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Habeas Hints: Traverse Motion Responses

This column is intended to provide “Habeas Hints” to prisoners who are considering or handling habeas corpus peti-tions as their own attorneys (“in pro per”). The focus of the column is on habeas corpus practice under AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.


Short of an Evidentiary Hearing, which is granted in very, very few habeas corpus cases, by far the most critical stage for the Petitioner on federal habeas corpus case is the filing of the Traverse and supporting documents, the most impor-tant of which is the “Points and Authorities (hereafter “Ps&As”) in Support of the Traverse”.

Ironically, the Habeas Corpus Rules do not even mention the word “Traverse”, referring to it instead as the “Reply”, and suggesting that it is optional rather than required. (See Habeas Rule 5(e) [“The petitioner may submit a reply to the respondent’s answer or other pleading within a time fixed by the judge.”].) Nevertheless, the local rules of almost every District Court use the phrase “Traverse”, and in the vast majority of cases, the Petition does make it to the Traverse stage, but no further, before it is dismissed. Therefore, the Traverse is absolutely essential to staying alive on habeas corpus, because it is only through the Traverse and supporting documents that the Petitioner can persuade the judge that his or her case is one of those few that should be granted an Evidentiary Hearing instead of being dismissed outright.

Procedurally speaking, the Traverse responds to the Attorney General’s Answer, and comes into play when: (1) The court determines that the Petition is in the proper format, does not contain any obviously unexhausted claims, and orders the Attorney General to file a response to the Petition; and (2) The Attorney General (“AG”) concludes that the Petition is not subject to a Motion to Dismiss based on some potentially fatal procedural defect (the most common being a statute of limitations violation or failure to exhaust all federal habeas corpus claims in the state’s highest court). Where both of these criteria have been met, the AG will file an Answer and supporting Ps&As, and will use the latter to try and convince the District Court to dismiss the case on the basis that the petitioner has failed to comply with AEDPA, which requires a showing that the state court’s previous rejection of the petitioner’s habeas corpus claim(s) was either contrary to, or re-sulted from an unreasonable application of, U.S. Supreme Court law.

Simply stated, is the Petitioner’s job at the Traverse stage to rebut the showing made by the AG in the Answer, and to persuade the federal judge that the petitioner’s habeas case has enough merit that it is one of those few (less than 1%, statistically) that merits an Evidentiary Hearing rather than an outright dismissal. If the petitioner succeeds in doing so, counsel will be appointed, and the petitioner will get a chance at the hearing to prove, by a preponderance of the evidence (51% or more), that a violation of the Constitution occurred, and that this fundamental rights violation, more likely than not, affected the jury’s verdict. On the other hand, if the Traverse is unsuccessful, the Petition will be “dis-missed with prejudice”, which means – barring the very unlikely prospect of a successful appeal – the end of the road on habeas corpus.

The actual “Answer” and “Traverse” themselves are nothing more than pleadings of a couple of pages in length, which use legal jargon to set forth the general contentions of the parties.
Although it’s necessary to file the “Traverse” to respond to the contentions in the Answer, this is relatively easy to do (see, e.g., the sample form in my California Habeas Handbook), and there’s not much strategy involved in doing it. Here, instead, the focus is on the supporting Ps&As, which is where the parties lay out the legal and factual arguments that are either going to persuade the judge to order an Evi-dentiary Hearing or to permanently dismiss the case without any hearing.

Typically, the Ps&As which the AG files in support of the Answer will run around 20-25 pages in length, and will con-tain the following sections: (a) a Procedural History of the case (aka “Statement of the Case”, which summarizes the de-cisions made in all previous courts, starting with the trial court), (b) a Statement of Facts (summarizing the facts which led to the conviction and sentence in the state court), (c) a Legal Argument section, and (d) a “Conclusion”. The Legal Argument section is the guts of the Ps&As, and it will usually start with a “Standard of Review” sub-section summarizing the general legal standards which guide the court in ruling on the Petition. This section will then go on to attack each of the petitioner’s habeas corpus claims on the merits, usually in separate sections bearing roman numerals, one for each claim. The Conclusion will wind up with a very brief statement of the relief that the AG is seeking, which in almost all cases is that the Petition be dismissed with prejudice because of the failure to state a claim that complies with AEDPA’s requirements.

In responding to the AG’s Ps&As with a Ps&As in support of the Traverse, I draw on briefing skills that I have honed over 35+ years of habeas and appellate practice in hundreds of cases. There are, however, some basic strategies which I use, and for you pro-pers who have already taken on the challenge of representing yourselves on habeas corpus, con-sider the following “Habeas Hints” as you draft your own documents.

Habeas Hints:

Remember, and keep reminding the court, that the purpose of the Traverse is merely to obtain an Evidentiary Hear-ing, not to win the case outright.

In modern times, virtually no habeas corpus Petition is ever successful unless the court first grants an Evidentiary Hearing. Under AEDPA, a hearing is required if: (1) the petitioner alleges facts which, if true, would entitle him to relief on habeas corpus; (2) the state court has not, after a full and fair hearing, reliably found the facts, and (3) the Petition does not consist solely of conclusory, unsworn statements unsupported by any proof. See, e.g., Phillips v. Woodford, 267 F. 3d 966, 973 (9th Cir. 2001); Earp v. Oronski, 431 F. 3d 1148, 1167 (9th Cir. 2005).

