HABEAS CORPUS

Habeas corpus is shorthand for a variety of writs or legal pleadings seeking to bring a person within a court's power. Of the many habeas corpus writs, the most celebrated and significant is the writ of habeas corpus ad subjiciendum, the "Great Writ," which requires an official or person who holds another in custody to produce the person so that a court can inquire into the legality of the detention. In contemporary practice, this writ is most commonly used to challenge the legality of criminal convictions and sentences, though it is also used to challenge the legality of pretrial detentions and the legality of custody in other settings, including immigration, mental health, and military contexts. Other habeas writs are available for distinct purposes, such as to make a prisoner available to testify in court (ad testificandum ) or to ensure that a prisoner is brought before the proper court for prosecution (ad prosequendum ).

Origins and history

Habeas corpus in its most familiar form (ad subjiciendum ) has played an important role in Anglo-American history as a safeguard of individual liberty. Indeed, the availability of habeas relief was at the center of the struggle between Crown and Parliament in the seventeenth century, when Parliament objected to lawless detentions for which no judicial remedies were forthcoming. Infamous deprivations of liberty led to extensive criticism and protest, as English citizens were often held for significant periods without trial and without recourse. Ultimately, Parliament prevailed with the enactment of the Habeas Corpus Act of 1679, which specifically authorized (indeed, required) habeas relief under certain circumstances with substantial penalties for noncompliance.

The English protection of the writ of habeas corpus was quite influential during the framing period of the United States, with both states and the federal government adopting statutory and constitutional guarantees of the writ. Indeed, the federal constitutional guarantee prohibiting the suspension of habeas corpus is one of only two federal constitutional provisions that explicitly refers to and protects a particular remedy ("the 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" (Art. I, §9)).

Constitutional protection of the writ of habeas corpus

One central question surrounding the suspension clause concerns the nature and scope of its protection. As an initial matter, the clause does not declare that the writ of habeas corpus must be made available (as was proposed but not adopted during the constitutional convention), but rather suggests that once established it cannot be withdrawn (barring rebellion or invasion). In Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807), Chief Justice Marshall nonetheless suggested that Congress's creation of habeas jurisdiction in the Judiciary Act of 1789 was likely the result of its perceived "obligation" to give "life" to the constitutional provision. Under Chief Justice Marshall's reasoning, the clause protects federal judicial power to grant writs of habeas corpus, though many scholars have argued that the clause was intended to protect state judicial power from federal intervention. When a state court sought to secure the release of an abolitionist who had been convicted in a federal proceeding of aiding and abetting a fugitive slave, the Court decisively rejected the notion that state habeas enjoys any federal constitutional protection, insisting instead that state courts lack power to interfere with persons imprisoned under the authority of the federal government (Ableman v. Booth, 62 U.S. (21 How.) 506 (1858)). That Congress appears to have initially extended the writ to federal prisoners alone suggests that the suspension clause, at least as an initial matter, was not understood to afford protections to persons held in state custody; recent scholarship, though, challenges the notion that the Judiciary Act of 1789 should be understood to have deprived federal courts of habeas power with respect to state prisoners.

During the early nineteenth century, Congress gradually extended the scope of federal habeas jurisdiction to certain classes of state prisoners in response to specific threats to federal power. When South Carolinians declared federal tariffs unconstitutional at the climax of the nullification controversy, President Andrew Jackson feared that federal officers seeking to enforce the tariffs would be subject to state interference. On President Jackson's initiative, Congress authorized federal judges to exercise habeas jurisdiction in cases involving federal or state prisoners confined for acts committed in pursuance of federal law. Less than a decade later, following a diplomatic crisis that ensued when New York tried a British citizen who had attempted to prevent American assistance to Canadian rebels during the winter revolt of 1837–1838, Congress again expanded federal habeas jurisdiction to permit federal review of cases involving federal or state prisoners who are subjects or citizens of a foreign state.

The most significant statutory expansion of the writ occurred in the wake of the Civil War. The Judiciary Act of 1867 extended the writ to all persons, federal or state, restrained of liberty in violation of federal law. Today, the term "federal habeas" is invariably used to describe challenges by state prisoners, as federal habeas jurisdiction for federal prisoners has essentially been replaced by a separate comprehensive federal postconviction scheme whose substantive scope is basically congruent with the habeas remedy that it displaced (28 U.S.C. § 2255).

An additional question surrounding the suspension clause concerns which branch of government can withhold the writ in response to rebellion or invasion. This question took on great significance at the beginning of the Civil War. Just over two weeks after shots were fired on Fort Sumpter, President Abraham Lincoln issued an order to Commanding General Winfield Scott permitting him to suspend the writ. When John Merryman was subsequently arrested for his participation in the destruction of bridges in Baltimore, military officials refused to respond to a writ before Chief Justice Taney. The Chief Justice wrote a scathing opinion denying the legality of President Lincoln's purported suspension (Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487)), arguing that it is Congress and not the president in whom the Constitution vests such power. President Lincoln publicly disagreed with the opinion (and did not honor it), and Congress subsequently declared its retroactive approval of President Lincoln's military actions. In 1863, Congress also specifically authorized President Lincoln to suspend the writ whenever in the course of the "present rebellion" he judged it to be necessary.

The scope of federal habeas corpus

The most controversial question surrounding federal habeas corpus concerns its appropriate role. This question has two components: how has federal habeas corpus functioned historically and how should it function today? The English version of the writ secured by the Habeas Corpus Act of 1679 primarily afforded a mechanism for challenging unauthorized pretrial detentions. The earliest habeas practice in the United States, both state and federal, likewise focused on defendants' rights against warrantless detentions and denials of bail. But throughout the nineteenth and early twentieth centuries, prisoners sought, and in some cases received, habeas review of claims challenging criminal convictions.

Scholars disagree about the scope of federal habeas review during this period. One prominent scholar, Professor Paul Bator, famously insisted that federal habeas was simply not available to persons convicted by courts of competent jurisdiction; though federal habeas courts sometimes entertained an expansive conception of "jurisdiction," on Bator's view federal habeas was not generally a forum for revisiting legal or factual determinations after trial.

More recent scholarship asserts that federal habeas has always permitted some postconviction review of federal constitutional claims. One of the leading treatise authors on federal habeas, Professor James Liebman, maintains that the scope of federal habeas review during the nineteenth and early twentieth centuries was intimately connected to the availability of other forms of federal review of federal claims. On this view, the U.S. Supreme Court continually adjusted the scope of habeas review in both the state and federal prisoner cases based on whether some other federal jurisdictional vehicle was available to address substantial federal claims. In the federal prisoner context, for example, this thesis explains why the scope of federal habeas for federal prisoners diminished after Congress established federal appellate review of criminal convictions in 1891. In the state prisoner context, this account explains why the scope of habeas corpus increased when federal review as of right through writ of error became largely discretionary.

Yet another influential view argues that federal habeas review has always been quite broad, but that state prisoners rarely prevailed because of the narrowness of federal constitutional protections. According to this position, denials of habeas relief in landmark cases such as Frank v. Magnum, 237 U.S. 309 (1915), in which the Court rejected a claim of mob domination and jury intimidation at trial, were predicated on the Court's narrow readings of the due process clause. Frank lost, on this view, not because the Court refused to consider the merits of his constitutional claim via federal habeas, but because, as a matter of due process, state-court review of a mob-domination claim was constitutionally sufficient. Hence, when federal constitutional protections for state prisoners increased dramatically during the 1960s, the significance of federal habeas increased as well, and not necessarily because the nature of federal habeas itself had been altered.

The dispute surrounding the historic role of federal habeas is not merely academic. Although habeas corpus has both statutory and constitutional roots, the Court has repeatedly focused on historical practice in deciding the appropriate reach of the writ. Indeed, in a much-publicized decision concerning the scope of federal habeas review, two factions of the Court offered conflicting historical accounts to support their respective views as to whether federal habeas courts should defer to state court determinations of mixed lawfact determinations (Wright v. West, 505 U.S. 277 (1992)).

The emergence of modern federal habeas corpus

By the mid-twentieth century, the Court cemented federal habeas's role as a vehicle for challenging the lawfulness of state criminal convictions (Brown v. Allen, 344 U.S. 443 (1953)). Most importantly, the Court indicated that state court legal determinations were not binding on federal habeas courts, and that such courts should address federal constitutional claims de novo.

At the time Brown was decided, federal habeas review remained quite limited, because few federal constitutional protections had been extended to state prisoners. But during the 1960s, the Court "constitutionalized" criminal procedure and read the due process clause of the Fourteenth Amendment to encompass virtually all of the protections of the Fourth, Fifth, Sixth, and Eighth Amendments. In addition, the Court adopted relatively lenient rules concerning state procedural defaults. The Court characterized federal habeas review as an independent civil action rather than as a formal appeal of a state court judgment and refused to apply the independent and adequate state ground doctrine to bar procedurally defaulted claims on federal habeas. Instead, the Court held that if a state inmate failed to properly raise a federal constitutional claim in state court, the issue would nonetheless be cognizable on federal habeas unless the inmate had deliberately bypassed state procedural rules (Fay v. Noia, 372 U.S. 391 (1963)). As a result, federal habeas increasingly became a robust forum for vindicating the federal constitutional claims of state prisoners. Not surprisingly in light of these developments, the sheer volume of federal habeas petitions grew dramatically in the four decades following Brown. Although Justice Jackson had complained of a "haystack" of federal habeas petitions in Brown, the 541 petitions filed in 1951 had become 12,000 by 1990.

Relationship of federal habeas to state postconviction

The availability, scope, and significance of state postconviction review has changed dramatically over the past half century. Prior to the 1950s, state postconviction remedies consisted almost entirely of common law writs, most prominently habeas corpus and coram nobis. These writs did not generally afford state inmates a meaningful opportunity to adjudicate federal constitutional issues.

State habeas corpus, like its federal counterpart, had originally served primarily as a vehicle for challenging pretrial or extrajudicial detentions. When state inmates invoked habeas to challenge their continued detention after conviction, state courts did not view the writ as a basis for revisiting every legal issue bearing on the conviction. Rather, state courts often described their inquiry as confined to "jurisdictional" questions and they repeated the black letter rule that habeas relief was available only if the challenged conviction was not merely "voidable" but absolutely "void." The jurisdictional limitation rendered state habeas an unpromising means of addressing federal constitutional claims because such claims were not ordinarily thought to undermine the basic authority of the trial court to conduct the proceedings leading to the challenged conviction.

Coram nobis, on the other hand, was the traditional postconviction mechanism for revisiting convictions based on non-record facts. Coram nobis was available in the court of conviction—not in a reviewing or appellate court—and it did not generally extend to pure legal error. Moreover, coram nobis did not afford relief unless the newly found facts would have resulted in a different judgment. Accordingly state coram nobis remedies also seemed an unlikely means of vindicating federal constitutional rights.

The problem of state enforcement of federal constitutional rights, though, was not simply a matter of putting ancient writs to modern uses. In the first half of the century, states seemed less than zealous in protecting defendants' rights. Perceived state hostility to federal rights and irregularities in state criminal procedures—including the absence of effective postconviction review—no doubt encouraged federal courts to review state convictions for constitutional error through federal habeas corpus.

As federal habeas review of federal constitutional claims became more common and intrusive with the Warren Court's extraordinary expansion of due process rights for state prisoners, states had strong incentives to develop more extensive postconviction procedures. These procedures protected state convictions from federal review in two important respects: first, state fact-finding in postconviction would ordinarily earn deference in federal court, allowing state courts to shape the future federal habeas litigation; second, additional postconviction opportunities for state prisoners meant additional opportunities to enforce state procedural rules, leading to increased forfeitures in federal court.

The expansion of state postconviction review, though welcome in some respects, has unfortunately also delayed federal habeas review of federal claims. Of course, some delay is unavoidable if state courts are to assume initial responsibility for adjudicating federal rights; if states fail to provide a forum for non-record claims, inmates must litigate these claims in the first instance on federal habeas. But state postconviction review also delays federal review of record claims that could be fully adjudicated in the state courts on direct appeal (without any additional recourse to state postconviction). Delays between state court resolution and federal habeas resolution of record claims contributes to the perception—and reality—that federal habeas undermines the finality of state convictions.

Overall, the dynamic interplay between federal habeas and state postconviction has produced a tremendously burdensome system for reviewing federal claims. Concerns about the adequacy of state criminal justice systems led to the recognition of federal constitutional rights and the expansion of the federal remedy of habeas corpus. Robust federal habeas in turn led to widespread adoption of extensive state postconviction proceedings, primarily to limit intrusive federal court review. The introduction of extensive state postconviction proceedings substantially delays federal review of federal claims and increases the costs of ultimately granting relief in federal court. Recognizing these costs, Congress and the Court have in recent years erected labyrinthine obstacles to merits review on federal habeas.

The proceduralization of federal habeas corpus

Just as the Warren Court's "revolution" of criminal procedure became a target of extensive criticism, federal habeas's role in implementing the revolution also came under attack. Some critics argued that federal habeas had become excessively intrusive on legitimate state interests, notably the finality of state criminal convictions and comity for state courts. Other critics noted that the habeas remedy had strayed far from its historic common law roots as primarily a pretrial remedy. Despite regular efforts to limit federal habeas legislatively in the three decades after Brown, though, Congress refused to enact any meaningful habeas reform.

