Habeas Corpus Blog

Habeas Corpus - Cone v. Bell

Cone v. Bell, __ U.S. __, 2009 WL 1118709 (April 28, 2009)

Good decision today out of the Supreme Court for habeas petitioners!  It’s available here.

In Cone v. Bell, the Supreme Court concluded that a state court’s decision that an issue was “procedurally defaulted” (see FAQ 5) did not prevent the federal court’s from reviewing the claim since the state procedural bars did not represent independent and adequate state law grounds.

At a later date, I’ll provide a more in depth analysis of this case, including what it means for a procedural bar to represent an independent and adequate state law ground.  But that’ll have to wait to when I have had a chance to sit down and read through it.

One thing that can be noted right away is that this was a far more traditional break down of liberal vs. conservative judges.  The decision was written by Stevens and he was joined by who you would expect: Ginsburg, Souter, Breyer and Kennedy.  Roberts concurred in the judgment.  Alito concurred in part and dissented in part.  And Scalia and Thomas dissented.  It’s nearly a perfect representation of the Court’s current ideological spectrum (except for Alito's partial concurrence; in my mind, he is kind of in between Scalia and Thomas on the spectrum).  Kind of interesting.

Habeas Corpus - De Novo vs. Deference

I want to revisit my previous discussion of the recent Supreme Court discussion in Mirzayance.  You can see that post here. 

One thing that I wanted to discuss, but which is probably pretty obvious, is this question of de novo review vs. deferential review under the review standard contained in 2254(d) (see FAQ 3).

As I mentioned in the previous post, de novo review is a Latin term that means "as if new."  Prior to the passage of the AEDPA (see FAQ 2), federal courts in a habeas proceeding would review claims de novo.  In other words, it really wouldn't matter what the state court said about any particular claim.  The federal court would engage in its own analysis of the claim and determine whether a petitioner's federal rights had been violated.  From a federalism point of view, this type of review made a lot of sense.  The federal courts are typically the courts tasked with the job of determining the meaning of federal rights.

However, the AEDPA altered this equation.  That statute changed the standard of review under which habeas courts review claims raised in federal habeas proceedings.  Now, federal courts are required to be highly deferential to the state court analysis and can only grant relief where the state court decision was either contrary to, or an unreasonable application of, clearly established Supreme Court law. (once again, see FAQ 3)  This means that, to grant relief, the state court must not only be wrong, but be really, really wrong.  It altered the balance between the state and federal courts on who gets to decide the meaning of federal rights.  The federal courts, at least the lower courts, no longer have the same ability to define the contours of federal rights for state prisoners.  It's just about whether or not the state courts got it really wrong.  In addition, the review is now focused solely on the meaning and application of Supreme Court precedent.  Whatever the lower federal courts say about the meaning of a constitutional right does not matter on habeas review.  It really is an oppressive, oppressive standard.

But the statute says that this standard applies where there has been an adjudication on the merits.  What happens then when there has been no official adjudication on the merits?  There are situations where a federal claim is raised in the state courts and the state courts, for whatever reason, choose not to address it.  It actually not all that unusual.   The state court will just issue an opinion that is silent on the matter.

Then what's a federal court to do?  How can a federal court defer to a state court determination if there is really no substance to that decision? 

Habeas petitioners have been successful in getting federal courts, including the Second Circuit, to review a claim de novo if the state courts decided not to address a federal claim.  It makes sense, and obviously, is a good thing for the habeas petitioners.

The question is, does Mirzayance alter the balance?  If I had to guess, I would say no.  The problem for habeas petitioners is that six of the judges did address a claim under the deferential standard even though the state courts were silent on the issue.  Nevertheless, while these judges did utilize this standard, the Court most certainly did not expressly state that the standard had to be used in that situation.  It can be implied from the decision that it should be, but that's not really good enough to definitively answer the question.  Indeed, the Court's decision could be read as saying that the standard of review did not matter at all in that case since, under the more generous de novo review, the claim failed.  So clearly this remains an open question. 

I don't think it's clear where the judges would come out if forced to choose.  I really only see this issue getting back up to the Court if a federal court rules in favor of the petitioner under a de novo review. In such a situation, the result may depend on the strength of petitioner's underlying claim.  Let's say the Court grants review and agrees with the circuit court that the petitioner should win under a de novo review, but maybe not under the more deferential standard.  If five judges take an outcome determinative view of the case (which can happen), then the de novo standard would win.  I actually think that this is a real possibility since the arguments on both sides for whether or not the standard of review should apply in the face of state court silence are both pretty good. 

