After new trial motions have been made and all appeals � :re exhausted-or lost, perhaps for failure to comply with an appellate ri..: 1 e, such as a time limit on filing a notice of appeal-a defendant has a natural incentive to attempt additional attacks on the conviction.
Post-conviction remedies, of which habeas corpus is the most common, have always been regarded as collateral remedies, "providing a.new avenue for upsetting judgments that have become otherwise fina i." Mackey v. United States, 401 U.S. 667 (1971) (Harlan, J., separate opinion). They are not designed to substitute for direct review of convictions, nor can all the questions properly subject to appeal be raised collaterally. Because collateral attacks collide with principles of finality, there are substantial limitations imposed on persons who want to bring such attacks.
ISee United States v. Reese, 993 F.2d 254 (D.C.Cir.1993) (applying Ortega-Rodriguez and dismissing an appeal where the defendant became a fugitive after the trial and before sentencing; the defendant's flight precluded the court from consolidating his appeal with that of his co-defendant); United States v. Rosales, 13 F.3d 1461 (11th Cir.1 994) (dismissing an appeal where flight caused such a significant delay that the prosecution would be prejudiced in locating witnesses if a new trial were granted).
=======
In Ortega-Rodriguez, 5 the Supreme Court contemplated that the courts of appeal would "develop[] generally applicable rules to cover specific, recurring situations." Id. n. 23. Accordingly, we hold that a defendant whose flight prevents consolidation of his appeal with that of a co-defendant is not entitled to a belated appeal to this court. By thwarting consolidation, such fugitivity inherently disrupts the appellate process. To reward the fugitive by granting his claim to a second helping of the court's limited resources would be perverse indeed. Cf. Harbor Ins. Co. v. 257*257 Schnabel Foundation Co., 946 F.2d 930, 937 n. 5 (D.C.Cir.1991) ("the legal definition of chutzpah ... is a young man, convicted of murdering his parents, who argues for mercy on the ground that he is an orphan"); LEO ROSTEN, THE JOYS OF YIDDISH 93 (1968) (same).
Habeas corpus always has been a collateral remedy, providing an avenue for upsetting judgments that 683*683 have become otherwise final. It is not designed as a substitute for direct review. The interest in leaving concluded litigation in a state of repose, that is, reducing the controversy to a final judgment not subject to further judicial revision, may quite legitimately be found by those responsible for defining the scope of the writ to outweigh in some, many, or most instances the competing interest in readjudicating convictions according to all legal standards in effect when a habeas petition is filed. Indeed, this interest in finality might well lead to a decision to exclude completely certain legal issues, whether or not properly determined under the law prevailing at the time of trial, from the cognizance of courts administering this collateral remedy. This has always been the case with collateral attacks on final civil judgments.[2] More immediately relevant here is the fact that 684*684 prior to Brown v. Allen, 344 U. S. 443 (1953), federal courts would never consider the merits of a constitutional claim raised on habeas if the petitioner had a fair opportunity to raise his arguments in the original criminal proceeding, see my dissent in Fay v. Noia, 372 U. S. 391, 449-463 (1963), unless the petitioner attacked the constitutionality of the federal, Ex parte Siebold, 100 U. S. 371 (1880), or state, Crowley v. Christensen, 137 U. S. 86 (1890), statute under which he had been convicted. See generally Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 463 (1963); Note, Developments in the Law—Federal Habeas Corpus, 83 Harv. L. Rev. 1040. 1042-1062 (1970)…
In conclusion, the Court in deciding these cases seems largely to have forgotten the limitations that accompany its functions as a court of law. For the retroactivity doctrine announced today bespeaks more considerations of policy than of legal principle. Treating direct and collateral review as if they were of one piece seems to me faulty analysis, ignoring, as it does, the jurisprudential considerations that differentiate the two kinds of adjudicatory functions. As a court of law we have no right on direct review to treat one case differently from another with respect to constitutional provisions applicable to both. As regards cases coming here on collateral review, the problem of retroactivity is in truth 702*702 none other than one of resettling the limits of the reach of the Great Writ, which under the recent decisions of this Court has been given almost boundless sweep.[9] Until the Court is prepared to do this I can see no really satisfactory solution to the retroactivity problem. Meanwhile, I very much regret to see the existing free-wheeling approach to that problem now rewritten into the jurisprudence of this Court.
Cites:
"No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation."
- in Withrow v. Williams, 1993
Given the "broad scope of constitutional issues cognizable on habeas," Justice Harlan argues that it is "sounder, in adjudicating habeas petitioners, generally to apply the law prevailing at the time a conviction became final than it is to seek to dispose of [habeas] cases on the basis of intervening changes in constitutional interpretations
- in Commonwealth v. DiMatteo, 2018
Harlan-Due Process-dissent
Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three. Compare, e. g., Selective Draft Law Cases, 245 U. S. 366; Butler v. Perry, 240 U. S. 328; Korematsu v. United States, 323 U. S. 214. Thus the guaranties of due process, though having their roots in Magna Carta's "per legem terrae" and considered as procedural safeguards "against executive usurpation and tyranny," have in this country "become bulwarks also against arbitrary legislation." Hurtado v. California, 110 U. S. 516, at 532.
However it is not the particular enumeration of rights in the first eight Amendments which spells out the reach of Fourteenth Amendment due process, but rather, as was suggested in another context long before the adoption of that Amendment, those concepts which are considered to embrace those rights "which are . . . fundamental; which belong . . . to the citizens of all free governments," Corfield v. Coryell, 4 Wash. C. C. 371, 380, for "the purposes [of securing] which men enter into society," Calder v. Bull, 3 Dall. 386, 388. Again and again this Court has resisted the notion that the Fourteenth Amendment is no more than a shorthand reference to what is explicitly set out elsewhere in the Bill of Rights. Slaughter-House Cases, 16 Wall. 36; Walker v. Sauvinet, 92 U. S. 90; Hurtado v. California, 110 U. S. 516; Presser v. Illinois, 116 U. S. 252; In re Kemmler, 136 U. S. 436; 542*542 Twining v. New Jersey, 211 U. S. 78; Palko v. Connecticut, 302 U. S. 319. Indeed the fact that an identical provision limiting federal action is found among the first eight Amendments, applying to the Federal Government, suggests that due process is a discrete concept which subsists as an independent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibitions. See Mormon Church v. United States, 136 U. S. 1; Downes v. Bidwell, 182 U. S. 244; Hawaii v. Mankichi, 190 U. S. 197; Balzac v. Porto Rico, 258 U. S. 298; Farrington v. Tokushige, 273 U. S. 284; Bolling v. Sharpe, 347 U. S. 497.
Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.
