Is Federal Supervised Release Unconstitutional?

A federal judge and several other law experts argued in a recent law review journal that the way federal supervised release works is unconstitutional. The big problem, they point out, is that someone can be thrown back in prison for years without ever being charged with a crime or given the protections normally given for locking someone up, even without any evidence.

Round and round they go, a BOP perimeter vehicle drives around the federal prison in Terminal Island, California, 24 hours a day

Judge Stefan Underhill, chief judge of the U.S. District Court for the District of Connecticut, with co-author Grace E. Powell, headed up the article in the Virginia Law Review’s online journal. They provided a good case on why the current process for handling federal supervised release violations may be unconstitutional.

I think this passage from the article provides a good gist of what these experts are trying to say:

Those who drafted the Fifth and Sixth Amendments did so with the goal of making it difficult for the government to arbitrarily imprison a person. The current supervised release system offers prosecutors and courts what amounts to an end run around those carefully crafted protections, an expedient route to imprisonment that avoids the inconveniences of obtaining an indictment, affording the right to jury trial, and proving guilt beyond a reasonable doubt. In our view, it is that very expediency that violates the Constitution, harming not only those whose constitutional rights are denied, but also eroding – prosecution by prosecution – the constitutional structure put in place by the framers to protect ordinary citizens from the misuse of government power.

Read the full article here:

Federal Habeas Corpus: How to Raise a Brady Claim

Whenever a prosecutor withholds favorable evidence from the defense, it cuts to the central core of fairness in the criminal justice system. But someone raising these constitutional claims in a federal habeas petition faces some big hurdles that can bar even the best claims. Here`s how to go about having some success with these claims.

What is a Brady Claim?

The U.S. Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963), that a prosecutor must disclose favorable evidence to a defendant:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Handing over “Brady material” to the defense is a well-known term in the state and federal legal systems. When the prosecution fails to fulfill this obligation, a defendant has what`s called a Brady claim. The Court established the “essential components” of such a claim in Strickler v. Greene, 527 U.S. 263 (1999):

  • The evidence must be favorable because it`s either exculpatory or impeaching,
  • The evidence must have been suppressed by the prosecutor either willfully or inadvertently, and
  • The suppression prejudiced the defendant, in that there`s a “reasonable probability” of a different outcome with the evidence.

The prosecutor not only has the duty to hand over favorable evidence but also “to learn of any favorable evidence known to others acting on the government`s behalf,” including evidence possessed by law enforcement. This duty exists even if the defense fails to request any evidence, or the evidence is readily available in the public domain (such as court documents). Dennis v. Sec`y Penn. DOC, 834 F.3d 263 (3d Cir. 2016) (en banc).

Brady isn`t limited to just physical evidence of a crime, however. In fact, the case was about the prosecutor suppressing a codefendant`s confession to the crime that would`ve been critical to the defense. The Court has recognized several “Brady-type” violations over the decades, beginning even before the Brady case:

  • Jencks v. United States, 353 U.S. 657 (1957) (entitled to production of statements by government witnesses)
  • Napue v. Illinois, 360 U.S. 264 (1959) (false evidence known by prosecutor violates due process)
  • Giglio v. United States, 405 U.S. 150 (1972) (entitled to evidence of perjury by government witnesses)
  • Kyles v. Whitley, 514 U.S. 419 (1995) (prosecution obligated to learn about favorable evidence)
  • Wearry v. Cain, 577 U.S. 385 (2016) (plea offer for government witness is Brady material)

The Standard for Proving a Brady Claim

The key to a Brady claim is that the evidence withheld by the prosecutor must have been “material.” The Supreme Court said in Strickler that “evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” This isn`t a high bar:

The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.

The Court said that there`s “never a real Brady violation” unless the prosecutor`s failure to disclose evidence would`ve changed the outcome. Thus, a Brady claim hinges entirely on whether the evidence withheld was material. Another way to look at it is that the remedy for a Brady violation isn`t to punish the prosecutor for hiding evidence, but to ensure that the criminal proceeding was “fair.” Smith v. Fairman, 769 F.2d 386 (7th Cir. 1986).

