Chapter Nine

Habeas Corpus

This chapter takes up federal court authority to adjudicate federal claims advanced in petitions for the writ of habeas corpus (“you have the body”). Habeas corpus figures mightily in the law of federal jurisdiction. The writ was implicated in some of the most famous precedents in this field—e.g., Ex parte Young, 209 U.S. 123 (1908); Tarble’s Case, 80 U.S. 397 (1871); and Ex parte McCardle, 74 U.S. 506 (1868). In one of its forms (habeas corpus ad subjiciendum) the writ has long been known as the Great Writ of Liberty, providing a vehicle by which individuals deprived of their liberty can seek redress in the courts. At least by the Seventeenth Century, English central courts issued the habeas writ in response to petitions filed by prisoners in detention under an order from the King. Crown jailers were obliged to file a “return” to the writ, explaining the reasons for a prisoner’s detention, and the courts then determined whether sufficient “cause” was shown. Robert Walker, The Constitutional and Legal Development of Habeas Corpus as the Writ of Liberty 74-75 (1960). Some statutes governing federal habeas corpus in this country still contemplate similar procedures for invoking the federal courts’ jurisdiction. But in most instances more modern procedural arrangements have replaced the old English practices. See, e.g., Rules Governing Section 2254 Proceedings (prescribing procedures for cases in which state convicts challenge their custody in service of criminal sentences).

Sir Edward Coke and John Selden developed the argument that habeas corpus made it

possible for English courts to enforce Magna Charta, thus to impose legal limits on the royal prerogative. By common account, that link between the writ and Magna Charta in England laid the intellectual groundwork for the connection, in this country, between habeas corpus and the United States Constitution. Daniel J. Meador, Habeas Corpus and Magna Carta 15-25 (1966). Habeas corpus also supplied an instrument by which the central courts in England obtained authority over prisoners detained by order of local manorial and franchise courts. William F. Duker, A Constitutional History of Habeas Corpus 25 (1980). Historians have drawn parallels between that development in England and the use of habeas corpus by federal courts in this country to exercise jurisdiction over prisoners held in state custody. E.g., Meador, supra.

This chapter concentrates on federal court authority in two kinds of habeas corpus cases:

those in which prisoners challenge their detention by federal executive officers acting without any justifying court order and those in which prisoners attack their custody in the hands of state officials acting on the authority of criminal convictions in state court. Habeas corpus was available historically in federal executive detention cases—subject to Congress’ power to suspend the writ pursuant to the Suspension Clause. Art. I, § 9, cl.2. Yet classic Supreme Court precedents did not fully specify either the scope of federal court jurisdiction under existing law or the constitutional limits the Suspension Clause might place on Congress’ power to withdraw or adjust that jurisdiction. Modern actions by the President and Congress in the immigration and national security contexts present those questions anew and thus force the Court to grapple with delicate separation-of-powers concerns. By most accounts, habeas corpus was not historically available as a device for attacking custody in service of a sentence imposed after a criminal conviction. In the middle of the last century, however, federal courts assumed authority to entertain petitions from convicts. Federal habeas corpus petitions challenging custody pursuant

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to criminal convictions are intensely controversial. In cases involving state criminal convictions and sentences, the Court must attend to comity and federalism.

These materials present in stark relief some of the most divisive ideological debates in all the law of federal courts. The stakes are high—the liberty, and sometimes the lives, of human beings, as well as individual constitutional rights and fundamental allocations of power within the constitutional scheme. For that reason, they can be exciting as well as intellectually demanding. In this chapter, too, as in others, underlying controversies regarding substantive values influence judicial decisions about the nature and scope of the federal courts’ purview. Or perhaps better said, we have a way of thrashing out our differences over substantive values via arguments about whether the federal courts should have power to act and, if they do, what the scope of their authority should be and what procedural arrangements should govern the exercise of that authority. Don’t overlook the political significance of the Court’s decisions on the availability of habeas corpus for aliens and persons detained on national security grounds. And with respect to habeas cases involving state convicts, don’t miss the connection between federal court jurisdiction and the national controversies over crime control and capital punishment. The judicial decisions in this chapter also offer good illustrations of the methodologies the Court brings to bear when it fashions doctrine and construes statutes against a sensitive constitutional backdrop. Notice that in cases involving basic habeas corpus statutes that have been on the books for a long time, the Court is typically comfortable introducing its own judgments about proper policy—much in the way the Court has shaped other familiar statutes to taste (e.g., § 1331 and § 1983). This is true, for example, with respect to the basic jurisdictional statute, 28 U.S.C. § 2241 (first enacted in 1789 and crucially amended in 1867), as well as the original features of 28 U.S.C. § 2254 (first enacted in 1948 to manage federal habeas corpus petitions from state convicts). Concomitantly, in those cases, the Court does not hesitate to make important changes in habeas corpus law, notwithstanding that “the statutory language authorizing” federal courts to entertain habeas petitions has “remained unchanged.” Wainwright v. Sykes, 433 U.S. 72, 81 (1977). In cases involving more recent statutes, by contrast, the Court sometimes (though not always) adopts a much more rigid “textualist” methodology, which ascribes policy judgments to Congress. This is true with respect to many of the provisions in the Anti-terrorism and Effective Death Penalty Act (AEDPA), enacted in 1996.

____________________ I. Executive Detention and the Suspension Clause

A. Introduction

Ex parte Bollman & Ex parte Swartwout

8 U.S. (4 Cranch) 75 (1807)

C. Lee moved for a habeas corpus to the marshal of the district of Columbia, to bring up the bod[ies] of Samuel Swartwout [and Erick Bollman], who had been committed by the circuit court of that district. . . . The order of the court below . . . was in these words:

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The prisoners . . . were brought up to court in custody of the marshal, arrested on a charge of treason against the United States . . . Whereupon it is ordered, that the[y] be committed to the prison of this court, to take their trial for treason against the United States, by levying war against them, to be there kept in safe custody until they shall be discharged in due course of law. . . .

Chief Justice MARSHALL delivered the opinion of the Court. As preliminary to any investigation of the merits of this motion, this court deems it proper to declare that it disclaims all jurisdiction not given by the constitution, or by the laws of the United States. Courts which originate in the common law possess a jurisdiction which must be regulated by their common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. . . .[F]or the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law. . . . The inquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this court. The 14th section of the judicial act has been considered as containing a substantive grant of this power. It is in these words:

That all the before mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs, not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment. Provided, that writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.

The only doubt of which this section can be susceptible is, whether the restrictive words of the first sentence limit the power to the award of such writs of habeas corpus as are necessary to enable the courts of the United States to exercise their respective jurisdictions in some cause which they are capable of finally deciding. . . . It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared “that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it.” Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. . . .

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[Habeas corpus] is a generic term, and includes every species of that writ. [Yet] when we say the writ of habeas corpus, without addition, we most generally mean that great writ which is now applied for; and in that sense it is used in the constitution. . . . The doubt which has been raised on this subject may be further explained by examining the character of the various writs of habeas corpus, and selecting those to which this general grant of power must be restricted, if taken in the limited sense of being merely used to enable the court to exercise its jurisdiction in causes which it is enabled to decide finally. The various writs of habeas corpus, as stated and accurately defined by judge Blackstone, are, 1st. The writ of habeas corpus ad respondendum, “when a man hath a cause of action against one who is confined by the process of some inferior court; in order to remove the prisoner and charge him with this new action in the court above.” This case may occur when a party having a right to sue in this court, (as a state at the time of the passage of this act, or a foreign minister) wishes to institute a suit against a person who is already confined by the process of an inferior court. . . . 2d. The writ of habeas corpus ad satisfaciendum, “when a prisoner hath had judgment against him in an action, and the plaintiff is desirous to bring him up to some superior court to charge him with process of execution.” This case can never occur in the courts of the United States. One court never awards execution on the judgment of another. . . . 3d. Ad prosequendum, testificandum, deliberandum, . . . “which issue when it is necessary to remove a prisoner, in order to prosecute, or bear testimony, in any court, or to be tried in the proper jurisdiction wherein the fact was committed.” This writ might unquestionably be employed to bring up a prisoner to bear testimony in a court. . . . 4th, and last. The common writ ad faciendum et recipiendum, “which issues out of any of the courts of Westminster-hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the superior court, commanding the inferior judges to produce the body of the defendant. . . .” From this review of the extent of the power of awarding writs of habeas corpus, if the section be construed in its restricted sense . . . , it is apparent that this limited sense of the term cannot be that which was contemplated by the legislature [in Section 14]. If the act of congress gives this court the power to award a writ of habeas corpus in the present case, it remains to inquire whether that act be compatible with the constitution. In the mandamus case [Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)], it was decided that this court would not exercise original jurisdiction except so far as that jurisdiction was given by the constitution. But so far as that case has distinguished between original and appellate jurisdiction, that which the court is now asked to exercise is clearly appellate. It is the revision of a decision of an inferior court, by which a citizen has been committed to jail. . . . The question whether the individual shall be imprisoned is always distinct from the question whether he shall be convicted or acquitted of the charge on which he is to be tried, and therefore these questions are separated, and may be decided in different courts. The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. . . . If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. . . . Until the legislative

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will be expressed, this court can only see its duty, and must obey the laws. The motion, therefore, must be granted.

* * * * * * The marshal of the district of Columbia, having returned, upon the habeas corpus, that he detained the prisoners by virtue of the before recited order of the circuit court of that district, C. Lee, now moved that they should be discharged; or at least admitted to bail. . . . Chief Justice MARSHALL delivered the opinion of the Court. The prisoners having been brought before this court on a writ of habeas corpus, and the testimony on which they were committed having been fully examined and attentively considered, the court is now to declare the law upon their case. This being a mere inquiry, which, without deciding upon guilt, precedes the institution of a prosecution, the question to be determined is, whether the accused shall be discharged or held to trial . . . . That both of the prisoners were engaged in a most culpable enterprize against the dominions of a power at peace with the United States, those who admit the affidavit of General Wilkinson cannot doubt. But that no part of this crime was committed in the district of Columbia is apparent. It is therefore the unanimous opinion of the court that they cannot be tried in this district. . . . [A]s the crime with which the prisoners stand charged has not been committed, the court can only direct them to be discharged. This is done with the less reluctance because the discharge does not acquit them from the offence which there is probable cause for supposing they have committed. . . . [Prosecutors] . . . when able to say at what place the offence has been committed [may] institute fresh proceedings against them.

INS v. St. Cyr

533 U.S. 289 (2001) Justice STEVENS delivered the opinion of the Court. Respondent, Enrico St. Cyr, . . . was admitted to the United States as a lawful permanent resident in 1986. Ten years later, . . . he pled guilty in a state court to a charge of selling a controlled substance in violation of Connecticut law. That conviction made him deportable. Under [the] law applicable at the time of his conviction, St. Cyr would have been eligible for a waiver of deportation at the discretion of the Attorney General. However, removal proceedings against him were not commenced until . . . after both AEDPA [the Antiterrorism and Effective Death Penalty Act of 1996] and IIRIRA [the Illegal Immigration Reform and Immigrant Responsibility Act of 1996] became effective, and, as the Attorney General interprets those statutes, he no longer has discretion to grant such a waiver. In his habeas corpus petition, respondent has alleged that the restrictions on discretionary relief from deportation contained in the 1996 statutes do not apply to removal proceedings brought against an alien who pled guilty to a deportable crime before their enactment. The District Court accepted jurisdiction of his application and agreed with his submission. [T]he Court of Appeals for the Second Circuit affirmed. . . .

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The first question we must consider is whether the District Court retains jurisdiction under the general habeas corpus statute, 28 U.S.C. § 2241, to entertain St. Cyr’s challenge. . . . The [Immigration and Naturalization Service (INS)] argues . . . that . . . the 1996 statutes . . . stripped the courts of jurisdiction to decide the question of law presented by respondent’s habeas corpus application. For the INS to prevail it must overcome both the strong presumption in favor of judicial review of administrative action. . . . and the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction. See Ex parte Yerger, 75 U.S. 85 (1868). Implications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction; instead, Congress must articulate specific and unambiguous statutory directives to effect a repeal. In this case, the plain statement rule draws additional reinforcement from other canons of statutory construction. First, as a general matter, when a particular interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that result. . . . Second, if an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is “fairly possible,” . . . we are obligated to construe the statute to avoid such problems. . . . A construction of the amendments at issue that would entirely preclude review . . . in any court would give rise to substantial constitutional questions. Article I, § 9, cl. 2, of the Constitution 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.” Because of that Clause, some “judicial intervention in deportation cases” is unquestionably “required by the Constitution.” Heikkila v. Barber, 345 U.S. 229, 235 (1953). [T]his case involves an alien subject to a federal removal order rather than a person confined pursuant to a state-court conviction. Accordingly, regardless of whether the protection of the Suspension Clause encompasses all cases covered by the 1867 Amendment extending the protection of the writ to state prisoners, . . . by subsequent legal developments, . . . at the absolute minimum, the Suspension Clause protects the writ “as it existed in 1789.”1 [FN13] . . . .At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of executive detention, and it is in that context that its protections have been strongest. . . . In England prior to 1789, in the Colonies, and in this Nation during the formative years of our Government, the writ of habeas corpus was available to nonenemy aliens as well as to citizens. . . . In sum, even assuming that the Suspension Clause protects only the writ as it existed in 1789, there is substantial evidence to support the proposition that pure questions of law like the one raised by the respondent in this case could have been answered in 1789 by a common law judge with power to issue the writ of habeas corpus. It necessarily follows that a serious

1 [FN13] The fact that this Court would be required to answer the difficult question of what the Suspension Clause protects is in and of itself a reason to avoid answering the constitutional questions that would be raised by concluding that review was barred entirely.

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Suspension Clause issue would be presented if we were to accept the INS’s submission that the 1996 statutes have withdrawn that power from federal judges and provided no adequate substitute for its exercise. . . . The necessity of resolving such a serious and difficult constitutional issue—and the desirability of avoiding that necessity—simply reinforce the reasons for requiring a clear and unambiguous statement of congressional intent. . . . The INS argues, however, that AEDPA and IIRIRA contain four provisions that express a clear and unambiguous statement of Congress’ intent to bar petitions brought under § 2241, despite the fact that none of them mention that section. . . . [For example,] . . . § 1252(a)(2)(C) . . . states: “Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed” certain enumerated criminal offenses. The term “judicial review” or “jurisdiction to review” is the focus of each of these . . . provisions. . . . Accordingly, [none of these provisions] . . . speaks with sufficient clarity to bar jurisdiction pursuant to the general habeas statute. If it were clear that the question of law could be answered in another judicial forum, it might be permissible to accept the INS’ reading of § 1252. But the absence of such a forum, coupled with the lack of a clear, unambiguous, and express statement of congressional intent to preclude judicial consideration on habeas of such an important question of law, strongly counsels against adopting a construction that would raise serious constitutional questions.2 [FN 38] . . . . Accordingly, we conclude that habeas jurisdiction under § 2241 was not repealed by AEDPA and IIRIRA. The absence of a clearly expressed statement of congressional intent also pervades our review of the merits of St. Cyr’s claim. . . . Congress has the power to enact laws with retrospective effect. . . . A statute may not be applied retroactively, however, absent a clear indication from Congress that it intended such a result. “Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.”. . . We find nothing in IIRIRA unmistakably indicating that Congress considered the question whether to apply [retroactively] its repeal of . . . [the Attorney General’s authority to grant a removable alien a waiver]. . . . Justice SCALIA, with whom the CHIEF JUSTICE and Justice THOMAS join, and with whom Justice O’CONNOR joins [in part], dissenting. The Court today finds ambiguity in the utterly clear language of a statute that forbids the district court (and all other courts) to entertain the claims of aliens such as respondent . . . The doctrine of constitutional doubt is meant to effectuate, not to subvert, congressional intent, by giving ambiguous provisions a meaning that will avoid constitutional peril, and that will conform with Congress’s presumed intent not to enact measures of dubious validity. The condition

2 [FN38] [W]e note that Congress could, without raising any constitutional questions, provide an adequate substitute through the courts of appeals.

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precedent for application of the doctrine is that the statute can reasonably be construed to avoid the constitutional difficulty. . . . A straightforward reading of [the Suspension Clause] discloses that it does not guarantee any content to (or even the existence of) the writ of habeas corpus, but merely provides that the writ shall not (except in case of rebellion or invasion) be suspended. . . . To “suspend” the writ was not to fail to enact it, much less to refuse to accord it particular content. Noah Webster, in his American Dictionary of the English Language, defined it—with patriotic allusion to the constitutional text—as “[t]o cause to cease for a time from operation or effect; as, to suspend the habeas corpus act.”. . . This was a distinct abuse of majority power, and one that had manifested itself often in the Framers’ experience: temporarily but entirely eliminating the “Privilege of the Writ” for a certain geographic area or areas, or for a certain class or classes of individuals. Suspension Acts had been adopted (and many more proposed) both in this country and in England during the late 18th century, . . . including a 7-month suspension by the Massachusetts Assembly during Shay’s Rebellion in 1787. . . . In the present case, of course, Congress has not temporarily withheld operation of the writ, but has permanently altered its content. That is, to be sure, an act subject to majoritarian abuse, as is Congress’s framing (or its determination not to frame) a habeas statute in the first place. But that is not the majoritarian abuse against which the Suspension Clause was directed. It is no more irrational to guard against the common and well known “suspension” abuse, without guaranteeing any particular habeas right that enjoys immunity from suspension, than it is, in the Equal Protection Clause, to guard against unequal application of the laws, without guaranteeing any particular law which enjoys that protection. . . . In Ex parte Bollman, . . . [c]ounsel for the detainees asserted not only statutory authority for issuance of the writ, but inherent power. . . .The Court would have nothing to do with that, whether under Article III or any other provision. . . . Marshall says that [judicial power] . . . “must be given by written law.” . . . In the ensuing discussion of the Judiciary Act of 1789, the opinion specifically addresses the Suspension Clause—not invoking it as a source of habeas jurisdiction, but to the contrary pointing out that without legislated habeas jurisdiction the Suspension Clause would have no effect. . . . If one reads the Suspension Clause as a guarantee of habeas relief, the obvious question presented is: What habeas relief? There are only two alternatives, the first of which is too absurd to be seriously entertained. It could be contended that Congress “suspends” the writ whenever it eliminates any prior ground for the writ that it adopted. . . . The Suspension Clause, in other words, would be a one-way ratchet that enshrines in the Constitution every grant of habeas jurisdiction. . . .The other alternative is that the Suspension Clause guarantees the common-law right of habeas corpus, as it was understood when the Constitution was ratified. There is no doubt whatever that this did not include the right to obtain discretionary release.

Notes on the Great Writ, Congress, and the Suspension Clause 1. The Great Writ. Chief Justice Marshall’s opinion in Bollman relied on Blackstone’s description of the writ of habeas corpus in early English practice. At the outset, habeas corpus was not an “original” writ that established a court’s jurisdiction and thus initiated a judicial

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proceeding. Instead, habeas served ancillary functions. In cases in which courts had jurisdiction on some independent basis, they sometimes issued the writ of habeas corpus as an administrative tool. If, for example, it was necessary that some person be present for the adjudication of a dispute, a court issued the habeas writ to have him produced. Marshall rehearsed various other forms of the writ, each with its distinctive name and function. In the main, it is the subjiciendum writ that has survived—i.e., the form of the writ providing a mechanism by which courts can determine the validity of a petitioner’s detention. 2. Bollman and Marbury. Since the prisoners in Bollman had not formally appealed from an unfavorable lower court judgment, the Supreme Court appeared to be exercising original rather than appellate jurisdiction. That was problematic. Marshall himself had recently said in Marbury that Congress could not give the Court original jurisdiction to issue the writ of mandamus, because Article III limits original jurisdiction to cases involving the states or representatives of foreign governments. The habeas corpus petitions in Bollman no more fell within Article III’s limits on original jurisdiction than did the petition for the writ of mandamus in Marbury. Is Marshall’s resolution of the tension with Marbury persuasive? The modern Court’s rules contemplate that it can entertain original petitions for the writ of habeas corpus, and the Court sometimes relies on that power. When the Court pauses to be rigorous, however, it explains that somewhere along the line some lower court, state or federal, has had a hand in a prisoner’s detention. Therefore, what appears to be original jurisdiction is actually appellate—appellate enough, at least, to resolve any apparent conflict with Marbury’s interpretation of Article III. E.g., Felker v. Turpin, 518 U.S. 651, 667 n.1 (1996) (Souter, J., concurring). 3. Habeas Statutes. In Bollman, Marshall read § 14 of the Judiciary Act of 1789 to authorize both the Supreme Court itself and lower courts and judges to entertain petitions for the subjiciendum writ from prisoners in federal but not state custody. See Ex parte Dorr, 44 U.S. (3 How.) 103 (1845). In 1833 and 1842, Congress expanded the federal courts’ jurisdiction to accommodate certain cases in which federal officials and foreign nationals were detained by state authorities. a. The Habeas Corpus Act of 1867 granted federal courts jurisdiction “in addition to the authority already conferred by law” to issue writs of habeas corpus 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.” 14 Stat. 385 (now codified at § 2241, et seq.). The principal change worked by the 1867 Act was the extension of federal habeas jurisdiction to prisoners in the custody of state officials. b. The 1867 Act was an important element of the general body of constitutional amendments and statutes that so fundamentally transformed federal-state relations immediately following the Civil War. The Fourteenth Amendment and other measures established new federal rights with respect to the states. Concomitantly, statutes like the Habeas Corpus Act and the Ku Klux Klan Act of 1871 (now codified at 42 U.S.C. § 1983) established the federal courts’ authority to protect those federal rights against violation by state officials. See Chapter One. 4. The Suspension Clause. The Suspension Clause appears not in Article III, nor in the Bill of Rights, but rather in Article I. On its face, it seems to presuppose that habeas corpus (in some form) is available (from some court) and acknowledges that Congress can suspend it in the

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circumstances specified. There are historical instances in which Congress’ power to suspend the writ was acknowledged. Thomas Jefferson urged Congress to enact a suspension bill to keep men implicated in the Burr conspiracy from obtaining their release. It was only because Congress declined that Bollman and Swartout were able to use the writ to put their case before the Supreme Court. See Badshah K. Mian, American Habeas Corpus: Law, History, and Politics 114-117 (1984). Prior to and during the Civil War, Abraham Lincoln authorized military authorities to arrest civilians and to suspend the writ to avoid interference by the courts. Chief Justice Taney issued an order stating that only Congress had that power. Ex parte Merryman, 17 Fed. Cas. 144 (1861). See William H. Rehnquist, All the Laws But One 11-39 (1998). The military ignored Taney’s order, and Congress later defused the issue by ratifying Lincoln’s action. See Ex parte Milligan, 71 U.S. (4 Wall.) 2, 115 (1867). After the War, Congress authorized President Grant to suspend the writ in connection with his efforts to contend with the Ku Klux Klan. a. The meaning of the Suspension Clause is hotly debated in academic circles. At one extreme, it has been argued that the clause merely recognizes that state courts entertained habeas petitions at common law and bars Congress from interfering with that preexisting practice. Duker, at 126-156. By that account, the Suspension Clause has nothing to do with any authority in federal courts also to entertain habeas corpus petitions. At the other extreme, it has been argued that the Suspension Clause is a self-executing source of federal judicial power to issue the writ in at least some circumstances. Francis Paschal, The Constitution and Habeas Corpus, 1970 Duke L.J. 605. b. Who had the better of the argument in St. Cyr over John Marshall’s account of the Suspension Clause? Marshall was careful to disclaim any jurisdiction “not given by the constitution, or by the laws of the United States.” In that, he may only have expressed the familiar proposition that federal courts (including the Supreme Court) are not common law courts of general jurisdiction. But cf. Eric M. Freedman, Habeas Corpus: Rethinking the Great Writ of Liberty 20-41 (2001) (arguing that at the time Bollman was decided many people thought federal courts could enforce the common law). Moving right along, Marshall said that the power to issue the writ “must be given by written law.” Justice Scalia read “written law” to mean a statute, not a constitutional provision like Article III or the Suspension Clause. Is that interpretation self-evident? After all, as Justice Stevens pointed out, Marshall also referred to jurisdiction “given” by the Constitution, and he (arguably) intimated that Congress had enacted § 14 under an “obligation” flowing from the Suspension Clause. Might “written law” include not only statutes like § 14, but the Constitution? Does the text of the Suspension Clause belie any interpretation that it either establishes habeas jurisdiction (of some ilk) of its own force or imposes a duty on Congress to confer habeas jurisdiction by statute? c. Any argument that the Suspension Clause mandates inferior federal court authority to issue the writ is problematic for an obvious reason. According to conventional wisdom, Congress had no constitutional obligation to create inferior federal courts in the first place—to entertain habeas corpus petitions or to handle any other kind of business. Is it possible, though, that once Congress establishes inferior federal courts, the Suspension Clause either extends some measure of habeas corpus jurisdiction to them or imposes a duty on Congress to do so? Consider that Congress also had to create the Supreme Court, which, once established, drew power from Article III.

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d. Marshall said in Bollman that while power to issue the writ must rest on “written law,” the “meaning” of the writ the federal courts are given jurisdiction to grant could be determined by reference to the common law. Doesn’t that open up several possibilities? One is a fixed historical meaning. In St. Cyr, Justice Stevens said that “at the absolute minimum” the Supremacy Clause “protects” the writ as it was (as a matter of common law) when the Constitution was adopted. Justice Scalia, for his part, didn’t object overmuch to that position. Another possibility is a dynamic meaning. The writ of habeas corpus might by nature be a protean instrument, the development of which “did not end in 1789.” Peyton v. Rowe, 391 U.S. 54, 66 (1968). In a famous brief, Professor Freund once argued that “[w]e shall have to look to history for the essentials of the Great Writ, but not to one point in that history.” Brief for Respondent, United States v. Hayman, 342 U.S. 205 (1952). e. Does the historical account of habeas corpus actually allow for the writ’s continuing development? Consider again that the Suspension Clause appears to assume some pre-existing writ and purports only to protect that writ (whatever it was or is). In Felker v. Turpin, 518 U.S. 651 (1996), a state prisoner sought federal habeas corpus relief from a capital sentence. Writing for the Court, Chief Justice Rehnquist acknowledged that the writ “known to the Framers” was “quite different” from the writ that modern federal courts employ. Nevertheless, for purposes of the decision in Felker, he assumed that the Suspension Clause “refers to the writ as it exists today, rather than as it existed in 1789.”

f. How impressive is Justice Scalia’s interpretation of the Suspension Clause? In England, Parliament occasionally withdrew judicial authority to issue the habeas writ regarding certain kinds of cases (typically cases of alleged treason), in particular areas (usually regions experiencing political unrest), and for limited periods of time (often a year). See R. J. Sharpe, The Law of Habeas Corpus 94-95 (2d ed. 1989). And, as Justice Scalia reports, some American states did the same. Would it make sense to treat the Suspension Clause as a response to actions of that kind—i.e., congressional tampering with habeas corpus jurisdiction on a selective basis? Justice Scalia contends that Congress is not obliged to create habeas corpus jurisdiction in the first instance and, if Congress chooses to do so, Congress is free to change its mind and withdraw or restrict that jurisdiction. The premise of his argument is that neither a failure to confer jurisdiction nor a permanent adjustment in jurisdiction conferred counts as a suspension, but is only an exercise of the discretion that Congress enjoys by hypothesis. A temporary withdrawal of jurisdiction, by contrast, does count as a suspension—because the power to manipulate habeas jurisdiction through short-lived limits (especially affecting only certain populations or areas) lends itself to abuses that a general power to create, withhold, or adjust jurisdiction permanently does not. By Scalia’s account, the Suspension Clause prevents Congress from taking action against particular individuals or groups in particular circumstances and insulating its behavior from judicial oversight during the relevant period. Is that interpretation attractive? g. The meaning of the Suspension Clause remains elusive in cases involving petitions challenging purely executive federal detention. The significance of the clause in cases involving petitions attacking state custody, especially custody after a criminal conviction in state court, is more problematic still. If the Suspension Clause requires Congress to grant federal courts only the habeas jurisdiction that common law courts enjoyed, by most accounts the writ’s availability in cases involving state prisoners, and certainly state convicts, must be entirely discretionary—subject to adjustments that Congress sees fit to make as a matter of policy. See, e.g., Swain v.

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Pressley, 430 U.S. 372, 384-85 (1977) (Burger, C.J., concurring). Then again, there is Chief Justice Rehnquist’s statement in Felker. 5. The Doctrine of Clear Statement. The St. Cyr decision preserved habeas corpus jurisdiction in certain immigration cases—namely, cases in which aliens removable on the ground that they had committed specified criminal offenses hoped to obtain waivers that would allow them to remain in the country. Wasn’t Justice Scalia right that the statutes at issue there, provisions of AEDPA and IIRIRA, were pretty clear and thus might well have satisfied the “clear statement” rule Justice Stevens brought to bear? Is Scalia’s conclusion, then, also right: From now on, once Congress has conferred habeas corpus jurisdiction on federal courts, Congress can withdraw that jurisdiction only with “magic words,” i.e., by actually citing the statute establishing the habeas jurisdiction to be repealed (typically § 2241)? Such a demanding “clear statement” rule would obviously make it more difficult for the proponents of curbing jurisdiction to achieve their ends. Does the Suspension Clause (in the background of St. Cyr) justify that practical effect? 6. The Real ID Act. Four years after St. Cyr, Congress enacted the Real ID Act, Pub. L. No. 109-13 (2005). Several provisions of that Act explicitly abolish district court jurisdiction under § 2241 (or any other habeas corpus statute) to entertain claims arising from removal cases. Moreover, § 106(a)(5) of the Act provides as follows:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal. . . . For purpose of this Act, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms “judicial review” and “jurisdiction to review” include habeas corpus review pursuant to section 2241 of title 28, . . . or any other habeas corpus provision, . . .

a. Is the language in the Real ID Act sufficiently exacting to satisfy the clear statement requirement in St. Cyr? If so, is the resulting withdrawal of all habeas corpus jurisdiction with respect to removal orders constitutional? b. Unlike some provisions in AEDPA and IIRIRA, the Real ID Act expressly provides for an alternative means of judicial review in all removal cases (including cases involving aliens who are removable because they have committed criminal offenses). Anyone who complains that a removal order is invalid can file a “petition for review” in the appropriate circuit court of appeals. It appears that a circuit court, in turn, can address any claims that previously could be entertained in § 2241 habeas corpus proceedings. Does the assurance of Article III judicial review by another avenue in the circuit courts defuse any constitutional difficulty that would otherwise attend the elimination of habeas corpus jurisdiction in the district courts? Consider footnote 38 in Justice Stevens’ opinion in St. Cyr. B. National Security Cases

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Rasul v. Bush

542 U.S. 466 (2004) Justice Stevens delivered the opinion of the Court. On September 11, 2001, agents of the al Qaeda terrorist network hijacked four commercial airliners and used them as missiles to attack American targets. . . . In response to the attacks, Congress passed a joint resolution authorizing the President to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks . . . or harbored such organizations or persons.” Authorization for Use of Military Force, Pub. L. 107-40 (2001). Acting pursuant to that authorization, the President sent U.S. Armed Forces into Afghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it. Petitioners in these cases are . . . [Australian and Kuwaiti] citizens who were captured abroad during hostilities between the United States and the Taliban. Since early 2002, the U.S. military has held them—along with, according to the Government’s estimate, approximately 640 other non-Americans captured abroad—at the Naval Base at Guantanamo Bay. The United States occupies the Base, which comprises 45 square miles of land and water along the southeast coast of Cuba, pursuant to a 1903 Lease Agreement executed with the newly independent Republic of Cuba in the aftermath of the Spanish-American War. Under the Agreement, “the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the [leased areas],” while “the Republic of Cuba consents that during the period of the occupation by the United States . . . the United States shall exercise complete jurisdiction and control over and within said areas.” . . . In 2002, petitioners, through relatives acting as their next friends, filed various actions in the U.S. District Court for the District of Columbia challenging the legality of their detention at the Base. All alleged that none of the petitioners has ever been a combatant against the United States or has ever engaged in any terrorist acts. . . . They also alleged that none has been charged with any wrongdoing, permitted to consult with counsel, or provided access to the courts or any other tribunal. Construing . . . [the] actions as petitions for writs of habeas corpus, the District Court dismissed them for want of jurisdiction. . . . The Court of Appeals affirmed. . . . Congress has granted federal district courts, “within their respective jurisdictions,” the authority to hear applications for habeas corpus by any person who claims to be held “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §§ 2241(a), (c)(3). The statute traces its ancestry to the first grant of federal court jurisdiction: Section 14 of the Judiciary Act of 1789. . . . Consistent with the historic purpose of the writ, this Court has recognized the federal courts’ power to review applications for habeas relief in a wide variety of cases involving Executive detention, in wartime as well as in times of peace. The Court has, for example, entertained the habeas petitions of an American citizen who plotted an attack on military installations during the Civil War, Ex parte Milligan, 4 Wall. 2 (1866), and of admitted enemy aliens convicted of war crimes during a declared war and held in the United States, Ex

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parte Quirin, 317 U.S. 1 (1942), and its insular possessions, In re Yamashita, 327 U.S. 1 (1946). The question now before us is whether the habeas statute confers a right to judicial review of the legality of Executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not “ultimate sovereignty.” Respondents’ primary submission is that the answer to the jurisdictional question is controlled by our decision in Johnson v. Eisentrager [, 339 U.S. 763 (1950)]. In that case, we held that a Federal District Court lacked authority to issue a writ of habeas corpus to . . . German citizens who had been captured by U.S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incarcerated in the Landsberg Prison in occupied Germany. The Court of Appeals . . . had found jurisdiction. . . . In reversing that determination, this Court summarized the six critical facts in the case: “We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.” . . . On this set of facts, the Court concluded, “no right to the writ of habeas corpus appears.” Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. . . . [T]he Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners’ constitutional entitlement to habeas corpus. The Court had far less to say on the question of the petitioners’ statutory entitlement to habeas review. Its only statement on the subject was a passing reference to the absence of statutory authorization: “Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.” Reference to the historical context in which Eisentrager was decided explains why the opinion devoted so little attention to the question of statutory jurisdiction. . . . [In Ahrens v. Clark, 335 U.S. 188 (1948), this Court had recently read the phrase “within their respective jurisdictions” to require a petitioner’s presence within the district court’s territorial jurisdiction]. . . . In Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973), this Court held, contrary to Ahrens, that the prisoner’s presence within the territorial jurisdiction of the district court is not “an invariable prerequisite” to the exercise of district court jurisdiction under the federal habeas statute. Rather, because “the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody,” a district court acts “within [its] respective jurisdiction” within the meaning of § 2241 as long as “the custodian can be reached by service of process.”. . . Braden thus established that Ahrens can no

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longer be viewed as establishing “an inflexible jurisdictional rule,” and is strictly relevant only to the question of the appropriate forum, not to whether the claim can be heard at all. Because Braden overruled the statutory predicate to Eisentrager’s holding, Eisentrager plainly does not preclude the exercise of § 2241 jurisdiction over petitioners’ claims. . . . Putting Eisentrager and Ahrens to one side, respondents contend that we can discern a limit on § 2241 through application of the “longstanding principle of American law” that congressional legislation is presumed not to have extraterritorial application unless such intent is clearly manifested. . . . Whatever traction the presumption against extraterritoriality might have in other contexts, it certainly has no application to the operation of the habeas statute with respect to persons detained within “the territorial jurisdiction” of the United States. . . . Respondents themselves concede that the habeas statute would create federal-court jurisdiction over the claims of an American citizen held at the base. . . . Considering that the statute draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee’s citizenship.3 [FN10] Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts’ authority under § 2241. . . . Petitioners contend that they are being held in federal custody in violation of the laws of the United States.4 [FN15] No party questions the District Court’s jurisdiction over petitioners’ custodians. Section 2241, by its terms, requires nothing more. We therefore hold that § 2241 confers on the District Court jurisdiction to hear petitioners’ habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base. [T]he [Kuwaiti] petitioners’ complaint invoked the court’s jurisdiction under 28 U.S.C. § 1331, the federal question statute, as well as § 1350, the Alien Tort Statute. The Court of Appeals, again relying on Eisentrager, held that the District Court correctly dismissed the claims founded on § 1331 and § 1350 for lack of jurisdiction. . . . But . . . nothing in Eisentrager or in any of our other cases categorically excludes aliens detained in military custody outside the United States from the “privilege of litigation” in U.S. courts. The courts of the United States

3 [FN10] Justice Scalia appears to agree that neither the plain text of the statute nor his interpretation of that text provides a basis for treating American citizens differently from aliens. But resisting the practical consequences of his position, he suggests that he might nevertheless recognize an “atextual exception” to his statutory rule for citizens held beyond the territorial jurisdiction of the federal district courts. 4 [FN15] Petitioners’ allegations—that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing—unquestionably describe “custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Cf. United States v. Verdugo-Urquidez, 494 U.S. 259, 277- 278 (1990) (Kennedy, J., concurring), and cases cited therein.

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have traditionally been open to nonresident aliens. . . . The fact that petitioners in these cases are being held in military custody is immaterial to the question of the District Court’s jurisdiction over their nonhabeas statutory claims. Whether and what further proceedings may become necessary after respondents make their response to the merits of petitioners’ claims are matters that we need not address now. What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Answering that question in the affirmative, we reverse the judgment of the Court of Appeals and remand for the District Court to consider in the first instance the merits of petitioners’ claims. Justice KENNEDY, concurring in the judgment. The facts here are distinguishable from those in Eisentrager in two critical ways, leading to the conclusion that a federal court may entertain the petitions. First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities. . . . From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States, extending the “implied protection” of the United States to it. The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status. In Eisentrager, the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. . . . Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker. In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal-court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager. Justice SCALIA, with whom the CHIEF JUSTICE and Justice THOMAS join, dissenting. The Court today holds that the habeas statute, 28 U.S.C. § 2241, extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. . . . This is an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field. I would leave it to Congress to change § 2241. . . . The petitioners do not argue that the Constitution independently requires jurisdiction here. Accordingly, this case turns on the words of § 2241, a text the Court today largely ignores.

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Even a cursory reading of the habeas statute shows that it presupposes a federal district court with territorial jurisdiction over the detainee. Section 2241(a) states: “Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” It further requires that “[t]he order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.” And § 2242 provides that a petition “addressed to the Supreme Court, a justice thereof or a circuit judge . . . shall state the reasons for not making application to the district court of the district in which the applicant is held.” No matter to whom the writ is directed, custodian or detainee, the statute could not be clearer that a necessary requirement for issuing the writ is that some federal district court have territorial jurisdiction over the detainee. Here, as the Court allows, the Guantanamo Bay detainees are not located within the territorial jurisdiction of any federal district court. One would think that is the end of this case. . . . The brevity of the Court’s statutory analysis [in Eisentrager] signifies nothing more than that the Court considered it obvious (as indeed it is) that, unaided by the canon of constitutional avoidance, the statute did not confer jurisdiction over an alien detained outside the territorial jurisdiction of the courts of the United States. . . . Eisentrager’s directly-on-point statutory holding makes it exceedingly difficult for the Court to reach the result it desires today. To do so neatly and cleanly, it must either argue that our decision in Braden overruled Eisentrager, or admit that it is overruling Eisentrager. The former course would not pass the laugh test, inasmuch as Braden dealt with a detainee held within the territorial jurisdiction of a district court, and never mentioned Eisentrager. . . . [In Braden, we] found that jurisdiction existed in Kentucky for Braden’s petition challenging [a] Kentucky detainer, notwithstanding his physical confinement in Alabama. . . .Thus, Braden stands for the proposition, and only the proposition, that where a petitioner is in custody in multiple jurisdictions within the United States, he may seek a writ of habeas corpus in a jurisdiction in which he suffers legal confinement, though not physical confinement, if his challenge is to that legal confinement. . . . The constitutional doubt that the Court of Appeals in Eisentrager had erroneously attributed to the lack of habeas for an alien abroad might indeed exist with regard to a citizen abroad—justifying a strained construction of the habeas statute, or (more honestly) a determination of constitutional right to habeas. Neither party to the present case challenges the atextual extension of the habeas statute to United States citizens held beyond the territorial jurisdictions of the United States courts; but the possibility of one atextual exception thought to be required by the Constitution is no justification for abandoning the clear application of the text to a situation in which it raises no constitutional doubt.. . . The consequence of [the Court’s] holding, as applied to aliens outside the country, is breathtaking. It permits an alien captured in a foreign theater of active combat to bring a § 2241 petition against the Secretary of Defense. Over the course of the last century, the United States has held millions of alien prisoners abroad. . . . A great many of these prisoners would no doubt have complained about the circumstances of their capture and the terms of their confinement. The military is currently detaining over 600 prisoners at Guantanamo Bay alone; each detainee undoubtedly has complaints—real or contrived—about those terms and circumstances. . . . From this point forward, federal courts will entertain petitions from these prisoners, and others like

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them around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the Executive’s conduct of a foreign war. . . . The Court might have made an effort (a vain one, as I shall discuss) to distinguish Eisentrager on the basis of a difference between the status of Landsberg Prison in Germany and Guantanamo Bay Naval Base. But [the Court holds] that the place of detention of an alien has no bearing on the statutory availability of habeas relief. . . . Once that has been said, the status of Guantanamo Bay is entirely irrelevant to the issue here. . . . The habeas statute is (according to the Court) being applied domestically, to “petitioners’ custodians,” and the doctrine that statutes are presumed to have no extraterritorial effect simply has no application. Nevertheless, the Court [rejects] respondents’ invocation of that doctrine on the peculiar ground that it has no application to Guantanamo Bay. Of course if the Court is right about that, not only § 2241 but presumably all United States law applies there—including, for example, the federal cause of action recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), which would allow prisoners to sue their captors for damages. . . . Since “jurisdiction and control” obtained through a lease is no different in effect from “jurisdiction and control” acquired by lawful force of arms, parts of Afghanistan and Iraq should logically be regarded as subject to our domestic laws. . . . The Commander in Chief and his subordinates had every reason to expect that the internment of combatants at Guantanamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs. Congress is in session. If it wished to change federal judges’ habeas jurisdiction from what this Court had previously held that to be, it could have done so. And it could have done so by intelligent revision of the statute5 [FN7] instead of by today’s clumsy, countertextual reinterpretation that confers upon wartime prisoners greater habeas rights than domestic detainees. The latter must challenge their present physical confinement in the district of their confinement, see Rumsfeld v. Padilla, 542 U.S. 426 (2004), whereas under today’s strange holding Guantanamo Bay detainees can petition in any of the 94 federal judicial districts. The fact that extraterritorially located detainees lack the district of detention that the statute requires has been converted from a factor that precludes their ability to bring a petition at all into a factor that frees them to petition wherever they wish—and, as a result, to forum shop. For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders’ reliance upon clearly stated prior law, is judicial adventurism of the worst sort. . . .

Notes on Habeas in National Security Cases

1. Eisentrager. Who had Eisentrager right—Justice Stevens (for the Court), Justice Kennedy, Justice Scalia? If that decision lends itself to alternative interpretations (and it’s hard to deny that it does), then isn’t its precedential value compromised? If (and this is a big “if”),

5 [FN7] It could, for example, provide for jurisdiction by placing Guantanamo Bay within the territory of an existing district court; or by creating a district court for Guantanamo Bay, as it did for the Panama Canal Zone, see 22 U.S.C. § 3841(a) (repealed 1979).

