# Petition for Writ of Certiorari — Henderson v. DeTella

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1187

## Text

SsUpomey VuUrTt, U.o.

oe FILED
4
~ 961406 mR 5 1997

OES OF THE CLERK

No.

In The

Supreme Court of the United States
October Term, 1996

*

LADELL HENDERSON, #N-51632,

Petitioner,

GEORGE E. DETELLA, Warden,
Respondent.

Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Seventh Circuit

¢

PETITION FOR WRIT OF CERTIORARI

a

KATHRYN T. DITMARS
McDermott, Witt & Emery
227 West Monroe Street
Chicago, Illinois 60610
(312) 372-2000

Attorney for Petitioner Ladell Henderson

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

II.

QUESTIONS PRESENTED FOR REVIEW

Whether Henderson’s custodial statement was admit-
ted erroneously and in violation of his Fifth and
Fourteenth amendment rights because, in light of
Henderson’s subpar mentality, the custodial state-
ment was not made voluntarily, nor was it made after
a voluntary, knowing and intelligent waiver of his
Miranda rights.

Whether the lower courts erred in failing to address
Henderson’s argument relating to the denial of due
process resulting from an erroneous attempted mur-
der jury instruction.

li

TABLE OF CONTENTS

Page
PETITION FOR WRIT OF CERTIORARI............ 1
OCPREGIORGS DULG. 6 sonic yo epee sae e 1
PASE SUE 0: 0k s 0.040 d diene lars 1
CONSTITUTIONAL PROVISIONS, STATUTES AND
RULES INVOLVED IN THIS CASE.............. 2
STATEMENT OF} TARE GAGE. 6st eiseeeies ss... 3
REASONS FOR GRANTING THE PETITION....... 5

I. HENDERSON’S CUSTODIAL STATEMENT
WAS ERRONEOUSLY ADMITTED IN VIOLA-
TION OF HIS FIFTH, SIXTH AND FOUR-
TEENTH AMENDMENT RIGHTS............ 5

A. Henderson’s Statement Was Not Given
Venue... . ... SiyL

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(Reserved for use by the Court)
ORDER

The petitioner comes before this court requesting a
certificate of probable cause pursuant to Fed.R.App.P.
22(b) to appeal this court’s denial of his state habeas
petition. The Circuit Court of Cook County convicted the
petitioner of murder, attempted murder of a second indi-
vidual, home invasion and conspiracy to commit murder.
The state court sentenced him to natural life imprison-
ment, thirty years for attempted murder and seven years
for conspiracy to commit murder. The petitioner appealed
his conviction in state courts and filed a habeas petition
before this court. The petitioner raised two grounds in his
habeas petition before this court: (1) Sixth Amendment
right to confront his accuser was violated when the state
court prevented him from introducing a witness to
impeach the surviving victim of the shooting and (2) Fifth
and Fourteenth Amendment rights were violated when
the state court refused to suppress petitioner’s-confession
given to an Assistant State’s Attorney. In September 1994,
this court denied the petition for the reasons set forth in
the opinion.

To prevent frivolous appeals from delaying the abil-
ity of state courts to impose sentences, Congress estab-
lished the requirement that a prisoner obtain a certificate

A-27

of probable cause to appeal. Barefoot v. Estelle, 463 U.S.
880, 892 (1983), reh’g denied, 464 U.S. 874 (1983). A certifi-
cate of probable cause requires a petitioner to make a
“substantial showing of the denial of [a] federal right.”
Id. at 893 (quoting Stewart v. Beto, 454 F.2d 268, 270 n.2 (Sth
Cir. 1971), cert. denied, 406 U.S. 925 (1972). A petitioner
may demonstrate this by showing that the issues are
debatable among jurists of reason, that a court could
resolve the issues in a different way or that the questions
are adequate to deserve further proceedings. Lozada v.
Deeds, 498 U.S. 430, 432 (1991).

After reviewing the facts, this court is convinced that
the petitioner’s current claims concerning the Fifth, Sixth,
and Fourteenth Amendments do not warrant the issuance
of a certificate of probable cause for appeal. We believe
that the state trial court, appellate courts and this court
adequately treated these and other issues, including the
petitioner’s fitness to stand trial. We feel that the record
before us presents no constitutional issue. For this reason,
we deny the petition for a certificate of probable cause
pursuant to Fed.R.App.P. 22(b).

/s/ Brian Barnett Duff

A-28

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
Eastern Division

Henderson, Ladell JUDGMENT IN A
js CIVIL CASE
George Welbourne CASE NUMBER: 91 c 7288

DOCKETED SEP 20 1994

[ ] Jury Verdict. This action came before the Court for a
trial by jury. The issues have been tried and the jury
has rendered its verdict.

[X] Decision by Court. This action came to trial or hear-
ing before the Court. The issues have been tried or
heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED Because peti-
tioner has not shown that he was denied rights guaran-
teed by the Constitution, laws or treaties of the United
States, we deny his petition and dismiss this case with
prejudice.

September 13, 1994 H. STUART CUNNINGHAM
Date Clerk

/s/ Alicia Castillo

(By) Deputy Clerk

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A-30

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES ex rel. LADELL

)
HENDERSON, )
ws )

Petitioner, ) No. 91-C-7288
vs. )
GEORGE WELBORN, Warden,
Respondent. )

MEMORANDUM OPINION

Ladell Henderson brings this petition for 28 U.S.C.
§ 2254 relief on two grounds: (1) his Sixth Amendment
right to confront his accuser was violated when the state
court refused to allow him to introduce a witness who
may have impeached the government's primary witness;
(2) his Fifth and Fourteenth Amendment rights were vio-
lated when the state court refused to supress [sic] a
statement given by petitioner to an Assistant State’s
Attorney. The statement was allegedly inadmissible
because Mr. Henderson did not waive his Miranda rights
and because his confession was not voluntary.'

“Federal habeas actions do not lie for mere errors of
state laws.” Stephens v. Miller, 13 F.3d 998, 1001 (7th Cir.

1 We asked counsel for the petitioner to submit briefs on the
question of whether Mr. Henderson was fit to stand trial,
because of his alleged deficient mental capacity. Counsel for the
petitioner has assured us that the state court adequately
considered this issue and decided that Mr. Henderson was
indeed fit to stand trial.

A-31

1994) en banc. Our inquiry is therefore limited to whether
Henderson was denied his rights under the “Constitu-
tion, laws or treaties of the United States.” Id.

“Because the admissibility of evidence in State court
Proceedings generally is a matter of State law, state court
evidentiary rulings rarely will serve as grounds for grant-
ing a writ of habeas corpus.” Lilly v. Gilmore, 988 F.2d 783,
786 (7th Cir. 1993) cert. den. 114 S.Ct. 154 (1993). Error in
the exclusion of evidence reaches constitutional magni-
tude if the excluded evidence creates a reasonable doubt
that otherwise did not exist. Id.

Here, the trial court’s decision to exclude the
impeachment testimony of Quentin Jones neither creates
a reasonable doubt a [sic] to Henderson’s guilt nor consti-
tutes a violation of the Sixth Amendment's confrontation
clause. First, there was ample evidence in the record of
Henderson’s guilt. Second, the state court did not pro-
hibit Henderson from impeaching the government's wit-
ness’ alleged use of drugs and her relationships with the
other perpetrators. Indeed, counsel for Henderson ques-
tioned the witness about her drug use, and could have
impeached her through Henderson’s testimony, since the
government's witness allegedly used drugs in his pres-
ence. The trial court did not preclude the petitioner from
attempting to impeach the witness, only from attempting
to impeach her through Jones’ testimony. Jones’ testi-
mony was not exculpatory, and, looking at the record as a
whole, we find that Henderson was not deprived of “a
meaningful opportunity to elicit available, relevant infor-
mation that was likely to effectively impeach the cred-
ibility of the witness.” U.S. v. Cameron, 814 F.2d 403, 406
(7th Cir. 1987).