Filing a Brady Claim

Procedural Default:

The Supreme Court established in Strickler that a Brady claim cannot be procedurally-defaulted by a petitioner`s failure to raise the claim earlier on appeal. “In the context of a Brady claim, a defendant cannot conduct the reasonable and diligent investigation mandated by [this Court] to preclude a finding of procedural default when the evidence is in the hands of the state.”

Statute of Limitations:

There`s a one-year clock to file a habeas petition in federal court. sec 2244(d)(1), sec 2255(f). A Brady claim usually restarts the one-year clock to file a habeas petition in federal court for both state and federal petitioners under the “new fact” provision. Quezada v. Scribner, 611 F.3d 1165 (9th Cir. 2010) (restarting clock under 28 U.S.C. sec 2244(d)(1)(D) for state petitioner), Whitfield v. United States, 2022 U.S. App. LEXIS 11428 (6th Cir. Apr. 27, 2022) (restarting clock under 28 U.S.C. sec 2255(f) for federal petitioner). A Brady violation may also restart the clock under the provision that allows a late filing once an “unconstitutional impediment” created by the government is removed. See, e.g., Brown v. Sec`y DOC, 750 F. App`x 915 (11th Cir. 2018).

Important points for state petitioners:

A state petitioner, filing a habeas petition in federal court under 28 U.S.C. sec 2254, must first exhaust all post-conviction avenues in state court. sec 2254(b), (c). If the state court says the Brady claim is procedurally-defaulted under state court rules, a federal court will uphold that default if it`s an “adequate and independent” state-court rule. Here`s what the court in Breezee v. Perry, 2022 U.S. App. LEXIS 4062 (6th Cir. Feb. 14, 2022), said that means:

  • The rule must apply to the claim and the petitioner failed to comply with the rule,
  • State courts must actually enforce the rule, and
  • The Rule must be “firmly established and regularly followed.”

Because a Brady claim usually involves new evidence, a federal habeas court is limited to only the record that was before the state court during all the proceedings leading up to the federal petition. Cullen v. Pinholster, 563 U.S. 170 (2011). If the new evidence wasn`t properly presented in state court, the federal court cannot consider it unless the petitioner can show “actual innocence.” sec 2254(e)(2). However, a federal habeas court can allow a petitioner to return to state court to further develop the state-court record with the new evidence. See Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2011).

Important points for federal petitioners:

A federal petitioner can file a motion to vacate his conviction or sentence, under 28 U.S.C. sec 2255, if it was imposed in “violation of the Constitution or laws of the United States.” sec 2255(a). Brady held that suppression of favorable evidence by the prosecutor is a violation of due process, which falls under the Fifth Amendment and provides grounds for a sec 2255 motion.

Be careful, though, about raising a Brady claim under the guise of an ineffective assistance of counsel (IAC) claim. Brady isn`t an IAC kind of problem, and you risk being procedurally-defaulted because your claim would then be based on defense counsel`s performance, and not on the prosecutor`s failure to disclose favorable evidence. See, e.g., Scott v. Mullin, 303 F.3d 1222 (10th Cir. 2002), but see Smith v. Warden, 780 F. App`x 208 (6th Cir. 2019) (finding IAC of appellate counsel for failing to raise a valid Brady claim).

Second or Successive Habeas Bars to Brady Claims

Even though it`s the prosecutor`s fault when it comes to a Brady claim, some courts still say that the bars to second or successive (SOS) habeas petitions apply to Brady claims raised after a habeas petition has already been denied. Under the SOS bar for both state and federal petitioners, there must be a showing of “actual innocence” with the new-found evidence to allow another habeas petition with a Brady claim. See sec 2244(b)(2)(B), sec 2255(h)(1).

