Tag Archives: Section 2254

Federal Habeas Corpus: How to Raise an Actual Innocence Claim

Believe it or not, someone proving they`re “actually innocent” of their criminal offense is not enough to win federal habeas corpus relief. That`s because actual innocence, by itself, is not a constitutional violation to allow for federal habeas relief. Instead, it`s only the first step toward relief, and there must also be an underlying constitutional claim. Here`s how to raise a successful actual-innocence habeas claim.

What is Actual Innocence?

Typically, actual innocence arises after the discovery of new evidence that would create a “sufficient probability” that there`s reasonable doubt as to a habeas petitioner`s guilt. Schlup v. Delo, 513 U.S. 298 (1995). The Supreme Court has also made clear that actual innocence means “factual innocence,” as opposed to mere legal innocence. Bousley v. United States, 523 U.S. 614 (1998).

The different between factual and legal innocence is sometimes not very clear, but two cases provide some guidance. In Waucaush v. United States, 380 F.3d 251 (6th Cir. 2004), the court granted habeas relief where an offense that was purely intra-state, and thus not a federal offense, was a valid factual innocence claim. And in Beavers v. Saffle, 216 F.3d 918 (10th Cir. 2000), the court held that a self-defense argument claim was more of a “legal innocence” claim than factual innocence. What petitioners need to know is that courts rarely grant habeas relief for legal innocence claims.

What counts as “new evidence” is also not entirely settled. “Admittedly, courts have struggled to define what qualifies as new evidence. Some courts treat all evidence as new so long as it was not presented at trial. Other courts maintain that evidence is new only if it was unavailable at the time of trial.” Lowery v. Parris, 819 Fed. Appx. 420 (6th Cir. 2020) (collecting cases for each type of evidence).

But the new evidence isn`t evaluated in a vacuum. The Supreme Court says that “all the evidence” in a case must be considered, both old and new, when weighing an actual innocence claim. House v. Bell, 547 U.S. 518 (2006). And the habeas court isn`t “barred by the rules of admissibility that would govern at trial,” the Court has said. Schlup. However, once the actual innocence claim opens the habeas door for the underlying constitutional claim, any evidence subsequently considered by the court must be admissible under the rules of evidence. Bousley.

The Standard for Proving Actual Innocence

There are two different standards for showing actual innocence in federal habeas corpus. The standard for a first-in-time motion, or one that`s not considered “second or successive” (SOS), is whether “it is more likely than not that no reasonable juror would have convicted” the petitioner. Bousley. This was called the “probable innocence” standard in Schlup.

The actual innocence standard for SOS petitions, however, is much steeper. For a state petitioner, the law requires:

(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence, and

(ii) 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 constitutional error, no reasonable factfinder would have found the [habeas] applicant guilty of the underlying offense.

28 U.S.C. sec 2244(b)(2)(B)

For a federal petitioner, the bar is just as high:

Newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilt of the offense[.]

28 U.S.C. sec 2255(h)(1)

The bar for SOS petitioners is high because a showing by “clear and convincing evidence” is more onerous than the more-likely-than-not standard for a first petition. Clear and convincing evidence is like a two-thirds majority in Congress, whereas more-likely-than-not is like a simple majority or just over 50%. And the Supreme Court noted in Schlup that Congress` use of the word “would,” instead of “could,” in determining that “no reasonable factfinder would have found the applicant guilty,” points to the “likely behavior” of the factfinder (juror or judge), where the word “could” points to the “power” of the factfinder to find someone is innocent. This was an important distinction, the Court said.

It`s also not just the offense of conviction that matter for actual innocence, but also any charges that were dropped as part of the plea deal. “In cases where the government has forgone more serious charges in the course of the plea bargaining, petitioner`s showing of actual innocence must also extend to those charges,” the Court said in Bousley. Congress has since codified this requirement in 18 U.S.C. sec 3296.

What Constitutes an Actual Innocence Habeas Claim?

As I eluded to in the beginning, actual innocence is not a valid habeas claim — at least, not by itself. There must be some underlying constitutional violation related to the actual innocence claim that would allow for federal habeas relief. As the Court said in Schlup: “Schlup`s claim of innocence does not by itself provide a basis for relief. Instead, his claim for relief depends critically on the validity of his [underlying constitutional] claims.”

