This column is intended to provide habeas hints for prisoners who are considering or handling habeas corpus petitions as their own attorneys. 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.

EDITOR'S CHOICE

Recently I received some suggestions for column topics from Paul Wright, editor of the Prison Legal News . This column addresses some of those suggestions.

Appointment of counsel in habeas corpus cases.

In state court, appointment of counsel is required on "direct appeal", but not on state habeas. Therefore, prisoners must research, investigate, and file state habeas petitions with retained counsel, or on their own. The only exception is if the court grants an evidentiary hearing, which very rarely occurs in state court. However, in California and most states, if an evidentiary hearing is ordered, counsel will be appointed.

The rule in federal court is more favorable in theory, but not in practice. Habeas corpus cases are civil in nature. Hence, unlike criminal cases where appointment of counsel for a person without funds is required, appointment of counsel in habeas corpus cases is "discretionary" with the court. See 28 USC § 1915(d), which confers on the court the discretion to appoint counsel to represent a civil litigant. However, federal district court judges almost always exercise their discretion to deny requests for appointment of counsel on habeas corpus for everything short of an evidentiary hearing, and appellate courts almost always uphold the denial on the basis that the power to appoint counsel on habeas is limited to cases involving "exceptional circumstances". See, e.g., Aldabe v. Aldabe , 616 F.2d 1089 (9 th Cir. 1980); Cook v. Bounds , 518 F.2d 779 (4 th Cir. 1975). Theoretically, a prisoner could argue that, in a particular habeas corpus case, "exceptional circumstances" are present, and ask the court to appoint counsel when the prisoner files his habeas petition. In practice, however, almost anything a prisoner might suggest (e.g., lack of education, prison restrictions, difficulty proving claim of innocence) would be found by the court to put the prisoner in no different position than scores of other prisoners, and therefore would not be "exceptional" enough to justify appointment of counsel. Furthermore, applying for counsel in the first place is a Catch-22 situation, since a prisoner must make an exceptionally persuasive case for appointment, and to do that one will have to demonstrate enough of an "understanding of the issues" that the court can then determine that the prisoner is able to represent himself! See, e.g., LeMere v. Risley , 827 F.2d 622 (9 th Cir. 1987) [denying appointment of counsel because petitioner demonstrated a "good understanding of the issues" and "the ability to present forcefully and coherently his contentions"].

Thus, in practical terms, it is going to be just about impossible to have counsel appointed when the habeas petition is filed, or to help the prisoner defend against the motions for dismissal that the Attorney General will inevitably make in federal court. Therefore, although filing a request for appointment of counsel on habeas corpus can't hurt, putting more than minimal effort into making the request is almost always a waste of valuable time and energy. Thus, with the possible exception of cases in which the prisoner has been diagnosed as mentally defective, the prisoner would be better off expending his time and energies filing a timely petition and in trying to convince the court that his or her habeas corpus case is strong enough to justify an evidentiary hearing. As in state court, if an evidentiary hearing is granted, then the court will have to appoint counsel for an indigent prisoner. See generally 28 USC §2254; Rule 8c, Habeas Corpus rules.

Getting an evidentiary hearing.

Unfortunately, almost no state courts and very few federal courts grant evidentiary hearings on habeas corpus petitions. On the other hand, it is almost impossible to win on a habeas corpus claim without an evidentiary hearing. Therefore, difficult as it is, a petitioner must always try to do whatever s/he can to get the court to grant an evidentiary hearing.

The court is supposed to grant an evidentiary hearing where the petitioner has made out a "prima facie case" for relief on a habeas corpus claim, and where the evidence regarding the claim is "in conflict". These phrases are easy enough to define: A "prima facie case" is one that states all the required elements of the claim. Evidence is "in conflict" where there are credible facts that have been alleged in support of the claim as well as in opposition to it. However, these definitions are so vague as to be of little practical use in individual cases. In order to put some flesh on these bony outlines, I suggest the following practical tips for seeking an evidentiary hearing:

1. Even though you're unlikely to get one, you certainly don't want to waive your right to an evidentiary hearing by failing to request it. You can request an evidentiary hearing by simply writing or typing in "Evidentiary Hearing Requested" on the front of every state or federal habeas corpus petition you file.

2. Getting the Attorney General (A.G.) to respond to the merits of your petition is necessary before the court will even consider granting an evidentiary hearing. Therefore, avoid procedural errors and defaults which allow the court to dismiss your petition without reaching the merits. If and only if you comply with the statute of limitations and avoid state procedural defaults, the court will require the A.G. to file an "Answer" and respond to the merits of your claims.

3. Argue forcefully for an evidentiary hearing when you get to the "Traverse" stage in federal court: i.e., after the Attorney General has been required to file an "Answer" and you are permitted to file a reply, or "Traverse". These days the Answer the A.G. files will just be a short summary of the legal contentions, but it will be supported by a Points and Authorities which will contain the facts on which the A.G. relies to try and defeat your claims. Look very carefully at all these facts, because they will be accepted as true by the court unless you step up and effectively challenge them in the Traverse. If any of the facts stated by the A.G. are false, incomplete, or misleading, state the true and complete facts in your Traverse, supported by citations to the trial record or to documentary exhibits which you should attach to your Traverse. (If you cite to documents you previously filed with your petition, these should be clearly identified and you should request that the previously submitted documents be "incorporated by reference" in your Traverse.)

