An odd non-habeas related case today from the Second Circuit about pro se litigants (found here) reminded me that I wanted to put up a post about pro se habeas petitioners.
Last week, I discussed the habeas grant to a pro se petitioner in Lewis See post here. I had mentioned that it was an extremely rare habeas grant to a pro se petitioner.
So, let’s talk more about pro se petitioners. The overwhelming majority of habeas petitions are filed pro se. Meaning that the petitioner is representing himself without an attorney. The main reason for that is that a habeas petitioner does not have a constitutional right to counsel in a habeas proceeding.
Everybody knows that criminal defendants have a constitutional right to counsel at trial. Since the landmark Supreme Court case of Gideon v. Wainwright in 1965, States are required to fund criminal defense lawyers to represent indigent defendants at the trial level. And trust me, indigent criminal defense is nothing like that retched Mark-Paul Gosselaar vehicle Raising the Bar on TNT. I guess I missed Saved By the Bell – 3L’s At Play.
Oddly, there is no constitutional right to an appellate attorney. At least in the abstract. However, courts have concluded that, if a State has a criminal appellate process, it must make that process available to indigent defendants since that process is available to rich defendants. It’s an equal access/equal protection kind of thing. So, in reality, a criminal defendant does have a right to a lawyer in a criminal appeal. The State must fund that, too.
However, this right ends after only a single level of appeal. That’s it, no more assigned attorney.
This means that any attorney who files a habeas case for an indigent defendant is doing it, for the most part, pro bono. I guess some organizations out there may have some funding (and there are some law school clinics that take on these cases). But for the most part, the lawyer is filing it out of conviction. You can read into that sentence as far as you’d like. But even where there is conviction, there may not be a financial means to do it, so many attorneys simply have to back out of the habeas business.
This leaves most indigent criminal defendants the unenviable task of pursuing these complicated beasts on their own. Some indigent defendants are intelligent enough to do it. Most aren’t. Legal stuff is hard enough, but habeas corpus is particularly complex (See pretty much all of the FAQ’s). I doubt that the original intent of creating all of the procedural hurdles was to frustrate the pro se petitioner specifically. But it certainly does make it extra tough on the pro se. It means that many pro se petitioners raise issues that simply cannot be reviewed in habeas proceedings.
There’s another aspect to all of this. Pro se petitioners are not always adept in the law and may not know how to frame a legal argument in the strongest way. In fact, in many instances, a pro se pleading is not artfully drafted. I wish I could take credit for that term “artfully drafted.” But its from the case law.
In the federal system, the federal courts are required to liberally construe all pro se pleadings. But what does that mean? How far can a federal court construe a pleading? Clearly, a court cannot make an argument for a litigant. That would not be fair to the other side. From experience, I can say that it is hard to know where to draw the line between trying to straighten out a confusing argument and actually reinterpreting the argument in such a way that it becomes something different from what the pro se was advancing.
The federal courts are pretty mindful of that. They also have the statutory power to assign counsel, so long as the petitioner is indigent. And the courts can even do it (at least in the Second Circuit) without the pro se petitioner asking for it. It’s called doing it sua sponte and, in English, it means “on it’s own.”
As an aside, sua sponte is a great term. When I first learned the term when I was working for the federal courts, I immediately incorporated it into my at home lingo. For example, at the time, I was living with my twin sister. One night, we were watching television and she had the remote. Without asking, she changed the channel. I yelled out, “You can’t change the channel sua sponte!” She was so completely confused that she didn’t know what to do. It allowed me to yank the remote out of her hand and turn the channel back. I recommend you incorporate it into your daily life.
Back to habeas. Because a court has the power to assign counsel to indigent pro se petitioners, it often will where it feels that there is something to be said about the claims in the petition. Actually, the standard is known as “likely merit.” Kind of a mushy term, but, for the most part, workable. This means that, before deciding upon a pro se case with a good claim, a court will appoint counsel to make sure that the claim gets fully litigated by lawyers on both sides. It gives the court a little comfort no matter which way it ends up deciding the case.
And that brings us back to Lewis. A pro se litigant was granted habeas. It appears that the claim was so strong, and the pro se petitioner had done such a competent job of presenting it, that the court felt comfortable granting relief without first having a lawyer step in for the petitioner. As you can now see, this was a pretty rare thing.