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Eisentrager was a construction of § 2241, it seems fair for Justice Scalia to argue that the Court should leave it to Congress to make any change. The premise of that position is that the Court can more easily justify adjustments in judge-made doctrines than changes in the meaning of statutes (albeit any meaning that statutes have necessarily is determined by the Court). Then again, the Court overturns previous interpretations of statutes all the time. Certainly, the Court has often reshaped habeas corpus law under § 2241 without waiting for Congress. a. In the habeas corpus context, what should be the default position? Should the Court do its best to identify the meaning it has previously ascribed to § 2241 and adhere to that meaning until Congress says different? Or should the Court adopt the construction it thinks sound, whether consistent with precedent or not, and leave it to Congress to make some change from that? Bear in mind that all the justices in Rasul purported to adhere to Eisentrager; they just disagreed about what Eisentrager held. b. When the question is whether federal jurisdiction exists, does it matter how a precedent cuts? Justice Scalia invoked the familiar understanding that federal courts are of limited jurisdiction and that they begin with a presumption against that jurisdiction—which is to say, plaintiffs must prove that a court has power to entertain their suits. Is that the answer when the justices disagree about a precedent regarding federal court power to entertain an action? c. Might the Court sensibly hesitate to read Eisentrager expansively (and § 2241 narrowly) in light of the Suspension Clause or Article III? Consider that, in St. Cyr, the Court insisted that only exacting legislative language can repeal habeas corpus jurisdiction once established. According to Justice Scalia, the habeas jurisdiction identified in Rasul had never been created. But doesn’t that point circle back to the meaning to be ascribed to Eisentrager? 2. Citizens. The Government conceded in Rasul that federal courts have jurisdiction under § 2241 to entertain habeas corpus petitions filed by U.S. citizens claiming federal officers are unlawfully detaining them overseas. Justice Scalia agreed that, if the petitioners in Rasul were U.S. citizens, § 2241 jurisdiction would attach. Didn’t Justice Stevens have a point, then, that since § 2241 does not distinguish between citizens and aliens, what’s good for the goose must be good for the gander? What should we make of Justice Scalia’s response, i.e., that the Court should make an “atextual” exception for citizen-petitioners in order to avoid the constitutional question that would arise if § 2241 were read not to confer jurisdiction in their cases? What constitutional question is that? Given Justice Scalia’s reading of the Suspension Clause, can he seriously entertain the idea that a U.S. citizen might enjoy a “constitutional right to habeas”? Where would such a right come from? See Subsection (A), Note 4. 3. Guantanamo. Was the special status of Guantanamo Bay crucial to Justice Stevens’ analysis in Rasul? Recall his articulation of the Court’s holding: “We therefore hold that § 2241 confers on the District Court jurisdiction to hear petitioners’ habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base.” Still, Stevens didn’t emphasize Guantanamo quite so much as Justice Kennedy (who made it one of the two key bases for distinguishing Eisentrager). If Justice Stevens placed less weight on the site of the petitioners’ detention, was there a reason? The potential for judicial superintendence obviously creates incentives. The Bush Administration set up the Guantanamo facility because its lawyers thought prisoners detained there would not be able to petition federal courts for habeas corpus relief. Did Stevens worry that, if the status of Guantanamo was crucial, the decision in Rasul

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would create an incentive to establish prisons in other parts of the world? After Rasul, it was reported that the Central Intelligence Agency does operate “secret” detention facilities in the Middle East and Eastern Europe. Diana Priest, CIA Holds Terror Suspects in Secret Prisons, Washington Post, A01, Nov. 2, 2005. Would a federal court in this country have power to entertain a habeas corpus petition from an alien held at one of those facilities? a. Was Justice Scalia right that, after Rasul, Guantanamo prisoners were free to file habeas corpus petitions in any district court they chose—and thus to shop for a friendly forum? The prisoners in Rasul itself filed their petitions in the Southern District of New York. In Burns v. Wilson, 346 U.S. 137 (1953), the Court allowed a U.S. citizen convicted by court martial and detained in Guam to file a habeas corpus petition in the United States District Court for the District of Columbia, naming the Secretary of Defense as respondent. Is that a more attractive model? Should it be mandated for all cases involving petitioners detained outside the formal boundaries of any federal district? If a Guantanamo prisoner files in a different district, can’t the matter be transferred to the District of Columbia? See Gherebi v. Bush, 374 F.3d 727, 739 (9th Cir. 2004) (relying on 28 U.S.C. § 1406(a) for this purpose). b. Was Justice Scalia’s parade of horribles a function of his methodology? In his view, the Rasul case about prisoners at Guantanamo couldn’t be distinguished from cases about prisoners detained in Germany (or, presumably, Iraq). But was that his view only because he insisted that habeas jurisdiction must be determined by formal rules admitting of no (or little) adjustment for circumstances? Notice that both Justice Stevens and Justice Kennedy adopted a more nuanced approach allowing for the consideration of relevant variables. c. The Court has often developed doctrines meant to mitigate the difficulties that attend habeas corpus jurisdiction. For example, the Court has long insisted that federal courts entertaining petitions from state prisoners should defer the exercise of habeas jurisdiction in order to reduce tensions with the states and state courts. See Section VI. Might there be similar doctrinal means of defusing any tension between federal jurisdiction in these military detention cases and the Executive’s legitimate prerogatives? Put differently, is the choice necessarily between allowing anyone detained anywhere to seek habeas relief (and thus potentially interfering with battlefield operations) and disallowing any non-citizens detained abroad to apply for the writ (and thus permitting American agents to seize foreign nationals and detain them at will without recourse to the Article III judiciary)? The Court held in Schlesinger v. Councilman, 420 U.S. 738 (1975), that federal courts should ordinarily postpone consideration of civil suits brought by military personnel until the conclusion of a court martial. But see Hamdan v. Rumsfeld, 126 S.Ct. ___ (2006) (reading Councilman to depend in part on the importance of maintaining military discipline and thus distinguishing a Guantanamo case in which the petitioner was a civilian); id. at ___ nn.16, 19 (also suggesting that Councilman created an exception for claims going to the jurisdiction of a military court). d. Consider the other point emphasized in Justice Kennedy’s opinion. It’s hard to think that prisoners apprehended in the midst of a military action can be entitled to an immediate adjudication of the validity of their custody. But isn’t judicial superintendence at least feasible once prisoners are removed to detention facilities elsewhere? Didn’t transporting prisoners from Afghanistan (and other nations) to Guantanamo take the steam out of the argument that judicial attention to habeas petitions would undermine the President’s ability to conduct military maneuvers abroad? In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), Justice O’Connor explained that since the confinement of a U.S. Citizen originally justified on the basis of battlefield

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conditions continued away from the fighting (and in this country), the detainee was entitled to procedural safeguards he could have been denied in the field. See Note 8. 4. Other Actions. Justice Scalia suggested that, in light of Rasul, prisoners at Guantanamo were free to file damages actions against their captors. Is that right? The “implied” right of action for compensatory damages recognized in Bivens is a creature of federal common law and thus subject to adjustment by the Court. Might the Court conclude that there are “special considerations counseling hesitation” regarding Bivens suits at Guantanamo? See Chapter One. There is no question, is there, about Congress’ authority to foreclose damages suits by statute? See Notes 11-12. A prisoner who is entitled to attack a criminal conviction via habeas corpus must do so before mounting a § 1983 suit advancing a claim that, if meritorious, would render the conviction unlawful. See Section IX. Would (or should) a similar limit be placed on a Bivens suit for damages on the basis of a claim that a prisoner’s detention at Guantanamo is invalid? 5. The Merits of Claims. There is an enormously important substantive question lurking behind Rasul—namely, whether (or the extent to which) aliens have federal constitutional rights that may be violated by executive detention outside the territorial United States. It is settled that U.S. citizens carry their federal constitutional rights (as against agents of the Federal Government) with them wherever they may go. See Reid v. Covert, 354 U.S. 1 (1957) (plurality opinion) (holding that the United States cannot try U.S. citizen-civilians abroad by military court martial because “the Constitution in its entirety” applies to their trials). It is also settled that aliens lawfully residing in this country generally enjoy those same rights. See Yick Wo v. Hopkins, 118 U.S. 356 (1886) (explaining that the Fourteenth Amendment protects persons and not only citizens). Yet if American agents take action against aliens overseas, things are more complicated. a. Notice that when Justice Stevens came to the specific claims the prisoners in Rasul asserted, he said only what was minimally sufficient, i.e., that they claimed to be held in custody in violation of federal law. Stevens cited Justice Kennedy’s concurring opinion in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). Writing for the Court in Verdugo-Urquidez, Chief Justice Rehnquist explained that a Mexican citizen had no Fourth Amendment rights with respect to a search of his home in Mexico by American agents. Justice Kennedy agreed, but also intimated that there might be constitutional “restrictions that the United States must observe with reference to aliens beyond its territory or jurisdiction. . . .” b. In other cases after Rasul, the Government took the position that alien prisoners at Guantanamo had no constitutional rights to assert in habeas corpus petitions. See In re Guantanamo Detainee Cases, 355 F. Supp.2d 443, 453-454 (D.D.C. 2005); Khalid v. Bush, 355 F. Supp.2d 311, 320-323 (D.D.C. 2005). Specifically, the Government maintained that aliens at Guantanamo were not constitutionally entitled to the procedures the Court prescribed for the citizen-prisoner in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (see Note 8)—for the reason that non-citizens detained outside the United States have no due process rights. c. Recall that § 2241 contemplates claims based on treaties. In some instances, treaties are exclusively compacts between the United States and other nations and do not create personal rights that, in turn, might be enforceable in habeas corpus proceedings. Yet treaties and implementing legislation can also confer personal rights on citizens of the party nations, which

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rights can be enforced in private suits in federal court. E.g., Olympic Airways v. Husain, 540 U.S. 644 (2004) (sustaining recovery in a private suit for damages under the Article 17 of the Warsaw Convention). In the case of litigants in custody, treaty claims may be pressed in habeas corpus petitions. In Hamdan v. Rumsfeld, 126 S.Ct. ___ (2006), the Court held (in a habeas posture) that military commissions convened at Guantanamo to try prisoners for war crimes violated elements of the Geneva Convention and related statutes. See Chapter Ten. Then again, ceteris paribus, habeas petitions advancing treaty claims are subject to any relevant statutes and judge-crafted rules governing habeas proceedings. See Sanchos-Llamas v. Oregon, 126 S.Ct. ___ (2006); Medellin v. Dretke, 544 U.S. 660 (2005). 6. Conditions of Confinement. The petitioners in Rasul claimed only that they were detained without lawful cause and, accordingly, placed themselves within the traditional framework of habeas corpus as a means of contesting the fact or duration of confinement. What if prisoners claim they are abused while in custody? The Court has reserved the question whether habeas corpus can be used to challenge the conditions of confinement. See Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979) (noting the issue). But the Court has held that state prisoners can challenge custodial conditions via § 1983 actions. Wilwording v. Swenson, 404 U.S. 249 (1971). Justice Scalia, for his part, has endorsed § 1983 actions to contest prison conditions, because the likely alternative would be habeas corpus, which, in turn, might have to be expanded for the resulting duty. See Wilkinson v. Dotson, 544 U.S. 74, 85 (2005) (Scalia, J., concurring). See Section IX (exploring the overlap between habeas and § 1983). Consider, too, the implications of the Detainee Treatment Act, adopted after Rasul, for suits by aliens held at Guantanamo regarding the conditions of their confinement. See Note 11. a. There are reports that prisoners in United States custody have been tortured. Seymour M. Hersh, Torture at Abu Ghraib: American Soldiers Brutalized Iraqis, The New Yorker, p. 42, May 10, 2004; Seymour M. Hersh, The Gray Zone: How a Secret Pentagon Program Came to Abu Ghraib, The New Yorker, p. 38, May 24, 2004; Jane Mayer, A Deadly Interrogation: Can the CIA Legally Kill a Prisoner?, The New Yorker, p. 44, Nov. 7, 2005. Of course, “torture” must be defined if it is to figure in a legal analysis. The term appears in some international agreements, including the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. The American implementing statute for that Convention, 18 U.S.C. § 2340A, bars “torture” (outside the United States), defined as “severe physical or mental pain or suffering.” A Department of Justice memorandum, dated August 1, 2002, provided more specifics—namely, that the individual “must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result.” A superseding memo, dated December 30, 2004, dissociated the DOJ from that formulation and added that “mental suffering” in some forms may also count as torture. b. If a prisoner were to challenge the Government’s definition of torture, or were to claim that he has been tortured under the Government’s own test, would habeas corpus be the appropriate vehicle? Would a Bivens action be more suitable? If such a claim rests on non-constitutional grounds, would some other explicit statutory authorization be required for a private lawsuit? See Chapter One.

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7. Territorial Jurisdiction: Padilla v. Rumsfeld. The basic habeas corpus statute, § 2241, confers subject matter jurisdiction on federal courts, without reference to any other jurisdictional foundation (like, for example, § 1331). Moreover, § 2241 supplies a qualified individual with authorization to invoke that jurisdiction. Cf. Chapter One (discussing private rights of action, express and implied). But doesn’t the territorial aspect of habeas jurisdiction have more the look and feel of venue, or perhaps personal jurisdiction over the proper custodian? Isn’t that what the Court decided in Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973), when it held that habeas jurisdiction is established if the custodian can be reached by service of process in the district where the petition is filed, even if the prisoner is held in another federal district? There were special circumstances in Braden. The petitioner was serving a sentence in one state, but wanted to challenge the threat of future custody in another state. The local warden was an inappropriate respondent, because he was not responsible for the custody of which the prisoner complained. It was sensible, then, to let the prisoner file his habeas action in the state where the future custody would occur, thus obliging the authorities there to respond. See Section VI, Note 10. The Braden decision has not been understood to discard the general rule that prisoners complaining of current incarceration must seek habeas relief from a federal court in the district of confinement. a. In Rumsfeld v. Padilla, 542 U.S. 426 (2004), federal agents apprehended a U.S. citizen in Chicago under the authority of a material witness warrant issued by the United States District Court for the Southern District of New York in connection with a grand jury investigation of the September 11 events. The agents took the prisoner to New York, where he was held in what was described as “criminal” custody until President Bush ordered him detained as an “enemy combatant.” At that point, the agents handed the prisoner over to military authorities, who transferred him to a base in South Carolina. Just after the prisoner was moved, his attorney filed a habeas corpus petition on his behalf in the Southern District of New York, naming the Secretary of Defense as respondent. The district court held that it had jurisdiction to entertain the petition because the Secretary was within reach of the court’s process via the New York long-arm statute. The Court of Appeals for the Second Circuit affirmed federal habeas jurisdiction, reached the merits of the prisoner’s claim, concluded that the President had no lawful authority to detain him, and ordered his release. The Supreme Court reversed on jurisdictional grounds. b. Writing for the majority, Chief Justice Rehnquist said that in “core” habeas corpus challenges to current physical incarceration, the proper respondent is the prisoner’s immediate custodian in the district where the prisoner is detained. Rehnquist acknowledged that there are exceptions to the “immediate custodian” rule, and he identified Braden is an illustration. In an ordinary case, however, in which a prisoner contests his current detention, Rehnquist insisted that only the immediate custodian can be named. Accordingly, the proper respondent in Padilla was not the Secretary of Defense, but the commandant of the military brig in which the prisoner was confined. Next, Chief Justice Rehnquist explained that the proviso in § 2241 that federal courts have authority to issue the writ “within their jurisdictions” is a “corollary” to the “immediate custodian” rule. In a case in which a prisoner challenges his current detention, “[b]y definition, the immediate custodian and the prisoner reside in the same district,” and only a district court in that district can entertain the prisoner’s petition. Rehnquist conceded that there are also exceptions to the “district of confinement” rule and again cited Braden as an illustration. But since Padilla didn’t fit such an exception, Rehnquist concluded that the ordinary rule must

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govern: jurisdiction was limited to the district court in the South Carolina district where both the prisoner and his immediate custodian were located. c. In Rasul, there was a serious question whether any federal court had jurisdiction. But in Padilla, where the petitioner was held in South Carolina, it was clear that some federal court had jurisdiction and the only question was which one. If the issue in Padilla was akin to venue, did it make sense to insist on applying a “bright-line” rule (and, at that, a rule to which exceptions had been made in the past)? It appears there was some confusion about precisely where the prisoner was being held in New York (and why). Yet at the time counsel actually filed the petition, she knew that her client was in South Carolina. Was the Court worried that counsel was forum-shopping, i.e., attempting to keep the litigation within reach of the Second Circuit rather than risk coming before the Fourth? Then again, might the Government be charged with the reverse strategy—getting the case away from the Second Circuit and into the hands of the Fourth? Consider that if the lawyer in Padilla had managed to file the petition before the prisoner left New York, she would have invoked the New York district court’s jurisdiction and the subsequent transfer would have made no difference. That makes sense, right? Why? 8. Hamdi v. Rumsfeld. It may seem troubling that the prisoner in Padilla was turned away because his lawyer filed his habeas corpus petition in the wrong court. Is the result in that case mitigated by the Court’s decision (on the same day) that a citizen whose petition was lodged in the right district was able to press the same federal constitutional claims? The petitioner in Hamdi v. Rumsfeld, 542 U.S.507 (2004), was seized by indigenous forces in Afghanistan (the Northern Alliance) and was turned over to the United States military, which had invaded in an effort to displace the Taliban regime. Military authorities initially held the prisoner for interrogation at Guantanamo, then transferred him to a brig in Virginia. In an opinion for the Court, Justice O’Connor explained that a habeas petition filed in the United States District Court for the Eastern District of Virginia could be entertained. The Government argued that the prisoner in Hamdi was an “enemy combatant” who had been fighting with the Taliban (and thus against the United States) at the time of his capture and, on that basis, could be held “indefinitely” without formal charges or proceedings. Writing now for a plurality, Justice O’Connor accepted for purposes of decision the Government’s definition of “enemy combatant” as a person who allegedly was “part of or support[ed] forces hostile to the United States or coalition partners” in Afghanistan and “engaged in an armed conflict against the United States” in that country. On the merits, she concluded, first, that the prisoner’s detention did not offend the Non-Detention Act (which forbids the detention of a citizen without statutory authority), because the Authorization for Use of Military Force (passed shortly after September 11) supplied the necessary congressional authorization; second, that the Constitution permits the executive branch to apprehend a citizen alleged to be an enemy combatant; but, third, that a citizen whose incarceration is continued away from the battlefield is entitled, as a matter of constitutional due process, to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.” O’Connor acknowledged the “possibility” that the necessary proceedings might be conducted in a “properly constituted military tribunal.” Yet in the absence of proceedings of that kind, “a court that receives a petition for a writ of habeas corpus . . . must itself ensure that the minimum requirements of due process are achieved.” Justice O’Connor dodged a lot of delicate issues in Hamdi. Consider:

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a. She concluded that the detention in Hamdi was authorized by Congress. Accordingly, she had no occasion to address the Government’s argument that the President had Article II power to detain anyone, citizen and non-citizen alike, on the basis of an executive order alone—without congressional backing and subject only to the most deferential form of judicial review. b. She accepted for purposes of decision the Government’s own definition of “enemy combatant.” Accordingly, she limited her discussion to cases involving the charge of actually taking up arms against the United States in the ongoing Afghanistan war and thus finessed any argument that the Government could detain citizens for interrogation or to prevent them from participating in “terrorist” activities. The point of the detention in issue was to prevent an enemy combatant from going back to the battlefield. That purpose, in turn, provided a focus for the hearing to which the prisoner was entitled—i.e., a hearing to determine whether he was an enemy combatant and thus could be held on that rationale (until the hostilities in question came to an end). c. She postponed questions surrounding the President’s use of military tribunals or commissions to try suspected unlawful combatants—some of which questions were addressed two years later in Hamdan v. Rumsfeld, 126 S.Ct. ___ (2006). See Chapter Ten. Consider in this vein that, in so doing, O’Connor necessarily held that (in the absence of valid non-Article III proceedings) federal district courts entertaining habeas corpus petitions would themselves hold evidentiary hearings in which prisoners could contest the Government’s evidence. In many other modern contexts, courts exercising habeas jurisdiction do not straightforwardly supply the process that is due, but rather determine whether other courts have done so. That is true, for example, when federal courts address habeas applications from prisoners challenging criminal convictions. See Section II. Is it altogether clear why “enemy combatant” cases are different? Did Justice O’Connor make federal habeas proceedings available for this function in order to avoid inviting the Government to employ military tribunals? Consider that habeas corpus was historically a mechanism for inquiring into the reasons for executive detention. Justice O’Connor noted in Hamdi that some (older) habeas corpus statutes prescribe a procedure for petitioners to “present and rebut facts” in evidentiary hearings. For example, under 28 U.S.C. § 2243, a petitioner “may, under oath, deny any of the facts set forth in the [respondent’s return to the writ] or allege any other material facts.” And under 28 U.S.C. § 2246, the court may take evidence “orally or by deposition.” 9. Justice Scalia’s Dissent in Hamdi. Justice Scalia’s dissent (joined by Justice Stevens) took an entirely different approach. In the case of a U.S. citizen detained for allegedly “waging war with the United States,” Scalia insisted there are only two choices: either the Government must initiate criminal charges against the prisoner (for treason or some related offense), or Congress must formally suspend the writ of habeas corpus (thus insulating the prisoner’s detention from judicial review, subject to any procedural arrangements Congress establishes as a substitute for ordinary criminal prosecution):

The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property. When a citizen was deprived of liberty because of alleged criminal conduct, those procedures typically required committal by a magistrate followed by indictment and trial. . . .

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To be sure, certain types of permissible noncriminal detention—that is, those not dependent upon the contention that the citizen had committed a criminal act—did not require the protections of criminal procedure. However, these fell into a limited number of well-recognized exceptions—civil commitment of the mentally ill, for example, and temporary detention in quarantine of the infectious. . . . It is unthinkable that the Executive could render otherwise criminal grounds for detention noncriminal merely by disclaiming an intent to prosecute, or by asserting that it was incapacitating dangerous offenders rather than punishing wrongdoing. . . .

These due process rights have historically been vindicated by the writ of habeas corpus. In England before the founding, the writ developed into a tool for challenging executive confinement. It was not always effective. . . . The struggle between subject and Crown continued, and culminated in the Habeas Corpus Act of 1679, 31 Car. 2, c.2, described by Blackstone as a “second magna charta, and stable bulwark of our liberties.” . . .

The writ of habeas corpus was preserved in the Constitution—the only common-law writ to be explicitly mentioned. . . . The allegations here, of course, are no ordinary accusations of criminal activity. [The prisoner] has been imprisoned because the Government believes he participated in the waging of war against the United States. The relevant question, then, is whether there is a different, special procedure for imprisonment of a citizen accused of wrongdoing by aiding the enemy in wartime. . . .

Justice O’Connor, writing for a plurality of this Court, asserts that captured enemy combatants (other than those suspected of war crimes) have traditionally been detained until the cessation of hostilities and then released. That is probably an accurate description of wartime practice with respect to enemy aliens. The tradition with respect to American citizens, however, has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process. . . .

a. Is Justice Scalia’s view attractive? Realistic? Obviously, it partakes of the all-or-nothing formalism for which Scalia is commonly noted. Is that formalism apt in this situation? Should such drastic consequences turn on whether a person held by federal officers is a citizen of the United States or an alien—when the operative jurisdictional provision, § 2241, draws no such distinction? b. Consider that nobody would fare all so well if Justice Scalia’s views were to prevail. The alien petitioners in Rasul would be barred from federal court altogether, and citizen-petitioners like the prisoner in Hamdi would be at risk of trial for treason. 10. Subsequent Events. What light do succeeding events in the Hamdi and Padilla cases throw on these problems? The Government ultimately decided to release Yaser Hamdi on condition that he renounce his U.S. citizenship and accept removal to Saudi Arabia. Jose Padilla filed a new habeas corpus petition in the district court with geographic jurisdiction of the base where he was held in South Carolina. That court found the Hamdi case distinguishable (primarily on the ground that Padilla had been arrested in this country rather than on a foreign battlefield) and

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ordered Padilla’s release. The Fourth Circuit reversed and instructed the district court to give Padilla the kind of hearing that Hamdi required. When Padilla filed a petition for certiorari, the Government moved the circuit court to vacate its judgment and allow the Government to transfer Padilla to civilian custody in order to be prosecuted on ordinary criminal charges. The circuit court rejected that course of action in an opinion explicitly suggesting that the Government was attempting to evade Supreme Court review of the circuit’s existing decision. Writing for the panel, Judge Luttig explained that the Government had obtained the existing judgment sustaining Padilla’s detention as an enemy combatant on the strength of allegations that he had “taken up arms against the United States in Afghanistan and had entered into this country for the purpose of blowing up buildings in American cities, in continued prosecution of al Quaeda’s war of terrorism against the United States.” Yet without explanation the Government had apparently abandoned those arguments and now proposed to charge Padilla with entirely different crimes, chiefly conspiracy to commit murder outside the United States. Padilla v. Hanft, 432 F.3d 582 (4th Cir. 2005). A few days later, the Supreme Court issued an order permitting the transfer but deferring action on Padilla’s pending certiorari petition. Hanft v. Padilla, 126 S.Ct. 978 (2006). Ultimately, the Court denied certiorari. Padilla v. Hanft, 126 S.Ct. 1649 (2006). 11. The Detainee Treatment Act. The events that gave rise to Rasul, Hamdi, and Padilla called on the Court to dust off some pretty old habeas corpus statutes. Were those statutes responsible for some of the problems? If the President now makes it general policy to detain both citizens and aliens without criminal charges and conventional trials, should Congress enact new habeas corpus statutes tailored for the new circumstances? In fact, Congress responded to the Rasul decision by enacting the Detainee Treatment Act of 2005 (DTA) as part of the National Defense Authorization Act for Fiscal Year 2006. Pub. L. 109-148 (2005). Section 1005(e) of the DTA reads as follows:

(1) IN GENERAL—Section 2241 of title 28, United States Code, is amended by adding at the end the following: (e) Except as provided in section 1005 . . . , no court, justice, or judge shall have jurisdiction to hear or consider— (1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or (2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba who— (A) is currently in military custody; or (B) has been determined by the United States Court of Appeals for the District of Columbia in accordance with procedures set forth in section 1005(e) . . . to have been properly detained as an enemy combatant.

a. Is § 1005(e) a good idea? Is it constitutional? Is it rendered less problematic than it otherwise would be by additional provisions in the Act? Under § 1005(a), for example, the Secretary of Defense must submit to Congress a report explaining the procedures by which Combatant Status Review Tribunals [CSRTs] and Administrative Review Boards will determine the “status” of prisoners at Guantanamo. The procedures must ensure inter alia that the tribunals and boards “assess” whether statements used against a detainee were obtained “as a result of

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coercion” and that the official the President designates to review their decisions is a civilian officer in the Defense Department whose appointment is subject to Senate confirmation. The legislative history behind the Act is obscure. It was attached to the Defense Department’s appropriation bill in the eleventh hour, apparently in response to the public controversy surrounding Guantanamo. The prospect of stripping federal courts of the § 2241 habeas jurisdiction sustained in Rasul was not popular in every quarter. Yet opposition to that idea primarily took the form of efforts to exempt cases already pending on the date of enactment. See Note 12(a). b. Like the Real ID Act, the DTA explicitly purports to withdraw jurisdiction pursuant to § 2241. See Subsection (A), Note 6. Unlike the Real ID Act, the DTA does not expressly purport to eliminate jurisdiction under “any other habeas corpus provision.” Nor does it refer explicitly to any authority that might be derived from 28 U.S.C. § 1361 (the Mandamus Act) or 28 U.S.C. § 1651 (the All-Writs Act). Was the Real ID Act an exercise in overkill? Or might the absence of the same explicit jurisdictional disclaimers in the DTA be understood to restrict the DTA to the withdrawal of jurisdiction under § 2241 and thus to leave other bases of judicial power intact? Paragraph (2) of § 1005(e) deprives federal courts and judges of jurisdiction in “any other action” relating to an alien who is either in military custody or has been determined to be an “enemy combatant” by the D.C. Circuit. Does that deny jurisdiction of all kinds with respect to the categories of plaintiffs specified? Or does Congress have to be more specific—actually spelling out the particular heads of jurisdiction meant to be withdrawn? Paragraph (2)(A) sweeps in a lot of potential complainants. Aren’t all alien prisoners at Guantanamo in “military” custody? c. If the DTA doesn’t eliminate all jurisdiction in all Guantanamo cases, what other jurisdictional anchorage might exist for alien prisoners there? Some carry-over common law habeas jurisdiction kept alive by the Suspension Clause or Article III? Recall that in Rasul, Justice Scalia himself suggested the possibility of a “constitutional right to habeas” limited to U.S. citizens. Might a majority of the justices recognize some form of constitutional habeas jurisdiction neither dependent on § 2241 nor closed to aliens? What about civil suits under § 1331 in which Guantanamo prisoners seek damages, injunctive relief, or even writs of habeas corpus under the authority allowed by § 1651 to issue writs “necessary or appropriate in aid” of § 1331 jurisdiction? Cf. Note 4. d. The Real ID act preserves a serious measure of judicial review in removal cases. Can the same be said for the Detainee Treatment Act? Under § 1005(e)(2), the United States Court of Appeals for the District of Columbia has exclusive jurisdiction to review the “validity” of a final CSRT determination that an alien is “properly detained as an enemy combatant.” But the scope of the circuit court’s jurisdiction is restricted to the consideration of: (i) whether a CSRT employed standards and procedures specified by the Secretary of Defense and reached its conclusion on the basis of a “preponderance of the evidence” (albeit allowing for a “rebuttable presumption in favor of the Government’s evidence”); and (ii) “to the extent the Constitution and laws of the United States are applicable,” whether “the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” In an early submission to the Court of Appeals, the Government took the position that § 1005(e)(2) allows the circuit court to consider whether prisoners at Guantanamo “have Fifth Amendment rights” and, if so, whether the process they are provided in military tribunals “comports with those rights” and “whether the Authorization of the Use of Military Force . . . and Article II

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authorize petitioners’ detention.” Supplemental Brief Addressing Section 1005 of the Detainee Treatment Act of 2005, at 2 (Jan. 18, 2006) in Khaled A.F. Al Odah, et al. v. United States, Nos. 05-5064, 05-5095-05-5116 (D.C. Cir. 2006). Do those questions include an assessment of whether the judgment reached in an individual case was correct? If not, does the D.C. Circuit’s authority fall short of a genuine alternative to the habeas jurisdiction that § 1005(e)(1) purports to eliminate? If the circuit court’s power is so constricted, doesn’t the withdrawal of § 2241 habeas jurisdiction invite attack as a suspension of the writ (so that the constitutional question is whether the country is experiencing a “Rebellion or Invasion” in which “the public Safety may require it”)? Notice that the withdrawal of § 2241 jurisdiction operates only with respect to petitioners detained in a particular place (Guantanamo). It appears to be permanent. Then again, one hopes that the Guantanamo facility is itself temporary. e. Under § 1005(e)(3), the D.C. Circuit also has “exclusive jurisdiction to determine the validity of any final decision rendered” pursuant to a presidential order establishing military commissions. Prisoners are entitled to review in the circuit court “as of right” if they are sentenced to death or to a term of ten or more years. In other cases, the circuit court’s jurisdiction is discretionary. Here again, the scope of the court’s power is limited, in this instance to the consideration of: (i) whether the decision of a military commission is “consistent with the standards and procedures specified” in the military order establishing the commission; and (ii) “to the extent the Constitution and laws of the United States are applicable,” whether “the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.” If § 1005(e)(1) withdraws § 2241 jurisdiction to entertain habeas petitions from alien prisoners at Guantanamo complaining about trials before military commissions, does this new jurisdiction in the D.C. Circuit offer a sufficient alternative to defuse a constitutional challenge? Dissenting in the next case, Hamdan, Justice Scalia argued that the discretionary character of the circuit court’s jurisdiction does not render the substitution inadequate for constitutional purposes, because (in his view) the exercise of § 2241 habeas jurisdiction itself “has traditionally been entirely a matter of . . . equitable discretion.” 12. Hamdan v. Rumsfeld. By the time the Detainee Treatment Act was adopted, most (if not all) the prisoners held at Guantanamo had filed habeas corpus petitions. One of them claimed not that his custody at the base was unlawful, but that the Government had accused him of conspiring to commit violent offenses against civilians in Afghanistan and proposed to try him in a military commission specially constituted by President Bush to handle the trials of non-citizens charged with “terrorist” activities. The district court granted habeas relief on the ground that the proposed trial would violate both the Uniform Code of Military Justice and the Geneva Convention. The Court of Appeals for the District of Columbia reversed, the Supreme Court granted certiorari, but the DTA was adopted before the case was scheduled for argument. The Government moved to dismiss on the ground that § 1005(e)(1) abolished § 2241 habeas jurisdiction in all Guantanamo cases, including cases already pending. The Court denied the Government’s motion and overturned the circuit court judgment. See Chapter Ten. In an opinion for the Court on the jurisdictional question, Justice Stevens said this:

Subsection (e) of § 1005 . . . contains three numbered paragraphs. . . . [Paragraph (1) deals with § 2241 jurisdiction; paragraphs (2) and (3) deal with the D.C. Circuit’s jurisdiction to review decisions by CSRTs and military commissions, respectively]. . . .

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Finally, § 1005[(h)] contains an “effective date” provision, which reads as follows:

(1) In general—This section shall take effect on the date of the enactment of this Act. (2) Review of Combatant Status Tribunal and Military Commission Decisions.—Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.6 [FN3]

The Act is silent about whether paragraph (1) of subsection (e) “shall apply” to claims pending on the date of enactment. The Government argues that §§ 1005(e)(1) and 1005(h) had the immediate effect, upon enactment, of repealing federal jurisdiction not just over detainee habeas actions yet to be filed but also over any such actions then pending in any federal court—including this Court. . . . Hamdan objects to this theory on both constitutional and statutory grounds. Principal among his constitutional arguments is that the Government’s preferred reading raises grave questions about Congress’ authority to impinge upon this Court’s appellate jurisdiction, particularly in habeas cases. . . . Hamdan also suggests that, if the Government’s reading is correct, Congress has unconstitutionally suspended the writ of habeas corpus. We find it unnecessary to reach either of these arguments. Ordinary principles of statutory construction suffice to rebut the Government’s theory—at least insofar as this case . . . is concerned. . . . A familiar principle of statutory construction . . . is that a negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute. . . . “If . . . Congress was reasonably concerned to ensure that [§§ 1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [§ 1005(e)(1)], unless it had the different intent that the latter [section] not be applied to the general run of pending cases.” . . . Here, Congress not only considered the respective temporal reaches of paragraphs (1), (2), and (3) of subsection (e) together at every stage, but omitted paragraph (1) from its directive that paragraphs (2) and (3) apply to pending cases only after having rejected earlier proposed versions of the statute that would have included what is now paragraph (1) within the scope of that directive.7 [FN10]

6 [FN3] The penultimate subsections of § 1005 emphasize that the provision does not “confer any constitutional right on an alien detained as an enemy combatant outside the United States” and that the “United States” does not, for purposes of § 1005, include Guantanamo Bay. . . . 7 [FN10] Senator Levin, one of the sponsors of the final bill, objected to earlier versions of the Act’s “effective date” provision that would have made subsection (e)(1) applicable to pending cases. . . . While statements attributed to the final bill’s two other sponsors, Senators Graham and Kyl, arguably contradict Senator Levin’s contention that the final version of the Act preserved

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The [Government objects] that applying subsections (e)(2) and (e)(3) but not (e)(1) to pending cases “produces an absurd result” because it grants (albeit only temporarily) dual jurisdiction over detainees’ cases in circumstances where the statute plainly envisions that the District of Columbia Circuit will have “exclusive” and immediate jurisdiction over such cases. . . . But the premise here is faulty; subsections (e)(2) and (e)(3) grant jurisdiction only over actions to “determine the validity of any final decision” of a CSRT or commission. Because Hamdan, at least, is not contesting any “final decision” of a CSRT or military commission, his action does not fall within the scope of subsection (e)(2) or (e)(3). There is, then, no absurdity.8 [FN14] There is nothing absurd about a scheme under which pending habeas actions—particularly those, like this one, that challenge the very legitimacy of the tribunals whose judgments Congress would like to have reviewed—are preserved, and more routine challenges to final decisions rendered by those tribunals are carefully channeled to a particular court and through a particular lens of review.

a. As footnote 10 of Justice Stevens’ opinion explained, sponsors of the DTA in the Senate jockeyed for position regarding the crucial question whether § 1005(e)(1) would apply to pending cases. In his dissent, Justice Scalia said that statements on the floor “were undoubtedly opportunistic and crafted solely for use in the briefs in his very litigation.” Does that background suggest that senators considered the potential effect on cases like Hamdan as a factor in the mix of political questions they weighed in deciding how to vote? Senators were perfectly aware that Hamdan was before the Supreme Court. Those who wanted the case to go forward presumably hoped Senator Levin’s understanding of the “effective date” provision would be sustained; those who wanted to foreclose a decision presumably hoped the views expressed by other sponsors would prevail. If that’s the way the politics went, was it surprising, disturbing, or in any way extraordinary? Should the political backdrop influence the Court’s construction of the statute ultimately enacted? Justice Scalia insisted not: “As always—but especially in the context of strident, partisan legislative conflict of the sort that characterized the enactment of this legislation—the language of the statute that was actually passed by both Houses of Congress and signed by the President is our only authoritative and only reliable guidepost.” But didn’t the text of § 1005(h) lend itself to the reading Justice Stevens gave it, without reference to the legislative history Stevens cited?

jurisdiction over pending habeas cases, . . . those statements appear to have been inserted into the Congressional Record after the Senate debate. . . . All statements made during the debate itself support Senator Levin’s understanding that the final text of the [Act] would not render subsection (e)(1) applicable to pending cases. . . . 8 [FN14] There may be habeas cases that were pending in the lower courts at the time the DTA was enacted that do qualify as challenges to “final decisions[s]” within the meaning of subsections (e)(2) or (e)(3). We express no view about whether the DTA would require transfer of such an action to the District of Columbia Circuit.

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b. Justice Scalia pointed out that Justice Stevens neglected to mention the President’s signing statement, which included this passage: “[T]he executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus. . . .” c. Were there plausible reasons why Congress might have specified that paragraphs (2) and (3) of § 1005(e) would apply to pending cases, failed to specify that paragraph (1) would also apply to cases already under way, but still meant that paragraph (1), too, would have that effect—i.e., the effect of withdrawing § 2241 jurisdiction in all pending cases? The Government advanced (and Justice Scalia embraced) this argument: Since paragraphs (2) and (3) extended jurisdiction to the D.C. Circuit, Congress might have thought it important to specify that the circuit’s new jurisdiction would displace § 2241 jurisdiction in pending cases, so that courts entertaining habeas actions would understand that they were to transfer them to the D.C. Circuit. Justice Stevens himself suggested in footnote 14 that lower courts might do that, at least in some instances. But, according to the Government (and Justice Scalia), since paragraph (1) deprived federal courts of jurisdiction, Congress might have thought it was obvious that it would apply to pending cases, unless the usual rule that withdrawals of jurisdiction control pending cases was explicitly disclaimed. Justice Stevens answered that there is no hard-and-fast rule that withdrawals of jurisdiction always affect pending cases in the absence of a disclaimer. Notice that Justice Stevens purported to rest on a canon of statutory construction (expressio unius est exclusio alterius)—the kind of thing that Justice Scalia typically endorses. See Section VIII (describing statutory construction techniques in other habeas contexts). d. Justice Stevens insisted that exempting pending cases from § 1005(e)(1) was not absurd and gave plausible reasons for that conclusion. Remember, though, that all or most of the prisoners at Guantanamo were already in court with habeas corpus petitions. So there was no serious class of cases on which § 1005(e)(1) would operate. Isn’t that an absurd result? Of course, if the Government continued to bring prisoners to Guantanamo, § 1005(e)(1) would speak to any future habeas petitions new detainees might file. But by the time Hamdan was decided the Bush Administration had indicated a desire to close the holding facility there. In the end, then, the fight over habeas jurisdiction in Guantanamo cases was likely to be short-lived. Does that say anything about the significance of this episode for federal law generally? e. Inasmuch as Justice Stevens explained his reading of the “effective date” provision as an ordinary matter of statutory construction, he had no occasion to say whether any of the “clear statement” rules invoked in St. Cyr were implicated in Hamdan. See Subsection A. Nor, of course, did he face any constitutional challenges to the withdrawal of jurisdiction either in pending cases or in cases not yet initiated. By contrast, Justice Scalia did address constitutional questions. He dismissed any argument from the Suspension Clause on the theory that, despite Rasul, “an enemy alien detained abroad . . . has no rights under” that clause. He continued this way:

[E]ven if petitioner were fully protected by the [Suspension] Clause, the DTA would create no suspension problem. This Court has repeatedly acknowledged that “the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention does not constitute a suspension of the writ of habeas corpus.” Swain v. Pressley, 430 U. S. 372, 381 (1977); see also INS v. St. Cyr, 533 U. S. 289, 314, n. 38 (2006) (“Congress could, without raising any constitutional questions,

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provide an adequate substitute through the courts of appeals”). Petitioner has made no showing that the postdecision exclusive review by the D.C. Circuit provided in §1005(e)(3) is inadequate to test the legality of his trial by military commission. His principal argument is that the exclusive-review provisions are inadequate because they foreclose review of the claims he raises here. . . . [H]is argument evidently rests on an erroneously narrow reading of . . . § 1005(e)(3)(D)(ii). . . . That provision grants the D.C. Circuit authority to review, “to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.” . . . [T]he “standards and procedures” [to which this refers] include every aspect of the military commissions, including the fact of their existence and every respect in which they differ from courts-martial. Petitioner’s claims that the President lacks legal authority to try him before a military commission constitute claims that “the use of such standards and procedures,” as specified . . . is “[in]consistent with the Constitution and laws of the United States. . . . ” The D.C. Circuit thus retains jurisdiction to consider these claims on postdecision review, and the Government does not dispute that the DTA leaves unaffected our certiorari jurisdiction under 28 U.S.C. § 1254(1) to review the D.C. Circuit’s decisions. . . . Thus, the DTA merely defers our jurisdiction to consider petitioner’s claims; it does not eliminate that jurisdiction. It constitutes neither an “inadequate” nor an “ineffective” substitute for petitioner’s pending habeas application.

Though it does not squarely address the issue, the Court hints ominously that “the Government’s preferred reading” would “rais[e] grave questions about Congress’ authority to impinge upon this Court’s appellate jurisdiction, particularly in habeas cases.” . . . It is not clear how there could be any such lurking questions, in light of the aptly named “Exceptions Clause” of Article III, § 2, which, in making our appellate jurisdiction subject to “such Exceptions, and under such Regulations as the Congress shall make,” explicitly permits exactly what Congress has done here. . . .

13. Underlying Values. The nice legal issues in these cases can obscure the underlying values at stake. Don’t lose sight of the implications for the human beings (and rights) involved, and for the governmental interests at stake. The justices themselves obviously recognize the effects of their decisions regarding procedural arrangements and elaborate statutes, precedents, and constitutional principles with the consequences very much in mind. Good lawyers tailor briefs and oral arguments accordingly. If you had to spell out what the justices were thinking in these cases (thinking but not necessarily articulating), what would you say?

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II. Challenges to Criminal Convictions: Introduction

Frank v. Magnum

237 U.S. 309 (1915)

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Justice PITNEY delivered the opinion of the Court. Leo M. Frank . . . , being a prisoner in the custody of the sheriff in the jail of Fulton County, Georgia, presented to the [district court] his petition for a writ of habeas corpus . . . upon the ground that he was in custody in violation of the . . . 14th Amendment which declares that no state shall deprive any person of life, liberty, or property without due process of law. . . . Frank was indicted by the grand jury of Fulton County for the murder of one Mary Phagan; . . . after a trial lasting four weeks, in which he had the assistance of several attorneys, the jury returned a verdict of guilty. On the following day, the court rendered judgment, sentencing him to death, and remanding him, meanwhile, to the custody of the sheriff and jailer, the present appellee. . . . [The writ of habeas corpus] cannot be employed as a substitute for the writ of error. . . . [A] criminal prosecution in the courts of a state, based upon a law not in itself repugnant to the Federal Constitution, and conducted according to the settled course of judicial proceedings as established by the law of the state, so long as it includes notice and a hearing, or an opportunity to be heard, before a court of competent jurisdiction, according to established modes of procedure, is “due process” in the constitutional sense. . . . [T]he writ of habeas corpus will lie only in case the judgment under which the prisoner is detained is shown to be absolutely void for want of jurisdiction in the court that pronounced it, either because such jurisdiction was absent at the beginning, or because it was lost in the course of the proceedings. And since no question is made respecting the original jurisdiction of the trial court, the contention is and must be that by the conditions that surrounded the trial, . . . the court was deprived of jurisdiction to receive the verdict and pronounce the sentence. . . . [I]t would be clearly erroneous to confine the inquiry to the proceedings and judgment of the trial court. . . . [T]he question whether a state is depriving a prisoner of his liberty without due process of law . . . cannot ordinarily be determined . . . until the conclusion of the course of justice in its courts . . . .[W]here, as here, a criminal prosecution has proceeded through all the courts of the state, including the appellate as well as the trial court, the result of the appellate review cannot be ignored when afterwards the prisoner applies for his release on the ground of a deprivation of Federal rights sufficient to oust the state of its jurisdiction to proceed to judgment and execution against him. This is not a mere matter of comity, as seems to be supposed. The rule stands upon a much higher plane, for it arises out of the very nature and ground of the inquiry into the proceedings of the state tribunals, and touches closely upon the relations between the state and the Federal governments. . . . The rule at the common law . . . seems to have been that a showing in the return to a writ of habeas corpus that the prisoner was held under final process based upon a judgment or decree of a court of competent jurisdiction closed the inquiry. . . . Ex parte Watkins, 3 Pet. 193, 202. [But under the 1867 Habeas Corpus Act,] it is open to the courts of the United States . . . to look beyond forms and inquire into the very substance of the matter, to the extent of deciding whether the prisoner has been deprived of his liberty without due process of law, and for this purpose to inquire into jurisdictional facts, whether they appear upon the record or not. . . . [A]n investigation into the case of a prisoner held in custody by a state on conviction of a criminal

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offense must take into consideration the entire course of proceedings in the courts of the state, and not merely a single step in those proceedings. . . . Whatever question is raised about the jurisdiction of the trial court, no doubt is suggested but that the supreme court had full jurisdiction to determine the matters of fact and the questions of law arising out of this alleged disorder; nor is there any reason to suppose that it did not fairly and justly perform its duty. It is not easy to see why appellant is not, upon general principles, bound by [the Georgia Supreme Court’s] decision. It is a fundamental principle of jurisprudence, arising from the very nature of courts of justice and the objects for which they are established, that a question of fact or of law distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties. . . . However, it is not necessary, for the purposes of the present case, to invoke the doctrine of res judicata. . . . We, of course, agree that if a trial is in fact dominated by a mob, so that the jury is intimidated and the trial judge yields, and so that there is an actual interference with the course of justice, there is, in that court, a departure from due process of law in the proper sense of that term. And if the state, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a verdict thus produced by mob domination, the state deprives the accused of his life or liberty without due process of law. . . . But the state may supply such corrective process as to it seems proper. Georgia has adopted the familiar procedure of a motion for a new trial, followed by an appeal to its supreme court, not confined to the mere record of conviction, but going at large, and upon evidence adduced outside of that record, into the question whether the processes of justice have been interfered with in the trial court. . . . Such an appeal was accorded to the prisoner in the present case . . ., and the supreme court, upon a full review, decided appellant’s allegations of fact, so far as matters now material are concerned, to be unfounded. . . . The rule of law that in ordinary cases requires a prisoner to exhaust his remedies within the state before coming to the courts of the United States for redress would lose the greater part of its salutary force if the prisoner’s mere allegations were to stand the same in law after as before the state courts had passed judgment upon them. . . . There was here no denial of due process of law. . . . Justice HOLMES, dissenting. The only question before us is whether the petition shows on its face that the writ of habeas corpus should be denied, or whether the district court should have proceeded to try the facts. The allegations that appear to us material are these: The trial began on July 28, 1913, at Atlanta, and was carried on in a court packed with spectators and surrounded by a crowd outside, all strongly hostile to the petitioner. On Saturday, August 23, this hostility was sufficient to lead the judge to confer in the presence of the jury with the chief of police of Atlanta and the colonel of the Fifth Georgia Regiment, stationed in that city, both of whom were known to the jury. . . .When the verdict was rendered, and before more than one of the jurymen had been polled, there was such a roar of applause that the polling could not go on until order was restored. The noise outside was such that it was difficult for the judge to hear the answers of the jurors, although he

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was only 10 feet from them. With these specifications of fact, the petitioner alleges that the trial was dominated by a hostile mob. . . . [H]abeas corpus cuts through all forms and goes to the very tissue of the structure. It 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. The argument for the appellee in substance is that the trial was in a court of competent jurisdiction, that it retains jurisdiction although, in fact, it may be dominated by a mob, and that the rulings of the state court as to the fact of such domination cannot be reviewed. But . . .“due process of law” . . . embraces the fundamental conception of a fair trial. . . . Mob law does not become due process of law by securing the assent of a terrorized jury. We are not speaking of mere disorder, or mere irregularities in procedure, but of a case where the processes of justice are actually subverted. In such a case, the Federal court has jurisdiction to issue the writ. The fact that the state court still has its general jurisdiction and is otherwise a competent court does not make it impossible to find that a jury has been subjected to intimidation in a particular case. The loss of jurisdiction is not general, but particular, and proceeds from the control of a hostile influence. When such a case is presented, it cannot be said . . . that the state court decision makes the matter res judicata. . . .When the decision of the question of fact is so interwoven with the decision of the question of constitutional right that the one necessarily involves the other, the Federal court must examine the facts. . . . If the petition discloses facts that amount to a loss of jurisdiction in the trial court, jurisdiction could not be restored by any decision above. And notwithstanding the principle of comity and convenience (for . . . it is nothing more . . .) that calls for a resort to the local appellate tribunal before coming to the courts of the United States for a writ of habeas corpus, when, as here, that resort has been had in vain, the power to secure fundamental rights that had existed at every stage becomes a duty, and must be put forth. . . . This is not a matter for polite presumptions; we must look facts in the face. . . .

Brown v. Allen

344 U.S. 443 (1953) Justice REED delivered the opinion of the Court. Certiorari was granted to review judgments of the [court of appeals] . . . on appeal from three judgments of the . . . [district court], refusing writs of habeas corpus sought by prisoners convicted in [state court]. . . . [W]here the state action was based on an adequate state ground, no further examination of the record is required, unless no state remedy for the deprivation of federal constitutional rights ever existed. Furthermore, where there is material conflict of fact . . . as to deprivation of constitutional rights, [a district court] may properly depend upon the state’s resolution of the issue. In other circumstances the state adjudication carries the weight that federal practice gives to the conclusion of a court of last resort of another jurisdiction on federal constitutional issues. It is not res judicata. . . . Applications to district courts on grounds determined adversely to the applicant by state courts should follow the same principle—a refusal of the writ without more, if the court is satisfied, by the record, that the state process has given

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fair consideration to the issues and the offered evidence, and has resulted in a satisfactory conclusion. Justice JACKSON, concurring in the result. [T]his Court has sanctioned progressive trivialization of the writ until floods of stale, frivolous and repetitious petitions inundate the docket of the lower courts and swell our own. . . . It must prejudice the occasional meritorious application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search. . . . Conflict with state courts is the inevitable result of giving the convict a virtual new trial before a federal court sitting without a jury. Whenever decisions of one court are reviewed by another, a percentage of them are reversed. . . . However, reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final. . . . It is sometimes said that res judicata has no application whatever in habeas corpus cases and surely it does not apply with all of its conventional severity. . . . But call it res judicata or what one will, courts ought not to be obliged to allow a convict to litigate again and again exactly the same question on the same evidence. . . . Whether one will agree with [me] . . . will depend, I suppose, on the latitude he thinks federal courts should exercise in retrying de novo state court criminal issues. . . . Justice FRANKFURTER. From its inception certiorari jurisdiction . . . was designed to permit this Court to keep within manageable proportions, having due regard to the conditions indispensable for the wise adjudication of those cases which must be decided here, the business that is allowed to come before us. By successive measures Congress enlarged the discretionary jurisdiction of the Court until, by the Judiciary Act of 1925, . . . the Court became complete master of its docket. The governing consideration was authority in the Court to decline to review decisions which, right or wrong, do not present questions of sufficient gravity. Whatever the source of these questions, whether the common law, statutes or the Constitution, other cases of obvious gravity are more than enough to absorb the Court’s time and thought. . . . Congress could have left the enforcement of federal constitutional rights governing the administration of criminal justice in the States exclusively to the State courts. These tribunals are under the same duty as the federal courts to respect rights under the United States Constitution. . . . Indeed, the jurisdiction given to the federal courts to issue writs of habeas corpus by the First Judiciary Act . . . extended only to prisoners in custody under authority of the United States. It was not until the Act of 1867 that the power to issue the writ was extended to an applicant under sentence of a State court. It is not for us to determine whether this power should have been vested in the federal courts. . . . It is for this Court to give fair effect to the habeas corpus jurisdiction as enacted by Congress. By giving the federal courts that jurisdiction, Congress has imbedded into federal legislation the historic function of habeas corpus adapted to reaching an enlarged area of claims. . . .

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In exercising the power thus bestowed, the District Judge must take due account of the proceedings that are challenged by the application for a writ. All that has gone before is not to be ignored as irrelevant. But the prior State determination of a claim under the United States Constitution cannot foreclose consideration of such a claim, else the State court would have the final say which the Congress, by the Act of 1867, provided it should not have. . . It may be a matter of phrasing whether we say that the District Judge summarily denies an application for a writ by accepting the ruling of the State court or by making an independent judgment, though he does so on the basis of what the State record reveals. But since phrasing mirrors thought, it is important that the phrasing not obscure the true issue before a federal court. . . . When the record of the State court proceedings is before the court, it may appear that the issue turns on basic facts and that the facts (in the sense of a recital of external events and the credibility of their narrators) have been tried and adjudicated against the applicant. Unless a vital flaw be found in the process of ascertaining such facts in the State court, the District Judge may accept their determination in the State proceeding and deny the application. On the other hand, State adjudication of questions of law cannot, under the habeas corpus statute, be accepted as binding. It is precisely these questions that the federal judge is commanded to decide. . . . Where the ascertainment of the historical facts does not dispose of the claim but calls for interpretation of the legal significance of such facts, . . . the District Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge. For instance, the question whether established primary facts underlying a confession prove that the confession was coerced or voluntary cannot rest on the State decision. . . . Although there is no need for the federal judge, if he could, to shut his eyes to the State consideration of such issues, no binding weight is to be attached to the State determination. The congressional requirement is greater. The State court cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right. . . .

Notes on Challenges to Criminal Convictions 1. Formal Structure. This section and the sections to follow treat what may be the most common (yet controversial) function performed by federal courts exercising habeas corpus jurisdiction—namely, the examination of claims raised by state convicts who contend they are deprived of their liberty in violation of federal law. Habeas corpus in the district courts is a form of civil jurisdiction, but you will see that, ceteris paribus, convicts are entitled to petition for federal habeas relief on the basis of alleged violations of their federal rights in the course of criminal proceedings in state court. This by virtue of the Habeas Corpus Act of 1867, which extended federal habeas jurisdiction to cases involving state prisoners. See Section I (A), Note 3. The structure of a habeas proceeding looks like this: A convict complains to a federal district court that he or she is unlawfully detained within the meaning of § 2241 (perhaps because the statute under which the prisoner was convicted violated federal law, but more likely because the procedures leading to conviction were infected by federal error). The custodian responds that the prisoner’s custody is justified by the prison term the prisoner is held to serve (or a death sentence

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due to be executed). The federal court then addresses the prisoner’s federal claims in order to determine whether the custodian’s explanation is valid. 2. The Frank and Brown Decisions. The Frank and Brown cases are benchmarks in the development of federal habeas corpus jurisdiction, illustrating both the injustices that are conventionally thought to warrant the district courts’ authority to entertain habeas petitions from state convicts and the extraordinarily difficult problems that authority entails. You will see that federal habeas corpus jurisdiction extends to cases in which the facts are far less gripping. But don’t lose sight of these paradigm cases in which serious injustices undoubtedly occurred in state criminal courts, inviting the development of a mechanism by which state convicts can seek redress in the federal courts.

a. The petitioner in Frank was a Jewish businessman who had been charged and tried for murdering a young girl in his factory. He was almost certainly innocent. Yet in the hostile atmosphere of Atlanta at the time, he had been convicted and sentenced to death. Justice Holmes only sketched the disturbing circumstances surrounding the proceedings. His eloquent dissent is a classic of habeas corpus lore. That opinion alone makes the Frank case worth reading, don’t you think? After the Supreme Court’s decision, Leo Frank was dragged from his cell and lynched—concluding one of the most vivid instances of anti-Semitic violence in American history. The petitioners in Brown were African American men who had been tried (some for murder, some for the rape of white women) before all-white juries in North Carolina. All had been convicted, and all had also been sentenced to die.

b. Justice Pitney’s approach in Frank has not survived. Yet in certain academic and political circles some aspects of his opinion are still thought to be attractive. In any case, the Frank opinion provides a helpful foil against which to understand approaches with more staying power. Justice Reed’s opinion for the Court in Brown was by all accounts ambiguous (and appears the more so here having suffered a brutal edit). By all accounts, the separate opinion by Justice Frankfurter (which enjoyed majority support on most issues) supplied a better explanation of the full Court’s thinking. That thinking has not been abandoned explicitly, but as you work your way through the materials to follow, ask yourself whether each development you meet in turn is consistent with, or departs from, Frankfurter’s explanation of federal habeas jurisdiction. 3. Appellate Jurisdiction by Another Name? In an opinion for the Court in Townsend v. Sain, 372 U.S. 293 (1963), Chief Justice Warren said that “[t]he whole history of the writ—its unique development—refutes a construction of the federal courts’ habeas corpus powers that would assimilate their task to that of courts of appellate review.” Warren explained that “[t]he function on habeas” is “to test by way of an original civil proceeding, independent of the normal channels of review of criminal judgments, the very gravest allegations. . . .” Even though a convict has, by hypothesis, previously suffered an unfavorable judgment in state court, his or her petition for a federal writ of habeas corpus initiates an independent action, collateral to what occurred in state court. See Section III, Note 2. The district court examines federal claims that were or might have been resolved in state court, but does not (in theory) review any previous state court judgment regarding a federal claim for error. By contrast, the federal court attends only to the lawfulness of the prisoners’ detention—which necessitates looking into what happened in state court. As a formal matter, then, habeas corpus jurisdiction in the district courts is consistent

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with the general understanding that district court jurisdiction is exclusively original. See Chapter Six (discussing the Rooker-Feldman doctrine). a. Formalities aside, federal habeas corpus for state convicts looks appellate, doesn’t it? If habeas is not the practical equivalent of appellate review, what’s the difference? Writing for the Court in Exxon Mobil Corp. v. Saudi Basic Industries, 544 U.S. 280 (2005), Justice Ginsburg reaffirmed that federal district courts have no general appellate jurisdiction over state court judgments, but then dropped what may be a significant footnote: “Congress, if so minded, may explicitly empower district courts to oversee certain state-court judgments and has done so, most notably, in authorizing federal habeas review of state prisoners’ petitions.” Id. at 292 n.8 (emphasis added). Was that only loose talk? Remember. The Court was at pains in INS v. St. Cyr, 533 U.S. 289 (2001), to distinguish original adjudication in habeas corpus proceedings from “judicial review.” See Subsection (A). b. In Frank, Justice Pitney insisted that the writ could not substitute for appellate review via a writ of error. He plainly meant that habeas corpus is different from appellate review inasmuch as federal courts cannot award habeas relief on the basis of trial errors. That was true when Frank was decided. As you move through this chapter, ask yourself whether it is still true (and, if so, why).

c. In Townsend, Chief Justice Warren said that habeas is different from appellate review for a different reason. Federal courts can hold evidentiary hearings and determine factual questions (the sort of thing we associate with original, not appellate, jurisdiction). That was true when Townsend was decided, and it remains true today. But changes have occurred. As you come upon them, ask yourself whether federal courts continue to determine facts so routinely as Warren envisioned and, if not, whether habeas again begins to look like appellate review by another name.

d. In Frank, and again in Brown, the Court acknowledged that a state court might refuse to consider a federal claim if the defendant failed to comply with state procedural rules for raising it. In that event, a federal district court receiving a later habeas application would equally decline to examine the claim so long as the state law basis of the state decision was adequate within the meaning of the adequate and independent state ground doctrine governing the Supreme Court’s own appellate jurisdiction. The justices apparently conceived that the same doctrinal arrangements applied in both contexts. See Irvin v. Dowd, 359 U.S. 394, 833 (1959) (Frankfurter, J., dissenting). But in appellate cases in the Supreme Court, the premise is that the Court has no power to upset a state court judgment that rests (adequately and independently) on state grounds. If, in habeas, district courts don’t review state judgments at all, what difference should it make whether a state conviction judgment can stand on state law alone? What did the importation of a rule from an appellate context say about the nature of a district court’s habeas jurisdiction? For a treatment of state procedural grounds today, see Section VII.

4. Jurisdictional Error. Justice Pitney explained in Frank that, at common law, habeas corpus was not available to test the validity of a prisoner’s detention based on a “judgment or decree of a court of competent jurisdiction.” By most accounts, English courts concerned themselves with prisoners complaining of executive, not judicial, detention. The chief danger in view was the abuse of royal authority without judicial involvement. The famous Habeas Corpus Act of 1679 was exclusively concerned with streamlining the process by which courts heard complaints from

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prisoners held in jail by sheriffs or other executive officers and explicitly excluded from its coverage prisoners committed for “felony or treason plainly expressed in [a judicial] warrant of commitment” and prisoners “convict or in execution by legal process.” 31 Car. 2, c. 2, § 3 (1679), quoted in Dallin Oaks, Legal History in the High Court—Habeas Corpus, 64 Mich. L. Rev. 451, 461 (1966). Consider that imprisonment did not become a common punishment for crime until the Nineteenth Century (when the idea developed in this country). Previously, criminal suspects were typically confined only prior to trial (lest they get away). If they were convicted, they were tortured or put to death. So early courts were not customarily asked to look at habeas applications from prisoners complaining of detention after conviction. a. When English courts entertained habeas petitions from prisoners held under court order at all, they restricted themselves to determining whether the committing courts acted within their jurisdiction. If a return to the writ explained that a prisoner was detained under legal process issued by a court of proper jurisdiction, that explanation ended the matter. There was no occasion for looking behind the return and investigating the bona fides of the criminal charge, far less for exploring whether a prisoner who had already been convicted had received a lawful trial. A conviction itself, reached by a court of proper jurisdiction, was sufficient to justify a prisoner’s confinement. b. Early on in this country, the Supreme Court confined habeas corpus under the Judiciary Act of 1789 to English practice. Federal courts typically considered petitions only from prisoners held by federal executive officers before (or simply without) trial. If one federal court received a petition from a prisoner held under another court’s order, the court limited its attention to the other court’s jurisdiction. In Ex parte Watkins, 28 U.S. (3 Pet.) 193 (1830), cited in Frank, Chief Justice Marshall declared that a federal court could release a prisoner from jail only if the committing court’s order was void for lack of subject matter jurisdiction and not merely because it was voidable because erroneous. c. In Frank, accordingly, Justice Pitney allowed for the possibility that the state process the defendant had received was so deeply flawed that it didn’t count as judicial process at all, and thus was action outside the state courts’ jurisdiction. The idea that federal habeas corpus was limited to jurisdictional error did not last, though it shows up again in some modern contexts. See Section VII, Note 11(b). Should it have been preserved? Such a limitation would have distinguished habeas from appellate review, but it would have drained habeas of any significance apart from the most egregious cases. After all, the Court refused to find jurisdictional error in Frank itself, despite the obvious truth that the trial had been a travesty. d. Consider, however, Moore v. Dempsey, 261 U.S. 86 (1923), only eight years later. In Moore, five African American defendants had been sentenced to death after another mob-dominated trial in Arkansas. Writing now for the Court, Justice Holmes bowed to the holding in Frank that a federal court could not grant relief whenever a prisoner showed federal error in a state criminal trial. Yet mustering more colorful rhetoric, Holmes declared that when it appeared that the “whole proceeding” in state court was a “mask,” that “counsel, jury and judge were swept to the fatal end by an irresistible wave of public passion,” and that the Arkansas Supreme Court had “failed to correct the wrong,” then “perfection in the machinery for correction [of trial error]” could not keep a federal court from “securing” federal rights. Holmes purported to distinguish Frank. Yet the similarities between the two cases were evident, and by common account the understanding of habeas corpus Holmes adopted for the Court in Moore actually tracked his dissent in Frank.

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5. Preclusion. Both Justice Pitney in Frank and Justice Reed in Brown v. Allen mentioned the possibility that a federal district court entertaining a habeas petition from a state convict should give preclusive effect to a previous state court judgment touching the prisoner’s federal claims. Neither adopted that position; in point of fact, Reed appeared explicitly to reject it. Why? Even if habeas petitions from convicts avoid dismissal under the Rooker-Feldman doctrine, shouldn’t they nonetheless be subject to ordinary preclusion rules? And since, in the case of a state convict, the former judgment occurred in state court, shouldn’t the federal court be bound by the Full Faith and Credit Statute, 28 U.S.C. § 1738, to give the state court judgment the preclusive effect it would have in the state concerned? See Chapter Six.

a. Consider a note Justice Jackson received from one of his law clerks when the Brown case was pending: “I respectfully submit that the Court would perform a signal service to the federal system if they [sic] would lay down a rule which required federal district judges to observe the ordinary principles of res judicata in passing on habeas corpus petitions from those confined under state sentence.” William H. Rehnquist, Habeas Corpus Then and Now; Or, “If I Can Just Find the Right Judge, Over these Prison Walls I Shall Fly . . .” (undated memorandum), quoted in Saul Brenner, The Memos of Supreme Law Clerk William Rehnquist: Conservative Tracts, or Mirrors of the Justice’s Mind?, 76 Judicature 77 (1992). b. The explanation for eschewing preclusion by name is in part historical. English courts didn’t apply the common law doctrines of res judicata and collateral estoppel to applications for the writ. A prisoner who was unsuccessful (in an attack on executive detention) before one judge or court was not precluded from filing a subsequent petition with another. In theory, at least, a prisoner might go from judge to judge and from court to court until he found a jurist who would set him free. By most accounts, the writ was exempt from ordinary preclusion rules because an initial denial, being a refusal to act, was not subject to appellate review (by writ of error). Since only appealable decisions were entitled to preclusive effect, unsuccessful habeas petitioners were free to apply more than once. Again following English practice, the Supreme Court in this country held that federal habeas corpus was exempt from common law preclusion rules notwithstanding the development of appellate review in habeas cases. See Salinger v. Loisel, 265 U.S. 224 (1924). c. Consider, too, that the application of preclusion rules to habeas corpus would dessicate the writ, more severely perhaps than would limiting claims to jurisdictional errors. And, after all, habeas corpus does exist, and it therefore must have some genuine content. In this vein, the Court has explained that habeas is an explicit statutory exception to § 1738. Kremer Chem. Constr. Corp., 456 U.S. 461, 485 n.27 (1982). 6. The Exhaustion Doctrine. In the wake of the 1867 Act, the Supreme Court fashioned doctrines ostensibly meant to mitigate potential friction between federal and state courts. In Ex parte Royall, 117 U.S. 241 (1886), the Court acknowledged that a federal court had jurisdiction to entertain a habeas petition from a prisoner in state custody. Yet since the prisoner was in jail pending criminal trial in state court, the Court held that the federal court should not exercise that jurisdiction lest it interfere with ongoing state proceedings. If the prisoner had a federal claim regarding his treatment, he was obliged to present that claim to the state courts before advancing it in federal court via a petition for a writ of habeas corpus. Thus was born the “exhaustion doctrine” in federal habeas cases. See Section VI.

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a. The exhaustion requirement makes a certain amount of sense. It not only keeps federal courts from disrupting state criminal prosecutions, but also gives state courts a chance to consider federal claims in the course of state proceedings. At the same time, doesn’t the exhaustion requirement exacerbate the tension between federal and state courts? Given that a prisoner must present a federal claim to the state courts initially, it follows that a federal court receiving a habeas petition is typically asked to address a federal claim that was, or might have been, determined against the prisoner in state court. At the very least, the exhaustion doctrine underscores the fundamental question: What effect should a federal district court considering a federal claim in habeas corpus proceedings give to a previous state court determination of the same claim? b. Notice that, in Frank, Justice Pitney suggested that it made little sense to require a prisoner to litigate a federal claim in state court if, thereafter, a federal court would ignore the state court’s result. Was that right? Consider the opposite argument. The exhaustion doctrine is not meant to abdicate responsibility for determining a federal claim to the state courts, but only to postpone the exercise of federal jurisdiction in view of pending state proceedings. The premise, then, is that after the state courts are finished with a case, a federal court will adjudicate a convict’s federal claim. To give much significance to the state court judgment would be to renege on the very jurisdiction the 1867 Act conferred. 7. The Process Model. The Court wrestled with these and other problems in Frank and Brown, feeling its way toward a coherent and workable model for federal habeas corpus jurisdiction—a model that would accommodate state courts and state interests without forsaking the federal courts’ jurisdiction. In Frank, Justice Pitney emphasized that the state supreme court had provided “corective process” for any deficiences in the petitioner’s trial. Building on that general idea, Professor Bator proposed a process model for federal habeas corpus attacks on state criminal convictions. Paul Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963):

The important point to remember about Frank is its insight that there comes a point at which previous determinations, themselves fairly arrived at, settle the question whether [a federal constitutional right was violated] and that in our legal system that point is usually where a judgment has become final and immune from direct review. There is . . . nothing radical about the notion that a judgment has accorded due process even though there remains a theoretical possibility—which possibility, it is the whole thrust of the doctrine, will not be explored—that error has occurred as to a [constitutional] question. . . . [According to this model, the inquiry of a federal court entertaining a habeas corpus petition from a state convict should be as follows:] . . . [V]iewing the state processes in totality, did the state at any time provide meaningful process for the testing of the question whether there was . . . a violation [of a defendant’s federal rights]? If the [prisoner’s federal claim] was litigated at trial and does not bear on the integrity of the trial court’s decision of the issue itself . . . , habeas would not lie. If the issue was not fairly litigated at trial, . . . but the state provided a concededly unflawed tribunal to test it [later], habeas again would not lie. But if the state provides no process at all . . . or provides only meaningless process . . . , habeas would be available.

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a. If Bator’s process model was buried in Frank, it was buried deep. Justice Pitney himself attached significance to the “corrective process” available in the state supreme court, because that process counted as the process “due” under the Fourteenth Amendment. He said that the trial must include “notice and a hearing, or an opportunity to be heard,” but beyond that federal due process meant only process according to “established modes of procedure” under state law. That state process continued as a case moved through the stages of state proceedings and was not complete until the highest state court finally put an end to things. This analysis may sound familiar. Recall the modern cases holding that procedural due process claims are not complete until after the individual has employed state judicial processes. E.g., Parratt v. Taylor, 451 U.S. 527 (1981). Yet there is an important difference. In Frank, Justice Pitney largely denied any federal content to due process and, instead, proposed that a state provided the process due constitutionally by following its own state-law procedures. Due process, by Pitney’s account, was primarily a matter of equal treatment: each individual’s case had to be handled under the same local rules that applied to everyone else.

b. Of course, Justice Pitney’s conception of due process is no longer viable. The Court now interprets due process to entail a minimal standard of fairness defined by federal law and, into the bargain, to incorporate most of the more specific safeguards listed in the Bill of Rights. If a federal constitutional safeguard is violated in a state criminal trial, that violation does not disappear simply because a state appellate court reviews what happened in a manner that is itself procedurally fair. An erroneous decision by a state appellate court (however fairly reached) is constitutionally flawed and can be overturned by the Supreme Court exercising appellate jurisdiction. Isn’t the modern understanding of due process problematic for Bator’s process model? If a prisoner is incarcerated on the basis of a criminal conviction that was obtained in violation of his constitutional rights, it’s hard to think that he is not held in unlawful custody within the meaning of § 2241. How can it be said, then, that federal habeas corpus is unavailable simply because a state appellate court reviewed the federal claim in a procedurally fair manner?

8. Stone v. Powell. The Supreme Court employs an intellectual cousin of Bator’s process model in cases in which prisoners advance Fourth Amendment exclusionary rule claims. In an opinion for the Court in Stone v. Powell, 428 U.S. 465 (1976), Justice Powell said that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” What counts in Stone is an opportunity for fair process in state court. Professor Bator’s model was also satisfied by the chance for fair process. Recall, though, that in Frank the Georgia Supreme Court was thought to have determined the merits of the petitioner’s claim, thus providing actual corrective process.

a. Be careful. Justice Powell explained that Stone is not about the scope of a federal court’s habeas corpus jurisdiction, but rather about the nature of the (non-constitutional) exclusionary rule. The purpose of the exclusionary rule is important (to deter police misconduct), but implementation of the rule is costly inasmuch courts are deprived of reliable evidence tending to demonstrate a defendant’s guilt. Accordingly, the exclusionary rule should be enforced only where it promises to have a significant deterrent impact. The deterrence that would be obtained by applying the rule in federal habeas corpus proceedings, far removed from police work in the field, is insufficient to justify the costs.

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b. The Court has not applied a similar analysis in other cases. See, e.g., Kimmelman v. Morrison, 477 U.S. 365 (1986) (distinguishing Stone in a case in which a prisoner complained that defense counsel rendered ineffective assistance by failing to raise an exclusionary rule claim at trial); Withrow v. Williams, 507 U.S 680 (1993) (distinguishing Stone in a case in which a prisoner claimed that a confession had been introduced at trial in violation of the Fifth Amendment exclusionary rule announced in Miranda v. Arizona).

9. The Reagan Administration Proposal. During the Reagan Administration, Attorney General Smith proposed a provision, S. 2216, 97th Cong., 2d Sess., § 5 (1982), which read this way: “An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that has been fully and fairly adjudicated in State proceedings. . . .” Notice that § 5, unlike Stone (but like Frank), would require actual adjudication in state court, though still forbearing any inquiry into whether the state court reached the correct result. In an accompanying memorandum, Smith explained what § 5 was meant to achieve. Section-by-Section Analysis, Hearings before the Committee on the Judiciary, U.S. Senate, 97th Cong., 2d Sess. pp. 93-95 (1983). By Smith’s account, § 5 was not supposed to restrict a federal court exclusively to an appraisal of the procedures used in state court to examine a federal claim, but also contemplated that the federal court would hold the state court result to a standard of “reasonableness”:

[This section] would require deference to the result of state adjudications that are “full and fair.” The language . . . is the same as that used by the Supreme Court prior to Brown v. Allen when describing the appropriate scope of re-examination of claims previously adjudicated in state proceedings. . . . It is also essentially the same as the language employed in regard to habeas review of Fourth Amendment exclusionary rule claims under the rule of Stone v. Powell. . . . [A] state adjudication would not be full and fair if the determination arrived at did not meet a minimum standard of reasonableness. If a factual determination were such that no reasonable court could have reached such a conclusion from the evidence presented to the state court, this standard would not be satisfied. Similarly, the disposition of the claim would have to be reasonable, in light of the facts found and the rule of law applied. Although the rule of law applied would have to reflect a reasonable view of federal law, a district judge could not properly override the state court determination of a legal issue simply because he would reach a different conclusion. . . .

10. Post-Frank Developments. In 1948, Congress enacted legislation that, by most accounts, confirmed federal court jurisdiction to entertain petitions from state convicts. The key provision was 28 U.S.C. § 2254(a): “The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution, or laws or treaties of the United States.” Other provisions, 28 U.S.C. § 2254(b)-(c), codified the idea in Ex parte Royall—that federal courts should not exercise their jurisdiction until prisoners had exhausted opportunities to present their federal claims to state courts. The new legislation prompted the Supreme Court to revisit the questions examined in Frank. The result was Brown v. Allen and a new model for federal habeas.

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11. The De Novo Model. Recall the crucial question: If a federal district court is not to give preclusive effect to a previous state court judgment on the merits of a federal claim, what significance is such a prior state decision to have? a. In his opinion announcing the judgments in Brown, Justice Reed said that in the face of a prior state judgment on a claim, a federal court should “refuse the writ without more” on two conditions: (1) the state court “process” had given the claim “fair consideration” and (2) the state proceeding had “resulted in a satisfactory conclusion.” The second condition arguably marked a departure from Frank, though Reed was hardly clear about what would count as a “satisfactory conclusion.” Must the state court’s result be correct in the eyes of the federal court? Something in the neighborhood of correct? Something close enough to warrant deference to the state court’s decision (reached in a procedurally fair way)? By comparison, Justice Frankfurter’s separate (authoritative) opinion was much more exacting. According to Frankfurter, a federal district court entertaining a petition from a state convict was to examine the merits of a federal claim afresh, exercising independent judgment. As Justice Jackson put it (grudgingly) in his separate opinion, the federal court would address the merits “de novo.” Thus Brown came to stand for a different, de novo model for federal habeas jurisdiction.

b. The de novo model contemplated that federal courts would exercise independent judgment not only regarding the abstract federal legal standards applicable to a prisoner’s claim, but also regarding what Frankfurter called “mixed questions” of law and fact or “the application of constitutional principles to the facts.” A state court may have misunderstood the legal principle or rule governing a prisoner’s federal claim. But most of the time, the question in federal court would be whether a state court got the applicable federal law right, but then misapplied that law in the circumstances of the case and thus reached the wrong result. The practical significance of the de novo model, accordingly, rested primarily on its contemplation that federal courts would determine mixed questions, i.e., law-application questions, independently.

c. Justice Frankfurter justified the de novo model as a matter of statutory construction. In turn, he related federal court authority under the 1867 Act, now captured in § 2241 and § 2254, to the Supreme Court’s appellate jurisdiction under 28 U.S.C. § 1257. Frankfurter acknowledged that the Court had authority to address prisoners’ claims on certiorari and would use that power (very occasionally) when a case coming up from a state court provided an opportunity for elaborating federal law. Yet he signaled that the Court would make no attempt to review state court judgments routinely to ensure that state courts reached correct results regarding federal claims arising in run-of-the-mine criminal cases. The practical task of policing state court decisions on federal claims would fall to federal district courts entertaining habeas corpus petitions.

12. The Warren Court. The allocation of responsibility achieved in Brown served the Warren Court’s agenda in the 1950s and 1960s. During those years, by common account, the Court used individual cases as vehicles for elaborating the meaning of federal procedural safeguards, but then employed the lower federal courts as its surrogates—charged to enforce, on a case-by-case basis, the safeguards the Supreme Court announced. In aid of that framework, the Warren Court issued “guideline” opinions specifying how district courts were to manage their responsibilities. Chief Justice Warren’s opinion for the Court in Townsend v. Sain, 372 U.S. 293 (1963), was one

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of them. The Townsend precedent is still in place, but is now circumscribed by statute. See Section VIII (B). Chief Justice Warren said this:

It is the typical, not the rare, case in which constitutional claims turn upon the resolution of contested factual issues.9 [FN6] Thus a narrow view of the hearing power would totally subvert Congress’ specific aim in passing the [1867] Act. . . . Therefore, where an applicant for a writ of habeas corpus alleges facts which, if proved, would entitle him to relief, the federal court to which the application is made has the power to receive evidence and try the facts anew. . . . The appropriate standard—which must be considered to supersede, to the extent of any inconsistencies, the opinions in Brown v. Allen—is this: Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts. . . . Although the district judge may, where the state court has reliably found the relevant facts, defer to the state court’s findings of fact, he may not defer to its findings of law. It is the district judge’s duty to apply the applicable federal law to the state court fact findings independently. That was settled in Brown v. Allen. . . .

a. What should we make of the precise test that Warren formulated in Townsend—

namely, that a federal court is obliged to hold its own hearing into the facts underlying a prisoner’s federal claim if the petitioner did not receive “a full and fair evidentiary hearing” in state court? Isn’t that process-model language? Warren proceeded from the premise in Brown that a federal court would examine the merits of a claim de novo, even if the process by which the state courts reached their judgment was beyond reproach. Yet if the state court procedures for determining the underlying facts were procedurally fair, he allowed (though he did not require) the federal court to accept the factual findings the state courts reached. Was it sensible to mix and match models—adhering to the de novo model with respect to legal questions and mixed questions of law and fact, but reaching back to the process model with respect to questions of historical fact? See Section VIII (B) (discussing current arrangements under § 2254(e)).

b. Two other “guideline” decisions, Fay v. Noia, 372 U.S. 293 (1963) (dealing with procedural default in state court), and Sanders v. United States, 373 U.S. 1 (1963) (involving multiple federal petitions from a single prisoner), have since been overruled—Noia by the Court, Sanders by superseding legislation. See Sections VII and VIII (D).

9 [FN6] By “issues of fact” we mean to refer to what are termed basic, primary, or historical facts: facts “in the sense of a recital of external events and the credibility of their narrator” [, quoting Frankfurter in Brown v. Allen] . . . . So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense.

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13. A Right to a Federal Forum? Consider the implications of the de novo model ascribed to Brown and elaborated in Townsend. Did the Court mean to say that state criminal defendants in custody following conviction are entitled to an opportunity to present federal claims to some federal court? It might be the Supreme Court on direct review of the highest state court’s judgment confirming the conviction. More likely, it will be a federal district court entertaining a petition for the writ of habeas corpus. Can such an entitlement to a federal forum be ascribed to the statutes in place, i.e., § 2241 and § 2254? Can it be reconciled with the Court’s typical disclaimer of any general right to litigate federal claims in federal court? See Chapter Six. 14. Distrust of State Courts? Might there be reasons for treating litigants in criminal custody in this extraordinary way? Recall the omnipresent debate over the comparative quality of federal and state courts. Does the idea that every convict in custody gets one bite at the federal apple come down to the view that state courts can’t be trusted to decide federal constitutional questions arising in criminal prosecutions? If so, is there any basis for that position in this context? How about this? Federal safeguards are hard to enforce in the immediate context of criminal prosecutions. The purpose of criminal process is to implement substantive criminal law by bringing that law to bear on violators. Of course, violators have to be identified. Since most procedural safeguards are linked to accurate fact-finding, there is a way in which enforcing procedural rights is a necessary aspect of the enterprise. But the purpose, the raison d’être, is to punish the guilty. Releasing the innocent is only a by-product. State judges charged to preside at criminal trials or to review convictions are perforce participants in the project. They are also charged to see that federal procedural safeguards are respected. Yet their ability to do so is compromised by the overriding mission to vindicate state criminal law. And it is because state courts have plainly contradictory responsibilities that federal rights should not be left entirely in their care. Federal courts, by contrast, can concentrate on federal rights unimpaired by any competing commitment to local criminal law. 15. Federal Convicts. The 1948 legislation contained another provision that largely eliminated the ability of federal convicts to attack their convictions and sentences by means of habeas corpus petitions pursuant to § 2241. According to 28 U.S.C. § 2255, a prisoner who claims “the right to be released” from confinement under a federal sentence imposed in violation of federal law can “move the court which imposed” the sentence “to vacate, set aside or correct” it, but can petition for habeas relief under § 2241 only if a § 2255 motion is “inadequate or ineffective to test the legality of his detention.” In United States v. Hayman, 372 U.S. 391 (1963), the Court refused to construe § 2255 as a significant limitation. The new motion procedure authorizes an independent inquiry into the validity of a prisoner’s custody. Federal convicts thus lost nothing in the switch from § 2241 to § 2255; they still have a means of access to federal court that is “exactly commensurate” with the writ of habeas corpus that was previously available to them. Hill v. United States, 368 U.S. 424, 427 (1962). Congress created § 2255 motions primarily as a docket control measure. Previously, district courts located near federal penitentiaries were swamped with § 2241 habeas corpus petitions. Moreover, those courts faced practical difficulties. The relevant files and records were in the sentencing court, and if a hearing was necessary the witnesses were typically near that court, as well. By re-routing prisoners to the sentencing court, Congress achieved greater efficiency in the treatment of claims that previously had been adjudicated in a court in the district of confinement.

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____________________

III. Issues Cognizable

Teague v. Lane

489 U.S. 288 (1989) Justice O’CONNOR announced the judgment of the Court and delivered the opinion of the Court. In Taylor v. Louisiana, 419 U.S. 522 (1975), this Court held that the Sixth Amendment required that the jury venire be drawn from a fair cross section of the community. . . . The principal question presented in this case is whether the Sixth Amendment’s fair cross section requirement should now be extended to the petit jury. Because we adopt Justice Harlan’s approach to retroactivity for cases on collateral review, we leave the resolution of that question for another day. . . . Petitioner, a black man convicted by an all-white Illinois jury, [presented a “fair cross-section” claim based on Taylor in a petition for federal habeas corpus relief]. . . . [T]he question “whether a decision [announcing a new rule should] be given prospective or retroactive effect should be faced at the time of [that] decision.”. . . Retroactivity is properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated. Thus, before deciding whether the fair cross section requirement should be extended to the petit jury, we should ask whether such a rule would be applied retroactively to the case at issue. . . . It is admittedly often difficult to determine when a case announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. . . . To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final. . . . Given the strong language in Taylor . . . application of the fair cross-section requirement to the petit jury would be a new rule. . . . Nearly a quarter of a century ago, in Linkletter v. Walker, 381 U.S. 618 (1965), the Court attempted to set some standards by which to determine the retroactivity of new rules. The question in Linkletter was whether Mapp v. Ohio, which made the exclusionary rule applicable to the States, should be applied retroactively to cases on collateral review. The Court determined that the retroactivity of Mapp should be determined by examining the purpose of the exclusionary rule, the reliance of the States on prior law, and the effect on the administration of justice of a retroactive application of the exclusionary rule. Using that standard, the Court held that Mapp would only apply to trials commencing after that case was decided. . . .The Linkletter retroactivity standard has not led to consistent results. Instead, it has been used to limit application of certain new rules to cases on direct review, other new rules only to the defendants

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in the cases announcing such rules, and still other new rules to cases in which trials have not yet commenced. . . . Justice Harlan . . . argued that new rules should always be applied retroactively to cases on direct review, but that generally they should not be applied retroactively to criminal cases on collateral review. . . . In Griffith v. Kentucky, 479 U.S. 314 (1987), we rejected as unprincipled and inequitable the Linkletter standard for cases pending on direct review at the time a new rule is announced, and adopted the first part of the retroactivity approach advocated by Justice Harlan. We agreed with Justice Harlan that “failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.” . . . Justice Harlan believed that new rules generally should not be applied retroactively to cases on collateral review. “The relevant frame of reference, [he argued] . . . is not the purpose of the new rule whose benefit the [petitioner] seeks, but instead the purposes for which the writ of habeas corpus is made available.”. . . “[T]he threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards. In order to perform this deterrence function, . . . the habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took place.” . . . Harlan identified only two exceptions to his general rule of nonretroactivity for cases on collateral review. First, a new rule should be applied retroactively if it places “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” . . . Second, a new rule should be applied retroactively if it requires the observance of “those procedures that . . . are ‘implicit in the concept of ordered liberty.’” . . . We agree with Justice Harlan’s description of the function of habeas corpus. . . .[W]e have recognized that interests of comity and finality must . . . be considered in determining the proper scope of habeas review. . . . Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect. . . .The “costs imposed upon the State[s] by retroactive application of new rules of constitutional law on habeas corpus . . . generally far outweigh the benefits of this application.” . . . In many ways the application of new rules to cases on collateral review may be more intrusive than the enjoining of criminal prosecutions, cf. Younger v. Harris, 401 U.S. 37 (1971), for it continually forces the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards. . . . “[S]tate courts are understandably frustrated when they faithfully apply existing constitutional law only to have a federal court discover, during a [habeas] proceeding, new constitutional commands.” . . . [W]e now adopt Justice Harlan’s view of retroactivity for cases on collateral review. Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced. . . . Petitioner’s conviction became final in 1983. As a result, the rule petitioner

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urges would not be applicable to this case, which is on collateral review, unless it would fall within an exception. The first exception suggested by Justice Harlan—that a new rule should be applied retroactively if it places “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe”—is not relevant here. Application of the fair cross-section requirement to the petit jury would not accord constitutional protection to any primary activity whatsoever. The second exception suggested by Justice Harlan—that a new rule should be applied retroactively if it requires the observance of “those procedures that . . . are ‘implicit in the concept of ordered liberty,’” . . . —we apply with a modification. The language used by Justice Harlan . . . leaves no doubt that he meant the second exception to be reserved for watershed rules of criminal procedure. . . .We [limit] the scope of the second exception to those new procedures without which the likelihood of an accurate conviction is seriously diminished. . . . Because we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge. We are also of the view that such rules are “best illustrated by recalling the classic grounds for the issuance of a writ of habeas corpus—that the proceeding was dominated by mob violence; that the prosecutor knowingly made use of perjured testimony; or that the conviction was based on a confession extorted from the defendant by brutal methods.”. . . Were we to recognize the new rule urged by petitioner in this case, we would have to give petitioner the benefit of that new rule even though it would not be applied retroactively to others similarly situated. . . . If there were no other way to avoid rendering advisory opinions, we might well agree that the inequitable treatment described above is “an insignificant cost for adherence to sound principles of decision-making.”. . . But there is a more principled way of dealing with the problem. We can simply refuse to announce a new rule in a given case unless the rule would be applied retroactively to the defendant in the case and to all others similarly situated. . . . We think this approach is a sound one. Not only does it eliminate any problems of rendering advisory opinions, it also avoids the inequity resulting from the uneven application of new rules to similarly situated defendants. We therefore hold that, implicit in the retroactivity approach we adopt today, is the principle that habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review through one of the two exceptions we have articulated. Because a decision extending the fair cross-section requirement to the petit jury would not be [a “bedrock procedural element”] applied retroactively to cases on collateral review under the approach we adopt today, we do not address petitioner’s claim. Justice BRENNAN, with whom Justice MARSHALL joins, dissenting. Out of an exaggerated concern for treating similarly situated habeas petitioners the same, the plurality would for the first time preclude the federal courts from considering on collateral review a vast range of important constitutional challenges; where those challenges have merit, it would bar the vindication of personal constitutional rights and deny society a check against further violations until the same claim is presented on direct review. In my view, the plurality’s

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“blind adherence to the principle of treating like cases alike” amounts to “letting the tail wag the dog” when it stymies the resolution of substantial and unheralded constitutional questions. . . . Its impact is perhaps best illustrated by noting the abundance and variety of habeas cases we have decided in recent years that could never have been adjudicated had the plurality’s new rule been in effect. Although “history reveals no exact tie of the writ of habeas corpus to a constitutional claim relating to innocence or guilt,” . . . the plurality’s decision to ignore history and to link the availability of relief to guilt or innocence when the outcome of a case is not “dictated” by precedent would apparently prevent a great many Fifth, Sixth, and Fourteenth Amendment cases from being brought on federal habeas. . . .

Notes on the Issues Cognizable in Habeas Corpus Proceedings 1. The Teague Doctrine. The doctrine announced in Teague distinguishes sharply between cases the Court itself considers on direct review from a state or federal court judgment affirming a conviction, on the one hand, and cases that reach federal court by means of collateral review, on the other. When litigants press new theories on direct review, the Court entertains their arguments routinely and formulates the rule of law it thinks appropriate, however much the resulting rule may depart from the past. Griffith v. Kentucky, 479 U.S. 314 (1987). When, by contrast, litigants advance new theories on federal collateral review, virtually the opposite default position obtains: Claims that depend on new rules of law are not usually cognizable. This innovation may appear modest. But you will see that, in operation, the Teague doctrine seriously circumscribes the claims that can be adjudicated in federal court. 2. Direct and Collateral Review. The distinction between direct and collateral review can be confusing. The label “direct review” is conventionally used interchangeably with “appellate review” or (redundantly) “direct appeal” to denote the initial examination of a trial court judgment by appellate courts further up the vertical hierarchy, including the Supreme Court (which, of course, has appellate jurisdiction over decisions that turn on federal questions). See Chapter Eight. The label “collateral review” is conventionally used to denote subsequent attacks on trial court judgments via “postconviction” petitions or motions, which typically initiate independent judicial proceedings at the trial court level—proceedings that are “collateral” to the original trial and the “direct review” that followed. a. Federal collateral review cases include cases in which prisoners challenge federal convictions or sentences pursuant to § 2255, see Section II, Note 15; cases in which the Supreme Court itself examines state court decisions reached in state postconviction proceedings, see Section VI, Note 7; and cases in which state prisoners reach federal court by petitioning for the writ of habeas corpus under the authority granted by § 2241 and § 2254 after state court litigation is complete. Strictly speaking, federal habeas corpus is not a form of review at all. Recall the discussion in St. Cyr. See Section I (A). Federal courts entertaining habeas petitions from state prisoners don’t purport simply to second-guess previous state court decisions on federal questions. Yet habeas proceedings are often called “collateral review”—again, in order to clarify that habeas is not part of the “direct review” process, which proceeds vertically from the original conviction at the state trial court level, through the state appellate courts, to the Supreme Court. Cases involving § 2255 attacks on federal convictions and sentences have not figured significantly in this context, and the Supreme Court rarely takes jurisdiction of cases in which the

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state court judgment below was rendered in state postconviction proceedings. As a practical matter, then, the Teague ban on “new rule” claims affects federal habeas corpus, which supplies the typical means by which state prisoners find their way to federal court in a collateral review posture. b. It’s scarcely coincidental that the effect of the prohibition on “new rule” claims in federal collateral proceedings should primarily be felt in habeas cases. As Justice O’Connor explained in Teague, the ban orchestrates federal-state relations and ensures in yet another way that federal courts accord proper respect to state courts. The “new rule” prohibition achieves that end by adjusting the availability of a particular federal remedy: the writ of habeas corpus. Understand that Teague operates on a federal court’s authority to entertain a claim, irrespective of whether a state court adjudicated the claim in the past. If, for example, a state court declined to consider a claim because the prisoner failed to raise it properly, still the claim may be Teague-barred in federal court if it turns on a “new rule” of law. Nevertheless, it is often true that a state court did decide a claim against the prisoner, and in that circumstance Teague can prevent a federal court from reexamining the same claim and reaching a different result. Compare Section IV (discussing 28 U.S.C. § 2254(d)—which does depend on a prior state court adjudication on the merits); Section VII (covering procedural default in state court). c. The easiest case in which to understand Teague is one in which a state prisoner (call him Jack) files a federal habeas corpus petition advancing a claim that rests squarely on a new rule recently announced by the Supreme Court in a direct review case involving someone else (call her Jill). If the decision establishing Jill’s new rule was handed down after Jack’s conviction became final on direct review, the Teague doctrine typically bars the federal district court entertaining Jack’s petition from applying that new rule to his claim. But don’t think the Teague doctrine is limited to cases in which a prisoner seeks the benefit of a new Supreme Court decision. In Teague itself, there was no recent decision announcing that the Sixth Amendment “fair cross-section” principle applied to petit juries. The petitioner wanted the chance to establish such a new rule himself. The Court declined to let him do that. Just as the Teague doctrine prevents a prisoner from pressing a claim that depends on a new rule announced on direct review in someone else’s case, the Teague doctrine equally bars a prisoner from asking a federal habeas court to announce a new rule in his own case. 3. Exceptions. Justice O’Connor allowed two exceptions to the general prohibition on “new rule” claims. a. The first exception (for new rules that put “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe”) had a short and happy life. The Court immediately recognized that it was too narrow. In an opinion for the Court in Penry v. Lynaugh, 492 U.S. 302 (1989), Justice O’Connor expanded it to include rules placing a “class of individuals beyond the State’s power to punish by death.” Accordingly, a new rule barring capital punishment with respect to a class of convicts (e.g., the mentally impaired or children) fell within the first Teague exception. Later, the Court exempted all changes in substantive law from Teague’s orbit on the theory that they almost always entail the risk of an erroneous conviction or sentence. Schriro v. Summerlin, 542 U.S. 348, 351-352 & n.4 (2004). Understand, then, that claims based on changes in substantive law can be entertained in federal collateral proceedings, ceteris paribus. It’s not they are excepted from Teague; it’s that the Court, on reflection, has decided that the Teague doctrine should be confined to procedural

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rules. b. The second exception (for “watershed” or “bedrock” procedural rules that “seriously diminish the likelihood of obtaining an accurate conviction”) remains formally viable. But the Court has yet to identify any rule that fits that description. Consider the implications. The Teague doctrine banishes from habeas corpus all claims based on new procedural rules, except for rules in the “bedrock” category. And that category appears to be a null set. Conclusion? Claims based on changes in substantive law are always available in federal collateral proceedings, but claims based on changes in procedural law are always foreclosed. Is that right? 4. Advancements in the Law. Justice O’Connor acknowledged that the Teague doctrine largely eliminates the possibility that habeas corpus can be used to develop new procedural protections in criminal cases. Is that so bad? The Supreme Court remains in position to move the law along in cases reaching the Court on direct review. The Court is equally able to stanch any ill-advised innovations state courts fashion on their own. If principles of federal constitutional criminal procedure are to be adjusted, shouldn’t the Supreme Court do the adjusting? Cf. Rodriguez de Quijas v. Shearson/American Express, 490 U.S. 477 (1989) (holding that inferior federal courts are obliged to follow a Supreme Court precedent unless and until the Court itself discards it). a. Consider the idea (associated with Frankfurter’s vision in Brown v. Allen) that federal habeas corpus for state convicts exists primarily to enforce federal procedural requirements (announced by the Supreme Court) in routine cases the Court itself can no longer accept on direct review. Can’t inferior federal courts fulfill that role without authority themselves to create new procedural safeguards the Court has not (yet) announced? Federal district courts are not in a position to check expansive state court judgments about federal rights. By hypothesis, the moving party in a habeas corpus action is always the prisoner—who obviously complains that the state courts failed to give federal law its due, not that they gave federal law an overly generous construction. Yet district courts are able to ensure that state courts respect the federal requirements the Supreme Court has put in place. Isn’t that sufficient? Before you answer, consider Notes 8-10, 13-14. b. Justice O’Connor explained in Teague that the Warren Court, too, sometimes denied retroactive effect to novel propositions of law. Yet the Warren Court drew no distinction between cases on direct and collateral review, but rather announced the rules of law it thought proper in both contexts. Then, the Court turned to the retrospective enforcement of a decision as a separate question. That arrangement undoubtedly treated similarly situated litigants differently, at least on occasion. Understand, though, that the Warren Court regarded rules of law to be new (and thus to raise the question whether they should be applied retroactively) only if they marked a “clear break” from the past. Decisions that elaborated on existing themes were not thought to be new at all and thus were generally applicable to everyone. c. The Supreme Court may hesitate to announce a novel rule of criminal procedure if the new rule will be available to hosts of prisoners convicted under previous law, thus potentially upsetting criminal judgments long thought to be final. That being so, isn’t Teague a good idea inasmuch as it removes a disincentive to the creation of new rules that ought to be announced? Be careful. The Teague doctrine preserves that very disincentive in the one place where new rules can still be established (direct review). And in collateral review cases, Teague bars the creation of new procedural rules altogether (apart from bedrock exceptions, if any there are).

