Federal Habeas Corpus: Raising Successful Habeas Claims

Criminal cases are chock full of errors. Judges err, prosecutors err, and of course defense lawyers are far from perfect. But when it comes to federal habeas corpus, not all errors are worth raising. Perhaps the most challenging part of federal habeas corpus might be coming up with claims worthy of arguing for relief.

In my books, Insider’s Guide: Habeas Corpus for Federal Prisoners, and Insider’s Guide: Federal Habeas Corpus for State Prisoners, I go into detail on the following sections about raising successful federal habeas corpus claims. Here, we will touch on some of the major points in my books.

What is a “Claim?”

Before digging through your case to see if you have errors to raise in a habeas corpus petition, first let’s go over what constitutes a “claim” for habeas corpus relief. One court has defined a habeas claim as “the underlying events, rather that the legal arguments advanced to obtain relief from those events.” Branningan v. United States, 249 F.3d 584 (7th Cir. 2001). In other words, a proper claim is the underlying facts about the error, and not so much about the case law in support of the claim.

It’s not that case law isn’t important to your claim — it is! — but to survive federal habeas review, a claim must be factually supported. It’s all about the facts when it comes to federal habeas relief.

While the federal statutes say you may attack your “custody” or “sentence,” courts have not interpreted these words narrowly, and have allowed challenges to both convictions and sentences alike, as both relate to the “custody” of a prisoner in some way. United States v. Bernard, 351 F.3d 360 (8th Cir. 2003) (collecting cases).

However, not every claim related to sentencing or custody is cognizable under federal habeas corpus. For example, a federal prisoner challenging restitution might have a great claim that counsel dropped the ball at the restitution hearing; but because such a claim wouldn’t reduce his time in prison, it’s generally not a “claim” under federal habeas corpus. United States v. Rutigliano, 887 F.3d 98 (2d Cir. 2018).

Categories of Claims

There are four main categories of habeas claims under § 2255(f), with each having certain criteria for relief. Let’s go over each in turn.

The sentence or conviction was imposed in violation of the U.S. Constitution or federal law

By far the most common category of claims is that the conviction or sentence violates the U.S. Constitution or federal law. This is because the most common habeas claim is ineffective assistance of counsel (“IAC”), arguing that defense counsel failed to provide the assistance guaranteed by the Sixth Amendment of the Constitution. For state prisoners, a common claim in addition to IAC is that the state court unreasonably applied “clearly established federal law,” defined as decisions of the U.S. Supreme Court. Often, these issues overlap.

The reason IAC is so common is because the Supreme Court has recognized that these claims are best brought under habeas corpus and not direct appeal. Massaro v. United States, 538 U.S. 500 (2003). This makes sense, because the facts of an IAC claim aren’t usually part of the criminal record, and the best claims are based on facts occurring outside the record. Federal habeas corpus is, especially for federal prisoners, the opportunity to

develop the criminal record with these facts to convince the court to grant relief.

The court was without jurisdiction to impose the sentence

“Jurisdiction” has many different meanings, but here it refers to a district court’s legal authority to impose a sentence on a federal defendant. A common example of federal court not having jurisdiction to enter judgment in a criminal case would be when the indictment fails to charge an offense. While an indictment doesn’t need to be perfect, it must at least state the elements of the charged offense. Without this, a court has no jurisdiction to hear the case. United States v. Harper, 901 F.2d 471 (5th Cir. 1990).

Be aware, though, that the “jurisdiction can be raised anytime” argument only applies to open or pending criminal cases. Jurisdictional claims are still governed by the one-year time limit under  § 2255(f)(1). Williams v. United States, 383 Fed. Appx. 927 (11th Cir. 2010) (collecting cases).

The sentence exceeds the statutory maximum

Another category of claims for federal prisoners is that the sentence for one or more of the offenses exceeds the statutory maximum. While this may seem like an obvious error not likely to happen by an alert judge, it happens more often than expected. When a federal judge imposes a blanket (or “general”) sentence on a federal prisoner to cover all the convictions in a case, sometimes that sentence can exceed the maximum for one of those convictions. You might see this happen with drug and firearms cases, with the statutory maximum for the drugs usually higher than for the firearms.