This has been a hot topic in the courts and judges have voiced strong opinions about how unfair it is to subject Brady claims to the SOS habeas rules. See In re Jackson, 12 F.4th 604 (6th Cir. 2021) (concurring judge arguing SOS bar “rewards” prosecutors for hiding evidence). In fact, all three judges in Jiminez v. Sec`y DOC, 758 F. App`x 682 (11th Cir. 2018), disagreed with the required outcome in that case and urged the Supreme Court to hear the appeal. But the high court has repeatedly refused to decide this issue. See cert den. Jiminez v. Jones, 139 S. Ct. 659 (2018).

Most courts, however, have granted authorization to file a SOS habeas petition with a Brady claim, holding that such a claim meets the prima facie showing required to allow authorization. But courts have held that if the materiality prong of a Brady claim isn`t met, some courts won`t authorize another petition. United States v. Lopez, 577 F.3d 1053 (9th Cir. 2008).

IN CONCLUSION, a Brady claim is a serious constitutional violation that can and often does overturn convictions. Raising the claim in the proper way is crucial if you want to obtain habeas relief in federal court.

Federal Habeas Corpus: How to Raise an Actual Innocence Claim

Believe it or not, someone proving they`re “actually innocent” of their criminal offense is not enough to win federal habeas corpus relief. That`s because actual innocence, by itself, is not a constitutional violation to allow for federal habeas relief. Instead, it`s only the first step toward relief, and there must also be an underlying constitutional claim. Here`s how to raise a successful actual-innocence habeas claim.

What is Actual Innocence?

Typically, actual innocence arises after the discovery of new evidence that would create a “sufficient probability” that there`s reasonable doubt as to a habeas petitioner`s guilt. Schlup v. Delo, 513 U.S. 298 (1995). The Supreme Court has also made clear that actual innocence means “factual innocence,” as opposed to mere legal innocence. Bousley v. United States, 523 U.S. 614 (1998).

The different between factual and legal innocence is sometimes not very clear, but two cases provide some guidance. In Waucaush v. United States, 380 F.3d 251 (6th Cir. 2004), the court granted habeas relief where an offense that was purely intra-state, and thus not a federal offense, was a valid factual innocence claim. And in Beavers v. Saffle, 216 F.3d 918 (10th Cir. 2000), the court held that a self-defense argument claim was more of a “legal innocence” claim than factual innocence. What petitioners need to know is that courts rarely grant habeas relief for legal innocence claims.

What counts as “new evidence” is also not entirely settled. “Admittedly, courts have struggled to define what qualifies as new evidence. Some courts treat all evidence as new so long as it was not presented at trial. Other courts maintain that evidence is new only if it was unavailable at the time of trial.” Lowery v. Parris, 819 Fed. Appx. 420 (6th Cir. 2020) (collecting cases for each type of evidence).

But the new evidence isn`t evaluated in a vacuum. The Supreme Court says that “all the evidence” in a case must be considered, both old and new, when weighing an actual innocence claim. House v. Bell, 547 U.S. 518 (2006). And the habeas court isn`t “barred by the rules of admissibility that would govern at trial,” the Court has said. Schlup. However, once the actual innocence claim opens the habeas door for the underlying constitutional claim, any evidence subsequently considered by the court must be admissible under the rules of evidence. Bousley.

The Standard for Proving Actual Innocence

There are two different standards for showing actual innocence in federal habeas corpus. The standard for a first-in-time motion, or one that`s not considered “second or successive” (SOS), is whether “it is more likely than not that no reasonable juror would have convicted” the petitioner. Bousley. This was called the “probable innocence” standard in Schlup.

The actual innocence standard for SOS petitions, however, is much steeper. For a state petitioner, the law requires:

(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence, and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the [habeas] applicant guilty of the underlying offense.

28 U.S.C. sec 2244(b)(2)(B)

For a federal petitioner, the bar is just as high:

Newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilt of the offense[.]

