Habeas Procedures

Question 1

What are the procedural hurdles for Habeas?

Answer 1

(1) is the issue time barred?
(2) only entitled one petition
(3) exhaustion
(4) existing rule or constitutional right?
(5) issue that can be raised in Habeas?
(6) procedural default
(7) can the federal court provide relief?

Question 2

Time barred?

Answer 2

• must file within a year
• fed. habeas will toll while exhausting state remedies
• if start in fed. need to get a stay and abeyance
• equitable tolling: D pursuing rights diligently and extraordinary circumstances stood in the way

Question 3

one petition?

Answer 3

• must claim everything in the first petition
• but can file a second one with good cause and prejudice
• factual predicate could not have been discovered & clear and convincing evidence that, but for the const’l error, D would not have been convicted

Question 4

Exhaustion

Answer 4

must use all state direct appeals

• no need for collateral attacks if issue addressed already
• must “fairly present” each issue to state court

Question 5

existing rule or constitutional right?

Answer 5

court will not announce new laws in habeas

Question 6

issue that can be raised?

Answer 6

no 4th amendment claims

Question 7

procedural default

Answer 7

not using the opportunity to bring the claim in state remedies

• must show good cause and prejudice
• or actual innocence claim (gets through the door)

Question 8

can federal court grant?

Answer 8

state ruling contrary to constitutional law OR resulted in the decision that was based on unreasonable determination of the facts in light of the evidence produced in state trial proceedings

Question 9

Actual innocence claims

Answer 9

can open the door to HC if procedural bar BUT must show the const’l violation free standing of the actual innocence claim.

must show more likely than not no reasonable juror would find petitioner guilty beyond a reasonable doubt. Must consider the old evidence in light of the new evidence