Capital § 2254 Habeas Cases:

A Pocket Guide for Judges

Kristine M. Fox

Senior Capital Case Staff Attorney

District of Arizona

Federal Judicial Center

2012

This Federal Judicial Center publication was undertaken in furtherance of 

the Center’s statutory mission to conduct and stimulate research and development for the improvement of judicial administration. While the Center 

regards the content as responsible and valuable, it does not reflect policy or 

recommendations of the Board of the Federal Judicial Center.
first printing
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Contents

Introduction, 1

Initiation of the Case, 2

Motion for Appointment of Counsel, 3

Budgeting and Voucher Review, 5

Stay of Execution, 6

Procedural Considerations, 6

Successive Petitions, 7

Timeliness of Petition, 8

Exhaustion of State Remedies, 9

Procedural Default, 11

Amending a Petition, 11

Substantive Considerations, 12

Section 2254(d)(1), 13

Section 2254(d)(2), 14

Harm or Prejudice Requirements, 14

Evidentiary Development, 15

Evidentiary Hearing, 16

Discovery, 17

Record Expansion, 17

Briefing Procedures, 18

Execution-Related Matters, 19
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Capital § 2254 Habeas Cases

Introduction

Under 28 U.S.C. § 2254, a prisoner in custody pursuant to a state 

court judgment may seek relief in federal court by petitioning for 

a writ of habeas corpus. Civil in nature, habeas corpus petitions are 

initiated by the petitioner, who must demonstrate that the state court 

conviction or sentence was obtained in violation of federal statutory 

or constitutional law. 

If a petitioner can establish entitlement to relief, a federal court 

generally grants a conditional writ of habeas corpus, directing the respondent to release the petitioner unless the constitutional violation 

is corrected in some other fashion. Most commonly, a federal court 

granting a conditional writ directs the state court to initiate retrial or 

resentencing proceedings within a reasonable period of time.

For capital cases, habeas corpus law has grown in complexity 

and volume since 1976, when the Supreme Court affirmed the constitutionality of the death penalty. Consequently, although the provisions of 28 U.S.C. § 2254 apply equally to capital and non-capital 

habeas cases, habeas petitions filed by state prisoners sentenced to 

death present unique challenges. 

For example, capital petitioners are entitled to the appointment 

of counsel and “reasonably necessary” expert and investigative resources. Capital petitioners also commonly raise an extraordinary 

number of claims and routinely seek evidentiary development of 

these claims in federal court. Furthermore, as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Congress enacted special provisions applicable to capital habeas cases.1

This pocket guide is designed to provide a basic overview of the 

issues judges can expect to face when assigned a capital habeas case. 

It begins with appointment of counsel, budgeting concerns, and stays 

of execution. It then summarizes the primary procedural considerations that affect habeas cases—successive petitions, petition timeliness, state remedies exhaustion, procedural default, and amending 

1. These provisions, set forth in Chapter 154 of Title 28, include a six-month limitations period and expedited review by the federal district and appellate courts for 

states that “opt in” by meeting specific requirements for the appointment and compensation of post-conviction counsel. See 28 U.S.C. §§ 2261–2266; see also Certification 

Process for State Capital Counsel Systems, 77 Fed. Reg. 7,559 (Feb. 13, 2012), 76 Fed. 

Reg. 11,705 (Mar. 3, 2011) (to be codified at 28 C.F.R. pt. 26).
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Capital § 2254 Habeas Cases

a petition. The guide also addresses substantive considerations for 

case resolution, evidentiary development, and briefing procedures. 

Finally, the guide highlights some of the issues that often arise prior 

to an execution. For a more detailed explanation of the relevant law, 

as well as numerous sample orders and other materials used by some 

courts, consult the Federal Judicial Center’s online Resource Guide for 

Managing Capital Cases—Volume II: Habeas Corpus Review of Capital 

Convictions.2

Initiation of the Case

A capital habeas case may be initiated by a prisoner proceeding pro se, 

by a prisoner’s state post-conviction counsel, or by pro bono counsel 

(such as a regional legal organization) willing to assist a capital prisoner’s transition from state court to federal court. The initial filings 

may include motions for appointment of counsel, leave to proceed in 

forma pauperis, and stay of execution, as well as a substantive habeas petition. The specific initiating documents will vary depending on 

(1) the need for counsel, (2) the practice of individual states in setting 

execution dates following completion of direct appeal and collateral 

review, and (3) the federal habeas statute of limitations period.

Although it is rare, some prisoners may enlist pro bono or retained counsel to represent them in federal habeas proceedings. More 

commonly, a prisoner will request appointment of counsel and leave 

to proceed in forma pauperis. Indigent state capital prisoners seeking federal habeas relief are entitled to the appointment of one or 

more attorneys under 18 U.S.C. § 3599(a)(2). Pursuant to the Supreme 

Court’s decision in McFarland v. Scott,

3

 a capital prisoner may initiate 

a habeas proceeding simply by requesting the appointment of counsel to prepare a habeas petition. Consequently, a court’s first step in 

most capital cases is to resolve a motion for appointment of counsel. 

In some states, courts issue an execution warrant upon completion of direct appellate and post-conviction review either automatically or at the request of prosecutors or the state’s attorney general. 

In these states, the warrant pushes the prisoner into federal court, 

which then usually must address a motion to stay the execution 

pending resolution of the habeas proceedings. 

