For both state and federal habeas corpus actions, there are generally four requirements that must be met:

 

(1) The petition must be timely filed.

 

(2) The petitioner must be in actual or constructive custody.

           

(3) The petitioner must show that other remedies such as direct appeal are inadequate or were exhausted, or, if they were not exhausted, that special circumstances exist justifying the issuance of the writ.[73]

 

            An extraordinary writ may not be used to raise a claim that could have been raised on direct appeal.  If, however, new facts are presented in the writ proceeding that were not present in the record of the original conviction, the issue could not adequately have been raised on direct appeal because the necessary facts were not available.[74]  So long as fresh facts are presented, beyond those available in the original record of the judgment, no court should hold the writ barred by the rule against deliberately bypassing direct appeal.  Denial of an important constitutional right such as effective assistance of counsel is a claim that generally need not be raised on direct appeal because it normally involves facts outside the record of conviction.[75] 

 

(4)  The act of the court or government challenged by the petition must have constituted a fundamental constitutional or jurisdictional error.

 

            “Jurisdictional” errors supporting issuance of the writ have been found where the accusatory pleading or commitment was defective, material false evidence was introduced against the petitioner, the guilty plea was entered under a misapprehension of law, improprieties occurred regarding the granting or revoking of probation or parole, or the sentence imposed was unauthorized, excessive, or unconstitutional.[76]  For a selective survey of grounds attacking the validity of a conviction resting on a plea of guilty or no contest that can be raised in a habeas corpus petition, see Chapter 6, infra.

[73] For discussion of the requirement of exhaustion of state court remedies applicable to federal habeas corpus actions, see generally J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure, Chapter 23 (2003).  Exhaustion requires fairly presenting each constitutional claim to the state’s highest court, even if that procedure is one of discretionary review.  O’Sullivan v. Boerkel, 526 U.S. 838, 119 S.Ct. 1728 (1999).  A federal habeas corpus action that contains both exhausted and unexhausted claims, a so-called “mixed petition,” either must be dismissed without prejudice to allow for complete exhaustion, or petitioner must delete any unexhausted claims and proceed only with those properly presented to the state’s highest court.  Rose v. Lundy, 455 U.S. 509, 515 (1982).

[74] People v. Gallardo, 77 Cal.App.4th 971 (1999).

[75] People v. Gallardo, 77 Cal.App.4th 971 (1999); In re Lopez, 2 Cal.3d 141, 151, 84 Cal.Rptr. 361 (1970).

[76] For additional jurisdiction bases, see Erwin et al., California Criminal Defense Practice, supra, at § 102.2(2)(b).

POST CON RELIEF " FEDERAL " HABEAS CORPUS " AEDPA STATUTE OF LIMITATIONS DEFENSE " WAIVER BY GOVERNMENT
Wood v. Milyard, 132 S.Ct. 1826 (April 24, 2012) (state deliberately waived the statute of limitations defense, where it twice informed the district court that it would "not challenge, but [was] not conceding," the timeliness of a prisoner's federal petition for habeas corpus; courts of appeals, like district courts, have the authority--though not the obligation--to raise a forfeited timeliness defense on their own initiative in exceptional cases).

POST CON RELIEF"VEHICLES"FEDERAL"HABEAS CORPUS
Martinez v. Ryan, 132 S.Ct. 1309 (Mar. 20, 2012) (where state law requires a petitioner to raise a claim of ineffective assistance of trial counsel in an initial-review collateral proceeding, state procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective).

POST CON RELIEF " VEHICLES " FEDERAL " HABEAS CORPUS
Pinholster v. Cullen, ___U.S.___, 131 S.Ct. 1388, 1399 (2011) (on a federal habeas challenge to a state conviction, under the objectively unreasonable standard of review under 28 U.S.C. 2254(d), the district court may consider only those facts that were considered by the state court in rejecting the constitutional claim, even if the federal court holds an evidentiary hearing under 28 U.S.C. 2254(e) to consider new facts supporting the claim that had been raised in state court).

POST CON RELIEF - SUFFICIENCY OF PRESERVATION OF CONSTITUTIONAL CLAIM
Dye v. Hofbauer, ___ U.S. ___ (October 11, 2005) (denial of habeas corpus petition reversed where the Court of Appeals incorrectly ruled that prosecutorial misconduct claim was presented improperly).
http://laws.findlaw.com/us/000/04-8384.html

POST CON RELIEF - HABEAS - FEDERAL
Brown v. Payton, __ U.S. __ (March 22, 2005) (grant of habeas relief to defendant is reversed where Ninth Circuit's decision was contrary to the limits on federal habeas review imposed by the Antiterrorism and Effective Death Penalty Act).
http://laws.findlaw.com/us/000/03-1039.html

HABEAS CORPUS - FEDERAL - EXHAUSTION
Baldwin v. Reese, 124 S.Ct. 1347 (March 2, 2004) (ineffective assistance of counsel claim not "fairly presented" where petitioner did not complain that ineffective assistance violated federal law; state supreme courts not required to read lower appellate opinions before deciding whether to grant a hearing, courts should be able to rely exclusively on briefs to alert them to issues).      Use Note: The Court gave some guidance on presenting issues of federal law in state courts: "A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim 'federal.'" From this statement, it appears that the Court is indicating that a defendant can "federalize" an issue simply by making any reference to "federal law."