Nonetheless, the Supreme Court took the lead in reshaping and restricting the scope of the habeas forum. First, the Court imposed stricter rules governing procedural defaults, shifting the burden to petitioners to justify failing to comply with state procedural rules. These strict rules applied even in capital cases, with the result that a death-row inmate could lose all federal review of his constitutional claims based on his attorney's filing a state habeas appeal three days late (Coleman v. Thompson, 501 U.S. 722 (1991)). In addition, the Court adopted more onerous requirements for filing both same-claim and new-claim successive habeas petitions, essentially limiting state prisoners to one opportunity to litigate federal claims—not one opportunity to litigate each federal claim—in federal court even if new facts or new law subsequently confirmed or revealed additional constitutional violations.

Perhaps the most significant Court-initiated reform concerned its limitation on the retroactive availability of "new" constitutional law on federal habeas. Prior to the mid-1960s, the Court drew no important distinctions between inmates' claims seeking the benefit of new law and those seeking vindication of clearly established or longstanding constitutional doctrines. All decisions enforcing the constitutional rights of criminal defendants were simply presumed to have full retroactive effect. But the unprecedented expansion of criminal defendants' rights after the incorporation decisions prompted the Court to limit the impact of the growing constitutional criminal protections. At first, the Court adopted a balancing test that led to the retroactive application of some but not all of the new constitutional decisions. More recently, the Court adopted a presumptive rule prohibiting petitioners from seeking the benefit of new law on habeas; under the Court's approach, a federal habeas petitioner can avoid the nonretroactivity bar against newlaw claims only if the rule sought (or established in a recent decision) renders the underlying conduct of the petitioner unpunishable or represents a "watershed" contribution to the criminal justice system that substantially increases the reliability of the guilt-innocence determination (Teague v. Lane, 489 U.S. 288 (1989)).

The nonretroactivity doctrine has been of extraordinary practical significance. The Court's expansive conception of "new" law, which focuses on whether a petitioner's claim was "clearly dictated" by prior precedent, has blocked retroactive application of many decisions far less dramatic or path-breaking than the Warren Court rulings that had given rise to the doctrine. At the same time, courts have construed the exceptions quite narrowly. Few new rules prohibit states from punishing certain conduct at all, and, in the numerous retroactivity cases litigated at the Supreme Court level, the Court has declined to identify any new rule as sufficiently fundamental to command retroactive application.

By the early 1990s, the Court's procedural default, successive petition, and nonretroactivity decisions had significantly eroded state inmates' efforts to receive federal review of the federal lawfulness of their convictions via federal habeas corpus. In addition, the infamous 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City led Congress to substantially revisit the scope of federal habeas review for the first time in over 125 years. The resulting legislation, the Anti-Terrorism and Effective Death Penalty Act (AEDPA), was signed within days of the first anniversary of the Oklahoma City bombing. Whereas the previous habeas statute had extended the writ to all persons held in violation of the Constitution or laws or treaties of the United States, the AEDPA additionally requires that the challenged state adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" (28 U.S.C. §2254(d)). The Court has recently construed this language as replacing the de novo standard articulated in Brown (Williams v. Taylor, 526 U.S. 1050 (1999)). According to the Court, this language requires federal habeas courts to sustain "reasonable" but "wrong" state court adjudications of federal rights. In addition, the AEDPA imposes a new limitations period on filing federal habeas petitions and further cuts habeas review of successive petitions.

The Court-initiated procedural obstacles to habeas review, together with the new "reasonableness" standard of review of the AEDPA, have transformed federal habeas into an enormously complex forum. Instead of debating whether a state prisoner's conviction or sentence violates federal constitutional norms, the parties and federal courts devote extraordinary resources attempting to resolve questions of procedural default, retroactivity, and the "reasonableness" of state court decision-making. In some respects, the current scope of federal habeas for state prisoners could be viewed as a compromise between advocates of federal supervision over state criminal processes and defenders of state autonomy. The compromise protects the fundamental jurisdictional power of the federal courts to review unconstitutional convictions of state prisoners. Yet the compromise increasingly saddles such jurisdiction with arcane and often insurmountable procedural barriers. For many critics, this state of affairs should be lamented because it sustains the appearance of extensive federal supervision of federal rights despite the reality of truncated and increasingly limited review.

Habeas corpus and capital punishment

The enormous growth of procedural obstacles on federal habeas, as well as the new limitations period established in the AEDPA, have made it extremely difficult for unrepresented petitioners, acting pro se, to receive federal review of their constitutional claims. As a result, the bulk of meaningful federal habeas litigation now involves death-sentenced inmates, for whom Congress recently established a statutory right to counsel on federal habeas. Death-row petitioners often focus their habeas litigation on the federal lawfulness of state death penalty procedures. When the Court first subjected state death penalty schemes to federal constitutional scrutiny in the early 1970s, the popular perception was that the Court was deciding the constitutional rightness or wrongness of the death penalty as a punishment. In 1976, the Court made clear that the death penalty was a permissible punishment so long as states developed adequate systems for ensuring its reliable and equitable administration.

The notorious subsequent history reveals the development of extremely intricate, difficult-to-apply doctrines that have plunged states and petitioners into a morass of confusing litigation concerning states' obligations in their administration of the death penalty. This litigation eventually arrives in federal court with the result that federal habeas has become less a broad forum for enforcing the federal rights of state prisoners generally than the inevitable battleground for enforcing or overturning state death sentences and elaborating the meaning of the Eighth Amendment in capital cases. The drafters of the AEDPA undoubtedly understood this when they equated "effective death penalty" with diminished federal habeas corpus.

The role of federal habeas in supervising state death penalty schemes has also prompted a reexamination of the scope of habeas review. Throughout American legal history, as a matter of black letter law, federal habeas could not serve as a forum for relitigating the accuracy of criminal convictions. But death-row inmates insisted that the difference in kind between capital punishment and imprisonment should require federal habeas relief where extremely strong evidence of actual innocence surfaces after trial and the state courts refuse to provide any post-trial mechanism for evaluating new evidence of innocence. In making this argument, capital defense lawyers borrowed from Judge Henry Friendly's influential article insisting that innocence should not be irrelevant to the availability of federal habeas review. But whereas Judge Friendly focused on innocence as a limiting principle, to restore habeas to its purported roots as an exceptional remedy, advocates for capital defendants sought to establish actual innocence as a separate and independent basis for habeas relief. In a much-observed case, the Court ultimately denied habeas relief to a death-sentenced inmate whose only claim was his actual innocence of the crime (Herrera v. Collins, 506 U.S. 390 (1993)). But the Court's decision ultimately turned on the petitioner's lack of sufficient new evidence of innocence, and the Court did not dispositively rule on the cognizability of such "bareinnocence" claims.

The future of federal habeas for state prisoners

Federal habeas corpus for state prisoners is presently in a precarious position. For its critics, federal postconviction review of state criminal convictions is an unjustifiable intrusion into state criminal justice systems. Such review subjects state court decisions to review in the lower federal courts (as opposed to the U.S. Supreme Court) often years after trial. To this extent, current federal habeas corpus departs from the traditional norm of hierarchical appeals to a final court in a timely manner. Moreover, federal habeas review as a practical matter has become a vehicle for extensive federal intervention in state death penalty practices.

For its defenders, federal habeas provides the lone meaningful opportunity for federal courts to have the last say regarding the content of federal law. Recognizing that discretionary Supreme Court review is not a practical means of supervising state court compliance with federal constitutional norms, federal habeas serves as an essential surrogate to review by the Court.

As the Court and Congress impose new and substantial procedural obstacles to federal habeas review, there is less reason to believe that federal habeas will provide much incentive for state courts, in the famous words of Justice Harlan, "to toe the constitutional mark" (Mackey v. United States, 401 U.S. 667 (1971)). The increased proceduralization will also take federal habeas far from its origins as a broad means of inquiring into the lawfulness of custody. In his ringing dissent decrying the Court's refusal to grant the writ in the face of a mob-dominated trial, Justice Holmes insisted that "habeas corpus cuts through all forms and goes to the very tissue of the structure" and "comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell" (Frank v. Mangum, 237 U.S. 309 (1915)). The future of federal habeas corpus will ultimately turn on whether federal enforcement of federal law is regarded as a desirable norm or an unnecessary and unjustified departure from state control over the federal rights of state prisoners.

ordan M. Steiker

See also Amnesty and Pardon; Appeal; Capital Punishment: Legal Aspects; Counsel: Right to Counsel; Criminal Procedure: Constitutional Aspects; Criminal Justice Process; Exclusionary Rule; Guilt; Prisoners, Legal Rights of.

BIBLIOGRAPHY

Bator, Paul M. "Finality in Criminal Law and Federal Habeas Corpus for State Prisoners." Harvard Law Review 78 (1963): 441–528.

Chen, Alan K. "Shadow Law: Reasonable Unreasonableness, Habeas Theory, and the Nature of Legal Rules." Buffalo Criminal Law Review 2 (1999): 535–634. "Developments in the Law: Federal Habeas Corpus." Harvard Law Review 83 (1970): 1038–1280.

Duker, William F. A Constitutional History of Habeas Corpus. Westport, Conn.: Greenwood, 1980.

Freedman, Eric M. "Milestones in Habeas Corpus: Part I. Just Because John Marshall Said It, Doesn't Make It So: Ex Parte Bollman and the Illusory Prohibition on the Federal Writ of Habeas Corpus for State Prisoners in the Judiciary Act of 1789." University of Alabama Law Review 51 (2000): 531–602.

Friendly, Henry J. "Is Innocence Irrelevant? Collateral Attack on Criminal Judgments." University of Chicago Law Review 38 (1970): 142–172.

Hoffman, Joseph L. "Substance and Procedure in Capital Cases: Why Federal Habeas Courts Should Review the Merits of Every Death Sentence." University of Texas Law Review (2000): 1771–1803.

Hurd, Rollin C. A Treatise on the Right of Personal Liberty, and on the Writ of Habeas Corpus, 2d ed. Albany, N.Y.: W.C. Little & Co, 1876.

Liebman, James S. "Apocalypse Next Time?: The Anachronistic Attack on Habeas Corpus/Direct Review Parity." University of Columbia Law Review 92 (1992): 1997–2097.

——. "More Than 'Slightly Retro': The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane." New York University Review of Law and Social Change 18 (1990–1991): 537–635.

Liebman, James S., and Hertz, Randy. Federal Habeas Corpus Practice and Procedure, 2d ed. Charlottesville, Va.: The Michie Co., 1994.

Oaks, Dallin H. "Habeas Corpus in the States: 1776–1865." University of Chicago Law Review 32 (1965): 243–288.

Peller, Gary. "In Defense of Federal Habeas Corpus Relitigation." Harvard Civil Rights and Civil Liberties Law Review 16 (1982): 579–691.

Steiker, Jordan. "Innocence and Federal Habeas." University of California at Los Angeles Law Review 41 (1993): 303–389.

——. "Incorporating the Suspension Clause: Is there a Constitutional Right to Federal Habeas Corpus for State Prisoners?" University of Michigan Law Review 92 (1994): 862–924.

——. "Restructuring Post-Conviction Review of Federal Constitutional Claims Raised by State Prisoners: Confronting the New Face of Excessive Proceduralism." University of Chicago Legal Forum (1998): 315–347.

——. "Habeas Exceptionalism." University of Texas Law Review (2000): 1703–1730.

Tushnet, Mark, and Yackle, Larry. "Symbolic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act." Duke Law Journal 47 (1997): 1–86.

Yackle, Larry W. Postconviction Remedies. Rochester, N.Y.: Lawyers Co-Operative Publishing Co., 1981.

——. "The Misadventure of State Post-Conviction Remedies." New York University Review of Law and Social Change 16 (1987–1988): 359–394.

——. "A Primer on the New Habeas Corpus Statute." University of Buffalo Law Review 44 (1996): 381–449.

——. "The Figure in the Carpet." University of Texas Law Review (2000): 1731–1770.

CASES

Ableman v. Booth, 62 U.S. (21 How.) 506 (1858).

Brown v. Allen, 344 U.S. 443 (1953).

Coleman v. Thompson, 501 U.S. 722 (1991).

Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807).

Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1891) (No. 9487).

Fay v. Noia, 372 U.S. 391 (1963).

Frank v. Magnum, 237 U.S. 309 (1915).

Herrera v. Collins, 506 U.S. 390 (1993).

Mackey v. United States, 401 U.S. 667 (1971).

Williams v. Taylor, 526 U.S. 1050 (1999).

Wright v. West, 505 U.S. 277 (1992).

HABEAS CORPUS

(Latin: "You shall have the body.") Habeas corpus is the most celebrated of Anglo-American judicial procedures. It has been called the "Great Writ of Liberty" and hailed as a crucial bulwark of a free society. Compared to many encomia, Justice felix frankfurter's praise in brown v. allen (1953) is measured:

The uniqueness of habeas corpus in the procedural armory of our law cannot be too often emphasized. It differs from all other remedies in that it is available to bring into question the legality of a person's restraint and to require justification for such detention. Of course this does not mean that prison doors may readily be opened. It does mean that explanation may be exacted why they should remain closed. It is not the boasting of empty rhetoric that has treated the writ of habeas corpus as the basic safeguard of freedom in the Anglo-American world. "The great writ of habeas corpus has been for centuries esteemed the best and only sufficient defence of personal freedom." Mr. Chief Justice [ salmon p. ] chase, writing for the Court, in Ex parte Yerger, 8 Wall. 85, 95. Its history and function in our legal system and the unavailability of the writ in totalitarian societies are naturally enough regarded as one of the decisively differentiating factors between our democracy and totalitarian governments.