2. Revised March 2010. Available at http://cwn.fjc.dcn/fjconline/home.nsf/

pages/1002 or http://www.fjc.gov/library/fjc_catalog.nsf.

3. 512 U.S. 849, 856–57 (1994).
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Capital § 2254 Habeas Cases

In some instances, especially when a prisoner’s state post-conviction counsel is well versed in federal habeas law, the prisoner may 

file a substantive habeas petition at the start of the case, along with a 

request to provide counsel with sufficient time to file an amended petition after completion of any necessary investigation. A substantive 

petition also may be filed at the outset if there are any concerns regarding expiration of the federal habeas statute of limitations, which 

for most cases runs for one year following the completion of direct 

appellate review and is tolled during state post-conviction review.

Generally, a capital prisoner does not seek federal habeas relief 

until after direct appeal and post-conviction proceedings conclude in 

state court. However, there are occasions when a prisoner attempts to 

initiate federal review at an earlier point. For example, this may occur 

if the prisoner is uncertain whether a state post-conviction petition 

has tolled the federal limitations period or if the prisoner experiences 

inordinate delay in the state court litigation.4 A court faced with such 

a filing must decide whether to allow the prisoner to proceed in federal court (and possibly hold federal proceedings in abeyance) or to 

dismiss the action without prejudice until completion of state court 

proceedings.

Motion for Appointment of Counsel

The mechanism for soliciting and appointing qualified counsel varies 

from district to district, depending on local rule and practice. In some 

districts, the federal public defender manages the process, screening 

attorney applicants and making recommendations for appointment 

in specific cases. In others, the court utilizes a selection committee or 

maintains a list of qualified attorneys. 

Courts sometimes encounter difficulty in finding qualified private attorneys for capital habeas cases. Accordingly, some have adopted flexible approaches to capital counsel appointment, including 

the following:

• Appointing state post-conviction counsel as federal habeas corpus 

counsel. In some districts, the state post-conviction attorney is 

available to continue representation of a client during federal 

habeas corpus proceedings. The quality of such an attorney 

depends in part on the state’s program for post-conviction 

4. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (noting that the filing 

of a protective petition within the limitations period may be appropriate where state 

timeliness rules are unclear). 
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Capital § 2254 Habeas Cases

appointment, but there are significant benefits to having 

state attorneys continue their representation of clients in federal court. For example, such an attorney is already well acquainted with the case, thus reducing the time (and expense) 

necessary to research the record and file the federal habeas 

corpus petition. Courts may also consider pairing a state 

post-conviction attorney who has little federal habeas experience with an experienced federal habeas Criminal Justice 

Act (CJA) attorney, thus providing continuity on the case as 

well as an opportunity to expand the pool of qualified federal habeas attorneys for future cases.

• Appointing counsel from capital habeas units in federal defender 

offices. Several federal and community defender offices accept appointment of their attorneys to capital habeas corpus 

cases, and some even have dedicated capital habeas units. 

Appointing these attorneys in lieu of appointing private attorneys with CJA funding not only generally ensures wellqualified counsel but also avoids the administrative complications of using CJA panel attorneys (e.g., budgeting and 

voucher review). Some courts, either pursuant to district 

policy or in an individual case, combine the use of federal 

defenders and private panel attorneys.

• Appointing counsel from state-funded or privately funded capital 

representation centers. State-funded or privately funded offices for capital representation exist in some states, such as 

Florida’s Office of Capital Collateral Representation, the Arizona Capital Representation Project, the California Habeas 

Corpus Resource Center, Kentucky’s Department of Public 

Advocacy, Texas’ Office of Capital Writs, and the North Carolina Center for Death Penalty Litigation. District courts in 

these states often appoint lawyers from these offices as counsel in federal habeas corpus cases and compensate them for 

their work through CJA vouchers.

• Appointing federal counsel for simultaneous representation in state 

post-conviction and federal habeas proceedings.5 For example, in 

5. In Harbison v. Bell, 556 U.S. 180, 189–90 (2009), the Supreme Court observed that 

18 U.S.C. § 3599(e) authorizes federally funded counsel to represent a client in “subsequent” stages of available judicial proceedings and that “[s]tate habeas is not a stage 

‘subsequent’ to federal habeas.” However, the Court further noted that a district court 

may determine on a case-by-case basis that it is appropriate for federally appointed 
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the District of Maryland, the state court and the federal court 

jointly appoint counsel to represent the petitioner in both 

the state post-conviction and federal habeas proceedings. Invoking the authority of McFarland v. Scott, the federal court 

authorizes CJA funds to compensate counsel for “federal research”—that is, research for claims that will eventually be 

filed in the federal habeas corpus petition.6 Attorney fees and 

expert and investigative fees related to developing claims for 

state post-conviction litigation are paid by the state’s public 

defender.

Budgeting and Voucher Review

Capital cases are exempt from statutory maximum case budgets for 

attorney time. Nonetheless, judicial oversight is necessary to ensure 

that the time and expenses billed by private counsel are reasonable 

and efficacious. In addition, at least one circuit has adopted a presumptive limit on attorney time. Consequently, some districts and 

circuits require CJA counsel to follow a formal budgeting process, 

including the use of automated forms, in preparing and submitting 

a budget for various stages of a case (e.g., reviewing the record, preparing the petition, or participating in an evidentiary hearing). After 

the court has approved a budget, it reviews submitted vouchers for 

consistency with the budget.

