Post-Conviction Relief for Immigrants

 

While a complete discussion of federal habeas corpus is beyond the scope of this work,[77] state post-conviction counsel must understand the restrictions imposed under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), [78] including the new one-year statute of limitations.  The AEDPA applies only to the filing of a habeas corpus petition in United States District Court, and has no application to state habeas corpus proceedings.

 

            The AEDPA greatly restricts federal habeas corpus as a means of challenging federal or state convictions.[79]  It creates a new one-year statute of limitations,[80] provides a petition may be denied even though it contains an unexhausted claim, provides that the state shall not be deemed to have waived the exhaustion requirement except expressly through counsel,[81] and provides that the certificate of appealability necessary to appeal a district court’s denial of habeas relief must identify the specific issue(s) to be appealed.[82]

 

            AEDPA also restricts a federal court from granting an evidentiary habeas hearing under certain circumstances.[83]  It also imposes new limits on second or successive applications for federal habeas relief attacking state convictions.[84]

 

            AEDPA makes some parallel restrictions on federal habeas challenges to federal convictions under 28 U.S.C. § 2255.  It adds a requirement of obtaining a certificate of appealability before a district court denial of habeas can be appealed to the court of appeals.[85]  It creates a one-year statute of limitations from the date the judgment of conviction becomes final within which the federal motion must be filed.[86]  It greatly limits second or successive applications for the same or new claims.[87]  It extends the provisions for appointment of counsel under 18 U.S.C. § 3005A to federal habeas cases[88] and limits in camera applications for expert and investigation services by allowing discretionary denial.[89] 

[77] See generally J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure (2003); C.E.B., Appeals and Writs in Criminal Cases, Chapter 4 (3d ed. 2003); C.E.B., California Criminal Law: Procedure and Practice, Chapter 43 (7th ed. 2003); California Criminal Defense Practice § 102.11 (2003).

[78] Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (hereinafter AEDPA).

[79] See AEDPA § § 101-108.

[80] 28 U.S.C. § 2244(d)(1), as amended by AEDPA § 101.

[81] 28 U.S.C. § 2254(b)(3), as amended by AEDPA § 104.

[82] 28 U.S.C. § 2253(c)(1)(B), (C), (D); F.R.A.P. 22(b), as amended by AEDPA § 103.

[83] To grant a hearing, the district court must find the petitioner relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and establishes “by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”  28 U.S.C. § 2254(e), as amended by AEDPA § 104(4).

[84] 28 U.S.C. § 2244(b), as amended by AEDPA § 106(b).

[85] 28 U.S.C. § 2253(c)(1)(B)-(D), as amended by AEDPA § 102.

[86] This is usually 90 days after the date the decision of the United States Court of Appeals is rendered, when a petition for writ of certiorari would be due in the U.S. Supreme Court, giving in essence 15 months after the decision of the Court of Appeals within which to file the federal habeas petition in United States District Court.

[87] 28 U.S.C. § § 2244(a), 2255, as amended by AEDPA § 106(a).

[88] 28 U.S.C. § 2255, as amended by AEDPA § 105(2).

[89] 21 U.S.C. § 848(q)(9), as amended by AEDPA § 108.