But that was dicta and the Supreme Court has skated around the question of whether a “freestanding” actual-innocence claim could ever form the basis for habeas relief. One case, again in language that was not the holding of the Court, provided a clear suggestion that it would not. In Herrera v. Collins, 506 U.S. 390 (1993), the Court agreed that a petitioner`s actual innocence claim was enough to avoid a procedural bar to habeas relief for his underlying constitutional claim, but rejected any notion that it could be a valid claim itself.

Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. [That is because] this rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution, not to correct errors of fact.

The Court further reasoned that a federal habeas court deciding a factual issue, such as an actual innocence claim, and undoing a state-court decision “would be more disruptive to our federal system than to provide for federal habeas review of freestanding claims of actual innocence.” The Court`s reasoning has not gone without much criticism by scholars and advocates of those wrongfully imprisoned, however.

Instead of habeas relief, the Court said that the “traditional remedy” for actual innocence claims has been “executive clemency.”

Actual Innocence is a Gateway Through a Procedural Bar

The way an actual innocence claim works in federal habeas corpus is that it “serves as a gateway through which a petitioner may pass” to have his otherwise-barred constitutional claims heard. McQuiggin v. Perkins, 569 U.S. 383 (2013). The Court cited several habeas procedural bars that it has excused because of actual innocence, including procedural-default for failing to raise a claim earlier, the bar on SOS petitions, the bar on federal evidentiary hearings, and state procedural bars.

The Court established the standard required to avoid a procedural bar with an actual innocence claim: “A petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” The Court also added that an “unjustified delay” is a factor the habeas court must consider with an actual innocence claim, but didn`t define what that meant.

Where to File an Actual innocence Claim

As with most habeas claims, the starting point is almost always in the federal district court. See secs 2255(a), 2254(a). However, an actual innocence claim in a SOS petition must be authorized by the court of appeals, and must meet the harsher “clear and convincing” standard. secs 2244(b)(2)(B), 2255(h)(1). But don`t forget about the Supreme Court. Both state and federal petitioners may file an original petition for habeas relief in the Supreme Court. For example, in In re Davis, 557 U.S. 952 (2009), the Court agreed that the petitioner`s claim of actual innocence was compelling enough that it “transferred” the habeas petition to the district court for a hearing on the actual innocence claim based on newly discovered evidence. While the opinion was just one short paragraph, the Court reaffirmed what it said in Schlup:

Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of the criminal justice system.

IN CONCLUSION, the bar for actual innocence habeas claims is rather high. The key is to understand that an actual innocence claim is the trailblazer for the underlying constitutional claim. Put the proper emphasis on each claim and you`ll succeed with an actual innocence habeas claim in federal court.

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.

Federal Habeas Corpus: How to File a Second or Successive Habeas Petition for State Prisoners

In the name of finality, federal courts are reluctant to undo criminal judgments of state courts, especially repeated attempts by prisoners under habeas corpus. When the Antiterrorism and Effective Death Penalty Act (AEDPA) came along in 1996, Congress slammed the door shut for more than one shot at habeas relief in the federal courts. Let`s go over what it takes to get “another bite at the apple” in federal court.

What is a Second or Successive Habeas Petition?

Not every habeas petition by a state prisoner under 28 U.S.C. sec 2254 after a first petition is denied will be a SOS petition. In Magwood v. Patterson, 561 U.S. 320 (2010), the Supreme Court held that a habeas petition which attacks a new judgment is not a SOS petition. This means that if you had a successful habeas petition earlier, a petition attacking the new criminal judgment would not be a SOS petition.

However, the courts are split over whether a petition attacking a new judgment can also raise issues that had existed at the time of the first petition. Some courts allow an attack on not only the new judgment, including any errors that existed at the time of the old judgment. Some don`t. See Insignares v. Sec`y Dept. of Corr., 755 F.3d 1253 (11th Cir. 2014).

If the court dismissed your first petition without prejudice, then another petition raising the same claims would not be a SOS petition. The term “without prejudice” simply means there`s nothing against you filing another petition. And certain claims might not have been “ripe” at the time when the first habeas petition was filed, and may be raised in another petition once ripe. An example of this would be a claim where a state prisoner serving a death sentence raises a claim that his mental condition has deteriorated over the years and he`s now unable to be executed.

