A defendant convicted of a criminal offense in a Texas court may challenge the legality of his or her conviction by filing a petition for habeas corpus in federal court under 28 U.S.C. § 2254, which grants federal jurisdiction over challenges to state custody resulting from a violation of the Constitution, laws, or treaties of the United States. The essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and the traditional function of the writ of habeas corpus is to secure the prisoner's release from illegal custody.

Federal habeas corpus is a unique legal proceeding that, although usually triggered by criminal prosecutions, is a civil suit, separate from the criminal prosecution. Habeas corpus proceedings are governed in part by the Federal Rules of Civil Procedure.

Although technically the writ is not part of the appellate process, the most common modern use of the writ is to provide a quasi-appellate review of state criminal convictions on federal constitutional grounds after state remedies have been exhausted. Complaints about the conditions of confinement are generally asserted as federal civil rights actions, although federal habeas corpus may be appropriate when a prisoner is put under additional and unconstitutional restraints during lawful custody. The purpose of this chapter is to provide a general overview of the use of the writ of federal habeas corpus to attack the fact of or duration of a Texas state conviction after all state remedies have been exhausted.

Time for Filing Writ

Federal habeas corpus relief is not available until after the applicant has exhausted the remedies available in state courts. Thus, the federal habeas petitioner should usually not file the petition until after all of the following procedures that are applicable have concluded:

1. The guilt/innocence trial.

2. The punishment hearing.

3. Proceedings on motions for new trial and other post-conviction motions.

4. Appeal of right to the Texas Court of Appeals. This step does not apply in death penalty cases, which are automatically appealed to the Court of Criminal Appeals.

5. Discretionary review petition to the Court of Criminal Appeals with either review denied or review granted but relief on the merits denied.

6. Consideration of whether to seek certiorari review in the United States Supreme Court. However, such an action is not required in order to exhaust state remedies.

7. State postconviction proceedings on all claims not previously litigated that still are available.

8. All available state postconviction appeals.

9. Consideration of whether to seek certiorari review in the United States Supreme Court of the denial of state postconviction relief.

Failure to take one or more of the above steps can result in dismissal of one or more grounds in a federal habeas corpus petition for failing to exhaust remedies, procedural default, or abuse of writ if claims omitted from an earlier petition are presented in a later federal habeas petition.

Once these steps have been taken, determining when to file the petition is within the control of the petitioner and will be affected by such practical considerations as conducting an investigation to establish the necessary factual background for a habeas petition. Promptly filing the petition after the above nine steps have been satisfied is advisable for a number of practical and legal reasons. Of course, an inmate will desire to be released from custody as soon as possible. However, the petitioner must be in some form of ``custody'' in order to satisfy federal habeas corpus jurisdictional requirements. Delay also risks the loss of evidence that may be necessary to establish the legal claim presented in the habeas petition. If a potential loss of evidence is anticipated, a habeas petitioner may invoke the testimony-preserving procedure in Federal Rule of Civil Procedure 27(a), which permits a prospective federal litigant, in advance of filing in the federal courts, to take a deposition of a crucial witness who may be unavailable in the future . Rule 27(a) applies in federal habeas corpus cases under the catch-all provision in Rule 11 of the Rules Governing § 2254 Cases 11.

Custody

Another reason to file a petition for federal habeas corpus as promptly as possible after state remedies have been exhausted is that the failure to file the petition in a timely fashion can result in a loss of jurisdiction of the federal court in some cases. A petitioner cannot invoke federal habeas review by a federal court unless the petitioner is ``in custody''. This section addresses the impact of that requirement on the issue of when to file the petition.

The term ``custody'' has been given a broad reading and does not require actual physical custody. Nevertheless, delay in filing a petition could result in a dismissal on jurisdictional grounds even though an expired sentence could have collateral consequences. For example, employment, voting, and jury-service disabilities that result from a felony conviction are not sufficient to constitute ``custody'' when the petitioner first files. However, these consequences prevent a petition that was filed while the petitioner was in custody from becoming moot on his or her release.

Pretrial Detention

Although the most common use of federal habeas corpus is as a post-conviction remedy after state remedies have been exhausted, there are circumstances in which the writ may be available prior to a state criminal proceeding. Despite the reluctance of the federal courts to interfere with ongoing state criminal proceedings, claims that challenge the constitutionality of pretrial custody or the validity of the state prosecution itself can sometimes be raised prior to trial.

Exhaustion of State Remedies

A convicted defendant is generally not permitted to seek federal habeas corpus relief until all potential claims have been litigated in the state courts. The exhaustion of state remedies before filing a federal habeas petition was first required by the United States Supreme Court in Ex parte Royall. This requirement has since been codified by Congress in Section 2254. The exhaustion requirement preserves the role of the state courts in defining and applying federal constitutional law and promotes the orderly administration of state judicial proceedings by preventing their interruption by federal habeas proceedings.

Every claim in a federal habeas corpus petition must have been previously exhausted in state court. A petition including both exhausted and unexhausted claims will be dismissed without prejudice, leaving the petitioner the choice of eliminating the unexhausted claims from the petition or returning to the state courts to exhaust state remedies before refiling the federal habeas petition. Dismissal is generally the more prudent choice. If the petition is amended to present only the exhausted claims and the petitioner prosecutes the habeas corpus proceeding to its conclusion, the petitioner seeking to present the previously unexhausted claims in a subsequent petition must prove that presentation of the claims does not constitute abuse of the writ.

The exhaustion requirement can be satisfied, without actually pursuing the claims through the state appeal process, if ``there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner''.

Identity of State and Federal Claims 

To exhaust a claim for federal habeas corpus purposes, the petitioner must have presented to the state courts ``the facts and the legal theory upon which petitioner bases his assertion''. It is not enough for petitioner to have referred to a general set of facts that he or she later will claim warrant federal habeas corpus relief. The petitioner must have afforded the state courts ``an opportunity to apply controlling legal principle to the facts bearing upon [the] constitutional claim''.

Federal courts may conclude that legal claims are not sufficiently equivalent to those presented in state courts in the following situations:

1. They arise under different federal constitutional provisions, even different clauses in the same constitutional amendment.

2. The two claims arise under the same constitutional provision but are logically distinct.

3. If one claim relies on state law while the other relies on federal law, even if the state provisions are similar or identical.

It is prudent practice to draft federal claims in state proceedings in a form that can be later used in the petition without modification. However, the federal habeas corpus petition should reflect any enhancement of the claim based on new facts or new law or if the issue becomes clarified during the course of state appellate proceedings, so long as any reformulation does not fundamentally alter the claim presented. For example, the petitioner may supplement and clarify the record. The petitioner may present new material supporting facts already in the record or citing additional instances of the same alleged violation. Production of new evidence also is permitted if its recent discovery was caused by the state improperly withholding the evidence.

Even if the same exact legal claim is presented in state and federal proceedings, however, reliance in the two proceedings on different factual grounds that ``fundamentally'' alter the legal claim could prevent a conclusion that the claim has been exhausted. The presentation of significantly stronger evidence of the same factual grounds may have the same effect. For example, when a petitioner asserted in federal court facts occurring after the denial of state habeas relief that would probably entitle him to habeas corpus relief, the posture of the case was so different that the exhaustion requirement was not satisfied.