Federal Habeas Corpus Attorneys in Philadelphia, PA | Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254

If you have been wrongfully convicted in state or federal court, we can help. Even if your direct appeals and Post-Conviction Relief Act (“PCRA”) challenges to your state court conviction in Pennsylvania have been denied, there may still be hope for getting justice and obtaining a new trial, sentencing, or discharge of your criminal case. Federal law provides one last chance for criminal defendants who have been convicted in state court to challenge that improper state court conviction in federal court once all state court appeals and post-conviction relief petitions have been denied.

The federal courts provide the opportunity to litigate a habeas corpus petition to challenge an unconstitutional state court conviction. These petitions are extremely complicated and often difficult to win, so it is absolutely critical that you retain an experience federal habeas corpus attorney as soon as possible if you wish to continue fighting for your freedom and reputation. A petitioner who believes that they were wrongfully convicted in state court may be able to file a habeas corpus petition under 28 U.S.C. § 2254, but there are strict deadlines and complicated procedural requirements that make it extremely important that you retain an attorney with experience litigating these cases and winning.

Our experienced criminal defense lawyers and criminal appeals attorneys have experience litigating these petitions in the Eastern District of Pennsylvania and other districts in the federal Third Circuit and may be able to help you or your loved one get a new trial, sentencing hearing, suppression hearing, or discharge of the case. Our Philadelphia criminal defense lawyers pride themselves on fighting for justice for the wrongfully accused and wrongfully convicted.

Can I challenge a state court conviction in federal court?

28 U.S.C. § 2254 provides one last chance to challenge a state court conviction by filing a petition in federal court. This type of petition would typically be filed once all other appeals have been exhausted. This means we may be able to help you or your loved one even if the appeals courts have upheld a conviction on direct appeal and a post-conviction relief act petition filed in state court has been denied. A defendant who received the ineffective assistance of counsel in their state court trial, on direct appeal, or in the first round of state court PCRA proceedings may be eligible for relief in federal court. Similarly, a defendant who was convicted on the basis of insufficient evidence may be able to bring a federal due process claim in federal court seeking discharge of the case or particular charges. It is important to note that federal habeas corpus petitions are extremely complicated and that the deadlines for filing them are very strict, so it is important to consult with an experienced defense attorney as soon as possible if you are considering filing one for your case. This article does not discuss all of the potential issues that a defendant may face in filing a successful federal habeas petition.

What types of errors can be addressed through a federal habeas petition?

In general, if you have been wrongfully convicted in state court due to a violation of your constitutional rights, we may be able to help you by filing a petition in federal court. In federal court, we may be able to argue that you should receive a new trial because the state courts violated a constitutional right during the trial process or on appeal or that you should you should receive a new trial because you received the ineffective assistance of counsel at trial, on direct appeal, or in state post-conviction relief act proceedings. For example, if your lawyer provided the ineffective assistance of counsel by failing to make sure you received the right jury instructions, failing to thoroughly investigate the case, or failing to pay attention and object to inadmissible evidence, we may be able to raise these issues in a federal habeas petition. It is also possible to challenge a conviction that was obtained based on insufficient evidence as a conviction which was not really proven beyond a reasonable doubt violates federal due process under established United States Supreme Court case law. In general, federal law requires that a defendant first seek relief in state court by appealing to at least the intermediate appellate court (the Superior Court in Pennsylvania) or litigating a PCRA petition. In some situations, however, it may be possible to argue that PCRA counsel provided the ineffective assistance of counsel in failing to bring legitimate claims for a PCRA petition, as well.

How long do I have to file a habeas corpus petition?

You typically have one year to file a habeas corpus petition from the date on which your sentence becomes final. A sentence generally becomes final thirty days after sentencing or after a direct appeal has been denied. The deadline may be slightly longer if you appealed to the Pennsylvania Supreme Court, but it is important to speak with an attorney sooner rather than later so that you do not let any deadlines expire. The time during which a properly filed PCRA petition is pending and being litigated does not count towards this one year period, so you can file a PCRA first and then later file a federal habeas petition if the PCRA petition is denied. You usually would not be able to file a federal habeas petition first and then file a PCRA petition later, however.

