We are familiar with post-conviction proceedings under Kan. Stat. Ann. § 60-1507, petition for writ of habeas corpus, motions to correct illegal sentence, practice and procedure in the federal district court, and practice and procedure in the Tenth Circuit Court of Appeals.
Principal post conviction remedy (State):
The principal post-conviction remedy in the State of Kansas is a Section 2255-type remedy, authorized by Kan. Stat. Ann. § 60-1507. This remedy is applied for in the convicting court. The remedy is an independent civil action, not a post sentencing phase of the original criminal case. The remedy is authorized by a statute. There is a custody requirement applicable to the remedy. Newly discovered evidence of innocence is a ground for relief under the remedy.
Statute of Limitations (State):
A § 60-1507 motion must be filed within 1 year of (1) the final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (2) the denial of a petition for writ of certiorari to the U.S. Supreme Court or issuance of such court’s final order following granting such petition. This time limitation may, however, be extended by the court to prevent a manifest injustice.
Secondary post-conviction remedies (State):
- Habeas corpus
- Motion to correct illegal sentence
- Motion to correct arithmetical or clerical error (only for crimes committed on or after July 1, 1993, or unless extended by statute)
- Motion to modify sentence (only for crimes committed before July 1, 1993)
- Motion to correct clerical error
- Kansas has a post-conviction DNA testing statute, enacted in 2001
Federal Post-Conviction Remedies for State Prisoners
Title 28 United States Code § 2254 authorizes a state inmate to request relief from a federal district court when the inmate’s Constitutional rights have been violated by filing a petition for a writ of habeas corpus. This information sheet will outline the basic information you need proceed on your own with a § 2254 petition. You will find pro se § 2254 petitions, a petition for waiver of costs, a pro se form for a motion requesting appointment of counsel, and the statutes and rules governing § 2254 petitions, on the district court’s website for your area. Most significantly, before you can proceed in federal court, you must have exhausted your potential claims for relief in the state courts first. This will be explained in more detail below.
Here are several links that will provide local rules, forms and selected self-help guides:
Before you consider filing a § 2254 petition, you should recognize that there are significant barriers to federal habeas relief for people with state convictions. It is important to understand that the federal courts are very reluctant to grant relief from state convictions. Furthermore, in 1996 the U.S. Congress revised the habeas statute to create a strict filing deadline, as well as significant additional procedural barriers which did not exist before 1996. The filing deadline and procedural barriers are discussed in more detail below.
Finally, even if a federal court does grant a habeas writ, this usually means only that the state is required to give the defendant a new trial. It does not mean that the defendant necessarily goes free. There are rare exceptions to this rule.
2. General Limitations on Federal Habeas Relief
Grants of habeas petitions are very rare, for the following reasons:
First, in 1996 the United States Congress passed a law called the Anti-terrorism and Effective Death Penalty Act (AEDPA). The AEDPA created very strict barriers to state inmates’ attempts to gain relief under § 2254, the federal habeas statute. These barriers will be discussed in more detail below. You should understand that the AEDPA was specifically designed to limit the authority of federal courts to grant habeas relief to state inmates. Because federal courts are bound by federal statutes, they are required under AEDPA to be very strict and narrow in reviewing any claim you might raise in a habeas petition.
Second, the grounds for relief under §2254 are quite narrow. A federal court will deny a habeas petition unless the defendant can show convincingly that:
• the state court proceedings violated a principle of federal constitutional law clearly established by the U.S. Supreme Court; and the federal constitutional error “had substantial and injurious effect or influence” in determining the outcome of the state court proceeding [this is also called an “actual prejudice” standard]. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
Third, a series of statutory changes and federal court decisions have made it clear that certain kinds of claims may not be raised in a federal habeas petition. With very limited exceptions, you cannot do the following things in a habeas proceeding:
• try to establish a new legal or constitutional principle;
• raise a Fourth Amendment search or seizure challenge to try to exclude evidence used against you in the state proceeding See Stone v. Powell , 428 U.S. 465 (1976);
• challenge state statutes or state case law, unless you think they violated a clearly established federal
constitutional right; or
• challenge a witness’s credibility.
You may be able to raise these kinds of issues as violations of your federal constitutional right to effective assistance of counsel, but only if:
1) your attorney acted unreasonably in not properly raising the issue at the proper time in state court:
2) your attorney’s actions prejudiced your case; and
3) you properly raised the ineffective claim throughout the state court system.
