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Habeas Hints: Williams Precedent
This column is intended to provide "habeas hints "for 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.
1. Rely on the recent "Williams" decisions from the U.S. Supreme Court to argue for meaningful federal habeas corpus review under the AEDPA.
It was like Christmas in April! The U.S. Supreme Court (USSC), for the past many decades the source of almost nothing but bad news for habeas corpus petitioners, issued two decisions during the 2000 term which suggest that habeas corpus is still alive and well, even under the AEDPA. Both decisions were delivered on April 18, 2000 by the U.S. Supreme Court and, conveniently enough, both are entitled Williams v. Taylor.
Of the two cases, the one which puts the most meat on the table is Terry Williams v. Taylor, 2000 U.S. Lexis 2837, where the USSC interpreted the crucial test which has to be passed under the AEDPA in order to win on federal habeas corpus. By the time a prisoner gets to federal habeas corpus, s/he has usually made the same basic claim on state habeas corpus ("exhaustion") but has lost there, and is now filing for federal habeas corpus relief in the U.S. District Court. Because of "federalism", the denial by the state courts is entitled to some respect ("deference"). The question is, how much? Under the law prior to the AEDPA, the petitioner simply had to show that the state court's decision was "wrong" as a matter of federal law. That was not necessarily a piece of cake, but it was possible if you could find a federal case which applied federal constitutional law more favorably to your habeas claim than what the state court had done in rejecting the claim. Under the AEDPA, in order to overcome the state court's denial of your claim, you now have to show that the state court decision was "(1) contrary to", or (2) "involved an unreasonable application of... clearly established Federal law, as determined by the Supreme Court of the United States". Just how much did this AEDPA language change the prior law? That was the important question which the Terry Williams case tackled.
Everyone agrees that the AEDPA created at least one obstacle that wasn't there under the old law: the need to show that the state court's decision wrongfully applied principles set forth in a decision by the U.S. Supreme Court, rather than just a decision from any one of the federal circuit courts. However, most federal constitutional law is the same throughout the country, and can be traced back to a USSC decision at its source. Therefore, except for those very few instances in which constitutional law differs from one circuit to another, if you've found a federal case that shows the state was wrong in denying your claim on state habeas corpus, the AEDPA simply requires you to trace that decision back to the USSC case that was the basis for the decision in the first place.
What did sharply divide the parties in Williams was the rest of the AEDPA language: What did Congress mean by "contrary to" and "unreasonable application of federal law"? First, lawyers for the State of Virginia argued that "contrary to" meant that the prisoner had to somehow find a case in which the USSC had reached a legal result different from the state court in a case involving the same facts. Because the Supreme Court only decides a few cases a year, and because the facts of one case are almost always different form another, even if you managed to find a USSC decision that was favorable to your habeas corpus claim on the law, it's almost inconceivable that this USSC case would also happen to involve the same facts as your own case. Second, the State's attorneys argued in Terry Williams that demonstrating an "unreasonable application" of federal law meant having to show that state court had not only been wrong in applying USSC law, but so wrong that no "reasonable" federal judge anywhere would have decided the case that way. This definition of "unreasonable" virtually required you to get inside the head of any federal judge who agreed with the state court's denial and demonstrate that the judge was not only wrong, but had reached that conclusion frivolously, or in "bad faith".
Had these arguments by the State's attorneys carried the day in Terry Williams, winning on federal habeas corpus under the AEDPA would have become about as common as winning the jackpot in the state lottery. Scary as that scenario is, that's pretty much where many of the federal appeals courts were heading, and that's why there was so much riding on the outcome of Williams. Fortunately, although it was a wafer-thin majority by a fractured court, the USSC rejected the crippling AEDPA interpretations the State's attorneys were arguing for, and instead held that federal courts must continue to grant federal habeas corpus relief wherever the state court decisions either "conflicted with federal law" or "applied federal law in an unreasonable way". In other words, "unreasonable" in the AEDPA context means "objectively unreasonable", so it is enough to show that the state court denial was "wrong" without also having to demonstrate that the state judges acted in "bad faith" or were "so wrong" that no judge in their right mind would have come out that way. Therefore, when fighting a motion to dismiss on federal habeas corpus:
Use Terry Williams to argue that, under the AEDPA, federal courts still have the power and the duty to disregard state habeas corpus denials that can be shown to be "wrong" under applicable USSC precedent.
