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133 Cards in this Set

  • Front
  • Back
What are the inherent assumptions of our judicial system?
* Assumption that judges are going to be fair and impartial
* Assumption that attys are all appropriately zealous and high minded
* Equal access to resources
What are the duties of Prosecutors?
* Doing justice
* Protecting rights of victims, bystanders, and community
What are the duties of Defense Attys?
* Protecting ∆ rights (not necessarily seeking out truth)
* Checking power of prosecutor thru objections and other procedural methods
What is the 8th Amendment requirement regarding bail?
* Excessive bail shall not be required
* Doesn't mean that bail is guaranteed, just that if there is bail it isn't excessive
What is the constitutional issue with holding someone in custody prior to conviction?
* Presumption of innocence
* May impinge upon right to counsel
* May deprive one of liberty without due process of law
Prior to institution of the Bail Reform Act, what exceptions were there to the right to pre-trial release?
* Capital cases
* Cases in which the ∆ has escaped and been recaptured
* Cases of criminal contempt
* Cases in which ∆ criminal history precludes release as it evinces that ∆ is a danger to self/society
What must be balanced in determining pre-trial release conditions?
* ∆'s right to liberty
* Danger posed to society and assurance that state will be able to prosecute for alleged crimes.
What are the various types of release conditions?
* Own recognizance
* Unsecured Bond
* Release on non-financial conditions
* Cash Bond
* Percentage bond
* Property bond
* Surety Bond
* Guaranteed arrest bond certificate
* Own recognizance
* If ∆ has community ties and will likely return, no purpose for bail
* In return for being released, ∆ promises to return for hearings as expected
* Unsecured Bond
* Similar to OR, however ∆ also promises that if he doesn't show up for hearings he will pay an agreed upon sum.
* Release on non-financial conditions
• ∆ gets released, but under certain conditions - has to live with a certain relative, report to probation, etc.
* Cash Bond
* ∆ can be released but has to post $ first.
• If ∆ completes obligations to present self for hearings, gets the $ back
* Percentage bond
* Similar to cash bond, but only has to put up part of the sum
* Failure to return as expected will result in the demand for remainder of sum
* Property bond
* ∆ released, no immediate payment necessary, but property is put up as collateral for return
* Surety Bond
Underwritten bond - ∆ puts up portion of bond, bondsman puts up rest
* Guaranteed arrest bond certificate
Appropriate for traffic tickets - here's a citation, show up or do something before your court date or you will be arrested.
Bail Reform Act of 1984
Expanded reasons for pre-trial detention to include danger to others if released in addition to risk of Flight
What is the burden of proof for demonstrating that ∆ is a risk of flight?
Preponderance of the evidence
What is the burden of proof for demonstrating that ∆ is a danger to himself or the community
Clear and convincing evidence
What factors may be considered in determining whether to impose pre-trial detention or conditions of release?
* NATURE and circumstance of offense charged
* WEIGHT of the evidence
* Whether ∆ is DANGER to community
What factors in the ∆'s history may be considered in determining PTD or release conditions
* Character
* Physical/mental condition
* Family ties
* Employment
* Financial resources, length of residence in community, community ties
* Past conduct, AODA, criminal history, record of court appearance
* Arrest status at time of instant offense
What factors enter into a determination of whether ∆ is a danger to the community in deciding whether to impose PTD or release conditions?
* ∆ charged with violent crime, capital offense, or serious drug crime
* Has been convicted of a similar offense in last 5 years
What factors enter into a determination of whether ∆ is a flight risk in deciding whether to impose PTD or release conditions?
* ∆ charged with drug felony with > 10 year imprisonment
* ∆ charge with using a gun in the commission of a violent crime
* ∆ charged with child exploitation crime
* Court finds probable cause that ∆ committed crime.
In a detention hearing, what evidence is admissible
* Hearsay evidence
* Evidence proffered through attorney
* Police Records
* Rap sheets
What are the practical considerations that a prosecutor must keep in mind during a detention hearing?
* Must find out as much as possible about ∆ and likely witnesses
* Must avoid creating impeachment material for own witnesses
* Must disclose as much or as little as necessary (as much if trying to motivate a plea, as little if the case is flimsy)
What are the practical considerations that a defense attorney must keep in mind during a detention hearing?
* Must determine whether calling ∆ as witness will help or hinder case.
* Want to learn quality of prosecution's case
* Wnat to learn who the gov't's witnesses are
* Find out extent of investigation
* Figure out what witnesses will be effective at trial
What happens at the initial appearance?
* ∆ advised of RIGHTS (to remain silent, that statements can be used against him, that he has right to appointed or retained counsel, right to arraignment, right to be considered for pretrial release, right to preliminary hearing, right to reasonable time to consult with counsel before trial, right to identity hearing)
* ∆ advised of CHARGES
* Court usually enters preliminary plea of not guilty on ∆'s behalf
What are the statutory requirements for a preliminary hearing?
* hearing is ADVERSARIAL
* Issue is whether there is PROBABLE CAUSE to find that a crime has been committed AND ∆ committed the crime
What are the two models of preliminary hearings?
* Forward looking (Very rare- examines likelihood of success on the merits)
* Backward looking (more common, focuses on legality of arrest, PC; hearsay evidence is admissible)
What are the practical uses for a preliminary hearing?
* SCREENING device for prosecutor
* Some pre-trial DISCOVERY
* PRESERVATION of testimony (assuming ∆ has full and fair opportunity to cross examine)
* Pre-trial release/ DETENTION
How broad is prosecutorial discretion in charging?
* Charging decisions are un-reviewable so long as they don't discriminate against a group and are not vindictive
* In the absence of clear evidence to contrary, courts presume prosecutors have been prudent
What must a ∆ prove to prevail on a claim of selective prosecution?
* Demonstrate discriminatory effect motivated by discriminatory PURPOSE
* Demonstrable through legislative HISTORY, failure to prosecute SIMILARLY SITUATED persons, and NO OTHER RATIONAL BASIS for the policy.
