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U.S. Department of Justice
Office of Justice Programs

Bureau of Justice Statistics

Federal Habeas
Corpus Review
Challenging State Court
Criminal Convictions

Discussion Paper

Federal Habeas
Corpus Review
Challenging State Court
Criminal Convictions

Roger A. Hanson
Senior Staff Associate
Henry W.K. Daley
Staff Associate
National Center for State Courts
September 1995, NCJ-155504

U.S. Department of Justice

Bureau of Justice Statistics
Jan M. Chaiken, Ph.D.

The research for this report was supported
by a grant from the Bureau of Justice Statistics
to the National Center for State Courts
(92-BJ-CS-KO26). The views expressed and the
conclusions drawn in this paper do not necessarily
reflect the views or policies of the Bureau of
Justice Statistics or the Department of Justice.
BJS Discussion Papers promote the exchange
of information, analyses, and ideas on issues
related to justice statistics and to the operations
of the justice system. This paper represents
the view of the authors only.
The authors may be contacted at 
300 Newport Avenue
Williamsburg, Virignia 23105
(804) 253-2000
fax (804)220-0449

ii Federal Habeas Corpus Review

Highlights iv


A preview of the discussion sections
Study design



Number of habeas corpus petitions
in U.S. district courts per 1,000 prisoners


The landscape of habeas corpus 10
Processing time for habeas corpus petitions
Federal review processing time




References 31


Challenging State Court Criminal Convictions iii

State prisoners can challenge the validity of their convictions and sentences by filing habeas corpus petitions in a
Federal court. These petitions allege that the police, prosecutor, defense counsel, or trial court deprived the prisoners
of their Federal constitutional rights, such as the right to refuse to answer questions when placed in police custody, the
right to a speedy and fair trial, and the right to effective assistance of counsel. Because these petitions must have
been presented to the State courts for review, the prisoners
are relitigating previously resolved issues. Nevertheless, if
these petitions are successful in Federal courts, Federal
judges can issue writs of habeas corpus ordering the
prisoners to be released from custody, their sentences reduced, or their cases remanded for retrial or resentencing.
These petitions raise basic questions about the respective
institutional roles of the Federal and State courts, the finality of the criminal legal process, and the efficiency of Federal review. Is a Federal examination of issues already
adjudicated in the State courts necessary to preserve individual constitutional rights? Is swift and sure punishment,
a goal of the criminal justice system, compromised or
maintained by review? Are the courts in control of habeas
corpus litigation or do these cases take on lives of their
own? These kinds of questions are part of a perennial debate among national and State policymakers, judges, and
attorneys concerning the appropriate scope of review, with
one side seeking to restrict the scope of Federal review and
the other side seeking to maintain or to expand the scope.
The current research reports the results of inquiry by the
National Center for State Courts, with the support of the
Bureau of Justice Statistics, into the processing of habeas
iv Federal Habeas Corpus Review

corpus petitions in 18 Federal district courts located in 9
selected States (Alabama, California, Florida, Indiana,
Louisiana, Missouri, New York, Pennsylvania, and Texas),
which comprise approximately half of the Nation's 10,000
petitions filed each year.
What do habeas corpus petitions involve?
The petitions are challenges from prisoners primarily
convicted of violent offenses and given correspondingly severe sentences. The issue most frequently raised is that the
prisoner received ineffective assistance of counsel (such as
the defense counsel's not cross-examining a prosecution
witness or not objecting to a denial of the court's continuance motion); fewer issues claim constitutional violations
by the trial court, prosecutor, or the police.
Less than 1% of the sentences are death-penalty sentences.
Most sanctions are custodial sentences, although 21% are
life sentences. Case processing times vary considerably,
with the fastest 10% taking less than a month to resolve
and the slowest 10% taking over 2 years to resolve.
Because assumptions about timeliness underlie almost all
of the various positions in the policy debate, this research
seeks to explain case processing time.
Why do some petitions take longer than
others to resolve?
The evidence suggests that case complexity determines
processing time. If cases fail to satisfy the basic procedural
requirements of habeas corpus, the petitions are dismissed
expeditiously. The greater the number of issues in the petition, the longer the time it takes to resolve the petition.
Challenging State Court Criminal Convictions v

Moreover, other factors related to case complexity, such as
the appointment of counsel and the holding of evidentiary
hearings, add their effects by increasing case processing
time. Case processing time is affected only to a limited extent by case characteristics like most serious offense at conviction, underlying trial court proceeding, sentence, and
type of issue. Consequently, the Federal review appears to
be an efficient process shaped by relevant legal factors.
The report ends with a brief discussion of the possible implications of the research for the national policy debate.
One implication is that the debate might be focusing too
narrowly on petitions challenging death-penalty sentences.
These petitions are less significant in determining case
processing time than petitions arising from life sentences.
Because habitual offender and related statutes like threestrikes-and-you're-out are likely to increase the proportion
of prisoners with life sentences among State prison populations, a broader focus in the debate seems prudential.
Second, there is a need to refocus on the question of
whether there should be greater deference to the State
courts. U.S. Supreme Court Associate Justice Sandra Day
O'Connor raised this issue several years ago, but its relevancy seems at least as appropriate now as then. As shown
in this nine-State study, the validity of State court convictions remains intact with the granting of very few petitions
despite careful and extensive Federal review. Concrete
steps toward greater deference can and should be made
through the adoption of specific legislation pending before
Congress. A more complete and coherent policy of deference toward the State courts should also be encouraged
through a renewed dialogue among Federal and State
judges on potential changes in key legal doctrines.
Roger A. Hanson

