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The Great Writ has been
described as a "Petition to the King." It is a petition to the
ultimate government authority claiming that a citizen has been tried and
convicted in violation of the "laws, statutes or treaties of the
United States." See; Title 28 United States Code Section 2241 et seq.
It has been described as the last resort for relief from unlawful
government action caused by local prejudices or initiated by local
political pressure, when the community arises in outrage at an especially
heinous crime and endangers the rule of law by seeking the conviction of
the accused more than seeking the truth of the accusations. The basis for
its jurisdiction lies in equity, i.e., what is fair.
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The privilege of the Great Writ was considered so fundamental in the
protection of the rights secured in the Constitution to individual liberty
that the founding fathers established the privilege in the First Article
of the Constitution. A Petition for Writ of Habeas Corpus is the Great
Writ established in English Common Law by the signing of the Magna Carta
at sword point by King John of England on June 15, 1216 AD at Runnymede,
and adopted into Anglo-American Jurisprudence in Article I, ยง9, cl. 2 of
the Constitution:
"The privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in cases of Rebellion or Invasion the public Safety may
require it."
The United States of America is a Republic. Its citizens hold a dual
citizenship. They are a citizen of the State in which they reside, and a
citizen of the several States, or, of the United States. That fact affects
how the Great Writ is enforced in this nation because the States and the
Federal Government, by law, are considered separate sovereign states
controlled by a paramount government.
I'm going to teach you a new word (assuming most of you are not
attorneys). This new word, if you are ever accused of a crime, is the most
important word you will ever know. Then I am going to show you how the
implementation of the concept underlying that word by the federal courts
deprives prisoners of their rights as a citizen of the United States,
deprives them of the privilege of the Great Writ, and is hampering the
evolution of justice in the United States.
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The word is "comity." Black's Law Dictionary defines comity as:
"Courtesy; complaisance; respect; a willingness to grant a privilege,
not as a matter of right, but out of deference and good will. Recognition
that one sovereignty allows within its territory to the legislative,
executive, or judicial act of another sovereignty, having due regard to
the rights of its own citizens. In general, the principle of
'comity' is that courts of one state or jurisdiction will give
effect to laws and judicial decisions of another state or jurisdiction,
not as a matter of obligation, but out of deference and mutual
respect."
This "deference" is applicable not just between the States, but
also between the federal judiciary and the States when a state criminal
conviction is being reviewed in federal court upon Petition for Writ of
Habeas Corpus. As explained below, this "deference" can, and
often does, abrogate and override the Federal Constitutional rights
conferred upon the prisoner as a citizen of the United States.
From the concept of comity has evolved both the Exhaustion Doctrine and
the Procedural Default Doctrine of Habeas Corpus jurisprudence.
The Exhaustion Doctrine requires that any federal constitutional error,
committed in a state criminal conviction, must be "fairly
presented" to each available state court of appeal prior to being
raised in federal court by way of a Petition for Writ of Habeas Corpus. To
"fairly present" a claim, the complete "factual
basis," and explicit federal constitutional basis, must be raised and
argued in each state court, beginning at the trial by
"contemporaneous" objection to the error by trial counsel,
continuing in the direct appeal as an Assignment of Error, and on
discretionary appeal to the State's highest court, again as a separate
Assignment of Error. Failure to meet the stringent requirements of the
Exhaustion Doctrine in any state court requires the dismissal of the
Habeas Corpus, even if only one of fifteen errors has not been
"exhausted." This dismissal sometimes allows the prisoner to go back to
state court and file the issue in the proper court, or choose to abandon
the error by amending the writ to eliminate it.
Unfortunately, because States place time limits on filings, or, adhere to
the doctrine of res judicata, most issues are not amenable to being
returned to state courts. Even if they are, the 1996 Anti-Terrorism and
Effective Death Penalty Act pushed through Congress by Senators Orrin
Hatch and Trent Lott now allows the federal court to dismiss unexhausted
claims with prejudice without allowing the prisoner, if able, to return to
the state courts to exhaust the claim. The amendments to the Habeas Corpus
statutes in that act apply to both death penalty cases and non-death
penalty cases.
Res judicata is a doctrine that is imposed beyond its literal definition
of "a thing decided." It is enforced to mean, "Could have
been, or should have been, raised in the prior proceeding." It is a
tool intended to advance the orderly administration of justice and prevent
a party from raising numerous separate appeals as to a judgment. In other
words, "If you have something to say, say it now and say it all at
once in this first appeal, because we will not hear anything you should
say now, and don't, at a later date. We will consider it res judicata."