Working backward, #3 is satisfied so long as the Petition is supported by sworn declarations and/or admissible evi-dence – something that is not terribly hard to do, so long as the Petition and declarations are in the proper form. #2 is met when the petitioner has requested a hearing in state court but the Petition was denied without one, which is what almost always happens nowadays.

That leaves #1, which is admittedly a demanding requirement. Note, however, that the italicized words require that, in deciding whether or not to grant an Evidentiary Hearing, the court must accept as “true” the facts that the petitioner has alleged. That means that, where there is a factual dispute which needs to be resolved in order for the court to rule on the validity of a habeas claim, the court must accept Petitioner’s version of the facts and cannot reject them, no matter how loudly the AG argues that they are “not credible”. This is a much easier standard to satisfy than the one which a petitioner would face if an Evidentiary Hearing had been granted, where the petitioner would have to actually convince the court, by the preponderance standard, that the facts s/he has alleged are actually true. Therefore, it is important to remind the court early and often that this lower standard is the only one the petitioner needs to meet on the Traverse. There are several times when that can and should be done: First, when the AG sets forth the “Standard of Review”, normally at the start of the Legal Argument section of the AG’s Ps&As, the AG will always stress how hard it is to satisfy the AEDPA require-ments, but will often gloss over or entirely omit the much more forgiving standard of review that governs whether or not to grant an Evidentiary Hearing. Hence, the petitioner should always emphasize that the much lesser standard applies at the Traverse stage, where the court must accept the Petitioner’s facts as true. Second, in the body of the Legal Argument section, whenever the AG has argued that the Petition has alleged facts which are “not credible”, or that witnesses decla-rations supporting the Petition are “unworthy of belief”, cite contrary facts from the habeas record, and then remind the court that, because credibility disputes can only be resolved at an Evidentiary Hearing, the AG’s arguments attacking the “credibility” of the Petition or the supporting witnesses are, in effect, arguments against granting the summary dismissal that the AG is seeking. Finally, in your Conclusion section, do not request simply that the court grant the Petition, but rather that the court grant an Evidentiary Hearing on the Petition and then grant the Petition.

Use rebuttal evidence to support the Traverse Ps&As.

Although there is no specific rule allowing rebuttal evidence at the Traverse stage, there is no rule against it, and it is a basic principle of the Anglo-American legal system that a party is permitted a fair opportunity to challenge or rebut the contentions made by one’s opponent. Furthermore, the petitioner has the burden of proof on habeas corpus, and the party having that burden traditionally gets to go “first and last” (the Petition being first and the Traverse last).
Therefore, I strongly recommend using rebuttal in support of the Traverse, which can be accomplished by submitting a set of counter-declarations entitled “Rebuttal Declarations in Support of Traverse”, which are then stapled, indexed, and filed as a sepa-rate document. Common examples of rebuttal declarations are the following: (a) a declaration from a lay witness whose original declaration was attacked in by the AG in the Answer Ps&As, or from an expert witness whose opinions or meth-odology were challenged by the AG; and (b) a declaration by the petitioner explaining or fleshing out trial testimony or statements from a previous habeas declaration which the AG has attacked.

Be forewarned, however, about using rebuttal at the Traverse stage: As valuable as it can be, the AG may file a Mo-tion to Strike some or all of it on the basis that it was not presented in the first instance to the state court, which is nor-mally required by the exhaustion doctrine. If the AG does move to strike, respond by filing a timely Opposition (usually due within 10 days of the Motion to Strike unless an extension is timely requested) and consider one or more of the fol-lowing counter-arguments: (a) The exhaustion principle is not violated by rebuttal evidence which merely “supplements” a habeas corpus claim that was previously exhausted, rather than altering the “fundamental nature” of that claim. See Anderson v. Johnson, 338 F. 3d 382, 388 (5th Cir. 2003), citing Vasquez v. Hillery, 474 U.S. 254, 260 (1986) [supple-mental evidence that does not fundamentally alter the legal claim already considered by the state courts can be consid-ered for the first time on federal habeas corpus]. (b) The Petition was summarily denied in the state court without the AG having to respond, so the need for the rebuttal evidence first arose in federal court, when the original evidence was chal-lenged in the Answer. (c) The rebuttal is being offered to “expand the record”, which is expressly permitted by the Ha-beas Corpus Rules. (See Habeas Rule 7, “Expanding the Record”.)

Rebut every single argument that the AG makes in its Ps&As.

The Traverse is like “crunch time” in a playoff game: You have to step up now and block your opponent’s moves, or you won’t get another chance before the game is over. Therefore, do the best you can to rebut every single argument that the AG has made in its Ps&As. Factual arguments are rebutted by bringing forth contrary facts from the appellate record, the habeas record, and/or your rebuttal exhibits, and by then arguing that any factual disputes can only be resolved at an Evidentiary Hearing. Legal arguments are rebutted by first setting forth the most favorable law that you can find to support your position, and by then taking each contrary case the AG has cited and either demonstrating that the case is no longer good law, or that it is distinguishable factually from your case (something that you can do with almost any case).

Kent A. Russell specializes in habeas corpus and post-conviction cases. He is the author of the California Habeas Hand-book, which thoroughly explains state and federal habeas corpus and AEDPA. The latest printing of the 5th Edition (com-pletely revised in September, 2006, with seasonal revisions since then) can be purchased for $39.99 (cost is all-inclusive for prisoners; others pay $10 extra for postage and handling). Use the order form available on the website -- - or just send your address and check or money order to: Kent Russell, “Cal. Habeas Handbook”, 2299 Sutter Street, San Francisco, CA 94115.

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