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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Wednesday, January 21, 2015

Federal Habeas Applicant May Have New Habeas Counsel instead of the Habeas Lawyers Who Missed His Application Deadline.

I like practicing post-judgment law because there are very few unremediable errors. In seeking federal habeas corpus relief from a criminal conviction one irredeemable error is to file the application after the one-year deadline of the Antiterrorism and Effective Death Penalty Act.
You can seek federal habeas relief from a state or federal conviction. Calculating exactly what the deadline is is very technical. Basically, the AEDPA clock does not run when a conviction is not final because of rights of appeal.
Let's start with a state conviction. If the state offers an appeal, an impoverished defendant must be offered an appeal with an appointed lawyer at no charge to the defendant, not even for the clerk's record and the trial transcript. 40 of America's 50 states have at least one court of appeals intermediate between the trial court and the state's highest court.  In those states, the convict has a right to an appeal to one of those intermediate courts at no cost to the convict, but not to the state's highest court. In the other ten states, the appeal you get is to the highest court. Every state offers state habeas relief, It is nearly always wise, for strategic reasons, to seek your habeas writ after you have exhausted your appeals. The most common example of a reason to seek your writ after you've exhausted your appeal remedies is that you generally can't complain of ineffective assistance of counsel on appeal, but you can on a writ application. Now, if you're seeking relief from a state sentence, you can't get federal relief like this unless you have exhausted all of your state remedies. While your state habeas application, is pending, the AEDPA clock is not running. But when you are not open for appellate relief or writ relief, the clock does run, and if you don't file your federal writ application within that year, it is highly likely lost forever.
A federal sentence is easier. Because federal authority outranks state authority, there are no state remedies remedies to exhaust. The AEDPA clock only starts to run after there is no appellate power-- it's all federal authority. Like for the state conviction, wait more than your one year to apply for your federal writ, and it will almost surely be lost.
The Supreme Court of the United States decided yesterday that a death-penalty defendant whose appointed habeas counsel waited too long to file his federal writ application did not have to keep them while they tried to get around their mistake and get a late appeal. He had a right to have them dismissed and replaced with other federal appellate counsel who would not have the conflict of interest in having to defend their own error while trying to get it excused.
Justice Alito dissented, joined by Justice Thomas. They argued that their court should have decided whether or not it was possible to toll (that is, avoid) the deadline. If the deadline could not be tolled, it would not matter if the defendant got new counsel or not.
Christeson v. Roper, 574 U.S. ___, No. 14-6873 (Jan. 20, 2015)  (Roberts, C.J.,  Scalia, Kennedy, Ginsburg, Breyer, Sotomayor, Kagan, JJ.) (per curiam)

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