Cir. 2018)).
However, the Antiterrorism and Effective Death Penalty Act (AEDPA) created a huge obstacles for state prisoners in obtaining an evidentiary hearing in federal court:
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 —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence, and
(B) the facts underlying the claim 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.
28 U.S.C. sec 2254(e)(2)
This is the harsh “cause and innocence” (as opposed to the mere cause and prejudice) bar that prevents a federal habeas court from hearing new facts (evidence) that weren`t presented to the state post-conviction court, unless you can show “cause” for not presenting the facts to the state court, and that the new factual argument would prove your innocence by “clear and convincing” evidence. Kemp v. Ryan, 638 F.3d 1245 (9th Cir. 2021).
The purpose of this high bar, the Supreme Court said, is to “prevent federal habeas retrials” of state-court decision. Bell v. Cone, 535 U.S. 685 (2002). And federal courts have given the state courts considerable leeway in determining the factual issue, even when the state court has not expressly addressed the issue. See Campbell v. Vaughn, 209 F.3d 280 (3d Cir. 2000).
Being Unsuccessful Doesn`t Mean You`ve Failed
The Supreme Court made clear that just because you may have been unsuccessful developing the factual basis of your claim in state court doesn`t mean that you`ve “failed” to do so under sec 2254(e)(2). “In its customary and profound sense, `fail` connotes some omission, fault, or negligence on the part of the [petitioner].” Williams v. Taylor, 529 U.S. 420 (2000).
The Court clarified in Williams that “a failure to develop the factual basis of a claim [in state court] is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner`s counsel.” In other words, you don`t “fail” to develop the facts in state court if you tried but the failure wasn`t your fault.
There are also exceptions to AEDPA`s evidentiary hearing bar, under sec 2254(e)(2). Court have held that a failure to develop the facts because the state court interfered with the process avoids the evidentiary hearing bar. Insyxiengmay v. Morgan, 403 F.3d 657 (9th Cir. 2005). They`ve also held that the bar doesn`t apply when a petitioner requested but was denied an evidentiary hearing in state court “at every stage” of the proceedings. Breedlove v. Moore, 279 F.3d 952 (11th Cir. 2002). And if a “full and fair” hearing wasn`t held by the state court, the Supreme Court has said that a federal court should hold an evidentiary hearing if the facts are “in dispute.” Wood v. Milyard, 132 S. Ct. 1826 (2012).
When the AEDPA Bar Doesn`t Apply, Courts Use Pre-AEDPA Standards
If the federal habeas court finds that sec 2254(e)(2) forsn`t apply to bar an evidentiary hearing, the court reverts back to the evidentiary hearing standards that existed before the AEDPA. See Kemp. These standards were adopted by Congress from the Supreme Court`s decision in Townsend v. Sain, 372 U.S. 293 (1963), where the Court established six criteria requiring an evidentiary hearing:
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 no afford the habeas applicant a full and fair fact hearing.
The District Court Has Discretion to Hold an Evidentiary Hearing
Even if you get around the AEDPA`s evidentiary hearing bar, the district court doesn`t have to hold a hearing. See Townsend. This discretion is measured against whether an evidentiary hearing would be “meaningful” to advance your claim. See Campbell.
Should you appeal this decision, the district court`s refusal to hold an evidentiary hearing is reviewed for an “abuse of discretion,” which gives deference to the court`s decision unless it misapplied the law. Conner v. Polk, 407 F.3d 198 (4th Cir. 2005). The court of appeals also factors in whether other procedural bars would have barred relief, in determining the district court`s discretion. See Landrigan (“a federal court must take into account [the AEDPA] standards in deciding whether an evidentiary hearing is appropriate”).
Counsel Must Be Appointed for an Evidentiary Hearing
If you`re granted an evidentiary hearing in federal court, Rule 8(c) of the Section 2254 Rules says that the court “must” appoint counsel if you qualify under the Criminal Justice Act (CJA). If the court fails to appoint counsel, an appeal would result in a reversal for a new evidentiary hearing with counsel appointed. See, e.g., Armstrong v. Kemna, 534 F.3d 857 (8th Cir. 2008).
Developing the Factual Basis of a Claim
Perhaps the Supreme Court said it best about how important it is to develop the facts of your habeas claims: “More often than not, claims of unconstitutional detention turn upon the resolution of contested issues of fact.”
Wingo v. Wedding, 418 U.S. 461 (1974)
Nearly 50 years later, that`s still true. A state prisoner is required to take all reasonable steps to develop the record in state court before moving on to the federal court. The Supreme Court has made clear that it`s the record before the state court at the time of the proceedings being challenged in federal court that matters. Cullen v. Pinholster, 563 U.S. 170 (2011).
The Court also emphasized the principles of comity and finality require that state courts get the first shot at new facts and evidence, and not federal courts. This reasoning has been the core tenet of the AEDPA`s strict time limits on the federal courts. In Shinn v. Martinez Ramirez, 2022 U.S. LEXIS 2557 (May 23, 2022), the Court held that because sec 2254(e)(2) is a statute, habeas petitioners are required to meet all of the criteria to excuse the evidentiary hearing bar — unless both the petitioner and his lawyer are not “at fault” for failing to develop the factual basis of the claim in state court.
Federal Court Presume the State Court`s Decision is Correct
The AEDPA also requires the federal court to presume that the state court`s decision on the facts of your claim is correct, until you prove otherwise. Under sec 2254(e)(1), “a determination of a factual issue made by a state court shall be presumed to be correct [and the] applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. However, the presumption of correctness takes a backseat if the state court`s decision was “contrary to clearly established federal law” or an “unreasonable determination of the facts,” under sec 2254(d). See Milton v. Miller, 744 F.3d 660 (10th Cir. 2014).
AEDPA`s Procedural Bars Still Apply to Federal Evidentiary Hearings
The AEDPA added another procedural bar to obtaining an evidentiary hearing in the federal habeas court. Even if you can show the need for a hearing, the court must still determine whether your claim would be barred under sec 2254(d). In a similar fashion, the Supreme Court recently held in Brown v. Davenport, 2022 U.S. LEXIS 2096 (Apr. 21, 2022), that sec 2254(d)`s procedural bar is not “subsumed” by a harsher bars for obtaining relief, and that both bars apply. Getting past sec 2254(e)(2) won`t mean much if you can`t also get past sec 2254(d).
A federal court may also hold a limited evidentiary hearing to determine whether a procedural bar applies. This kind of pre-hearing “hearing” isn`t considered a true evidentiary hearing with all the formalities that come with that type of hearing. But the evidentiary hearing bar under sec 2254(e)(2) doesn`t apply to these hearings. Holloway v. Horn, 355 F.3d 707 (3d Cir. 2004).
Other Ways to Develop the Factual Record
If you can`t seem to qualify for an evidentiary hearing in federal court, you can still develop the record for habeas relief through discovery and expanding the record, since the AEDPA didn`t limit any of those procedures. See Section 2254 Rules 6 and 7.
IN CONCLUSION, obtaining an evidentiary hearing in the federal habeas court is difficult for state prisoners. Congress and the courts have thrown some formidable barriers in the way, but they`re not impossible to get around. The key is to show why you were prevented from developing the record in state court, or to show why the AEDPA`s bar to a hearing doesn`t apply to your case.
Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. Follow his blog at www.zenlawguy.com and on Twitter at @zenlawguy.