=======
One rarely used form of collateral attack is for the petitioner to obtain a writ of coram nobis. This is a remedy of last resort, available only to one otherwise remediless. Given the availability of a habeas corpus petition for those in custody, the coram nobis remedy has only very limited applicability. See Lowery v. United States, 956 F.2d 227 (1 1th Cir. 1992) (coram nobis relief is not available where the defendant is still in custody and can petition for habeas relief). As the court in Telink, Inc. v. United States, 24 F.3d 42 (9th Cir. 1994), put it:
The writ of error coram nobis is a limited remedy of last resort: "Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice." United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 252, 98 L.Ed. 248 (1954) (emphasis added); see Moody v. United States, 874 F.2d 1575, 1576 (11th Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1137, 107 L.Ed.2d 1042 (1990).[1] Coram nobis jurisdiction is therefore 229*229 available only when the error alleged is "of the most fundamental character," Moody, 874 F.2d at 1576, and when "no statutory remedy is available or adequate." United States v. Russell, 776 F.2d 955, 957 n. 1 (11th Cir.1985); Correa-Negron v. United States, 473 F.2d 684, 685 (5th Cir. 1973), cert. denied, 414 U.S. 870, 94 S.Ct. 89, 38 L.Ed.2d 88 (1973).[2] Because of the availability of habeas review, the Supreme Court has found it "difficult to conceive of a situation in a federal criminal case today where [coram nobis relief] would be necessary or appropriate." United States v. Smith, 331 U.S. 469, 476 n. 4, 67 S.Ct. 1330, 1334 n. 4, 91 L.Ed. 1610 (1947).
Although Lowery's multiple personality claim presents an alleged error of a fundamental nature, see Morgan, 346 U.S. at 507-13, 74 S.Ct. at 250-54, the district court found that Lowery had failed to pursue this claim in an available section 2254 habeas proceeding. See 28 U.S.C.A. § 2254 (West 1977). We therefore review the lower court's finding only to determine whether section 2254 of Title 28 provides a remedy that is both available and adequate. See Russell, 776 F.2d at 957 n. 1.
Lowery cites Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, for the proposition that a defendant may not use habeas corpus to attack a prior conviction, even in the course of challenging a present sentence as enhanced by the allegedly invalid prior conviction. We have already rejected this interpretation and have found a section 2254 proceeding appropriate for asserting a claim such as Lowery's. See Battle v. Thomas, 923 F.2d 165 (11th Cir.1991); Harper v. Evans, 941 F.2d 1538, 1539 (11th Cir.1991); see also Allen v. Collins, 924 F.2d 88, 89 (5th Cir.1991); Gamble v. Parsons, 898 F.2d 117, 118-19 (10th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 212, 112 L.Ed.2d 172 (1990); Taylor v. Armontrout, 877 F.2d 726, 727 (8th Cir.1989); Clark v. Pennsylvania, 892 F.2d 1142 (3d Cir.1989); Lowery v. Young, 887 F.2d 1309 (7th Cir.1989).
Lowery suggests no reasons why this available section 2254 remedy is not also adequate for adjudicating his claim
Habeas corpus is a remedy for those who are in custody; the petitioner seeks a writ to be se1·ved against the official holding him in custody-usually the warden. The justification for the writ is that some error occurred that makes the custody illegal.
In state habeas proceedings, state law governs the extent to wJ, ir;h claims can be raised and the procedures that must be followed in raising the claims. If a convicted person wins collateral relief in state court, further proceedings will be unnecessary. But failure to win in state court often will not bar a subsequent federal action to set aside a state conviction.
28 U.S.C.A. § 224 1 et seq. sets forth the powers of federal judges to issue writs of habeas corpus and the procedures to be utilized in habeas corpus actions. Section 2241 sets forth the reach of the writ and identifies the courts from which it may be sought.
Section 2244, as amended by AEDPA, essentially provides that a habeas petitioner gets one collateral attack. Successive petitions are virtually always to be dismissed. It also provides for a statute of limitations on habeas petitions.
Section 2253 limits the right of appeal from a district court's denial of a writ of habeas corpus.
Section 2254 is the basic section governing review of state court convictions by a federal district court in a habeas corpus action. The AEDPA requires federal courts to give substantial deference to state court determinations of federal law. And it requires the petitioner to exhaust state remedies before seeking a habeas corpus petition in federal court. It also limits the ability of a state petitioner to receive an evidentiary hearing in the federal court.
Section 2255 is the main provision regulating habeas petitions by thos,� who have been convicted in federal court. The AEDPA imposes a one-:,.•car statute of limitations on such petitions, and generally precludes successive petitions.
Some of the restrictions to habeas corpus relief as a result of signing the AEDPA into law include:
28 U.S.C. §§ 2261-68 are provisions added by AEDPA to limit collateral attacks by state death row inmates. Among other things, these sections: 1) limit the ability of death row inmates to obtain more than one stay of execution; 2) generally preclude considerations of claims that were not heard in state court because of the petitioner's failure to comply with a state procedural rule; 3) provide a "rocket docket" for expedited consideration of death penalty claims on habeas. To invoke these prov; sions, the state must prove that it has established "by statute, rule of its court of last resort, or by another agency authorized by State law, a medrnnism for the appointment, compensation, and payment of reasvnable litigation expenses of competent counsel in State post convi.::tion proceedings brought by indigent prisoners whose capital com•idions and sentences have been upheld on direct appeal to the court of last resort in the State or have otherwise become final for State law purposes. The rule of court or statute must provide standards of competency for the appointment of such counsel."
Guidelines on the Deferential Standard of Review in Section 2254(d): Williams v. Taylor
Section 2254(d) Deference Requires the Federal Court to Review All Grounds for the State Decision: Wetzel v. Lambert
In Reed v. Farley, 512 U.S. 339 (1994), the Court extended the "fundamental defect" test of Hill to claims of federal statutory violations brought by state defendants under section 2254. The statutory violation at issue in Reed concerned the Interstate Agi·eement on Detainers ("IAD"), a compact among 48 States, the District of Columbia, and the Federal Government. Article IV(c) of the IAD provides, among other things, that the trial of a prisoner transferred from one participating jurisdiction to another must commence within 120 days of the prisoner's arrival in the receiving State, and directs dismissal with prejudice when trial does not occur within the time prescribed. Reed's trial did not begin within this time limit. The trial court denied Reed's petition for discharge on the ground that the judge had previously been unaware of the 120-day limitation and that Reed had not earlier objected to the trial date or requested a speedier trial. Reed was convicted, and after unsuccessful appeals in the Indiana courts, he petitioned for a federal writ of habeas corpus under section 2254.
Cites:
"Where the petitioner... failed properly to raise his claim on direct review, the writ is available only if the petitioner establishes cause for the waiver and shows actual prejudice resulting from the alleged violation."