Though even this rhetoric may be a bit overdone, it nonetheless reflects the importance that has come to be attached to habeas corpus. It is a symbol of freedom, as well as an instrument. What is significant in the rhetoric is not the degree of exaggeration but rather the extent of truth.

Habeas corpus is accorded a special place in the Constitution. Article I, section 9, of the basic document, included even before the bill of rights was appended, contains the following provision: "The 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."

This text of course presumes an understanding of what habeas corpus is. Technically, it is simply a writ, or court order, commanding a person who holds another in custody to demonstrate to the court legal justification for that restraint of personal liberty. The name "habeas corpus" derives from the opening words of the ancient common law writ that commanded the recipient to "have the body" of the prisoner present at the court, there to be subject to such disposition as the court should order. A writ of habeas corpus, even one directed to an official custodian, can be obtained routinely by the prisoner or by someone on his behalf. As at common law, the writ that starts proceedings also defines the nature of those proceedings (and lends its name to them and, sometimes, to the final order granting relief). Thus, habeas corpus not only requires the custodian promptly to produce the prisoner in court but also precipitates an inquiry into the justification for the restraint and may result in an order commanding release.

The writ itself is no more than a procedural device that sets in motion a judicial inquiry. Yet the importance attached to habeas corpus necessarily posits that a court will not accept a simple showing of official authority as sufficient justification for imprisonment. Otherwise, the constitutional provision would indeed be much ado about nothing. "The privilege of the Writ" would hardly be worth guaranteeing if it did not invoke substantial criteria for what are sufficient legal grounds for depriving a person of liberty.

The principle that even an order of the king was not itself sufficient basis had been established in England before the time of our Constitution. In Darnel's Case (1627), during the struggle for parliamentary supremacy, a custodian's return to a writ of habeas corpus asserted that the prisoner was held by "special command" of the king, and the court accepted this as sufficient justification. This case precipitated three House of Commons resolutions and a petition of right, assented to by the king, declaring habeas corpus available to examine the underlying cause of a detention and, if no legitimate cause be shown, to order the prisoner released. But even these actions did not resolve the matter. Finally, two habeas corpus acts, of 1641 and 1679, together established habeas corpus as an effective remedy looking beyond formal authority to examine the sufficiency of the actual cause for holding a prisoner.

Although the Habeas Corpus Acts did not extend to the American colonies, the principle that the sovereign had to show just cause for imprisoning an individual was carried over to the colonies. After the Revolution, the underlying principle was implicitly incorporated in the constitutional provision guaranteeing the regular availability of habeas corpus against suspension by the new central national government.

The broad assumptions underlying the Great Writ have been well articulated by henry hart. Speaking in the particular context of procedural due process for aliens, but with general implications, he wrote of:

the great and generating principle … that the Constitution always applies when a court is sitting with jurisdic -tion in habeas corpus. For then the Court has always to inquire, not only whether the statutes have observed, but whether the petitioner before it has been "deprived of life, liberty, or property, without due process of law," or injured in any other way in violation of the fundamental law. …

That principle forbids a constitutional court with ju -risdiction in habeas corpus from ever accepting as an adequate return to the writ the mere statement that what has been done is authorized by act of Congress. The inquiry remains, if marbury v. madison still stands, whether the act of Congress is consistent with the fundamental law. Only upon such a principle could the Court reject, as it surely would, a return to the writ which informed it that the applicant for admission [to the United States] lay stretched upon a rack with pins driven in behind his fingernails pursuant to authority duly conferred by statute in order to secure the information necessary to determine his admissibility. The same principle which would justify rejection of this return imposes responsibility to inquire into the adequacy of other returns [Hart, 1953: 1393–1394].

It hardly requires demonstration that an executive directive can provide no more justification than an act of Congress. In fact the Supreme Court very early held in Ex parte Bollman and Swartwout (1807) that a President's order was not itself a sufficient basis for a return to a writ of habeas corpus.

The purpose of the habeas corpus clause of Article I, section 9, is to assure availability of the writ, but the provision clearly allows its suspension when necessary in the event of rebellion or invasion. The power to suspend the writ has been rarely invoked. Suspensions were proclaimed during the civil war; in 1871, to combat the Ku Klux Klan in North Carolina; in 1905, in the Philippines; and in Hawaii during world war ii. Furthermore, two of these suspensions were limited by the Supreme Court. In the first case, ex parte milligan (1866), the Supreme Court held that the writ was not suspended in states (e.g., Indiana) where the public safety was not threatened by the Civil War. In the last case, duncan v. kahanamoku (1946), the Supreme Court held that the writ was not suspended in Hawaii eight months after the attack on Pearl Harbor because the public safety was no longer threatened by invasion.

The point is not the rarity with which the power to suspend the writ of habeas corpus has been invoked in this country's history. That can be seen as a function of the relative stability and insulation that the nation has enjoyed. Rather, the significant point is the basic acceptance of the proposition that the courts remain open in habeas corpus proceedings to consider the validity of an attempted suspension of the writ and, if they find it invalid, to examine the validity of the detention. This position has not always been respected by the immediately affected executive or military authorities, and such holdings by the Supreme Court have been handed down after immediate hostilities have ended. Nevertheless, the ultimate verdict of history has upheld the courts' position. The existence of those Supreme Court precedents, and their acceptance and perceived vindication by history, help bolster the likelihood of similar judicial action in response to future emergencies.

The habeas corpus writ described by Article I is not necessarily one issued by a federal court. The Constitution posits the existence of state courts as the basic courts of the nation; it does not require the creation of lower federal courts at all. Thus, the suspension clause was designed to protect habeas corpus in state courts from impairment by the new national government.

The clause may nonetheless have reflected a wider sense of moral duty. The first Congress, in establishing a system of lower federal courts, gave federal judges the power to issue the writ on behalf of prisoners held "under or by colour of the authority of the United States." The federal courts have always retained that habeas corpus jurisdiction, and it has since been much expanded.

Perhaps the most dramatic example of the use of habeas corpus occurred in Ex parte Milligan. Milligan, a civilian living in Indiana, was sentenced to death by a court-martial during the Civil War though the local grand jury had refused to indict him. The Supreme Court held that courts-martial do not have jurisdiction to try civilians so long as the civilian courts are open. The Court further held that the writ of habeas corpus was not suspended, despite the general language of a statute purporting to suspend the writ during the Civil War, because the public safety was not threatened in Indiana.

Habeas corpus also provided an effective remedy for challenging an extraordinary extension of military power during World War II. The government relocated Japanese Americans away from their homes on the West Coast to detention camps inland. Although the Supreme Court in Korematsu v. United States (1944) held the relocation to be constitutional, the Court on the same day held in a habeas corpus case, Ex parte Endo (1944), that the government was not authorized to confine Japanese Americans in the camps against their will. (See japanese american cases, 1943–1944.)

Nor is the availability of habeas corpus to challenge extraordinary military actions limited to American citizens or residents. Even German saboteurs, landed in this country by submarine, were permitted during wartime to challenge the power of a special military commission over them. Though the Court rejected that challenge in ex parte quirin (1942), the exercise of military power was drawn into question and examined; the Court denied relief on the merits, holding that the asserted jurisdiction was constitutional.

Habeas corpus is not restricted to testing major or extraordinary extensions of power. Particularly in the last few decades, the writ has provided a means by which federal courts have regularly controlled the reach and exercise of fairly commonplace court-martial jurisdiction. For example, in United States ex rel. Toth v. Quarles (1955), military police arrested an ex-serviceman in Pennsylvania and flew him to Korea to stand trial in a court-martial on charges related to his time in service. (See military justice and the constitution.) A writ of habeas corpus issued, Toth was returned to the United States, and the civilian court that had issued the writ ordered him released on the ground that he was a civilian not subject to military jurisdiction. More generally and more routinely, habeas proceedings have provided the means to define and enforce constitutional boundaries determining which persons and events may be tried without civilian courts and their procedures. Habeas corpus is a residual font of authority to ensure that the Constitution is not violated whenever individuals are imprisoned.

Indeed, habeas corpus proceedings are not limited to the enforcement of constitutional rights; they also open for scrutiny other issues of basic legal authority. For example, the writ has been used as a means to invoke judicial review of individual administrative orders for military conscription or alien deportation. The issues raised have included questions of statutory authority and the existence of a basis in fact for the official order. Most significant, the federal courts were unwilling to take general language precluding judicial review as barring habeas corpus; habeas corpus proceedings were held to be available even though the applicable statutes expressly provided that the administrative action should be final. Here again that position, insisting on the primacy of habeas corpus, was subsequently vindicated, and indeed, ratified by Congress in statutory revisions. Whether the Constitution entitles an individual to judicial review of military draft or immigration orders still has not been authoritatively resolved. One of the strengths of habeas corpus, however, is that it permitted that issue to be finessed. The availability of habeas corpus facilitated avoidance of an ultimate confrontation—which might well have resulted in a rejection of the constitutional claim—while securing reaffirmation of the principle that government is subject to the rule of law as applied in the ordinary courts.

Our focus to this point has been on the writ from a federal court directed to a federal officer or custodian. The matter becomes more complex when the issues involve the relationships between federal and state governments. Seizure of one government's agents by the other, and their release from resulting custody, can be crucial factors in a struggle for political power. It is no accident, then, that the writ has been involved—and had evolved—in jurisdictional battles within or among governments. This involvement was evident, as mentioned earlier, in the battle for parliamentary supremacy over the crown in Britain. The writ has also played an important role in the changing relationships of federal and state governments in this country, and has in turn been shaped by these evolving relationships.

When the first Congress gave the lower federal courts power to issue the writ, it limited the power to federal prisoners and, even as to them, did not provide for exclusive jurisdiction. The state courts, then, had concurrent jurisdiction to issue habeas corpus for federal prisoners and exclusive habeas jurisdiction for state prisoners. The succeeding centuries have witnessed a huge expansion of federal power, including a shift of much power from the states to the central government. As the power of the federal government grew, the federal courts gradually gained the power to issue writs of habeas corpus for state prisoners. At the same time, the power of state courts to issue habeas corpus for federal prisoners has narrowed and today is practically extinguished.

As with many American legal institutions the conflict over slavery figured prominently in the development. The Fugitive Slave Act of 1850, which was enacted as part of the compromise of 1850, increased federal power at the expense of the states. Enforcement of the act, which required return of escaped slaves to their owners, met strong resistance in Northern states. State courts would order the arrest of federal officers who attempted to enforce the act and would issue writs of habeas corpus to release individuals charged with violating the act. The federal officers were not helpless, however. Although the federal courts did not have general power to issue writs of habeas corpus for state prisoners, they had been empowered to release state prisoners imprisoned for actions taken pursuant to federal law. Congress had granted this power in 1833 in response to South Carolina's threat to arrest anyone who attempted to collect the federal tariff. The federal courts exercised the power in the 1850s and 1860s to release federal agents arrested for enforcing the Fugitive Slave Act. (See fugitive slavery.)

A more intractable problem was posed by state court writs of habeas corpus releasing individuals convicted in federal court of violating the Fugitive Slave Act. The Supreme Court resolved this problem in ableman v. booth (1859), holding that state courts did not have the power to release prisoners held pursuant to proceedings in federal court. Otherwise, the laws of the United States could be rendered unenforceable in states whose courts were in opposition. After the Civil War, the Supreme Court went further and held in Tarble's Case (1872) that state courts could not issue habeas corpus to release someone held under authority, or color of authority, of the federal government. A state court may only require the federal officer to inform it of the authority for a prisoner's detention; all further questions as to actions under color of federal authority are to be resolved in the federal courts. Habeas corpus cannot be entirely barred, but so long as the writ is available from the federal courts, state courts are effectively precluded from issuing habeas corpus on behalf of persons held in custody by the federal government.

The power of federal courts to issue habeas corpus for state prisoners followed the opposite course. The judiciary act of 1789 did not give the federal courts any such power and, until after the Civil War, these courts were granted it only in a limited number of circumstances. An example was the release of those seized for enforcing federal law, mentioned earlier. The habeas corpus act of 1867, however, was general, giving federal courts power to issue the writ "in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.…" Jurisdiction in essentially these terms continues to the present day.

The precise objectives of the 1867 act were never defined. The act aimed generally at extending the effectiveness of federal authority, particularly against resistance in the former slave states. Its terms extended to prisoners in state custody as to all other persons. Until well into the twentieth century, its thrust was principally against restraints without (or before) trial. Among other reasons, the federal Constitution had not yet been construed to impose any significant requirements for state criminal proceedings. In more recent times, federal habeas corpus has become a forum for challenging state criminal convictions on constitutional grounds. In terms of volume, this is the federal writ's principal use today.

This pattern evolved only sporadically, and only after a number of limiting concepts had been loosened. The first of these was a principle of long standing that habeas corpus was available to persons imprisoned under authority of a court, particularly following criminal trial and conviction, only on the grounds that the court had no jurisdiction to try him. If that court had jurisdiction, all challenges, including constitutional ones, were to be raised there. Trial court decisions were to be reviewable, if at all, by higher courts, not by collateral attack in other courts of the same level. It was often stated that habeas corpus was not to serve as a substitute for appeal.

