OBTAINING FEDERAL HABEAS CORPUS
REVIEW OF STATE CONVICTIONS IN THE FIFTH CIRCUIT

by Timothy Crooks
Assistant Federal Public Defender and Appellate Chief
Federal Public Defender for the Northern District of Texas
600 Texas Street, Suite 100
Fort Worth, Texas 76102
(817) 334-2753

INTRODUCTION
The writ of habeas corpus, justly denominated "the Great Writ," has been an important part of our American history. The Constitution 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."1 Historically, the Great Writ has been a fundamental device for vindicating federal constitutional rights, and has, on more than one occasion, literally saved a defendant's life.2 Although the scope of federal habeas corpus has been diminished since its heyday in the days of the Warren Court, it still remains a potent tool that you can use for your clients. This outline is designed to provide you with a quick reference guide for pursuing federal habeas review of Texas state convictions, with particular citation to the United States Supreme Court and Fifth Circuit case law which will be used to decide the cases.

THE BASICS
Presently, the right to federal habeas corpus review of state convictions is codified at 28 U.S.C. Sec. 2241, which is the general grant of power to federal courts to issue writs of habeas corpus, and, more specifically, at 28 U.S.C. Sec. 2254. Where a person is held in custody pursuant to the judgment of a state court, federal habeas corpus review of his3 case is limited to claims "that he is in custody in violation of the Constitution or laws or treaties of the United States."4 Thus, state law claims are not cognizable in federal habeas corpus.5
A petition for a writ of habeas corpus on a state conviction may be filed in either the federal district in which a defendant is in custody, or the federal district in which the state court of conviction is located.6 A habeas petitioner has no constitutional right to appointed counsel to pursue Sec. 2254 relief.7 However, if an evidentiary hearing is held, the petitioner has a statutory right to the appointment of counsel.8 Appointment of counsel is likewise required if necessary for the petitioner's "effective utilization of discovery procedures."9 Otherwise, the court may, in its discretion, appoint counsel for an indigent petitioner at any stage of the habeas proceeding if "the interests of justice so require."10
There is also a statutory right to the appointment of counsel in capital cases.11 This right to counsel under 848(q)(4)(B) "adheres prior to the filing of a formal, legally sufficient habeas corpus petition" and is invoked upon a capital prisoner's motion for appointment of counsel.12 However, the Fifth Circuit has held that counsel appointed pursuant to 848(q)(4)(B) are not authorized to engage in activities relative to the exhaustion of unexhausted claims in state court.13 Likewise, although a capital petitioner has the right to court-paid investigative, expert, or other services reasonably necessary to his case under 21 U.S.C. 848(q)(9), the Fifth Circuit has held that these are not available with respect to unexhausted claims.14

BEFORE YOU GET STARTED ....
Before you file a federal habeas petition, you should be aware that there are a number of procedural hurdles you will have to cross before the federal court will even consider the merits of the claims in your petition:

"In custody" requirement
First, as mentioned above, the petitioner must be "in custody" as a result of the state court judgment.15 Custody includes not only physical imprisonment, but also any significant restraints on personal liberty as well.16 A person released on parole is deemed to be "in custody" for purposes of federal habeas corpus.17
A habeas petitioner's release from custody subsequently to the filing of his petition will not moot the challenge to his conviction if he will still be subject to adverse collateral consequences from the conviction, such as inability to vote or to serve as a juror.18 However, the mere, unrealized possibility of the future use of the conviction for enhancement of a future sentence is not sufficient to constitute "custody."19
Where a petitioner is serving consecutive sentences, he is considered to be "in custody" as to a consecutive sentence which he has not yet begun to serve, as well as the sentence which he is currently serving.20 Furthermore, the Supreme Court has only recently held that, in a consecutive sentence situation, a petitioner may also challenge a sentence which has already expired, or been served, since success could advance the date of his eligibility from present incarceration.21 Thus, a petitioner serving consecutive sentences "remains 'in custody' under all of his sentences until all are served ...."22

Exhaustion
"Exhaustion" in the context of federal habeas corpus refers to the process of allowing the state courts to have first crack at reviewing claims arising from state proceedings. It is essentially a prudential doctrine, arising out of notions of comity with respect to state court judgments. The doctrine of exhaustion, codified at 28 U.S.C. Sec. 2254(b) and (c), generally requires that, prior to raising a claim in federal court, the defendant must first have "exhausted the remedies available in the courts of the State."23 A petitioner will not be deemed to have exhausted state remedies "if he has the right under the law of the State to raise, by any available procedure, the question presented."24
However, the doctrine of exhaustion is prudential, not jurisdictional, and therefore exhaustion may be dispensed with in certain circumstances.25 Particularly, exhaustion may be excused where "there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner."26
In order for a claim to be properly exhausted, the substance of the claim must be "fairly presented" to the state courts.27 "It is not enough that all the facts necessary to support the federal claim were before the state courts ... or that a somewhat similar state-law claim was made."28 A recent decision of the Supreme Court suggests that proper exhaustion requires the explicit invocation, in state court, of the specific federal constitutional provisions on which the petitioner seeks to rely.29 Therefore, it behooves the state practitioner, whether at trial, during direct appeal, or on state collateral attack, to be as specific as possible in invoking both the state and the federal constitutional provisions on which he seeks to rely.
A "mixed" petition, containing both exhausted and unexhausted claims, must be dismissed without prejudice to refiling after all claims have been exhausted.30 In such cases, the petitioner should, prior to dismissal, be given the option of amending his petition so as to delete unexhausted claims.31 Petitioners should think twice about exercising this option, however, since proceeding only on the exhausted claims may bar future federal review on the merits of the deleted claims under the successive petition/abuse of the writ doctrine.32 (See discussion below.)

Procedural default/ procedural bar
Where a state court declines to reach the merits of a claim, due to a failure to comply with state procedural requirements (e.g., where a defendant fails to make a contemporaneous objection at trial), federal habeas review of the claim may be barred because the procedural default constitutes "adequate and independent state grounds" for denial of relief.33 However, a state procedural ground is not "adequate" if it is not "strictly or regularly followed."34 The Fifth Circuit has, on occasion, found that a state procedural bar is not adequate because it was not consistently applied.35
The federal habeas court "will presume that there is no independent and adequate ground for a state court decision [only] when the decision 'fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.'"36 If the last state court to which a federal claim is presented ignores a potential state procedural default and reaches the merits of the claim, a federal habeas court may also consider the claim.37
If a procedural bar is found to constitute an adequate and independent state ground for denial of a petitioner's claim, federal review of the claim is barred unless the petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice."38 "Cause" excusing a procedural default will exist where the "factual or legal basis of a claim was not reasonably available to counsel" or "governmental interference rendered procedural compliance impracticable."39 However, attorney errors will not constitute "cause" unless they rise to the level of ineffective assistance of counsel under the Sixth and Fourteenth Amendments.40 Because there is no constitutional right to an attorney in post-convictions proceedings, however, attorney error in those proceedings leading to procedural default cannot constitute cause.41
Under the "fundamental miscarriage of justice" exception to the procedural default doctrine, procedural default will be excused even without a showing of cause, provided that the petitioner shows that "a constitutional violation has probably resulted in the conviction of one who is actually innocent."42 In the context of capital cases, the Supreme Court has also recognized that "actual innocence" of the death penalty may also excuse procedural default, although it remains unclear what this means, at least in the context of procedural default.43

Teague v. Lane/ "New rule" doctrine
In 1989, the Supreme Court drastically changed the face of habeas litigation when it held, in Teague v. Lane, 489 U.S. 288 (1989), that, henceforward, "[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced."44
Thus, "[u]nder Teague, new rules will not be applied or announced in cases on collateral review unless they fall into one of two exceptions."45 The two very narrow exceptions to the Teague rule of nonretroactivity are (1) where the new rule in question "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe"46, and (2) where the new rule is among those "watershed rules of criminal procedure" "implicat[ing] the fundamental fairness of the trial."47
A rule is a "new rule" under Teague if it "breaks new ground or imposes a new obligation on the States or the Federal Government,"48 or if it "was not dictated by precedent existing at the time the defendant's conviction became final."49 The Supreme Court has held that if a rule is "susceptible to debate among reasonable minds," it is not dictated by precedent and is therefore a "new rule."50
Because the Teague rule is not jurisdictional, "a federal court may, but need not, decline to apply Teague if the State does not argue it."51 However, "if the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim."52

Stone v. Powell: Stonewalling Fourth Amendment claims
In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court held that a state prisoner is not entitled to habeas relief on the basis of an unconstitutional search and seizure if the state has provided an opportunity of full and fair litigation of the Fourth Amendment claim.53 Luckily, however, the Court has thus far declined to extend the prudential doctrine of Stone v. Powell to other types of constitutional claims.54 Furthermore, the Court has also held that the rule of Stone v. Powell does not apply to Sixth Amendment claims of ineffective assistance of counsel in the litigation of Fourth Amendment claims.55

Excessive delay: Rule 9(a)
Finally, even a first federal petition may be dismissed if the petitioner has taken too long in filing it. "A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred."56
However, the state bears a heavy burden under Rule 9(a):
The burden is on the state to (1) make a particularized showing of prejudice, (2) show that the prejudice was caused by the petitioner having filed a late petition, and (3) show that the petitioner has not acted with reasonable diligence as a matter of law. The showing of prejudice must be based on the specific challenge raised in the petition; mere passage of time alone is never sufficient to constitute prejudice. The state must show that it has been prejudiced in its ability to respond to the allegations in the petititioner's petition; it is irrelevant that the state has been prejudiced in its ability successfully to convict the petitioner again. The prejudice must have been caused by the petitioner's unreasonable delay in bringing the petition. Finally, the petitioner's delay iin bringing the petition must have been unreasonable as a matter of law.

If the state makes its showing of these elements, the burden of going forward shifts to the petitioner to show either (1) that the state actually is not prejudiced, or (2) that the petitioner's delay is "based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred."57

Significantly, in Walters, the case from which this quote is taken, the Fifth Circuit reversed a district court's summary Rule 9(a) dismissal of a habeas petition, holding that the state had failed to make a sufficient showing of prejudice, causation, or unreasonableness of the delay.58

FILING YOUR PETITION
If you have not been discouraged by the above-discussed minefield of ways to explode your chances of a decision on the merits, then more power to you! You are at the point of filing your petition. Forms for Sec. 2254 petitions are usually available in the office of the Clerk of the United States District Court.59 An application for habeas corpus must be "in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf."60 Additionally, the Rules Governing Section 2254 Cases require that "[t]he petition shall be typewritten or legibly handwritten and shall be signed under penalty of perjury by the petitioner."61
The petition must "allege the facts concerning the applicant's commitment or detention, the name of the person who has custody over him and by virtue of what claim or authority, if known."62 It must "specify all the grounds for relief which are available to the petitioner and of which he has or by the exercise of reasonable diligence should have knowledge and shall set forth in summary form the facts supporting each of the grounds thus specified."63 "It shall also state the relief requested."64
The petition and two conformed copies should be filed in the office of the clerk of the district court having jurisdiction.65 At that time, the petitioner will have to pay the required filing fee, unless he applies for and is given leave to proceed in forma pauperis (hereafter "IFP").66 This is done by executing an affidavit of indigency in accordance with 28 U.S.C. Sec. 1915.67 In IFP cases, the petition should also be accompanied by a certificate from the warden or some other appropriate person at the institution where the petitioner is confined, certifying the amount of any funds the petitioner has on account at the institution.68 The judge will consider this certificate in evaluating whether petitioner will be allowed to proceed IFP.69

AFTER YOUR PETITION IS FILED
You are not out of the woods yet -- the petition may be summarily dismissed "[if] it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court ...."70 If, however, you pass this hurdle, the respondent (the custodian, in Texas represented by the Attorney General) will be ordered to file an answer to the petition.71
In its answer, the respondent, in addition to responding to the allegations of the petition, must also address the following: (1) whether petitioner has exhausted his state remedies; and (2) availability of transcripts of relevant proceedings.72 The respondent must attach to the answer "such portions of the transcripts as the answering party deems relevant."73 The district court, on its own motion or on motion of the petitioner, may order the respondent to furnish existing transcripts or to transcribe available non-transcribed proceedings.74 "If a transcript is neither available nor procurable, a narrative summary of the evidence may be submitted."75 The respondent must also attach to its answer a copy of any appellate brief filed by the petitioner and any opinion by the appellate court.76

Litigation of the petition

Discovery
Discovery is available to a petitioner under the Federal Rules of Civil Procedure, but only "if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise."77 A petitioner's entitlement to discovery is more fully explained in the commentary to Rule 6:

[W]here specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is confined illegally and is therefore entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.78

Thus, "[w]hile the district court generally has discretion to grant or deny discovery requests under Rule 6, a court's blanket denial of discovery is an abuse of discretion if discovery is indispensable to a fair, rounded, development of the material facts."79
The judge should appoint counsel for an indigent petitioner "[i]f necessary for effective utilization of discovery procedures."80 If a request for discovery is made, it must be "accompanied by a statement of the interrogatories or requests for admission and a list of the documents, if any, sought to be produced."81

Expansion of the record
Under Rule 7, "the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition."82 These materials "may include, without limitation, letters predating the filing of the petition in the district court, documents, exhibits, and answers under oath, if so directed, to written interrogatories propounded by the judge."83 "Affidavits may be submitted and considered as a part of the record."84 Expansion of the record under Rule 7 will not necessarily render exhausted claims unexhausted.85

