Post-Conviction Representation, Pro Se Practice and Access to the CourtsBy Ken Strutin, Published on February 19, 2013
After the first criminal appeal, there is no constitutional right to counsel.1 Thus, the convicted and imprisoned pursuing discretionary appeals and habeas corpus relief must research, investigate and litigate as their own attorney. A body of law has developed that defines the spectrum between full-blown post-conviction representation and the impact of the conditions of confinement on pro se litigants.
The litigation behind prisoner litigation is "access to the courts."2 The incarcerated are entitled to options that clear a pathway to the courthouse, whether this involves a jailhouse lawyer, law library or legal assistance.3 Still, when those resources are lacking, the prisoner is compelled to bring a suit to raise the inadequacy of access at the same time they are seeking to challenge their conviction or the conditions of confinement.4
Supreme Court decisions and legal scholarship has pointed out that post-conviction counsel can raise unique challenges unmet by direct appeal, e.g., ineffective assistance of trial counsel, prosecutorial misconduct, such as a Brady violation, or other non-record claims. Indeed, the rationale behind a post-conviction right to counsel is often subsumed or interlaced with justifications for equitable tolling to excuse procedural default.5 But the issues surrounding the right to counsel and pro se practice at this stage are ongoing and unresolved.6
This article has collected federal and state court decisions, law review articles and criminal justice research on the problematic state of post-conviction representation and pro se practice beyond the first appeal.
Anders v. California, 386 U.S. 738 (1967)
"The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal."
Bolarinwa v. Williams, 593 F.3d 226 (2nd Cir. 2010)
"This case calls upon us to determine whether mental illness can serve as a ground for equitable tolling of the one-year statute of limitations for filing habeas petitions prescribed by the Antiterrorism and Effective Death Penalty Act ('AEDPA'). See 28 U.S.C. S 2244(d)(1). We hold that it can. In addition, we find that the district court properly granted Petitioner-Appellant's motion for an extension of time to file a notice of appeal to this Court. We vacate the judgment of the district court and remand to allow Petitioner-Appellant to present that court with evidence in support of her claim for equitable tolling."
Bounds v. Smith, 430 U.S. 817 (1977)
"The issue in this case is whether States must protect the right of prisoners to access to the courts by providing them with law libraries or alternative sources of legal knowledge. In Younger v. Gilmore, 404 U.S. 15 (1971), we held per curiam that such services are constitutionally mandated. Petitioners, officials of the State of North Carolina, ask us to overrule that recent case, but for reasons explained below, we decline the invitation and reaffirm our previous decision."
Coleman v. Thompson, 501 U.S. 722 (1991)
"Because Coleman had no right to counsel to pursue his appeal in state habeas, any attorney error that led to the default of Coleman's claims in state court cannot constitute cause to excuse the default in federal habeas. As Coleman does not argue in this Court that federal review of his claims is necessary to prevent a fundamental miscarriage of justice, he is barred from bringing these claims in federal habeas. Accordingly, the judgment of the Court of Appeals is Affirmed."
Douglas v. California, 372 U.S. 353 (1963)
"When an indigent is forced to run this gantlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure. In the federal courts, on the other hand, an indigent must be afforded counsel on appeal whenever he challenges a certification that the appeal is not taken in good faith. Johnson v. United States, 352 U.S. 565. The federal courts must honor his request for counsel regardless of what they think the merits of the case may be; and 'representation in the role of an advocate is required.' Ellis v. United States, 356 U.S. 674, 675. In California, however, once the court has 'gone through' the record and denied counsel, the indigent has no recourse but to prosecute his appeal on his own, as best he can, no matter how meritorious his case may turn out to be. The present case, where counsel was denied petitioners on appeal, shows that the discrimination is not between 'possibly good and obviously bad cases,' but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal."
Easterwood v. Champion, 213 F.3d 1321 (10th Cir. 2000)
"Mr. Easterwood argues that, for a prisoner, a case is discoverable by 'due diligence' on the date the opinion became accessible in the prison law library, not the date the opinion was issued. We agree. Unlike the general population which has greater access to court opinions, prisoners must rely exclusively upon the prison law library to discover information contained in new cases. Holding that a prisoner could with 'due diligence' discover information related in a case before the prison law library has access to a copy of the opinion simply ignores the reality of the prison system."
Ex Parte Hull, 312 U.S. 546 (1941)
"'All legal documents, briefs, petitions, motions, habeas corpus proceedings and appeals will first have to be submitted to the institutional welfare office and if favorably acted upon be then referred to Perry A. Maynard, legal investigator to the Parole Board, Lansing, Michigan. Documents submitted to Perry A. Maynard, if in his opinion are properly drawn, will be directed to the court designated or will be referred back to the inmate.' . . .
The regulation is invalid. The considerations that prompted its formulation are not without merit, but the state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus. Whether a petition for writ of habeas corpus addressed to a federal court is properly drawn and what allegations it must contain are questions for that court alone to determine."
Griffin v. Illinois, 351 U.S. 12 (1956)
"All of the States now provide some method of appeal from criminal convictions, recognizing the importance of appellate review to a correct adjudication of guilt or innocence. Statistics show that a substantial proportion of criminal convictions are reversed by state appellate courts. Thus to deny adequate review to the poor means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside. Many States have recognized this and provided aid for convicted defendants who have a right to appeal and need a transcript but are unable to pay for it. A few have not. Such a denial is a misfit in a country dedicated to affording equal justice to all and special privileges to none in the administration of its criminal law. There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts."
Halbert v. Michigan, 545 U.S. 605 (2005)
"Persons in Halbert's situation are particularly handicapped as self-representatives. As recounted earlier this Term, '[a]pproximately 70% of indigent defendants represented by appointed counsel plead guilty, and 70% of those convicted are incarcerated.' Kowalski, 543 U.S., at ___ (slip op., at 5) (GINSBURG, J., dissenting). '[Sixty-eight percent] of the state prison populatio[n] did not complete high school, and many lack the most basic literacy skills.' Id., at ___ (slip op., at 6) (citation omitted). '[S]even out of ten inmates fall in the lowest two out of five levels of literacy—marked by an inability to do such basic tasks as write a brief letter to explain an error on a credit card bill, use a bus schedule, or state in writing an argument made in a lengthy newspaper article.' Ibid. Many, Halbert among them, have learning disabilities and mental impairments. See U.S. Dept. of Justice, Bureau of Justice Statistics, A. Beck & L. Maruschak, Mental Health Treatment in State Prisons, 2000, pp. 3-4 (July 2001), http://www.ojp.usdoj.gov/bjs/pub/pdf/mhtsp00.pdf (identifying as mentally ill some 16% of state prisoners and noting that 10% receive psychotropic medication).
Navigating the appellate process without a lawyer's assistance is a perilous endeavor for a layperson, and well beyond the competence of individuals, like Halbert, who have little education, learning disabilities, and mental impairments. See Evitts, 469 U.S., at 393 ('[T]he services of a lawyer will for virtually every layman be necessary to present an appeal in a form suitable for appellate consideration on the merits.'); Gideon v. Wainwright, 372 U.S. 335, 345 (1963) ('Even the intelligent and educated layman has small and sometimes no skill in the science of law.' (quoting Powell v. Alabama, 287 U.S. 45, 69 (1932)))."
Harbison v. Bell, 129 S.Ct. 1481 (2009)
"Harbison's case underscores why it is 'entirely plausible that Congress did not want condemned men and women to be abandoned by their counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail cells.' Hain v. Mullin, 436 F.3d 1168 (C.A.10 2006) (en banc). In authorizing federally funded counsel to represent their state clients in clemency proceedings, Congress ensured that no prisoner would be put to death without meaningful access to the '`fail-safe'' of our justice system. Herrera, 506 U.S., at 415, 113 S.Ct. 853."
Hodge v. Police Officers, 802 F.2d 58 (2nd Cir. 1986)
"This case presents the important question of what criteria to use in deciding whether to appoint counsel for indigent civil litigants pursuant to 28 U.S.C. S 1915(d). Allen Hodge appeals from a judgment of the United States District Court for the Southern District of New York, Mary Johnson Lowe, J., dismissing his civil rights complaint. Hodge argues the judge erred in refusing to appoint counsel to help him litigate his claim. Because we find that the district court did not properly exercise its discretion, we reverse and remand this case to the trial court. . . .
In deciding whether to appoint counsel, however, the district judge should first determine whether the indigent's position seems likely to be of substance. If the claim meets this threshold requirement, the court should then consider the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination."
Holland v. Florida, 130 S.Ct. 2549 (2010)
"We here decide that the timeliness provision in the federal habeas corpus statute is subject to equitable tolling. See Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. S 2244(d). We also consider its application in this case. In the Court of Appeals' view, when a petitioner seeks to excuse a late filing on the basis of his attorney's unprofessional conduct, that conduct, even if it is 'negligent' or 'grossly negligent,' cannot 'rise to the level of egregious attorney misconduct' that would warrant equitable tolling unless the petitioner offers 'proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth.' 539 F.3d 1334, 1339 (C.A.11 2008) (per curiam). In our view, this standard is too rigid. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); see also Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007). We therefore reverse the judgment of the Court of Appeals and remand for further proceedings. . . .
We have previously held that "a garden variety claim of excusable neglect," Irwin, 498 U.S., at 96, 111 S.Ct. 453, such as a simple "miscalculation" that leads a lawyer to miss a filing deadline, Lawrence, supra, at 336, 127 S.Ct. 1079, does not warrant equitable tolling. But the case before us does not involve, and we are not considering, a "garden variety claim" of attorney negligence. Rather, the facts of this case present far more serious instances of attorney misconduct. And, as we have said, although the circumstances of a case must be "extraordinary" before equitable tolling can be applied, we hold that such circumstances are not limited to those that satisfy the test that the Court of Appeals used in this case."