POST CON RELIEF - HABEAS - FEDERAL - REQUIREMENT OF EXHAUSTION OF FEDERAL CLAIM IN STATE COURT
Baldwin v. Reese, 124 S.Ct. 1347 (March 02, 2004) (prisoner seeking habeas failed to exhaust state remedies by failure to "fairly present" federal claim to state court).

Second Circuit

POST CON RELIEF - FEDERAL - HABEAS - CORAM - 2241 - 2255
Grullon v. Ashcroft, 374 F.3d 137 (2d Cir. June 30, 2004) (doctrine that second 2255 petitions may be considered motion to amend previous pending petition also applies to second 2241 petitions). See Ching v. United States, 298 F.3d 174 (2d Cir. 2002).

Sixth Circuit

POST-CONVICTION RELIEF " FEDERAL " HABEAS CORPUS " STANDING " PRESUMPTION OF LASTING COLLATERAL CONSEQUENCES
Pola v. United States, ___ F.3d ___, ___, 2015 WL 690312 (6th Cir. Feb. 19, 2015) (When a petitioner challenges the constitutionality of his conviction, [footnote omitted] we presume he will experience lasting collateral consequences. See Spencer, 523 U.S. at 12 (In the context of criminal conviction, the presumption of significant collateral consequences is likely to comport with reality.); Sibron v. New York, 392 U.S. 40, 55"57, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ([A] criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.). Accordingly, we may presume that Pola has satisfied the case-or-controversy requirement because he challenges the constitutionality of his criminal conviction and therefore continues to suffer the burdens of that conviction.); see Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (This means that, throughout the litigation, the [petitioner] must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision. Id. (internal quotation marks omitted); see also Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957) (holding that petitions for certiorari are allowed only where [the Court's] judgment will have some material effect.).

Lower Courts of Sixth Circuit

POST CON - TENNESSEE - CORAM NOBIS
State v. Vidales, 2005 Tenn. Crim. App. LEXIS 1100 (October 7, 2005) ("A writ of error coram nobis lies "for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial." T.C.A. 40-26-105; State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995).").

Ninth Circuit

POST CON RELIEF " HABEAS CORPUS " EXHAUSTION OF CLAIM
Kyzar v. Ryan, ___ F.3d ___, ___, 2015 WL 1061892 (9th Cir. Mar. 12, 2015) (habeas petitioners pro se filings before the Arizona trial court and the Arizona Court of Appeals fairly presented his sufficiency of the evidence claim, which was sufficient to exhaust his state remedies and avoid a procedural default: Although Kyzar did not cite In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), or Jackson for the proposition that the Due Process Clause of the Fourteenth Amendment protects him from being convicted unless the State proves every element of the charged offense beyond a reasonable doubt, the substance of Kyzar's claim was apparent from his attempt to articulate the legal elements for the crime of conviction and his explicit reference to due process. Indeed, Kyzar's citation to an Arizona Supreme Court case was entirely consistent with fair presentation of a Jackson claim, which necessarily turns on how crimes are defined under state law. [Citation omitted.] . . . Kyzar's pro se filing in the Arizona trial court plainly did enough to alert[ ] that court to the federal nature of [his] claim. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004).). The court stated: In order to fairly present an issue to a state court, a [habeas] petitioner must present the substance of his claim to the state courts, including a reference to a federal constitutional guarantee and a statement of facts that entitle the petitioner to relief. Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir.2013) (quoting Scott v. Schriro, 567 F.3d 573, 582 (9th Cir.2009)). [F]or the purposes of exhaustion, pro se petitions are held to a more lenient standard than counseled petitions. Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir.2003) (citing Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir.2003) (en banc)); see also Slack v. McDaniel, 529 U.S. 473, 487, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ([T]he complete exhaustion rule is not to trap the unwary pro se prisoner. (quoting Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982))). (Id. at ___.)

POST CON RELIEF " FEDERAL " HABEAS CORPUS " SUCCESSIVE PETITION BAR
Cross v. Sisto, 676 F.3d 1172 (9th Cir. Apr. 2012) (district court did not correctly apply California law in determining that the California Supreme Court's denial of the appellant's state petition with citation to Ex parte Swain, 209 P.2d 793 (Cal. 1949), and People v. Duvall, 886 P.2d 1252 (Cal. 1995), necessarily meant that the appellant's petition before the California Supreme Court was untimely).