The deadlines are extremely strict and often difficult to calculate. Therefore, it is important to speak to an attorney immediately if you are considering filing a petition as the deadlines may be sooner than you think. There are some exceptions for equitable considerations such as the breakdown of the court process or a prison’s refusal to allow an inmate access to mail or the law library in some circumstances, but these exceptions are extremely hard to prove and often rejected. There may also be exceptions if your prior attorneys did not inform you of your rights or misled you about the status of your appeals, but the courts will almost always require that you show that you acted with reasonable due diligence in protecting your rights and monitoring your case even if you have been incarcerated. Therefore, it is important to file as soon as possible with the assistance of an experienced attorney. Once the deadlines have expired, it can be extremely difficult if not impossible to get back into court even though the federal courts will on occasion apply a doctrine called equitable tolling to allow an untimely petition to be heard.

Can I file more than one habeas corpus petition?

Generally, no. If you have already filed and lost in a first round of habeas corpus litigation, it is still technically possible to file a second petition, but the second petition will be referred to as a “second and successive” petition. A second petition can only be filed when there is some type of brand new after-discovered evidence or a new Supreme Court precedent that has been made retroactive to a state prisoner’s case. If those exceptions do not apply, then the court will reject the petition. The district court is usually not even authorized to accept a second or successive petition on its own. Instead, you would first have to file in the Court of Appeals and request permission from an appellate judge to file a new petition in district court. The Third Circuit is often hesitant to allow a second or subsequent habeas corpus petition, but the Court will on occasion allow it where the claims are particularly meritorious. Therefore, it is critical to get it right the first time when seeking relief from a state court conviction in federal court.

How do I challenge a state court conviction in federal court?

You must file a petition for habeas corpus under under 28 USC § 2254 petition in the District Court for the region in which you were convicted. For example, if you were convicted in the Philadelphia Court of Common Pleas, Delaware County, or Montgomery County, you would need to file your petition in the Eastern District of Pennsylvania. If you were convicted in Harrisburg or Scranton, however, then your petition would need to be filed in the Middle District of Pennsylvania. The petition must clearly allege the reasons for which you should receive a new trial, sentencing, or discharge, and list any witnesses which you would call at an evidentiary hearing. It is also important to include the case law on which you are relying for relief. The district court may then reject the petition or refer it to a magistrate judge for further proceedings. If the court refers it to a magistrate judge, the judge could order further briefing from the parties. Once briefing has been completed, the court could hold an evidentiary hearing, grant the petition, or deny the petition. In some cases, it may be possible to negotiate for relief with the District Attorney’s Office where a truly egregious error has occurred.

Will there be a hearing in court?

This depends on the issue raised. In some cases where there is a legitimate issue which has been raised in the petition, the court could decide to hold an evidentiary hearing. An evidentiary hearing may be necessary to determine whether new evidence is credible and would have made a difference as well as to determine the strategic reasons or lack thereof on which the trial attorney relied in making certain decisions. Evidentiary hearings are fairly common in state court PCRA litigation, but they are fairly rare in federal court as there are a number of procedural obstacles which make it relatively easy for the federal courts to dismiss petitions without a hearing. 

What happens if I win a federal habeas corpus petition?

If you win a federal habeas petition, you could receive a new trial or sentencing. In some circumstances, the case could also be discharged. However, even if the district court grants a petition, it is possible that the government could appeal to the Court of Appeals for the Third Circuit or the United States Supreme Court.

Can I appeal if the district court denied my petition? 

It depends. In general, the initial decision on a federal habeas petition is made by a federal magistrate judge. The magistrate judge will typically issue a report and recommendation to the district judge as to whether the petition should be denied or granted and whether the court should grant a certificate of appealability. A criminal defense lawyer may appeal the decision of the magistrate judge by filing objections to the report and recommendation. If those are not filed, it may not be possible to appeal the ruling at all.

If the defense files objections to the report, then the district judge will review the case and make their own ruling. If the district judge agrees with the magistrate judge and dismisses the petition, the district judge will also typically rule on whether the petitioner should receive a certificate of appealability.