~

OO

A-32

Petitioner’s argument that his post-arrest statement
was unconstitutionally admitted because he did not
waive his Miranda rights is likewise without merit. Both
the trial and appellate courts found that Henderson
knowingly waived his Miranda rights. People v. Henderson,
175 Ill. App. 3d 483, 489 (1st Dist. 1988). State-court
determinations of the validity of Miranda waivers are
presumed correct under § 2254(d). Baskin v. Clark, 956
F.2d 142 (7th Cir. 1992), cert. den. 113 S.Ct. 109 (1992).
Here, the state-court determination is supported by the
statements of the Assistant State’s Attorney.

Further, Henderson’s claims of involuntariness
because of mental deficiency is belied by the fact that he
attempted to refute the validity of his Miranda waiver
after reading his statement. Under the totality of the cir-
cumstances presented in the record, we find that Hender-
son waived his Miranda rights, and that he voluntarily
made the disputed statement. See e.g., United States v.
Carter, 910 F.2d 1524, 1529 (7th Cir. 1990), cert. den. 499
U.S. 978 (1991).

Because petitioner has not shown that he was denied
rights guaranteed by the Constitution, laws or treaties of
the United States, we deny his petition and dismiss this
case, with prejudice.

ENTER:
/s/ Brian Barnett Duff
I. DUFF,
JUDGE

UNITED STATES
DISTRICT COURT

DATE: September 13, 1994

A-33

175 Ill.App.3d 483
124 Ill.Dec. 934

PEOPLE of the State of Illinois,
Plaintiff-Appellee,

Vv.

Ladell HENDERSON,
Defendant-Appellant.

No. 85-1290.

Appellate Court of Illinois,
First District, Third Division.

Sept. 28, 1988.
Rehearing Denied Oct. 24, 1988.

Defendant was convicted in the Circuit Court, Cook
County, Earl Strayhorn, J., of murder, attempted murder,
home invasion, and conspiracy to commit murder, and he
appealed. The Appellate Court, Rizzi, J., held that: (1)
instruction did not allow jury to find defendant guilty of
attempted murder without finding that he had specific
intent to kill; (2) evidence of alleged drug use of com-
plaining witness could be excluded; (3) evidence of
defendant’s impaired intellectual capabilities and his
below average I.Q. did not establish that defendant's
statement was not made voluntarily and that he did not
knowingly waive his right to counsel; (4) testimony of
victim and police officer as to victim’s prior identification
of defendant was admissible to corroborate in-court iden-
tification; (5) sentence to term of natural life imprison-
ment for murder conviction was not abuse of discretion;
and (6) defendant could not be convicted and sentenced
on both murder and conspiracy to commit murder
charges.

A-34

Affirmed in part; reversed in part.

Steven Clark, Chicago (Cheryl M. Berdelle, of counsel),
for defendant-appellant.

Richard M. Daley, Chicago (Thomas V. Gainer, Jr.,
Christopher J. Cummings, Michael J. O’Brien, of counsel),
for plaintiff-appellee. |

Justice RIZZI delivered the opinion of the court:

Defendant, Ladell Henderson, was found guilty of
murder, attempted murder, home invasion and conspir-
acy to commit murder. Defendant was sentenced to natu-
ral life imprisonment for murder, thirty years for
attempted murder and seven years for conspiracy to com-
mit murder. Defendant was not sentenced on the convic-
tion for home invasion. On appeal, defendant argues that
(1) the trial court’s instruction on attempted murder was
erroneous in that it allowed the jury to find defendant
guilty without finding that he acted with the specific
intent to kill; (2) the trial court improperly excluded
evidence of the complaining witness’ alleged drug addic-
tion; (3) the trial court erroneously denied defendant's
motion to suppress his pre-trial statement; (4) the State
was improperly permitted to bolster the complainant's
testimony; (5) the trial court abused its discretion in
sentencing defendant to a term of natural life imprison-
ment and (6) defendant was improperly convicted and
sentenced on both murder and conspiracy to commit
murder. We affirm in part and reverse in part.

