This column is intended to provide "habeas hints" to prisoners who are handling habeas corpus petitions as their own attorneys ("in pro per"). The focus of the column is post-conviction practice under the AEDPA, the 1996 law which now governs habeas corpus practice throughout the U.S.

Some Useful Post-Conviction Motions

In this column, we take a look at some of the most useful post-conviction motions for dealing with issues other than those which are normally addressed in a federal habeas corpus petition by a state prisoner.

§ 2255:

Motion to Vacate Sentence by Federal Prisoner

The 28 U.S.C. § 2255 motion to vacate sentence is the federal prisoner's equivalent of the petition for writ of habeas corpus by a state prisoner [§ 2254]. A prisoner convicted in federal court and seeking to get the conviction and sentence set aside on constitutional grounds must do so by filing a § 2255 motion in the U.S. District Court where the defendant was sentenced.

There are many similarities between the § 2255 motion and the § 2254 petition: (1) The AEDPA statute of limitations, which requires filing within 1 year after the conviction becomes "final" (i.e., 90 days after the conviction is affirmed on direct appeal), applies to both § 2254 and § 2255. (2) The § 2255 motion must be filed on a court-approved form that can be obtained from the court clerk or from the court's website. The questions on the § 2255 form are virtually the same as those on the § 2254 form. (4) § 2255 is not intended as a substitute for the right to appeal any more than § 2254. Hence, the court is not required to hear any claim on § 2255 that could have been raised on appeal but was not raised, unless the petitioner can show that the failure was the result of ineffective assistance of counsel (IAC). (5) An appeal from the denial of a § 2255 motion also requires a Certificate of Appealability (COA).

The principal differences between § 2255 and § 2254 arise from the fact that, because there is no state "exhaustion" requirement for federal prisoners applying for relief under § 2255, constitutional claims based on facts outside the appellate record are heard first by the § 2255 court, before any other court has had a chance to deny them. For example, IAC claims which are usually based on facts outside the appellate record and therefore, in almost all jurisdictions, can be asserted for the first time after the direct appeal is over will be heard for the first time by the judge who is ruling on the § 2255 petition. Consequently, it is usually easier to get an evidentiary hearing on IAC claims brought under § 2255 than it would be under § 2254, where an IAC claim could only reach federal court if it had already been exhausted by being denied at least once in state court. Similarly, because there is no state court denial of an IAC claim to "defer to" when IAC is raised on § 2255, a "de novo" standard of review will apply, which is more favorable to the petitioner than the § 2254 standard, which requires the petitioner to show that the state court's denial of the claim was not only wrong, but "unreasonable".

Rule 60(b):

Motion for Relief From Judgment

A motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure should be considered when a state prisoner seeking federal habeas corpus relief has already had a previous federal habeas corpus petition denied because of some procedural default. For example, suppose that a prisoner's first federal habeas corpus petition was thrown out of federal court because, due to IAC, the petitioner's lawyer blew a deadline imposed by the district court, which then resulted in the petition being dismissed. If the prisoner now attempts to file a brand new federal petition, s/he will be confronted by the "successive petition" rule, which prohibits the filing of a second [or third, etc.] petition in U.S. District Court unless the petitioner first obtains permission to do so from the Circuit Court of Appeal. That permission, however, is essentially impossible to obtain because the requirements are so limiting: Either the petition must be based on newly discovered evidence demonstrating complete innocence [a showing that can be satisfied in only the rarest of cases]; or on a new, ground-breaking decision made retroactive on collateral review by the Supreme Court [which has only occurred once or twice in the entire history of the Supreme Court].

The problem summarized above amounts to a "Catch 22": If the petitioner attempts to file a federal habeas corpus petition in U.S. District Court, it will be thrown out because permission to file from the Circuit Court has not first been obtained. However, if the petitioner attempts to obtain permission from the Circuit Court to file a successive petition, permission will be denied because it is effectively impossible to satisfy the requirements for obtaining it.

Faced with this dilemma, instead of attempting to file a new petition, the petitioner should move to vacate the original judgment of dismissal pursuant to Rule 60(b).

Rule 60(b) permits the moving party to set aside a judgment of dismissal on one of six grounds, the most common being: (1) mistake or excusable neglect [e.g., ordinary attorney negligence or clerical error which results in a dismissal]; (2) newly discovered evidence which could not have been discovered earlier; (3) fraud; or (6) any other good reason. Grounds (1), (2), and (3) are subject to a one-year limitations period, which begins to run from the date of judgment of dismissal. Ground (6) is a catch-all provision which does not have any time limit other than filing within a "reasonable time" following the judgment. Hence, for example, Ground (6) could be used to set aside a dismissal which occurred because of gross attorney negligence or outright abandonment of the petitioner that was not discovered until more than a year had elapsed from the date of judgment.