Although there are no statutory maximums for attorney time in 

capital cases, funding for expert, investigative, and other services is 

limited to a total of $7,500 per case, unless the presiding judicial officer certifies the need for a greater amount and that amount is approved by the chief judge (or a designee) of the circuit. Consequently, 

even if a judge is not inclined to budget attorney time, budgeting for 

expert, investigative, or other services provides an effective vehicle 

for determining whether such services are “reasonably necessary” 

for the representation of the petitioner.7

For cases with appointed counsel, the court’s case-management 

responsibilities also include the review and approval of expenses 

counsel to exhaust a claim in state court during the course of federal habeas representation. Id. at 190 n.7. This guide does not attempt to resolve any potential conflict 

between the Court’s holding in Harbison and federal courts’ appointment of federal 

counsel for simultaneous representation in state post-conviction and federal habeas 

proceedings.

6. 512 U.S. 849 (1994).

7. 18 U.S.C. § 3599(f). 
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Capital § 2254 Habeas Cases

submitted in CJA vouchers. Some district judges choose to review 

the vouchers themselves, while others use magistrate judges, death 

penalty law clerks, or staff attorneys to conduct the review. In a few 

districts, CJA attorney administrators are designated specifically for 

reviewing vouchers.

The Guidelines for Administering the CJA and Related Statutes, 

in volume VII of the Guide to Judiciary Policy, urge courts to permit 

interim payments in death penalty cases and to issue a separate 

memorandum or order outlining billing procedures when appointing counsel. Such a document might include details on budgeting 

and voucher submission, such as hourly rates, a list of reimbursable 

expenses, and standards for requesting funds for investigators and 

experts. Counsel find such memoranda and orders helpful for understanding the court’s expectations, and courts benefit because the 

provision of such information reduces billing errors, unnecessary expenditures, and unreasonable time requests for specific tasks.

Stay of Execution

Stays of execution are routinely granted for prisoners who have not 

previously sought federal habeas review. In McFarland v. Scott, the 

Supreme Court held that once a capital petitioner has invoked the 

right to habeas counsel, federal jurisdiction exists and the court has 

the power to grant a stay.8 Pursuant to McFarland, a federal court’s 

exercise of stay jurisdiction prior to a petition being filed is within the 

court’s discretion, but denial of a prepetition stay is improper if the 

imminence of a scheduled execution does not afford a petitioner’s 

appointed counsel time to meaningfully research and present habeas 

claims.

Under 28 U.S.C. § 2251(a)(3), a federal court is expressly permitted to stay execution of a state prisoner’s capital sentence for up to 

ninety days after counsel is appointed. However, because this ninetyday period often will run out prior to filing of the petition, courts 

may continue to rely on McFarland to issue discretionary stays of execution.

Procedural Considerations

At the start of a case, it is important for a court to determine whether the petitioner is seeking habeas relief for the first time, whether 

the petition is timely, and whether the petition raises unexhausted 

8. McFarland, 512 U.S. at 858.
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Capital § 2254 Habeas Cases

claims. The filing of an unauthorized successive petition, a late petition, or a mixed petition containing unexhausted claims may provide grounds for summary dismissal. Such issues may be raised by 

the respondents in an answer or motion to dismiss, or by the district 

court sua sponte after providing the petitioner with notice and an 

opportunity to be heard.

A court also may have to address allegations that a petitioner’s 

claim is procedurally barred from federal habeas review, either because the state court’s decision rests on independent and adequate 

state grounds or because the petitioner no longer has an available 

state court remedy to exhaust a claim not previously presented in 

state court. In addition, a petitioner may seek leave to amend a pending habeas petition.

Successive Petitions

Under section 2244(b)(1), a district court may not entertain a successive petition that attempts to relitigate claims presented in a prior 

petition. Consequently, if a prisoner files a second petition and the 

claims raised therein were already addressed by the court in the prisoner’s first habeas proceeding, the petition should be summarily 

dismissed.

If in a second or successive petition a prisoner attempts to raise 

new claims not presented in the first petition, section 2244(b)(3) requires the prisoner to first seek an order from the court of appeals authorizing the filing of such claims.9

 A district court may not consider 

a successive petition in the absence of such authorization. Under section 2244(b)(2), an appellate court may authorize a successive petition under only very limited circumstances: The claim must rely on 

a new, retroactive rule of constitutional law or allege facts previously 

undiscoverable through the exercise of due diligence, and the claim 

must show by clear and convincing evidence that, but for constitutional error, no fact finder would have found the petitioner guilty of 

the underlying offense. Thus, if a petition filed in district court is a 

second or successive petition, attempts to raise new claims not presented in the first petition, and is not accompanied by an appellate 

court’s authorization to file, summary dismissal is appropriate.

