NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 6: Capital Punishment Handbook: Habeas Corpus Proceedings

        6.3 Section 2254 Review: Habeas Corpus Review Of State Convictions
               6.3.1  Standard For Granting Petitions
                         6.3.1.1 Retroactivity Of 2254(d): General Principles
               6.3.2  Restricted Claims
                         6.3.2.1  No Ineffective Assistance Of Habeas Counsel Claims: 
                                      General Principles
                         6.3.2.2  No State Law Claims: General Principles
                         6.3.2.3  No Fourth Amendment Claims: General Principles
                                      6.3.2.3.1  Limitations On Stone v. Powell: Fundamental 
                                                      Rights: General Principles
                         6.3.2.4  No Claims Of Error In State Post-Conviction Proceedings: 
                                                      General Principles
                         6.3.2.5  No “Freestanding” Actual Innocence Claims: General Principles
               6.3.3  Exhaustion Of State Remedies
                         6.3.3.1  “Full And Fair Presentation” To State Court: General Principles
                         6.3.3.2  New Evidence In Federal Court: General Principles
                         6.3.3.3  State Postcard Denials: General Principles
                         6.3.3.4  Mixed Petitions: General Principles
                         6.3.3.5  Holding Petition In Abeyance Pending Exhaustion: 
                                      General Principles
                         6.3.3.6  Patently Frivolous Claims: General Principles
                         6.3.3.7  Waiver Of Exhaustion By The State: General Principles
                         6.3.3.8  Exceptions To Exhaustion Requirement: No State Remedies, 
                                      Futility, Delay And Unavailability Of State Procedure
               6.3.4  Presumption Of Correctness of State Court Fact Findings
                         6.3.4.1  Findings Of Fact: General Principles
                         6.3.4.2  Questions Of Law: General Principles
                         6.3.4.3  Mixed Questions Of Law And Fact: General Principles
                                      6.3.4.3.1  District Court’s Duty To Review State Record
                         6.3.4.4  Classification of Issues
                                      6.3.4.4.1  Generally
                                      6.3.4.4.2  Jury Determinations: General Principles
                                      6.3.4.4.3  Pre-Trial Publicity: General Principles
                                      6.3.4.4.4  Competence Of Defendant: General Principles
                                      6.3.4.4.5  Right to Counsel: Ineffective Assistance, Conflict 
                                                      Of Interest, And Request For Counsel
                                      6.3.4.4.6  Witness Issues: General Principles
                                      6.3.4.4.7  Voluntariness Of Confessions, Pleas and Waivers
                                      6.3.4.4.8  Preclusive Effect Of Verdict: General Principles
                                      6.3.4.4.9  Harmless Error: General Principles
                                      6.3.4.4.10 Custody For Miranda Purposes: General Principles
                                      6.3.4.4.11 Pre-Trial Identification Procedures: General Principles
                                      6.3.4.4.12 Existence Of Mitigating Circumstances: General Principles
                                      6.3.4.4.13 Shackling Defendant: General Principles
                                      6.3.4.4.14 Plea Agreements: General Principles
              6.3.5  Review Where State Court Did Not Reach Merits of Properly Raised Issue

Federal court jurisdiction to consider habeas corpus petitions filed by state prisoners derives from 28 USC 2254, which provides that a federal court can entertain a state prisoner’s habeas petition if the petitioner alleges his or her custody is in violation of the Constitution or laws or treaties of the United States. Case law has played a large part in defining the scope of this power. To assert a claim for federal habeas relief, a petitioner must raise the correct type of claim and must have exhausted state remedies on that claim. In 1996, the AEDPA substantially modified federal habeas corpus law. See infra § 6.3.1.

28 USC 2254 (2000) providing for habeas relief for state court convictions).

In 1996, the AEDPA created § 2254(d), which sets forth the current standard for granting a federal habeas relief from a state conviction when the claim was adjudicated on the merits in state court. Prior to the AEDPA, federal courts reviewed state decisions de novo, as articulated in Wright v. West, 505 U.S. 277 (1992), and Thompson v. Keohane, 516 U.S. 99 (1995). Section 2254(d) provides: 

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

The Supreme Court’s opinion in Williams (Terry) v. Taylor, 529 U.S. 362 (2000), clarified the meaning of “contrary to” and “unreasonable application of” clearly established Federal law, as determined by the Supreme Court in § 2254(d). Although Justice Stevens viewed the new law as a codification of Teague, the Court did not adopt his opinion. Justice O’Connor, writing for the Court, rejected the Fourth Circuit’s interpretation of § 2254(d) and held that the federal court must objectively determine whether the state court’s decision of federal law was erroneous or incorrect.  The Supreme Court reiterated the views expressed in Williams in Bell v. Cone, 535 U.S. 685 (2002), and held that (1) under the “contrary to” clause of § 2254(d)(1), a federal habeas court may issue the writ if the state court applies a rule different from the governing law set forth in Supreme Court cases or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts; and (2) under the “unreasonable application” clause of § 2254(d)(1), the court may grant relief if the state court correctly identifies the governing legal principle from Supreme Court decisions but unreasonably applies it to the facts of the case. The Court held that under the latter clause the application must be objectively unreasonable, which is different from incorrect. Id. at 1850.

In a Ninth Circuit opinion subsequent to Williams, the court in Tran v. Lindsey [also referred to as Van Tran v. Lindsey], 212 F.3d 1143 (9th Cir.), cert. denied, 531 U.S. 944 (2000), adopted a “clear error” test to determine whether a state court decision involved an unreasonable application of federal law. More recently the Supreme Court held in Lockyer v. Andrade, 538 U.S. 63 (2003), that “objectively unreasonable” and “clear error” are not the same standards, and that the “gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.” Id. at 75.