For now I will stop the hypothesizing.  I think it will actually be a long time before this question is squarely presented to the Supreme Court. 

In the end, I would love to say that the different types of review do not matter.  But I fear that they do.  As mentioned before, 2254(d) is oppressive.  While there have been plenty of cases where habeas has been granted under 2254(d), I would guess that plenty more potentially meritorious claims have fallen victim to the required deference.

Habeas Corpus - Pro Se

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.

Habeas Corpus - Supreme Court Edition

Knowles v. Mirzayance, __U.S. __, 129 S. Ct. 1411 (March 24, 2009) (located here)

Back in March, the Supreme Court decided Knowles v. Mirzayance.  I believe that one of the reasons the Court may have decided to hear it originally was to address an open question about whether a federal court should analyze a claim under the deferential standard of review (see FAQ 3) when the state court did not issue a reasoned opinion on the claim.  In the end, the Court decided not to tackle that potentially tricky issue since all nine judges agreed that the defendant’s claim should be denied.  The only intriguing issue is the breakdown of the judges, which I’ll get to in a second.

The issue: A defendant argued that his lawyer was constitutionally ineffective during the guilt phase of a death penalty case because his lawyer convinced him to withdraw his insanity defense.

The facts: It’s slightly confusing, but in California, when a defendant seeks to plead not guilty by reason of insanity, the court must hold two separate proceedings.  First, a trial, at which the defendant’s guilty would be determined.  And then a separate proceeding at which the jury would decide whether or not he was insane. 

Here, during the guilt stage, the defendant presented evidence of insanity, hoping to get a conviction on a reduced count.  The jury still convicted him of first-degree murder. The attorney then recommended that the defendant not pursue an insanity defense at the insanity hearing.  At a later hearing, defense counsel did offer some reasons for his recommendation, mainly that the defendant’s parents effectively refused to testify at the hearing; their testimony would have provided “emotional impact” to the defense. 

The California state courts rejected the defense argument that counsel’s actions were constitutionally deficient without offering any reasons for the rejection. 

The defendant then brought a federal habeas petition.  The case bobbed up and down in the federal courts until the Ninth Circuit (which covers several western States including California) upheld the lower court’s conclusion that counsel was ineffective because counsel did not make a “true tactical choice” in abandoning the insanity defense as counsel had nothing to gain by dropping the defense.

The Supreme Court rejected the Ninth Circuit’s approach and concluded that counsel was not ineffective.  The Court did not address the question of whether to review the claim should be reviewed under the deferential standard of review in the AEDPA (see FAQ 2) or de novo (meaning “as new” without any deference to the state courts).  Six of the judges found that, under either method of review, the Ninth Circuit’s reasoning had to be rejected.  Part II of the opinion, in which these six judges reviewed the Ninth Circuit’s decision under the deferential standard of review, can best be described as a smack down. The Supreme Court is very fond of reversing Ninth Circuit decisions.  Here, they took great glee in offering the smack down.

Three of the judges – Scalia, Souter and Ginsburg – did not join the smack down.  For the analysis of the claim, they only joined Part III, which addressed the claim de novo.

So, what gives?  Why did these three judges not join the smack down?  And why these three judges in particular?  Isn’t Scalia considered a conservative judge who just loves going for the smack down?  And what about Stevens, one of the more liberal judges?  Why did he join in the decision that addressed the claim under the deferential standard of review?

I wish I could offer a grand unifying theory here, but there really is no clear answer.

Different people around the internets have suggested different theories as to why this happened.  One theory suggested in the comments to this post at Sentencing Law and Policy is that the three judges decided not to join the majority since there was no reason to analyze the claim under the deferential standard of review since, even under the broader non-deferential standard, the claim had to be rejected.  In other words, it was not necessary to address the claim under the more restrictive standard because the claim fails under the more generous one that the defendant asked the Court to use. This may explain why those judges decided not to join that one section of the opinion, but obviously we can't know if that's the case. 

Another explanation is that the liberal judges may have attempted to send the message that the deferential standard should not be used under those circumstances.  Of course that doesn’t explain Scalia, who is often looked at as a conservative judge.  But it is important to note that, on criminal defense issues, Scalia has been a pretty defendant-friendly judge over the past few years.  I am thinking of cases such as Crawford and Apprendi/Blakely and today’s Fourth Amendment decision in Gant.  On the other hand, Scalia does often vote against the defendant in death penalty cases.  So his vote here is really hard to figure out.  Also, if the liberal judges’ intent was to signal their position about the proper standard of review, why did other “liberal” judges, like Stevens, join in the smack down?