9. Felker v. Turpin, 518 U.S. 651, 657 (1996) (explaining that section 2244(b)(3) creates a “gatekeeping” mechanism in the court of appeals for the consideration of second 

or successive petitions in a district court and that the grant or denial of authorization 

by an appellate court is not appealable).
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Capital § 2254 Habeas Cases

An exception to the requirement of prior appellate court authorization has been recognized for claims alleging mental incompetence 

for execution under Ford v. Wainwright10 because such claims generally do not become ripe until after the first request for habeas relief has 

been denied and an execution date is imminent.11 Other exceptions 

include petitions dismissed without prejudice for failure to exhaust 

state court remedies,12 petitions dismissed as premature or for some 

other procedural defect,13 and petitions raising claims not available at 

the time of the previous petition.14

Timeliness of Petition

Under section 2244(d)(1), as amended by AEDPA, a habeas petition 

must be filed within one year of the date on which (1) the judgment 

of conviction became final (the most common situation); (2) an impediment to filing, created by the state or federal government, was 

removed; (3) the Supreme Court recognized the right asserted and 

made it retroactively applicable to cases on collateral review; or 

(4) the factual predicate of the claim could have been discovered by 

due diligence. Because the statute of limitations is not jurisdictional, 

district courts are not obligated to raise the time bar sua sponte, but 

may do so after providing the parties with fair notice and an opportunity to present their positions.15

Section 2244(d)(2) tolls the one-year limitations period for section 

2254 cases while a “properly filed” petition is “pending” on “state 

post-conviction or other collateral review.” The Supreme Court has 

10. 477 U.S. 399 (1986).

11. See Panetti v. Quarterman, 551 U.S. 930, 945 (2007).

12. Slack v. McDaniel, 529 U.S. 473, 485–86 (2000) (holding that a petition dismissed for failure to exhaust state remedies is not second or successive).

13. See, e.g., Stewart v. Martinez-Villareal, 523 U.S. 637, 644–45 (1998) (holding 

that a petition is not second or successive when it raises only one claim previously 

dismissed as premature); Muniz v. United States, 236 F.3d 122, 129 (2d Cir. 2001) (per 

curiam) (concluding that a petition is not second or successive when the first petition 

was incorrectly dismissed as untimely).

14. See, e.g., Leal Garcia v. Quarterman, 573 F.3d 214, 223–24 (5th Cir. 2009) (holding that a petition raising a claim based on President Bush’s declaration ordering states 

to review certain Vienna Convention claims was not successive because the declaration was issued after completion of the first petition); Singleton v. Norris, 319 F.3d 

1018 (8th Cir. 2003) (holding that a petition raising a claim challenging an involuntary medication order entered after completion of the first petition was not second or 

successive).

15. Day v. McDonough, 547 U.S. 198, 209–10 (2006).
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held that this tolling period includes the time between a lower state 

court’s decision and the filing of a notice of appeal to a higher state 

court,16 but does not include the time between denial of state postconviction relief and pendency of a petition for certiorari in the U.S. 

Supreme Court seeking review of that denial.17 Statutory tolling during the pendency of “other collateral review” also does not include 

federal habeas review.18 Many other issues surrounding tolling, such 

as the meaning of “pendency” and “properly filed,” continue to be 

litigated.

The Supreme Court has held that in addition to statutory tolling, 

a habeas petitioner may be entitled to equitable tolling if he or she 

diligently pursued his or her rights and was prevented from timely 

filing a petition by some extraordinary circumstance.19 A court may 

need to hold an evidentiary hearing to determine whether a petitioner acted with diligence and whether extraordinary circumstances exist to justify the untimely filing.20

Exhaustion of State Remedies

Under section 2254(b)(1), a writ of habeas corpus may not be granted 

unless it appears that a petitioner has exhausted all available state 

court remedies. To exhaust a federal constitutional claim, a petitioner 

must “fairly present” in state court both the operative facts and federal legal theory of his or her claim in a procedurally appropriate 

manner.21

In some instances, a petition may include claims that were not 

fairly presented and exhausted in state court. In that situation, the 

court may need to determine whether the petitioner has any available remedies in state court. Such an inquiry necessarily requires an 

examination of state post-conviction law. Respondents can, of course, 

waive exhaustion but rarely do.

16. Carey v. Saffold, 536 U.S. 214, 217, 221 (2002).

17. Lawrence v. Florida, 549 U.S. 327, 332 (2007).

18. Duncan v. Walker, 533 U.S. 167, 172 (2001).

19. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010).

20. See, e.g., Earl v. Fabian, 556 F.3d 717, 728 (8th Cir. 2009) (remanding for factual 

development on whether state created an impediment preventing the petitioner from 

timely filing a habeas petition); Roy v. Lampert, 465 F.3d 964, 975 (9th Cir. 2006) (remanding for evidentiary hearing on equitable tolling claim); Keenan v. Bagley, 400 F.3d 

417, 422 (6th Cir. 2005) (same). 

21. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Anderson v. Harless, 459 U.S. 

4, 6 (1982).
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Capital § 2254 Habeas Cases

In Rhines v. Weber, the Supreme Court recognized the authority 

of a district court to hold a petition in abeyance in order to allow a 

petitioner to present unexhausted claims to the state court and then 

return to federal court for review of the fully exhausted petition.22

However, the Court held that such a procedure is appropriate only if 

(1) the petitioner demonstrates good cause for the failure to exhaust 

the claims in state court; (2) the petitioner demonstrates that the unexhausted claims are not plainly meritless; and (3) the district court 

finds that the petitioner has not engaged in abusive litigation tactics 

or intentional delay. Because under section 2254(b)(2) unexhausted 

claims may be dismissed if they are plainly meritless, some courts 

find it more efficient to first review the merits of such claims before 

determining the availability of state court remedies or directing a petitioner to initiate an often time-consuming state exhaustion process.

