After unsuccessful efforts to vacate a state conviction have exhausted all state court remedies, usually by filing an unsuccessful petition for review in the California Supreme Court, it is possible to file a petition for a writ of habeas corpus in federal court to attack the state conviction on the grounds of denial of the federal constitutional rights as to which state remedies have been exhausted.

 

            While a complete discussion of federal habeas corpus is beyond the scope of this work,[148] state post-conviction counsel must understand the restrictions imposed under the Anti-Terrorism Act of 1996 (AEDPA), [149] including the new one-year statute of limitations.  The AEDPA applies only to the filing of a habeas corpus petition in United States District Court, and has no application to state habeas corpus proceedings.

 

            The AEDPA greatly restricts federal habeas as a means of challenging federal or state convictions.[150]  It creates a new one-year statute of limitations,[151] provides a petition may be denied even though it contains an unexhausted claim, provides that the state shall not be deemed to have waived the exhaustion requirement except expressly through counsel,[152] and provides that the certificate of appealability necessary to appeal a district court’s denial of habeas relief must identify the specific issue(s) to be appealed.[153]

 

            AEDPA also restricts a federal court from granting an evidentiary habeas hearing under certain circumstances.[154]  It also imposes new limits on second or successive applications for federal habeas relief attacking state convictions.[155]

 

            AEDPA makes some parallel restrictions on federal habeas challenges to federal convictions under 28 U.S.C. § 2255.  It adds a requirement of obtaining a certificate of appealability before a district court denial of habeas can be appealed to the court of appeals.[156]  It creates a one-year statute of limitations from the date the judgment of conviction becomes final within which the federal motion must be filed.[157]  It greatly limits second or successive applications for the same or new claims.[158]  It extends the provisions for appointment of counsel under 18 U.S.C. § 3006A to federal habeas cases[159] and limits in camera applications for expert and investigation services by allowing discretionary denial.[160] 

 

            The following discussion provides information on relief commonly available through habeas corpus to immigrants in state court.  More in‑depth information, and information on other topics relating to habeas corpus, is available through numerous reference works.[161] 

 

          Exhaustion.     A state prisoner must exhaust all available state court remedies on direct appeal or through collateral proceedings before a federal court may consider constitutional claims for habeas corpus relief.[162]  Exhaustion requires that habeas petitioners 'fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass upon and to correct alleged violations of its prisoners' federal rights.'"[163]

 

            Normally, this requirement has meant that all federal constitutional grounds for relief must be presented to the state’s highest court,[164] and the Ninth Circuit has clarified that that a habeas petitioner must indicate to the state's highest court the specifically federal nature of a claim in order to exhaust it.  That same court held, however, that claims of ineffective assistance of counsel were properly presented to the state’s highest court by argument in the lower court petition, which the state appellate court presumably considered.[165] 

 

            Proper Respondent.  The Attorney General is the proper Respondent in a federal habeas action filed pursuant to 28 U.S.C. § 2241, where the petitioner was transferred to DHS custody outside of the district court’s jurisdiction, where the questions could be decided on a paper record and did not require the physical presence of the petitioner.[166]

[148] See generally J. Liebman, Federal Habeas Corpus Practice and Procedure (The Michie Co. 1988); C.E.B., Appeals and Writs in Criminal Cases (2d ed. 2008), Chapter 4; C.E.B., California Criminal Law: Procedure and Practice (5th ed. 2008), Chapter 43; California Criminal Defense Practice (2008) § 102.11.

[149] Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (hereinafter AEDPA).

[150] See AEDPA § § 101-108.

[151] 28 U.S.C. § 2244(d)(1), as amended by AEDPA § 101.

[152] 28 U.S.C. § 2254(b)(3), as amended by AEDPA § 104.

[153] 28 U.S.C. § 2253(c)(1)(B), (C), (D); F.R.A.P. 22(b), as amended by AEDPA § 103.

[154] To grant a hearing, the district court must find the petitioner relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and establishes “by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”  28 U.S.C. § 2254(e), as amended by AEDPA § 104(4).

[155] 28 U.S.C. § 2244(b), as amended by AEDPA § 106(b).

[156] 28 U.S.C. § 2253(c)(1)(B)-(D), as amended by AEDPA § 102.

[157] This is usually 90 days after the date the decision of the United States Court of Appeals is rendered, when a petition for writ of certiorari would be due in the U.S. Supreme Court, giving in essence 15 months from the decision of the Court of Appeals within which to file the federal habeas petition in United States District Court.

[158] 28 U.S.C. § § 2244(a), 2255 as amended by AEDPA § 106(a).

[159] 28 U.S.C. § 2255, as amended by AEDPA § 105(2).

[160] 21 U.S.C. § 848(q)(9), as amended by AEDPA § 108.