The other Williams case, Michael Williams v. Taylor, 2000 U.S. Lexis 2836, solidifies the right to evidentiary hearings in federal court under the AEDPA. The AEDPA prohibits evidentiary hearings in federal court where there has been a "failure" to develop the factual basis for the claim in state court. However, Michael Williams makes clear that such a "failure" requires some "negligence" or "fault" by the prisoner in not developing the claim in state court. Thus, if the prisoner can show "due diligence" in attempting to present the factual basis for the claim in state court, even if the state court denies a hearing on the claim, that won't preclude a hearing in federal court pursuant to the AEDPA. Therefore, in regard to evidentiary hearings:
Do the best you can to develop the facts on state habeas corpus and ask for an evidentiary hearing there, even though you're probably not going to get one. As long as you have been diligent in presenting your factual claim on state habeas corpus, even if the state court denies you a hearing, the AEDPA won't prevent you from getting an evidentiary hearing on federal habeas corpus.
2. Be "safe" in computing the AEDPA statute of limitations.
The statute of limitations under the AEDPA is one year from the date your state conviction becomes "final" on direct appeal. But exactly when does your conviction become "final" so that the one-year period begins to run? In nearly all federal jurisdictions, in order to allow you to apply for certiorari review by the USSC, you are allowed 1 year, plus an "extra" 90 days after the date your conviction is affirmed by the state's highest court, whether or not you actually file a cert application in the USSC. However, keep these warnings in mind when you are computing the AEDPA statute of limitations: First, don't just assume you will get the 90 extra days in all cases. Note these exceptions to the general rule allowing the 90 extra days: (1) Unless you actually petition for review of your conviction in your state's highest court, you can't apply for cert in the USSC, so your conviction will become "final" when it is affirmed by the state court of appeal, and you won't get the extra 90 days. For California prisoners, this means that, if you don't file a "petition for review" in the California Supreme Court, the AEDPA 1-year statute of limitations will start to run as soon as the "mandate" issues from the Court of Appeal, which is typically 30 days after your conviction is affirmed by the appellate court. (2) Even if you do file a petition for review in the state's highest court, you are not necessarily entitled to the extra 90 days to file for federal habeas corpus unless you have actually raised "federal constitutional claims" in your state petition for review. In other words, if your petition for review in the state's highest court contained only claims based on state law, but did not raise federal constitutional issues, in many circuits (including the 9th Circuit, which governs California and the Western states), you can't count on getting the extra 90 days over and above the basic 1 year you have from the date your conviction is affirmed by the state's highest court. Therefore, to maximize your AEDPA time and to compute a "safe" AEDPA statute of limitations date:
If you appeal your state conviction and lose in the intermediate appellate court, file for review in the state's highest court regardless of how slim your chances may be, and include federal constitutional claims. If you did not file a petition for review in the state's highest court during your appeal, assume that the AEDPA 1-year statute of limitations will start to run immediately from the date the appellate court's opinion affirming your conviction becomes final.
Even if you did apply to the state's highest court for review on your direct appeal, don't assume you'll get the extra 90 days to file under the AEDPA statute of limitations unless your petition for review contained the federal constitutional claims that you are going to present on federal habeas corpus. If not, to be safe, you should file for state habeas corpus within the 1-year period itself, without adding in the extra 90 days.
Finally, although the AEDPA statute of limitations technically applies only to the time within which you must file a petition for federal habeas corpus, keep in mind that AEDPA also significantly affects the timing of state habeas corpus as well. As a practical matter, you will almost always have to file for state habeas corpus in order to exhaust your state remedies before you file for federal habeas corpus. The AEDPA statute of limitations is "tolled" (the time doesn't run out) while you are properly proceeding through the state courts on state habeas corpus, but you can't get any tolling if the statute of limitations has already run out. Therefore, to preserve your right to file for federal habeas corpus, be sure to file for state habeas corpus when there is still enough time left in the one-year statute of limitations bank to allow for the preparation and filing of a federal habeas corpus petition after your state habeas corpus petition is denied in state court. Accordingly, I recommend:
File for state habeas corpus an additional 2 to 4 weeks before the AEDPA 1-year statute of limitations is going to run. That way, if and when your state habeas corpus petition is denied, you'll still have that 2-4 weeks left to do the revisions necessary to prepare and file a timely petition for federal habeas corpus.
[Kent Russell specializes in criminal defense, appeals, and habeas corpus. He is the author of the "California Habeas Handbook" which explains habeas corpus and the AEDPA, and can be purchased ($20) from the Law Offices of Russell and Russell, 2299 Sutter Street, San Francisco, CA 94115.]