The term “second or successive” may seem redundant but it`s actually two legal terms with different meanings in federal habeas corpus. The term “second” is another term for “abuse of the writ,” which happens when a petitioner should have raised the claim earlier but did not. This “sandbagging” was a tactic used by prisoners, prior to the AEDPA, to keep an option open for a later challenge if the first petition failed. The term “successive” refers to a petition that has the same claims as an earlier petition that was denied. Before the AEDPA, this was a common way of “appealing” denied habeas petitions. See Kulhman v. Wilson, 477 U.S. 436 (1986) (explaining these terms).

Authorization to File a SOS Habeas Petition is Jurisdictional

The AEDPA added a provision to the federal habeas statutes that any SOS petition must be authorized by the court of appeals before it`s filed in the district court:

Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate courts of appeals for an order authorizing the district court to consider the application.

28 U.S.C. sec 2244(b)(3)(A)

This provision is a jurisdictional bar preventing the district court from even hearing the petition. Pratt v. United States, 129 F.3d 54 (1st Cir. 1997) (“a district court, faced with an unapproved second or successive habeas petition, must either dismiss it or transfer it to the appropriate court of appeals”).

Use the Form Provided and Attach Your Petition

Every court of appeals uses a form for requesting permission to file a SOS habeas petition, and it`s provided by the clerk at no cost. This form is actually the “motion” that is filed to invoke the provisions under sec 2244. It`s purpose is for the clerk to screen your request, without having to dig through a long motion drafted from scratch. Some courts have local rules that require the form, and some say it`s fine to forgo the form if you follow the same format with your own motion.

Even if it`s not required, it`s a good idea to attach your proposed SOS petition for the district court to your form filed in the court of appeals. Anything you file with your application may be considered in support of authorizing another petition.

When is a SOS Habeas Petition Considered “Filed?”

Most courts consider your SOS petition “filed” when you file your motion (the application) in the court of appeals for authorization. In Gilmore v. Berghuis, 2015 U.S. App. LEXIS 4501 (6th Cir. Jan. 30, 2015), the court provided some valid reasons why attaching your proposed SOS petition to the form is a good idea. The government had argued that the application wasn`t the actual petition and so it wasn`t “filed” until the approved petition was filed in the district court. But the court disagreed, pointing to 28 U.S.C. sec 2242, saying a habeas petition is “filed” when it is addressed to a judge on the court of appeals with an explanation of why it could not have been filed in the district court. The form provided that explanation, the court said, and the attached petition was filed when the form was filed.

But in Fierro v. Cockrell, 294 F.3d 674 (5th Cir. 2002), the court held that “a motion for authorization to file a successive petition is not itself an application for a writ of habeas corpus. As a consequence, the filing of such a motion does not satisfy the one-year statute of limitations under the AEDPA” until the petition is filed in the district court. The court further noted that it`s the rule in the Fifth Circuit that the proposed SOS petition is attached to the form filed in the court of appeals. In re Epps, 127 F.3d 364 (5th Cir. 1997).

There`s a Time Limit to File a SOS Habeas Petition

Under the AEDPA, there`s a one-year time limit for any habeas petition filed by a state prisoners. sec 2244(d). This includes any SOS petition authorized by the court of appeals. But unless the petition, if authorized, would “clearly” be out of time, most courts say it`s best left up to the district court to determine the timeliness of a SOS petition. See In re McDonald, 514 F.3d 539 (6th Cir. 2008).

A SOS Habeas Petition is Screened by Both Courts

Your request to file a SOS petition in the district court gets screened by both the court of appeals and then the district court, to see if it meets the strict criteria to file such a petition. First, the court of appeals is required to dismiss any claims that were “presented in a prior application.” sec 2244(b)(1). Next, the court determines whether the motion makes a prima facie showing that it meets the SOS criteria under sec 2244(b)(2) (see below). Finally, this determination is made by a panel of three judges and “not later than 30 days.” sec 2244(b)(3)(C)-(E). However, the 30-day limit is not a hard rule and courts have almost always gone beyond that deadline. Ezell v. United States, 778 F.3d 762 (9th Cir. 2015).