It is not possible to appeal to the Third Circuit Court of Appeals without a certificate of appealability. Thus, a petitioner must ask the district judge for a certificate of appealability prior to taking an appeal. The certificate of appealability provides permission from the court to appeal the denial of the habeas petition, and it depends on being able to convince a judge that there is a substantial question for review.

If the district court denies a certificate of appealability, the petitioner may still file a notice of appeal and ask the appellate court for a certificate of appealability by filing a motion for the issuance of a certificate of appealability. This is different from being allowed to actually appeal on the merits. If the certificate is issued, then the petitioner may then appeal the ruling. If it is denied, then there will be no full appeal. The only remaining right to appeal at that point would be to file a petition for writ of certiorari in the United States Supreme Court. Our attorneys have experience litigating federal habeas petitions, objecting to negative reports and recommendations, appealing to the Third Circuit Court of Appeals, and petitioning for writs of certiorari in the United States Supreme Court. We have litigated federal habeas corpus petitions and won.

How long does litigating a § 2254 petition take?

The entire process typically takes anywhere from six months to two or three years. It can vary by case, however. It does take an extensive period of time because it takes the defense attorney time to review the case, investigate what happened in the trial and appellate courts, and then research, draft and file a petition. The Commonwealth will then typically be given months to respond, and it will take the court some time to rule in most cases. Therefore, it is a lengthy process. 

What happens if the § 2254 petition is denied?

You may seek a certificate of appealability from the trial court and attempt to appeal to the Third Circuit Court of Appeals. If the district judge denies the certificate of appealability, a petitioner may file for permission to appeal in the appellate court.

What are some common claims for a § 2254 Petition? 

Generally, in order to win a federal habeas corpus petition, an inmate, probationer, or parolee must show that it is more likely than not that the judgment which he or she is attacking is invalid because his or her constitutional rights were violated. The most common claims involve the ineffective assistance of counsel at trial, on appeal, or in the initial round of PCRA proceedings. It may also be possible to claim that the state courts erroneously applied the constitution in your case. For example, there have been some recent opinions in which federal courts found state court convictions to be based on insufficient evidence. A conviction based on insufficient evidence violates the right to due process.

If an inmate is challenging a guilty plea, the state generally must show that the plea was knowingly, voluntarily, and intelligently made.

Ultimately, this process can be used as one last attempt to challenge a state court conviction once direct appeals and PCRA litigation has failed. The petitioner must show that the state court decision was clearly wrong or that he or she received the ineffective assistance of counsel. There are a number of procedural obstacles which must be met in order to file a federal habeas petition, so it is extremely important to speak with a criminal defense attorney immediately if you are appealing your case or your PCRA petition has been denied. The federal courts are required to be deferential to the decisions of the state courts, but our experienced criminal defense attorneys have won new trials and sentencing hearings for clients on direct appeal, in PCRA litigation, in the appeal from the denial of PCRA petitions, and in federal court by filing federal habeas petitions under § 2254. This area of law is very complicated, and few attorneys do it well. It is critically important that if you are considering filing a petition in federal court that you speak with an attorney with experience fighting and winning these cases.

Case Study - Successful Re-Sentencing Obtained in Murder Case By Filing Federal Habeas Petition

Attorney Zak Goldstein obtained a new sentencing hearing for a client who had been sentenced to an illegal 40-year sentence for third degree murder. In S.C. v. Krasner, et al., the defendant had been found guilty of third-degree murder in Philadelphia state court. At the time that the murder was committed, the statute in effect authorized a maximum sentence of 20 years’ incarceration for third-degree murder. While the case was pending, however, the Pennsylvania Legislature amended the statute to increase the potential maximum to 40 years of incarceration. Following his conviction, the Court of Common Pleas applied the amended statute and improperly sentenced S.C. to 40 years’ incarceration despite the fact that ex post facto rules prohibit the government from retroactively applying laws which make penalties worse where those laws were not in effect at the time that the crime was committed. S.C.’s attorneys did not appeal on this issue at the time, and the error went uncorrected for years.