The formal doctrine that the habeas corpus court would not look beyond whether the holding or convicting court had jurisdiction prevailed until near the middle of the twentieth century. Nevertheless, the scope of federal habeas corpus grew substantially even before that time. The concept of "lack of jurisdiction" is not inelastic, and the Supreme Court gradually expanded the meaning of that term to include constitutional violations that might be said to preclude a fair trial.

The first step in this expansion of the meaning of the issue of jurisdiction was to allow habeas corpus relief for a prisoner convicted of violating an unconstitutional law. Unconstitutional laws were null and void, it could be rationalized; thus the state court was without jurisdiction because no law authorized the conviction. The next step was to issue habeas corpus to remedy constitutional violations so gross as effectively to deprive the prisoner of a real trial. Such violations were held to be so fundamental that a court, proceeding in those circumstances, lost jurisdiction. Examples included mob-dominated trials and denial to defendants of opportunity to be heard. Reliance on the concept of lack of jurisdiction became more and more attenuated until, in Waley v. Johnston (1942), the Supreme Court explicitly abandoned that formal concept as linch-pin. From that time forward, the Court focused on more realistic considerations: whether the constitutional claims being asserted could not have been presented effectively in the original court that tried the case or on direct review of the conviction.

The concerns over the proper "deference" to be accorded by the habeas corpus court to the court that originally tried and convicted a prisoner arose even where both courts were federal. When federal habeas corpus was being sought by a state-convicted prisoner, these concerns were reinforced by further considerations of mutual respect and comity between state and federal systems. In response to these considerations, there developed early two substantial limits on the availability of federal habeas corpus for state prisoners: if the state courts had fully and fairly litigated the prisoner's claim, or if the prisoner failed to exhaust all state remedies, federal habeas corpus would not lie.

The requirement that state remedies be exhausted was established in Ex parte Royall (1886). To meet it, the prisoner must first press his claims to be free based on federal law, through the state courts. Thus, the prisoner must appeal his conviction or must seek state habeas corpus or other available postconviction remedy. (See exhaustion of remedies.) Under the Constitution's supremacy clause, state courts are required to follow and apply federal constitutional law. Principles of comity—essentially respect for the state courts' responsibility and ability to reach a correct decision—were seen to require that state courts be allowed an opportunity to correct their own errors before federal habeas corpus could be issued. The general exhaustion requirement is now codified in the statute governing habeas corpus.

In view of the exhaustion requirement, it may seem ironic that for many years presentation of the federal claim in state proceedings might mean that it could not thereafter be considered in federal habeas corpus. Federal collateral attack was barred if the state courts had sufficiently considered and passed upon the prisoner's constitutional claim. This is not so perverse as might first appear. Habeas corpus, as a collateral remedy, was to deal with serious constitutional problems involving circumstances outside the record or cognizance of the state courts. It would also serve where appellate consideration was unavailable or ineffective. If the state courts had adjudicated the federal constitutional contention adversely to the prisoner, on full and fair consideration and with effective appellate review, the remedy for error was to seek review in the United States Supreme Court. This was another aspect of the principle that habeas corpus was not to do service as an appeal.

The soundness of this reasoning depends, of course, upon Supreme Court reviews being available and effective. But whatever may once have been true, by the middle of the twentieth century that premise had clearly become unreliable. The Court's docket had grown to the point that it could pass on the merits of no more than a sixth of the cases in which its review was sought. The percentage has become even smaller in recent years. Moreover, even when available, appellate review in particular cases may be innately limited in significant respects because it must be conducted on the basis of a "cold" written record. Tones, attitudes, inflections of voice, and other subtle factors may exert powerful influences on outcomes and yet not be evident on the record. Beyond that, in many criminal proceedings an adequate written record may not even be produced. The significance of these factors in limiting the utility of Supreme Court review is greatly heightened when the applicable federal law is developing rapidly, and particularly if state judges are hostile to or less than entirely sympathetic with the direction of that development. Both of these conditions existed in the 1930s and 1940s and both intensified in the period following World War II, when the Supreme Court greatly expanded the procedural requirements imposed by federal constitutional law in state criminal prosecutions. Many requirements that previously governed only federal criminal procedure were "incorporated" into the fourteenth amendment and made applicable in state trials. (See incorporation doctrine.) Moreover, and surely of no less import, the Supreme Court was also expansively construing the equal protection clause of the Fourteenth Amendment to heighten prohibitions against racial discrimination. That attitude enhanced federal scrutiny of jury selection and other elements of state criminal proceedings. Particularly in the early stages of the development of these growing constitutional demands, there was reason to believe that many state judges might be less than fully sympathetic, if not directly hostile, to these new federal principles and doctrines.

Under these conditions, direct appellate review by the Supreme Court could not alone provide reliable and effective enforcement of federal constitutional guarantees in the state courts. Indeed, any tendency toward heel-dragging or resistance might well be encouraged by the knowledge that the statistical probability of federal appellate review was very low. Moreover, by diverting Supreme Court energy to enforcement of earlier holdings, resistance might effectively retard further development of the new doctrines.

Habeas corpus from federal courts probing the validity of state convictions could offer an alternative mode for securing effective enforcement of the new constitutional rights. Federal judges generally could be relied upon to be more in tune with Supreme Court developments than their state counterparts. Because the entire federal judiciary would be involved, case-load capacity would be much more equal to the task. Moreover, because trial-type hearings were possible, habeas corpus had the further advantage that the federal courts need not be dependent upon the state court record. These gains could, of course, be achieved only by abandoning the rule that barred consideration on federal habeas corpus of contentions that had been adjudicated previously in the state courts. The Supreme Court took that step in 1953 in Brown v. Allen.

Brown v. Allen represented a major extension of the functions of habeas corpus. Its holding, allowing federal reconsideration of issues previously considered fully by state courts, also effectively opened wide the range of constitutional contentions that could serve as sufficient grounds for seeking federal habeas corpus. From that point forward, it was clear that at the very least any constitutional claim that could be said to raise any significant issue of trial fairness would be open to consideration. That expansion of the scope of habeas corpus serves important ends, but it has significant costs.

One of these costs is the adverse reaction of many state judges. The result of Brown v. Allen is that federal courts on habeas corpus may reexamine a state prisoner's constitutional challenges to his conviction after a state court has considered and rejected those same challenges. Because the prisoner must exhaust his state remedies before federal habeas corpus, normally the federal constitutional claims have been pressed not only at the state trial but throughout the state court system, including the state supreme court. The upshot of the new role of federal habeas corpus, then, is that a single federal district judge routinely may review the determination of the highest court of a state and, if he disagrees with it, overturn the conviction that the collegial, multimember court had upheld.

People and state officials in general, and state supreme court justices in particular, long since have become accustomed to review by the Supreme Court of the United States. Whatever may have been thought in their time of the challenges raised and rejected in martin v. hunter ' s lessee (1816) and cohens v. virginia (1821), the higher authority of the Supreme Court in matters of federal law has been fully accepted. There has not been a corresponding acceptance of the habeas corpus authority of lower federal court judges. That federal judges may be more in accord with developing Supreme Court doctrines, though offered as justification, does not palliate the felt insult. On the contrary, if state judges are hostile to those developments, that fact exacerbates it. If the state court justices see themselves as entirely in accord with the Supreme Court's developing doctrines, the routine reexamination by a single district judge may still be offensive, to some perhaps even more so. On occasion, state courts have even openly refused to pass upon a constitutional claim on the grounds that a federal judge would pass on it anyway. On balance, the expansion of federal habeas corpus jurisdiction has almost certainly enhanced even state court enforcement of federal constitutional rights, but the felt slight to status and the consequent resentment are real.

At least as important as the resentment of state judges is the concern that the wide availability of federal habeas corpus may dilute the deterrent effect of the criminal law. Part of this concern grows out of the belief that deterrence is enhanced by certainty of punishment and that the expansion of federal habeas corpus increases the possibility that a conviction may be overturned. Certainly, the availability of federal habeas corpus, after the full range of state court remedies, does mean that the finality of a conviction is greatly delayed, even when the conviction is ultimately upheld. Moreover, the knowledge that the ultimate decision can always be greatly delayed itself diminishes any general sense in the community that punishment may be swift or certain.

When the conviction is overturned years after the trial and even longer after the alleged crime, these effects are exacerbated. Although the usual habeas corpus remedy is to order release only if the prisoner is not retried and convicted within a reasonable time, retrial after considerable delay may be practically impossible: witnesses may have died or disappeared; memories inevitably fade; other evidence may be lost. In those instances a reversal on procedural grounds amounts to a full release.

In fact, the proportion of habeas corpus proceedings that result in any victory for the prisoner is exceedingly small. But the effect of those few cases may be far greater than their number, particularly if a case was notorious in the community. Each such incident attracts attention and presumably lessens the deterrent effect of the criminal law. It may also be important that each raises questions for the citizenry at large who are already fearful about the capacity of the system to cope with crime.

Finally, the rehabilitative functions of the penal system may be affected. It has been suggested that demonstration of society's deep concern for fair procedure is useful, and even that channeling prisoners' efforts into litigation may be helpful. But it is more likely that the indefinite stringing-out of a conclusion is counterproductive. As Justice lewis f. powell, concurring in schneckloth v. bustamonte (1973), wrote: "No effective judicial system can afford to concede the continuing theoretical possibility that there is error in every trial and that every incarceration is unfounded. At some point the law must convey to those in custody that a wrong has been committed, that consequent punishment has been imposed, that one should no longer look back with the view to resurrecting every imaginable basis for further litigation but rather should look forward to rehabilitation and to becoming a constructive citizen."

The concerns expressed are real and significant, but they can be accommodated only by restricting the scope of federal habeas corpus. That in turn involves a judgment as to the necessity of having federal judges routinely available to consider particular claims of constitutional violations. Every constitutional claim is important. But the issue here is not whether a constitutional right shall be declared, or whether rights so declared shall be binding on state courts and subject to review and enforcement by the federal Supreme Court. The issue is whether there should be an additional, collateral channel for routine reexamination of every state court rejection of every constitutional claim asserted in a criminal proceeding.

While perhaps in theory all constitutional rights are equal, there are differences among them. For one thing, there may be substantial differences in the justifications for, and consequences of, seeking thoroughgoing enforcement of particular rights in every case where they may be colorably claimed. The Supreme Court has recognized as much in holding that some newly established constitutional rights should be given full retroactive effect (applying to all habeas corpus cases regardless of when the original conviction was obtained) and others should not. In at least one sense it is fair to characterize these decisions as holding some constitutional rights to be more fundamental than others.

Furthermore, constitutional rights serve different sets of purposes. Most procedural requirements in criminal prosecutions are designed to minimize the likelihood of an erroneous conviction, for example, the right to counsel or the right to confront prosecution witnesses. (See confrontation.) Others are designed to protect personal privacy or dignity at trial or in the society; among these are the rules against unreasonable searches or seizures, and the right against self-incrimination. Finally, there may be relevant distinctions between rights and remedies. Thus, the rule excluding evidence obtained by prohibited police actions may be viewed as a means to deter official misconduct rather than an independent right.

These distinctions may be highly relevant in determining the appropriate scope of federal habeas corpus in reexamining state court convictions. Consider, for example, the exclusionary rule that evidence obtained by an unconstitutional search may not be used in a criminal prosecution. State convictions obtained after such evidence has been introduced are invalid and subject to reversal on direct Supreme Court review. (See mapp v. ohio, 1961). But if in a particular case the state courts should decide that the search was legal, how important is it that the decision be reviewable on federal habeas corpus—even assuming that the state decision might be wrong and yet not important enough to warrant Supreme Court attention? Illegally seized evidence does not mean actually unreliable evidence; in fact, such evidence is generally highly probative (for example, the drugs themselves in a prosecution for possession or sale of narcotics). The ban on unreasonable searches and the exclusionary rule do not protect against convicting the wrong person; they aim to protect individual privacy and control police conduct. Thus the sole purpose of extending habeas corpus to encompass the exclusionary rule would be to enhance the rule's deterrent effect. But that enhancement would be only marginal, i.e., only to the extent of whatever additional disincentive might be generated by the extra possibility of a conviction, upheld by the state courts, being overturned years later on federal habeas corpus. At the same time, any such gain could be only obtained at the cost of the side effects of habeas corpus already described, including particularly the problems involved in releasing individuals who have been proven to have violated the law.

The Supreme Court has vacillated on precisely this issue. After many years in which federal habeas corpus was held to encompass claims under the exclusionary rule, the Court in stone v. powell (1976) decided that it would not be available to review decisions of search and seizure issues reached after full consideration.

That decision stirred much debate. Perhaps as a result of the prominent role of lawyers and judicial review in interpreting the Constitution, there is a tendency to focus attention on the borderlines of case law development. That perspective can be misleading. What is more important than the decision to exclude search and seizure issues is the scope of federal habeas corpus for state prisoners that remains available. Constitutional claims need not be related to ultimate accuracy of conviction in order to be included. Moreover, despite strong suggestions from respected sources that the prisoner's factual innocence ought to be a major element in the availability of habeas corpus relief, the Court has not adopted that position. By any measure, the range of constitutional claims that may be raised and relitigated in federal habeas corpus is far greater than those few precluded—and then only after full and fair state consideration.

