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Habeas Hints: The Year in Review

by Kent Russell, Blaire Russell & Chandra 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 on habeas corpus under AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice in federal courts throughout the United States.

Habeas Year In Review: 
Supreme Court Term 2009-2010

Holland v. Florida, 130 S. Ct. 2549 (June 14, 2010).

The question in Holland was whether the AEDPA’s 1-year statute of limitations could be “tolled” (suspended) for equitable reasons after the state post-conviction proceedings had become final and before a federal habeas corpus petition was filed. In an opinion by Justice Breyer, the Supreme Court held that the one-year statute of limitations on petitions for federal habeas relief by state prisoners is subject to “equitable tolling”, whereby a petition that would otherwise be untimely is rescued by “extraordinary circumstances.”

In Holland, counsel (Collins) was appointed for the petitioner (Holland) on state and federal habeas. Despite Holland’s repeated attempts to contact Collins to remind him about the AEDPA limitations period, Collins didn’t respond to Holland’s communications and then failed to file a federal habeas petition before the AEDPA clock ran out. When Holland discovered that the deadline had expired, he filed a federal habeas petition pro se, five weeks late. Both the federal district court and court of appeals held that Holland’s petition was untimely, and that Collins’s conduct—while clearly negligent – did not amount to an “extraordinary circumstance” warranting equitable tolling.

The U.S. Supreme Court reversed, explaining that the statute of limitations is subject to equitable tolling in “appropriate cases” where the Petitioner can show: (1) that s/he has been diligent in pursuing his rights; and (2) that some “extraordinary circumstance” prevented timely filing. Rejecting the more rigid standard applied by the Eleventh Circuit, which required a showing of bad faith, dishonesty, or divided loyalty, the Supreme Court held that equitable tolling could be established without a showing of intentional misconduct by the lawyer. Unfortunately, however, the Court fell short of holding that “mere negligence” by an attorney, such as “miscalculating” the deadline, would suffice to establish equitable tolling, and the Court did not actually decide whether Collins’s misconduct satisfied the equitable tolling standard.

Nevertheless, in practical terms, Holland helps state prisoners who have missed the federal filing deadline because of gross negligence by an attorney that caused the one-year deadline to run, without any contributing fault by the prisoner. Before Holland, only a showing of “egregious attorney misconduct” could suffice for equitable tolling, which essentially required some showing of dishonesty or willful abandonment by the lawyer. In the wake of Holland, however, a prisoner can establish equitable tolling by showing severe attorney negligence, even if there was no evidence that the attorney purposely allowed the statute to run. Although Holland requires more than “garden variety negligence”, just how much more is required will have to await subsequent cases. In the meantime, a petitioner whose AEDPA statute of limitations has run due to attorney error should amass as many facts as possible to “amp up” the claim of attorney error to one of very serious negligence, and cite Holland for the proposition that, in such cases, attorney bad faith is not necessary to establish equitable tolling.

Beard v. Kindler, 130 S. Ct. 612 (December 8, 2009).

In Kindler, the Court held that a state procedural rule that is only discretionary can still be “firmly established and regularly followed”, and thus serve as an adequate ground to bar federal habeas review. Self-described as a “narrow” case, Kindler still has practical ramifications for state prisoners whose habeas claims have been procedurally defaulted by the state courts under a discretionary state rule. For example, in Kindler the procedural rule at issue allowed the state court to reject all of the petitioner’s habeas claims summarily if the petitioner escaped from prison and became a fugitive while the post-conviction proceedings were pending. Still, this “discretionary” decision by the trial court was adequate to bar federal post-conviction relief.

Importantly, however, lower courts have held that Kindler does not apply to rules that state courts, purporting to exercise their discretion, apply arbitrarily or in violation of established precedent. See, e.g., Bostick v. Stevenson, 589 F.3d 160, 165 n.6 (4th Cir. 2009). In other words, federal habeas review should not be barred under the adequate state ground doctrine if the state court procedurally defaulted a habeas claim for reasons that were arbitrary or inconsistent with well-established precedent.

