Surviving the AEDPA Death Trap In Habeas Corpus Proceedings For State Court Inmates

If I had a dollar for every time I had to tell a client that their potential habeas corpus claim challenging their state court conviction was procedurally barred I'd be living large. The culprit, more often than not, is the dreaded AEDPA: the "Antiterrorism and Effective Death Penalty Act of 1996" — a disaster that holds its own against other tragedies of 1996, like the murder of Tupac Shakur, the 1996 Mount Everest disaster and the cloning of Dolly the Sheep.

So I thought it would be worth taking a few moments to explain the perils facing state court inmates seeking federal habeas review, in the hope you may be able to plan ahead and surmount them.

WHAT YOU ARE UP AGAINST: YOU ALREADY LOST IN STATE COURT

If you are seeking a federal post-conviction remedy for your client from their state court conviction, you’ve already met with multiple failures. Your client pleaded guilty or blew trial, the intermediate state appellate court affirmed the conviction, and discretionary direct state court review has been denied. And your client may have sought — and lost — one or more post-conviction motions in state court.

So you are now hoping for a miracle, which usually takes the form of a writ of habeas corpus, which, for state court clients, is codified in 28 U.S.C. §§ 2254. Bringing a successful habeas petition, however, is, to put it mildly, difficult. Broadly, you must show that your client’s federal constitutional rights were violated in procuring the conviction. But, before a federal district court can consider whether constitutional rights were violated, the client must navigate numerous land mines imposed by Congress, including the statute of limitations, exhaustion and various procedural hurdles. Let's discuss those.

ONE YEAR STATUTE OF LIMITATIONS

The procedural hurdles established by the AEDPA are daunting. A defendant convicted in state court has one year to bring a federal habeas corpus proceeding under 28 U.S.C. § 2254 to remedy a violation of federal constitutional rights. 28 U.S.C. § 2244(d)(1). The one-year limitations period begins when the conviction is “final,” i.e., when the 90-day period for filing a petition for a writ of certiorari in the Supreme Court to review the affirmance of the defendant’s conviction has expired without such a filing being made, or when a filed cert petition is denied.

Certain events, however, stop the one-year habeas clock, the most significant of which is the time during which a post-conviction motion, such as a motion under Art. 440 of the New York Criminal Procedure Law, is pending in the state court. And the limitations clock can begin anew if the ground for the habeas is newly discovered evidence that could not have been found previously through the exercise of due diligence, or there exists a new Supreme Court case declared retroactive. These events can support a habeas petition filed more than one year from the initial date of finality but they do not revive claims that have already lapsed.

Additionally, the one-year clock may be equitably tolled – though rarely – upon a showing of extraordinary and exceptional circumstances. Because the AEDPA’s one-year limitation period is not jurisdictional, the Supreme Court has held a petitioner is “entitled to equitable tolling if she shows (1) she has been pursuing her rights diligently, and (2) that some extraordinary circumstance stood in her way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (cleaned up).

EXHAUSTION OF STATE REMEDIES

Beyond the time limitations, the AEDPA imposes additional hurdles on state petitioners seeking habeas corpus relief. One concerns “exhaustion,” i.e., that the issue sought to be raised in the habeas proceeding was presented to the highest court having authority — discretionary or otherwise — to consider it. That means you must apply for discretionary appellate relief or you'll be found to have not exhausted. Some courts have applied the exhaustion requirement strictly, leading others to observe, “the requirement for exhaustion is not intended to exhaust the petitioner or his or her lawyers….”

A court will not adjudicate a habeas petition that includes both exhausted and unexhausted claims. So If you file multiple claims in your petition and some are exhausted and some are not you are faced with choices:

• You can dismiss the entire petition and return to federal court after exhausting the unexhausted claim(s); or

• abandon the unexhausted claim(s); or

• move to hold your petition in abeyance while you return to state court to exhaust the unexhausted claim(s).

  
  

But beware that if you agree to dismiss the petition entirely to return to state court to exhaust you will need to refile in federal court within the limitations period. And if you dismiss just the unexhausted claim(s) and proceed to decision with the exhausted claim(s), you may run into the general prohibition against filing a second or successive habeas should you later try to return to court after exhausting the dismissed claims.

PROCEDURAL DEFAULTS

Habeas corpus will also be unavailable if the last state court to consider the issue found it procedurally defaulted, as, for example, by a finding that the issue was waived or forfeited because it was not raised in the lower court. In some instances, a state court’s finding of procedural default may be disregarded if the rule invoked by the state court is not uniformly applied. Additionally, I discuss immediately below opinions excusing procedural defaults under a “cause and prejudice” analysis. A showing of actual innocence may also excuse what would otherwise be declared a procedural default.