4. Re-state your request for an evidentiary hearing both in the body of your Traverse, and in a "Conclusion" that should appear at the end of your Traverse. The Conclusion is also an appropriate place to ask for appointment of counsel, since that will be required if the court grants an evidentiary hearing. For example, use the following as the last sentence of your Traverse: "CONLUSION: Based on the foregoing, Petitioner requests that the court grant an evidentiary hearing in order to resolve conflicts in the evidence, that the court appoint counsel for the petitioner, and that the court grant the writ of habeas corpus.")

Motion for DNA testing in California.

In 2000 the California Legislature enacted Penal Code § 1405, which authorizes a special motion for DNA testing. A convicted felon who is currently imprisoned may now make a written motion for DNA testing in the California state court. The right to file the motion is absolute and cannot be waived, even as part of a plea bargain.

The specific requirements for the motion are contained in § 1405. Essentially the prisoner must show that it is reasonably probable that the verdict or sentence would have been more favorable if the DNA test results had been available at the time of conviction. In making this determination, the court can consider any evidence, whether or not it was admitted at trial.

To make the DNA motion, file a "Notice of Motion for DNA Testing" in the trial court where you were sentenced, supported by a declaration under penalty of perjury, laying out the facts which would entitle you to relief under the statute. (For example, state that you are innocent, that DNA testing would prove your innocence but that DNA testing has not been done, etc.) Serve a copy of your papers on the California Attorney General, the county district attorney, and the agency holding the evidence to be tested. The A.G. has to respond within 60 days unless a continuance is granted. The motion must be heard by the judge who conducted the trial or who accepted your guilty plea, unless that judge is unavailable. An order granting or denying the motion is not appealable, but may be reviewed by a writ of mandamus or prohibition filed within 20 days of the order. Review via writ is to the appropriate division of the California Court of Appeal, except in death-penalty cases which are heard in the California Supreme Court. Section 1405 also contains provisions regarding the costs of testing [§ 1405(l)] and for seeking appointment of counsel to make the motion for an indigent prisoner [§ 1405(b)]. (Appointment of counsel is "discretionary" with the court in cases where counsel was previously appointed for an indigent defendant. It's too early to tell whether that discretion will actually be exercised to appoint counsel on a regular basis for these DNA motions.)

Interpreter claims in habeas cases.

A criminal defendant who relies principally on a language other than English has a federal statutory right to a qualified, court-appointed interpreter when his understanding of the proceedings or ability to communicate with counsel would be impaired without one. 28 USC § 1827. The right to an interpreter has also been referred to as a "constitutional right", and it has been extended in most circuits to situations where an interpreter is needed to assist a criminal defendant in testifying as a witness in his own behalf, or for the defendant to understand what the witnesses against him are saying. See cases cited in United States v. Lim , 794 F.2d 469, 470 (9 th Cir. 1986).

Whether a defendant requesting an interpreter actually gets one or not is discretionary with the trial judge, and the trial judge's decision will be upheld on appeal unless clearly wrong. Perovich v. United States , 205 U.S. 86, 91 (1907); Lim , supra, at 471. Nevertheless, where it is apparent that a defendant qualified under the statute but was denied the right to an interpreter, the conviction will be reversed on appeal. United States ex rel. Negron v. New York , 434 F.2d 386 (2 nd Cir. 1970). As with any other right, however, it can be forfeited by the defendant's verbal waiver or by conduct consistent with a waiver, such as failing to request an interpreter or failing to object when an incompetent one was provided. See: Illinois v. Allen , 397 U.S. 337 (1968).

The federal statute requiring an interpreter only applies in cases "instituted by the United States". That excludes habeas cases, which are civil proceedings brought against the state or the government. Hence, one can ask for an interpreter on habeas corpus, but whether one is actually appointed or not is discretionary, and therefore unlikely to be ordered. Therefore, I recommend the following: (1) A defendant who does not speak English fluently should make sure his or her attorney requests an interpreter at the trial court level. If the attorney refuses to make the request, the defendant should do so personally if necessary by making the request in one's native tongue, either in court on the record, or in a document that is filed with the court. (2) If a prisoner who lacked sufficient command of English to understand the proceedings was convicted at trial and on appeal after being denied the right to a qualified interpreter, that should be alleged as a habeas claim, supported by a declaration setting out the relevant facts. (3) On habeas corpus, a pro-per Petitioner who does not speak English should ask for appointment of an interpreter in the same way and with the same expectations as one asks for appointment of counsel on 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 ($25, incl. postage) from the Law Offices of Russell and Russell, 2299 Sutter Street, San Francisco, CA 94115. "

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