2254 Court Cannot Expand Issues Raised by Defendant

Folkes v. Nelson: Folkes was convicted in South Carolina of assault and battery with intent to kill and sentenced to life in prison. He filed a direct appeal to the mid-level appellate court. After briefing, but before a decision was made, Folkes’ attorney left her office. A letter sent to Folks after the court affirmed his conviction - bearing counsel’s signature but dated two weeks after she left the office - incorrectly informed Folkes that his state court remedies had been exhausted. In fact, Folkes could have filed for a petition for rehearing before the appellate court, which was a prerequisite for filing for certiorari review from the state supreme court. Folkes filed a state habeas action alleging ineffective assistance of appellate counsel for failing to file a petition for rehearing and depriving him of the ability to seek cert review. Folke’s motion was denied because defendants have “no constitutional rights to effective assistance of counsel when seeking discretionary appellate review.”

Folkes then filed for federal habeas relief under 28 USC 2254 alleging (among other things) that he received ineffective assistance of appellate counsel when she failed to file a petition for rehearing and prevent Folkes from seeking cert review. In response to the state’s motion for summary judgment, the district court concluded that Folkes’ claim “‘raise[d] questions’ that had not been adequately addressed” about whether Folkes was denied effective assistance of counsel while his appeal was pending before the mid-level court until the time ran out for filing a petition for rehearing. After supplemental briefing, the district court granted the 2254 motion, concluding that while counsel was not ineffective for failing to file the petition for rehearing, the state court took a too narrow view of the issue and should have addressed counsel’s responsibilities during other periods.

The state appealed and a divided Fourth Circuit reversed the grant of Folkes’ 2254 motion. The court started from “a principle even more foundational than AEDPA’s extensive limits on federal review of a state prisoner’s habeas claims: a federal court review only the claims presented in the 2254 petition.” Unlike regular civil cases “notice pleading is not sufficient” and “once the petitioner has identified specific conduct in his petition, he is constrained to rely only on that conduct.” Those principles “apply equally to a court’s adjudication of that proceeding. Nothing authorizes a district court to expand or contract a petitioner’s claim sua sponte.” That is what happened here, as the district court took Folkes’ narrow claim and expanded it beyond its proper bounds.

Judge Wynn dissented, arguing that the issue was whether “Folkes’ ineffective-assistance-of-counsel claim, which necessarily incorporated a duty-to-consult argument, was fairly presented to the state court, and properly before the district court.” He noted that the “district court recognized that the facts in this matter tell a compellingly disturbing story” and would have affirmed the grant of Folkes’ 2254 motion.