In the event a court determines that a stay of proceedings is appropriate while a petitioner returns to state court, it must also decide whether federally appointed habeas counsel will be permitted to 

represent the petitioner in state court proceedings (if permissible to 

the state court) and, in the case of CJA counsel, will be compensated 

under 18 U.S.C. § 3599. The Committee on Defender Services recommends that district courts, in making this determination, consider, 

inter alia, the following factors on an individualized, case-by-case 

basis:

• the availability of the petitioner’s original state post-conviction counsel or other qualified state counsel;

• the availability of state funds for investigative and expert 

services;

• the willingness of the state court to appoint and compensate 

the petitioner’s federal counsel (if CJA panel attorneys);

• any unwarranted delay that would be caused by lack of continuity;

• the number and nature of the claims to be exhausted; 

• whether the necessary investigation and research to present 

the claim have already been done by federal counsel; and

• whether it would be in the interests of justice.

22. 544 U.S. 269, 277–79 (2005).
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Procedural Default

As a matter of comity and federalism, federal courts generally may 

not review a state court’s denial of a federal constitutional claim if 

the state court’s decision rests on a state procedural ground that is 

independent of the federal question and adequate to support the 

judgment.23 This “adequate and independent state ground” doctrine 

requires finding, among other things, that the state procedural rule is 

not ambiguous and is “firmly established and regularly followed.”24

A federal court may also find claims to be procedurally defaulted 

if the petitioner failed to present them in state court and “the court 

to which the petitioner would be required to present his claims in 

order to meet the exhaustion requirement would now find the claims 

procedurally barred.”25

Because the doctrine of procedural default is based on comity, 

federal courts retain the power to consider the merits of a procedurally defaulted claim if the petitioner demonstrates legitimate cause 

for the failure to properly exhaust the claim in state court and prejudice from the alleged constitutional violation,26 or shows that a fundamental miscarriage of justice would result if the claim is not heard 

on the merits in federal court.27

Amending a Petition

Section 2242 permits a petitioner to seek leave to amend a habeas 

petition pursuant to Rule 15 of the Federal Rules of Civil Procedure. 

After a brief period in which a party may amend a petition as of right, 

an amended pleading is allowed only within the court’s discretion, 

based on an assessment of the following factors: (1) undue delay, 

23. Coleman v. Thompson, 501 U.S. 722, 729–30 (1991).

24. Walker v. Martin, 131 S. Ct. 1120, 1127–28 (2011); Beard v. Kindler, 130 S. Ct. 

612, 617–18 (2009).

25. Coleman, 501 U.S. at 735 n.1.

26. See Maples v. Thomas, 132 S. Ct. 912, 922–23 (2012) (explaining that “cause” 

exception to procedural default exists where objective factors external to the defense 

impeded petitioner’s efforts to comply with state procedural rules); Murray v. Carrier, 

477 U.S. 478, 488 (1986) (same).

27. See Schlup v. Delo, 513 U.S. 298, 324–27 (1995) (providing for “fundamental 

miscarriage of justice” exception to procedural default where prisoner can show actual 

innocence of the offense); Sawyer v. Whitley, 505 U.S. 333, 347 (1992) (providing for 

“fundamental miscarriage of justice” exception to procedural default where prisoner 

can show ineligibility for the death penalty). 
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(2) bad faith or dilatory motive, (3) undue prejudice to opposing party, and (4) futility of amendment.28

With respect to futility of amendment, timeliness may be the 

determinative factor. In Mayle v. Felix, the Supreme Court construed 

the relation-back principle in Federal Rule of Civil Procedure 15(c)(2) 

and held that new claims supported by facts that differ in both “time 

and type” from those included in the original, timely-filed petition 

do not relate back and are thus untimely.29 In contrast, if a new claim 

merely clarifies or amplifies facts already alleged in the original petition, it may relate back to the date of that pleading and avoid a time 

bar.

Substantive Considerations

When addressing the merits of a claim presented in a habeas corpus 

petition to which AEDPA applies, a federal court must first determine 

whether the claim was “adjudicated on the merits” in state court.30 If 

so, the federal court must then assess the reasonableness of the state 

court’s ruling in considering whether a petitioner is entitled to relief 

on a meritorious claim. As amended by AEDPA, section 2254 precludes habeas relief absent a showing that the state court’s decision 

was “contrary to, or involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme Court,” 28 

U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court 

proceeding,” 28 U.S.C. § 2254(d)(2). This is a highly deferential standard for evaluating state court rulings, which the petitioner bears the 

burden of meeting.31

If the state court did not address the claim on the merits (e.g., 

the court failed to address the claim or applied an inadequate state 

procedural bar), the federal court conducts de novo review and the 

restrictions of section 2254(d) are inapplicable.

28. Foman v. Davis, 371 U.S. 178, 182 (1962).

29. 545 U.S. 644, 657 (2005).

30. 28 U.S.C. § 2254(d); see Harrington v. Richter, 131 S. Ct. 770, 784–85 (2011) 

(“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits 

in the absence of any indication or state-law procedural principles to the contrary.”).

