You`ve got one good shot at federal habeas corpus relief, so you better make it count. There aren`t any do-overs in the world of federal habeas corpus, and there are lots of procedural obstacles that can kill your attempt at relief before you even get going. It`s tough. Let`s go over some stuff you need to know about filing for federal habeas relief.
The Rules Matter
There are lots of rules in federal habeas corpus. Not only do you have the Rules Governing Section 2254 Proceedings (and Section 2255 Proceedings), but there`s also a slew of rules under the Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure that you have to follow. The easiest way to digest all of this is to know that the habeas rules apply first, and then the civil and criminal rules apply. If the rules conflict, then the habeas rules always trump the other rules.
While pro se filers (those without a lawyer) are given lots of leeway by the courts, judges still expect them to follow the rules. “Liberal construction” of pro se pleadings means the court must construe your claims so that you don`t inadvertently sabotage your good claims because of bad writing. Some courts are more forgiving than others, especially if you at least make an effort to follow the rules.
But be aware that some rules are hard and fast, like filing for an appeal under Federal Rule of Appellate Procedure 4(a). The court cannot make any exceptions if you are late with your notice of appeal in your habeas case.
What You Say in Your Filings Matters
Whether you`re using a lawyer or filing on your own, everything you put in your habeas petition under 28 U.S.C. sec 2254 (state prisoners) or motion under 28 U.S.C. sec 2255 (federal prisoners) is done so under the penalty of perjury. It`s the same as if you stood before the court and raised your right hand, swearing to tell the truth. Don`t take this lightly.
Prisoners have been convicted of perjury for lying in their habeas filings, getting more time added to the sentences they were already serving. The court affirmed such a conviction in United States v. Roberts, 308 F.3d 1147 (11th Cir. 2002), where the district court convicted a movant of perjury under 18 U.S.C. sec 1521 for lying in his sec 2255 motion, and imposed a sentence of 15 months to be served after the movant was finished serving the current sentence he was challenging.
At the very least, a false statement in your habeas filings will likely result in the court dismissing your case and ending your only good shot at post-conviction relief.
The Judgment You`re Attacking Matters
Sometimes a person will wind up with more than one judgment, with the sentences running concurrently (together). You must file a separate habeas petition or motion for each judgment you`re challenging, even if the judgments are from the same court. However, if you had two criminal cases that were consolidated for sentencing with only one judgment for both, you only need to file one motion or petition to challenge both of the sentences. It all depends on how many judgments were entered, not the the numbers of cases you have.
The Prison Mailbox Rule
If filing pro se, your petition or motion is considered “filed” when you hand it to prison officials for mailing to the court. The Supreme Court created this so-called “mailbox rule” because prisoners have no control over when and if prison staff will deliver the mail to the post office. So the Court said that once it`s handed to staff it`s as good as filed, no matter when it arrives at the court.
To invoke the mailbox rule, you must include a signed statement with your filing, under the penalty or perjury, that you used the prison`s legal mail system (if available) or regular mail system and the date you did so. See Houston v. Lack, 487 U.S. 266 (1988) (explaining the mailbox rule).
There is an application to file a habeas petition under sec 2254 or motion under sec 2255. Some courts have their own application, but they all generally follow the standard application found in the rules. your best option, if you have time, if to contact the court clerk and request the application your court uses. There`s no charge for the application.
The application you file is technically your petition or motion. This is the filing that gets everything started in your habeas case. Most courts do require the application, even if you file a separate memorandum (see below), but some courts will allow you to skip the application if your motion “substantially” follows the information required by the application.
While the application isn`t exactly designed to make filing your claims easier, using it will help to avoid any delays in hearing your claims, should you miss something required in the application. If you do mess up the application and the court needs more information, the clerk is required to enter your application as “filed” and then give you a chance to fix the errors. This way you`ll still be on time with your filing, if you`re cutting it close to the one-year deadline.
Since the application form is designed to aid the court in screening your petition for relief, and not for your benefit, it`s a very good idea to file a “memorandum in support” of your petition or motion.
The Memorandum in Support
You should file a memorandum in support of your application providing facts and details to support your claim(s). The application doesn`t require you to put all this information in there. Indeed, it doesn`t give you the room to put all that information in there. Simply give a concise overview of your claim(s) and refer to your memorandum for the rest. That`s common habeas practice. Hardly anyone relies on the application alone.
The court will be focusing on your memorandum to decide whether your claims have merit. So don`t spend too much time explaining anything in the application. In fact, if you include a bunch of details in the application and then rely on your memorandum to explain your claims, you risk the court missing any crucial details you put in the application but forgot to mention in the memorandum. In short, put everything in your memorandum and anything you put in your application should be repeated in your memorandum.
Your memorandum should be fact-heavy. The Supreme Court said in Mayle v. Felix, 545 U.S. 644 (2005), that it`s “the relationship of the facts to the claim asserted that is important” with habeas claims. The standard of review for habeas claims is that if the record doesn`t “conclusively show” your claims require dismissal, the court shall grant an evidentiary hearing on your claims.
Your Claims Matter
Without going into all the different claims cognizable on habeas review (and there`s a ton of them), just know that the Court in Mayle said you must show “a real possibility of constitutional error” in order to have a valid habeas claim. This is done, once again, by providing sufficient facts about your claims. Providing the court with a bunch of caselaw doesn`t amount to a claim for habeas purposes. Yes, you will see civil cases out there that simply provide caselaw that would support a claim for relief, but those are different from habeas cases. The courts require more from habeas petitioners.
An example of a common habeas claim that gets granted often is ineffective assistance of counsel (IAC) for a lawyer`s failure to file an appeal when requested. The application might allege generally that counsel was ineffective for not filing the appeal, and then the memorandum would provide the details about how you tried to contact your lawyer to file an appeal and he ignored you. Your family can even provide affidavits to attach to your memorandum of how they attempted to contact your lawyer and he ignored them, too.
Page Limits Matter
There are page limits to your memorandum, and they differ court by court. Some courts strictly adhere to these limits, while others are more forgiving. If you go over the limit, the court might reject your entire filing or only go as far as the page limit allows. So if you have claims on pages 24 to 37 and the limit is 25 pages, those claims will be ignored. Yes the courts are that strict sometimes. I`ve seen it happen more than once.
The average page limit is 25 to 30 pages for the memorandum and 10 for a reply to the government`s response. See, e.g., E.D.N.C. L.R. 7.2(f)(1)(A). You can even attach supplemental pages to your application, instead of using a memorandum, if you want. This is a good option if your claim isn`t fact-intensive and rather simple. Those claims are rare but they do happen. Because the courts are used to seeing memorandums in support of habeas petitions, that might be the best option to make sure nothing is overlooked by the court.
You could have the greatest claim in the world but if you don`t understand the rules for getting it properly before the court, it`s worthless. Take the time to understand the rules surrounding your habeas filings to ensure you get the relief you deserve.
I go over all the gory details of filing for habeas relief in the federal courts in my books: Federal Habeas Corpus for State Prisoners: An Insider`s Guide and Habeas Corpus for Federal Prisoners: An Insider`s Guide.
Note: This information was adapted from my column published in the May 2021 issue of Criminal Legal News Magazine.