[161] For further outlines and articles on law and procedure of writs of habeas corpus see Bibliography, infra; Erwin, Millman, Monroe, Sevilla, Tarlow, California Criminal Defense Practice (Matthew Bender 2008) at § 102.10; C.E.B., Appeals and Writs in Criminal Cases § § 2.105‑2.120 (2d ed. 2008); J. Smith, et al., California State Prisoner's Handbook, pp. 348 ff. (2d Ed. 1990).  See also State Bar of California and Prison Law Project, Manual for Use of Habeas Corpus by California Prisoners (July 1987), available from State Bar of California, 555 Franklin Street, San Francisco, CA 94102.  See In re Duvall (1995) 9 Cal.App.4th 464, 37 Cal.Rptr.2d 259 [prosecution relieved from pleading detailed facts in return if evidence is not readily available].

[162] See Keeney v. Tamayo-Reyes, 504 U.S. 1, 9, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992).

[163] Lyons v. Crawford, 232 F.3d 666, 668 (2000), as modified by 247 F.3d 904 (9th Cir.2001) (quoting Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995)).

[164] O'Sullivan v. Boerckel, 526 U.S. 838, 848-49, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

[165] Reese v. Baldwin, 282 F.3d 1184 (9th Cir. 2002).

[166] Chavez-Rivas v. Olsen, 207 F. Supp.2d 326 (D.N.J. 2002).

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " STANDARD OF FEDERAL HABEAS REVIEW OF STATE POST-CONVICTION DECISIONS IS VERY DEFERENTIAL
Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733 (January 19, 2011)(state postconviction court's conclusions (1) that defense counsel did not perform deficiently, as element of ineffective assistance of counsel, in advising inmate to enter a quick no-contest plea, without counsel having brought a motion to suppress one of inmate's confessions, and (2) that inmate was not prejudiced by counsel's allegedly deficient performance, were not unreasonable applications of clearly established federal law as determined by the Supreme Court).

VEHICLES " FEDERAL " HABEAS CORPUS " DEFERENCE TO STATE COURT DECISION
Harrington v. Richter (January 19, 2011) 131 S.Ct. 770, reversing (9th Cir. 2009) 578 F.3d 944 (en banc) (under the limited scope of review permitted federal courts on habeas review of state convictions, 28 U.S.C. 2254(d), Supreme Court held that trial counsels decision not to engage separate blood experts was neither deficient performance nor prejudicial when viewed in context, since federal habeas petitioner did not show there was no reasonable basis on which the state court could deny relief because fair-minded jurists could disagree on the correctness of the state courts decision: State courts are the principal forum for asserting constitutional challenges to state convictions.).

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " STANDARD OF FEDERAL HABEAS REVIEW OF STATE POST-CONVICTION DECISIONS IS VERY DEFERENTIAL
Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733 (January 19, 2011)(state postconviction court's conclusions (1) that defense counsel did not perform deficiently, as element of ineffective assistance of counsel, in advising inmate to enter a quick no-contest plea, without counsel having brought a motion to suppress one of inmate's confessions, and (2) that inmate was not prejudiced by counsel's allegedly deficient performance, were not unreasonable applications of clearly established federal law as determined by the Supreme Court).

POST CON RELIEF " FEDERAL " HABEAS CORPUS " AEDPA STATUTE OF LIMITATIONS -- CONCLUSION OF OUT OF TIME DIRECT APPEAL MARKS BEGINNING OF FINALITY FOR PURPOSES OF THE AEDPA STATUTE OF LIMITATIONS
Jimenez v. Quarterman, 555 U.S. 113, 129 S.Ct. 681 (January 13, 2009)(where a defendant is granted permission to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, the judgment is not yet "final" for purposes of 28 U. S. C. 2244(d)(1)(A) (outlining the start date of the one-year limitations period for seeking review under the AEDPA); "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review" must reflect the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking review of that appeal). CPCN 6.26

POST CON RELIEF " FEDERAL " HABEAS CORPUS " AEDPA STATUTE OF LIMITATIONS -- CONCLUSION OF OUT OF TIME DIRECT APPEAL MARKS BEGINNING OF FINALITY FOR PURPOSES OF THE AEDPA STATUTE OF LIMITATIONS
Jimenez v. Quarterman, ___ U.S. ___ (2008)(where a defendant is granted permission to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, the judgment is not yet "final" for purposes of 28 U. S. C. 2244(d)(1)(A) (outlining the start date of the one-year limitations period for seeking review under the AEDPA); "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review" must reflect the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking review of that appeal).

POST CON RELIEF
Douglas v. Jacquez, __ F.3d__, 2010 WL 4748792 (9th Cir. Nov. 24, 2010) (order granting habeas is vacated where the district court exceeded its habeas powers when it directed the state to modify petitioner's sentence, but the Double Jeopardy Clause would not be implicated if the state court, of its own accord, were to re-sentence petitioner.)