Johnson v. Avery, 393 U.S. 483 (1969)
"[T]he State may impose reasonable restrictions and restraints upon the acknowledged propensity of prisoners to abuse both the giving and the seeking of assistance in the preparation of applications for relief: for example, by limitations on the time and location of such activities and the imposition of punishment for the giving or receipt of consideration in connection with such activities. Cf. Hatfield v. Bailleaux, 290 F.2d 632 (C.A. 9th Cir. 1961) (sustaining as reasonable regulations on the time and location of prisoner work on their own petitions). But unless and until the State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce a regulation such as that here in issue, barring inmates from furnishing such assistance to other prisoners."
Lewis v. Casey, 518 U.S. 343 (1996)
"In Bounds v. Smith, 430 U.S. 817 (1977), we held that 'the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.' Id., at 828. Petitioners, who are officials of the Arizona Department of Corrections (ADOC), contend that the United States District Court for the District of Arizona erred in finding them in violation of Bounds, and that the court's remedial order exceeded lawful authority. . . .
First, petitioners claim that in order to establish a violation of Bounds, an inmate must show that the alleged inadequacies of a prison's library facilities or legal assistance program caused him "actual injury"—that is, "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim." Brief for Petitioners 30. Second, they claim that the District Court did not find enough instances of actual injury to warrant systemwide relief. We agree that the success of respondents' systemic challenge was dependent on their ability to show widespread actual injury, and that the court's failure to identify anything more than isolated instances of actual injury renders its finding of a systemic Bounds violation invalid. "
Maples v. Thomas, 132 S.Ct. 912 (2012)
"The sole question this Court has taken up for review is whether, on the extraordinary facts of Maples' case, there is 'cause' to excuse the default. Maples maintains that there is, for the lawyers he believed to be vigilantly representing him had abandoned the case without leave of court, without informing Maples they could no longer represent him, and without securing any recorded substitution of counsel. We agree. Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se. In these circumstances, no just system would lay the default at Maples' death-cell door. Satisfied that the requisite cause has been shown, we reverse the Eleventh Circuit's judgment."
Martinez v. Ryan, 132 S.Ct. 1309 (2012)
"The State of Arizona does not permit a convicted person alleging ineffective assistance of trial counsel to raise that claim on direct review. Instead, the prisoner must bring the claim in state collateral proceedings. In the instant case, however, petitioner's postconviction counsel did not raise the ineffective-assistance claim in the first collateral proceeding, and, indeed, filed a statement that, after reviewing the case, she found no meritorious claims helpful to petitioner. On federal habeas review, and with new counsel, petitioner sought to argue he had received ineffective assistance of counsel at trial and in the first phase of his state collateral proceeding. Because the state collateral proceeding was the first place to challenge his conviction on grounds of ineffective assistance, petitioner maintained he had a constitutional right to an effective attorney in the collateral proceeding. While petitioner frames the question in this case as a constitutional one, a more narrow, but still dispositive, formulation is whether a federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney's errors in an initial-review collateral proceeding. . . .
This is not the case, however, to resolve whether that exception exists as a constitutional matter. The precise question here is whether ineffective assistance in an initial-review collateral proceeding on a claim of ineffective assistance at trial may provide cause for a procedural default in a federal habeas proceeding. To protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel, it is necessary to modify the unqualified statement in Coleman that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default. This opinion qualifies Coleman by recognizing a narrow exception: Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial."
Mendoza v. Carey, 449 F.3d 1065 (9th Cir. 2006)
"Carlos Mendoza, a California state prisoner, appeals from the judgment of the district court, which dismissed as untimely his petition for writ of habeas corpus. Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ('AEDPA'), habeas petitions must be filed within one year from the date when the petitioner's judgment of conviction became final. 28 U.S.C. S 2244(d). Mendoza, who is a Spanish speaker, argued that he should qualify for equitable tolling of the one-year limitations period because the prison law library failed to provide Spanish-language books or Spanish-speaking clerks or librarians to assist Spanish-speaking inmates. The magistrate judge concluded that the absence of Spanish-language materials from Mendoza's prison library did not amount to an extraordinary circumstance for purposes of the equitable tolling analysis. The district court adopted the magistrate judge's report and recommendation; accordingly, it dismissed Mendoza's petition as untimely. On appeal, Mendoza contends that he is entitled to equitable tolling because the lack of Spanish-language assistance was an extraordinary circumstance beyond his control that made it impossible to file a timely petition. Further, he contends that the district court erred in failing to hold an evidentiary hearing on the issue of whether equitable tolling was appropriate. We have jurisdiction under 28 U.S.C. S 2253. We agree that an evidentiary hearing is required because Mendoza has alleged facts which, if true, could entitle him to equitable tolling. We therefore reverse and remand to the district court for development of the factual record."
Moore v. Knight, 368 F.3d 936 (7th Cir. 2004)
"We have previously noted that a due diligence inquiry should take into account that prisoners are limited by their physical confinement. Montenegro v. United States, 248 F.3d 585, 592 (7th Cir.2001), rev'd on other grounds, Ashley v. United States, 266 F.3d 671 (7th Cir.2001); see also Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir.2000) (finding a prisoner's access to published legal materials is established once the prison library receives the materials, not when the materials were published). Similarly, we agree with the Second Circuit's observation that 28 U.S.C. S 2244 does not require "the maximum feasible diligence" but only "`due,' or reasonable diligence." Wims v. United States, 225 F.3d 186, 190 n. 4 (2d Cir.2000). Considering the facts within these parameters, we agree that Moore acted with due diligence. While imprisoned, he employed Storms to conduct the investigation on his behalf; this employment began as soon as Moore had reason to suspect a harmful error in procedure and we do not find he was unreasonable in awaiting the results of Storms' somewhat slow investigation."
Murray v. Giarratano, 492 U.S. 1 (1989)
"Virginia death row inmates brought a civil rights suit against various officials of the Commonwealth of Virginia. The prisoners claimed, based on several theories, that the Constitution required that they be provided with counsel at the Commonwealth's expense for the purpose of pursuing collateral proceedings related to their convictions and sentences. The courts below ruled that appointment of counsel upon request was necessary for the prisoners to enjoy their constitutional right to access to the courts in pursuit of state habeas corpus relief. We think this holding is inconsistent with our decision two Terms ago in Pennsylvania v. Finley, 481 U.S. 551 (1987), and rests on a misreading of our decision in Bounds v. Smith, 430 U.S. 817 (1977)."
Pennsylvania v. Finley, 481 U.S. 551 (1987)
"At bottom, the decision below rests on a premise that we are unwilling to accept — that when a State chooses to offer help to those seeking relief from convictions, the Federal Constitution dictates the exact form such assistance must assume. On the contrary, in this area States have substantial discretion to develop and implement programs to aid prisoners seeking to secure postconviction review. In Pennsylvania, the State has made a valid choice to give prisoners the assistance of counsel without requiring the full panoply of procedural protections that the Constitution requires be given to defendants who are in a fundamentally different position — at trial and on first appeal as of right. In this context, the Constitution does not put the State to the difficult choice between affording no counsel whatsoever or following the strict procedural guidelines annunciated in Anders. The judgment of the Superior Court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion."
Ryan v. Gonzales, 568 U.S. ____ (U.S. Jan. 8, 2013)
"These two cases present the question whether the incompetence of a state prisoner requires suspension of the prisoner's federal habeas corpus proceedings. We hold that neither 18 U.S.C. S3599 nor 18 U.S.C. S4241 provides such a right and that the Courts of Appeals for the Ninth and Sixth Circuits both erred in holding that district courts must stay federal habeas proceedings when petitioners are adjudged incompetent."
Denbow v. District Court, 652 P.2d 1065 (Colo. 1982)
"We conclude that where a person is indigent the right to appointed counsel and a free transcript for appellate review which is guaranteed by Douglas and Griffin extends to appeal of the denial of a writ of habeas corpus in extradition proceedings."
Hampton v. Huston, 653 P.2d 1058 (Alaska Ct. App. 1982)
"Mandatory appointment of counsel for indigent persons seeking post-conviction relief in all cases absent a knowing, intelligent, and voluntary waiver, serves the policy articulated in Criminal Rule 35(j) that all grounds for relief available to an applicant are to be raised in a single application. By requiring counsel to carefully comb the record at the earliest practicable time to uncover possible errors, the rule prevents successive applications over an extended period of time during which witnesses disappear and evidence is destroyed."
Honore v. State Bd. of Prison Terms and Paroles, 466 P.2d 485 (Wash. 1970)
"On this phase of the case we, therefore, conclude that logic and the more persuasive authority compel us to hold that an indigent state prisoner seeking habeas corpus relief is entitled, under the equal protection clause of the fourteenth amendment to the United States Constitution, to be furnished appointed counsel, upon request, to assist him in prosecuting his petition at the evidentiary hearing stage and/or at the first appellate level when (1) his petition is urged in good faith; (2) his petition raises significant issues which, when considered in the light of the state's responsive pleadings or the evidence adduced at an evidentiary hearing, are neither frivolous nor repetitive; and (3) such issues by their nature and character indicate the necessity for professional legal assistance if they are to be presented and considered in a fair and meaningful manner."
Jackson v. State, 732 So.2d 187 (Tex. 1999)
" Henry Curtis Jackson, Jr. seeks to have the State provide attorney compensation and reasonable litigation expenses in his attempt to seek post-conviction relief pursuant to Miss. Code Ann. S 99-39-1 (1994), et seq. for his conviction and death sentence. This Court has previously denied all motions in other capital cases requesting similar relief. See Lockett v. State, 614 So. 2d 888 (Miss. 1992). Over the years, it has become apparent that the system is flawed. Valuable time and resources are being wasted in finding representation for death row7 inmates seeking post-conviction relief, especially since all remedies available under the UPCCRA must be exhausted before federal habeas relief may be sought. We find at this time that recognition of the nature of death penalty litigation in the courts of this state, coupled with the ultimate penalty the State seeks to impose, requires that the motion be granted, that counsel be appointed, and that reasonable expenses of litigation be allowed."
