1. HABEAS CORPUS RUNNING THOSE HURDLES AN OVERVIEW OF THE BASICS AND MECHANICS Philip G. Cormier pc@gscboston.com Good Schneider Cormier 83 Atlantic Avenue Boston, MA 02110 617-523-5933 Images courtesy of www.openclipart.orgwww.openclipart.org

2. STATUTES AND RULES 1.28 U.S.C. §§ 2241 – 2255 2.Rules Governing § 2254 Cases in the United States District Court (Ex. A) 3.Federal Rules of Civil Procedure

3. 28 U.S.C. § 2254 (State Prisoners) 2254 (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

4. Intersecting Statutory Provisions and Rules § 2254 is the substantive bullseye. (§ 2255 for federal prisoners). Other important intersecting statutory provisions and rules include: The Application/Petition – 28 U.S.C. § 2242, Rule 2. Filing the Petition – 28 U.S.C. § 1915, Rule 3 (in forma pauperis affidavit). Time to File – 28 U.S.C. § 2244(d), Rule 3. Successive Petitions – 28 U.S.C. §§ 2244(b)(3) and 2244(b)(4), Rule 9. Appeal – 28 U.S.C. § 2253(c), Rule 11.

5. THE HURDLES OF HABEAS CORPUS YOUR CLIENT MUST HAVE A FEDERAL CONSTITUTIONAL CLAIM (or assert a violation of federal law or a treaty of the U.S.). YOU MUST EXHAUST YOUR CLIENT’S CLAIMS. YOUR CLIENT MUST BE IN CUSTODY. BEWARE THE CLOCK – THE ONE-YEAR LIMITATIONS PERIOD. YOU MUST CLEAR 28 U.S.C. § 2254(d).

6. JURISDICTION – COGNIZABLE CLAIMS FEDERAL CONSTITUTIONAL CLAIMS - § 2254(a) Federal Constitutional Violations – Assert in State Courts Make Your Record Early and Often. Indictment (tough but try) Discovery Stages Funds for Indigent Defendants Jury Selection Evidentiary Issues Exclusions of Evidence In Limine Motions Confrontation Issues Jury Instructions Closing Arguments Constitutionalize your arguments. Due Process – It Ain’t Fair! Does a collection of errors make it fundamentally unfair?

7. Constitutional Violations That Don’t Count for Habeas Fourth Amendment Search and Seizure Exclusionary Rule Claims. Stone v. Powell, 428 U.S. 465 (1976) 4 th Amendment Exclusionary Rule Claims may not be pursued for federal habeas relief, unless the defendant was not afforded a full and fair opportunity to litigate her Fourth Amendment claim in state court. Stone’s rule does not apply where the Fourth Amendment issues forms the basis for a different claim, e.g., ineffective assistance of counsel – my trial lawyer never filed a motion to suppress!

8. JURISDICTION-COGNIZABLE CLAIMS NON-CONSTITUTIONAL CLAIMS - § 2254(a) Don’t forget, 2254(a) also includes as a basis for relief: 1. Violations of federal laws E.g., Immigration based habeas petitions. 28 U.S.C. § 2241 2. Violations of Treaties to which the U.S. is a party. E.g., Defendants who are foreign nationals whose treaty rights have been violated.

9. YOU MUST EXHAUST IN STATE COURT!!! 28 U.S.C. § 2254(b)

10. EXHAUSTION 28 U.S.C. § 2254(b) Before federal court, you must exhaust your state court remedies as to all claims being raised. Generally requires that you pursue appeals to the highest state court. In Massachusetts Appeals Court cases, you must seek further appellate review with the SJC to satisfy exhaustion. If you file a mixed petition with exhausted and unexhausted claims, it may be dismissed. Need to go back to state court. Need to request a stay while you go back to state court to exhaust your unexhausted claims.

11. YOUR CLIENT MUST BE IN CUSTODY Does you client have to be incarcerated to be deemed “in custody?” Answer: No. Custody includes: Incarceration. Incarceration as of date petition is filed. On parole. On probation. Subject to consecutive sentences.

