Habeas Corpus

1. Article 2 § 14 AZ Constitution
   “the privilege of the writ of habeas corpus shall not be suspended by the authorities of the state.”
   
   
2. Article 2, § 30 AZ Constitution and 5th Amendment of US Constitution.
   “The state is required to obtain a new indictment or information to begin a new proceedings.”
   
   
3. USCA 6
   28 USCA § 2254
   McCrae v. Blackburn, 107 S. Ct. 466, 479 US 965, 93 L.ED.2d 411 C. A. 5 (L.A.) 1986
   Habeas petitioner who alleged ineffective assistance of counsel on appeal had burden of proving that counsels errors were so serious that counsel was not functioning as counsel guaranteed to petitioner by sixth amendment, or counsel did not entirely failed to challenge prosecutions case.
   
   
4. USCA constitutional amendment 6
   Walberg v. Israel, 766 F.2d 1071, cert denied 106 S. Ct. 546, 474 U. S. 1013, 88 L.Ed.2d 475 C. A. 7 (Wis.) 1985
   If state is not a passive spectator of inept defense, but a cause of the inept defense, burden of showing prejudice resulting from ineffective assistance of counsel is lifted.
   
   
5. A.R.Cr.P. Rule 31.17(b)
   The appellate courts authority: [I]ncludes affirming reversing, or modifying the judgment, correcting or reducing the sentence and affirming, modifying or vacating any order made by the lower court, including but not limited to those concerning new trial, arrest of judgment, or dismissal of the indictment or information. The appellate court may in addition remand a case for a new trial, and take any other action that appears just and proper under the circumstances.
   
   
6. A.R.Cr.P. Rule 32.3 (1992)
   The Supreme Court in enacting Rule 32 does not intend to restrict by this rule the constitutional scope of habeas corpus.
   
   
7. A.R.S. 13-4124(B)
   The court has authority to release a habeas petitioner, but not a rule 32 petitioner – on conditions pending decision on the merits.
   
   
8. Habeas Corpus Ad Prosequendum
   Latin: that you have the body to prosecute. Historically a writ in criminal cases to bring before a court a prisoner to be tried on charges other than those for which the prisoner is currently being confined.
   
   
9. Habeas Corpus Ad Subjiciendum
   Latin: that you have the body to subject to. Historically a writ directed to someone detained another person and commanding that the detainee be brought to court.
   
   
10. Arizona v. Washington, 434 US 497, 501 (1978)
    State prisoners double jeopardy claim review on the merits in federal habeas corpus actions prior to re-trial.
    
    
11. Bae v. Peters, 950 F.2d 469 (7th Cir. 1991)
    Federal government may grant habeas relief to state prisoner only for violations of federal law.
    
    
12. Beasley v. Holland, 649 F. Supp. 561, appeal dismissed 841 F.2d 1122, cert denied 109 S.Ct. 156, 102 L.Ed.2d 127, S.D. W. VA. 1986
    Petitioners claim that witness testimony was false and that such false statements were knowingly used by state officials to obtain his conviction for murder were not supported by any factual basis, at best petitioner failed to raise ground for relief on writ of habeas corpus.
    
    
13. Barry v. Bergen County Probation Dept., 128 F.3d 152, 159-160 (3rd Cir. 1997),cert. denied, 118 S.Ct. 1097 (1998)
    Community service obligation imposed upon the defendant satisfied the in custody requirement of § 2254 (a) despite lack of continuous supervision and state's contention that petitioner's failure to complete community service would result in a fine, not imprisonment, because defendant was nevertheless subject to restrictions of his liberty not shared by the general public.
    
    
14. Bell v. US, 48 F.3d 1042 (8th Cir. 1995)
    If prisoner chooses to file habeas petition to attack execution of his sentence, prisoner must do so in court with jurisdiction over his present custodian.
    
    
15. Biller v. Lopes, 655 F.Supp. 292 affirmed 834 F.2d 41 D. Conn. 1987
    Once petitioner established his infringement of constitutional right, burden shifts to state to establish that error was harmless.
    
    
16. Bribiesa v. Galaza, 215 F.3d 1015, to 18 (9th Cir. 2000)
    Dismissal based on state procedural default presents issues of law reviewed de novo.
    
    
17. Burden v. Zant, 510 US 126 L.Ed2.d 611, 114 S.Ct. (1994)
    Federal Court of Appeals held to have mistakenly upheld denial of habeas relief, where (1) denial was based on finding not made by federal district court, and (2) evidence supported accused's claim of ineffective assistance of counsel.
    
    
18. California v. Roy, 117 S.Ct. 337 (1996) (per curiam)
    The court reversed and remanded for decision of the en banc 9th circuit which had granted habeas relief on the ground that the trial court's erroneous instruction, which fails to include the essential element of intent in a first degree murder charge was not harmless. The court found that the 9th circuit's harmless error analysis which drew primarily from concurrence in Carella v. California, 491 US 263 (1989) and allowed a finding of harmlessness, "only if review of the facts found by the jury establishes that the jury necessarily found the automated element." 81 F.3d 863, 867 (1996), was not sufficiently differential in light of the court's decision in Brecht and O'Neal. Because the error at issue was clearly trial error on the state courts.. Applied harmless error analysis of the strict [Chapman] variety, the court determined that the standard set forth in Brecht and O'Neal, rather than analysis suggested in Carella was to be employed in assessing harmless Vel Non. Justice Scalia, concurring in their man, cited Sullivan v. Louisiana, 508 US 275 (1993) and suggested that, because a defendant is entitled to a verdict that he is guilty of each necessary element of the crime, the error at issue here can be harmless only if the jury verdict on the other points effectively embraces one or if it is impossible, upon the evidence, to have found, what the verdict did find without finding this point as well. This analysis, however must still be conducted within the framework of Brecht and O'Neal.
    
