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“An application for writ of habeas corpus filed after final conviction
in a felony case, other than a case in which the death penalty is
imposed, must be filed with the clerk of the court in which the
conviction being challenged was obtained, and the clerk shall assign
this application to that court. When the application is received by that
court, a writ of habeas corpus, returnable to the Court of Criminal
Appeals, shall issue by application of law. The clerk of that court shall
make appropriate notation thereof, assign to the case a file number
(ancillary to that of the conviction being challenged), and forward a
copy of the application by certified mail, return receipt requested, or
by personal service to the attorney representing the state in that court,
who shall answer the application not less than the 15th day after the
date the copy of the application is received. Matters alleged in the
application not admitted by the state are deemed denied.”
Once state habeas corpus remedies are fully exhausted, the state
prisoner can include some, or all, of the issues presented on direct appeal
(those of constitutional magnitude) and those presented in the Art. 11:07(3)
(b) petition in his/her § 2254 federal habeas petition. At this procedural
juncture the most important thing to remember is that federal courts “may
entertain an application for a writ of habeas corpus only on the ground that
the prisoner’s confinement violates the Constitution, laws, or treaties of the
United States.” See, 28 U.S.C. 2254(a) (2000) [Emphasis added].
A federal court will grant habeas relief for a violation of federal law
by a state only if the violation is a “fundamental defect which inherently
results in a complete miscarriage of justice” or offends the basic principles
of fair procedures. See, Reed v. Farley, 512 U.S. 339, 354 (1994) [quoting
Hill v. United States, 368 U.S. 424, 428 (1962)]. Federal courts are equally
strict in their adherence to the longstanding rule that violations of state law
are not cognizable under § 2254 unless the violations reach constitutional
magnitude. Pulley v. Harris, 465 U.S. 37, 41 (1984) [habeas relief denied to
state prisoner claiming that state’s refusal to conduct a proportionality
review of death sentence amounted to a constitutional violation because it
was considered error of state law]; Brown v. Sanders, 126 S.Ct. 884, 896
(2006) [considerations of sentencing guidelines later invalidated by state
supreme court did not rise to level of a constitutional violation]; Estelle v.
McGuire, 502 U.S. 62, 67-68 (191)[holding that it is not within the
“province of a federal habeas court to reexamine state court determinations
on state-law questions”]. See also: Thacker v. Dretke, 396 F.3d 607, 615 (5th
Cir. 2005) [claim that jury charge violated state law not cognizable because
state courts reasonably adjudicated constitutional issue].
The Thacker case is a good barometer for measuring federal habeas
intervention. That case involved an alleged violation of purely state law that
the state courts adequately addressed on direct appeal. But on the other hand
if a jury charge rises to the level of a due process violation, the federal courts
will unconditionally grant habeas relief. See, Cockerham v. Cain, 283 F.3d
657, 663 (5th Cir. 2002).
The U.S. Supreme Court held that a reversible “judicial error” occurs
when a defendant is convicted without the state proving each element of the
offense charged beyond a reasonable doubt. See, Fiore v. White, 531 U.S.
225, 228-29 (2001) (per curiam). A reversible judicial error also occurs
when the trial court refuses to instruct the jury on a justification defense.
See, Jackson v. Edwards, 404 F.3d 612, 622 (2nd Cir. 2005). See also: Lakin
v. Stine, 431 F.3d 959, 963 (6th Cir. 2005) [due process violated when trial
court improperly allowed a corrections officer to shackle defendant during
trial rather than the court making an independent determination of the need
for shackling]. But see: Bigby v. Dretke, 402 F.3d 441, 563-64 (5th Cir.
2005) [no due process violation after trial judge admitted testimony about
the defendant’s attack on the judge; decision did not constitute judicial bias
that had substantial and injurious effect on jury verdict].
Interpreting Herrera, the Fifth Circuit said the case does not apply in
cases where evidence is not “newly discovered” and there is no “substantial
doubt” about the guilt of the accused. See, Dowthitt v. Johnson, 210 F.3d
733, 742 (5th Cir. 2000). See also: Doe v. Menefee, 391 F.3d 147, 164-65
(2nd Cir. 2004).