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Novel Issues, Futile Issues, And Appelate Advocacy: The Troubling Lessons Of Bousley V. United States., Henry J. Bemporad, Sarah P. Kelly

St. Mary's Law Journal

Bousley v. United States may require appellate attorneys to raise meritless claims in order to preserve them for habeas review in the event of a change in the law. Bousley is a habeas corpus case involving the “procedural default” doctrine. The doctrine states that a prisoner may only raise issues that have been adequately preserved, and if not preserved, they have defaulted on their claims. Bousley looked with critical hindsight at the decisions made by appellate counsel and punished the defendant for their lawyer’s failure to preserve an issue rejected by eleven courts of appeals—including the court before which the …