2254_Steps

1.        Assuming that all of the issues to be raised in the habeas corpus petition are (a) federal
constitutional issues, and (b) they have been considered by the Oklahoma Court of Criminal
Appeals, a Petition for a Writ of Habeas Corpus is filed in one of the three federal district courts
in Oklahoma (Oklahoma City -- Western District; Tulsa -- Northern District; Muskogee -- Eastern
District). The petition is filed in the federal district court which has venue for the county where
the state conviction arose, NOT the county in which the petitioner is incarcerated. The filing fee
for a habeas corpus petition is currently $5.00.

2.        The Petition must be filed within the time limits imposed by federal law -- one year from
the date the state court conviction became final. (See our page on habeas corpus for more
about calculating the due date).

3.        The Petition must be in a certain format, or contain all of the information required by the
local court rules. If the Petition meets the filing requirements (timeliness and format), the case
is referred to a United States Magistrate Judge for an initial review.

4.        If the Petition does not state a proper claim for relief, or it is out of time, the Magistrate
Judge will recommend to a United States District Judge that the case be dismissed. If the case
passes the Magistrate Judge's initial review, a copy is sent to the Oklahoma Attorney General's
Office calling for a response within a certain time.

5.        The Attorney General will file a response, or answer, to the Petition, urging that it be
denied. The Petitioner is supposed to be served a copy of the answer or response by the
Attorney General.

6.        The Petitioner may, in her discretion, file a reply to the Attorney General's answer. A reply
must not raise new issues, but respond directly to the arguments asserted by the Attorney
General.

7.        In some cases, but very few, the Magistrate Judge will hold an evidentiary hearing on
certain issues in the Petition. At that hearing, the burden is on the Petitioner to establish a basis
for the issue.

8.        With or without an evidentiary hearing, the Magistrate Judge will issue a report. In the
Western District, it is called a Report and Recommendation. In the other two districts, it is called
Findings and Recommendations. The vast majority of the time, the recommendation will be to
deny the Petition.

9.        The Petitioner then has ten days, or extra whatever time period is provided by the
Magistrate Judge, to file an "Objection" to the Magistrate Judge's report. The objection must be
specific, pointing out the specific errors, and contend that the Petition should be granted. If an
objection is not filed, the recommendation will be accepted, and the losing party has lost the
right to appeal. If the objection is timely filed, the District Judge must conduct a de novo (brand
new) review of the Petition.

10.        The District Judge will consider the Objection, the Petition, the Attorney General's
answer, and the Magistrate Judge's report, and enter an order and judgment concerning the
case. The vast majority of the time, the Petition is denied.

11.        The Petitioner (or State, if it lost), has thirty days to file a Notice of Appeal to the United
States Court of Appeals for the Tenth Circuit. This notice is filed in the district court, not the
court of appeals. The filing fee for a Notice of Appeal is currently $255.00.

12.        Before being allowed to appeal, the District Judge must consider granting a Certificate
of Appealability as to each issue in the Petition. Only the issues granted a Certificate can be
appealed. However, the Petitioner can ask the court of appeals to grant a Certificate on other
issues.

13.        The Tenth Circuit rules have timetables for when briefs must be filed, depending on
when certain events happen in the district court. Pro se petitioners (those acting without
lawyers) receive special instructions from the appellate court on how to proceed. Appellants
with lawyers have briefs filed, with an appendix of the district court's record. The Attorney
General responds. The Petitioner may file a reply brief if necessary.

14.        Sometimes the appellate court grants oral argument on the case. The attorneys argue
the appeal before a three-judge panel of the Court, which is randomly assigned to consider the
appeal. The overwhelming majority of habeas corpus appeals are decided without oral argument.

15.        After considering the briefs and the record, and oral arguments if they were held, the
three-judge panel issues an opinion either denying or granting the appeal. Of course, most of
the time the appeal is denied.

16.        The panel's decision is essentially the end of the case. A request for rehearing can be
made, including rehearing before the en banc court (all twelve judges), and a petition for
review can be filed at the U.S. Supreme Court. These efforts are almost always futile, and a
tremendous waste of time and resources. Of course, if the Petitioner has won the appeal, the
State of Oklahoma will most likely seek rehearing and may seek review at the Supreme Court.

17.        If the Petitioner has won habeas corpus, the relief granted is, almost without exception,
a new state trial. Rarely is there an issue that entitles the Petitioner to have the charges
dismissed, although we have seen that happen several times.

18.        The statutory authority for habeas corpus is found at Title 28 of the United States Code,
Section 2254 and related sections.