Henry W.K. Daley

vi Federal Habeas Corpus Review

State prisoners can petition Federal courts to review the
validity of their convictions and sentences. They seek to
relitigate collaterally Federal constitutional issues already
adjudicated in State court. These petitions, commonly
called habeas corpus petitions, allege that the criminal
proceedings and the resultant convictions and or sentences
involved violations of the prisoners' Federal constitutional
rights by the police, prosecutor, defense counsel, or State
court. If a prisoner's petition is successful, a Federal court
can issue a writ of habeas corpus, ordering that the prisoner
be released from custody, have the sentence reduced, or the
case remanded for further proceedings such as retrial or
These petitions are important to understand for three fundamental reasons. First, they highlight the complex interrelationship between the State and Federal courts in a Federal
system of government. Despite a State appellate court's
having devoted considerable resources in determining
whether reversible error occurred at the trial where a prisoner was convicted, lower Federal courts have the jurisdiction to review the State court criminal proceedings for
possible violations of Federal constitutional provisions,
based on both U.S. statute1 and subsequent Supreme Court
decisions.2 Many commentators disagree over whether the
Federal collateral review of State criminal proceedings is
necessary to preserve national uniformity in individual
constitutional rights. This conflict will never be settled
completely because the disagreements reflect divergent
positions on basic values, such as Federal oversight and

Act of February 5, 1867, Ch. 28 § 1 14 Sta. 385, 385-86
(codified at 28 U.S.C. 2241).
Brown v. Allen, 344 U.S. 443 (1953).

Federal Habeas Corpus Review 1

August 24, 1995

individual liberty. Yet, systematic information on how
Federal courts handle habeas corpus petitions can help
reduce friction between the two sets of court systems by replacing inaccurate images or untested assumptions about
the Federal review process.
Second, policy proposals concerning the scope of Federal
court review arise perennially in the U.S. Congress and
among judges, lawyers, and legal scholars. Specific
changes in legal doctrines expanded the scope of review in
the 1960's,3 while later changes restricted it.4 Because new
proposals to modify the review process are likely to
emerge, empirical knowledge of the effectiveness of the
current review process should contribute to a firmer set of
assumptions to inform the policy debates.
Third, the volume of habeas corpus petitions warrants inquiry into case processing efficiency and administration.
While habeas corpus is a civil writ about a criminal case,
the Administrative Office of the U.S. Courts counts habeas
corpus petitions in its civil caseload. For the past several
years the number of habeas corpus petitions filed in the
Nation's Federal district courts has equaled or slightly exceeded 10,000 cases. This volume translates into about 4%
of the entire Federal district court civil caseload. Despite
the size of the body of litigation, there are only four systematic investigations into the handling of habeas corpus
petitions: Shapiro (1973); Robinson (1979); Faust, Rubenstein, and Yackle (1990-91); and Flango (1994).

Sanders v. United States, 373 U.S. 1 (1963); Fay v. Noia,
372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 745 (1963).
Stone v. Powell, 428 U.S. 465 (1976); Wainwright v. Sykes,
433 U.S. 72 (1977); Engle v. Issac, 456 U.S. 107 (1982); Marshall v. Longberger, 259 U.S. 422 (1983); Teague v. Lane, 489
U.S. 288 (1990); McCleskey v. Zant, 111 § Ct. 1454 (1991).

2 Challenging State Court Criminal Convictions

These studies are valuable contributions to understanding
the landscape of habeas corpus petitions. They give an account of the relative frequency of different issues raised in
the petitions, the nature of legal representation for the prisoners, the outcomes of the petitions (dismissed, denied, or
granted), and the offenses and sentences being challenged.
However, Shapiro focuses only on U.S. District Court in
the District of Massachusetts, while Faust, Rubenstein, and
Yackle analyze only the U.S. District Court for the Southern District of New York. The general application of their
findings is limited. Robinson's study, which includes five
Federal district courts, along with Flango's examination of
two Federal district courts in each of four States, offer the
most complete empirical treatments of the subject. Yet
none of the studies addresses basic questions about the
processing and processing time of habeas corpus petitions.
How much time do the Federal courts take to complete
their reviews? Is there considerable variation among courts
or by type of case? If so, are there identifiable determinants, such as complexity, of why some petitions take
longer to be resolved than other petitions?
Timeliness is a factor that underlies the divergent views
about the institutional role, efficiency, and administration
of the Federal review process. Much of the concern about
the basic role of Federal review stems from the amount of
time taken to resolve petitions. If excessive, time in review
could undermine the criminal justice system's goals of finality and swift punishment. Some in the debate over the
value of Federal review also assert that the Federal process
is driven by prisoners who have a lot of time on their
hands. Are the Federal courts helpless to control the process, or are there identifiable and understandable determinants of the pace of litigation? Finally, timeliness is an
element in the discussion of how well managed the process
Federal Habeas Corpus Review 3

is. To what extent do the Federal courts differentiate meritorious cases from those that lack an adequate basis in law
or fact?
While the pace of litigation is not the only factor pertinent
to the key assumptions made by participants in the national
debate over habeas corpus policies and procedures, it is the
factor that can best be addressed with systematic data,
which provide findings with broader policy implications.
The guiding perspective to be tested empirically is that
Federal court review is responsive to case complexity and
that complexity is more important in determining processing time than case characteristics, such as the prisoner's
sentence (life imprisonment or death penalty), manner of
conviction (jury trial or guilty plea), or the most serious offense at conviction. This perspective is not novel in studies of civil litigation, but in its first application to habeas
corpus litigation, it produces some important, unexpected

4 Challenging State Court Criminal Convictions

A preview of the discussion sections
The section on the study design provides background information on the conduct and organization of the inquiry.
How were research sites selected? What information was
collected on individual habeas corpus petitions?
The section describing briefly the landscape of habeas
corpus asks the following: What sorts of challenges to
convictions do the prisoners raise? Are the challenges
directed toward the police, prosecutors, defense counsel,
or the court? Are the prisoners' underlying offenses serious
and are the sentences severe? What percentage of petitions
arise from capital convictions?
The section on Federal review processing time analyzes
how and why some petitions take longer to be resolved
than others. Are there identifiable factors that help to explain case processing time?
The final section concludes the report with an effort to provide cohesion between the findings and the larger debate
surrounding Federal habeas corpus litigation.

