Federal Habeas Filings Under §2254
Filing a habeas petition is difficult and very time consuming. Filing an effective habeas petition is even harder. This is in reference to federal inmates filing for 28 U.S.C. §2255 habeas relief in federal court. A majority of these filings fail even before they get a hearing, never getting their day in court.
However, there is an avenue in this area of appeals that allows state inmates with state-level convictions to appeal their convictions on federal-constitutional grounds in federal court. This process and the law behind it comes from the section prior to the one that gives federal inmates this option.
This is Title 28 U.S.C. §2254.
Our most recent client who wanted to file for this type of appeal was the father of a young man in the Midwest United States who was wrongfully convicted of homicide. A case of mistaken identity that resulted in a sentence of life without the possibility of parole. This young man’s life is effectively over, all because an overzealous detective didn’t want to change his “hunch” from day 2 of investigating a murder.
This detective had pinned the crime on this young man, and nothing would dissuade him otherwise. Not a lack of evidence, or even witnesses that heard the confession of the real killer first hand. Add on top of that a drug-addicted witness who was paid a crime-stoppers-type reward before the trial, who changed his tune from unsure, to a concretely positive identification, and the perfect storm was set for a wrongful conviction.
However, this post is not about this young man or the injustices that resulted in a jury convicting him of murder.
This post is about the process of even getting his case heard before a federal judge. It is immensely difficult, to say the least.
The American Constitution Society
Just this month, in July of 2018, the American Constitution Society (ACS) published a brief entitled “Litigating Fedreal Habeas Corpus Cases: One Equitable Gateway at a Time“. and it gets started this way:
The Supreme Court has described the writ of habeas corpus as “a bulwark against convictions that violate fundamental fairness” (( Engle v. Isaac, 456 U.S. 107, 126 (1982) )) and as “the judicial method of lifting undue restraints upon personal liberty.” (( Price v. Johnston, 334 U.S. 266, 269 (1948) )) Unfortunately, obtaining federal habeas corpus relief has become close to impossible for many prisoners. The vast majority of habeas petitions are post-conviction petitions filed by state prisoners. Congress and the Supreme Court have erected a complicated maze of procedural obstacles that state prisoners must navigate, often without the assistance of counsel, to have their constitutional claims considered in federal court. One wrong procedural step means the prisoner’s claims are thrown out of federal court altogether. In fact, federal judges now dismiss a majority of state prisoners’ habeas claims on procedural grounds. (( See NANCY J. KING ET AL., FINAL TECHNICAL REPORT: HABEAS LITIGATION IN U.S. DISTRICT COURTS 6 (2007), http://www.ncjrs.gov/pdffiles1/nij/grants/219559.pdf [hereinafter KING REPORT]. ))
The rare state prisoner who successfully manages to run this procedural gauntlet faces a merits review process that has become so deferential to the state that relief remains virtually unattainable. In the extremely rare case where a federal court grants relief, the judgment often comes years after a person has been wrongly imprisoned. At that point, the case has often been forgotten and the state actors responsible for the underlying constitutional violation have often changed jobs. As a result, the federal decision effectively has no deterrent value.
One empirical study revealed that only 0.29% of non-capital state prisoners obtain any form of federal habeas relief. (( See KING REPORT, supra note 3, at 9. )) That number is troubling in light of evidence that states systematically violate criminal defendants’ constitutional rights (( See, e.g., Eve Brensike Primus, A Structural Vision of Habeas Corpus, 98 CALIF. L. REV. 1, 16-23 (2010) (documenting systemic violations of defendants’ rights in the states); see also Lynn Adelman, Who Killed Habeas Corpus?, DISSENT MAGAZINE (Winter 2018), https://www.dissentmagazine.org/article/who-killed-habeas-corpus-bill-clinton-aedpa-states-rights (“As a federal judge, I have observed a considerable number of cases where state courts overlooked clear constitutional violations….”). )) and data documenting large numbers of wrongful state convictions. (( See Brandon L. Garrett, Actual Innocence and Wrongful Convictions in ACADEMY FOR JUSTICE, A REPORT ON SCHOLARSHIP AND CRIMINAL JUSTICE REFORM (Erik Luna ed., 2017). )) Many state criminal defendants have no semblance of a fair process to determine their guilt or innocence. They are processed through a system populated by underfunded and overworked criminal defense attorneys who are often structurally ineffective, (( See, e.g., Eve Brensike Primus, Defense Counsel and Public Defense in ACADEMY FOR JUSTICE, A REPORT ON SCHOLARSHIP AND CRIMINAL JUSTICE REFORM (Erik Luna ed., 2017). )) prosecutors whose incentives often are to obtain convictions and appear tough on crime rather than pursue just results, ((See, e.g., John F. Pfaff, Prosecutorial Guidelines in ACADEMY FOR JUSTICE, A REPORT ON SCHOLARSHIP AND CRIMINAL JUSTICE REFORM (Erik Luna ed., 2017). )) and overwhelmed trial court judges who are focused on docket management and often indifferent to the systemic mistreatment of poor people of color. To avoid reckoning with these failures, states often rely on (and even distort) state procedural rules to reject defendants’ constitutional claims. (( See, e.g., Lee v. Kemna, 534 U.S. 362 (2002) (examining Missouri’s distortion of two state procedural rules to prevent a defendant from presenting witnesses to support his alibi defense); see also Eve Brensike Primus, Federal Review of State Criminal Convictions: A Structural Approach to Adequacy Doctrine, 116 MICH. L. REV. 75 (2017) (documenting how states use procedural rules to avoid constitutional challenges). ))
The entire brief runs 21 pages long and is well worth the read. Suffice it to say, though, these are very hard to do and do well.
As far as the young man who was convicted of murder? His case is still pending briefs ordered by the government and a report from an impartial magistrate judge before the presiding federal (( Article III )) judge makes a determination of whether this case is heard, granted, and this young man gets freed from prison.
Judging from past inmates who have tried, however, it is likely that this case will go to an appeal before it gets taken seriously. Maybe even the U.S. Supreme Court.
We will, of course, post any updates in the future.