People v. Richardson, 159 Misc. 2d 167 (N.Y. County Sup. Ct. 1993)8
"Courts in New York have had the inherent power to assign counsel to indigent defendants since colonial times (People v Price, 262 N.Y. 410, 412, quoting People ex rel. Acritelli v Grout, 87 App Div 193, affd on prevailing opn below 177 N.Y. 587). The inherent power of the court to assign counsel to indigent persons includes the power to assign counsel with or without compensation (supra; People ex rel. Williams v La Vallee, 19 N.Y.2d 238; People v Monahan, 17 N.Y.2d 310, 313; People v Witenski, 15 N.Y.2d 392, 397-398, supra; People v Wheat, 80 Misc 2d 844). In a 'proper' coram nobis petition, a court is mandated, upon request, to exercise its inherent power and assign counsel to financially unable persons (People ex rel. Williams v La Vallee, 19 NY2d, at 240, supra; People v Monahan, 17 N.Y.2d 310, supra). A 'proper' case is 'where a criminal defendant in his [her] papers suggests a possible basis on the merits, although for lack of counsel's advice, the presentation is vulnerable' (People ex rel. Williams v La Vallee, 19 NY2d, at 240-241, supra [matters in bracket added]). It is also a 'proper' case for appointment of counsel to indigent persons, upon request, where a court orders a hearing on a coram nobis petition (People v Monahan, 17 N.Y.2d 310, supra; People v McElroy, 34 AD2d 850; People ex rel. Rodriguez v La Vallee, 26 AD2d 8; People v St. John, 281 App Div 1061). It is not a 'proper' coram nobis mandating assignment of counsel to indigents, upon request, where the petitioner has made multiple applications (People ex rel. Sanchez v Hoke, 132 AD2d 861, 862; People v Boundy, 34 AD2d 829, 830); or where the record conclusively refutes the factual allegations of defendant (People v Boundy, supra; People v Hill, 30 AD2d 976); or where the motion repeats prior adjudicated claims (People ex rel. Baumgart v Martin, 9 N.Y.2d 351, 354, cert denied 368 U.S. 962; People ex rel. Visconti v McMann, 28 AD2d 1012, 1013; People v Scott, 36 AD2d 686); or where the claim is precluded by 'well-established principles' (People ex rel. Sanchez v Hoke, 132 AD2d 861, 862, supra; see also, People ex rel. Washington v La Vallee, 34 AD2d 603); or where the allegations of fact are insufficient to warrant appointment of counsel (People ex rel. Diaz v Follette, 29 AD2d 771; see also, People v Brandau, 19 Misc 2d 879)."
BOOKS AND BOOK CHAPTERS
Federal Habeas Corpus Practice and Procedure (Michie 6th ed. 2011)
"Federal Habeas Corpus Practice and Procedure is a two-volume set consisting of practical advice and analysis of U.S. Supreme Court cases written by subject matter experts Randy Hertz and James S. Liebman. The newest edition includes comprehensive coverage of: The Antiterrorism and Effective Death Penalty Act (AEDPA); Requirements states must satisfy to obtain AEDPA 'opt-in' benefits; Statutes of limitations; Petition filing requirements; Appointment of counsel; Range and types of discovery; Standards for obtaining federal evidentiary hearings; Exhaustion of state remedies; Procedural default; Standards for applying AEDPA's section 2254(d)(1) and (d)(2); Successive petitions; Obtaining a certificate of appealability; Federal prisoner practice under section 2255; Types of claims that have led to the granting of the writ; Military Commissions Act of 2006; Adam Walsh Child Protection and Safety Act of 2006; USA Patriot Improvement and Reauthorization Act of 2005; and REAL ID Act of 2005.The treatise and the accompanying Supplement include extensive analysis of the latest habeas corpus case law as well as important statutory changes that directly affect you and your clients. Federal Habeas Corpus Practice and Procedure is the authoritative treatise that your clients need you to have and your practice absolutely demands."
Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ (U. of Chicago Press 2011)
"A new look at habeas corpus, with bold recommendations for change based on a comprehensive and thoughtful analysis of the writ's role over the past two centuries, as well as the latest empirical research about its operation today. The writ of habeas corpus remains at the center of some of the most contentious issues of our time—among them terrorism, immigration, crime, and the death penalty. In this book, two of the nation's leading experts [Nancy J. King and Joseph L. Hoffmann] on habeas corpus argue that the law and policy surrounding habeas should safeguard what it does best: enabling judges to protect freedom in times of crisis and transition. Using the latest empirical research, historical and legal analysis, and illustrative case studies, the authors examine the writ's contemporary applications, from Guantanamo to death row, from the commitment of sex offenders to the deportation of illegal aliens, from parole denials to wrongful convictions, and reveal how habeas has in recent decades been seriously abused. To redress this abuse, the authors argue that the writ must be exercised with greater prudence, and that its flexibility be safeguarded for the unanticipated challenges the nation will face in years to come [Review by Professor Daniel J. Meltzer, Story Professor of Law, Harvard Law School].
Rights of Prisoners (West Pub. 4th ed. 2009)
"Rights of Prisoners provides practitioners, judges, and corrections officials with a balanced and comprehensive treatment of prisoners' rights issues. It covers the law affecting prisoners and their rights, and the latest developments resulting from the increase in prison litigation. This title discusses civil disabilities, AIDS, drugs, environmental and toxic tort law, and 'Son of Sam' laws. Additionally, it provides in-depth analysis of related Supreme Court decisions, with special attention paid to the application of First, Fourth, and Eighth Amendment rights as applied to corrections facilities." [See Vol. 2 "Access to Courts"]
Chp 3:Your Right to Learn the Law and Go to Court in A Jailhouse Lawyer's Manual (Colum. Hum. Rts. L. Rev. 9th ed.2011)
"Although many rights are suspended while you are in prison, courts have protected a prisoner's constitutional right to access the state and federal courts. This right includes a prisoner's ability to prepare and submit petitions and complaints, including federal habeas corpus petitions and civil rights actions. The Supreme Court held in Bounds v. Smith that 'the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.' In other words, the Supreme Court believes that prisoners need a way to learn the law in order to take full advantage of their constitutional right to access the courts. If the state stands in the way of your ability to do legal research or get legal assistance, you may be able to file a suit claiming that you have been denied access to the courts. You may also be able to file a suit claiming a denial of court access if the state prevents you from creating and mailing your legal papers by withholding necessary resources or materials. The Supreme Court stated in Bounds that the right of access to the courts includes the state's obligation to provide indigent prisoners 'with paper and pen to draft legal documents, with notarial services to authenticate them, with stamps to mail them.'
The Supreme Court has limited the circumstances in which a prisoner can win a denial of access suit. In1996, the Court held in Lewis v. Casey that in order for a prisoner to have a cause of action under Bounds, he must first show that an actual injury has occurred because he has been denied access to the courts. This actual injury requirement means you must show both that the State's legal access program was inadequate, and that you suffered an actual injury because of its inadequacies. The Supreme Court went on to hold that proving an actual injury requires showing that a 'non-frivolous legal claim' has been frustrated. Therefore, under Lewis, you must show (1) your right of access to the courts was denied, and (2) because of that denial you lost a non-frivolous legal claim."
Chp 13 Federal Habeas Corpus in A Jailhouse Lawyer's Manual (Colum. Hum. Rts. L. Rev. 9th ed.2011)
"This Chapter explains an important right—the writ of habeas corpus. Habeas corpus is guaranteed by the Constitution to prisoners who believe they have been wrongfully convicted. As a prisoner, you can challenge your conviction or sentence by petitioning for a writ of habeas corpus in federal court. By petitioning for a writ, you are asking the court to determine whether your conviction or sentence is illegal. A writ of habeas corpus can be very powerful because if the court accepts your argument, it can order your immediate release, a new trial, or a new sentencing hearing. This Chapter will teach you more about federal habeas corpus and how to petition for it. Part A will introduce and explain a few basic concepts about federal habeas. The rest of the chapter will go into more detail."
Bypassing Habeas: The Right to Effective Assistance Requires Earlier Supreme Court Intervention in Cases of Attorney Incompetence, 25 Fed. Sent. Rptr. 110 (2012)
"This article considers the interplay between habeas corpus law and the Sixth Amendment right to effective assistance of counsel. Certain peculiarities of federal habeas have given a schizophrenic character to recent Supreme Court decisions on ineffective assistance. At the same time that the Court has displayed a new willingness to extend Sixth Amendment protections to the plea-bargaining arena, the Court has also evinced a particular hostility to ineffective assistance claims arising in habeas. The present article identifies the roots of this schizophrenia in the Court's 2000 decision in Williams v. Taylor. The Court's trajectory from Williams to the present suggests that, absent a significant ideological makeover, the Court is unlikely in habeas cases to bring greater vigor and clarity to the right to effective assistance. The Court and advocates pushing the Court to adopt stronger Sixth Amendment protections should thus focus their efforts on cases emerging directly from state-court systems, rather than on collateral post-conviction challenges in federal court."