Criteria for Filing a SOS Habeas Petition

There are two narrow circumstances that allow a SOS petition in the district court:

Sec 2244(b)(2)(A): This provision allows a claim that “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”

There are two parts to this criterion. First, it has to be a new constitutional decision by the Supreme Court that is substantive. A ruling that declares part of a criminal law unconstitutional and would now prohibit certain people from being punished by that law is one example of a substantive and retroactive Supreme Court ruling. See Johnson v. United States, 576 U.S. 591 (2015), for an example of such a case.

Second, the Supreme Court itself must make its decision retroactive on collateral review. While the Court hardly ever says whether its decision is retroactive, if the Court applies the decision to a collateral review case it`s considered retroactive. See Tyler v. Cain, 593 U.S. 656 (2001).

Sec 2244(b)(2)(B): This provision allows a claim where “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence, and the facts under 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 constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”

In other words, you have to provide new evidence, that you could not have found earlier through reasonable efforts, which would convince the court by more than a 50/50 chance that you`re not guilty of the offense. A case where the prosecutor withheld crucial evidence that would have undermined the jury`s finding of guilt would be a successful claim under this provision. See In re Jackson, 12 F.4th 604 (6th Cir. 2021).

Challenging the Erroneous Transfer of a Non-SOS Habeas Petition

If you filed a habeas petition in the district court and the court transfers it to the court of appeals as am unauthorized SOS petition, you don`t appeal the district court`s transfer order. Instead, you must file in the court of appeals where the petition was transferred to a “motion to remand,” asking the court to send your petition back to the district court because it`s not a SOS petition.

Appealing the Denial of a SOS Habeas Petition

If your application to file a SOS petition was denied by the court of appeals, you may not appeal that decision nor can you file a motion for a rehearing. sec 2244(b)(3)(E). However, you can “suggest” that the court rehear its denial, since the court has the power to do this on its own. In re Johnson, 814 F.3d 1259 (11th Cir. 2016). But if the district court denies your approved SOS petition, it`s a normal appeal as in any other habeas case.

IN CONCLUSION, filing a second or successive habeas petition in federal court is not an easy task. There`s lots of steps to take and one wrong step can prevent the chance for any relief, no matter how strong your claims may be. Take time to understand these steps before filing in the courts.

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.

Federal Habeas Corpus: How to Raise a Fourth Amendment Claim

The slam dunk for federal habeas claims, if there exists such a thing, would be a claim that successfully challenges the evidence in a criminal case. By tossing the illegally-obtained evidence, not only would the conviction be overturned but the prosecution wouldn`t have a case for a new trial. The prisoner walks free.

But reality is that successful Fourth Amendment claims are hard to come by. Even with a solid Fourth Amendment claim, pursuing federal habeas corpus relief is not easy. Here`s a look at some successful cases, but first some background.

The Purpose of The Fourth Amendment

The Fourth Amendment to the U.S. Constitution protects people from “unreasonable searches and seizures” by the government. The key word here is unreasonable, which the courts have stressed is the measuring stick for Fourth Amendment violations. See Davis v. United States, 564 U.S. 229 (2011). Unless a search is unreasonable, the courts usually let it stand.

The remedy for a Fourth Amendment violation is what`s called the “exclusionary rule,” a judge-made rule that allows a court to suppress evidence obtained in violation of the Fourth Amendment. However, the remedy isn`t aimed at righting the wrong against the defendant prosecuted by that evidence. Instead, the rule`s sole purpose is “to deter future Fourth Amendment violations.” Davis. In other words, the exclusionary rule is designed to punish law enforcement so they won`t do it again. Any windfall for the defendant is merely coincidental. This line of reasoning is important when it comes to Fourth Amendment habeas claims.

Bars to Fourth Amendment Challenges in Federal Habeas Corpus

The Supreme has created a formidable barrier to Fourth Amendment habeas claims:

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 intended at his trial.

Stone v. Powell, 428 U.S. 465 (1976)

The court reasoned that its rule in Stone was necessary because the exclusionary rule wouldn`t have much force in deterring law enforcement if it`s invoked years later in a habeas case. The Court also said that the costs of undoing a conviction through habeas corpus are “comparatively great,” when compared to a direct appeal. Withrow v. Williams, 507 U.S. 680 (1993).

Withrow also held that the rule in Stone is not a jurisdictional bar to habeas relief, and the prosecution could waive or forfeit the “defense.” And the Court emphasized that Stone applies to only Fourth Amendment claims, and refused to extend the bar to other constitutional claims.