3. Procedural Roadblocks to § 2254 Relief
a) Statute of Limitations
Before the AEDPA, there was no time limit for filing a § 2254 petition. The AEDPA created a new one-year limitation period for filing a § 2254 petition. Under the AEDPA, a § 2254 petition must be filed within one year from when your state conviction became “final.” See 28 U.S.C. § 2244(d)(1). If you file a § 2254 petition outside of the one-year limit, your petition will be dismissed without consideration of its merits. The date of finality for state convictions is usually complex and is based on a number of factors.
If your conviction became final before 1996, then the one-year period expired on April 23, 1997, a year after the AEDPA became effective. The one-year statute of limitations for filing a § 2254 petition is very strictly applied. However, 28 U.S.C. § 2244(d) does provide some very limited exceptions to this requirement.
This one-year period can be “tolled,” or extended, if a state post-conviction motion / petition is “properly filed” before the end of the one-year period. The deadline remains tolled while your state post-conviction motion is pending in the state courts. However, it does not remain tolled for the time during which you seek review of an unfavorable state court decision by the United States Supreme Court. Lawrence v. Florida, 549 U.S. 327 (2007).) Furthermore, the one-year period starts running again once your post-conviction motion is finally resolved in state court.
Theoretically, you may file a § 2254 petition outside of the one-year limit if your petition is filed within one year after the announcement by the U.S. Supreme Court of a new constitutional rule which is made retroactive to cases on collateral review. See 28 U.S.C. § 2244 (d)(1)(C). However, it is extraordinarily unusual for the Supreme Court to announce a new, retroactive, constitutional rule.
You may file a § 2254 petition outside of the one-year limit based upon newly discovered facts. However, you must file within one year of the date that the facts could have been discovered with “due diligence.” See 28 U.S.C. § 2244(d)(1)(D). Furthermore, the newly discovered facts must be sufficient to establish by clear and convincing evidence that, if not for the alleged constitutional error, no reasonable fact finder would have found you guilty of the offense. See 28 U.S.C. § 2254(d)(2)(B).
b) “Successive” Petitions
There are also strict rules which govern the filing of a second, or successive, § 2254 petition. See 28 U.S.C. § 2244(b). In general, a defendant is allowed only one federal habeas petition in a given case. However, there are very limited exceptions to this rule. These are similar to the exceptions to the one-year time limit, discussed above. That is, you may be allowed to bring a successive petition if you can show either:
• newly discovered facts which could not have been discovered earlier with due diligence, and which establish by clear and convincing evidence that, if not for constitutional error, no reasonable fact finder would have found you guilty of the offense. See 28 U.S.C. §2244(b)(2)(B); or
• a new constitutional rule of the United States Supreme Court which is made retroactive to cases on collateral review. See 28 U.S.C. § 2244(b)(2)(A).
To be safe, you should include all the constitutional claims you want to raise in your first § 2254 petition, because you almost certainly won’t have a chance to raise them at a later time. If you want to bring a successive habeas petition, you will first have to ask the Federal Circuit Court of Appeals for permission (or “leave”) to file a successive petition. See 28 U.S.C. § 2244(b)(3).
Your request for leave to file a successive petition will have to explain how your situation fits into one of the exceptions outlined above. Otherwise, you can expect the Court of Appeals to deny you leave to file a successive petition.
c) Exhaustion of State Remedies
You cannot raise a federal constitutional claim in a § 2254 habeas proceeding unless you have first “exhausted” the claim in state courts. There is a very complex and ever-changing body of case law on the exhaustion requirement. Basically, the exhaustion rule means that the state courts must have had the opportunity to consider both the factual and legal bases for a claim before a federal court will consider it in a § 2254 proceeding. This may require you to go back into state court to litigate a claim before you will be allowed to raise it in federal court.
For the most part, in order to exhaust a state claim, you must raise it on direct appeal, including an appeal to the State Court of Appeals and a petition for review (or the equivalent, depending on the state you are in) to the State Supreme Court. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999). If you did not raise the claim on direct appeal, then you will first be required to raise it in a state post-conviction motion, and then appeal any denial of that post-conviction motion, so that the state courts, including the State Supreme Court, have had a fair chance to consider it. Some states do not require a petition, or motion, to the state supreme court in order to exhaust all potential issues. Some states consider exhaustion at a mid-level court or court of appeal.
In particular, if you have a new evidence claim which arises more than one year after your conviction, you will probably have to go back to state court in a state post-conviction motion / petition and allow the state court to consider the claim. Only then should you try to raise the claim in federal court.
d) Procedural Default
If the state courts held that you waived or forfeited your right to challenge certain alleged errors, you will have significant problems getting those claims heard in federal court. You will have to show that the state procedural rule used to deny you relief was new and unexpected or inconsistently applied by the state courts. See Beard v. Kindler, 130 S. Ct. 612 (2009); Lee v. Kemna, 534 U.S. 362 (2002).
