Habeas Update: Twelve Rules For Surviving The AEDPA

For those who litigate federal habeas corpus cases, the arc of habeas law has bended steadily toward procedural traps and obstacles that tolerate and enable violations of federal constitutional rights in state courts. In an effort to encourage development of state court records that permit federal courts to more frequently reach the constitutional merits, we have posted this article entitled Recent Supreme Court And Ninth Circuit Habeas Decisions: Why We Need Full Factual Development And Preservation Of Issues In State Court. As with surgeons who use checklists to improve medical outcomes (and as in the movie Zombieland Columbus keeps rules for survival), we have come up with twelve rules for state practitioners that can ameliorate the threats to merits review posed by the Antiterrorism and Effective Death Penalty Act of 1996 and recent construction of that statute. For example:

Rule # 1
Double Tap: If The Issue's Worth Raising, It's Worth Federalizing.

Rule # 6
Full Facts First: Make Sure The State Factual Record Has Every Possible Evidentiary Support For Your Position.

Rule #9
Cardio: Develop The Stamina To Raise Federal Issues On Appeal And Petition For Review Because They Must Be Presented To The Highest State Court To Be Exhausted.

The article also addresses developing issues such as why there should be no diligence requirement in Schlup actual innocence cases and why we need to develop evidence regarding the adequacy of state review procedures. If you have thoughts on modifications, deletions, and additions to the rules, please email your ideas. If there are state practitioners who might find the article useful, pass it on.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon