Power to Issue Writs: The Act of 1789

From the beginning of government under the Constitution of 1789, Congress has assumed, under the Necessary and Proper Clause, its power to establish inferior courts, its power to regulate the jurisdiction of federal courts, and its power to regulate the issuance of writs.259 Section 13 of the Judiciary Act of 1789 authorized the Supreme Court “to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.”260 Section 14 provided that all “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.”261

Although the Act of 1789 left the power over writs subject largely to the common law, it is significant as a reflection of the belief, in which the courts have on the whole concurred, that an act of Congress is necessary to confer judicial power to issue writs.262 Whether Article III itself is an independent source of the power of federal courts to fashion equitable remedies for constitutional violations or whether such remedies must fit within congressionally authorized writs or procedures is often left unexplored. In Missouri v. Jenkins,263 for example, the Court, rejecting a claim that a federal court exceeded judicial power under Article III by ordering local authorities to increase taxes to pay for desegregation remedies, declared that “a court order directing a local government body to levy its own taxes” is plainly a judicial act within the power of a federal court.264 In the same case, the Court refused to rule on “the difficult constitutional issues” presented by the state’s claim that the district court had exceeded its constitutional powers in a prior order directly raising taxes, instead ruling that this order had violated principles of comity.265

Common Law Powers of District of Columbia Courts.

The portion of § 13 of the Judiciary Act of 1789 that authorized the Supreme Court to issue writs of mandamus in the exercise of its original jurisdiction was held invalid in Marbury v. Madison,266 as an unconstitutional enlargement of the Supreme Court’s original jurisdiction. After two more futile efforts to obtain a writ of mandamus, in cases in which the Court found that power to issue the writ had not been vested by statute in the courts of the United States except in aid of already existing jurisdiction,267 a litigant was successful in Kendall v. United States ex rel. Stokes,268 in finding a court that would take jurisdiction in a mandamus proceeding. This was the circuit court of the United States for the District of Columbia, which was held to have jurisdiction, on the theory that the common law, in force in Maryland when the cession of that part of the state that became the District of Columbia was made to the United States, remained in force in the District. At an early time, therefore, the federal courts established the rule that mandamus can be issued only when authorized by a constitutional statute and within the limits imposed by the common law and the separation of powers.269

Habeas Corpus: Congressional and Judicial Control.

The writ of habeas corpus270 has a special status because its suspension is forbidden, except in narrow circumstances, by Article I, § 9, cl. 2. The writ also has a venerable common law tradition, long antedating its recognition by the first Congress in the Judiciary Act of 1789,271 as a means “to relieve detention by executive authorities without judicial trial.”272 Nowhere in the Constitution, however, is the power to issue the writ vested in the federal courts, which raises the question of whether Congress could suspend the writ de facto by declining to authorize its issuance. In other words, 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?273

Since Chief Justice Marshall’s opinion in Ex parte Bollman,274 it was generally275 accepted that “the power to award the writ by any of the courts of the United States, must be given by written law.”276 As Marshall explained, however, the suspension clause 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.”277 And so it has been understood since,278 with only a few judicial voices raised to suggest that what Congress could not do directly (by suspension) it could not do by omission (by failing to provide for habeas).279 But, because statutory authority had always existed authorizing the federal courts to grant the relief they deemed necessary under habeas corpus, the Court did not need to face the question.280

Having determined in Bollman that a statute was necessary before the federal courts had power to issue writs of habeas corpus, Chief Justice Marshall pointed to § 14 of the Judiciary Act of 1789 as containing the necessary authority.281 As the Chief Justice read it, the authorization was limited to persons imprisoned under federal authority. It was not until 1867, with two small exceptions,282 that legislation specifically empowered federal courts to inquire into the imprisonment of persons under state authority.283 Pursuant to this authorization, the Court then expanded the use of the writ into a major instrument to reform procedural criminal law in both federal and state jurisdictions.

