State and Federal Postconviction

28 U.S.C. CHAPTER 153—HABEAS CORPUS : 28 U.S.C. CHAPTER 153—HABEAS CORPUS § 2241. Power to grant writ § 2242. Application § 2243. Issuance of writ; return; hearing; decision § 2244. Finality of determination § 2245. Certificate of trial judge admissible in evidence § 2246. Evidence; depositions; affidavits § 2247. Documentary evidence § 2248. Return or answer; conclusiveness § 2249. Certified copies of indictment, plea and judgment; duty of respondent § 2250. Indigent petitioner entitled to documents without cost § 2251. Stay of State court proceedings § 2252. Notice § 2253. Appeal § 2254. State custody; remedies in Federal courts § 2255. Federal custody; remedies on motion attacking sentence [§ 2256. Omitted]

§ 2241. Power to grant writ : § 2241. Power to grant writ (a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.

28 U.S.C. § 2241 (cont’d) : 28 U.S.C. § 2241 (cont’d) (c) The writ of habeas corpus shall not extend to a prisoner unless— (3) He is in custody in violation of the Constitution or laws or treaties of the United States;

§ 2254. State custody; remedies in Federal courts : § 2254. State custody; remedies in Federal courts a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. (b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that— (A) the applicant has exhausted the remedies available in the courts of the State; or (B) (i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant. (2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State. (3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement. (c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented. (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. (e) (1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. (f) If the applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the State court’s determination of a factual issue made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination. If the applicant, because of indigency or other reason is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official. If the State cannot provide such pertinent part of the record, then the court shall determine under the existing facts and circumstances what weight shall be given to the State court’s factual determination. (g) A copy of the official records of the State court, duly certified by the clerk of such court to be a true and correct copy of a finding, judicial opinion, or other reliable written indicia showing such a factual determination by the State court shall be admissible in the Federal court proceeding. (h) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel for an applicant who is or becomes financially unable to afford counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18. (i) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.

28 U.S.C. § 2254 : 28 U.S.C. § 2254 (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

§ 2254 Exhaustion Doctrine : § 2254 Exhaustion Doctrine (b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that— (A) the applicant has exhausted the remedies available in the courts of the State; or (B) (i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

Exhaustion (cont’d) : Exhaustion (cont’d) (b) (3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.

Procedural Default : Procedural Default Coleman v. Thompson, 501 U.S. 722 (1991) A Federal court will not review a constitutional violation that the state courts refused to review based on an adequate and independent state procedural rule absent a showing of cause and prejudice.

Elements of Procedural Default : Elements of Procedural Default Timely assertion of default by state Clearly applicable state procedural rule Actual violation of state procedural rule Adequacy and independence of state bar Unambiguous state court reliance on the procedural default (last reasoned state court decision, Ylst v. Nunnemaker, 501 U.S. 797 (1991)) No cause and prejudice

§ 2254 Standard of Review : § 2254 Standard of Review (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

Williams v. Taylor (O’Connor, J.) : Williams v. Taylor (O’Connor, J.) The term “unreasonable” is no doubt difficult to define. … For purposes of today's opinion, the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law.

Koon v. United States, 518 U.S. 81, 100 (1996) : Koon v. United States, 518 U.S. 81, 100 (1996) “A court by definition abuses its discretion when it makes an error of law.”

28 U.S.C. § 2254 : 28 U.S.C. § 2254 (e) (1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254 : 28 U.S.C. § 2254 (i) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.

: How does the federal habeas corpus statute impact the drafting of a direct appeal brief?