Subsequent Supreme Court decisions limiting recidivist penalties, like the Armed Career Criminal Act, can also render a sentence over the statutory maximum and open to relief under § 2255. See Johnson v. United States, 135 S. Ct. 2551 (2015).

The “otherwise subject to collateral attack” catch-all category

The last category applying to federal prisoners under § 2255 is the catch-all “otherwise subject to collateral attack” provision. Courts have limited this category to claims that would require relief to prevent a “fundamental miscarriage of justice.” Just like it sounds, this is a high bar to meet.

But it’s not impossible. Courts have held that a prior conviction that was used to enhance a federal sentence that is later vacated could fit under the catch-all category. Cuevas v. United  States, 778 F.3d 267 (1st Cir. 2015). An erroneous mandatory career offender sentence has also been cognizable under the catch-all provision. Narvaez v. United States, 641 F.3d 877 (7th Cir. 2011).

The cumulative effect of multiple errors

In addition to these four categories of claims, there’s also the cumulative-effect-of-errors claim. If an error by itself may not amount to a strong habeas claim, courts have held that the cumulative effect of multiple seemingly harmless errors could be enough to grant habeas relief. Cook v. Foster, 948 F.3d 896 (7th Cir. 2020) (habeas relief granted because of cumulative effect of counsel’s errors). The cumulative-effect claim, however, is not often granted and is commonly included at the end of a motion as a last-ditch effort at relief. Courts also tend to give short attention to such claims, reasoning that since none of these claims separately deserved relief, a combination of them would not require relief. Not all the courts agree on this point, though.

Claim Screening

Both state and federal prisoners must pass through the federal court’s screening of their claims before their habeas case even gets started. See Rules Governing Habeas Corpus Proceedings, Rule 4. This “Rule 4 screening”, as it’s unimaginatively called, isn’t a difficult bar to get over. Really, the court must allow your claims to move forward, unless it “plainly appears” you’re not entitled to relief. Since more than 93% of federal habeas cases are filed pro se, the courts must “liberally construe” the claims and give the pro se petitioner the benefit of the doubt.

This is where the facts come into play. If you give enough facts to support your claims, especially facts of events not in the criminal record, you’ll easily survive Rule 4 screening. You may even get an evidentiary hearing, which is your short-term goal with a habeas proceeding (with being granted relief your long-term goal).

There’s also the issue of which judge hears your habeas case. For state prisoners, this really isn’t an issue because the federal judge hearing the habeas case isn’t the same judge that imposed the sentence and entered the judgment. For federal prisoners, however, this can be a problem. It may seem unfair to allow the same judge who imposed the sentence to decide a § 2255 motion challenging that sentence, but that’s how the committee that wrote the rules wanted it. They said it would be better that way because that’s the judge who knows the case best and he won’t be “misled” by false claims. Carvell v. United States, 173 F.2d 348 (4th Cir. 1949) (explaining the reasoning for this rule).


As you can see, there’s much more to filing federal habeas claims than just amassing the errors in your case. Not all errors lead to good habeas claims — but it only takes one good claim to get relief. Getting a grasp on the procedures for properly raising your claims will go a long way on the road to federal habeas relief.

Got any questions? Let’s talk!

Federal Habeas Corpus: Federal Prosecutors Argue in Supreme Court that Savings Clause Relief Should be Available

August 8, 2022: Jones v. Hendrix, No. 21-857 (S. Ct.)

Even though the government has convinced some federal courts that relief under the savings clause should not even exist for prisoners under 28 U.S.C. § 2255, it has now changed its tune and argued in the Supreme Court that it was wrong and savings clause relief should be made available to prisoners in certain cases.

Interestingly, the government’s position mostly aligns with the more liberal position of the courts in the Fourth and Seventh Circuits, and specifically rejects that of the Tenth and Eleventh Circuits, which have completely cut off any savings clause relief in those courts.