28 U.S.C. sec 2255(h)(1)

The bar for SOS petitioners is high because a showing by “clear and convincing evidence” is more onerous than the more-likely-than-not standard for a first petition. Clear and convincing evidence is like a two-thirds majority in Congress, whereas more-likely-than-not is like a simple majority or just over 50%. And the Supreme Court noted in Schlup that Congress` use of the word “would,” instead of “could,” in determining that “no reasonable factfinder would have found the applicant guilty,” points to the “likely behavior” of the factfinder (juror or judge), where the word “could” points to the “power” of the factfinder to find someone is innocent. This was an important distinction, the Court said.

It`s also not just the offense of conviction that matter for actual innocence, but also any charges that were dropped as part of the plea deal. “In cases where the government has forgone more serious charges in the course of the plea bargaining, petitioner`s showing of actual innocence must also extend to those charges,” the Court said in Bousley. Congress has since codified this requirement in 18 U.S.C. sec 3296.

What Constitutes an Actual Innocence Habeas Claim?

As I eluded to in the beginning, actual innocence is not a valid habeas claim — at least, not by itself. There must be some underlying constitutional violation related to the actual innocence claim that would allow for federal habeas relief. As the Court said in Schlup: “Schlup`s claim of innocence does not by itself provide a basis for relief. Instead, his claim for relief depends critically on the validity of his [underlying constitutional] claims.”

But that was dicta and the Supreme Court has skated around the question of whether a “freestanding” actual-innocence claim could ever form the basis for habeas relief. One case, again in language that was not the holding of the Court, provided a clear suggestion that it would not. In Herrera v. Collins, 506 U.S. 390 (1993), the Court agreed that a petitioner`s actual innocence claim was enough to avoid a procedural bar to habeas relief for his underlying constitutional claim, but rejected any notion that it could be a valid claim itself.

Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. [That is because] this rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution, not to correct errors of fact.

The Court further reasoned that a federal habeas court deciding a factual issue, such as an actual innocence claim, and undoing a state-court decision “would be more disruptive to our federal system than to provide for federal habeas review of freestanding claims of actual innocence.” The Court`s reasoning has not gone without much criticism by scholars and advocates of those wrongfully imprisoned, however.

Instead of habeas relief, the Court said that the “traditional remedy” for actual innocence claims has been “executive clemency.”

Actual Innocence is a Gateway Through a Procedural Bar

The way an actual innocence claim works in federal habeas corpus is that it “serves as a gateway through which a petitioner may pass” to have his otherwise-barred constitutional claims heard. McQuiggin v. Perkins, 569 U.S. 383 (2013). The Court cited several habeas procedural bars that it has excused because of actual innocence, including procedural-default for failing to raise a claim earlier, the bar on SOS petitions, the bar on federal evidentiary hearings, and state procedural bars.

The Court established the standard required to avoid a procedural bar with an actual innocence claim: “A petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” The Court also added that an “unjustified delay” is a factor the habeas court must consider with an actual innocence claim, but didn`t define what that meant.

Where to File an Actual innocence Claim

As with most habeas claims, the starting point is almost always in the federal district court. See secs 2255(a), 2254(a). However, an actual innocence claim in a SOS petition must be authorized by the court of appeals, and must meet the harsher “clear and convincing” standard. secs 2244(b)(2)(B), 2255(h)(1). But don`t forget about the Supreme Court. Both state and federal petitioners may file an original petition for habeas relief in the Supreme Court. For example, in In re Davis, 557 U.S. 952 (2009), the Court agreed that the petitioner`s claim of actual innocence was compelling enough that it “transferred” the habeas petition to the district court for a hearing on the actual innocence claim based on newly discovered evidence. While the opinion was just one short paragraph, the Court reaffirmed what it said in Schlup:

Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of the criminal justice system.

IN CONCLUSION, the bar for actual innocence habeas claims is rather high. The key is to understand that an actual innocence claim is the trailblazer for the underlying constitutional claim. Put the proper emphasis on each claim and you`ll succeed with an actual innocence habeas claim in federal court.

Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. Follow his blog at and on Twitter at @zenlawguy.