Federal Habeas Corpus Review 5

Study design
The scope of this paper encompasses the handling of habeas corpus petitions in 18 Federal district courts in 9 selected States. Alabama, California, Florida, Indiana,
Louisiana, Missouri, New York, Pennsylvania, and Texas
were chosen because they have about half of the Nation's
habeas corpus petitions while representing a range of habeas corpus litigation rates. (See the tables on pages
8 and 9.) These States also vary geographically and are affected by decisions of seven different U.S. Circuit Courts
of Appeals. To ensure sufficient death-penalty cases in the
study sample, the States, except for New York, were chosen from the 37 States that have the death penalty as a
criminal sanction. However, because the States were not
chosen randomly, the sample of cases is not necesaarily a
representative one for making measurable generalizations
about all habeas cases nationwide.
The research staff attempted to collect 300 cases per State
from U.S. district court closed caseloads.5 Cases were randomly selected from lists provided by the Administrative
Office of the U.S. Courts. A team of senior researchers
and law students examined individual case files and recorded information on data collection forms. Data entry
The actual number of cases per district is as follows: Alabama Southern District (55), Alabama Middle District (144),
California Eastern District (77), California Northern District
(93), Florida Central District (223), Florida Southern District
(46), Indiana Northern District (183), Indiana Southern District
(122), Louisiana Eastern District (138), Louisiana Middle District (72), Missouri Eastern District (165), Missouri Western
District (165), New York Southern District (101), New York
Eastern District (120), Pennsylvania Eastern District (187),
Pennsylvania Western District (112), Texas Northern District
(139), Texas Southern District (195).

6 Challenging State Court Criminal Convictions

staff translated the coded information into databases for
The data include the number and type of issues raised in
the petition, the most serious offense and the sentence imposed at conviction, the underlying State trial court proceeding, the key procedural events in the case and the dates
of those events, the manner of disposition, the reason for a
court dismissal, and whether the petition was appealed.6
The inquiry is acknowledged to be limited in scope in two
respects. First, the samples consist of cases disposed of in
a single year, 1992. A longitudinal database might yield
different results, although those in this study comport remarkably with Robinson's findings in 1979. Limited time
and resources precluded a more extensive investigation.
Second, all of the information presented is limited to that
available in the closed case files. No inquiry was made
into the views of the participants in the cases. Moreover,
cases were not tracked to determine their entire history at
the State court level prior to being filed at the Federal
The types of issues raised in habeas corpus petitions were
coded into the following categories: ineffective assistance of
counsel (failure to object to admissibility/sufficiency of evidence, failure to call witnesses, failure to cross-examine, and
failure to object to denial of a continuance notion), trial court errors (failure to suppress improper evidence, improper jury
instructions), prosecutorial misconduct (failure to disclose, use
of perjured testimony, and inflammatory summation), 4th
amendment (unlawful arrest), 5th amendment (coerced confession, improper/defective indictment, and invalid/coerced guilty
plea), 6th amendment (denial of speedy trial and improper jury
selection), 8th amendment (excessive sentence and improper
application of a habitual offender statute), 14th amendment
(violation of due process and equal protection), and other types
of issues (conditions of confinement).

Federal Habeas Corpus Review 7

district court or on a subsequent appeal to the Federal
circuit court. The data can only enrich the understanding
of what takes place in Federal district courts at a particular
time and are not a complete history of habeas corpus
Number of habeas corpus petitions in U.S. district
courts per 1,000 prisoners, by States with an average
or higher filing rate, 1991

Habeas corpus filings

State prisoner

Number of habeas
filings per 1,000
State prisoners




North Dakota
West Virginia




New Mexico




New Hampshire




8 Challenging State Court Criminal Convictions

petitions. However, as will be demonstrated, the data are
sufficiently rich to address a variety of important questions
with considerable precision and confidence.

Number of habeas corpus petitions in U.S. district
courts per 1,000 prisoners, by States with a below
average filing rate, 1991

South Dakota
New York
New Jersey
South Carolina
North Carolina
Rhode Island
Dist. of Columbia

Habeas corpus State prisoner

Number of
habeas filings
per 1,000 State










Federal Habeas Corpus Review 9

The landscape of habeas corpus
The landscape of Federal habeas corpus petitions has been
examined most thoroughly in a 1994 four-State study by
Flango. Data from the current research support much of
what emerged in that study. Confirmation of the four-State
landscape is not the main purpose of the current research in
part because four of the States in this nine-State study were
used in the previous study.7 Furthermore, while it is
interesting to know what the landscape looks like, the landscape does not indicate how different factors are related to
each other and what their combined effect is on the timeliness of Federal review. Hence, the purpose of this section
is to document familiar landmarks to set the stage for the

Flango's study, which was supported by a grant from the
State Justice Institute to the National Center for State Courts, focused on State and Federal court reviews of habeas corpus petitions in Alabama, California, New York, and Texas disposed of
in 1990 and 1992. The Bureau of Justice Statistics, in a grant to
the National Center for State Courts, separately funded the
analysis of habeas corpus petitions in five additional States, as
well as a study of Section 1983 lawsuits in nine states. Finally,
the Bureau of Justice Statistics funded the collection of particular case characteristics, such as the underlying trial court proceedings, the most serious offense, and the sentence imposed at

10 Challenging State Court Criminal Convictions

Most prisoners filing habeas corpus petitions in Federal
court have been convicted of violent crimes by State trial
courts and have been given a severe sentence.8

Most serious offense (1,976 petitions)
Other violent crimes (rape, sexual
abuse, robbery, kidnaping)
Burglary/theft/drug trafficking or
Other offenses
Sentence (1,895 petitions)
Prison/jail term of years


