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VOLUME 20: HABEAS CORPUS AND POST‑CONVICTION RELIEF
Section 2254, Section 2255, Successive Petitions, AEDPA
Introduction to Volume 20
Habeas corpus is the ancient writ that allows a prisoner to challenge the lawfulness of his detention. The phrase means “you have the body.” The writ commands the custodian to bring the prisoner before a judge and explain why the prisoner is being held. The Suspension Clause of the Constitution (Article I, Section 9) provides: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
The writ is broader in theory than in practice. A state prisoner who has been convicted in a fair trial with competent counsel and a full opportunity to litigate federal claims will not get habeas relief. The writ is reserved for cases in which the state court proceeding was fundamentally unfair. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) made the writ even narrower.
This volume proceeds in four parts. Part One covers habeas corpus for state prisoners under 28 U.S.C. § 2254. Part Two covers habeas corpus for federal prisoners under 28 U.S.C. § 2255. Part Three covers successive petitions: when a prisoner may file a second or subsequent habeas petition, and the stringent requirements for doing so. Part Four covers AEDPA in detail: the statute of limitations, the exhaustion requirement, the deference to state court decisions, and the procedural default doctrine.
The rules are technical. They are designed to prevent endless litigation. A prisoner who loses on direct appeal may not simply refile the same claims in a habeas petition. The prisoner must show that the state court decision was not merely wrong, but unreasonable. The standard is high. The gate is narrow.
PART ONE: HABEAS CORPUS FOR STATE PRISONERS – SECTION 2254
Chapter 1: The Statutory Framework
28 U.S.C. § 2254 is the primary vehicle for state prisoners to challenge their convictions in federal court. The statute provides: “A person in custody pursuant to the judgment of a State court may apply for a writ of habeas corpus on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”
Two things to note. First, the petitioner must be “in custody.” The writ is not available to a person who has completed his sentence. But “custody” includes parole, supervised release, and other restraints on liberty. A person who is out on bail but subject to further proceedings is in custody. A person who has completed a fine but served no prison time is not.
Second, the violation must be of federal law. A state prisoner may not challenge a violation of state law in federal habeas. The state court’s misinterpretation of its own criminal statute is not reviewable. The error must be of constitutional magnitude.
The statute applies only to state prisoners. Federal prisoners use a different statute: § 2255.
Chapter 2: Exhaustion of State Remedies
Section 2254(b)(1)(A) requires that a state prisoner exhaust all available state remedies before filing a federal habeas petition. The prisoner must give the state courts a full and fair opportunity to address his federal claims. The purpose is comity. The state courts should have the first chance to correct their own errors.
The exhaustion requirement is not jurisdictional. The state may waive it. But if the state raises exhaustion, the federal court must dismiss the petition without prejudice.
To exhaust a claim, the prisoner must present the claim to the state’s highest court. In most states, that means the state supreme court. The prisoner must present the claim in a procedurally proper manner. The prisoner must describe the federal constitutional basis for the claim. A general reference to the Constitution is not enough. The prisoner must cite the specific constitutional provision and explain how it was violated.
The prisoner need not exhaust claims that are clearly without merit. The prisoner need not exhaust claims that are procedurally barred in state court. If the state court would dismiss a claim as untimely or as waived, the claim is exhausted but procedurally defaulted.
Chapter 3: Procedural Default
A claim is procedurally defaulted if the prisoner failed to comply with a state procedural rule when presenting the claim in state court, and the state court dismissed the claim on that ground. The federal court will not review the claim on habeas unless the prisoner can show cause and prejudice.
The state procedural rule must be firmly established and regularly followed. A rule that is applied sporadically will not bar federal review. In Ford v. Georgia (1991), the Court held that a state rule requiring the defendant to object to racial discrimination in jury selection at the time of the trial was firmly established and regularly followed. The defendant’s failure to object resulted in procedural default.
Cause for the default requires showing that some external factor prevented the prisoner from complying with the state rule. The external factor must be something beyond the prisoner’s control. Examples: the state’s active interference, the unavailability of a legal basis for the claim, or ineffective assistance of counsel. Prejudice requires showing that the error at trial “worked to the petitioner’s actual and substantial disadvantage.”