Similarly, much of the legal writing concerning habeas corpus today deals with its use to challenge criminal convictions. It is sometimes even suggested that Congress could not constitutionally restrict the scope of that kind of habeas corpus. Related to this, but more generally, it is argued that the provision of Article I, section 9, against the suspension of the privilege of habeas corpus should now be interpreted as prohibiting Congress from suspending or limiting federal habeas corpus—including habeas corpus for state convicted prisoners. The argument generally acknowledges that this was not the original intention of the suspension clause. It contends, rather, that in view of subsequent developments and present conditions, the original purpose now calls for extending it to cover habeas corpus from federal courts.

While these arguments, and the general issue of federal habeas corpus for persons held under state court convictions, are important, too exclusive a focus on them risks distorted perspective. Far more significant than the existence of these arguments, or their validity, is their currently academic nature. Despite strenuous objections to the jurisdiction, Congress has not significantly restricted the scope of federal habeas corpus for state prisoners. Moreover, it does not derogate from the importance of this use of habeas corpus to point out that at base the availability of the Great Writ to challenge executive or military actions or other imprisonments without semblance of judicial process is far more vital to the maintenance of liberty. Even the most ardent advocates of collateral attack on judicial convictions are not likely to disagree.

It is surely a measure of the state of liberty in the United States that so much can be taken for granted. Habeas corpus for extraordinary assertions of executive, military, or other nonjudicial authority comes to the fore only rarely—and that is a measure of freedom's health in the nation. Yet it is that general freedom from that kind of arbitrary authority that is most crucial. Habeas corpus has helped to secure that freedom in the past, and its continuing availability helps secure it continually. It is true that liberty is most prevalent when habeas corpus is needed least. It is also true that the effectiveness of the remedy of habeas corpus is dependent upon the substantive criteria that come into play. Yet the existence of the Great Writ, indeed precisely in its taken-for-granted quality, plays a major role in supporting and reinforcing the conditions of freedom.

Paul J. Mishkin
(1986)

Bibliography

Bator, Paul M. et al. 1973 Supplement 1981 Chaps. I, IV, and Xin Hart & Wechsler's The Federal Courts and the Federal System, 2nd ed. Mineola, N.Y.: Foundation Press.

Chafee, Zechariah, Jr. 1952 How Human Rights Got into the Constitution. Pages 51–74. Boston: Boston University Press.

Cover, Robert M. and Aleinikoff, T. Alexander 1977 Dialectical Federalism: Habeas Corpus and the Court. Yale Law Journal 86:1035–1102.

Duker, William F. 1980 A Constitutional History of Habeas Corpus. Westport, Conn.: Greenwood Press.

Friendly, Henry J. 1970 Is Innocence Irrelevant? Collateral Attack on Criminal Judgments. University of Chicago Law Review 38:142–172.

Hart, Henry M. 1953 The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic. Harvard Law Review 66:1362–1402.

Note 1970 Developments in the Law—Federal Habeas Corpus. Harvard Law Review 83:1038–1280.

Oaks, Dallin H. 1966 Legal History in the High Court—Habeas Corpus. Michigan Law Review 64:451–472.

Habeas Corpus

[Latin, You have the body.] A writ (court order) that commands an individual or a government official who has restrained another to produce the prisoner at a designated time and place so that the court can determine the legality of custody and decide whether to order the prisoner's release.

Day v. McDonough

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, imposed time limits on prisoners who sought to file petitions for writs of habeas corpus. If a prisoner waits too long, the statutes of limitations will bar a federal court from considering the action. Prosecutors routinely check the timing deadlines on newly filed habeas petitions and sometimes they mistakenly conclude petitions are timely. The Supreme Court, in Day v. McDonough, ___U.S.___, 126 S.Ct. 1675, __L.Ed.2d __ (2006), was called on to decide if it was proper for a federal district judge to dismiss a habeas petition as untimely on his own initiative, even though the prosecutor had answered the petition and had not contested its timeliness. The Court ruled that courts are not required to dismiss on their own volition but are permitted to do so if they give the prisoner notice and a chance to prove the petition was timely.

Patrick Day was convicted of second-degree murder in Florida state court and sentenced to 55 years in prison. He appealed, unsuccessfully, to the Florida Court of Appeals, which entered its decision in December 1999. He waited almost one year before filing a petition for postconviction relief with the trial court. The court denied relief as did the appeals court in December 2002. In January 2003 he petitioned the federal district court for a writ of habeas corpus, citing ineffective assistance from his trial lawyer. The federal magistrate judge screened the petition and found it in proper form, notifying the prosecutor to file an answer. Under the AEDPA Day had one year to file the petition, running from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. However, the law also suspends the one-year clock during the time a prisoner properly files a state postconviction petition. The prosecutor miscalculated the limitations period, finding that the petition had been filed after 352 untolled days, beating the deadline by 13 days. In its answer, the state accepted the timeliness of the petition. The magistrate judge discovered the state's computational error; the petition had actually been filed 388 days after the state appeals court denied his petition.

The magistrate judge ordered Day to show why his petition should not be dismissed as untimely. Finding Day's answers unpersuasive, the magistrate recommended to the district court judge that the petition be dismissed. The judge agreed and dismissed Day's habeas petition. The Eleventh Circuit Court of Appeals allowed Day to appeal the dismissal but upheld the ruling. The appeals court found that the district court could on its own initiative dismiss the appeal as untimely, despite the fact that the state had failed to raise the issue in its answer to the petition. The Supreme Court agreed to hear Day's appeal because the circuit courts of appeals had disagreed over whether a district court could dismiss a habeas petition in such circumstances.

The Supreme Court, in a 5-4 decision, upheld the Eleventh Circuit ruling. Justice Ruth Bader Ginsburg, writing for the majority, stated that courts are not obligated to raise the statute of limitations issue on their own initiative. However, courts may, in appropriate circumstances and on their own initiative, raise procedural defaults made by petitioners. Day argued that under the federal rules governing habeas petitions the court may only raise AEDPA statute of limitations issues on its own initiative during the preanswer, initial screening stage. The magistrate judge in this case failed to do so, taking action only after the prosecutor filed an answer to the petition. Therefore, Day contended that the court lost its authority to rule the petition untimely on its own volition. In addition, the Federal Rules of Civil Procedure, which supplement the habeas rules, state that a defendant forfeits a statute of limitations defense if it is not asserted in its answer. The state countered that the purposes of the AEDPA counseled against an "excessively rigid or formal approach to the affirmative defenses" listed in the habeas rules. Instead, it proposed an "intermediate approach" in which the courts may exercise their discretion to decide whether "the administration of justice is better served by dismissing the case on statute of limitations grounds or by reaching the merits of the petition."

Justice Ginsburg concluded that the state's intermediate approach was the most workable solution. A district court was "not required to double-check the State's math," but "if a judge detects a clear computational error, no Rule, statute, or constitutional provision commands the judge to suppress that knowledge." A court that did detect such an error was obligated to give the parties notice and an opportunity to present their positions. In addition, the court must be sure that the petitioner is not "significantly prejudiced by the delayed focus on the limitation issue" and determine what is in the best interests of justice. In this case the court gave notice nine months after the state filed its answer. During that period there were no court hearings or any action on the case. Justice Ginsburg found that Day had not been prejudiced by this inadvertent error.

Justice John Paul Stevens filed a dissent, arguing that another case the Court would hear in its next term would determine if the Ninth Circuit precedent on time calculations under the AEDPA was correct. Stevens thought it best to delay the decision for Day in the Supreme Court until this issue had been resolved. Justice Antonin Scalia, in a dissenting opinion joined by Justices Clarence Thomas and Stephen Breyer, accused the majority of ignoring the Federal Rules of Civil Procedure in habeas cases. Under these rules a party that fails to raise an affirmative defense in its answer to a complaint forfeits that defense. In his view the "rules are surely entitled to more respect than this apparent presumption that, when nothing substantial hangs on the point, they do not apply as written."

Evans v. Chavis

The federal courts have continued to struggle with the procedural rules governing petitions for writs of habeas corpus that Congress included in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. AEDPA sought to reduce the number of habeas filings by imposing strict timelines on petitions, but the federal courts must rely on state court determinations on whether a petition is timely. The state of California, unlike most other states, does not set firm time limits for the filing of state petitions for habeas corpus. This has produced confusing readings of time limits that the U.S. Supreme Court has tried to make understandable. In Evans v. Chavis, ___U.S.___, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006), the Court, in ruling that a federal habeas petition was untimely, chastised a federal appeals court for failing to follow a recent Court ruling and appealed for California legislators and judges to end timing uncertainties.

In 1991, Reginald Chavis was convicted of attempted murder by a California jury and sentenced to life in prison. After his conviction was upheld by the California Court of Appeals and his petition for review to the California Supreme Court was denied in 1992, Chavis sought a postconviction remedy by filing a state habeas corpus petition in 1993. The trial court denied the petition and he lost his appeal to the California Court of Appeals on September 29, 1994. Chavis waited more than three years to file a petition for review with the state supreme court, filing it on November 5, 1997. On April 29, 1998 the supreme court denied his petition, stating only that the writ for habeas corpus was denied. Chavis filed a federal habeas petition on August 30, 2000. The state of California asked the federal district court to dismiss the petition because it was untimely. Under AEDPA, prisoners have only one year to file their federal petitions. However, the act also included a toll-the one-year time period while an application for a state habeas review is "pending." With Chavis, the federal court had to calculate how many days his state habeas review applications had been pending in the state courts and add these days to the AEDPA one-year limitation period. The district court performed the calculation and concluded that Chavis' petition must be dismissed as untimely.

The Ninth Circuit Court of Appeals disagreed with how the district court calculated the time and reversed its decision. The appeals court concluded that the California Supreme Court's 1998 order denying the petition for review was denied on the merits of Chavis' claim and not because it was untimely. Therefore, this petition was "pending" for AEDPA purposes during the interval between the 1994 Court of Appeals decision and the 1997 Supreme Court petition and the one-year federal filing period was tolled for that amount of time. By adding three years to the federal limitations period, Chavis' petition was timely by just two days.

The Supreme Court, in a unanimous decision, ruled that the Ninth Circuit had ignored or misread a recent Court habeas decision and must be reversed. Justice Stephen Breyer, writing for eight justices (Justice John Paul Stevens issued a separate opinion agreeing with the outcome but differing on the reasoning), noted the importance of Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002), to the present case. In that California habeas appeal, ruled on by the Ninth Circuit, the Court was confronted with the California rule that a petition is timely if filed within "a reasonable time." Because this timeline was "general rather than precise" the task of calculation of time by a federal court more difficult. The Court sent Saffold back to the Ninth Circuit to decide whether the prisoner had filed his California Supreme Court habeas petition within a "reasonable time." The Court also provided some guidelines to the appeals court, including one that stated the words "on the merits" did not prove that the California Supreme Court thought the petition was timely. The Court emphasized that the Ninth Circuit must not take words like "on the merits" as an "absolute bellwether" on the issue of timeliness. It also gave as an example of an incorrect approach by the Ninth Circuit a case in which the appeals court found a petition timely that had been file four years after the lower court reached its decision.

Justice Breyer agreed with California that the Ninth Circuit's ruling in favor of Chavis was inconsistent with the Saffold decision. The Ninth Circuit concluded that a denial on the merits of Chavis's petition meant the federal petition was timely, when the Court had clearly stated not to make that presumption. Moreover, the denial of the petition had not even stated that it had been based on the merits-the Ninth Circuits assumed this silence was equivalent to the phrase "on the merits." Justice Breyer thought it obvious that the absence of the phrase "makes it less likely, not more likely, that the California Supreme Court believed that Chavis' three-year delay was reasonable."

The frustration of the Court with California's reluctance to adopt firm time standards led Justice Breyer to ask the California courts to consider some helpful changes. The courts could clarify the scope of the words "reasonable time" or indicate on a petition denial order whether the petition had been timely. The Ninth Circuit could remove itself from the timeliness issue by certifying a question to the California Supreme Court asking whether a petition had been timely filed. Finally, Justice Breyer suggested the California state legislature could "impose more determinate time limits, conforming California law in this respect with the law of most other States."

As to the Chavis case, Justice Breyer rejected the prisoner's claims that he was delayed in filing because he had been denied access to the prison library and been held for long periods in his cell during prison lockdowns. Breyer pointed out that Chavis was able to gain more access to the library as time went on and that at least six months of the delay was unjustified. A six-month delay was much longer than the 30 to 60 days that most states provided for supreme court appeals, making Chavis' failure to file unreasonable. By cutting out the six months from the tolling period the federal habeas petition did not meet the federal filing deadline.

House v. Bell

Congress and the U.S. Supreme Court have put up many obstacles for a prisoner seeking habeas corpus review. One roadblock occurs when a prisoner fails to raise issues in a state court that he later wishes to argue in a federal petition for a writ of habeas corpus. The general rule is that the prisoner forfeits these claims in a federal habeas action. However, the Supreme Court has allowed an exception to this rule if the prisoner can make a plausible claim of innocence that is based on newly discovered evidence. This exception is exceedingly difficult to claim, but the Court allowed it in House v. Bell, ___U.S.___, 126 S.Ct., __L.Ed.2d __ 2006 WL 1584475 (2006), basing it decision primarily on DNA evidence that was unavailable at the time of the criminal trial and which would have given reasonable jurors reasonable doubt as to the guilt of the defendant.