Approximately two-thirds of the sampled prisoners had
been convicted of homicide or other serious, violent crimes
against the person. Furthermore, more than 1 in every 5
prisoners had received a life sentence. Life sentences included life with parole, life without parole, and life with an
additional number of years.
The observed sentencing patterns are related to the pattern
of violent offenses, but they also reflect the application of
habitual offender laws, which impose lengthy periods of

In all tables the data have been aggregated into a single sample rather than maintainted as nine distinct State samples for two
reasons. First, the similarities among the States are more striking than the differences. Statistically significant differences between States in variables such as the relative frequency of
issues, timeliness, or sentence patterns do not emerge. Second,
there is a limited number of State-by-State observations for variables like court-appointed attorneys and death penalty sentences. Much of the analysis required a larger number of

Federal Habeas Corpus Review 11

incarceration or life sentences for individuals convicted of
three felony offenses. Another factor that accounts for the
heavy representation of lengthy custodial sentences and the
noticeable number of life sentences in the sample is the
time required to exhaust State remedies in order to file a
habeas corpus petition in the Federal district courts. Individuals with relatively short sentences are often out of prison before they can arrive at the Federal habeas doorstep.
Prisoners have to file a direct appeal in the State court and
to undergo a review by the State courts of the same habeas
corpus issues before filing a habeas corpus petition in the
Federal court. Failure to do so results in a dismissal by the
Federal court. This requirement takes considerable time to
complete. For the sampled cases the average elapsed time
between the date of conviction and the filing of a habeas
corpus petition in Federal court was 1,802 days or nearly 5
years.9 Given that most offenders convicted of felonies are
sentenced to 5 years or less, in all likelihood the process of
getting to the Federal courts takes almost as long as most
offenders will serve.10 Hence, habeas corpus litigation is a
legal action most likely to be taken by more serious offenders who are incarcerated long enough to complete available

Robinson's study in 1979 found that the time from conviction in the State trial court to the filing of the habeas petition
in Federal district court took 1½ years. Clearly, the increase
in the time for this interval over the past decade and a half
might be evidence of the extent to which State courts are devoting more and more resources to dealing with direct and collateral challenges to criminal convictions. It might also reflect
other factors, such as the larger phenomena of increased criminal caseloads across all State appellate jurisdictions. The National Center for State Courts (1995) reports that from 1985 to
1993 the Nation's State intermediate appellate courts experienced a 37% increase in the number of mandatory criminal appeals.

12 Challenging State Court Criminal Convictions

State direct appeals and collateral challenges and proceed
to the Federal arena. One consequence of these various
factors is that Federal judges are confronted with “high
stakes” litigation because most petitioners are serving long
prison sentences.
The relatively low incidence of death-penalty sentences
(1%) is noteworthy. Common among policy debates over
habeas corpus litigation is the question of whether to
broaden or limit the scope of Federal habeas corpus review
for the specific purpose of acknowledging the unique and
special circumstances of death-penalty cases. The effort to
limit habeas corpus litigation in death-penalty cases attempts to put an end to what is now almost a ceaseless
process. The effort to preserve all avenues of redress in
death-penalty cases recognizes the extreme nature of the
The one assumption common to both sides is that numerous habeas petitions from death-penalty cases take a disproportionate amount of time to resolve, consuming the
preponderance of attention that the Federal courts devote to
habeas corpus litigation, seemingly to the detriment of
noncapital habeas petitions. The data call that viewpoint
into question. It is difficult to conceive how 1% of the habeas caseload, 100 out of 10,000 cases, can dominate the
entire processing of Federal habeas corpus. Death-penalty
cases may receive a great deal of attention, but it is an empirical question whether they require longer case processing time than cases with life or custodial sentences.
In addition to the background characteristics of the prisoner, the habeas corpus landscape includes the types of issues (claims) raised in the petitions. Information on issues
was obtained from the final order in the case (or a magistrate judge's report) rather than from the prisoner's petition
Federal Habeas Corpus Review 13

submitted to the court. The court's view of the number and
type of issues was considered to be a more valid statement
of the allegations.
One reason for relying on the court's statement of the number and types of issues raised is that few prisoners proceed
with the benefit of legal counsel. In 93% of the sampled
habeas corpus cases, the prisoner was without legal counsel
(pro se). Courts appointed attorneys in 4% of the cases, although there is no constitutional right to an attorney in
civil litigation. Generally, the court will request private attorneys to represent a prisoner in situations where the legal
issues are complex and an evidentiary hearing might be
necessary to determine the validity of the petitioner's allegations. In the remaining 3% of the cases, the prisoners either retained private counsel or were represented by the
American Civil Liberties Union or a prisoners' rights

Types of issues raised
in habeas corpus petitions
Ineffective assistance of counsel
Trial court errors
14th amendment
5th amendment
6th amendment
8th amendment
Prosecutorial misconduct
4th amendment
Number of issues


About two-thirds of the issues in the sampled cases fell
into one of four categories: defense counsel in the State
trial court provided ineffective assistance (25%), trial court
error (15%), violation of due process or a related right
14 Challenging State Court Criminal Convictions

protected by the 14th amendment (14%), or a violation of
a right protected by the 5th amendment (12%). As might
be expected, issues claiming a violation of the fourth
amendment were the least frequent, as the U.S. Supreme
Court's has ruled that assertions of illegal search and seizure are precluded from Federal habeas corpus proceedings
if provided a full and fair opportunity to be heard in the
State court.11
Generally, more issues were focused on the conduct of
defense counsel and the State court rather than on the
police or the prosecutor. For example, the number of allegations of ineffective assistance of defense counsel was
much greater than the number of prosecutorial misconduct
allegations. This difference reflected the viewpoint of prisoners in the habeas cases examined, but it may or may not
have reflected the actual sources of constitutional violations. Additional information is needed on the outcomes of
the petitions to assess the validity of the allegations. Nevertheless, it is important to recognize who are the targets of
habeas corpus petitions and to understand that there are
clear differences in their relative frequency.