Federal Habeas Corpus: How to File a Second or Successive Habeas Petition for State Prisoners

In the name of finality, federal courts are reluctant to undo criminal judgments of state courts, especially repeated attempts by prisoners under habeas corpus. When the Antiterrorism and Effective Death Penalty Act (AEDPA) came along in 1996, Congress slammed the door shut for more than one shot at habeas relief in the federal courts. Let`s go over what it takes to get “another bite at the apple” in federal court.

What is a Second or Successive Habeas Petition?

Not every habeas petition by a state prisoner under 28 U.S.C. sec 2254 after a first petition is denied will be a SOS petition. In Magwood v. Patterson, 561 U.S. 320 (2010), the Supreme Court held that a habeas petition which attacks a new judgment is not a SOS petition. This means that if you had a successful habeas petition earlier, a petition attacking the new criminal judgment would not be a SOS petition.

However, the courts are split over whether a petition attacking a new judgment can also raise issues that had existed at the time of the first petition. Some courts allow an attack on not only the new judgment, including any errors that existed at the time of the old judgment. Some don`t. See Insignares v. Sec`y Dept. of Corr., 755 F.3d 1253 (11th Cir. 2014).

If the court dismissed your first petition without prejudice, then another petition raising the same claims would not be a SOS petition. The term “without prejudice” simply means there`s nothing against you filing another petition. And certain claims might not have been “ripe” at the time when the first habeas petition was filed, and may be raised in another petition once ripe. An example of this would be a claim where a state prisoner serving a death sentence raises a claim that his mental condition has deteriorated over the years and he`s now unable to be executed.

The term “second or successive” may seem redundant but it`s actually two legal terms with different meanings in federal habeas corpus. The term “second” is another term for “abuse of the writ,” which happens when a petitioner should have raised the claim earlier but did not. This “sandbagging” was a tactic used by prisoners, prior to the AEDPA, to keep an option open for a later challenge if the first petition failed. The term “successive” refers to a petition that has the same claims as an earlier petition that was denied. Before the AEDPA, this was a common way of “appealing” denied habeas petitions. See Kulhman v. Wilson, 477 U.S. 436 (1986) (explaining these terms).

Authorization to File a SOS Habeas Petition is Jurisdictional

The AEDPA added a provision to the federal habeas statutes that any SOS petition must be authorized by the court of appeals before it`s filed in the district court:

Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate courts of appeals for an order authorizing the district court to consider the application.

28 U.S.C. sec 2244(b)(3)(A)

This provision is a jurisdictional bar preventing the district court from even hearing the petition. Pratt v. United States, 129 F.3d 54 (1st Cir. 1997) (“a district court, faced with an unapproved second or successive habeas petition, must either dismiss it or transfer it to the appropriate court of appeals”).

Use the Form Provided and Attach Your Petition

Every court of appeals uses a form for requesting permission to file a SOS habeas petition, and it`s provided by the clerk at no cost. This form is actually the “motion” that is filed to invoke the provisions under sec 2244. It`s purpose is for the clerk to screen your request, without having to dig through a long motion drafted from scratch. Some courts have local rules that require the form, and some say it`s fine to forgo the form if you follow the same format with your own motion.

Even if it`s not required, it`s a good idea to attach your proposed SOS petition for the district court to your form filed in the court of appeals. Anything you file with your application may be considered in support of authorizing another petition.

When is a SOS Habeas Petition Considered “Filed?”

Most courts consider your SOS petition “filed” when you file your motion (the application) in the court of appeals for authorization. In Gilmore v. Berghuis, 2015 U.S. App. LEXIS 4501 (6th Cir. Jan. 30, 2015), the court provided some valid reasons why attaching your proposed SOS petition to the form is a good idea. The government had argued that the application wasn`t the actual petition and so it wasn`t “filed” until the approved petition was filed in the district court. But the court disagreed, pointing to 28 U.S.C. sec 2242, saying a habeas petition is “filed” when it is addressed to a judge on the court of appeals with an explanation of why it could not have been filed in the district court. The form provided that explanation, the court said, and the attached petition was filed when the form was filed.