- in Wee v. US, 2015
Claims based on a federal statute or rule, rather than on a specific constitutional guarantee, "can be raised on collateral review only if the alleged error constituted a `fundamental defect which inherently results in a complete miscarriage of justice.'"
- in Jones v. US, 2009
Once again, AEDPA does not speak for itself quite as articulately as one would like, and significant questions about its effects have come before the courts. It is difficult to say with precision exactly what changes AEDPA made to habeas practice with respect to certain issues. First, § 2244 speaks of “second or successive” petitions, but de- clines to define this term. What does it mean? Does the “plain mean- ing” control, insofar as the phrase applies to any federal habeas petition after the first? Or is this phrase a term of art that means some- thing else entirely? Is it intended to incorporate specifics of habeas practice that were regnant before the change? The statute is silent on these issues.
Secondly, what of the pre-AEDPA common law rules, specifically the abuse-of-the-writ doctrine that had been partially resurrected by the Supreme Court?33 It can be contended, though not without difficulty, that AEDPA is a completely self-interpreting statute and entirely supplanted the equitable principles that courts employed earlier. Another reasonable contention is that the tools that courts used to approach habeas petitions before the act are still valid, and that the phrase “second or successive” should be approached with the abuse- of-the-writ doctrine in mind. Supreme Court decisions have not interpreted the text in the narrowest manner,34 and the tension between the pre-AEDPA principles and the text of § 2244 remains.
A third question, and one of singular importance, is how courts are to navigate these issues without running afoul of the United States Constitution. As noted previously, the writ of habeas corpus is mentioned by name in the Constitution, with the proviso that it not be “suspended.” Furthermore, habeas is a vehicle for the vindication of other constitutional rights. In enforcing AEDPA, how can judges be sure that they are not acting in a manner repugnant to the Constitution or violating the constitutionally protected rights of prisoners?
The final unanswered question is precise: if a prisoner files for a writ of habeas corpus that is adjudicated on the merits, and then she files again, this time including a claim that was factually unripe at the time of the earlier petition and thus not included, is the chronologically second petition considered “second or successive” for purposes of AEDPA?
The Supreme Court has faced these kinds of questions since the enactment of AEDPA, and an understanding of how it approached the first three questions will inform the analysis of the last…
The majority of the lower courts facing this issue have held that, once an initial petition is adjudicated on the merits, a petition containing a claim that has ripened in the meantime is not necessarily “second or successive” under AEDPA. These cases and claims arose in a number of contexts, but the common thread is that they were not dis- missed under § 2244(b).
The Second Circuit faced this issue in James v Walsh.61 After filing a habeas petition that was denied on the merits, the petitioner filed yet another petition, this time alleging that the corrections department had miscalculated his sentence, and that he was being held in violation of state and federal law.62 After the district court transferred the case to the court of appeals, the Second Circuit noted the marked disinclination of courts to adopt a literal reading of § 2244, and that a chrono- logically second petition need not be considered a statutorily second petition under that section.63 It also supplied a definition: “Under the abuse-of-the-writ doctrine, a subsequent petition is ‘second or successive’ when it raises a claim that was, or could have been, raised in an earlier petition.”64 Because the petitioner could not have challenged the administration of his sentence in the prior petition, it would be considered a “first” petition as to that claim, even though it was second chronologically.65
The Third Circuit reached a similar conclusion on similar facts in Benchoff v Colleran.66 In that case, the petitioner collaterally attacked his conviction on habeas review, and after that petition was denied, he filed another, alleging due process violations because he was not pro- vided with reasons for parole denial.67 The court of appeals raised the
The paradigmatic case of what the abuse-of-the-writ doctrine means post-AEDPA came down from the Fifth Circuit in In Rre Cain.71 After filing a habeas petition challenging his conviction and the con- stitutionality of his prison’s “good-time credits program,” Cain filed again, challenging another prison administrative policy.72 Noting that the new petition was chronologically successive to his first, the court looked to § 2244(b) and observed that the phrase “second or succes- sive” went undefined in the act. Stepping away from the rigid textual analysis, the opinion pointed out that “a prisoner’s application is not second or successive simply because it follows an earlier federal peti- tion. Instead, § 2244—one of the gatekeeping provisions of AEDPA—was enacted primarily to preclude prisoners from repeatedly attacking the validity of their convictions and sentences.”73 In support of this claim, the opinion mentioned that § 2244(b)(2)(B) speaks of the prisoner’s guilt of the underlying offense, giving the impression that challenges to postconviction administrative and disciplinary issues were not the main target of the provisions.74
This definition is then offered: “[A] later petition is successive when it: 1) raises a claim challenging the petitioner’s conviction or sentence that was or could have been raised in an earlier petition; or 2) otherwise constitutes an abuse of the writ.”75 With this definition of “second or successive,” the court held that Congress did not intend § 2244 to bar successive due process challenges to administrative and
Cites:
—the restrictions on second-or-successive petitions do not apply to a claim that was not ripe when the inmate filed his first-in-time petition.
- in Bernard v. US, 2020 and 61 similar citations
In addition, the Supreme Court decision must " `squarely address [] the issue in th [e] case'or establish a legal principle that `clearly extend [s]'to a new context to the extent required by the Supreme Court in... recent decisions "; otherwise, there is no clearly established Federal law for purposes of review under AEDPA.
- in Schuster v. Espinoza, 2019 and 132 similar citations
The Court looks to the last reasoned state court decision as the basis for the state court judgment. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this Court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 562 U.S. at 99. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the state courts reach a decision on the merits but there is no reasoned decision, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any "reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98. This Court "must determine what arguments or theories . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 102…
The clearly established federal law governing ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668 (1984). In a petition for writ of habeas corpus alleging ineffective assistance of counsel, the court must consider two factors. Strickland, 466 U.S. at 687. First, the petitioner must show that counsel's performance was deficient, requiring a showing that counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. at 687. The petitioner must show that counsel's representation fell below an objective standard of reasonableness and must identify counsel's alleged acts or omissions that were not the result of reasonable professional judgment considering the circumstances. Richter, 562 U.S. at 105 ("The question is whether an attorney's representation amounted to incompetence under `prevailing professional norms,' not whether it deviated from best practices or most common custom.") (citing Strickland, 466 U.S. at 690). Judicial scrutiny of counsel's performance is highly deferential. A court indulges a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 687. A reviewing court should make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at that time." Id. at 689.
Second, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. A court "asks whether it is `reasonable likely' the result would have been different. . . . The likelihood of a different result must be substantial, not just conceivable." Richter, 562 U.S. at 11-12 (citing Strickland, 466 U.S. at 696, 693). A reviewing court may review the prejudice prong first. See Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002).