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1. Rely on the recent "Williams" decisions from the U.S. Supreme Court to argue for meaningful federal habeas corpus review under the AEDPA.
It was like Christmas in April! The U.S. Supreme Court (USSC), for the past many decades the source of almost nothing but bad news for habeas corpus petitioners, issued two decisions during the 2000 term which suggest that habeas corpus is still alive and well, even under the AEDPA. Both decisions were delivered on April 18, 2000 by the U.S. Supreme Court and, conveniently enough, both are entitled Williams v. Taylor.
Of the two cases, the one which puts the most meat on the table is Terry Williams v. Taylor, 2000 U.S. Lexis 2837, where the USSC interpreted the crucial test which has to be passed under the AEDPA in order to win on federal habeas corpus. By the time a prisoner gets to federal habeas corpus, s/he has usually made the same basic claim on state habeas corpus ("exhaustion") but has lost there, and is now filing for federal habeas corpus relief in the U.S. District Court. Because of "federalism", the denial by the state courts is entitled to some respect ("deference"). The question is, how much? Under the law prior to the AEDPA, the petitioner simply had to show that the state court's decision was "wrong" as a matter of federal law. That was not necessarily a piece of cake, but it was possible if you could find a federal case which applied federal constitutional law more favorably to your habeas claim than what the state court had done in rejecting the claim. Under the AEDPA, in order to overcome the state court's denial of your claim, you now have to show that the state court decision was "(1) contrary to", or (2) "involved an unreasonable application of... clearly established Federal law, as determined by the Supreme Court of the United States". Just how much did this AEDPA language change the prior law? That was the important question which the Terry Williams case tackled.
Everyone agrees that the AEDPA created at least one obstacle that wasn't there under the old law: the need to show that the state court's decision wrongfully applied principles set forth in a decision by the U.S. Supreme Court, rather than just a decision from any one of the federal circuit courts. However, most federal constitutional law is the same throughout the country, and can be traced back to a USSC decision at its source. Therefore, except for those very few instances in which constitutional law differs from one circuit to another, if you've found a federal case that shows the state was wrong in denying your claim on state habeas corpus, the AEDPA simply requires you to trace that decision back to the USSC case that was the basis for the decision in the first place.
What did sharply divide the parties in Williams was the rest of the AEDPA language: What did Congress mean by "contrary to" and "unreasonable application of federal law"? First, lawyers for the State of Virginia argued that "contrary to" meant that the prisoner had to somehow find a case in which the USSC had reached a legal result different from the state court in a case involving the same facts. Because the Supreme Court only decides a few cases a year, and because the facts of one case are almost always different form another, even if you managed to find a USSC decision that was favorable to your habeas corpus claim on the law, it's almost inconceivable that this USSC case would also happen to involve the same facts as your own case. Second, the State's attorneys argued in Terry Williams that demonstrating an "unreasonable application" of federal law meant having to show that state court had not only been wrong in applying USSC law, but so wrong that no "reasonable" federal judge anywhere would have decided the case that way. This definition of "unreasonable" virtually required you to get inside the head of any federal judge who agreed with the state court's denial and demonstrate that the judge was not only wrong, but had reached that conclusion frivolously, or in "bad faith".
Had these arguments by the State's attorneys carried the day in Terry Williams, winning on federal habeas corpus under the AEDPA would have become about as common as winning the jackpot in the state lottery. Scary as that scenario is, that's pretty much where many of the federal appeals courts were heading, and that's why there was so much riding on the outcome of Williams. Fortunately, although it was a wafer-thin majority by a fractured court, the USSC rejected the crippling AEDPA interpretations the State's attorneys were arguing for, and instead held that federal courts must continue to grant federal habeas corpus relief wherever the state court decisions either "conflicted with federal law" or "applied federal law in an unreasonable way". In other words, "unreasonable" in the AEDPA context means "objectively unreasonable", so it is enough to show that the state court denial was "wrong" without also having to demonstrate that the state judges acted in "bad faith" or were "so wrong" that no judge in their right mind would have come out that way. Therefore, when fighting a motion to dismiss on federal habeas corpus:
Use Terry Williams to argue that, under the AEDPA, federal courts still have the power and the duty to disregard state habeas corpus denials that can be shown to be "wrong" under applicable USSC precedent.
