Habeas Corpus – Responsibilities and Duties of the trial lawyer
Definition: Latin for “you have the body.” The writ of habeas corpus is a petition that directs state law officials (for example, warden) who have custody of an inmate to appear in court to determine whether the prisoner is being held unconstitutionally.
The federal writ of habeas corpus is often the final chance for a defendant to challenge his or her conviction in federal court after the Michigan state courts have denied relief. The writ of habeas corpus for a state inmate challenging a state conviction is governed by 28 USC 2254. Link to Habeas Statute
This article is going to discuss habeas corpus petitions filed by state
prisoners in federal court pursuant to 28 USC § 2254 wherein a Michigan prisoner asserts that his or her incarceration or detention by Michigan state officials violates one or more federal constitutional rights.
Most importantly, this article will explain why the trial attorney must preserve any federal issues for appellate review.
Federal Habeas Corpus Requirements
28 USC 2254 establishes the requirements a petitioner must meet before the federal court will review the writ of habeas corpus. The conditions are as follows:
- Petitioner must be ‘‘in custody’’ when the petition is filed – “In custody” can include prison, parole, bond or other restraint resulting from the state court conviction
- Violation of constitutional law – The writ of habeas corpus must argue that the petitioner is “in custody” as a result of a violation of federal law or the Constitution of the United States.
- Exhaustion – All of the federal constitutional issues contained in the writ of habeas corpus must have been presented to the Michigan state courts for decision. Most importantly, the issues must have made their way to the Michigan Supreme Court.
- Federal issues were not ‘‘procedurally defaulted’’- This means that the petitioner must show that the Michigan courts decided the federal issues on the merits of the arguments and did not dismiss the issues on the failure to procedurally preserve the issue or timely file an appeal. If the issues have been procedurally defaulted, the dismissal of those issues are viewed to be dismissed on “independent and adequate” state grounds. Federal courts will not review issues that invoke that standard.
- Timing deadlines – The writ of habeas corpus must have been filed within one year after the state’s highest court, the Michigan Supreme Court, has addressed the issues on the merits.
28 USC 2254 (AEDPA)
“AEDPA” stands for the Anti-Terrorism and Effective Death Penalty Act. This act establishes the hurdles that a petitioner must overcome in order to have his or her case heard in the federal court. The law has strict guidelines that must be followed.
The requirements of AEDPA have placed a great deal of responsibility on the trial attorney. Since we have been doing criminal appeals for nearly 15 years, we can tell you that many trial attorneys do not recognize their responsibility in preserving issues for federal review. We have read thousands of pages of transcripts and very few trial attorneys make an effort to preserve a federal claim. When we represent our clients at trial we make it a point to argue United States Supreme Court case law when applicable.
At our law firm, we have narrowed our practice to only criminal defense. We do trials and appeals. As appellate attorneys we know what requirements must be met in order to preserve an issue for the federal court. When we do trial work, since we do appeals, we know how to properly preserve issues for federal court. After many years of reading trial transcripts, many attorneys have not learned that valuable lesson. When hiring a criminal attorney, for either trial or appeal, expertise matters.
As stated, AEDPA has made it necessary for trial attorneys to be cognizant of their duty to properly preserve federal issues for appeal in the Michigan state courts and the federal court.
Principle of Exhaustion – What does it mean?
“Exhaustion” requires that before a Michigan inmate can seek federal habeas relief, the inmate must have presented all of the federal issues to the state court. Specifically, the Michigan state courts must have been presented and given the opportunity to decide the federal issues. Once the highest state court, the Michigan Supreme Court, has decided the merits of the issues, the issues have been “exhausted.” 28 U.S.C. § 2254(b).
If the trial attorney fails to adequately preserve a constitutional issue at trial and the state appeals court refuses to address the merits of the argument, holding that review of the issue has been “waived” pursuant to Michigan procedural rules, the issue will not meet the requirements of § 2254(b). The door is closed to federal review of that issue. A person incarcerated must not have any issues precluded from federal court if he for she is trying to get relief from an unconstitutional imprisonment.
If an attorney does not properly argue federal law and the particular trial facts to properly preserve a federal issue, the issue cannot be presented to the federal court in the writ of habeas corpus. A prisoner may be able to still raise that issue if the prisoner can satisfy the conditions of 28 U.S.C. §2254(e)(2).
Under the statute, in order to have a “waived” or unpreserved issue heard by the federal court, the petitioner must show “cause” and “prejudice.” “Cause” means that the petitioner must present facts indicating that the issue could not have been previously discovered by exercising due diligence thereby accounting for the failure to raise the issue in state court. The petitioner could also show a claim of “actual innocence” as well. A review of the AEDPA statute clearly shows, the consequence of failing to properly preserve a federal constitutional issue at trial is very harsh. A trial attorney’s failure to adhere to procedural rules -can sacrifice his or her client’s path to federal court.
Procedural Default of Federal Issues
A review of the habeas statute shows that the rules are complex and failure to follow them can result in a severe consequence – dismissal of the federal issue. The consequence is so drastic, and arguably unfair, because if the procedural rules are not followed, even a federal issue with strong arguments that could end up reversing a conviction, may be dismissed without ever being addressed.
Thus, a trial attorney must avoid “procedural default” of federal issues. The trial attorney must recognize his or her responsibility to preserve federal issues. Unfortunately, not many do. In that sense, they do their client a disservice because the attorneys are not thinking of future appeal consequences.
What is a procedural default?
State courts and federal courts have rules that must be followed. In that sense, a procedural default occurs, for example, when the trial attorney fails to object to an issue at trial. The federal issue fails to become part of the record because an argument or objection had not been made. The failure to preserve the issue is a “procedural default.” It is also important to note that a trial attorney’s failure to preserve an issue at the trial court, can also cause the Michigan appellate courts to refuse to rule on the federal issues as well.
In federal court, a procedural default of an issue prevents pursuit of relief in the federal court. If the Michigan appellate courts do not address an issue because of procedural default, the federal court will not review the issue because the federal court has determined that the case has been decided on an “independent and adequate” state grounds. This means that the federal court will not review the federal issue because the state of Michigan has dismissed the issue on something other than federal law. Since state procedural rules and not federal law is implicated in the dismissal, the thinking goes, the federal court does not have a federal issue to look at.
We want this point to be very clear- a trial attorney’s failure to object and preserve federal issues can have dire consequences on an a defendant’s appellate rights.
Is there a way to overcome a procedural default?
As discussed earlier, there are some avenues to overcome a procedural default in federal court. One way is by establishing “cause and prejudice.” As stated above “cause” means that the petitioner must present facts indicating that the issue could not have been previously discovered exercising due diligence to account for the failure to raise the issue in state court. Often an argument for “cause” can be satisfied with a claim of ineffective assistance of trial and appellate counsel. “Prejudice” means the procedural default harmed the prisoner. Lastly, there is also a way to overcome the procedural default by offering proof of “actual innocence.” This standard, however, is difficult to prove.
The responsibility of federal issue “exhaustion” begins with the trial attorney
The best way to fix a procedural default is to not let it happen in the first place. This is easier said than done, because a defendant may not be aware of the requirement of issue “exhaustion.” Moreover, an attorney may to be aware of his or her responsibility to preserver appellate issues.
If this article makes one point clear it is that trial attorneys must properly recognize and preserve federal issues. Most federal habeas corpus petitions are denied because the issues had not been exhausted in the state courts. If an issue has not been preserved, for example at the trial court, the issue is foreclosed from review by the concept of “procedural default.”
It is incumbent upon trial and appellate attorneys to have an understanding of the federal habeas corpus requirements relating to issue preservation. The attorneys must remember that the defendant may not be able to find relief in the Michigan courts and may have to seek justice in the federal court. Nearly every proceeding in the trial court must be conducted with the writ of habeas corpus in mind. The same goes for the appellate attorney.
