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Habeas Hints: Overcoming Post-Conviction IAC

Habeas Hints

by Kent A. Russell

This column provides "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.

Overcoming Post-Conviction IAC

"IAC" -- the well-known abbreviation for "Ineffective Assistance of Counsel" -- is, by its very nature, based on evidence that was not presented at trial or on direct appeal. Thus, both the state and federal courts exempt IAC claims from the procedural rules that normally preclude consideration of habeas claims that could and should have been brought first on direct appeal.

On the other hand, when the IAC occurs after the direct appeal is over, it presents serious procedural problems. That's because the 6th Amendment, which is the source of the constitutional right to effective assistance of counsel, only guarantees that right at trial and on direct appeal. As a result, there is no right to counsel at all on habeas corpus, and therefore no right to the effective assistance of habeas counsel. Thus, post-conviction IAC that has created AEDPA statute of limitations problems -- the focus of this column -- requires that petitioners take matters into their own hands by using creative methods to stop the bleeding.

The AEDPA Statute of Limitations

Apart from a few exceptions that rarely apply, the AEDPA statute of limitations prohibits the federal courts from considering any habeas corpus petition that was not filed within 1 year of the date the petitioner's conviction became final on direct appeal, less any time that the limitations period was tolled (suspended) while the petitioner was pursuing state habeas corpus. Although almost all state appellate lawyers these days are aware of the AEDPA, some don't advise prisoners about it at all. Others fail to explain that tolling is only granted to state habeas corpus proceedings that are started up before the AEDPA runs out.

Prisoners facing AEDPA statute of limitations problems because of these and other forms of bad advice by post-conviction counsel should consider the following Habeas Hints.

Habeas Hints

1. If there is still time to cure a default caused by bad legal advice, do so.

If a prisoner realizes that bad legal advice is about to cause a problem with the AEDPA statute of limitations, it's always better to take quick defensive action to prevent the default, rather than allow the default to occur and then try and explain it away.

One example is where counsel on the direct appeal refuses to file a "Petition for Review" in the state's highest court after the prisoner loses in the Court of Appeal. Petitions for Review are "optional" following an unsuccessful appeal, and some lawyers refuse to file one, claiming that the issues on appeal aren't of sufficient "statewide importance". In the old days before the AEDPA, that rationale was defensible, because the primary goal was to have the State Supreme Court actually grant review, which very rarely occurs in criminal cases. Under the AEDPA, however, the Petition for Review has taken on several important new functions which, in my judgment, make it necessary to file one in all cases, even where review is almost certainly going to be denied. First, the Petition for Review permits a petitioner to exhaust potential habeas claims made on appeal before the AEDPA even starts to run. Second, claims which have been fully considered on appeal should be federalized and exhausted on direct appeal, rather than waiting for state habeas corpus and running the risk of incurring a procedural default. Finally, even if the Petition for Review is denied, filing a timely one keeps the AEDPA statute of limitations from starting up during the months that the court is considering the petition, and for an extra 90 days after the denial. Hence, if your lawyer refuses to file a Petition for Review, consider filing it yourself within the time (in California, 40 days) that you are allowed following the date of the Court of Appeals opinion. If your appellate lawyer has "federalized" the appellate claims by citing U.S. Supreme Court authority which supports them, you can copy the arguments verbatim from the Appellant's Opening Brief and re-submit them to the California Supreme Court in a "Petition for Review". If the lawyer hasn't federalized the claims, try doing that yourself by adding onto the end of your lawyer's appellate arguments the statement of a federal constitutional claim supported by the facts, and the U.S. Supreme Court authority on which the claim is based. (See, e.g., the "Habeas Claims Table" contained in my California Habeas Handbook.)

Similarly, if you find out that the AEDPA is about to run out while there's still a little time left to file a habeas corpus petition, then quickly prepare and "file" the required form on your own, using the "prison mailbox rule". If necessary, this can be done in a period of a few days, and afterward you should be allowed to add supporting documents by amendment.

2. If the AEDPA statute of limitations has already run, try to establish "good cause" for the default by demonstrating that it occurred because of erroneous advice by the lawyer who handled the direct appeal.

The 6th Amendment does guarantee the effective assistance on direct appeal. Therefore, if the lawyer who handled the appeal gave wrong or misleading advice about the AEDPA statute of limitations, and if that bad advice led to the running of the AEDPA statute of limitations, the prisoner can argue that this violated the 6th Amendment, and therefore constituted good cause for the late filing under the AEDPA. The best place to look for such proof is in the correspondence from the appellate lawyer. If the bad advice was only given orally and is not reflected in the correspondence, then try and obtain declarations from family members who heard the lawyer give the bad advice. If the best you can do is show from the correspondence that the lawyer gave you no advice at all about the AEDPA, you may not be able to clear the 6th Amendment hurdle, because the court could decide that an appellate lawyer has no constitutional duty to give advice about habeas corpus in the first place. Nevertheless, you can try arguing that advice about the AEDPA's time requirements is so fundamental, and so intimately linked to proceedings on direct appeal, that failure to advise at all about the AEDPA necessarily amounts to appellate IAC, which is covered by the 6th Amendment.

3. If the AEDPA has run because of bad advice by habeas corpus counsel, then argue that the statute of limitations is equitably tolled based on "attorney misrepresentation" rather than ordinary attorney negligence.

Even though "equitable tolling" is available for defaults caused by the State rather than by the prisoner, numerous cases have held that the State has no constitutional duty to furnish any lawyer on habeas corpus, and therefore "ordinary negligence" by a habeas corpus lawyer regarding the AEDPA statute of limitations cannot be the basis for equitable tolling. On the other hand, a few cases have allowed for an exception to this general rule when the lawyer goes beyond "garden variety negligence" and crosses the line into "misrepresentation" or "lying". For example, where habeas counsel promises that the attorney will file a timely habeas corpus petition and then fails to do so, an oft-cited Third Circuit case holds that this amounts to attorney misconduct that will support a relief from default on the statute of limitations. Seitzinger v. Reading Hosp. and Medical Center, 165 F.3d 236 (3rd Cir. 1999). If you can show through canceled checks and correspondence from habeas counsel that the attorney accepted a fee and then broke a promise to file a timely habeas corpus petition, cite Seitzinger, and argue that your petition is entitled to equitable tolling for all the time that habeas counsel misled you.

4. Look for "newly discovered evidence" that can be used to re-start the AEDA statute of limitations.

The AEDPA alternatively provides that a federal habeas corpus petition can be filed within one year of the date that the petitioner, acting with reasonable diligence, was able to discover "new evidence" on which the habeas corpus petition is based. Therefore, if the basic 1-year period has already run out, try and develop "new evidence" that will hopefully get it to start up all over again. For example, where the claim can be based on facts developed in a post-conviction investigation, ask the investigator to generate a report containing as many facts as possible, and argue that the statute of limitations does not run until one year from the date of the investigation report containing the "new evidence".

5. Procedure: File a federal habeas corpus petition ASAP after discovering that the statute of limitations has run; and, if the claim(s) are unexhausted, also file a state habeas corpus petition while asking the federal court to issue a stay, pending exhaustion.

If, when a prisoner discovers that the AEDPA has already run as a result of IAC, all of the habeas corpus claims in the federal petition have been exhausted in state court, then the prisoner should file a federal habeas corpus petition ASAP in federal court, accompanied by a supporting declaration from the petitioner that lays out, in as much detail as possible, the facts which explain the delay. Then, the petitioner should be prepared to argue forcefully against dismissal by filing a timely Opposition to the Motion to Dismiss that the Attorney General will undoubtedly file.

If all the habeas corpus claims have not been exhausted, the petitioner has an additional problem to deal with. On the one hand, once the AEDPA has run, it's too late to get any tolling for state habeas corpus, so all the time it takes to exhaust in state court will just make the petitioner more and more delinquent on his or her federal petition. On the other hand, a federal court cannot consider a habeas corpus petition that contains any claim that has not been exhausted in state court. Faced with this dilemma, I recommend the following: [1] File a state corpus petition containing the unexhausted claims directly in the State Supreme Court. In the space on the state petition where it asks why you did not file it in a lower court, explain that IAC has caused the AEDPA to expire, that you need to complete exhaustion as soon as possible, and that you are therefore bypassing the lower courts on state habeas. [2] Simultaneously with your state habeas corpus petition, file a federal petition containing your unexhausted claims and, if possible, at least one claim that was exhausted on direct appeal. This will make your petition a "mixed petition". Mixed petitions cannot be considered by the federal court as-is, but if they are amended to temporarily delete the unexhausted claims "without prejudice", the federal court can stay the amended petition in federal court until state exhaustion has been completed, and must do so if refusing to issue a stay might cause the AEDPA statute of limitations to run. [3] Within 30 days after the State Supreme Court denies your state habeas corpus petition, come back to the federal court with a motion to amend the federal petition (which was stayed) to include the now-exhausted claims, and ask for the amendment to relate back to the date you originally filed in federal court. (For case authority supporting the above steps as a solution to the exhaustion dilemma, see Ford v. Hubbard, 330 F.3d 1086 (9th Cir. 2002).)

Kent A. Russell specializes in habeas corpus and appeals. He is the author of the California Habeas Handbook: 4th Edition (2003), which explains habeas corpus and the AEDPA, and which can be purchased by sending the purchase price ($29) to the Law Offices of Russell and Russell, 2299 Sutter Street, San Francisco, CA 94115.

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