NOTES FROM A JAILHOUSE LAWYER: “Great Expectations” or “The Unfairness of the AEDPA's One Year Time Limit for Collateral Attacks on a Judgment of Conviction”
By Terry Antalek, Ellsworth Correctional Facility
Terry Antalek is an inmate housed in the Ellsworth Correctional Facility, in Ellsworth, Kansas. He assists inmates with their legal problems.
Notes from a Jailhouse Lawyer is a recurring column from Liberation Lit’s Resisting Invisibility blog. For each installment, we invite a jailhouse lawyer—an incarcerated individual who has taught themselves law to aid their case and the cases of their community on the inside—to submit an essay examining their experiences with criminal law.
Twenty-six years have passed since Congress enacted the Anti-Terrorism Effective Death Penalty Act (AEDPA) in 1996. The act imposed, for the first time, a fixed time limit upon prisoners seeking to file a federal habeas corpus petition as a collateral attack on a judgment of conviction. A habeas corpus petition is, quite simply, an action against the state that allows a prisoner to challenge the court ruling that originally led to their confinement. The act requires a state prisoner to file his petition within one year after his state conviction has become final (28 U.S.C. 2244 (d) (1) (a)). The one year period does not include the time during which an application for state collateral review is pending in the state courts, but the filing process itself is incredibly complex. ($2244(d)(2).
Although the 26-year-old act is long established, it is nevertheless unfair because of the "Great Expectations" it places upon the state prisoner. Many newly convicted individuals are not even aware that habeas corpus remedies exist. Many attorneys never inform their convicted clients of these remedies. Often it's too late when the prisoner learns of these remedies. Even if the convict has learned that such remedies exist, he or she usually has no idea how to go about filing the petition for relief.
The cost of hiring an attorney to review a case, and then to file a collateral attack, can be upwards of $50,000 or more. Most defendants could not afford to pay trial counsel, so forking up that kind of money is usually out of the question. This means the convict will have to file pro se (representing himself) or may have to rely on the help of a jailhouse lawyer.
Most jailhouse lawyers are not really lawyers at all, rather, they are fellow inmates who have learned how to file a wide variety of legal documents to initiate a legal action, to help others. However, most are not formally trained. Thus, the prisoner often has to rely on the assistance of these jailhouse lawyers to craft and manage their legal argument. There is no constitutional right to the assistance of an attorney for a collateral attack.
After the enactment of the AEDPA, most states followed the federal example and enacted their own time limits for state collateral attacks. Kansas followed the one year time limit. As a result, once your conviction is "final," the one year clock begins to run for both the state and federal remedies. This means you have one year, while in prison, to create and file the necessary motions and paperwork, often without any professional legal guidance whatsoever. Once you file an application for habeas relief in the state courts, the federal clock stops running until the state remedy is completed. Therefore, getting a state case on file as soon as possible can be beneficial.
But the one year time limit is not a lot of time, especially if the prisoner has to learn the law himself. Compare the number of years of formal schooling the prosecutor attended, and likely many hours of working under experienced attorneys, before the prosecuting attorney began practicing the law. And they've likely been prosecuting for some time. The same is true of the judges, even more so, whom the prisoner must try to impress with the merit of the argument.
On the other hand, the inmate is often not well educated–they might have a high school diploma or equivalent. Some may be more educated, but likely not so much in the law. If the inmate is representing himself in the habeas petition, he will be expected to (1) review his or her own case, (2) learn the procedural law to be able to comply with the procedures necessary to file a habeas petition, (3) learn how to do legal research, (4) learn how to analyze a case. (5) learn how to discover and obtain the evidence to support the argument, (6) how to apply case law to an argument (7) how to argue against the highly trained opposition, (8) how to write the petition, motion, brief, etc., (9) all while following the legal standards, court rules, supreme court rules, statutes and regulations, and the decisions of authority. Then there are the many different types of errors to be understood; whether it is a plain error, clear error, or a harmless error. There are so many different aspects of criminal law to be mastered in that one year time limit. The task is daunting.
One must know jurisdiction and venue, the rules of evidence, and the grounds for objections. Then, there is prosecutorial misconduct, judicial misconduct, jury instructions, hearsay, and the hearsay exceptions. All of these terms are likely to be completely foreign to a newly imprisoned individual trying to appeal their conviction. The list of things one must learn to effectively generate a habeas petition for relief, both under state and federal law, is mountainous. One must understand the objective standards of reasonableness there are when it comes to ineffective assistance of counsel. To have a chance at success, the person filing habeas corpus must learn case decisions, holdings, findings, and rulings which can fill a library's bookshelves. The list goes on and on.
It is fundamentally unfair to expect someone newly convicted of a crime to be able to learn, understand, and be able to apply the laws in the same manner expected of professionally schooled and trained attorneys. The AEDPA's one year time limit is designed to hinder the filing of these collateral attacks upon one's conviction, to reduce the number of cases which likely have merit from ever coming to the bench. Placing such expectations upon the newly convicted is just another cog in the incarceration machine that keeps so many behind bars from getting relief from their conviction or sentence.
What does it matter if it takes six, eight, or ten years to discover that a conviction was wrongfully reached by way of violating the Constitution, or a United States Supreme Court ruling? Is there an expiration date for fairness and equality? It's high time that these time limits be rescinded.