Supreme Court:

Rice v. Collins, 126 S. Ct. 969 (2006) (holding that on direct appeal in federal court, the credibility findings a trial court makes in a Batson inquiry are reviewed for clear error, (2) under AEDPA, however, a federal habeas court must find the state-court conclusion State court proceeding,” and thus (3) a federal habeas court can only grant a habeas petition if it was unreasonable to credit a prosecutor’s race-neutral explanations for the Batson challenge; also holding that here, where prosecutor struck a young African-American woman and offered as race-neutral explanations for the strike that (1) the juror rolled her eyes in response to a question from the court; (2) that she was young a might be too tolerant of a drug crime; and (3) she was single and lacked ties to the community, federal court improperly substituted its evaluation of the record for that of the state trial court, which, under §2254(d)(2), did not make an unreasonable determination of the facts in light of the evidence presented).

Evans v. Chavis, 126 S. Ct. 846 (2006) (where the Ninth Circuit had treated a decision of the California Supreme Court in denying a state habeas petition without comment or citation as on the merits, the Supreme Court held that if the appearance of the words “on the merits” in a order by the state supreme court denying a petition does not automatically warrant a holding that a filing was timely, the absence of those words could not automatically warrant such a holding; concurring in the judgment, Stevens, J. wrote that the Court should endorse the Ninth Circuit presumption that a ruling on the merits, simpliciter, means that the state court has concluded that a habeas petition was timely).

Mitchell v. Esparza, 540 U.S. 12 (2003) (holding that Sixth Circuit Court of Appeals exceeded limits imposed on federal habeas review under 28 USC 2254(d)(1) in holding that harmless-error review was not available for Eighth Amendment claim that Ohio violated its own sentencing procedures where the indictment charged the petitioner with aggravated murder in the course of committing aggravated robbery, but did not charge him as a “principal offender”; state court’s conclusion, in rejecting an ineffective assistance of counsel claim, that defense counsel’s conduct was harmless in failing to insist on literal compliance with death penalty statute requirement that death penalty could only be imposed for aggravated murder during commission of aggravatedrobbery if defendant was named as principal offender in indictment, was not “contrary to” or an "unreasonable application" of clearly established federal law).

Lockyer v. Andrade, 538 U.S. 63 (2003) (rejecting clear error standard of Tran v. Lindsey [also referred to as Van Tran v. Lindsey]; holding that “objectively unreasonable” and “clear error” are not the same standards, and that the gloss of clear error “fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness”). 

Early v. Packer, 537 U.S. 3 (2003) (per curiam) (recognizing that state-court decision is contrary to clearly established Supreme Court precedents if it “applies a rule that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent” but that avoiding this pitfall does not require citation of Supreme Court cases nor does it “even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them”).

Bell v. Cone, 535 U.S. 685 (2002) (holding that (1) under “contrary to” clause of § 2254(d)(1) federal habeas court may issue writ if the state court applies a rule different from governing law set forth in Supreme Court cases or if it decides case differently than Supreme Court has done on set of materially indistinguishable facts; and (2) under “unreasonable application” clause of § 2254(d)(1) court may grant relief if the state court correctly identifies governing legal principle from Supreme Court decisions but unreasonably applies it to the facts of case; holding that state court correctly identified Strickland principles as governing claim of ineffective assistance of counsel and that there was no merit to contention that state court’s adjudication was contrary to court’s clearly established law).

Penry v. Johnson, 532 U.S. 782 (2001) (finding the clearly established federal law asserted by petitioner (Estelle v. Smith, § 4.2) distinguishable and therefore affirming the denial of § 2254(d)(1) relief on claim; however, finding state appellate court’s conclusion–that the substance of the jury instructions given at petitioner’s second sentencing trial satisfied the Court’s mandate in Penry I–was objectively unreasonable.

But see Thomas, J., dissent, arguing state court’s determination of jury instruction conforms to Penry I and is therefore not objectively unreasonable).

Williams (Terry) v. Taylor, 529 U.S. 362 (2000) (holding that trial counsel’s Strickland violation was both “contrary to” and an “unreasonable application of” federal law under § 2254(d)(1); holding that § 2254(d)(1)’s “contrary to ” and “unreasonable application of ” clauses have independent meaning; holding “unreasonable” standard is an objective inquiry and requires more than a federal judge’s determination that the state court application of federal law was erroneous or incorrect; defining “contrary to,” in the context of a state court’s determination of applicable law, as law being contradictory, diametrically different, opposite in character or nature, mutually opposed to clearly established federal law, or, when a state court arrives at a result different from Supreme Court precedent with a materially indistinguishable set of facts). 

Angelone v. Bennett, 519 U.S. 959 (1996) (Stevens, J., dissenting) (stating that because congressional reform, limiting federal court authority to entertain successive petitions, increases the importance of first petition review, federal courts should give greater, rather than less, scrutiny to death row inmates’ first petitions). 

Thompson v. Keohane, 516 U.S. 99 (1995) (holding, under pre-AEDPA law, that state legal, as opposed to factual, findings are reviewed de novo).

Wright v. West, 505 U.S. 277, 291 (1992) (stating no correctness presumption for state legal, as opposed to factual, decisions; decisions subject to de novo review under pre-AEDPA law).

Earp v. Ornoski, 431 F.3d 1158 (9th Cir. 2005) (citing Lockyer v. Andrade, in holding that a federal court may not independently review the merits of a state court decision without first applying AEDPA standards, and therefore a federal court may not grant an evidentiary hearing without first determining whether the state court’s decision was an unreasonable determination of the facts).