31. Woodford v. Visciotti, 537 U.S. 19, 24–25 (2002) (per curiam).
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Section 2254(d)(1)

The threshold question under section 2254(d)(1) is whether the petitioner seeks to apply a rule of law that was clearly established at 

the time his or her state court conviction became final.32 Therefore, 

a court must first identify the “clearly established Federal law,” if 

any, that applies to the petitioner’s claim. “Clearly established” federal law consists of the holdings and legal principles set forth by the 

Supreme Court as of the time the state court renders its decision.33

While circuit precedent may be persuasive in determining what law 

is clearly established, a circuit court decision is not itself “clearly established Federal law, as determined by the Supreme Court” within 

the meaning of section 2254(d)(1).34

The Supreme Court has provided guidance in applying section 

2254(d)(1). A state court decision is “contrary to” the Supreme Court’s 

clearly established precedents if (1) the decision applies a rule that 

contradicts the governing law set forth in those precedents, thereby 

reaching a conclusion opposite to that reached by the Supreme Court 

on a matter of law; or (2) the state court was presented with a set of 

facts that was materially indistinguishable from facts underlying a 

decision of the Supreme Court but reaches a different result.35 The 

Court has observed that “a run-of-the-mill state-court decision applying the correct legal rule to the facts of the prisoner’s case would 

not fit comfortably within § 2254(d)(1)’s ‘contrary to’ clause.”36

Under the “unreasonable application of federal law” provision 

of section 2254(d)(1), a federal habeas court may grant relief if a state 

court “identifies the correct governing legal rule from [the Supreme] 

Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case” or “unreasonably extends a legal principle 

from [Supreme Court] precedent to a new context where it should 

not apply or unreasonably refuses to extend that principle to a new 

context where it should apply.”37 For a federal court to find a state 

court’s application of Supreme Court precedent “unreasonable” un32. Williams (Terry) v. Taylor, 529 U.S. 362, 390 (2000).

33. Greene v. Fisher, 132 S. Ct. 38, 44 (2011); Carey v. Musladin, 549 U.S. 70, 76 

(2006); Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003).

34. Renico v. Lett, 130 S. Ct. 1855, 1866 (2009); Clark v. Murphy, 331 F.3d 1062, 1069 

(9th Cir. 2003).

35. Terry Williams, 529 U.S. at 405–06; see Early v. Packer, 537 U.S. 3, 8 (2002) (per 

curiam). 

36. Terry Williams, 529 U.S. at 406.

37. Id. at 407.
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der section 2254(d)(1), the petitioner must show that the state court’s 

decision was not merely incorrect or erroneous, but “objectively 

unreasonable.”38

A state court’s decision is entitled to deference even if the state 

court provides no reasoning for its ruling. If a state court summarily denies a claim without explanation, the petitioner must show 

there was no reasonable basis for the state court to deny relief.39 This 

requires a federal habeas court to “determine what arguments or 

theories supported, or . . . could have supported, the state court’s 

decision.”40 The court then must ask “whether it is possible fairminded jurists could disagree that those arguments or theories are 

inconsistent” with a prior decision of the Supreme Court.41

Finally, review under section 2254(d)(1) is limited to the record 

that was before the state court that adjudicated the claim on the merits.42 As a practical consequence, because new evidence introduced 

in federal court has no relevance to section 2254(d)(1) review, a court 

may prefer to determine whether the petitioner has satisfied section 

(d)(1) before considering the appropriateness of expanding the state 

court record or holding an evidentiary hearing to develop facts in 

support of a claim. 

Section 2254(d)(2)

Under the standard set forth in section 2254(d)(2), habeas relief is 

available only if the state court decision was based on an unreasonable determination of the facts in light of the evidence presented in 

the state court proceeding. A state court decision “based on a factual 

determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the statecourt proceeding.”43 State court factual determinations are presumed 

to be correct, and a petitioner bears the “burden of rebutting this presumption by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

Harm or Prejudice Requirements

If a petitioner has met his or her burden under section 2254(d)(1) or 

(d)(2), or these provisions are inapplicable (e.g., the state court did 

38. Id. at 409; Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).

39. Harrington v. Richter, 131 S. Ct. 770, 784 (2011).

40. Id. at 786.

41. Id.

42. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

43. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
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Capital § 2254 Habeas Cases

not adjudicate the claim on the merits), review in the district court is 

de novo.44 To warrant habeas relief, a petitioner must then establish 

one of the following:

• the constitutional error is structural and prejudice is 

presumed;45

• the constitutional error includes a finding of prejudice;46 or

• the constitutional error had a “substantial and injurious effect or influence in determining the jury’s verdict.”47

Evidentiary Development

If a state court has addressed a claim on the merits, a federal court 

may not consider new evidence developed in federal habeas proceedings in support of that claim absent a showing under section 

2254(d) that the state court’s denial of relief was contrary to or based 

on an unreasonable application of controlling Supreme Court law, 

or was based on an unreasonable determination of the facts in light 

of the evidence presented in state court.48 If a petitioner has met this 

burden or section 2254(d) is inapplicable (e.g., the state court did not 

adjudicate the claim on the merits), evidentiary development may be 

necessary to resolve a claim.

Whether a petitioner in federal court is permitted to further develop facts in support of habeas claims may depend on the individual state’s post-conviction process. In states where prisoners are provided with the opportunity to develop post-conviction claims and 

44. See, e.g., Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (noting that when a 

state court’s adjudication of a claim is based on an unreasonable application of federal 

law, a federal court must then “resolve the claim without the deference AEDPA otherwise requires”).

45. See, e.g., Vasquez v. Hillery, 474 U.S. 254, 264 (1986) (holding reversal mandatory for unlawful exclusion of members of a defendant’s race from grand jury); 

McKaskle v. Wiggins, 465 U.S. 168, 177–78 n.8 (1984) (observing that deprivation of the 

right to self-representation at trial cannot be harmless); Waller v. Georgia, 467 U.S. 39, 

49 & n.9 (1984) (noting that petitioner is not required to prove prejudice from violation 

of public-trial guarantee).