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5. Teague and Jurisdiction. The limitation Teague imposes (primarily) on federal habeas corpus is not jurisdictional. The general prohibition on entertaining “new rule” claims can be raised or not at the respondent’s discretion. Collins v. Youngblood, 497 U.S. 37, 40-41 (1990). If the respondent fails to offer a Teague defense, the court “may, but need not” consider Teague’s significance sua sponte. Caspari v. Bohlen, 510 U.S. 383, 389 (1994). If the respondent proffers a Teague objection, the district court must address the “new rule” question before going further. Id.; see Horn v. Banks, 536 U.S. 266 (2002) (per curiam) (confirming Caspari on this point). Initially, the court must ascertain the date on which the prisoner’s conviction became final. That is the date the Supreme Court denied certiorari on direct review or, if no petition for certiorari was filed, the date on which the time for filing a certiorari petition expired. Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987). Next, the court must sort through the case law that existed on that date and identify the rule controlling at the time. That is the rule the court applies to the prisoner’s current claim. Well, not really. See Notes 8-10, 13-14. 6. Teague and Choice-of-Law. Is the Teague general ban on “new rule” claims best understood as a choice-of-law doctrine that selects the legal rule applicable to a claim advanced in a petition for the writ of habeas corpus? See Wright v. West, 505 U.S. 277, 310-13 (1992) (Souter, J., concurring in the judgment); Note 12(d). Specifically, a federal court entertaining a habeas corpus petition applies the rule of law that prevailed when the prisoner’s conviction became final on direct review, not (necessarily) the rule that prevails when the prisoner appears in federal court later. Again, not really. See Notes 8-10, 13-14. 7. Illustrative Hypotheticals. There’s a lot more to deciding whether a rule is “new” for Teague purposes than simply checking dates. Yet the timing of key events is crucial to a Teague analysis. Consider some hypotheticals that help make this point.

a. Say a state’s highest court rejects Thelma’s federal claim on the merits and thus sustains her conviction on direct review, but then, in Louise’s case (another direct review case decided while Thelma still has time to file a certiorari petition), the Supreme Court announces a new rule that, if applied to Thelma’s case, would plainly make her claim meritorious. It’s clear that if Thelma gets her act together and files a timely certiorari petition invoking the rule established in Louise’s case, the Supreme Court itself can accept direct review and rely on the new rule to justify reversal. But will Teague allow a federal district court to apply Louise’s new rule to Thelma’s claim when Thelma advances it in a habeas corpus petition? If so, doesn’t Teague permit a district court (effectively) to upset Thelma’s state conviction on the basis of a rule of law that didn’t exist at the time the state’s highest court affirmed that conviction?

b. Say a state’s highest court rejects Harry’s claim on the merits on direct review, and the Supreme Court denies certiorari. Thereafter, the Supreme Court announces a new rule in Sally’s (direct review) case that, if applied to Harry’s case, would plainly make his claim meritorious. Then Harry seeks postconviction relief in state court, relying on Sally’s new rule. In these circumstances, the state court has an opportunity to apply Sally’s new rule to Harry’s case. Must the state court do so? If the state court applies Sally’s new rule and reaches an erroneous decision (and that erroneous judgment is sustained in the state’s highest court), can the Supreme Court grant certiorari and reverse? If Harry files a habeas corpus petition in a federal district court, will Teague allow the district court to consider his claim in light of the rule announced in

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Sally’s case? If not, doesn’t Teague render a district court powerless even if a state court rejected Harry’s federal claim in flagrant disregard of a rule of federal law of which the state court was fully aware at the time it acted? 8. What Counts as “New”? Doesn’t Teague’s significance depend on the definition of “new” procedural rules? If the rules in question are unmistakably novel (like, for example, the exclusionary rules established for the first time in Mapp v. Ohio and Miranda v. Arizona), then perhaps their creation can fairly be left exclusively to the Supreme Court handling cases in a direct review posture. Yet the definition of new rules for Teague purposes is much more expansive. In Teague, Justice O’Connor said that “a case announces a new rule when it breaks new ground or imposes a new obligation” on the government or “[t]o put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” In other cases, the Court has explained that “clear breaks” from precedent are not necessary: “[G]radual developments in the law over which reasonable jurists may disagree” can also produce entirely new rules. Sawyer v. Smith, 497 U.S. 227, 234 (1990). That is so, because even a familiar rule can be extended if it is applied in a “novel setting.” Stringer v. Black, 503 U.S. 222, 228 (1992). Unless previous precedents “compelled” the conclusion that a prisoner’s claim was valid when his conviction became final, a district court would have to create a new rule of law in order to find the prisoner’s claim meritorious today. Saffle v. Parks, 494 U.S. 484, 488 (1990). Thus in Graham v. Collins, 506 U.S. 461 (1993), Justice White said that, under Teague, a prisoner’s claim is cognizable in federal habeas corpus proceedings only if the precedents in existence at the time his conviction became final compelled any court that considered his claim to “rule in his favor.” 9. Butler v. McKellar. The application of Teague in Butler v. McKellar, 494 U.S. 407 (1990), provides a good illustration of how the Court’s account of new rules works. The prisoner in Butler contended that his conviction was invalid because it was based on a confession admitted in violation of the Fifth Amendment privilege against self-incrimination. He had asked for counsel, but was nonetheless interrogated without an attorney. The relevant precedent at the time the prisoner’s conviction was affirmed on direct review was Edwards v. Arizona, 451 U.S. 477 (1981), where the Court had excluded a confession obtained in similar circumstances. Indeed, the only significant difference between Edwards and Butler was that the suspect in Edwards had been questioned about the offense for which he had been detained, while the prisoner in Butler had been detained regarding one offense and questioned about another. The prisoner in Butler argued that the factual difference between the two cases was inconsequential. His case was controlled by the legal rule announced in Edwards, albeit that rule must be applied to a modestly different pattern of facts. Writing for the Court, Chief Justice Rehnquist explained that by asking a federal court to apply Edwards to different facts, the prisoner was inviting the court to recognize and apply an entirely new rule of law—a course of action foreclosed by Teague. A new rule is an “outcome” regarding a federal claim that was “susceptible to debate among reasonable minds” at the time a petitioner’s conviction became final. The point of Teague, he said, is to “validate reasonable, good-faith interpretations of existing precedents made by the state courts.” According to Chief Justice Rehnquist, it would not have been “unreasonable” for a state court examining the claim in Butler to distinguish Edwards and reject the claim on the merits; therefore, a federal district court entertaining a habeas corpus petition

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would have to announce and apply a new rule in order to sustain that claim. 10. Realism Run Amok? Isn’t the Court’s account of new rules unusual (at best)? The content of law obviously evolves over time. But we don’t conventionally conceive that it lurches from an extremely well-settled proposition that can produce only one reasonable result to an altogether different rule of law. Certainly, we don’t ordinarily conceive that law shifts so dramatically with anything like the frequency that Teague contemplates. Isn’t it bizarre to insist (with a straight face) that a federal court must make or apply a new rule of law whenever it finds a violation of a federal constitutional right simply because, at a point in the past, it would not have been unreasonable to come out the other way? For all the formalism evident in the Supreme Court’s analysis of federal courts questions in other contexts, doesn’t its conception of legal rules for Teague purposes reflect a startling turn to the most extreme brand of legal realism—as though courts never genuinely resolve cases by applying previously established rules of law to the facts presented, but rather act entirely ad hoc in every instance, generating results that are law for the case at hand and no other? a. Doesn’t this account of new and old rules challenge a fundamental premise underlying Teague—namely, the proposition that rules of law announced by the Supreme Court exist, that they have real meaning in the world, and that state courts are supposed to follow them until they are changed? The Court selects cases for review not merely to correct errors below, nor to do justice to the immediate parties, but rather to use the cases it picks as vehicles for elaborating authoritative federal law. When it grants review in a particular case, accordingly, the Court doesn’t simply reach a disposition on the facts of that case. Instead, the Court typically articulates a legal rule for the case in a sharper, clearer (rule-like) manner, which facilitates understanding and effective adjudication in future cases. See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989). Shouldn’t a rule of that nature count as an “old” rule on which prisoners can rest in federal collateral proceedings? Doesn’t limiting old rules to recitations of the Court’s results in light of the material facts in each instance fail to appreciate the Court’s mission to articulate general rules of law for other courts to follow? Alternatively, might it be the Teague understanding of law that is insightful and the idea of rule-like Supreme Court doctrine naïve? b. Doesn’t defining legal rules in a fact-sensitive way run into the idea that Justice Frankfurter spelled out in Brown v. Allen—namely, that federal courts are to determine mixed questions of law and fact independently? See Section II, Note 11(b). If a federal court cannot entertain a claim unless it would have been unreasonable for a state court to apply extant precedents and rule against the prisoner, isn’t the implication that a reasonable state court determination of a mixed question must stand? See Note 12. c. Is the key issue the level of generality at which a rule of law should be identified? See Note 12(d). Articulating old law in an excessively abstract way would defeat Teague altogether—by admitting claims genuinely based on a wide variety of discrete rules under cover of an overarching rule defined broadly enough to subsume them all. Doesn’t articulating old law in an excessively fact-specific manner also defeat Teague—by foreclosing claims based on rules of law as they were defined authoritatively in the Court’s extant precedents? A rule of law necessarily has some field of operation apart from its implications for a particular fact pattern. If it didn’t, it wouldn’t be a rule. Shouldn’t the Teague doctrine require a federal habeas court to identify the rule on which a prisoner’s claim depends at the appropriate level of generality? Is

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that always the lowest level—i.e., a description of the disposition of a particular dispute in view of the material facts? Or is the task to identify an old rule at the accurate level, the correct level, the level that captures the rule’s true authoritative content? 11. Qualified Immunity. In cases in which a state court ruled against a prisoner on a federal claim, is there an analogy between Teague and qualified immunity? See Chapter One. Qualified immunity is meant to insulate executive officers when they act reasonably. Likewise, according to Butler and other cases, the point of Teague is to insulate state court judgments when they are reasonable. Isn’t that right? a. Do the policies behind qualified immunity doctrine travel well to habeas corpus? Unlike executive officers, state judges have the time, the resources, and the professional credentials (not to mention the duty) to make reasoned judgments. And they are not exposed to personal liability for their mistakes. b. In immunity cases, courts distinguish between a violation of the plaintiff’s constitutional rights, on the one hand, and the reasonableness of an officer’s behavior, on the other. It is not proposed that an officer committed no constitutional wrong if he acted reasonably at the time. The reasonableness of the officer’s belief that he was acting lawfully goes only to the immunity question—whether, assuming the officer did violate the plaintiff’s rights, he or she should nonetheless escape liability. In Teague cases, by contrast, courts don’t ask whether a state court decision regarding a federal claim was correct at the time it was rendered. The only question is whether the decision was reasonable. Functionally speaking, a reasonable state court decision is treated as though it was correct—for the pragmatic reason that there is no means of contesting it (in federal court). c. In immunity cases, courts take up the merits of claims first and turn to the immunity question only if a violation is identified. The explanation is that by proceeding in that sequence, courts are in a position to specify constitutional standards clearly, lest the law be left in a state of uncertainty. Doesn’t that rationale work in the habeas context? Recall that Justice O’Connor adopted the Teague doctrine in part on the theory that habeas is supposed to deter state courts from disregarding federal law. But by virtue of Teague, federal courts turn out judicial decisions that do not purport to articulate and apply reliable principles of federal constitutional law, but rather trace out a shadow body of case law elaborating on what a court might reasonably have believed the law to be at some earlier time. 12. Wright v. West. Evidently aware of the building tension between Teague and the de novo model associated with Brown v. Allen, the Court asked the parties in Wright v. West, 505 U.S. 277 (1992), to brief the following question: “In determining whether to grant a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court, should a federal court give deference to the state court’s application of law to the specific facts of the petitioner’s case or should it review the state court’s determination de novo?” a. In an opinion announcing the Court’s result, Justice Thomas failed actually to decide the question the Court itself had raised. Yet (joined on this point by Chief Justice Rehnquist and Justice Scalia), he offered a discussion of that question in light of Brown and Teague. Thomas acknowledged that, at least since Brown, the Court had taken it for granted that federal courts must determine mixed questions independently, citing especially Miller v. Fenton, 474 U.S. 104

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(1985) (holding that the voluntariness of a confession is a mixed question and thus must be examined de novo). Continuing, however, he said this:

We [held in Brown that] a district court must determine whether the state-court adjudication “has resulted in a satisfactory conclusion.” We had no occasion to explore in detail the question whether a “satisfactory” conclusion was one that the habeas court considered correct, as opposed to merely reasonable, because we concluded that the constitutional claims advanced in Brown itself would fail even if the state courts’ rejection of them were reconsidered de novo. . . .

Despite our apparent adherence to a standard of de novo habeas review with respect to mixed constitutional questions, we have implicitly questioned that standard, at least with respect to pure legal questions, in our recent retroactivity precedents. . . . Under Teague, a habeas petitioner generally cannot benefit from a new rule of criminal procedure announced after his conviction has become final on direct appeal. . . . In Butler v. McKellar, . . . we explained that the definition includes all rules “susceptible to debate among reasonable minds.” Thus, if a state court has reasonably rejected the legal claim asserted by a habeas petitioner under existing law, then the claim seeks the benefit of a “new” rule under Butler, and is therefore not cognizable on habeas under Teague. In other words, a federal habeas court “must defer to the state court’s decision rejecting the claim unless that decision is patently unreasonable.” Butler, 494 U.S. at 422 (Brennan, J., dissenting).

b. Writing separately, Justice O’Connor responded this way:

Justice Thomas mischaracterizes Teague v. Lane. . . . Teague did not establish a “deferential” standard of review of state court determinations of federal law. . . . Instead, Teague simply requires that a state conviction on federal habeas be judged according to the law in existence when the conviction became final. . . . In Teague, we refused to give state prisoners the retroactive benefit of new rules of law, but we did not create any deferential standard of review with regard to old rules. . . . To determine what counts as a new rule, Teague requires courts to ask whether the rule a habeas petitioner seeks can be meaningfully distinguished from that established by binding precedent at the time his state court conviction became final. . . . If a proffered factual distinction between the case under consideration and pre-existing precedent does not change the force with which the precedent’s underlying principle applies, the distinction is not meaningful, and any deviation from precedent is not reasonable. . . . Justice Thomas fails to mention that Congress has considered habeas corpus legislation during 27 of the past 37 years, and on 13 occasions has considered adopting a deferential standard of review along the lines suggested by Justice Thomas. Congress has rejected each proposal. In light of the case law and Congress’ position, a move away from de novo review of mixed questions of law and fact would be a substantial change in our construction of the authority conferred by the habeas corpus statute.

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c. Justice Kennedy also wrote separately to respond to Justice Thomas’ discussion of Teague:

If vindication of the principles underlying Teague did require that state-court rulings on mixed questions must be given deference in a federal habeas proceeding, then indeed it might be said that the Teague line of cases is on a collision course with the Miller v. Fenton line. And in the proper case we would have to select one at the expense of the other. But in my view neither the purpose for which Teague was adopted nor the necessary means for implementing its holding creates any real conflict with the requirement of de novo review of mixed questions.

[I]t would be a misreading of Teague to interpret it as resting on the necessity to defer to state-court determinations. Teague . . . established instead a principle of retroactivity. . . . To be sure, the fact that our standard for distinguishing old rules from new ones turns on the reasonableness of a state court’s interpretation of then existing precedents suggests that federal courts do in one sense defer to state-court determinations. But we should not lose sight of the purpose of the reasonableness inquiry where a Teague issue is raised: The purpose is to determine whether application of a new rule would upset a conviction that was obtained in accordance with the constitutional interpretations existing at the time of the prisoner’s conviction. . . .

Teague does bear on applications of law to fact which result in the announcement of a new rule. Whether the prisoner seeks the application of an old rule in a novel setting . . . depends in large part on the nature of the rule. If the rule in question is one which of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule. . . . Where the beginning point is a rule of this general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent.

[T]he existence of Teague provides added justification for retaining de novo review, not a reason to abandon it. Teague gives substantial assurance that habeas proceedings will not use a new rule to upset a state conviction that conformed to rules then existing.

d. In yet another separate opinion, Justice Souter offered his own account of Teague:

The crux of the analysis when Teague is invoked, then, is identification of the rule on which the claim for habeas relief depends. To survive Teague, it must be “old” enough to have predated the finality of the prisoner’s conviction, and specific enough to dictate the rule on which the conviction may be held to be unlawful. A rule old enough for Teague may of course be too general, and while identifying the required age of the rule of relief is a simple matter of comparing dates, passing on its requisite specificity calls for analytical care. . . . The proper response to a prisoner’s invocation of a rule at too high a level of generality is well illustrated by our cases. . . . This does not mean, of course, that

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a habeas petitioner must be able to point to an old case decided on facts identical to the facts of his own. But it does mean that, in light of authority extant when his conviction became final, its unlawfulness must be apparent. Cf. Anderson v. Creighton, 483 U.S. 635 (1987).

13. Illustrations. Since Wright v. West, the Court has granted review in numerous cases turning on whether a petitioner’s claim rests on a new procedural rule within the meaning of Teague. Invariably, the Court has concluded that rules are new and claims built upon them are Teague-barred. Moreover, and despite the separate opinions in Wright v. West, the Court has continued to define a new rule as any departure from a result that would not have been unreasonable at the time a prisoner’s conviction was affirmed on direct review, thus perpetuating the tension between the Teague doctrine and the de novo model of habeas in Brown v. Allen. Writing for the Court in O’Dell v. Netherland, 521 U.S. 151 (1997), for example, Justice Thomas summed up Teague this way: “[W]e will not disturb a final state conviction or sentence unless it can be said that a state court, at the time the conviction or sentence became final, would have acted objectively unreasonably by not extending the relief later sought in federal court.”

14. Ambivalence? Are the justices simply divided over the meaning of the Teague doctrine and over its application in individual cases? Dissenting in Gray v. Netherland, 518 U.S. 152 (1996), for example, Justice Ginsburg argued that “Teague is not the straightjacket the Commonwealth thinks it is.” Dissenting in Beard v. Banks, 540 U.S. 668 (2004), Justice Souter insisted that “the function of Teague’s reasonable-jurist standard is to distinguish those developments in this Court’s jurisprudence that state judges should have anticipated from those they could not have been expected to foresee.” Is Justice Ginsburg’s remark wishful thinking? Can Justice Souter’s description of Teague pass the laugh test? It obviously can’t be squared with O’Dell; Justice Souter himself conceded as much. State courts don’t have to reach correct decisions in light of existing law, far less to anticipate reasonable developments. Nevertheless, the idea that Teague really was supposed to be about changes in legal standards still lives in the heads of some of the justices, and it may be responsible for the ambivalence reflected in some recent decisions. a. On the one hand, the same fact-sensitive definitions of new and old rules are often repeated. Justice O’Connor has explained, for example: “When determining whether a rule is new, we do not ask whether it fairly can be discerned from our precedents; we do not even ask if most reasonable jurists would have discerned it from our precedents. We ask only whether the result was dictated by past cases, or whether it is ‘susceptible to debate among reasonable minds.’” Johnson v. Texas, 509 U.S. 350, 378 (1993) (O’Connor, J., dissenting) (emphasis in original), quoting Butler, 494 U.S. at 415. Accord Lambrix v. Singletary, 520 U.S. 518, 538 (1997) (opinion for the Court by Scalia, J.) (explaining that a result was “dictated” only if “no other interpretation was reasonable” at the time) (emphasis in original). b. On the other hand, the Court sometimes treats its own precedents as though the legal rules they establish in the abstract count as old rules on which prisoners may base habeas corpus claims. E.g., Gilmore v. Taylor, 508 U.S. 333, 344 (1993). In cases in which prisoners argue that they were denied effective representation in state court, for example, the Court treats the doctrine announced in Strickland v. Washington, 466 U.S. 668 (1984), as an old rule apart from the application of that doctrine to the circumstances of an individual case. The next case, Terry Williams v. Taylor, is an illustration. See also Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins

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v. Smith, 539 U.S. 510 (2003). Moreover, the Court treats the merits of any particular Strickland claim as a separate question for a federal habeas court to consider. E.g., Roe v. Flores-Ortega, 528 U.S. 470, 487 (2000) (remanding for a determination whether counsel’s performance was adequate under Strickland). c. Of course, cases involving Strickland may shed little light on the way Teague works for other claims. Remember. The rule in Strickland is comparatively general and, for that reason, its application to different fact patterns may not generate new rules. See Note 12(c). Consider, too, that ineffective assistance claims typically are not considered on direct review, but come up for the first time in a collateral posture. Cf. Massaro v. United States, 538 U.S. 500 (2003) (holding that federal convicts should press claims of this kind in § 2255 proceedings). It wouldn’t do, would it, to limit habeas to Strickland claims that state courts unreasonably rejected in light of the peculiar facts of each case in turn? Since Strickland claims typically don’t reach the Court on direct review, there is no occasion apart from habeas corpus proceedings when the Court can enforce Strickland forthrightly or perhaps elaborate on the doctrine that Strickland initiated. Is this why, in cases like Rompilla and Wiggins, the Court’s analysis of ineffective assistance claims looks like what we would expect to see in a direct review case?

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IV. Previous Decisions in State Court

Terry Williams v. Taylor

529 U.S. 362 (2000) Justice STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts, I, III, and IV, and an opinion with respect to Parts II and V.10 [FN*]

I Terry Williams was convicted of robbery and capital murder. At Williams’ sentencing hearing, . . . [t]wo expert witnesses employed by the State testified that there was a “high probability” that Williams would pose a serious continuing threat to society. . . . [Williams’ attorney did not challenge that testimony and, instead, [devoted most of his closing argument] to explaining that it was difficult to find a reason why the jury should spare Williams’ life. The jury found a probability of future dangerousness and unanimously fixed Williams’ punishment at death. The trial judge concluded that such punishment was “proper” and “just” and imposed the death sentence. . . . The Virginia Supreme Court affirmed the conviction and sentence. . . . In 1988 Williams filed for state collateral relief [on the ground] that trial counsel had been ineffective. . . . [Evidence produced in a hearing showed inter alia that Williams was] “borderline mentally retarded” [and that] the same experts who had testified on the State’s behalf at trial believed that Williams, if kept in a “structured environment,” would not pose a future

10 [FN*] Justice SOUTER, Justice GINSBURG, and Justice BREYER join this opinion in its entirety. Justice O’CONNOR and Justice KENNEDY join Parts I, III, and IV.

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danger to society. . . . [The trial court] recommended that Williams be granted a rehearing on the sentencing phase of his trial. . . . On appeal, the Virginia Supreme Court assumed, without deciding, that trial counsel had been ineffective, [but concluded] that Williams had [not] suffered sufficient prejudice to warrant relief. [T]he Virginia Supreme Court accepted the factual determination that available evidence in mitigation had not been presented at the trial, but held that the trial judge had misapplied the law. . . . [R]elying on our decision in Lockhart v. Fretwell, 506 U.S. 364 (1993), the court held that it was wrong for the trial judge to rely “on mere outcome determination” when assessing prejudice. . . . [T]he court concluded that there was no reasonable possibility that the omitted evidence would have affected the jury’s sentencing recommendation, and that Williams had failed to demonstrate that his sentencing proceeding was fundamentally unfair. . . . Williams sought a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. . . . [The district court held that Williams’ death sentence was constitutionally infirm, but the circuit court reversed on the ground that] 28 U.S.C. § 2254(d)(1) [barred] . . . habeas corpus relief. . . .

II The warden here contends that federal habeas corpus relief is prohibited by the amendment to 28 U.S.C. § 2254 . . . , enacted as a part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). [That amendment] . . . provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—(1) 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. . . .

The inquiry mandated by the amendment relates to the way in which a federal habeas court exercises its duty to decide constitutional questions; the amendment does not alter the underlying grant of jurisdiction in § 2254(a). . . . If Congress had intended to require such an important change in the exercise of our jurisdiction, we believe it would have spoken with much greater clarity than is found in the text of AEDPA. . . . This basic premise informs our interpretation of both parts of § 2254(d)(1): first, the requirement that the determinations of state courts be tested only against “clearly established Federal law, as determined by the Supreme Court of the United States,” and second, the prohibition on the issuance of the writ unless the state court’s decision is “contrary to, or involved an unreasonable application of,” that clearly established law. We address each part in turn. . . . It is perfectly clear that AEDPA codifies Teague to the extent that Teague requires federal habeas courts to deny relief that is contingent upon a rule of law not clearly established at

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the time the state conviction became final. . . . 11 [FN12] It has been urged, in contrast, that we should read Teague and its progeny to encompass a broader principle of deference requiring federal courts to “validat[e] ‘reasonable, good-faith interpretations’ of the law” by state courts. . . . The position has been bolstered with references to our statements elucidating the “new rule” inquiry as one turning on whether “reasonable jurists” would agree the rule was not clearly established. . . . This presumption of deference was in essence the position taken by three members of this Court in Wright v. West. . . . Teague, however, does not extend this far. The often repeated language that Teague endorses “reasonable, good-faith interpretations” by state courts is an explanation of policy, not a statement of law. . . . [T]he word “deference” does not appear in the text of the statute itself. Neither the legislative history nor the statutory text suggests any difference in the so-called “deference” depending on which of the two phrases is implicated.12 [FN13] Whatever “deference” Congress had in mind with respect to both phrases, it surely is not a requirement that federal courts actually defer to a state-court application of the federal law that is, in the independent judgment of the federal court, in error.13 [FN14]

III

The threshold question under AEDPA is whether Williams seeks to apply a rule of law that was clearly established at the time his state-court conviction became final. That question is easily answered because the merits of his claim are squarely governed by our holding in

11 [FN12] We are not persuaded by the argument that because Congress used the words “clearly established law” and not “new rule,” it meant . . . to codify an aspect of the doctrine of executive qualified immunity rather than Teague’s antiretroactivity bar. . . . We will not assume that in a single subsection of an amendment entirely devoted to the law of habeas corpus, Congress made the anomalous choice of reaching into the doctrinally distinct law of qualified immunity for a single phrase that just so happens to be the conceptual twin of a dominant principle in habeas law of which Congress was fully aware. 12 [FN13] [T]he statute surely “does not tell us to treat state courts the way we treat federal administrative agencies. Deference after the fashion of Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), . . . depends on delegation. . . . Congress did not delegate either interpretive or executive power to the state courts. They exercise powers under their domestic law, constrained by the Constitution of the United States. . . .” 13 [FN14] The Court [contends that] the use of the word “unreasonable” in the statute suggests that Congress was directly influenced by the “patently unreasonable” standard advocated by Justice Thomas in his opinion in Wright v. West, . . . Justice Thomas contended that Teague barred habeas “whenever the state courts have interpreted old precedents reasonably, not [as Justice O’Connor suggested] only when they have done so ‘properly.’ ” . . . Teague, of course, as Justice O’Connor correctly pointed out, “did not establish a standard of review at all.”

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Strickland v. Washington. . . . We explained in Strickland that a violation of the right on which Williams relies has two components: “First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. . . . To establish ineffectiveness, a defendant must show that counsel’s representation fell below an objective standard of reasonableness. . . . To establish prejudice he must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . .” It is past question that the rule set forth in Strickland qualifies as “clearly established Federal law, as determined by the Supreme Court of the United States.” . . . This Court’s precedent “dictated” that the Virginia Supreme Court apply the Strickland test at the time that court entertained Williams’ ineffective-assistance claim. . . . And it can hardly be said that recognizing the right to effective counsel “breaks new ground or imposes a new obligation on the States.” . . . Williams is therefore entitled to relief if the Virginia Supreme Court’s decision rejecting his ineffective-assistance claim was either “contrary to, or involved an unreasonable application of,” that established law. It was both.

IV The Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell . . . modified or in some way supplanted the rule set down in Strickland. . . . [Moreover, that court’s] own analysis of prejudice . . . was . . . unreasonable. . . . Its analysis . . . was thus not only “contrary to,” but also, inasmuch as the Virginia Supreme Court relied on . . . Lockhart, an “unreasonable application of” the clear law as established by this Court. . . . Justice O’CONNOR delivered the opinion of the Court with respect to Part II (except as to the footnote).14 [FN*]

I If today’s case were governed by the federal habeas statute prior to Congress’ enactment of AEDPA in 1996, I would agree with Justice Stevens that Williams’ petition for habeas relief must be granted if we, in our independent judgment, were to conclude that his Sixth Amendment right to effective assistance of counsel was violated . . . Justice Stevens’ opinion in Part II essentially contends that § 2254(d)(1) does not alter the previously settled rule of independent review. . . . [Yet, it] cannot be disputed that Congress viewed § 2254(d)(1) as an important means by which its goals for habeas reform would be achieved.

II

14 [FN*] Justice KENNEDY joins this opinion in its entirety. The CHIEF JUSTICE and Justice THOMAS join this opinion with respect to Part II. Justice SCALIA joins this opinion with respect to Part II, except as to the footnote [relying on legislative history] .

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Justice Stevens . . . fails to give independent meaning to both the “contrary to” and “unreasonable application” clauses of the statute. . . . It is, however, a cardinal principle of statutory construction that we must “ ‘give effect, if possible, to every clause and word of a statute.’ ”. . . Section 2254(d)(1) defines two categories of cases in which a state prisoner may obtain federal habeas relief with respect to a claim adjudicated on the merits in state court. . . . The word “contrary” is commonly understood to mean “diametrically different,” “opposite in character or nature,” or “mutually opposed.” Webster’s Third New International Dictionary 495 (1976). The text of § 2254(d)(1) therefore suggests that the state court’s decision must be substantially different from the relevant precedent of this Court. . . .On the other hand, a run-of-the-mill state-court decision applying the correct legal rule from our cases to the facts of a prisoner’s case would not fit comfortably within § 2254(d)(1)’s “contrary to” clause. . . . Although [a] state-court decision may be contrary to [a] federal court’s conception of how Strickland ought to be applied in that particular case, the decision is not “mutually opposed” to Strickland itself. . . . The Fourth Circuit’s interpretation of the “unreasonable application” clause of § 2254(d)(1) is generally correct. That court held in Green [v. French, 143 F.3d 865 (4th Cir. 1998)] that a state-court decision can involve an “unreasonable application” of this Court’s clearly established precedent in two ways. First, a state-court decision involves an unreasonable application of this Court’s precedent if the state court identifies the correct governing legal rule from this Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case. Second, a state-court decision also involves an unreasonable application of this Court’s precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. . . . A state-court decision that correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case certainly would qualify as a decision “involv[ing] an unreasonable application of . . . clearly established Federal law.” Indeed, we used the almost identical phrase “application of law” to describe a state court’s application of law to fact in the certiorari question we posed to the parties in Wright [v. West].15 [FN*] The Fourth Circuit also held in Green that state-court decisions that unreasonably extend a legal principle from our precedent to a new context where it should not apply (or unreasonably refuse to extend a legal principle to a new context where it should apply) should be analyzed

15 [FN*] The legislative history of § 2254(d)(1) also supports this interpretation. See, e.g., 142 Cong. Rec. 7799 (1996) (remarks of Sen. Specter) (“[U]nder the bill deference will be owed to State courts’ decisions on the application of Federal law to the facts. Unless it is unreasonable, a State court’s decision applying the law to the facts will be upheld”); 141 Cong. Rec. 14666 (1995) (remarks of Sen. Hatch) (“[W]e allow a Federal court to overturn a State court decision only if it is contrary to clearly established Federal law or if it involves an ‘unreasonable application’ of clearly established Federal law to the facts”).

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under § 2254(d)(1)’s “unreasonable application” clause. . . . Just as it is sometimes difficult to distinguish a mixed question of law and fact from a question of fact, it will often be difficult to identify separately those state-court decisions that involve an unreasonable application of a legal principle (or an unreasonable failure to apply a legal principle) to a new context. Indeed, on the one hand, in some cases it will be hard to distinguish a decision involving an unreasonable extension of a legal principle from a decision involving an unreasonable application of law to facts. On the other hand, in many of the same cases it will also be difficult to distinguish a decision involving an unreasonable extension of a legal principle from a decision that “arrives at a conclusion opposite to that reached by this Court on a question of law. . . . ” Today’s case does not require us to decide how such “extension of legal principle” cases should be treated under § 2254(d)(1). For now it is sufficient to hold that when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner’s case, a federal court applying § 2254(d)(1) may conclude that the state-court decision falls within that provision’s “unreasonable application” clause. . . . There remains the task of defining what exactly qualifies as an “unreasonable application” of law under § 2254(d)(1). The Fourth Circuit held in Green that a state-court decision involves an “unreasonable application of . . . clearly established Federal law” only if the state court has applied federal law “in a manner that reasonable jurists would all agree is unreasonable.” . . . It is difficult to fault the Fourth Circuit for using this language given . . . that we have employed nearly identical terminology to describe the related inquiry undertaken by federal courts in applying the nonretroactivity rule of Teague. . . . [But a federal court] should not transform the inquiry into a subjective one by resting its determination . . . on the simple fact that at least one of the Nation’s jurists has applied the relevant federal law in the same manner the state court did in the habeas petitioner’s case. . . . The term “unreasonable” is no doubt difficult to define. That said, it is a common term in the legal world and, accordingly, federal judges are familiar with its meaning. For purposes of today’s opinion, the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law. Our opinions in Wright, for example, make that difference clear. Justice Thomas’ criticism of this Court’s subsequent reliance on Brown turned on that distinction. The Court in Brown, Justice Thomas contended, held only that a federal habeas court must determine whether the relevant state-court adjudication resulted in a “‘satisfactory conclusion.’” . . . In Justice Thomas’ view, Brown did not answer “the question whether a ‘satisfactory’ conclusion was one that the habeas court considered correct, as opposed to merely reasonable.” . . . In § 2254(d)(1), Congress specifically used the word “unreasonable,” and not a term like “erroneous” or “incorrect.” Under § 2254(d)(1)’s “unreasonable application” clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable. [W]hether Congress intended to codify the standard of review suggested by Justice Thomas in Wright is beside the point. Wright is important for the light it sheds on § 2254(d)(1)’s requirement that a federal habeas court inquire into the reasonableness of a state court’s application of clearly established federal law. The separate opinions in Wright concerned the

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very issue addressed by § 2254(d)(1)’s “unreasonable application” clause—whether, in reviewing a state-court decision on a state prisoner’s claims under federal law, a federal habeas court should ask whether the state-court decision was correct or simply whether it was reasonable. Justice Stevens’ claim that the debate in Wright concerned only the meaning of the Teague nonretroactivity rule is simply incorrect. . . . The Wright opinions confirm what § 2254(d)(1)’s language already makes clear—that an unreasonable application of federal law is different from an incorrect or erroneous application of federal law. Throughout this discussion the meaning of the phrase “clearly established Federal law, as determined by the Supreme Court of the United States” has been put to the side. That statutory phrase refers to the holdings, as opposed to the dicta, of this Court’s decisions as of the time of the relevant state-court decision. In this respect, the “clearly established Federal law” phrase bears only a slight connection to our Teague jurisprudence. With one caveat, whatever would qualify as an old rule under our Teague jurisprudence will constitute “clearly established Federal law, as determined by the Supreme Court of the United States” under § 2254(d)(1). . . . The one caveat, as the statutory language makes clear, is that § 2254(d)(1) restricts the source of clearly established law to this Court’s jurisprudence. In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. . . . Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.

III Although I disagree with Justice Stevens concerning the standard we must apply under § 2254(d)(1) in evaluating Terry Williams’ claims on habeas, I agree with the Court that the Virginia Supreme Court’s adjudication of Williams’ claim of ineffective assistance of counsel resulted in a decision that was both contrary to and involved an unreasonable application of this Court’s clearly established precedent. . . .

Notes on the Effect of Previous State Court Decisions 1. The 1996 Act. The statutory provision construed in Terry Williams, 28 U.S.C. § 2254(d), was enacted as part of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA). That provision and others apply to all habeas corpus cases, capital and non-capital alike. They appear in amendments to preexisting sections of Chapter 153 of the Judicial Code, 28 U.S.C. § 2241, et seq. Other provisions of AEDPA address only death penalty cases. Those provisions, collected in Chapter 154 of the Judicial Code, 28 U.S.C. § 2261, et seq., generally favor respondents. They apply, however, only to petitions filed by prisoners sentenced to die in states that establish a system for providing indigent death row prisoners with competent and properly compensated

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counsel in state postconviction proceedings. Originally, federal courts determined whether state schemes for supplying counsel in state court were sufficient to trigger Chapter 154. See Calderon v. Ashmus, 523 U.S. 740 (1998); Chapter Four, Section I. But an amendment in 2006 transferred that responsibility to the Attorney General (subject to judicial review by the Court of Appeals for the D.C. Circuit). The optional framework was the brainchild of a committee of the Judicial Conference of the United States, appointed by Chief Justice Rehnquist and chaired by Justice Powell. Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Report and Proposal (1989). The idea was to encourage states to supply counsel at the postconviction stage in state court in exchange for the advantages the states gain from the application of the provisions in Chapter 154 once cases reach federal court. 2. The Political Backdrop. By common account, AEDPA represented a reaction to what many members of Congress regarded as an unwise historical expansion of federal court authority effectively to superintend state courts in criminal cases—an expansion that began with the adoption of the de novo model associated with Brown v. Allen (if not earlier) and continued during the Warren Court years. See Section II, Notes 11-12. Also by common account, AEDPA was fueled by the suspicion in Congress that federal habeas corpus had become a tool by which prisoners sentenced to death could avoid, or at least postpone, execution. Opponents of capital punishment typically insisted that the lower federal courts should entertain habeas petitions in death penalty cases in order to detect and correct state violations of constitutional safeguards and thus forestall unlawful executions; proponents of the death penalty regarded federal habeas as a strategic instrument for frustrating the states’ choice to employ capital punishment. The link between habeas and the death penalty had existed for a very long time. Recall the classic cases—Brown, Frank v. Mangum, and Moore v. Dempsey. See Section II, Notes 2, 4(d). Yet it is not an exaggeration to say that in 1996 federal habeas corpus for state convicts was primarily itself a death penalty issue. a. Over the years, the Supreme Court had already curbed habeas corpus considerably. The Teague doctrine is one example, and you will see others in later sections. Yet as Justice O’Connor recognized in Wright v. West, even as the Court was adjusting its own doctrines in this field, Congress was considering numerous proposals for legislative change, including the Reagan Administration’s bill. See Section III, Note 12(b); Section II, Note 9. Many of the ideas in those proposals found their way into AEDPA. b. As you evaluate the Court’s interpretation of § 2254(d) in this section, and as you work your way through the cases and statutes treated in the sections to come, consider whether the debate over the very existence of federal habeas corpus for convicts, especially convicts under sentence of death, spills out into battles over the form that federal habeas corpus jurisdiction should take. Section 2254(d) goes to the central question that has attended habeas corpus since the classic decisions: the substantive power federal courts should have to award habeas relief on the basis of claims the state courts previously rejected. Many of the Court’s other decisions, and most of the other AEDPA provisions, have to do with the procedural hurdles that prisoners must clear before federal courts will address their claims. Even as to procedural arrangements, underlying policy debates are crucial. If the procedures in habeas cases are demanding and intricate (and they certainly are both), is it because stringent and complex procedural rules are genuinely needed to ensure efficiency while safeguarding legitimate individual and state interests? Or might it be because more (and more exacting) conditions on

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the federal courts’ freedom of action in habeas cases reflect underlying doubts about whether this head of federal jurisdiction should continue? 3. Terry Williams. You have to count noses in Terry Williams. Justice Stevens’ opinion spoke for a majority on some issues, particularly the application of § 2254(d)(1) to the circumstances at hand and the Court’s result. But his general discussion of § 2254(d)(1) in Part II, roughly merging the statute with the Teague doctrine, had only minority support. Justice O’Connor’s concurrence is authoritative regarding the general interpretation of § 2254(d)(1). She distinguished the statute from Teague, albeit she recognized a relationship between the two. And she also delineated separate spheres of operation for the “contrary to” and “unreasonable application” tests—though, there again, she acknowledged an overlap. Evaluate the statutory construction techniques that Stevens and O’Connor brought to bear. Did Stevens’ pursuit of a workable result lead him to promote an interpretation that the text of the statute would not bear? Did O’Connor’s focus on the explicit text lead her to adopt an interpretation that is unworkable? 4. Constitutionality. The petitioner in Terry Williams asked the Court to consider whether § 2254(d) is an unconstitutional effort by Congress to circumscribe federal court decisions on the merits of claims. The Court denied certiorari on that question. Consider Judge Easterbrook’s position in Lindh v. Murphy, 96 F.3d 856, 867-872 (7th Cir. 1996):

[T]here was (and is) no constitutionally enshrined right to mount a collateral attack on a state court’s judgment in the inferior Article III courts and, a fortiori, no mandate that state court judgments embracing questionable (or even erroneous) interpretations of the federal Constitution be reviewed by the inferior Article III courts. . . . Any suggestion that the Suspension Clause forbids every contraction of the powers bestowed by Congress . . . is untenable. The Suspension Clause is not a ratchet. . . . Is [§ 2254(d) (1)] congruent with the judicial role established by Article III of the Constitution? . . . [This statute] . . . does no more than regulate relief. It tells federal courts: Hands off, unless the judgment in place is based on an error grave enough to be called “unreasonable.” . . . [The argument that § 2254(d)(1) unconstitutionally impairs judicial independence] neglect[s] a basic distinction . . . . Congress cannot tell courts how to decide a particular case, but it may make rules that affect classes of cases. . . . Regulating relief is a far cry from limiting the interpretive power of the courts. . . . Congress has ample power to adjust the circumstances under which the remedy of the writ of habeas corpus is deployed.

5. Deference. Justice Stevens discounted the idea that § 2254(d) mandates “deference” to state court judgments, because Congress did not put that term in the statute expressly. What if § 2254(d) did say that federal courts must “defer” to state court decisions generally or to “reasonable” state court decisions specifically? Would the measure of that deference be clear? a. In footnote 13, where he had only a minority, Stevens denied that § 2254(d) tells federal courts to defer to state court decisions in the way they defer to decisions by federal administrative agencies pursuant to Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984). That seems right, doesn’t it? The point of Chevron deference is that Congress has delegated interpretive authority to agencies in order that they can fill in gaps in statutes. That

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rationale isn’t implicated in habeas corpus cases in which state and federal courts disagree about the merits of federal constitutional claims. b. Justice O’Connor, writing for the majority, said that it is “beside the point” whether § 2254(d) codifies Justice Thomas’ position in Wright v. West regarding federal court deference to state court determinations of mixed questions of law and fact. See Section III, Note 12(a). Did that mean Justice Thomas may not have won in the end? Or did Justice O’Connor simply decline to concede his victory? 6. A New Model? Does § 2254(d) fit comfortably into any familiar model of federal adjudication? a. This statute appears to contemplate that the federal courts’ jurisdiction continues to be original in nature. At least, nothing in its text states explicitly that federal courts are now to have appellate jurisdiction with respect to state court judgments. And, of course, the creation of any formal appellate jurisdiction would be extraordinary. See Section II, Note 3; Section III, Note 2. b. Yet § 2254(d) explicitly directs federal courts to examine state court judgments in a way that was previously unnecessary. Doesn’t that make it all the more difficult to distinguish habeas corpus jurisdiction from direct review? Notice in this vein that Justice O’Connor referred to this statute as one establishing a “standard of review” in habeas cases. Doesn’t use of the term “review” indicate a departure from the conventional understanding that habeas jurisdiction is original? It may be that § 2254(d) goes to a federal court’s authority to grant habeas corpus relief—rather than to the court’s underlying jurisdiction to entertain a petition in the first place. But it’s hard to escape the practical reality that federal courts will no longer take up habeas petitions afresh (without purporting to examine a previous state court judgment), but will, instead, make the validity of such a state judgment the focus of their inquiry. c. Does § 2254(d) track the Reagan Administration’s “full and fair” proposal? See Section II, Note 9. Does it borrow from that proposal in any way? d. Does § 2254(d) finally import preclusion into habeas corpus? If not, what is the difference between what this statute contemplates and what we would expect if ordinary issue preclusion rules were applicable? 7. Adjudication on the Merits. What counts as an adjudication and decision “on the merits” for purposes of § 2254(d)? In an opinion for the Court in Semtek v. Lockheed, 531 U.S. 497 (2001), Justice Scalia explained that the phrase “on the merits” can be elusive. Traditionally, a court is understood to have adjudicated an issue “on the merits” if the court “actually ‘passed on the substance of a claim.’” Yet Scalia concluded that F. R. Civ. P. 41(b) uses “upon the merits” to mean “the opposite of a ‘dismissal without prejudice’” to filing a claim in the same court. Can that be what § 2254(d) means by an adjudication “on the merits”? Or would it make sense to assume the more conventional definition—i.e., a state court evaluation of the substantive bona fides of a claim, not just any disposition barring further litigation? Consider, for example, that a state court may have declined to address a prisoner’s federal claim for procedural reasons. See Section VII (discussing procedural default doctrine). a. It would make sense, wouldn’t it, to distinguish between state court decisions reached after the state courts have actually grappled with the substance of claims (i.e., after the state courts have determined whether claims have sufficient factual and legal support to establish a violation of federal law), on the one hand, and state court decisions disposing of claims on

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procedural grounds, on the other? The point of conditioning the applicability of § 2254(d) on previous merits determinations is presumably to keep federal courts from routinely substituting their own evaluation of claims for that of the state courts: Federal courts usually should withhold relief if a state court has already considered a claim with care and has reached a reasoned decision that a prisoner is not imprisoned in violation of federal law. In this vein, consider that § 2254(d) may give state courts a choice. They may take the time and make the effort to evaluate the substance of claims (in which case § 2254(d) is triggered and their judgments will typically be insulated from second-guessing in federal court later), or they may dispose of claims on procedural grounds (in which case § 2254(d) is inapplicable and their judgments can be set at naught in federal court if found to be erroneous). Wouldn’t that be a salutary scheme? Can it be squared with § 2254(d)? b. Would it make sense to draw distinctions within the category of “merits” adjudications and decisions? State courts often act summarily, stating only that claims are “without merit” and providing no explanation. Should a state court decision merely stated to be “on the merits” trigger § 2254(d) in just the way that a decision accompanied by a richly detailed elaboration of the court’s thinking obviously does? Consider that if § 2254(d) is engaged, the federal court will have to decide whether the state court decision was “contrary to” clearly established federal law or amounted to an “unreasonable” application of established law to the facts. How will that be possible if the state court fails to provide some basic account of its analysis? The question in Early v. Packer, 537 U.S. 3 (2002), was whether the circuit court below had correctly determined that a state court decision rejecting a prisoner’s claim was “contrary to” Supreme Court precedents, such that § 2254(d) did not bar federal relief. Yet the Court’s per curiam appears to bear on the antecedent question whether the state court had adjudicated the claim “on the merits” to bring § 2254(d) into play:

[T]he Ninth Circuit observed that the state court “failed to cite . . . any federal law, much less the controlling Supreme Court precedents.” . . . If this was meant to suggest that such citation was required, it was in error. A state-court decision is “contrary to” our clearly established precedents if it “applies a rule that contradicts the governing law set forth in our cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” Williams v. Taylor. . . . Avoiding these pitfalls does not require citation of our cases—indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.

c. One might suppose that a state court’s adjudication and decision was “on the merits” for purposes of § 2254(d) only if the state court at least purported to reject a prisoner’s claim as a matter of federal law. In Packer, however, the per curiam dropped this comment: “The Ninth Circuit’s disapproval of the Court of Appeal’s failure to cite this Court’s cases is especially puzzling since the state court cited instead decisions from the California Supreme Court that impose even greater restrictions for the avoidance of potentially coercive jury instructions. . . .” d. It may be difficult to determine whether a state court adjudicated and rejected the substance of a claim. When state court opinions are vague or ambiguous, may federal habeas courts employ the techniques they use to make the determination whether a state court relied on an adequate and independent state ground? For purposes of that question, the default position is

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that a state court opinion rests on federal grounds if it “fairly appears” to do so and does not specify otherwise. See Chapter Eight. In this context, would it make sense to adopt a default position that a state court adjudicated and decided the merits of a claim if its opinion fairly appears to rely on federal principles and does not purport, instead, to rest on some procedural ground alone? Of course, that technique will be of no help if the state court provides no explanation at all for its action. e. Presumably there will be instances in which there is no previous state court adjudication and decision on the merits to invoke § 2254(d). What then? Should a federal court simply address the claim in the way it would have before § 2254(d) was enacted—i.e., by examining the claim de novo and awarding relief if the court concludes that it is meritorious? What other course would be open? Might the federal court conduct an independent examination of the record, determine the reasoning the state court might have offered for denying the claim on the merits, and then decide whether that reasoning would have been defensible as neither “contrary to” clearly established law nor “unreasonable”? Or does that sound too much like the Teague analysis? Then again, the Teague doctrine may foreclose the claim altogether for much the same reason that § 2254(d), if it applied, might have barred habeas relief. Isn’t that right?