But in Fierro v. Cockrell, 294 F.3d 674 (5th Cir. 2002), the court held that “a motion for authorization to file a successive petition is not itself an application for a writ of habeas corpus. As a consequence, the filing of such a motion does not satisfy the one-year statute of limitations under the AEDPA” until the petition is filed in the district court. The court further noted that it`s the rule in the Fifth Circuit that the proposed SOS petition is attached to the form filed in the court of appeals. In re Epps, 127 F.3d 364 (5th Cir. 1997).

There`s a Time Limit to File a SOS Habeas Petition

Under the AEDPA, there`s a one-year time limit for any habeas petition filed by a state prisoners. sec 2244(d). This includes any SOS petition authorized by the court of appeals. But unless the petition, if authorized, would “clearly” be out of time, most courts say it`s best left up to the district court to determine the timeliness of a SOS petition. See In re McDonald, 514 F.3d 539 (6th Cir. 2008).

A SOS Habeas Petition is Screened by Both Courts

Your request to file a SOS petition in the district court gets screened by both the court of appeals and then the district court, to see if it meets the strict criteria to file such a petition. First, the court of appeals is required to dismiss any claims that were “presented in a prior application.” sec 2244(b)(1). Next, the court determines whether the motion makes a prima facie showing that it meets the SOS criteria under sec 2244(b)(2) (see below). Finally, this determination is made by a panel of three judges and “not later than 30 days.” sec 2244(b)(3)(C)-(E). However, the 30-day limit is not a hard rule and courts have almost always gone beyond that deadline. Ezell v. United States, 778 F.3d 762 (9th Cir. 2015).

Criteria for Filing a SOS Habeas Petition

There are two narrow circumstances that allow a SOS petition in the district court:

Sec 2244(b)(2)(A): This provision allows a claim that “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”

There are two parts to this criterion. First, it has to be a new constitutional decision by the Supreme Court that is substantive. A ruling that declares part of a criminal law unconstitutional and would now prohibit certain people from being punished by that law is one example of a substantive and retroactive Supreme Court ruling. See Johnson v. United States, 576 U.S. 591 (2015), for an example of such a case.

Second, the Supreme Court itself must make its decision retroactive on collateral review. While the Court hardly ever says whether its decision is retroactive, if the Court applies the decision to a collateral review case it`s considered retroactive. See Tyler v. Cain, 593 U.S. 656 (2001).

Sec 2244(b)(2)(B): This provision allows a claim where “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence, and the facts under the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”

In other words, you have to provide new evidence, that you could not have found earlier through reasonable efforts, which would convince the court by more than a 50/50 chance that you`re not guilty of the offense. A case where the prosecutor withheld crucial evidence that would have undermined the jury`s finding of guilt would be a successful claim under this provision. See In re Jackson, 12 F.4th 604 (6th Cir. 2021).

Challenging the Erroneous Transfer of a Non-SOS Habeas Petition

If you filed a habeas petition in the district court and the court transfers it to the court of appeals as am unauthorized SOS petition, you don`t appeal the district court`s transfer order. Instead, you must file in the court of appeals where the petition was transferred to a “motion to remand,” asking the court to send your petition back to the district court because it`s not a SOS petition.

Appealing the Denial of a SOS Habeas Petition

If your application to file a SOS petition was denied by the court of appeals, you may not appeal that decision nor can you file a motion for a rehearing. sec 2244(b)(3)(E). However, you can “suggest” that the court rehear its denial, since the court has the power to do this on its own. In re Johnson, 814 F.3d 1259 (11th Cir. 2016). But if the district court denies your approved SOS petition, it`s a normal appeal as in any other habeas case.

IN CONCLUSION, filing a second or successive habeas petition in federal court is not an easy task. There`s lots of steps to take and one wrong step can prevent the chance for any relief, no matter how strong your claims may be. Take time to understand these steps before filing in the courts.

Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. Follow his blog at and on Twitter at @zenlawguy.

