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Federal Habeas Rarely Granted

The National Center for state Courts in Williamsburg, VA has released a study conducted by Victor Flange, concluding that post conviction challenges by prisoners in state or federal court are rarely successful. The report was originally commissioned in 1989 by the Conference of Chief Justices to determine if state court reforms could reduce the need for federal habeas corpus review. The report claims to be only the second multi-state study of habeas corpus ever made. The courts studied are located in Alabama, Texas, New York, California and the federal district courts located in those states. The data gathered was based on state and federal habeas filings in 1990 and 1992.

The report concluded that the number of federal habeas filings by state prisoners has remained relatively constant over the past thirty years. In 1963, when the supreme court substantially increased the availability of federal habeas review to state prisoners the number of filed federal habeas petitions was 2,106. This represented 1.08 percent of all state prisoners. In terms of percentages of state prisoners this number grew to 5.14 percent in 1970 but has retreated every year since. In 1991 federal courts received 10,323 habeas petitions which is a little over one percent of the 752,525 state prisoners held that year. The increase in habeas corpus flings comes from the increase in the number of prisoners rather than prisoners filing more petitions.

The majority of habeas petitions came from nine states: California, Texas, New York, Florida, Pennsylvania, Alabama, Missouri, Louisiana and Michigan which combined for an average of 465 petitions per year. The remaining 41 states and the District of Columbia and Puerto Rico averaged 116 petitions each. The nine states with the most petitions are also among those with the largest prison populations. The report concluded that the work generated by these habeas petitions is not "a large portion" of the district court's case loads and the vast majority are dismissed. While the petitions consume little judge time they do require staff to sift through the writs for meritorious claim's and to determine whether counsel should be appointed.

Most habeas petitions are filed by prisoners convicted at jury trial and serving long sentences. Less than one percent of habeas petitioners' were represented by retained counsel at their state or federal trial. Most habeas petitions are filed by pro se prisoner litigants because there is no rule or law requiring counsel be appointed to assist with federal habeas petitions. Before a claim can be presented to a federal court it must have already been presented to a state court to determine if constitutional error meriting reversal of a criminal conviction has occurred. Over the years the availability of federal habeas has been steadily decreased in a number of rulings by the supreme court.

The report noted that whatever the claim raised by habeas petitioners the rate at which petitions were granted was very low. The same is true for federal courts. The author's attempt to study the characteristics of a successful habeas petition failed because too few were granted to support any conclusion at all. The lack of successful petitions also did not allow a comparison between writs filed by prisoners versus those filed by counsel.

The study concluded that habeas petitions are granted more often in death penalty cases than in non-capital cases. A federal court is more likely than a state court to grant habeas relief to a death row prisoner. The report disputed the popular notion that "40% of death sentences are overturned on federal habeas." Many of these "successes" were later overturned and the petitioner executed. The report suggested that the debate over the death penalty should be "joined directly, rather than having all habeas corpus reform efforts in all cases driven by attitudes towards the death penalty."

The report concluded that states' annoyance over federal court oversight is unwarranted given the small number of state court convictions actually overturned. The most likely chance that a habeas petition will be granted is the first time it is presented in state court. While only a small number of prisoners file habeas petitions they tend to proceed pro se so courts should evaluate the need for additional pro se law clerks in prisons or staff attorneys to screen the petitions.

Copies of the 102 page report are available for $2.00, plus postage and handling, from: Carrie Clay, National Center for State Courts, Box 8798, Williamsburg, VA 23187-8798. (804) 259-1812.

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