Recent case law squarely holds that a Rule 60(b) motion is not subject to the successive petition rule, and hence a Rule 60(b) motion can be filed in the U.S. District Court without obtaining any permission to file it from the Circuit Court of Appeals. See, e.g., Hamilton v. Newland , 374 F.3d 822 (9 th Cir. 2004). Thus, as long as the moving party can come within one of the grounds for relief under Rule 60(b), the motion will have to be heard and determined in the U.S. District Court, even though a previous federal habeas petition by the same prisoner was dismissed, and even though the prisoner has not sought or obtained permission from the Circuit Court to file a successive petition. A Rule 60(b) motion should include a Notice of Motion [identifying the specific sub-section on which the motion is based], supported by a declaration from the petitioner stating facts which demonstrate that the reason for dismissal was one of the grounds provided for under Rule 60(b), and a Points and Authorities [citing Hamilton to show that the successive petition rule does not apply to motions filed under Rule 60(b), and demonstrating that the case had potential merit if it had not been dismissed].

Motion for DNA Testing

Several states now have statutes which permit a prisoner to obtain DNA testing in support of a potential habeas corpus claim. In California, Penal Code § 1405 allows a convicted felon currently imprisoned to make a written motion for DNA testing in the trial court that entered the judgment of conviction. [Note: In states other than California, the prisoner should try and find a statute analogous to the California statute; if none exists, consider filing a California-type request for DNA testing anyway and alleging, upon its denial, that the court's refusal to hear it violates Equal Protection.] Although California prisoners should carefully review the provisions of § 1405 before attempting to make a DNA motion, the most important requirements are summarized below:

Notice of the motion must be served on the Attorney General, the district attorney, and the police department or other agency having custody of the DNA evidence to be tested. The motion, which must be verified under penalty of perjury, must be supported by a declaration from the prisoner stating facts which "raise a reasonable probability that, in light of all the evidence, the convicted person's verdict or sentence would have been more favorable if the results of DNA testing had been available at the time of conviction."

In determining whether the required showing has been made, the court can consider any evidence, whether or not introduced at trial. Subdivision (b) of § 1405 permits the prisoner to apply in writing for the appointment of counsel to prepare the motion. The application must be addressed to the court and must include a statement by the prisoner that he or she was not the perpetrator of the crime, that DNA testing is relevant to his assertion of innocence, and that DNA testing has not previously been done. The right to file the motion is absolute, and may not be waived, even as part of a plea bargain. If the motion is granted, the State must pay for the testing if the applicant is a prisoner or is otherwise indigent. An order granting or denying the motion is not technically "appealable", but it can be reviewed by a petition for writ of mandamus or prohibition filed in the Court of Appeals within 20 days following the order of denial.

Discovery Motions

Most states do not allow discovery on state habeas corpus until and unless the court grants an evidentiary hearing. However, in 2002, California enacted Penal Code § 1054.9, which allows discovery in connection with habeas corpus petitions brought by prisoners who have been sentenced to death or to life without possibility of parole (LWOP). Prisoners facing death sentences will have counsel appointed for them on habeas corpus, but LWOP prisoners will not. Hence, LWOP's should take advantage of the new discovery statute if there is evidence in the hands of the State that might prove useful on habeas corpus. A § 1054.9 motion is filed in the Superior Court where the petitioner was convicted and sentenced. It should contain a showing that the prisoner has made good faith efforts to secure the discovery from trial counsel and from the district attorney [copies of letters requesting the items sought should be sufficient], but that these efforts have been unsuccessful.

In federal court, discovery is governed by the federal rules which apply to post-conviction petitions filed pursuant to § 2254 or § 2255. Both sets of rules are the same. They allow a petitioner to ask permission from the district court to conduct discovery pursuant to the Federal Rules of Civil Procedure. Discovery methods that can be specifically requested are depositions [sworn testimony of a witness taken under oath and transcribed], requests for production of documents, interrogatories [written questions to be answered under oath by the person having knowledge of the pertinent facts], and requests for admissions [statements of fact directed to government agents, who must admit or deny each fact alleged]. Most district judges are reluctant to grant discovery requests until and unless an evidentiary hearing has been granted. However, in cases where additional discovery is necessary in order to establish the right to an evidentiary hearing in the first place, the prisoner should consider submitting specific discovery requests to the court at the time the § 2254 petition or § 2255 motion is filed, and explaining why they are necessary to a fair resolution of the petition.

Kent A. Russell specializes in habeas corpus and post-conviction cases. He is the author of the California Habeas Handbook, which explains habeas corpus and the AEDPA. The latest edition (Ed. 4.04, revised Dec. 2004) is now shipping and can be purchased with a check or money order for $29.99 (cost is all-inclusive for prisoners, others pay $5 extra for postage and handling; no order form necessary), directly from the Law Offices of Russell and Russell, 2299 Sutter Street, San Francisco, CA 94115. "

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