46. See, e.g., Strickland v. Washington, 466 U.S. 668, 687 (1984) (requiring showing 

of both deficient performance and prejudice to establish violation of Sixth Amendment 

right to counsel); Brady v. Maryland, 373 U.S. 83, 87 (1963) (requiring that suppressed 

evidence favorable to an accused be material to guilt or punishment in order to establish due process violation from prosecution’s failure to disclose).

47. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

48. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
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Capital § 2254 Habeas Cases

hearings are held to resolve disputed facts, further evidentiary development in federal court occurs infrequently. However, when a petitioner presents one or more colorable claims that have survived all 

procedural impediments and that, despite the petitioner’s diligence 

in state court, were not adequately developed in state proceedings, 

evidentiary development in federal court may be required. The three 

procedures for fact development are an evidentiary hearing, discovery, and record expansion.

Evidentiary Hearing

An evidentiary hearing is authorized under Rule 8 of the Rules Governing § 2254 Cases for the development of a colorable claim when 

the state court has not reliably found the relevant facts and the claim, 

if proved, would entitle the petitioner to relief. However, pursuant 

to section 2254(e)(2), a federal court may not hold a hearing unless 

it first determines that the petitioner exercised diligence in trying to 

develop the factual basis of the claim in state court.49 If the failure to 

develop a claim’s factual basis is attributable to the petitioner (i.e., 

he or she was not diligent in state court), a federal court may hold 

an evidentiary hearing only if the claim relies on (1) “a new rule of 

constitutional law, made retroactive to cases on collateral review by 

the Supreme Court, that was previously unavailable” or (2) “a factual 

predicate that could not have been previously discovered through 

the exercise of due diligence.” In addition, “the facts underlying 

the claim [must] be sufficient to establish by clear and convincing 

evidence that but for constitutional error, no reasonable fact finder 

would have found the [petitioner] guilty of the underlying offense.” 

28 U.S.C. § 2254(e)(2).

When an evidentiary hearing is granted, the court should initiate 

additional case-management procedures to prepare for the hearing. 

For example, the court may recommend that the parties meet and 

confer within a specified time, or may require a prehearing conference at which both parties meet with the judge to discuss how the 

hearing will substantively proceed. The court also should consider 

issuing a scheduling order that sets forth relevant deadlines (for completing prehearing discovery, introducing evidence, filing objections, 

identifying witnesses, and submitting a statement of disputed and 

undisputed facts).

49. See Williams (Michael) v. Taylor, 529 U.S. 420, 435 (2000).
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Capital § 2254 Habeas Cases

Disputed facts can be resolved in ways other than the presentation of live testimony, including by declaration, deposition, and 

documents produced through discovery or record expansion. In 

some cases, the parties may agree on some facts and enter a formal 

stipulation to that effect. These alternative methods may be more efficient in terms of judicial economy and cost-effective from a casemanagement perspective because they reduce the number of issues 

that require specific attention at the live evidentiary hearing.

Discovery

Unlike the usual civil litigant in federal court, a habeas petitioner is 

not entitled to discovery as a matter of course. Rather, formal discovery is authorized in Rule 6 of the Rules Governing § 2254 Cases 

only if authorized by the judge upon a showing of good cause. Good 

cause exists where specific allegations in the petition convince the 

court that the petitioner may be entitled to relief if the evidence solicited were to be developed.50 The expansive construction of relevance 

in civil cases—to embrace all information “reasonably calculated to 

lead to the discovery of admissible evidence,” as specified in Federal 

Rule of Civil Procedure 26(b)(1)—is not appropriate in capital habeas 

cases, given the limited nature of a habeas corpus proceeding.

Record Expansion

The record expansion procedure under Rule 7 of the Rules Governing § 2254 Cases facilitates the court’s consideration of evidence developed through investigation and discovery. Under Rule 7(a), the 

court may require authentication of the materials presented. Record 

expansion follows and works in tandem with sections 2246 and 2247 

to allow admissibility of proceedings and records conducted or filed 

in state court, or developed on federal habeas corpus. If the petitioner 

seeks to expand the record to introduce new evidence never presented in state court for the purpose of establishing the factual predicate 

of a claim, he or she must satisfy section 2254(e)(2) and show that he 

or she exercised diligence in state court to develop the evidence now 

proffered in federal proceedings.51 If the petitioner seeks to expand 

the record for reasons other than to introduce new evidence to bolster 

the merits of his or her claim, the diligence requirement of section 

2254(e)(2) may not apply.

50. Bracy v. Gramley, 520 U.S. 899, 908–09 (1997).

51. Holland v. Jackson, 542 U.S. 649, 653 (2004) (per curiam).
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Briefing Procedures

The approach utilized by a district court to manage a first-time habeas petition often revolves around local practice and culture, as well 

as specific issues presented by an individual case. The most common 

method of capital case management is the creation and use of standardized orders and local rules setting forth general procedures and 

briefing schedules. Such orders and rules convey the relevant procedures and policies for capital habeas corpus litigation either for a 

particular judge or for the district as a whole. 

A general procedures order might include such matters as the 

court’s expectations of the parties in preparing for a case-management conference (e.g., meeting to confer on briefing deadlines or 

obtaining prior counsel’s files), submission of the state court record, 

and directives with respect to the filing of the petition or amended 

petition, as well as other briefs and motions. Case-management conferences are excellent tools for ensuring that briefing schedules are 

met and for quickly resolving problems with, for example, obtaining 

prior counsel’s files or the state court record. They also provide an 

opportunity for judges to meet separately with CJA counsel to discuss budgeting and cost management.