Case for a Constitutional Right to Counsel in Habeas Corpus, 60 Hastings L.J. 541 (2009)
"This Article is structured as follows: Part I synthesizes the history and current status of the constitutional right to counsel for the criminally accused at the trial, direct appellate, and discretionary appellate stages. Part II provides a brief overview of federal habeas corpus and, more specifically, describes the current status of the right to counsel, both statutory and constitutional, in habeas corpus proceedings. Part III sets forth the due process and equal protection framework that informs a constitutional right to counsel in state and federal habeas proceedings where the claims raised require expansion of the record and thus, the habeas corpus court operates as the court of first review. In so doing, this Part addresses the issue of the hypothetical 'infinite habeas' that recognition of a constitutional right to counsel in habeas may trigger: if a defendant has a right to counsel in the first state or federal habeas proceeding that functions as his first appeal, does this necessarily mean he will have a right to counsel in a second habeas proceeding to the extent he wishes to challenge the effectiveness of his first habeas counsel (and so on)? I [Emily Garcia Uhrig] argue that the risk of a right to counsel attaching in perpetuity to an endless series of habeas petitions is negligible. Furthermore, to the extent a defendant suffers the misfortune of receiving deficient representation in his first, or even 'nth' habeas petition, our justice system requires nothing less than providing him with an opportunity to correct any resulting injustice. The interest of finality simply cannot compete with an individual's interest in due process and equal protection throughout any process that results in his loss of liberty or life."
Contingent Compensation of Post-Conviction Counsel: A Modest Proposal to Identify Meritorious Claims and Reduce Wasteful Government Spending, 64 Me. L. Rev. 513 (2012)
"This contribution to a symposium on post-conviction litigation argues that the lack of properly-incentivized counsel is a primary problem with our failing system of habeas litigation. The lack of counsel causes a great flood of frivolous petitions by pro se prisoners, while also preventing prisoners with meritorious claims from getting relief. The lack of counsel, and more fundamentally, the lack of funding therefor, thus perpetuates the problem of incarceration waste. Government-funded contingent compensation of post-conviction counsel may be the most promising way to help courts identify the bona fide cases deserving of relief, providing more accurate justice and saving money on net. In Part I, I [Christopher T. Robertson] lay out the problem of incarceration waste, identifying the types of prisoners who should be released even under current law and foreseeable changes thereto. I also show that, without a constitutional or statutory right to counsel, even those prisoners that are being wastefully incarcerated are unable to persuasively reveal that status to their captors. In Part II, I present a proposal for rational governments to pay post-conviction counsel, but do so through a contingent fee system that would incentivize the attorneys to identify such prisoners and cogently present their cases to prosecutors and courts. Such a contingent funding system would be more politically feasible, since it does not shower money upon prisoners who deserve to be there, and it creates the proper incentives for attorneys to provide a screening function for the most meritorious cases.
In Part III, I identify other structural and doctrinal impediments to governments achieving a rational policy for reducing incarceration waste, and suggest that they be reconsidered through this lens. I conclude that, although government-paid contingent compensation of post-conviction counsel may be a useful way to get representation for those prisoners that have the most meritorious claims, and to save some money for governments on the margins, it is very far from a solution to the overwhelming problem of mass incarceration."
Disparate Impact on Death Row: M.L.B. and the Indigent's Right to Counsel at Capital State Postconviction Proceedings, 107 Yale L.J. 2211 (1998)
"In recent years, the Court has been reluctant to invoke the fundamental rights strand of equal protection law to prevent the states from discriminating against the poor. This Note, however, argues that the Court should use M.L.B., the fundamental right of access to the criminal process, and wealth-based disparate impact theory to shift the current state of equal protection law so as to provide counsel at state postconviction review for indigent death row inmates such as [Exzavious Lee] Gibson."9
Electronic Research in State Prisons, 25 Legal Ref. Serv. Q. 13 (2006)
"This article addresses the proliferation of electronic legal research in state prison law libraries as well as inmate access to justice post the Supreme Court's decision in Lewis v. Casey, which stalled state court-ordered prison library improvements. In particular, this article explores how electronic legal databases have changed prison law libraries, why it is changing them, and whether this change will promote better access to justice for prisoners. This analysis will include exploring why some institutions are abandoning print resources entirely, while other institutions are blending print legal research with electronic tools. Finally, this article addresses whether, in light of Lewis v. Casey, this is a positive change."
"Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon. Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform given the many procedural obstacles that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state criminal cases. This year, in Martinez v. Ryan, the Supreme Court relied on equitable principles to sweep aside procedural barriers to federal habeas review and permit state prisoners to raise ineffective-assistance-of-trial-counsel claims in federal court.
Not surprisingly, many lower courts have resisted the Supreme Court's recent attempts to permit state prisoners to have their ineffective-assistance-of-trial-counsel claims heard on the merits. But this battle is far from over. After documenting the ways in which lower courts are restrictively interpreting the Supreme Court's recent decisions expanding the grounds for cause to excuse a state prisoner's procedural default of an ineffective-assistance-of-trial-counsel claim, I [Eve Brensike Primus] will suggest that the defendants still have an important equitable card to play. That card is the idea of adequacy. As lower courts attempt to re-characterize state procedures so as to avoid recent Supreme Court holdings that would open the federal doors to state prisoners' ineffective-assistance-of-trial-counsel claims, they inadvertently set themselves up for challenges to the adequacy of their state procedures. This shift is significant, I will explain, because of important differences in how cause and adequacy arguments influence state behavior. Whereas cause grounds are typically personal to the defendant, adequacy challenges are often used to expose systemic failures in a state's procedures. As a result, adequacy challenges have more potential to catalyze change in states' procedures."
Ensuring Access to Justice for Non-English-Speaking Criminal Defendants: Denial of Access to Other-Language Legal Materials or Assistance as an Extraordinary Circumstance for Equitable Tolling, 38 Seton Hall L. Rev. 1479 (2008)
"To address the significance of the holding of Mendoza v. Carey in light of recent changes to habeas corpus law, Part II of this Comment analyzes the Writ of Habeas Corpus and the significant narrowing of its relief by the AEDPA. Part III then analyzes the Supreme Court's jurisprudence on law library access in general. Part IV addresses Mendoza v. Carey's holding in light of seemingly conflicting Supreme Court jurisprudence, and why other jurisdictions, as well as the Supreme Court, should allow for equitable tolling of the AEDPA for non-English-speaking criminal defendants who have been denied access to legal materials or legal assistance in their own languages. Finally, Part V discusses the policy reasons supporting equitable tolling in this circumstance."
Fewer Risks, More Benefits: What Governments Gain by Acknowledging the Right to Competent Counsel on State Post-Conviction Review in Capital Cases, 4 Ohio St. J. Cr. L. 183 (2006)
"Recognition of the fact that there is a right to the effective assistance of counsel in state capital post-conviction proceedings is long overdue. Of the many reasons for the legal system to acknowledge the right, one is perhaps counter-intuitive: to do so is very much in the narrow self-interests of the affected governments, both state and federal. In the discussion that follows I [Eric M. Freedman] first sketch the factual and legal background (Part II), then elaborate on the benefits governments gain and costs they avoid by acting now (Parts III–V), and conclude by putting the issue into the context of systemwide considerations (Part VI)."
"[N]obody in his right mind would expect the average inmate to be capable of proceeding pro se in a capital case -- researching the most complex issues known to the law, investigating the facts from his narrow death row cell, and providing himself with meaningful legal representation. Yet a plurality of the Supreme Court has indicated that an equitable justice system may deny legal representation to those on death row. 'If the law says that,' as Mr. Bumble might bellow, 'then the law is an ass, an idiot!' Fortunately, with the recent conversion of the Mississippi Supreme Court, now thirty-three of the thirty-eight states with the death penalty on the books agree with Mr. Bumble and automatically provide for counsel in state post-conviction proceedings. By statute or by practice, all but two states provide counsel, with Georgia and Louisiana standing in unhappy isolation. It is the thesis of this article that the Eighth Amendment is violated by any state that refuses this fundamental right. It is the aim of the article to provide a blueprint to challenge any state that remains recalcitrant on this issue."
Ghostwriting: Filling in the Gaps of Pro Se Prisoners' Access to the Courts, 23 Geo. J. Legal Ethics 271 (2010)
"Compared with other litigants, pro se prisoners are at an inherent disadvantage when they try to vindicate their rights. They lack many of the resources enjoyed by non-prisoner litigants. They have limited finances and limited access to legal-research materials. Even if they had such access, their illiteracy would lessen its effectiveness. Moreover, many attorneys are unwilling or unable to undertake full representation of prisoner litigants. As a result, pro se prisoners struggle to navigate the complex legal system, often losing their cases on procedural grounds before ever reaching a decision on the merits.
This Article argues that, in order to provide pro se prisoners with the access to the courts that law and justice require, attorneys (and sometimes non-attorneys) should be permitted to ghostwrite pleadings for them - that is, to draft pleadings that prisoners will then file pro se. Attorneys who may otherwise be reluctant to represent prisoner litigants as counsel of record might still be amenable to providing services in this limited way. Limited-scope representation - or 'unbundled legal services' - is not an anomaly. Indeed, most states accept the practice in at least some contexts, and the American Bar Association recently gave its stamp of approval to ghostwriting. Nevertheless, many courts and commentators contend that ghostwriting by attorneys is unethical, that it gives pro se litigants an unfair advantage (because their pleadings are entitled to judicial benevolence), and that it encourages the unauthorized practice of law. Addressing these concerns, this Article considers the various forms that ghostwriting could take - i.e., whether ghostwriting attorneys should be required to disclose their names, the fact of their assistance, or the nature of their assistance - and concludes that ghostwriting should be allowed without any disclosure of attorney assistance at all. Indeed, disclosing such assistance may, in some instances, actually violate ethical rules. While ghostwriting likely constitutes the practice of law and might justifiably be rejected in other contexts, this Article recommends that courts and bar associations endorse the practice of ghostwriting for pro se prisoners, to give these disadvantaged litigants a more even playing field on which to challenge alleged violations of their constitutional rights."
