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299.2 Procedural Prerequisites For Raising Federal Constitutional Claim on Federal Habeas Corpus
299.2.1 Federal Claim Must Be Specified
299.2.2 Necessity Of Federalizing In Trial Court
299.2.3 Necessity Of Federalizing In Intermediate Appellate Court
299.2.4 Necessity Of Presenting Federal Issue To State's Highest Court Even If Review Is Discretionary
299.2.5 Actual Innocence: Herrera v. Collins Standard
299.2.6 Actual Innocence: "Schlup Gateway" -- Lower Standard
Than Herrera
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299.2.1 Federal Claim Must Be Specified
PRACTICE NOTE: The federal constitutional claim must be sufficiently specific to alert the court as to the particular constitutional provision upon which the defendant is relying. (See Taylor v. Illinois (1988) 484 US 400, 447, fn 9 [108 SCt 646; 98 LEd2d 798] ["a generic reference to the 14th Amendment is not sufficient to preserve a constitutional claim based on an unidentified provision of the bill of rights"]; see also Riggins v. McGinnis (7th Cir. 1995) 50 F3d 492, 494 ["it is not enough to scatter the words 'due process' in a brief: Counsel must sketch an argument about why the conviction violates that clause ..."]; see also Petrucelli v. Coombe (2nd Cir. 1984) 735 F2d 684, 689.)
Thus, in Duncan v. Henry (1995) 513 US 364, 365 [115 SCt 887; 130 LEd2d 865], it was held, in a per curiam opinion that, at a minimum, the federal constitutional provision under which a claim lies must be clearly identified in order to ensure later federal habeas consideration.
In the context of jury instructions there are many potential sources of federal constitutional error. (See NCJIC Chapter 300 [Substantive Federal Constitutional Claims Relevant To Jury Instruction].)
RESEARCH NOTE: How to Preserve and Strengthen Issues for Appeal, by the Bay Area Community Law Foundation and The National Lawyers Guild (Oct. 1994).
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299.2.2 Necessity Of Federalizing In Trial Court
PRACTICE NOTE: Any claim "fairly presented" to the State Supreme Court is deemed exhausted. (Anderson v. Harless (1982) 459 US 4, 6 [103 SCt 276; 74 LEd2d 3]; Schwendeman v. Wallenstein (9th Cir. 1992) 971 F2d 313, 315-16; Kellotat v. Cupp (9th Cir. 1983) 719 F2d 1027, 1030.) However, the State Supreme Court may consider a federal constitutional claim to be procedurally defaulted unless it has been raised at trial. (Harris v. Reed (1989) 489 US 255, 259-265 [109 SCt 1038; 103 LEd2d 308].) Procedural default in state court will likely waive the issue for federal habeas. (Rose v. Lundy (1982) 455 US 509, 515-521 [102 SCt 1198; 71 LEd2d 379]; but see NCJIC 295.3.2 [Ineffective Assistance Of Counsel At Trial].) For example, in People v. Sanders (CA 1995) 11 C4th 475 [46 CR2d 751], the court held that various federal constitutional claims were not preserved for appeal where trial counsel failed to object or objected only on state grounds. (Sanders,11 C4th at 512 fn 4; see also Johnson v. Zenon (9th Cir. 1996) 88 F3d 828, 830 [the "essentially the same claim" standard is no longer viable].)
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299.2.3 Necessity Of Federalizing In Intermediate Appellate Court
PRACTICE NOTE: Even if a claim has been consistently rejected in state court, it should still be raised on appeal in the intermediate appellate court and in a petition for review to the state's highest court. For example, in California, if the claim was not raised in the appellate court it does not qualify for consideration on a petition for review to the California Supreme Court and, thus, would be considered procedurally defaulted. (See Calif. Rules of Court Rule 29(b)(1).) Hence, despite criticism from the intermediate appellate court for raising frivolous claims (see e.g., People v. Hearon (CA 1999) 72 CA4th 1285, 1286 [85 CR2d 424]), counsel's obligation to his or her client would seem to require raising any potential federal constitutional claim that may ultimately be vindicated by a subsequent favorable opinion of the United States Supreme Court or the lower federal courts. (See also NCJIC 299.2.4 [Necessity Of Presenting Federal Issue To State's Highest Court Even If Review Is Discretionary].)
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299.2.4 Necessity Of Presenting Federal Issue To State's Highest Court Even If Review Is Discretionary
PRACTICE NOTE: O'Sullivan v. Boerckel (1999) 526 US 838, 839 [119 SCt 1728; 144 LEd2d 1] held that all potential federal habeas claims must be submitted to the highest state court for discretionary review in order to preserve the claim for federal habeas corpus. (See also Kibler v. Walters (9th Cir. 2000) 220 F3d 1151, 1152-53 [prisoner doesn't exhaust constitutional claim in motion for discretionary review when claim was only referenced in brief submitted to lower court].) There is a suggestion in Justice Souter's concurrence that a state court may announce that it does not want to hear ordinary appeals, and thus the remedy is unavailable and does not have to be exhausted. He pointed out that South Carolina has done that and that "other states may do the same." (119 SCt at 1742.)
CAVEAT: The procedural rules related to federal habeas corpus are extremely complex and in a constant state of flux. Specialized resources should be consulted when considering such matters.
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299.2.5 Actual Innocence: Herrera v. Collins Standard
PRACTICE NOTE: In Herrera v. Collins (1993) 506 US 390 , 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.
See also Capital Punishment Handbook [6.3.2.5a No "Freestanding" Actual Innocence Claims: General Principles And Authorities].
RESEARCH NOTES:
See NCJIC
305.1.7.2 [Actual Innocence].THE NATIONAL CRIMINAL JURY INSTRUCTION
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299.2.6 Actual Innocence: "Schlup Gateway" -- Lower Standard Than Herrera
PRACTICE NOTE: The standard for actual innocence for purposes of of the "Schlup gateway" (Schlup v. Delo (1995) 513 US 298 [115 SCt 851; 130 LEd2d 808]) is lower than the Herrera v. Collins (1993) 506 US 390 [113 SCt 853; 122 LEd2d 203] standard applicable where the petitioner had a fair trial but is nevertheless actually innocent. To get through the Schlup gateway so that he or she can argue his or her otherwise procedurally barred constitutional claims, the petitioner must show that "it is more likely than not that no reasonable juror would have convicted him [or her] in light of the new evidence." (Schlup, supra, 513 US at 327; see also Sistrunk v. Armenakis (9th Cir. No. 2001) 271 F3d 1174.)
RESEARCH NOTES:
See NCJIC 305.1.7.2 [Actual Innocence].