    
19. Capps v. Sullivan, 13 F.3d 350 (10th Cir. 1993)
    Effect of writ of habeas corpus is to vacate conviction and release petitioner from custody.
    
    
20. Ceja v. Stewart, 97 F.3d 1246 (9th Cir 1996)
    Multiple errors, even if harmless individually, may entitle petitioner to habeas relief if their cumulative effect prejudiced defendant.
    
    
21. Chacon v. Wood, 36 F.3d 1459 (9th Cir. 1994)
    Habeas petition challenging underlying conviction is never moot simply because, subsequent to its filing, petitioner has been released from custody.
    
    
22. Clark v. Warden Md. Penitentiary, CA.4 (Md.) 1961, 293 F.2d 479, 82 S.Ct. 1149, 369 US 877, 8 L.Ed.2d 279,cert. denied
    Allegations of habeas corpus petition must be excepted as true, for purpose of appeal from denial without hearing, where neither state nor federal courts given hearing on factual issues.
    
    
23. Coleman v. Thompson, 501 US , 115 L.Ed.2d 640, 111 S.Ct. 2546 (1991)
    Caswell v. Ryan, 953 F.2d 853 (3rd Cir. 1992)
    Under "exhaustion" principle, absent valid excuse, a prisoner must first present all federal claims to state court before the district court may entertain a federal habeas petition.
    
    
24. DeAngelo v. Wainwright, 781 F.2d 1516, cert. denied, 107 S.Ct. 444, 479 US 953, 93 L.Ed.2d 392 C.A.11 (Fla.) 1986
    Rule that state prisoner is entitled to federal habeas corpus relief if fourth amendment claim is fully and fairly litigated in state court does not extend to fifth and sixth amendment's as well.
    
    
25. Del Raine v. Carlson, 826 F.2d 698 (7th Cir. 1987)
    Relief sought by federal inmate in form of expungement of disciplinary sanction from his record was within habeas corpus jurisdiction; as inmate's objective in seeking relief was to enhance his prospects for parole, in effect he was seeking to accelerate his release from prison.
    
    
26. English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998)
    Gideon v. Wainwright, 372 US 335, 344 (1963)
    Evitts v. Lucy, 469 US 387, 394-96 (1985)
    Because this right lies at the very foundation of the adversary system of criminal justice, habeas courts must be particularly vigilant in scrutinizing the adequacy of state rules of procedural default which have the effect of barring federal habeas review of claim of ineffective assistance.
    
    
27. Faye v. Noia, 372 US 391, 401-401 (1963)
    “that in a civilized society, government must be accountable to the judiciary for a mans imprisonment; if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to immediate release.”
    
    
28. Field v. Calderon, 125 F.3d 757, 7 59-60 (9th Cir. 1997)
    The right to the effective assistance of counsel is fundamental and essential to fair trial.
    
    
29. Foster v. Lockhart, 9 F.3d 7 22,727 (8th Cir. 1993)
    Writ granted unless state retry's petitioner within 120 days to correct constitutional defects that make petitioner's current custody unlawful.
    
    
30. Franklin v. White, 803 F.2d 416, cert. denied, 107 S.Ct. 1904,481 US 1020, 95 L.Ed.2d 510
    Due process claims relating to defendant's receipt of fair notice of charge against him are cognizable in habeas corpus. See: USC.A. 5, 14.
    
    
31. Gilliam v. Foster, 75 F.3d 881, 889 (4th Cir. 1996)
    Pre-trial habeas review of double jeopardy claim proper because state remedies exhausted.
    
    
32. Glenn v. Dallman, 686 F.2d 418, 4 22-23 (6th Cir. 1982)
    Conviction reclassified when petitioner convicted of aggravated burglary but facts and jury instructions only supported conviction for burglary and adverse collateral consequences might result if conviction and not reclassified or grant the petitioner a re-trial on specific issues.
    
    
33. Green v. Abrams, 984 F.2d 41 (2nd Cir. 1993)
    Escobar v. O'Leary, 943 F.2d 711 (7th Cit. 1991)
    

    1. Writ of "habeas corpus" functions to grant relief from unlawful custody or imprisonment.
    2. A writ of habeas corpus may be granted to person being held in custody in violation of the Constitution or the laws of the United States.

    
    
34. Green v. Arn, 809 F.2d 1257, cert. granted and vacated, 108 S.Ct. 52, 98 L.Ed.2d 17 on remand 839 F.2d 300, cert. denied, 109 S. Ct. 847,102 L.Ed.2d 979 C.A.6 (Ohio) 1987
    Absence of counsel during the taking of evidence of defendant's guilt is prejudicial per se and justifies automatic grant of habeas corpus writ without any opportunity for harmless error inquiry.
    
    
35. Gwin v. Snow, 870 F.2d 616 (11th Cir. 1989)
    Prisoner seeking injunctive relief which lessens period of confinement must bring claim in a habeas corpus petition.
    