Why is it so difficult to prevail on a claim of abuse of prosecutorial discretion?
Judicial review:
* Would have chilling effect on law enforcement
* Would delay proceedings
* Undermine effectiveness
* Compromise enforcement scheme
Reasons that different ∆ may be prosecuted differently for similar crimes:
* Cooperation with prosecution/ immunity AGREEMENTS
* Prior criminal HISTORY
* Quality/ weight of EVIDENCE
* Gov't's AWARENESS of crime
* Target's age (though only in conjunction with other factors)
What constitutes vindictive prosecution?
Punishment of ∆ for exercising a constitutional right.
When does a presumption of vindictive prosecution arise?
* When judge/ prosecutor increases charges or sentence after retrial.
* Judge must demonstrate that there was new evidence in retrial to justify increase in sentence/charge
What factors must a prosecutor consider when making decision?
* EVIDENCE available
* Did ∆ COMMIT crime in prosecutor's view?
* HISTORY, including prior offenses
* NATURE of crime (violent/non-violent)
* State v. Federal prosecution
* Is penalty APPROPRIATE for crime?
* Is there a broader MESSAGE to be sent?
* The IDENTITY of the target in a grander scheme
What are the two purposes of a modern grand jury?
* Investigatory
* Accusatory
To whom does the grand jury secrecy rule apply?
* Prosecutor (and those who obtain access to records thru the prosecutor)
* Court reporter
* Jurors
* NOT witnesses
* Documents and identity of witnesses covered
What are the objectives of the secrecy statute?
* Prevents target from FLEEING when learning of GJ investigation
* Prevents witness TAMPERING
* Protects target who is EXONERATED from the notoriety of GJ investigation
* SOLIDIFY TESTIMONY that may deteriorate over time or will be unavailable at trial.
How does a witness's 5th Amendment right against self-incrimination function within the grand jury context?
* Witness subpoenaed to testify may assert privilege against self-incrimination, prosecutor may acquire an order to testify.
* Issuance of such an order includes direct (and sometimes indirect use) immunity
What limitations exist on grand jury investigations?
* INTIMIDATION: Can't be used to harass or intimidate
* MALICE: Can't select targets out of malice
* OPPRESSION: Can't be unreasonable or oppressive
* REASONABILTY: Subpoenas quashed only if party subpoenaed can demonstrate no reasonable probability that the category of materials/testimony sought will produce information relevant to the general subject of a GJ investigation
* POST-INDICTMENT SUBPOENA: Can't use subpoena to glean further testimony after an indictment unless there are further targets out of the same event
How does the 5th Amendment right against self-incrimination function within the context of a GJ subpoena dues tecum?
5th Applies if
* Gov't seeks to compel compliance, and
* Material is "testimonial" in nature
* Material incriminates the person producing it.
What are the types of immunities that a prosecutor may grant?
* Transactional immunity
* Direct use immunity
* Indirect (or derivative) use immunity
* Act of production immunity
* Transactional immunity
* immune from prosecution regarding what one did in target transaction
* most desirable immunity
* Direct use immunity
* Immune from prosecution regarding what one testifies to.
* Indirect (or derivative) use immunity
* Immune from prosecution regarding what one testifies to or anything that is revealed as a result of one's testimony
* Act of production immunity
* Immune from prosecution as the producer of records - can use the records against the producer, but can't reveal who provided.
What must a court have to charge a ∆?
* Jurisdiction
* Venue
* Crime or violation of a law
What is required to state an offense?
* ELEMENTS of crime (including overt acts)
* Allege VENUE (waivable)
* DATE of offense
* Enough ALLEGATIONS to advise ∆ of what's being charged
What is involved in joinder of offenses?
* Same or similar character
* Based on same act/transactions
* Common scheme or plan
What is involved in joinder of defendants?
* Alleged to have participated in same act, transaction, or series of transactions
* Law favors the joinder of ∆
Why does the law favor joinder?
* Judicial ECONOMY
* Avoids inconsistent VERDICTS
* Avoids traumatizing VICTIMS multiple times
* Avoids unfair ADVANTAGE to second defendant
Judges normally have broad discretion in severance as joinder is permissive, but when is severance compulsory?
* If joinder infringes upon ∆'s constitutional rights (most commonly right against double jeopardy)
What is the Blockburger test for double jeopardy?
* When legislative INTENT IS UNCLEAR:
* Two offenses do not constitute the same offense (and therefore DJ doesn't bar prosecution of the second offense) when EACH OFFENSE REQUIRES PROVE OF AN ELEMENT THAT THE OTHER OFFENSE DOES NOT
What are the exceptions to the Blockburger rule?
* If harm from act hadn't occurred at time of first prosecution
* Conviction reversed on appeal, okay to charge greater at second trial (so long as prosecution isn't vindictive)
* Separate sovereign rule - can prosecute state and federal separately w/o violating DJ
* If ∆ asks for separate trials for crimes that are the same offense, ∆ has waived DJ
What is the collateral estoppel involved in the rule of successive prosecutions?
If first trial established a fact BRD, and that fact is a necessary element of subsequent offense, can't assert the opposite at subsequent hearing.
US v. Bruton
* One ∆ confeses, other does not, trials are joined.
* Judges gives limiting instruction to only use confession against confessing ∆.
* Held: Substantial risk that jury will construe confession against both, independent of instruction, thereby holding evidence against non-confessing ∆ in violation of his 6th amendment right to confront.
* Result is that prosecutors begin editing confessions
Gray v. Maryland
* Successor case to US v. Bruton
* Non-confessing ∆'s name redacted from confession, replaced with word "deleted"
* Held that identity of deleted person altogether too clear - doesn't cure the 6th amendment violation.
* If confessing ∆ testifies, can admit the unedited version as non-testifying ∆ has opportunity to confront.
* if non-confessing ∆ testifies and places self at scene, is own fault, no 6th amendment violation.
What are the constitutional sources of the right to speedy trial?
* 6th Amendment
* Due process clause
What are the provisions of the Speedy Trial Act?
* Trial can't start in less than 30 days
* ∆ must be tried w/i 70 days from filing date or date of first appearance,
* Subject to conditions that toll the timeline
What are the mandatory exclusions that toll the speedy trial clock?
* TRIAL on other charges
* REMOVAL of ∆ from another district
* ∆ being EXAMINED
* ABSENCE or unavailablity of essential witness or ∆
* DEFERRAL of prosecution