8. Clearly Established Law. If there is a state court adjudication and decision on the merits that brings § 2254(d) into play, a federal court can hold the state court only (and only roughly) to the federal law that was “clearly established” by the Supreme Court. Justice O’Connor explained in Terry Williams that “clearly established” law “refers to” the Supreme Court’s own “holdings, as opposed to . . . dicta.” Is it problematic for Congress to tell inferior federal courts that they can compare state court decisions only to Supreme Court holdings? Federal judges are independent jurists, not agents of the Supreme Court. They are duty-bound to make their best judgments about what federal law demands, and those judgments stand until they are overturned on appellate review. Is there an argument, then, that § 2254(d) intrudes upon Article III independence if it presumes to prescribe the sources that federal judges can consult—even if Congress specifies Supreme Court precedents en masse? Or is the idea only to remind inferior federal courts that state courts are their co-equals in a single system, that state courts do not answer to federal district and circuit courts, and that both state and inferior federal courts do answer only to the Supreme Court? Perhaps § 2254(d) only reflects conventional thinking about the federal hierarchy. A state court’s decision regarding a federal claim was not necessarily mistaken merely because it conflicted with precedents in the lower federal courts; it was erroneous only if it failed to comport with federal law as it was then clearly established in existing Supreme Court decisions and in decisions of other courts (state and federal) that presumably thought they were following the Supreme Court’s lead. By this account, § 2254(d) may permit federal habeas courts to compare state court decisions with precedents outside the Supreme Court—so long as those precedents are treated only as evidence of what the Supreme Court itself had declared the law to be. 9. The “Contrary to” Test. Justice O’Connor explained in Terry Williams that a state court decision may fail the test established by the “contrary to” clause in two ways: by applying a rule that is “substantially different” from the rule reflected in contemporaneous Supreme Court precedents, or by arriving at a result different from the result the Court itself reached in a prior case in which the facts were “materially indistinguishable.”

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a. The first possibility is easy enough to grasp. It does seem sensible to say that a state court acted “contrary to” the Court’s precedents if it misstated the rule of law for which those precedents stood. We might expect that state courts generally can at least quote the Supreme Court’s articulation of doctrine accurately (assuming, of course, that they write opinions at all). But they do make mistakes. In Terry Williams itself, the Virginia Supreme Court misapprehended the Strickland test for ineffective assistance of counsel. How scrupulous must state courts be in articulating the doctrine announced in Supreme Court decisions? In Woodford v. Visciotti, 537 U.S. 19 (2002) (per curiam), the Court summarily reversed a Ninth Circuit holding that the California Supreme Court had reached a decision “contrary to” Strickland. The Court had explained in Strickland that a prisoner must prove “prejudice” by showing that, but for counsel’s poor performance, there was a “reasonable probability” that the defendant would have been acquitted. The California Supreme Court repeatedly used “probability” as the standard without the “reasonable” modifier. The Ninth Circuit thought that was significant, but the Supreme Court set it down to “an occasional shorthand reference.” b. The second possibility may be harder to manage. Apparently the idea is that a state court might articulate a relevant Supreme Court holding accurately, but then so botch the application of that rule to the case at hand that a federal court should conclude that the state court’s result was “contrary to” the very Supreme Court precedent the state court purported to follow. But why wouldn’t that be a case about an unreasonable application of the law—i.e., a case covered by the other test in paragraph (1) of § 2254(d)? Writing for the Court in Bell v. Cone, 535 U.S. 685 (2002), Chief Justice Rehnquist concluded that a state court had “correctly identified the principles announced in Strickland” and that “[c]onsequently, [there was] . . . no merit in respondent’s contention that the state court’s adjudication was contrary to our clearly established law.” Was that right? The state court wasn’t home free as soon as it stated the Strickland test accurately, was it? Couldn’t it still reach a decision “contrary to” Strickland via poor application? Could Rehnquist have meant to discard the second way a state decision can be “contrary to” a Supreme Court decision or, perhaps better said, to collapse all cases in which the standard is articulated correctly into the “unreasonable application” test? 10. The “Unreasonable Application” Test. Justice O’Connor explained in Terry Williams that a state court decision may also fail the test established by the “unreasonable application” clause in two ways: by “correctly [identifying] the governing legal rule” but “unreasonably” [applying] that rule “to the facts” of a particular case or by either unreasonably extending a legal rule to a “context” in which it “should not apply” or unreasonably failing to extend a rule to a context in which it “should apply.” a. As to the first possibility, O’Connor said that a federal court is barred from granting habeas relief on the sole ground that a prior state court determination of a mixed question was incorrect at the time it was rendered in light of contemporaneous Supreme Court holdings. A federal court can award habeas relief only if the state court decision was “also” unreasonable. In a number of cases, the Court has reversed circuit courts summarily for being too quick to conclude that state courts acted unreasonably. E.g., Middleton v. McNeil, 541 U.S. 433 (2004) (per curiam); Yarborough. v. Gentry, 540 U.S. 1 (2003) (per curiam). And in some instances, at least, it appears that individual justices have voted to withhold federal habeas relief where, absent the statute, they would have sided with the prisoner. See, e.g., Brown v. Peyton, 544 U.S. 133, 148 (2005) (Breyer, J., concurring).

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b. Writing for the Court in Lockyer v. Andrade, 538 U.S. 63 (2003), Justice O’Connor resisted an invitation to assimilate the “reasonableness” standard into a “clear error” rule. The question is whether a state court decision was “objectively unreasonable,” nothing else. In an opinion for the Court in Yarborough v. Alvarado, 541 U.S. 652 (2004), Justice Kennedy offered a little more guidance. But doesn’t the following passage sound like a discussion of the Teague doctrine? Notice the citation to Kennedy’s concurring opinion in Wright v. West. See Section III, Note 12(c). Here’s the passage:

[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations. Cf. Wright v. West, 505 U.S. 277, 308-309 (1992) (Kennedy, J., concurring in the judgment).

c. Justice O’Connor had no occasion in Terry Williams to elaborate on what counts as an unreasonable failure to extend a legal rule. In Alvarado, Justice Kennedy said a little about that part of the § 2254(d)(1) analysis, but not much. Is his discussion illuminating? Note the additional reference to Teague. Here’s what Kennedy said:

The [state] contends that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision. . . . There is force to this argument. Section 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law. Cf. Teague v. Lane, 489 U.S. 288 (1989). At the same time, the difference between applying a rule and extending it is not always clear. Certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt.

11. Overlapping Tests. Justice O’Connor acknowledged in Terry Williams that most circuit courts had held that the “contrary to” test was addressed to state court decisions getting the applicable federal legal standard wrong and that the “unreasonable application” test was addressed to state court decisions getting the legal standard right but then misapplying it. Why did she resist that account of the two tests and, instead, insist that they overlap? Did she think the circuits were being too simplistic? O’Connor proceeded from the premise that there must be some difference between “contrary to” and “unreasonable” decisions. Why, then, did she deliberately make the boundary line between them obscure? By contrast, O’Connor was adamant about the difference between “incorrect” and “unreasonable” state decisions. Isn’t that the crucial distinction in the end? Would it have been better simply to say that § 2254(d)(1) tells federal habeas courts they can’t award relief unless they are prepared to say that a state court decision on the merits was unreasonable? And leave it at that—without drawing any other distinctions (like any supposed distinction between “contrary to” and “unreasonable” decisions)?

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Or was that not a possibility, given that the “contrary to” and “unreasonable application” tests are built into the text of the statute? 12. Unreasonable Determinations of Fact. A state court decision fails the test established by the “unreasonable determination” clause in § 2254(d)(2) if the decision is “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” What work does this third test perform? Consider: If the state court misapprehended the underlying facts, the court may have reached an unreliable decision regarding a claim, even if its handling of the legal issues was otherwise flawless. a. The prisoner in Rice v. Collins, 126 S.Ct. 969 (2006), claimed that the state courts shouldn’t have credited the prosecutor’s explanation for using peremptory challenges to strike two African Americans from the jury and, accordingly, that he was entitled to federal habeas corpus relief under Batson v. Kentucky, 476 U.S. 79 (1986) (barring peremptory challenges on the basis of race). Writing for the Court, Justice Kennedy said this: “On direct appeal in federal court, the credibility findings a trial court makes in a Batson inquiry are reviewed for clear error. . . . Under [§ 2254(d)(2)], however, a federal habeas court . . . can only grant [a petition] if it was unreasonable to credit the prosecutor’s race-neutral explanations. . . .” Helpful? b. It is sometimes difficult to say whether an issue before a state court was a question of fact alone or a mixed question of law and fact. Concomitantly, it may be difficult to say whether the potential flaw in the state court’s work should be judged under § 2254(d)(2) or under the “unreasonable application” clause in § 2254(d)(1). Moreover, a federal court’s assessment of state court fact-finding under § 2254(d)(2) must be reconciled, in turn, with the federal court’s responsibilities with respect to fact-finding under § 2254(e). See Section VIII (B), Note 1(d)-(e). 13. Qualified Immunity. In footnote 12 of his opinion in Terry Williams (where he had only minority support), Justice Stevens disclaimed the idea that § 2254(d) incorporates the standard used to determine whether executive officers are immune from suits for damages. At that point, Stevens was arguing that § 2254(d) essentially codifies the Teague doctrine and resisting any suggestion that, instead, § 2254(d) borrows from the qualified immunity cases. Consider, though, whether both § 2254(d) and Teague share something in common with qualified immunity. Stevens himself acknowledged that § 2254(d) employs the same verbal formulation used in the immunity context: “clearly established” law. Moreover, § 2254(d), and Teague as well, attach significance to whether a prior judgment was (or, in the case of Teague, might have been) “reasonable.” That, too, calls qualified immunity to mind. a. Consider again the intellectual connections (and distinctions) between Teague and immunity doctrine. Then ask yourself whether there are similar links (and distinctions) between immunity and § 2254(d). See Section III, Note 11. b. Watch the explicit text of the statute. In qualified immunity cases, an executive officer’s departure from “clearly established” law is, in itself, unreasonable. See Chapter One. By contrast, § 2254(d) has it that a state court decision on the merits bars federal habeas relief unless that decision “involved” an “unreasonable application” of “clearly established” law. So the idea is that federal relief is forestalled unless a state court decision unreasonably applied a federal legal standard, any departure from which was unreasonable? Is that it? Cf. Note 14.

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14. Teague v. Lane. Justice Stevens said in Terry Williams that the “threshold” question “under AEDPA” is whether a prisoner “seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.” That was incorrect, wasn’t it? The date on which a prisoner’s conviction became final is crucial for the Teague doctrine. See Section III, Note 5. In her authoritative opinion, Justice O’Connor explained that the important date for purposes of § 2254(d) is the date of the “relevant state-court decision.” Those two dates are different, and important implications follow. Consider again the hypotheticals illustrating the significance of key dates for Teague purposes. See Section III, Note 7. a. The Teague doctrine presumably will allow a federal district court entertaining Thelma’s habeas corpus petition to consider Louise’s new rule, because it was announced before Thelma’s conviction became final. Consider, though, that the state court adjudicated Thelma’s claim on the merits. To be sure, that adjudication occurred prior to (and thus without benefit of) the announcement of the new rule in Louise’s case. But it was a state court adjudication of the merits in light of the law as it stood at the time the state court acted. When, then, the federal district court addresses Thelma’s claim in habeas proceedings, will § 2254(d) bar relief unless the state court’s decision fails one of the tests in paragraphs (1) and (2)? If so, isn’t § 2254(d) in tension with Teague—which is supposed to give Thelma the benefit of Louise’s precedent? b. The Teague doctrine presumably will not allow a federal court entertaining Harry’s habeas petition to consider Sally’s new rule, because it was announced after Harry’s conviction became final. But if the state court chooses to take Sally’s new rule into account and, in so doing, reaches an unreasonable result, isn’t a federal district entitled to award habeas relief under § 2254(d)? If not, isn’t Teague in tension with § 2254(d)—which is supposed to permit federal habeas relief when a state court determined a federal claim unreasonably? Consider the next case. 15. Horn v. Banks. The petitioner in Horn v. Banks, 536 U.S. 266 (2002), was convicted in state court and sentenced to death. After his conviction and sentence became final on direct review, the Supreme Court decided in Mills v. Maryland, 486 U.S. 367 (1988), that a state cannot constitutionally require jurors to agree unanimously that a particular mitigating circumstance exists before they can take that circumstance into account in determining whether a convict should die. The petitioner in Banks then filed an application for postconviction relief in state court, contending that the jurors in his case had been led to believe, contra Mills, that they could consider only mitigating circumstances they agreed on unanimously. The state courts entertained the prisoner’s claim in light of Mills, but rejected it on the merits. Thereafter, the petitioner raised the same claim in a petition for a federal writ of habeas corpus. The district court declined to award relief, citing § 2254(d). On appeal, the Third Circuit acknowledged that the first order of business is ordinarily to determine whether a claim is barred from federal court because it depends on a new rule within the meaning of Teague. Yet since the state courts had adjudicated the merits of the petitioner’s claim on the basis of Mills, the circuit court found Teague not to be “implicated.” Passing on to § 2254(d), the circuit court concluded that the state decision rejecting the prisoner’s Mills claim was unreasonable and therefore did not bar habeas relief. The Supreme Court summarily reversed:

[I]f the State . . . argue[s] that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the

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claim. . . . Here, petitioners raised the Teague issue. . . . Thus . . . it was incumbent upon the Court of Appeals to perform a Teague analysis before granting respondent relief under Mills. . . .

[The Court of Appeals was of the opinion that]. . . “recent decisions have called into question to what extent Teague has continued force independent of AEDPA.” [N]one of our post-AEDPA cases have suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard, or that AEDPA relieves courts from the responsibility of addressing properly raised Teague arguments. To the contrary, if our post-AEDPA cases suggest anything about AEDPA’s relationship to Teague, it is that the AEDPA and Teague inquiries are distinct. . . . Thus, in addition to performing any analysis required by AEDPA, a federal court considering a habeas petition must conduct a threshold Teague analysis when the issue is properly raised by the state.

a. Would Banks have been a different case if the Third Circuit had bypassed the question whether Mills announced a new rule within the meaning of Teague, reached the further question whether § 2254(d) barred federal habeas corpus relief, and concluded that habeas relief was unavailable? In that event, it wouldn’t have mattered whether the prisoner’s Mills claim was independently Teague-barred. Since the Teague doctrine is notoriously hard to understand and implement, shouldn’t courts routinely leapfrog over Teague and decide cases (if they can) on the basis of § 2254(d)? Or would that practice be prejudicial inasmuch as cases can be resolved via § 2254(d) alone only if prisoners lose? Cf. Section VI, Note 2. b. It’s hard to defend the Third Circuit’s view that Teague wasn’t implicated simply because the Pennsylvania Supreme Court had adjudicated the Mills claim on the merits. But consider the circuit court’s suggestion that, with the enactment of § 2254(d), the Teague doctrine might have no “continued force” apart from the statute. Was that crazy? Didn’t Justice Stevens suggest in Terry Williams that the statute essentially codifies Teague? Consider again Justice O’Connor’s (inconclusive) discussion of whether § 2254(d) adopts Justice Thomas’ account of Teague in Wright v. West. What should we make of O’Connor’s statement that the “clearly established Federal law” phrase in the statute “bears only a slight connection to our Teague jurisprudence”? Can that possibly be right? Note that O’Connor immediately indicated just the opposite: “Whatever would qualify as an old rule under our Teague jurisprudence will constitute ‘clearly established Federal law . . .’ under § 2254(d)(1)”—provided that only Supreme Court holdings can “clearly establish” federal law for purposes of the statute. So far from a “slight connection,” doesn’t that suggest a significant overlap between Teague and § 2254(d)?

c. Let’s get this straight. The Teague doctrine addresses the threshold question whether a claim can be entertained in a federal habeas petition at all. As the Court tends to put it, a claim is not cognizable if it rests on a new rule of law. Or to put it the other way, only a claim based on an old rule need apply. A rule is old in the necessary sense only if, at the time the petitioner’s conviction became final on direct review, the rule already existed in a form that dictated a result favorable to the prisoner, such that a state court judgment against him was or would have been unreasonable. We are given to understand, then, that the definition of an old rule on which a habeas petitioner can rely embodies a “reasonableness” test. A claim can be considered in federal habeas proceedings only if it rests on a rule of law that admitted only one reasonable result when the prisoner was still in the direct review channel—namely, a decision in the

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prisoner’s favor. Once a prisoner advances such a claim, § 2254(d) governs the federal court’s authority to provide a remedy. If a state court previously rejected the claim on the merits, § 2254(d) bars federal relief if the state court’s decision was reasonable. You see where this is going.

d. By the time § 2254(d) comes into play, the federal court has already decided, for Teague purposes, that a state court acted or would have acted unreasonably in reaching a judgment against the prisoner when the case was still subject to direct review. If that weren’t true, the claim would not depend on an old rule, and it would never have made it through the door. Does it make sense, then, to read § 2254(d) to bar an award of habeas relief if a state court reasonably applied an old rule? After all, if Teague allows a prisoner to rest a claim on a rule (i.e., if in Teague-speak the rule is old), the federal court must have decided already that a state court adjudication and decision against the prisoner on the merits was unreasonable. The Teague doctrine makes a claim cognizable only if a state court acted unreasonably in rejecting it. Doesn’t that eliminate the possibility that § 2254(d) might prevent habeas relief on the ground that a state court determined a cognizable claim reasonably?

e. What about the order in which a federal court treats the merits of a claim (i.e., a claim that Teague makes cognizable), on the one hand, and the “reasonableness” of a state court’s decision on the merits of the claim for purposes of § 2254(d), on the other? Writing for the Court in Lockyer v. Andrade, 538 U.S. 63 (2003), Justice O’Connor said that a federal court is free to bypass the question whether a previous state court decision on a federal claim was correct in view of “clearly established federal law, as determined by the Supreme Court” and to go immediately to “the only question that matters”—i.e., whether the state decision was “reasonable” so as to foreclose relief under § 2254(d). Does that make sense, given that the threshold Teague question entails a “reasonableness” determination before a claim can be considered at all? Justice O’Connor didn’t mention Teague in Andrade, evidently because the state made no argument that the claim in that case was Teague-barred. f. What might deal with the apparent redundancy of Teague and § 2254(d) in tandem? Is it open to say that the two don’t operate in the same case? If, as in Andrade, the warden doesn’t assert that a claim is Teague-barred (and the federal court doesn’t see fit to raise Teague on its own motion), the Banks problem goes away, right? A claim based on a Teague-defined new rule would get into federal court, but relief could be denied on the authority of § 2254(d). And if there was no previous state court adjudication on the merits, § 2254(d) would not be implicated, leaving Teague alone to supply essentially the same “reasonableness” test, albeit earlier in the federal court’s analysis. Trouble is, Banks plainly contemplates that both Teague and § 2254(d) can figure in a single case. Moreover, explaining Teague as a stand-in for § 2254(d) would create other problems, wouldn’t it? It would render superfluous what appears to be the trigger for the application of § 2254(d) (a prior state court decision on the merits). And it would surrender any remaining argument (pretense?) that Teague is about changes in the law and even-handed treatment. g. Would you argue that if Teague and § 2254(d) are to live together, something in one of them has to give? If so, what would you propose? How about this? The Court should jettison its current definitions of new and old rules and limit the Teague ban to genuine “clear break” departures from precedent. Then, Teague would allow most claims into court, and § 2254(d) would determine which (meritorious) claims win federal relief. Mind you, this wouldn’t revive the Warren Court’s approach. See Section III, Note 4(b). The availability of a “clear break” rule

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in collateral proceedings wouldn’t have to be determined ad hoc; all “clear break” rules could be barred en masse (subject to whatever exceptions are appropriate). h. On remand in Banks, the Third Circuit held that the rule associated with Mills was not new, that the state court’s application of that rule was “unreasonable,” and, accordingly, that the prisoner was entitled to federal habeas corpus relief. The Supreme Court reviewed only the circuit court’s judgment on the Teague “new rule” issue and, finding that Mills was new, reversed. Beard v. Banks, 542 U.S. 406 (2004). 16. Harmless Error. In Chapman v. California, 386 U.S. 18 (1967), the Court held that when federal constitutional error is identified on direct review, a criminal conviction must be set aside unless the error was “harmless beyond a reasonable doubt.” In Brecht v. Abrahamson, 507 U.S. 619 (1993), however, the Court adopted a more generous standard for habeas corpus cases. Borrowing from Kotteakos v. United States, 328 U.S. 750 (1946), where the Court had dealt with the harmfulness of non-constitutional error in federal criminal prosecutions, Chief Justice Rehnquist said a federal court entertaining a habeas petition from a state prisoner is barred from awarding habeas relief unless the error the court identifies (in previous state proceedings) had a “substantial and injurious effect or influence in determining the jury’s verdict.” The decision in Brecht is another illustration of the Court’s willingness to develop habeas corpus doctrine on its own. There is no statute specifying the test for harmless error in habeas corpus cases, so the Court fashioned a test as a matter of judicial policy. a. Consider that state appellate courts (and the Supreme Court itself) continue to use the more demanding Chapman standard on direct review. Is that why the Court could relax its vigilance in federal habeas proceedings? What if a state appellate court defiantly employs the Brecht/Kotteakos test rather than Chapman on direct review and the Supreme Court (as usual) denies certiorari? In that instance, should a federal district court entertaining the prisoner’s petition for habeas corpus relief conclude that the premise of Brecht does not obtain and apply Chapman? b. Distinguish the limitation the harmless error doctrine attaches to habeas relief from the restrictions on relief established by § 2254(d). The harmless error doctrine bars relief if the error a federal court identifies in the proceedings in state court had no substantial effect on the outcome of the trial—however far off the mark a state court was in rejecting the prisoner’s federal claim. The restrictions in § 2254(d) bar habeas relief if a state court decision rejecting a federal claim was not unreasonably off the mark. Do the § 2254(d) restrictions presuppose that the error in state court was not harmless—i.e., do they come into play and potentially prohibit the award of relief after a federal court has concluded that the harmless error doctrine alone is not dispositive? Or does § 2254(d) come first—so that if the court initially determines that a previous state court decision was either “contrary to” Supreme Court precedent or unreasonable, then the court considers whether relief still must be denied because the error was harmless? There is language in the per curiam in Woodford v. Visciotti, see Note 9(a), suggesting that a federal court’s application of the Brecht harmless error standard at least can follow rather than precede its application of § 2254(d). Does that make sense? c. If a state court itself relied on harmless error doctrine to deny relief with respect to a claim, a federal habeas court presumably must apply § 2254(d) to that previous state court decision on the federal question whether the error was harmless. In many instances, the state court will have applied not the Brecht test prescribed for harmless error analysis in federal

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habeas corpus, but rather the Chapman test prescribed for direct review in state court. That happened in Mitchell v. Esparza, 540 U.S. 12 (2003) (per curiam), where the Court said this: “We may . . . grant respondent’s habeas petition . . . only if the Ohio Court of Appeals applied harmless-error review [i.e., the Chapman test] in an ‘objectively unreasonable’ manner.” Doesn’t treating a state court decision finding error to have been harmless as an occasion for applying § 2254(d)(1) to a state court application of Chapman leave Brecht out of the mix? The Court did not mention Brecht in Esparza.

____________________ V. The Custody Requirement

Jones v. Cunningham

371 U.S. 236 (1963)

Justice BLACK delivered the opinion of the Court. A United States District Court has jurisdiction under 28 U.S.C. § 2241, to grant a writ of habeas corpus “to a prisoner . . . in custody in violation of the Constitution . . . of the United States.” . . . To determine whether habeas corpus could be used to test the legality of a given restraint on liberty, this Court has generally looked to common-law usages and the history of habeas corpus both in England and in this country. . . . In England, as in the United States, the chief use of habeas corpus has been to seek the release of persons held in actual, physical custody in prison or jail. Yet English courts have long recognized the writ as a proper remedy even though the restraint is something less than close physical confinement. . . . Similarly, in the United States the use of habeas corpus has not been restricted to situations in which the applicant is in actual, physical custody. This Court itself has repeatedly held that habeas corpus is available to an alien seeking entry into the United States, although in those cases each alien was free to go anywhere else in the world. . . . Habeas corpus has also been consistently regarded by lower federal courts as the appropriate procedural vehicle for questioning the legality of an induction or enlistment into the military service. . . . History, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man’s liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus. Petitioner is confined . . . to a particular community, house, and job at the sufferance of his parole officer. He cannot drive a car without permission. He must periodically report to his parole officer, permit the officer to visit his home and job at any time, and follow the officer’s advice. . . . He must live in constant fear that a single deviation, however slight, might be enough to result in his being returned to prison to serve out the very sentence he claims was imposed upon him in violation of the United States Constitution. . . . [Habeas corpus] is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose—the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty. While petitioner’s parole releases him from immediate physical

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imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the “custody” of the members of the Virginia Parole Board within the meaning of the habeas corpus statute. . . .

Notes on Custody 1. Jurisdiction. A petitioner must be in “custody” to invoke a federal court’s jurisdiction under § 2241. In modern practice, however, a federal court’s remedial authority is not limited to ordering a prisoner’s release. Pursuant to 28 U.S.C. § 2243, a habeas court shall “dispose” of meritorious claims “as law and justice require.” Thus federal courts are able to consider applications for the writ from petitioners who do not stand to be freed immediately if they are successful. Concomitantly, as Justice Black explained in Jones, the custody doctrine does not demand actual incarceration, but can be satisfied by constructive restraints on liberty. Then, if a prisoner is successful on the merits, the federal court can issue habeas relief that relieves the petitioner of those restraints. In cases touching criminal prosecutions, it is enough if petitioners are subject to parole or bail conditions. Hensley v. Municipal Court, 411 U.S. 345 (1973) (bail). See also Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984) (holding that a prisoner released on personal recognizance after a preliminary bench trial is in custody); Barry v. Bergen County, 128 F.3d 152 (3d Cir. 1997) (holding that a prisoner sentenced to community service is in custody). a. Justice Black noted in Jones that the parolee in that case was threatened with actual physical custody in the future (if he was found to have broken the conditions of his parole and returned to prison). Was that crucial? Can the “constructive restraint” cases be explained on the basis of the potential for incarceration? b. By common account, a convict who is fined as the punishment for a criminal offense is not in custody and cannot attack the conviction via habeas corpus. United States v. Kramer, 195 F.3d 1129 (9th Cir. 1999). But if a convict refuses to pay a fine, he can be held in contempt and imprisoned until he does. Shouldn’t that risk of future imprisonment be sufficient to allow a prisoner who suffers a fine to apply for the writ? Once a fine is paid, the only relief to be sought would presumably be reimbursement—a backward-looking, monetary, compensatory kind of remedy (resembling damages?). Is that kind of relief available via habeas corpus? 2. Flexibility. The evident flexibility in the custody doctrine is a function of the Supreme Court’s desire (during the 1960s) to fashion federal habeas corpus into a mechanism by which prisoners could attack criminal convictions. It takes time for a federal court to resolve the issues implicated by a habeas petition. If the custody doctrine required continued detention after initial filing, many applicants who are in custody when they begin would ultimately suffer dismissal simply because they are released (from both actual and constructive restraints) before their cases can be settled. a. In this same vein, the Court accommodates habeas applications from prisoners who are sentenced to serve multiple terms of confinement. A petitioner can challenge the second of two consecutive sentences, even though he is currently serving only the first and the custody he actually attacks (under the future sentence) has not yet begun. The Court aggregates consecutive sentences for purposes of ascertaining custody. Peyton v. Rowe, 391 U.S. 54 (1968); Garlotte v. Fordice, 515 U.S. 39 (1995). Equally, a petitioner may attack one of two concurrent sentences,

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despite the understanding that the other (unchallenged) sentence will keep the petitioner in jail, whatever happens. If, however, it appears that success in a current habeas proceeding can have no effect on any future detention, a habeas court has discretion to dismiss a prisoner’s claim. Benton v. Maryland, 395 U.S. 784, 791 (1969). b. Is the custody doctrine flexible enough? See Williamson v Gregoire, 151 F.3d 1180 (9th Cir. 1998) (holding that a convict who resists a requirement that he register as a “child molester” is not in custody). 3. Custody and Mootness. The jurisdictional question of custody turns on a petitioner’s status at the time a federal habeas petition is filed. If the petitioner is in custody then, jurisdiction attaches and is not lost even if the prisoner is finally discharged from all restraints while his petition is pending. A pending petition is subject to dismissal only for mootness. Carafas v. LaVallee, 301 U.S. 234 (1968); see Chapter Four, Section IX. Habeas actions typically do not become moot, because the Court presumes that a petitioner suffers collateral legal consequences from a criminal conviction after the attendant sentence has been served. Sibron v. New York, 392 U.S. 40, 55 (1968). But see Spencer v. Kemna, 523 U.S. 1, 10-12 (1998) (declining to adopt a similar presumption that revocations of parole have collateral consequences). 4. Discharge. A petitioner who has been fully discharged after completing an isolated sentence is no longer in custody under that sentence and thus cannot initiate a straightforward habeas challenge to the conviction that gave rise to it. If, however, the petitioner is subsequently sentenced to a new term that is enhanced on the basis of the conviction underlying the previously completed sentence, the petitioner may be able to reach the older conviction indirectly—by attacking custody under the new sentence on the ground that it rests on an invalid prior judgment. Maleng v. Cook, 490 U.S. 488 (1989). Then again, a petitioner who is in custody under such an enhanced sentence is not yet entitled to a decision on the merits. Typically, “enhancement” claims will be procedurally foreclosed. See Section VII, Note 11.

____________________ VI. The Exhaustion Doctrine

Baldwin v. Reese

541 U.S. 27 (2004) Justice BREYER delivered the opinion of the Court. Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the “opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” . . . To provide the State with the necessary “opportunity,” the prisoner must “fairly present” his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim. . . . Reese . . . sought a federal writ of habeas corpus, raising, among other claims, a federal

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constitutional claim that his appellate counsel did not effectively represent him during one of his direct state-court appeals. The [district court] held that Reese had not “fairly presented” his federal “ineffective assistance of appellate counsel” claim to the higher state courts because his brief in the state appeals court had not indicated that he was complaining about a violation of federal law. [T]he Ninth Circuit . . . found that Reese had satisfied the “fair presentation” requirement because the justices of the Oregon Supreme Court had had “the opportunity to read . . . the lower . . . court decision claimed to be in error before deciding whether to grant discretionary review.” Had they read the opinion of the lower state trial court, the majority added, the justices would have, or should have, realized that Reese’s claim rested upon federal law. . . . [T]o say that a petitioner “fairly presents” a federal claim when an appellate judge can discover that claim only by reading lower court opinions in the case is to say that those judges must read the lower court opinions—for otherwise they would forfeit the State’s opportunity to decide that federal claim in the first instance. In our view, federal habeas corpus law does not impose such a requirement. [An] . . . opinion-reading requirement would impose a serious burden upon judges of state appellate courts, particularly those with discretionary review powers. Those courts have heavy workloads, which would be significantly increased if their judges had to read through lower court opinions or briefs in every instance. . . . Reese . . . asserts that the petition nonetheless “fairly presents” a federal “ineffective assistance of appellate counsel” claim . . . [, because] in Oregon the standards for adjudicating state and federal “inadequate/ineffective appellate assistance” claims are identical. He [argues that]. . . where that identity exists, a petitioner need not indicate a claim’s federal nature, because, by raising a state-law claim, he would necessarily “fairly present” the corresponding federal claim. Under this Court’s Rule 15.2, “a nonjurisdictional argument not raised in a respondent’s brief in opposition to a petition for a writ of certiorari may be deemed waived.” This argument falls squarely within the rule. . . . Hence, without expressing any view on the merits of the issue, we . . . deem the argument waived in this Court. . . .

Pitchess v. Davis

421 U.S. 482 (1975) Per curiam. Respondent . . . moved in state court to dismiss the charges against him on the grounds that the routine destruction of . . . physical evidence constituted an incurable suppression of exculpatory evidence in violation of Brady [v. Maryland, 373 U.S. 83 (1963)], which deprived him of any opportunity, present or future, to a fair trial. [T]he state trial court denied respondent’s motion, finding that the physical evidence had not been willfully suppressed and further finding that it would not have materially aided respondent’s defense. . . . The California Court of Appeal and the California Supreme Court denied respondent’s applications for writs of prohibition without opinion. [Entertaining a petition for federal habeas

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corpus relief, the] District Court, without permitting the trial to proceed in the state court, conducted a hearing of its own [and concluded] . . . that destruction of the [evidence] . . . violated Brady. . . .16 [FN2] In the opinion of the court the destruction of this evidence precluded certain additional scientific testing which might possibly have established that respondent was not the perpetrator of the crime, and since this defect was incurable, the court found that respondent could never receive a fair trial on the charges. . . . The [Ninth Circuit] affirmed. . . . [Section 2254(b)-(c)] requires exhaustion of available state remedies as a precondition to consideration of a federal habeas corpus petition. . . . [T]he Court of Appeals felt that respondent’s effort to secure a writ of prohibition from the state appellate courts on the grounds of destruction of the physical evidence constituted sufficient exhaustion of state remedies under these circumstances. Both the California Court of Appeal and the California Supreme Court denied the applications without opinion. In California it is well established that a writ of prohibition is an extraordinary writ, whose use for pre-trial review is normally limited to “questions of first impression and general importance.” The denial of an application for writ of prohibition does not constitute, and cannot be fairly read as, an adjudication on the merits of the claim presented. Inclusion of an asserted point of error in a denied pretrial application for writ of prohibition does not bar raising the same points on post-trial direct appeal. . . . [F]ull post-trial appellate review is available if respondent is convicted. On these facts, denial of respondent’s applications did not serve to exhaust his available state remedies. . . .

Rose v. Lundy

455 U.S. 509 (1982) Justice O’CONNOR delivered the opinion of the Court. The respondent . . . filed a petition . . . for a writ of habeas corpus under 28 U.S.C. § 2254, alleging four grounds for relief: (1) that he had been denied the right to confrontation because the trial court limited the defense counsel’s questioning of the victim; (2) that he had been denied the right to a fair trial because the prosecuting attorney stated that the respondent had a violent character; (3) that he had been denied the right to a fair trial because the prosecutor improperly remarked in his closing argument that the State’s evidence was uncontradicted; and (4) that the trial judge improperly instructed the jury that every witness is presumed to swear the truth. [T]he District Court concluded that it could not consider claims three and four[,] . . . because the respondent had not exhausted his state remedies for those grounds. . . . [, but granted relief on the basis of the first two claims]. . . . The Sixth Circuit affirmed . . . . The petitioner [the warden] urges this Court to apply a “total exhaustion” rule requiring district courts to dismiss every habeas corpus petition that contains both exhausted and unexhausted claims. . . . The petitioner argues at length that such a rule furthers the policy of

16 [FN2] In view of our disposition of this case, we have no occasion to consider the application of our decision in Younger v. Harris, 401 U.S. 37 (1971), to these facts.

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comity underlying the exhaustion doctrine because it gives the state courts the first opportunity to correct federal constitutional errors and minimizes federal interference and disruption of state judicial proceedings. The petitioner also believes that uniform adherence to a total exhaustion rule reduces the amount of piecemeal habeas litigation. Under the petitioner’s approach, a district court would dismiss a petition containing both exhausted and unexhausted claims, giving the prisoner the choice of returning to state court to litigate his unexhausted claims, or of proceeding with only his exhausted claims in federal court. The petitioner believes that a prisoner would be reluctant to choose the latter route since a district court could, in appropriate circumstances . . . , dismiss subsequent federal habeas petitions as an abuse of the writ.17 [FN6] In other words, if the prisoner amended the petition to delete the unexhausted claims or immediately refiled in federal court a petition alleging only his exhausted claims, he could lose the opportunity to litigate his presently unexhausted claims in federal court. . . . In 1948, Congress codified the exhaustion doctrine in 28 U.S.C. § 2254[(b) and (c)]. . . . [That statute], . . . however, does not directly address the problem of mixed petitions. To be sure, the provision states that a remedy is not exhausted if there exists a state procedure to raise “the question presented,” but we believe this phrase to be too ambiguous to sustain the conclusion that Congress intended to either permit or prohibit review of mixed petitions. Because the legislative history of § 2254, as well as the pre-1948 cases, contains no reference to the problem of mixed petitions, . . . in all likelihood Congress never thought of the problem. . . . Consequently, we must analyze the policies underlying the statutory provision to determine its proper scope. . . . The exhaustion doctrine is principally designed to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings. . . . Under our federal system, the federal and state “courts [are] equally bound to guard and protect rights secured by the Constitution.” . . . Because “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation,” federal courts apply the doctrine of comity, which “teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.” . . . A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error. As the number of prisoners who exhaust all of their federal claims increases, state courts may become increasingly familiar with and hospitable toward federal constitutional issues. . . . Equally as important, federal claims that have been fully exhausted in state courts will more often be accompanied by a complete factual record to aid the federal courts

17 [FN6] Rule 9(b) provides that “[a] second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.”

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in their review. [O]ur . . . interpretation of § § 2254(b), (c) provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court. Just as pro se petitioners have managed to use the federal habeas machinery, so too should they be able to master this straightforward exhaustion requirement. Those prisoners who misunderstand this requirement and submit mixed petitions nevertheless are entitled to resubmit a petition with only exhausted claims or to exhaust the remainder of their claims. . . . By invoking this procedure, however, the prisoner would risk forfeiting consideration of his unexhausted claims in federal court. . . . [A] district court may dismiss subsequent petitions if it finds that “the failure of the petitioner to assert those [new] grounds in a prior petition constituted an abuse of the writ.” . . . Justice BLACKMUN, concurring in the judgment. I do not dispute the value of comity when it is applicable and productive of harmony between state and federal courts, nor do I deny the principle of exhaustion that §§ 2254(b) and (c) so clearly embrace. What troubles me is that the “total exhaustion” rule, now adopted by this Court, can be read into the statute . . . only by sheer force; that it operates as a trap for the uneducated and indigent pro se prisoner-applicant; that it delays the resolution of claims that are not frivolous; and that it tends to increase, rather than to alleviate, the caseload burdens on both state and federal courts. To use the old expression, the Court’s ruling seems to me to “throw the baby out with the bath water.” . . . [The purposes of the exhaustion doctrine] support the approach taken by the Court of Appeals . . . and call for dismissal of only the unexhausted claims of a mixed habeas petition. . . . The first interest relied on by the Court involves an offshoot of the doctrine of federal-state comity. The Court hopes to preserve the state courts’ role in protecting constitutional rights, as well as to afford those courts an opportunity to correct constitutional errors and—somewhat patronizingly—to “become increasingly familiar with and hospitable toward federal constitutional issues.” . . . My proposal, however, is not inconsistent with the Court’s concern for comity: indeed, the state courts have occasion to rule first on every constitutional challenge, and have ample opportunity to correct any such error, before it is considered by a federal court on habeas. In some respects, the Court’s ruling appears more destructive than solicitous of federal-state comity. Remitting a habeas petitioner to state court to exhaust a patently frivolous claim before the federal court may consider a serious, exhausted ground for relief hardly demonstrates respect for the state courts. The state judiciary’s time and resources are then spent rejecting the obviously meritless unexhausted claim, which doubtless will receive little or no attention in the subsequent federal proceeding that focuses on the substantial exhausted claim. . . . Compelling the habeas petitioner to repeat his journey through the entire state and federal legal process before receiving a ruling on his exhausted claims obviously entails substantial delay. . . . And if the prisoner must choose between undergoing that delay and forfeiting unexhausted claims, . . . society is likewise forced to sacrifice either the swiftness of habeas or its availability to remedy

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all unconstitutional imprisonments. . . . The Court’s misguided approach appears to be premised on the specter of “the sophisticated litigious prisoner intent upon a strategy of piecemeal litigation,” . . . whose aim is to have more than one day in court. Even if it could be said that the Court’s view accurately reflects reality, its ruling today will not frustrate the Perry Masons of the prison populations. To avoid dismissal, they will simply include only exhausted claims in each of many successive habeas petitions. Those subsequent petitions may be dismissed, as Justice Brennan observes, only if the prisoner has “abused the writ” by deliberately choosing, for purposes of delay, not to include all his claims in one petition. . . . And successive habeas petitions that meet the “abuse of the writ” standard have always been subject to dismissal, irrespective of the Court’s treatment of mixed petitions today. The Court’s ruling in this case therefore provides no additional incentive whatsoever to consolidate all grounds for relief in one § 2254 petition. Instead of deterring the sophisticated habeas petitioner who understands, and wishes to circumvent, the rules of exhaustion, the Court’s ruling will serve to trap the unwary pro se prisoner who is not knowledgeable about the intricacies of the exhaustion doctrine and whose only aim is to secure a new trial or release from prison. He will consolidate all conceivable grounds for relief in an attempt to accelerate review and minimize costs. But, under the Court’s approach, if he unwittingly includes in a § 2254 motion a claim not yet presented to the state courts, he risks dismissal of the entire petition and substantial delay before a ruling on the merits of his exhausted claims. The Court suggests that a prisoner who files a mixed habeas petition will have the option of amending or resubmitting his complaint after deleting the unexhausted claims. . . . To the extent that prisoners are permitted simply to strike unexhausted claims from a § 2254 petition and then proceed as if those claims had never been presented, I fail to understand what all the fuss is about. In that event, the Court’s approach is virtually indistinguishable from that of the Court of Appeals, which directs the district court itself to dismiss unexhausted grounds for relief. I fear, however, that prisoners who mistakenly submit mixed petitions may not be treated uniformly. A prisoner’s opportunity to amend a § 2254 petition may depend on his awareness of the existence of that alternative or on a sympathetic district judge who informs him of the option and permits the amendment. . . . If the prisoner is required to refile the petition after striking the unexhausted claims, he may have to begin the process anew and thus encounter substantial delay before his complaint again comes to the district court’s attention. . . . Adopting a rule that will afford knowledgeable prisoners more favorable treatment is, I believe, antithetical to the purposes of the habeas writ. Instead of requiring a habeas petitioner to be familiar with the nuances of the exhaustion doctrine and the process of amending a complaint, I would simply permit the district court to dismiss unexhausted grounds for relief and consider exhausted claims on the merits. . . . Justice BRENNAN, with whom Justice MARSHALL joins, concurring in part and dissenting in part. . . . In my view, Rule 9(b) cannot be read to permit dismissal of a subsequent petition under

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the circumstances described in the plurality’s opinion. . . . I conclude that when a prisoner’s original, “mixed” habeas petition is dismissed without any examination of its claims on the merits, and when the prisoner later brings a second petition based on the previously unexhausted claims that had earlier been refused a hearing, then the remedy of dismissal for “abuse of the writ” cannot be employed against that second petition, absent unusual factual circumstances truly suggesting abuse. . . . Justice STEVENS, dissenting. . . . I . . . would allow district judges to exercise discretion to determine whether the presence of an unexhausted claim in a habeas corpus application makes it inappropriate to consider the merits of a properly pleaded exhausted claim. The inflexible, mechanical rule the Court adopts today arbitrarily denies district judges the kind of authority they need to administer their calendars effectively.18 [FN15] . . . . The fact that federal judges have at times construed their power to issue writs of habeas corpus as though it were tantamount to the authority of an appellate court considering a direct appeal from a trial court judgment has had two unfortunate consequences. First, it has encouraged prisoners to file an ever-increasing volume of federal applications that often amount to little more than a request for further review of asserted grounds for reversal that already have been adequately considered and rejected on direct review. Second, it has led this Court into the business of creating special procedural rules for dealing with this flood of litigation. . . . The “total exhaustion” rule the Court crafts today demeans the high office of the great writ. Perhaps a rule of this kind would be an appropriate response to a flood of litigation requesting review of minor disputes. An assumption that most of these petitions are groundless might be thought to justify technical pleading requirements that would provide a mechanism for reducing the sheer number of cases in which the merits must be considered. But the Court’s experience has taught us not only that most of these petitions lack merit, but also that there are cases in which serious injustice must be corrected by the issuance of the writ. . . . When a person’s liberty is at stake, however, there surely is no justification for the creation of needless procedural hurdles. . . .

Notes on Exhaustion

18 [FN15] I do not believe that the Court’s “total exhaustion” requirement is simply a harmless rule of procedure whose prospective application will do nothing more than require district judges to instruct state prisoners to redraft their pleadings with black magic markers. If that is the full import of the decision today, the Court disparages federal judges; the Court implies that a federal judge will not obey the statutory command to grant relief on only exhausted claims if an unexhausted claim lurks somewhere in the prisoner’s pleadings. More importantly, the unnecessary delay that the Court causes in the disposition of this case will not be limited to the instant proceeding; a similar outcome will follow every time an appellate court disagrees with a district court’s judgment that a petition contains only exhausted claims. Given the ambiguity of many habeas corpus applications filed by pro se applicants, such differing appraisals should not be uncommon.

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1. Comity. Under the doctrine first announced in Ex parte Royall, 117 U.S. 241 (1886), and codified in 28 U.S.C. §§ 2254(b)-(c), prisoners attacking custody in the hands of state officials ordinarily must exhaust state judicial opportunities to litigate federal claims before presenting those claims to federal courts in petitions for a writ of habeas corpus. The exhaustion doctrine is not a jurisdictional prerequisite, but rests on the “comity” that federal courts owe to the states and state courts. See Bowen v. Johnston, 306 U.S. 19, 27 (1939). Nevertheless, exhaustion is very much the rule, not the exception. Prisoners have no choice but to seek relief in state court first, unless the state court opportunities that appear to be “available” are actually “ineffective” to protect federal rights. But see Notes 2, 11. a. Ordinarily, it would make no sense to demand the exhaustion of judicial (as opposed to administrative) remedies, because a litigant’s compliance would produce a judicial judgment entitled to preclusive effect. See Chapter Six. The requirement that habeas petitioners must exhaust state judicial avenues for vindicating federal claims is intelligible only because habeas corpus enjoys an exemption from the Full Faith and Credit Statute and conventional preclusion rules. See Section II, Notes 5-6. b. Prisoners need not cite “book and verse on the federal constitution,” but they are obligated to identify the “substance” of their federal claims for consideration in state court. Picard v. Connor, 404 U.S. 270, 276-78 (1971). It’s not enough to identify a legal claim in the abstract. Prisoners must also present the state courts with allegations of the facts on which a claim is said to rest. There is no need to advance a claim repeatedly; once the state’s highest court has had an opportunity to address it in a normal procedural posture, the exhaustion doctrine is satisfied. Nor is there any requirement that a prisoner press the claim by some peculiar means (like some exotic old writ even quirkier than habeas corpus). A procedural vehicle of that kind may be “available” in a formal sense, but not in the sense contemplated by § 2254(c). c. The exhaustion doctrine doesn’t demand that the state’s highest court must actually determine a prisoner’s federal claim, but only that the court be given the opportunity to do so. If a prisoner fairly presents a claim and the state court ignores or overlooks it, the exhaustion requirement is satisfied and the claim can be considered in federal court. Smith v. Digmon, 434 U.S. 332 (1978). By a parity of reasoning, the exhaustion requirement is met if a prisoner fails fairly to present a federal claim, but the state court has the wit to identify it anyway and rejects it on the merits. County Court of Ulster County v. Allen, 442 U.S. 140, 148 (1979). In Reese, accordingly, it was crucial that the Oregon Supreme Court had denied discretionary review without considering, far less rejecting, the prisoner’s “ineffective assistance” claim as a federal matter. Similarly in Pitchess, the Court assumed that the California appellate courts had not reached the merits. d. Like the custody requirement, the exhaustion doctrine is concerned only with things as they are when a federal habeas corpus petition is filed. If some state court avenue for litigating a federal claim is open at that time, the court will postpone the exercise of federal jurisdiction until the prisoner presses the claim by that means. Contrast the different treatment of cases in which the door to state court was open earlier but is closed at the time a prisoner files a habeas corpus petition in federal court. In that kind of case, the exhaustion doctrine is satisfied (for want of any currently available state avenue for taking the federal claim to state court), but the prisoner has more serious problems to worry about. See Section VII. e. When a petition fails to satisfy the exhaustion requirement, the federal court does not

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disclaim jurisdictional power to act, but only postpones the exercise of jurisdiction. Ordinarily, the proper disposition of a premature petition is dismissal “without prejudice” to a renewed application for the writ, filed when no state court avenues for litigation remain open. Slayton v. Smith, 404 U.S. 53 (1971). When district courts abstain from considering the merits of federal claims, they typically stay federal proceedings pending state court litigation. See Chapter Six. Why the difference? In some habeas cases, a stay is the better near-term disposition in order to avoid conflicts with filing deadlines. See Section VIII (A), Notes 4-6. 2. Overlooking a Failure to Exhaust. A federal court “may” ignore a prisoner’s failure to exhaust, provided the court denies relief “on the merits.” 28 U.S.C. § 2254(b)(2). Is that a good policy? If federal courts were to disregard prisoners’ failure to exhaust routinely, wouldn’t they deny state courts any opportunity to consider the claims in question and therefore sacrifice the policies that explain the exhaustion doctrine in the first place? Consider that in some instances a claim is so frivolous that there is no chance that the state courts would sustain it, and it seems wasteful for a federal court to dismiss for failure to exhaust and thus to condemn both prisoners and state courts to futile litigation. The respondent may ask a federal court to overlook a prisoner’s failure to satisfy the exhaustion doctrine and thus submit a claim for federal adjudication immediately. Since exhaustion is not jurisdictional, a waiver is ordinarily acceptable. But see 28 U.S.C. § 2254(b)(3) (providing that such a waiver must be stated “expressly” and that the respondent will not otherwise be “deemed to have waived the exhaustion requirement or be estopped from reliance” on it). The Supreme Court has recognized that state’s attorneys may be overanxious to surrender the state courts’ opportunity to take the first crack at federal claims. Accordingly, a district court may insist on exhaustion when the interests of state courts in adjudicating claims are paramount. Granberry v. Greer, 481 U.S. 129 (1987). 3. The “Fair Presentation” Requirement. It’s sensible enough that a prisoner shouldn’t be able to press one claim in state court and another in federal court. But beyond that, how seriously should we take the requirement that federal claims must be “fairly presented” in state court? Notice that, in Reese, Justice Breyer postponed consideration of the prisoner’s last argument—i.e., that he had satisfied the exhaustion requirement by pressing an ineffective assistance claim under the state constitution, because state and federal standards were identical. Wasn’t that argument attractive? Does anyone really think the justices of the Oregon Supreme Court are unaware that they have made federal and state standards for ineffective assistance congruent? 4. Available State Opportunities. In Reese, Justice Breyer declined to adopt an understanding of the exhaustion doctrine that would have encouraged state appellate courts to look beyond a prisoner’s petition for discretionary review. Shouldn’t state courts have to do their homework? Consider that the point of discretionary review is to let appellate courts zip through most petitions in search of the few that raise especially important or novel points warranting attention. The Supreme Court itself manages its docket in that way. Breyer evidently thought it made sense for the Oregon Supreme Court to follow suit and didn’t want to undermine the state court’s practice by attaching adverse federal consequences. But wouldn’t it have made more sense to hold that state prisoners need not seek discretionary review in the state’s highest court in order to

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satisfy the exhaustion doctrine? The Court rejected that option in O’Sullivan v. Boerckel, 526 U.S. 838 (1999). Writing for the Court, Justice O’Connor found the language of the statute controlling:

Section 2254(c) provides that a habeas petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented.” . . . [A] petition for discretionary review in Illinois’ Supreme Court is a normal, simple, and established part of the State’s appellate review process. In the words of the statute, state prisoners have “the right . . . to raise” their claims through a petition for discretionary review in the State’s highest court. Granted, as Boerckel contends, . . . he has no right to review in the Illinois Supreme Court, but he does have a “right . . . to raise” his claims before that court. That is all § 2254(c) requires. . . .