Last week, I discussed the habeas grant to a pro se petitioner in Lewis See post here. I had mentioned that it was an extremely rare habeas grant to a pro se petitioner.
So, let’s talk more about pro se petitioners. The overwhelming majority of habeas petitions are filed pro se. Meaning that the petitioner is representing himself without an attorney. The main reason for that is that a habeas petitioner does not have a constitutional right to counsel in a habeas proceeding.
Everybody knows that criminal defendants have a constitutional right to counsel at trial. Since the landmark Supreme Court case of Gideon v. Wainwright in 1965, States are required to fund criminal defense lawyers to represent indigent defendants at the trial level. And trust me, indigent criminal defense is nothing like that retched Mark-Paul Gosselaar vehicle Raising the Bar on TNT. I guess I missed Saved By the Bell – 3L’s At Play.
Oddly, there is no constitutional right to an appellate attorney. At least in the abstract. However, courts have concluded that, if a State has a criminal appellate process, it must make that process available to indigent defendants since that process is available to rich defendants. It’s an equal access/equal protection kind of thing. So, in reality, a criminal defendant does have a right to a lawyer in a criminal appeal. The State must fund that, too.
However, this right ends after only a single level of appeal. That’s it, no more assigned attorney.
This means that any attorney who files a habeas case for an indigent defendant is doing it, for the most part, pro bono. I guess some organizations out there may have some funding (and there are some law school clinics that take on these cases). But for the most part, the lawyer is filing it out of conviction. You can read into that sentence as far as you’d like. But even where there is conviction, there may not be a financial means to do it, so many attorneys simply have to back out of the habeas business.
This leaves most indigent criminal defendants the unenviable task of pursuing these complicated beasts on their own. Some indigent defendants are intelligent enough to do it. Most aren’t. Legal stuff is hard enough, but habeas corpus is particularly complex (See pretty much all of the FAQ’s). I doubt that the original intent of creating all of the procedural hurdles was to frustrate the pro se petitioner specifically. But it certainly does make it extra tough on the pro se. It means that many pro se petitioners raise issues that simply cannot be reviewed in habeas proceedings.
There’s another aspect to all of this. Pro se petitioners are not always adept in the law and may not know how to frame a legal argument in the strongest way. In fact, in many instances, a pro se pleading is not artfully drafted. I wish I could take credit for that term “artfully drafted.” But its from the case law.
In the federal system, the federal courts are required to liberally construe all pro se pleadings. But what does that mean? How far can a federal court construe a pleading? Clearly, a court cannot make an argument for a litigant. That would not be fair to the other side. From experience, I can say that it is hard to know where to draw the line between trying to straighten out a confusing argument and actually reinterpreting the argument in such a way that it becomes something different from what the pro se was advancing.
The federal courts are pretty mindful of that. They also have the statutory power to assign counsel, so long as the petitioner is indigent. And the courts can even do it (at least in the Second Circuit) without the pro se petitioner asking for it. It’s called doing it sua sponte and, in English, it means “on it’s own.”
As an aside, sua sponte is a great term. When I first learned the term when I was working for the federal courts, I immediately incorporated it into my at home lingo. For example, at the time, I was living with my twin sister. One night, we were watching television and she had the remote. Without asking, she changed the channel. I yelled out, “You can’t change the channel sua sponte!” She was so completely confused that she didn’t know what to do. It allowed me to yank the remote out of her hand and turn the channel back. I recommend you incorporate it into your daily life.
Back to habeas. Because a court has the power to assign counsel to indigent pro se petitioners, it often will where it feels that there is something to be said about the claims in the petition. Actually, the standard is known as “likely merit.” Kind of a mushy term, but, for the most part, workable. This means that, before deciding upon a pro se case with a good claim, a court will appoint counsel to make sure that the claim gets fully litigated by lawyers on both sides. It gives the court a little comfort no matter which way it ends up deciding the case.
And that brings us back to Lewis. A pro se litigant was granted habeas. It appears that the claim was so strong, and the pro se petitioner had done such a competent job of presenting it, that the court felt comfortable granting relief without first having a lawyer step in for the petitioner. As you can now see, this was a pretty rare thing.
Comments