A Petition for a Writ of Habeas Corpus has long been the safety net that ensures the United States criminal justice system remains a fair one. However, over recent years, both lawmakers and judges have restricted access to the Petition for a Writ of Habeas Corpus. In large part, this is due to the pervasive belief that judges and juries “got it right” the first time and that giving inmates a second bite at the apple opens to door to frivolous litigation. However, the Great Writ’s protections are instrumental in ensuring fairness and equality in what is now understood to be an imperfect system. In this article, leading California Appeals lawyers of Power Trial Lawyers, P.C. discuss recent changes to the Petition for a Writ of Habeas Corpus.

Over the past 50 years, the United State Supreme Court has implemented a wide range of restrictions on inmates’ access to the writ of habeas corpus. For example, over the past few decades, the U.S. Supreme court has held that Fourth Amendment violations cannot be relitigated through a writ of habeas corpus. The Court has also determined that the Great Writ can only be used to enforce existing constitutional rights and that federal courts cannot hear claims through a habeas petition unless the inmate presented (and exhausted) those claims in state court.

However, perhaps the most significant law affecting the writ of habeas corpus over the last century was the Anti-Terrorism and Effective Death Penalty Act, or AEDPA. Under AEDPA, inmates have just one year to file a federal habeas petition after exhausting their state-court remedies. AEDPA also imposes a strict requirement that an inmate includes all their claims in a single filing, meaning a second or successive writ of habeas corpus is frequently summarily denied unless it raises new and compelling evidence.

Adding to the challenges inmates already face under AEDPA is the fact that the U.S. Supreme Court justices have read AEDPA to impose additional restrictions, making access to the courts even harder to obtain. For example, in recent months, the United States Supreme Court issued two important habeas corpus opinions, each limiting already hard-to-obtain access to the courts.

Shinn v. Ramirez

In Shinn v. Ramirez, the Court held that, as a general rule, claims of ineffective assistance of counsel are not cognizable in a federal habeas corpus petition unless they were presented to the state court, either on direct appeal or through a state writ of habeas corpus. However, this raises some obviously procedural problems from the inmate’s perspective. For example, many states, including California, typically do not permit an inmate to raise issues of ineffective assistance of counsel on direct appeal. This limits an inmate to raising their ineffectiveness claims in a state collateral attack; however, the time limit for doing so is extraordinarily short—one year in many states. Thus, if an inmate learns of counsel’s failures after this one-year period has elapsed, federal courts are generally prohibited from hearing the merits of an inmate’s claim. And to the extent that new evidence arises which was not previously available, it appears that will not serve as an exception, as Shinn v. Ramirez presented these exact facts.

Brown v. Davenport

In Brown v. Davenport, the court held that to have a claim heard through a federal writ, an inmate must meet two strict standards. The first is the standard announced in Brecht v. Abrahamson, where the court held that a state prisoner seeking to challenge his conviction on federal habeas corpus must show that the error had a “substantial and injurious effect or influence” on the outcome of his trial. The second, contained in 28 U.S.C. Section 2254(d) requires an inmate to establish that their conviction was either (1) contrary to or an unreasonable application of clearly established federal law, or (2) based on an “unreasonable determination of the facts” presented in the state court proceeding.

More concerning, however, is Justice Gorsuch’s suggestion that the Great Writ can only be used to challenge those cases in which the court lacked jurisdiction to try a defendant in the first place. This would effectively eliminate habeas corpus, at least insofar as it is a mechanism for challenging state court convictions.

The bottom line is that the future of the Great Writ is in question. If the conservative justices on the U.S. Supreme Court are presented with the opportunity, they very well may reduce habeas corpus to the point where it can no longer challenge convictions that most of society would say are unjust. Of course, lawmakers could then pass legislation reviving the writ; however, passing legislation that favors the criminally accused has historically been unpopular.

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