According to Boerckel, Illinois’ appellate review procedures make the intermediate appellate courts the primary focus of the system; all routine claims of error are directed to those courts. The Illinois Supreme Court, by contrast, serves only to answer “questions of broad significance.” Boerckel’s view of Illinois’ appellate review process derives from Ill. Sup. Ct. Rule 315(a). He reads this Rule to discourage the filing of petitions raising routine allegations of error and to direct litigants to present only those claims that meet the criteria defined by the Rule. . . . The better reading of Rule 315(a) is that the Illinois Supreme Court has the opportunity to decide which cases it will consider on the merits. . . . By requiring state prisoners to give the Illinois Supreme Court the opportunity to resolve constitutional errors in the first instance, the rule we announce today serves the comity interests that drive the exhaustion doctrine.

According to Boerckel, because the Illinois Supreme Court has announced (through Rule 315(a)) that it does not want to hear routine allegations of error, a rule requiring state prisoners to file petitions for review with that court offends comity by inundating the Illinois Supreme Court with countless unwanted petitions. . . . This point, of course, turns on Boerckel’s interpretation of Rule 315(a), an interpretation . . . we do not find persuasive. Nor is it clear that the rule we announce today will have the effect that Boerckel predicts. . . .

We acknowledge that the rule we announce today—requiring state prisoners to file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State—has the potential to increase the number of filings in state supreme courts. We also recognize that this increased burden may be unwelcome in some state courts because the courts do not wish to have the opportunity to review constitutional claims before those claims are presented to a federal habeas court. . . . In this regard, we note that nothing in our decision today requires the exhaustion of any specific state remedy when a State has provided that that remedy is unavailable.

a. Is Justice O’Connor’s analysis satisfying? Was she simply bound by the explicit text of § 2254(c)? She insisted that the rationales for the exhaustion doctrine are served by requiring

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prisoners to pursue discretionary review in the state’s highest court and explicitly rejected the prisoner’s argument that precisely the opposite is true. In dissent, Justice Breyer set out statistics demonstrating that state courts with discretionary control of their dockets actually accept an extremely small percentage of cases for consideration. Breyer lamented that “these courts must now consider additional petitions for review of criminal cases, which petitions will contain many claims raised only to preserve a right to pursue those claims in federal habeas proceedings. The result will add to the burdens of already overburdened state courts and delay further a criminal process that is often criticized for too much delay. . . .” Wasn’t Justice Breyer right? b. In a concurring opinion, Justice Souter argued that prisoners are still “free to skip” discretionary review in a state appellate court if the state “has identified the procedure as outside the standard review process and has plainly said that it need not be sought for the purpose of exhaustion.” Can that be right? A state can eliminate discretionary review as an “available” avenue for convicts raising federal claims regarding their custody, but can a state leave discretionary review in place and unilaterally relieve prisoners of the obligation to pursue it by simply stating (however “plainly”) that the federal exhaustion doctrine doesn’t require it? c. A prisoner who raises a federal claim in an application for discretionary review in state court is not necessarily home free. The Court held in Castille v. Peoples, 489 U.S. 346 (1989), that a prisoner who had presented a federal claim exclusively in an application for discretionary review had not satisfied the exhaustion doctrine. Writing for the Court, Justice Scalia explained that the working assumption is that most applications for discretionary review will be denied summarily because they raise no special issues warranting the state court’s attention. So raising a federal claim only in an application for discretionary review does not count as “fair presentation.” That makes sense, doesn’t it? Where a state court system generally attends to run-of-the-mine cases on first appeal as of right (typically in intermediate courts of appeal), prisoners ought to present their federal claims at that level, and it shouldn’t suffice if they file petitions for discretionary review. Then again, if Justice Scalia was right in Castille, then isn’t Boerckel inconsistent? Or does it make sense to say that an application for discretionary review is required but insufficient standing alone? 5. Implications. You begin to understand how exhausting the exhaustion doctrine can be. A prisoner is required to pursue any state court mechanism for litigating a federal claim that is “available” within the meaning of § 2254(c). According to Boerckel, that means any “normal, simple, and established” part of the state’s process. There will be cases in which a pro se petitioner will find it hard to tell whether a state court avenue is available in the necessary sense. If a prisoner goofs, there will be a price to pay. If he erroneously thinks that some procedure must be followed, his march toward federal court will be needlessly delayed. If he erroneously thinks that an avenue need not be pursued, his progress will be delayed still more—when the federal court dismisses his federal petition as premature and he must exhaust the state procedure he skipped over, after all. If he employs an available state court mechanism, but fails to state his claim with sufficient specificity, yet again he will suffer dismissal in federal court and be forced to return to state court for another try. In practice, a prisoner’s mistakes regarding the exhaustion requirement may not merely postpone, but may foreclose, federal habeas adjudication. By the time a federal court makes the determination that the prisoner had not satisfied the exhaustion doctrine at the time he filed his federal petition, the state court door that was previously open will

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almost certainly have closed—and the prisoner’s claim will probably be procedurally barred. See Section VII. Moreover, if the prisoner suffers dismissal of his federal petition on exhaustion grounds, a future federal petition may be independently foreclosed as untimely. See Section VIII (A), Note 6. 6. Pre-Trial Cases. The exhaustion doctrine typically requires the defendant in a state criminal prosecution to raise a federal claim at trial and on direct review in state court. This doctrine thus complements the law of removal and the Younger abstention doctrine. See Chapters Three and Six. Generally speaking, federal courts usually decline to interfere with ongoing state prosecutions for any of several overlapping reasons: because there is no general statute authorizing removal on the basis of a federal defense, because federal injunctive or declaratory relief is inappropriate while pending state proceedings provide an opportunity for litigating federal claims, and because a petition for a writ of habeas corpus is premature when ostensibly effective state court avenues for litigation are available and have yet to be exhausted. a. The prisoner in Pitchess v. Davis advanced a claim that ordinarily would have to be raised at trial and on direct review. He contended, however, that since he had presented that claim to the state appellate courts prior to trial, he was free to proceed in federal court immediately. He lost on the ground that the vehicle he used in state court (the writ of prohibition) was not (to use Boerckel’s language) a “normal, simple, and established part of the State’s appellate review process.” When the state appellate courts dismissed the prisoner’s applications for that old writ, they probably only meant that he had knocked at the wrong door and that he should raise his claim at trial in the ordinary course. The Supreme Court declined to treat dismissal of the applications for a writ of prohibition as a denial of the prisoner’s claim on the merits, which, of course, would have satisfied the exhaustion doctrine. b. Notice the Court’s footnote reference to Younger v. Harris. Don’t you think that if the justices had been persuaded that the prisoner had exhausted state procedures, they would have held in the next breath that his federal habeas petition still must be dismissed on the independent basis that Younger abstention would supply? Consider that states might hesitate to allow pre-trial appellate court review of federal issues if, in consequence, they surrendered the protection that abstention ordinarily gives to pending state criminal proceedings. Moreover, if a federal court abstains notwithstanding satisfaction of the exhaustion doctrine, the prisoner may prevail at trial or on direct review on some other basis, obviating any need for a federal habeas court to examine the claim the prisoner litigated in state court prior to trial. c. There are cases in which state prisoners can seek federal habeas corpus relief before trial. In Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), for example, the prisoner contended that state authorities had denied him a speedy trial. That claim could be addressed in federal court without waiting for further proceedings in state court. The point of the prisoner’s complaint in federal court was that state authorities were dragging their feet. Similarly, if a prisoner claims that a state criminal trial would itself constitute double jeopardy, it follows that the trial is not an “available” and “effective” means of pressing that claim. Arizona v. Washington, 434 U.S. 497 (1978). Then again, in the rare case in which the exhaustion doctrine does not require raising a federal claim at trial and on direct review, the prisoner must exhaust any “normal, simple, and established” pre-trial opportunities for litigating the claim in state court.

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7. State Postconviction Proceedings. In many instances, prisoners must also engage any state postconviction procedures available after their convictions are affirmed on direct review. Postconviction petitions and motions take various forms. Typically, they are filed in the trial court in which a conviction was obtained, seeking correction of fundamental errors that were not cured at trial or on direct review—including errors of constitutional moment. The need to employ state postconviction processes typically turns on the nature of the claim in question. A prisoner who advances a claim that can be determined on the basis of the record made at trial can usually satisfy the exhaustion doctrine by presenting the claim to the highest state court on direct review. A prisoner who presses a claim that can be determined only if the record is expanded typically must file a postconviction petition or motion at the trial-court level, where an evidentiary hearing may be available. If the petition or motion for postconviction relief is denied at that level, the prisoner must pursue any available avenue for obtaining appellate review in the state appellate courts—all the way to the highest state court (even if that court’s jurisdiction is discretionary). 8. The United States Supreme Court. The exhaustion doctrine has only to do with state opportunities for litigation. Prisoners need not petition the Supreme Court of the United States for review before they apply for habeas relief in a federal district court. Fay v. Noia, 372 U.S. 391, 435 (1963). If a prisoner files a certiorari petition and review is denied (as is usually the case), the Supreme Court’s disposition has no effect on later habeas proceedings at the district court level. If, however, the Supreme Court accepts a case for review and determines the merits of the prisoner’s claim, that decision does foreclose a later habeas application in a district court. 28 U.S.C. § 2244(c). 9. Mixed Petitions. The Lundy case illustrates the complications that can arise when a habeas petitioner advances multiple federal claims. It’s entirely sensible and desirable that prisoners should bundle all their claims together for disposition at once. Yet the exhaustion doctrine is claim-specific, and in multiple-claim cases different claims are often ready for federal adjudication at different times. Since it’s not always easy to tell whether the exhaustion doctrine has been satisfied with respect to a claim, it’s common for prisoners to file mixed petitions, i.e., petitions containing at least one claim for which there is still an available litigation avenue in state court. Is Justice O’Connor’s response to mixed petitions satisfying? The principal rule is that a mixed petition must be dismissed in its entirety—in order to discourage prisoners from filing a federal petition until all claims are ready to go together. Yet once a prisoner is alerted to the exhaustion doctrine problem with one or more claims, he has options. a. The prisoner can accept dismissal of the entire mixed petition, pursue available state court litigation opportunities for the claims that are premature, and then return to federal court when he has satisfied the exhaustion doctrine with respect to all claims. That option necessarily defers federal adjudication of the claims that are currently ready for consideration. But it holds out the promise that all claims will ultimately receive federal attention. If the prisoner’s initial petition is dismissed without prejudice under Lundy, a second petition (filed after the prisoner has satisfied the exhaustion requirement with respect to all claims) is not subject to dismissal under the rules governing second or successive applications for federal relief—even if it includes new claims that were not contained in the original petition. Slack v. McDaniel, 529 U.S. 473, 485-89 (2000).

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b. Alternatively, the prisoner can abandon any claims that are not yet ready and proceed with claims the state courts have previously had an opportunity to address. That option, too, has costs. Justice O’Connor said that a prisoner who strips premature claims out of a petition runs the “risk” that those claims will be foreclosed, if and when they are renewed in a subsequent federal habeas application. The Supreme Court has said nothing to the contrary since Lundy. See Slack, 529 U.S. at 487 (repeating the warning in Lundy without elaboration). At the time Lundy was decided, Rule 9(b) disallowed second or successive petitions held to be an “abuse of the writ.” Since then, even less forgiving statutory tests have replaced that standard. See Section VIII (D). What do you think? Should a prisoner who goes ahead with claims that are ready for federal adjudication forfeit the chance to press claims that must be postponed to allow for further litigation in state court? c. Consider Justice Stevens’ perspective in Lundy. As federal habeas corpus developed into an instrument by which state prisoners could challenge state criminal convictions, there was pressure to adopt ever more exacting and complicated procedural rules to balance federal and state interests—leading to rules like the one in Lundy, which (in Stevens’ view) would likely squander resources by stringing out litigation and then frustrate federal enforcement of federal rights into the bargain. Isn’t Stevens right, by the way, that the inefficiencies that Justice Blackmun noted will be exacerbated when the “total exhaustion” rule is enforced on appeal by circuit courts (or in the Supreme Court itself)? Would it make more sense to let federal judges manage habeas corpus in general, and the exhaustion doctrine in particular, in their discretion? What are the pros and cons of rules, on the one hand, and discretion, on the other? Who gets to decide which is better in this context? In Lundy, at least, Justice O’Connor explained that the habeas statutes didn’t address mixed petitions and that Congress had probably never thought of the problems they present. So the Court itself assumed responsibility for meeting those problems and did so by giving federal judges a rule to follow. 10. Interjurisdictional Cases. A prisoner serving a sentence in one state (call it the “serving” state) may seek federal habeas relief with respect to a conviction or sentence in another state. Law enforcement authorities in the other state (call it the “demanding” state) typically lodge a “detainer” with the warden in the serving state, explaining that they wish to take the prisoner into custody when he is released in order that he can be made to serve the sentence in the demanding state. The detainer, in turn, may affect the prisoner’s near-term treatment in the serving state. For example, the serving state warden may conclude that the prisoner’s prospect of future punishment in the demanding state makes him an escape risk and thus may subject him to closer supervision. Accordingly, the prisoner may wish to file a habeas petition in a federal court in the serving state, challenging the custodial effects of the detainer. In that event, the prisoner must first exhaust any avenues there may be for pressing his federal claim in the courts of the serving state. Nelson v. George, 399 U.S. 224, 229 (1970). Consider, however, that the prisoner’s federal claim touching the detainer and its consequences actually goes to the validity of the sentence awaiting him in the demanding state. It makes little sense for the courts of the serving state to undertake an examination of legal proceedings in the courts of a sister state, so the prisoner is typically entitled to challenge the demanding state sentence straightforwardly by filing a habeas petition in a federal court in the demanding state. The Court held in Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973), that in these circumstances a district court outside the district of confinement has jurisdiction to entertain a habeas petition directed to

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the appropriate demanding state officer. See Section I (B), Note 7. But if the prisoner chooses to seek federal habeas relief in the demanding state, he is obliged first to exhaust demanding state opportunities for litigating his federal claim. 11. Death Penalty Cases. The exhaustion doctrine is generally understood to promote the interests of the states and state courts at a sacrifice to state prisoners. True, prisoners may obtain relief via the state court litigation they are required to undertake (and might otherwise forsake). Yet in the run of cases the exhaustion doctrine primarily constitutes an imposition on prisoners who want to press their federal claims in federal court. Federal court adjudication is postponed and, with it, any chance that federal courts will award relief that leads to release. The calculus is arguably different in cases involving prisoners under sentence of death. Chief Justice Rehnquist once offered this assessment: A prisoner facing death “does not need to prevail on the merits in order to accomplish his purposes; he wins temporary victories by postponing a final adjudication.” Remarks of the Chief Justice, ABA Mid-Year Meeting (Feb. 6, 1989). There is intense disagreement about this. Yet concerns that death row prisoners misuse litigation as a delaying device are often reflected in habeas corpus law. That’s true here, with respect to the exhaustion doctrine. A provision in Chapter 154, 28 U.S.C. § 2264, provides as follows:

(a) Whenever a State prisoner under capital sentence files a petition for habeas corpus relief to which this chapter applies, the district court shall only consider a claim or claims that have been raised and decided on the merits in the State courts, unless the failure to raise the claim properly is— (1) the result of State action in violation of the Constitution or laws of the United States; (2) the result of the Supreme Court’s recognition of a new Federal right that is made retroactively applicable; or (3) based on a factual predicate that could not have been discovered through the exercise of due diligence in time to present the claim for State or Federal post-conviction relief. (b) Following review subject to subsections (a), (d), and (e) of section 2254, the court shall rule on the claims properly before it.

a. The first sentence in subsection (a) states as a general rule that a court entertaining a

habeas corpus petition from a prisoner on death row can consider only claims that were previously “raised and decided on the merits” in state court. Is it conceivable that, in death penalty cases subject to this provision, Congress means to foreclose federal adjudication of claims the state courts failed to address, even if those claims were fairly presented to them in compliance with the exhaustion doctrine? That would expedite federal proceedings—that is, federal proceedings on other claims. If subsection (a) were read so literally, wouldn’t state courts have a perverse incentive to ignore the very federal claims the exhaustion doctrine is supposed to ensure they have the chance to handle? b. Paragraphs (1), (2), and (3) of subsection (a) have to do with procedural default in state court. See Section VII. If the court determines that a claim is not barred under one of those headings, subsection (b) instructs the court to review the claim subject to subsections (a), (d), and (e) of § 2254. Subsections (b) and (c) of § 2254, which codify the exhaustion doctrine, are not mentioned. Is it conceivable that Congress means to jettison the exhaustion requirement entirely in this context—in the interests of speeding death penalty cases through the federal courts?

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Understand the implications of that interpretation: District courts in capital cases controlled by § 2264 would be neither obliged nor permitted to enforce the exhaustion requirement, even if the respondent asks that the state courts be given the chance to consider a prisoner’s claims. Cf. Lindh v. Murphy, 521 U.S. 320, 333-334 n.7 (1997) (noting this possibility).

____________________ VII. Procedural Default

Wainwright v. Sykes

433 U.S. 72 (1977)

Justice REHNQUIST delivered the opinion of the Court. We granted certiorari to consider the availability of federal habeas corpus to review a state convict’s claim that testimony was admitted at his trial in violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), a claim which the Florida courts have previously refused to consider on the merits because of noncompliance with a state contemporaneous-objection rule. . . . At no time during the trial . . . was the admissibility of any of respondent’s statements challenged by his counsel on the ground that respondent had not understood the Miranda warnings. . . . Respondent appealed his conviction, but apparently did not challenge the admissibility of the inculpatory statements. . . . [In state postconviction proceedings, he] challenged the statements made to police on grounds of involuntariness. Having failed in the Florida courts, respondent initiated the present action under 28 U.S.C. § 2254, asserting the inadmissibility of his statements by reason of his lack of understanding of the Miranda warnings. . . . [The district court reached the merits and awarded relief; the circuit court affirmed]. . . . For more than a century since the 1867 amendment, this Court has grappled with the relationship between the classical common-law writ of habeas corpus and the remedy provided in . . . § 2254. Sharp division within the Court has been manifested on more than one aspect of the perplexing problems which have been litigated in this connection. [The precedents illustrate] . . . this Court’s historic willingness to overturn or modify its earlier views of the scope of the writ, even where the statutory language authorizing judicial action has remained unchanged. . . . The adequacy of . . . an independent state procedural ground to prevent federal habeas review of the underlying federal issue has been [controversial] . . . In Fay v. Noia, 372 U.S. 391 (1963), [t]his Court held that [a] petitioner [who had failed to press a federal claim on appeal in state court] was nonetheless entitled to raise the claim in federal habeas. . . . , [because the adequate and independent state ground doctrine applies only to this Court’s appellate jurisdiction.] . . . . As a matter of comity but not of federal power, the Court acknowledged “a limited discretion in the federal judge to deny relief . . . to an applicant who had deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.”. . . In so stating, the Court made clear that the waiver must be . . . “an intentional relinquishment or abandonment of a known right or privilege.” . . .

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A decade later we decided Davis v. United States, 411 U.S. 233 (1973), in which a federal prisoner’s application under 28 U.S.C. § 2255 sought for the first time to challenge the makeup of the grand jury which indicted him. . . .We . . . held that F.R. Crim. P. 12(b)(2) . . . rather than the Fay v. Noia concept of waiver, should pertain in federal habeas as on direct review. [W]e concluded that review of the claim should be barred on habeas, as on direct appeal, absent a showing of cause for the noncompliance and some showing of actual prejudice resulting from the alleged constitutional violation. Last Term, in Francis v. Henderson, 425 U.S. 536 (1976), the rule of Davis was applied to the parallel case of a state procedural requirement that challenges to grand jury composition be raised before trial. . . . The Davis cause-and-prejudice standard was thus incorporated directly into the body of law governing the availability of federal habeas corpus review. To the extent that the dicta of Fay v. Noia may be thought to have laid down an all-inclusive rule rendering state contemporaneous-objection rules ineffective to bar review of underlying federal claims in federal habeas proceedings absent a “knowing waiver” or a “deliberate bypass” of the right to so object its effect was limited by Francis, which applied a different rule and barred a habeas challenge to the makeup of a grand jury. . . . Respondent [the prisoner] first contends that any discussion as to the effect that noncompliance with a state procedural rule should have on the availability of federal habeas is quite unnecessary because in his view Florida did not actually have a contemporaneous-objection rule. . . . We . . . conclude that Florida procedure did, consistently with the United States Constitution, require that respondent’s confession be challenged at trial or not at all, and thus his failure to timely object to its admission amounted to an independent and adequate state procedural ground which would have prevented direct review here. . . . We thus come to the crux of this case. Shall the rule of Francis v. Henderson, . . . barring federal habeas review absent a showing of “cause” and “prejudice” attendant to a state procedural waiver, be applied to a waived objection to the admission of a confession at trial? . . . We answer that question in the affirmative. . . . [S]ince Brown v. Allen, it has been the rule that the federal habeas petitioner who claims he is detained pursuant to a final judgment of a state court in violation of the United States Constitution is entitled to have the federal habeas court make its own independent determination of his federal claim, without being bound by the determination on the merits of that claim reached in the state proceedings. This rule of Brown v. Allen is in no way changed by our holding today. Rather, we deal only with contentions of federal law which were not resolved on the merits in the state proceeding due to respondent’s failure to raise them there as required by state procedure. . . . The contemporaneous-objection rule . . . deserves greater respect than Fay gives it, both for the fact that it is employed by a coordinate jurisdiction within the federal system and for the many interests which it serves in its own right. A contemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding. It enables the judge who observed the demeanor of those witnesses to make the factual determinations necessary for properly deciding the federal constitutional question. While [federal habeas courts give] deference to . . . such determinations made by state courts, the determinations themselves are less apt to be made in the first instance if there is no contemporaneous objection to the admission of the evidence on

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federal constitutional grounds. . . . A contemporaneous-objection rule may lead to the exclusion of the evidence objected to, thereby making a major contribution to finality in criminal litigation. Without the evidence claimed to be vulnerable on federal constitutional grounds, the jury may acquit the defendant, and that will be the end of the case; or it may nonetheless convict the defendant, and he will have one less federal constitutional claim to assert in his federal habeas petition. . . . If the state trial judge admits the evidence in question after a full hearing, the federal habeas court . . . will gain significant guidance from the state ruling in this regard. We think that the rule of Fay v. Noia, broadly stated, may encourage “sandbagging” on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off. The refusal of federal habeas courts to honor contemporaneous-objection rules may also make state courts themselves less stringent in their enforcement. Under the rule of Fay v. Noia, state appellate courts know that a federal constitutional issue raised for the first time in the proceeding before them may well be decided in any event by a federal habeas tribunal. Thus, their choice is between addressing the issue notwithstanding the petitioner’s failure to timely object, or else face the prospect that the federal habeas court will decide the question without the benefit of their views. The failure of the federal habeas courts generally to require compliance with a contemporaneous-objection rule tends to detract from the perception of the trial of a criminal case in state court as a decisive and portentous event. A defendant has been accused of a serious crime, and this is the time and place set for him to be tried by a jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible all issues which bear on this charge should be determined in this proceeding: the accused is in the court-room, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society’s resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification. We believe the adoption of the Francis rule in this situation will have the salutary effect of making the state trial on the merits the “main event,” so to speak, rather than a “tryout on the road” for what will later be the determinative federal habeas hearing. . . . If a criminal defendant thinks that an action of the state trial court is about to deprive him of a federal constitutional right there is every reason for his following state procedure in making known his objection. The “cause”-and-“prejudice” exception of the Francis rule will afford an adequate guarantee, we think, that the rule will not prevent a federal habeas court from adjudicating for the first time the federal constitutional claim of a defendant who in the absence of such an adjudication will be the victim of a miscarriage of justice. Whatever precise content may be given those terms by later cases, we feel confident in holding without further elaboration that they do not exist here. Chief Justice BURGER, concurring.

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I write separately to emphasize one point which, to me, seems of critical importance to this case. In my view, the “deliberate bypass” standard enunciated in Fay v. Noia . . . was never designed for, and is inapplicable to, errors even of constitutional dimension alleged to have been committed during trial. Justice BRENNAN, with whom Justice MARSHALL joins, dissenting. [T]he deliberate-bypass standard announced in Fay v. Noia . . . has played a central role in efforts by the federal judiciary to accommodate the constitutional rights of the individual with the States’ interests in the integrity of their judicial procedural regimes. The Court today decides that this standard should no longer apply with respect to procedural defaults occurring during the trial of a criminal defendant. In its place, the Court adopts the two-part “cause”-and-“prejudice” test originally developed in Davis . . . [T]oday’s decision makes no effort to provide concrete guidance as to the content of those terms. More particularly, left unanswered is the thorny question that must be recognized to be central to a realistic rationalization of this area of law: How should the federal habeas court treat a procedural default in a state court that is attributable purely and simply to the error or negligence of a defendant’s trial counsel? . . . The threatened creation of a more “airtight system of forfeitures” would effectively deprive habeas petitioners of the opportunity for litigating their constitutional claims before any forum and would disparage the paramount importance of constitutional rights in our system of government. Such a restriction of habeas corpus jurisdiction should be countenanced, I submit, only if it fairly can be concluded that Fay’s focus on knowing and voluntary forfeitures unduly interferes with the legitimate interests of state courts or institutions. The majority offers no suggestion that actual experience has shown that Fay’s bypass test can be criticized on this score. . . . Florida, of course, can point to a variety of legitimate interests in seeking allegiance to its reasonable procedural requirements, the contemporaneous-objection rule included. . . . The question remains, however, whether any of these policies or interests are efficiently and fairly served by enforcing both intentional and inadvertent defaults pursuant to the identical stringent standard. I remain convinced that when one pierces the surface justifications for a harsher rule posited by the Court, no standard stricter than Fay’s deliberate-bypass test is realistically defensible. Punishing a lawyer’s unintentional errors by closing the federal courthouse door to his client is both a senseless and misdirected method of deterring the slighting of state rules. It is senseless because unplanned and unintentional action of any kind generally is not subject to deterrence; and, to the extent that it is hoped that a threatened sanction addressed to the defense will induce greater care and caution on the part of trial lawyers, thereby forestalling negligent conduct or error, the potential loss of all valuable state remedies would be sufficient to this end. . . . And it is a misdirected sanction because even if the penalization of incompetence or carelessness will encourage more thorough legal training and trial preparation, the habeas applicant, as opposed to his lawyer, hardly is the proper recipient of such a penalty. . . .

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Of course, it is regrettable that certain errors that might have been cured earlier had trial counsel acted expeditiously must be corrected collaterally and belatedly. I can understand the Court’s wistfully wishing for the day when the trial was the sole, binding and final “event.” . . . But it should be plain that in the real world, the interest in finality is repeatedly compromised in numerous ways that arise with far greater frequency than do procedural defaults. . . . [M]ost courts . . . traditionally have resisted any realistic inquiry into the competency of trial counsel. . . . [But if] the scope of habeas jurisdiction previously governed by Fay v. Noia is to be redefined so as to enforce the errors and neglect of lawyers with unnecessary and unjust rigor, the time may come when conscientious and fairminded federal and state courts . . . will have to reconsider whether they can continue to indulge the comfortable fiction that all lawyers are skilled or even competent craftsmen in representing the fundamental rights of their clients.

Notes on Procedural Default in State Court

1. Reinforcing State Policy. The doctrine governing procedural default in state court is related to, yet distinguishable from, the exhaustion doctrine. Prisoners satisfy the exhaustion requirement if, at the time they file a federal habeas petition, there are no available and effective state court opportunities to litigate their federal claims. See Section VI, Note 1(d). It may be that the state courts are not currently open only because prisoners or their lawyers committed procedural default at some earlier stage of state proceedings. Where that is true, the exhaustion requirement is satisfied, but for a reason that typically bars federal adjudication entirely. The federal disposition in the case of procedural default in state court is not postponement, but dismissal. There is no general statute governing the effect federal courts should give to procedural default in state court. But see 28 U.S.C. § 2264 (governing death penalty cases arising in states that trigger Chapter 154); § 2254(e)(2) (governing default with respect to fact-finding in state court); § 2244(b)(2) (governing second or successive federal petitions advancing claims not previously raised). The Supreme Court has fashioned its own body of doctrinal rules for the occasion. Those rules have shifted with the ebb and flow of the Court’s enthusiasm for habeas corpus.

a. In the main, the idea is not that federal courts have their own notions about the way prisoners should litigate federal claims in state court and that, if prisoners fail to proceed in that manner, they lose the opportunity they would otherwise have to seek federal habeas corpus relief. Instead, federal default doctrine reinforces state procedural rules and, to that end, gives effect to forfeitures the state courts impose for default as a matter of state law. Thus state law establishes the conditions that bring federal default doctrine into play. Consistently, if the state courts do not initially find a prisoner in default and refuse to consider a claim for that reason, but, instead, determine the claim on the merits, a federal district court will equally proceed to the merits (ceteris paribus). County Court of Ulster County v. Allen, 442 U.S. 140, 149 (1979).

b. Then again, we have O’Sullivan v. Boerckel, 526 U.S. 838 (1999), which requires prisoners to advance all their federal claims in a petition for discretionary review addressed to a state supreme court, even if a state rule encourages them to limit their arguments to particular kinds of claims. See Section VI, Note 4. By the time a federal court concludes that a prisoner failed to include a claim in a petition for discretionary review, the time for doing so will almost certainly have run out. So the question is no longer whether the exhaustion doctrine is satisfied;

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it is, because discretionary review in state court is no longer available. The question is rather whether the prisoner’s failure to pursue that avenue when it was available cuts off federal habeas corpus entirely. If so, then doesn’t the Boerckel rule foreclose a claim even though the prisoner violated no state procedural rule?

c. If states’ attorneys mean to contend that a claim is barred because of default, they must advance that contention in federal court or risk losing it. See Gray v. Netherland, 518 U.S. 152, 166 (1996). Federal jurisdiction is not at stake, so a federal district court has no obligation to raise the matter sua sponte. Trest v. Cain, 522 U.S. 87 (1997). Yet as in the case of the Teague doctrine, a district court (probably) commits no error by introducing the issue on its own initiative. Day v. McDonough, 126 S.Ct. ___ (2006); see Section III, Note 5. Does it make sense to treat an argument that a claim is procedurally barred as an affirmative defense? To leave it to the district court’s discretion whether to inject a default issue into a case? Recall that, by statute, states’ attorneys can forgo an argument that a claim is untimely under the exhaustion doctrine only by express waiver. See Section VI, Note 2. Why the difference? d. Recall the argument that § 2254(d) amounts to something very close to issue preclusion. See Section IV, Note 6(d). Does the default doctrine adopted in Sykes approach claim preclusion? After all, in most instances a federal claim is barred in federal court for the same reason the claim was foreclosed as a matter of state law in state court—namely, because it was not, but might have been, raised and adjudicated in previous state court proceedings. See Chapter Six. 2. Adequate State Grounds. In Frank v. Mangum and Brown v. Allen, the Court proceeded from the premise that the same adequate state ground doctrine that governs the Supreme Court’s appellate jurisdiction equally applies to the original jurisdiction exercised by district courts entertaining habeas corpus petitions. See Section II, Note 3(d). In an opinion for the Court in Fay v. Noia, 372 U.S. 391 (1963), however, Justice Brennan discarded the adequate state ground doctrine in habeas cases on the theory that the validity of a state judgment is not formally at issue. If a district court concludes that a prisoner’s claim is meritorious and awards habeas relief, the federal court does not (formally) upset the state conviction, but attends exclusively to the different (though obviously related) question of the prisoner’s further custody on the basis of that conviction. Is that analysis persuasive? Justice Rehnquist didn’t contest it in Sykes. He revived the adequate state ground doctrine for service in habeas corpus cases, but only by analogy to that doctrine’s operation in its own field, i.e., in cases reaching the Supreme Court on direct review. See Lambrix v. Singletary, 520 U.S. 518, 523 (1997). a. Notice that the application of the adequate state ground doctrine in habeas cases can improve some prisoners’ chances of obtaining a foothold in federal court. Consider the sequence in which a federal court takes the issues. At the outset, a federal district court must make the same assessments the Supreme Court makes when it determines whether a state judgment rests on an adequate state ground for purposes of direct review. The initial questions are matters of state law: There must be a state procedural rule requiring a prisoner to raise a federal claim in a particular way or at a particular time. The prisoner must have failed to comply with that rule. And, for that reason, the state courts must be unwilling to consider the claim. The first federal question is whether the state courts’ procedural disposition of the claim would constitute an adequate and independent state ground of decision that would defeat jurisdiction in the Supreme Court, if the case were before the Court on direct review. If the prisoner can

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persuade the district court that the procedural basis on which a state court rested was not adequate and independent in that sense, the district court can address the claim on the merits without more. The prisoner would have to show “cause” and “prejudice” only if the state procedural ground were adequate and independent, thus establishing the premise on which the Sykes rule operates. E.g., Lee v. Kemna, 534 U.S. 362 (2002). b. Notice, too, that the combination of procedural bar rules and § 2254(d) gives respondents an option. See Section IV. On the one hand, a respondent may argue that a previous state court decision rested on state procedural grounds in hopes that the federal court will agree, find that state ground adequate, reject the prisoner’s arguments regarding cause and prejudice, and decline to consider the merits of the claim. On the other, the respondent may contend that a state court adjudicated a claim on the merits in hopes that the federal court will agree, conclude that § 2254(d) is triggered, reject the prisoner’s arguments under paragraphs (1) and (2), and decline to issue federal habeas relief. 3. The “Deliberate Bypass” Rule. Both Justice Rehnquist and Justice Brennan used the term “waiver” loosely in Sykes. But there is a clear difference, isn’t there, between a genuine waiver, on the one hand, and a forfeiture, on the other? As Justice Rehnquist explained, a waiver is conventionally defined as “an intentional relinquishment or abandonment of a known right or privilege.” Accordingly, the “deliberate bypass” rule previously adopted in Fay v. Noia was a waiver standard. Under that rule, federal district courts could turn away claims only if prisoners had intentionally withheld them from the state courts “for strategic, tactical, or any other reasons.” By contrast, the “cause-and-prejudice” rule adopted in Sykes is a forfeiture standard. The default in state court need not have been a deliberate decision to withhold the claim, but may have occurred through ignorance or oversight. It is common to say that litigants waive any claims they do not raise properly according to applicable rules, but it is typically accurate to say that they forfeit claims that are not properly presented. Or, if you like, litigants who commit procedural default regarding a claim are treated as though they waived the claim. The result is the same, but the reason for that result is different. Litigants who waive a claim lose it out of respect for personal autonomy; litigants who forfeit a claim lose it for policy reasons thought to outweigh individual interests. a. The “deliberate bypass” rule was a waiver standard with a vengeance. Writing for the Court in Fay v. Noia, Justice Brennan explained that petitioners could be shut out of federal court only if they personally decided to forgo state court opportunities to advance federal claims. A “choice made by counsel not participated in by the petitioner” would “not automatically bar relief.” Taken literally, then, default could not foreclose federal habeas even if defense counsel deliberately withheld a claim for tactical purposes—unless his or her client was consulted and approved. Was that a sensible rule? Is it realistic to think that defense lawyers can consult with their clients in the heat of trial? If a lawyer does get a client’s agreement that a claim should be withheld, is it likely that a state’s attorney defending against a habeas corpus petition can prove it? Note Chief Justice Burger’s position on this in Sykes. Isn’t it pretty clear that the “deliberate bypass” rule, understood this way, foreclosed very few (if any) claims in federal habeas corpus? b. If the “deliberate bypass” rule seems extreme, what are the alternatives? One possibility would be to drop the requirement that the prisoner must have personally participated in a decision to withhold a federal claim, but still to require a deliberate decision by counsel.

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One might say, then, that state courts may decline to consider a claim that counsel failed to raise, but a federal court entertaining a habeas corpus petition will address the merits unless the default was intentional. That rule might encourage state courts to adopt a similar position; knowing that a claim will be examined in federal court anyway, the state courts might hesitate to surrender the chance to treat it themselves first. Would that be a bad result? In Sykes, Justice Rehnquist said it would be an unjustifiable intrusion on state prerogatives. But state courts wouldn’t be required to adopt the federal standard for default. So long as they have a choice, where’s the imposition? c. In the event, the Court adopted a different alternative in Sykes—namely, the rule that a federal court will typically refuse to address a claim in light of default in state court, even if the default was the result of counsel’s ignorance or neglect. If the Fay v. Noia rule occupied one end of the spectrum, doesn’t the rule in Sykes careen to the other polar extreme, passing over at least one intermediate position that might have been selected? Did the Court think it would be too burdensome to require federal courts to distinguish between negligent and deliberate defaults by counsel? Is efficiency a sufficient basis for foreclosing some potentially meritorious claims that were not intentionally withheld from the state courts? 4. Sandbagging. Recall the concern that counsel may “sandbag” the state courts, i.e., counsel may deliberately withhold claims from the state courts and save them for federal habeas corpus later. Is sandbagging a serious problem demanding the severe response reflected in Sykes? Don’t defense lawyers have incentive enough to comply with state procedural rules in order to preserve the opportunity to press federal claims in state court? If default occurs, isn’t it likely that the explanation is negligence rather than calculated strategy? 5. What Counts as “Cause”? In the wake of Sykes, the Court set to work defining the terms of its new doctrine. Justice O’Connor explained in Murray v. Carrier, 477 U.S. 478 (1986), that petitioners can establish “cause” by showing that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” For example, cause can be shown: (1) if, at the time counsel might have advanced a claim in state court, the factual or legal basis for the claim was not “reasonably available”; (2) if state authorities interfered with counsel’s ability to comply with a rule, making compliance “impracticable”; or (3) if counsel’s failure to follow a procedural rule was so fundamentally incompetent and prejudicial as to constitute ineffective assistance in violation of the Federal Constitution. a. The first possibility mentioned in Carrier suggests a case in which, at the time a claim might have been advanced in state court, the claim would have been novel and thus unlikely to be successful. The prisoner may not have anticipated a change in the law that would render the claim meritorious, and even if he did foresee the necessary change, he shouldn’t be penalized for failing to press such a creative claim in state court where it would almost certainly be rejected. In an opinion for the Court in Reed v. Ross, 468 U.S. 1 (1984), Justice Brennan explained that cause may well be found in cases involving novel claims, else new and retroactively applicable rules of law would come to naught, because the petitioners in line to benefit from them would almost always be independently barred for default. In other cases, however, the Court has held that prisoners (and their lawyers) must be more prescient. They must exploit any basis they have to advance creative theories and have no cause for withholding a claim even if existing precedents make the effort futile (anywhere short of the Supreme Court itself). E.g., Bousley v.

