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

California Habeas Handbook, Expanded 5th Edition, by Attorney Kent Russell, Sept. 2006, 114 pages plus appendix, soft cover

Reviewed by John E. Dannenberg

Three years after publishing his 67 page 4th Edition of the California Habeas Handbook (CHH) [see: PLN, Jan. 2004, p.18], Attorney Kent Russell has rewritten and expanded this tutorial guide to aid pro per prisoners in researching and filing successful habeas corpus petitions in state and federal courts. Although billed as a ?California? handbook, the CHH deals mainly with federal habeas corpus petitions grounded in U.S. Supreme Court precedent; as such, it is relevant to all 2.3 million U.S.
prisoners. Printed in larger type (happily, for aging prisoners), with 40 % more text and updated to include Russell?s popular quarterly Prison Legal News column ?Habeas Hints? through mid-2006, the 5th Edition is also current with 2006 U.S. Supreme Court case law.

Russell explains that this handbook is aimed principally at state prisoners challenging their convictions or sentences. It is not for challenges to conditions of confinement (i.e., 42 U.S.C. § 1983 complaints). And because condemned prisoners are always appointed counsel, Russell advises reliance on those attorneys. [Note: The CHH can yet usefully serve to stimulate any prisoner to raise pertinent questions to his attorney.] The CHH is also not a substitute for an attorney, nor is it a substitute for scholarly ?footnote heavy? research treatises.
That said, this writer nonetheless finds the CHH to be a comprehensive ?prisoner-friendly? self-instruction guide that will, if heeded, steer the pro per litigator around those pitfalls of habeas law that most often cause good cases to be needlessly lost. Similarly, the CHH?s informative research tools should allay the filing of hopelessly flawed petitions.

It could be said that the CHH is a ?how not to? guide; its ten chapters ultimately deal with how to live with the 1996 Anti-Terrorist and Effective Death Penalty Act (AEDPA), designed perniciously by Senator Orrin Hatch to hasten executions in the states, but at the expense of all non-condemned prisoners? access to federal judicial review of unconstitutional state criminal convictions.

Russell begins by alerting readers to crucial statutory time constraints; reading even the CHH could be a waste of time if you fail to heed the one-year cumulative (and jurisdictional) AEDPA filing-time limit. He also warns of a new and fatal federal-court-enforceable 60-day delay limit between levels of California state writ filings, created by a recent U.S. Supreme Court decision (Evans v. Chavis (2006) 126 S.Ct. 846). Next, he schools readers in ?Federal Habeas 101,? the proper exhaustion of all claims below in the state courts. [Here, he models California protocol, but other state law may be substituted by readers elsewhere.] Russell stresses proper ?federalizing? of all claims in state court by relying upon settled U.S. Supreme Court case law. To guide readers on just what is ?settled? U.S. Supreme Court case law, he provides a greatly improved ?Habeas Grounds Table,? which lists 128 legitimate claims (in nine categories) with supporting case citations. This table has been embellished with a column giving writ writers precisely the plain statement of the constitutional right upon which the decision is based.
Hypothetically, from this cookbook listing, a petitioner could make a proper claim of the loss of their rights by copying this statement, adding (as you must) all relevant facts and the record of court exhaustion below.

Indeed, to aid you in making a ?decent looking? showing, Russell has expanded his appendix to 68 pages to include sample professional pleadings at each stage of federal habeas proceedings. These include sample attachments to petitions, a traverse (with points and authorities), objections to magistrate?s findings and recommendations, notice of appeal, application/motion for Certificate of Appealability (in both the district court and the court of appeal), opening brief on appeal and petition for writ of certiorari to the U.S. Supreme Court. The appendix also contains the latest forms for California and federal courts, including writ petitions, in forma pauperis applications, addresses for courts and attorneys general to serve petitions, proofs of service and even pleading paper.

Beyond prior editions? detailed tour through the maze of state and federal habeas rules/pitfalls, the CHH now more than ever aggressively instructs the pro per litigator on how to go from a blank piece of paper to a polished looking and legally supported presentation -- all from the confines of your cell. Chapters 8 and 9 literally walk petitioners through each line of both California and federal habeas corpus petitions. In sum, the 5th Edition CHH is a ?one-stop-shop? for habeas corpus instructions, a handbook that no serious writ-writer should be without.

Author Russell closes where he begins, advising petitioners to always try to get an attorney. To this end, he offers his own services, grounded in 35 years of practice in state and federal courts throughout the United States. He specializes in post-conviction litigation including state and federal habeas corpus petitions, evidentiary hearings, § 2255 (federal prisoner) petitions and appeals. The new 5th Edition is available to prisoners for $39.99 (incl. tax and priority mail) [$49.99 for non-prisoners] from Kent Russell, California Habeas Handbook, 2299 Sutter St., 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