Stone v. Powell (1976). However, search and seizure issues
may be raised if defense counsel failed to object to the denial of
a suppression motion. Kimmelman v. Morrison, 106 U.S. 2574

Federal Habeas Corpus Review 15

The type of allegation is not the only information available
on habeas corpus issues. The number of issues also is a
distinguishable factor. Although the majority of sampled
petitions were single-issue cases, most issues were acNumber of issues
per habeas corpus petition
Single issue
2 issues
3 issues
4 or more issues
Number of issues

Percent of issues

counted for in multiple issue cases. Because the nature of
issues is defined in terms of the court's perspective, the
number of issues takes on special significance. A court is
likely to define issues more parsimoniously than prisoners.
Where a prisoner believes that there are three separate allegations of ineffective assistance of counsel, the court may
believe that there is only one issue. A court is not likely to
see more issues than are stated in the petition.
Because courts commonly include the number of issues in
a case when screening for case complexity, this practice is
incorporated into the analysis. More issues means greater
case complexity. The number of issues is considered to be
a proxy measure of complexity, providing a quantifiable
factor for complexity, which cannot be observed directly.

16 Challenging State Court Criminal Convictions

Few of the dispositions for the sampled cases indicated
outcomes favorable to the prisoners. A large majority of
the petitions were dismissed. Sixty-three percent of the issues were dismissed either by the court or by the petitioner.
Manner of disposition
of habeas corpus issues
Denied on merits
Granted on merits
Remanded to State courts
Number of issues

Percent of

Virtually all other issues were denied on their merits. The
court granted 1% of the issues and remanded another 1% to
the State courts for further proceedings.
The reasons for the dismissals further illuminates the landscape. The majority of the dismissals were for failure to
exhaust State remedies prior to filing the habeas corpus
Percent of
Reason for dismissal of habeas corpus issues
Failure to exhaust State remedies
Procedural default
Failure to meet court deadlines or court rules
Issues not cognizable
Abuse of the writ
Government's motion to dismiss granted
Prisoner not in custody
Successive petition
Jurisdictional bar
Petition is moot
Other reasons (such as prisoner moves to dismiss)
Number of issues


Federal Habeas Corpus Review 17

petition in Federal court (57%). Failure to exhaust is a
main procedural foundation of habeas corpus litigation.
The exhaustion doctrine requires the prisoner to present the
same issues to a State court for its review before seeking
Federal review. All issues in a habeas corpus petition must
have had State review. If some issues have been exhausted
but others have not, the Federal court shall dismiss the entire petition.12 A prisoner might amend the petition and delete the unexhausted claims instead of returning to State
court. However, by taking this action, the prisoner runs the
risk of having any unexhausted claims that are eventually
filed in Federal court dismissed by the court because such
“piece-meal litigation” is considered an “abuse of the
writ.”13 Yet, as the above data show, dismissals for abuse
of the writ were a small percentage of dismissals (5%), and
the risk from presenting claims separately was only theoretical, not actual.
In addition to the exhaustion doctrine, there are other indications that many petitions do not meet basic substantive
and procedural requirements of habeas corpus. Five reasons together accounted for approximately 18% of the dismissals: failure to comply with court rules, failure to raise
a cognizable issue, failure of the prisoner to be in custody,
failure to raise issues that are within the court's jurisdiction,
and the moot character of the issues presented.
Other doctrines that limit the scope of Federal review include the doctrines of procedural default, successive petition, and abuse of the writ. A procedural default occurs

Rose v Lundy, 455 U.S. 509 (1982).
Rose v. Lundy (1982). See also 28 U.S.C. § 2254
(Rule 9(b).

18 Challenging State Court Criminal Convictions

when the prisoner has failed to comply with State procedural rules on how the issues must be raised.14 The U.S.
Supreme Court has decided that unless the prisoner can
show “cause” and “prejudice,” procedural default in State
court will bar Federal review. Failure to comply with State
procedures must have been due to more than inadvertent
error and the failure must have had serious negative consequences to the prisoner.15
These three doctrines are believed to be more restrictive
than the exhaustion doctrine: procedural defaults accounted
for the 12% of dismissals; successive petitions, 3%; and
abuse of the writ, 5% of dismissals. The successive petition doctrine bars a petition that raises the same issues that
were raised, and rejected, in a previous petition.16 Neither
this doctrine nor the abuse of writ doctrine, which was discussed above, affected a large number of petitions.
Finally, once a case reaches the Federal district court, there
are substantial differences in the pace at which habeas corpus petitions are processed by the Federal district courts
(figure 1). The median case processing time for all sampled habeas petitions was about 6 months. Ten percent of
the petitions were disposed of in 29 or fewer days, and
10% took more than 761 days, or more than 2 years, to

Francis v. Henderson, 114 U.S. 233 (1976).
Wainwright V. Sykes, 433 U.S. 72 (1977).
Sanders v. U.S. (1963).

Federal Habeas Corpus Review 19

Number of days

761 days (90th percentile)

379 days (75th percentile)

175 days (50th percentile)
83 days (25th percentile)
29 days (10th percentile)

The box represents the processing time in days for most
of the habeas corpus petitions  between 25% of the cases
processed within 83 days and 75% of the cases processed
within 379 days. The line across the box is the median or
50th percentile at 175 days. The 10th percentile lies at the
end of the line extending from the bottom of the box, and
the 90th percentile, the line from the top of the box.
Figure 1. Processing time for habeas
corpus petitions