* Pre-trial MOTIONS
* Court considering PLEA
* Issues under advisement + 30 days
What are the discretionary exclusions that toll the speedy trial clock?
* Continuances for good cause (based on avoiding the miscarriage of justice, complexity of case, continuity of counsel)
What happens if Speedy Trial Act provisions violated?
* ∆ must move for dismissal prior to trial/ entry of judgment, else, right is waived.
Barker v. Wingo
* Must assert violation of Speedy Trial right in a timely manner, else it is waived and cannot be raised upon appeal.
* 4 factor test to determine if length of delay is DP violation
1. Length of delay (threshold matter)
2. Reasons for the delay
3. Whether/how ∆ asserted speedy trial right
4. Amount of prejudice suffered by ∆
What are the Jencks statutory discovery requirements?
* After witness testifies, gov't required to provide prior statements if ∆ motions for such production
What are the constitutional discovery requirements under Brady/Giglio?
* Required surrender of exculpatory and impeachment evidence by prosecution
* Good or bad faith is irrelevant
Who has burden of proving/disproving materiality of evidence suppressed?
* Burden is on the ∆ prove that inclusion of Brady evidence would have changed the outcome of the trial.
* Failure to disclose Brady evidence if only unconstitutional if it would have caused a different result at trial.
What if government doesn't know the value of evidence at the time?
* unless ∆ can show bad faith by the police, the failure to preserve a potentially useful bit of evidence doesn't constitute a denial of due process.
What are the discovery obligations regarding assertion of alibi?
* Gov't must issue written demand to ascertain whether alibi is being used
* ∆ must file written response w/i 10 days stating alibi and identifying information of alibi witnesses
* Gov't must then produce identifying information of witnesses who will rebut alibi testimony.
What are the discovery obligations regarding assertion of an insanity defense?
* ∆ must issue notice of intent to use such defense in a timely manner so that prosecution can have ∆ examined by own physicians and experts.
What are the discovery obligations regarding assertion of public authority defense?
* Arises when alleged confidential informant gets nabbed and claims that he was breaking the law in accordance with government directive.
* ∆ must notify in writing of actual or believed authority, name of agency, dates acting within such authority.
What is the public policy purpose of jury trials?
* Protects citizenry from oppression by gov't, eccentric judges, overzealous prosecutors, arbitrary law enforcement
* Ensures common sense judgment by one's peers
By what objective standard is "seriousness" of an offense ascertained?
* Length of possible imprisonment sentence.
How may a ∆ demonstrate that a jury panel doesn't represent a fair cross-section?
* A distinctive group is excluded
* Percentage of group in panel is not fair and reasonable compared to percentage in general population
* Under-representation is due to systemic exclusion of the group
What are the requirements for voir dire challenges for cause?
* Juror can't be fair and impartial
* Juror won't follow the law