    
36. Harbel Oil Company v. Superior Court, 86 Ariz. 303, 307, 345, P.2d (1959)
    The court recognized that it may simply affirm or reverse or it may also issue specific directions.
    
    
37. Harding v. Lewis, 641 F.Supp. 979, Affirmed 834 F.2d 853, Cert. 109 S.Ct. 182, 102 L.Ed.2d 72, 82 S.Ct. 23
    Evidentiary hearing on petition for habeas corpus is required in District Court if petitioner has alleged facts which if proven late entitled to relief; no such hearing is required if merits of petitioners claim were resolved in state court.
    
    
38. Harding v. Lewis, 641 F.Supp. 979, affirmed 834 F.2d 853, cert. denied 109 S.Ct. 182, 102 L.Ed.2d 151 D. Ariz. 1986
    Counsels advice to proceed pros se would constitute grounds for habeas corpus relief, due to ineffective assistance of counsel, where there is factual or legal defense, or defendant does not understand attorneys advice. See also: USCA amendment 6.
    
    
39. Harris v. Champion, 15 F.3d 1538 (10th Cir. 1994)
    Givens v. Green, 12 F.3d 1041 (11th Cir. 1994)
    Hollis v. Davis, 941 F.2d 1471 (11th Cir. 1991)
    Inexcusable or inordinate delay by state in processing claims for relief may make state process ineffective to protect habeas petitioners rights and may excuse exhaustion of state remedies.
    
    
40. Hayes v. Morgan, 58 F.Supp. 2d 817, 831 (N.D. Ohio, 1999)
    The court granted relief on petitioner's claim that he was denied ineffective assistance of appellate counsel as a result of counsel's erroneous filing of notice of appeal having the wrong case number and failure to take timely corrective action, which resulted in dismissal of petitioner's direct appeal. The conditional grant of relief required the state of Ohio to reinstate petitioner's appeal, with the appointment of new counsel, and provide a full transcript of all proceedings from the lower court to the newly appointed counsel.
    
    
41. Hill v. Lockhart, 28 F.3d 832, 847- 48 (8th Cir. 1994)
    Sentence vacated and state ordered to retry penalty for charges on which petitioner convicted. Reclassifying petitioner's conviction.
    
    
42. Holman v. State, 5 Ariz. App. 311, 313, 426 P.2d 411 (1967)
    “[A] proceedings commenced by the filing of a petition for a writ of habeas corpus primarily concerns jurisdiction and required that the petitioner be found to be held illegally.” See also:
    State v. Superior Court, 25 Ariz. 226, 231, 215 P.538 (1923)
    
    
43. Hunt v. Warden Md. Penitentiary, CA.4 (Md.) 1964, 325 F.2d 936
    Factual allegations in petition for writ of habeas corpus or excepted as true for purpose of appeal from denial of petition without a hearing.
    
    
44. Joyner v. King, 786 F.2d 1317, reh. denied, 795 F.2d 84, cert. denied, 107 S.Ct. 653, 479 US 1010, 93 L.Ed.2d 708 C.A. 5 (LA.) 1986
    Federal evidentiary hearing is mandated where alleged facts, if true, would entitle habeas petitioner to relief or where petitioner did not receive full and fair evidentiary hearing in state court.
    
    
45. Kaufman v. US, 394 US 217, 22 L.Ed.2d 227, 89 S.Ct. 1068 (1969)
    Federal Habeas Corpus relief is not to be denied to prisoners alleging constitutional deprivations solely on the ground that relief should have been sought by appeal.
    
    
46. Kirkpatrick v. Blackburn, 777 F.2d 272, certiorari denied 106 S.Ct 2907, 476 US 1178, 9 0 L.Ed. 2d 993, appeal after remand 870 F.2d 276
    Petitioner for habeas corpus must establish the trial and error was not merely abuse of discretion, but was so grave as to amount to denial of his constitutional right to substantive due process, that is, that error made trial fundamentally unfair.
    
    
47. Kirkpatrick v. Blackburn, 777 F.2d 272, cert denied 106 S. Ct. 2907, 476 US 1178, 90 L.Ed.2.d 993, appeal after remand 870 F.2d 276, rehearing denied C. A. 5 (L.A.) 1985
    If state court is found to have abridged petitioner's constitutional rights, burden shifts to prosecution to show that error was harmless beyond reasonable doubt.
    
    
48. Kontakis v. Beyer, 19 F.3d 110 (3rd Cir. 1994)
    Constitutional error in state court is not harmless if it had substantial and injurious effect or influence in determining jury's verdict giving rise to habeas case.
    
    
49. Kotteakos v. US, 328 US 750, 756 (1946)
    Federal courts apply the Brecht standard of harmless error in harmless error proceedings. Brecht v. Abrahamson, 507 US 619, 623, 629-30 (1993) under this standard habeas relief is automatically granted for structural defects while habeas relief for constitutionally significant trial error is granted only when the error had substantial and injurious effect or influence in determining the jury verdict.
    
    
50. Lajoie v. Thompson, No. 98-35919, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 217 F.3d 663; 2000 US App. LEXIS 14460; 53 Fed. R. Evid. Serv. (Callaghan) 1622; 2000 Cal. Daily Op. Service 5023; 2000 Daily Journal DAR 6731, July 13, 1999, Argued and Submitted, Portland, Oregon , June 23, 2000, Filed. REVERSED and REMANDED
    District court erred in denying inmate's petition for writ of habeas corpus because exclusion of evidence of victim's past sexual abuse by others was unreasonable application of clearly established federal law.
    