In Coleman v. Thompson (1991), the Court held that attorney error in state post-conviction proceedings is not cause for a procedural default. The prisoner bears the risk of attorney error. The only exception is when the attorney’s error amounts to ineffective assistance of counsel. But the right to counsel in state post-conviction proceedings is not guaranteed. A prisoner cannot claim ineffective assistance of counsel in a proceeding where there is no right to counsel.
In Martinez v. Ryan (2012), the Court created a narrow exception. If a state requires a prisoner to raise a claim of ineffective assistance of trial counsel in state post-conviction proceedings rather than on direct appeal, and the prisoner’s post-conviction counsel was ineffective in failing to raise the claim, that ineffectiveness can serve as cause to excuse the default.
Chapter 4: The AEDPA Standard of Review
The most important provision of AEDPA is § 2254(d). It provides that a federal court may not grant habeas relief unless the state court’s adjudication:
- Was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or
- Was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
The standard is highly deferential to state courts. The federal court does not ask whether the state court’s decision was wrong. The federal court asks whether the decision was unreasonable. Reasonable minds can disagree. The state court may choose among several reasonable interpretations of Supreme Court precedent. As long as one reasonable interpretation supports the state court’s decision, habeas relief is not available.
“Contrary to” clearly established federal law. A state court decision is contrary to Supreme Court precedent if it applies a rule that contradicts the governing law set forth in the Court’s cases, or if it reaches a different result on materially indistinguishable facts.
In Williams v. Taylor (2000), the Court held that a state court decision that failed to apply the Strickland standard for ineffective assistance of counsel was contrary to clearly established federal law. The state court had applied a different standard. That was error.
“Unreasonable application” of clearly established federal law. A state court decision unreasonably applies Supreme Court precedent if it identifies the correct legal rule but applies it unreasonably to the facts of the case. The application must be “objectively unreasonable,” not merely incorrect.
In Harrington v. Richter (2011), the Court emphasized that “even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” The burden is on the prisoner to show that “there was no reasonable basis” for the state court’s decision. If the state court could have reasonably denied the claim, the federal court must deny habeas relief.
“Unreasonable determination of the facts.” Section 2254(d)(2) permits habeas relief if the state court’s factual findings are unreasonable. The state court’s factual findings are presumed correct. The prisoner must rebut that presumption by clear and convincing evidence. Section 2254(e)(1).
A factual determination is unreasonable if no reasonable factfinder would have made the finding. In Miller‑El v. Cockrell (2003), the Court held that the state court’s determination that the prosecution’s peremptory strikes were not racially motivated was unreasonable in light of the statistical evidence. The prosecution had struck 10 of 11 Black jurors. The trial record showed that the prosecution’s stated reasons were pretextual.
Chapter 5: The Role of the State Court’s Reasoning
AEDPA requires the federal court to review the “state court’s adjudication.” But what if the state court issued a summary denial with no reasoning? The federal court must look to the record. If the state court denied the claim without explanation, the federal court must determine whether the state court could have reasonably denied the claim based on the record.
In Harrington v. Richter (2011), the California Supreme Court denied a habeas petition without a written opinion. The federal district court granted relief, finding that the state court had unreasonably applied Strickland. The Supreme Court reversed. When the state court gives no reasons, the federal court must determine whether “fairminded jurists could disagree” on the correctness of the state court’s decision. If reasonable jurists could disagree, the state court’s decision is not unreasonable.
Chapter 6: Factual Development in Federal Court
Section 2254(e)(2) limits the ability of a state prisoner to develop new facts in federal court. If the prisoner failed to develop the factual basis for a claim in state court, the federal court may not hold an evidentiary hearing unless the prisoner shows:
- The claim relies on a new rule of constitutional law made retroactive by the Supreme Court; or
- The factual predicate could not have been discovered through due diligence; and
- The facts establish by clear and convincing evidence that no reasonable factfinder would have convicted the petitioner.
