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.

POST CON RELIEF " VEHICLES " FEDERAL " SUPREME COURT ASSUMES WITHOUT DECIDING THAT CHAIDEZ APPLIES TO FEDERAL HABEAS CORPUS AS WELL AS FEDERAL CORAM NOBIS
Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013) Chaidez and the Government agree that nothing in this case turns on the difference between a coram nobis petition and a habeas petition, and we assume without deciding that they are correct.).

POST CON RELIEF " VEHICLES " FEDERAL " SUPREME COURT ASSUMES WITHOUT DECIDING THAT CHAIDEZ APPLIES TO FEDERAL HABEAS CORPUS AS WELL AS FEDERAL CORAM NOBIS
Chaidez v. United States, ___ U.S.___, ___, n.1, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013) Chaidez and the Government agree that nothing in this case turns on the difference between a coram nobis petition and a habeas petition, and we assume without deciding that they are correct.).

POST CON RELIEF - HABEAS - FEDERAL - DEFERENCE DUE TO STATE COURT
Bell v. Cone, 125 S.Ct. 847, 73 USLW 3428 (January 24, 2005) (a grant of a writ of habeas corpus was improper where it failed to accord to the state court the deference required by 28 U.S.C. 2254(d)).
http://laws.lp.findlaw.com/us/000/04394.html

Second Circuit

POST CON RELIEF"VEHICLES"HABEAS CORPUS"CUSTODY REQUIREMENT"FEDERAL SUPERVISED RELEASE DOES NOT TERMINATE ON DEPORTATION
United States v. Roccisano, 673 F.3d 153 (2d Cir. Mar. 14, 2012) (a federal term of supervised release does not terminate upon deportation, so a later illegal-reentry sentence was not improperly increased by assessing a two-point criminal history enhancement for having committed the crime while on supervised release).

JUDICIAL REVIEW - HABEAS - ABUSE OF THE WRIT
Esposito v. Ashcroft, ___ F.3d ___, 2004 WL 2966589 (2d Cir. Dec. 23, 2004) (affirming district court order dismissing second habeas petition, which sought to relitigate issues rejected in first action, where petitioner had failed to appeal the initial habeas denial, on grounds of "abuse of the writ").

Lower Courts of Second Circuit

POST CON RELIEF - FEDERAL - INEFFECTIVE COUNSEL - NO BAR FOR FAILURE TO PURSUE IAC CLAIM ON DIRECT APPEAL
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) ("A motion under 2255 is not a substitute for an appeal." United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998). In 2255 proceedings, the Supreme Court has recognized the rule of procedural default or "exhaustion" of federal remedies. Reed v. Farley, 512 U.S. 339, 354, 114 S. Ct. 2291, 129 L. Ed. 2d 277 (1994). Generally, the rule bars the presentation of a claim through a writ of habeas corpus where the petitioner failed properly to raise the claim on direct review. Id. If the claim has not been presented on direct review, the procedural bar may be waived only if the petitioner establishes (1) "cause" for the waiver and shows "actual prejudice" from the alleged violations or (2) "actual innocence." Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 1611 (1998); Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998); see also Smith v. Murray, 477 U.S. 527, 537, 106 S. Ct. 2661, 2667-68, 91 L. Ed.2d 434 (1986); Murray v. Carrier, 477 U.S. 478, 485, 106 S. Ct. 2639, 2643-44, 91 L. Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 2506-07, 53 L. Ed.2d 594 (1977); Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993). Further, the traditional procedural default rule generally does not apply to ineffective assistance of counsel claims. Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690; 155 L. Ed. 2d 714 (2003). In Massaro, the Supreme Court held that ineffective assistance claims are appropriately litigated in the context of a collateral challenge in the district court and not on direct appeal. Id. at 504-05; accord United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9, 124 S.Ct. 2333, 159 L. Ed. 2d 157 (2004). This is so because the trial record is not developed precisely for the object of litigating the ineffective assistance claim, but instead is devoted to issues of guilt or lack of guilt. Massaro, 538 U.S. at 504-05, 123 S. Ct. 1690; 155 L. Ed. 2d 714.").

POST CON - FEDERAL - GROUNDS - INVOLUNTARY PLEA CLAIM NOT BARRED BY FAILURE TO RAISE ON DIRECT APPEAL
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences not barred by failure to raise issues on direct appeal).

POST CON - FEDERAL - CAUSE AND PREJUDICE FOR NOT RAISING GROUNDS ON DIRECT APPEAL GROUNDS
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences not barred by failure to raise issues on direct appeal); Mandarino v. Ashcroft, 290 F. Supp.2d 253, 260-61 (D. Conn. 2002) (ignorance of deportation consequences of the defendant's sentence was "cause" for the defendant's failure to appeal the sentence); United States v. Singh, 305 F. Supp.2d 109, 111 (D.D.C. 2004) (permitting a procedurally barred 2255 claim regarding the voluntariness of a guilty plea made when the petitioner was not properly informed that deportation was absolute).

Fifth Circuit

POST CON RELIEF " VEHICLES " FEDERAL HABEAS CORPUS " DOUBLE DEFERENCE DUE TO COUNSEL
Burt v. Titlow, ___U.S. ___ (Nov. 5, 2013) (Sixth Circuit failed to accord the "double deference" AEDPA mandates federal habeas judges grant to (1) the state court's determination and (2) the presumption of competence accorded counsel); but see ___ (Sotomayor, J., concurring) (stressing the limited scope of the Court's ruling; although defendant possesses "the ultimate authority" to determine her plea, a lawyer must abide by client's decision only after having provided the client with competent and fully informed advice).

Ninth Circuit

HABEAS CORPUS - FEDERAL - SECOND HABEAS NOT SUCCESSIVE
Johnson v. United States, __ F.3d __ (9th Cir. April 2, 2004) (First habeas petition, brought only to challenge trial counsel failure to file notice of appeal, did not bar second "successive" petition challenging petitioner's sentence; successful 2255 petition, utilized to obtain out-of-time appeal, does not render subsequent collateral challenge "second" or "successive" under AEDPA).
http://caselaw.lp.findlaw.com/data2/circs/9th/0116947p.pdf

Other

POST-CON - HABEAS CORPUS - ACTUAL INNOCENCE
House v. Bell, __ F.3d __ (Jun. 12, 2006) (defendant successfully made the stringent showing required by the actual-innocence exception to procedural default rules). http://laws.lp.findlaw.com/us/000/048990.html