Federal Habeas Corpus: How to Raise a Fourth Amendment Claim

The slam dunk for federal habeas claims, if there exists such a thing, would be a claim that successfully challenges the evidence in a criminal case. By tossing the illegally-obtained evidence, not only would the conviction be overturned but the prosecution wouldn`t have a case for a new trial. The prisoner walks free.

But reality is that successful Fourth Amendment claims are hard to come by. Even with a solid Fourth Amendment claim, pursuing federal habeas corpus relief is not easy. Here`s a look at some successful cases, but first some background.

The Purpose of The Fourth Amendment

The Fourth Amendment to the U.S. Constitution protects people from “unreasonable searches and seizures” by the government. The key word here is unreasonable, which the courts have stressed is the measuring stick for Fourth Amendment violations. See Davis v. United States, 564 U.S. 229 (2011). Unless a search is unreasonable, the courts usually let it stand.

The remedy for a Fourth Amendment violation is what`s called the “exclusionary rule,” a judge-made rule that allows a court to suppress evidence obtained in violation of the Fourth Amendment. However, the remedy isn`t aimed at righting the wrong against the defendant prosecuted by that evidence. Instead, the rule`s sole purpose is “to deter future Fourth Amendment violations.” Davis. In other words, the exclusionary rule is designed to punish law enforcement so they won`t do it again. Any windfall for the defendant is merely coincidental. This line of reasoning is important when it comes to Fourth Amendment habeas claims.

Bars to Fourth Amendment Challenges in Federal Habeas Corpus

The Supreme has created a formidable barrier to Fourth Amendment habeas claims:

Where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was intended at his trial.

Stone v. Powell, 428 U.S. 465 (1976)

The court reasoned that its rule in Stone was necessary because the exclusionary rule wouldn`t have much force in deterring law enforcement if it`s invoked years later in a habeas case. The Court also said that the costs of undoing a conviction through habeas corpus are “comparatively great,” when compared to a direct appeal. Withrow v. Williams, 507 U.S. 680 (1993).

Withrow also held that the rule in Stone is not a jurisdictional bar to habeas relief, and the prosecution could waive or forfeit the “defense.” And the Court emphasized that Stone applies to only Fourth Amendment claims, and refused to extend the bar to other constitutional claims.

Since over 95% of convictions in this country are by way of a guilty plea, another bar to a Fourth Amendment challenge is the guilty plea itself. The Supreme Court discussed the reason for this bar in Haring v. Prosise, 462 U.S. 306 (1983):

When a defendant is convicted pursuant to his guilty plea rather than a trial, the validity of that conviction cannot be affected by an alleged Fourth Amendment violation because the conviction does not rest in any way on evidence that may have been improperly seized. (emphasis added)

Exceptions to Bars on Fourth Amendment Habeas Challenges

Fortunately, there are some exceptions to the rules barring Fourth Amendment habeas challenges. One way around the bar in Stone for Fourth Amendment claims is to reframe the claim as an ineffective assistance of counsel (IAC) claim, arguing that counsel failed to challenge the evidence. In Kimmelman v. Morrison, 477 U.S. 365 (1986), the Supreme Court held that an IAC claim regarding counsel`s failure to challenge the evidence was really a Sixth Amendment right-to-counsel claim, and not a “direct” Fourth Amendment claim barred by Stone. Thus, the Court provided a work-around for Fourth Amendment habeas claims using the well-worn path for IAC claims.

Another exception to the Stone Fourth Amendment habeas bar is showing that the state court failed to provide a “full and fair opportunity” to challenge the Fourth Amendment claim, or that there was no opportunity to do so. The Seventh Circuit provided some guidance on what a full and fair opportunity to litigate a Fourth Amendment claim would look like:

A petitioner has had the benefit of such an opportunity [for full and fair litigation of a Fourth Amendment claims] so long as (1) he can clearly apprise the state court of his Fourth Amendment claim along with the factual basis for that claim, (2) the state court carefully and thoroughly analyzed the facts, and (3) the court applied the proper constitutional case law to those facts.

Miranda v. Leibach, 394 F.3d 984 (7th Cir. 2005)

However, the court said the test is whether there was an “adequate opportunity to pursue the claim in the state court system,” not whether the challenge was successful or the court`s decision was wrong.

An example of no full and fair opportunity to litigate a Fourth Amendment claim happens when the state court uses the wrong standard of review for the claim. Herrera v. LeMaster, 301 F.3d 1192 (10th Cir. 2002) (en banc). Another would be when the state court has completely ignored the claim. Agee v. White, 809 F.2d 1487 (11th Cir. 1987). There are lots of ways a state court can prevent a full and fair opportunity to litigate a Fourth Amendment claim.

A work-around also exists for raising Fourth Amendment habeas claims after a guilty plea, and it`s like the one in Kimmelman: You must challenge the knowing and voluntary nature of the guilty plea and show that counsel`s advice to plead guilty, despite the Fourth Amendment violation, affected your decision to plead guilty. Tollett v. Henderson, 411 U.S. 258 (1973).

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in [Supreme Court cases dealing with IAC claims].

While Kimmelman allowed that counsel`s failure to challenge the Fourth Amendment violation created a ground for habeas relief, Tollett also requires a showing that counsel`s advice to plead guilty was wrong because of the Fourth Amendment violation. Both claims come back to a Fourth Amendment violation, and both point the finger at counsel — but not directly at the Fourth Amendment violation.

Successfully Challenging Fourth Amendment Violations for State Petitioners

Here`s an example of a successful Fourth Amendment habeas claim by a state petitioner. In Bostick v. Peters, 3 F.3d 1023 (7th Cir. 1993), the petitioner filed for federal habeas relief, under 28 U.S.C. sec 2254, claiming that the drug evidence was obtained in violation of the Fourth Amendment. While the district court ruled that the claim was barred by Stone, the court of appeals found that the state court had prevented a full and fair opportunity to litigate the claim in state court and reversed the district court.

The court established a two-step process for determining whether the state court provides a full and fair opportunity to a petitioner: “[1] whether the state procedural mechanism, in the abstract, presents the opportunity to raise a Fourth Amendment claim, and [2] whether the claim in question was in fact frustrated by a failure of that mechanism.”

The state court had a rule that had prevented the petition from developing his Fourth Amendment claim, and this “unanticipated and unforeseeable application of a rule on appeal prevented the state courts from properly considering the merits of the petitioner`s claim,” the court concluded. “Indeed, if Fourth Amendment claims fall on deaf ears in the state courts and defendants are then precluded from raising their claims on collateral review, the efficacy of the exclusionary rule in deterring future Fourth Amendment violations would be undermined.”

Successfully Challenging Fourth Amendment Violations for Federal Petitioners

For federal petitioners, Fourth Amendment habeas claims are even more difficult, since any claim not raised on direct appeal cannot be raised in a motion under 28 U.S.C. sec 2255, unless “cause and prejudice” are shown. Massaro v. United States, 538 U.S. 500 (2003). But Massaro also held that an IAC claim can provide cause and prejudice to avoid this procedural default.

In United States v. Cavitt, 550 F.3d 430 (5th Cir. 2008), a federal petitioner filing for relief under 28 U.S.C. sec 2255 claimed that his guilty plea wasn`t valid due to counsel`s failure to challenge the drug evidence obtained during an illegal search. While the district court denied relief, stating that Stone barred his Fourth Amendment argument, the court of appeals vacated that decision and found that the IAC claim bypassed the Stone bar. On remand, the district court found that counsel was indeed ineffective and allowed the petitioner to withdraw his guilty plea. See Cavitt v. United States, 2009 U.S. Dist. LEXIS 144833 (E.D. Tex. May 29, 2009).

IN CONCLUSION, Fourth Amendment claims in federal habeas corpus are no doubt complex. There`s lots of obstacles but there`s also ways around those obstacles. Plan your route accordingly and you`ll win federal habeas relief on your Fourth Amendment claim.

Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. Follow his blog at and on Twitter at @zenlawguy.

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