Because federal habeas corpus law minimizes the number of 

times a defendant may file a habeas petition, judges sometimes emphasize in their initial orders of appointment and procedure the importance of presenting every known claim in the first petition. Courts 

can expect counsel to request significant time and expense in the 

preparation of that petition, especially if they are new to the case.

Rule 2 of the Rules Governing § 2254 Cases directs that a petition 

“specify all grounds for relief available to the petitioner,” including 

the facts supporting each ground. Because capital habeas petitioners have the assistance of counsel, many courts also require that the 

petition include legal points and authorities in support of the petitioner’s claims. However, the latter may also be filed separately if, 

for example, there is insufficient time remaining under the applicable 

limitations period or if the court prefers to analyze claims subject to 

a procedural defense before having the parties expend time and resources briefing the merits of the claims.

The scope of the respondent state’s answer, which ordinarily 

should be filed sixty to ninety days after the petition, will vary depending on the type of petition filed. In districts that prefer to address procedural defenses before briefing points and authorities, 
19

Capital § 2254 Habeas Cases

the answer may be limited to appropriate admissions and denials, 

together with the assertion of procedural defenses. Alternatively, if 

the petition is a comprehensive filing that includes all grounds for 

relief, supporting facts, and legal points and authorities, the answer 

also should be comprehensive, alleging all procedural and substantive defenses. If the petition and answer are fully briefed, generally a 

reply is permitted. 

Requests for evidentiary development may be filed as standalone motions, or as part of a merits brief, or included within the 

petition itself. However, given the usual length and complexity of a 

capital habeas petition, the latter approach may lead to an unmanageably large pleading.

Some courts also permit the filing of motions for summary judgment following the filing of the petition or answer, or both. However, 

many courts discourage such motions because briefing is cumbersome (and costly if the petitioner is represented by CJA counsel) and 

summary judgment rarely resolves all issues in a case, leading to additional briefing, time, and expense.

There are numerous case-management options, and no one 

methodology constitutes the “right way” to handle a capital habeas 

case. Common case resolution approaches include 

1. addressing procedural defenses before merits and evidentiary issues; 

2. addressing evidentiary development simultaneous with procedural defenses or merits; 

3. considering evidentiary development and merits prior to 

procedural defenses; and 

4. separating a petition’s claims into distinct groups (such as 

ineffective assistance of counsel or jury selection issues) and 

addressing the most colorable first.

Execution-Related Matters

In advance of a concrete execution date, some district courts either 

formally (e.g., by local rule, general order, or status hearing) or informally (e.g., by written or oral communication with habeas counsel) 

establish procedures for any “last minute” filings, such as civil rights 

actions, successive habeas petitions, motions for temporary restraining order or preliminary injunctive relief, and stays of execution. 
20

Capital § 2254 Habeas Cases

Such procedures may include requiring counsel to provide 

1. courtesy copies of any state court filings;

2. prior notice to the court during regular business hours if an 

after-hours filing is contemplated; and 

3. twenty-four-hour contact information for counsel for both 

parties as well as the prison warden. 

A court also may want to establish internal guidelines or checklists 

for court staff that set forth filing and appeal procedures. A contact 

list for all counsel, prison officials, and appellate court personnel is 

another valuable tool.

Imminent execution dates also generally involve applications for 

clemency. Under Harbison v. Bell, federally appointed counsel are entitled to payment of attorneys’ fees for representing a condemned client in state clemency proceedings where compensation in state court 

is unavailable.52 Consequently, some attorneys may request a budget 

for such time as well as the appointment of experts or investigators 

to assist with the clemency application.

52. 556 U.S. 180, 193 (2009).

The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Catherine C. Blake, U.S. District Court for the District of Maryland

Magistrate Judge John M. Facciola, U.S. District Court for the District of 

Columbia

Judge James B. Haines, Jr., U.S. Bankruptcy Court for the District of Maine

Judge James F. Holderman, Jr., U.S. District Court for the Northern District 

of Illinois

Judge Michael M. Melloy, U.S. Court of Appeals for the Eighth Circuit

Judge Edward C. Prado, U.S. Court of Appeals for the Fifth Circuit

Judge Kathryn H. Vratil, U.S. District Court for the District of Kansas

Judge Thomas F. Hogan, Director of the Administrative Office of the U.S. 

Courts

Director

Judge Jeremy D. Fogel

Deputy Director

John S. Cooke

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–

629), on the recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, 

which also includes the director of the Administrative Office of the U.S. 

Courts and seven judges elected by the Judicial Conference.

The organization of the Center reflects its primary statutory mandates. 

The Education Division plans and produces education and training programs for judges and court staff, including video programs, publications, 

curriculum packages for in-court training, and Web-based programs and resources. The Research Division examines and evaluates current and alternative federal court practices and policies. This research assists Judicial Conference committees, who request most Center research, in developing policy 

recommendations. The Center’s research also contributes substantially to its 

educational programs. The two divisions work closely with two units of the 

Director’s Office—the Information Technology Office and the Communications Policy & Design Office—in using print, broadcast, and online media 

to deliver education and training and to disseminate the results of Center 

research. The Federal Judicial History Office helps courts and others study 

and preserve federal judicial history. The International Judicial Relations Office provides information to judicial and legal officials from foreign countries 

and assesses how to inform federal judicial personnel of developments in 

international law and other court systems that may affect their work.