CRS Annotated Constitution
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Habeas Corpus: Congressional and Judicial Control.—Although the writ of habeas corpus231 has a special status because its suspension is forbidden, except in narrow circumstances, by Article I. Sec. 9, cl. 2, nowhere in the Constitution is the power to issue the writ vested in the federal courts. Could it be that despite the suspension clause restriction Congress could suspend de facto the writ simply by declining to authorize its issuance? Is a statute needed to make the writ available or does the right to habeas corpus stem by implication from the suspension clause or from the grant of judicial power without need of a statute?232 Since Chief Justice Marshall’s opinion in Ex parte Bollman,233 it has been generally accepted that “the power to award the writ by any of the courts of the United States, must be given by written law.”234 The suspension clause, Marshall explained, was an “injunction,” an “obligation” to provide “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.”235 And so it has been under[p.639]stood since,236 with a few judicial voices raised to suggest that what Congress could not do directly it could not do by omission,237 but inasmuch as statutory authority has always existed authorizing the federal courts to grant the relief they deemed necessary under habeas corpus the Court has never had to face the question.238
Supplement: [P. 639, add to text following n.238:]
In Felker v. Turpin,7 the Court again passed up the opportunity to delineate Congress’ permissive authority over habeas, finding that none of the provisions of the Antiterrorism and Effective Death Penalty Act 8 raised questions of constitutional import.
Having determined that a statute was necessary before the federal courts had power to issue writs of habeas corpus, Chief Justice Marshall pointed to Sec. 14 of the Judiciary Act of 1789 as containing the necessary authority.239 As the Chief Justice read it, the authorization was limited to persons imprisoned under federal authority, and it was not until 1867, with two small exceptions,240 that legislation specifically empowered federal courts to inquire into the imprisonment of persons under state authority.241 Pursuant to this authorization, the Court expanded the use of the writ into a major instrument to reform procedural criminal law in federal and state jurisdictions.
Habeas Corpus: The Process of the Writ.—A petition for a writ of habeas corpus is filed by or on behalf of a person in “custody,” a concept which has been expanded so much that it is no longer restricted to actual physical detention in jail or prison.242 [p.640]Traditionally, the proceeding could not be used to secure an adjudication of a question which if determined in the petitioner’s favor would not result in his immediate release, since a discharge from custody was the only function of the writ,243 but this restraint too the Court has abandoned in an emphasis upon the statutory language directing the habeas court to “dispose of the matter as law and justice require.”244 Thus, even if a prisoner has been released from jail, the presence of collateral consequences flowing from his conviction gives the court jurisdiction to determine the constitutional validity of the conviction.245
Petitioners coming into federal habeas must first exhaust their state remedies, a limitation long settled in the case law and codified in 1948.246 It is only required that prisoners once present their claims in state court, either on appeal or collateral attack, and they need not return time and again to raise their issues before coming to federal court.247 While they were once required to petition the Supreme Court on certiorari to review directly their state convictions, prisoners have been relieved of this largely pointless exercise,248 although if the Supreme Court has taken and decided a case its judgment is conclusive in habeas on all issues of fact or law actually adjudicated.249[p.641]
A federal prisoner in a Sec. 2255 proceeding will file his motion in the court which sentenced him;250 a state prisoner in a federal habeas action may file either in the district of the court in which he was sentenced or in the district in which he is in custody.251
Habeas corpus is not a substitute for an appeal.252 It is not a method to test ordinary procedural errors at trial or violations of state law but only to challenge alleged errors which if established would go to make the entire detention unlawful under federal law.253 If after appropriate proceedings, the habeas court finds that on the facts discovered and the law applied the prisoner is entitled to relief, it must grant it, ordinarily ordering the government to release the prisoner unless he is retried within a certain period.254
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