The government’s “argument” in its response brief starts this way and mostly sums up the government’s position in this case:

This case presents the question whether and under what circumstances a federal prisoner who has previously filed a motion under 28 U.S.C. 2255 may file a habeas petition claiming that an intervening decision of statutory interpretation establishes that he was convicted of conduct that is not criminal. Since AEDPA adopted Section 2255(h)’s limits on second or subsequent motions, the government and the lower courts have struggled to reconcile the implications of those limits with Section 2255(e)’s saving clause, which AEDPA left undisturbed.

Initially, the government argued that habeas relief is categorically unavailable for statutory claims. In 1998, after several courts of appeals rejected that “restrictive reading,” Triestman v. United States, 124 F.3d 361, 376 (2d Cir. 1997), the government reconsidered the matter. From 1998 until 2017, the government argued that the saving clause sometimes allows a prisoner to seek habeas relief based on a new decision of statutory interpretation. Most courts of appeals agreed—though they differed somewhat on the circumstances when such relief is available. See Br. in Opp. at 10-11, Ham v. Breckon, No. 21-763 (Feb. 24, 2022) (collecting cases). The Tenth and Eleventh Circuits, however, adopted the categorical position that habeas relief is never available. See McCarthan v. Director of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076, 1099-1100 (11th Cir.) (en banc), cert. denied, 138 S. Ct. 502 (2017); Prost v. Anderson, 636 F.3d 578, 588 (10th Cir. 2011) (Gorsuch, J.), cert. denied, 565 U.S. 1111 (2012). In 2017, the government reconsidered the matter again and returned to that position.

In light of its varying positions on this important and difficult question, the government reexamined the issue anew after this Court granted certiorari in this case. Based on fresh consideration of the statutory text, con-text, and history, the government has determined that neither of its prior positions reflects the best interpretation of Section 2255. The categorical position the government urged below is difficult to reconcile with Section 2255(e)’s text and rests on an overly expansive negative inference from Section 2255(h). But the government’s pre-2017 position was also insufficiently grounded in the text and in important respects too broad.

The position set forth in this brief follows from a natural reading of Section 2255(e), which allows a prisoner to rely on habeas if the Section 2255 remedy “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. 2255(e) (emphasis added). That present-tense language requires an assessment of the adequacy and efficacy of the Section 2255 remedy at the time the prisoner seeks to file a habeas petition, not in the past. And the text and context make clear that the yardstick for measuring Section 2255’s present adequacy and efficacy is the habeas remedy that Section 2255 was adopted to replace. Section 2255(e) thus generally permits reliance on habeas if Section 2255 does not enable consideration of a claim that would be cognizable in habeas.

In other words, the government was wrong all these years and the savings clause should be available for cases where the Supreme Court has interpreted a criminal statute, making the petitioner innocent of the offense or punishment that was imposed.

So, what kind of case would this apply to? A statutory interpretation decision by the Supreme Court is not a constitutional decision for the purposes of filing a second or successive § 2255 motion under § 2255(h)(2). That has left many prisoners hanging in certain courts because they can’t file another § 2255 motion to attack their conviction or sentence, if they’ve already filed on earlier and got denied, and the savings clause has been shut down for these types of claims by most of the courts.

But the government is now urging the Supreme Court to allow the savings clause for these types of claims in all federal courts, and not just the lucky petitioners who happen to be imprisoned in the Seventh or Fourth Circuits.

The Supreme Court had a chance to fix this deep circuit split many times over the years but has always rejected hearing the issue at the last minute. This time they finally granted certiorari to (hopefully) fix the problem.

Ohio Plans to Execute a Man It Knows Is Innocent—Why?

(This post is a repost of an article by Prof. Sarat found here)

I’ve been following Amherst Law Prof Austin Sarat’s posts on the Justia Verdict website for a while, and he always makes me stop and think with the topics he covers. While he often writes about problems with the death penalty, here’s a post that affects all prisoners seeking habeas corpus relief, not just those on death row. (Dale)

Anthony Apanovitch is an innocent man, and the state of Ohio knows it. But it plans to execute him anyway.

