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Post-Convictions Remedies
UMKC School of Law
O'Brien, Sean D.

Post-Convictions Remedies


Spring 2011

I. Federalism and the habeas remedy

a. Habeas Corpus: Whether the State, taking into view the entire course of its procedure, has deprived … of due process of law?

i. Deprivation of life or liberty without due process of law

ii. Must exhaust other appellate processes first (writ of error, etc…)

1. Decision of Court of last resort is presumably final absent evidence to the contrary.

a. Direct Review: Trial →Appeal → Certiorari (denial = no effect on writ)→ Collateral Review/ State Habeas Review: Habeas Corpus →Appeal →Certiorari→ Federal Review: Federal Habeas→ Appeal→ Certiorari

iii. MO rules of criminal procedure: 29.015 or 24.035

iv. May not review irregularities or erroneous rulings.

1. Mere errors of law committed by a criminal court in the exercise of its jurisdiction over a case properly subject to its cognizance, cannot be reviewed by habeas corpus.

v. Claim

1. Facts

2. Legal basis

vi. Relief/ Court options

1. New trial

2. Set aside sentencing

3. Perfunctory memorandum order: denies a badly drawn petition stating simply that the petitioner is not entitled to relief.

b. Mob Domination

i. Frank v Magnum: (

1. Appeals to Supreme Court/ denial of new trial is final

ii. Moore v Dempsey: (lynch mob) Actual interference with the course of justice, there is a departure from due process of law

1. If a person is held in state incarceration in violation of his constitutional rights, that person has the right to petition federal courts with a writ of habeas corpus.

2. Constitutional claims are cognizable in federal courts. Federal courts have the province to adjudicate State claims with Constitutional controversy.

3. Adjudicate (try or review)

a. Decide legal issues?

b. Appropriate for a federal court to adjudicate a state prisoners Constitutional claims.

c. Brown v Allen: (1953)

i. Darr v Burford requires ‘’ordinarily” an application for certiorari to the US Supreme Court from the State’s denial of relief.

ii. The denial of a writ of certiorari imports no expression of opinion on the merits of the case.

1. There are many reasons for denying certiorari

a. Volume

b. Not important: Rule of 4 (if issue is so important that 4 Justices of the US Sup Ct agree, it should be granted certiorari)

c. Splits in circuit

d. Procedural

e. Merits

iii. If you have a federal constitutional claim, you can take that claim to federal court. (w/ the use of habeas corpus).

d. Denial of Counsel (6th Amendment Gideon v Wainwright)

i. Case v Nebraska (1965) (Unconstitutional denial of counsel/Post-Conviction Remedy Statutes)

1. Does the 14th Amendment require that States afford state prisoners some adequate corrective process for the hearing and determination of claims of violation of federal constitutional guarantees. YES!!!

a. States must afford prisoners some “clearly defined method by which they may raise claims of denial of federal rights” Young v Ragen 337 US 235.

b. Post-Conviction Review: Petitioner can file a verified motion asking for relief (vacate or set aside the sentence)

c. State post-conviction procedure coextensive with federal habeas corpus.

ii. Williams v Kaiser (1945)(Unconstitutional denial of counsel)

1. Missouri decided the Constitutional issue that Williams brought to it.

a. MO Sup Ct decided that Williams did not state a claim on which relief could be granted. That he waived his right to counsel by failing to bring issue on appeal waived this right.

b. US Supreme Ct held: W/o assistance of counsel, petitioner failed to raise Constitutional issue on appeal, and that w/o counsel Wil

he state court in the first instance, and then to return to federal court for review of his perfected petition. Yes but only in Limited Circumstances

1. Must Show:

a. Good cause for failure to exhaust

b. Unexhausted claims are potentially meritorious

c. No indication that the petitioner engaged in intentionally dilatory litigation tactics.

2. Limited in time (normally 30 days to exhaust in State court, then 30 days to re-file federal habeas)

3. Antiterrorism and Effective Death Penalty Act of 1996: 1 year statute of limitations is tolled during pendency of properly filed State court Post-Conviction or other collateral review proceedings, but not during federal court proceedings

a. Problem occurs when federal district court dismisses claims to exhaust in State court, but returning to Fed court isn’t possible b/c SOL has passed.

c. O’Sullivan v Boerckel (1999) 526 US 838: Is a prisoner/petitioner required to file for discretionary review by the States Supreme Court? Yes

i. Must exhaust your remedies with the highest court having jurisdiction over your claim (most often is the Court of last resort within your State)

ii. Boerckel filed a leave to appeal to the Illinois Supreme Court; however, he left claims out of that petition that he presented to the Federal Court in his petition for habeas relief.

iii. A state prisoner must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.