The testimony introduced by the State at trial estab-
lishes that on February 28, 1984, Mona Chavez and her

A-35

uncle, Dennis Leonard, were at home watching television.
Chavez heard a knock on the door. When Leonard
opened the door, defendant and two other men were
Standing in the doorway. Two of the men grabbed
Leonard and threw him to the floor. Defendant then
walked to Chavez and said, “You gonna die bitch.”
Defendant told Leonard that he was going to die, pulled
out a gun and fired two shots into the back of Leonard’s
head. Chavez pleaded for her life with defendant but he
told her that if he could not have her then nobody would.
Defendant then grabbed her hair, pulled her head to the
side and shot her.

Chavez stumbled down the apartment stairs and
cried for help. When the police arrived, Chavez informed
them that defendant had shot her. Chavez knew defen-
dant from the neighborhood because he had asked her
several times to be “his lady.” Chavez had also seen
defendant four days prior to the shooting because he
kicked her back door in to her apartment and took some
of her personal possessions.

Assistant State’s Attorney Kim Kardas, who inter-
viewed defendant subsequent to defendant's arrest, also
testified. Kardas testified that prior to his questions
directed to defendant, he informed defendant that he was
an assistant State’s Attorney. Kardas read defendant his
rights and defendant indicated that he understood.
According to Kardas, defendant stated that he knew what
an assistant State’s Attorney was and also knew that
Kardas was not his lawyer.

According to defendant’s statement, on the evening
of the shooting, defendant was informed by someone

A-36

named Billy Ray that there was a contract out on Chavez.
Billy Ray wanted defendant to take him to Chavez's
apartment. Defendant, Billy Ray and another man,
“Speedy,” went to Chavez’s place. Leonard opened the
door and told Billy Ray that he thought Chavez's debt of
$1500 had been settled. Billy Ray and Speedy took out
their guns and told Leonard to lie down on the floor. In
response to Chavez’s request for help, defendant
informed her that it was out of his hands. Billy Ray and
Speedy told defendant to leave the apartment. As defen-
dant left the apartment, he heard the shots that were
fired.

After Kardas took defendant’s statement and defen-
dant began to read it to make any corrections or changes,
defendant stopped on the second page when he saw the
words “Assistant State’s Attorney.” Defendant then told
Kardas, “I thought you were my lawyer.” Kardas testified
that defendant then claimed that Kardas stated that he
was defendant’s lawyer.

Prior to trial, defendant made a motion to suppress
this statement. At the hearing, the defense presented
witnesses who testified as to defendant's intellectual
capabilities. Leonard Unterberger, a psychologist, stated
that defendant has a below average I.Q. of 64. He further
stated that defendant possesses limited reading abilities.
Unterberger’s conclusions were based upon diagnostic
work performed by the psychological examiners under
Unterberger’s supervision.

The trial court denied defendant’s motion to sup-
press. Following trial, defendant was found guilty by a
jury and sentenced to natural life imprisonment for the

A-37

murder, thirty years for attempted murder and seven
years for conspiracy. No sentence was imposed for home
invasion and the conviction for this charge is not a con-
tention in this appeal.

Defendant first argues that the trial court's instruc-
tion on attempted murder was erroneous in that it
allowed the jury to find defendant guilty of murder with-
out finding that he acted with the specific intent to kill.

The jury was instructed as follows:

A person commits the offense of murder when
he kills an individual, if, in performing the acts
which cause the death, he intends to kill or do
great bodily harm to that individual; or he
knows that such acts would cause death to that
individual; or he knows that such acts create a
strong probability of death or great bodily harm
to that individual; or he is committing the
offense of home invasion.

= * *

A person commits the offense of attempt murder
when he, with intent to commit the offense of
murder, does any act which constitutes a sub-
stantial step toward the commission of the
offense of murder.