When § 2254(d) applies, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard." Richter, 562 U.S. at 101. Moreover, because Strickland articulates "a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). "The standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Richter, 562 U.S. at 105 (citations omitted). Thus, "for claims of ineffective assistance of counsel . . . AEDPA review must be `doubly deferential' in order to afford `both the state court and the defense attorney the benefit of the doubt.'" Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)). When this "doubly deferential" judicial review applies, the inquiry is "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 562 U.S. at 105…
"The Supreme Court has clearly established that the combined effect of multiple trial court errors violates due process where it renders the resulting criminal trial fundamentally unfair. . . . even where no single error rises to the level of a constitutional violation or would independently warrant reversal." Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Chambers v. Mississippi, 410 U.S. 284, 298, 302-03, 290 n.3 (1973)). The Ninth Circuit has "granted habeas relief under the cumulative effects doctrine when there is a `unique symmetry' of otherwise harmless errors, such that they amplify each other in relation to a key contested issue in the case." Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011) (citing Parle, 505 F.3d at 933).
A petition for habeas relief is not considered to be "second or successive simply because it follows an earlier federal petition."
A habeas petition is classified as second or successive within the meaning of 28 USC § 2244 if a prior petition has been decided on the merits, the prior and new petitions challenge the same conviction, and the new petition asserts a claim that was, or could have been, raised in a prior habeas petition.
- in Evans v. Attorney General, 2017
his provision, by curtailing the availability of "second or successive habeas corpus application[s]," seeks to prevent state prisoners from abusing the writ of habeas corpus. See Felker v. Turpin, 518 U.S. 651, ___, 116 S.Ct. 2333, 2340, 135 L.Ed.2d 827 (1996).
The AEDPA, however, does not define what constitutes a "second or successive" application. Nevertheless, a prisoner's application is not second or successive simply because it follows an earlier federal petition. Instead, section 2244 — one of the gatekeeping provisions of the AEDPA — was enacted primarily to preclude prisoners from repeatedly attacking the validity of their convictions and sentences.[1] Thus, a later petition is successive when it: 1) raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition; or 2) otherwise constitutes an abuse of the writ. Cf. Thomas v. Superintendent/Woodbourne Correctional Facility, 136 F.3d 227, 229 (2d Cir.1997) (instructing a district court to determine whether 236*236 a petition was successive by considering "whether the prior petition was dismissed with prejudice and whether the instant petition attacks the same judgment that was attacked in the prior petition"); Reeves v. Little, 120 F.3d 1136, 1138 (10th Cir.1997) ("In determining what is a `second or successive' motion under the statute, the circuits which have reviewed this question use the `abuse of the writ' standard.") (citing In re Gasery, 116 F.3d 1051 (5th Cir.1997)); see also Felker, 518 U.S. at ___, 116 S.Ct. at 2340 ("The new restrictions on successive petitions constitute a modified res judicata rule."); Gasery, 116 F.3d at 1052 (applying the abuse of the writ standard to determine that a petition that was refiled after being dismissed for failure to exhaust state remedies was not a "second or successive" petition).
Under this understanding of the Act, Cain's current petitions are not successive. In these petitions, Cain seeks relief from two post-conviction and post-sentence administrative actions taken by his prison board, contending that he was stripped of his good-time credits without due process of law. Rather than attacking the validity of his conviction or sentence, Cain's petitions focus on the administration of his sentence. Indeed, even if his claims are found to be meritorious and his good-time credits are restored, Cain will continue to serve his sentence as it was imposed by the trial court.[2]
Moreover, Cain's current petitions do not present claims that were or could have been raised in his earlier petitions. According to Cain, his earlier petitions, which were filed before he was stripped of his good-time credits, challenged his criminal conviction and the constitutionality of the TDCJ's good-time credits program.[3] In contrast, Cain's current applications focus on the constitutionality of the procedures used to strip him of his good-time credits. Further, given the timing of the board's decisions to strip him of these credits, Cain could not have brought his due process claims in conjunction with his earlier petitions. Accordingly, Cain's current applications are not successive on the grounds that they constitute an abuse of the writ.
Finally, the conclusion that Cain's current petitions are not successive is bolstered by the fact that a prisoner may seek redress for the loss of good-time credits only through a habeas petition. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Under a contrary holding, if a prisoner has previously filed a petition challenging his conviction or sentence, any subsequent petition challenging the administration of his sentence will necessarily be barred by 28 U.S.C. § 2244(b), notwithstanding the possibility that the events giving rise to this later application may not have occurred until after the conclusion of the earlier habeas proceeding. By definition, a prisoner challenging the administration of his sentence will not be relying on newly discovered evidence to show that a "reasonable fact finder would [not] have found the applicant guilty of the underlying offense." § 2244(b)(2)(B). Likewise, a petitioner like Cain will also be unable to show that his claim "relies on a new rule of constitutional law," § 2244(b)(2)(A), because the due process principles governing challenges to the procedures used to strip a prisoner of good-time credits are well-established. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Consequently, we hold that Congress did not intend for the interpretation of the phrase "second or successive" 237*237 to preclude federal district courts from providing relief for an alleged procedural due process violation relating to the administration of a sentence of a prisoner who has previously filed a petition challenging the validity of his conviction or sentence, but is nevertheless not abusing the writ.
Therefore, Cain does not need this court's permission to file his two petitions because these petitions are not successive within the meaning of 28 U.S.C. § 2244.
The equitable gateways to habeas review fall into two basic categories. Federal courts are more willing to look past procedural barriers and provide more robust merits review when state prisoners show either that they are innocent or that they did not have a full and fair opportunity to have their federal claims adjudicated in the convicting state’s system.6 Much has been written about the scope of equitable exceptions focused on innocence.7 In this Article, I focus on the latter interest, which I refer to as an equitable concern about fair consideration.8 The fair consideration
concern is not directly about underlying rights violations. The animating worry is not whether a prisoner was convicted after, say, the improper concealment of evidence under Brady v. Maryland9 or an inappropriate jury-selection process under Batson v. Kentucky.10 Instead, the concern is that the prisoner has had no real chance to present such claims to a court and have them fairly adjudicated.11 If a state prisoner has not had a full and fair opportunity to have federal claims considered, there are equitable gateways that permit the prisoner to bypass the procedural and substantive restrictions on the scope of federal habeas review and get the underlying federal claims fully considered in federal court.12 These equitable gateways offer powerful paths to more meaningful federal review of state-court criminal convictions.