S.C. had a number of legal issues and was serving sentences in multiple jurisdictions at the same time. Over the years, he repeatedly wrote to his original attorneys and requested that they appeal the 20-40 year prison sentence because the sentence violated his rights in that he received a worse punishment than he could have received at the time of the offense. The attorneys wrote back and erroneously advised him that there was no rush to file an appeal or PCRA petition because the illegal sentence could be corrected at any time. This was unfortunately not an accurate statement of the law. Ultimately, S.C. made parole, but because of the illegal sentence, he would have remained on parole for another twenty years. Through different counsel, S.C. filed a PCRA petition asking that the Philadelphia state court correct the illegal sentence and re-sentence him to 10-20 years’ incarceration. The state court denied that petition, finding that it was filed too late and that S.C. should have appealed after he was originally sentenced. He appealed, but the Pennsylvania Superior Court affirmed.

S.C. then retained Attorney Goldstein to file a federal habeas petition. In general, once state court appeals and PCRA petitions have been denied, it is sometimes possible to challenge the rulings of the state courts in federal courts by filing a federal habeas petition pursuant to 28 US Code § 2254. Attorney Goldstein therefore filed a petition asking the federal court to find that the illegal sentence should be vacated because S.C. could not have properly received a 40 year prison sentence at the time of his original sentencing.

In addition to proving that the sentence was illegal, Attorney Goldstein also had to prove that the district court had the power to grant S.C. relief even though he did not file the petition for far more than a year following the date on which his judgment of sentence became final. Therefore, Attorney Goldstein also argued that the doctrine of equitable tolling should apply. In most cases, a federal habeas petition is subject to a one year statute of limitations which begins to run from when the defendant’s sentence becomes final. This typically means that the petition must be filed within about a year of the conclusion of any appeals, although a defendant may have an additional thirty or ninety days if the defendant appealed to the Pennsylvania Superior Court or Pennsylvania Supreme Court. Equitable tolling is a doctrine which allows a federal court to consider a claim even when the statute of limitations has expired.

In order to receive the benefit of the equitable tolling doctrine, a petitioner must establish two elements: (1) that he or she has been pursuing his or her rights diligently, and (2) that some extraordinary circumstance stood in his way. Some federal courts have applied equitable tolling where it is clear that the petitioner was abandoned by counsel or received incredibly incorrect legal advice. It is important to note that although equitable tolling may be available in federal court, it is not available in state court PCRA litigation unless the petitioner can show that the PCRA lawyer completely abandoned the client and failed to file a petition on time despite being retained or appointed to do so.

In this case, Attorney Goldstein filed the habeas petition, and the Philadelphia District Attorney’s Office then agreed to the relief sought. The Commonwealth, through its Conviction Integrity Unit, conceded that S.C. should not have received a sentence of more than 20 years under the third-degree murder statute which was in effect at the time of the crime. Given the Commonwealth’s agreement, a federal district judge for the Eastern District of Pennsylvania promptly granted the habeas petition and ordered that the state court re-sentence S.C. S.C. then received a 10-20 year sentence at the Philadelphia state court re-sentencing. He had already served the maximum sentence, so he will not have to spend 20 years subject to the restrictions and whims of a state parole agent.

Facing criminal charges in Philadelphia or considering an appeal in Pennsylvania? We can help. 

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also helped the wrongfully convicted obtain new trials and sentencing hearings in post-conviction proceedings. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

28 U.S. Code § 2254

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

(b)

(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B)

(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.

(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

(e)

(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

(f) If the applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the State court’s determination of a factual issue made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination. If the applicant, because of indigency or other reason is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official. If the State cannot provide such pertinent part of the record, then the court shall determine under the existing facts and circumstances what weight shall be given to the State court’s factual determination.

(g) A copy of the official records of the State court, duly certified by the clerk of such court to be a true and correct copy of a finding, judicial opinion, or other reliable written indicia showing such a factual determination by the State court shall be admissible in the Federal court proceeding.

(h) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel for an applicant who is or becomes financially unable to afford counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.

(i) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.