* * aa
The offense attempted need not have been com-

mitted. To sustain the charge of attempt, the
State must prove the following propositions:

* First, that the defendant, or one for whose
conduct he is legally responsible, performed
an act which constituted a substantial step
toward the commission of the offense of

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murder; and second, that the offender, or
one for whose conduct he is legally respon-
sible, did so with intent to commit the
offense of murder.

The instruction as given makes specific reference to
the “intent to commit the offense of murder.” However,
relying on People v. Kraft (1985), 133 Ill.App.3d 294, 88
Ill.Dec. 546, 478 N.E.2d 1154, defendant argues that this
instruction allowed the jury to convict him if they found
that he possessed less than the specific intent to commit
murder. We disagree.

In Kraft, the court held that because attempted mur-
der requires the mental state of intent to kill, the instruc-
tion given which “permitted a conviction upon a finding
that a defendant acted with knowledge that his action
created a strong probability of death even if the jury
believed defendant did not intend to kill anyone” was
defective. 133 Ill.App.3d 294, 302, 88 Ill.Dec. 546, 552, 478
N.E.2d 1154, 1160.

Kraft however is distinguishable from the case at bar.
In Kraft, the defendant was charged only with attempted
murder. In the instant case however, defendant was
charged with both attempted murder and murder. It
would be illogical to say that the court could not give an
instruction on murder containing alternate states of mind
when defendant was in fact charged with murder and
was entitled to an instruction thereon. We therefore find
defendant’s argument unpersuasive and conclude that
the instructions as given did not allow the jury to find
defendant guilty of attempted murder without finding
that he had the specific intent to kill. Accordingly, the

A-39

trial court did not err in giving the instructions to the
jury.

Defendant next argues that the trial court improperly
excluded evidence of the complaining witness’ alleged
drug addiction. Defendant asserts that evidence of habit-
ual drug use is a significant fact in evaluating the cred-
ibility of a witness. While we agree that a witness’ drug
addiction at the time that an offense or event occurred is
a proper area for cross-examination, the trial court is
vested with discretion to determine the admissibility of
evidence. Thus, the trial court’s determination will not be
disturbed on review absent an abuse of that discretion.
People v. Rogers (1985), 135 Ill.Apv.3d 608, 624, 90 IIl.Dec.
660, 671, 482 N.E.2d 639, 650.

Here, defendant attempted to establish that the vic-
tim had been observed using drugs “on numerous occa-
sions” prior to the night of the crime. On cross-
examination, the victim was questioned about her rela-
tionship with a defense witness who the defense asserted
would testify about the victim’s alleged drug use. The
victim denied any involvement with this defense witness
as well as any drug use. Defendant did not question the
victim any further regarding this matter. However, defen-
dant later attempted to introduce evidence of the victim’s
alleged drug use. Following defendant's offer of proof,
the trial court excluded this evidence finding that “the
only reason [you're] doing it is to dirty up the witness.”

Defendant made no reference or qualification as to
when the victim allegedly used drugs or the extent of
impairment from the use of any drugs. Thus, we are
inclined to agree with the trial court that such evidence

A-40

would not shed light on the victim’s ability to adequately
perceive the events as they occurred on the night of the
offense. To the contrary, this evidence would simply
“dirty up” the witness in the eyes of the jury. Accord-
ingly, we find that the trial court properly excluded any
evidence of the victim’s alleged drug addiction.

Defendant also argues that the trial court erred in
denying defendant’s motion to suppress his pre-trial
statement. Defendant presented testimony evincing his
impaired intellectual capabilities and his below average
I.Q. Based upon this evidence, defendant argues that his
statement was not made voluntarily and that he did not
knowingly waive his right to counsel.

