Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Habeas Hints: Standard of Review

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


One of the most important and challenging aspects of habeas corpus practice is identifying and satisfying the "standard of review" (burden of proof) which applies to the claims alleged in the habeas corpus petition. In this column, I define the principal different standards of review that come into play at various points throughout the criminal process, and I provide some "habeas hints" for how to deal with these standards most effectively on habeas corpus.


Ø Presumption of innocence.

A defendant facing trial on a criminal charge is presumed innocent, and the prosecution has to prove the defendant guilty beyond a reasonable doubt. Proof beyond a reasonable doubt equates to proof to a near certainty that the defendant is guilty as charged. This is the most demanding standard of proof of all in the American justice system, and it affords powerful protection to a criminal defendant at the trial level. However, once a defendant is convicted at trial or via guilty plea, the presumption of innocence disappears.

Ø `Structural error'.

Structural error is that unusual kind of trial error which is so monumental that it essentially deprives the trial of any reliability as a truth-determining process. An example is a showing that a pro-prosecution juror failed to reveal bias in voir dire; or that the case was heard by a corrupt judge. Where structural error is shown, it is presumed that the error was prejudicial, and a new trial is almost always required. Similar to structural error in its effect is "Cronic" [United States v. Cronic, 466 U.S. 648 (1984)] error, which amounts to ineffectiveness of counsel so serious that it is as if the defendant had no lawyer at all. (For example, the defense lawyer was absent, asleep, drunk, or working against the defendant because of a financial conflict of interest.) Errors falling within this category almost always produce reversals, but are very, very rare.

Ø `Chapman' standard.

The "Chapman" standard [Chapman v. California, 386 U.S. 18 (1967)] applies to errors of constitutional magnitude that are discovered during the direct (first) appeal. Under the Chapman standard, the error is prejudicial unless the error was "harmless beyond a reasonable doubt". This is a very petitioner-friendly standard, but it applies only to errors of "constitutional" magnitude (errors recognized in US Supreme Court cases to violate the Constitution), and only when those constitutional errors are addressed and found on direct appeal.

Ø `Brecht' standard.

The "Brecht" standard [Brecht v. Abrahamson, 507 U.S. 619 (1993)] is the "default" standard for constitutional errors which occurred at trial and which are established for the first time on habeas corpus, meaning that it will apply unless another of the ones discussed in this article is shown to apply instead. This standard requires that any error had a "substantial and injurious effect in determining the jury's verdict", i.e, that it leaves the habeas judge with "in grave doubt" about whether the error the error had a significant effect on the verdict. It has sometimes been suggested that the Brecht standard, which applies to most claims on habeas corpus, is the same as California's "Watson" standard, which applies on direct appeal to errors that are not of constitutional significance. However, the Watson standard in California is actually tougher than Brecht, because "Watson" requires a showing that the error "probably" affected the verdict, whereas Brecht requires that the court have "grave doubt" about whether the error affected the verdict. Whatever "grave doubt" is supposed to mean, it falls short of putting the burden on the petitioner to show that the error "probably" affected the verdict.

Ø `Strickland' standard.

The "Strickland" [Strickland v. Washington, 466 U.S. 668 (1994)] standard applies to claims for ineffectiveness of counsel ("IAC"). IAC claims require a showing that counsel was deficient committed error(s) no reasonable attorney would have made and that counsel's errors were "prejudicial". To establish prejudice on an IAC claim, the petitioner must show that "there is a reasonable probability that, but for counsel's deficient performance, the jury would have reached a more favorable verdict". Although "reasonable probability" sounds like the petitioner has to show that the jury verdict "probably" would have been different, the actual burden is somewhat lower: Strickland is satisfied where the effect of counsel's error is "sufficient to undermine confidence in the outcome of the case". Such a standard falls short of the "preponderance of the evidence" standard, which requires more than a 50% certainty of error.

The Strickland standard of prejudice quite similar to the showing a petitioner must make for "Brady" claims, where the prosecution has suppressed evidence favorable to the defense. The petitioner must demonstrate a "reasonable likelihood" that, provided with the suppressed evidence, the jury's verdict would have been more favorable to the defendant. Again, a "reasonable likelihood" does not require a showing that the result "probably" would have been different. See Kyles v. Whitley, 514 U.S. 419, 434 (1995).) Once a petitioner has satisfied the Strickland standard (or the similar Kyles standard for Brady claims), the Brecht standard has necessarily been satisfied as well, so no further showing of harmless error is necessary. See Kyles, supra.

Ø `Schlup' standard ("Actual Innocence" + Constitutional Error).