    
51. Lawrence v. Lensing, 42 F.3d 255 (5th Cir. 1994)
    State prisoner seeking federal habeas review of conviction must assert volition of federal constitutional right.
    
    
52. Leonard v. Nix, 55 F.3d 370 (8th Cir. 1995)
    Heffernan v. NORRIS, 48 F.3d 331 (8th Cir. 1995)
    Habeas petitioner may excuse procedural bar and abuse of writ by showing cause and prejudice, or actual innocence.
    
    
53. Leonard v. Nix, 55 F.3d 370 (8th Cir. 1995)
    Successful habeas petition is prerequisite to §1983 claim that hinges on finding that claimant's Habeas petition is not mooted by petitioner's release from custody, if petitioner faces sufficient repercussions from his allegedly unlawful punishment.
    
    
54. Levine v. Commissioner Of Correctional Services, 44 F.3d 121 (2nd Cir. 1995)
    Exhaustion requirement is satisfied if petitioner fairly presented the federal constitutional claim to the highest state court.
    
    
55. Long v. AZ. Board of Pardons and Parole, 180 Ariz. 490, 492, 885 P.2d 178, 180 (APP. 1994)
    “Both legislative and judicial branches of Ariz.ona Government have recognized that a habeas petitioner is entitled to a speedy decision. US Supreme Court has always recognized that the writ must provide quick relief: “Under our constitutional framework the ‘great constitutional privilege’ of habeas corpus, Exparte Bollman, 4 Cranch 75, 95 (1807) (Marshall, C. J.) has historically provided a prompt and efficacious remedy for whatever society deems to be intolerable restraints.” See also: ARS 13-4124(A)
    
    
56. Mabry v. Johnson, 467 US 504, 104 S.Ct. 2543
    Petitioner filed petition for writ of habeas corpus. The United States District Court for the Eastern District of Arkansas, William Ray Overton, J., dismissed petition, and petitioner appealed. The United States Court of Appeals for the Eighth Circuit, 707 F.2d 323, reversed, and certiorari was granted. The Supreme Court, Justice Stevens, held that petitioner's acceptance of prosecutor's proposed plea bargain did not create constitutional right to have bargain specifically enforced, and petitioner could not successfully attack subsequent guilty plea. Reversed.
    
    
57. Mayfield v. Ford, 664 F. Supp. 1285 Neb. 1987
    Petitioner who has been illegally confined under statute that is unconstitutional is entitled to attack commitment by petition for writ of habeas corpus. See: 28 USC. § 2254
    
    
58. McClesky v. Zant, 499 US 467, 113 L.Ed.2d 517, 111 S.Ct. 1454 (1991)
    Federal habeas petitioner was held to have abused the writ because he did not raise the issue in a prior federal petition.
    
    
59. McFarland v. Scott, 512 US 1 129 L.Ed.2d 666, 114 S.Ct. (1994)
    Federal District Court held to have authority, prior to filing of habeas corpus petition, to appoint counsel for indigent capital defendant and to stay execution.
    
    
60. Middleton v. Evatt, 855 F.Supp. 837, 84 (D.S.C. 1994) Aff'd, 77 F.3d 467 (4th Cir. 1996) cert. denied, 117 S.Ct. 199 (1996)
    While federal court is bound by state court determination that counsel's alleged deficiencies were a result of trial tactics, it still must undertake its own review to determine whether tactics were reasonable.
    
    
61. Miller v. Fenton, 106 S. Ct. 445, 474 US 104, 88 L.Ed.2d 405, on remand, 796 F.2d 598, cert denied, 107 S. Ct. 585, 479 US 989, 93 L.Ed.2d 587 US NJ. 1985
    Voluntariness of a confession is not an issue of fact presumed correct in a federal habeas corpus proceeding under 28 USCA S. S. 2254 (d), but it is a legal question meriting independent consideration.
    
    
62. Moon v. Head, 285 F.3d 1301, 1308 (11th Cir. 2002)
    Habeas corpus used to challenge suppression of evidence.
    
    
63. Norman v. Ducharme, 871 F.2d 1483 C.A.9 (Wash) 1989
    While his snorkel, factual findings of a state court are presumed correct in the habeas corpus proceeding and will not be set aside unless lacking fair support in record, Court of Appeals may give different legal weight to those facts. See: 28 USC. § 2254 (d).
    
    
64. Note: When a state court rejects the double jeopardy claim, the defendant, after exhausting state remedies, may pursue the claim in a federal habeas corpus actions prior to trial in state court.
    
    
65. Note: Applicants currently in custody shall file a petition for a writ of habeas corpus naming the state officer having custody as respondent. See section 2254 Rules, supra note 1, R.2 (a) 28 USC. Fol. § 2254. Applicant not currently in custody pursuant to the judgment being attacked but subject to future custody shall file a petition for writ of habeas corpus with an added prayer for appropriate relief against the judgment they wish to attack, naming the state officer having custody and the Attorney General for the state where the judgment was injured as respondent. See Id. R. 2 (b). Petition must be typed or legibly handwritten and should follow or closely approximates the form of the model application, the model form for use in application for habeas corpus is located at 28 USC. § 2254, annexed to the rules governing § 2254.
    
    
66. Note: Compare ARS § 13-2010(L)(1) with ARS § 13-4239(G) A habeas petitioner – unlike a Rule 32 petitioner – has the right to appeal if the writ is denied.
    