20 Challenging State Court Criminal Convictions

Federal review processing time
Timeliness is an underlying issue in the debates over the
institutional role, efficiency, and administration of Federal
review. Differences of opinions concerning timeliness are
captured in three sets of explanations for the time that the
Federal district courts take to review State court convictions.
One explanatory perspective rests, to a large measure, on
the belief that most challenges to criminal convictions lack
merit and are frivolous because the prisoner has virtually
nothing to lose and something to gain by raising legal challenges endlessly (such as Carrington, Meador, Rosenberg,
1974; Wold, 1978). A popular extension of this perspective is that habeas corpus litigation comprises cases that acquire lives of their own, and that the Federal district courts
are powerless to intercede and influence positively the pace
at which cases move toward disposition.
A second explanatory perspective is that particular characteristics of habeas petitions influence case processing time.
The assumption that certain characteristics delimit case
complexity and influence processing time is a working hypothesis in studies of civil litigation. The characteristics
frequently examined are the areas of law, number of parties, amount of controversy, and so forth. In the particular
context of habeas corpus litigation, the case characteristic
generally believed to be the most important factor is the
sentence imposed on the prisoner.
Specifically, the prevailing view is that death-penalty cases
consume the most time and that almost all noncapital habeas petitions are treated routinely. Proponents of this perspective believe that other case characteristics commonly
Federal Habeas Corpus Review 21

associated with death-penalty sentences (that is, jury trials
and homicide offenses) add their influence. This contention has dominated policy discussions about habeas corpus
petitions. Both liberals and conservatives focus on the
uniqueness and time consuming nature of capital habeas
corpus cases. While they may disagree on whether to expand or restrict the scope of Federal habeas corpus review,
liberals and conservatives appear to agree that deathpenalty cases take more time to resolve than other cases.
Finally, there is the perspective grounded in basic principles of court administration. Variation in the case processing time reflects substantial differences in case complexity,
and courts should devote their time in proportion to that
complexity (Solomon and Somerlot, 1987). This principle
rests on the assumption that the routine cases involve issues of settled law and uncomplicated facts. Other cases
are considered complex because the issues require detailed
interpretation of existing laws or call for interpretations in
areas of unsettled law or are based on complicated and disputed facts.
According to this approach, the Federal courts respond to
the complexity and subtlety of legal issues and facts arising
from the type of claim, the underlying trial proceeding, or
sentence. Courts purposively devote the amount of time
required (that is, ordering the government to prepare special reports, appointing counsel, scheduling and holding
evidentiary hearings, and taking matters under advisement)
to resolve unsettled issues or uncomplicated facts. This
perspective, which guides the current research, is difficult
to measure directly. However, in the context of habeas
corpus litigation, indirect measures include the number of
issues in the petition, whether the petition reaches a basic
threshold and is decided on the merits, whether evidentiary
hearings are held, and whether the court requests counsel
22 Challenging State Court Criminal Convictions

to represent the prisoner. Single-issue petitions that are
dismissed are hypothesized to take less time to review than
multiple-issue cases decided on the merits with the appointment of counsel and the holding of evidentiary hearings adding their influence.
Three factors that are generally believed to have a determinative effect on case processing time in other areas of civil
litigation  the type of issues, the manner of disposition,
and the number of issues per petition  also affect case
processing time in Federal habeas litigation. For example,
among the sample cases, issues of prosecutorial misconduct (608 days), fifth amendment claims (560 days), trial
court error (559 days), and ineffective assistance of counsel
(555 days) took the longest mean processing time to process. Cases that met all procedural requirements and were

Type of habeas corpus issue
Prosecutorial misconduct
5th amendment
Trail court error
Ineffective assistance of counsel
6th amendment
4th amendment
8th amendment
14th amendment

Average (mean)
number of days
to resolve habeas
corpus cases
608 days

Manner of disposition
Considered on the merits
Not considered on the merits

477 days

Number of issues
Single issue
Three or more

211 days

Federal Habeas Corpus Review 23

considered on the merits took longer, on average, to process than cases that failed to meet the threshold requirements (477 versus 268 days). Petitions with three or more
issues took longer, on average (359 days), to dispose of
than one- (211 days) or two- (270 days) issue petitions.
The findings regarding the type of issue and the number of
issues per case confirm both the experience of practitioners
and prior research on the pace of civil litigation. The impact on processing time of the threshold factor of dismissed
versus decided-on-the-merits seems no less intuitive. Yet,
despite the independent and significant impact of the type
of issue, it appears that the effect of the number of issues
per petition and the threshold factor produce greater differences in case processing time than does the type of issue.
The types of issues and the manner of disposition have an
independent effect on the pace of Federal habeas litigation
when the number of issues per petition are taken into account. Three-issue petitions took longer to resolve, on average, than one- or two-issue petitions for all of the issue
Average (mean) number of days
to resolve habeas corpus cases,
by the number of issues raised
Type of habeas corpus issue
2 issues 3 or more
313 days 415 days
Ineffective assistance of counsel 276 days
Trial court error
Prosecutorial misconduct
4th amendment
5th amendment
6th amendment
8th amendment
14th amendment
Manner of disposition
Considered on the merits
Not considered on the merits

178 days

217 days

24 Challenging State Court Criminal Convictions

303 days

categories. For example, petitions with three separate ineffective assistance of counsel issues took, on average, 415
days, compared to 313 days for those with two issues and
276 days for those with one issue.
The determinants of the pace of Federal review include not
only the number and types of issues. The most serious
offense at conviction also affects case processing time.
Generally, the more serious the offense, the longer the time
taken by the Federal courts to resolve the petition. For the
sampled cases, habeas corpus petitions arising from homicide convictions involving three or more issues took an
average 436 days. Those habeas petitions arising from
"Other" offenses and involving only one issue took, on average, 185 days to resolve.
Average (mean) number of days
to resolve habeas corpus cases,
by the number of issues raised
2 issues 3 or more
334 days 436 days