Blair v. Woodford, 319 F.3d 1087 (9th Cir. 2003) (ordering submission withdrawn in habeas appeal pending issuance of mandate in petitioner’s direct appeal to California Supreme Court where petitioner sought relief on ground that state court’s failure to process his appeal for 13 years constituted denial of his due process rights; holding that remedy of finding due process violation and granting unconditional writ of habeas corpus is not appropriate in absence of showing that delay adversely affected petitioner’s chances to obtain reversal or vacation of his conviction or his sentence, and he could not now make such a showing because his direct appeal had only recently commenced with the filing of his opening brief).

Fisher v. Roe, 263 F.3d 906 (9th Cir. 2001) (holding that where jury readback took place without knowledge and participation of defendants or their counsel, and defendants’ absence could have undermined fairness of proceedings, under AEDPA state court’s denial of habeas petition was unreasonable application of clearly established federal constitutional law; holding that defendants’ absence from readback was properly characterized as trial error, rather than structural error, and was therefore subject to constitutional harmless error review and could not be deemed harmless under factual circumstances; distinguishing La Crosse v. Kernan, below, on basis that in LaCrosse, attorney not only was aware of readback procedure proposed by judge, but attorney was consulted by court and agreed to proposed procedure and stipulated that his client need not be present).

Lockhart v. Terhune, 250 F.3d 1223 (2001) (granting relief pursuant to 28 USC 2254(d), finding actual conflict of interest and finding state court’s application of state law requiring finding of prejudice clearly erroneous; finding petitioner not made aware of the specific ramifications of his waiver and state court’s conclusion to the contrary was unreasonable).

La Crosse v. Kernan, 244 F.3d 702 (9th Cir. 2001) (applying § 2254(d) and denying relief because trial court’s ruling–not allowing petitioner to be present at a jury readback–not contrary to Supreme Court law (since Supreme Court has never ruled on issue), notwithstanding circuit law holding that a defendant does have a Sixth Amendment right to be present at readbacks).

Downs v. Hoyt, 232 F.3d 1031 (9th Cir. 2000) (failing to apply Delgado’s nondeferential test where post conviction appellate court issued no opinion but post conviction trial court issued letter opinion and findings of fact; analyzing district court’s denial of relief under Williams v. Taylor), cert. denied, 532 U.S. 999 (2001).

Delgado v. Lewis, 223 F.3d 976 (9th Cir. 2000) (holding that, where the state court does not furnish a basis for its reasoning in a decision, § 2254(d) requires independent federal review to determine whether the state’s decision was contrary to, or involved an unreasonable application of, clearly established federal law; stating that while independent review is not the equivalent of de novo review, review is undertaken through the “objectively reasonable lens ground by Williams; applying Tran v. Lindsey [also referred to as Van Tran v. Lindsey] and holding that independent review must reveal clear error).

Tran v. Lindsey [also referred to as Van Tran v. Lindsey], 212 F.3d 1143 (9th Cir.) (holding that federal court must first determine whether state court erred before determining whether the error involved an unreasonable application of controlling law within the scope of § 2254(d); holding that federal court must reverse a state court’s decision involving an unreasonable application of federal law when independent review results in conclusion that clear error occurred), cert. denied, 531 U.S. 944 (2000), disapproved in Lockyer v. Andrade, 538 U.S. 63, above.

Duhaime v. Ducharme, 200 F.3d 597 (9th Cir. 2000) (declining to apply Ninth Circuit case law–substantially extending U.S. Supreme Court precedent–to post-AEDPA habeas claim).

Furman v. Wood, 190 F.3d 1002 (9th Cir. 1999) (noting that the Ninth Circuit has not to date defined the term “unreasonable application” nor explained the difference between “contrary to” and “unreasonable application of” as used in § 2254(d); stating that the terms reflect the same general requirement that federal courts not disturb state court determinations unless the state has failed to follow Supreme Court law).

Wilson v. Henry, 185 F.3d 986 (9th Cir. 1999) (noting that the Ninth Circuit has not yet clearly delineated how to conduct a § 2254(d) review).

Houston v. Roe, 177 F.3d 901 (9th Cir. 1999) (determining that the Supreme Court need not have addressed a factually identical case; § 2254(d) requires only that the Supreme Court clearly determine the law).

Davis v. Kramer, 167 F.3d 494 (9th Cir. 1999) (holding that the AEDPA’s standard of review provisions “reflect the . . . general requirement that federal courts not disturb state court determinations unless the state court has failed to follow the law as explicated by the Supreme Court”), vacated and remanded on other grounds, 528 U.S. 1133 (2000).

Canales v. Roe, 151 F.3d 1226 (9th Cir. 1998) (holding that, even assuming there was “clearly established” rule of presumed prejudice from untimely filing of notice of appeal by counsel, the facts would not support application of such a rule and relief was thus precluded under the AEDPA).

Jeffries v. Wood, 114 F.3d 1484 (9th Cir.) (finding state supreme court’s decision was based on an unreasonable determination of the facts in light of the evidence presented and its application of the harmless error standard was contrary to “clearly established federal law”; stating that a factual determination is unreasonable if it would not be debatable among reasonable jurists, and that as to more debatable factual determinations, the care exercised by the state court may be important), cert. denied, 522 U.S. 1008 (1997).

Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997) (holding that when a state court has made no findings of fact, the district court’s duty to ascertain the sufficiency of the evidence by thorough review of the complete state record is unaffected by the AEDPA).

Moore v. Calderon, 108 F.3d 261 (9th Cir.) (stating that § 2254(d) does not allow reversal of state decision merely because of conflict with circuit law but rather only when it is “contrary to” or an “unreasonable application of” a Supreme Court decision; noting, in dicta, that mixed fact/law questions fall under the “unreasonable application” prong of § 2254(d); state’s denial of defendant’s timely request to represent himself was error regardless of AEDPA’s application because denial violated clearly established law as determined by the Supreme Court), cert. denied, 521 U.S. 1111 (1997).

