BRIEFING OF HABEAS CLAIMS
Many pro pers have a "one size fits all" approach to briefing of habeas claims, so that their briefs or points and authorities look the same for whatever stage of the habeas process they happen to be in. I recommend instead an approach that tailors the briefing of the claim to the specific and changing demands which operate at each stage of the habeas process.
Appeal following conviction and sentence.
Appellate lawyers are trained to use a briefing style which I call "plenary briefing". Plenary briefing contains an introductory "Statement of the Case" (a straightforward and non-argumentative history of the proceedings with references to the Clerk's Transcript), a "Statement of Facts" (an accurate presentation of the facts, presented with the most favorable spin but without misrepresentation or omission of critical facts, cited to the Reporter's Transcript), a "Legal Argument" section in which each legal claim is separately labeled and supported by all available authority, and a "Conclusion" in which you summarize the relief you are asking for. Most plenary briefs are at least 15-25 pages in length and take many, many hours to prepare.
Plenary briefing is routine on direct appeal, and is the style of briefing that prisoners are first introduced to in post-conviction proceedings. Nevertheless, that doesn't necessarily mean that plenary briefing is either necessary or best for the other stages of the habeas process.
Petition for review in state's highest court.
The traditional purpose of seeking review in the state supreme court is to try and have that court overturn the appellate court's decision to affirm all or part of your sentence. However, in practice that very rarely happens. At the same time, all habeas claims have to be presented to the state's highest court in order to preserve or "exhaust" them for habeas corpus. Therefore, the most important practical function of the petition for review in today's AEDPA world is to preserve and exhaust federal constitutional claims that are based on the appellate record. In order to exhaust a habeas claim, plenary briefing is not necessary. Rather, it is necessary to make a short and plain statement of the habeas claim (which is by definition a claim based on the federal Constitution), supported by the essential facts, and with a citation to the most pertinent U.S. Supreme Court (USSC) authority for the claim.
So, for example, if your habeas claim is that the jury instructions omitted a necessary element of the crime with which you were charged and convicted, you would exhaust that claim by summarizing the factual basis for it and by putting a heading on your claim such as: "Petitioner's right to have the jury instructed to determine each element of the charge beyond a reasonable doubt, guaranteed under the Due Process Clause and the 5 th and 14 th Amendments to the Constitution, was violated by the deficient jury instructions given in this case. Sandstrom v. Montana , 442 U.S. 510 (1979)." This single sentence is sufficient to exhaust your claim for habeas corpus purposes, whereas pages of plenary briefing which did not properly federalize the claim would not be.
State habeas petition.
Habeas claims which are based entirely on the appellate record are supposed to be brought on direct appeal and exhausted in the petition for review to the state's highest court. However, where the record on appeal does not contain all the facts on which the claim is based, or where the legal basis for the claim is undeveloped for some good reason, then the claim can and must be brought on state habeas. The most common example of the latter situation is a claim for ineffectiveness of counsel, which is almost always brought on habeas because trial and appellate lawyers rarely reveal their own ineffectiveness on the record.
In California, there is a printed form which can and must be used to make a claim or claims on state habeas: Form # MC-275 (available from any courthouse and included in the California Habeas Handbook ). For each habeas corpus claim, this handy printed form provides a space for the statement of the claim, the supporting facts, and the supporting cases. There's not a whole lot of room on the form, but the space provided is more than sufficient to allow for a plain statement of the habeas ground and the provision of the Constitution on which the claim is based, the essential facts which trigger the claim, and the key cases which support the claim. Thus, apart from filling out the form properly and making sure that you include at least one citation to a pertinent USSC case, there is really no need for any other "briefing" of the claim at this stage of the process. On the other hand, if there are documents which support your habeas claim(s) and which are not already in the appellate record, these documents should be included as exhibits in support of the petition, separately bound and indexed, and filed along with the MC-275 form.
The printed state habeas corpus form can be used in all of the state courts in which a habeas corpus petition can be filed: the Superior Court, the Court of Appeal, and the State Supreme Court. All you have to do is change the heading on the first page of the printed form and update it to include reference to denial of the petition in the lower court(s). Note that state habeas practices vary.
Initial federal habeas corpus petition.
The main purpose of the initial federal habeas corpus petition is to state the habeas claims sufficiently so that the court can determine that they are properly exhausted and are not subject to any procedural defaults. If you have properly exhausted the habeas claim in the petition for review, then you need only reiterate your statement of the claim and the supporting federal authority for it. Or, if you've properly filled out the printed form for state habeas, all you need to do in federal court is transfer that same information to the appropriate federal ("2254") form.