We initially note that evidence of limited intellectual
capacity alone does not indicate that a defendant is inca-
pable of waiving his constitutional rights and making a
voluntary confession. People v. Ellison (1984), 126
Ill.App.3d 985, 992, 81 Ill.Dec. 222, 226, 466 N.E.2d 1024,
1028. To the contrary, it is only one of the issues to be
considered in reviewing the totality of the circumstances
under which a confession is made. Moreover, the police
are not required to conduct a mental examination of the
accused with a view to ascertaining his ability to compre-
hend his rights as a prerequisite to accepting the
accused’s voluntary waiver. People v. Cooper (1975), 30
Ill.App.3d 326, 332, 332 N.E.2d 453, 458. The particular
facts and circumstances of each case as well as the experi-
ence, conduct and background of the accused must be
considered in determining whether a waiver is know-
ingly and intelligently made.

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In reviewing the totality of circumstances surround-
ing defendant's statement, we find that a preponderance
of the evidence demonstrates that the defendant under-
stood and knowingly waived his constitutional rights.
Where as here the record supports a finding that defen-
dant’s subpar mentality did not interfere with his ability
to comprehend the meaning of a voluntarily made state-
ment or a right to counsel, his statement will not be
suppressed.

Defendant next argues that the State was improperly
permitted to bolster the victim’s in-court testimony with
Prior consistent out-of-court statements. Defendant
objects to the victim’s testimony of an identification she
made to the police the morning following the incident.
Defendant also objects to an investigating police officer’s
testimony of the identification the victim made at the
scene.

In People v. Rogers (1980), 81 Ill.2d 971, 44 Ill.Dec. 254,
411 N.E.2d 223, our Supreme court recognized that
although a witness may not testify as to out-of-court
statements made for the purpose of corroborating his in-
court testimony, that rule does not apply to statements of
identification. 81 Ill.2d, 571, 578, 44 Ill.Dec. 254, 258, 411
N.E.2d 223, 227. The court noted that evidence of out-of-
court identifications by both the identifying witness and
a third person who saw or heard the identification is
admissible for the limited purpose of corroborating the
in-court identification. The court stated that such corrob-

oration is justified to rebut the notion that “by the time of
trial, the witness’ mind has become so conditioned that
there is little likelihood that he would not identify the

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person in court.” 81 Ill.2d 571, 578, 44 Ill.Dec. 254, 258,
411 N.E.2d 223, 227.

Thus, based upon the holding in Rogers, we find that
the trial court properly permitted the victim as well as
the police officer to testify as to the victim’s prior identi-
fication of defendant.

Defendant next argues that the trial court abused its
discretion in sentencing defendant to a term of natural
life imprisonment. We disagree.

The imposition of a sentence is a matter of judicial
discretion, and absent an abuse of that discretion, the trial
court’s determination will not be disturbed on appeal.
People v. Lipa (1982), 109 Ill.App.3d 610, 614, 65 Ill.Dec.
207, 210, 440 N.E.2d 1062, 1065. Moreover, a trial court’s
determination of a sentence is entitled to great deference
and weight on appeal, because it is in a better position
than a reviewing court to determine the proper sentence.
The trial court has the opportunity to consider the subjec-
tive circumstances in each particular case such as the
defendant’s (1) demeanor and character; (2) mentality; (3)
abnormal or subnormal tendencies and (4) natural incli-
nation or aversion to commit crime. People v. Reese (1984),
121 Ill.App.3d 977, 989, 77 Ill.Dec. 390, 398, 460 N.E.2d
446, 454.

In the case at bar, the State, in aggravation, presented
evidence that defendant had been adjudicated a delin-
quent three years prior for attempted murder and aggra-
vated battery. The State also introduced evidence that
defendant was on probation for burglary at the time of
this offense. In light of the nature of this crime and

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defendant’s backsround, we find that the trial court did
not abuse its discretion in sentencing defendant.

Defendant next argues that he was improperly con-
victed and sentenced on both murder and conspiracy to
commit murder because there is a statutory prohibition
against convictions for both the inchoate and the princi-
pal offense. The State concedes that under Section 8-5 of
the Criminal Code “no person shall be convicted of both
the inchoate and the principal offense.” Ill.Rev.Stat.1985,
ch. 38, par. 8-5. Accordingly, we vacate defendant’s con-
viction for conspiracy to commit murder, and affirm
defendant’s conviction and sentence for attempted mur-
der and murder.

