Sunday we looked at the tremendous hurdle that petitioners have to jump to meet the burden of proof in habeas corpus cases. Today we shall look at some additional hurdles set by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). In In re: Christopher Sepulvado, Sepulvado who is scheduled to be put to death Wednesday for the 1992 murder of his step child challenges the Federal District Court’s transfer of his petition for a writ of habeas corpus, claiming inter alia, incompetence of the counsel who represented him on his initial petition for a writ of habeas corpus to the Fifth Circuit Court of Appeals.
Sepulvado was convicted in 1993. He filed a direct appeal and lost. Then he filed a writ of habeas corpus in the United States District Court which was turned down in 2002. The question before the court is whether Sepulvado’s current petition is a “second or successive petition.” If it is a “second or successive” petition, Sepulvado the District Court had no jurisdiction to consider it since Sepulvado failed to get a Certificate of Appealability (COA) from the Circuit Court prior to filing the petition in the District Court pursuant to 28 USC 2844(b)(3)(A) which reads: “Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.”
The rule regarding the legality of second or successive petitions is found in 28 USC 2844(b)(3)(2) which states:
A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)
(i)the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and(ii)the facts underlying the claim, if proven and viewed in light of the evidence as a whole, 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.
Sepulvado argues that his petition is not a second or successive petition because it only became viable after the Supreme Court decision in Martinez v. Ryan. The general rule is that since there is no right to counsel in pursuing a writ of habeas corpus, there is no right to obtain a writ for incompetence of counsel in matters involving writs of habeas corpus. However in Martinez the Supreme Court ruled that in situation where state law prohibits certain matters from being raised on direct appeal and permits the matters to be raised only with a writ of habeas corpus, defendants have a right to counsel in the initial-review collateral proceedings. But in Louisiana, Sepulvado could raise incompetence of counsel in direct appeal therefore he did not have a right to counsel or to claim incompetence of counsel in the habeas matter.
P.S. Judge James Brady of the Middle District of Louisiana has issued a temporary stay of Sepulvado’s execution unrelated to the issues raise in the writ of habeas corpus