Paul House was convicted of murder for the killing of Carolyn Muncey in Union County, Tennessee in 1985 and sentenced to death. House, who was on parole for a sex offense in Utah, was convicted on the theory that he lured the young mother from her home by telling her that her husband, Hubert, had been injured in a car accident. Her body was discovered in an area where witnesses saw House. House lied about his whereabouts the night before and had discarded his shoes and other clothing before his arrest. Police found his pants, which the FBI expert witness at trial said contained traces of Muncey's blood. Semen was found on Muncey's nightgown and the expert concluded that it was House's. At closing argument of the guilt phase the prosecutor implied that House had sought to sexually assault Muncey. At the penalty phase the jury agreed that the murder was committed during an attempted rape and that this was an aggravating factor that justified the death penalty. House appealed his conviction to the Tennessee Supreme Court, which affirmed the decision. He then filed a petition for postconviction relief, arguing that he had received ineffective assistance of counsel. The Tennessee state courts denied relief, leading House to file a petition for habeas corpus in federal court based on his ineffective assistance of counsel claim and prosecutorial misconduct. The federal district court dismissed his petition after reviewing House's new evidence, which included challenges to the blood and semen evidence and the testimony of witnesses who claimed that Carolyn Muncey had been abused by her husband, and other witnesses who claimed that Hubert Muncey had confessed to them that he had murdered his wife. The Sixth Circuit Court of Appeals affirmed the dismissal but the Supreme Court agreed to hear House's appeal.

The Court, in a 5-3 decision (newly confirmed Justice Samuel Alito did not participate in the consideration of the case), reversed the Sixth Circuit and held that House was entitled to a hearing on his ineffective assistance of counsel claim. Justice Anthony Kennedy, writing for the majority, acknowledged that as a general rule claims forfeited under state law cannot be considered by a federal court in a habeas action unless, as here, there was a miscarriage of justice. In Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), the Court created a "gateway" for a prisoner such as House to get his defaulted claims before a federal court so as to prevent "manifest injustice." Under this ruling the prisoner must establish with the new evidence that "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Kennedy noted that the Schlup standard was demanding and that it was reserved for "extraordinary" cases. Despite this limitation, Kennedy concluded that district court had failed to correctly apply the Schlup reasonable juror standard and that the evidence House offered met the standard.

The DNA evidence undermined the prosecution case because it conclusively proved that the semen came from Hubert Muncey, not House. Kennedy stated that "When identity is in question, motive is the key." The prosecutor had implied at the guilt stage that House, a convicted sex offender, had sought to perpetrate an "indignity" on Mrs. Muncey. This was reinforced in the penalty phase when the jury concluded that the murder was committed in the course of a rape or kidnapping. A jury would have had to find another motive for House to have committed the crime if it had known the semen was not his. Kennedy was also troubled by the bloodstain evidence. The FBI lab had concluded that the blood on House's pants came from Mrs. Muncey. However, there was evidence to show that the blood samples from Mrs. Muncey leaked out the bottle while it was transported to the FBI lab. The pants were in the same box and House contended that the blood came from the autopsy samples and not from Mrs. Muncey's live or recently killed body. The assistant chief medical examiner for the Tennessee testified that the blood on the pants was chemically too degraded and similar to the blood collected at the autopsy to have come from Muncey's body on the night of the murder.

Justice Kennedy also found merit in the witnesses House's original lawyer failed to locate and put on the witness stand. Several neighbors testified that Mr. Muncey had struck his wife and that she had bruises and black eyes on several occasions. More importantly, two sisters came forward years after the trial to say that Mr. Muncey had confessed to them that he had struck his wife that night and that she had fallen, struck her head, and died. Kennedy pointed to other new evidence that contradicted Mr. Muncey's alibi the night of the crime and con-cluded that "no reasonable juror viewing the record as a whole would lack reasonable doubt." He made clear that this was not a "conclusive exoneration" and that decision only meant that House was entitled to a full hearing on his habeas claims. However, the Court's decision and reasoning will serve as a guide for the district court when it takes up House's case again.

Chief Justice John Roberts, in a dissenting opinion joined by Justices Antonin Scalia and Clarence Thomas, contended that the Court had failed to pay due deference to the federal district court's review of the new evidence. An appellate court does not hear testimony, so it made no sense to try to make credibility determinations. Roberts argued that unless the Court found the lower court's findings "clearly erroneous," it should not disturb the findings. In this case he believed the district court was not in error.

Rice v. Collins

One of the most difficult duties for an appellate court to perform is to make conclusions of fact based on trial court transcripts. Because it is very hard to make judgments about credibility and motives using a paper record, appellate courts generally refrain from these inquiries unless the trial court's ruling was irrational. In Rice v. Collins, __U.S.__, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), the Supreme Court reinforced this position, ruling that a federal circuit court of appeals improperly overruled a credibility determination made by a state trial judge examining whether the prosecutor challenged a juror because of her race. The Court made clear that in a federal habeas corpus proceeding, courts must defer to reasonable factual determinations made by state trial judges.

A California jury convicted Steven Collins on one count of cocaine possession with the intent to distribute. This was Collins' third conviction, subjecting him to a long prison sentence under the California three strike rule. Collins disputed the fairness of his trial, claiming that the prosecutor had improperly used a peremptory challenge to remove a black female from the jury. With a peremptory challenge, a prosecutor can remove a juror without giving a reason for cause for the challenge. However, the Supreme Court held in Batson v. Kentucky, 476 U.S.79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), that peremptory challenges based on race are prohibited. A defendant can challenge an allegedly race-based peremptory challenge through a three-step process. The trial court must first decide if the defendant has made a prima facie showing that the challenge by the prosecutor was exercised on the basis of race. If that showing is made the prosecutor must present a race-neutral explanation for striking the juror. The explanation does not need to be persuasive or even plausible; if the reason is not inherently discriminatory then the peremptory challenge must be allowed. The trial judge must evaluate the "persuasiveness of the justification" made by the prosecutor but the defendant has the ultimate burden of persuasion regarding racial motivation.

Collins met his prima facie burden because the juror in question was black. The prosecutor explained to the trial judge that Juror 16, as the woman was labeled, had rolled her eyes in response to a question from the judge. In addition, the juror was young and might be too tolerant of a drug crime. The prosecutor also noted that the Juror 16 was single and lacked ties to the community. Finally, the prosecutor mentioned the juror's gender. The judge rejected the gender explanation as improper under a later Supreme Court ruling banning peremptory challenges based on gender. The judge stated that he had not observed the demeanor of Juror 16 but found that the challenge was permissible based on the juror's youth.

Collins appealed his conviction to the California Court of Appeals, which upheld the verdict and the judge's peremptory challenge decision. The appeals found that youth was a legitimate reason as was the juror's demeanor. Moreover, the court concluded that the trial judge had conducted a full inquiry into the prosecutor's reasons for striking Juror 16. After the California Supreme Court rejected his petition for review, Collins filed a habeas corpus petition in federal district court. The district court denied his petition but the Ninth Circuit Court of Appeals reversed and remanded with instructions to grant the petition. The Ninth Circuit panel held that the state trial court judge had made an unreasonable factual determination by crediting the prosecutor with race-neutral reasons for removing Juror 16 from the case.

The U.S. Supreme Court, in a unanimous decision, reversed the Ninth Circuit ruling. Justice Anthony Kennedy, writing for the Court, noted that on direct appeal a trial court's Batson determination is reviewed for clear error. However, under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, a federal habeas court must find the state-court conclusion "an unreasonable determina-tion of the facts in light of the evidence presented in the State court proceeding." State court factual findings are presumed correct and a petitioner like Collins has the burden of rebutting this presumption by "clear and convincing evidence." The Ninth Circuit ruled that it was unreasonable for the trial court to accept the prosecutor's explanation but Justice Kennedy saw it much differently when examining the record.

The Ninth Circuit believed the focus on the juror's age was more complicated. Another prospective black juror, Juror 19, who was a grandmother, was referred to as "young" by the prosecutor. Justice Kennedy believed that it plausible that the prosecutor misspoke "with respect to a juror's numerical designation." It was at best a "tenuous inference" that this reference could undermine the prosecutor's credibility over Juror 16. Second, the appeals court found that the trial judge should have questioned the prosecutor's credibility when she raised the issue of gender. Kennedy pointed out that the trial court had immediately informed the prosecutor that it would not accept gender as a race-neutral explanation. Because the prosecutor provided other plausible race-neutral reasons, Collins could not prove that a "reasonable factfinder must conclude the prosecutor lied about the eye rolling and struck Juror 16 based on her race. Finally, the Ninth Circuit concluded the prosecutor's concerns about the juror's youth and her lack of ties to the community were pretextual. Juror 16 had stated during jury selection that she thought the crime that Collins was charged with should be illegal and that she could be impartial. However, Justice Kennedy held that it was not unreasonable for the prosecutor to worry that Juror 16 would have a harder time than an older person sentencing Collins to a lengthy prison term for a small amount of cocaine. In addition, the prosecutor used a peremptory challenge to remove a white male juror who was young and without strong ties to the community. Though "reasonable minds reviewing the record might disagree about the prosecutor's credibility," in a habeas review "that does not suffice to supersede the trial court's credibility determination." Therefore, the Ninth Circuit had failed to "satisfy AEDPA's requirements for granting a writ of habeas corpus."

HABEAS CORPUS

Latin, You have the body. A writ (court order) that commands an individual or a government official who has restrained another to produce the prisoner at a designated time and place so that the court can determine the legality of custody and decide whether to order the prisoner's release.

Gonzalez v. Crosby

The main issue addressed in Gonzalez v. Crosby, 545 U.S. __, 125 S.Ct. 2641, __ L.Ed.2d __ (2005), was whether the U.S. Court of Appeals for the Eleventh Circuit erred in holding that petitioner's Rule 60(b) motion constitutes a prohibited "second or successive" habeas petition under provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1241 as a matter of law. Section 2244(b) of the AEDPA precludes the filing of second or successive petitions without pre-certification by a court of appeals.

Gonzalez entered a guilty plea in Florida state court for armed robbery and was sentenced to 99 years in prison. He did not directly appeal his conviction or sentence, but twelve years later he filed two state habeas petitions attacking his conviction on the basis of newly discovered evidence that showed that his guilty plea had been involuntary and unknowing. The state courts denied his petitions, and in 1997 he filed a federal habeas petition in U.S. District Court for the Southern District of Florida, alleging that his guilty plea had not been entered knowingly and voluntarily.

The district court dismissed his petition as time-barred by AEDPA's one-year statute of limitations , 28 U.S.C. §2244(d). It reached that conclusion by determining that the statute of limitations was not tolled during the 163 days while Gonzalez's second state petition was still pending. The Eleventh Circuit denied a certificate of appealability, and Gonzalez did not file for rehearing or review of that decision, which was rendered in 2000.

Later in 2000, the U.S. Supreme Court issued a decision in Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213, in which it held that a state petition for post-conviction relief can nonetheless toll the federal statute of limitations even if, ultimately, the petition is dismissed as procedurally barred. Almost nine months later, Gonzalez filed a "Motion to Amend or Alter Judgment" in federal district court, ostensibly under Federal Rule of Civil Procedure 60(b)(6), which permits a court to relieve a party from the effect of a final judgment.

The district court again denied relief, and the Eleventh Circuit affirmed the denial. Importantly, and for purposes of Supreme Court review, the appellate court held that the Rule 60(b) motion was substantively a "second or successive" habeas petition, which, under the AEDPA, could not be filed without precertification by the court of appeals.

Justice Antonin Scalia delivered the opinion of the Court, which held that, because Gonzalez's Rule 60(b) motion had challenged only the district court's previous ruling on the AEDPA's statute of limitations, it was not the equivalent of a "successive" habeas petition. Therefore, the district court could rule upon it without precertification by the Eleventh Circuit.

The Court held that Rule 60(b) applies in AEDPA's Section 2244 proceedings only to the extent that it is not inconsistent with other applicable federal statutes and rules (28 U.S.C. 2254, Rule 11). Because AEDPA's Section 2244(b) is only invoked where a court is acting pursuant to a prisoner's habeas corpus application, the question becomes whether a Rule 60(b) motion is such an application. The relevant text of Section 2244(b) shows that an application is a filing containing one or more claims. Other statutes and Supreme Court decisions clearly recognize such a claim as an asserted federal basis for relief from a state-court conviction. If a Rule 60(b) motion contains one or more claims, then it is tantamount to a habeas corpus application and therefore would be subject to AEDPA's restrictions on successive petitions.

If there is no claim presented, as in Gonzalez's case, there is no basis for contending that such motion should be treated like a habeas petition. Gonzalez's motion alleged that the federal district court had misapplied the AEDPA's Section 2244(d), relating to the applicable statute of limitations. His motion did not substantively address federal grounds for setting aside his conviction; therefore, allowing his motion to proceed on its own terms would create no inconsistency with the habeas corpus statute or rules.

The district court properly denied relief, according to Justice Scalia. Neither the lack of diligence that Gonzalez showed in filing his very late petition nor any change in law resulting from Artuz rose to the level of an "extraordinary circumstance" justifying relief under Rule 60(b)(6).

Justice Scalia was joined in the majority opinion by Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, and Stephen Breyer. Justice Breyer filed a separate concurring opinion. Justice John Paul Stevens filed a dissent, joined by Justice David Souter, in which he agreed with the Court's conclusion but disagreed with its decision to rule on the merits of the motion in the first instance .