Baylor v. Estelle, 94 F.3d 1321 (9th Cir. 1996) (concluding that § 2254(d) did not affect the court’s analysis because the relevant law was clearly established by the Supreme Court, whether or not the AEDPA applied).

District Courts in Ninth Circuit:

Shine v. Cambra, No. C 97-1433, 1999 WL 252475 (N.D. Cal. Apr. 26, 1999) (unpublished) (finding state court’s decisions contrary to, or an unreasonable application of, Supreme Court precedent in so far as trial court failed to allow defense counsel to question witness about defendant’s statements and failed to strike witness’s direct testimony once the trial court decided to uphold witness’ assertion of privilege). 

Contreras v. Rice, 5 F. Supp. 2d (C.D. Cal. 1998) (noting the state supreme court’s failure to cite authority or provide written opinion, applying the Supreme Court’s “look through” approach discussed in Ylst and looking to state appellate court’s opinion to assess the state supreme court’s decision and its relation to the application of § 2254(d) to petitioner’s case).

Sampson v. Roe, No. C 97-1343, 1998 WL 209159 (N.D. Cal. April 28, 1998)(unpublished) (noting that the Ninth Circuit has not fully defined “unreasonable application” and concluding that the state court’s decision cannot be considered so clearly incorrect as to merit relief), aff’d, No. 98-16289, 1999 WL 613462 (9th Cir. 1999).

Perez v. Marshall, 946 F. Supp. 1521 (S.D. Cal. 1996) (adopting magistrate’s report and recommendation denying constitutional challenges to § 2254(d) based on Marbury judicial power, due process, and Article 1 suspension of writ; finding that § 2254(d) changes federal habeas review standard by eliminating de novo review of legal and mixed legal-factual claims and replacing it with deferential standard; holding that “clearly established federal law” is law articulated by Supreme Court), aff’d, 121 F.3d 716 (9th Cir. 1997).

Matteo v. Superintendent, SCI Albion, 171 F.3d 877 (3d Cir. 1999) (en banc) (holding that § 2254(d) mandates a two-part inquiry whereby a federal court first inquires whether the state decision was “contrary to” clearly established U.S. Supreme Court law and, if not, then whether the state judgment rests upon an objectively unreasonable application of U.S. Supreme Court law; finding “contrary to” to mean that Supreme Court precedent compelled an outcome contrary to that reached by the state court; applying § 2254(d) and affirming dismissal), cert. denied sub nom. Matteo v. Brennan, 528 U.S. 824 (1999).

Fisher v. Texas, 169 F.3d 295 (5th Cir. 1999) (finding that state court’s decision was not “on the merits” for purposes of the AEDPA and, thus, declining to apply presumption of correctness).

Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998) (stating that part of reasonableness review under AEDPA “requires federal courts to take into account the state’s care in considering the subject”).

Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir.) (holding that circuit court could not review a state court’s application of “clearly established law” when the court does not give a rationale for its adverse determination; in such a case the federal court must “independently ascertain whether the record reveals a violation”), cert. denied, 525 U.S. 1037 (1998).

Liegakos v. Cooke, 106 F.3d 1381 (7th Cir. 1997) (applying new § 2254(d) and concluding that Supreme Court precedent that state transactional immunity statutes violate the compulsory process clause of Sixth Amendment is not “clearly established,” so no § 2254(d) violation).

Lockhart v. Johnson, 104 F.3d 54 (5th Cir.) (applying § 2254(d) and finding no violation of “clearly established” Supreme Court precedent nor unreasonable application of law in state’s use of physical restraints on disruptive defendant and state’s conducting of voir dire outside of defendant’s presence after defendant voluntarily waived right to be present), cert. denied, 525 U.S. 1123 (1997).

Berryman v. Morton, 100 F.3d 1089 (3d Cir. 1996) (analyzing § 2254(d) and concluding that state court’s determination regarding trial counsel’s strategy was “clearly an unreasonable application of Strickland to the facts,” despite assumption that § 2254(d)(2) establishes a more deferential standard to federal review of state factual determinations).

McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996) (pre-AEDPA holding that when a federal court does not defer to state findings, it must provide explicit written justification, setting forth which of the seven section 2254(d) factors exist, or explaining why the state’s findings are unsupported by the record pursuant to the eighth factor).

Hogan v. Hanks, 97 F.3d 189 (7th Cir. 1996) (stating that “[b]oth Teague and amended § 2254(d)(1) are designed to ensure that state judgements are not affected by legal rules established or materially expanded after the conviction has become final”).

Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (stating that § 2254(d) is “retrenchment from former practice, which allowed federal appellate courts to rely on their own jurisprudence in addition to that of the Supreme Court”; extending the Teague principle by limiting the sources on which a federal court may rely in addressing the application for a writ; not limiting, however, the federal courts’ independent interpretive authority regarding federal questions; a more deferential standard of review of a state court’s application of “clearly established law” may be warranted when the state provides a “thoughtfully reasoned decision”), rev’d on other grounds, 521 U.S. 320 (1997), limited by Williams (Terry) v. Taylor, 529 U.S. 362 (2000).

McCain v. Gramley, 96 F.3d 288 (7th Cir. 1996) (concluding that state court’s determination regarding Batson claim was not contrary to, or an unreasonable application of, clearly established federal law nor was it based on an unreasonable factual determination in light of the evidence presented).

Evans v. McBride, 94 F.3d 1062 (7th Cir. 1996) (distinguishing between circuit “extensions of” as opposed to “glosses on” Supreme Court law in applying § 2254(d)’s “contrary to clearly established federal law as determined by the Supreme Court” standard).