The doctrine has a valid goal. It means to prevent courts from having to
re-visit a case continuously as the loser finds new issues that could have
been raised on appeal, but which were not raised. It promotes the
"finality" of judgments in civil cases. While that may be valid
in civil suits, the author questions its application in the criminal
context where an individual's right to liberty is at stake. But the states
circumvent this legitimate questionablility by labeling all challenges to
criminal convictions outside of the first direct appeal (postconviction
actions), as "civil" or "quasi-civil" actions. This is
a legal fiction since the postconviction attack is directed to challenging
a criminal conviction's constitutionality.
The above gives rise, in part, to the second doctrine called the
Procedural Default Doctrine. You will not find a definition for the
Procedural Default Doctrine in Black's Law Dictionary because it is
defined in thousands of cases and not conducive to any one precise
definition. To sum up those cases, in the context of a Writ of Habeas
Corpus, a procedural default arises if:
1.) There is a failure to meet the requirements of the Exhaustion Doctrine
and there is no State Court remedy available either because of time limits
expiring, or the doctrine of res judicata preventing the issue from being
addressed on the merits by state court;
2.) The defendant's attorney failed to present the error in a manner that
enabled the state courts to rule on the merits of the federal
constitutional claim. This includes filing a postconviction action
untimely, or presenting the issue as an error of purely state law in the
direct appeal, as opposed to claiming it was also a violation of a federal
constitutional right. It includes the failure of an appeal attorney to
identify and raise an error at all. It includes the failure of the trial
attorney to object at the trial to an error, or objecting on the wrong
legal basis. It includes a defendant who was forced to raise the error in
a postconviction action because the attorney failed to raise it on appeal,
and because the defendant could not obtain the transcripts or documents
needed to file in time to meet the time deadlines imposed by the state
courts, had to file untimely. It includes hundreds of miniscule procedural
errors. The outright nitpicking encompassed by this rule is essentially
indescribable. I can only convey it by example. For instance, one man I
know was defaulted both in state court and in federal courts on six
serious constitutional violations because he failed to place the trial
court number on the first page of his Application to Reopen below the
court of appeals case number, even though the trial court case number
appeared on every document in the court of appeals file in the case, and
even though he immediately filed to correct the error within a week of
being informed of it. The United States District Court, the United States
Court of Appeals for the Sixth Circuit and the United States Supreme Court
dismissed the writ without ever reaching the merits of his claims. I know
the errors raised were arguable. I raised them for him. He was transferred
to another prison and when I sent him what he needed to have typed and
filed, he simply forgot to place the trial court number on the document.
His conviction contained serious constitutional flaws that have never, and
will never be, reviewed by any court.
As described by Justice O'Connor in Withrow v. Williams, the Procedural
Default Doctrine is a "procedural minefield" of errors that can
occur at any stage of a criminal case being litigated in State Courts, any
of which will totally preclude federal review of the error and the
vindication of federal constitutional rights by a federal court on
Petition for Writ of Habeas Corpus.
Of all writs filed by State prisoners, the following percentages are
dismissed:
1. 57% for failure to exhaust state remedies;
2. 12% for procedural default;
3. 7% for failure to meet court deadlines (this figure has drastically
changed since the 1996 AEDPA placed a one-year time limit on writs);
4. 6% for failure to raise cognizable issues (State law issues);
5. 6% for abuse of writ (not raising issue in first writ);
6. 4% on governments Motion to Dismiss;
7. 3% as a "successive" petition (filed same issue twice);
8. 3% as a "successive" petition (filed same issue three or more times)(or new claim not hold retroactive);
9. 1% because issues are "moot" (should be included in expired
sentences);
10. 1% are granted on the merits;
11. 1% are remanded to State courts.
Note: Discrepency in percentages is unexplained by DOJ FJS.
See, Department of Justice, Bureau of Justice Statistics, Federal Habeas
Corpus Review, Challenging State Court Criminal Convictions, September
1995, No. NCJ-155504, p. 17 (tracking 5,167 habeas cases). The doctrines
deriving from the principle of comity have rendered the Great Writ a paper
tiger.
Why are there so many technical procedural defaults?
Criminal cases account for a total of 5% of all litigation in the courts
of this nation. (Contrary to the representations of Senators Hatch and
Lott to Congress when pushing for passage of the AEDPA into law, only a
small percentage of the federal court's time is spent on State prisoner's
cases). Of all criminal convictions, only 14 out of every 1000 are
litigated to the point of a federal Petition for Writ of Habeas Corpus
being filed in the case. Id. Of those 1.4% filed, only 4% are represented
by an attorney. 96% of all writs are filed and litigated by the prisoner
assisted by a jailhouse lawyer. So in only 4% of 1.4% of 5% of all
litigation does an attorney become involved in litigating a Writ of Habeas
Corpus. This is because the criminal defendant, if he had any money to
begin with, has paid it all for his trial and appeals attorneys,
and is financially destitute by the time the case reaches federal court.
