This column is intended to provide 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 habeas corpus practice under the AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.

The evidentiary hearing is the Catch 22 of habeas corpus practice. Although getting a habeas corpus petition granted is, of course, the ultimate goal on habeas corpus, virtually no habeas petition is granted these days unless the petitioner manages to prevail first at an evidentiary hearing on the petition. Meanwhile, however, the judge deciding the habeas corpus petition has very broad discretion to grant or deny a hearing, and more than 95% of the time the judge will exercise that discretion by denying the petition summarily that is, without granting a hearing.
Ironically, although the AEDPA is to blame for most of the procedural roadblocks a habeas corpus petitioner faces today in getting his habeas corpus heard on the merits, the law regarding evidentiary hearings is not very different now than it was before the AEDPA. That is because, although the AEDPA is supposed to make evidentiary hearings harder to get by precluding the federal court from granting one absent a showing amounting to actual innocence, the AEDPA restriction doesnt apply unless the petitioner has either: [1] already had an evidentiary hearing in state court, or [2] has failed to act with reasonable diligence in unsuccessfully attempting to develop the claim in state court. #[1] would have some teeth on federal habeas corpus if state courts typically granted evidentiary hearings, but the fact is, they dont: Most state courts grant hearings nearly as seldom as they grant habeas corpus petitions in other words, once in a blue moon. As to #[2], because a state habeas corpus petitioner has so little leverage in getting a state court to order a hearing, very little is expected or required to get past #[2] beyond covering the basics. Therefore, so long as the prisoner files a state habeas petition adequately alleging facts which, if true, would entitle the petitioner to relief, all the petitioner has to do to satisfy the reasonable diligence requirement of #[2] is to ask the state court to grant an evidentiary hearing and wait for the state court to deny that request, which is what will happen virtually all the time.

Furthermore, by properly asking for an evidentiary hearing in state court and having that request denied, the Petitioner gains an important advantage when s/he gets to federal court: Because the federal court is required by federal law to accept as true any factual allegations that are made and supported in federal court, when the state court has made findings against the petitioner on those facts without first ordering a hearing i.e., precisely what normally happens in state court the states fact-finding procedure is deemed unreasonable, which means that the states factual findings are not binding on federal habeas corpus. See: Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004).

By understanding and applying the above principles, a knowledgeable habeas corpus petitioner can, on the one hand, maximize his or her chances of getting an evidentiary hearing granted in the first place; and, if unsuccessful in that endeavor, use that to their advantage when federal habeas corpus comes around and the State is trying to sink the petitioners ship based on bad factual findings made by the state court without first granting a hearing.

With this in mind, consider the following Habeas Hints regarding evidentiary hearings.

" Because of the deference due to state court decisions under the AEDPA, a petitioner should always to try to bring something new to the table on habeas corpus that was not already dealt with during the direct appeal in state court. Because of the basic rule that nothing can be raised on direct appeal which was not contained in the appellate record, combined with the exhaustion requirement which prohibits the federal court from considering anything that was not presented first to the state courts, a petitioner should use state habeas corpus to get this new material into the record before going on to federal habeas corpus.

" Always ask for an evidentiary hearing when filing a state habeas corpus petition at every level of the state court system. This can easily be done by typing the words EVIDENTIARY HEARING REQUESTED in a prominent place on the first page of the each petition filed in state court. (I do it in the caption, under the case number.)

" Only factual allegations that are backed up by proof are required to be taken as true on state habeas. Therefore, make sure that the factual allegations you make in your state habeas corpus petition are clearly stated in the petition, and are supported by evidence contained in the exhibits that you present to the state court in support of the petition. For instance, if you are alleging ineffective assistance of counsel (IAC) on state habeas, then you not only need to clearly state in your petition what trial counsel failed to do, but you also have to submit documentary evidence to show what an effective lawyer would have done. Thus, for example, if you contend that it was IAC for counsel not to have called certain witnesses, then say so in your petition, but also include with your habeas exhibits declarations from the witnesses who werent called, which set forth the facts the witnesses would have testified to had they been brought to court by trial counsel.

