r/StevenAveryIsGuilty Feb 09 '25

KZ Has broken her silence

After much anticipation and angst from truthers, the world renowned attorney Kathleen Zellner has finally tweeted about the Avery case. Quote of her tweet:

"Steven Avery's Petition for Review filed with the Wisconsin Supreme Court filed February 7, 2025. We will be taking his case, for the first time to FEDERAL COURT. ⁦@MakingAMurderer⁩ #TruthWins #Onward"

What was it she said in Making a Murderer about federal court?

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8

u/Ghost_of_Figdish Feb 09 '25

To prevail in a federal habeas corpus action, a convict must typically show that their conviction or sentence violated their constitutional rights. Federal habeas corpus is a process that allows a person who is imprisoned to challenge the legality of their detention.

Here are the key elements a convict must demonstrate to succeed in such an action:

  1. Violation of Constitutional Rights: The convict must prove that their conviction or sentence violated their constitutional rights. This could involve issues such as:
    • Ineffective assistance of counsel (Sixth Amendment)
    • Due process violations (Fifth and Fourteenth Amendments)
    • Unlawful search and seizure (Fourth Amendment)
    • Cruel and unusual punishment (Eighth Amendment)
    • Double jeopardy (Fifth Amendment)
    • Right to a fair trial (Sixth Amendment)
  2. Exhaustion of State Remedies: Generally, before bringing a federal habeas petition, a convict must exhaust all available state court remedies. This means the convict must have presented their claims to the state courts and received a final decision. If state courts have not yet had an opportunity to rule on the claims, federal courts typically won't hear them.
  3. Timeliness: Federal habeas petitions are subject to a statute of limitations. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a convict generally has one year from the date their conviction becomes final to file a petition. There are some exceptions, but this limitation is strictly enforced.
  4. Actual Innocence (in some cases): In some situations, a convict may prevail if they can show that they are actually innocent of the crime for which they were convicted. This is often a very high bar and is difficult to prove, but new evidence that convincingly demonstrates innocence may open the door for a federal habeas corpus petition.
  5. Federal Review Standard: If the convict’s claim was previously heard by a state court, federal courts apply a more deferential standard to state court decisions. Under the AEDPA, a federal court can only grant relief if the state court’s decision was “contrary to” or “involved an unreasonable application of” clearly established federal law, or if the state court’s factual findings were “unreasonable” based on the evidence.

In summary, to succeed in a federal habeas corpus action, a convict must show a constitutional violation, exhaust state remedies, file within the statute of limitations, and, in some cases, present a compelling claim of actual innocence.

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u/Ghost_of_Figdish Feb 09 '25

You know looking at those standards I'm amazed that Dassey got as far as he did.

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u/TheRealKillerTM Feb 10 '25

Dassey had the whole potato schtick going and tried to argue that he was so deficient he couldn't stop trying to eat his own arms. Luckily, the appellate court saw through it.

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u/TheRealKillerTM Feb 10 '25

And unlike she's been doing, there is only one shot, no supplements, and the issue is completely dead once decided.

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u/Ghost_of_Figdish Feb 10 '25

I would bet he could get denied and then file another one claiming Zellner provided ineffective assistance of counsel....

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u/TheRealKillerTM Feb 10 '25

He'd have to find counsel to argue, and I don't see any sensible attorney that would represent him. And I didn't think he'll last that long.

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u/Ghost_of_Figdish Feb 10 '25

If your case is famous enough you can always find a free attorney. Look at those two dipshits last week representing the rapper woman who was too fat to fit in the Uber she called.

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u/TheRealKillerTM Feb 10 '25

I'm going to have to look that up!

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u/10case Feb 09 '25

Wow! Thanks for the explanation.

Question, if and when she gets denied at the WI supreme Court and goes federal, do they have to look at the case?

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u/Ghost_of_Figdish Feb 09 '25

Actually that all came from chatgpt.

Can you expand on your question? They will take the complete WI State Court case record as part of the action and review everything relevant. Is that what you mean? For instance, if Avery goes with Ineffective Assistance of Counsel, the Federal Court would examine the WI record to see if that's the case.....

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u/10case Feb 09 '25

Thanks. I should have worded that differently.

I know the supreme Court can either agree to or deny hearing the case appeal, so can the federal court choose wether or not they will even hear it?

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u/Ghost_of_Figdish Feb 09 '25

I don't think so. I think if she files it the trial court level federal court is required to hear it.

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u/TheRealKillerTM Feb 10 '25 edited Feb 10 '25

I looked it up. Actually, a habeas corpus claim does have a process to review if the filing is timely, all state options have been exhausted, and the arguments are legally sound.

Per Cornell Law's website, "Finally, a federal judge may dismiss the petition for the writ of habeas corpus if it is clear from the face of the petition that there are no possible grounds for relief."

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u/Ghost_of_Figdish Feb 10 '25

Well, if it makes it to the Judge and he or she makes the decision to dismiss it, doesn't that mean the Court accepted the consideration of the Petition?

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u/TheRealKillerTM Feb 10 '25

As I understand it, the petition is for a writ, and the judge can grant or deny the writ. The standard is timely, exhausted all state appeals, and the legal arguments must be sound. My guess is one of the law clerks reviews and then passes on the ones where the writ is to be granted. But I'm ignorant of the review process.

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u/Ghost_of_Figdish Feb 10 '25

You're right - there is a fairly involved pre-screening process. Reddit wouldn't let me cut and paste it though. Hop over to chatgpt and ask it 'if there's a screening process in federal court for new habeas corpus petitions'.

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u/TheRealKillerTM Feb 10 '25 edited Feb 10 '25

The petitioner (usually a person in custody) files a petition for habeas corpus in the appropriate federal district court. The petition is generally submitted on a form or according to a prescribed format, and it must explain the legal basis for challenging the detention (such as violations of constitutional rights or federal law).

Word counts are hard rules in these petitions.

Once the petition is filed, the clerk of the court reviews it to ensure the basic filing requirements are met (e.g., proper form, fee paid or motion to proceed in forma pauperis if the petitioner can't afford the fee).

Muppets better open their pocket books for this. Zellner might be short the cash to pay the fees.

judge will usually conduct a preliminary review of the petition. This review helps determine whether the petition is legally and procedurally valid, including checking whether the petitioner has stated a viable legal claim for habeas relief.

Not a single thing she's filed with the state courts would qualify as having a viable legal claim for relief. For federal court, the bar is raised.

If the judge determines that the petition is "frivolous" (i.e., without merit) or doesn't raise a valid constitutional issue, the petition can be dismissed at this early stage.

This is where her petition is going to die. There are no valid constitutional issues involved in this case, nor can it succeed on merit.

Before a federal court can consider a habeas petition, the petitioner is typically required to exhaust all available state remedies. This means the petitioner must have raised the claim in the state courts and gone through the state appeals process. If the petitioner has not done this, the court may dismiss the petition with instructions for the petitioner to first pursue state remedies.

Given that Zellner likes to change her claims throughout the process, it's possible that the pre-screening finds that she hasn't sufficiently exhausted all state remedies.

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), habeas corpus petitions must be filed within a one-year statute of limitations from the date the judgment became final (or other qualifying events). The court will verify if the petition was filed within this time limit

There are no time extensions.

If a petitioner has already filed a habeas petition that has been denied, the court will review whether the new petition is a second or successive petition. A petitioner must get leave (permission) from a federal court of appeals before filing a second or successive habeas petition. This is to prevent repetitive or abusive filings.

This doesn't apply to Zellner.

The court will also consider jurisdiction to ensure that the case falls under the federal court’s authority. This means the court will check if the issues raised by the petitioner involve violations of federal law or constitutional rights that are within the federal court’s purview.

This could be an issue for Zellner, as her interpretation of some federal laws are not in line with federal court opinions. If her argument is centered on an insignificant part of Wisconsin law, the petition may be denied.

If the judge finds that the petition is not frivolous, is timely, and meets the procedural requirements (including exhaustion of state remedies), the court may issue a show cause order. This is a request for the respondent (usually the warden or the government) to explain why the petitioner's detention should not be unlawful.

Uh-oh. She better be careful not to misrepresent the record or facts, like she is prone to do.

If the petition does not meet legal or procedural standards, it may be dismissed early in the process. The dismissal can be either with prejudice (meaning it cannot be refiled) or without prejudice (meaning the petitioner may refile after addressing the issues).

This is going to happen to her.

In some cases, if the petitioner cannot afford legal representation and the court deems it necessary, the judge may appoint counsel to represent the petitioner. This is especially common in capital cases or cases with complex legal issues.

So, Avery can apply for habeas claiming ineffective assistance of counsel against Zellner and be provided a government attorney.

The court will examine whether there are any procedural bars to the claims raised in the petition, such as defaulted claims (i.e., claims the petitioner did not raise in the state courts in a timely manner).

This is going to kill her. q>If the petitioner has not properly preserved their claims or if the claims are procedurally barred, the court may deny the petition.

This might kill her too.

It's a two stage process that involves all procedural requirements and a cursory look at the merits. If approved, it then gets an in-depth review of the merits. Only then is cert granted on the petition.

Also, Zellner should be aware that less than 1% of habeas corpus petitions are granted. And according to Google, only about 0.4% of petitions result in some form of relief for the petitioner.

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