    
67. Note: A prisoner seeking to challenge the conditions of his or her confinement should pursue relief through a civil rights claim under 42 USC. § 1983.
    
    
68. Note: In granting habeas relief, a federal court may order the state to resentence a petitioner.
    
    
69. O'Neal v. McAninch, 513 US 130 L.Ed.2d 947, 115 S.Ct. (1995)
    Error violating Federal Constitution in state criminal trial held not harmless and federal habeas corpus petitioner held required to win where habeas judge has grave doubt as to harmlessness.
    
    
70. Oaradus v. Arave, 130 F.3d 385 (9th Cir 1997)
    Federal habeas corpus relief is limited to claims that alleged constitutional violation in state criminal proceedings.
    
    
71. Osborn v. Shillinger, 997 F.2d 1324 (10th Cir. 1993)
    Habeas petitioner's claims must be construed liberally when he appears pro se.
    
    
72. Paxton v. Walters, 120 Ariz. 120, 124, 231 P.2d 458 (1951)
    “If the information states no offense it follows that it is a nullity, conferred no jurisdiction upon the court, and necessarily formed no basis for a plea of guilty and for the pronouncement of judgment and sentence thereon by the court. The judgment and sentence rendered are therefore wholly null and void.” Id. The court concluded, “That habeas corpus will lie in a case where a person is incarcerated under a void judgment by this court, even if the question were properly raised.” See also: State v. Hathcock, 9 Ariz. App. 178, 181, 450 P.2d 419 (1969)
    
    
73. Pearson v. Norris, 52 F.3d 740 (8th Cir 1995)
    To prevail on a claim of bias by a state judge in any habeas corpus action, petitioner must actually establish bias or prejudice or prejudice on part of the judge or if, who realistically considering the psychological tendencies and human weakness, judge would be unable to hold the proper balance between the state and the accused, prejudice may be presumed; factors warranting a presumption of prejudice include whether the judge has a pecuniary interest in outcome of the trial or whether judge has been target of personal abuse or criticism from one of the partners. See also: Richmond v. Ricketts, 640 F.Supp. 767 (Ariz. 1986)
    
    
74. Pemberton v. Collins, 991 F.2d 1218 (5th Cir. 1993)
    Federal habeas courts asks only whether constitutional violation infected state trial.
    
    
75. Pierre v. Rivkind, 825 F.2d 1501 (11th Cir. 1987)
    Writ of habeas corpus extends only to custody and detention; it cannot address collateral or ancillary forms of administrative relief.
    
    
76. Pray v. State, 56 Ariz. 171, 106 P.2d 500 (1940)
    State v. Cowsey, 71 Ariz. 227, 225 P.2d 713 (1950)
    State v. Dunivan, 77 Ariz. 42, 266 P.2d 1077 (1954)
    Bowman v. State, 103 Ariz. 482, 483, 445 P.2d 841 (1968)
    State v. Fuentes, 12 Ariz. APP. 48, 49, 467 P.2d 760 (1970)
    When circumstances are substantively identical to one in which the indictment or information was quashed the Supreme Court ruled: “The fact that new information would substantially be the same as the first does not excuse its filing. We have held when a motion to quash information is granted there is no case pending in the superior Court until new information is filed.”
    
    
77. Preiser v. Rodriguez, 411 US 475, 494, 499 (1973)
    At 485-86. Habeas corpus can be used to challenge incarceration under unconstitutional statute, pre-trial imprisonment based on the defective indictment, confinement in improper institution, denial of constitutional right at trial, invalid guilty plea, unlawful detention by executive or military, or parole violation.
    
    
78. Richardson v. Gramley, 998 F.2d 463 (7th Cir. 1993)
    Issue not preserved within state court system is deemed waived on federal habeas corpus review.
    
    
79. Roe v. Flores-Ortega, 120 S.Ct. 1029 (2000)
    Reversing the 9th circuit's grant of relief in the California habeas case, the court held that counsel's failure to file notice of appeal where a defendant has not indicated whether he wishes to pursue an appeal is not per se ineffective assistance of counsel. Rather, under the circumstances the reviewing court should first determine whether counsel actually consulted with the defendant concerning available appellate remedies; if so, counsel's performance is deficient only if she fails to follow the defendants instruction; if not, counsel's performance is deficient if a rational defendant would want to appeal, or if the particular defendant has reasonably demonstrated an interest in pursuing an appeal. Prejudice in these circumstances is established upon a showing of reasonable probability that, but for counsel's deficient performance, the defendant would have perfected a timely appeal.
    
    
80. Russell v. Jones, 679 F. Supp. 949 W. D. Mo. 1988
    Even if it is assumed that trial defense counsel's performance was deficient in failing to object to testimony, habeas corpus petitioner has burden of showing that admission of evidence deprived him of a fair trial and that he suffered prejudice in that if the evidence had been excluded, results of the trial would have been different.
    
    
81. Sanders v. Sullivan, 701 F. Supp. 996 appeal after remand 701 F.2d 218 S.D. N.Y. (1987)
    Habeas petitioner was entitled to evidentiary hearing on issue whether prosecutor knowingly used to perjure testimony at trial upon providing signed an affidavit of key witness from trial and his testimony was perjured, even though there was no support for the contention, that the prosecutor knowingly used testimony.
    