Giarratano is a Scarecrow: The Right to Counsel in State Capital Post-Conviction Proceedings, 91 Cornell L. R. 1079 (2006)
"Giarratano v. Murray, 492 U.S. 1 (1989) rejected the claim of a Death Row inmate that he had a constitutional right to the appointment of counsel to assist him in pursuing state post-conviction remedies. The thesis of this article, stated in Part I, is that, like Bowers v. Hardwick, 476 U.S. 186 (1986), before it was overruled by Lawrence v. Texas, 539 U.S. 558 (2003), Giarratano is dead - a scarecrow. Part II reviews the Giarratano litigation, noting several of the questions that the Supreme Court left unaddressed. Part III describes the subsequent actions of the states, actions that have considerable legal significance. Today every active death penalty state except Alabama provides for the pre-filing appointment of counsel to assist indigent Death Row inmates in the preparation of post-conviction petitions challenging their convictions and sentences. Part IV posits that Giarratano has been much over read. The controlling opinion of Justice Kennedy does recognize that capital post-conviction petitioners have a right to counsel in certain circumstances - and those circumstances exist in today's world. Part V focuses on due process issues. Part V (A) notes that the Court should have applied the procedural due process framework of Mathews v. Eldridge, 424 U.S. 319 (1976), but did not. Had it done so, or were it to apply its more recent analysis of the due process right to counsel with respect to criminal proceedings (or to revive its older one based on equal protection), the constitutional right would be secure. Moreover, Part V (B) argues, the decision of the states to create statutory entitlements provides an independent source of due process protection against their arbitrary deprivation.
Part VI discusses the Eighth Amendment and the changes in the legal and factual environments since Giarratano. These changes show the case to be inconsistent with contemporary standards of accuracy respecting capital determinations. Part VII considers whether Giarratano would pass muster under the legal norms applicable to the democracies of Europe and concludes that it would not. Part VIII concludes by urging judges, lawyers, and legislators to recognize the reality that Giarratano is a lifeless husk and calling upon the Supreme Court to inter it."
Great Unobtainable Writ: Indigent Pro Se Litigation After the Antiterrorism and Effective Death Penalty Act of 1996, 41 Harv. CR-CLL Rev. 299 (2006)
"In this Article, I [Thomas C. O'Bryant10] will discuss the difficulties faced by those of us who, because we cannot afford to hire counsel, must challenge violations of our federal constitutional rights ourselves. When Congress enacted AEDPA, it curbed the federal judiciary's habeas corpus jurisdiction and undermined the ability of pro se prisoners to file meaningful federal habeas corpus petitions. As a result of this, many individuals incarcerated in the state prison systems are unable to obtain federal review of potential constitutional violations, simply because they cannot afford to retain counsel to pursue post-conviction matters on their behalf.
In this Article, I will demonstrate the unreasonableness of AEDPA by addressing some of the problems that plague indigent pro se litigation by prisoners--problems which AEDPA greatly enhanced. In Part II of this Article, I will present a brief summary of the writ of habeas corpus and its purpose. In Part III, I will discuss AEDPA and the changes it created. Because the most critical component of pro se litigation is the prisoner himself, I will devote Part IV to an examination of the prisoner and the resources available to him. Specifically, I will examine the educational background and mental health of prisoners, as well as the process of memory acquisition as it may affect a prisoner's memory of his trial. I will also explore some of the defects and inadequacies of prison law libraries, of the legal assistance available to prisoners, and of prison officials' application of the Supreme Court holdings attempting to minimize the hurdles indigent prisoners face in pursuing judicial remedies. In Part V, I will use my own criminal case to demonstrate how AEDPA is preventing federal judicial review of violations of federal constitutional rights. I will conclude, in Part VI, that AEDPA's restrictive provisions should be repealed because they are unreasonable and unnecessary. I hope this Article brings to light a matter I believe was overlooked by Congress when it enacted AEDPA: the reality of pro se prisoner litigation."
Innocence Commissions and the Future of Post-Conviction Review, 52 Ariz. L. Rev. 1021 (2010)
"In the fall of 2006, North Carolina became the first state to establish an innocence commission – a state institution with the power to review and investigate individual post-conviction claims of actual innocence. And on February 17, 2010, after spending seventeen years in prison for a murder he did not commit, Greg Taylor became the first person exonerated through the innocence commission process. This article argues that the innocence commission model pioneered by North Carolina has proven itself to be a major institutional improvement over conventional post-conviction review. The article explains why existing court-based procedures are inadequate to address collateral claims of actual innocence and why innocence commissions, due to their independent investigatory powers, are better suited to reviewing such claims. While critics on the Right claim that additional review mechanisms are unnecessary or too costly, and critics on the Left continue to push for a court-based right to innocence review, the commission model offers a compromise that fairly balances the values of both finality and accuracy in the criminal justice system. At the same time, I [David Wolitz] argue, the North Carolina commission suffers from the tension – inherent in all expert agencies – between efficiency and discretion, on the one hand, and procedural fairness and accountability, on the other. I offer several suggestions for reform of commission procedures to help insure that none of these values is overwhelmed by the others. Overall, the record of the North Carolina commission demonstrates that the commission approach can provide justice where the traditional court system has failed, and, with the reforms I suggest here, it ought to be a model for states across the country."
"This Comment argues that because habeas corpus is in essence a quasi-criminal proceeding, counsel should be provided as in other criminal proceedings. Though courts may not believe that they are bound by a constitutional mandate to appoint counsel for habeas corpus petitioners, legislatures also swear to uphold the Constitution and should honor the constitutional text and spirit through the creation of statutory rights which reflect constitutional principles."
Let Him Be Heard: The Right to Effective Assistance of Counsel on Post-Conviction Appeal in Capital Cases, 18 Geo. J. Poverty Law & Pol'y 247 (2011)
"This Note argues that the Supreme Court should recognize a right to effective assistance of counsel in post-conviction appeals where the defendant in a capital further argues that the Court's current distinction between 'appeal of right' and case has been denied effective assistance of counsel in lower court proceedings. It 'discretionary appeal' is false and fundamentally inconsistent with the Court's jurisprudence, which defines the right to counsel in the context of the right to be heard. I [Amy Breglio] conclude that because the right to be heard is bound up with the fundamental fairness of the judicial system as a whole, the refusal to provide effective assistance to capital defendants in such proceedings systematically undermines the integrity of the adversarial system and its capacity to render just decisions."
Meaninglessness of Delayed Appointments and Discretionary Grants of Capital Postconviction Counsel, 42 Tulsa L. Rev. 253 (2006)
"This article addresses the right to postconviction counsel in capital cases - a right that is absolutely crucial to protecting innocent capital inmates from wrongful execution. It is no secret that indigent capital inmates who wish to pursue their state postconviction remedies have no constitutional right to counsel, and instead must rely on statutory grants of counsel. While numerous death penalty states have seen fit to provide a mandatory statutory right to postconviction counsel, a handful of death penalty states, including Alabama, provide only a discretionary right to such counsel. But in Alabama, which at the time of this writing has the fifth largest death row population and ranks in the top eleven among death penalty states in terms of number of exonerations of capital inmates, the situation is even worse: All indigent capital inmates in Alabama who wish to pursue state postconviction remedies must prepare and file the postconviction petition on their own and survive summary dismissal before a court will even consider whether to appoint counsel to assist the inmate. In other words, the capital inmate must do the work of counsel - and do it well enough to survive dismissal - before the court will determine whether, in its discretion, counsel is necessary. As should be obvious to even a casual observer, it is extraordinarily difficult, if not impossible, for a capital inmate to accomplish this task, as it requires not only detailed knowledge of postconviction law and procedure, but also the capacity to investigate the case and discover all possible claims to include in the petition. This article explains that, by deciding to provide counsel as a matter of statutory grace, Alabama has acquired a constitutional duty, anchored in the Due Process Clause, to provide a meaningful right to capital postconviction counsel. Unfortunately, Alabama has failed to meet that duty. Forcing indigent capital inmates to run the postconviction course alone - even for a brief time - undermines the very purpose of granting postconviction counsel in the first place, which by Alabama's own admission is to protect the rights of the capital inmate. In short, Alabama's system provides nothing more than an empty promise. And for the almost 200 inmates currently on death row in Alabama, that simply is not enough."
Not So Meaningful Anymore: Why a Law Library Is Required to Make A Prisoner's Access to the Courts Meaningful, 45 Wm. & Mary L. Rev. 1195 (2004)
"This Note argues that the Supreme Court's decision in Lewis is flawed in its characterization of the right to meaningful access and actual injury for the purpose of standing, as well as suggests the standards that are necessary to protect the constitutional rights of prisoners. Part I of this Note begins by examining the right to meaningful access to the courts. The initial focus will be on the right's development and general meaning. This Note concentrates on Supreme Court precedent invalidating laws or policies that amount to the State placing a direct or indirect bar on the access of certain indigent groups. Especially important will be the Court's assertions that, when the government provides a certain type of access to the courts, a policy that, in effect, makes this access unattainable for the indigent, there is a violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment."
"Power of the Pen": Jailhouse Lawyers, Literacy, and Civic Engagement, 41 Harv. C.R.-C.L. L. Rev. 369, 379 (2006)
"This Essay explores the possibility that increasing prisoners' access to legal education and information could strike a better balance between judicial efficiency and court access. With legal training, prisoners could submit better and more informed pleadings and comply more consistently with procedural requirements, increasing the likelihood of fair hearings for meritorious cases. At the same time, preliminary research suggests that prisoners with increased legal knowledge are more likely to filter out frivolous cases than those without, reducing the burden on the courts. Increasing prisoner access to legal information could also foster literacy and civic engagement while allowing prisoners to contribute to the public discourse on matters of social justice."
