Wednesday, February 2, 2011

Habeas Corpus Practice

Attorney Kevin Barron

Kevin Barron is a member of the Criminal Justice Act
Habeas Corpus Panel in the US District Court in Boston and devotes a substantial portion of his practice to representing prisoners convicted in violation of their constitutional rights.

Habeas corpus petitions (2254) for a state-court conviction motions for new trial (2255) from a federal conviction are significant but little-used remedies to obtain justice after a defendant has been convicted. The rules for presenting a post-conviction claim are among the most complex rules in procedural law. The right to petition a federal court for review of an unlawful conviction is often lost to short-term statute of limitations (usually one year). Even if the petitioner is timely, important claims can be lost irretrievably because they have not been presented and preserved in the trial and appellate courts.


A federal petition for a writ of habeas corpus (28 USC § 2254) can be a defendant’s last and best chance for justice when the state-court appeals and post-conviction courts have ignored claims of innocence and abridgments of constitutional rights. The standard for granting can be habeas corpus petition is in theory remarkably lax. Some circuit courts have ruled that the most typical habeas claim, ineffective assistance of counsel, requires a only some showing, that error undermined confidence in the outcome of the proceedings - less than a preponderance of the evidence.


Why are so many habeas corpus petitions dismissed without a hearing or even a review of the merits of the claim? (In some years, not one of the thousands of petitions results in a prisoner’s release.) There is a simple answer: procedural default. The 1996 Anti-terrorism and Effective Death Penalty Act (signed into law by then-president Clinton and known as “AEDPA”), created a dense thicket of default provisions intended to deny even innocent prisoners access to habeas corpus relief. In some instances, the courts have lost the authority they once had to do substantial justice and to overlook a defendant’s mistakes in technical matters such as adequately presenting post-conviction claims in the state courts or filing the petition within the limitations period. One example of the technical pitfalls of habeas corpus litigation is a concept known as “tolling” of AEDPA’s one-year deadline. The most frequent errors a defendant makes is the failure to file within a year of the day that the judgment of conviction “becomes final”, a period calculated by an on-again-off-again method called tolling.

WHAT YOU CAN DO - Review and Investigation

Act promptly. Get experienced review of claims while the direct appeal is still pending and open the a defense investigation if the review shows claims have merit. The majority of prisoners seeking post conviction relief are unrepresented and their claims are dismissed for errors no habeas corpus counsel would make. It is important to get representation in time, before the statute of limitations starts to run.