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United States, 523 U.S. 614 (1998); Engle v. Isaac, 456 U.S. 107 (1982). Understand, moreover, that the Teague doctrine now typically bars habeas petitioners from pressing claims based on rules of federal law that were not well established when their cases were in state court, even if they did raise those claims properly at the time. See Section III. The Court might have chosen one policy or the other—either cutting off claims procedurally on the basis of default with respect to novel theories or foreclosing novel theories altogether. Did it make sense to choose both? b. When does interference by state officers constitute cause for default? In Amadeo v. Zant, 486 U.S. 214 (1988), the Court found cause for counsel’s failure to raise a jury discrimination claim at trial, because prosecutors had concealed crucial evidence supporting that claim and thus interfered with counsel’s ability to identify and advance the claim in compliance with state procedural rules. And in Strickler v. Greene, 527 U.S. 263 (1999), the Court found cause for counsel’s failure to request information from the prosecution, because the state had led counsel to believe that there was nothing to disclose. c. The most common arguments for cause rest on allegations that a prisoner’s lawyer was at fault. Recall Justice Brennan’s position that default in state court is typically due to counsel error and that, if federal habeas courts are no longer able to reach claims that counsel failed to raise, they will be called upon to examine prisoners’ complaints about their lawyers as an independent constitutional basis for habeas relief. Brennan seems clearly to have conceived that counsel error in failing properly to raise a federal claim must be distinct from counsel error constituting ineffective assistance in violation of the Constitution. So the policy choice was this: either federal courts should find cause for default with respect to a claim in state court if counsel failed to raise the claim out of inadvertence or neglect, or they should be more willing to conclude that counsel’s oversight constituted an independent constitutional violation. Was that the choice? 6. Ineffective Assistance. Justice O’Connor explained in Carrier that counsel’s failure to advance a claim (deliberate or not) counts as cause only if counsel’s behavior rises to the level of ineffective assistance in the constitutional sense: “So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington . . . , we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default.” The idea, O’Connor explained, is that the state bears responsibility for ensuring that the defense function meets minimal constitutional standards. Thus ineffective assistance qualifies as a factor “external to the defense” itself, much as would some other kind of interference ascribable to the state. Is that persuasive? Does it explain why only constitutionally deficient representation can generate cause? a. Doesn’t equating cause with ineffective assistance render the cause inquiry superfluous? The only prisoners who can rely on counsel error to overcome procedural default with respect to federal claims are prisoners who have no need to do so—namely, prisoners who can win federal habeas relief on the independent basis that their constitutional right to effective representation was violated in state court. Then again, a federal court can’t award habeas relief on an ineffective assistance claim that a state court adjudicated and rejected on the merits, unless the state decision fails one of the tests in § 2254(d). See Section IV. Justice O’Connor obviously wasn’t thinking (in 1986) that § 2254(d) would explain why petitioners who have ineffective assistance claims might not be entitled to relief on those claims alone and thus might

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use ineffective assistance only to establish cause for default regarding other claims. But now, with § 2254(d) in the game, does the equation of cause with ineffective assistance make more sense? b. There is no federal constitutional right to counsel in state postconviction proceedings. Accordingly, counsel’s failure to raise a claim at that stage of state proceedings (however foolish) cannot constitute cause. In Coleman v. Thompson, 501 U.S. 722 (1991), attorneys representing a prisoner under sentence of death in state postconviction proceedings filed a notice of appeal three days late. Because of that default, the state courts in Virginia refused to consider most of the prisoner’s federal claims. If the default had occurred earlier in the state process (when the Federal Constitution entitled the petitioner to the effective assistance of counsel), the lawyers’ error might have been the basis for finding cause. See Roe v. Flores-Ortega, 528 U.S. 470 (2000). As it was, the case did not fit into the hole that Carrier left open. c. Justice O’Connor also explained in Carrier that prisoners who argue ineffective assistance as the basis for cause must exhaust state court avenues for vindicating that claim. You see how this goes: A prisoner seeks federal habeas relief on the basis of a Miranda claim his lawyer did not raise in state court. The prisoner tries to overcome counsel’s default by showing that the lawyer’s failure to raise the Miranda claim amounted to ineffective assistance as a constitutional matter and thus cause. In order to advance that argument for cause in federal court, the prisoner must first present the state courts with the substantive claim that counsel’s conduct did not meet the constitutional standards established in Strickland v. Washington. d. In some states, a claim that defense counsel’s performance at trial was ineffective must be raised on direct review from a criminal conviction—even if the same attorney continues to represent the prisoner. That policy creates a dilemma, doesn’t it? It’s awkward, isn’t it (and unethical) for the attorney to take responsibility for making the case against his or her own trial performance? But if that is not done, state avenues for litigating an ineffective assistance claim won’t be exhausted—either for the straightforward purpose of obtaining relief on the basis of the Sixth Amendment or for purposes of establishing cause with respect to a different claim counsel failed to raise at trial. e. There is a real possibility that a claim that counsel performed ineffectively will itself be procedurally barred because it, too, wasn’t properly raised in state court. In an opinion for the Court in Edwards v. Carpenter, 529 U.S. 446 (2000), Justice Scalia explained that where that is true, the prisoner satisfies the exhaustion doctrine. See Note 1. But then the prisoner faces yet another procedural default problem. He must establish cause for failing to raise the ineffective assistance claim in state court, thus to put himself in a position to argue that the same violation of his right to effective assistance establishes cause, in turn, for failing to raise the separate claim (for example, a Miranda claim) that he wanted to raise in federal court in the first place. Justice Scalia explained that a prisoner in these circumstances might yet get his original claim (i.e., the Miranda claim) before a federal court by showing cause (as well as prejudice) on both levels. Is that likely? 7. What Counts as “Prejudice”? Prisoners who hope to avoid dismissal for procedural default typically must establish both cause and “prejudice.” The Court’s decisions in point have elided prejudice with the elements of substantive claims. a. The prisoner in United States v. Frady, 456 U.S. 152 (1982), challenged his conviction on the ground that jury instructions used at his trial were defective. Justice O’Connor explained

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that the prisoner could establish the necessary prejudice to overcome default with respect to that claim only if he proved that “the ailing instruction by itself so infected the entire trial that the resulting conviction violate[d] due process.” Writing for the Court in Banks v. Dretke, 540 U.S. 668 (2004), Justice Ginsburg explained that if the prisoner was successful in establishing both cause and prejudice, he would “at the same time” succeed in establishing the elements of his constitutional claim that prosecutors had failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Does it make sense to raise the procedural bar for advancing a constitutional claim so high that a prisoner must actually demonstrate that the claim is meritorious in order to clear it? b. The formulation of prejudice in Frady suggests that a prisoner must show that federal error affected the outcome in state court—the accuracy of the determination of guilt. Doesn’t that sound like the test for harmless error? See Section IV, Note 16. Does it make sense to have two tests for getting at essentially the same thing? Watch yourself. There may be more than two. Consider whether, defined this way, the prejudice described in Frady for default purposes approximates the Court’s formulation in Strickland for the “prejudice” element of substantive ineffective assistance claims. 8. Probable Innocence. The Court is confident that the “cause-and-prejudice” rule will typically capture cases in which a genuine miscarriage of justice would ensue if default were not excused. Nevertheless, Justice O’Connor said in Carrier that “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent,” a federal court can address the merits of a claim “even in the absence of a showing of cause.” O’Connor did not mention the independent matter of prejudice. Do prisoners who demonstrate “probable innocence” establish prejudice a fortiori? a. A safety valve for cases in which prisoners show probable innocence is hard to reconcile with the traditional understanding of habeas corpus or, for that matter, with federal jurisdiction generally. Virtually everyone agrees that it is for state courts (and juries) to determine whether defendants are guilty as charged and that federal courts should limit their purview to the different question whether the legal procedures by which state convictions are obtained comport with federal law. Nevertheless, isn’t there some appeal in the idea that genuine concerns about prisoners’ guilt should justify reaching legal claims that would otherwise be dismissed on procedural grounds? b. Even as the Court brooks some attention to actual innocence in habeas corpus cases, however, the Court plainly hesitates to invite petitioners to advance innocence arguments routinely. In an apparent effort to keep this last escape route within narrow bounds, the Court has stated the controlling test in some of the most Byzantine language in all the law of federal courts. Writing for the Court in Schlup v. Delo, 513 U.S. 298 (1995), Justice Stevens said that a prisoner who hopes to satisfy the “probable innocence” standard must “support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” On the basis of that evidence, the prisoner must show that “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” That is a severe standard. Is it possible that any prisoner could ever meet it? The Court concluded that the prisoner in House v. Bell, 126 S.Ct. ___ (2006), did meet it—on the basis of DNA and other

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forensic evidence that not only contradicted testimony at trial, but fortified the defense theory that someone else had committed the crime. c. In Sawyer v. Whitley, 505 U.S. 333 (1992), Justice Kennedy explained that the standard is different in cases in which prisoners contend that they were erroneously sentenced to death. In that context, a prisoner must show “by clear and convincing evidence that but for constitutional error, no reasonable juror would [have found the petitioner] eligible for the death penalty.” So prisoners in cases like Schlup (where the claim goes to the validity of a conviction) must make a showing that is stronger than what is needed to establish prejudice, but not so strong as what is required of prisoners in cases like Sawyer (where the claim goes exclusively to the validity of a death sentence). Why the difference? d. In Bousley v. United States, 523 U.S. 614 (1998), Chief Justice Rehnquist elaborated the “innocence” safety valve for cases in which prisoners attack pleas of guilty. The prisoner in Bousley (actually a federal convict proceeding under § 2255) initially pled guilty to a charge of using a firearm in connection with a drug offense—on the mistaken understanding that mere possession of a gun constituted “use.” Thereafter, the Supreme Court held that “use” demanded more active employment of a weapon. The prisoner then contended that his guilty plea was constitutionally deficient because he had been misinformed about the elements of the crime. He argued that his failure to insist on the correct interpretation of the statute should be excused, because he was actually innocent. He had not brandished a weapon or otherwise “used” one in the necessary way. Chief Justice Rehnquist acknowledged that the prisoner was entitled to make a showing of probable innocence if he could. But Rehnquist explained that the Government would be able to rebut the prisoner’s argument regarding his innocence with any additional (admissible) evidence of his guilt, even if that evidence had not been presented at the proceeding in which the guilty plea was taken. Moreover, Rehnquist anticipated that in some cases the Government may have withheld additional charges in connection with a plea agreement. Where that is so, the Government is entitled to introduce evidence that a prisoner is guilty of other crimes. If default is to be excused with respect to any claim, the prisoner must establish his probable innocence of all the offenses he was or might have been accused of committing. 9. Death Penalty Cases. Recall that § 2264, located in the optional Chapter 154, prescribes standards for handling procedural default in death penalty cases. See Section VI, Note 11. Under subsection (a) of that provision, a district court can consider a claim only if it was “raised and decided on the merits” in state court, “unless the failure to raise the claim properly” satisfies the standards in paragraphs (1), (2), or (3). Subsection (a) does not codify the Court’s default doctrine in so many words. But doesn’t it largely incorporate the Court’s illustrations of cause? a. Paragraph (1), which excuses default resulting from “State action in violation of the Constitution or laws of the United States,” may cover cases in which state authorities interfered with counsel’s ability to comply with state procedural rules. Does it also cover cases in which defense counsel’s default amounted to ineffective assistance as a constitutional matter? b. Paragraph (2), which excuses default resulting from “the Supreme Court’s recognition of a new Federal right that is made retroactively applicable,” seems to cover cases in which counsel couldn’t (or didn’t) anticipate the emergence of a novel aspect of federal law on which a claim could rest. Is a “new Federal right” the equivalent of a “new rule” of law within the meaning of Teague? And is a new right “made retroactively applicable” only if Teague allows a

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federal court to consider it? See Section III, Notes 3, 8-10; cf. Section VIII (A), Note 2; Section VIII (D), Note 3. c. Paragraph (3), which excuses default “based on a factual predicate that could not have been discovered through the exercise of due diligence in time to present the claim for State or Federal post-conviction relief,” probably covers cases in which counsel could not discover facts to support a more conventional claim. At least, that seems to be the meaning to be drawn from a formulation that, read literally, makes no sense at all. Presumably, the idea is that the claim itself (not a prisoner’s default with respect to the claim) is “based on a factual predicate that could not have been discovered” earlier. Apart from the apparent drafting glitch, what sense can we make of the requirement that the facts could not have been discovered in time to present the claim in either state or federal postconviction proceedings? Any prisoner who is in a position to invoke paragraph (3) has obviously discovered the facts he or she alleges will support a claim that was not addressed in state court—thus, by hypothesis, in time at least for the federal postconviction proceedings in which the prisoner is now engaged. d. Notice that § 2264(a) contains nothing like the ordinary requirement that prisoners must show prejudice (as well as cause). Nor does it explicitly capture the Court’s “probable innocence” safety valve. What do those omissions signify? Anything? e. Recall that the Court’s own default doctrine usually only reinforces state default rules. Yet § 2264(a) is not (expressly) contingent on state law in the same way and thus might be read to establish an entirely independent federal law of default that cuts off federal adjudication of federal claims whether or not the state courts refused, or would refuse, to consider them. Would that make sense? Consider in this vein that § 2264(a) refers (ambiguously) to claims that were not raised “properly” in state court. Does that suggest a state law definition of what counts as “proper.” See Section VIII (A), Note 5 (explaining that a “properly filed” state petition for purposes of § 2244(d)(2) is one that complies with state rules governing filing). 10. Challenges to Federal Convictions. Since procedural default doctrine rests so heavily on the comity that federal courts owe to the states, it is not self-evident that attacks on federal convictions pursuant to 28 U.S.C. § 2255 should be subject to these same rules. But Justice Rehnquist explained in Sykes that the “cause” and “prejudice” ideas initially appeared in Davis v. United States, 411 U.S. 233 (1973), a case involving a § 2255 motion. See Section II, Note 15. So it’s not really surprising, is it, that the default doctrine formulated in Sykes and elaborated in Carrier and other cases involving state prisoners also applies to cases in which federal prisoners seek § 2255 relief? See, e.g., Bousley v. United States, 523 U.S. 614 (1998). 11. Enhancement Claims. What if a prisoner contends not that the conviction that produced his current sentence is constitutionally invalid, but that the sentence he received was enhanced on the basis of a previous conviction that was? It does seem that a sentence based on an unconstitutional predicate is itself unconstitutional. But the Court is (understandably?) hesitant to permit convicts to challenge the validity of old criminal convictions. In Custis v. United States, 511 U.S. 485 (1994), the Court held that a federal convict usually cannot argue in his sentencing hearing that a prior conviction cannot lawfully influence his new sentence. In Daniels v. United States, 532 U.S. 374 (2001), the Court held that the same general rule applies where a federal convict attacks a sentence pursuant to § 2255. The prisoner in Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001), sought federal habeas relief on the

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ground that a state sentence imposed in 1990 had been enhanced on the basis of separate invalid state convictions in 1986. In an opinion for the Court, Justice O’Connor said this:

Coss is no longer serving the sentences imposed pursuant to his 1986 convictions, and therefore cannot bring a federal habeas petition directed solely at those convictions. Coss is, however, currently serving the sentence for his 1990 conviction. . . . Accordingly, Coss satisfies § 2254’s “in custody” requirement. . . . [The question here is whether the prior conviction] may be subject to challenge in the attack upon the [current] senten[ce] which it was used to enhance.” . . . We now extend [the] holding [in Daniels] to cover § 2254 petitions directed at enhanced state sentences.

We grounded our holding in Daniels on considerations relating to the need for finality of convictions and ease of administration. . . . Once a judgment of conviction is entered in state court, it is subject to review in multiple forums. . . . A defendant may choose not to seek review of his conviction within the prescribed time. Or he may seek review and not prevail, either because he did not comply with procedural rules or because he failed to prove a constitutional violation. In each of these situations, the defendant’s conviction becomes final and the State that secured the conviction obtains a strong interest in preserving the integrity of the judgment. . . . Other jurisdictions acquire an interest as well, as they may then use that conviction for their own recidivist sentencing purposes. . . .

An additional concern is ease of administration of challenges to expired state convictions. Federal courts sitting in habeas jurisdiction must consult state court records and transcripts to ensure that challenged convictions were obtained in a manner consistent with constitutional demands. As time passes, and certainly once a state sentence has been served to completion, the likelihood that trial records will be retained by the local courts and will be accessible for review diminishes substantially. . . .

[W]e recognize an exception to the general rule for § 2254 petitions that challenge an enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v. Wainwright, 372 U.S. 335 (1963). . . . [T]he “failure to appoint counsel for an indigent [is] a unique constitutional defect . . . ris[ing] to the level of a jurisdictional defect,” which therefore warrants special treatment among alleged constitutional violations. . . . Moreover, allowing an exception for Gideon challenges does not implicate our concern about administrative ease, as the “failure to appoint counsel . . . will generally appear from the judgment roll itself, or from an accompanying minute order.” . . . As with any § 2254 petition, the petitioner must satisfy the procedural prerequisites for relief including, for example, exhaustion of remedies. . . .

The general rule we have adopted here and in Daniels reflects the notion that a defendant properly bears the consequences of either forgoing otherwise available review of a conviction or failing to successfully demonstrate constitutional error. . . . It is not always the case, however, that a defendant can be faulted for failing to obtain timely review of a

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constitutional claim. For example, a state court may, without justification, refuse to rule on a constitutional claim that has been properly presented to it. Cf. 28 U.S.C. § 2244(d)(1)(B) . . . (tolling 1-year limitations period while petitioner is prevented from filing application by an “impediment . . . created by State action in violation of the Constitution or laws of the United States”). Alternatively, after the time for direct or collateral review has expired, a defendant may obtain compelling evidence that he is actually innocent of the crime for which he was convicted, and which he could not have uncovered in a timely manner. In such situations, a habeas petition directed at the enhanced sentence may effectively be the first and only forum available for review of the prior conviction. [T]his case does not require us to determine whether, or under what precise circumstances, a petitioner might be able to use a § 2254 petition in this manner. . . .

a. The general prohibition on enhancement claims seems harsh, doesn’t it? But wouldn’t it be surprising if a prisoner were effectively able to circumnavigate both the custody doctrine with respect to a prior conviction and the procedural requirements attending a habeas challenge to that conviction simply by focusing an attack on a subsequent sentence said to be enhanced on the basis of the old conviction? The petitioner in Coss argued that he had done everything he could to attack his previous conviction in a timely way. Yet the thrust of his argument was that his efforts in that direction didn’t matter. He contended that, since he was formally attacking only his current sentence, he was entitled to proceed if he satisfied the usual procedural requirements for obtaining federal habeas relief with respect to the enhancement claim alone—irrespective of whether, or how well, he had used the opportunities he once had to attack the prior conviction at the time it was entered. b. Does the exception for Gideon claims make sense? Doesn’t it draw on “jurisdictional” thinking stretching back before Frank v. Mangum? See Section II, Note 4. It’s true, though, that state interests in preserving a conviction obtained in violation of Gideon are minimal, if they exist at all. And bear in mind that a prisoner who claims that a current sentence is invalid because it was enhanced on the basis of a Gideon-flawed prior conviction must satisfy the procedural prerequisites for habeas relief with respect to the enhancement claim. He must exhaust state remedies regarding that claim, avoid or overcome procedural default regarding that claim, and file a petition in advance of the applicable filing deadline. But he need not satisfy the same requirements with respect to the underlying Gideon claim against the previous conviction itself. c. What about the other exception that Justice O’Connor mentioned but did not squarely adopt—i.e., a case in which a prisoner had no opportunity to challenge a prior conviction and thus cannot be blamed for failing to do so? If a challenge to a current (enhanced) sentence is the “first and only” opportunity to press a claim against a predicate conviction, shouldn’t the general rule against enhancement claims be relaxed? What should be the standards for such an exception? d. What about a case in which some state avenue for attacking an older conviction is still open? The prisoner plainly must pursue that state court opportunity to challenge the prior judgment. If he is successful, he certainly will wish to claim that the enhanced sentence must be adjusted accordingly. That enhancement claim, too, must be pressed first in state court. If the state courts reject it, the prisoner will want to pursue federal habeas relief. Is it clear that he can?

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When a case is in that posture, the rationales for the general rule against enhancement claims don’t obtain, do they? By hypothesis, the state has no legitimate interest in the finality of a prior conviction the state courts have themselves upset, and the federal court need not expend any great effort to determine whether that conviction was invalid. If a prisoner doesn’t begin to attack a prior conviction until it has already been used to enhance a new sentence, will he have time to file a federal petition advancing the enhancement claim? See Section VIII (A), Note 3.

____________________ VIII. Additional Procedural Issues

Numerous provisions of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) specify procedural arrangements for handling habeas corpus cases. See Section IV, Notes 1-2. Those provisions bristle with interpretive problems, which have produced a large body of judicial decisions in the lower federal courts and a corresponding bevy of Supreme Court decisions resolving conflicts among the circuits. Additional questions continue to boil up from below. The decisions in this context offer vivid illustrations of the general (though not monolithic) turn to textualism in habeas corpus law since the 1996 Act. Consider whether the constructions the Court places on the statutory provisions implicated in these cases are sensible and workable and whether they can fairly be ascribed to any discernible congressional purpose. Are the judicial resources required to resolve these problems well spent? Will the investment of resources necessary to interpret these provisions save more judicial resources in the long run? If so, will the price be acceptable? If not, is it possible that AEDPA (and the Court) have made things worse—actually increasing the inefficiency of habeas litigation and, into the bargain, frustrating federal adjudication of what may be valid federal claims?

AEDPA presents a special challenge to textualist methodology because of its poor craftsmanship. The Act is replete with vague and ambiguous language, obvious inconsistency, and apparent misunderstanding. Justice Souter once labored through numerous provisions in a valiant effort to identify a single theme that would reconcile them all. When he finished, he confessed that he could not account for the text of one last paragraph. Despairing, he left that “loose end” dangling, explaining that “in a world of silk purses and pigs’ ears, the Act is not a silk purse of the art of statutory drafting.” Lindh v. Murphy, 521 U.S. 320, 336 (1997). At oral argument in Dodd v. United States, 545 U.S. 353 (2005), Justice Scalia asked (in apparent exasperation): “Who is responsible for writing this?” Small wonder the justices are often divided in cases demanding that AEDPA provisions be given meaning both true to the text and sensible as a matter of policy. Beneath the surface of these cases lies a long-running battle over the appropriate approach to statutory construction and thus, here again, the proper allocation of power between the Court and Congress. Ask yourself whether it is enough to look up statutory terms in Webster’s or Black’s, invoke canons of construction, and insist that any policy considerations were for Congress. Is that what the Court does? Is it what the Court should do? Also ask yourself, of course, whether the underlying controversy over the value of federal habeas corpus, especially in death penalty cases, is also at work behind the justices’ formal arguments.

A. Filing Deadlines

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Clay v. United States

537 U.S. 522 (2003) Justice GINSBURG delivered the opinion of the Court. In 1997, petitioner . . . Clay was convicted of arson and distribution of cocaine [in federal court]. On February 22, 2000—one year and 69 days after the Court of Appeals issued its mandate and exactly one year after the time for seeking certiorari expired—Clay filed a motion . . . pursuant to 28 U.S.C. § 2255, to vacate . . . his sentence. Congress has prescribed “[a] 1-year period of limitation” for such motions “run[ning] from the latest of” four specified dates. . . . Of the four dates, the only one relevant in this case . . . is the first: “the date on which the judgment of conviction becomes final.” § 2255, para. 6(1). . . . Finality is variously defined; like many legal terms, its precise meaning depends on context. . . . Here, the relevant context is postconviction relief, a context in which finality has a long-recognized, clear meaning: Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires. See, e.g., Caspari v. Bohlen, 510 U.S. 383, 390 (1994). . . . Because “we presume that Congress expects its statutes to be read in conformity with this Court’s precedents,” . . . our unvarying understanding of finality for collateral review purposes would ordinarily determine the meaning of “becomes final” in § 2255. Amicus19 [FN2] urges a different determinant, relying on verbal differences between § 2255 and a parallel statutory provision, 28 U.S.C. § 2244(d)(1), which governs petitions for federal habeas corpus by state prisoners. . . . Like § 2255, § 2244(d)(1) establishes a one-year limitation period, running from the latest of four specified dates. Three of the four time triggers under § 2244(d)(1) closely track corresponding portions of § 2255. . . . But where § 2255, para. 6(1), refers simply to “the date on which the judgment of conviction becomes final,” § 2244(d)(1)(A) speaks of “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.”20 [FN3] When “Congress includes particular language in one section of a statute but omits it in another section of the same Act,” we have recognized, “it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”. . . We can give effect to the discrete wording of the two prescriptions, amicus urges, if we adopt the following rule: When a convicted defendant does not seek certiorari on direct review, § 2255’s limitation period starts to run on the date the court of appeals issues its mandate. . . . [The presumption regarding Congress’ intentions] tends in Clay’s favor. An unqualified

19 [FN2] The United States joins petitioner Clay in urging that Clay’s § 2255 motion was timely filed. We therefore invited . . . an . . . amicus curiae [to oppose that position]. 20 [FN3] The Courts of Appeals have uniformly interpreted “direct review” in § 2244(d)(1)(A) to encompass review of a state conviction by this Court.

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term—here “becomes final”— . . . calls for a reading surely no less broad than a pinpointed one—here, § 2244(d)(1)(A)’s specification “became final by the conclusion of direct review or the expiration of the time for seeking such review.” [O]ne can readily comprehend why Congress might have found it appropriate to spell out the meaning of “final” in § 2244(d)(1)(A) but not in § 2255. Section 2244(d)(1) governs petitions by state prisoners. In that context, a bare reference to “became final” might have suggested that finality assessments should be made by reference to state-law rules that may differ from the general federal rule and vary from State to State. . . . The words “by the conclusion of direct review or the expiration of the time for seeking such review” make it clear that finality for the purpose of § 2244(d)(1)(A) is to be determined by reference to a uniform federal rule. . . . We hold that, for federal criminal defendants who do not file a petition for certiorari with this Court on direct review, § 2255’s one-year limitation period starts to run when the time for seeking such review expires. Under this rule, Clay’s § 2255 petition was timely filed.

Notes on Filing Deadlines 1. Clay v. United States. The Clay case presented a common computation problem: Given that prisoners must file federal petitions or motions within one year, when does that year begin? Justice Ginsburg acknowledged a textual difference between the provision applicable to § 2255 cases and the parallel provision for § 2254 habeas cases. Nevertheless, she harmonized the filing periods under the two provisions. That result makes sense, doesn’t it? After all, even the Government agreed, and the Court had to appoint an amicus to argue otherwise. Yet Justice Ginsburg might have relied on the “verbal differences” between subparagraph (A) of § 2244(d)(1) and paragraph (6)(1) of § 2255 for an inference that a federal prisoner contemplating a § 2255 motion has less time to act than a state prisoner preparing a habeas corpus petition. When the text of a filing deadline provision lends itself to alternative constructions, what does (or should) move the Court to adopt one interpretation or the other? A commitment to the “plain meaning” of the literal text and thus to some unspecified underlying purpose ascribed to Congress? Canons of statutory construction (e.g., expressio unius est exclusio alterius)? The Court’s own sense of the purpose to be served? Does Clay suggest that the justices bring a certain pragmatism to bear—in this case a judgment that litigants and lower courts need a clear and consistent starting point from which to compute the time allowed? Is the Court always pragmatic? Should it be? 2. Dodd v. United States. Paragraph (6)(3) of § 2255 starts the clock on the date “the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” A parallel provision governing § 2254 petitions by state prisoners, § 2244(d)(1)(C), reads essentially the same way. The point (presumably) is to accommodate the rare case in which Teague allows a prisoner to advance a claim resting on a new rule of law. See Section III, Note 3. But doesn’t the language used in these provisions make the starting time ambiguous? Is it the date on which the Supreme Court recognizes a new right or the date on which that right is made retroactively applicable? In Dodd v. United States, 545 U.S. 353 (2005), Justice O’Connor answered this way:

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[T]he text of paragraph (6)(3) settles this dispute. It unequivocally identifies one, and only one, date from which the 1-year limitation period is measured: “the date on which the right asserted was initially recognized by the Supreme Court.” . . . Dodd contends that [the clock starts only when] a court [has] “made” the right “retroactively applicable to cases on collateral review.” . . . [His] reliance on the second clause to identify the operative date is misplaced. That clause—“if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review”—imposes a condition on the applicability of this subsection. See Webster’s Third New International Dictionary 1124 (1993) (the definition of “if” is “in the event that” or “on condition that”). . . . [I]f this Court decides a case recognizing a new right, a federal prisoner seeking to assert that right will have one year from this Court’s decision within which to file his § 2255 motion. He may take advantage of the date in the first clause of paragraph (6)(3) only if the conditions in the second clause are met. . . .

We recognize that the statute of limitations in paragraph (6)(3) makes it difficult for applicants filing second or successive § 2255 motions to obtain relief. . . . [U]nder] Section 2255, paragraph (8)(2), . . . [a]n applicant may file a second or successive motion only in limited circumstances, such as where he seeks to take advantage of “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” . . . [T]his Court rarely decides that a new rule is retroactively applicable within one year of initially recognizing that right. Thus, because of the interplay between paragraphs (8)(2) and (6)(3), an applicant who files a second or successive motion seeking to take advantage of a new rule of constitutional law will be time barred except in the rare case in which this Court announces a new rule of constitutional law and makes it retroactive within one year. Although we recognize the potential for harsh results in some cases, we are not free to rewrite the statute that Congress has enacted. . . . The disposition required by the text here, though strict, is not absurd. It is for Congress, not this Court, to amend the statute if it believes that the interplay of paragraphs (8)(2) and (6)(3) of § 2255 unduly restricts federal prisoners’ ability to file second or successive motions. a. How satisfying is Dodd? Under the Teague doctrine, the Court largely confines the

consideration of new procedural rights to direct review cases. If the filing period begins to run when the Court first announces a “new right” in a case on direct review, won’t prisoners be induced to file § 2255 motions and § 2254 habeas petitions as soon as the Court does something arguably novel—in hopes that the new right will ultimately be available to them? Wouldn’t it be better to read paragraph (6)(3) of § 2255 and subparagraph (C) of § 2244(d)(1) to start the clock after it’s clear that the new procedural right is applicable to cases in a collateral posture? Then prisoners would be prodded into action only when their applications stand a genuine chance of success and thus warrant access to a federal court. b. How do we know whether and when a new procedural right is “made” applicable to cases on collateral review? The question is presumably whether the new right counts as a bedrock procedural rule for which Teague allows an exception. Is a procedural rule “made” applicable to collateral proceedings by that doctrinal definition alone, or not until some court

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actually renders a decision that the rule fits the “bedrock” definition? If a judicial decision is required, things can be complicated. Say Tom persuades the Supreme Court to recognize a new procedural right when Tom’s case is before the Court on direct review. Shortly thereafter, Dick files a § 2255 motion (or a § 2254 habeas petition) seeking relief on the basis of Tom’s new right. The Government (or the state) objects that Dick’s action is time-barred because more than a year has passed since his conviction became final on direct review. Dick responds that his case is no longer controlled by paragraph (6)(1) of § 2255 (or subparagraph (A) of § 2244(d)(1)). The point of paragraph (6)(3) of § 2255 (and subparagraph (C) of § 2244(d)(1)) is to start the clock again when a new right is recognized, provided the condition is satisfied (i.e., provided the new right is enforceable in collateral proceedings). But the Government (or the state) insists that Dick can’t have the benefit of a fresh clock unless and until some court has “made” the new right available in cases on collateral review. All is not lost. A third litigant (call her Mary), who doesn’t have to rely on paragraph (6)(3) of § 2255 (or subparagraph (C) of §2244(d)(1)) for a new clock (e.g., because she files within the one-year filing period running from the conclusion of direct review), may obtain a determination that Tom’s new right is applicable to collateral proceedings. Then, that crucial determination having been “made” in Mary’s case, Dick will have whatever time remains of the year following the Court’s decision in Tom’s case. Would it make sense to hold that a prisoner who has to obtain a fresh clock under paragraph (6)(3) of § 2255 or subparagraph (C) of § 2244(d)(1) cannot try to establish the crucial condition in his own case, but must hope that another prisoner does it before it’s too late? Would anybody seriously choose that policy? c. Is it enough if an inferior federal court concludes that a novel proposition “recognized” by the Supreme Court fits the exception Teague allows for bedrock procedural rules? What if other district or circuit courts disagree or reach the same conclusion at different times? To avoid confusion, should the term “made” in these provisions be understood to mean “made” by the Supreme Court itself? What would be the counters to that reading? Both provisions explicitly refer to a new right “recognized by the Supreme Court,” but neither specifies that the Supreme Court itself must decide the further question whether the new right is applicable in collateral proceedings. Expressio unius est exclusio alterius? Consider, too, that paragraph 8(2) of § 2255 and subparagraph (A) of § 2244(b)(2) do attach a “by the Supreme Court” modifier to “made retroactive to cases on collateral review.” If Congress explicitly identified the Supreme Court for duty in that context, but did not do so explicitly here, isn’t there an argument that a new right can be “made” available here by some other court? Again, expressio unius est exclusio alterius? But would it make sense to read these statutes to start the clock when the Supreme Court recognizes a new right, conditional upon any court’s determination that the new right fits the exception to Teague? d. Justice O’Connor herself acknowledged the difficulty Dodd poses for prisoners who can seek the benefits of a new right only via second or successive petitions or motions. She recalled that, in Tyler v. Cain, 533 U.S. 656 (2001), the Court had already held that state prisoners in that position must await a Supreme Court decision making a new right available to them, see Subsection D, Note 3, and she acknowledged that the same is true of federal prisoners (given that paragraph (8)(2) of § 2255 tracks subparagraph (A) of § 2244(b)(2) in this respect). Accordingly, the actual filing period available for a prisoner who must file a second or successive action (call him Larry) is reduced by the interval between the date of a Supreme Court decision recognizing a new right (in Moe’s case on direct review) and the date of a subsequent

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Supreme Court decision (in Curley’s case in a collateral posture) announcing that Moe’s new right fits the Teague exception and thus can be applied in habeas corpus or § 2255 proceedings. Practically speaking, Larry probably has no time at all, because more than a year will elapse before the Court makes the decision in Curley’s case (assuming the Court ever does). What possible reason could Congress have for creating such a conflict between the provisions on filing periods and the provisions on second or successive applications for federal relief? e. Isn’t it perfectly clear that the drafters of these provisions misunderstood Teague and assumed that the Court would both recognize new rules and determine their availability in collateral proceedings at the same time? If ignorance of the subject matter best explains what Congress did, does it make any sense for the Court to let petitioners suffer the consequences—unless and until Congress smarts up? When the justices have concluded that Congress failed to foresee some contingency, they have sometimes seen fit to make their own judgment about the best policy. E.g., Brecht v. Abrahamson, 507 U.S. 619 (1993), see Section IV; Rose v. Lundy, 455 U.S. 509 (1982), see Section VI. Why not do that here? Is there some sense that if a statutory provision appears by its literal terms to cover something, the Court’s options are more limited—even if everybody knows that no serious legislative judgment was exercised? Why would anyone think that? Of course, there probably aren’t any new procedural rules that can be enforced in collateral proceedings. But these provisions invite prisoners to file petitions and motions in hopes of success, thus generating litigation whether or not it is worthwhile. f. This note teaches in microcosm a salient lesson regarding the law of federal courts generally—namely, that legal issues cannot be understood apart from the mechanics of the litigation required to resolve them. It’s not enough to establish a legal standard as a matter of policy. You have to envision how the issues that standard makes important can actually be determined in court. 3. Johnson v. United States. There are other squirrelly statutory construction issues to work through—for the sole purpose of deciding whether a federal filing is timely. Notice, for example, that paragraph (6)(4) of § 2255 starts the clock on the date “the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” The analogue for § 2254 habeas petitions, § 2244(d)(1)(D), refers to the date “the factual predicate” of a claim could have been uncovered. We can safely guess that the idea here is to accommodate prisoners who develop new factual information fortifying a claim. But what counts as factual? The prisoner in Johnson v. United States, 544 U.S. 295 (2005), had been given a stiff sentence in part because of a prior state conviction. After he successfully attacked that earlier conviction, he filed a § 2255 motion seeking an adjustment in his enhanced sentence. Justice Souter wrote the Court’s opinion:

Johnson says that the order vacating his prior conviction is the factual matter supporting his § 2255 claim, discovery of which triggers the refreshed 1-year period. The Court of Appeals majority said no because it understood a legally operative order of vacatur to be a mandate of law or a consequence of applying law, and therefore distinct from a matter of “fact” as Congress used the term in § 2255. The United States does not endorse that law-fact distinction, but argues that the facts supporting Johnson’s § 2255 claim, for purposes of [paragraph (6)(4)], are the facts on which he based his challenge to the validity of his state conviction.

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We think none of these positions is sound, at least in its entirety. [O]n the Government’s view, the statute of limitations may begin to run (and may even expire) before the § 2255 claim and its necessary predicate even exist. Prior to the federal conviction, a petitioner has no § 2255 claim because he has no enhanced federal sentence to challenge. . . . Johnson’s position [is] that his § 2255 petition is timely under paragraph four as long as he brings it within a year of learning he succeeded in attacking the prior conviction, no matter how long he may have slumbered before starting the successful proceeding. . . . Our job here is to find a sensible way to apply paragraph four when the truth is that . . . AEDPA’s drafters probably never thought about the situation we face here. . . . [I]t is peculiar to speak of “discovering” the fact of [a state judicial decision] . . . the petitioner himself has brought about, but when . . . treating notice of it as the trigger produces a more reasonable scheme than the alternatives, the scheme should be reconciled with the statutory language if it can be. . . . That leaves us with the question of how to implement the statutory mandate that a petitioner act with due diligence in discovering the crucial fact of the vacatur order that he himself seeks. The answer is that diligence can be shown by prompt action on the part of the petitioner as soon as he is in a position to realize that he has an interest in challenging the prior conviction with its potential to enhance the later sentence. The important thing is to identify a particular time when the course of the later federal prosecution clearly shows that diligence is in order. That might be the date the federal indictment is disclosed, the date of judgment, or the date of finality after direct appeal. Picking the first date would require the quickest response and serve finality best, but it would produce some collateral litigation that federal acquittals would prove to have been needless. . . . If we picked the third date, collateral litigation would be minimized, but finality would come late. This shapes up as a case for choosing the bowl of porridge between the one too hot and the one too cold, and settling on the date of judgment as the moment to activate due diligence seems best to reflect the statutory text and its underlying concerns.

a. Is Justice Souter’s analysis sensible, pragmatic, driven by policy as much as by text? It would seem so, and Souter’s approach therefore seems more akin to Justice Ginsburg’s in Clay than to Justice O’Connor’s in Dodd. Was the problem in Johnson one the AEDPA drafters failed to anticipate, so that the Court’s task was to find some way to resolve it without ignoring the statute that Congress actually adopted? What about Justice Souter’s result? Is it sensible to start the clock when the prior conviction is upset, but only on the condition that the prisoner diligently pursued that relief after receiving an enhanced sentence? The authorities defending the enhanced sentence can complain only about the time and effort required to determine whether the predicate conviction has actually been vacated and, if so, to recalculate the enhanced sentence. The more serious governmental concerns lie with the courts in the jurisdiction where the earlier conviction was obtained. Courts there may have to contend with stale evidence, missing witnesses, etc. But can’t that jurisdiction protect those legitimate interests for itself by, for example, adopting its own diligence requirement? Doesn’t a federal diligence requirement actually create problems for federal courts entertaining attacks on enhanced sentences, who now

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must assess a prisoner’s behavior in the courts of another jurisdiction in order to determine when the filing period begins? In this vein, is the specter of a prisoner “slumbering” when he or she might have been litigating over a prior conviction a serious consideration? Was Justice Souter forced to indulge that possibility on the theory that AEDPA’s purpose is, in part, to motivate prisoners to press their claims assiduously? The phrase “due diligence” does appear in paragraph (6)(4) of § 2255, as well as in § 2244(d)(1)(D). b. Justice Kennedy dissented in Johnson, joined by Justices Stevens, Scalia, and Ginsburg (odd bedfellows?). Kennedy would have started the clock at the time of a judgment upsetting an old conviction and quit there—i.e., he would have left it to the jurisdiction concerned to fix procedural conditions for challenging convictions (time limits, diligence requirements, etc.). As it happens, most states have already deployed restrictions for seeking state court relief that would have foreclosed the very thing the prisoner in Johnson was able to achieve in Georgia. Is that important to know? After the Johnson decision, Georgia need not establish a diligence requirement of its own and may rely, instead, on the federal diligence requirement the Supreme Court has now read the habeas filing deadline provision to mandate. Consider that if Justice Kennedy’s view had prevailed, Georgia would have had an additional incentive to create its own restrictive rule—i.e., an incentive in addition to all the other incentives states have for limiting collateral attacks on state court judgments. c. Why do you suppose none of the justices embraced the Government’s argument in Johnson? Because it would have the practical effect of foreclosing claims in all cases? Recall that a prisoner is generally procedurally barred from attacking an enhanced sentence collaterally, unless and until he first upsets the predicate conviction. See Section VII, Note 11. Having slammed the federal court house door to most prisoners in this category already, do you suppose the Court wanted, in Johnson, at least to crack it open for a prisoner who actually succeeds in dislodging an earlier conviction and only then goes after an enhanced sentence? 4. Deadlines and Exhaustion. Fixed filing periods for habeas corpus petitions are obviously in tension with the exhaustion doctrine. Filing deadlines necessarily encourage prisoners to seek federal habeas relief early, while the exhaustion doctrine demands that they postpone federal petitions until state court opportunities to litigate their federal claims have been tried. The tension is modest in cases in which prisoners satisfy the exhaustion doctrine with respect to all their claims at the same time by presenting them to the state’s highest court on direct review. However, in cases in which prisoners have claims that still can be considered in state postconviction proceedings, the possible scenarios become complex. Remember that a prisoner with multiple claims is generally expected to exhaust state avenues for litigating all his claims before filing a federal petition. See Section VI, Note 9. On the surface, it would appear that a prisoner is in a quandary if he has some claims that are ready for federal habeas adjudication and some that are not. If the prisoner withholds the former claims in the near term while taking other claims to state postconviction proceedings, the filing period may run out before state proceedings are completed. 5. Bennett and Pace. Sometimes, the tolling provision in § 2244(d)(2) may defuse the tension with the exhaustion requirement. That provision reads: “The time during which a properly filed application for State post-conviction or other collateral review with respect to a pertinent judgment or claim is pending shall not be counted toward any period of limitation under this

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section.” The disjunctive “or” between “judgment” and “claim” indicates, doesn’t it, that the filing period is tolled not only with respect to claims that a prisoner is pressing in state postconviction proceedings, but also with respect to all other claims addressed to the same conviction? Accordingly, with the benefit of the tolling provision, can’t a prisoner safely delay claims that are ready for federal consideration until other claims catch up, even though more than a year passes in the interim? Valuable as the tolling provison in § 2244(d)(2) may be, it nonetheless generates numerous interpretive puzzles. In Artuz v. Bennett, 531 U.S. 4 (2000), state’s attorneys contended that a prisoner’s motion for state postconviction relief is not “properly filed” if it contains claims that are procedurally barred and thus due to be dismissed by the state courts. Writing for the Court, Justice Scalia rejected that argument:

An application is “filed,” as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer. . . . Black’s Law Dictionary 642 (7th ed. 1999) (defining “file” as “[t]o deliver a legal document to the court clerk or record custodian for placement into the official record”). And an application is “properly filed” when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, . . . the court and office in which it must be lodged, and the requisite filing fee. . . . By construing “properly filed application” to mean “application raising claims that are not mandatorily procedurally barred,” petitioner [the warden] elides the difference between an “application” and a “claim.” Only individual claims, and not the application containing those claims, can be procedurally defaulted under state law. . . . Ordinary English would refer to certain claims as having been properly presented or raised, irrespective of whether the application containing those claims was properly filed. . . . We hold as we do because respondent’s view seems to us the only permissible interpretation of the text—which may, for all we know, have slighted policy concerns on one or the other side of the issue as part of the legislative compromise that enabled the law to be enacted. . . .

a. Satisfied? At the time a prisoner files an application for state postconviction relief, he may not be able to tell whether the state courts will decide that his claim is barred on procedural grounds. But it doesn’t matter. He is bound to forge ahead in order to satisfy the exhaustion doctrine, even if he does it only by obtaining a determination that his claim is barred on the basis of default. See Section VII, Note 1. It wouldn’t do, would it, to count the time required to meet the exhaustion requirement via default against the filing period for a federal petition (the very petition the prisoner is supposed to defer until he has exhausted state remedies)? b. If the period for filing an application for state postconviction relief is hard and fast, admitting no exceptions, it may be fairly easy to tell whether a prisoner has acted in time and thus invoked the § 2244(d)(2) tolling provision according to Bennett. If, however, a state filing period can be extended in specified exceptional circumstances (e.g., when new evidence is discovered), the question whether a state application is timely is comparatively uncertain. The state courts must adjudicate the question whether a prisoner’s case fits into such an exception, and their determination will necessarily come some time after the application is lodged with the clerk. If, then, a determination that an application was not filed in time means that the petition was never “properly filed” for purposes of § 2244(d)(2), a prisoner who thought his application

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for state relief stopped the clock may find that it didn’t, after all. In Pace v. DiGuglielmo, 544 U.S. 408 (2005), Chief Justice Rehnquist concluded that timeliness is a necessary condition of a “properly filed” state court application within the meaning of § 2244(d)(2). Accordingly, an untimely application does not stop the clock on a prisoner’s future habeas petition in federal court. If more than a year goes by before the state courts decide that an application was filed too late, the federal deadline will have passed, and, ceteris paribus, the prisoner will be barred from filing a federal petition. c. Rehnquist acknowledged in Pace that a prisoner faced with this scenario might file a premature federal petition, against the contingency that his state application will not toll the federal filing period. The Court has held that federal courts may hold habeas corpus petitions in abeyance to help prisoners comply with the time limits for federal petitions established by § 2244(d)(1). See Rhines v. Weber, 544 U.S. 269 (2005). So it is at least possible that a prisoner who is worried that an application for state postconviction relief will be found untimely might protect himself by filing two applications at the same time—one in state court in order to exhaust state remedies (one way or the other) and (maybe) to stop the federal clock, and the other in federal court (to stop the federal clock for sure). But see Note 6. Does it make sense to read these statutes to force prisoners to file the very premature federal petitions it is the point of the exhaustion doctrine to discourage? Isn’t it bizarre that prisoners should have to litigate simultaneously in state and federal court just to ensure that they satisfy doctrines and procedural rules created (evidently) to make federal habeas corpus proceedings efficient? 6. Duncan v. Walker. In Duncan v. Walker, 533 U.S. 167 (2001), state’s attorneys contended that § 2244(d)(2) does not toll the filing period during the time a habeas corpus petition is pending in federal court. Justice O’Connor sustained that position:

Our task is to construe what Congress has enacted. We begin, as always, with the language of the statute . . . . [The prisoner] . . . reads § 2244(d)(2) to apply the word “State” only to the term “post-conviction” and not to the phrase “other collateral.” Under this view, a properly filed federal habeas petition tolls the limitation period. [The warden] . . . contends that the word “State” applies to the entire phrase “post-conviction or other collateral review.” Under this view, a properly filed federal habeas petition does not toll the limitation period.

We believe [the warden’s]. . . interpretation of § 2244(d)(2) is correct for several reasons. To begin with, Congress placed the word “State” before “post-conviction or other collateral review” without specifically naming any kind of “Federal” review. The essence of [the prisoner’s] . . . position is that Congress used the phrase “other collateral review” to incorporate federal habeas petitions into the class of applications for review that toll the limitation period. But a comparison of the text of § 2244(d)(2) with the language of other AEDPA provisions supplies strong evidence that, had Congress intended to include federal habeas petitions within the scope of § 2244(d)(2), Congress would have mentioned “Federal” review expressly. In several other portions of AEDPA, Congress specifically used both the words “State” and “Federal” to denote state and federal proceedings. . . . Section 2244(d)(2), by contrast, employs the word “State,” but not the word “Federal,” as a modifier for “review.” . . . “Where Congress includes

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particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” . . . Further, were we to adopt [the prisoner’s] construction of the statute, we would render the word “State” insignificant, if not wholly superfluous. “It is our duty ‘to give effect, if possible, to every clause and word of a statute.” . . .

Congress . . . may have employed the construction “post-conviction or other collateral” in recognition of the diverse terminology that different States employ to represent the different forms of collateral review that are available after a conviction. In some jurisdictions, the term “post-conviction” may denote a particular procedure for review of a conviction that is distinct from other forms of what conventionally is considered to be postconviction review. . . .

Examination of another AEDPA provision also demonstrates that “other collateral” need not refer to any form of federal review in order to have meaning. Title 28 U.S.C. § 2263 establishes the limitation period for filing § 2254 petitions in state capital cases that arise from jurisdictions meeting the “opt-in” requirements of § 2261. Section 2263(b)(2) provides that the limitation period “shall be tolled from the date on which the first petition for post-conviction review or other collateral relief is filed until the final State court disposition of such petition.” The reference to “the final State court disposition of such petition” makes it clear that only petitions filed in state court, and not petitions for federal review, toll the limitation period in capital cases. Congress therefore used the phrases “post-conviction review” and “other collateral relief” in a disjunctive clause where the term “other collateral,” whatever its precise content, could not possibly include anything federal within its ambit. . . .

[The prisoner] . . . contends that [this] . . . construction of the statute creates the potential for unfairness to litigants who file timely federal habeas petitions that are dismissed without prejudice after the limitation period has expired. But our sole task in this case is one of statutory construction.

a. Doesn’t Duncan aggravate the tension between the filing periods and the exhaustion doctrine? A prisoner may file a federal habeas petition in the belief that all the claims contained in it are ready for federal adjudication. The federal district court may take substantial time to decide whether that is so. If the district court ultimately concludes that state procedures have not been exhausted regarding even a single claim, the court will ordinarily dismiss the entire petition. At that point, the filing period may have expired, depriving the prisoner of the opportunity to litigate any of his federal claims in federal court (even claims that were ready for federal consideration when they were included in the prisoner’s timely, though mixed, petition). b. A prisoner who understands that the filing period is running while his federal petition is pending may hedge his bets by filing a simultaneous application for postconviction relief in state court—not because he genuinely thinks that further state court litigation is necessary to satisfy the exhaustion doctrine, but because, if he is wrong and his federal petition is dismissed on exhaustion grounds, the parallel application for state relief will have tolled the filing period.

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If this is the way things work out, the Court’s construction of the federal tolling provision will again prompt prisoners to litigate in federal and state court at the same time. c. In her opinion for the Court in Rhines v. Weber, Justice O’Connor acknowledged that Duncan may effectively foreclose a prisoner’s claims (if the filing period has run or there is too little time left to go to state court and get back). Accordingly, she held that a federal court need not dismiss a petition on exhaustion grounds, but can stay further federal proceedings while the prisoner goes to state court, exhausts state remedies with respect to all claims, and returns. Even so, Justice O’Connor insisted that federal courts cannot stay federal proceedings routinely simply to counteract the effects of Duncan, but can hold a federal petition in abeyance only if there was “good cause” for the prisoner’s failure to satisfy the exhaustion doctrine before initiating a federal action in the first place. Is that a happy result? What constitutes “good cause” in this context? d. Put Duncan and Rhines together with Pace. A prisoner who worries that (in view of Duncan) there is a risk that the federal filing period will expire while a federal habeas petition is pending must worry, too, that (in view of Pace) a concurrent “hedge” application for state postconviction relief may not do the job, either. And a prisoner who worries that (in view of Pace) an application for state postconviction relief won’t stop the clock must worry, too, that (in view of Duncan) a premature “hedge” federal habeas petition isn’t failsafe. Or is it clear that the desire to contend with the uncertainties attending Pace counts as “good cause” within the meaning of Rhines? If § 2244(d)(2) and the Court’s interpretations of it seem a little messy, what would you propose as an alternative? B. Evidentiary Hearings

Michael Williams v. Taylor

529 U.S. 420 (2000)

Justice KENNEDY delivered the opinion of the Court. Petitioner Michael Wayne Williams received a capital sentence for the murders of Morris Keller, Jr., and Keller’s wife, Mary Elizabeth. Petitioner later sought a writ of habeas corpus in federal court. Accompanying his petition was a request for an evidentiary hearing on constitutional claims which, he alleged, he had been unable to develop in state-court proceedings. . . . [T]he petition raised three claims relevant to questions now before us. First, petitioner claimed the prosecution had violated Brady v. Maryland, 373 U.S. 83 (1963), in failing to disclose a report of a confidential pretrial psychiatric examination of [a prosecution witness], Cruse. Second, petitioner alleged his trial was rendered unfair by the seating of a juror who at voir dire had not revealed possible sources of bias. Finally, petitioner alleged one of the prosecutors committed misconduct in failing to reveal his knowledge of the juror’s possible bias. . . . Section 2254(e)(2) . . . provides as follows:

If the applicant has failed to develop the factual basis of a claim in State court

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proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

There was no hearing in state court on any of the claims for which petitioner now seeks an evidentiary hearing. That, says the Commonwealth, is the end of the matter. In its view petitioner, whether or not through his own fault or neglect, still “failed to develop the factual basis of a claim in State court proceedings.” Petitioner, on the other hand, says the phrase “failed to develop” means lack of diligence in developing the claims, a defalcation he contends did not occur since he made adequate efforts during state-court proceedings to discover and present the underlying facts. The Court of Appeals agreed with petitioner’s interpretation of § 2254(e)(2) but believed petitioner had not exercised enough diligence to avoid the statutory bar. We agree with petitioner and the Court of Appeals that “failed to develop” implies some lack of diligence; but, unlike the Court of Appeals, we find no lack of diligence on petitioner’s part with regard to two of his three claims. . . . We give the words of a statute their “ordinary, contemporary, common meaning,” absent an indication Congress intended them to bear some different import. . . . In its customary and preferred sense, “fail” connotes some omission, fault, or negligence on the part of the person who has failed to do something. See, e.g., Webster’s New International Dictionary . . . (defining “fail” as “to be wanting; to fall short; to be or become deficient in any measure or degree,” and “failure” as “a falling short,” “a deficiency or lack,” and an “[o]mission to perform”). . . . Had Congress intended a no-fault standard, it would have . . . had to do no more than use, in lieu of the phrase “has failed to,” the phrase “did not.” Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel. . . . To treat the prisoner’s lack of diligence in state court as a prerequisite for application of § 2254(e)(2), the Commonwealth contends, renders a nullity of the statute’s own diligence provision requiring the prisoner to show “a factual predicate [of his claim] could not have been previously discovered through the exercise of due diligence.” § 2254(e)(2)(A)(ii). We disagree. . . . The . . . reference to diligence [in §2254(e)(2)(A)(ii)] pertains to cases in which the facts could not have been discovered, whether there was diligence or not. . . . Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law. . . . If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal

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court, unless the statute’s other stringent requirements are met. . . . Petitioner did not exercise the diligence required to preserve the claim that nondisclosure of Cruse’s psychiatric report was in contravention of Brady v. Maryland. . . . The report . . . had been prepared in September 1993, before petitioner was tried; yet it was not mentioned by petitioner until he filed his federal habeas petition and attached a copy of the report. . . . There are repeated references to a “psychiatric” or “mental health” report in a transcript of Cruse’s sentencing proceeding. . . . The transcript put petitioner’s state habeas counsel on notice of the report’s existence and possible materiality. . . . Counsel’s failure to investigate these references in anything but a cursory manner triggers the opening clause of § 2254(e)(2). . . . [T]he petitioner has met the burden of showing he was diligent in efforts to develop the facts supporting his juror bias and prosecutorial misconduct claims in collateral proceedings before the Virginia Supreme Court. Counsel had no reason to believe Stinnett [a prospective juror] had been married to Meinhard [a prosecution witness] or been represented [in divorce proceedings] by Woodson [the prosecutor]. The underdevelopment of these matters was attributable to Stinnett and Woodson, if anyone. [Accordingly,] . . . § 2254(e)(2) will not bar [the petitioner] from developing [those matters] in federal court.

