Habeas Claim Not Contradicted by Record Requires Hearing

It used to be that evidentiary hearings in habeas corpus cases were the norm since habeas claims are usually based on facts that occurred off the record, and a hearing is a good way to develop the record with those facts. But courts routinely deny hearings now. This case provides insight into why evidentiary hearings in habeas cases are still the preferred method for developing the record.

Willie Benton pleaded guilty in federal court in 2018 to conspiracy to possess with the intent to distribute cocaine under 21 U.S.C. §§ 841(a)(1) and 846. This was because he bought four kilograms of powder cocaine from his co-defendant. Under the plea deal, the government dismissed a second count related to Mr. Benton’s possession of three kilograms of a substance found in a safe in his house, which was later determined by law enforcement to contain cocaine or cocaine base.

When Mr. Benton entered his plea, defense counsel acknowledged that law enforcement’s lab results showed that the substance contained cocaine base but noted that “it didn’t look like crack cocaine” and that he might conduct independent testing. He never did.

However, since counsel ultimately failed to obtain further testing, the presentence report (PSR) treated the substance in the safe as crack cocaine and, under “relevant conduct”—i.e., behavior that neither the defendant nor a jury had found to be true—this dramatically raised the base offense level and sentencing range.

Mr. Benton later filed a postconviction motion under 28 U.S.C. § 2255, claiming that counsel was ineffective for, among other things, failing to independently test the substance in the safe and consult with an expert on drug type and purity. He argued that, had counsel done so, he could have shown that the substance was not crack cocaine, which would have resulted in a lower guidelines range.

The district court denied the motion without an evidentiary hearing, concluding that Mr. Benton could not establish that, but for the failure to test the substance or consult an expert, the outcome of the proceedings would likely have been different. 

Under § 2255(b), an evidentiary hearing is required “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” In other words, a hearing is still the norm in federal habeas corpus cases, unless the record forecloses the claim.

The Sixth Circuit found that Mr. Benton’s claim that counsel was ineffective for failing to determine if the substance was crack cocaine is not contradicted by the record. The court concluded that “because it is plausible that the substance was cocaine base but not crack, which would have resulted in a lower guidelines range, Mr. Benton is entitled to further factual development on his certified ineffective-assistance claim.”

I go into detail about evidentiary hearings in my book Insider’s Guide: Habeas Corpus for Federal Prisoners and how to obtain one. In short, a movant must first allege a claim with sufficient facts that are undisputed by the record. Next, the facts must be specific and not general statements. Finally, a movant must request a hearing; courts rarely grant hearings unless they’re requested, even though the statute says the opposite. Because all these criteria were met in this case, the court remanded for a hearing.

See Benton v. United States, No. 22-3676, 2023 U.S. App. LEXIS 28185 (6th Cir. Oct. 23, 2023).

Dale Chappell is an expert on federal postconviction relief and the author of hundreds of articles and several books on challenging illegal and wrongful convictions and sentences. He is a former staff writer for Criminal Legal News Magazine and the author of the blog zenlawguy.com.

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