As for Stevens, a post over at Crime and Consequences offers an interesting theory as to what Stevens’ motivation could have been.  During the argument in Mirzayance, some of the judges (including, oddly enough, Scalia) were offering an analysis that would read the deferential standard in a constrictive way with regard to the meaning of “unreasonable application” of Supreme Court precedent (I know, this is geared towards the habeas technocrats, otherwise see FAQ 3).  These judges were suggesting that an application of Supreme Court precedent would only be unreasonable if the Supreme Court said it was unreasonable.  At least, that’s how I read it. Anyways, Stevens may have joined the smack down so as to ensure that the analysis as to what is considered an “unreasonable application” would remain broad.

Habeas Corpus - Granted

Lewis v. Marshall, 08-cv-00339, 2009 WL 604894 (NDNY March 6, 2009) (JKS)

In Lewis, a Northern District judge granted habeas relief based on the shackling of Petitioner Jesse Lewis's legs in front of the jury throughout the trial.  According to the district judge, the shackling violated petitioner's due process right to a fair trial since the trial court never articulated on the record any adequate state interest for the shackling.

There are some interesting aspects to this decision worth discussing.  First, the petitioner was pro se, meaning he was representing himself.  In a separate post, I will talk more about pro se litigants in habeas proceedings.  For now, I'll just say that a habeas grant to a pro se petitioner is pretty rare. 

Second, relief was granted here even though there was no clear factual finding that the jurors had actually seen the petitioner in shackles.  The court inferred that fact from the record.  But it is not as if the jurors, let alone the trial judge or any other participant at trial, stated on the record that the jurors saw the defendant in shackles.  Which is not to say that the inference that the jury could see them was not justified.  The court's reasoning on this point is pretty persuasive. 

Similarly, the court did not force petitioner to prove a negative.  What do I mean?  There was nothing on the record showing that the state trial court found that the shackling was necessary.  In fact, there was actually nothing either way -- there was, apparently, no discussion on the record about the shackles.  This does not mean that it didn't happen.  Maybe it happened when the court reporter wasn't recording the proceedings.  Sometimes that happens.  However, the court held the deficient record against the State, not against the petitioner.  And the court relied upon a Supreme Court decision in doing so. 

It's actually refreshing.  In order to obtain relief, defendants are often forced to prove a negative.  For example, I had a case one time where the record did not show that the jurors had been sworn to be fair and impartial.  It was pretty clear from the record that the court just forgot to do it.  However, often times, a record's silence is not enough. A defendant must affirmatively prove that negative.  The failure to swear the jurors was one of those situations.  This meant that I first had to ask for a factual hearing in the trial court before the same judge who neglected to swear the jurors to try and prove that that same judge neglected to swear the jurors.  Kind of crazy, right?  As you can imagine, it ended up being pretty hard to prove a negative like that.  Moreover, as I was before the same judge who made the mistake, that judge obviously had the incentive to clean up the record.  As you can probably guess, I lost that case.

Habeas Corpus - Summary Order

Second Circuit issued a summary order in a habeas case today called Forney v. Woods.  It doesn't say much.  It can be found here.  It involves a case where the petitioner pled guilty.  The petitioner argued that the guilty plea was not voluntary, thereby violating his due process rights, and that he received ineffective assistance of counsel during his plea and sentencing proceedings.  The court summarily rejected the claims.

But you may be asking, what is a summary order?  At the circuit level, an appeal can be decided in one of two ways:  a published opinion or a summary order.  Most appeals are decided by summary order.  It is a short order that will only briefly discuss the case.  Often times, the summary order will  skip right by the facts and the legal standards and simply go right to an application of law to facts.  The court will often say in a summary order that it will assume the parties' familiarity with the facts of the case, allowing them to skip a factual discussion.  What's important about summary orders is that they have no precedential effect.  See Second Circuit Local Rule 32.1(b).  In other words, litigants cannot cite to them as authority in their argument.  The rules allow a party to cite to a summary order issued after January 1, 2007, but the order won't have much (if any) influence on the judges since it  is not binding authority.

That means that I won't have much to say about the summary orders.  If there is an unusual one, I will discuss it in more depth.  Otherwise, I guess my practice in the future will be to mention them when they pop up for the sake of completeness, but not engage in much analysis.