As a result, only 28 out of every 1,000,000 cases filed in the United
States is a Petition for Writ of Habeas Corpus represented by an attorney.
Those are almost exclusively death penalty cases. It is extremely rare to
find an attorney who has ever litigated a federal Writ of Habeas Corpus
and the majority of trial attorneys and appellate attorneys either
retained by the defendant, or appointed by the States for indigent
defendants, have no personal litigation experience with either the
Exhaustion Doctrine or the Procedural Default Doctrine as applied to a
Petition for Writ of Habeas Corpus.
This lack of experience results in over 79% of the appeals litigated by
these attorneys in the State courts being deficient for purposes of a
Federal Writ of Habeas Corpus and the requirements of the Exhaustion and
Procedural Default Doctrines.
Most of these attorneys raise the errors in the trials they are appointed
to represent as State law errors and fail to raise or preserve the
parallel federal constitutional errors arising from those State law
errors.
When the defendant arrives in federal court, the federal judge tells the
defendant that a federal court does not adjudicate questions of State law,
and dismisses the petition under the comity considerations underlying the
exhaustion and procedural default doctrines, finding the issues
procedurally defaulted. This is done after the State Attorney General
invokes the procedural default caused by the State appointing unqualified
attorneys to the defendant's State appeal.
Why is this a problem? Because the federal constitutional errors dismissed
as being procedurally defaulted are not all-frivolous or minor errors.
Some are serious violations of the United States Constitution. But these
unconstitutional convictions are allowed to stand uncorrected due to the
"comity" policies in effect between the Federal Government and
the State governments.
Each year thousands of criminal defendants across this nation are denied
their federal rights as a citizen of the United States. They are
unconstitutionally convicted under State laws and deprived of their federal rights through
"Federalism" policies, and the exhaustion and procedural default
doctrines giving "deference" to the State procedural rules over
the substance of the constitutional violation. Most distressing is that
many of these procedural defaults are in actuality created by the State to
begin with and totally beyond the control of the defendant. See, Ohio
Legal Notes: From The Front Line, The Challenger, June 2001 (withholding
of transcripts from prisoners causes State procedural defaults); From The Front Line, "Once You Are Accused"(unqualified court
appointed attorneys cause convictions of innocent defendants).
We are either one nation ruled by law administered equally and fairly to
all citizens accused of crimes, or we are 50 separate judicial sovereigns
who administer equal justice only to those criminal defendants blessed
with the luck of the draw that appoints an attorney to them who has
previously litigated habeas actions and knows what is required by the
Exhaustion and Procedural Default Doctrines. If we are to be one nation
then justice must be administered both fairly and equally. As stated in
Matthews v. Eldrige, by the Supreme Court, a defendant's interest in
liberty and the State's interest in the correctness of criminal
adjudication's overlap, minimizing the States interest in the finality of
an unconstitutional conviction.
The policies of comity which gave rise to the exhaustion and procedural
default doctrines, as they are presently being enforced, are abrogating
the rights of the citizens of the United States to be free from
unconstitutional convictions and having the secondary effect of preventing
the evolution of the laws of this nation.
If unconstitutional State convictions are allowed to continue to remain
uncorrected, the government officials who caused the constitutional
errors to occur lack any incentive not to repeat those errors in future
trials.
Substantive errors of constitutional magnitude cannot continue to be swept
under the carpet by dismissing them on technical procedural grounds. Just
as criminal defendants are no longer able to receive reversals on
technical errors committed by the government in their cases (and those
technical reversals have been done away with regardless of what you are
told), the States should not be allowed to get away with violating the
United States Constitution by hiding those violations behind technical
procedural defaults and technical dismissals of constitutional
errors.
Substance over procedure, or as it is called, "adjective law,"
is what the fundamental concepts of fairness and equity between the
government and its citizens require. Until the technical playing field is
leveled, countless unconstitutional convictions will remain the norm and
the law will continue to stagnate in 18th Century concepts designed to
protect the status quo of those in power at the cost of individual liberty
and truth.
Until next time this is Jim Love reporting From the Front Line.
James was convicted in a manufactured rape with no evidence whatsoever and a solid
alibi. After waiting eight years, the complaining witness alleged the felony took place while he was out of the country, and before they met!
SEE - PROOF OF INNOCENCE
More About
JAMES LOVE
You can contact
the author at:
JAMES LOVE
#329-475
P.O. Box 56
Lebanon, OH 45036
JimLove@PrisonerLife.com
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