Since over 95% of convictions in this country are by way of a guilty plea, another bar to a Fourth Amendment challenge is the guilty plea itself. The Supreme Court discussed the reason for this bar in Haring v. Prosise, 462 U.S. 306 (1983):

When a defendant is convicted pursuant to his guilty plea rather than a trial, the validity of that conviction cannot be affected by an alleged Fourth Amendment violation because the conviction does not rest in any way on evidence that may have been improperly seized. (emphasis added)

Exceptions to Bars on Fourth Amendment Habeas Challenges

Fortunately, there are some exceptions to the rules barring Fourth Amendment habeas challenges. One way around the bar in Stone for Fourth Amendment claims is to reframe the claim as an ineffective assistance of counsel (IAC) claim, arguing that counsel failed to challenge the evidence. In Kimmelman v. Morrison, 477 U.S. 365 (1986), the Supreme Court held that an IAC claim regarding counsel`s failure to challenge the evidence was really a Sixth Amendment right-to-counsel claim, and not a “direct” Fourth Amendment claim barred by Stone. Thus, the Court provided a work-around for Fourth Amendment habeas claims using the well-worn path for IAC claims.

Another exception to the Stone Fourth Amendment habeas bar is showing that the state court failed to provide a “full and fair opportunity” to challenge the Fourth Amendment claim, or that there was no opportunity to do so. The Seventh Circuit provided some guidance on what a full and fair opportunity to litigate a Fourth Amendment claim would look like:

A petitioner has had the benefit of such an opportunity [for full and fair litigation of a Fourth Amendment claims] so long as (1) he can clearly apprise the state court of his Fourth Amendment claim along with the factual basis for that claim, (2) the state court carefully and thoroughly analyzed the facts, and (3) the court applied the proper constitutional case law to those facts.

Miranda v. Leibach, 394 F.3d 984 (7th Cir. 2005)

However, the court said the test is whether there was an “adequate opportunity to pursue the claim in the state court system,” not whether the challenge was successful or the court`s decision was wrong.

An example of no full and fair opportunity to litigate a Fourth Amendment claim happens when the state court uses the wrong standard of review for the claim. Herrera v. LeMaster, 301 F.3d 1192 (10th Cir. 2002) (en banc). Another would be when the state court has completely ignored the claim. Agee v. White, 809 F.2d 1487 (11th Cir. 1987). There are lots of ways a state court can prevent a full and fair opportunity to litigate a Fourth Amendment claim.

A work-around also exists for raising Fourth Amendment habeas claims after a guilty plea, and it`s like the one in Kimmelman: You must challenge the knowing and voluntary nature of the guilty plea and show that counsel`s advice to plead guilty, despite the Fourth Amendment violation, affected your decision to plead guilty. Tollett v. Henderson, 411 U.S. 258 (1973).

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in [Supreme Court cases dealing with IAC claims].

While Kimmelman allowed that counsel`s failure to challenge the Fourth Amendment violation created a ground for habeas relief, Tollett also requires a showing that counsel`s advice to plead guilty was wrong because of the Fourth Amendment violation. Both claims come back to a Fourth Amendment violation, and both point the finger at counsel — but not directly at the Fourth Amendment violation.

Successfully Challenging Fourth Amendment Violations for State Petitioners

Here`s an example of a successful Fourth Amendment habeas claim by a state petitioner. In Bostick v. Peters, 3 F.3d 1023 (7th Cir. 1993), the petitioner filed for federal habeas relief, under 28 U.S.C. sec 2254, claiming that the drug evidence was obtained in violation of the Fourth Amendment. While the district court ruled that the claim was barred by Stone, the court of appeals found that the state court had prevented a full and fair opportunity to litigate the claim in state court and reversed the district court.

The court established a two-step process for determining whether the state court provides a full and fair opportunity to a petitioner: “[1] whether the state procedural mechanism, in the abstract, presents the opportunity to raise a Fourth Amendment claim, and [2] whether the claim in question was in fact frustrated by a failure of that mechanism.”

The state court had a rule that had prevented the petition from developing his Fourth Amendment claim, and this “unanticipated and unforeseeable application of a rule on appeal prevented the state courts from properly considering the merits of the petitioner`s claim,” the court concluded. “Indeed, if Fourth Amendment claims fall on deaf ears in the state courts and defendants are then precluded from raising their claims on collateral review, the efficacy of the exclusionary rule in deterring future Fourth Amendment violations would be undermined.”