Habeas Corpus - Other Types of Habeas

While this blog is only going to focus on habeas as it relates to state prisoners, I would be remiss if I did not mention (and at least provides some links to discussions about) another type of habeas – executive detention in the U.S. Government’s ongoing battle against extremists who want to do harm to people who love freedom (or whatever it is called now).  I am referring to the current litigation over the restriction on habeas rights for people being held at Bagram in Afghanistan.

For the legal aspects of this type of habeas, it is best to consult SCOTUSBlog, which provides an update on the status of the litigation here.  For deeper analysis of the politics of the legal battle, bloggers such as Glen Greenwald do an incredible job of covering the issue. 

For me, I guess the question is, what is the impact of the Bagram litigation on habeas corpus for state prisoners?  Can the “reasoning” used for restricting habeas review for Bagram detainees be extended to state prisoners?  Short answer, no.

But the restriction on habeas for Bagram detainees could have an effect on state prisoners.  There does appear to be some connections. 

First, the AEDPA (see FAQ 2) was, in may ways, a codification (more like an over-codification) of the Rehnquist Court’s judge-made restrictions on the ability of state prisoners to obtain habeas relief in federal court.  I guess the legal philosophy behind it is that federal habeas review for state prisoners should act solely as a safety valve for only the most egregious state government conduct. 

Thus, similar to the restrictions on habeas for those in executive detention, the restrictions on state prisoner habeas seem to be rooted in the same general aversion towards federal court review of government detention.  While there are different reasons for the restrictions in each situation, it cannot really be contested that they both flow from a similar philosophy about the level of habeas review that should be offered to those in custody, i.e. little to none.

Another important similarity between the two restrictions is that they both grew out of acts of terrorism -- the AEDPA was passed in the wake of the OK City bombing and the Bagram policy is an extension of the Gitmo policy which was a result of the obvious.

What's interesting is that I do remember that during the height of the Republican rule in the federal government (maybe around 2004 and 2005) there was some talk in Congress about further restricting habeas rights for state prisoners.  That seems to have died down. 

Nonetheless, it might be the case that, if upheld, the extreme restriction on habeas for federal executive detainees could have an impact on state prisoners.  Since the Government can take the position that certain detainees do not have any right to habeas review at all, it creates an environment where it is more palatable for the government to say that state prisoners’ habeas rights should be restricted even further.  The argument being that when we get comfortable removing habeas rights for one set of detainees, it becomes much easier to further limit it for others.  How can state prisoners complain in such a situation?  Even with further restrictions, they still have habeas review.  It’s not like they are being treated like those Bagram executive detainees, right?  And terrorism is still a fear.  Habeas rights seem to be pretty vulnerable in that environment -- and that is the case even for state prisoners.

Okay, so maybe the connection is a little tenous.  And the make-up of Congress has changed since 2005.  But it's not like Congress is currently taking any steps to increase habeas rights for state prisoners.  I guess the status quo is probably the best that state prisoners can hope for.

Habeas Corpus - Happy One-Year Anniversary

DISCLOSURE:  This post will vaguely discuss one of my cases

One year ago today on April 16, 2008, the five consolidated appeals under the lead case of Phillips v. Artuz were argued before the Second Circuit.  The joint issue in these cases was whether the New York State persistent felony offender statute was unconstitutional pursuant to the right to a jury trial under the Sixth Amendment and the right to due process under the Fourteenth Amendment, in light of the U.S. Supreme Court decision in Blakely v. Washington, 542 U.S. 296 (2004) (and other relevant Supreme Court decisions).  For those unfamiliar with the law, it is essentially New York's version of the three-strikes-and-yer-out law.

Since the appeal is still sub judice (Latin for still under consideration by the judges), I won't say anything about the actual legal issue. 

I will relay one memory of the argument that has nothing to do with the legal merits.  In my job, it is exceedingly rare for my clients to come to an argument.  They are usually in prison and they have no right to be present at the appellate argument. 

For this case, I had the rare treat of having my client come to the argument and watch it from the audience as he had been released from prison.  Even rarer still was that my client was sharply dressed in a gray three-piece suit and matching fedora.  While I was, of course, wearing a suit, it's safe to say that he looked much sharper than I did. 

Habeas Corpus - Denied

Chen v. Filion, 01 Civ. 11597, 2009 WL 602946 (SDNY March 9, 2009) (TPG)

This case was featured in the New York Law Journal’s Decisions of Interest back in March.  Not sure exactly why.  It is a pretty mundane denial of habeas on various different grounds, including ineffective assistance of trial and appellate counsel, denial of right to compulsory process and right to a fair trial.