    
82. Scaniq v. US, 37 F.3d 858 (2nd Cir. 1994)
    A person under supervised release may be deemed "in custody" for purposes of entitlement to bring habeas corpus proceeding.
    
    
83. Schlup v. Delo, 513 US 130 L.Ed.2d 808, 115 S.Ct. (1995)
    Federal habeas corpus petitioner under death sentence held required, to avoid procedural bar, to show only that constitutional violation probably resulted in conviction of one who was actually innocent.
    
    
84. Schwendeman v. Wallenstein, 971 F.2d 313 (9th Cir. 1992)
    State habeas claim is considered exhausted when it's been fairly presented to the highest state court.
    
    
85. Seiler v. Thalacker, 101 F.3d 536, 539 (8th Cir. 1996),cert. denied, 117 S.Ct. 1447 (1997)
    Court of Appeals explicitly held that Brecht prejudice analysis is not appropriate unless the state courts have conducted Chapman v. California harmless error analysis.
    
    
86. Simon v. US, C.A.8 (Mo) 1958, 253 F.2d 909
    Our trial court has held no hearing on petition for habeas corpus it must be assumed upon appeal that factual allegations of petition are true.
    
    
87. Spencer v. Zant, 729 F.2d 1293, reversed 753 F.2d 877, cert granted in part 106 S. Ct. 3331, 478 US 1019, 92 L.Ed.2d 737, affirmed 107 S. Ct. 1756, 481 US 279, 95 L.Ed.2d 262 rehearing denied 107 S. Ct. 3199, 482 US 920 96 L.Ed.2d 686 D. Ariz. 1986
    Richmond v. Ricketts, 640 F. Supp. 767 D.C. GA. 1984
    McCloskey v. Zant, 580 F.Supp. 338, hearing ordered
    To prevail on a claim of bias by a state judge in a habeas corpus action, petitioner must actually establish bias or prejudice on part of the judge or if, realistically considering the psychological tendencies and human weaknesses, judge would be unable to hold the proper balance between the state and the accused, prejudice may be presumed; factors warranting a presumption of prejudice include whether judge has a pecuniary interest in the outcome of the trial or whether judge has been target of personal abuse or criticism from one of the parties.
    
    
88. State v. Curtis, 185 Ariz. 112
    Defendants are precluded from seeking post-conviction relief on grounds that were adjudicated, or could have been raised and adjudicated, in a prior appeal or prior petition for post-conviction relief ("PCR"). See Ariz. R. Crim. P. 32.2, 17 Ariz. Rev. Stat. Ann. ("A.R.S."). But the State can waive preclusion if, when responding to a PCR, the State fails to "plead [***2] and prove . . . preclusion by a preponderance of the evidence." Id.; State v. Hursey, 176 Ariz. 330, 332, 861 P.2d 615, 617 (1993). This petition for review presents the question whether, when preclusion is evident from the petition and from the court's own files, a trial court may screen and summarily dismiss a PCR on grounds of preclusion without putting the State to the burden of a response. That question is one of first impression. Our answer is yes. A claim is precluded that could have [***9] been, but was not, raised in a prior appeal or PCR, unless the "asserted claim is of sufficient constitutional magnitude."
    
    
89. State v. Hawkins, 140 Ariz. 88, 90, 680 P.2d 522, 524 (1984)
    This being a matter of substance, not procedure, the legislature has the primary authority to grant or deny release.
    
    
90. State v. Poli, 161 Ariz. 151, 153, 776 P.2d 1077, 1079 (APP. 1989)
    In Hathcock “courts have a sua sponte duty to examine their jurisdiction.”
    
    
91. State v. Rockefeller, 117 Ariz. 151, 153, 571 P.2d 297, 299 (1977)
    Twining v. New Jersey, 211 US 78, 29 S. CT. 14, 53 L. Ed. 97 (1908)
    “Permitting the trial of an accused without a valid information or indictment violates fundamental notions of due process.
    
    
92. State v. Rose, 121 Ariz. 131, 142, 589 P.2d 5, 16 (1978)
    When Ariz.ona appellate courts intend further proceedings to take place in the trial court, they specifically so state. See also: A. R. Cr. P Rule 201(b)
    
    
93. State v. Vargas-Burges, 162 Ariz. 325, 327, 783 P.2d 264, 266 (APP. 1984)
    State v. Buckley, 153 Ariz. 91, 93, 734 P.2d 1047, 1049 (APP. 1987)
    This error is so fundamental that it is not capable of waiver.
    
    
94. Stringer v. Black, 503 US, 117 L.Ed.2d 367, 112 S.Ct. (1992)
    Aggravating circumstances unconstitutionally vague on capital sentencing proceeding held retroactively available to support federal habeas corpus.
95. Swazo v. Wyoming Department Of Corrections, 23 F.3d 332 (10th Cir. 1994)
    There is right to counsel in habeas corpus case when district court determines that evidentiary hearing is required.
    
    
96. Taylor v. Wallace, 931 F.2d 698 (10th Cir. 1991)
    Inmates action seeking restoration of good time credits is properly pursued via petition for writ of habeas corpus.
    
    
97. Todd v. Schomig, 283 F.3d 842, 849 (7th Cir. 2002)
    Habeas corpus used to challenge indictment using perjured testimony, inadmissible evidence of other crimes, impartial tribunal, and delay in execution.
    
    
98. Tucker v. Day, 969 F.2d 155 (5th Cir. 1992)
    Failure of appointed defense counsel to provide any assistance at re-sentencing hearing was constructive denial of right to assistance of counsel and warranted habeas relief.
    