28 USC 2254(d) (2000) (setting standard for granting habeas corpus petitions from state convictions).

Note, Rewriting the Great Writ: Standards of Review for Habeas Corpus Under the New 28 USC 2254, 110 Harv. L. Rev. 1868 (1997) (analyzing language and judicial interpretation of § 2254 and identifying potential problems with some interpretations).

Several courts have addressed the retroactivity of the § 2254(d) standard of review. However, the Supreme Court, in Lindh v. Murphy, 521 U.S. 320 (1997), implicitly overruled decisions retroactively applying § 2254(d) to cases pending at the time the AEDPA was enacted. Moreover, in Moore v. Johnson, 521 U.S. 1115 (1997), the Supreme Court granted certiorari and remanded for reconsideration in light of Lindh the Fifth Circuit’s decision in Moore v. Johnson, 101 F.3d 1069 (5th Cir. 1996), that § 2254(d) applied to habeas cases pending at the time of the AEDPA’s enactment.

Lindh v. Murphy, 521 U.S. 320 (1997) (holding that new provisions of Chapter 153 apply only to cases filed after the AEDPA became effective; reversing the Seventh Circuit’s determination that the AEDPA applies to cases pending at time of enactment).

Moore v. Johnson, 521 U.S. 1115 (1997) (granting certiorari and remanding for reconsideration in light of Lindh, the Fifth Circuit’s decision that § 2254(d) retroactively applies to habeas cases).

In Murray v. Giarratano, 492 U.S. 1 (1989), the Supreme Court held that the Constitution does not require appointment of counsel for indigents seeking postconviction collateral relief from death sentences. Accordingly, there is no Sixth Amendment claim for ineffective assistance of counsel during habeas proceedings.  

In 1996, Congress enacted the AEDPA which specifically codified this rule. The AEDPA added the following subsection to § 2254: “(i) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” The restriction is similarly stated in § 2261(e) which applies to § 2254 petitions filed under Chapter 154. See supra § 6.2.16.

Murray v. Giarratano, 492 U.S. 1 (1989) (holding that state is not constitutionally required to provide counsel for indigent death row inmates seeking state postconviction relief).

Federal Statutes:

28 USC 2254(i) (2000) (prohibiting ineffective assistance of state or federal collateral postconviction counsel claims in §2254 cases).

In Pulley v. Harris, 465 U.S. 37 (1984), the Supreme Court established that since a federal writ of habeas corpus is proper only where a prisoner is “in custody in violation of the Constitution or laws or treaties of the United States,” a federal court may not issue a writ of habeas corpus based on a perceived error of state law. Federal courts can only vindicate federal rights and therefore cannot consider violations or erroneous applications of state law. In Pulley, the Court noted that some error could potentially be sufficiently egregious that it amounts to a denial of equal protection or due process under the Fourteenth Amendment but rejected Harris’ petition as not constituting such an error.

In Hunt v. Vasquez, 899 F. 2d 878 (9th Cir. 1990), the Ninth Circuit held that petitioners have no federal right to a particular state law regime and, thus, when a federal habeas court redresses a violation of federal law it cannot order a state to apply a particular state law.

Estelle v. McGuire, 502 U.S. 62 (1991) (reversing Ninth Circuit finding that fundamentally unfair trial violated due process; holding instead that admission of challenged evidence and jury instructions did not rise to level of due process violation; “reemphasizing that it is not the province of a federal habeas court to reexamine state court determinations on state law questions”).

Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (stating that “federal habeas corpus relief does not lie for errors of state law”).

Pulley v. Harris, 465 U.S. 37 (1984) (holding that federal court may not issue writ of habeas corpus based on perceived state law error).

Rose v. Hodges, 423 U.S. 19 (1975) (holding that governor’s commutation of petitioners’ death sentences to life imprisonment presented state law question not reviewable by federal habeas corpus).

Park v. California, 202 F.3d 1146 (9th Cir.) (affirming dismissal of claim based on petitioner’s failure to demonstrate a due process violation merely by citing to the Fourteenth Amendment, where issue was improper admission of evidence), cert. denied, 531 U.S. 918 (2000).

Vansickel v. White, 166 F.3d 953 (9th Cir. 1999) (holding that a state’s denial of statutory peremptory challenges can constitute a federal due process violation cognizable in federal habeas proceedings).

Moran v. Godinez, 57 F.3d 690, 698 (9th Cir. 1994) (holding that the denial or misapplication of state procedures resulting in the deprivation of a substantive right will implicate a federally recognized liberty interest).

Fetterly v. Paskett, 997 F.2d 1295 (9th Cir. 1993) (holding that trial court’s failure to comply with state law requiring trial court to weigh each aggravating factor against all of the mitigating factors violated due process and was therefore cognizable in federal habeas proceedings).

Campbell v. Blodgett, 997 F.2d 512 (9th Cir. 1992) (holding petitioner’s complaint, alleging state supreme court’s failure to “fulfill its statutory mandate” regarding independent proportionality review, not sufficiently egregious to establish due process violation, and thus not cognizable on habeas corpus).

Hunt v. Vasquez, 899 F. 2d 878 (9th Cir. 1990) (holding that habeas petitioners have no federal right to application of a particular state law; upon reinstating petitioner’s right to a state court appeal, district court lacked authority to order state court to apply the law that would have been in effect had the appeal been timely).

Knapp v. Cardwell, 667 F.2d 1253, 1260 (9th Cir.) (stating that federal courts do not review a state’s interpretation of its death penalty statute unless the interpretation is a subterfuge to avoid federal review of the state’s unconstitutional deprivation of right), cert. denied, 459 U.S. 1055 (1982).