Preview: A Preliminary Survey of Issues Raised by Martinez v. Ryan (SSRN 2012)
"The Court's 2012 decision in Martinez v. Ryan raises numerous issues for litigants and courts. Those issues as well as developing case law as of September 2012 are included in the discussion posted here, forthcoming as part of the 2012-2013 updates to the comprehensive treatise on criminal procedure coauthored by Professors Wayne LaFave, Jerold Israel, Nancy King, and Orin Kerr (database CRIMPROC on Westlaw).Topics addressed include the rationale for the Martinez decision; what constitutes an 'initial review collateral proceeding'; the effect of the decision on Edwards v. Carpenter; measuring the effectiveness of post-conviction counsel after Martinez; what is a 'substantial' claim of trial counsel ineffectiveness; and the application of Martinez to defaults during proceedings after the 'initial review collateral proceeding. ' The discussion also includes arguments regarding extending Martinez to petitioners who decline representation in initial review collateral proceedings; to petitioners who retain counsel for those proceedings; and to petitioners who do not initiate such proceedings. Also examined are the possible adoption of a Martinez-like exception for the evidentiary limitations in Pinholster, the statute of limitations bar, or the successive petitions bar, as well as the possible extension of Martinez as an exception to the limitation on successive S 2255 applications and similar procedural barriers in state post-conviction proceedings."
Protecting the Right to Effective Assistance of Capital Postconviction Counsel: The Scope of the Constitutional Obligation to Monitor Counsel Performance, 66 U. Pitt. L. Rev. 521 (2005)
"This article is an outgrowth of an idea developed by the author [Celestine Richards McConville] in a prior article, The Right to Effective Assistance of Capital Postconviction Counsel: Constitutional Implications of Statutory Grants of Capital Counsel, 2003 Wisconsin Law Review 31. The prior article argued that the government's decision to provide capital postconviction counsel triggers a due process-based obligation to make the right to counsel meaningful, which essentially means that the right to counsel must include the right to effective assistance of counsel. In the postconviction context, the effectiveness guarantee requires that the government must monitor counsel's performance to ensure, to the extent possible, the actual delivery of competent assistance.
This article explores the scope of the government's constitutional obligation to monitor the performance of capital postconviction counsel. It explains that the due process-based meaningfulness requirement continues to govern the analysis, so just as the government must ensure that the right to capital postconviction counsel is meaningful, it must also ensure that the system of monitoring it employs is meaningful. The article examines four key aspects of monitoring and explains how to make each aspect constitutionally meaningful. The four aspects are: the proper monitoring entity, the proper monitoring standard, the type of information to look for during the monitoring process, and the proper method of gathering such information. The article argues that a constitutionally meaningful monitoring system need not (and likely cannot) be designed to detect each and every error committed by counsel. Instead, the monitoring system must be designed to detect and remedy objectively identifiable problems with counsel's performance. Such a system will allow detection of a fairly wide range of errors, yet at the same time will not impose too high of a cost on the government in terms of delay and lack of finality. Ultimately, meaningful monitoring will increase attorney competence and reduce the likelihood that capital inmates will have to bear the burden of attorney error."
Right to Counsel in Collateral, Post-Conviction Proceedings, 58 Md. L. Rev. 1393 (1999)
"One might ask, then, why we ought to discuss a putative right that is so unlikely to be acknowledged by the highest court in the land. One answer, proposed by this Essay, is that effective counsel at postconviction proceedings is essential to realizing the fundamental tenet of our criminal law-that an accused be tried, convicted, and sentenced according to due process of law. Even if the Supreme Court is reluctant to acknowledge this right because of the (in its view) undesirable consequences of such an acknowledgment, it is vital that the rest of us--the bar, the state judiciary, the academy--understand that, at a minimum, the nature of contemporary capital litigation requires effective counsel at post-conviction review in order to guarantee our most basic right of constitutional criminal procedure: the right to adversarial testing of the questions of guilt and death."
Right to Effective Assistance of Capital Postconviction Counsel: Constitutional Implications of Statutory Grants of Capital Counsel, 2003 Wis. L. Rev. 31
"The problem of incompetent counsel in capital cases is hardly a secret. Much of the attention, however, has focused on incompetent capital trial counsel. This article, by contrast, addresses the problem of incompetent capital counsel at the state and federal postconviction levels. Like the trial and direct review phases, the capital postconviction phase is critical to an accurate and reliable determination of guilt and death-eligibility. Thus, competent counsel is just as necessary during capital postconviction proceedings as it is during capital trial and direct review proceedings.
The Supreme Court, however, has made clear that there is no constitutional right to postconviction counsel, even for capital inmates. It has also ruled that since there is no constitutional right to postconviction counsel, there is no constitutional right to the effective assistance of such counsel. As a result, capital inmates receive the full impact of any errors committed by postconviction counsel. Despite these rulings, approximately eighty percent of the death states, as well as the federal government, provide a mandatory right to capital postconviction counsel as a matter of statutory grace. Thus, rather than asking whether the government must provide capital postconviction counsel, this article explores whether, and the extent to which, the government's voluntary decision to provide capital postconviction counsel triggers a constitutional obligation to provide effective assistance of counsel.
This article argues that the government's decision to provide counsel triggers a due process-based obligation to make that right meaningful. And the right to counsel - even statutorily-granted counsel - is meaningful only when it is accompanied by a guarantee of effective assistance. Because of federalism concerns relevant in the postconviction context, the effectiveness guarantee is different from the traditional guarantee associated with trial and appellate counsel. Rather than requiring a post-performance examination of counsel's conduct, the postconviction effectiveness guarantee requires compliance with demanding competency standards and the completion of a review of counsel's actual performance during the postconviction proceeding itself. This definition of effectiveness, while imperfect, nicely balances the government's interests in avoiding delay and achieving finality with the capital inmate's interests in receiving competent assistance. It will not guarantee competent performance in each and every case, but it will increase the likelihood of competent performance and decrease the likelihood that inmates will have to bear the burden of attorney error."
Sacrifice of Unarmed Prisoners to Gladiators: The Post-AEDPA Access-to-the-Courts Demand for a Constitutional Right to Counsel in Federal Habeas Corpus, 14 U. Pa. J. Const. L. 1219 (2012)
"This article argues for a constitutional right to counsel for state inmates in all initial federal habeas corpus proceedings based on access-to-the-courts doctrine. The doctrine guarantees an indigent inmate a constitutional right to meaningful access to the courts in incarceration-related litigation, including postconviction proceedings. The Supreme Court initially articulated the access right, in relevant part, as merely prohibiting states from actively interfering with an indigent inmate's efforts at pursuing postconviction relief from a criminal judgment. Today, though still fairly inscrutable in dimension, the access right has evolved to require states in certain circumstances to provide affirmative assistance to inmates to ensure constitutionally adequate access to the writ."
'Shifted Science' and Post-Conviction Relief, 8 Stan. J. Civ. Rts. & Civ. Liberties 259 (2012)
"Of the many known causes of wrongful convictions, perhaps the most complex and diverse is junk science. We explore here a long-overlooked subset of that category and ask the question: What can be done to cure the injustice of a conviction that was based on scientific testimony that may have been accepted in the relevant scientific community at the time of trial, but has since been completely repudiated? In such an instance, a defendant remains in prison even though the evidence that served as the basis of his conviction has been renounced. After describing the problem and conducting a review of common post-conviction claims- and the reasons they fail in this situation- this article argues that state courts must allow defendants in this unique bind to file new evidence claims to obtain relief. Because new evidence is, as of now, not recognized as a viable basis for a federal constitutional claim, defendants will not have easy recourse in federal habeas corpus petitions, and it is especially crucial that state courts ensure that their rules for new trial motions on the basis of new evidence are broad enough to cover the important category of people discussed here. The article concludes by proposing that federal courts could provide relief to such innocent defendants on habeas if they embrace expansive interpretations of a person's right to be free from unjust incarceration, and they should do so in order to continue to serve as a check on state court failures causing manifest injustice."
Slicing Through the Great Legal Gordian Knot: Ways to Assist Pro Se Litigants in Their Quest for Justice, 80 Fordham L. Rev. 1229 (2011)11
"What are some problems facing the increasingly large number of pro se litigants in our courts? This article looks at the plight of the pro se litigant and suggests ways that Congress, the courts, and the bar can better solve some of the difficulties raised by pro se litigation."
AMERICAN LAW REPORTS
Actions or Inactions on Part of Persons Other than Petitioner or Petitioner's Counsel and Factors Other than Limitations of Petitioner, Problems Relating to or Lack of Counsel, or Inadequate Access to Legal Materials, as Grounds for Equitable Tolling of One-Year Limitations Period Established in Antiterrorism and Effective Death Penalty Act for Writ of Habeas Corpus Sought by Person in Custody Pursuant to Judgment of State Court (28 U.S.C.A. S 2244(d)(1)), 19 A.L.R. Fed. 2d 491
"In 1996, as part of the Antiterrorism and Effective Death Penalty Act (more commonly referred to as AEDPA), Congress enacted 28 U.S.C.A. S 2244(d). 28 U.S.C.A. S 2244(d)(1) creates a one-year limitation period for the filing of federal habeas petitions by persons in custody pursuant to the judgment of a state court. The courts have recognized, however, that under appropriate circumstances, equitable factors permit the tolling of this one-year period. For example, in Larry v. Dretke, 361 F.3d 890, 19 A.L.R. Fed. 2d 789 (5th Cir. 2004), the court held that equitable tolling of the one-year limitation period was not warranted as a result of problems arising from the requirement that federal habeas petitioners exhaust their claims in state court before raising them in federal habeas petitions. Although the petitioner argued that he was misled by the state trial court into believing that his first state habeas application was properly filed, the court determined that the state habeas court did not mislead the petitioner in any way or prevent him from asserting his rights. This annotation collects and analyzes the federal cases discussing actions or inactions on the part of persons other than the petitioner or the petitioner's counsel and other factors as grounds for equitable tolling."
