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Habeas Hints: State Remedies

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.

One of the hardest issues to understand when dealing with the AEDPA is how state habeas corpus fits into the picture. On the one hand, the AEDPA is a federal statute and doesn't technically have any effect on state habeas corpus. However, you can't file for federal habeas corpus until you first exhaust your state remedies, so what happens on state habeas corpus has a huge effect on the AEDPA -- so much so that a habeas corpus petitioner who doesn't have the state law bases covered is almost certain to get thrown out at one of the bases in federal court.

Below I discuss two important, inter-related areas in which the outcome on state habeas corpus affects federal habeas corpus petitions: (1) state procedural defaults; and (2) tolling of the AEDPA statute of limitations during the time that a "properly filed" state petition is pending.


State Procedural Defaults

One of the basic limits on federal jurisdiction in habeas corpus is that the federal courts will stay out of making decisions about what state law is or should be. Hence, the "adequate and independent state ground" rule B which says that a federal court will not get involved in any case whose outcome is controlled by a state law ruling that is both "adequate" and "independent" of federal law.

A state procedural ground is "adequate" if it is based on a rule that is firmly established and strictly or regularly followed. An aspect of this rule is that the state cannot deny a habeas corpus claim on the basis of a procedural rule that was not clearly established and consistently followed at the time that the petitioner's default occurred. Another is that the state cannot bar federal review by reliance on a rule that the state can either follow or not follow, depending solely on the court's discretion; rather, any state procedural rule that is going to bar federal habeas corpus relief must be based on standards that were well known consistently followed at the time of the alleged default.

A state rule is "independent" when the state court denies a claim solely on the basis of the state procedural rule, and no decision on federal law is "intertwined" with the state law decision. For example, a state procedural rule that prohibits claims to be made on state habeas corpus that were already made and denied on direct appeal is intertwined with federal law, because the state courts can never bind federal courts when it comes to interpreting the federal Constitution. In contrast, a state habeas corpus denial based solely on lateness or untimeliness of a state habeas corpus petition is generally an "independent" state ground that will bar federal review as long as the rule also meets the "adequacy" test. "

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