However, the question then arose as to what aspects of this broader habeas are protected against suspension. Noting that the statutory writ of habeas corpus has been expanded dramatically since the First Congress, the Court has written that it “assume[s] . . . that the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789.”284 This statement, however, appears to be in tension with the theory of congressionally defined habeas found in Bollman, unless one assumes that a habeas right, once created, cannot be diminished. The Court, however, in reviewing provisions of the Antiterrorism and Effective Death Penalty Act285 that limited habeas, passed up an opportunity to delineate Congress’s permissive authority over habeas, finding that none of the limitations to the writ in that statute raised questions of constitutional import.286

For practical purposes, the issue appears to have been resolved by Boumediene v. Bush,287 in which the Court held that Congress’s attempt to eliminate all federal habeas jurisdiction over “enemy combatant” detainees held at Guantanamo Bay288 violated the Suspension Clause. Although the Court did not explicitly identify whether the underlying right to habeas that was at issue arose from statute, common law, or the Constitution itself, it did decline to infer “too much” from the lack of historical examples of habeas being extended to enemy aliens held overseas.289 In Boumediene, the Court instead emphasized a “functional” approach that considered the citizenship and status of the detainee, the adequacy of the process through which the status determination was made, the nature of the sites where apprehension and detention took place, and any practical obstacles inherent in resolving the prisoner’s entitlement to the writ.290

In further determining that the procedures afforded to the detainees to challenge their detention in court were not adequate substitutes for habeas, the Court noted the heightened due process concerns when a detention is based principally on Executive Branch proceedings—here, Combatant Status Review Tribunals or (CSRTs)— rather than proceedings before a court of law.291 The Court also expressed concern that the detentions had, in some cases, lasted as long as six years without significant judicial oversight.292 The Court further noted the limitations at the CSRT stage on a detainee’s ability to find and present evidence to challenge the government’s case, the unavailability of assistance of counsel, the inability of a detainee to access certain classified government records which could contain critical allegations against him, and the admission of hearsay evidence. While reserving judgment as to whether the CSRT process itself comports with due process, the Court found that the appeals process for these decisions, assigned to the United States Court of Appeals for the District of Columbia, did not contain the means necessary to correct errors occurring in the CSRT process.293

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.294 The writ acts upon the custodian, not the prisoner, so the issue under the jurisdictional statute is whether the custodian is within the district court’s jurisdiction.295 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,296 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.”297 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.298

Petitioners seeking federal habeas relief must first exhaust their state remedies, a limitation long settled in the case law and codified in 1948.299 Prisoners are required to present their claims in state court only once, either on appeal or collateral attack, and they need not return time and again to raise their issues before coming to federal court.300 In addition, “[w]hen a state court declines to review the merits of a petitioner’s claim on the ground that it has done so already, it creates no bar to federal habeas review. . . . A claim is procedurally barred when it has not been fairly presented to the state courts for their initial consideration—not when the claim has been presented more than once.”301

Although 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,302 but, if the Supreme Court has taken and decided a case, then its judgment is conclusive in habeas on all issues of fact or law actually adjudicated.303 A federal prisoner in a § 2255 proceeding will file his motion in the court that sentenced him;304 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.305

Habeas corpus is not a substitute for an appeal.306 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.307 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.308

