The Right to Counsel for Habeas Proceedings

Federal habeas is often the last avenue of relief for both federal and state prisoners. The Framers thought the right to the writ of habeas corpus was so established in law that its only reference in the Constitution is under what conditions the right may be suspended. Yet, most habeas petitioners are expected to prepare these complicated petitions on their own while incarcerated. And that assumes they have exhausted any available state appeals, met all procedural requirements, and are still within one year from the final judgment of their conviction.

As the system exists today, there is no constitutional right to counsel for habeas proceedings. But that does not mean that one should not exist. This Essay argues that there should be a right to counsel for federal habeas petitions, which implicates a right to counsel for all forms of post-conviction relief. This Essay begins with an overview of the issue as habeas procedures currently stand and then argues that the right to counsel for habeas is both necessary for the protection of criminal defendants and supported by the Constitution.