Three Most Common Grounds for a State Habeas Petition

A petition for a writ of habeas corpus usually can be used only for legal claims that depend on either new facts that were not in the record on appeal or on changes in the law that occurred after the judgment became final.

Deprivation or denial of the right to competent representation by an attorney (known as ineffective assistance of counsel or “IAC”) is perhaps the most common issue raised in habeas corpus petitions. Framing an issue as an IAC claim can help a petitioner overcome an argument by the state that an issue was forfeited because no objection or motion was made during the original proceedings. See In re Seaton (2004) 34 Cal. 4th 193, 199-200, 17 Cal. Rptr. 3d 633.

To win an IAC claim, a person must show that (1) the attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that but for the attorney’s errors the result would have been more favorable. Strickland v. Washington (1984) 466 U.S. 668, 104 S. Ct. 2052; 80 L. Ed. 2d 674; People v. Ledesma (1987) 43 Cal. 3d 171, 215-218, 233 Cal. Rptr. 404. A person who makes an IAC claim will usually need to present additional evidence or declarations to rebut the presumption that the attorney had a valid tactical reasons for their actions. People v. Pope (1979) 23 Cal. 3d 412, 426, 152 Cal. Rptr. 732; see, e.g., People v. Williams (1999) 77 Cal. App. 4th 436, 462, 92 Cal. Rptr. 2d 1; People v. Mendoza-Tello (1997) 15 Cal. 4th 264, 267-268, 62 Cal. Rptr. 2d 437.

The second most common situation in which a person may want to file a habeas petition is when important new evidence about the case is discovered. Sometimes a person can show that the reason the evidence was not discovered prior to trial was due to the trial attorney’s IAC failing to investigate the case fully. Other times, the defense may not have learned about the evidence before the trial because the prosecutor improperly failed to disclose it. United States v. Bagley (1985) 473 U.S. 667, 674-678, 105 S. Ct. 3375; 87 L. Ed. 2d 481; In re Seaton (2004) 34 Cal. 4th 193, 200, 17 Cal. Rptr. 3d 633. This is commonly called a “Brady” claim. See Brady v. Maryland (1963) 373 U.S. 83, 83 S. Ct. 1194; 10 L. Ed. 2d 215; see also In re Pratt (1999) 69 Cal. App. 4th 1294, 82 Cal. Rptr. 2d 260; In re Brown (1998) 17 Cal. 4th 873, 879-880, 72 Cal. Rptr. 2d 698. In other cases, it may be discovered that evidence presented by the prosecution was actually false. Penal Code § 1473(b)-(e); In re Wright (1978) 78 Cal. App. 3d 788, 144 Cal. Rptr. 535. Occasionally, new evidence arises that simple was unavailable at the time of trial. Penal Code § 1473(b).

There are two limits on habeas petitions regarding evidentiary issues. First, the question of whether evidence was obtained through an illegal search and seizure in violation of the federal constitution’s Fourth Amendment cannot be raised on state habeas corpus. In re Reno (2012) 55 Cal. 4th 428, 146 Cal. Rptr. 3d 297; In re Harris (1993) 5 Cal. 4th 813, 21 Cal. Rptr. 2d 373. Second, a claim that the evidence was insufficient to support the conviction cannot be litigated in a state habeas petition. Reno, supra; People v. Stanworth (1974) 11 Cal. 3d 588, 114 Cal. Rptr. 250.

The third most common issue raised in a petition for a writ of habeas corpus is to enable a person to get the benefit of a favorable change in the law. In re Walsh (1996) 49 Cal. App. 4th 1096, 57 Cal. Rptr. 2d 214; In re Saldana (1997) 57 Cal. App. 4th 620, 67 Cal. Rptr. 183. However, not all changes in the law apply retroactively. The general rule for new statutes is that the law does not apply retroactively (to cases that are already final), unless the legislature or the voters specifically say the law applies retroactively. Penal Code § 3. For changes to the law that reduce criminal punishment for a particular crime, there is a general rule that the change applies to cases that are not yet final unless the legislature or voters intended otherwise. In re Estrada (1965) 63 Cal. 2d 740, 48 Cal. Rptr. 172.

A case is not yet final if it is still on appeal, a petition for review of the appeal is still pending in the California Supreme Court, or a petition for writ of certiorari for the appeal has or still could be filed in the U.S. Supreme Court. People v. Vieira (2005) 35 Cal. 4th 264, 305-306, [25 Cal. Rptr. 3d 337; see also In re Brown (2012) 54 Cal. 4th 314, 142 Cal. Rptr. 3d 824 (Estrada rule did not apply to increases in good conduct credit); People v. Conley (2016) 63 Cal. 4th 646, 203 Cal. Rptr. 3d 622 (by creating process for people to petition for resentencing under more favorable new Three Strikes Laws, voters expressed intent for Estrada rule not to apply).

As for new legal principles announced by a court, changes to constitutional law apply to new cases and to cases that are not yet final when the new rule was created, unless the courts specifically say otherwise. Griffith v. Kentucky (1987) 479 U.S. 314, 322, 107 S. Ct. 708; 93 L. Ed. 2d 649. New judicial rules usually don’t apply retroactively to cases that were already were final when the new rule was announced, except that there may be retroactive application of (1) new substantive rules that forbid punishment for certain acts or certain people and (2) new procedural rules that are “implicit in the concept of ordered liberty.” Teague v. Lane (1989) 489 U.S. 288, 300-311, 109 S. Ct. 1060; 103 L. Ed. 2d 334; see e.g., Montgomery v. Louisiana (2016) 577 U.S. 190, 136 S. Ct.718; 193 L. Ed. 2d 599 (new judicial rule prohibiting mandatory LWOP terms for juveniles applied to cases that are already final); In re Lucero (2011) 200 Cal. App. 4th 38, 132 Cal. Rptr. 3d 499 (new judicial rule limiting scope of first degree felony murder applied to cases already final).

This article would not be possible without reference to the excellent treatise written by the Prison Law Office, California Prison and Parole Law Handbook. We thank them.