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Trump's hush money criminal trial at the state level begins today in New York. Assuming Trump is convicted and exhausts his state level appeals, my understanding is that any federal relief he may seek via a habeas corpus petition is subject to the severe restrictions imposed by Antiterroism and Effective Death Penalty Act (AEDPA) law of 1996. Specifically:

  • A federal court is required to affirm a state level conviction unless
  1. The state trial court unreasonably applied well established federal law as per SCOTUS precedent or

  2. The state trial court verdict was an unreasonable determination of the facts soley contained within the state trial records. Although not directly applicable, recent trends by SCOTUS has been strict interpretation such that inferior federal courts are barred from conducting hearings on new evidence (recent holdings of Hendrix, Shinn etc.)

  • Only 1 habeas corpus appeal is allowed and there is an absolute bar on second and successive petitions (in lieu of abuse of judicial writ test)

  • A COA from a federal district or appeals circuit judge is required before appeal of habeas petition can begin, and such COA must raise a constitutional rights violation as opposed to mere procedural concerns , per requirement of US Title 28 , section 2253.

  • Trump will be barred from SCOTUS review if his first and only habeas petition is denied as AEDPA strips appellate jurisdiction from SCOTUS and vests such solely with the federal Circuit Courts of Appeals

Question

  • Is the understanding of how Trump will be restricted by AEDPA if he were to be convicted in NY state court and appeal such conviction federally, correct?

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Is the understanding of how Trump will be restricted by AEDPA if he were to be convicted in NY state court and appeal such conviction federally, correct?

Yes.

You also miss one of the really important aspects of AEDPA. All available collateral attacks on the conviction, not just a direct appeal, must be exhausted before a federal habeas corpus petition is filed, and the state collateral attack must have raised the issues relying upon in the federal habeas corpus petition.

As a practical matter exhausting direct state appeals and state collateral attacks on a conviction takes longer than the sentence in the NYS hush money case is likely to be (1.5 to 4 years per count with sentences likely to run concurrently), and the federal habeas corpus petition would be moot at that point.

This said, there is one recourse to the federal courts on direct appeal that is not within the scope of AEDPA. If Trump were convicted, his first direct appeal would be the the Appellate Division of the New York State Supreme Court, then to the New York State Court of Appeals (which is the highest state court in New York State) and then he could petition for certiorari to the U.S. Supreme Court on any federal issue presented on direct appeal in the case.

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