Successfully Challenging Fourth Amendment Violations for Federal Petitioners

For federal petitioners, Fourth Amendment habeas claims are even more difficult, since any claim not raised on direct appeal cannot be raised in a motion under 28 U.S.C. sec 2255, unless “cause and prejudice” are shown. Massaro v. United States, 538 U.S. 500 (2003). But Massaro also held that an IAC claim can provide cause and prejudice to avoid this procedural default.

In United States v. Cavitt, 550 F.3d 430 (5th Cir. 2008), a federal petitioner filing for relief under 28 U.S.C. sec 2255 claimed that his guilty plea wasn`t valid due to counsel`s failure to challenge the drug evidence obtained during an illegal search. While the district court denied relief, stating that Stone barred his Fourth Amendment argument, the court of appeals vacated that decision and found that the IAC claim bypassed the Stone bar. On remand, the district court found that counsel was indeed ineffective and allowed the petitioner to withdraw his guilty plea. See Cavitt v. United States, 2009 U.S. Dist. LEXIS 144833 (E.D. Tex. May 29, 2009).

IN CONCLUSION, Fourth Amendment claims in federal habeas corpus are no doubt complex. There`s lots of obstacles but there`s also ways around those obstacles. Plan your route accordingly and you`ll win federal habeas relief on your Fourth Amendment claim.

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.

Federal Habeas Corpus: Obtaining Relief from Trial Errors

It used to be that a state prisoner could use federal habeas corpus to raise any trial errors in the criminal case that violated the U.S. Constitution or federal law. The federal courts effectively became a venue to retry unfair state cases, the courts complained, and the Supreme Court mostly shut down this practice. Then along came Congress and slammed the door shut with the Antiterrorism and Effective Death Penalty Act in 1996 (AEDPA), codifying those judge-made rules into laws.

Today, trial errors in federal habeas corpus face numerous obstacles under the AEDPA. Relief can often be quite elusive, if you don`t understand these obstacles. Let`s go over some ways of getting around them.

The Different Types of Trial Errors

There are two categories of errors that occur in the course of a criminal trial: Structural and non-structural errors. The Supreme Court has distinguished the two errors this way:

Trial error occurs during the presentation of the case to the jury, and is amenable to harmless-error analysis because it may be qualitatively assessed in the context of other evidence presented in order to determine the effect had on the trial. At the other end of the spectrum of constitutional errors lie structural defects in the Constitution of the trial mechanism, which defy analysis by harmless-error standards. The existence of such defects — deprivation of the right to counsel, for example — requires automatic reversal of the conviction because they infect the entire trial process.

Brecht v. Abrahamson, 507 U.S. 619 (1993)

The prototypical structural error cited by courts is the denial of an attorney in a criminal case, as established in Gideon v. Wainwright, 372 U.S. 335 (1963). Structural errors are rather rare, and the overwhelming majority of errors in trials are considered non-structural or “trial” errors. Medina v. Hornung, 386 F.3d 872 (9th Cir. 2004).

Even if a trial error is a constitutional violation it can still be “harmless,” the Supreme Court said in Chapman v. California, 386 U.S. 18 (1967). The Court established a harmless-error standard for trial errors in Brecht for federal habeas corpus:

Brecht held that a state prisoner seeking to challenge his conviction in collateral federal proceedings must show that the error had a substantial and injurious effect or influence on the outcome of his trial.

Brown v. Davenport, 2022 U.S. LEXIS 2096 (Apr. 21, 2022).

Federal prisoners differ from state in that federal habeas corpus in that a federal prisoner must raise any trial errors on direct appeal, and not habeas corpus, and any claim that was addressed in a direct appeal can`t be relitigated in a motion under 28 U.S.C. sec 2255, the habeas equivalent for federal prisoners. McKay v. United States, 657 F.3d 1190 (11th Cir. 2011).

But a state prisoner can relitigate a trial error that`s not only been rejected on direct appeal, but also one that`s been rejected under post-conviction review in state court. Magwood v. Patterson, 561 U.S. 320 (2010) (recognizing this practice). In effect, state prisoners get a chance to litigate a trial error three different ways.