* All peremptory strikes must be used in order to use failure to strike as reversible error on appeal.
Batson v. Kentucky
* Unconstitutional to use preemptory challenges to eliminate a racial (and later gender) group from the jury
* ∆ is member of cognizable group (suspect class)
* Prosecution has used peremptory strikes on jurors of ∆'s race
* This and other circumstances give rise to inference of discriminatory motive (questioning of jurors, pattern of strikes, prosecutor's reputation)
What are the various pleas that ∆ can enter?
* Guilty
* Not Guilty
* Nolo Contendere
* Conditional plea
* Alford plea
* Guilty with cooperation
* Binding plea
* Guilty but mentally ill
* Guilty
* Sentence usually lessened in exchange for plea
* Not Guilty
* Goes to trial to be adjudicated
* Nolo Contendere
* No Contest Plea
* No admission of guilt, but acknowledgment that gov't can prove guilt
* Asks for mercy in sentencing
* Court must approve
* Doesn't serve as admission of guilt that can be used in subsequent civil litigation
* Conditional plea
* "If ∆ loses dispositive motion, will plead guilty reserving right to appeal if motion lost"
* Good when state's case rests on single piece of evidence
* Gives judges incentive to rule against ∆ on motion
* Alford plea
* Similar to nolo contendere, but with guilty plea consequences
* Used when there is overwhelming evidence against ∆, but he still will not plead guilty.
* Guilty with cooperation
* Adds stipulations to guilty plea in order to get reduced sentence for performing other acts
* Typically, stipulations include testifying in co-∆'s trial
* Binding plea
* Pros and defense negotiate entire plea, including sentence to be served (or range of sentence)
* Judge must either reject plea or is bound by its terms.
* Guilty but mentally ill
* Only available in some states
* ∆ mentally ill, but not to the level of insanity
What is necessary for a valid plea agreement?
* Charge supported by a sufficient FACTUAL basis
* Proceeding must be RECORDED
What happens if ∆ breaches the plea agreement?
* Plea may be invalidated
* Prosecutor can ask for maximum sentence
When can plea agreements be withdrawn?
* Before plea entered into record in open court - with or without reason
* After plea entered in to record in open court but before sentencing - with fair and just reason (not just because ∆ has changed mind)
* After sentencing, on direct or collateral appeal - only for reasons of manifest injustice or miscarriage of justice (claim must be that plea was involuntary or ∆ is actually innocent)
How is the fair imposition of the death penalty ensured?

