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EIGHT SIMPLE RULES FOR DRAFTING A HABEAS CORPUS PETITION
I've never seen the TV show, Eight Simple Rules for Dating My Teenage Daughter, but I love the way the title promises to simplify a daunting task. With that goal in mind, this Habeas Hints column presents eight simple rules for improving the quality of your habeas corpus petition.
1. Start out with the supporting facts.
Most prisoner petitions I see are loaded with case citations but are short on specific facts which would persuade the reader that the petitioner was wrongly convicted. In my judgment, this is the opposite of the way a petition should be drafted. The main purpose of a habeas corpus petition is to tell the judge why your case is one of the very few that should be granted habeas relief from a conviction and sentence that have already been upheld in the state courts. You just can't do this by citing numerous cases which had favorable outcomes but which don't involve facts exactly like your own case, and busy judges tend to skip over extensive case citations anyway because the facts in the cases are almost always "distinguishable" from the precise facts presented by the petition. Thus, I believe that the most important thing to do in drafting a habeas petition is to start with a solid, specific statement of facts before you ever begin to do any extensive legal research. To prepare a persuasive statement of facts, first use the final arguments and the appellate briefs to make a list of the "bad" facts that the prosecution relied on to get you convicted. Then make a list of the "good" facts you can prove to negate or rebut each of the prosecution's "bad" facts. Your "good facts" list will contain the facts you will want to be sure to allege in your petition, backed up by whatever evidence you can bring to bear in your supporting Exhibits.
2. Keep your eye on the (Supreme Court) ball when citing supporting cases.
Of course, all habeas corpus petitions need citations to the case law which supports the claims in the petitions. However, because the AEDPA provides that habeas corpus claims can only be granted if based on decisions of the U.S. Supreme Court (USSC), you don't need to do more in the petition than cite at least one favorable USSC case for every claim in the petition. To tie this process into Rule #1, once you have your "good" facts lined up, figure out why you got convicted in spite of them, and then cite the USSC case which supports the resulting claim. Here are some common examples: If the facts weren't presented at all, you've probably got a claim based on the ineffective assistance of counsel in failing to properly investigate the case and prove up those facts at trial. The USSC citation for this claim is Wiggins v. Smith, 123 S.Ct. 2527 (2003). If your attorney legitimately tried to present the facts but the judge wouldn't allow them to come into evidence, consider a claim based on denial of the right to present a defense. For this claim, cite Chambers v. Mississippi, 410 U.S. 284 (1973). If you have discovered facts since the trial that were concealed by the State during the discovery phase of the case, you've got a potential claim based on violation of the State's obligation to provide evidence favorable to the defense. Cite Brady v. Maryland, 373 U.S. 83 (1963). Of course, you can cite other cases besides USSC authority if you want (circuit cases are considered "persuasive" authority if consistent with USSC decisions), but as these examples show, finding a USSC case to support your claim is straightforward, and there's no need to delay or clutter up the drafting of the petition with citations to cases from other jurisdictions. Also, keep in mind that the petition merely points the court to the key cases on which your habeas corpus claims are based. You will have an opportunity to cite additional authorities in state court if the court orders informal briefing, or in federal court when you file your Traverse.
3. Mine the gold from the direct appeal.
A competent appellate lawyer will research and present the best legal arguments you have on your direct (first) appeal. Most legal claims can be framed, not only as state law arguments, but also in terms of the denial of a federal constitutional right, which is required for habeas corpus claims. Stating a legal claim as one based on the federal Constitution is called "federalizing" the claim. Most good appellate lawyers will do this on the direct appeal by making sure that the strongest claims are federalized and presented to the state's highest court. (In California, this is done in the Petition for Review which must be filed within 40 days of the date the appeal is denied.) Thus, one of the most important things to do in drafting your habeas corpus petition is to focus on the Petition for Review (or similar document in other states) and see whether the claim(s) which you consider most persuasive were also federalized. If so, those claims are "ripe" and ready to be included in a federal habeas corpus petition. Alternatively, if a claim is persuasive but hasn't been federalized, then you should bring it first in a state habeas corpus petition, properly supported by USSC authority, and presented to the state's highest court _ when denied there, the claim will be ripe for presentation on federal habeas corpus. I call this process "mining the gold" from the direct appeal, because it often provides you with a rich and valuable source of potential claims for federal habeas corpus that have already been briefed in state court.
4. Take your best shot(s).
Almost all judges have little patience for habeas corpus to begin with, and the windier and more convoluted a petition becomes, the more likely it is that this limited judicial patience will run out. Furthermore, as a practical matter, no petitioner ever wins on more than one habeas corpus claim at a time anyway. Because of these realities, prisoners who think that the best habeas corpus petition is the one which contains the most claims are sorely misguided. Rather, quality counts way more than quantity on habeas corpus, and petitions that are loaded with dead weight usually wind up dead in the water. Therefore, if you can winnow your claims down to no more than the two or three best ones, do so, and thereby give yourself the best chance that the court will give your best claims the focused attention they deserve.
5. Obtain and obey the local rules.
Imagine a football player who knocks himself out learning to run or catch a pass, but who doesn't bother to learn the basic rules of football. Such a player may develop good running or passing skills, but the player is almost certain to make critical mistakes during game-time. It's no less foolish to knock yourself out drafting a habeas corpus petition without making sure that the petition complies with the local court rules. Before drafting a habeas corpus petition, order the local rules from the court by mail or have a family member obtain them on-line and provide them to you. The rules which are most important in filing the petition are those which require the use of the court-approved form, which varies from court to court; service of a copy of the petition on your opponent; payment of any required fee ($5 for a federal habeas corpus petition); and the rule which limits any supporting points and authorities to 25 pages in length.
6. Don't be late.
No matter how persuasive a habeas corpus petition might be, if it's filed after the statute of limitations runs, it's probably going to the habeas graveyard. The AEDPA statute of limitations runs one year after the conviction becomes final on direct appeal, and in most jurisdictions "finality" occurs 90 days after the state's highest court denies review on the direct appeal. State habeas corpus tolls the AEDPA statute of limitations, but only if the state habeas corpus petition is filed before the federal statute of limitations has run out. Because the statute of limitations is so critical, the first thing to do before you even start working on a habeas corpus petition is to determine the AEDPA statute of limitations date, calendar it, and make sure that your work schedule will allow you to do whatever you have to do in order to file your petition in time. If you're filing a federal habeas corpus petition you only need to make sure that the petition is provided to the prison staff for mailing before the statute of limitations date runs. However, if you're filing a state habeas corpus petition, you will also need to leave yourself enough extra time at the back end to allow for the time you will need to file in federal court after your state habeas corpus petition has been denied by the state's highest court.
7. Use Exhibits wisely and well.
Exhibits are essential to a successful habeas corpus petition. However, the Exhibits should be chosen with care and presented in a way that will have the most impact. The most important exhibits are declarations by witnesses and/or experts which add important factual information to the court record which isn't already there. Least important are bulky excerpts from the trial transcript, which do little more than duplicate the record that already exists, and which will often cause the court to start leafing through the Exhibits quickly rather than concentrating on the those key documents that the petitioner really wants the judge to consider. Therefore: (a) When you present your Exhibits, lead off with any expert witness declarations, test results, and any documents that were not presented at trial; next present any declarations from non-expert witnesses; and finish up with any transcript excerpts. (b) When presenting transcript excerpts, rather than presenting large blocks of testimony, reproduce only the most important pages of transcript that you want to call attention to, and highlight or underline the most critical portions. (c) Number all the pages of the Exhibits consecutively, and make up an Index To Exhibits that you place at the front of the Exhibits. The Index should include columns showing the title of the document, the page number(s) at which the document appears, and the habeas claim to which the Exhibit pertains.
8. Back up all your IAC claims with a showing of "prejudice".
Ineffective assistance of counsel (IAC) claims are especially appropriate for habeas corpus because, by definition, they are based on matters outside the appellate record, and will be heard and determined for the first time when you bring them on habeas corpus. Nevertheless, precisely because IAC claims are so common on habeas corpus, judges quickly grow tired of them, especially when they degenerate into a laundry list of every criticism of the lawyer's performance that the prisoner can possibly think of. This kind of "sour grapes" approach ignores the principle that, for an IAC claim to succeed, the petitioner has to show not only "deficient performance" by the lawyer, but also "prejudice" _ i.e., that the mistakes which the lawyer made changed the outcome of the trial. The best way to take on the challenge of showing prejudice on an IAC claim is to use the Exhibits to provide a "cure" for every "ailment" in the attorney's performance. For example, if the prisoner claims the lawyer was deficient in failing to call a witness for the defense, the Exhibits should contain a sworn declaration from that witness which summarizes the testimony that would have been given had that witness been called at trial. If the IAC claim is that the lawyer failed to call an expert to contradict the prosecution's forensic evidence, the Exhibits should include an expert witness declaration from a newly-retained expert which explains how the prosecution's evidence was flawed and how the expert could have demonstrated that to the jury if called as a witness at the trial. Bottom line: Back up every IAC complaint with a specific showing as to how a competent attorney would have overcome the trial lawyer's deficient performance.
Kent Russell specializes in habeas corpus and § 2255 motions. He is the author of the California Habeas Handbook (4th Edition: 2003), which explains habeas corpus and the AEDPA. The book can be purchased with a check or money order for $29 (complete, includes 1st class postage, no order form needed), directly from the Law Offices of Russell and Russell, 2299 Sutter Street, San Francisco, CA 94115. "
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