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Habeas Hints

by Kent Russell

This column is intended to provide "habeas hints" to 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.

The Federal Traverse

Short of the evidentiary hearing, which is granted in only a very few cases, the most important part of Federal habeas corpus is responding to the contentions that the A.G. (for federal habeas corpus Petitions by state prisoners, the petitioner's opponent is the state attorney general, hereafter called the "A.G.") will make in an effort to the get the habeas corpus Petition dismissed. Typically the A.G. makes those contentions in the "Answer, and the petitioner responds with a "Traverse".

The Answer is actually a trio of documents which includes:

1. "Answer": The Answer is a legal pleading, usually only two or three pages in length, which contains a summary of the positions the A.G. is taking in support of its efforts to get the Petition dismissed. The Answer establishes the contested issues in the case, but it is framed in a very general way and without any case citations.

2. "Points and Authorities ("Ps&As") in Support of the Answer": This document, typically about 25 pages in length, will contain a summary of the previous proceedings in the state court, along with the state court's findings of fact and conclusions of law; a discussion of the "standard of review" which the A.G. wants the federal court to apply; and the legal arguments and supporting cases that the A.G. is relying on in federal court to try and get the petitioner's case dismissed once and for all.

3. "Lodgment": The A.G. has the responsibility of providing the federal court with the documents that have been filed previously in the prisoner's case as it made its way through the state court trial, direct appeal, and any proceedings on state habeas corpus. The Lodgment consists of a list of these documents, accompanied by the documents themselves. Because the Lodgment often includes hundreds of pages of documents, all of which the petitioner should already have received from his lawyer or from the court directly, no copy of the Lodgment is provided to the petitioner, nor is there any need for the petitioner to respond to the Lodgment.

Habeas Hints

Although filing a Traverse is optional, the petitioner can and should use the Traverse to respond to the A.G.'s Answer and Ps&As. Although a Traverse can consist of a single document, most courts have a 25-page limit on each document filed. Therefore, and because one will often want to use all 25 pages just for the Ps&As, I recommend splitting the Traverse into two separate documents, entitled (1) "Petitioner's Traverse to Answer" and (2) "Petitioner's Points and Authorities in Support of Traverse". Each document must have the case caption on the front page, and the title of the document should appear to the right of the caption. The last page of each document must be the "Proof of Service", a sworn declaration stating that a copy of the document was mailed to the A.G. at the time of filing. The Traverse must be filed within the time allowed by the court's original scheduling order, or within any extra time allowed by the court in response to a signed application for extension of time filed on or prior to the due date.

Petitioner's Traverse to Answer

Because the Traverse responds specifically to the A.G.'s claims, I use numbers or roman numerals in the Traverse to Answer that correspond to those used by the A.G. in the Answer. In addition, I like to use descriptive titles so the court will readily understand which claims I am responding to in the Traverse. (See examples below.)

Keep in mind that the purpose of the Traverse is to respond to the Answer, that no case citations are required, and that one form of answering is to agree with something the A.G. says which doesn't hurt you. So, for example, if the A.G. says in paragraph XYZ of the Answer that the Petition is timely, all you need to do in the Traverse to Answer is to respond, "Agreed as to paragraph XYZ in the Answer." Similarly, there may be paragraphs in the Answer with which the petitioner agrees in part and disagrees in part. A typical example is the allegation as to "custody", which almost always appears in the Paragraph I of the Answer. The A.G. will say that the petitioner is in custody for such-and-such crime, for a sentence of so many years, and will then say that the custody is "lawful". Unless the A.G. has gotten the crime or the sentence wrong _ which hardly ever happens, but if it does should be corrected in the Traverse _ the petitioner should respond as follows:

I. Custody

Petitioner agrees that he (she) is in custody as stated in ¶ I of the Answer. Petitioner claims that he is not "lawfully" in custody because of the violations of his rights under the U.S. Constitution that are alleged in the petition for writ of habeas corpus and herein. Except as expressly admitted herein, Petitioner denies each and every allegation of the Answer and re-affirms that his confinement is in violation of the Constitution.

The next paragraphs of the Answer will vary somewhat from case to case, but usually the following will be pled in one sequence or another.

Ø Procedural Default: If, during the process of exhausting the federal claims in state court, the petition was denied on some other basis than on the merits, the A.G.'s Answer will rely on that procedural default. Taking a California example, if the California Supreme Court denied the petition with a citation to In re Clark or In re Robbins, that signals a state procedural default for taking too much time to file the petition in state court ("Untimeliness"). If the Answer alleged such a procedural default in paragraph II, the petitioner should respond as follows:

II. Procedural Default

Petitioner denies that the state court clearly and expressly relied on "untimeliness" in rejecting Petitioner's claim on state habeas corpus, and therefore denies that the alleged procedural default is independent. Furthermore, it was not adequate: There was no firmly established and regularly followed "untimeliness" rule at the time Petitioner allegedly defaulted herein, nor has Respondent carried its burden of pleading and proving such a procedural default in this court.