But litigants and courts generally underestimate the potential these gateways offer, with the result that habeas litigation does not focus on them as often as it should. On the contrary, many courts and litigants think of these gateways as quite narrow. The reason is partly historical. Fair consideration doctrines are often traced back to Justice Jackson’s separate opinion in Brown v. Allen13 criticizing federal review of state-court criminal convictions. Focusing on the importance of finality and the inevitable conflict with states that results from federal review, Justice Jackson opined that federal courts should typically not entertain habeas petitions.14 But he carved out a narrow exception to that prohibition: he would have permitted federal review if a petitioner “shows that although the law allows a remedy, he was actually improperly obstructed from making a record upon which the question could be presented.”15 Stated differently, Justice Jackson thought federal habeas review was appropriate if a state prisoner had been unfairly prevented from fully presenting his federal claims earlier…
Procedural default and exhaustion are doctrinal cousins. If a state prisoner fails to take advantage of an available opportunity to litigate a claim in state court, the problem is a failure to exhaust. But, if a state prisoner failed to pursue an opportunity to present the claim to the state courts at an earlier time and that procedural avenue is no longer available under state law, the prisoner has procedurally defaulted—or waived—the underlying claim.59 Similarly, if a state prisoner attempts to raise a federal constitutional claim in state court, but the state courts refuse to consider the claim because the prisoner failed to raise it properly under the state’s procedural rules, the federal court will deem the claim procedurally defaulted and will refuse to consider the merits of the underlying constitutional claim out of respect for the state’s procedural regime.60 The state-court determination that the prisoner failed to properly present the constitutional claim under state procedural rules is deemed an adequate and independent state-law ground justifying the denial of relief.61
Substantive Obstacles to Review
The Supreme Court has placed multiple limits on what kinds of federal claims are cognizable in habeas petitions filed by state prisoners. First, in Stone v. Powell, the Supreme Court held that state prisoners may not raise Fourth Amendment challenges in federal habeas proceedings if they had a full and fair opportunity to raise those challenges in state court.68 The exclusionary rule exists to deter police officers from committing constitutional violations, and the Court deemed the additional deterrence achieved by applying the exclusionary rule at the habeas stage not sufficient to overcome the government interests in finality, conservation of resources, and federalism.69
Additionally, in Reed v. Farley, the Court held that not all violations of state prisoners’ federal statutory rights will be cognizable in federal habeas proceedings.70 Only federal statutory errors that amount to “a fundamental defect which inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary demands of fair procedure” will be heard.71 In Reed v. Farley, the Court deemed a violation of the federal interstate compact on detainers not fundamental enough to merit federal consideration.72
Under AEDPA, federal courts may not hold evidentiary hearings on claims that a state prisoner failed to develop in the state courts unless the prisoner can show by clear and convincing evidence that he or she is innocent and can also show that the claim relies on either a new rule of law that the Supreme Court has deemed retroactively applicable or new facts that could not have been discovered before.73 The Supreme Court has interpreted AEDPA to limit federal habeas review in most cases to the factual record created in the state courts.74 As a result, evidentiary
Out of respect for state factfinding procedures, Congress requires federal habeas courts to presume that any determination of fact that a state court makes is correct.77 To overcome that presumption, the prisoner must show by clear and convincing evidence that the state court’s factual determination was wrong.78 Given how rare evidentiary hearings are in federal court, most attempts to rebut a state court’s factual findings are limited to an often-anemic state evidentiary record. The presumption of correctness is therefore quite difficult to overcome.
Section 2254(d) of AEDPA famously implemented a highly deferential standard of review in federal court for claims previously adjudicated on the merits in the states.79 A federal habeas court may only grant a prisoner relief if the prior state-court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding” or if the state court’s legal determination “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”80 As the Supreme Court has explained, it is not enough if the state court’s determination of the facts or application of the law was clearly erroneous.81 Rather, the state court’s determination must have been patently unreasonable and “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”82 And, even if a habeas petitioner is able to show that the state court ignored clearly binding federal precedent or applied it in a patently unreasonable way, the prisoner will not get relief unless the error is deemed harmful, meaning that it had a substantial and injurious effect or influence on the jury’s verdict.83
For all of these reasons, even a habeas petitioner who successfully navigates the procedural complexities has less than a 0.3% chance of winning on the merits.84 Many experts believe that federal habeas doctrine is convoluted, incoherent, and not worth the amount of time and judicial energy spent on it,85 while others complain that we have lost sight of the historic function of the Great Writ to remedy injustice and check abuses of government power.86 Perhaps most damning, some federal judges lament that current habeas law requires them “to place their stamp of approval on constitutional error.”87 While procedural and substantive obstacles pose challenges, the animating principles of the equitable exceptions to these barriers reveal possible ways to expand the scope and impact of federal habeas review of state prisoners’ claims.
…
Many of the limits on the scope of federal habeas review and the deference shown to state-court judgments in federal habeas proceedings may disappear when there was no full and fair adjudication of a state prisoner’s claims in state-court proceedings.
Even as the Supreme Court was removing Fourth Amendment search and seizure claims from federal habeas review in Stone v. Powell, it was careful to note that only those Fourth Amendment claims that had been fully and fairly litigated in state courts would not be readjudicated in federal habeas proceedings.150 If petitioners can show that their search and seizure rights were violated and that the state courts did not provide an adequate forum for litigating the Fourth Amendment challenge, the federal court will consider the claims on habeas.151
Federal courts have refused to bar federal review when a state prisoner had a constitutionally ineffective trial or appellate attorney who failed to properly present a Fourth Amendment claim.152 Federal courts have also deemed state-court processes inadequate to bar federal review of Fourth Amendment claims when the state provided no realistic opportunity to raise a Fourth Amendment challenge.153 The inquiry into whether there was a full and fair opportunity to litigate a Fourth Amendment claim in state court resembles the equitable inquiries that animate the
exceptions to the procedural barriers to review. If the reason why a prisoner could not present a Fourth Amendment claim in the state courts would satisfy the cause standard under procedural default, the prisoner probably did not have a full and fair opportunity to present the claim. And if the state procedures would fail an adequacy review under the exhaustion and procedural default doctrines, they will probably also be inadequate to bar federal consideration of a Fourth Amendment challenge.154
Similarly, even as the Court in Reed v. Farley155 was limiting the number of federal statutory claims that would be cognizable on habeas, it was careful to note that a statutory error that is “inconsistent with the rudimentary demands of fair procedure” will be heard.156 If the state court fails to provide basic, fair procedures for vindicating federal statutory rights, the federal courts will entertain those claims.157
In Williams v. Taylor, the Supreme Court held that AEPDA’s restrictions on the availability of evidentiary hearings only apply when a state prisoner is at fault for failing to develop a record in state court.158 The Court noted that a state prisoner “is not at fault when his diligent efforts to perform an act are thwarted, for example, by the conduct of another or by happenstance.”159 This fault-based inquiry relies on reasoning similar to that underlying the equitable exceptions to procedural barriers to review. If the state processes are inadequate or some unforeseen factor external to the state prisoner prevented him from having an opportunity to fully and fairly develop the record in state court, AEDPA should not stand in the way of a federal evidentiary hearing. And once a state prisoner walks through the equitable opening created by Williams160 and AEDPA’s restrictions on evidentiary hearings no longer apply, Supreme Court precedent often requires federal evidentiary hearings.161
The deferential standards of review in AEDPA are only triggered when the underlying federal claim at issue “was adjudicated on the merits in State court proceedings.”162 If there was no prior state-court adjudication of the claim, and the state prisoner is able to overcome any procedural obstacles to federal habeas review, the federal court’s review of the claim will be de novo.163 The difference between de novo review and the deferential review of § 2254(d) is vast. To obtain relief under
Similarly, the deference given to a state court’s factual findings in § 2254(e)(1), which contains the presumption of correctness, only applies when the state court has made a “determination of a factual issue.”165 Thus, it is important to consider when the state court has made a factual determination that is entitled to deference.