12. BEWARE THE CLOCK – ONE YEAR TO FILE (with some wiggle room). 28 U.S.C. § 2244(d)(1) & (2) Starts ticking: 1. DATE JUDGMENT BECAME FINAL BY THE CONCLUSION OF DIRECT REVIEW OR EXPIRATION OF TIME FOR SEEKING DIRECT REVIEW (e.g., 90 days for filing cert. with SCOTUS). 2. DATE ON WHICH THE IMPEDIMENT TO FILING CREATED BY ILLEGAL OR UNCONSTITUTIONAL STATE ACTION IS REMOVED. 3. DATE ON WHICH THE CONSTITUTIONAL RIGHT ASSERTED WAS RECOGNIZED AND MADE RETROACTIVE BY SCOTUS. 4. DATE ON WHICH FACTS SUPPORTING THE CLAIM COULD HAVE BEEN DISCOVERED USING DUE DILIGENCE. NOTE – TIME DURING WHICH POST-CONVICTION CLAIMS CHALLENGING THE JUDGMENT ARE BEING PURSUED IN STATE COURT IS NOT COUNTED AS PART OF ONE-YEAR PERIOD.

13. 28 U.SC. § 2254(d) OFTEN THE HIGHEST HURDLE !

14. 18 U.S.C. § 2254(d) 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.

15. MECHANICS OF FILING AND PROSECUTING THE PETITION The Petition Form (Ex. C) Habeas is a civil action. Federal Rules of Civil Procedure apply to the extent they are not inconsistent with any statutes or the Habeas Rules. (Rule 12). Who is the Respondent?(Rule 2) Respondent is the state officer who has custody of the defendant. If not in custody yet, name the officer who will have custody and the state attorney general. Grounds for relief in the Petition (Rule 2) Specify all grounds. Cite the provisions of the Constitution, federal law or treaties that have been violated. State the facts supporting each ground. State the relief requested. Be overinclusive - append a substantive memorandum of law to the Petition to be filed with the Petition Form.

16. Filing the Petition with the Clerk of Court (Rule 3) Original plus two copies. Pay the filing fee ($5) or file a motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915. Service of the Petition (Rule 4) The Clerk will serve the Petition on the Respondent and the State Attorney General. If it plainly appears from the Petition and attached exhibits that the petitioner is not entitled to relief, the judge must dismiss the petition. If not dismissed, Judge must order the Respondent to file an answer or response.

17. Answer/Response (Rule 5) Respondent is not required to answer unless ordered to do so. Respondent must answer allegations. Respondent must state whether any claim is barred by failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations. Discovery/Expanding the Record/Evidentiary Hearings (Rules 6, 7 & 8) Discovery - Leave of Court required - need to show good cause. Expansion of record - may be directed by the Court. Evidentiary hearing - Court will determine if a hearing is warranted. May refer to a Magistrate Judge.

18. Second or Successive Petitions. (Rule 9), 28 U.S.C. § 2244(b)(3) & 2244(b)(4), First Circuit Local Rule 22.1 If this is a successive habeas petition, you must satisfy 28 U.S.C. § 2244(b)(3) & 2244(b)(4). See First Circuit Local Rule 22.1 for specific filing and service instructions. 1.Need to obtain permission to file a successor petition from the Court of Appeals (First Circuit). District Court will dismiss a successor filed without permission. 2.Three judge panel decides whether to issue order within 30 days of motion whether to allow successor.

19. 3.To obtain permission for successor, petitioner must make prima facie showing under 28 U.S.C. § 2244(b)(2) that the claim was not presented in a prior habeas, and (A) the claim relies on new rule of constitutional law made retroactive to cases on collateral review by the SCOTUS that was previously unavailable, OR (B) factual predicate for claim could not have been discovered previously through due diligence, and the facts underlying the claim if proven would establish by clear and convincing evidence that, but for constitutional error, not reasonable factfinder would have found the petitioner guilty. 4.Denial of permission to file a successor is not appealable, may not be the subject of a petition for rehearing or for a writ of certiorari.

20. Magistrate Judges (Rule10) A Magistrate Judge may perform the duties of a district judge under the rules. In D. Mass., some judges will refer habeas matters to Magistrate Judges for reports and recommendations, and others will not.

21. Appeal to a Court of Appeal - Certificate of Appealability (Rule 11), 28 U.S.C. § 2253(c), First Circuit Local Rule 22.0 If the district court denies your petition, you cannot appeal unless you obtain a certificate of appealability. Upon denial, file a notice of appeal and file a motion for a certificate of appealabiilty in the district court first. See First Circuit Local Rule 22.0. Must show in your motion that the petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Must specify all of the issues you are seeking to have certified for appeal with full arguments, not simply a listing of issues. If the district court grants a certificate of appealablity on all of your issues, the appeal goes forward. If District Court denies the certificate of appealability in whole or in part, petitioner may not appeal the denial to the First Circuit, but may move in the First Circuit for the issuance of a certificate of appealability in whole or as to the issues as to which the district court denied appeal. See First Circuit Local Rule 22.0 First Circuit docketing. Civil docketing fee is $505. Local Rule 24 governs in forma pauperis motions in the First Circuit.