Adequacy of Defense Counsel's Representation of Criminal Client Regarding Appellate and Post-Conviction Remedies, 15 A.L.R.4th 582
"This annotation collects and analyzes the modern state and (on a selective basis) federal decisions discussing and determining the adequacy, competency, or effectiveness of defense counsel's manner of handling (a) new trial and related motions where the convict's allegations or the court's discussion relates the challenged act or omission in regard to the motion to its effect on appellate or post-conviction remedies, (b) direct appeals, (c) certiorari applications, and (d) habeas corpus and other post-conviction remedies. The coverage is limited to cases involving a jury or bench trial; decisions concerning remedies following a guilty plea or nolo contendere conviction are treated elsewhere."
Inadequate Access to Legal Materials as Grounds for Equitable Tolling of One-Year Limitations Period Established in Antiterrorism and Effective Death Penalty Act for Writ of Habeas Corpus Sought by Person in Custody Pursuant to Judgment of State Court (28 U.S.C.A. S 2244(d)(1)), 18 A.L.R. Fed. 2d 717
"In 1996, as part of the Antiterrorism and Effective Death Penalty Act (AEDPA), Congress enacted 28 U.S.C.A. S 2244(d). Section 2244(d)(1) creates a one-year limitation period for the filing of federal habeas petitions by persons in custody pursuant to the judgment of a state court. Although 28 U.S.C.A. S 2244(d)(1) provides that 'a 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court,' the courts have recognized that, under appropriate circumstances, equitable factors permit the tolling of this one-year period. The court in Roy v. Lampert, 465 F.3d 964, 18 A.L.R. Fed. 2d 931 (9th Cir. 2006), cert. denied, 2007 WL 186231 (U.S. 2007), held that the habeas petitioner's allegation that the prison law library 'consisted of only three outdated legal books, which contained no information about the [Antiterrorism and Effective Death Penalty Act] AEDPA' entitled him to an evidentiary hearing regarding his claim that the limitations period for filing a habeas petition should be equitably tolled. This annotation collects and analyzes the federal cases discussing inadequate access to legal materials as grounds for such equitable tolling."
Personal Limitations of the Petitioner as Grounds for Equitable Tolling of the One-Year Limitations Period Established in the Antiterrorism and Effective Death Penalty Act for a Writ of Habeas Corpus Sought by a Person in Custody Pursuant to a Judgment of a State Court (28 U.S.C.A. S 2244(d)(1)), 9 A.L.R. Fed. 2d 343
" In 1996, as part of the Antiterrorism and Effective Death Penalty Act (more commonly referred to as 'AEDPA'), Congress enacted 28 U.S.C.A. S 2244(d). 28 U.S.C.A. S 2244(d)(1) creates a one-year limitation period for the filing of federal habeas petitions by persons in custody pursuant to the judgment of a state court. Although 28 U.S.C.A. S 2244(d)(1) provides that 'a 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court,' the courts have recognized that, under appropriate circumstances, equitable factors permit the tolling of this one-year period. This annotation collects and analyzes the federal cases discussing personal limitations of the petitioner as grounds for such equitable tolling."
Problems Concerning Counsel or Lack Thereof as Grounds for Equitable Tolling of the One-Year Limitations Period Established in the Antiterrorism and Effective Death Penalty Act for a Writ of Habeas Corpus Sought by a Person in Custody Pursuant to a Judgment of a State Court (28 U.S.C.A. S 2244(d)(1)), 17 A.L.R. Fed. 2d 397
"As part of the Antiterrorism and Effective Death Penalty Act ('AEDPA'), Congress enacted 28 U.S.C.A. S 2244(d)(1), creating a one-year limitation period for the filing of federal habeas petitions by persons in custody pursuant to the judgment of a state court. Under appropriate circumstances, equitable factors may permit the tolling of this one-year period. For example, the court in Arthur v. Allen, 452 F.3d 1234, 17 A.L.R.Fed. 2d 823 (11th Cir. 2006), opinion modified on other grounds on reh'g, 459 F.3d 1310 (11th Cir. 2006), held that the facts of the state prisoner's case did not rise to the level needed to equitably toll the one-year limitations period on his ability to petition for federal habeas relief, where the prisoner was aware of the deadline, but neither filed a pro se petition for relief nor sought appointment of counsel, did not seek information regarding the limitations period, or options for seeking counsel through the state or federal systems, from the prison library, and did not seek assistance from others, who had the ability to obtain this information for him. This annotation collects and analyzes the federal cases discussing problems concerning counsel, or lack thereof, as grounds for such equitable tolling."
Right of Indigent Defendant in Criminal Case to Aid of State as Regards New Trial or Appeal, 55 A.L.R.2d 1072
"This annotation supplements the one which appears at 100 A.L.R. 321.12 As with the original annotation, it is sought herein to determine the rights of an indigent person seeking appellate review of his conviction of crime, to assistance from the state in the form of the furnishing, without charge, of services sought in connection with the appeal. Although aid to indigent appellants is provided for by statutes in many, and perhaps most, jurisdictions, the present discussion is not limited to the construction and application of such enactments, but deals also with indigents' rights in absence of any statutory provision."
Sufficiency of Access to Legal Research Facilities Afforded Defendant Confined in State Prison or Local Jail, 98 A.L.R.5th 445
"Prisoners have the constitutional right to petition the government for redress of their grievances, which includes the right of access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights. Denial or undue restriction of this right is a denial of due process of law under the Fourteenth Amendment. Prison policies and practices will not be allowed to operate so as to deprive a prisoner of the right to reasonable access to the courts. Before procedures that impede a prisoner's access to the courts may be constitutionally validated, it must be clear that the state's substantial interests cannot be protected by less restricted means. The courts have been called on to discuss the sufficiency of access to legal research facilities afforded to a person confined in a state prison or local jail. In McConico v. Martin, 716 So.2d 222, 98 A.L.R.5th 753 (Ala. Civ. App. 1998), for example, the court held that the purported failure of the state to include necessary books in a correctional facility's law library did not serve to deny an inmate's constitutional right of access to the courts, particularly since the inmate was unable to demonstrate how the lack of such books affected his claims. This annotation collects and discusses the state and federal cases in which the courts have discussed the sufficiency of access to legal research facilities afforded to a person confined in a state prison or local jail."
Final Technical Report: Habeas Litigation in U.S. District Courts: An Empirical Study of Habeas Corpus Cases Filed by State Prisoners Under the Antiterrorism and Effective Death Penalty Act of 1996 (NCJRS 2007)
"The purpose of this study is to provide empirical information about habeas corpus cases filed by state prisoners in U.S District Courts under the Antiterrorism and Effective Death Penalty Act of 1996 ('AEDPA'). This information is for policymakers who design or assess changes in habeas law, for litigants and courts who address the scope and meaning of the habeas statutes, and for researchers who seek information concerning the processing of habeas petitions in federal courts."
Habeas Assistance and Training (HAT)
"The content of the public portion of HAT's webpage is intended to help defense counsel become familiar with the essential principals involved in representing death sentenced clients in habeas corpus proceedings."
"Discussions of prison law libraries have been driven by two major Supreme Court cases. In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491 (1977), the Court held that the fundamental constitutional right of access to courts requires prison authorities to provide adequate law libraries or adequate assistance from persons trained in the law. In Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174 (1996), the Court held that prisoners do not have an abstract freestanding right to a law library and must demonstrate actual injury in order to sustain a challenge to the adequacy of the law library." This Bibliography includes publications "Before Bounds and Lewis" and "After Bounds" and "After Lewis".
Literacy Behind Bars: Results From the 2003 National Assessment of Adult Literacy Prison Survey (US Dept. of Educ. 2007)
"The 2003 National Assessment of Adult Literacy (NAAL) included the first assessment of the English literacy of incarcerated adults since 1992. The assessment was administered to approximately 1,200 adults (age 16 and older) incarcerated in state and federal prisons, as well as approximately 18,000 adults living in households. Three types of literacy were measured: Prose, Document, and Quantitative. Results were reported in terms of scale scores (on a 500-point scale) and four literacy levels—Below Basic, Basic, Intermediate, and Proficient. The findings in this report—Literacy Behind Bars—indicate the changes in literacy among incarcerated adults between 1992 and 2003. The report also compares the literacy of adults in the prison and household populations and across groups of prison inmates with different characteristics, including race/ethnicity, gender, educational attainment, age, language spoken before starting school, and parents' educational attainment. The report looks at the relationship between literacy, education, and job training, including traditional academic education, vocational education, and skill certification. Additionally, the report examines the relationship between literacy and experiences in prison other than education, including prison work assignments, library use, computer use, and reading frequency. Finally, the report looks at the relationship between literacy, criminal history, and current offense. The results show how the relationship between literacy, type of offense, expected length of incarceration, expected date of release, and previous criminal history has changed since 1992."
"Meaningful Access to the Courts" and Law Libraries: A Selected Bibliography (Minn. State Library 2011)
"Part I: Bounds Part I of the bibliography lists articles and court decisions that describe what is meant by 'meaningful access to the courts' in the context of providing law library services (not assistance by person trained in the law) in correctional settings in light of the landmark Supreme Court decision Bounds v. Smith. In general it includes representative materials that address different elements of prison law library service and that give practical guidance in setting up or providing these services. The first section of PART I is an alphabetical list of selected articles and books. The second section is a chronological list of selected court cases.
Part II: Lewis Part II of the bibliography addresses the issue of 'meaningful access to the courts' in light of the June 1996 U.S. Supreme Court decision Lewis v. Casey. In Lewis the court emphasized that inmates must show 'actual injury' caused by a lack of meaningful access in order to state a claim. Without actual injury, the inmate does not have standing to proceed with his/her case. The bibliography concentrates on law library service as a method of providing meaningful access (not assistance by persons trained in the law). All cases and articles on PART II are post-Lewis."
Prisoners in the Legal System: A Selective Bibliography (AALL)
This bibliography covers key works in the areas of "Law Library Services for Prisoners" and "Prisoner Litigation".
