State prisoners were once required to exhaust the opportunities for state remedial action before federal habeas relief could be granted. The period is tolled during the pendency of state collateral review. In order the meet this "actually innocent" standard, the prisoner must show that "it is more likely than not that no reasonable juror would convict him." New Rules and Retroactivity

Under Teague v. Lane a new rule cannot be sought through federal habeas and a new rule may only be applied retroactively for the benefit of habeas petitioners when (1) the new interpretation places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe or places a certain category of punishment for a class of defendants because of their status or offense beyond the power of the criminal law-making authority to proscribe, or (2) the new interpretation significantly improves the pre-existing fact finding procedures which implicate the fundamental fairness of the trial and without which the likelihood of an accurate conviction is seriously diminished. When a state opts in, federal habeas review of a claim filed by a state death row inmate is limited to issues raised and decided on the merits in state court unless the state unlawfully prevented the claim from being raised in state court, or the claim is based on a newly recognized, retroactively applicable constitutional interpretation or on newly unearthed, previously undiscoverable evidence. In cases where the federal habeas application has been filed by a prisoner under sentence of death under the federal law or the laws of a state which has opted in, the government has a right, enforceable through mandamus, to a determination by the district court within 450 days of the filing of an application and by the federal court of appeals within 120 days of the filing of the parties' final briefs. The Supreme Court has yet to address the question of whether the Teague rule, which requires that a new constitutional interpretation be claimed on direct appeal rather in habeas, applies to section 2255. Review remained possible under the original writ of habeas corpus. The Military Commissions Act stripped federal courts of habeas jurisdiction over the Guantanamo detainees. They argued that the legislation violated the Suspension Clause, which declares that "[t]he privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The Court found the Detainee Treatment Act procedures wanting when assessed against the standards of an adequate substitute for normal habeas procedures.
Federal habeas corpus is a procedure under which a federal court may review the legality of an individual's incarceration. It is most often the stage of the criminal appellate process that follows direct appeal and any available state collateral review. The law in the area is an intricate weave of statute and case law.
Current federal law operates under the premise that with rare exceptions prisoners challenging the legality of the procedures by which they were tried or sentenced get "one bite of the apple." Relief for state prisoners is only available if the state courts have ignored or rejected their valid claims, and there are strict time limits within which they may petition the federal courts for relief. Moreover, a prisoner relying upon a novel interpretation of law must succeed on direct appeal; federal habeas review may not be used to establish or claim the benefits of a "new rule." Expedited federal habeas procedures are available in the case of state death row inmates if the state has provided an approved level of appointed counsel. The Supreme Court has yet to hold that a state death row inmate who asserts he is "actually innocent" may be granted habeas relief in the absence of an otherwise constitutionally defective conviction. The Court has made it clear in the case of the Guantanamo detainees that the privilege of the writ may not be legislatively extinguished unless there is an adequate substitute, Boumediene v. Bush.
This is an abridged version of CRS Report RL33391, Federal Habeas Corpus: A Brief Legal Overview, by [author name scrubbed], without the footnotes or appendixes, and without most of the quotation marks and citations to authority found in the original.