by Attys. Kent Russell & Tara Hoveland

This column provides “Habeas Hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on “AEDPA,” the federal habeas corpus law that now governs habeas corpus practice in courts throughout the United States.

IAC Basics

Most IAC claims are made against trial counsel, which is the focus of this column.

Simply stated, IAC has two elements: (1) deficient performance and (2) prejudice. A lawyer performs “deficiently” when he or she doesn’t do the things to defend the client that any reasonable lawyer would do. “Prejudice” requires the petitioner to demonstrate a reasonable probability that, but for the trial lawyer’s errors, the result of the trial would have been more favorable to the defendant.

As easy as it is to allege an IAC claim using the above principles as a guide, actually winning an IAC claim is a formidable challenge, for the following reasons:

• Deficient performance must be analyzed from the perspective of the trial lawyer at the time—i.e., when it’s impossible to know whether a particular defense will work or not—rather than with 20-20 hindsight. Therefore any “strategic” choice that a reasonably competent lawyer might have made at the time can’t be found to be deficient performance just because it didn’t ultimately succeed with the jury.

• As for prejudice, most cases involve attorney error of some kind. Therefore, just making a laundry list of things that, looking back through the lens of a guilty verdict, could or should have been done by the lawyer, won’t cut it if the evidence against the defendant was sufficiently strong that the defendant would probably have been convicted anyway.

• IAC claims must be “exhausted” first by having them denied on the merits in the state’s highest court. But state habeas judges will bend over backwards to justify the decisions that trial counsel made “in the heat of battle,” and to find that any errors that did occur were so trivial that they had no effect on the outcome. Then, when the case gets to federal court, SCOTUS law requires that the federal judge “defer” to the state denial(s) by upholding them so long as any “reasonable jurist” might have made the same ruling for the same or any other good reasons. This test is so tough on the petitioner that only a very few IAC claims will survive it. So, be prepared for this daunting challenge, and only go forward with IAC claims in the most serious or egregious instances of attorney ineffectiveness.

Documenting IAC

Whether on state or federal habeas corpus, it is vital that your habeas petition include documents that support your IAC claim. And, if and when you get to federal habeas corpus—where the slim chances for relief on habeas corpus are nonetheless the best—the federal court will be limited to reviewing items that can be found in the state court record, such as the trial record, the appellate record, and all the documents you have added during the post-conviction relief process.

While in state court, beef up the record as much as possible with the following items:

• Declaration from trial counsel. Because counsel’s reasons for his or her actions or inactions are part of the “deficient performance” element of IAC, it is important to obtain a declaration explaining why he did or did not do the things you are alleging. Often trial counsel will refuse to provide such a declaration. If this happens, you should provide your own declaration stating what efforts you took to obtain it.

• Declarations from you and/or your family regarding any relevant discussions you had with counsel, including how many times s/he conferred with you privately regarding your case and anything else that supports your factual allegations. Make sure the declarant has personal knowledge of these facts and is willing to attest to them under penalty of perjury.

• Declarations, reports, or evaluations from experts as to what they could have testified to at trial. Having a qualified expert first review the transcripts and discovery from the case and then provide a declaration is best. However, if that is impossible due to cost constraints or pro per status, attach scientific or professional articles that support your claim. This is less than ideal, but if you get a hearing, you can ask the court to appoint an expert for you at that time.

• If you are alleging there is evidence that should have been presented at trial, but was not, you must submit the missing evidence or explain why you can’t without a discovery order or a hearing. Most commonly the evidence will take the form of declarations from witnesses who were not contacted by counsel or called at trial, but could and should have been.

While in federal court, use the following hints for attaching exhibits to your petition:

• File the same exhibits, declarations, record excerpts, court opinions, etc. that you filed in state court. This shows the district court what the state court saw when reviewing your claim. Attaching new evidence runs the risk of having the federal court decide that the new exhibits violate the exhaustion rule because they were never presented to the state’s highest court.

• If there are portions of the trial record that support your claim, attach them too. For example, if you are alleging that trial counsel failed to object to a jury instruction, attach a copy of the complete set of instructions given, as well as the closing arguments of the prosecution (if they relied upon the instruction when arguing their case to the jury.) This will help you prove the prejudice element of your IAC claim.

Briefing the Reply (Traverse)

After the state files its Answer, you can file a Reply (traditionally known as a Traverse) “within a time fixed by the judge.” Although the filing of a Reply is not required, if you do not do so, the factual allegations in the Answer will almost certainly be deemed true. Feel free to make a timely request for at least one extension of time to file the Reply.

In drafting your Reply:

• Carefully review the statement of facts in the Answer and dispute/rebut any facts that are not true, not entirely true, or do not tell the whole story.

• Often the state will quote the state court’s statement of facts in their Answer, which is proper because those are the facts the federal court must presume to have been “reasonably determined.” If, however, the state alleges facts that were not expressly stated or found by the state court, say so, and dispute them. You may also consider rebutting these disputed facts by alleging contrary facts in the record that are favorable to you.

• If the state disputes any of the allegations made in the declarations you attached, or argues that they do not support your claim, obtain “rebuttal” declarations that clarify the facts or include the omissions alleged by the state. It is important you explain that these new declarations are offered in rebuttal to decrease the risk the court will exclude them as “new” evidence, which is prohibited under current law (the “Pinholster” exclusionary rule, requiring the federal judge to rule on the basis of the state record alone).

Filing Objections If the Petition Is Denied

After the Reply (or any post-hearing briefing) is filed, if you did not consent to the magistrate judge’s jurisdiction, you will receive a report that will include the Magistrate Judge’s findings and his/her recommendation on whether to grant or dismiss your petition. Your “Objections to the Magistrate’s Report and Recommendation” must be filed within 14 days of the court’s Order, or within such additional time as is provided for by a timely extension request (which you are encouraged to seek). Although Objections are not required, failure to file them will impair or prevent you from challenging facts on appeal that were found by the District Court.

In drafting your Objections:

• Object to all factual findings that you believe the magistrate got wrong or were misconstrued. This gives the district court an opportunity to review those findings de novo, deciding for itself whether to accept, reject, or modify them in its ruling.

• Although the district court must review the magistrate’s legal conclusions de novo even if no objections are filed, it is prudent to object to any legal conclusions with which you disagree. This can be particularly important in disputing the magistrate’s finding that the error was harmless. You were at trial and are in a better position to assess how the alleged errors may have affected the jury’s verdict in light of the arguments and evidence presented.

Evidentiary Hearing: Witness Selection

If you are fortunate enough to be one of the few petitioners granted an Evidentiary Hearing, you’ll have to decide what witnesses to call. Here are some hints:

• Calling trial counsel: essential.

It’s the petitioner’s burden to demonstrate that trial counsel’s actions or failures to act were not motivated by “strategy.” In most cases, trial counsel will come up with reasons for doing or not doing what is alleged to be deficient performance, and it will be up to the petitioner to show that these reasons were bogus. To do this effectively, it’s almost always necessary to call trial counsel as a witness and cross-examine him or her at the hearing. (See below for tips on cross-examining trial counsel.)

• Calling experts: recommended.

Expert witnesses are often not needed to establish deficient performance, because the judge is an experienced lawyer and able to evaluate counsel’s performance without having another lawyer tell him or her how to do it. On the other hand, experts can be useful in showing how counsel’s errors and omissions adversely affected the outcome. For example, where the claim is that the lawyer was ineffective in failing to call an expert witness, an expert should testify at the hearing to all of the favorable evidence that would have come in had counsel used an expert at trial.

• Calling the petitioner: strongly discouraged.

When an evidentiary hearing is held in response to a claim of IAC, the judge will typically have issues that s/he wants to focus on, such as whether counsel’s choices were strategic in nature or whether the evidence was so strong that, even assuming error by trial counsel, it didn’t make any difference in the verdict. It is a rare case in which anything that the petitioner could say on the witness stand would prove to be favorable on any of these IAC issues. Furthermore, exposing the petitioner to cross-examination by a skilled prosecutor is dangerous at best and at worst can create a side show that diverts attention toward the defendant’s misdeeds and away from what counsel did wrong at the trial. Consequently, in the vast majority of cases, have the defendant present, but don’t call him or her as a witness.

Cross-Examining Trial Counsel at Evidentiary Hearing

Below are some Hints for conducting an effective cross-examination of trial counsel at the hearing:

• In hearing preparation, consult sources such as state bar rules, defense attorney guidelines, etc., which set forth the high standards a criminal lawyer must maintain when investigating and defending a criminal case. Get counsel to agree that these high standards were required in the case at hand.

• Google trial counsel to get an idea of the limitations on counsel’s experience (e.g., limited trial experience in general or specifically with respect to the key issues in the case at hand). Also look for prior instances in which the lawyer may have been publicly rebuked or found by a court to be ineffective.

• In the opening phase of the cross-examination, before things get confrontational, have the lawyer talk about the strengths in the defense case. (There must be some, since the lawyer decided to try the case instead of opting for a plea bargain.) Later, when you get to the prejudice issue, you can use these favorable aspects of the case to rebut the AG’s claim that the evidence against the defendant was so overwhelming that counsel’s errors had no effect on the outcome.

• Make sure you review all of trial counsel’s files and pick out particular items that tend to prove your contentions: for example, the lawyer’s time records or investigation files, which will document what the lawyer did or didn’t do while prepping for trial. If you find any smoking guns, mark them in advance, make several copies (one extra for the clerk, judge, opposing counsel, and trial counsel), and confront counsel with them at the hearing.

In the common situation in which trial counsel is arguing that what went wrong in the case resulted from “tactical” decisions that went awry, focus on the pretrial investigation that was done (and not done) before any of those tactical decisions were made.

When it comes time to focus on the facts of the case, don’t ask counsel “why” s/he did something, because that opens the door to the lawyer to come up with “strategic” reasons the judge can use to negate deficient performance. Rather, focus on specific things the lawyer could have done but did not do before deciding to forgo any further investigation that might have helped the defense. For example, if the defense lawyer didn’t call an expert, even though the prosecution did, ask the lawyer to discuss all the actions s/he took to determine that an expert wasn’t needed before deciding not to call any expert. 

Law partners Kent A. Russell and Tara K. Hoveland specialize in habeas corpus. Kent has practiced criminal law for over 45 years, has consistently received Martindale-Hubbell’s highest rating for legal excellence and legal ethics, and is the author of the California Habeas Handbook 2.0, which thoroughly explains state and federal habeas corpus, parole, and other post-conviction remedies. Tara, who has 25-plus years of criminal law experience and is a certified specialist in appellate law, is a contributing editor for the Handbook, and is admitted in both CA and AZ. To buy the California Habeas Handbook 2.0, use the optional order form on the website – russellhabeas.com – or mail your check or money order for $79 and the recipient’s mailing address to: Kent Russell / “CHH” / 3169 Washington Street / San Francisco, CA 94115.

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