California prisoners should consider using the above reasoning to attack lower court decisions holding that petitions which are filed within the AEDPA period of limitations are nevertheless “untimely” under California law. California judges have the discretion to dismiss as “untimely” habeas petitions that are filed after “substantial delay”, but to date there is no California Supreme Court authority applying that principle to support the dismissal of a case filed within the AEDPA limitations period – i.e., within one year of the date the conviction became final on direct appeal. If faced with such a ruling by a lower California court, argue that although discretionary decisions applying procedural bars in the state court can be binding in federal court if they are consistently and regularly followed, decisions applying California’s untimeliness bar to petitions filed within the AEDPA limitations period are arbitrary, contrary to California Supreme Court precedent, and therefore are not binding in federal court because they are not firmly established and regularly followed.

Magwood v. Patterson, 130 S. Ct. 2788 (June 24, 2010).

Magwood holds that the AEDPA bar on a “second or successive habeas corpus application”, which requires that a petitioner obtain permission to file in the Court of Appeals before filing in the District Court (permission which is almost never granted), does not apply when the petitioner is challenging a separate sentencing judgment.

Magwood filed an initial habeas petition that resulted in re-sentencing. After he was re-sentenced, he filed another habeas petition alleging a claim that had not been raised in the first petition. The state argued that the claim raised in the second petition could have been raised after the first sentence was imposed and was therefore an impermissible second habeas application. But the Court sided with Magwood, holding that the relevant inquiry in determining whether a habeas application is second or successive is whether the second petition attacks the same judgment as the first. Because Magwood’s second habeas petition challenged a separate sentencing judgment, it did not constitute a second or successive application.

Magwood is interesting because the decision granting relief was written by Justice Thomas, one of the staunchest conservative justices, and concurred in by only three of the four liberal justices. Hence, there is hope that the Magwood holding might be applied and/or extended to allow, following re-sentencing, the filing of “old” claims that were omitted from a first petition, but which became “stronger” because of matters that came to light leading up to or during the re-sentencing proceedings.

McDaniel v. Brown, 130 S. Ct. 665 (January 11, 2010) (per curiam).

McDaniel examines the oft-cited case of Jackson v. Virginia, which holds that, to establish a habeas corpus claim based on insufficiency of evidence, the reviewing court must decide that no rational juror would have voted for a verdict of guilty – a standard of review that is already among the toughest to satisfy on habeas corpus. The McDaniel Court concluded that, because the purpose of the Jackson analysis is to determine whether the jury acted in a rational manner based on the evidence before it, in considering a Jackson claim, the reviewing court is strictly limited to evidence that is in the trial record, and cannot consider contrary evidence submitted for the first time on habeas corpus.

Significantly, McDaniel’s refusal to allow consideration of new evidence submitted on habeas corpus applies only to Jackson claims based on insufficiency of the evidence, and not to other habeas corpus claims, such as ineffective assistance of counsel (“IAC”).
Hence, one could get around the McDaniel holding by omitting a Jackson claim and arguing, instead, that petitioner is entitled to relief because his lawyer was ineffective in failing to develop and introduce at trial the evidence now being tendered on habeas. Such a claim would allow for consideration of new evidence in the habeas record that would, under McDaniel, have to be excluded from consideration if tendered by way of a Jackson claim. Similarly, a petitioner could argue that evidence which the trial court introduced was inherently unreliable or flawed, thereby rendering the trial fundamentally unfair and violating Due Process. (See, e.g., Manson v. Brathwaite, 432 US. 98 (1977).) In considering such a claim, the court would have to eliminate the flawed evidence and then decide, based solely on the remaining evidence, whether the improper evidence had “a substantial and injurious influence on the jury’s verdict”. This test is tough, but not as tough as relying solely on the trial evidence to argue a Jackson claim.