RCr 11.42 Motion to vacate, set aside or correct sentence : RCr 11.42 Motion to vacate, set aside or correct sentence (1) A prisoner in custody under sentence or a defendant on probation, parole or conditional discharge who claims a right to be released on the ground that the sentence is subject to collateral attack may at any time proceed directly by motion in the court that imposed the sentence to vacate, set aside or correct it. (2) The motion shall be signed and verified by the movant and shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds. Failure to comply with this section shall warrant a summary dismissal of the motion. (3) The motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding. (4) The clerk of the court shall notify the attorney general and the Commonwealth's attorney in writing that such motion (whether it be styled a motion, petition or otherwise) has been filed, and the Commonwealth's attorney shall have 20 days after the date of mailing of notice by the clerk to the Commonwealth's attorney in which to serve an answer on the movant. (5) Affirmative allegations contained in the answer shall be treated as controverted or avoided of record. If the answer raises a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing and, if the movant is without counsel of record and if financially unable to employ counsel, shall upon specific written request by the movant appoint counsel to represent the movant in the proceeding, including appeal. (6) At the conclusion of the hearing or hearings, the court shall make findings determinative of the material issues of fact and enter a final order accordingly. If it appears that the movant is entitled to relief, the court shall vacate the judgment and discharge, resentence, or grant him or her a new trial, or correct the sentence as may be appropriate. A final order shall not be reversed or remanded because of the failure of the court to make a finding of fact on an issue essential to the order unless such failure is brought to the attention of the court by a written request for a finding on that issue or by a motion pursuant to Civil Rule 52.02. (7) Either the movant or the Commonwealth may appeal from the final order or judgment of the trial court in a proceeding brought under this rule. (8) The final order of the trial court on the motion shall not be effective until expiration of time for notice of appeal under RCr 12.04 and shall remain suspended until final disposition of an appeal duly taken and perfected.

RCr 11.42 (cont’d) : RCr 11.42 (cont’d) (9) Original applications for relief of the nature described in this Rule 11.42 that are addressed directly to a court other than the one in which the sentence was imposed shall be transmitted to the court in which the sentence was imposed for further disposition in the manner above set forth. (10) Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either: (a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence; or (b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively. If the judgment becomes final before the effective date of this rule, the time for filing the motion shall commence upon the effective date of this rule. If the motion qualifies under one of the foregoing exceptions to the three year time limit, the motion shall be filed within three years after the event establishing the exception occurred. Nothing in this section shall preclude the Commonwealth from relying upon the defense of laches to bar a motion upon the ground of unreasonable delay in filing when the delay has prejudiced the Commonwealth's opportunity to present relevant evidence to contradict or impeach the movant's evidence.

RCr 11.42 (1) : RCr 11.42 (1) A prisoner in custody under sentence or a defendant on probation, parole or conditional discharge who claims a right to be released on the ground that the sentence is subject to collateral attack may at any time proceed directly by motion in the court that imposed the sentence to vacate, set aside or correct it.

RCr 11.42 (2) : RCr 11.42 (2) The motion shall be signed and verified by the movant [Bowlng] and shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies [Stanford] in support of such grounds. Failure to comply with this section shall warrant a summary dismissal of the motion.

RCr 11.42 (3) : RCr 11.42 (3) The motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding [Sanborn].

RCr 11.42 (5) : RCr 11.42 (5) Affirmative allegations contained in the answer shall be treated as controverted or avoided of record. If the answer raises a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing and, if the movant is without counsel of record and if financially unable to employ counsel, shall upon specific written request by the movant appoint counsel to represent the movant in the proceeding, including appeal.

Fraser v. Commonwealth, 59 S.W.3d 448, 452 -453 (Ky. 2001) : Fraser v. Commonwealth, 59 S.W.3d 448, 452 -453 (Ky. 2001) “A hearing is required if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record. The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them.”

RCr 11.42 (6) : RCr 11.42 (6) At the conclusion of the hearing or hearings, the court shall make findings determinative of the material issues of fact and enter a final order accordingly. If it appears that the movant is entitled to relief, the court shall vacate the judgment and discharge, resentence, or grant him or her a new trial, or correct the sentence as may be appropriate. A final order shall not be reversed or remanded because of the failure of the court to make a finding of fact on an issue essential to the order unless such failure is brought to the attention of the court by a written request for a finding on that issue or by a motion pursuant to Civil Rule 52.02.

RCr 11.42 (10) : RCr 11.42 (10) Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either: (a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence; or (b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.