The State Court`s Decision on Trial Errors

Before bringing a trial error to federal habeas court, you must first “properly exhaust” any state-court remedies, if they`re available and effective to address the error. 28 U.S.C sec 2254(b). This gives the state court the first chance to hear the claim, and the federal courts are required, under the AEDPA, to give the state court`s decision great weight.

This “deference” toward the state court, however, gets pushed aside if the court failed to address your claim. Instead, the federal court reviews your claim de novo, or without consideration of the state court`s decision. See Porter v. McCollum, 558 U.S. 30 (2009), Avena v. Chappell, 932 F.3d 1237 (9th Cir. 2019).

Also be sure that you and your lawyer make every effort to develop the factual basis of your claim in the state post-conviction courts. The Supreme Court recently held, in Shinn v. Martinez Ramirez, 2022 U.S. LEXIS 2557 (May 23, 2022), that when a federal habeas petitioner is at fault for not developing the record, he must meet all of the harsh exceptions listed in sec 2254(e)(2) in order to get an evidentiary hearing in federal court. This includes your lawyer`s errors, the Court said, because any error your lawyer makes is “attributed” to you as your agent.

AEDPA`s Bar to Relief Still Applies

Even if you can show that a trial error had a “substantial and injurious effect” on the outcome of your case to get past Brecht`s harmless-error test, the AEDPA still applies. In Davenport, the Court held that while the harmless-error and AEDPA tests appear to “subsume” each other, they are different hurdles and both must be cleared.

The second hurdle is that a federal court can`t grant habeas relief unless the state court`s decision:

(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.

28 U.S.C. sec 2254(d)

The Supreme Court, in turn, defined the term “unreasonable” in sec 2254(d) this way: “Even if reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court`s determination.” Wood v. Allen, 558 U.S 290 (2010).

“Clearly established federal law” is a holding of the Supreme Court, and not merely dicta or the reasons supporting the Court`s holding. Williams v. Taylor, 529 U.S. 362 (2000). And it`s the habeas court that chooses which holding applies based on the claim, not the case you or the state says should apply. Miller v. Genovese, 994 F.3d 734 (6th Cir. 2021).

A good example of a state-court decision that was contrary to clearly established federal law can be found in Dennis v. Secretary Penn. DOC, 834 F.3d 263 (3d Cir. 2016), where the state prosecutor withheld favorable evidence that someone else committed the murder. The Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963), that a prosecutor`s failure to turn over favorable evidence was an egregious constitutional violation. There are three criteria that must be met to prove a Brady violation: (1) the evidence must be favorable to the accused, (2) it must have been suppressed by the state, and (3) it must be “material” or relevant to guilt or innocence.

The Pennsylvania court, however, added a fourth criterion: That the evidence had to by admissible under the rule of evidence. This extra requirement by the state court rendered its decision contrary to Brady, the federal court said, and granted habeas relief.

As for the “unreasonable determination of the fact” exception, the same “unreasonableness” definition above applies. There are three general circumstances when a state court`s decision would be an unreasonable determination of the facts:


Where the state court failed to make a factual determination it was required to make (Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004)),

Where the state court made an “evidentiary finding” without holding an evidentiary hearing (Jones v. Ryan, 1 F.4th 1179 (9th Cir. 2021)),

Where the state court`s evidentiary hearing wasn`t a “full and fair” hearing (Newman v. Harrington, 726 F.3d 921 (7th Cir. 2013)).

An example of a state-court decision that was an unreasonable determination of the facts to allow the federal court to grant relief was Jones v. Ryan, noted above. This was a death penalty case where counsel spent only a few hours investigating the case and then relied on the state`s expert, instead of hiring his own. When the petitioner lost his case and all of his appeals, he filed for state post-conviction relief. The same trial judge then relied on his own memory to deny post-conviction counsel`s request for an expert and to deny relief without a hearing.

On federal habeas review, it was established that the state court`s failure to appoint an expert prevented the petitioner from even developing his claims, and that the judge`s reliance on his own memory and not holding a hearing was an unreasonable determination of the facts to allow federal habeas relief.

IN CONCLUSION, trial errors come in all shapes and sizes. But the ones that win habeas relief are those that can pass both the harmless-error test and the AEDPA.

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.

Federal Habeas Corpus: The Evidentiary Hearing for State Prisoners

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.