Ø Standard of Review: The A.G. will always invoke the "deferential" standard of review under the AEDPA _ by which the state's denial of habeas corpus must be accepted in federal court unless the petitioner can show that it was "contrary to" _ or was based on an "unreasonable application of " _ federal law, as defined in the holdings of the U.S. Supreme Court ("USSC"). If appropriate, the petitioner should rely on different standards of review for different claims. For example, ineffectiveness of counsel claims are always are tested by the "unreasonableness" standard, because every state court judge will at least identify the applicable Strickland standard, although it might be applied incorrectly. For other, less common claims (e.g., denial of confrontation rights in the following example) the state court may have gotten the standard wrong and, if so, the petitioner should argue for the less demanding "contrary to" standard of review.

III. Standard of Review

Petitioner agrees that, pursuant to the provisions of the AEDPA, the "unreasonable application" standard of review is applicable to Petitioner's claim of ineffectiveness of counsel. Petitioner alleges that, applying this standard, the state court decision denying him habeas corpus relief constitutes an unreasonable application of federal law as determined by the U.S. Supreme Court. Further, Petitioner alleges that the state court decision is based on an unreasonable determination of the facts that is rebutted by clear and convincing evidence in the record.

As to Petitioner's claim for violation of his Confrontation rights, Petitioner alleges that the state court failed to identify and apply the controlling U.S. Supreme Court decision(s), and that the state court decision denying habeas corpus relief is therefore "contrary to" federal law as held by the U.S. Supreme Court.

Ø Evidentiary Hearing. In the Answer, the A.G. will always ask for the petition to be dismissed without an evidentiary hearing; and the petitioner will want an evidentiary hearing if s/he can get one. Assuming that there has been no evidentiary hearing granted in state court _ which is usually the case _ the Traverse to Answer should state as follows:

IV. Evidentiary Hearing

The state court failed to hold an evidentiary hearing on state habeas corpus, and therefore did not determine the decisive and operative "facts" upon which a denial of Petitioner's constitutional claims could legitimately be based. This failure was not due to any fault of petitioner, who was denied an evidentiary hearing in state court even though petitioner requested such a hearing and diligently established the factual and legal basis for such a hearing.

To the limited extent that the state court did determine the operative "facts" regarding Petitioner's habeas corpus claims, those factual findings were based on unreasonable determinations of the state court evidence presented, and are contradicted by clear and convincing contrary evidence submitted in the Petition and herein.

Ø Incorporation by Reference. This phrase describes the process by which a party has the court take into account documents that were previously filed or are being filed along with the document at hand. Typically the petitioner will want to have the court incorporate by reference the following:

V. Incorporation by Reference

Petitioner incorporates by reference the Petition for Writ of Habeas Corpus, along with all supporting documents, including the Supporting Exhibits and Points and Authorities previously filed. Further, Petitioner incorporates by reference Petitioner's Points and Authorities in Support of Traverse, which are being submitted contemporaneously.

Ø Prayer for Relief. This is the last paragraph, in which the parties summarize the relief they are requesting. Traditionally it starts with "Wherefore", and concludes with the date and the party's signature. The petitioner's prayer should be as follows:


WHEREFORE, for the reasons set forth herein and in the documents incorporated by reference, Petitioner respectfully requests that the court:

(1) order an evidentiary hearing and appoint counsel for the petitioner;

(2) grant the writ of habeas corpus, reverse Petitioner's conviction, and order a new trial; and

(3) grant all other appropriate relief.

Dated: [Petitioner's Signature]

[Petitioner's Printed Name]

Petitioner, In Propria Persona

Points and Authorities in Support of Traverse

The petitioner's Ps&As in support of the Traverse must flesh out the arguments that are set forth in the Traverse, and should respond to the specific facts and cases cited by the A.G. Although each Ps&As is different, the following suggestions will apply in most cases:

1.Try as hard as you can to cut your Ps&As down to the 25 page limit. Extraneous or long-winded arguments are counter-productive, and the 25-page limit should be enough to respond to whatever the A.G. has argued. In cases where the A.G. has exceeded the 25 page limit in its own Ps&As and you need to do the same in order to respond, file a separate document with your Traverse entitled "Application for Leave to File Oversized Brief" and explain briefly how many additional pages you need and why.

2. You should provide a Table of Contents and Table of Authorities with your Ps&As. Use the same format the A.G. has used in its own Ps&As.

3. Respond to every point the A.G. raises, citing page and line from the A.G.'s Ps&As, and discuss or distinguish all the principal cases cited by the A.G.

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 which can be purchased directly from the Law Offices of Russell and Russell, 2299 Sutter Street, San Francisco, CA 94115.

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