Alternatively, you will have to show “cause” for your failure to follow state procedures, as well as resulting “prejudice.” See generally Gray v. Netherland, 518 U.S. 152 (1996).
e) Petitioner’s Burdens
Under the AEDPA, § 2254 sets up a presumption about the correctness of state court factual determinations. A presumption is something that the law requires a judge to consider true, unless a person can prove otherwise. Under the AEDPA, a federal judge must presume that any factual finding by the state court is correct. As the petitioner in a federal habeas case, you will have to “rebut” (disprove) this presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
In addition, under the AEDPA, it is no longer enough for you to show that the state court erred and that the error prejudiced your defense. Rather, if the state court ruled on the merits of your claim (i.e., did not find waiver), then state court decision will stand, unless it is: 1) contrary to clearly established U.S. Supreme Court constitutional case law; or 2) an unreasonable application of such case law. See
28 U.S.C. § 2254(d); Carey v. Musladin, 549 U.S. 70(2006); Williams v. Taylor, 529 U.S. 362 (2000).).
f) Lack of Counsel
You do not have a right to a lawyer in a § 2254 proceeding. However, if you file a pro se § 2254 petition, you can certainly ask the federal court to appoint a lawyer to represent you, and we strongly encourage you to do so.
In your request for appointment of counsel, you might want to emphasize the procedural complexities of habeas proceedings, your limited access to legal materials, your limited access to the trial and appellate records in your state case, or your inability to conduct factual investigation from prison. You should understand, however, that courts rarely appoint lawyers for inmates in § 2254 cases.
If the federal court will not appoint a lawyer for you, you can also hire an attorney to represent you, if you or your family can afford one. NPCP is a non-profit organization who has experienced post-conviction attorneys, paralegal’s and specialists who can assist you at a very reasonable rate and we offer payment plans to fit almost every budget. Contact us for more information. Finally, you should understand that because there is no right to counsel in § 2254 proceedings, there is also no right to effective assistance of counsel in these proceedings. In other words, if your lawyer does not do a good job in your § 2254 case, you will ordinarily not be entitled to another § 2254 proceeding. Compare Coleman v. Thompson, 501 U.S. 722 (1991) with Holland v. Florida, 130 S. Ct. 2449 (2010).
4. How and Where to File a § 2254 Petition
A § 2254 petition is filed either in the federal district court for the district that includes the county in which you were convicted, or in the federal district court for the district that includes the institution where you are confined. See 28 U.S.C. § 2241(d). click here for a listing of all federal district courts and their links.
5. What to Say in Your § 2254 Petition
If you decide to file a pro se § 2254 petition, you should do your best to answer all the questions on the pro se form. We also suggest that you focus on telling the story of how you were harmed by what happened in the state court proceedings, and how you would like that injury to be fixed. Tell the story in specific factual detail— don’t get bogged down in the law. The facts must be compelling before you are going to convince any federal court to take an interest in the law, so focus on the facts of your case.
If you are unable to afford an attorney to help you with a § 2254, we strongly recommend you contact NPCP and discuss our rates and qualifying payment plans before attempting to proceed on your own.
6. Appealing the Denial of a § 2254 Petition
There are strict rules limiting a state inmate’s ability to appeal the denial of a § 2254 petition. See 28 U.S.C. § 2253. You do not have a right to have the Court of Appeals review a district court’s order denying your § 2254 petition. Instead, you have to ask the district court for permission to appeal from its denial, by requesting that the court issue a “certificate of appealability.” If the district court refuses to issue a certificate of appealability, you do have the right to ask the Court of Appeals to review that refusal to issue a certificate. However, the Court of Appeals rarely overturns a district court’s refusal to issue a certificate of appealability.
There are fairly complicated rules on appealing a district court’s judgment or order denying a habeas petition. You have to file a notice of appeal and a “docketing statement” in the district court within 30 days of the denial of your habeas petition. (See local federal circuit Rules). If you do decide to appeal the district court’s decision, you can file a motion requesting appointment of counsel at the same time that you file a notice of appeal.
It is very hard to obtain federal habeas relief from a state conviction. This has always been the case, and the AEDPA made it even more difficult. If there is another remedy still available to you, such as direct appeal or a post-conviction motion under state law, you may be wise to take that route. But remember to keep in mind the one-year filing deadline for a § 2254 petition. Also keep in mind that the rules regarding federal habeas corpus practice and procedure are constantly evolving and changing. NPCP specializes in keeping up with all current changes in federal and state law and we are here to help. Contact us today.