Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
As I mentioned in my last post on petitions for writ of habeas corpus, petitions have to be timely filed. In addition to timeliness, petitioners also have to consider the issues of exhaustion and procedural bar.
Exhaustion is a concept based on comity and federalism. Although the Federal courts are available to consider Federal constitutional questions, the Federal courts do not sit in a strict appellate capacity over the State courts. Generally, for the exhaustion element to be met, the petitioner must have presented any Federal constitutional claims to the State court, thereby allowing the State court the opportunity to review the claims first. If the claims have not been presented to the State court, a Federal court may find that the claims have not been exhausted. In such instance, the Federal court may dismiss the Federal 2254 petition without prejudice, so as to allow the petitioner to present, or exhaust, his claims in State court. In addition, if a 2254 petition contains both exhausted and unexhausted claims, (otherwise known as a “mixed petition”), the 2254 petition may likewise be dismissed without prejudice. A good discussion of these principles can be found in Thompson v. Wainwright, 714 F.2d 1495, 1503-1504 (11th Cir. 1983); Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998); and, Bailey v. Nagle, 172 F.3d 1299 (11th Cir. 1999).
With regard to procedural bar, where a 2254 petitioner has failed to raise his or her Federal claims properly in State court, the Federal court may find that the petitioner is procedurally barred from raising the claims in Federal court, unless a petitioner can make a showing of cause for and actual prejudice from the default, or by establishing a fundamental miscarriage of justice. See Bailey, 172 F.3d at 1306. As noted in Bailey, 172 F.3d at 1302-1303, claims are generally procedurally defaulted in two ways: (1) where the State court correctly applies a procedural default principle of state law and determines that the Federal claims are barred; or, (2) where the petitioner never raised the claim in State court, and it is obvious that the unexhausted claim would be procedurally barred based on a State law procedural default. Where unexhausted claims would be procedurally barred in State court, the Federal court may determine that such claims do not provide a basis for Federal habeas relief. See Snowden, 135 F.3d at 736.
Nevertheless, where it would be futile for a petitioner to return to State court because procedural defaults bar any right to relief, the Federal court may determine that such futility is an exception to the exhaustion requirement, and decline to dismiss the petition. See Bailey, 172 F.3d at 1306-1307 (Carnes, J. dissenting).
Persons convicted in State court proceedings have several options available to them after they are convicted. These options include (1) filing a direct appeal in a court of appeal; (2) filing a postconviction motion in the trial court, such as a motion to withdraw a plea, or a motion to vacate, set aside, or correct the sentence; and, (3) filing a petition for writ of habeas corpus in Federal court. Persons convicted in Federal court also have the same types of options.
Habeas corpus proceedings are quasi-civil in nature. Although the conviction being attacked is criminal, and the caselaw surrounding habeas issues can overlap into the criminal arena, the proceedings occur in a civil context, and many of the procedural rules are civil in nature. As a result, although the Government or the State may have had to carry the burden in the criminal phase of the proceedings, the burden often shifts to the petitioner during habeas proceedings.
For those wishing to consider filing a petition for writ of habeas corpus, the United States Code contains numerous statutes and rules that should be consulted beforehand. These sections can be found at 28 U.S.C. secs. 2241-2266. Generally, while persons attacking State court convictions file petitions under section 2254, persons attacking Federal court convictions file motions under section 2255. Some of the topics addressed by the statutory sections include (1) the Court’s power to grant the writ and requirements of petitions (secs. 2241 and 2242); (2) procedural matters, such as compiling the record, evidence, and hearings (secs. 2243 and 2245-2250); (3) indigent petitioners (sec. 2250); (4) the one year statute of limitations (sec. 2244(d)(1)); (5) successive petitions (sec. 2244); (6) stays of state court proceedings (sec. 2251); (7) the role of the Attorney General in proceedings attacking state court convictions (sec. 2252); and, (8) appeals of decisions on petitions and certificates of appealability (sec. 2253). In addition, counsel should note that there are specific Rules governing habeas proceedings under both sections 2254 and 2255. Rules 1-12 Governing 2254 Cases and Rules 1-12 Governing 2255 Proceedings can be found in the United States Code immediately following the statutory sections. A form petition for filing under section 2254 and a form motion for filing under section 2255 can also be found immediately after Rule 12 of the 2254 and 2255 Rules.
Persons convicted of capital crimes or their attorneys should consult the Special Habeas Corpus Procedures in Capital Cases, found at 28 U.S.C. secs. 2261-2266.