* Scrutinizing jailhouse SNITCH testimony
* Allow judge to CONCUR or reverse jury death penalty sentence
* Instruct jury to consider all OTHER PENALTIES first
* Statewide PANELS reviews prosecutorial decisions to seek death penalty
* Reduce the # of death penalty ELIGIBLE crimes

* Give ∆ an OPPORTUNITY to address sentencing body
* No death penalty based on UNCORROBORATED single eye-witness ID
* Have capital case bar TRAIN attys and judges in death penalty
Requirement for a valid Death Penalty Statute:

* Finding of guilty by JURY -> sentencing by jury
* Adequate notice of INTENT to seek death penalty must be made
* Structure allows for introduction of MITIGATING circumstances

* Statute structured to prevent ARBITRARY imposition
* Can't be imposed against a person of limited CAPACITY
* All EVIDENCE introduced as to aggravating and mitigating factors

* Judge or jury imposing sentence must find mitigating factor don't OUTWEIGH aggravating
* Special verdict FORM must identify which aggravating factor found BRD

* Government must establish at least one AGGRAVATING circumstance BRD
What are typical aggravating factors?
Capital and the 6 Murders:

* Previously convicted of capital offense
* Felony murder
* Multiple murders
* Murder of police officer in performance of duties
* Murder for hire
* WMD/ risk of multiple murders
* Murder of prison employee by prisoner
What are typical mitigating factors?
* Lack of criminal history
* Youth/diminished capacity not amounting to incompetency or insanity
* ∆ believed he was morally justified
* ∆ believed he was under duress
* Victim participated in the crime
What are other aggravating factors considerable in all criminal cases?
* Prior criminal history
* ∆ in position of trust
* ∆ behavior concealing the crime
* Age or capacity of victim
What are general mitigating factors considerable in all criminal cases?
* Acceptance of Responsibilities
* Cooperation with law enforcement
* Minor role in conspiracy
Per the Sentencing Guidelines, may make upward variance from guidelines. . .
* Death results in non-murder case
* Disruption of gov't functions
* Extreme psychological/ physical injury
Per the Sentencing Guidelines, may make downward variance from guidelines . . .
* Aberrant behavior
* Coercion/ duress
* Diminished capacity (not self-imposed)
* Voluntary disclosure of offense
* Lesser harm
What factors should not be considered in sentencing?
* Post-sentencing rehabilitative efforts
* Age/ youth
* Education/ vocational skills
* Mental/ emotional problems not amounting to diminished capacity
* Physical appearance
* AODA status
* Employment record
* Family ties and responsibilities
* Race, sex, religion, SES
* Military, charitable, public service, or prior good works
* Lack of guidance as a youth
What are the factors to consider in determining proportionality of sentence?
* Gravity of offense
* Harshness of sentence imposed for instant offense
* Penalty imposed on other criminals in same jurisdiction
* Penalty imposed on other criminals in other jurisdictions