The provision is strict. A prisoner who sleeps on his rights in state court cannot wake up in federal court and demand a new hearing.
Chapter 7: The Successive Petition Bar
Section 2244(b) provides that a state prisoner may not file a second or successive habeas petition without authorization from the court of appeals. The procedure is covered in Part Three.
PART TWO: HABEAS CORPUS FOR FEDERAL PRISONERS – SECTION 2255
Chapter 8: The Statutory Framework
28 U.S.C. § 2255 provides that a federal prisoner may move to vacate, set aside, or correct a sentence if:
- The sentence was imposed in violation of the Constitution or laws of the United States;
- The court lacked jurisdiction;
- The sentence exceeded the maximum authorized by law; or
- The sentence is otherwise subject to collateral attack.
The motion must be filed in the district court where the prisoner was convicted. The prisoner is not required to exhaust administrative remedies. The motion is a substitute for habeas corpus. Section 2255(e) provides that a federal prisoner may not file a traditional habeas petition under § 2241 unless the § 2255 remedy is inadequate or ineffective.
The § 2255 remedy is inadequate or ineffective only in rare circumstances. In Bousley v. United States (1998), the Court held that the remedy is not inadequate simply because the prisoner is procedurally barred from raising a claim. The prisoner must show that the claim is based on a new rule of constitutional law made retroactive by the Supreme Court, or that the claim is based on new evidence that could not have been discovered earlier.
Chapter 9: The “Inadequate or Ineffective” Exception
The savings clause of § 2255(e) allows a federal prisoner to file a traditional habeas petition under § 2241 if § 2255 is “inadequate or ineffective to test the legality of his detention.” The clause is narrow.
In In re Dorsainvil (1997), the Third Circuit held that the savings clause applies when a prisoner is convicted of a crime that is subsequently deemed not to be a crime. The prisoner had been convicted of using a firearm in connection with a drug trafficking crime. The Supreme Court later held that the statute did not apply to the prisoner’s conduct. Because the prisoner had already filed a § 2255 motion, he could not file another. The court held that § 2255 was inadequate and allowed the prisoner to file under § 2241.
Most circuits follow the Dorsainvil rule. The savings clause is not a general invitation to relitigate claims. It is reserved for cases of actual innocence.
Chapter 10: Timing and Limitations
Section 2255(f) provides a one-year statute of limitations. The time runs from the latest of:
- The date on which the judgment of conviction becomes final;
- The date on which any government‑created impediment to filing is removed;
- The date on which the Supreme Court recognizes a new right made retroactive;
- The date on which the facts supporting the claim could have been discovered through due diligence.
The one-year period is strictly enforced. A prisoner who files one day late is barred. The Court has held that the limitations period is subject to equitable tolling in rare circumstances. In Holland v. Florida (2010), the Court held that a prisoner may be entitled to equitable tolling if he shows that he pursued his rights diligently and that some extraordinary circumstance prevented timely filing.
Chapter 11: Second or Successive Motions
Section 2255(h) provides that a second or successive § 2255 motion must be certified by the court of appeals. The prisoner may file a second motion only if:
- The claim is based on a new rule of constitutional law that the Supreme Court has made retroactive; or
- The claim is based on new evidence that establishes by clear and convincing evidence that no reasonable factfinder would have convicted the prisoner.
The procedure is the same as for state prisoners under § 2244(b). The prisoner must apply to the court of appeals for permission to file. The court of appeals must deny the application unless the prisoner makes a prima facie showing that the claim meets the statutory requirements.
PART THREE: SUCCESSIVE PETITIONS
Chapter 12: The Statutory Bar
Section 2244(b) provides that a state prisoner may not file a second or successive habeas petition without authorization from the court of appeals. The same rule applies to federal prisoners under § 2255(h).
The bar applies to any petition that challenges the same judgment as a prior petition. A prisoner who files a petition, loses, and then files another petition challenging the same conviction is filing a successive petition. The prisoner must seek permission from the court of appeals before filing.