The other Williams case, Michael Williams v. Taylor, 2000 U.S. Lexis 2836, solidifies the right to evidentiary hearings in federal court under the AEDPA. The AEDPA prohibits evidentiary hearings in federal court where there has been a "failure" to develop the factual basis for the claim in state court. However, Michael Williams makes clear that such a "failure" requires some "negligence" or "fault" by the prisoner in not developing the claim in state court. Thus, if the prisoner can show "due diligence" in attempting to present the factual basis for the claim in state court, even if the state court denies a hearing on the claim, that won't preclude a hearing in federal court pursuant to the AEDPA. Therefore, in regard to evidentiary hearings:
Do the best you can to develop the facts on state habeas corpus and ask for an evidentiary hearing there, even though you're probably not going to get one. As long as you have been diligent in presenting your factual claim on state habeas corpus, even if the state court denies you a hearing, the AEDPA won't prevent you from getting an evidentiary hearing on federal habeas corpus.
2. Be "safe" in computing the AEDPA statute of limitations.
The statute of limitations under the AEDPA is one year from the date your state conviction becomes "final" on direct appeal. But exactly when does your conviction become "final" so that the one-year period begins to run? In nearly all federal jurisdictions, in order to allow you to apply for certiorari review by the USSC, you are allowed 1 year, plus an "extra" 90 days after the date your conviction is affirmed by the state's highest court, whether or not you actually file a cert application in the USSC. However, keep these warnings in mind when you are computing the AEDPA statute of limitations: First, don't just assume you will get the 90 extra days in all cases. Note these exceptions to the general rule allowing the 90 extra days: (1) Unless you actually petition for review of your conviction in your state's highest court, you can't apply for cert in the USSC, so your conviction will become "final" when it is affirmed by the state court of appeal, and you won't get the extra 90 days. For California prisoners, this means that, if you don't file a "petition for review" in the California Supreme Court, the AEDPA 1-year statute of limitations will start to run as soon as the "mandate" issues from the Court of Appeal, which is typically 30 days after your conviction is affirmed by the appellate court. (2) Even if you do file a petition for review in the state's highest court, you are not necessarily entitled to the extra 90 days to file for federal habeas corpus unless you have actually raised "federal constitutional claims" in your state petition for review. In other words, if your petition for review in the state's highest court contained only claims based on state law, but did not raise federal constitutional issues, in many circuits (including the 9th Circuit, which governs California and the Western states), you can't count on getting the extra 90 days over and above the basic 1 year you have from the date your conviction is affirmed by the state's highest court. Therefore, to maximize your AEDPA time and to compute a "safe" AEDPA statute of limitations date:
If you appeal your state conviction and lose in the intermediate appellate court, file for review in the state's highest court regardless of how slim your chances may be, and include federal constitutional claims. If you did not file a petition for review in the state's highest court during your appeal, assume that the AEDPA 1-year statute of limitations will start to run immediately from the date the appellate court's opinion affirming your conviction becomes final.
Even if you did apply to the state's highest court for review on your direct appeal, don't assume you'll get the extra 90 days to file under the AEDPA statute of limitations unless your petition for review contained the federal constitutional claims that you are going to present on federal habeas corpus. If not, to be safe, you should file for state habeas corpus within the 1-year period itself, without adding in the extra 90 days.
Finally, although the AEDPA statute of limitations technically applies only to the time within which you must file a petition for federal habeas corpus, keep in mind that AEDPA also significantly affects the timing of state habeas corpus as well. As a practical matter, you will almost always have to file for state habeas corpus in order to exhaust your state remedies before you file for federal habeas corpus. The AEDPA statute of limitations is "tolled" (the time doesn't run out) while you are properly proceeding through the state courts on state habeas corpus, but you can't get any tolling if the statute of limitations has already run out. Therefore, to preserve your right to file for federal habeas corpus, be sure to file for state habeas corpus when there is still enough time left in the one-year statute of limitations bank to allow for the preparation and filing of a federal habeas corpus petition after your state habeas corpus petition is denied in state court. Accordingly, I recommend:
File for state habeas corpus an additional 2 to 4 weeks before the AEDPA 1-year statute of limitations is going to run. That way, if and when your state habeas corpus petition is denied, you'll still have that 2-4 weeks left to do the revisions necessary to prepare and file a timely petition for federal habeas corpus.
[Kent Russell specializes in criminal defense, appeals, and habeas corpus. He is the author of the "California Habeas Handbook" which explains habeas corpus and the AEDPA, and can be purchased ($20) from the Law Offices of Russell and Russell, 2299 Sutter Street, San Francisco, CA 94115.]
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