How issues can be preserved for appellate and federal court
The AEDPA hurdles must be overcome. To avoid the procedural hurdles of the statute, trial and appellate attorneys must take care to preserve any constitutional issues. The issues must be preserved “on the record.”
Trial and appellate counsel (state level) can make a record of a constitutional issue by:
- filing motions that present the federal issue to the trial court
- objecting on constitutional grounds
- seek evidentiary hearings
Important note: AEDPA states that all claims which could have been discovered using due diligence, but were not investigated and presented and preserved at trial are – waived. To prevent that issue, trial counsel should use the discovery process and motions to explore any constitutional issues that they believe may exist.
To properly preserve an issue for appeal, an attorney must raise the issue when it occurs and create a record. As emphasized in this article, the Michigan appellate courts can refuse to address any issue, even those with merit, if the issue had not been properly presented at the trial court.
Remember that if the state courts do not address the issue the issue is “waived” or not preserved for federal review. The federal court will dismiss the issues on the “adequate and independent state ground” doctrine.
Therefore, a trial attorney must make a record of any constitutional issue. Trial attorneys must continue to broaden their case law knowledge by keeping informed of new federal court and United States Supreme Court decisions. If they do not, they may not even know when a constitutional error occurs during the trial.
The trial attorney must carefully consider that any time he or she raises an objection, he or she should determine if the objection implicates federal law, especially case law from the United States Supreme Court. The trial attorney should also present the facts, from the trial, that support the constitutional claim. If the facts are not clear, then the attorney can request an evidentiary hearing to develop the record. If the evidentiary hearing is denied by the trial court, the issue is not waived for appellate purposes.
The trial attorney must take notice that simply stating “I object” does not preserve the record for a writ of habeas corpus. The constitutional error must be made explicitly clear to the trial court judge. Also, an attorney can waive an issue by conceding to the court’s ruling on an issue. An objection must be clear for the record.
Standard of Review in a Petition for Habeas Corpus
The “standard of review” in a petition for habeas means that the petitioner must show that the state court decision/s on a federal constitutional issue is either “contrary to” or “an unreasonable application” of “clearly established” Supreme Court case law.
The “standard of review” can be found in 28 USC § 2254(d). The federal court will give deference to the state court decisions regarding federal issues. Again, however, pursuant to § 2254(d), federal courts may grant habeas relief if the state court decision on the federal issue was “contrary to” or “unreasonable application” of “clearly established” United States Supreme Court precedent.
NOTE: A writ of habeas corpus is one of the last avenues of relief in a criminal conviction.
This article shows how complicated the appeal process can be both in the state appellate courts and federal court. At CZARNECKI & TAYLOR we are very aware that a writ of habeas corpus may be the last opportunity to challenge a conviction. Your trial attorney must be very aware of his or her duty to properly preserve a constitutional issue for federal court. As explained, if the issue is not preserved, your ability to pursue relief in the federal court may not be available. As you can see, an experienced and knowledgeable trial or appeal attorney is of paramount importance for your defense.
The Antiterrorism and Effective Death Penalty Act places a very strict limit on the time a petitioner seeking habeas relief has to file in federal court. Once the state’s highest court has rendered a decision, a petitioner has one year to file in the federal court. There are of course ways to stop the clock but they are not the topic of this article. Nevertheless time is of the essence.
If you or someone you know has been convicted of a crime, the search for justice does not end with the trial. A defendant has the right to file an appeal. If you have not filed an appeal, we can help.
If the appeals process has ended in the Michigan appellate courts, there may still be a chance to keep appealing the conviction in the federal courts in a writ of habeas corpus. This article shows, that a petition of habeas corpus is a complicated process with very particular standards and rules. This is especially true if you consider that this article really only discussed habeas corpus and issue preservation.
Drafting an appeal, or a writ of habeas corpus, requires particularized expertise. At CZARNECKI & TAYLOR, we understand the appellate and habeas corpus process.
Author – James E. Czarnecki II
Please call our office today at (586) 718-2345 to discuss your appellate rights and options. We are willing to answer your questions.
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