AFFIRMED IN PART; VACATED IN PART.

McNAMARA and FREEMAN, JJ., concur.

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STATE CUSTODY

§ 2254. State custody; remedies in Federal courts

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

(b) An application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of
a State court shall not be granted unless it appears that
the applicant has exhausted the remedies available in the
courts of the State, or that there is either an absence of
available State corrective process or the existence of cir-
cumstances rendering such process ineffective to protect
the rights of the prisoner.

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

(d) In any proceeding instituted in a Federal court
by an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court, a
determination after a hearing on the merits of a factual
issue, made by a State court of competent jurisdiction in a
proceeding to which the applicant for the writ and the
State or an officer or agent thereof were parties, evi-
denced by a written finding, written opinion, or other
reliable and adequate written indicia, shall be presumed

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to be correct, unless the applicant shall establish or it
shall otherwise appear, or the respondent shall admit -

(1) that the merits of the factual dispute
were not resolved in the State court hearing;

(2) that the factfinding procedure
empioyed by the State court was not adequate to
afford a full and fair hearing;

(3) that the material facts were not ade-
quately developed at the State court hearing;

(4) that the State court lacked jurisdiction
of the subject matter or over the person of the
applicant in the State court proceeding;

(5) that the applicant was an indigent and
the State court, in deprivation of his constitu-
tional right, failed to appoint counsel to repre-
sent him in the State court proceeding;

(6) that the applicant did not receive a full,
fair, and adequate hearing in the State court
proceeding; or

(7) that the applicant was otherwise
denied due process of law in the State court
proceeding;

(8) or unless that part of the record of the
State court proceeding in which the determina-
tion of such factual issue was made, pertinent to
a determination of the sufficiency of the evi-
dence to support such factual determination, is
produced as provided for hereinafter, and the
Federal court on a consideration of such part of
the record as a whole concludes that such fac-
tual determination is not fairly supported by the
record:

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And in an evidentiary hearing in the proceeding in the
Federal court, when due proof of such factual determina-
tion has been made, unless the existence of one or more
of the circumstances respectively set forth in paragraphs
numbered (1) to (7), inclusive, is shown by the applicant,
otherwise appears, or is admitted by the respondent, or
unless the court concludes pursuant to the provisions of
paragraph numbered (8) that the record in the State court
proceeding, considered as a whole, does not fairly sup-
port such factual determination, the burden shall rest
upon the applicant to establish by convincing evidence
that the factual determination by the State court was
erroneous.

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

(f) A copy of the official records of the State court,
duly certified by the clerk of such court to be a true and
correct copy of a finding, judicial opinion, or other reli-
able written indicia showing such a factual determination

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by the State court shall be admissible in the Federal court
proceeding.

ANTITERRORISM ACT OF 1996
P.L. 104-132 Sec. 104
SEC. 104. SECTION 2254 AMENDMENTS.

Section 2254 of title 28, United States Code, is
amended -

(1) by amending subsection (b) to read as
follows:

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

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

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

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

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

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

(2) by redesignating subsections (d), (e), and (f)
as subsections (e), (f), and (g), respectively;

(3) by inserting after subsection (c) the follow-
ing new subsection:

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

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

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

(4) by amending subsection (e), as redesignated
by paragraph (2), to read as follows:

“(e)(1)_ In a proceeding instituted by an application
for a writ of habeas corpus by a person in custody pur-
suant to the judgment of a State court, a determination of
a factual issue made by a State court shall be presumed to

A-49

be correct. The applicant shall have the burden of rebut-
ting the presumption of correctness by clear and convinc-
ing evidence.

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

“(A) the claim relies on —

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

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

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

(5) by adding at the end the following new
subsections:

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

A-50

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0368%3A1. Public record. Not legal advice.