This standard comes into play when a petitioner shows that a constitutional error has occurred; but the petitioner has committed some procedural default that prevents federal consideration of the habeas claim in the first place. Under the AEDPA, a petitioner making a claim based on new evidence, but facing a state procedural default and unable to establish "cause and prejudice" for the default, must make a showing that a "miscarriage of justice" would occur unless his claim were heard. To make it through this gateway to the federal court, the petitioner must show that he is "actually innocent" of the specific offense which resulted in his conviction and sentence. ("Actual innocence" is also available to a person who pled guilty, but in that event the petitioner must also demonstrate actual innocence of charges the prosecution dropped in exchange for the guilty plea.)

The "Schlup" [Schlup v. Delo, 513 U.S. 298 (1995)] standard applies in such cases: The petitioner must show that, based on the new habeas evidence, "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." This is a tough standard to meet, because it puts the burden on the petitioner to show that he is not guilty. Very few petitioners will be able to make this showing successfully, since the new evidence will have to be stronger than the evidence that the jury already found sufficient to justify their verdict of guilty. Nevertheless, because a jury can only legitimately convict on the basis of proof beyond a reasonable doubt, the petitioner can meet this test by showing the new evidence is sufficient to establish a reasonable doubt as to guilt. Tough as this test is, requiring the petitioner to show that s/he is "probably not guilty" is not as hard as making the petitioner show that s/he is definitely "innocent".

Ø `Herrera' standard ("Actual Innocence" _ Free Standing Claim).

This standard is also called "actual innocence", but it is different from the Schlup (gateway) standard discussed above and even harder to satisfy, because here the petitioner is claiming s/he is innocent but is unable to also show that constitutional error affected the trial or guilty plea. This is called a "free-standing" claim of actual innocence, because it is not joined with a claim that constitutional error occurred at trial or in connection with the guilty plea. In other words, the petitioner is effectively admitting that s/he had a "fair trial", but is claiming nevertheless that s/he is innocent. Not surprisingly, these kinds of claims face the stiffest standard of review of all.

Free-standing claims of actual innocence are judged by the "Herrera" [Herrera v. Collins, 506 U.S. 390 (1993)] standard. As with Schlup, the petitioner has the burden of proving innocence, but the bar here is even higher: The petitioner must go beyond demonstrating a reasonable doubt about his guilt to prove that he is, in fact, innocent. The Herrera standard requires that the petitioner present new evidence of innocence which is so convincing that "no rational juror could vote to convict the defendant in light of the new evidence". Translated, the petitioner's claim must be based on new evidence that unquestionably shows that the petitioner did not commit the offense for which he is incarcerated. Examples of claims which satisfy this most difficult standard are those based on conclusive DNA evidence of innocence, or cases where a witness recants in a case in which the sole evidence supporting conviction was that of the recanting witness.


1. Try to get the benefit of the easiest possible standard.

The further downward you go on the above list, the harder it becomes for you to win on your habeas corpus claim. Therefore, you should do whatever you can to avoid having to drop down to a more difficult standard that you don't necessarily have to face. For example, the better the quality of your representation on appeal, the more likely it is that appellate counsel will identify errors of constitutional magnitude, where the errors are tested by the more favorable Chapman standard, rather than by Brecht, which applies on habeas corpus. Similarly, avoiding procedural defaults will enable you to use the Brecht standard rather than the tougher, Shlup standard. Finally, if you think you have to make a free-standing actual innocence claim, try to successfully combine it with a claim of constitutional error so that you can hopefully use Shlup rather than the more difficult Herrera standard.

2. Don't understate the correct standard of review.

Habeas corpus petitions which rely on too generous a standard of review than the one which is applicable are doomed. For example, if you're making an ineffectiveness of counsel claim on habeas corpus based on your attorney's failure to investigate, you can't meet the Strickland standard by just falling back on the presumption of innocence (which no longer applies after conviction) and speculating about what witnesses might have said if they had appeared at the trial. Rather, you should obtain declarations showing what specific witnesses would have testified to if called at trial; demonstrate that the witnesses who did testify are not worthy of belief; and then argue that, under the Strickland standard, there is a reasonable probability that the jurors would have voted "not guilty" if they'd heard the testimony that is set forth in your habeas declarations.

3. Where it's arguable which standard may apply, argue for the easier standard but also make an alternative showing under the tougher one.

Although it's OK to "reach" for a standard you may not be entitled to, you need to back up your claim with an alternative argument on the harder standard in the event your reach is too high. For example, if you are claiming a conflict of interest by your attorney, there's an outside chance that you might get the benefit of the "Cronic" standard (see "structural error", above); but, chances are, your claim will be judged by the more conventional, tougher Strickland standard. Therefore, you can argue that the Cronic standard applies, such that prejudice is presumed; but also argue, in the alternative, that your claim satisfies the tougher Strickland standard, and make the required showing under Strickland.

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

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login