Mayle v. Felix

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1241, places a one-year time limit on the filing of habeas corpus petitions in the federal district court . Congress sought to speed up the habeas process through this statute of limitations ; another provision bars the filing of multiple petitions. Despite the seemingly unambiguous one-year statute of limitations, the federal courts of appeals were soon faced with prisoners who sought to amend their petitions after the expiration of the AEDPA time limit. The courts of appeals came to contrary conclusions—some allowed the amended petition, while others ruled that they were time-barred because they raised new issues unrelated to matters argued in the original petition. The U.S. Supreme Court was again called upon to resolve the issue. In Mayle v. Felix, 544 U.S. __, 125 S.Ct. 2562, __ L.Ed.2d __ (2005), the Court held that habeas petitions could not be amended after the one-year period if the new claims were not related to the initial habeas claims.

Jacoby Felix was convicted in California state court of first-degree murder and second-degree robbery . He received a life sentence. Felix appealed his conviction, arguing that the trial court had violated his Sixth Amendment right to confront witnesses by allowing the playing of a videotaped statement by a witness. The California Court of Appeals affirmed his conviction, and the California Supreme Court declined his petition to review the case. Felix promptly filed, in a California federal district court, a petition for a writ of habeas corpus that he had written himself. He based his claim on the Sixth Amendment issue. Within a few weeks, the federal district court appointed an attorney to represent Felix and ordered him to file an amended petition.

Eight months later, Felix's attorney filed the amended petition, which contained a Fifth Amendment claim: Felix argued that he had been coerced by the police, after his arrest, to make incriminating statements that the prosecution used at his trial. The prosecutor moved the court to dismiss the Fifth Amendment claim because Felix had filed it five months after the expiration of the AEDPA one-year time limit. Felix argued that the court should accept this claim because it related back to the date of his original petition. Under Rule 15 (c)(2) of the Federal Rules of Civil Procedure, a petitioner may amend a petition when a claim arose out of the "conduct, transaction, or occurrence set forth…in the original pleading." Felix contended that the constitutionality of his criminal conviction was the "transaction" that justified the acceptance of the amended petition. The district court agreed with the prosecutor, dismissing the Fifth Amendment claim because it was not based on the videotaped statement, which was the conduct, transaction, or occurrence at issue. The court also dismissed the Sixth Amendment claim on its merits. The U.S. Court of Appeals for the Ninth Circuit upheld the dismissal of the Sixth Amendment claim but reversed the Fifth Amendment claim dismissal. The appeals court ruled that the relevant "transaction" under Rule 15 (c)(2) was Felix's "trial and conviction in state court." It was reluctant to define the transaction at a greater level of specificity, as that would divide the trial into a "series of perhaps hundreds of individual occurrences." The U.S. Supreme Court agreed to hear the appeal because the circuit courts were divided over the time to permit amended habeas petitions.

The Court, in a 7-2 decision, overruled the Ninth Circuit. Justice Ruth Bader Ginsburg, in her majority opinion, noted that a separate set of rules govern federal habeas proceedings started by state prisoners. Habeas Corpus Rule 2(c) mandates that a petition specify all the grounds for relief and the relevant facts to support each ground. In addition, the model form given to help prisoners complete their petitions contains boldfaced text that warns, "If you fail to set forth all grounds in this petition, you may be barred from presenting additional grounds at a later date."

As to the "relation back" interpretation of Rule 15 (c)(2), Justice Ginsburg rejected the Ninth Circuit's "comprehensive definition" that permitted an amended petition so long as the new claim can be traced to the petitioner's trial, conviction, or sentence. Such an approach was much too broad and would invite many new claims. The better approach was to allow relation back "only when the claims added by the amendment arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in 'both time and type' form the originally raised episodes." Moreover, a broad interpretation would undermine AEDPA, and its one-year limitation would have "slim significance."

Justice David Souter, in a dissenting opinion joined by Justice John Paul Stevens, argued that the Court was not compelled to endorse a narrow construction of the relation-back rule. He pointed out that allowing one amended petition would not slow the system down, as any further amendments must be approved by the district court. Finally, he contended that the ruling was unfair to unrepresented prisoners who had to complete the habeas petition without the benefit of a legal background. In contrast, a prisoner who had legal counsel had a better chance of filing a petition that contained all pertinent constitutional claims.

Pace v. DiGuglielmo

The procedural rules governing petitions for writs of habeas corpus from federal courts has grown complicated since Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132. AEDPA sought to reduce the number of habeas filings by imposing strict timelines on petitions. This statutory scheme, however, did not cover all time-limit issues, resulting in numerous reviews by the federal appellate courts. The U.S. Supreme Court has issued decisions on these technical legal issues, the most recent being Pace v. DiGuglielmo, __U.S. __, 125 S.Ct. 1807, __ L.Ed.2d __ (2005). The Court ruled that a state postconviction petition that was rejected by the state court as untimely had not been "properly filed" within the meaning of §244(d)(2) of AEDPA. Accordingly, the one-year statute of limitations on filing a federal habeas corpus petition was not tolled (i.e., temporarily suspended), and the prisoner's federal petition had to be rejected.

John Pace pleaded guilty in February 1986 to second-degree murder in a Pennsylvania state court and was sentenced to life in prison without parole. He did not file a direct appeal of his guilty plea; instead, in August 1986, Pace filed a petition under the Pennsylvania Post Conviction Hearing Act (PCHA), 42 Pa. Cons. Stat. §9541. His PCHA proceedings ended in 1992 when the Pennsylvania Supreme Court denied Pace's untimely request for discretionary review. Pace waited more than four years before filing another state postconviction petition in November 1996 under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. §9541, which had replaced PCHA. PCRA had been amended in 1995 to include a statute of limitations for state postconviction petitions. The trial court dismissed Pace's petition as untimely and meritless under the PCRA. Pace filed an appeal, but the superior court ruled it untimely as well, in December 1998. The state supreme court rejected his petition for review in July 1999.

In late December 1999, Pace filed a federal habeas petition. Although the federal magistrate recommended that the petition be dismissed as untimely under AEDPA, the district court judge rejected this advice. Instead, the court allowed Pace's petition to proceed, concluding that the time during which the PCRA petition was under review (November 1996 to July 1999) tolled the one-year AEDPA filing period. Although the state court had ultimately rejected Pace's petition as untimely, the federal court believed that Pace's petition had been "properly filed" with the state court. In other words, the court had accepted his filing and had considered it. The court relied on the U.S. Supreme Court's decision in Artuz v. Bennett, 531U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). In that case, the Court rejected a state's claim that postconviction review had not been "properly filed" for purposes of the AEDPA unless it complied with all mandatory state-law procedural requirements that would bar review of the merits of the application. The Court stated that an application is "filed" when it is delivered to, and accepted by, the appropriate court officer for placement in the court record. Moreover, the question of whether an application had been "properly filed" was "quite separate" from the question of whether the claims contained in the application were meritorious or barred by court procedure. In addition, the state procedural bars at issue in the case placed conditions on obtaining relief but did not place conditions on the actual filing of Bennett's motion.

On appeal, the U.S. Court of Appeals for the Third Circuit reversed the district court's decision. It reasoned that the PCRA time limit constituted conditions to filing and that when a state court determines that a petition was untimely, it was not "properly filed" for AEDPA purposes. The Supreme Court accepted review because the circuit courts were divided over whether postconviction petitions rejected by state courts as untimely nevertheless had been "properly filed" and thus could toll the one-year AEDPA statute of limitations.

The Supreme Court, in a 5-4 decision, upheld the Third Circuit. Justice Clarence Thomas, in his majority opinion, stated that "in common understanding," a petition that is filed after a time limit is not "properly filed." To hold otherwise would allow a state prisoner to toll the AEDPA's statute of limitations "at will simply by filing untimely state postconviction petitions." That would turn the AEDPA tolling provision into an "extension mechanism" that was contrary to congressional intent and would "open the door to abusive delay." Therefore, when a petition is untimely under state law, "that is the end of the matter" under 2244(d)(2). It was not enough that a court clerk accepted Pace's petition; once the court rejected a petition as untimely, it could not be considered to have been "properly filed."

Justice John Paul Stevens, in a dissenting opinion joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer, contended that petitions such as Pace's that were delivered to, and accepted by, the court clerk and placed in the official record should be considered "properly filed." He expressed concern that state prisoners will add to the work of the federal courts with a "flood of protective filings" to ensure that they do not miss the one-year statute of limitations under AEDPA while their postconviction petitions are under consideration by state courts.

Rhines v. Weber

In Rhines v. Weber, 544 U.S. __, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), the U.S. Supreme Court addressed statute-of-limitations problems involving "mixed" habeas corpus petitions (i.e., those that contain claims that have been exhausted in state courts, along with some that have not). The precise question before the Court was whether a federal district court had the discretion to stay the mixed petition while the petitioner presented his unexhausted claims to the state court for the first time.

As background, one of the main reasons that Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1241, was to limit lengthy appeals that typically precede executions. The AEDPA contains a one-year statute of limitations that would have barred death row inmate Charles Rhines from returning to federal court once state courts had finished reviewing challenges to his conviction.

A South Dakota court sentenced Rhines to death following his conviction for stabbing to death a former co-worker who accidentally had happened upon Rhines's burglary of a Rapid City doughnut shop. In December 1996, Rhines filed a petition for state habeas corpus , which was denied, and the Supreme Court of South Dakota later affirmed that denial in February 2000. At that time, pursuant to 28 U.S.C. §2254, Rhines filed a petition for federal habeas corpus in the U.S. District Court for the District of South Dakota. Because the AEDPA's one-year statute of limitations was tolled during the time when Rhines' state petition was pending, he still had more than 11 months remaining at the time when he filed the federal petition.

In July 2002, the federal district court concluded that eight of Rhines's 35 claims of constitutional defects in his conviction and sentence had not been exhausted in state court. This decision came approximately 18 months after Rhines had filed his amended federal petition, and the AEDPA one-year statute of limitations had now run. (The Supreme Court had previously held, in Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001), that the statute of limitations is not tolled during the pendency of a federal petition.) Accordingly, if the district court had dismissed Rhines's mixed petition at that point, he would have been unable to refile in federal court after exhausting the unexhausted claims in state court.

Faced with this dilemma, the district court granted Rhines's petition to hold his pending federal habeas corpus petition in abeyance while he presented his unexhausted claims before the state court. The district court conditioned the stay with a requirement that Rhines return to federal court within 60 days of completing state court exhaustion. The state appealed the district court's stay to the U.S. Court of Appeals for the Eighth Circuit. That court had previously ruled, in Akins v. Kenney, 341 F.3d 681 (2003), that a district court had no authority to stay a mixed petition absent truly exceptional circumstances. It therefore reversed, vacated the stay, and remanded Rhines's case to the district court to determine whether Rhines could proceed by deleting unexhausted claims. Because appellate courts were split on this issue, certiorari was granted.

The U.S. Supreme Court, in a 9-0 plurality opinion, held that, under limited circumstances, a district court had the discretion to stay a mixed petition in order for a petitioner to present unexhausted claims to a state court in the first instance , and then to return to federal court for review of the perfected petition. Justice O'Connor delivered the opinion of the Court. Acknowledging "the gravity of this problem and the difficulty it has posed," (referring to the AEDPA's one-year statute of limitations) the Court held that a stay and abeyance was only appropriate "when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Further, even where there is a showing of good cause for a failure to exhaust, a district court should not employ the stay-and-abeyance procedure when the unexhausted claims are "plainly meritless."

Prior to the AEDPA, there was no statute of limitations on federal habeas corpus petitions. Fourteen years prior to the AEDPA, the U.S. Supreme Court had established, in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), that federal courts may not adjudicate mixed petitions and that they must give state courts the first opportunity to decide claims. Lundy imposed a "total exhaustion" requirement and directed federal courts to dismiss mixed petitions without prejudice , allowing petitioners to return to state court.

The Court noted that AEDPA did not deprive federal courts of the discretionary authority to issue stays, but that, in order to further the objectives of AEDPA, stay and abeyance should be available only under limited circumstances. According to the opinion, although a petitioner's interest in obtaining federal review outweighs the competing interests in finality and the speedy resolution of federal petitions, a district court should place reasonable time limits on the trip to state court and back, in order not to frustrate AEDPA's finality goal. The Court also left open a district court's discretion to permit a petitioner to delete the unexhausted claims and to proceed with the exhausted ones.

Justice O'Connor was joined by Justices Stevens, Scalia, Kennedy, Thomas, Ginsburg, and Breyer, and Chief Justice Rehnquist, although Justices Stevens and Souter filed separate concurring opinions. Justice Stevens merely expressed concern that the "good cause" requirement not be construed by courts in a manner that is unduly strict and inflexible, so as to "trap the unwary pro se prisoner."

HABEAS CORPUS

[Latin, You have the body.] A writ (court order) that commands an individual or a government official who has restrained another to produce the prisoner at a designated time and place so that the court can determine the legality of custody and decide whether to order the prisoner's release.

A writ of habeas corpus directs a person, usually a prison warden, to produce the prisoner and justify the prisoner's detention. If the prisoner argues successfully that the incarceration is in violation of a constitutional right, the court may order the prisoner's release. Habeas corpus relief also may be used to obtain custody of a child or to gain the release of a detained person who is insane, is a drug addict, or has an infectious disease. Usually, however, it is a response to imprisonment by the criminal justice system.

