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Federal Habeas Corpus: Post-Filing Procedures in Seeking Habeas Relief

by Dale Chappell

After you’ve filed your petition for habeas relief in federal court, you may decide to take further actions, such as filing a motion to “stay” your proceedings, to appoint counsel, or to release you on bond pending the outcome of your habeas case. Much of the authority for these motions comes from the court’s inherent authority to control its own docket and not so much from any rules or statutes. Convincing the court there’s good reason to grant your motion, then, is the key. Whether you’ve filed a habeas petition under 28 U.S.C. § 2254 (for state prisoners) or a motion to vacate under 28 U.S.C. § 2255 (for federal prisoners), the basic premise for each post-filing motion is the same.

Motion to Stay the Proceeding

Either you or the Government can stay your habeas case, if there’s a good enough reason and if it wouldn’t harm the proceedings. Even the court can do so on its own volition, or sua sponte, but there are limits to the court’s power to stay a proceeding. The leading instructional case on this matter is the Supreme Court’s decision in Dietz v. Bouldin, 136 S. Ct. 1885 (2016), in which the Court held that a stay “must be a reasonable response to a specific problem,” and it “cannot contradict any express rule or statute.” Once this is established, a court must assess “the possible damage which may result from granting the stay” and the “hardship” a party might suffer by having to go forward with the case. Id.

There are several valid reasons to stay a habeas proceeding. Maybe you want to take an appeal of an order by the federal district court during the proceedings but before it decides your case. This is called an interlocutory appeal and functions the same as a normal appeal but happens during the proceedings. A common example would be when someone files an ineffective assistance of counsel claim, and former counsel divulges all kinds of attorney-client privileged information to the Government about the criminal case that isn’t limited to the IAC claim. If the district court allows this to happen, you can move to stay the proceedings and file an interlocutory appeal challenging this. See Crews v. Horn, 360 F.3d 146 (3d Cir. 2004).

An order to stay the habeas proceeding is a “final decision” to allow an immediate appeal, even though the habeas case itself is not yet final. The Supreme Court has ruled that “an order that amounts to a refusal to adjudicate the merits plainly presents an important issue separate from the merits” to allow an immediate appeal, even before judgment is entered. Moses H. Cone Hosp. v. Mercury Construction, 461 U.S. 1 (1983). A stay order in a habeas case meets that definition.

It’s currently unclear as to whether you’ll need a certificate of appealability (“COA”) to appeal a stay order in a habeas case. While a COA is required to appeal the denial of a habeas petition, 28 U.S.C. § 2253, courts are divided over whether an appeal taken during a habeas case requires a COA. Thus, there’s currently no definitive guidance on the matter. See Wolfe v. Bryant, 678 Fed. Appx. 631 (10th Cir. 2017) (collecting cases).

Motion for Appointment
of Counsel

Appointment of counsel for a habeas case would typically happen after the district court takes a look at your claims to see if they have merit to move forward. However, sometimes a court will appoint counsel to help develop your claims, if you made enough of a showing to require a lawyer’s help. This is rare, but it can happen. First, some ground rules.

It’s true that there’s no “constitutional right” to counsel in a habeas case. Pennsylvania v. Finley, 481 U.S. 551 (1987). The right to counsel in these cases comes from statutes and rules, not the Constitution. The rules governing habeas cases provide two instances where counsel “must” be appointed: if necessary for effective discovery (Rule 6) and if an evidentiary hearing is needed (Rule 8). All other appointments of counsel are at the court’s discretion under the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A.

With that said, the Seventh Circuit, in La Clair v. United States, 374 F.2d 486 (7th Cir. 1967), held that counsel must be appointed if the denial of counsel would “result in a fundamental unfairness infringing on due process rights.” This case was decided 10 years before the Supreme Court created the rules governing habeas cases and was part of the reason the two rules noted above require appointment of counsel in those limited situations. But there are other situations where you may be denied due process in a habeas proceeding, if you weren’t appointed counsel. See Bucci v. United States, 662 F.3d 18 (1st Cir. 2011).

For federal prisoners where the court appointed counsel under the CJA during the criminal proceedings, the court may continue the assumption that you qualify for counsel in your § 2255 motion, if counsel is required. But note that some courts have local rules that require you to expressly request appointment of counsel (in writing). If you have a specific lawyer in mind and a valid reason for wanting that lawyer assigned to your habeas case, courts usually accommodate such requests. See Sparks v. United States, 2018 U.S. Dist. LEXIS 464485 (W.D. Tex. Mar. 19, 2018).

Under the CJA, it’s usually the district court that appoints counsel. But that doesn’t mean the court of appeals can’t do so. There are generally three circumstances when counsel should be appointed, other than the two mentioned in the rules above: (1) a “fair likelihood of success” on your claims; (2) the factual and legal complexity of your claims; and (3) your inability to investigate and develop the claims because of your incarceration. United States v. Mala, 7 F.3d1058 (1st Cir. 1993).

To be “legally complex,” courts have said that a case presenting an issue of first impression in the court would require the assistance of counsel. And help from a friend or “jailhouse lawyer” in crafting your habeas petition doesn’t preclude you from being appointed counsel. Henderson v. Ghosh, 755 F.3d 559 (7th Cir. 2014).

The Role of Appointed Counsel
in a Habeas Case

The duties of appointed counsel depend on how far the district court wants counsel to go in pursuing habeas relief on your behalf. Sometimes, it’s just for the district court proceedings, and sometimes, it goes all the way up to an appeal in the Supreme Court, if needed. Other times, local court rules limit what appointed counsel may do or even mandate what the lawyer must do. To be clear, simply ask the court what appointed counsel’s scope of representation will be.

The CJA says that appointment of counsel is retroactive to the date you filed your habeas petition, meaning that counsel can supplement your petition as if he had been on the case since the beginning. It also says that counsel is appointed for the proceedings, “including any ancillary matters.” What does that mean? The courts say this means any matter related to the habeas proceedings but not separate matters unrelated to your habeas case. See Miranda v. United States, 455 F.2d 402 (2d Cir. 1972).

Motion for Release on Bond

It was once the norm for a habeas petitioner to be released on bond if his claims had some merit. That rule, however, has taken a hit and now release on bond is “exercised very sparingly.” Cherek v. United States, 767 F.2d 335 (7th Cir. 1985). In cases where bond is granted pending the outcome of a habeas case, it’s usually because the petition will be granted and the petitioner will be released. This may seem to be an obvious reason for granting bond, but it’s more elusive than it appears.

The Bail Reform Act of 1984 (“BRA”) is used in determining release on bond in habeas cases. One of the main criteria for release under the BRA is that there is “clear and convincing evidence that [you do] not pose a danger to the community.” This is in addition to the requirement that your motion is likely to be granted with your release as a result. See Fountain v. United States, 953 F. Supp. 836 (E.D. Mich. 1996).

Another reason to be released on bond is when you were successful in your habeas case, but the Government asks the court to “stay” your release pending its appeal. You can request release on bond pending that appeal. In Hilton v. Braunskill, 481 U.S. 770 (1987), the Supreme Court said there’s a strong “presumption that a prisoner is entitled to release if habeas [relief] is granted” while the Government pursues an appeal. But don’t hold your breath—the Court also said that a “successful habeas petitioner is in a considerably less favorable position than a pretrial arrestee” in determining release on bond. So even if you win you’re still not “vindicated,” in many cases, until the Government gets the final word.

There are more actions you can take while your case is pending, but these are the most common actions petitioners take while their habeas case is pending.  

Dale Chappell is the author of the Insider’s Guide series of post-conviction books. Follow his blog at or on Twitter at @zenlawguy.

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