    
99. US v. Garcia, 42 F.3d 573 (10th Cir. 1994)
    If defendant successfully attacks state conviction through petition of writ of habeas corpus, he may apply for reopening of any federal sentence enhanced by state conviction.
    
    
100. US v. Harris, 12 F.3d 735 (7th Cir. 1994)
     Jackson v. Carlson, 707 F.2d 943 (7th Cir. 1983)
     Prisoner objecting to incremental level of incarceration, such as segregation, has administrative remedies and if these fail he can apply for habeas corpus, arguing that he is being deprived of liberty without due process of law, providing that he has been given by statute or regulation an entitlement to less restrictive confinement.
     
     
101. Walker v. Lockhart, 763 F.2d 942,cert. denied, 106 S.Ct. 3332, 478 US 1020, 92 L.Ed 738 C.A.8 (Ark) 1985
     Federal habeas corpus power goes only to constitutionality of detention, not to question of guilt or innocence.
     
     
102. Waletzki v. Keohane, 13 F.3d 1079 (7th Cir. 1994)
     Habeas corpus is available to challenge duration as well as fact of custody.
     
     
103. Washington v. Delo, 51 F.3d 756 (8th Cir. 1995)
     Dismissal of successive or potentially abusive habeas claims is not automatic; if petitioner can show cause for failure to raise or fully develop claims, and prejudice arising therefrom, district court may consider merits of such claims.
     
     
104. Weidner v. Thieret, 866 F.2d 958, reh. Denied C.A. 7 (Ill.) 1989
     Habeas petitioner was entitled to hearing on issue of whether His confession had been coerced; state judge, who ruled that confession was admissible, did not indicate whether he believed or disbelieved any part of either party's evidence, and there were wide discrepancies between police version and defendant's version of interrogation, and it was necessary to know facts underlying confession before federal court could make independent judgment on whether facts crossed threshold of impermissible coercion.
     
     
105. Whitney v. Horn, 280 F.3d 240, 249 (3rd Cir. 2002)
     Habeas corpus used to challenge effectiveness of trial counsel.
     
     
106. Wilkerson v. Wyrick, 806 F.2d 161, cert. denied, 107 S.Ct. 2466, 481 US 1071, 95 L.Ed.2d 875 C.A.8 (Mo.) 1986.
     Due process is denied when person is convicted without having received fair and reasonable notice of charge against him and such denials of due process are cognizable in federal habeas corpus. See: USC.A. 5, 14.
     
     
107. Willard v. Pearson, 823 F.2d 1141 C.A.7 (Ind) 1987
     Not entitled to habeas corpus relief for alleged violation of state law with respect to joinder of crimes. See: 28 USC. § 2254.
     
     
108. Wilson v. Phend, C.A.7 (Ind) 1969, 417 F.2d 1197
     Where petitioner for habeas corpus was dismissed without requiring respondent to answer, petitioner's allegations must be deemed true for purpose of review.
     
     
109. Withrow v. Williams, 507 US 1 123 L.Ed.2d 407, 113 S.Ct. (1993)
     Restriction on federal habeas corpus review of Fourth Amendment issues held not to apply to Michigan prisoner's claim that conviction rested on statements obtained without Miranda warnings.
     
     
110. Wray v. Johnson, 202 F.3d 515, 530 (2nd Cir. 2002)
     Erroneous admission of evidence was not harmless.
     
     
111. Ya v. Maugans, 24 F.3d 500 (3rd Cir 1994)
     Warden of prison or facility where detainee is held is considered "custodian" for purposes of habeas corpus action, as warden has day to day control over prisoner and can produce actual body.

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Harmless Error

1. A.R.S. 13-3987 Harmless Error
   Neither a departure from the form or mode prescribed in respect to any pleadings or proceedings, nor in error or mistake therein, shall render the pleadings or proceeding in valid unless it actually it has prejudiced, or tended to prejudice the defendant in respect to a substantial right.
   
   
2. Chapman, 386 US at 23
   In Chapman the court held that this formulation is entirely consistent with the standard adopted in Fahy v. Connecticut, 375 US 85 (1963) that the question is whether there is reasonable possibility that the error complained of might have contributed to the conviction.
   
   
3. Lawson v. Borg, 60 F.3d 608, 612-613 (9th Cir 1995)
   State court conclusion that in error was harmless is not a finding of fact entitled to the presumption of correctness.
   
   
4. Note: In the case of constitutional error the Supreme Court as stated that it may label the error harmless only upon determination beyond a reasonable doubt that the error did not contribute to the verdict.
   
   
5. Satterwhite v. Texas, 486 US 249, 256 (1988)
   If the sixth amendment violation pervades the entire proceeding, harmless error analysis is inapplicable and the violation is enough to overturn a conviction regardless of the severity of the results.
   
   
6. State v. Tucker, No. 1 CA-CR 12234, Court of Appeals of Ariz.ona, Division One, Department B, 165 Ariz. 340; 798 P.2d 1349; 1990 Ariz. App. LEXIS 106; 57 Ariz. Adv. Rep. 42, March 27, 1990 , As Corrected March 28, 1990. Reconsideration Denied May 25, 1990. Review Denied November 6, 1990
   Defendant's conviction for sexual indecency with a child was improper where the trial court erred in admitting hearsay statements made by the child to police and a social worker and in admitting expert testimony that was common knowledge. Where case comes down to the victim's word against the defendant and there is no physical evidence, improper hearsay evidence and expert testimony require reversal.
   