There is one part worth discussing.  The first section of the legal discussion focused on procedural default (see FAQ 5) with respect to the ineffective assistance of trial counsel claim.  Bear with me as this is going to get a bit technical.  Petitioner raised his ineffectiveness claim in a state collateral proceeding under Criminal Procedure Law § 440.10.  In that proceeding, the state court decided that the claim could have been raised on direct appeal, but wasn’t, so it couldn’t be raised in the 440.10 motion.  In other words, the state court found that the ineffectiveness claim was procedurally barred, relying on a state procedural rule.  Where a state court finds that a claim is procedurally barred, a petitioner cannot get habeas relief for the most part (once again, see FAQ 5).

But, let me take a short detour and explain what I mean by a collateral proceeding in this context since it does show that this is was a questionable procedural bar.  Here, a 440.10 motion  is a collateral proceeding brought in the trial court typically filed after the judgment has become final (in other words, after the direct appeal has been concluded) in which a defendant raises claims that are generally geared towards factual exploration on matters that are outside the record on appeal.  A good example is an ineffective assistance of counsel claim, where a hearing could be necessary to delve into why an attorney made certain decisions or whether the attorney explored certain investigatory paths.  Many of those factual questions will not appear on the record at trial.

And I guess that’s why the procedural default finding in the Chen case is a little confusing.  Once again, in the collateral proceeding, the state court found that the ineffectiveness claim could have been raised on direct appeal, but wasn’t.  However, it has been my experience that the state courts on direct appeal will often deny an ineffectiveness claim saying that it should have been raised in a collateral proceeding where further factual exploration was necessary to resolve the claim.  On the other hand, there are certainly situations where an ineffectiveness claim can, and should, be reviewed on direct appeal.  Ineffectiveness can be obvious from the appellate record.  Nevertheless, the state appellate courts still seem to show a preference for these claims to be raised in a collateral proceeding, even where sufficient facts appear in the record.

As such, it seems odd for a trial court to deny such a claim in a collateral proceeding on the ground that it could have been raised on direct appeal and wasn’t.  Obviously, the inference from the decision is that the claims of ineffectiveness were solely based on facts that appear in the record and the claim could be resolved solely on those facts.  But even if it technically could have been raised on direct appeal, those appellate courts have expressed a preference for these types of claims to be raised in a collateral proceeding, even where the claim is based on facts in the record.  It’s a little tricky, isn’t it?  Sort of a damned if you do, damned if you don’t situation.  Maybe it was the case that petitioner’s claims were of the narrow type that were best handled on direct appeal.  But, from reading the habeas decision in Chen, that doesn’t seem to be the case (assuming that the claims raised in the habeas were the same as those raised in state court).  Many of the claims had to do with matters outside of the record, such as trial counsel’s failure to procure evidence, pursue certain investigatory avenues and prepare sufficiently for trial.  It certainly does raise questions as to whether the state court's reliance upon a procedural bar was appropriate.

But, in the end, the questionable procedural bar doesn’t matter to the result since the habeas court went on to review the merits of the claim and found them to be without merit.

Habeas Corpus - Practitioner's Note

I wanted to follow-up on the habeas corpus grant in Brown v. Ercole.  But come at it from a criminal defense practitioner’s view.

It is always exciting to win a case, particularly a habeas case in the district court, which is exceedingly rare.  Outside of the relief that you are getting the client, there are other exciting aspects to the win for the attorney. 

First, unlike when a habeas petition is denied, the State does not need to seek a COA (see FAQ 9) in order to bring the case to the Second Circuit.  They have an automatic right to an appeal.  That means that when you win a habeas case in the district court, you are now automatically going to be arguing before the Second Circuit.  To me, that is one of the most exciting things to do as an attorney.

Even better, you don’t need to put together the Record on Appeal.  Whenever a litigant wants to bring an appeal in a civil case (and a habeas petition is considered a civil, not a criminal, case – I’ll explain that a later time), the party bringing the appeal has to go through the laborious task of putting together the record on appeal.  This encompasses heading to the court, waiting in line to get the record, putting all of the documents in order, filling out several forms, waiting in line to use the barely working, hard-to-figure-out photocopier, and then waiting in line again to get everything stamped.  It’s a full two-hour waste of time.  And the 20-odd lawyers in my indigent defense office have to do it since we have a total of one paralegal and two mail room people, who have enough to worry about.  In addition to that, you have a very short period of time to do that and to fill out a bunch of forms for the Second Circuit.  It’s a real hassle.

But when you win in the district court, it’s the other side that has to do all of that.  I know I shouldn’t say it, but it’s a nice bonus.