* 8th amendment doesn't require strict proportionality between crime and sentence, only forbids extreme sentences that are grossly disproprotionate
What procedures must the government take to charge a ∆ as a recidivist?
* Must give notice to ∆ of intent to charge
* Conviction has to be proven by preponderance of evidence (fed) or BRD (state) after the conviction and in a separate proceeding
Apprendi v. NJ
* Holds that an enhancement to a sentence must be alleged and proven in the indictment.
* Furthermore, no fact other than previous criminal conviction may be used to increase sentence beyond the presumptive statutory maximum without being established beyond reasonable doubt by jury
US v. Booker
* Holds that imposition of the federal sentencing guidelines is not mandatory, however consideration of the guidelines is mandatory - they are advisory.
* Judge needs only give a decent reason for upward or downward departures
What is current law regarding sentencing and departures from the guidelines?
* Sentence within guidelines is presumptively reasonable
* Sentence outside the guidelines is not presumptively unreasonable
* Departure from guidelines is reviewed under standard of abuse of discretion
* The greater the deviation, the greater justification needed.
What factors must be balanced when examining when double jeopardy bars retrial?
* ∆'s right to have jury decide case
* Public's interest in having a fair and complete chance to prosecute accused
When does double jeopardy attach?
* when jury sworn in
* after first witness sworn in
* after the court accepts guilty plea
When does double jeopardy always bar retrial?
* When ∆ is acquitted
* When court grants rule 29 motion for failure to present sufficient evidence
* When case reversed on appeal for insufficiency of evidence
What must be considered when deciding whether double jeopardy has attached?
Focus on termination of first trial:
* when did it occur
* what was the reason
* whose fault was mistrial
* Did ∆ move for mistrial or object to motion for mistrial
* Did judge find manifest necessity for mistrial
What constitutes manifest necessity?
* Impartial verdict cannot be reached, or
* Verdict of conviction would be reversed on appeal b/c of obvious procedural error in trial.
What do appellate courts NOT do?
* Do not retry case
* Do not reweigh evidence
* Do not make credibility findings
What do appellate courts do?
* Do give deference to findings of fact at trial court
* Do make and define the (common) law
What are the standards of appellate review?
* Plenary/ de novo review
* Clear error
* Abuse of discretion
* Sufficiency of evidence
De novo review
* No deference to trial court
* Questions of law, including rulings on summary judgment and interpretation of statute
Clear error
* Questions of fact
* Judge's finding of witness credibity, weight of evidence
Abuse of discretion
* Evidentiary rulings, sentencing decisions, decisions about jurors, mistrials, etc.
Sufficiency of evidence
* Taking all inferences favorable to gov't and examining sufficiency
* Reversible only if appellate court finds that no rational trier of fact could have found ∆ guilty BRD.
What are the kinds of error possible?
* Harmless error
* Plain error
* Structural error
Harmless error
Mistake made, but it didn't have an impact upon the outcome of the trial
Plain error
Serious error that is clearly document in the record
* Results in innocent ∆ being convicted
Structural error
Procedural error that poisons entire trial
What is the contemporaneous objection rule?
* At trial, moving party must register an objection to the contested ruling/issue
* Gives trial court opportunity to correct the error
* Prevents sandbagging after trial
* Calls court's attention to error
What is the difference between forfeiture and waiver?
* Forfeiture: forget to raise objection at trial; appellate court can review for plain error only
* Waiver: state that there is no objection to a particular issue; cannot reverse or consider on appeal
What is the burden of proof upon the government to get a finding of harmless error?
BRD - that error didn't affect outcome of trial
* Gov't must show that error didn't impact outcome of trial
What is the burden upon the defense to get a finding of plain error?
* Error so serious that it affected substantial rights, would affect integrity of system, or establishes innocence of ∆
* Error was not waived, plain, claer, or obvious at time of appeal
* ∆ must show that there's prejudice and why there was no objection at trial
How is appeal taken?
* File notice with trial court (for appeal as matter of right)
* Filing of petition for transfer (discretionary appeal)
* Failure to file on time often fatal
* Filing notice deprives trial court of jurisdiction
What are the different types of appeal?
* Direct appeal
* Interlocutory appeal (appeal of dispositive issue alone)
* Collateral (habeas appeal)
* Mandamus appeal
When might a waiver of appeal occur?
* As part of guilty plea - as basis for the bargain; void if guilty plea no not knowing or voluntary
* As part of habeas waiver
What's an Anders brief?
* Brief filed when ∆ atty believes that appeal would be frivious but ∆ wants to pursue appeal
* Must show atty's review of the record and legal conclusions about the viability of each issue considered for appeal and state why it won't succeed
* Advise court, file motion to withdraw
* Provide copy to ∆
* ∆ gets opportunity to respond
What is habeas corpus?
* Civil remedy in which ∆ has burden of proof to show that imprisonment cannot be shown to conform with fundamental requirements of law and that ∆ is entitled to immediate release
What are the requirements for a habeas claim?
1. ∆ must be in custody
2. ∆ must allege unlawful detention in violation of federal law or constitution (or state analogies)
3. ∆ must have exhausted all other remedies (criminal appeals and administrative remedies)
4. Petition must be within statute of limitations
5. Petitioner must not have procedurally defaulted (basically must have raised issue at TC, preserved on direct appeal and demonstrate why)
What is meant by "in custody" in relations to a habeas claim?
Not just incarcerated, but any condition in which some measure of ∆'s liberty is constrained
What is meant by "allege violation of federal constitution or fundamental right of federal law" in relations to a habeas claim?
If petitioner had full and fair opportunity to litigate violation at lower court levels, cannot raise in habeas case unless one claims ineffective assistance of counsel
To establish a claim of actual innocence, what must be shown?
* present evidence that is reliable and compelling (rebuttable by other evidence not admissible at trial)
* Court has wide discretion and determination is very fact sensitive
* Petitioner must demonstrate that in light of new evidence no juror, acting reasonably, would have voted to find ∆ guilty BRD
What is the statute of limitations on habeas claims?
One year from:
* Final judgment
* Discovery of new evidence
* Handing down of new constitutional rule that is deemed retroactive
* Lifting of state action precluding filing