Ninth Circuit

POST CON RELIEF " FEDERAL " STATUTE OF LIMITATIONS " TOLLING DURING PENDENCY OF STATE POST-CONVICTION PETITIONS
Trigueros v. Adams, 658 F.3d 983 (9th Cir. Sept. 14, 2011) (state court's request for informal briefing from the people on appellant's state habeas corpus petition constituted a finding of timeliness and a final decision on the merits by that state court such that appellant's federal petition, filed less than a month after the findings, is timely under the AEDPA, since the AEDPA statute of limitations is tolled by the filing of a state post-conviction petition).

POST CON RELIEF
Douglas v. Jacquez, 626 F.3d 501, 2010 WL 4748792 (9th Cir. Nov. 24, 2010) (order granting habeas is vacated where the district court exceeded its habeas powers when it directed the state to modify petitioner's sentence, but the Double Jeopardy Clause would not be implicated if the state court, of its own accord, were to re-sentence petitioner.)

POST CON RELIEF -- HABEAS " FEDERAL " CUSTODY REQUIREMENT IS A JURISDICTIONAL PREREQUISITE
Wilson v. Belleque, 554 F.3d 816 (9th Cir. February 5, 2009)("[28 U.S.C.] Section 2241(c)(3) states that the writ shall not extend to a state prisoner unless [h]e is in custody in violation of the Constitution or laws or treaties of the United States. The text of the statute makes clear, and the Supreme Court has confirmed, that custody is a jurisdictional prerequisite to habeas review under 2241(c)(3)"); citing Hensley v. Mun. Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (The custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty.)

POST CON RELIEF -- HABEAS " FEDERAL " CUSTODY -- DEFINED
Wilson v. Belleque, 554 F.3d 816 (9th Cir. February 5, 2009)("[T]he Supreme Court has construed the phrase in custody very broadly. '[T]he use of habeas corpus has not been restricted to situations in which the applicant is in actual, physical custody.' Jones v. Cunningham, 371 U.S. 236, 239, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). To satisfy the custody requirement, the Supreme Court has held that a petitioner must show that he is subject to a significant restraint upon his liberty 'not shared by the public generally.' Id. at 240, 83 S.Ct. 373. For example, the custodial requirement has been held met by prisoners released on parole, id. at 242-43, 83 S.Ct. 373, prisoners released on their own recognizance, Hensley, 411 U.S. at 351, 93 S.Ct. 1571, and prisoners free on bail, Lefkowitz v. Newsome, 420 U.S. 283, 286 n. 2, 291 n. 8, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975).").

POST CON RELIEF " HABEAS " FEDERAL " CUSTODY REQUIREMENT INCLUDES A PERSON IN CUSTODY ON A PRIOR CONVICTION, BUT NOT " YET"IN CUSTODY ON PENDING CHARGES, WHERE HE WOULD HAVE BEEN IN CUSTODY ON THE PENDING CHARGES IF NOT ON THE PRIOR
Wilson v. Belleque, 554 F.3d 816 (9th Cir. February 5, 2009)("custody" in violation of the laws of the United States, under 28 U.S.C. 2241(c)(3) should be construed to include circumstances where the sovereign seeking to prosecute a petitioner is currently detaining the petitioner based on convictions or charges not being challenged, where petitioner is not currently in custody under pending Oregon charges, because he is serving a sentence on a prior conviction, but would be in custody under the pending charges if he were not: "It would be illogical to conclude that a petitioner released on his own recognizance with an obligation to appear for trial is in custody for the purpose of habeas review but an incarcerated petitioner who is forced to appear in court to answer new charges is not."), citing Peyton v. Rowe, 391 U.S. 54, 55, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968)(a prisoner serving consecutive sentences is in custody under any one of them and thus can challenge a sentence that he is scheduled to serve in the future, since a contrary rule represents an indefensible barrier to prompt adjudication of constitutional claims in the federal courts.); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 488, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973)(where petitioner was serving a sentence in an Alabama prison, and brought a petition for a writ of habeas corpus in Kentucky, alleging that Kentucky's failure to afford him a trial on a then three-year-old indictment violated his constitutional right to a speedy trial, "prisoners in custody under one sentence [can] attack a sentence which they had not yet begun to serve . . . a petitioner held in one State [can] attack a detainer lodged against him by another State.).

VEHICLES " FEDERAL " HABEAS CORPUS " DEFERENCE TO STATE COURT DECISION
Harrington v. Richter (January 19, 2011) ___ U.S. ___, 131 S.Ct. ___, reversing (9th Cir. 2009) 578 F.3d 944 (en banc) (under the limited scope of review permitted federal courts on habeas review of state convictions, 28 U.S.C. 2254(d), Supreme Court held that trial counsels decision not to engage separate blood experts was neither deficient performance nor prejudicial when viewed in context, since federal habeas petitioner did not show there was no reasonable basis on which the state court could deny relief because fair-minded jurists could disagree on the correctness of the state courts decision: State courts are the principal forum for asserting constitutional challenges to state convictions.).