The bar does not apply to a petition that challenges a different judgment. A prisoner who is serving multiple sentences may file a petition challenging one sentence, lose, and then file a second petition challenging a different sentence. The second petition is not successive.
Chapter 13: Procedure for Authorization
The prisoner must file an application in the court of appeals for permission to file a second or successive petition. The application must state the proposed claim. The application must explain why the claim meets the statutory requirements.
The court of appeals may deny the application without briefing. The court of appeals may grant the application if the prisoner makes a prima facie showing that the claim meets the statutory requirements. The showing is prima facie, not conclusive. The district court will make the final determination.
If the court of appeals denies the application, the prisoner may not appeal. The denial is not reviewable by the Supreme Court.
Chapter 14: The Two Gateways
For state prisoners, § 2244(b)(2) provides two gateways for a successive petition.
First, the prisoner may bring a successive petition if the claim relies on a new rule of constitutional law that the Supreme Court made retroactive. The rule must be new. The Supreme Court must have made it retroactive. The prisoner must have had no prior opportunity to raise the claim.
Second, the prisoner may bring a successive petition if the claim relies on new evidence that establishes that no reasonable factfinder would have convicted the prisoner. The evidence must be newly discovered. The prisoner must have been unable to discover it earlier through due diligence. The evidence must be strong enough to establish actual innocence.
The same two gateways apply to federal prisoners under § 2255(h).
Chapter 15: Abuse of the Writ
Before AEDPA, the doctrine of abuse of the writ prevented prisoners from raising claims in a successive petition that could have been raised in the first petition. The prisoner had to show cause and prejudice for failing to raise the claim earlier.
AEDPA codified the abuse of the writ doctrine in § 2244(b). The statutory standard is stricter than the pre‑AEDPA standard. The prisoner may not raise a claim in a successive petition unless the claim meets one of the two gateways, regardless of the cause for the earlier omission.
PART FOUR: THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996 (AEDPA)
Chapter 16: Overview
AEDPA was enacted in response to the 1993 bombing of the World Trade Center and the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City. The Act was designed to speed up the appeals process and to limit the availability of habeas corpus.
AEDPA made sweeping changes to habeas law. It imposed a one-year statute of limitations. It required prisoners to exhaust all claims in state court before coming to federal court. It introduced the deferential standard of review in § 2254(d). It restricted successive petitions. It limited evidentiary hearings.
The constitutionality of AEDPA has been challenged. The Court has upheld it. In Felker v. Turpin (1996), the Court held that AEDPA does not violate the Suspension Clause. The Act restricts the availability of habeas corpus, but it does not suspend the writ entirely. A prisoner may still obtain relief in appropriate cases.
Chapter 17: The One-Year Statute of Limitations
Section 2244(d)(1) provides a one-year statute of limitations for state prisoners. The time runs from the latest of:
- The date on which the state court judgment becomes final.
- The date on which any state-created impediment to filing is removed.
- The date on which the Supreme Court recognizes a new right made retroactive.
- The date on which the factual predicate for the claim could have been discovered through due diligence.
For most prisoners, the limitations period runs from the date the judgment becomes final. The judgment becomes final when the time for direct appeal expires. If the prisoner appeals to the state supreme court, the judgment becomes final when the state supreme court issues its decision and the time for certiorari expires.
The limitations period is tolled during the time that a properly filed state post-conviction petition is pending. Section 2244(d)(2). The petition must be properly filed under state law. If the state court dismisses the petition as untimely, the petition is not properly filed. The limitations period is not tolled.
In Pace v. DiGuglielmo (2005), the Court held that a state post-conviction petition that is dismissed as untimely is not “properly filed.” The limitations period continues to run.
Chapter 18: The Exhaustion Requirement
Section 2254(b)(1)(A) requires exhaustion. The prisoner must give the state courts a full and fair opportunity to address his federal claims. The exhaustion requirement is not jurisdictional. The state may waive it. But if the state invokes exhaustion, the federal court must dismiss the petition without prejudice.