Type of offense
Other violent crimes
Other offenses

Both the number of issues per petition and the type of sentence have independent effects on case processing time.
Multiple-issue habeas petitions involving a death-penalty
sentence took 925 days, on average. Whereas single-issue
Average (mean) processing time
Issues per

of years



Three or more

224 days

299 days

184 days

Federal Habeas Corpus Review 25

petitions involving a prison sentence took an average of
224 days to resolve and single issue petitions involving a
life sentence took 299 days, single issue death-penalty petitions took 184 days to resolve. This suggests that habeas
petitions involving death-penalty cases are not uniformly
different from other habeas petitions that involve other
types of sentences.
Petitions involving each of the three basic types of sentences are similar in that some of each type are disposed
of either in a short time or after a long period. This pattern
suggests that Federal district courts do not focus exclusively on cases with a particular sentence, but rather, that
all petitions, whether or not they involve death-penalty
sentences, receive individual attention and that this attention is governed by the complexity of the case.
This specific finding is worth noting in view of the policy
debate about Federal review of habeas corpus. Policymakers, judges, and lawyers rightly are concerned about the
handling of death-penalty petitions. However, the idea that
petitions arising from death-penalty sentences acquire lives
of their own and consume disproportionately more Federal
district court time and resources is not supported by the information gathered from the nine selected States. Factors
other than the nature of a prisoner's sentence have greater
significance in influencing the length of Federal review, at
least at the Federal district court level. With respect to the
impact of the sentence itself among the sampled cases,
moreover, whether a sentence was for life affected case
processing time more than if it were a death sentence.
More generally speaking, the analysis of data supports a
contention that the Federal review process is responsive to
case complexity and that the courts use their discretion to
allocate resources, such as the holding of evidentiary
26 Challenging State Court Criminal Convictions

hearings and the appointment of counsel, where the need
exists to resolve complex or unclear issues of fact and law.
Petitions that lack an adequate basis in law or fact are dismissed early in the review process. Those petitions satisfying basic substantive and procedural requirements are
resolved on the merits according to their degree of complexity.
Finally, what accounts for case processing time when all of
the possible determinants are taken into account simultaneously? The answer from a statistical analysis of the data
collected in the nine selected States is that measures of case
complexity  number of issues, whether the petition is decided on the merits, the appointment of counsel, and the
holding of an evidentiary hearing  far outweigh the influence of case characteristics  the most serious offense at
conviction, whether the sentence was death, life in prison,
or a term of years, and whether the trial court proceeding
was a jury trial or a guilty plea.
Hence, the best explanation, fitting the data most closely, is
that variation in case processing time occurs because Federal district courts devote time in proportion to the demands of individual cases. The data do not support the
contentions that the Federal courts are responding primarily
to case characteristics and that the Federal courts lack control over the resolution of habeas corpus petitions. (Specific results from a regression analysis of case processing
time data are available from the authors. Those results are
also expected to appear in future publications.)

Federal Habeas Corpus Review 27

Debate and discussion concerning the Federal review of
State court criminal convictions will continue long after
publication of this report because issues of federalism, finality, and individual constitutional rights are unlikely to
be settled completely. However, the current research provides three contributions to a fuller understanding of the
Federal review process. They are 
(1) The Federal courts appear to be devoting time according to the complexity of the issues brought before them.
All cases might receive individual attention, but the
amount of attention is proportionate to what attention the
petitions require.
(2) Petitions that are given the least amount of time are
those that fail to meet basic requirements (that is, exhaustion of State remedies or procedural default) which account
for two-thirds of the petitions.
(3) For petitions that are decided on the merits, the time of
the Federal courts is driven by case complexity, which is
not necessarily related to objective factors, such as the type
criminal offense, the nature of the sentence, underlying
trial court proceeding, or type of issue. As a result, the significance of death-penalty sentences in determining case
processing time may be less than commonly believed.
Three implications for broader policy discussion and future
research emerge from these findings. One implication concerns the efficiency of the Federal review process. Without
subscribing to a particular point of view on the scope of
Federal review, systematic evidence implies that the existing process meets fundamental standards of fairness and efficiency. Federal court responsiveness to case complex- ity
28 Challenging State Court Criminal Convictions

comports with established court performance standards that
every case receives individual attention without regard to
legally irrelevant factors.17
A second implication concerns the attention given to deathpenalty litigation. Attention rightly is given, but the findings are a note of caution against an exclusive focus on
death-penalty appeals in habeas corpus reform. In the nine
selected States, which all have the death penalty as a criminal sanction, the case processing time is longer for petitions arising from life imprisonment sentences than from
petitions arising from death-penalty sentences. With wider
adoption of habitual offender laws, even more petitions
should be expected from the type of prisoners whose petitions are currently driving the elapsed time of Federal review. Consequently, policymakers, judges, and lawyers
might want to take this broader view of litigation into account as they fashion reforms in court procedures and
The third implication concerns the basic institutional role
of Federal court review. Evidence from the nine States
suggests that Federal review is neither disruptive of State
court convictions nor is it a chaotic process that is out of
control. State court convictions are not overturned routinely even though the Federal review process gives individual attention to all cases in conformity with basic
standards of court performance. Furthermore, while Robinson found in 1979 that the average time from conviction
to the filing of a Federal habeas was a year and a half, the
present finding of upwards of 5 years for the average
elapsed time from the date of conviction to the filing of a
Federal habeas (while possibly reflecting several trends

See Standard 3.3. National Center for State Courts (1992).