POST CON RELIEF"FEDERAL"HABEAS CORPUS"SUCCESSIVE PETITION BAR"APPLICATION FOR EXCEMPTION
Pizzuto v. Blades, 673 F.3d 1003 (9th Cir. Mar. 8, 2012) (A prisoner's motion to file a successive petition for writ of habeas corpus is denied, where a claim of judicial bias had been dismissed with prejudice in an earlier petition; the petitioner did not show by clear and convincing evidence that no reasonable factfinder would have found him guilty; and the petitioner could not show actual innocence of the aggravating factors used to sentence him to death).

POST CON RELIEF " FEDERAL VEHICLES " HABEAS " SUCCESSIVE MOTION
United States v. Buenrostro, ___ F.3d ___, 2011 WL 1023696 (9th Cir. Mar. 23, 2011) (district court properly denied a Rule 60(b) motion after an unsuccessful section 2255 motion because district court lacked jurisdiction as the Rule 60(b) motion was, in substance a second, barred section successive 2255 application).

POST CON RELIEF - FEDERAL - HABEAS - MOTION TO AMEND PENDING PETITION AVOIDS DISMISSAL FOR SUCCESSIVE PETITION
Woods v. Carey, 525 F.3d 886 (9th Cir. May 12, 2008) (prior decision dismissing habeas petition as barred as successive under 28 U.S.C. section 2244(b) is vacated and remanded with instructions that the district court construe petitioner's pro se petition as a motion to amend the habeas petition that was still pending before the district court at the time this new petition was filed).

POST CON RELIEF - HABEAS - SUCCESSIVE HABEAS
Carrington v. United States, ___ F.3d ___, 2007 WL 2597326 (9th Cir. Sept. 11, 2007) (sentences for drug offenses are affirmed where: 1) the statutory limits on second or successive habeas petitions do not create a gap in the post-conviction landscape that can be filled with common law writs; 2) Booker does not apply to cases on collateral review; 3) Booker did not lower sentencing ranges, nor was Booker an action "by the Sentencing Commission", therefore 18 U.S.C. section 3582(c)(2) does not apply; and 4) petitioners did not present the exceptional circumstances and equities necessary for a grant of extraordinary relief).

POST CON RELIEF - HABEAS CORPUS - FEDERAL - CONSTITUTIONAL CHALLENGE TO AEDPA REJECTED
Crater v. Galaza, 491 F.3d 1119 (9th Cir. July 9, 2007) (Anti-Terrorism and Effect Death Penalty Act is not unconstitutional restriction on habeas relief: "the Act does not preclude this Court from entertaining an application for habeas corpus relief, although it does affect the standards governing the granting of such relief.").

POST CON RELIEF - HABEAS CORPUS - FEDERAL - BURDEN TO DEMONSTRATE STATE PROCEDURAL RULE IS NOW ADEQUATE
King v. LaMarque, ___ F.3d ___ (9th Cir. Sept. 20, 2006) (after federal court has found a state procedural rule inadequate (here the timeliness rule of In re Clark (1993) 855 P.2d 729), burden falls on the government to show that the rule is now adequate). http://caselaw.lp.findlaw.com/data2/circs/9th/0515757pv2.pdf

POST CON RELIEF - FEDERAL - SUCCESSIVE PETITION DISMISSED - INSUFFICIENT SHOWING OF ACTUAL INNOCENCE
Stephens v. Herrera, ___ F.3d ___(9th Cir. Sept. 13, 2006) (habeas petition dismissed because showing of actual innocence was insufficient within the meaning of Bousley v. United States, 523 U.S. 614, 623 (1998) to overcome the successive-petition bar of 28 U.S.C. 2255). http://caselaw.lp.findlaw.com/data2/circs/9th/0456232p.pdf

HABEAS CORPUS - FEDERAL - MIXED PETITION
Jackson v. Roe, __F.3d __ (9th Cir. Sept. 23, 2005) (federal court must stay mixed petition while petitioner exhausts unexhausted claims pending before California Supreme Court), following Rhines v. Weber, 125 S.Ct. 1528 (2005).

POST-CON NATIONAL - HABEAS CORPUS - FEDERAL - SHOWING REQUIRED FOR HEARING
Earp v. Stokes, 423 F.3d 1024 (9th Cir. Sept. 8, 2005) (Petitioner alleged facts warranting evidentiary hearing on claim that prosecutor committed prejudicial misconduct by dissuading a witness from testifying, and on claim that defense counsel was ineffective in failing to sufficiently investigate mitigation evidence. Petitioner presented colorable claims and had never received evidentiary hearing on them in state court.)