Bates v. Nelson, 485 F.2d 90, 96 (9th Cir. 1973) (holding that governor’s clemency determination is not reviewable in federal habeas proceeding).

A federal court may not consider a § 2254 claim that evidence obtained in violation of the Fourth Amendment should have been excluded at trial where a prisoner had a full opportunity to litigate the claim in state court. In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court ruled that when a state has provided a “full and fair opportunity to litigate” a Fourth Amendment claim, federal habeas review is not available. In Stone, the Court reasoned that the exclusionary rule for Fourth Amendment violations is not a personal constitutional right but instead is primarily a judicially created structural remedy designed to safeguard Fourth Amendment rights, generally, through its deterrent effect.

Stone v. Powell, 428 U.S. 465 (1976) (holding that where state has provided opportunity for full and fair litigation of Fourth Amendment claims, federal habeas corpus relief is not available for a claim that evidence obtained in unconstitutional search and seizure was introduced at trial).

Anderson v. Calderon, 232 F.3d 1053 (9th Cir. 2000) (finding Fourth Amendment issue proper habeas claim because petitioner did not have full and fair opportunity to litigate claim in state court (claim was not established until petitioner’s appeal was pending cert. in the U.S. Supreme Court and California Supreme Court denied claim raised in a postconviction petition because claim not raised on appeal); also finding 48 hour arraignment rule violated but finding suppression of petitioner’s confession to two additional out-of-state murders given after 48 hours expired not inappropriate because confession was voluntary and not harvest of extended prearraignment incarceration; also finding state doctor’s examination of petitioner after petitioner held for more than 48 hour was fruit of poisonous tree and was error to admit at trial, but error was harmless), cert. denied, 534 U.S. 1036 (2001).

Woolery v. Arave, 8 F.3d 1325 (9th Cir. 1993) (holding that, absent a showing that state denied full and fair opportunity to litigate Fourth Amendment claim, Stone rule precludes federal court from enforcing exclusionary rule through habeas corpus even though state failed to raise Stone issue).

See generally:

Philip Halpern, Federal Habeas Corpus and the Mapp Exclusionary Rule After Stone v. Powell, 82 Colum. L. Rev. 1 (1982) (discussing theoretical justification for a limited federal habeas corpus Fourth Amendment review system; presenting conditions under which such review should occur).

Janet B. Jones, Annotation, What Constitutes “An Opportunity for Full and Fair Litigation” in State Court Precluding Habeas Corpus Review under 28 USC 2254 in Federal Court of State Prisoner’s Fourth Amendment Claims, 75 A.L.R. Fed. 9 (1985) (analyzing federal cases addressing state prisoners’ “opportunity for full and fair litigation” of Fourth Amendment claims under Stone).

The Stone restriction on federal habeas jurisdiction does not apply to certain fundamental rights claims that do not share the exclusionary rule’s deterrence function. In Jackson v. Virginia, 443 U.S. 307 (1979), the Court held that Stone does not bar habeas consideration of Fourteenth Amendment due process claims that trial evidence was insufficient to support a conviction because that issue is “central to the basic question of guilt or innocence.” Similarly, in Rose v. Mitchell, 443 U.S. 545 (1979), the Court held that Stone does not foreclose habeas review of an equal protection claim of racial discrimination in the selection of a state grand jury foreman because such a claim implicates the integrity of the judicial process and fails to raise Stone’s federalism concerns.

In Kimmelman v. Morrison, 477 U.S. 365 (1986), the Court held that Stone does not bar Sixth Amendment ineffective assistance of counsel claims even if based on a claim that counsel failed to move to exclude illegally obtained evidence. More recently, in Withrow v. Williams, 507 U.S. 680 (1993), the Court also held that the Stone restriction does not apply to claims that a conviction rests on statements obtained in violation of Miranda because such claims invoke fundamental trial rights, as opposed to exclusionary rule claims, which are “necessarily divorced from the issue of guilt.”

Withrow v. Williams, 507 U.S. 680 (1993) (holding that Stone bar to federal habeas review is not applicable to Miranda claims because Miranda claims involve fundamental trial rights).  

Kimmelman v. Morrison, 477 U.S. 365 (1986) (holding that Stone bar does not apply to Sixth Amendment ineffective assistance claims based on incompetent representation with respect to Fourth Amendment issues).

Vasquez v. Hillery, 474 U.S. 254 (1986) (holding that grand jury discrimination claims are not barred by Stone).

Rose v. Mitchell, 443 U.S. 545 (1979) (holding Stone inapplicable to equal protection claims of racial discrimination in selection of state grand jury foreman).

Jackson v. Virginia, 443 U.S. 307 (1979) (declining to extend Stone to bar habeas consideration of due process claim that trial evidence was insufficient to support conviction).

Kevin J. O’Brien, Comment, Federal Habeas Review of Ineffective Assistance Claims: A Conflict Between Strickland and Stone?, 53 U. Chi. L. Rev. 183 (1986) (analyzing Stone in light of Strickland).

Irene M. Rosenberg, Withrow v. Williams: Reconstitutionalizing Miranda, 30 Hous. L. Rev. 1685 (1993) (analyzing reinterpretation of Miranda in Withrow).

Yale L. Rosenberg, The Supreme Court Reinforces Both Federal Habeas Corpus and Miranda, 29 Crim. L. Bull. 418, 418–19 (1993) (stating that Withrow court “broadened the equitable pursuit of federal habeas courts . . . and managed to elevate the much maligned prophylactic Miranda rule”).

Michael L. Scheier, Note, Miranda Warnings and Habeas Corpus: The Supreme Court’s Erosion of Prisoner’s Fifth Amendment Rights in Duchworth v. Eagan, 59 U. Cin. L. Rev. 261 (1990) (addressing, prior to Withrow, whether Miranda claims from state court should be collaterally reviewed by federal habeas courts).

In Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989), the Ninth Circuit followed other circuits in holding that a federal habeas court may not review a petition alleging errors in the state postconviction review process. In Dickerson v. Walsh, 750 F.2d 150 (1st Cir. 1984), however, the First Circuit held to the contrary.  

Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989) (holding that a federal habeas court may not review claims of error in state postconviction review proceedings).

Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir. 1987) (holding that a federal habeas court may not review claims of error in state postconviction review proceedings).

Kirby v. Dutton, 794 F.2d 245, 247–48 (6th Cir. 1986) (holding that a federal habeas court may not review claims of error in state postconviction review proceedings).  

Dickerson v. Walsh, 750 F.2d 150 (1st Cir. 1984) (holding that habeas relief is available for claims of error in state postconviction review proceedings).

Mitchell v. Wyrick, 727 F.2d 773, 774 (8th Cir. 1984) (holding that a federal habeas court may not review claims of error in state postconviction review proceedings).

Newly discovered evidence generally does not provide a basis for federal habeas relief unless it relates to the constitutionality of a petitioner’s conviction. In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court held that a claim of actual innocence based on newly discovered evidence does not provide an independent basis for federal habeas relief. The Court held that the purpose of habeas corpus is to correct constitutional errors and not to reweigh questions of fact. Consequently, a “freestanding” claim of actual innocence, unaccompanied by a claim of constitutional error, is not cognizable by a federal habeas court. The Court stated that such claims should instead be addressed through executive clemency procedures.

The Herrera Court noted, however, that a truly persuasive innocence claim in a capital case would render the petitioner’s execution unconstitutional but did not describe exactly what type of claim would qualify. More recently, however, the Court explained the various levels of proof required in asserting an actual innocence claim. In Schlup v. Delo, 513 U.S. 298 (1995), the Court reemphasized the distinction between a claim of actual innocence as the constitutional violation itself (i.e., despite a trial free of constitutional error) and a claim of actual innocence accompanied by constitutional trial error. The Court stated that in the latter instance the conviction is entitled to more respect than one that is the product of an error-free trial. The Schlup Court went on to explain that a claim of innocence alone–as in Herrera–would require evidence that would “unquestionably establish innocence,” but a claim of innocence accompanied by constitutional violation claim requires only sufficient doubt about the petitioner’s guilt to justify the conclusion that execution would be a miscarriage of justice.

In Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (en banc), cert. denied, 523 U.S. 1133 (1998), the Ninth Circuit emphasized that a petitioner need not prove that he is actually innocent in order to pass through the Schlup gateway. The petitioner need only present evidence of innocence that undermines confidence in the outcome of the trial. As the Carriger court stated, “the claim is procedural, not substantive.”

The Supreme Court has granted certiorari in House v. Bell, 125 S. Ct. 2991 (2005) (mem.) with the following as a question presented: “What constitutes a ‘truly persuasive showing of actual innocence’ pursuant to Herrera v. Collins sufficient to warrant freestanding habeas relief?”

House v. Bell, 125 S. Ct. 2991 (2005) (mem.) (granting certiorari with the following questions presented: “1. Did the majority below err in applying this Court’s decision in Schlup v.Delo to hold that Petitioner’s compelling new evidence, though presenting at the very least a colorable claim of actual innocence, was as a matter of law insufficient to excuse his failure to present that evidence before the state courts – merely because he had failed to negate each and every item of circumstantial evidence that had been offered against him at the original trial? 2. What constitutes a ‘truly persuasive showing of actual innocence’ pursuant to Herrera v. Collins sufficient to warrant freestanding habeas relief?”)

Schlup v. Delo, 513 U.S. 298 (1995) (distinguishing Herrera stand-alone actual innocence claim from Schlup actual innocence accompanied by constitutional error claim; holding that actual innocence standard in latter case is whether constitutional violation probably resulted in the conviction of one who is “actually innocent;” Herrera claim fails without new facts that “unquestionably establish innocence”).

Herrera v. Collins, 506 U.S. 390 (1993) (holding that actual innocence claims based on newly discovered evidence do not provide basis for federal habeas relief absent an independent constitutional violation; assuming, without deciding, that truly persuasive actual innocence demonstration in a capital case would render execution of defendant unconstitutional and would warrant federal habeas relief if no state avenue were open for such a claim).

Townsend v. Sain, 372 U.S. 293 (1963) (stating that newly discovered evidence relating to state prisoner’s guilt is not a ground for federal habeas relief; such evidence is relevant only if it bears on the constitutionality of petitioner’s detention), overruled in part, 504 U.S. 1 (1992).

Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002) (concluding that petitioner in noncapital case, who alleged that his conviction rested on perjured testimony of an accomplice to murders and that there was a confrontation clause violation because the witness’ preliminary hearing testimony was introduced when the witness refused to testify at trial, might fall within narrow class of cases implicating fundamental miscarriage of justice; noting that if petitioner passed through Schlup gateway, question to be answered was whether that had consequence of overriding AEDPA’s statute of limitation, a question yet to be decided by either Ninth Circuit or U.S. Supreme Court; remanding to district court for determination of whether petitioner could pass through actual innocence gateway).

Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (en banc) (emphasizing that a petitioner need not prove that he is actually innocent in order to pass through the Schlup gateway; petitioner need only present evidence of innocence that undermines confidence in the outcome of the trial; “the claim is procedural, not substantive”), cert. denied, 523 U.S. 1133 (1998).

Coley v. Gonzales, 55 F.3d 1385, 1387 (9th Cir. 1995) (holding, in non-capital case, that Herrera precludes relief based solely on petitioner’s actual innocence of the crime).