Federal Habeas Corpus Review 29

in the State courts over the last 15 years) suggests that the
amount of resources States devote to direct appeals and
other post-conviction litigation is hardly trivial. These
observations imply that State trial courts properly adjudicate all Federal claims that arise during State criminal proceedings and that the States expend a significant amount
of resources providing forums for direct and collateral
challenges to trial court outcomes.
The thoroughness of the Federal review process affirms the
correctness of the State actions being challenged. Police,
prosecutors, defense counsel, and State courts appear to be
fulfilling their criminal detection, prosecutorial, and
adjudicatory functions without abridging individual Federal constitutional rights. However, such a finding is not
cause for asserting that the work of the Federal courts is
unnecessarily duplicative. The present debate surrounding
Federal habeas corpus review reflects the acceptance of the
extensive constitutional rights for criminal defendants that
the Supreme Court created in the 1960's, which are the basis for the issues raised in habeas corpus petitions. Few
policymakers advocate broad, nonsymbolic attempts to alter this body of constitutional rights.
Yet, it seems in the interest of both the State and Federal
judiciaries to seek some substantive balance that can simultaneously avoid unnecessary court review and protect individual constitutional rights. As Supreme Court Associate
Justice Sandra Day O'Connor (1981) said, the concept of
deference to adequate State court processes that provide
full and fair adjudication should be an appropriate item on
the agenda of habeas corpus reform.

30 Challenging State Court Criminal Convictions

Bator, Paul M. (1963) “Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,” 76 Harvard Law Review 441.
Carrington, Paul D., Daniel Meador, and Maurice Rosenberg (1976) Justice on Appeal. West Publishing
Company. St. Paul.
Faust, Richard, Tina J. Rubenstein, and Larry L. Yackle
(1990-91) “The Great Writ in Action: Empirical
Light on the Federal Corpus Debate,” 18 New York
University Review of Law and Social Change 649.
Flango, Victor E. (1994) Habeas Corpus in State and Federal Courts. National Center for State Courts.
Hanson, Roger A. and Henry W.K. Daley (1994)
Challenging the Conditions of Confinement.
U.S. Department of Justice. Washington, D.C.
Hanson, Roger, William E. Hewitt, Brian J. Ostrom, and
Christofer Lomvardias (1992) Indigent Defenders
Get the Job Done and Done Well. National Center
for State Courts. Williamsburg.
National Center for State Courts (1990) Trial Court Performance Standards. National Center for State
Courts. Williamsburg.
National Center for State Courts (1995) State Court
Caseload Statistics: Annual Report 1993. National Center for State Courts. Williamsburg.
O'Connor, Sandra Day, (1981) “Trends in the Relationship
Between the Federal and State Courts from the
Perspective of a State Court Judge,” 22 William
and Mary Law Review 801.
Robinson, Paul (1979) An Empirical Study of Federal Habeas Corpus Review of State Court Judgments.
U.S. Justice Department. Washington, D.C.
Federal Habeas Corpus Review 31

Shapiro, David L. (1973) “Federal Habeas Corpus: A
Study in Massachusetts,” 87 Harvard Law Review
Solomon, Maureen and Douglas K. Somerlot (1987) Caseflow Management in the Trial Court: Now and for
the Future. American Bar Association. Chicago.
Wold, John T. (1978) “Going Through the Motions: The
Monotony of Appellate Court Decision-Making,”
Judicature 58.
Yackle, Larry W. (1985) “Explaining Habeas Corpus,” 60
New York University Law Review 991.

32 Challenging State Court Criminal Convictions

Many individuals contributed to the research reported in
this discussion paper. Cooperation from Federal court
officials enabled the project staff of the National Center for
State Courts (NCSC) to gather information from individual
case files. Among the many people in each court that
provided assistance, special thanks go to the following:
Lois S. Bloom
Senior Pro se Staff Attorney
Southern District of New York

James Parkinson
Clerk of Court, Southern District
of New York

Robert C. Heinemann
Clerk of Court,
Eastern District of New York

Emily Patt, Luis Hernandez,
and Marie Louise Caro,
Staff Attorneys, Northern District
of California

Thomas C. Caver
Clerk of Court, Middle District
of Alabama

The Honorable Charles S. Coody
U.S. Magistrate Judge, Middle
District of Alabama

Deborah S. Hunt
Clerk of Court, Southern District
of Alabama

David M. Baldwin
Staff Attorney, Northern
District of Texas

Nancy Doherty
Clerk of Court, Northern District
of Texas

David J. Bradley
Chief Deputy Clerk, Southern
District of Texas

David L. Edwards
Clerk of Court, Middle
District of Florida

Sheila F. McNeill
Staff Attorney, Middle
District of Florida

Richard T. Martin
Clerk of Court, Middle
District of Louisiana

Geraldine J. Crockett
Clerk of Court, Northern
District of Indiana

A. Victoria Thevenow
Clerk of Court,
Southern District of Indiana

Robert D. St. Vrain
Clerk of Court,
Eastern District of Missouri

Judy Carter
Staff Attorney, Western
District of Missouri

Michael E. Kunz
Clerk of Court, Eastern
District of Pennsylvania

Joseph Rodgers
Adminstrative Supervisor,
Eastern District of Pennsylvania

Alfred L. Wilson
Clerk of Court,
Western District of Pennsylvania

Robert Barth
Operations Manager,
Western District of Pennsylvania

T.G. Cheleotis
Clerk of Court,
Southern District of Florida

Federal Habeas Corpus Review 33

Additionally, a cadre of advanced law students provided
skillful and thoughtful assistance in reviewing case files in
each of the U.S. district court sites. Charles Rohde,
Thomas Johnson, and Thomas Joss were the researchers
that every project director yearns to recruit and rely on.
Colleagues at the NCSC critiqued the report. Appreciation
is extended to Victor Flango, Brian Ostrom, and David
Rottman for willingness to read successive drafts. Lisa
Ghee is also thanked for cheerfully preparing the drafts.
The Bureau of Justice Statistics is thanked for its financial
support and editorial assistance. Carol Kaplan and Steve
Smith were project monitors, and Tom Hester was editor.
Yvonne Boston, under supervision of Marilyn Marbrook,
produced the report.
Finally, very few studies of litigation can be accomplished
without the help of David Cook, Chief of the Analytical
Services Office, Administrative Office of the U.S. Courts.
Mr. Cook enabled the project staff to draw samples of
cases based on computerized lists of all disposed cases in
every U.S. district court. He is valued more than he

34 Challenging State Court Criminal Convictions



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