In sum, McDaniel makes Jackson claims even more challenging than before, but it has no effect on other habeas corpus claims that seek to introduce new evidence on habeas (e.g., IAC); or Due Process claims which attack a conviction based on demonstrably unreliable evidence.

Padilla v. Kentucky, 130 S. Ct. 1473 (March 31, 2010).

In this IAC opinion written by Justice Stevens, the U.S. Supreme Court held that petitioner’s counsel was constitutionally incompetent for failing to advise petitioner that his conviction for drug distribution made him subject to automatic deportation.
The Supreme Court of Kentucky had rejected Padilla’s ineffectiveness claim on the ground that the advice he sought about the risk of deportation concerned only “collateral” matters. Although that was the same approach applied in many states, the Supreme Court held that there was such a close connection between the criminal process and deportation that the essential question was not whether the risk of deportation was “collateral or direct”, but rather whether counsel’s failure to advise about the possibility of deportation amounted to IAC under the Strickland test.

Under Strickland, the Court first asks whether counsel’s performance was deficient, and then asks whether petitioner was prejudiced by that deficiency. Applying the first prong of Strickland, the Court had no trouble finding that counsel’s performance was deficient, because the consequences of Padilla’s plea could easily be determined from reading the removal statute; his deportation was presumptively mandatory; and his counsel’s advice that deportation was unlikely was clearly wrong. Indeed, the Court went further and said that, even if counsel had said nothing about deportation (rather than giving the wrong advice), his performance still would have been deficient. The Court then remanded to the state courts to analyze the prejudice prong.

In sum, pursuant to Padilla, counsel now have an affirmative duty under the Sixth Amendment to inform their clients when a plea carries a risk of deportation. Prisoners who were deported after pleading guilty while being represented by an attorney who failed to provide accurate advice as to the immigration consequences of the plea could bring an IAC claim based on Padilla. However, keep in mind that if Padilla is viewed as a “new rule” (a likely analysis in my judgment, given that many states applied the Kentucky court’s “collateral consequences” analysis which the Supreme Court held to be flawed), it would only apply to habeas corpus cases in which the conviction was not final as of the date that Padilla was decided.

Smith v. Spisak, 130 S.Ct. 676 (January 12, 2010).

Wood v. Allen, 130 S.Ct. 841 (January 20, 2010).

In these two cases, the Supreme Court issued an opinion rejecting habeas corpus relief, albeit leaving unresolved issues that are significant in habeas corpus litigation.
In Smith, the court stated that it is still an open question whether deference is due to a lower court opinion on IAC that does not specify whether the claim is being rejected because counsel did not perform deficiently or because of a failure to demonstrate prejudice.

In Wood, the court side-stepped the question the Court explicitly left open in a prior case: whether, in order to obtain relief on a habeas corpus claim that was denied by the state courts, (a) the petitioner need only establish that the state court’s factual determination was “unreasonable” [§ 2254(d)(2)]; or (b) whether the petitioner must also carry the burden of rebutting, by clear and convincing evidence, a presumption that all the state court’s factual findings are correct [§ 2254(e)(1)].

Where one or both of the above issues is involved in a federal habeas corpus case that has been dismissed, the petitioner should consider raising them as an additional basis for obtaining a COA.

Kent A. Russell specializes in habeas corpus and is the author of the California Habeas Handbook, which thoroughly explains state and federal habeas corpus under AEDPA. The 5th Edition, completely revised in September of 2006 and recently updated in 2010, can be purchased for $49.99, which includes priority mail postage. Only prisoners who are paying for the book with a state-issued check or one from their prison account are eligible for the special prisoner discount price of $39.99, which must be claimed at the time of purchase. An order form can be obtained from Kent’s website (, or simply send a check or money order to: Kent Russell, “Cal. Habeas Handbook”, 2299 Sutter Street, San Francisco, CA 94115.

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Related legal cases

McDaniel v. Brown

Wood v. Allen

Magwood v. Patterson

Holland v. Florida

Padilla v. Kentucky

Smith v. Spisak

Beard v. Kindler