Swan v. Peterson, 6 F.3d 1373 (9th Cir. 1993) (holding that newly discovered evidence is a ground for federal habeas corpus relief only when it bears on the constitutionality of an applicant’s conviction and would probably produce an acquittal).

Clark v. Lewis, 1 F.3d 814, 821 (9th Cir. 1993) (implying that, in a capital case, Herrera forecloses habeas relief based solely on petitioner’s actual innocence of death penalty).

Susan Bandes, Simple Murder: A Comment on the Legality of Executing the Innocent, 44 Buff. L. Rev. 501 (1996) (arguing that execution of innocent person violates Eighth and Fourteenth Amendments).

Kathleen C. Boyd, Note, The Paradox of Actual Innocence in Federal Habeas Corpus After Herrera v. Collins, 72 N.C. L. Rev. 479 (1994) (reviewing Herrera and analyzing the resulting confusion surrounding federal habeas innocence claims).

Greg Bylinsky, Recent Development: Herrera v. Collins: A New Innocence Principle?, 11 Harv. Blackletter J. 191 (1994) (arguing that Herrera majority establishes principle that an actual innocence claim can be basis for avoiding death sentence; criticizing Court’s failure to specify showing necessary to establish such right).

James G. Clessuras, Schlup v. Delo: Actual Innocence as Mere Gatekeeper, 86 J. Crim. L. & Criminology 1305 (1996) (arguing that Schlup should have answered question of whether execution of an innocent person is unconstitutional).

Kris T. Daniel, Sawyer v. Whitley, The Deadly Game of Procedures in Death Penalty Cases, 61 UMKC L. Rev. 599 (1993) (analyzing impact of Sawyer’s restrictive rule on availability of habeas relief for innocence claims; reviewing impact on Missouri habeas law).

Vernon E. Googe III, Herrera v. Collins–Federal Habeas Corpus Review and Claims of Actual Innocence, 27 Ga. L. Rev. 971 (1993) (focusing on Herrera and analyzing federal court’s dilemma in habeas cases alleging innocence).

Samuel R. Gross, The Risks of Death: Why Erroneous Convictions are Common in Capital Cases, 44 Buff. L. Rev. 469 (1996) (arguing that nature of capital cases multiplies likelihood of error and addressing special factors that produce error in capital cases).

Kelli Hinson, Comment, Post Conviction Determination of Innocence for Death Row Inmates, 48 SMU L. Rev. 231 (1994) (critiquing actual innocence claims; detailing and analyzing adequacy of procedures in place for attack on conviction).

Jill Hanson Reinmuth, When Actual Innocence is Irrelevant: Federal Habeas Relief for State Prisoners After Herrera v. Collins, 69 Wash. L. Rev. 279 (1994) (analyzing role of innocence in habeas corpus jurisprudence and summarizing Herrera).

Robert C. Stacy II, Note, Schlup v. Delo: The Result of Curbing Unlimited Jurisdiction by Limiting Discretion, 74 N.C. L. Rev. 897 (1996) (focusing on miscarriage of justice exception to procedural default, and Schlup standard, and predicting future problems in application of Schlup because of inconsistencies in Supreme Court habeas jurisprudence).

Jordan Steiker, Innocence and Federal Habeas, 41 UCLA L. Rev. 303 (1993) (analyzing Herrera and Supreme Court’s new “innocence-focus” in habeas cases).

J. Thomas Sullivan, “Reforming” Federal Habeas Corpus: The Cost to Federalism; The Burden to Defense Counsel; And The Loss of Innocence, 61 UMKC L. Rev. 291 (1992) (arguing that Herrera leaves law unclear, retreats from Court’s earlier emphasis on innocence, and allows states to preclude judicial review of constitutional violations). 

James J. Turocy, Recent Decision, Schlup v. Delo, 34 Duq. L. Rev. 373 (1996) (summarizing Schlup).

Traditionally, as a matter of comity, not jurisdiction, a federal court would not consider a habeas corpus petition until the petitioner exhausted available state remedies with respect to each claim. In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court explained that the exhaustion doctrine is designed to protect the state courts’ role in the enforcement of federal law and prevent the disruption of state judicial proceedings. The federal statute providing for habeas relief from state custody, 28 USC 2254, provides that such relief is not available unless the applicant “exhausted the remedies available in the courts of the state.” The exhaustion requirement is satisfied where the federal claim’s substance is “fairly presented” to the highest state court, and that court disposes of the claim on the merits.  

In Granberry v. Greer, 481 U.S. 129 (1987), the Supreme Court created an exception to the exhaustion requirement. The Court held that if a state fails to raise exhaustion at the district court level, whether inadvertently or otherwise, the appellate court should determine whether the interests of comity, federalism, and justice are better served by addressing the merits forthwith or by first requiring a series of  additional state and district court proceedings. If it is perfectly clear that the petition does not raise even a colorable federal claim, no interest is served by requiring exhaustion. The Supreme Court specifically noted that exhaustion is not an absolute bar whenever raised and that the failure to raise it as a defense does not amount to an absolute waiver by the state. Instead, federal courts should take the “middle course” described above in evaluating such situations.

In Plunkett v. Johnson, 828 F.2d 954 (2d Cir. 1987), the Second Circuit extended Granberry to an exhaustion waiver in district court. In Ybarra v. Sumner, 678 F. Supp. 1480 (D. Nev. 1988), the District of Nevada questioned the Second Circuit’s approach. The Ybarra court reasoned that the application of Granberry at the district court level entails different considerations than at the appellate level. For instance, less time is wasted if the district court requires exhaustion.

In 1996, the AEDPA amended § 2254 to specifically allow a federal court to deny an unexhausted habeas corpus petition on the merits. Section 2254(b) provides:  

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that–

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights o