Texas Federal Writ Lawyer

Writs of Habeas Corpus

 

1.         Federal Habeas Corpus Proceedings For State Prisoners

It is imperative that applicants seeking federal habeas corpus relief understand the law that has evolved from these two statutes, particularly in the wake of the Anti-Terrorism and Effective Death Penalty Act (1996) (more commonly known by its acronym AEDPA). Most critical are the time limitations set forth in 2244(E) (d) (1)

The Fifth Circuit Court of Appeals considers a “petition for discretionary review” in Texas considered to be part of the direct review process, which ends when the petition is denied or when the time available for filing the petition lapses.

The statute of limitations of AEDPA may be “equitably tolled” but only in “rare and exceptional circumstances” and strictly at the discretion of the United States District Court.

The “exhaustion requirement” of § 2254 means that a before a state prisoner can seek federal habeas relief, he/she must timely pursue the all claims for relief state court in complete compliance with all state procedural rules. It is imperative that the state courts have a “fair opportunity” to entertain the substance of a constitutional claim and apply its controlling legal principles to the facts associated with that claim. Whether a state prisoner has adequately exhausted state remedies is a question of law under federal case law. A state prisoner who presents an argument supporting a constitutional claim in federal court that is based on “a legal theory distinct from that relied upon in state court” will have his federal habeas petition dismissed with prejudice for failure to properly exhaust the claim.
 
The Fifth Circuit considers the exhaustion of multiple, distinct ineffective assistance of counsel claims separately. A state prisoner cannot present two separate claims in state court then combine the claims in federal court as a new claim under ineffective assistance. This practice does not satisfy exhaustion requirements.  If a state prisoner fails to exhaust state remedies, and the federal court finds that the claim would be procedurally barred in state court, the claims are procedurally defaulted for federal habeas corpus relief.

Pursuant to AEDPA, a feral court may not grant relief on a claim adjudicated on its merits by the state court unless at least one of two scenarios occurs. First, Federal habeas relief cannot granted “unless [the state court] adjudication ... 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”. Second, the state court adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in ... [that] proceeding”.

A state court decision is “contrary to” federal law if it relies on legal principles in direct conflict with prior Supreme Court holdings, or if it reaches a different conclusion than that reached by the Court on materially indistinguishable facts.” On the other hand, an “unreasonable application” occurs where, although “the state court correctly identifies the governing legal principle ... [it] unreasonably applies it to the facts of the particular case”. Against that backdrop, a state prisoner seeking federal habeas corpus relief has the burden of showing more than the state court application of the law to the facts was incorrect but that it was objectively unreasonable.

Most significantly, an AEDPA inquiry is highly deferential to a state court factual determination and presumes its determinations are correct and, therefore, it will be accorded the benefit of the doubt in all respects.

Finally, an issue not raised in the federal district court is considered waived by the Fifth Circuit, and any issue not presented in an original brief to the Fifth Circuit on appeal is considered forfeited.

28 U.S.C.A. § 2254 and § 2244 govern the remedies available to state prisoners seeking habeas corpus relief in federal court. The statutes, whose provisions are restrictive in nature, provide:

§ 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.
(b)(1) 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 unless it appears that--
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
(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.
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
(2) 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 constitutional error; no reasonable fact finder would have found the applicant guilty of the underlying offense.
(f) If the applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the State court's determination of a factual issue made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination. If the applicant, because of indigence or other reason is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official. If the State cannot provide such pertinent part of the record, then the court shall determine under the existing facts and circumstances what weight shall be given to the State court's factual determination.
(g) A copy of the official records of the State court, duly certified by the clerk of such court to be a true and correct copy of a finding, judicial opinion, or other reliable written indicia showing such a factual determination by the State court shall be admissible in the Federal court proceeding.
(h) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel for an applicant who is or becomes financially unable to afford counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.
(i) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.

§ 2244

(a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.
(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--

 

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(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 fact finder would have found the applicant guilty of the underlying offense.

(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.
(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.
(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.
(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.
(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.
(4) A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.
(c) In a habeas corpus proceeding brought in behalf of a person in custody pursuant to the judgment of a State court, a prior judgment of the Supreme Court of the United States on an appeal or review by a writ of certiorari at the instance of the prisoner of the decision of such State court, shall be conclusive as to all issues of fact or law with respect to an asserted denial of a Federal right which constitutes ground for discharge in a habeas corpus proceeding, actually adjudicated by the Supreme Court therein, unless the applicant for the writ of habeas corpus shall plead and the court shall find the existence of a material and controlling fact which did not appear in the record of the proceeding in the Supreme Court and the court shall further find that the applicant for the writ of habeas corpus could not have caused such fact to appear in such record by the exercise of reasonable diligence.
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

2.         Post Conviction Remedies Available to Federal Prisoners

28 U.S.C.A. § 2255 governs the post conviction remedies available to federal prisoners.

“A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

”Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

”A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.

”An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.

“An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

“A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of--
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

”Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.

”A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain--
(1) 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 fact finder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”

A § 2255 motion is the presumptive means by which a federal prisoner can challenge his conviction or sentence. A federal prisoner may proceed under  28 U.S.C. §  2241 for habeas corpus relief only if the remedy provided by a Section 2255 motion is inadequate or ineffective to test the legality of his detention. A Section 2255 motion is inadequate or ineffective only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his claims. A § 2255 proceeding is not inadequate or ineffective merely because a prior motion has been unsuccessful or the petitioner is unable to meet the stringent gatekeeping requirements for filing a second or successive § 2255 motion.

The purposes of a § 2241 habeas corpus petition and a § 2255 motion are distinct and well established. A § 2241 petition challenges the execution of a sentence and must be filed in the district where the prisoner is confined. A § 2255 motion attacks the legality of detention and must be filed in the district where the sentence was imposed. The purpose of the § 2255 motion is allow the court that imposed the sentence to entertain challenges against its judgment.

A Section 2255 motion is the adequate and effective remedy for challenging a sentence under the Apprendi rule.

The federal appeals courts have found § 2255 motion inadequate only several narrow situations: the original sentencing court is abolished; when the sentencing court refuses to hear a § 2255 motion or inordinately delays in considering such a motion; or a federal prisoner sentenced in multiple jurisdiction and none of the sentencing courts could provide complete relief. In these situations, an application for habeas corpus relief under § 2241 would be the appropriate remedy.

Federal prisoner who does not assert claim of actual innocence in a prior § 2255 proceeding could not bring a § 2241 habeas petition challenging his conviction under savings clause of the § 2255 statute which authorizes a habeas petition if § 2255 is inadequate or ineffective.

The requirements for bringing successive petition for post conviction relief does not bar a federal prisoner from seeking relief under "savings clause" section of § 2255 which allows federal prisoners to bring petitions under § 2241 if they can show that the § 2255 is inadequate or ineffective to test legality of detention.

A § 2255 motion is the proper remedy for bringing a Bailey claim that a conviction for knowingly using or carrying firearm during crime of violence, and aiding and abetting use or carrying of firearm during crime of violence, required proof that the defendant used, carried, facilitated, or encouraged use of firearm rather than that he merely participated in crimes of violence.

A § 2255 motion is proper remedy for a federal prisoner raising a Blakely that the sentence imposed by the district court were based on facts that violated the Sixth Amendment.

A constitutional claim brought by an alien inmate that he was denied equal protection because he was ineligible to participate in prison programs should be presented in a § 2241 habeas corpus petition.

The United States Supreme Court has held that a federal prisoner in a § 2255 proceeding has a “significantly higher hurdle” to surmount to secure relief than he does on direct appeal  The Fifth Circuit Court of Appeals has interpreted this to mean that a § 2255 movant must present either (1) constitutional or jurisdictional questions, which cannot be raised for the first time on collateral review without a showing of cause for the default and resulting prejudice, or (2) errors that could not have been raised on direct appeal and that, if condoned, would result in a “complete miscarriage of justice.”.

Non-constitutional claims that could have been raised on direct appeal, but were not, may not be asserted in a § 2255 motion. Likewise, issues that were raised but rejected on direct appeal are barred from consideration on collateral review.

 

 

 

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