Skaggs v. Commonwealth, 803 S.W.2d 573, 577 (Ky. 1990) : Skaggs v. Commonwealth, 803 S.W.2d 573, 577 (Ky. 1990) “We take this occasion to express our view that the Court of Appeals is without authority to review any matter affecting the imposition of the death sentence. CR 76.18(2), in its present form, provides for automatic transfer to this Court.”

Slide 26 : THE DIRECT APPEAL BRIEF

532.075 Review of death sentence by Supreme Court. : 532.075 Review of death sentence by Supreme Court. (1) Whenever the death penalty is imposed for a capital offense, and upon the judgment becoming final in the Circuit Court, the sentence shall be reviewed on the record by the Supreme Court. The circuit clerk, within ten (10) days after receiving the transcript, shall transmit the entire record and transcript to the Supreme Court together with a notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of the judgment, the offense, and the punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the Supreme Court. (2) The Supreme Court shall consider the punishment as well as any errors enumerated by way of appeal. (3) With regard to the sentence, the court shall determine: (a) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and (b) Whether the evidence supports the jury's or judge's finding of statutory aggravating circumstances as enumerated in KRS 532.025(2), and (c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. (4) Both the defendant and the Commonwealth shall have the right to submit briefs within the time provided by the court, and to present oral argument to the court. (5) The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to: (a) Affirm the sentence of death; or (b) Set the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel. The records of those similar cases referred to by the Supreme Court in its decision, and the extracts prepared as hereinafter provided for, shall be provided to the resentencing judge for his consideration. (6) The Chief Justice shall assign to an administrative assistant who is an attorney the following duties: (a) To accumulate the records of all felony offenses in which the death penalty was imposed after January 1, 1970, or such earlier date as the court may deem appropriate. (b) To provide the court with whatever extracted information it desires with respect thereto, including but not limited to a synopsis or brief of the facts in the record concerning the crime and the defendant. (c) To compile such data as are deemed by the Chief Justice to be appropriate and relevant to the statutory questions concerning the validity of the sentence. (7) The administrative office of the courts shall provide such staff, services, and data as are necessary to proper consideration of any matter relating to the imposition of the death penalty in any case. (8) The sentence review shall be in addition to the direct appeal, if taken, and the review and appeal shall be consolidated. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence.

KRS 532.075 (1) : KRS 532.075 (1) Whenever the death penalty is imposed for a capital offense, and upon the judgment becoming final in the Circuit Court, the sentence shall be reviewed on the record by the Supreme Court. The circuit clerk, within ten (10) days after receiving the transcript, shall transmit the entire record and transcript to the Supreme Court together with a notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of the judgment, the offense, and the punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the Supreme Court.

KRS 532.075 (2) : KRS 532.075 (2) The Supreme Court shall consider the punishment as well as any errors enumerated by way of appeal.

Sanders v. Commonwealth, 801 S.W.2d 665, 668 (Ky. 1990) : Sanders v. Commonwealth, 801 S.W.2d 665, 668 (Ky. 1990) Appellant seeks review of forty-one listed issues, some of which comprise numerous sub-issues, and many of which were not preserved for review pursuant to RCr 9.22 or 9.54. Indeed, more than a few of these questions were not even raised below. Except where the trial court has a duty to intervene sua sponte to prevent manifest injustice, considerable semantic agility is required in order to assign error to the court respecting issues with which it has not been presented.

Sanders (cont’d) : Sanders (cont’d) Where the death penalty has been imposed, we nonetheless review allegations of these quasi errors. Assuming that the so-called error occurred, we begin by inquiring: (1) whether there is a reasonable justification or explanation for defense counsel's failure to object, e.g., whether the failure might have been a legitimate trial tactic; and (2) if there is no reasonable explanation, whether the unpreserved error was prejudicial, i.e., whether the circumstances in totality are persuasive that, minus the error, the defendant may not have been found guilty of a capital crime, or the death penalty may not have been imposed. … All unpreserved issues are subject to this analysis.