Apanovitch is on death row even though DNA evidence conclusively proves that he did not commit the crime for which he has been sentenced to die. He is there because of a shocking combination of prosecutorial misconduct and the desire of some supporters of capital punishment to achieve finality in death cases even if it comes at the expense of justice.

This almost unimaginable situation defies any semblance of justice and simple fairness. Executing the innocent is an American nightmare. It is a nightmare that Apanovitch is living.

The state of Ohio needs to end that nightmare and make sure that it doesn’t commit a state-sanctioned murder.

Capital sentencing has proven to be unreliable not just in Ohio but wherever the death penalty is used in this country.

Over the last fifty years, 190 people have been exonerated and released from death row. Twenty-one of those exonerations resulted from DNA testing. Experts estimate that 4.1% of the 2,436 inmates awaiting execution as of January 1, 2022, are, like Apanovitch, actually innocent.

Add to this list another 20 people executed since 1976 who were, in all probability, also innocent, and the picture of America’s death penalty system looks pretty grim.

Apanovitch’s situation is unique because he seems to be the only person currently awaiting execution where DNA evidence shows that he is innocent. Yet it highlights some of the pathologies that are pervasive in America’s death penalty system.

Let’s look at how those pathologies played out in Apanovitch’s case.

In January 1985, he was convicted of raping and murdering Mary Anne Flynn, a woman whose house he had been painting. The police quickly targeted him and ignored other possible suspects. Such targeting is common in capital cases. It exemplifies what the newspaper columnist Radley Balko calls “tunnel vision.” [I’ve also written on this topic for Criminal Legal News Magazine]

As Balko explains, tunnel vision

is a form of cognitive bias that is common in wrongful convictions and especially in high-profile cases. Tunnel vision… “leads investigators, prosecutors, judges, and defense lawyers alike to focus on a particular conclusion and then filter all evidence in a case through the lens provided by that conclusion.” Instead of following leads until the evidence points to a perpetrator…investigators start with a suspect, then look for evidence to confirm their suspicions. Exonerating evidence and leads pointing to alternate suspects tend to be ignored.

From the start, Apanovitch has maintained his innocence and cooperated in the investigation. After his arrest, he voluntarily provided police hair, saliva, and blood samples. These are hardly things that a guilty person would do. But none of that helped Apanovitch.

Apanovitch was tried and convicted based almost exclusively on circumstantial evidence, and right from the start, the state’s conduct in his case was egregiously wrong. It was more typical of a vendetta than a dispassionate search for justice.

Among other things, the prosecution concealed potentially exculpatory evidence. It tried to link Apanovitch to the crime by claiming that he was the source of fluids found inside Ms. Flynn’s vagina. Yet prosecutors knew that the fluids could have been entirely those of the victim.

The state’s misconduct didn’t end there. The prosecution presented a police detective’s testimony about an allegedly incriminating statement made by Apanovitch that it knew to be false when it was offered.

Prosecutors who do not reveal exculpatory information or correct false witness testimony are common in death cases, though that misconduct may, as it did in Apanovitch’s case, take years to uncover.

Not surprisingly, it plays a substantial role in false conviction cases.

In 2021, The Death Penalty Information Center (DPIC) reported that such misconduct was involved in 69% of all death row exonerations. It found that official misconduct played an important role in securing an erroneous conviction in 10 of the 11 Ohio exonerations that it studied.

The likelihood of such misconduct is especially great in Cuyahoga County, the jurisdiction in which Apanovitch was prosecuted and convicted. As the DPIC noted, “Cuyahoga County prosecutors have a long history of misconduct in capital cases and of stonewalling efforts to release death-row prisoners who have been wrongfully convicted.”

But the most startling injustice in Apanovitch’s case happened years after his trial and conviction. In 2000 the county medical examiner’s office discovered slides with biological material that had been taken from the victim during her autopsy.

When the medical examiner tested it for DNA, he did, he found definitive proof that Apanovitch could not have been the source of the DNA taken from in Ms. Flynn’s vagina. But the state again hid the evidence, even though Apanovitch was pursuing post-conviction relief at the time.