Notes on Finding the Facts 1. State Court Findings. The claims advanced in habeas corpus petitions often depend on the underlying facts. Recall that in the early cases, Frank v. Mangum, Brown v. Allen, and Townsend v. Sain, the Supreme Court acknowledged that federal courts might sensibly rely on the primary facts found in state court. See Section II. The modern statute in point, 28 U.S.C. § 2254(e), was given its present form by yet another provision in AEDPA. Paragraph (1) of that section provides as follows:

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

a. Does this provision establish a kind of issue preclusion with respect to state findings of historical fact (as distinct from conclusions of law and determinations of mixed questions of law and fact)? b. The presumption in favor of state court findings isn’t explicitly conditioned on any requirement that the fact-finding process in state court was procedurally regular and fair. Does that mean that a federal court is obliged to accept state findings, no questions asked? In a separate opinion in Miller-El v. Cockrell, 537 U.S. 322 (2003), Justice Thomas said that the presumption in paragraph (1) operates without regard to any “procedural infirmities” in state court. Compare that with Chief Justice Warren’s opinion in Townsend. See Section II, Note 12. c. The presumption with respect to state findings of primary fact places heavy weight on the familiar fact/law distinction. It is one thing to accept state findings of historical facts and quite another to accept state court applications of law to those historical facts. Findings of fact rest in the main on credibility choices; applications of law are the crux of judicial judgment on

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the merits of claims. See Section II, Note 11(b); Section III, Notes 10, 12. There are, however, close calls to make. And the Court is frank to say that it sometimes characterizes a question as factual or mixed according to whether the justices think the issue is better resolved in state or federal court. Miller v. Fenton, 474 U.S. 104, 113-15 (1985). d. Paragraph (2) of § 2254(d) allows a federal court to award habeas relief on the merits if a previous state court adjudication “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.” See Section IV, Note 12. Does that provision comport with the presumption in favor of state court findings contained in paragraph (1) of § 2254(e)? If a federal court is to determine whether a state court relied on an “unreasonable determination” of facts, won’t the court have to consider the process by which the state court reached its factual findings and the evidentiary support those findings enjoyed? e. How (precisely) should a district court set about applying both paragraph (1) of § 2254(e) and paragraph (2) of § 2254(d) in a single case? Can a federal court presume that the facts found in state court are accurate and yet grant habeas corpus relief on the ground that the state court’s decision on a prisoner’s claim was based on an unreasonable determination of the facts? Can a federal court conclude that state findings are erroneous despite the presumption in their favor and still decide that those erroneous findings are not, as an additional matter, “unreasonable” and, for that reason, deny relief? In an opinion for the Court in Wiggins v. Smith, 539 U.S. 510 (2003), Justice O’Connor explained that a state court had based its conclusion about defense counsel’s performance in part on a “clear factual error”—namely, that social services records contained evidence that the defendant had been sexually abused as a child when, in fact, those records revealed nothing about the matter. O’Connor then said that the state court’s assumption that the records documented instances of abuse had been shown to be incorrect by “clear and convincing evidence” for purposes of § 2254(e)(1) and that it reflected an “unreasonable determination of the facts in light of the evidence presented in the State court proceeding” within the meaning of § 2254(d)(2). Is that helpful? 2. Federal Hearings. The Michael Williams case implicated paragraph (2) of § 2254(e), which limits the circumstances in which a federal court may hold its own evidentiary hearing to determine questions of fact related to a prisoner’s federal claim. Notice that paragraph (2) says nothing about whether a federal court is empowered or obliged to conduct a fact-finding hearing; those questions continue to be governed by Townsend v. Sain, 372 U.S. 293 (1963), see Section II, Note 12, supplemented by special habeas corpus rules established since. E.g., § 2254 Rule 8(a) (stating that the court “shall” determine whether an evidentiary hearing is “required”); § 2254 Rule 8(c) (stating that the court must appoint counsel to represent an indigent petitioner in a federal hearing); cf. 28 U.S.C. § 636(b)(1)(B) (stating that a district judge may assign the conduct of a hearing to a magistrate judge). But paragraph (2) does establish important negative limits on a federal court’s authority. Those limits are demanding; scarcely any prisoner would be able to satisfy them. Is that why the Court held in Michael Williams that prisoners who were diligent in state court don’t have to? 3. Reconciling § 2254(d)(2). The availability of federal hearings in at least some cases creates more tension with paragraph (2) of § 2254(d). If a prisoner was diligent in state court, a federal court may hold its own hearing, take evidence, and find facts that were not established in

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previous state proceedings. Yet the federal court is generally unable to grant habeas corpus relief unless a previous state court decision against the prisoner was based on “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” How can a federal court take additional testimony and find additional facts for itself and then be forced to deny federal relief on the theory that a state court’s previous decision was reasonable in light of the different evidence the state court saw? Is it open to say that paragraph (2) of § 2254(d) restricts a federal court to an examination of the record developed in state court only if the federal court doesn’t hold its own hearing? And that if a federal hearing is conducted and new evidence is heard and additional facts are found, the federal court is free to consider those additional facts? In Holland v. Jackson, 542 U.S. 934 (2004), the Court noted that “[w]here new evidence is admitted, some Courts of Appeals have conducted de novo review on the theory that there is no relevant state-court determination to which one could defer.” The Court assumed arguendo that “this analysis is correct.” Isn’t it pretty clear that the lower courts’ analysis is correct? It’s one thing to say that federal habeas relief should be barred when federal and state courts have a reasonable disagreement about the facts in light of a common evidentiary record. Wouldn’t it be something else to say that federal relief should equally be barred when a federal court arrives at different factual determinations on the basis of an expanded body of evidence? C. Appellate Review

Miller-El v. Cockrell

537 U.S. 322 (2003)

Justice KENNEDY delivered the opinion of the Court. Congress mandates that a prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no automatic right to appeal a district court’s denial or dismissal of the petition. Instead, petitioner must first seek and obtain a [certificate of appealability (COA)]. [W]hen a habeas applicant seeks permission to initiate appellate review . . . , the court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims. Slack v. McDaniel, 529 U.S. 473, 481 (2000). . . . [A] prisoner seeking a COA need only demonstrate “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. Applying these principles to petitioner’s application, we conclude a COA should have issued [for appellate review of the district court’s treatment of the petitioner’s race discrimination claim]. [O]ur determination to reverse the Court of Appeals counsels us to explain in some detail the extensive evidence concerning the jury selection procedures. . . . [In this case,] 91% of the eligible black jurors were removed by peremptory strikes. In contrast the prosecutors used their peremptory strikes against just 13% . . . of the eligible nonblack prospective jurors. . . . During voir dire, the prosecution questioned venire members as to their views concerning the death penalty and their willingness to serve on a capital case. . . . Most African-Americans (53%, or 8

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out of 15) were first given a detailed description of the mechanics of an execution in Texas. . . . Only then were these African-American venire members asked whether they could render a decision leading to a sentence of death. Very few prospective white jurors . . . were given this preface prior to being asked for their views on capital punishment. . . . . A 1963 circular by the District Attorney’s Office instructed its prosecutors to exercise peremptory strikes against minorities: “Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.” . . . Some testimony casts doubt on the State’s claim that these practices had been discontinued before petitioner’s trial. . . . The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. . . . [A] COA does not require a showing that the appeal will succeed. . . . After all, when a COA is sought, the whole premise is that the prisoner “has already failed in that endeavor.”. . . The COA inquiry asks only if the District Court’s decision was debatable. Our threshold examination convinces us that it was. Justice SCALIA, concurring. Many Courts of Appeals decisions have denied applications for a COA only after concluding that the applicant was not entitled to habeas relief on the merits. . . . The Court disapproves this approach. . . . Less clear from the Court’s opinion, however, is why a “circuit justice or judge,” in deciding whether to issue a COA, must “look to the District Court’s application of AEDPA to [a habeas petitioner’s] constitutional claims and ask whether that resolution was debatable amongst jurists of reason.” (emphasis added). Section 2253(c)(2) . . . provides that “[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” A “substantial showing” does not entitle an applicant to a COA; it is a necessary and not a sufficient condition. Nothing in the text of § 2253(c)(2) prohibits a circuit justice or judge from imposing additional requirements. . . . The Court today imposes [an] additional requirement: A circuit justice or judge must deny a COA, even when the habeas petitioner has made a substantial showing that his constitutional rights were violated, if all reasonable jurists would conclude that a substantive provision of the federal habeas statute bars relief. To give an example, suppose a state prisoner presents a constitutional claim that reasonable jurists might find debatable, but is unable to find any “clearly established” Supreme Court precedent in support of that claim (which was previously rejected on the merits in state-court proceedings). Under the Court’s view, a COA must be denied, even if the habeas petitioner satisfies the “substantial showing of the denial of a constitutional right” requirement . . . , because all reasonable jurists would agree that habeas relief is impossible to obtain under § 2254(d).

Notes on Appellate Review 1. Claims that Warrant Review. The point of requiring a certificate of appealability is plain enough—to screen out frivolous appeals. Here again, though, there are interpretive problems.

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Notice, for example, that paragraph (2) makes it sound as though only appeals regarding “constitutional” questions can be certified. Would that make sense? Writing for the Court in Slack v. McDaniel, 529 U.S. 473 (2000), Justice Kennedy recognized that prisoners often seek appellate review of district court decisions on non-constitutional procedural issues—e.g., the exhaustion and procedural default doctrines. To ensure that district court judgments on those matters are subject to appellate supervision, Kennedy held that in a case in which a district court denied habeas relief on procedural grounds without reaching the merits of a constitutional claim, a prisoner can obtain a COA by satisfying the “substantiality” standard both with respect to the constitutional claim advanced in his petition and with respect to the non-constitutional procedural issue on which the district court decision rested. Does that dispose of all the problems the reference to “constitutional” questions may present?

2. What Must be Reasonably Debatable? Is Justice Scalia’s explanation of Justice Kennedy’s opinion in Miller-El correct? By Scalia’s account, Kennedy recognized that a district court’s denial of relief with respect to a claim is typically affected by various restrictions on the court’s power in habeas proceedings. Accordingly, those other features of habeas corpus law may influence a decision on the question whether a prisoner is entitled to a certificate making it possible to appeal. Under § 2254(d)(1), for example, the district court may have withheld relief on the basis of a previous state court decision on the merits that the district court thought was neither contrary to, nor an unreasonable application of, relevant Supreme Court holdings. Accordingly, when a judge is asked to issue a COA, the task is not to decide whether the accuracy of the district court’s judgment regarding the substantive bona fides of the prisoner’s claim is open to reasonable disagreement. If the district court rested its decision against the prisoner on § 2254(d), it reached no such judgment. The task is to decide whether the accuracy of the district court’s application of § 2254(d)(1) is reasonably debatable. Similarly, under § 2254(e)(1), the district court may have presumed that state findings of fact were correct and concluded that the prisoner could produce no clear and convincing evidence to the contrary. In that event, a COA can issue only if the district court’s application of § 2254(e)(1) is reasonably debatable. This makes the COA inquiry a lot more complicated, doesn’t it? a. Justice Scalia ackowledged that the provision actually interpreted in Miller-El, § 2253(c)(2), requires only a “substantial showing of the denial of a constitutional right” and that attention to the district court’s handling of other habeas issues is an “additional requirement” added by the Court. Why is the text of § 2253(c)(2) not dispositive by its own terms, but instead fixes only a “necessary but not a sufficient condition” on the issuance of a COA? Is it only because § 2253(c)(2) says that a COA “may” issue on the terms specified? That’s a slender reed, is it not? In a dissenting opinion in Medellin v. Dretke, 544 U.S. 660 (2005), Justice O’Connor (joined by Justices Stevens, Souter, and Breyer), said that the availability of relief under § 2254(d) is “an appropriate consideration for an appellate court contemplating whether to grant a COA.” For that proposition, O’Connor cited Justice Scalia’s concurring opinion in Miller-El. b. Let’s see. The district court’s task under § 2254(d)(1) is to decide not whether a previous state court judgment was correct, but whether it was reasonable. Then the judge charged to decide whether to issue a COA decides not whether the district court correctly decided that a state court’s decision was reasonable, but whether the district court’s decision regarding the reasonableness of a state court decision is open to reasonable debate. Is that right?

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Now then. If a certificate is denied at the circuit level and the prisoner obtains certiorari review of the question whether one should have been granted, what does the Supreme Court decide? Cf. Banks v. Dretke, 540 U.S. 668 (2004) (holding that a circuit court should have issued a certificate because “jurists of reason could disagree with the district court’s resolution” of the procedural question whether F. R. Civ. P. 15(b) applied in a habeas setting). Got it?

____________________ D. Second or Successive Petitions

Stewart v. Martinez-Villareal

523 U.S. 637 (1998) Chief Justice REHNQUIST delivered the opinion of the Court. In Ford v. Wainwright, 477 U.S. 399 (1996), we held that “the Eighth Amendment prohibits a State from inflicting the penalty of death upon a prisoner who is insane.” In this case, we must decide whether respondent Martinez-Villareal’s Ford claim is subject to the restrictions on “second or successive” applications for federal habeas relief found in the newly revised 28 U.S.C. § 2244. . . . We conclude that it is not. . . . In March 1993, respondent filed a . . . habeas petition in federal court. In addition to raising other claims, respondent asserted that he was incompetent to be executed. Counsel for the State urged the District Court to dismiss respondent’s Ford claim as premature. The court did so but granted the writ on other grounds. The Court of Appeals . . . reversed the District Court’s granting of the writ but explained that its instruction to enter judgment . . . was not intended to affect any later litigation of the Ford claim. . . . On remand to the District Court, respondent, fearing that the newly enacted Antiterrorism and Effective Death Penalty Act (AEDPA) might foreclose review of his Ford claim, moved the court to reopen his earlier petition. In March 1977, the District Court denied the motion and reassured respondent that it had “no intention of treating the [Ford] claim as a successive petition.” . . . . Shortly thereafter, the State obtained a warrant for respondent’s execution. Proceedings were then held in the Arizona Superior Court on respondent’s mental condition. That court concluded that respondent was fit to be executed. The Arizona Supreme Court rejected his appeal of that decision. Respondent then moved in the Federal District Court to reopen his Ford claim. . . . [The State] responded that under AEDPA, the court lacked jurisdiction. The District Court agreed . . . , ruling . . . that it did not have jurisdiction over the claim. Respondent then moved in the Court of Appeals for permission to file a successive habeas corpus application. § 2244(b)(3). The Court of Appeals . . . held that § 2244(b) did not apply to a petition that raises only a competency to be executed claim and that respondent did not, therefore, need authorization to file the petition in the District Court. It accordingly transferred the petition . . . back to the District Court. . . . We granted certiorari. . . . Before reaching the question presented, . . . we must first decide whether we have

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jurisdiction over this case. In AEDPA, Congress established a “gatekeeping” mechanism for the consideration of “second or successive habeas corpus applications” in the federal courts. . . . An individual seeking to file a “second or successive” application must move in the appropriate court of appeals for an order directing the district court to consider his application. § 2244(b)(3)(A). . . . A court of appeals’ decision whether to grant authorization “to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” § 2244(b)(3)(E). If the Court of Appeals in this case had granted respondent leave to file a second or successive application, then we would . . . have to dismiss the [State’s petition for a] writ [of certiorari]. This is not, however, what the Court of Appeals did. The Court of Appeals held that the § 2244(b) restrictions simply do not apply to respondent’s Ford claim, and that there was accordingly no need for him to apply for authorization to file a second or successive petition. We conclude today that the Court of Appeals reached the correct result in this case, and that we therefore have jurisdiction to consider . . . [the warden’s] petition [for certiorari]. Section 2244(b) provides:

(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless— (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

If respondent’s current request for relief is a “second or successive” application, then it plainly should have been dismissed. The Ford claim had previously been presented in the 1993 petition, and would therefore be subject to dismissal under subsection (b)(1). Even if we were to consider the Ford claim to be newly presented in the 1997 petition, it does not fit within either of subsection (b)(2)’s exceptions, and dismissal would still be required. [The warden contends] . . . that because respondent has already had one “fully-litigated habeas petition, the plain meaning of § 2244(b) as amended requires his new petition to be treated as successive.” . . . Under that reading of the statute, respondent is entitled to only one merits judgment on his federal habeas claims. Because respondent has already presented a petition to the District Court, and the District Court and the Court of Appeals have acted on that petition, § 2244(b) must apply to any subsequent request for federal habeas relief. . . . But the only claim on which respondent now seeks relief is the Ford claim that he presented to the

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District Court, along with a series of other claims, in 1993. The District Court, acting for the first time on the merits of any of respondent’s claims for federal habeas relief, dismissed the Ford claim as premature. . . . This may have been the second time that respondent had asked the federal courts to provide relief on his Ford claim, but this does not mean that there were two separate applications, the second of which was necessarily subject to § 2244(b). There was only one application for habeas relief, and the District Court ruled (or should have ruled) on each claim at the time it became ripe. . . . If [the warden’s] . . . interpretation of “second or successive” were correct, the implications for habeas practice would be far reaching and seemingly perverse. . . . [N]one of our cases . . . have ever suggested that a prisoner whose habeas petition was dismissed for failure to exhaust state remedies, and who then did exhaust those remedies and returned to federal court, was by such action filing a successive petition. A court where such a petition was filed could adjudicate these claims under the same standard as would govern those made in any other first petition. We believe that respondent’s Ford claim here—previously dismissed as premature—should be treated in the same manner as the claim of a petitioner who returns to a federal habeas court after exhausting state remedies. . . .21 [FN*] Thus, respondent’s Ford claim was not a “second or successive” petition under § 2244(b) and we have jurisdiction to review the judgment of the Court of Appeals on [the warden’s] . . . petition for certiorari. . . . [F]or the same reasons that we find we have jurisdiction, we hold that the Court of Appeals was correct in deciding that respondent was entitled to a hearing on the merits of his Ford claim in the District Court. Justice SCALIA, with whom Justice THOMAS joins, dissenting. [I]t is impossible to conceive of language that more clearly precludes respondent’s renewed competency-to-be-executed claim than the written law before us here: a “claim presented in a second or successive habeas corpus application . . . that was presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). . . . The Court today flouts the unmistakable language of the statute to avoid what it calls a “perverse” result. . . . There is nothing “perverse” about the result that the statute commands, except that it contradicts pre-existing judge-made law, which it was precisely the purpose of the statute to change. . . . Respondent received a full hearing on his competency-to-be-executed claim in state court. . . . To say that it is “perverse” to deny respondent a second round of time-consuming lower-federal-court review of his conviction and sentence . . . is to say that state-court determinations must always be reviewable, not merely by this Court, but by federal district courts. That is indeed the principle that this Court’s imaginative habeas-corpus jurisprudence had established, but it is not a principle of natural law. Lest we forget, Congress did not even have to create inferior federal

21 [FN*] This case does not present the situation where a prisoner raises a Ford claim for the first time in a petition filed after the federal courts have already rejected the prisoner’s initial habeas application. Therefore, we have no occasion to decide whether such a filing would be a “second or successive habeas corpus application” within the meaning of AEDPA.

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courts, . . . let alone invest them with plenary habeas jurisdiction over state convictions. And for much of our history, . . . prisoners convicted by validly constituted courts of general criminal jurisdiction had no recourse to habeas corpus relief at all. . . .

Notes on Second or Successive Petitions

1. Multiple Federal Petitions. While it is true that § 2244(b) did not foreclose the petitioner’s claim in Martinez-Villareal, we should be clear that it was not because this provision in AEDPA was satisfied, but rather because it was inapplicable. The petition was second in fact, but not in law—not, this is to say, within the meaning of the statute. If § 2244(b) had been applicable, the case would have been quite different. Chief Justice Rehnquist was clear that a second or successive petition would have been dismissed, if not under paragraph (1) then under paragraph (2). But see Note 4. 2. Previous Dismissal on Exhaustion Grounds. What of the analogy to exhaustion doctrine cases? In Slack v. McDaniel, 529 U.S. 473 (2000), a district court dismissed a prisoner’s initial § 2254 petition on the ground that it included some claims for which state avenues of litigation remained open. The prisoner exhausted state opportunities for litigating those claims and then filed another federal petition, advancing both the claims he had included in his first petition and additional claims he had not raised earlier. Justice Kennedy held that the prisoner’s second petition was not subject to dismissal as a second or successive application, even though it contained new claims. Since the prisoner’s initial petition had been dismissed without prejudice on the basis of the exhaustion doctrine, that petition must be treated as though it had never been filed. As in the Martinez-Villareal case, in the eyes of the law the prisoner’s second petition was actually his first. In an aside, however, Justice Kennedy distinguished a case in which a prisoner deliberately withdraws claims from a mixed petition and presses ahead with claims that are ready for federal adjudication. See Section VI, Note 9(b). 3. Different Claims. In most cases, prisoners who were unsuccessful with a prior petition raise different claims in a subsequent application. Now § 2244(b)(2) is controlling, and the standards in subparagraphs (A) and (B) of that section are extremely demanding. It’s clear that they foreclose most multiple filings. Notice that they approximate the standards in § 2244(d)(1) (establishing filing deadlines) and the standards in § 2254(e)(2) (governing federal evidentiary hearings). Common interpretive questions thus reappear in this different context. See, e.g., Tyler v. Cain, 533 U.S. 656 (2001) (holding that paragraph (2)(A) of § 2244(b) requires a preexisting Supreme Court “holding” that a new rule is available as a condition precedent to a prisoner’s ability to file a second or successive § 2254 petition seeking habeas relief on the basis of that rule); cf. Subsection A, Note 2(d) (discussing the effect of Tyler on the corresponding filing deadline provisions). 4. The Gatekeeping Arrangement. Paragraph (3) of § 2244(b) creates yet another screening mechanism for habeas corpus petitions. Cf. Subsection C (on certificates of appealability). See also paragraph 8 of § 2255. A prisoner who wants to file a second or successive petition “permitted by this section” must obtain an authorizing order from the relevant circuit court of

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appeals. The circuit court may issue such an order only if it finds that the petition “makes a prima facie showing that the application satisfies the requirements of this subsection.” a. What’s the point of forcing prisoners who want to file lawsuits at the district court level to go first to an appellate court for permission? Efficiency? b. It’s clear that a prisoner who advances a claim that was not included in a prior petition must first get permission from a circuit court—by making out a prima facie case that his petition meets the standards in subparagraphs (A) or (B) of paragraph (2). Is it equally clear that a prisoner who wants to raise the same claim again must also get a circuit court’s permission by making a similar showing with respect to the standard is paragraph (1)? What standard is that? Read closely What are the issues (and thus the arguments)? c. Under subparagraph (E) of paragraph (3), a circuit court decision either to grant or to deny authorization to file a second or successive petition “shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” What do you make of that? The Supreme Court held in Felker v. Turpin, 518 U.S. 651 (1996), that subparagraph (E) cuts off the usual certiorari path to the Court itself, but leaves open the Court’s jurisdiction to examine a circuit decision via an original petition for habeas relief. See Section I (A), Note 2. 5. Claims that Arise Late. The point of § 2244(b) is presumably to encourage prisoners to consolidate all their claims in a single petition. But aren’t there some claims that are likely to be raised late, after other claims have been unsuccessful? Isn’t a Ford claim one of them? After all, most prisoners under sentence of death will challenge their convictions and sentences in initial petitions but will not, at that time, raise a Ford claim—for the obvious reason that such a claim is premature until the eve of execution. Consider the footnote in Chief Justice Rehnquist’s opinion. Is it possible that in another case, in which a prisoner withholds a premature Ford claim from a petition challenging the validity of his conviction or sentence and raises it for the first time in a second petition challenging actual execution, the new petition will count as second in law as well as in fact and thus will bring the § 2244(b)(2) limits into play? If this is the likely scenario, a prisoner might hedge by advancing a Ford claim in an initial petition notwithstanding that it is plainly premature and cannot be entertained—i.e., he might do what was done in Martinez-Villareal. Would it make sense to create that incentive? Might a prisoner with a Ford claim have any other options? See Section IX, Note 4(d).

____________________ IX. Habeas Corpus and Section 1983

Preiser v. Rodriguez

411 U.S. 475 (1973) Justice STEWART delivered the opinion of the Court. The respondents in this case were state prisoners who were deprived of good-conduct-time credits by the New York State Department of Correctional Services as a result of disciplinary proceedings. They then brought actions . . . pursuant to . . . § 1983. Alleging that

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the Department had acted unconstitutionally in depriving them of the credits, they sought injunctive relief to compel restoration of the credits, which in each case would result in their immediate release from confinement in prison. The question before us is whether state prisoners seeking such redress may obtain equitable relief under the Civil Rights Act, even though the federal habeas corpus statute, 28 U.S.C. § 2254, clearly provides a specific federal remedy. . . . The question is of considerable practical importance. For if a remedy under the Civil Rights Act is available, a plaintiff need not first seek redress in a state forum. . . . If, on the other hand, habeas corpus is the exclusive federal remedy in these circumstances, then a plaintiff cannot seek the intervention of a federal court until he has first sought and been denied relief in the state courts, if a state remedy is available and adequate. . . . It is clear, not only from the language of § § 2241(c)(3) and 2254(a), but also from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody. . . . [T]he respondents’ suits . . . fell squarely within this traditional scope of habeas corpus. . . . Even if the restoration of the respondents’ credits would not have resulted in their immediate release, but only in shortening the length of their actual confinement in prison, habeas corpus would have been their appropriate remedy. . . . The broad language of § 1983 . . . is not conclusive of the issue before us. The statute is a general one, and, despite the literal applicability of its terms, the question remains whether the specific federal habeas corpus statute, explicitly and historically designed to provide the means for a state prisoner to attack the validity of his confinement, must be understood to be the exclusive remedy available in a situation like this where it so clearly applies. . . . In amending the habeas corpus laws in 1948, Congress clearly required exhaustion of adequate state remedies as a condition precedent to the invocation of federal judicial relief under those laws. It would wholly frustrate explicit congressional intent to hold that the respondents in the present case could evade this requirement by the simple expedient of putting a different label on their pleadings. In short, Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, and that specific determination must override the general terms of § 1983. . . . [T]he respondents contend that confining state prisoners to federal habeas corpus, after first exhausting state remedies, could deprive those prisoners of any damages remedy to which they might be entitled for their mistreatment, since damages are not available in federal habeas corpus proceedings. . . .They argue that even if such a prisoner were to bring a subsequent federal civil rights action for damages, that action could be barred by principles of res judicata where the state courts had previously made an adverse determination of his underlying claim, even though a federal habeas court had later granted him relief on habeas corpus. The answer to this contention is that the respondents here sought no damages, but only equitable relief—restoration of their good-time credits—and our holding today is limited to that situation. If a state prisoner is seeking damages, he is attacking something other than the fact or length of his confinement, and he is seeking something other than immediate or more speedy release—the traditional purpose of habeas corpus. In the case of a damages claim, habeas corpus

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is not an appropriate or available federal remedy. Accordingly, . . . a damages action by a state prisoner could be brought under the Civil Rights Act in federal court without any requirement of prior exhaustion of state remedies. . . . The respondents place a great deal of reliance on our recent decisions upholding the right of state prisoners to bring federal civil rights actions to challenge the conditions of their confinement. . . . But none of the state prisoners in those cases was challenging the fact or duration of his physical confinement itself, and none was seeking immediate release or a speedier release from that confinement. . . . This is not to say that habeas corpus may not also be available to challenge such prison conditions. . . . When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal. . . . But we need not in this case explore the appropriate limits of habeas corpus as an alternative remedy to a proper action under § 1983.

Heck v. Humphrey

512 U.S. 477 (1994) Justice SCALIA delivered the opinion of the Court. This case presents the question whether a state prisoner may challenge the constitutionality of his conviction in a suit for damages under . . . § 1983. . . . Petitioner Roy Heck was convicted in Indiana state court . . . and is serving a 15-year sentence in an Indiana prison. While the appeal from his conviction was pending, petitioner, proceeding pro se, filed this [§ 1983] suit . . . [alleging that state prosecutors had violated his federal rights in preparing for trial]. . . . The complaint sought, among other things, compensatory and punitive monetary damages. It did not ask for injunctive relief, and petitioner has not sought release from custody in this action. . . .22 [FN4] This case is clearly not covered by the holding of Preiser, for petitioner seeks not immediate or speedier release, but monetary damages. . . .[W]e think the dicta of Preiser to be an unreliable, if not an unintelligible, guide: that opinion had no cause to address, and did not carefully consider, the damages question before us today. . . . Thus, the question posed by § 1983 damages claims that . . . call into question the lawfulness of conviction or confinement remains open. To answer that question correctly, we see no need to abandon . . . our teaching that § 1983 contains no exhaustion requirement beyond what Congress has provided. . . . The issue with respect to monetary damages challenging conviction is not, it seems to us, exhaustion; but rather, the same as the issue was with respect to injunctive relief challenging conviction in Preiser: whether the claim is cognizable under § 1983 at all. We conclude that it is not.

22 [FN4] We . . . decline to pursue, without implying the nonexistence of, another issue, suggested by the Court of Appeals’ statement that, if petitioner’s “conviction were proper, this suit would in all likelihood be barred by res judicata.” The res judicata effect of state-court decisions in § 1983 actions is a matter of state law. . . .

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“We have repeatedly noted that . . . § 1983 creates a species of tort liability.”. . . Thus, to determine whether there is any bar to the present suit, we look first to the common law of torts. . . . The common-law cause of action for malicious prosecution provides the closest analogy to claims of the type considered here because, unlike the related cause of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to legal process. . . . One element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused. . . . We think the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions for malicious prosecution. . . . We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid,23 [FN6] a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. . . . A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed,24 [FN7] in the

23 [FN6] An example of this latter category—a § 1983 action that does not seek damages directly attributable to conviction or confinement but whose successful prosecution would necessarily imply that the plaintiff’s criminal conviction was wrongful—would be the following: A state defendant is convicted of and sentenced for the crime of resisting arrest, defined as intentionally preventing a peace officer from effecting a lawful arrest. . . . He then brings a § 1983 action against the arresting officer, seeking damages for violation of his Fourth Amendment right to be free from unreasonable seizures. In order to prevail in this § 1983 action, he would have to negate an element of the offense of which he has been convicted. Regardless of the state law concerning res judicata, . . . the § 1983 action will not lie. 24 [FN7] For example, a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff’s still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, and especially harmless error, such a § 1983 action, even if successful, would not necessarily imply that the plaintiff’s conviction was unlawful. In order to recover compensatory damages, however, the § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, … which, we hold today, does not encompass the “injury” of being convicted and imprisoned (until

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absence of some other bar to the suit.25 [FN8] Justice SOUTER, with whom Justice BLACKMUN, Justice STEVENS, and Justice O’CONNOR join, concurring in the judgment. . . . I see [no] policy reflected in a congressional enactment that would justify denying to an individual today federal damages (a significantly less disruptive remedy than an order compelling release from custody) merely because he was unconstitutionally fined by a State, or to a person who discovers after his release from prison that, for example, state officials deliberately withheld exculpatory material. . . . I would not cast doubt on the ability of an individual unaffected by the habeas statute to take advantage of the broad reach of § 1983. . . .

Notes on Habeas and § 1983

1. Overlapping Rights of Action. Judging from their literal text, §§ 2241-2254 and § 1983 authorize similar actions—namely, suits by private individuals charging state officials with violations of federal rights, typically grounded in the Fourteenth Amendment. Why is that troubling? If, in the circumstances of any particular case, a litigant satisfies the prerequisites of the statutory right of action he or she actually pursues, what difference does it make whether an independent statutory basis for the action is available? Why does the overlap necessarily call on the Court to distinguish the two rights of action and channel some litigants into one and some into the other? a. The practical explanation is, of course, the exhaustion doctrine. And obviously there are many other habeas-specific arrangements, all of them presumably meant to shape the way in which Fourteenth Amendment claims are to be enforced by federal courts in at least some kinds of cases, e.g., cases in which the alleged violations go to the fact or duration of a complainant’s detention. In many instances, those habeas arrangements respond to comity and federalism themes. The idea, then, is that efforts to defuse friction with the states and state courts in habeas litigation would be undermined if prisoners were able avoid the limitations those efforts produce simply by changing the labels on their complaints. But don’t the arrangements that have developed around § 1983 also respond to similar considerations? Why do the rules governing habeas necessarily trump the rules governing § 1983? b. Notice that while the Court felt called upon to distinguish habeas corpus from § 1983 in Preiser and Heck, the Court did not insist, or at least did not squarely hold, that the two are mutually exclusive.

his conviction has been overturned). 25 [FN8] For example, if a state criminal defendant brings a federal civil-rights lawsuit during the pendency of his criminal trial, appeal, or state habeas action, abstention may be an appropriate response to the parallel state-court proceedings. . . . Moreover, we do not decide whether abstention might be appropriate in cases where a state prisoner brings a § 1983 damages suit raising an issue that also could be grounds for relief in a state-court challenge to his conviction or sentence. . . .

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2. A Statutory Construction Resolution? Can the problem of overlap, if any there is, be resolved by statutory construction alone—i.e., by mining the statutes in point for answers? In Preiser, Justice Stewart conceded that the “broad” language in § 1983 was on the plaintiffs’ side. He nonetheless purported to give effect to congressional “intent” by reading the more “specific” habeas statutes to trump the general text of § 1983. Stewart relied on the history and traditions associated with habeas corpus to conclude that habeas occupied the baseline position, while § 1983 was peripheral. Was that satisfying? Consider that habeas has developed as a device for obtaining relief other than release from custody or a diminution of a term of detention. See Section V. Moreover, Stewart himself conceded that it is an open question whether habeas supplies a vehicle for attacking the conditions of a prisoner’s confinement (without the promise of any effect on its duration). See Bell v. Wolfish, 441 U.S. 520, 527 n.6 (1979) (again noting the question and again leaving it open). In any event, there will surely be other instances in which two statutes appear to authorize private suits and neither has any particular historical claim to hegemony. What then? a. In Heck, Justice Scalia relied on the idea that § 1983 establishes is a “species of tort liability” and thus searched for a common law tort whose elements might be read into § 1983, thus to supply limiting conditions that § 1983 itself does not spell out. He came up with malicious prosecution. Since a plaintiff in that kind of tort action would have to establish, at the threshold, that the prosecution in question had been terminated in his favor, Scalia concluded that a § 1983 plaintiff like the plaintiff in Heck must equally show, at the outset, that his conviction has been “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal . . . , or called into question by a federal court’s issuance of a writ of habeas corpus.” Did that line of analysis comport with the Court’s reliance on tort law in other § 1983 contexts? Why didn’t Justice Scalia simply construe § 1983 on its own bottom to be conditioned on an earlier conclusion that the basis of a plaintiff’s detention is invalid and explain that construction as necessary to reconcile § 1983 with habeas? b. Notice that Justice Souter objected not that Scalia borrowed from tort law, but that Scalia appeared to foreclose § 1983 suits by plaintiffs who have no access to federal court via habeas corpus. In subsequent cases, other justices adopted Souter’s view that the Heck rule is applicable only if the would-be § 1983 plaintiff is in a position to employ habeas corpus to dislodge his conviction. See Spencer v. Kemna, 523 U.S. 1, 21 (1998) (Ginsburg, J., concurring); but cf. Muhammad v. Close, 540 U.S. 749, 752 n.2 (per curiam) (2004) (indicating that it is an open question whether a § 1983 suit can proceed if the plaintiff is unable to seek habeas corpus relief for some reason other than a failure to exhaust state avenues for litigating a federal claim). What if a claim would be procedurally foreclosed in habeas or Teague-barred? 3. The Request for Relief. Justice Stewart divvied up cases between habeas and §1983 on the basis of the relief sought. The core of habeas is a challenge to the “fact or duration” of detention. Accordingly, if a litigant wants an order terminating or abbreviating a term of confinement (i.e., an injunctive-style order affecting current or future circumstances), habeas is the only vehicle. But if a litigant seeks damages (i.e., backward-looking compensation for a wrong in the past), a § 1983 suit is available. Why wasn’t that a satisfying and stable way to reconcile these two statutes? Why was it “unintelligible.” a. Was Justice Scalia right in Heck that some suits for damages nonetheless should count

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as suits seeking relief from confinement, because a successful result would “necessarily imply” that the basis of a litigant’s detention [in Heck, it was a criminal conviction], is invalid and, accordingly, that the litigant is entitled either to immediate release or an adjustment in the term of his confinement? If he was, then Justice Stewart’s comparatively simple distinction between suits for forward-looking and backward-looking relief seems inadequate. But if a successful § 1983 suit for damages establishes a constitutional violation and puts a plaintiff in position to seek relief from current confinement, isn’t that a good result? Now, ceteris paribus, the plaintiff can presumably amend his complaint, add a request for an injunction requiring his release, and get that relief on the basis of the violation the court has just found. Why is that troublesome? b. Justice Scalia was troubled, evidently because under this scenario the plaintiff would obtain habeas-style relief without jumping through the hoops established for habeas actions, most obviously the requirement that state judicial remedies must be exhausted before a federal court takes up the merits of a claim. Scalia emphasized that Preiser and Heck are not about the exhaustion doctrine, but rather the proper scope of § 1983. But isn’t exhaustion the principal practical consideration? c. In cases like Heck itself, the Younger abstention doctrine will typically prevent a defendant in ongoing state criminal proceedings from filing a § 1983 action seeking declaratory or injunctive relief. See Chapter Eight. There is a way, then, in which Younger accomplishes, in the context of § 1983, what the exhaustion doctrine achieves for habeas actions. See Section VI, Note 6. Was Justice Scalia concerned that Younger would not keep a defendant from filing a § 1983 action for damages? Was that why it was essential to read § 1983 to be unavailable, irrespective of the relief requested? 4. The Underlying Basis for Detention. Was Justice Scalia’s alternative approach an improvement? Is it going to be easy to decide whether success in a § 1983 suit will “necessarily imply” that a litigant’s current detention is in violation of federal law? Won’t federal courts entertaining § 1983 actions have to make some pretty tough decisions about whether the legal basis of the plaintiff’s detention might survive notwithstanding a demonstrated constitutional error? Note that Justice Scalia explicitly said that courts must assess whether an invalid search would have kept prosecutors from introducing the evidence turned up and even whether a constitutional error would have been “harmless.” Scalia himself italicized the term “necessarily.” Is it possible that, despite all the concern he expressed about § 1983 actions in Heck, Scalia meant that courts should allow § 1983 suits to go forward unless they are pretty sure that success will “imply” that the plaintiff’s confinement is unlawful? a. In Edwards v. Balisok, 520 U.S. 641 (1997), a prison inmate filed a § 1983 action seeking declaratory, injunctive, and compensatory relief on the theory that a prison disciplinary committee had deprived him of “good time” credits in a hearing that lacked the basic elements of due process. In an opinion for the Court, Justice Scalia said that if that due process claim was successful, the validity of the committee’s judgment would necessarily be drawn into question. Accordingly, a § 1983 suit was barred, unless and until the prisoner dislodged that judgment by other means. b. In Muhmammad v. Close, 540 U.S. 749 (2004), another prisoner sued exclusively for monetary damages arising from several days of segregation pending a disciplinary hearing. The magistrate explicitly ruled that no “good time” credits were in issue and, accordingly, that success would not affect the “fact or duration” of the plaintiff’s confinement. In a per curiam,

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the Court explained that the prisoner had advanced “no claim on which habeas corpus relief could have been granted . . . , with the consequence that Heck’s favorable termination requirement was inapplicable.” c. In Hill v. McDonough, 126 S.Ct. ___ (2006), a prisoner under sentence of death filed a § 1983 suit advancing the argument that the concoction of chemicals by which the state proposed to kill him would cause unnecessary pain and thus constitute cruel and unusual punishment. Writing for a unanimous Court, Justice Kennedy explained that § 1983 was available. The prisoner didn’t contend that his death sentence was invalid, but only that he could not be executed in the manner the state planned. d. In Stewart v. Martinez-Villareal, 523 U.S. 637 (1998), a prisoner was able to use habeas corpus to press a claim under Ford v. Wainwright, 477 U.S. 399 (1996), that his execution would violate the Eighth Amendment because he was insane. In that case, the prisoner had tried to advance the Ford claim in a previous habeas application. In a footnote, Chief Justice Rehnquist suggested that the claim might otherwise have been barred. See Note VIII (D), Note 5. If habeas corpus examination of a Ford claim would be foreclosed in that situation, might the prisoner get the claim before a federal court via § 1983? A Ford claim goes not to the particular means by which a death sentence is carried out, but to the validity of execution in any manner. Does a Ford claim then challenge the basis of a prisoner’s detention, triggering Heck? Consider that if, by hypothesis, habeas is foreclosed on the ground that the prisoner’s petition must be judged under the standards in § 2244(b)(2), then a case involving a Ford claim may raise the question left open in Muhammad v. Close. Note 2(b). 5. Conditions Attached to § 1983. Just as habeas corpus comes bearing conditions (like the exhaustion requirement) that do not limit § 1983, suits under § 1983 are burdened in ways that habeas is not. Most importantly, § 1983 actions in the wake of state court litigation can be barred by the Rooker/Feldman doctrine or foreclosed under state preclusion law brought into play by the Full Faith and Credit Statute. See Chapter Six. And § 1983 actions for damages can fall victim to official immunity. See Chapter One. Those limitations typically make § 1983 actions less, not more, attractive to plaintiffs hoping to litigate in the murky ground where § 1983 and habeas co-exist. a. The prisoner in Hill v. McDonough had previously attacked his conviction and sentence in federal habeas proceedings. The state statute establishing lethal injection as the means of execution was enacted later, however, and thus created an issue that could not have been advanced in those former proceedings. The prisoner presented his Eighth Amendment claim to the state courts, presumably to satisfy the exhaustion doctrine for purposes of another federal habeas petition. But he ultimately filed a § 1983 action, instead. Justice Kennedy did not explain how (or if) the § 1983 action the Court approved in Hill might yet be dismissed on the basis of the Rooker/Feldman doctrine or state preclusion rules. What do you think? Consider footnote 4 in Heck. b. Consider again that it is not always easy to determine whether success with a § 1983 action will imply the invalidity of a litigant’s detention. Now put yourself in the position of a litigant faced with that uncertainty. If you think that in light of Heck your only vehicle is habeas corpus, you will take your claim to state court in satisfaction of the exhaustion requirement and then file a federal habeas petition. If, however, you think Heck is not controlling and you are free to employ a § 1983 action, state court is the last place you want to go—for the obvious

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reason that any judgment there will likely foreclose a § 1983 suit. On the one hand, you might file a § 1983 action despite your doubts, but with the intention of turning to habeas if you can’t successfully talk your way around Heck. Consider, though, that if you postpone habeas, you may lose that opportunity for litigating your claim on some procedural ground. See, e.g., Section VIII (A) (on filing deadlines). Most of the restrictive rules regarding habeas were drafted with collateral challenges to convictions in view, and you may have an argument that they don’t affect your particular claim. But you can hardly count on succeeding with such an argument. On the other hand, you might forget about § 1983, go to state court, and hope you can get your claim adjudicated in habeas corpus. Of course, that course of action is more time-consuming and, into the bargain, risks running into some procedural snarl in habeas, anyway. 6. Beyond Habeas and § 1983. Questions about overlapping rights of action are scarcely limited to habeas corpus and § 1983. The Court now insists that the question whether private litigants should be able to sue is largely for Congress to decide as a matter of legislative policy—provided, of course, that any plaintiffs Congress anoints satisfy the constitutional prerequisites for litigation in an Article III court. See Chapter Four. Congress certainly is in the driver’s seat with respect to suits to enforce federal statutes, and it appears that Congress equally has a lot to say about whether suits to enforce constitutional rights may go forward. See Chapter One. Congress, in turn, has enacted numerous statutes authorizing private suits on a variety of claims, each with its specially designed prerequisites. See, e.g., Chapter Four, Section VII (A), Note 10. a. It makes sense for courts to implement congressional policy in each instance by insisting that litigants satisfy the requirements that Congress has attached to the kind of lawsuit litigants wish to pursue. But isn’t it hard to say that courts defy congressional will if they entertain suits that Congress has authorized by means of another statute (read literally), even if that alternative statute does not impose the same restrictions? Isn’t it arguable, at least, that courts can respect congressional authority only by giving literal effect to anything Congress writes into statute law, leaving it to Congress to specify the effects, if any, of any resulting overlaps? Shouldn’t the lowest common denominator control—i.e., shouldn’t the most accommodating authorizing statute be allowed to have its way? Is that the way Justice Scalia handled Bennett v. Spear, 520 U.S. 154 (1997)? See Chapter Four, Section VII (A). Would this approach put the onus on Congress to anticipate and address any overlap problems each time Congress enacts a statute authorizing private suits in some field? With AEDPA as an illustration of legislative prowess, how hopeful would you be that Congress could make a success of that? b. Alternatively, would it make sense to take the opposite approach, i.e., to make the least accommodating statute dominant? Should the Court read any conditions Congress establishes for a suit in a given context to foreclose, by negative implication, a suit ostensibly authorized by an alternative statute (but without the same conditions)? Of course, the particular conditions fixed for different rights of action may vary widely in nature and form. Is it going to be easy to identify which of several statutes counts as the least capacious? c. At common law, courts attached dispositive (jurisdictional) significance to whether the moving party had chosen the correct original writ. Of course, we now recognize that lots of other things were going on behind that formal façade. But it’s clear that we came to realize that litigants’ entitlement to be in court should not turn (nor appear to turn) on quarrels over which writ was appropriate. Isn’t that why F. R. Civ. P. 2 declares that “[t]here shall be one form of

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action”? Wouldn’t it be curious if, as a result of the Court’s modern insistence that Congress must explicitly authorize private suits and fix the conditions that attach to them, we should end up with a scheme that resembles the old writ practice—i.e., a system in which, Rule 2 to the contrary notwithstanding, courts determine at the threshold which of the ostensibly available federal statutes authorizes the particular suit a litigant wishes to bring and thus fixes the conditions the litigant must meet?