   
7. US v. Vasquez, 7 F.3d 81, 83 (5th Cir. 1993)
   Harmless error analysis inapplicable when court denied defendant statutory right to a point of counsel at evidentiary hearing to determine merits of motion to vacate sentence because not permitted by statute.
   
   
8. State v. Vigil, 195 Ariz. 189, 192, TT 13, 986 P.2d 222, 225 (App. 1999)
   State v. Bass, 198 Ariz. 571, 580-81, TT 39, 12 P.3d 596, 805-06 (2000)
   To define harmless error, a court must be able to conclude beyond a reasonable doubt that the erroneously admitted evidence had no effect on the jury, i.e. that the jury would have convicted the defendant even if the evidence had been excluded..
   
   
9. State v. Williams, 133 Ariz. 220, 225, 650 P.2d 1202, 1207 P.2d 9, 12 (1980)
   The test for determining harmless error is whether there was reasonability.. that a verdict might have been different had the error not been committed.
   
   
10. US v. Matco, 950 F.2d 44, 48 n.8 (1st Cir. 1991)
    Harmless error analysis inapplicable when counsel absent from sentencing hearing because critical stage of proceedings.
    
    
11. US v. Merino-Balderrama, No. 97-30303, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 146 F.3d 758; 1998 US App. LEXIS 16448; 49 Fed. R. Evid. Serv. (Callaghan) 827; 98 Cal. Daily Op. Service 5680; 98 Daily Journal DAR 7887, June 3, 1998, * Submitted, Seattle, Washington* The panel unanimously found this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4., July 21, 1998, Filed
    Defendant's conviction for possession of child pornography was reversed and remanded because it was not harmless error for district court to allow jury to view films where government failed to present evidence that defendant knew films' content.
    
    
12. US v. Morley, 199 F.3d 129, 140 (3rd Cir. 1999)
    Erroneous admission of evidence of defendants prior bad act is not harmless and error because remaining evidence presented by prosecution was not compelling.
    
    
13. US v. Scroger, 98 F.3d 1256 (10th Cir. 1996)
    Government has burden of proving that non constitutional error was harmless.
    
    
14. US v. Toles, 297 F.3d 959,9 67-68 (10th Cir. 2002)
    Even if limitation on cross-examination violated defendant's confrontation clause rights, error harmless beyond a reasonable doubt due to overwhelming evidence of defendants guilt.
    
    
15. US v. Varoudakis, 233 F.3d 113, 126 (1st Cir. 2000)
    Admission of prior bad act evidence could sway juror's judgment and DOS was not harmless.
    
    
16. Wilson v. Anderson,CA9 (Cal) 1967, 379 F.2d 330, reversed on other grounds, 88 S.Ct. 1133, 390 US 523, 20 L.Ed.2d 81, rehearing denied, 88 S.Ct. 1812, 391 US 929, 20 L.Ed.2d 670
    Any harmless error rule applied to violation, by state court, all of provision of federal standard.
    

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Hearsay

1. F.R.E. Rule 801 (c)
   Hearsay, is a statement, other than one made by the defendant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.
   
   
2. A.R.E. Rule 801 Purpose
   These rules, and particularly those concerning hearsay, are designed to protect the confrontation clause of federal and state Constitution. See: State v. Allen, 157 Ariz. 755 P.2d 1153 (1988).
   
   
3. State v. Allen, No. CR-87-0087-PR, Supreme Court of Ariz.ona, 157 Ariz. 165; 755 P.2d 1153; 1988 Ariz. LEXIS 78; 9 Ariz. Adv. Rep. 8, June 2, 1988. REVERSED AND REMANDED
   Admission of hearsay statements of unavailable child molestation victim was fundamental error; statements did not fit recognized or residual exceptions and her knowledge of sexual matters could not be ascribed to defendant in light of past abuse.
   
   
4. State v. Damper, 223 Ariz. 572
   Murder victim's text message to a friend indicating that she and defendant were fighting was properly admitted into evidence because, while the Sixth Amendment barred testimonial hearsay, the text message was not testimonial because there was no showing that the victim intended or believed that the message might be later used in a legal proceeding.
   
   
5. State v. Tucker, No. 1 CA-CR 12234, Court of Appeals of Ariz.ona, Division One, Department B, 165 Ariz. 340; 798 P.2d 1349; 1990 Ariz. App. LEXIS 106; 57 Ariz. Adv. Rep. 42, March 27, 1990 , As Corrected March 28, 1990. Reconsideration Denied May 25, 1990. Review Denied November 6, 1990
   Defendant's conviction for sexual indecency with a child was improper where the trial court erred in admitting hearsay statements made by the child to police and a social worker and in admitting expert testimony that was common knowledge.
   
   
6. Webb v. Lewis, No. 93-16167, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 44 F.3d 1387; 1994 US App. LEXIS 34997, May 12, 1994, * Submitted, San Francisco, California * The panel unanimously finds this case suitable for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4. , August 24, 1994, Filed , Further Amended December 8, 1994. Certiorari Denied May 22, 1995, Reported at: 1995 US LEXIS 3515
   The admission of a child declarant's hearsay, which recounted her sexual molestation, violated the accused's confrontation right, because the statements were not made during a medical exam and lacked guarantees of trustworthiness.

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