Again, there is no need for any plenary briefing at this stage of the habeas process. There are, however, a couple of technical requirements to keep in mind: First, each federal court has its own form and you need to get the right form from the U.S. District Court where you will be filing. Second, federal habeas corpus forms provide a space for the statement of the claim and for the supporting facts, but don't have any section for citation to cases and, in most instances, tell you not to cite any cases. Therefore, and because you will have to cite at least the supporting USSC case to properly frame your habeas corpus claim in federal court, some kind of supporting brief or Points and Authorities ("P&As") is going to be necessary. However, you don't need or want plenary briefing, just a short, separate P&As which contains, for each claim, the statement of the claim with reference to the Constitution, the supporting facts, and the key supporting federal cases.
Opposition to Motion to Dismiss
You can rest assured that if there is any conceivable procedural problem with your federal petition, opposing counsel will find it and will use that as a basis for moving to dismiss your petition. If a motion to dismiss is filed, you have to overcome the procedural problem or your habeas corpus petition will never be heard on the merits. You do this by filing a document entitled "Petitioner's Opposition to Motion to Dismiss". If the arguments raised in the motion to dismiss are entirely legal arguments, then you use the plenary briefing form in your Opposition, responding only to the points raised in the motion. (In other words, resist the temptation to argue the merits of the petition when the motion is solely directed to procedural issues.) If opposition to the motion requires you to submit additional facts (for example, to support equitable tolling or some other factual defense), do so in the form of a declaration under penalty of perjury, with supporting documents attached as exhibits, all of which can be attached to your Opposition or filed along with it.
If there are no procedural problems with your federal habeas corpus petition, your opponent will have to file an Answer, which will invariably seek to have the petition dismissed on its merits. The Answer is a short document that contains the basic arguments for dismissal, accompanied by a separate P&As that contains your opponent's legal arguments and citations to cases.
Responding to the Answer involves two separate steps: The first and most essential is to file a "Traverse". A Traverse is not a brief, and it contains no case citations. Rather it alleges facts which rebut the claims in your opponent's Answer and P&As. Therefore, you should go through everything the Attorney General (A.G.) has filed, locate each factual contention, and set forth rebutting facts in your Traverse. Since no briefing is required, you should be able to prepare your Traverse relatively quickly. However, the court's initial order almost always imposes short time limits on filing a Traverse (20-30 days is common), and to avoid conceding your opponent's facts, you must file your Traverse within the court-ordered time limit or within any additional time granted in response to a timely request for "enlargement of time".
After your Traverse is filed, you don't necessarily have to do anything else but wait for the court's further instructions. However, these days most habeas corpus matters are handled initially by magistrates, and frequently the magistrate won't ask for any further briefing before issuing a recommendation to dismiss the petition based on the legal arguments advanced in the P&As that the A.G. filed in support of the Answer. Therefore, I recommend that, after you've gotten the Traverse filed, you also prepare your own P&As that responds to the legal arguments raised in the P&As that the A.G. filed in support of the Answer. This document should use the plenary briefing style, and therefore will take some time to prepare. However, there is almost always a lull of at least several weeks after the Traverse is in and before the magistrate gets around to doing anything further on the case, and you can use that time to prepare your own P&As.
Because fairness demands that you be given an opportunity to file a brief in opposition to your opponent's, you can probably get away with simply filing and serving your supporting P&As within a few weeks after you've filed your Traverse. Technically speaking, however, when you are filing your P&As after the deadline to file the Traverse has run, you should obtain leave of court to do that. To do so, file and serve two separate documents, the second of which will be your P&As and the first entitled "Application for Leave to File Points and Authorities in Support of Traverse." The Application should be in the form of a declaration under penalty of perjury, in which you briefly state that you filed a timely Traverse, that the Attorney General has filed P&As in support of the Answer to which your P&As respond, and that you have acted diligently to prepare and submit your P&As as soon as was reasonably possible.
Opposition to Magistrate's Report and Recommendation.
If the magistrate recommends dismissal, you will have to file a timely "Notice of Objections" in order to preserve the right to appeal. Usually the time limits to do so are very tight. Therefore, after you get the recommendation for dismissal, promptly file a "Notice of Objections" in which you at least "incorporate by reference" your Traverse and any P&As you filed in support. If you did not file a P&As in support of your Traverse, and if you don't have time to that before the deadline for filing the Notice of Objections, then ask for an additional 20-30 days for that purpose when you file the Notice, and then file your supporting P&As within the time allowed.
Kent Russell specializes in criminal defense, appeals, and habeas corpus. He is the author of the California Habeas Handbook , that explains habeas corpus and the AEDPA, and can be purchased ($25, incl. postage) from the Law Offices of Russell and Russell, 2299 Sutter Street, San Francisco, CA 94115. "
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