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Habeas Hints: Statute of Limitations

By Kent Russell

This column is intended to provide "habeas hints" for prisoners who are considering or handling habeas corpus petitions as their own attorneys ("in pro per"). The focus of the column is habeas corpus practice under the AEDPA - the 1996 habeas corpus law which now governs habeas corpus practice throughout the U. S.

1. If you have any doubt about whether the AEDPA statute of limitations is about to run out or has run out, file a "protective" state habeas corpus petition ASAP.

In my book I stress the need to file a state habeas corpus petition within the one-year period of limitations that applies under the AEDPA, because only by complying in advance with the AEDPA limitations period can a prisoner exhaust his state remedies and still have time left to apply for federal habeas corpus in the likely event that state habeas corpus relief is denied. This means that any prisoner who is eventually planning on seeking habeas corpus relief should file a state habeas corpus petition at least a few days prior to the expiration of one year from the date that a prisoner's conviction becomes final on direct appeal, and should begin drafting his federal petition during the last stage of review on state habeas corpus. So, for example, a state prisoner ("Joe") whose conviction became final on October 1, 1999, should file a state habeas corpus petition in the state superior (trial) court where he was convicted no later than September 20, 2000, which would still give Joe 10 days left in his AEDPA statute of limitations "bank". If the petition is denied by the superior court it should be filed promptly in the state appellate court, and if denied there it must then be filed in the state's highest ("supreme") court. Assuming denial by the state supreme court, Joe will have 10 days after that denial within which to file his federal habeas corpus petition. That isn't much time, but it will be enough, especially if Joe starts preparing his federal petition during the weeks or months the state habeas corpus petition is pending in the state supreme court.

OK in theory, you say, but what if that's not possible through no fault of Joe's? What if Joe's trial and/or appellate attorneys never explained the AEDPA statute of limitations to him, or if his previous attorneys dragged their feet so much that Joe now becomes aware that the AEDPA statute of limitations either has run out already or is going to run out in the near future, but no state habeas corpus petition has been filed yet on Joe's behalf?

My advice when this situation arises is to file a "protective" state habeas corpus petition as soon as possible in the state superior court. That way, if the statute of limitations has not run out yet, it will stop the statute of limitations from running. Alternatively, if the statute of limitations has already run because of attorney error or neglect, it will give the prisoner a chance to explain the reason for the delay as soon as possible, and hopefully establish the "cause and prejudice" that is required for the delay to be excused.

2. When filing a protective petition, filing fast is the most important consideration, so use an approach that touches all the necessary bases without getting bogged down in extraneous details.

If you have reached the point where it's necessary to file a protective petition to keep the statute of limitations from running, then by definition you are rapidly running out of time. That means that you don't have the luxury of carefully pondering what you are going to file, doing further investigation and research, or writing letters complaining about your situation. Instead, you have to FILE and you have to file FAST. Naturally, this means that meticulous preparation and drafting - which is fine if you have the time, but impossible if you don't - has to give way to a more basic approach that sacrifices detail in favor of making sure you touch all the bases necessary to produce a "properly filed" petition as quickly as possible.

For those of you who find yourselves under the statute of limitations gun, here are some hints to assist you in quickly filing a simple, protective petition:

* Get the required printed form.

You will need the printed form that the court requires for filing a habeas corpus petition. (In California, the form that must be used for state habeas corpus is the "Petition for Writ of Habeas Corpus, #MC-275.") The form is available for free in every courthouse. If you have time, write to the courthouse where you were convicted and ask for the form to be sent to you. If not, then have a friend or family member go to the courthouse and get one for you. (In my experience, on-line habeas corpus forms are now available free for almost all federal district courts, but not necessarily for all the state courts.)

* Provide all the historical information requested on the printed form.

All habeas corpus forms require basic historical information about the conviction and sentence in addition to the actual statement of the habeas corpus "claim." (See CA form Q. 15.) The type of information required includes the nature of the charges, length of sentence, court where convicted, etc. All this information is readily available from the briefs on appeal and/or from the court opinion affirming the conviction on direct appeal. All applicable questions must be answered as accurately as possible.

* If the AEDPA statute of limitations has already run, explain why you filed late.

On almost every habeas corpus form there will be a question asking you to explain any delay in filing. Questions about delay give you the opportunity and the duty to explain exactly why you are filing later than you should be. Sometimes the reason is late discovery of the facts. More commonly, however, the reason has to do with ignorance by previous counsel about the AEDPA statute of limitations, or indifference or delay by the lawyer in explaining to the prisoner the need to file a state habeas corpus petition within a year of the date the conviction becomes final. Whatever the reason for the delay, be sure to explain it factually. For example: "I was represented by counsel X at trial and by Y on appeal but my attorneys never advised me of the requirement that a state habeas petition be filed within one year of conviction, nor did I know this from any other source until Z date when ... [explain what you learned, how you learned it, and that you filed your petition promptly thereafter]."