A writ of habeas corpus is authorized by statute in federal courts and in all state courts. An inmate in state or federal prison asks for the writ by filing a petition with the court that sentenced him or her. In most states, and in federal courts, the inmate is given the opportunity to present a short oral argument in a hearing before the court. He or she also may receive an evidentiary hearing to establish evidence for the petition.

The habeas corpus concept was first expressed in the magna charta, a constitutional document forced on King John by English landowners at Runnymede on June 15, 1215. Among the liberties declared in the Magna Charta was that "No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled, or injured in any way, nor will we enter on him or send against him except by the lawful judgment of his peers, or by the law of the land." This principle evolved to mean that no person should be deprived of freedom without due process of law.

The writ of habeas corpus was first used by the common-law courts in thirteenth- and fourteenth-century England. These courts, composed of legal professionals, were in competition with feudal courts, which were controlled by local landowners, or "lords." The feudal courts lacked procedural consistency, and on that basis, the common-law courts began to issue writs demanding the release of persons imprisoned by them. From the late fifteenth to the seventeenth centuries, the common-law courts used the writ to order the release of persons held by royal courts, such as the Chancery, admiralty courts, and the star chamber.

The only reference to the writ of habeas corpus in the U.S. Constitution is contained in Article I, Section 9, Clause 2. This clause provides, "The 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." President abraham lincoln suspended the writ in 1861, when he authorized his Civil War generals to arrest anyone they thought to be dangerous. In addition, Congress suspended it in 1863 to allow the Union army to hold accused persons temporarily until trial in the civilian courts. The Union army reportedly ignored the statute suspending the writ and conducted trials under martial law.

In 1789, Congress passed the judiciary act of 1789 (ch. 20, § 14, 1 Stat. 73 [codified in title 28 of the U.S.C.A.]), which granted to federal courts the power to hear the habeas corpus petitions of federal prisoners. In 1867, Congress passed the habeas corpus act of February 5 (ch. 28, 14 Stat. 385 [28 U.S.C.A. §§ 2241 et seq.]). This statute gave federal courts the power to issue habeas corpus writs for "any person … restrained in violation of the Constitution, or of any treaty or law of the United States." The U.S. Supreme Court has interpreted it to mean that federal courts may hear the habeas corpus petitions of state prisoners as well as federal prisoners.

The writ of habeas corpus is an extraordinary remedy because it gives a court the power to release a prisoner after the prisoner has been processed through the criminal justice system, with all its procedural safeguards and appeals. For this reason, the burden is initially on the petitioning prisoner to prove that he or she is being held in violation of a constitutional right. If the petitioner can meet this burden with sufficient evidence, the burden then shifts to the warden to justify the imprisonment.

Rubin "Hurricane" Carter

Federal courts grant writs of habeas corpus only when grave constitutional violations have occurred. The granting of Rubin "Hurricane" Carter's habeas petition in 1985 freed him from almost 20 years of imprisonment for a crime he maintains he did not commit.

Carter was a top-ranked middleweight boxer when he and John Artis were arrested in 1966 and charged with murdering three people in Paterson, New Jersey. Carter and Artis were African American; the victims were white. Carter and Artis claimed they were the victims of racism and a police frame-up, but they were convicted of murder and sentenced to life imprisonment.

Carter fought his conviction in state court, but the verdict was upheld. In 1974 he published The Sixteenth Round: From Number 1 Contender to Number 45472. The book became a national best-seller and drew attention to his case. In 1975 Bob Dylan wrote and recorded the song "Hurricane," which recounted Carter's arrest and trial and characterized Carter as an innocent man. This publicity, along with an investigation by the New Jersey public defenders' office, led to a motion for a new trial. The motion was granted, but Carter and Artis were convicted again in 1976. Carter remained imprisoned; Artis was paroled in 1981.

After all state appeals were exhausted, the only remaining avenue for relief was to file for a writ of habeas corpus in federal court. In November 1985 Judge H. Lee Sarokin ruled that the second murder trial convictions were unconstitutional because the prosecution had been allowed to imply that guilt could be inferred by the defendants' race and because the prosecution withheld polygraph evidence that could have been used to impeach the credibility of their "star witness" (Carter v. Rafferty, 621 F. Supp. 533 [D.N.J. 1985]). Judge Sarokin therefore granted habeas corpus, overturned the convictions, and ordered "Immediate release from custody with prejudice."

The State of New Jersey appealed to the Third Circuit Court of Appeals, asking to reverse Sarokin's ruling and requesting that Carter remain incarcerated until a final ruling. The Third Circuit rejected both appeals. New Jersey appealed to the U.S. Supreme Court, which also refused to overturn. The state chose not to attempt a third prosecution of Carter and Artis. Carter moved to Canada where he headed the Association for the Defense of the Wrongly Convicted.

A prisoner may file a petition for a writ of habeas corpus with the sentencing court only after exhausting all appeals and motions. Federal courts may receive a petition from a state prisoner, but not until the petitioner has attempted all available appeals and motions and habeas corpus petitions in the state courts. Federal prisoners must exhaust all available appeals and motions in the federal sentencing court and federal appeals courts before filing a habeas corpus petition with the sentencing court. If the first petition is denied, the inmate may petition the appeals courts.

A petition for a writ of habeas corpus is a civil action against the jailer. It is neither an appeal nor a continuation of the criminal case against the prisoner. It is not used to determine guilt or innocence. Rather, the purpose is solely to determine whether the confinement is in violation of a constitutional right. This is significant because it limits the scope of complaints that a petitioner may use as a basis for the writ.

Violation of the Due Process Clauses of the Fifth and Fourteenth Amendments is the most common basis for a writ of habeas corpus. Prose-cutorial misconduct, juror malfeasance, and ineffective assistance of counsel are common due process grounds for the writ. fifth amendment grounds include failure of the police to give Miranda warnings before in-custody questioning, in violation of the right against self-incrimination, and multiple trials, in violation of the double jeopardy prohibition. The eighth amendment right against cruel and unusual punishment is another common ground for habeas corpus relief, especially in cases involving the death penalty or a lengthy prison term.

There are several notable restrictions on the writ's application. fourth amendment violations of the right against unreasonable search and seizure cannot be raised in a habeas corpus petition. Prisoners are not entitled to a court-appointed attorney for habeas corpus petitions. Newly developed constitutional principles will not be applied retroactively in habeas corpus cases except where doubt is cast on the guilt of the prisoner. Delay in filing a habeas petition may result in its dismissal if the government is prejudiced (i.e., made less able to respond) by the delay. In addition, the petitioner must be in custody to request a writ of habeas corpus. This rule prevents a prisoner from challenging a conviction through habeas corpus after serving out a sentence for the conviction.

The law of habeas corpus is ever changing. In the 1990s, the U.S. Supreme Court took steps to further limit the writ's application. In Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 318 (1992), the Court held that a habeas corpus petitioner is not entitled to an evidentiary hearing in federal court unless she or he can show two things: a reason for failing to develop evidence at trial, and actual prejudice to the prisoner's defense as a result of the failure. In Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993), the Court held that a claim of actual innocence is not a basis for federal habeas corpus relief. This means that newly discovered evidence alone does not entitle a petitioner to federal habeas corpus relief.

The availability and import of habeas corpus in state courts is also subject to change through judicial decisions and new laws. For example, in 1995, the Texas Legislature passed a law that made the habeas corpus process concurrent with appeals (Tex. Crim. Proc. Code Ann. art. 11.071). This law effectively limited the number of times that a Texas state prisoner could challenge the disposition of a criminal case. Significantly, the law applied to all criminal defendants, including those facing the death penalty. Under the legislation, a death row inmate has only one round of review in Texas state courts before seeking relief in federal court.

In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA) (Pub. L. No. 104-132, 110 Stat. 1214). Congress sought to streamline post-conviction appeals proceedings and to curtail the time that prisoners could use to seek habeas corpus relief. Since the enactment of the law, the U.S. Supreme Court has been called upon to interpret a number of the AEDPA provisions; these rulings primarily have addressed technical details of the workings of the new law but the Court has endorsed the AEDPA and removed jurisdiction from the lower federal courts to hear many habeas petitions. The Court upheld the constitutionality of the AEDPA in Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996).

The habeas corpus provisions represent a major shift in federal-state judicial relations, for Congress directed that federal courts generally defer to state court judgments on questions of federal constitutional law in criminal cases. The AEDPA established a "deference" standard, which mandates that the federal courts, in reviewing state court convictions, defer to a state court ruling on the merits of any habeas corpus claim. This deferral includes questions of fact and of law, as well as mixed questions of fact and law. A federal court must defer unless the state court adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established

federal law, as determined by the U.S. Supreme Court; or if the state conviction resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

The AEDPA also contains a number of specific rules for habeas corpus review. The act provides for a one-year filing deadline for non-capital habeas corpus petitions. The time starts running at the conclusion of direct review or expiration of time for seeking such review. The law requires a certificate of appealability from a circuit judge or justice before a petitioner may appeal from denial of relief. The petitioner must make a substantial showing of denial of a constitutional right, and the certificate must be issue-specific. The AEDPA also allows federal courts to deny relief with respect to unexhausted claims but may not grant relief if the claim is unexhausted. The habeas petitioner can avoid exhaustion only if there is no available state remedy or the remedy is ineffective to protect the petitioner's rights. If there is no state remedy because of a procedural default, federal review is still prohibited.

The AEDPA also places restrictions on the ability of a petitioner to obtain an evidentiary hearing on a claim where the prisoner failed to develop the factual basis. Because state court fact-findings are presumed to be correct, the petitioner must rebut the presumption by clear and convincing evidence. To obtain an evidentiary hearing, the petitioner must show that the claim relies on a new rule made retroactive by the U.S. Supreme Court or that the factual predicate could not have been discovered earlier through due diligence. Moreover, in all cases, the petitioner must show by clear and convincing evidence that but for the alleged error for which a hearing is sought, no reasonable factfinder would have found petitioner guilty of the underlying offense. This is a steep hurdle for a habeas petitioner to overcome.

The AEDPA also seeks to prevent the abuse of habeas corpus by limiting the number of times a prisoner may ask for a writ. A successive habeas petition may not be filed in district court unless the petitioner is authorized to do so by a three-judge panel of the Court of Appeals. The U.S. Supreme Court, in Felker, characterized this provision as an acceptable "gatekeeping" mechanism. If petitioners make a prima facie showing that they satisfy the exceptions against successive petitions they may proceed; otherwise the court must dismiss the petition. If a successive claim was presented in a prior petition, it must be dismissed; no exceptions are authorized by the AEDPA. Though the AEDPA provides some narrow exceptions to this rule, any claim must establish by clear and convincing evidence that but for the error no reasonable factfinder would have found the petitioner guilty of the underlying offense.

In habeas petitions from death row inmates, the AEDPA imposes additional rules beyond those already described. The rules apply to states that establish certain standards for competence of counsel. For states to benefit from these additional limitations, they must provide a mechanism for appointment and compensation of competent counsel in state post-conviction proceedings or for appointment of counsel to handle the appeal and post-conviction remedies in a unitary proceeding. Once the state court has made an appointment of counsel, a federal court that would have jurisdiction over the case may enter a stay of execution. The stay expires if a timely petition is not filed, if the prisoner properly waives the right to pursue federal habeas relief, or if relief is denied at any stage of federal review. Once a stay vacates under any of those circumstances, a new one may not be imposed unless the petitioner can overcome the presumption against successive petitions.

The AEDPA sets a time limit for habeas petition in capital cases: The petition must be filed within 180 days after final state court affirmance on direct review. In addition, the AEDPA requires that capital habeas cases be given priority over all non-capital matters, and it imposes time limits on resolution. These include a decision by the district court within 180 days after the petition is filed, although the court may extend its time by no more than 30 days. Failure by the district court to act within the time limits may be enforced by a petition for writ of mandate. More importantly, a court of appeals must decide the case within 120 days after the reply brief is filed; any petition for rehearing must be decided within 30 days after the petition is filed, or 30 days after any requested responsive pleading is filed. If rehearing or rehearing en banc is granted, the case must be decided within 120 days after the order granting such rehearing. In addition, the time limits are applicable to all first petitions, successive petitions, and habeas cases considered on remand from a court of appeals or the U.S. Supreme Court.

The AEDPA has changed the legal landscape for prisoners seeking writs of habeas corpus. Petitioners must act within set deadlines, and they must attempt to place all issues in dispute before the first habeas-reviewing federal court or risk the chance of being rejected in a successive petition.

further readings

Freedman, Eric M. 2001. Habeas Corpus: Rethinking the Great Writ of Liberty. New York: New York Univ. Press.

Harrington, James C., and Anne More Burnham. 1995. "Texas's New Habeas Corpus Procedure for Death-Row Inmates: Kafkaesque—and Probably Unconstitutional." St. Mary's Law Journal 27 (fall).

Jones, Andrew A. 1994. "Federal Habeas Corpus Evidentiary Hearings: Has the Court Deliberately Bypassed Section 2254(D)?" Wisconsin Law Review (January-February).

Morse, Charles R. 1993. "Habeas Corpus and 'Actual Innocence': Herrera v. Collins, 113 S. Ct. 853 (1993)." Harvard Journal of Law and Public Policy 16 (autumn).