Report on 500 Habeas Corpus Cases: Habeas Corpus Proceedings by State Prisoners (E.D.N.Y. Dec 11, 2003)
This is a report "on the disposition of the five-hundred habeas corpus cases challenging alleged unconstitutional custody of state prisoners . . . . Written decisions have been issued in each closed case and have been docketed under a miscellaneous case number, 03-Misc-0066. All of the decisions are available on the court's electronic database, and many have been added to the commercial databases. More than three dozen have been printed in the Federal Supplement and Federal Rules Decisions."
28 U.S.C. S 2254 Blog
"This blog covers all things habeas — not just all things related to 28 U.S.C. S 2254. Right now, it's generally limited to synopses of decisions of the federal appeals courts west of the Mississippi River (that's the Eighth, Ninth, and Tenth Circuits) and of the state courts of last resort in those states on decisions related to habeas and postconviction issues. About the primary contributor, Keith Hilzendeger, Esq., is a research and writing specialist with the Federal Public Defender in Phoenix, Arizona."
Appeal and Habeas
"This blog is a discussion of strategic considerations in challenging the grounds for holding persons in custody, focusing primarily on direct appeals and petitions for writ of habeas corpus in state and federal court. Because the author [Alex Coolman] is a California practitioner, much of the content of this blog deals with post-conviction litigation originating in California. However, this blog also explores the symbolic and legal connections between these state-level battles and the so-called 'war on terror.' These issues are linked by the willingness of governments to significantly reduce or entirely disregard the right to due process for particular individuals, often based on a mere allegation or a cursory showing that those individuals belong to some group that the government considers problematic."
Habeas Corpus Blog
"Substantively, I [authors] think the main goal will be to follow developments in habeas corpus law that affect state prisoners filing federal habeas corpus petitions under 28 U.S.C. S 2254. Since I practice in New York, this blog will initially focus exclusively on cases in (1) the federal district courts in New York, (2) the Second Circuit (the federal appeals court that covers New York) and (3) the United States Supreme Court. If I get adventurous, I may expand the focus to courts beyond those. But that will be down the road. Nevertheless, if I hear about an interesting decision from somewhere else around country, I may take the time to mention it."
Life Sentences Blog
"Recognizing there are already a number of outstanding blogs that track sentencing and criminal law, the reader may be interested to know my particular areas of focus: federal sentencing law (especially Seventh Circuit), Wisconsin sentencing law, life without parole, post-conviction remedies, prisoner rights, victim rights, prisoner reentry, restorative justice, punishment theory, drug crime, history of crime and punishment, and the psychology of punishment and blaming. I [Michael M. O'Hear] have no ideological ax to grind, and I hope not to be pigeonholed as either conservative or liberal, although it is fair to say that I think long prison terms are overused in the United States and are rarely (if ever) appropriate in cases that do not involve serious violence."
1 See Daniel Givelber, The Right to Counsel in Collateral, Post-Conviction Proceedings, 58 Md. L. Rev. 1393 (1999)("Hornbook constitutional law tells us that the state has no obligation to provide counsel to a defendant beyond his first appeal as of right. The Supreme Court has rejected arguments that either the Due Process Clause or the Equal Protection Clause require that the right to counsel apply to collateral, post-conviction proceedings. The Court also has rejected the argument that the Eighth Amendment requires that the right to an attorney attach to post-conviction proceedings specifically in capital cases. Without resolving the issue, the Court has acknowledged the possibility that there may be a limited right to counsel if a particular constitutional claim can be raised only in post-conviction proceedings." (footnotes omitted)).
2 See Joseph A. Schouten, Not So Meaningful Anymore: Why a Law Library Is Required to Make A Prisoner's Access to the Courts Meaningful, 45 Wm. & Mary L. Rev. 1195 (2004)("All citizens of the United States enjoy a right to meaningful access to the judicial system. Courts must be especially vigilant in protecting this right to access for groups who, because of prejudice, societal indifference, or a lack of resources, have trouble gaining meaningful access to the courts for themselves. In an effort to protect this right, the Supreme Court has struck down laws and policies that have denied citizens access to the courts based on such factors as race, sex, and wealth. The Supreme Court has also recognized and protected the right of prisoners to have meaningful access to the judicial system. For prisoners, the Court has characterized meaningful access as including the provision of an adequate law library or the assistance of trained legal personnel." (footnotes omitted)).
4 See generally The Jailhouse Lawyer's Handbook (Center for Constitutional Rights & National Lawyers Guild 5th ed. 2010)("This Handbook is a resource for prisoners who wish to file a federal lawsuit addressing poor conditions in prison or abuse by prison staff. It also contains limited general information about the American legal system. This Handbook is available for free to anyone: prisoners, families, friends, activists, lawyers and others."); William C. Collins, Jails and the Constitution: An Overview (NIC 2nd. ed. 2007)("This paper reviews the history of correctional law and summarizes the results and effects of major court decisions. It begins with the recognition that the Constitution truly protects inmates in jails and prisons and proceeds to discuss the continuing challenge of deciding what those constitutional protections mean in practice and the struggle at the facility level to assure that inmate rights are met.").
5 Recently, the Supreme Court recast questions of right to post-conviction counsel or effective assistance into an equitable tolling analysis. In their view, this approach affords some procedural fairness for post-conviction litigants. See, e.g., Martinez v. Ryan, 132 S.Ct. 1309, 1313 (2012)("On federal habeas review, and with new counsel, petitioner sought to argue he had received ineffective assistance of counsel at trial and in the first phase of his state collateral proceeding. Because the state collateral proceeding was the first place to challenge his conviction on grounds of ineffective assistance, petitioner maintained he had a constitutional right to an effective attorney in the collateral proceeding. While petitioner frames the question in this case as a constitutional one, a more narrow, but still dispositive, formulation is whether a federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney's errors in an initial-review collateral proceeding."); Maples v. Thomas, 132 S.Ct. 912, 924 (2012)("Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se. In these circumstances, no just system would lay the default at Maples' death-cell door.").
6 See, e.g., Gordon H. Kessel, Right to Counsel in Criminal Post-Conviction Review Proceedings, 51 Cal. L. Rev. 970 (1963)("The Court relied on cases beginning with Griffin v. Illinois which held that states cannot foreclose an effective appeal from a defendant who is unable to pay a filing fee or purchase a transcript. The purpose of this Comment is to show the immediate effect of Douglas on state and federal appellate proceedings, to explore the possible effects of the decision in collateral attack proceedings, and to discuss the problems created by the demand for assistance of counsel.").
7 Notably, when death sentences are commuted they join the ranks of prisoners without post-conviction counsel. See, e.g., Bob Egelko, Death Row Inmates Oppose Prop. 34, SFGate, Sept. 24, 2012("Prop. 34, on the Nov. 6 ballot, would replace the death penalty with life in prison without parole. Death Row inmates would have their sentences reduced to life - and, as a consequence, lose access to state-funded lawyers for habeas corpus, except for those who have already filed their claims." Prop. 34 was ultimately defeated. See California Death Penalty Repeal, Proposition 34, Rejected, Los Angeles Times, Nov. 7, 2012). See generally Geraldine Szott Moohr, Murray v. Giarratano: A Remedy Reduced to a Meaningless Ritual, 39 Am. U. L. Rev. 765 (1990)("Does the Constitution mandate appointment of counsel for deathrow inmates in postconviction proceedings? This Note concludes that the Court erred when it answered this question in the negative. That is, once the state chooses to provide collateral review of criminal cases, the state is constitutionally required to make these proceedings meaningful by providing counsel to the indigent petitioner.").
8 This case involves New York's statutory post-conviction remedy NY Crim. Proc. Law Art 440, which subsumes habeas corpus and coram nobis. See People ex rel. Anderson v. Warden, New York City Correctional Institution for Men, 68 Misc. 2d 463, 470 (N.Y. Sup. Ct. 1971)("Under article 440 there is no provision for an absolute right to counsel, absent a factual hearing, but neither is there such a right under habeas corpus ( People ex. rel. Williams v. La Vallee, 19 N Y 2d 238 ). Assignment of counsel other than for an evidentiary hearing is discretionary in both habeas corpus and article 440 proceedings.")
9 See Gibson v. Turpin, 270 Ga. 855 (1999)("Because there is no state or federal constitutional right to an appointed lawyer upon habeas corpus and because Gibson's remaining claims are without merit, we deny Gibson's application for certificate of probable cause to appeal.").
10 Mr. Bryant is "an inmate in the Florida Department of Corrections" and "completed a paralegal correspondence course through the University of Florida." Id.
11 Author Shon R. Hopwood: "J.D. Candidate, University of Washington School of Law (Gates Scholar), 2014. In 1998, Mr. Hopwood was sentenced to serve twelve years and three months in federal prison for his role in five armed bank robberies. While in prison, he studied law and began preparing briefs for other prisoners. He prepared two petitions for writs of certiorari that were granted by the U.S. Supreme Court, and a host of successful direct appeals, post-conviction motions, and habeas corpus petitions. In 2008, Hopwood was released from prison and became a consultant for Cockle Law Brief Printing Company, where he advised numerous attorneys on Supreme Court practice. He also created The CockleBur (http://www.thecocklebur.com),a legal blog. In 2012, Crown/Random House will publish his memoir, entitled Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption." Id.
12 Right of Indigent Defendant in Criminal Case to Aid of State as Regards New Trial or Appeal, 100 A.L.R. 321 ("In a number of jurisdictions an indigent defendant in a criminal case is entitled, generally under a statute, to one or more types of aid at the expense of the state, in prosecuting an appeal from his conviction in the trial court. This aid may consist of relief from payment of the costs of the appeal or the giving of security therefor, a furnishing of a transcript of the evidence or proceedings in the trial court without expense to himself, the printing of the record in the appellate court at the expense of the state, funds from the state with which to prosecute an appeal, or compensation for an attorney appointed by the court for services in prosecuting his appeal.").