* If in doubt about what "Claim" to assert, consider first a basic claim for ineffectiveness of counsel.

Each habeas corpus case is unique, and selecting and framing a "claim" for habeas corpus requires a thorough understanding of the facts and a knowledge of the applicable law that is far beyond the scope of this column. On the other hand, when considering a protective claim that can quickly be drafted to touch the necessary bases, ineffectiveness of counsel usually fits the bill because: (1) Ineffectiveness of counsel claims are almost always based on facts occurring outside the record on appeal, and are therefore "favored" on habeas corpus; by contrast, most other claims are based on facts occurring at trial or in the appellate record and therefore must be raised on appeal or they are "waived" (lost by default). (2) If a prisoner has a valid constitutional claim that would have resulted in a finding of innocence or a lesser sentence, in theory that claim should have been raised at trial and on appeal and been successful there. Conversely, if the claim wasn't raised before, that's a pretty good indication that previous counsel was "ineffective" in failing to raise it.

These factors make ineffectiveness of counsel claims the "mother's milk" of habeas corpus, and as a practical matter they are almost always asserted either singly or in combination with other claims. Thus, when filing a protective petition, where simplicity and time is of the essence, one should always think first about claiming ineffectiveness of counsel.

Ineffectiveness of counsel claims fall into two basic categories: (a) deficient performance by the lawyer at trial and/or on appeal; or (b) deficient advice by a lawyer which induced a defendant to plead guilty on false pretenses. Each of these requires a showing of "prejudice" - that is, factual allegations which show that the lawyer's deficiencies affected the outcome adversely to the petitioner. Therefore, in its most basic form, an ineffectiveness of counsel claim would involve first a general description of the type of ineffectiveness claim asserted, followed by facts which show both deficient performance and prejudice, and finally a citation to the most pertinent U.S. Supreme Court cases on which habeas corpus relief depends.

For example, where you are asked to state the "grounds" for your habeas corpus claim, a basic petition might look like this:

"Grounds for Relief" (§ 6 on the CA form) would be: "Ineffectiveness of counsel, in violation of Petitioner's rights under the 6th Amendment and the Due Process Clause, based on counsel's deficient performance and resulting prejudice in regard to *****." (The blank would be filled in either as (a) "the trial and direct appeal," or (b) "plea negotiations.") "Supporting facts" (§ 6a on the CA form) would include factual statements specifically demonstrating the attorney's deficient performance and resulting prejudice. For example, for (a) you might state "My attorney failed to prepare, investigate, or present a defense based on. That failure constituted deficient performance and caused prejudice as follows: [Explain what defense you would have raised, the facts that would have supported it, and why it would probably have been successful.]" In category (b) you might allege: "My attorney incorrectly advised me of the maximum sentence I faced if I pled guilty. The attorney advised me that I faced a sentence of X years when in reality I faced a sentence of X+Y years. Had I been properly advised by my attorney of the maximum sentence I would not have pled guilty." Finally in either instance, if attorney neglect or indifference has caused you to file later than you should have, those facts should be alleged in the section provided for "supporting facts".

"Supporting cases" (§ 6b on the CA form) should be filled out as follows: In the (a) category cite Strickland v. Washington, 466 U.S. 668 (1984). For category (b) cite Hill v. Lockhart, 474 U.S. 52 (1985).

* Sign the petition, mark it "legal mail" and direct it to the prison custodian in charge of legal flings with a note requesting that it be mailed "immediately"

In summary, while it is always best to thoroughly investigate and research any habeas corpus claim, and to engage experienced counsel to help you if you can afford it, if you are under severe time pressure and have no money for a lawyer it is far better to quickly file a "protective" petition than to file no petition at all, or to waste precious more weeks or months agonizing over what to do. Of course, keep in mind that the above hints are generic in nature, and are not intended as legal advice on any particular case, but rather to give you an idea of how to quickly draft and file a basic, preventive petition when filing fast is of prime importance.

Kent Russell specializes in criminal defense, appeals, and habeas corpus. He is the author of the "California Habeas Handbook" which explains habeas corpus and the AEDPA, and can be purchased ($20) from the Law Offices of Russell and Russell, 2299 Sutter Street, San Francisco, CA 94115.

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