The prisoner need not present the claim to the state courts in a particular form. The claim must be “fairly presented.” The prisoner must describe the facts and the legal theory. The state court must have had an opportunity to apply the relevant constitutional standard.
A claim is not exhausted if the prisoner presents the claim only on direct appeal but does not appeal the denial to the state supreme court. The prisoner must give the state supreme court a fair opportunity to review the claim.
Chapter 19: The Deferential Standard of Review
Section 2254(d) is the heart of AEDPA. The section has been described in Chapter 4. The key points bear repeating.
The federal court may not grant relief unless the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court.” The state court is not required to follow the decisions of the lower federal courts. Only Supreme Court precedent counts.
The state court’s factual findings are presumed correct. The prisoner must rebut that presumption by clear and convincing evidence. Section 2254(e)(1). The presumption applies to findings of fact made by the state trial court and by the state appellate court.
In Woodford v. Visciotti (2002), the Court held that the state court’s decision must be “objectively unreasonable,” not merely incorrect. The federal court may not grant relief simply because it disagrees with the state court’s decision. The state court’s decision must be so lacking in justification that there is no reasonable basis for it.
Chapter 20: The Retroactivity of New Rules
A prisoner may not rely on a new rule of constitutional law in a habeas petition unless the rule is made retroactive by the Supreme Court. The rule in Teague v. Lane (1989) applies. A new rule is retroactive only if it is a “watershed rule of criminal procedure” that implicates the fundamental fairness of the trial, or if the rule places certain conduct beyond the power of the state to criminalize.
Most new rules are not retroactive. The Court has applied the Teague rule to habeas cases under AEDPA. In Tyler v. Cain (2001), the Court held that a rule is made retroactive only if the Supreme Court expressly states that it applies retroactively.
Chapter 21: The Actual Innocence Exception
The actual innocence exception is not in the statute. The Court has recognized it as a constitutional requirement. In Schlup v. Delo (1995), the Court held that a prisoner who can show that a constitutional error likely led to the conviction of an innocent person may obtain habeas relief even if the claim is procedurally defaulted.
The standard is high. The prisoner must show that “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” The evidence must be new. It must be reliable. It must be compelling.
The actual innocence exception applies only to the procedural bars. It does not apply to the statute of limitations. In McQuiggin v. Perkins (2013), the Court held that a showing of actual innocence may overcome the one-year limitations period, but such cases are “exceedingly rare.”
APPENDIX 1: GLOSSARY
Actual innocence – An exception to procedural default that allows a prisoner to obtain habeas relief despite a failure to raise a claim in state court. The prisoner must show that it is more likely than not that no reasonable juror would have convicted him in light of new evidence.
AEDPA – The Antiterrorism and Effective Death Penalty Act of 1996. Federal legislation that restricted habeas corpus relief for state prisoners.
Cause and prejudice – The standard for excusing a procedural default. The prisoner must show an external factor that prevented compliance with the state rule (cause) and that the error at trial worked to the prisoner’s actual and substantial disadvantage (prejudice).
Clear and convincing evidence – The standard of proof for rebutting the presumption of correctness of state court factual findings under § 2254(e)(1).
Contrary to clearly established federal law – One of the two grounds for relief under § 2254(d)(1). A state court decision is contrary to Supreme Court precedent if it applies a rule that contradicts the governing law or reaches a different result on materially indistinguishable facts.
Exhaustion – The requirement that a state prisoner must give the state courts a full and fair opportunity to address federal claims before filing a habeas petition in federal court.
Ineffective assistance of counsel – A claim that the prisoner’s lawyer performed below an objective standard of reasonableness and that the performance prejudiced the defense. The standard is Strickland v. Washington.
Inadequate or ineffective – The standard for invoking the savings clause of § 2255(e). A federal prisoner may file a traditional habeas petition under § 2241 if the § 2255 remedy is inadequate or ineffective to test the legality of the detention.
Objectively unreasonable – The standard for relief under § 2254(d)(1). The state court’s application of Supreme Court precedent must be not merely incorrect but objectively unreasonable.
Prejudice – See cause and prejudice.
