Inmates planning to challenge their state convictions in Federal Court are worried about the recent Supreme Court case Shinn v. Ramirez.
Although I realize the Shinn holding will damage some inmates’ 2254 habeas claims, I’m telling my clients that they don’t need to panic.
First, let’s discuss what the case is about.
The Shinn opinion addresses a narrow issue: is an inmate challenging a state conviction in Federal Court under Section 2254 allowed to introduce evidence of ineffective assistance of counsel that occurred during their state trials but was not introduced by state habeas counsel? I emphasize the word “evidence” because that is the only issue before the court in Shinn. Under the unique procedural posture of the defendants in Shinn, it is undisputed that the defendants are able to plead ineffective assistance of trial counsel even though they didn’t raise that issue in state proceedings.
Generally speaking a Section 2254 habeas petitioner (someone who challenges a state conviction in Federal Court) can’t raise a new issue in Federal Court. He has to have (1) exhausted all State remedies and (2) properly raised all issues according to state law and procedure. Only then can he file in Federal Court. These two requirements are called “exhaustion” and “procedural default.” You can think of it this way: an inmate in a state prison must leave nothing on the table in state court. Every issue must not only be raised and fully developed, they must be raised in a timely way in accordance with state procedures. Only then can you pack up your legal briefs and case files and head to Federal Court.
But there’s an exception to this process. Sometimes a Federal Court can forgive a 2254 petitioner that has “procedurally defaulted” a particular issue, i.e. failed to raise the issue in state court at the proper time. They have to have a good excuse, though. The Federal Courts all break down a good excuse into two components: “cause” and “actual prejudice” to their case.
Attorney mistakes generally don’t qualify as an excuse for not raising an issue in state court. But there was one “narrow exception” to this. If your state habeas counsel fails to plead all trial counsel errors during state habeas proceedings and the state requires those errors to be plead for the first time during that proceeding, then the Federal court may “forgive” the default and allow the applicant to raise the claim.
That phrasing is confusing. Another way to describe the exception is: if you don’t raise all your ineffective trial counsel claims when you file your state writ and it’s your state habeas lawyer’s fault, you might be able to raise that lost claim in Federal Court.
The Court in Shinn doesn’t disturb this “for cause” exception. Instead, they have to decide whether, in addition to pleading the “lost” ineffective claim, can the petitioner also bring in new evidence to support it?
They answer is no. You can sometimes add an ineffective assistance of trial counsel claim to your federal writ (under the situation described above), but it’s extremely difficult, almost impossible, to support that “lost” claim with new evidence in the federal court. You can only supplement the federal habeas record if (1) a new retroactive rule of constitutional law is developed or (2) there is a factual predicate that could not have been previously discovered through due diligence.
And that’s not all. Even if you prove one of the two thing described above, you still have one more hurdle: you have to show by clear and convincing evidence that no reasonable fact finder would have convicted you of the crime.
That’s . . . a really hard standard.
The majority’s reasoning is based on a hyper-technical reading of 28 U.S.C. Section 2254(e)(2), which is part of the AEDPA – the infamously picky federal statute that creates numerous procedural hurdles for state prisoners to bring their federal claims.
There’s no point in doing a deep dive into the majority’s statutory analysis. But the Court does make one key point worth mentioning. Specifically, the Court points out that attorney error or negligence cannot be a good excuse for not developing the record at the state level. The Court points out that in state habeas proceedings inmates don’t have a right to counsel. So, the Court, reasons, since there’s no 6th Amendment Right attached to state habeas proceedings, any and all errors must be imputed to the petitioner.
But this is hardly news — the Supreme Court has long held that attorney mistakes are not “good cause” for statutory tolling under AEDPA (statutory tolling is fancy talk for extending time lines under AEDPA to file a federal writ).
Why Shinn won’t affect most inmates
I think people are frustrated by the Shinn opinion because, as the dissenting Sotomayor points out, it’s kind of illogical. The Court says on one hand that you can raise a new ineffective trial counsel claim (under the narrow circumstances described above), but then on the other it says you can’t introduce new evidence to support it.
But I’m telling you on a practical level this opinion will not impact most state prisoners. There’s a few reasons why.
First, the biggest hindrance to filing a 2254 petition is timeliness — you only get a year after your state conviction is final to file a federal writ. The legal fight is usually whether this one-year deadline has been tolled and for how long.
Second, Shinn does not affect “new factual predicate” claims. If a witness changes their story 5 years after trial, you can still validly raise that claim both as a subsequent state writ and as a 2254 federal petition. Same goes for new scientific evidence, Brady violations, etc. None of those things can be characterized as the defendant’s fault for not raising them earlier.
Third, Shinn does not affect normal ineffective state trial and appellate counsel claims. If you catch and develop these claims properly you can still raise them at federal level if the state denies relief.
Shinn only screws state prisoners that have either hired terrible state habeas counsel or don’t hire an attorney and file the writ themselves. All the obvious stuff like mitigation evidence has to be developed by state habeas counsel. That means getting documents in the habeas record like medical reports and clinical assessments. It’s not rocket science. Just develop the record.
The moral is, Shinn doesn’t take anything away from a state prisoner’s ability to full contest his conviction. But if you cut corners at the state habeas proceedings, there’s little chance of a “do over” at the federal level. So get the very best state habeas representation you can afford. And, for the love of God, don’t file a state writ without an attorney. You’ll miss something and then never be able to raise it again.