Summary judgment
Because habeas corpus is technically a civil action and is subject to the Federal Rules of Civil Procedure to the extent they do not conflict with the Rules Governing Section 2254 Cases86, either party may, during the litigation, move for summary judgment under Federal Rule of Civil Procedure 56. Under the standard of Rule 56, the court may grant summary judgment if, considering all the pleadings, affidavits, and other portions of the record, "there is no genuine issue of material fact and [ ] the moving party is entitled to judgment as a matter of law."87

Evidentiary hearing
After the respondent's answer to the petition and the record of the state court proceedings have been filed, the federal habeas court must determine whether an evidentiary hearing is required.88 In Townsend v. Sain, 372 U.S. 293 (1963), the Supreme Court held that an evidentiary hearing on a claim was mandatory if the petitioner had alleged facts which, if true, justified the granting of relief and one of six other circumstances was present: (1) the merits of the dispute were not resolved at a state hearing; (2) the state determination was not fairly supported by the record; (3) the fact-finding procedure was inadequate; (4) there was a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed; or (6) the petitioner was not afforded a full and fair hearing.89
However, in 1992, the Supreme Court, in a 5-4 decision, significantly cut back on the right to a federal evidentiary hearing.90 In Keeney v. Tamayo-Reyes, the Court held that a petitioner "is entitled to an evidentiary hearing [only] if he can show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure."91 If a petitioner cannot show cause and prejudice for his failure to develop a claim in state-court proceedings, he is entitled to an evidentiary hearing only "if he can show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing."92 This means that the petitioner must show that the constitutional error probably resulted in the conviction of someone who is actually innocent of the crime.93
Even where a hearing is not mandatory, however, the district court may still, in its discretion, decide to hold an evidentiary hearing.94 If an evidentiary hearing is to be held, the petitioner has a statutory right to the appointment of counsel.95

MAKING THE DECISION
After the district court has received both petition and answer, transcripts, and any materials with which it has expanded the record, and after it has held any evidentiary hearing, it is then faced with its most difficult task -- making the actual decision. In performing this task, however, the district court is bound by a number of decisional principles.
First and foremost, the federal district court, sitting in habeas, generally must give a presumption of correctness to the written factual findings of a state court.96 However, the federal habeas court need not apply the presumption of correctness if it finds that one of eight exceptions codified in 28 U.S.C. Sec. 2254(d) is applicable.97 Moreover, the presumption of correctness does not apply to questions of law or to mixed questions of law and fact.98
Second, even if the court finds a constitutional trial error, it may only grant habeas relief if it finds that the error "had substantial and injurious effect or influence in determining the jury's verdict."99 (On the other hand, a "structural defect in the trial mechanism ... requires automatic reversal because [it] infect[s] the entire trial process."100) If, however, "a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had 'substantial and injurious effect or influence in determinining the jury's verdict,' that error is not harmless[, a]nd, the petitioner must win."101 Additionally, the federal courts are split on the question of whether the federal habeas court should apply the Brecht "substantial and injurious effect" standard (as opposed to the "harmless beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967)) where the state courts have not made the Chapman "harmless beyond a reasonable doubt" analysis in the first instance.102
If the petition is referred to a magistrate judge for an evidentiary hearing and/or recommended disposition -- which is permitted under both statute and rules103 -- the magistrate will submit for filing with the district court proposed findings of fact and recommendations for disposition, which will then be mailed to the parties.104 The parties have ten days after service of the proposed findings of fact and recommendations within which to object to those findings and recommendations.105 CAUTION: At least in the Fifth Circuit, failure to object to the magistrate judge's report will preclude the petitioner from challenging the magistrate's factual findings on appeal except on grounds of plain error or manifest injustice.106 Thus, it is crucial to file timely objections to the magistrate's report.
The district court "shall make a de novo review of those portions of the report or specified proposed findings to which objection is made."107 Again, however, the phrase "to which objection is made" is crucial: some case law suggests that failure to object may preclude de novo review by the district court.108 The district court "may accept, reject, or modify in whole or in part any findings or recommendation by the magistrate."109

AFTER THE DECISION IS MADE ....

Post-decision motions
After an unfavorable decision has been rendered, the petitioner has available to him the full panoply of post-decision motions under the Federal Rules of Civil Procedure. These include: (1) a motion for new trial or amendment of the judgment110; (2) a motion for alteration or amendment of the judgment111; (3) a motion for amendment of findings112; or (4) a motion for relief from judgment.113 Motions under Rules 59(a) and 59(b) must be served, and motions under Rule 52(b) must be made, not later than 10 days after entry of judgment.114 Timely filed motions under Rules 52(b), 59(a), or 59(e) toll the time for filing a notice of appeal, as does a motion for relief from judgment under Rule 60(b)served within 10 days after the entry of judgment.115

Appeal
Any appeal must be filed within 30 days after the later of (1) entry of judgment; or (2) the denial of the last tolling post-judgment motion.116 (See discussion above.) However, no appeal may be taken unless the judge who rendered the order denying relief, or a circuit justice or judge, issues a certificate of probable cause (hereafter "CPC").117
To obtain a CPC, a petitioner must make a "substantial showing of the denial of [a] federal right."118 "[I]n order to make a substantial showing of the denial of a federal right a petitioner who has been denied relief in a district court must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further."119
If the district court denies a CPC, then you may apply to the Court of Appeals for a CPC.120 In the Fifth Circuit, the application for a CPC will often be decided by a single judge.121 However, if that single judge denies the CPC, you may apply for reconsideration "by the court,"122 although it is unclear whether this means reconsideration by the same judge, a different judge, or a three-judge panel.

TAKING THE BUCKET TO THE WELL AGAIN: Second or successive petitions
If you thought the outlook was dismal for a first federal petition, you will be even more dismayed to learn that the chances of having a second or subsequent federal habeas petition considered on the merits are far slimmer than for the first petition. Successive petitions (raising a claim again after it has been raised in a previous petition) and abusive petitions ("abusing the writ" by including claims which could have been raised in a previous petition) are governed by Rule 9(b), which provides: "A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ."123
It is the state's burden to plead abuse of the writ, and it "satisfies this burden if, with clarity and particularity, it notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ."124 If the state satisfies its burden of showing abuse of the writ, then the burden shifts to the petitioner to show cause for his failure to raise the claim in an earlier petition and prejudice therefrom.125 "Cause" and "prejudice" in this context bear the same meaning as in the context of the cases discussing procedural default.126
A federal habeas court may, in limited circumstances, still reach a successive or abusive claim even in the absence of a showing of cause and prejudice, if "the ends of justice" so require, because a "fundamental miscarriage of justice" would result from failure to review the claim.127 The "ends of justice"/"fundamental miscarriage of justice" exception requires the successive or abusive petitioner to supplement his claim with a colorable showing of factual innocence; that is, he must show that he is probably factually innocent of the crime of which he is accused -- or, put another way, that the constitutional violation complained of probably resulted in the conviction of one innocent of the crime.128
In the capital context, the Supreme Court has extended the "actual innocence" concept to encompass the successive or abusive claim of one who is "actually innocent" of the death penalty, i.e., one who would not have been sentenced to death but for the constitutional violation complained of.129 To invoke this exception, however, the petitioner must demonstrate "by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law."130 This "actual innocence" requirement "must focus on those elements which render a defendant eligible for the death penalty, and not on additional mitigating evidence which was prevented from being introduced as a result of a claimed constitutional error."131

CONCLUSION
While the law of federal habeas corpus has become increasingly complex, and it has become increasingly difficult to secure federal habeas corpus relief, federal habeas corpus still remains a valuable tool for the practitioner in attempting to secure the liberty of his client. In many cases, it remains the last resort of one who has been unjustly convicted or sentenced. While it is seldom invoked, it truly remains "the Great Writ." You should not hesitate to use it in your arsenal of tools to assist your clients.

1.. U.S. Const. art. I, Sec. 9, cl. 2.
2. See, e.g., Kyles v. Whitley, ____ U.S. ____, 115 S.Ct. 1555 (1995) (capital defendant's trial unconstitutionally tainted by prosecutorial failure to disclose exculpatory/impeaching information under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972); new trial required); Loyd v. Whitley, 977 F.2d 149 (5th Cir. 1992), cert. denied, ____ U.S. ____, 113 S.Ct. 2343 (1993) (capital defendant received ineffective assistance of counsel at penalty phase when counsel failed to investigate or present mitigating evidence of organic brain disorder and psychological problems of defendant; writ issued conditional upon resentencing).
3. Throughout this paper, the masculine pronoun is used as a matter of convenience instead of both masculine and feminine pronouns. This usage is merely to avoid cumbersome text and is in no way intended to convey the impression that the persons under discussion are limited to males.
4. 28 U.S.C. Sec. 2254(a).
5. E.g., Estelle v. McGuire, 502 U.S. 62, ____, 112 S.Ct 475, 480 (1991).
6. 28 U.S.C. Sec. 2241(d).
7. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (no constitutional right to appointment of counsel for collateral attack of conviction or sentence); Murray v. Giarratano, 492 U.S. 1, 12 (1989) (applying same rule to capital cases).
8. Rules Governing Section 2254 Cases in the United States District Courts (hereafter "Rules -- Sec. 2254 Cases), Rule 8(c); see also, Lamb v. Estelle, 667 F.2d 492, 496-97 (5th Cir. 1982).
9. Rules -- Sec. 2254 Cases, Rule 6(a).
10. See 18 U.S.C. Sec. 3006A(a)(2)(B); see also, Rules -- Sec. 2254 Cases, Rule 8(c) ("These rules do not limit the appointment of counsel under 18 U.S.C. Sec. 3006A at any stage of the case if the interest of justice so requires.")
11. 21 U.S.C. 848 (q)(4)(B).
12. McFarland v. Scott, ____ U.S. ____, 114 S.Ct. 2568, 2572-73 (1994).
13. Sterling v. Scott, 57 F.3d 451, 458 (5th Cir. 1995), cert. denied, ____ U.S. ____, 116 S.Ct. 715 (1996); see also, In re Joiner, 58 F.3d 143, 144 (5th Cir. 1995).
14. Joiner, 58 F.3d at 144.
15. 28 U.S.C. Sec.Sec. 2241(c) & 2254(a).
16. See Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 300-02 (1984) (collecting cases).
17. Jones v. Cunningham, 371 U.S. 236, 243 (1963).
18. Carafas v. LaVallee, 391 U.S. 234, 237-39 (1968).
19. Maleng v. Cook, 490 U.S. 488, 492 (1989) (per curiam).
20. Peyton v. Rowe, 391 U.S. 55, 67 (1968); see also, Maleng v. Cook, 490 U.S. at 493-94.
21. Garlotte v. Fordice, ____ U.S. ____, 115 S.Ct. 1948, 1952 (1995).
22. Id. at 1949-50.
23. 28 U.S.C. Sec. 2254(b).
24. 28 U.S.C. Sec. 2254(c).
25. Granberry v. Greer, 481 U.S. 129, 131 (1987).
26. 28 U.S.C. Sec.2254(b).
27. Picard v. Connor, 404 U.S. 270, 275 & 277-78 (1971); accord, Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Duncan v. Henry, ____ U.S. ____ , 115 S.Ct. 887, 888 (1995) (per curiam).
28. Anderson v. Harless, 459 U.S. at 6 (citations omitted).
29. Duncan v. Henry, ____ U.S. at ____, 115 S.Ct. at 888.
30. Rose v. Lundy, 455 U.S. 509, 510 & 521 (1982).
31. Rose v. Lundy, 455 U.S. at 510 & 520.
32. See Rose v. Lundy, 455 U.S. at 520.
33. Harris v. Reed, 489 U.S. 255, 262 (1989); see also, Coleman v. Thompson, 501 U.S. 722, 729-31 (1991).
34. Johnson v. Mississippi, 486 U.S. 578, 587 (1988); Amos v. Scott, 61 F.3d 333, 339 & n.16.
35. See, e.g., Lowe v. Scott, 48 F.3d 873, 876 (5th Cir. 1995) (Texas); Wilcher v. Hargett, 978 F.2d 872, 879 (5th Cir. 1992), cert. denied, ____ U.S. ____, 114 S.Ct. 96 (1993) (Mississippi). The Fifth Circuit has, however, also rejected claims that a procedural bar was not "strictly or regularly applied" from these same states. See, e.g., Amos v. Scott, 61 F.3d 333, 338-46 (5th Cir. 1995), cert. denied, ____ U.S. ____, 116 S.Ct. 557 (1995) (Texas); Sones v. Hargett, 61 F.3d 410, 416-18 (5th Cir. 1995) (Mississippi).
36. Coleman v. Thompson, 501 U.S. at 735 (bracketed material inserted by this writer), quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983).
37. Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991), citing Harris v. Reed, 489 U.S. at 262.
38. Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also, Engle v. Isaac, 456 U.S. 107, 128-131 (1982); Wainwright v. Sykes, 433 U.S. 72, 85-93 (1977).
39. Murray v. Carrier, 477 U.S. 478, 488 (1986).
40. Id.; see also, Coleman, 501 U.S. at 753-54.
41. Coleman, 501 U.S. at 752-54.
42. Murray v. Carrier, 477 U.S. at 496.
43. See Dugger v. Adams, 489 U.S. 401, 410 (1989); Smith v. Murray, 477 U.S. 527, 537 (1986); but cf. Sawyer v. Whitley, ____ U.S. ____, 112 S.Ct. 2514, 2517 & 2522-23 (1992) (establishing standard for actual innocence of death penalty in context of successive and abusive claims). [See discussion below.]
44. Teague, 489 U.S. at 310. Very shortly after deciding Teague, the Supreme Court, with very little discussion, extended the Teague rule to capital cases as well. See Penry v. Lynaugh, 492 U.S. 302, 313-14 (1989).
45. Penry, 492 U.S. at 313, citing Teague, 489 U.S. at 311-13.
46. Teague, 489 U.S. at 307 (internal quotation marks and citation omitted).
47. Id. at 311-14.
48. Teague, 489 U.S. at 301.
49. Id. (emphasis in original).
50. Butler v. McKellar, 494 U.S. 407, 415 (1990).
51. Caspari v. Bohlen, ____ U.S. ____, 114 S.Ct. 948, 953 (1994), citing Schiro v. Farley, ____ U.S. ____, 114 S.Ct. 783, 788 (1994).
52. Caspari v. Bohlen, id. (emphasis in original), citing Graham v. Collins, 506 U.S. 461, 113 S.Ct. 892, 894 (1993).
53. Stone v. Powell, 428 U.S. at 494.
54. See Withrow v. Williams, ____ U.S. ____, 113 S.Ct. 1745, 1754 (1993) (declining to extend Stone v. Powell to Fifth Amendment claims that statements were obtained in violation of Miranda v. Arizona).
55. Kimmelman v. Morrison, 477 U.S. 365, 382-83 (1986).
56. Rules -- Sec. 2254 Cases, Rule 9(a).
57. Walters v. Scott, 21 F.3d 683, 687 (5th Cir. 1994) (footnotes with citations omitted; italicized emphasis in original).
58. Walters, 21 F.3d at 687-690.
59. See Rules -- Sec. 2254 Cases, Rule 2(c).
60. 28 U.S.C. Sec. 2242.
61. Rules -- Sec. 2254 Cases, Rule 2(c).
62. 28 U.S.C. Sec. 2242.
63. Rules -- Sec. 2254 Cases, Rule 2(c).
64. Id.
65. Rules -- Sec. 2254 Cases, Rule 3(a).
66. Id.
67. Id.
68. Id.
69. Id.
70. Rules -- Sec. 2254 Cases, Rule 4.
71. Id.
72. Rules -- Sec. 2254 Cases, Rule 5.
73. Id.
74. Id.
75. Id.
76. Id.
77. Rules -- Sec. 2254 Cases, Rule 6(a).
78. Rules -- Sec. 2254, Commentary to Rule 6, quoting Harris v. Nelson, 394 U.S. 286, 300 (1969).
79. East v. Scott, 55 F.3d 996, 1001 (5th Cir. 1995) (internal quotation marks and citations omitted).
80. Rules -- Sec. 2254 Cases, Rule 6(a).
81. Rules -- Sec. 2254 Cases, Rule 6(b).
82. Rules -- Sec. 2254 Cases, Rule 7(a).
83. Id.
84. Id.
85. See Vasquez v. Hillery, 474 U.S. 254, 257-58 and 260 (1986).
86. See Rules -- Sec. 2254 Cases, Rule 11.
87. Fed. R. Civ. P. 56(b).
88. Rules -- Sec. 2254 Cases, Rule 8(a).
89. Townsend v. Sain, 372 U.S. at 312-13.
90. See Keeney v. Tamayo-Reyes, ____ U.S. ____, 112 S.Ct. 1715 (1992).
91. Id. at 1721.
92. Id. (citations omitted).
93. See McCleskey v. Zant, 499 U.S. 467, 493 (1991) (failure to raise claim in previous petition); Murray v. Carrier, 477 U.S. 478, 496 (1986) (procedural default) (both cases cited in Keeney v. Tamayo-Reyes, 112 S.Ct. at 1721).
94. Rules -- Sec. 2254 Cases, Advisory Committee Note to Rule 8 ("In situations in which an evidentiary hearing is not mandatory, the judge may nonetheless decide that an evidentiary hearing is desirable ...."); see also, Townsend v. Sain, 372 U.S. at 318 ("In all other cases where the material facts are in dispute, the holding of such a hearing is in the discretion of the district judge.")
95. Rules -- Sec. 2254 Cases, Rule 8(c); see also, Lamb v. Estelle, 667 F.2d 492, 496-97 (5th Cir. 1982).
96. See 28 U.S.C. Sec. 2254(d).
97. See 28 U.S.C. Sec. 2254(d)(1)-(8).
98. Miller v. Fenton, 474 U.S. 104, 110-16 (1985).
99. Brecht v. Abrahamson, ____ U.S. ____, 113 S.Ct. 1710, 1714 (1993) (internal quotation marks and citation omitted).
100. Id. at 1717, quoting and citing Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 1254 (1991).
101. O'Neal v. McAninch, ____ U.S. ____, 115 S.Ct. 992, 994 (1995).
102. Compare Orndorff v. Lockhart, 998 F.2d 1426, 1429-30 (8th Cir. 1993), cert. denied, ____ U.S. ____, 114 S.Ct. 1631 (1994) (federal habeas court should apply Chapman in this situation); and Lyons v. Johnson, ____ F.Supp. ____, 1996 WL 14445 **7-8 (S.D.N.Y., Jan. 16, 1996) (same) with Tyson v. Trigg, 50 F.3d 436, 446-47 (7th Cir. 1995) , cert. denied, ____ U.S. ____, 116 S.Ct 697 (1996) (Brecht standard is still applicable); Horsley v. Alabama, 45 F.3d 1486, 1492 & n.11 (11th Cir. 1995), cert. denied, ____ U.S. ____, 116 S.Ct. 410 (1995) (same); and Smith v. Dixon, 14 F.3d 956, 979-80 (4th Cir. ), cert. denied, ____ U.S. ____, 115 S.Ct. 129 (1994) (same). To the writer's knowledge, the Fifth Circuit has not yet ruled on this question.
103. See 28 U.S.C. Sec. 636(b)(1)(B); see also, Rules -- Sec. 2254 Cases, Rule 8(b)(1).
104. Rules -- Sec. 2254 Cases, Rule 8(b)(1) and (2).
105. Rules -- Sec. 2254 Cases, Rule 8(b)(3).
106. See, e.g., Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. Unit B 1982) (en banc).
107. Rules -- Sec. 2254 Cases, Rule 8(b)(4).
108. See, e.g., Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1992).
109. Rules -- Sec. 2254 Cases, Rule 8(b)(4).
110. Fed. R. Civ. P. 59(a).
111. Fed. R. Civ. P. 59(e).
112. Fed. R. Civ. P. 52(b).
113. Fed. R. Civ. P. 60(b).
114. See Fed. R. Civ. P. 59(b), 59(e), and 52(b).
115. Fed. R. App. P. 4(a)(4).
116. Fed. R. App. P. 4(a)(1) and (4).
117. 28 U.S.C. Sec. 2253; see also, Fed. R. App. P. 22(b).
118. Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (internal quotation marks and citation omitted).
119. Lozada v. Deeds, 498 U.S. 430, 431 (1991) (per curiam) (internal quotation marks and citations omitted; bracketed insert, and italicized emphasis, in text of Lozada).
120. Fed. R. App. P. 22(b).
121. Fifth Cir. Loc. R. 27.2.3.
122. Fed. R. App. P. 27(c).
123. Rules -- Sec. 2254 Cases, Rule 9(b).
124. McCleskey v. Zant, 499 U.S. 467, 494 (1991).
125. Id.
126. Id.
127. See Kuhlmann v. Wilson, 477 U.S. 436, 448 (1986) (successive petition); McCleskey v. Zant, 499 U.S. at 494-95 (abusive petition).
128. Kuhlmann v. Wilson, 477 U.S. at 454-55 (successive petition); Schlup v. Delo, ____ U.S. ____, 115 S.Ct. 851, 865-67 (1995) (abusive petition).
129. See Sawyer v. Whitley, ____ U.S. ____, 112 S.Ct. 2514 (1992).
130. Sawyer v. Whitley, 112 S.Ct. at 2517.
131. Id. at 2523.

About the Author:

Tim Crooks is a 1986 honors graduate of Tulane Law School. Following law school, he clerked for the Honorable Walter F. Marcus, Jr., Associate Justice of the Supreme Court of Louisiana. After a brief stint in private civil practice, he served as a staff attorney at the Fifth Circuit, with primary responsibility for editing and updating the Fifth Circuit Death Penalty Resource Manual, used by district and circuit judges throughout the Fifth Circuit in deciding federal capital habeas cases. In 1990, he joined the Federal Public Defender's Office for the Northern District of Texas, where he is currently an Assistant Federal Public Defender and the Chief of Appeals for the Office. He has spoken on Supreme Court and Fifth Circuit law several times to the Texas Criminal Defense Lawyers Association and the Dallas Bar Association.