The federal courts have uniformly held that a state-court decision is not an “adjudication on the merits” deserving of § 2254(d) deference when the decision (1) rested on procedural grounds, (2) failed to address the federal claim because it was not presented to the state court, or (3) failed to address a particular aspect of the federal claim because the state court resolved the claim on other grounds.166 In short if the state never considered a claim, and habeas is the prisoner’s first real opportunity to present a federal claim, § 2254(d) deference will not apply.
Even when the state addressed a prisoner’s federal claim, if the state’s factfinding procedures were inadequate (meaning that the state prisoner did not have a full and fair opportunity to develop the facts to support the claim), some federal courts will not defer to the state’s decision. Instead, they will deem the inadequate procedures sufficient to overcome AEDPA’s presumption that the state factfinding was correct and analyze the prisoner’s federal claims under a de novo standard rather than a deferential one.
For example, some federal courts have held that there has been no actual adjudication of a claim on the merits when state prisoners have not had a full and fair opportunity to develop evidence in support of the claim.167 As the Fourth Circuit has explained, when the state courts refuse to give a prisoner an evidentiary hearing when such a hearing is necessary to develop the facts of the claim, and the state then denies the claim summarily without addressing serious factual issues raised in the pleadings, that is tantamount to never having adjudicated the claim in the first instance.168 Without an adjudication on the merits, the deferential standards of § 2254(d) no longer apply, and the federal court will review the prisoner’s claim de novo.169
Other federal courts have deemed state factfinding predicated on inadequate state procedures patently unreasonable under § 2254(d)(2).170 The Ninth Circuit has noted that “where a state court makes factual findings without an evidentiary hearing or other opportunity for the petitioner to present evidence, ‘the fact-finding process itself is deficient’ and not entitled to deference.”171 Having determined that the state court’s determinations of fact were unreasonable, the federal court considers the prisoner’s federal claims de novo, supplementing the state-court record through a federal evidentiary hearing when appropriate.172
Finally, some federal courts will recast the prisoner’s claim as a new claim supported by new evidence that has not been raised before in the state.173 If a state prisoner had no real opportunity to present evidence in support of a claim in state court (either because the state-court processes would not permit it or because the prisoner had an ineffective lawyer who failed to try), Justice Breyer has suggested that the federal courts should deem the claim a new claim not previously adjudicated on the merits in the state.174 As he put it, “[a] claim without any evidence to support it might as well be no claim at all.”175
Even if some evidence was presented in the state courts to support the claim, if the state prisoner later discovers a substantial amount of new evidence, it might be enough to “fundamentally alter” the nature of the claim and cause a federal court to characterize the claim as new.176 The new claim, not having been raised in state court, will be procedurally defaulted, but deficient state procedures may make the state procedural default inadequate to bar federal review.177 Alternatively, the ineffectiveness of state postconviction counsel in failing to develop record evidence in the state courts may be “cause” to excuse the prisoner’s procedural default.178 Either way, after bypassing the procedural default, the prisoner’s claims will be reviewed de novo in federal court.179
These are three approaches lower federal courts have taken to bypass the deferential standards of review in AEDPA and review state prisoners’ claims de novo because the state’s merits determination was based on an inadequate state process. Each of these approaches is motivated by an equitable concern about ensuring that state prisoners have a full and fair opportunity to present their federal claims and have them considered by the state courts. Even the harmless error doctrine, as articulated in Brecht v. Abrahamson,180 has an equitable exception. In a footnote in the Brecht decision, the Supreme Court noted that it was not foreclos[ing] the possibility that in an unusual case, a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct, might so infect the integrity of the proceeding as to warrant the grant of habeas relief even if it did not substantially influence the jury’s verdict.181
Thus, even as it was imposing an additional hurdle to obtaining habeas relief, the Supreme Court was careful to provide a bypass for prisoners whose trials were infected by especially egregious errors that compromised their opportunities to have their federal claims fairly considered.
Federal courts should be more explicit about their willingness to cut through the red tape of habeas doctrine and grant relief when they believe state prisoners have not had a fair opportunity to have their federal claims considered. And habeas petitioners arguing for broader procedural bypasses and more expansive merits review should explicitly cast arguments in fair consideration terms when those concepts are applicable to their claims.
Currently, state prisoners who never had their federal claims fully and fairly considered in state court often fail to paint a complete picture of the systemic state-process failures that stood in their way.182 This should not be surprising. Right now, there is no constitutional right to federal habeas counsel.183 Most state prisoners are indigent and cannot afford to hire federal habeas counsel.184 They either must proceed pro se or rely on pro bono assistance that typically comes from large law firms or legal institutions that do not focus on criminal cases.185 The attorneys who take on these cases are typically reputable generalist lawyers, but habeas litigation is often not their area of expertise, and they typically lack any deep experience with
state postconviction regimes.186 As a result, they might not understand the varied ways in which states create and implement postconviction review systems that routinely and effectively prevent state prisoners from having their federal claims fully considered. The state prisoners who proceed pro se certainly do not have access to this information.
Not knowing about the systemic procedural failures in the state, most state prisoners focus on their individual circumstances when trying to get around procedural and substantive obstacles to review.187 They offer excuses for why they did not comply with procedural rules or why they were not at fault for failing to develop a sufficient factual record in state court.
For example, a habeas petitioner might argue that he was never given a postconviction attorney to raise his trial attorney’s ineffectiveness, so he has “cause” to excuse his failure to raise the trial attorney’s ineffectiveness.188 But, if that state prisoner comes from a state that relegates IATC claims to state postconviction review and then routinely refuses to provide state prisoners with counsel at that stage, there is a systemic problem in the state.189 The structure and practice in that state court system effectively prevents prisoners from ever being able to challenge their trial attorneys’ performance. That claim is not getting raised as often as it should. The more localized excuses are known to the petitioners and their pro bono counsel and are easier to raise, but they are less likely to motivate a federal court to grant relief because they do not demonstrate an extraordinary or far-reaching fair consideration problem. They also are not as effective at catalyzing change because they provide only indirect feedback to the offending states.