In 2008, the exculpatory DNA evidence finally came to light. Apanovitch then sought a new trial. After a hearing on that request, a trial judge acquitted him on the rape charge and ordered a new trial on the murder charge.

As a result, Apanovitch was released from death row and sent home after almost 32 years on death row.

While he was free, the state appealed the trial judge’s decision. In 2018 the Ohio Supreme Court held that the trial court “lacked subject matter jurisdiction” and sent the case back to that court which, in light of that decision, this time refused Apanovitch’s request for a new trial.

Even by the standards of a legal system awash in Kafkaesque technicalities which sometimes stand in the way of justice, the Ohio Supreme Court decision sets a new mark for heartlessness.

Although no one doubted the accuracy of the DNA results, the supreme court decided that Apanovitch could not use them to prove his innocence. It cited a state law that said DNA could only be used in cases where the defendant requested the testing. The fact that Apanovitch could not have requested testing of evidence that the state had hidden from him didn’t matter.

As the court itself acknowledged, in a monstrous understatement, its decision could be characterized as “unduly formalistic or unfair.”

Nonetheless it made that decision, as Justice Terrance O’Donnell put it, to “ensure the finality of this nearly 34-year-old judgment.” It was time to get on with the business of executing Anthony Apanovitch.

According to an astonishing United States Supreme Court precedent (Herrea v Collins (1993)), executing an innocent person does not violate the Constitution of the United States.

With no judicial remedies available to him, Apanovitch has applied for executive clemency. His application is pending with the Parole Board. How long should it take to clear someone who has conclusively been shown to be innocent? The facts of his case prove that he should be pardoned.

Horrified by what has happened to Apanovitch, several Ohio legislators have introduced a bill to close the DNA loophole.

While its consideration process continues, the Ohio Parole Board must not stand by and allow the state to kill an innocent person. It should recommend to Ohio’s governor that Anthony Apanovitch be pardoned and set free, ending once and for all his nightmare and ours.

Austin Sarat


Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Views expressed do not represent Amherst College.

Is Federal Supervised Release Unconstitutional?

A federal judge and several other law experts argued in a recent law review journal that the way federal supervised release works is unconstitutional. The big problem, they point out, is that someone can be thrown back in prison for years without ever being charged with a crime or given the protections normally given for locking someone up, even without any evidence.

Round and round they go, a BOP perimeter vehicle drives around the federal prison in Terminal Island, California, 24 hours a day

Judge Stefan Underhill, chief judge of the U.S. District Court for the District of Connecticut, with co-author Grace E. Powell, headed up the article in the Virginia Law Review’s online journal. They provided a good case on why the current process for handling federal supervised release violations may be unconstitutional.

I think this passage from the article provides a good gist of what these experts are trying to say:

Those who drafted the Fifth and Sixth Amendments did so with the goal of making it difficult for the government to arbitrarily imprison a person. The current supervised release system offers prosecutors and courts what amounts to an end run around those carefully crafted protections, an expedient route to imprisonment that avoids the inconveniences of obtaining an indictment, affording the right to jury trial, and proving guilt beyond a reasonable doubt. In our view, it is that very expediency that violates the Constitution, harming not only those whose constitutional rights are denied, but also eroding – prosecution by prosecution – the constitutional structure put in place by the framers to protect ordinary citizens from the misuse of government power.

Read the full article here:

Empty Promises at the Guilty Plea Hearing

Slight update to the post, if interested ….

Zen Law Guy

So, I was sitting in a courtroom waiting for a case to be called and I noticed something disturbing. A guy standing at the podium, which happened to be next to my chair, was pleading guilty to a felony when the judge asked him, “Do you understand the terms of your plea agreement?” The guy paused and then asked his lawyer what something in the agreement meant. The lawyer whispered to him, “Don’t worry, we’ll fix it later on.” Happy with that answer, the guy told the judge he was “good” and was whisked away to serve his prison sentence.

Why is this disturbing? Because if the guy’s lawyer doesn’t fix whatever the problem was that made him hesitate before pleading guilty, he faces a rough road to undo that guilty plea. And he likely won’t succeed because he said — on the record in open court — that he…

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