HABEAS CORPUS - FEDERAL - DISMISSING MIXED PETITION
Jefferson v. Budge, 419 F.3d 1013 (9th Cir. Aug. 16, 2005) (district court erred in dismissing dismiss mixed habeas petition without first offering petitioner the options provided in Rose v. Lundy, 455 U.S. 509 (1982) (choice of exhausting his unexhausted claims by returning to state court, or abandoning those claims and pursuing the remaining exhausted claims in federal court)).

HABEAS CORPUS - FEDERAL - EXHAUSTION FAILURE
Castillo v. McFadden, __ F.3d __, 2005 WL 427893 (9th Cir. Feb. 24, 2005) (petitioner failed to exhaust state remedies because in his brief to the state appellate court he did not apprise that court that he was making a federal constitutional claim; citation to either a federal or state case involving the legal standard for a federal constitutional violation would have been sufficient to establish exhaustion [Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003)]; general claim of denial of "fair trial," without citation to federal or federally-based authority is not sufficient). Ed. Note: this is a case where the state judge admitted a videotape of defendants interrogation and later in the trial said, "In my 19 years on the trial bench, I have never ever admitted a tape like that in evidence. I m really concerned about it." The court then opined that its decision would "never hold up if there is any appeal, never in a million years." Note powerful Hawkins, J. dissent: "Castillo consistently complained of the use of the videotape in evidence and the correspondingly obvious prejudicial impact. And make no mistake about it, the tape is powerful evidence; so potent that all the curative instructions in the world could not erase its impact. I would, therefore, reach the merits and grant the petition." I fear that this is yet another example of the Ninth Circuit avoiding relief to deserving defendants based on hyper-technical legal reasoning. I hope this is not a sign of things to come. Use Note: the majoritys action in ducking the issue does not excuse state trial counsels failure to properly brief it. Its not that hard to throw in some federal constitutional cases, folks!

HABEAS CORPUS - FEDERAL - NO EXHAUSTION
Galvan v. Alaska Department of Corrections, 397 F.3d 1198 (9th Cir. Feb. 9th 2005) (petitioner failed to fairly present federal ineffective assistance of counsel claim before highest state court when her petition to the Alaska Supreme Court made only passing mention (in distinguishing a state case) of the Sixth Amendment and of federal cases; "Briefing a case is not like writing a poem, where the message may be conveyed entirely through allusions and connotations. Poets may use ambiguity, but lawyers use clarity. If a party wants a state court to decide whether she was deprived of a federal constitutional right, she has to say so.").
http://caselaw.lp.findlaw.com/data2/circs/9th/0335083p.pdf

HABEAS CORPUS - FEDERAL - FAIR PRESENTATION
Casey v. Moore, __ F.3d __ (9th Cir. Oct. 12, 2004) (sixth amendment hearsay claims not "fairly presented" to state court since defendant cited only state constitution; "A petitioner must present a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state." Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, 23.3b (4th ed. 1998)).

POST CON RELIEF - FEDERAL - SUCCESSIVE HABEAS
Hamilton v. Newland, 374 F.3d 822 (9th Cir. July 01, 2004) (district court erred in treating defendants motion as successive habeas petition rather than FRCP 60(b)(6) motion).
http://caselaw.lp.findlaw.com/data2/circs/9th/0215972p.pdf

HABEAS CORPUS -- FEDERAL -- INSUFFICIENT FEDERALIZATION
Castillo v. McFadden, 370 F.3d 882 (9th Cir. June 1, 2004) (defendant must give state notice that he is bringing federal constitutional claims by referring in appellate briefs to specific provisions of the federal constitution or citing to federal law; raising federal arguments in trial motions insufficient). See Baldwin v. Reese, 125 S.Ct. 1347, 1350 (2004).      The court stated that the concluding sentence that stated petitioner's rights under the Fifth, Sixth and Fourteenth Amendments were violated was a "conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory, was the first time Castillo's brief used the words 'due process' or 'Fifth Amendment.'" Note thoughtful and powerful dissent by Judge Hawkins, pointing out that petitioner did cite federal cases in his argument.

HABEAS CORPUS - FEDERAL - SECOND HABEAS NOT SUCCESSIVE
Johnson v. United States, 362 F.3d 636 (9th Cir. April 2, 2004) (second petition brought to challenge sentence not barred under "successive rule" by first habeas petition, brought to challenge counsel's failure to file notice of appeal).

Eleventh Circuit

POST CON RELIEF " FEDERAL " PETITIONER FAILED TO USE 2255 OR DEMONSTRATE THAT 2255 WAS UNADEQUATE
Zelaya v. Secretary, Florida Dept. of Corrections, ___ F.3d ___, 2015 WL 4998431 (11th Cir. Aug. 24, 2015) (district court committed no error in declining to sua sponte recharacterize pro se inmate's 2241 habeas petition as 2255 motion to vacate, over his objection; and inmate failed to establish that 2255 motion to vacate was inadequate or ineffective to test legality of his detention).