Procedural default – The failure to comply with a state procedural rule that results in the loss of the claim in federal court. A procedurally defaulted claim may be reviewed only if the prisoner shows cause and prejudice or actual innocence.
Retroactivity – The question whether a new rule of constitutional law applies to cases that are already final on direct review. Under Teague v. Lane, a new rule applies retroactively only if it is a watershed rule of criminal procedure or places certain conduct beyond the power of the state to criminalize.
Savings clause – Section 2255(e). Allows a federal prisoner to file a traditional habeas petition under § 2241 if the § 2255 remedy is inadequate or ineffective.
Second or successive petition – A habeas petition filed after a prior petition challenging the same judgment. A prisoner must obtain authorization from the court of appeals before filing a second or successive petition.
Unreasonable application of clearly established federal law – One of the two grounds for relief under § 2254(d)(1). A state court decision unreasonably applies Supreme Court precedent if it identifies the correct legal rule but applies it unreasonably to the facts of the case.
Unreasonable determination of the facts – A ground for relief under § 2254(d)(2). The state court’s factual findings must be unreasonable in light of the evidence presented.
APPENDIX 2: SELECT BIBLIOGRAPHY
Supreme Court Cases
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996).
Bousley v. United States, 523 U.S. 614 (1998).
Bowles v. Russell, 551 U.S. 205 (2007).
Coleman v. Thompson, 501 U.S. 722 (1991).
Felker v. Turpin, 518 U.S. 651 (1996).
Harrington v. Richter, 562 U.S. 86 (2011).
Holland v. Florida, 560 U.S. 631 (2010).
In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997).
Martinez v. Ryan, 566 U.S. 1 (2012).
McQuiggin v. Perkins, 569 U.S. 383 (2013).
Miller‑El v. Cockrell, 537 U.S. 322 (2003).
Pace v. DiGuglielmo, 544 U.S. 408 (2005).
Schlup v. Delo, 513 U.S. 298 (1995).
Teague v. Lane, 489 U.S. 288 (1989).
Tyler v. Cain, 533 U.S. 656 (2001).
Williams v. Taylor, 529 U.S. 362 (2000).
Woodford v. Visciotti, 537 U.S. 19 (2002).
Books and Treatises
Chemerinsky, Erwin. Federal Jurisdiction. 8th ed. Wolters Kluwer, 2021 (Chapter 12 – Habeas Corpus).
Hertz, Randy, and James S. Liebman. Federal Habeas Corpus Practice and Procedure. 7th ed. LexisNexis, 2019.
King, Nancy J., and Joseph L. Hoffmann. Habeas for the Twenty‑First Century: Uses, Abuses, and the Future of the Great Writ. University of Chicago Press, 2011.
Liebman, James S. Habeas Corpus: A Legal Research Guide. William S. Hein, 2010.
Owen, David R. Federal Habeas Corpus in Criminal Cases. 2d ed. LexisNexis, 2018.
Yackle, Larry W. Federal Habeas Corpus. Foundation Press, 2003.
Law Review Articles
Friedman, Barry. “The Story of Habeas Corpus: From the Great Writ to the Great War.” University of Pennsylvania Law Review 156 (2008): 1515.
Hoffmann, Joseph L. “The Supreme Court’s New Procedural Habeas Corpus Jurisprudence.” University of Pennsylvania Law Review 158 (2010): 1369.
Klein, Susan R. “The Supreme Court and the New Habeas Corpus.” University of Michigan Journal of Law Reform 42 (2009): 1.
Liebman, James S. “An Overview of the New Habeas Corpus.” Columbia Law Review 99 (1999): 11.
Mello, Michael. “The New Habeas Corpus: A Tale of Two Cases.” University of Miami Law Review 53 (1999): 1.
Tigar, Michael E. “The Supreme Court and the Great Writ.” Texas Law Review 87 (2009): 1635.
Tushnet, Mark. “The New Habeas Corpus.” University of Richmond Law Review 43 (2009): 1.
Yackle, Larry W. “The New Habeas Corpus.” Alabama Law Review 58 (2007): 1019.
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