Consider the difference between the two equitable exceptions to the procedural default doctrine: first, cause and prejudice, and second, adequacy. Under a cause-and-prejudice analysis, the question is whether the petitioner is at fault for the procedural noncompliance.190 A finding of cause and prejudice to excuse a default does not send any direct message to the offending state. It merely recognizes that the petitioner has an excuse sufficient to justify bypassing an otherwise- acceptable state procedural regime. In contrast, a finding that the state’s procedures are inadequate begins a dialogue between the federal and state courts about the legitimacy of the state process.191 If the federal court tells a state directly that its procedures inadequately protect federal rights, it puts the state on notice and gives the state an incentive to fix the problem or face more federal habeas grants in the future.192
Habeas petitioners should ask federal courts to consider how state procedural systems are structured and force them to confront the broader questions about whether state prisoners are given a realistic opportunity to have their federal claims considered. And federal courts should use their equitable discretion to bypass procedural and substantive obstacles to review and send a clear message back to the offending state that prisoners from that state will continue to receive more favorable federal habeas review until the state revises its procedures to give prisoners a full and fair opportunity to present federal claims. If the state still refuses to modify its procedures, federal courts can issue a stronger, constitutionally based response by finding systemic violations of due process or the right to counsel in that state.193
Academics, law students, and practitioners can be helpful in this effort by writing about systemic problems in state postconviction regimes.194 Highlighting state-process failures in different states will identify potential arguments for habeas petitioners to raise and give them legal authority to cite in support of their arguments.
Petitioners should also try to broaden established equitable inroads by applying procedural bypasses obtained in one area of habeas to other obstacles to habeas relief.195 Consider the Supreme Court’s decisions in Martinez v. Ryan196 and Trevino v. Thaler.197 In these cases, the Supreme Court held that there is cause to excuse a state prisoner’s procedural default for failing to raise a substantial IATC claim whenever state law requires prisoners to raise IATC claims in initial state postconviction proceedings and the state fails to provide prisoners with effective counsel to help them raise the claims at that stage.198 The equitable principles
animating the Supreme Court’s holdings in Martinez and Trevino have potential implications for other habeas doctrines, like equitable tolling. If a state creates a particularly complicated set of procedural requirements about the time periods for filing state postconviction petitions and then fails to give indigent prisoners counsel to help them navigate those procedural barriers, the prisoners who get trapped in the resulting catch-22 face the same unfairness that motivated the Supreme Court to find a way around the procedural default doctrine in Martinez and Trevino.199
Martinez and Trevino also provide support to state prisoners who want to supplement IATC claims that were previously raised in state postconviction proceedings but were not adequately supported due to their pro se status or the ineffective representation of a postconviction attorney.200 If equitable concerns permit state prisoners to bypass a complete failure to raise IATC claims, they certainly should permit prisoners to supplement a claim that was improperly raised by ineffective postconviction attorneys or by pro se prisoners who, because they were never given access to an attorney, failed to support their IATC claim with enough factual evidence.201
More generally, when faced with § 2254(d)’s deferential standards of review and § 2254(e)(1)’s presumption of correctness on factual determinations, habeas litigants should try to expand the equitable inroads that some circuits have already created. Litigants should argue that the state processes were sufficiently inadequate that the state-court decision should not be considered an adjudication on the merits or that the factual findings underlying the state-court determination should be deemed unreasonable and the resulting determination not subject to deference. Once out of the constraints of § 2254(d), petitioners should rely on Williams v. Taylor202 to contend that they were not at fault for failing to develop the facts in state court and argue for federal evidentiary hearings to expand their factual records. Obtaining a federal evidentiary hearing to expand the state-court record dramatically increases the likelihood of obtaining habeas relief. According to one empirical study, obtaining an evidentiary hearing in federal court was associated with a 21%–32% increase in the likelihood of obtaining relief.203
Finally, habeas petitioners who want to use these equitable gateways to get more meaningful review should situate their claims in the language and history of the fair consideration doctrine. A prisoner whose severe mental illness prevented him from timely filing his petition should argue that the illness interfered with his chance to have his federal claims presented to any court. That prisoner should cite Professor Bator,204 Justice Jackson,205 and cases like Martinez206 and Trevino207 to demonstrate that one important overarching goal of federal habeas review is to ensure that prisoners have one full and fair chance to have their federal claims considered. If the federal habeas court views the mental illness as an external obstacle that interfered with the petitioner’s ability to obtain a full and fair review of his federal claims, it is more likely to consider bypassing procedural and substantive restrictions on federal habeas review.
These are just a few examples of ways that federal courts and litigants could rely on the equitable strands within the habeas doctrinal morass to open the federal- courthouse doors to more state prisoners’ claims. Of course, more robust federal habeas review does not necessarily mean that more state prisoners will obtain more habeas relief. Some of the underlying constitutional issues that state prisoners often raise—like IATC—contain standards that are particularly difficult for criminal defendants to meet.208 But, as it currently stands, federal courts almost never address those constitutional standards in state cases.209 They avoid doing so by procedurally foreclosing the claims or saying that the state courts’ determination was not patently unreasonable such that they need not address whether the state’s application of the underlying constitutional standard was right or wrong.210
Deferential-review standards and procedural obstacles to review effectively freeze out federal development of these underlying constitutional standards, at least as applied to state prisoners’ cases. That is problematic for a couple of reasons. First, there is reason to believe that some states are systematically underenforcing and violating criminal defendants’ rights to counsel (as well as some other rights).211 Without robust federal-court review, there is unlikely to be much of a check on rogue state behavior.212
Additionally, violations of some of these rights—like the right to effective assistance of counsel or the right to obtain material, exculpatory evidence pretrial— are typically discovered and addressed only at the postconviction stage.213 As a result, federal habeas is the only real opportunity for federal courts to discuss and develop the scope of these rights in state cases. As some scholars have noted, federal courts bring a unique and important perspective to defining the content and scope of federal rights, and we should encourage federal and state courts to engage in a dialogue about the proper scope of federal rights.214
If litigants situate their arguments in the language, history, and evolution of equitable doctrines about ensuring fair consideration, they are more likely to get robust federal habeas review while simultaneously catalyzing states to provide more realistic opportunities for state prisoners to present their federal claims in state court. Perhaps it will result in more grants of federal habeas review as well. At the very least, it will permit federal courts to be a part of shaping the content and scope of federal rights as they apply to state criminal justice systems. Obviously, working toward obtaining more robust federal-court review will not solve all the problems with the current structure of federal habeas review of state-court criminal convictions, but it is a start.