CAUSE AND PREJUDICE

To overcome a procedural bar, a habeas petitioner must show cause for the default and actual prejudice, or that a miscarriage of justice will occur if the federal court does not consider the claim. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). Cause is ordinarily shown by demonstrating that “some objective factor external to the defense impeded” defense counsel or the pro se defendant from compliance. Murray v. Carrier, 477 U.S. 478, 488 (1986). A habeas petitioner demonstrates prejudice by establishing that the constitutional errors “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982).

VIOLATION OF FEDERAL CONSTITUTIONAL RIGHTS

If you get beyond all the procedural hurdles we've discussed, you now must demonstrate that your client's federal constitutional rights were violated, because habeas does not provide a remedy for the violation of purely state court rights. Keep in mind, however, that uniquely state court rights can still form the basis for a denial of a federal constitutional right under limited circumstances. For example, a defendant whose lawyer failed to make a state court argument may be found to have been denied the client their Sixth Amendment right to effective assistance of counsel.

EVIDENTIARY HEARING?

Generally, the federal habeas court will not grant an evidentiary hearing to a state court defendant seeking habeas relief because the federal habeas court reviews only the record developed in the state court. Exceptions will be made, however, where, e.g., the claim (a) relies on a new, retroactive rule of constitutional law; or (b) relies upon “a factual predicate that could not have been previously discovered through the exercise of due diligence; and petitioner shows by clear and convincing evidence that he would not have been convicted but for the claimed constitutional error.

SO, IF YOU SURMOUNT THESE HURDLES IS VICTORY YOURS?

Assuming you satisfy all the procedural hurdles and demonstrate a violation of your client’s constitutional rights, do you necessarily win? Nope. The federal habeas corpus statute presumes the finality and correctness of state court proceedings in deference to state-federal comity (comedy?) and will disturb them only where, essentially, the state court got the law or the facts not just wrong but very wrong. Thus 28 USC § 2254(d) provides:

(d) 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.

Courts have said that the “unreasonable application” standard “falls somewhere between ‘merely erroneous and unreasonable to all reasonable jurists.’ ” In other words, it’s not sufficient to show the state court was wrong but you need not show the state court was nearly incompetent.

HARMLESS ERROR

Home free? Not yet! The AEDPA still has a few tricks up its sleeve. The biggest obstacle still facing the client is the application of harmless error analysis; did the error matter? Thus, while section 2254(d), discussed immediately above, asks whether the state court's decision was contrary to or involved a misapplication of clearly established federal law, or resulted in a decision based on an unreasonable determination of the facts, harmless error analysis in the habeas context asks, under the Brecht standard, whether the error had a substantial and injurious effect on the verdict. The Supreme court clarified in Brown v. Davenport (2022) that both requirements must be satisfied before habeas relief may be granted.

THE HABEAS COURT WILL BE "DOUBLY DEFERENTIAL" WHEN CONSIDERING CLAIMS INVOLVING INEFFECTIVE ASSISTANCE OF COUNSEL

As if all this weren't bad enough, when a client alleges in a § 2254 petition that his state court counsel was ineffective courts will apply, in essence two layers of harmless error analysis. The first is the Strickland standard (Strickland v. Washington, 466 U.S. 668 (1984)), asking, whether there is a reasonable probability that, but for counsel’s errors, the result would have been different, meaning, is there a probability sufficient to undermine confidence in the outcome. The second is the standard discussed above under § 2254(d), asking whether the state court decision was contrary to, or an unreasonable application of clearly established federal law, The Supreme Court in Harrington v. Richter, 562 U.S. 86 (2011), explained, “The standards created by Strickland and §2254(d) are both highly deferential, and when the two apply in tandem, review is doubly deferential.”

A FINAL HURDLE: GETTING THE FEDERAL DISTRICT COURT TO DECIDE YOUR CLAIM IN A TIMELY MANNER

But wait! There's more! So, let's say you believe you can overcome all these hurdles and you dutifully file your habeas application in federal court. When will it be decided? Depending on the district, maybe not any time soon. Many districts are horribly backlogged in deciding their habeas petitions. In the Eastern District of New York, one of the districts in which we commonly practice, delays in deciding habeas petitions had reached epic proportions. A few years ago my partner Zach Segal and I approached the EDNY's chief judge and chief magistrate judge about the problem and, fortunately, they were receptive to addressing the problem. For the last few years we've been monitoring progress. In July 2021 there were 258 pending § 2254 petitions. Now there are 104. Progress!

BOTTOM LINE

If you've read this far you may be asking, what's the point of even filing a habeas petition, with the cards stacked so high against habeas petitioners? Well, in practice, succeeding in a habeas on behalf of a state court defendant is difficult but it's not impossible. We've won several. From my own experience federal courts sometimes appear more willing to fault a state court and/or state prosecutor than they are willing to fault their federal equivalents. In any event, habeas is often a client's last, best hope for obtaining relief. So if you feel you've got a meritorious claim, by all means give us a call. Sometimes justice will prevail.

You can read more about our post-conviction practice — including habeas corpus applications — here.

Richard Levitt

Levitt & Kaizer

office: (212) 480-4000

cell: (917) 562-4000