Considerations for unpreserved errors : Considerations for unpreserved errors Strickland prejudice vs. Sanders prejudice Strickland prejudice vs. palpable error Leonard v. Commonwealth Procedural default in habeas corpus Exhaustion Doctrine

KRS 532.075 (3) : KRS 532.075 (3) With regard to the sentence, the court shall determine: (a) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and (b) Whether the evidence supports the jury's or judge's finding of statutory aggravating circumstances as enumerated in KRS 532.025(2), and (c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

KRS 532.075 (4) : KRS 532.075 (4) Both the defendant and the Commonwealth shall have the right to submit briefs within the time provided by the court, and to present oral argument to the court.

KRS 532.075 (8) : KRS 532.075 (8) The sentence review shall be in addition to the direct appeal, if taken, and the review and appeal shall be consolidated. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence.

CR 76.12 Briefs : CR 76.12 Briefs (4) Form and content. b) Length. (iii) In cases where the death penalty has been imposed, upon motion made at least 20 days prior to the filing deadline, and upon good cause shown, the appellant's brief and the appellee's brief may be extended to no more than 150 pages, excluding the introduction, statement of points and authorities, exhibits and appendices. Upon similar motion, for good cause shown, made at least 5 days prior to the filing deadline, a reply brief may be extended to no more than 25 pages.

Issue Selection : Issue Selection Basically the same as any other appeal Inclusive Do not leave any arguable issues out Pay particular attention to federalizing issues – 8th Amendment Jury selection, penalty phase procedures

Boilerplate Issues : Boilerplate Issues What is a boilerplate issue? (One man’s meat is another man’s poison.) These are important constitutional violations that must be raised or they will be waived.

Stewart v. LaGrand, 526 U.S. 115 (1999) : Stewart v. LaGrand, 526 U.S. 115 (1999) Inmate who was sentenced to death petitioned for writ of habeas corpus, challenging lethal gas as a cruel and unusual form of execution. The Supreme Court held that: (1) petitioner waived claim that execution by lethal gas violated Eighth Amendment by choosing to be executed by lethal gas rather than lethal injection; (2) petitioner could not show cause for failing to raise claim on direct appeal; and (3) petitioner waived claim that his trial counsel was ineffective.

Some issues to consider : Some issues to consider Use of unauthorized aggravating circumstances to obtain a death sentence (i.e. three hots and a cot evidence) Use of multiple murders as an aggravating circumstance Death sentences are arbitrary and disproportionate for this defendant (unconstitutional as applied).

Meat and Potato Issues (cont’d) : Meat and Potato Issues (cont’d) The Death Penalty is Unconstitutional A. Insufficient Statutory Guidance B. Discriminatory as applied in KY C. Prosecutorial Discretion is Arbitrary D. Statute Fails to Narrow the Eligible Defendants E. Inherent Danger of Executing Innocent

Meat and Potato Issues (cont’d) : Meat and Potato Issues (cont’d) Death Qualification of Jurors is Unconstitutional Proportionality Review by Ky Sup Ct is Unconstitutional A. Only consider D.P. cases B. No access to KRS 532.075(6) data

Meat and Potato Issues (cont’d) : Meat and Potato Issues (cont’d) Lethal Injection and Electrocution are cruel and unusual punishment Residual doubt bars a death sentence Cumulative error bars a death sentence

CR 76.16 Oral arguments : CR 76.16 Oral arguments (5)(a) In death penalty cases in which the appellant has been granted permission to file a brief exceeding fifty (50) pages, appellant shall file and serve upon appellee not later than fourteen (14) days before oral argument a notice of issues that appellant intends to argue orally, with specific reference to the argument number and page numbers of each issue in appellant's brief. If appellant fails to do so, without good cause, appellant's oral argument shall be limited to answering questions from the Court. In death penalty cases, appellant shall file any motion for leave to cite supplemental authority for oral argument not later than fourteen (14) days before oral argument, unless good cause is shown for a later filing. In death penalty cases, appellee shall file any motion for leave to cite supplemental authority for oral argument not later than ten (10) days before oral argument or ten (10) days after service of appellant's designation of issues for oral argument, whichever is earlier, unless good cause is shown for a later filing.