In Martinez, the Supreme Court held that procedural default under state law "will not bar a federal habeas court from hearing a substantial claim for ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective."
Moreover, Licona's reliance on Martinez v. Ryan, 566 U.S. 1 (2012), for the proposition that the state cannot raise a timeliness defense to a federal habeas petition when he was not provided an attorney for his state post-conviction proceedings is misplaced.[21] In Martinez, the Supreme Court held that procedural default under state law "will not bar a federal habeas court from hearing a substantial claim for ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Trevino v. Thaler, 569 U.S. 413, 429 (2013) (quoting Martinez, 566 U.S. at 18). Martinez does "not address or excuse an untimely petition." Rodriguez v. Davis, 2019 WL 398336, at *3 (S.D. Tex. Jan. 30, 2019) (citations omitted).
In sum, having considered the petition,[22] the record, the applicable law, the R&R,[23] and the petitioner's objection to the R&R,[24] the Court hereby approves the R&R and adopts it as its own opinion, with the noted modifications.[25] Accordingly,
We begin with Martinez. We there recognized the historic importance of federal habeas corpus proceedings as a method for preventing individuals from being 1917*1917 held in custody in violation of federal law. Martinez, 566 U.S., at ___, 132 S.Ct., at 1315-1316. See generally Preiser v. Rodriguez, 411 U.S. 475, 484-485, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). In general, if a convicted state criminal defendant can show a federal habeas court that his conviction rests upon a violation of the Federal Constitution, he may well obtain a writ of habeas corpus that requires a new trial, a new sentence, or release.
We similarly recognized the importance of federal habeas corpus principles designed to prevent federal courts from interfering with a State's application of its own firmly established, consistently followed, constitutionally proper procedural rules. Martinez, supra, at ___, 132 S.Ct., at 1315-1316. Those principles have long made clear that a conviction that rests upon a defendant's state law "procedural default" (for example, the defendant's failure to raise a claim of error at the time or in the place that state law requires), normally rests upon "an independent and adequate state ground." Coleman, 501 U.S., at 729-730, 111 S.Ct. 2546. And where a conviction rests upon such a ground, a federal habeas court normally cannot consider the defendant's federal constitutional claim. Ibid.; see Martinez, 566 U.S., at ___, 132 S.Ct., at 1315-1316.
At the same time, we pointed out that "[t]he doctrine barring procedurally defaulted claims from being heard is not without exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law." Id., at ___, 132 S.Ct., at 1316. And we turned to the issue directly before the Court: whether Martinez had shown "cause" to excuse his state procedural failing. Id., at ___, 132 S.Ct., at 1320-1321.
Martinez argued that his lawyer should have raised, but did not raise, his claim of ineffective assistance of trial counsel during state collateral review proceedings. Id., at ___, 132 S.Ct., at 1214-1315. He added that this failure, itself amounting to ineffective assistance, was the "cause" of, and ought to excuse, his procedural default. Id., at ___, 132 S.Ct., at 1314-1315. But this Court had previously held that "[n]egligence on the part of a prisoner's postconviction attorney does not qualify as `cause,'" primarily because a "principal" such as the prisoner, "bears the risk of negligent conduct on the part of his agent," the attorney. Maples v. Thomas, 565 U.S. ___, ___, 132 S.Ct. 912, 922, 181 L.Ed.2d 807 (2012) (quoting Coleman, supra, at 753-754, 111 S.Ct. 2546; emphasis added). Martinez, in effect, argued for an exception to Coleman's broad statement of the law.
We ultimately held that a "narrow exception" should "modify the unqualified statement in Coleman that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default." Martinez, 566 U.S., at ___, 132 S.Ct., at 1315. We did so for three reasons. First, the "right to the effective assistance of counsel at trial is a bedrock principle in our justice system.... Indeed, the right to counsel is the foundation for our adversary system." Id., at ___, 132 S.Ct., at 1317.
Second, ineffective assistance of counsel on direct appellate review could amount to "cause," excusing a defendant's failure to raise (and thus procedurally defaulting) a constitutional claim. Id., at ___, 132 S.Ct, at 1316-1317. But States often have good reasons for initially reviewing claims of ineffective assistance of trial counsel during state collateral proceedings rather than on direct appellate review. Id., at ___, 132 S.Ct., at 1317-1318. That is because review of such a claim normally requires a different attorney, because it 1918*1918 often "depend[s] on evidence outside the trial record," and because efforts to expand the record on direct appeal may run afoul of "[a]bbreviated deadlines," depriving the new attorney of "adequate time... to investigate the ineffective-assistance claim." Id., at ___, 132 S.Ct., at 1318.
Third, where the State consequently channels initial review of this constitutional claim to collateral proceedings, a lawyer's failure to raise an ineffective-assistance-of-trial-counsel claim during initial-review collateral proceedings, could (were Coleman read broadly) deprive a defendant of any review of that claim at all. Martinez, supra, at ___, 132 S.Ct., at 1316.
We consequently read Coleman as containing an exception, allowing a federal habeas court to find "cause," thereby excusing a defendant's procedural default, where (1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral proceeding." Martinez, supra, at ___, 132 S.Ct., at 1318-1319, 1320-1321.
This application includes six allegations. Attempting to meet the requirements of Article 11.071, section 5, applicant asserts that he has new scientific evidence in support of his claim concerning eyewitness-identification expert testimony, placing the allegation within the ambit of Article 11.073. Applicant asserts that his Brady[2] and false testimony claims meet the exceptions of Article 11.071, section 5(a). Applicant also urges this Court to reach the merits of his ineffective assistance of trial counsel claims. He asserts that previous habeas counsel was ineffective for failing to raise them, and he argues that we should overrule Ex parte Graves, 70 S.W.3d 103, 113 (Tex. Crim. App. 2002), in which we held that claims of ineffective assistance of prior habeas counsel are not cognizable in post-conviction writ proceedings. Applicant urges us to apply the rationale of Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012), and Trevino v. Thaler, 133 S. Ct. 1911, 1920-21 (2013), to state habeas proceedings. Those cases held that the rules of procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance of trial counsel if state law requires, as a practical matter, that such claims be raised in an initial-review collateral proceeding and counsel in that proceeding was ineffective for failing to raise the claim.
A review of applicant's prior writ applications demonstrates that he actually raised his current claims, or substantially similar claims relying on the same scientific and factual bases, in his previous applications. Only his Brady and false testimony allegations concerning eyewitness Whittal have not been raised in a previous application. But these claims fail to "allege sufficient specific facts that, if proven, establish a federal constitutional violation sufficiently serious as to likely require relief from his conviction or sentence." See Ex parte Campbell, 226 S.W.3d 418, 422 (Tex. Crim. App. 2007).
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