" The process of exhaustion in state court is not completed until you present your factual allegations to the states highest court. Therefore, you can beef up your allegations on state habeas corpus as you move up through the state court system. For example, filing a state habeas corpus petition at the superior court (trial) level is not absolutely necessary, but it serves to stop the AEDPA clock from running, and the clock remains stopped for the entire time that you are proceeding up the state ladder through one round of state habeas corpus filings including the time between filings in the various state courts. Thus, you can continue your habeas investigation after youve filed in the lowest state court to toll the AEDPA statute of limitations, and, for example, you can add additional witness declarations to support your petition as you move up the ladder through the intermediate appellate court and then to the states highest court. One caveat, however: Be sure not to blow any state-imposed deadlines as you move between levels of the state court system on state habeas. In many states, there is a 30-60 day deadline for filing in the next court after a previous denial in the lower court. In California the timing rules are more relaxed, but there is still a requirement to proceed between levels without unreasonable delay. To safely stay within Californias reasonable time requirement, I recommend filing at the next level of the California system within 60-90 days of a previous denial, and never taking more than 6 months between filings. See: Evans v. Chavis, 126 S.Ct. 846 (2006).

" When you do file your federal habeas corpus petition after exhaustion is completed in state court, request an evidentiary hearing in federal court. Again, you can simply type the words EVIDENTIARY HEARING REQUESTED on the front page of the federal petition.

" After the federal court orders the Respondent to answer your federal habeas corpus petition, you will be permitted to file a Traverse. You should ask for an evidentiary hearing at two points in the Traverse: First, when you file the pleading portion of the Traverse, in which you respond briefly to the contentions in the Answer, ask for an evidentiary hearing in the concluding section, which is called the prayer. Also, Respondents brief in support of the Answer will almost always include a section entitled Standard of Review, in which the Respondent will remind the court of the deference that is due under the AEDPA to the state court denials of your habeas claims. Normally there will be nothing inaccurate about Respondents summary of the standard of review, as deference to state court adjudications is a routine feature of the AEDPA. On the other hand, because the law regarding factual disputes is largely favorable to the petitioner when a hearing has been denied in state court (see Taylor, cited above), the Respondent will usually stay away from mentioning anything about that in its brief. Therefore, consider using something like the following response in the Standard of Review section of your own brief in support of the Traverse:

Petitioner agrees that Respondents Standard of Review contains an accurate summary of the governing law regarding the deference due under the AEDPA to state court adjudications on the merits. On the other hand, Respondent omits entirely from its discussion what may be the most important standard of review to be considered at this juncture in the litigation the standard this court must apply in deciding whether or not to grant Petitioner an evidentiary hearing on one or more of the habeas corpus claims.

A petitioner on federal habeas corpus is entitled to an evidentiary hearing where the petitioner establishes a colorable claim for relief, and where the petitioner has never been accorded a state or federal hearing on his claim. Earp v. Oronski, 431 F.3d 1158, 1167 (9th Cir. 2005), citing Townsend v. Sain, 372 U.S. 293 (1963) and Keeney v. Tamayo-Reyes, 504 U.S. 1, 5, (1992). In stating a colorable claim, a petitioner is merely required to allege specific facts which, if true, would entitle him to relief. Ibid. Granted, under the AEDPA, a federal court is not required to order a hearing where the petitioner failed to develop the facts in state court. In such cases, the federal court accords a presumption of correctness to the facts found by the state court, and need not hold any evidentiary hearing unless those facts are rebutted by clear and convincing evidence. On the other hand, no AEDPA deference is due where the state has made an unreasonable determination of the facts; and: Where a state court makes evidentiary findings without holding a hearing and giving petitioner an opportunity to present evidence, such findings clearly result in an unreasonable determination of the facts. Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004).

In sum, an evidentiary hearing is required under the AEDPA and an appellate court will remand for a hearing if the district court rules without granting one where the petitioner establishes a colorable claim for relief and has never been accorded a state or federal hearing on his claim. Earp, supra, at 1167.

Here, Petitioner requested an evidentiary hearing at every level of the state habeas proceedings, and each of the courts to which he applied ruled without granting him an evidentiary hearing. As a result, (1) Petitioner is entitled to an evidentiary hearing in this court before the court can make any credibility determinations on the facts alleged in the petition and supporting exhibits; and (2) Any controverted facts found by the state court while denying a request for an evidentiary hearing necessarily result from an unreasonable determination of the facts, and hence are not entitled to any presumption of correctness. Earp, supra, at 1167; Taylor, supra, at 1101 [Where the state courts legal error infects the fact-finding process, the resulting factual determination will be unreasonable and no presumption of correctness can attach to it.].
" If the district court denies your petition without granting an evidentiary hearing, reiterate the above argument in filing your Objections to the Magistrates Report and Recommendation, and again in asking for a Certificate of Appealability when you file your Notice of Appeal.

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. 4.5) is now shipping, and can be purchased for $29.99 (cost is all-inclusive for prisoners; others pay $5 extra for postage and handling). No particular order form is necessary; just send your check or money order to the Law Offices of Russell and Russell, 2299 Sutter Street, San Francisco, CA 94115.

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