Footnotes

259
Frankfurter & Landis, Power of Congress Over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts—A Study in Separation of Powers, 37 HARV. L. REV. 1010, 1016–1023 (1924). [Back to text]
260
1 Stat. 73, 81. “Section 13 was a provision unique to the Court, granting the power of prohibition as to district courts in admiralty and maritime cases . . . .” WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION [Back to text]
261
1 Stat. 73, 81–82. See also United States v. Morgan, 346 U.S. 502 (1954), holding that the All Writs section of the Judicial Code, 28 U.S.C. § 1651(a), gives federal courts the power to employ the ancient writ of coram nobis. [Back to text]
262
This proposition was recently reasserted in Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34 (1985) (holding that a federal district court lacked authority to order U.S. marshals to transport state prisoners, such authority not being granted by the relevant statutes). [Back to text]
263
495 U.S. 33 (1990). [Back to text]
264
495 U.S. at 55, citing Griffin v. Prince Edward County School Bd., 377 U.S. 218, 233–34 (1964) (an order that local officials “exercise the power that is theirs” to levy taxes in order to open and operate a desegregated school system “is within the court’s power if required to assure . . . petitioners that their constitutional rights will no longer be denied them”). [Back to text]
265
495 U.S. at 50–52. [Back to text]
266
5 U.S. (1 Cr.) 137 (1803). Cf. Wiscart v. D’Auchy, 3 U.S. (3 Dall.) 321 (1796). [Back to text]
267
McIntire v. Wood, 11 U.S. (7 Cr.) 504 (1813); McClung v. Silliman, 19 U.S. (6 Wheat.) 598 (1821). [Back to text]
268
37 U.S. (12 Pet.) 524 (1838). [Back to text]
269
In 1962, Congress conferred upon all federal district courts the same power to issue writs of mandamus as was exercisable by federal courts in the District of Columbia. 76 Stat. 744, 28 U.S.C. § 1361. [Back to text]
270
Reference to the “writ of habeas corpus” is to the “Great Writ,” habeas corpus ad subjiciendum, by which a court would inquire into the lawfulness of a detention of the petitioner. Ex parte Bollman, 8 U.S. (4 Cr.) 75, 95 (1807). For other uses, see Carbo v. United States, 364 U.S. 611 (1961); Price v. Johnston, 334 U.S. 266 (1948). Technically, federal prisoners no longer utilize the writ of habeas corpus in seeking post-conviction relief, now the largest office of the writ, but proceed under 28 U.S.C. § 2255, on a motion to vacate judgment. Intimating that if § 2255 afforded prisoners a less adequate remedy than they would have under habeas corpus, it would be unconstitutional, the Court in United States v. Hayman, 342 U.S. 205 (1952), held the two remedies to be equivalent. Cf. Sanders v. United States, 373 U.S. 1, 14 (1963). The claims cognizable under one are cognizable under the other. Kaufman v. United States, 394 U.S. 217 (1969). Therefore, the term habeas corpus is used here to include the § 2255 remedy. There is a plethora of writings about the writ. See, e.g., Hart & Wechsler (6th ed), supra at 1153–1310; Developments in the Law: Federal Habeas Corpus, 83 HARV. L. REV. 1038 (1970). [Back to text]
271
Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82. [Back to text]
272
INS v. St. Cyr, 533 U.S. 289, 301 (2001), quoted in Rasul v. Bush, 542 U.S. 466, 474 (2004). [Back to text]
273
Professor Chafee contended that by the time of the Constitutional Convention the right to habeas corpus was so well established no affirmative authorization was needed. The Most Important Human Right in the Constitution, 32 B.U.L. REV. 143, 146 (1952). But compare Collins, Habeas Corpus for Convicts: Constitutional Right or Legislative Grace?, 40 CALIF. L. REV. 335, 344–345 (1952). [Back to text]
274
8 U.S. (4 Cr.) 75 (1807). [Back to text]
275
8 U.S. at 94. See also Ex parte Dorr, 44 U.S. (3 How.) 103 (1845). [Back to text]
276
8 U.S. at 64. [Back to text]
277
8 U.S. at 95. In quoting the clause, Marshall renders “shall not be suspended” as “should not be suspended.” [Back to text]
278
See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). Cf. Carbo v. United States, 364 U.S. 611, 614 (1961). [Back to text]
279
E.g., Eisentrager v. Forrestal, 174 F.2d 961, 966 (D.C. Cir. 1949), revd. on other grounds sub nom., Johnson v. Eisentrager, 339 U.S. 763 (1950) (holding that habeas exists as an inherent common law right); see also Justice Black’s dissent, id. at 791, 798: “Habeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution. Its use by courts cannot in my judgment be constitutionally abridged by Executive or by Congress.” And, in Jones v. Cunningham, 371 U.S. 236, 238 (1963), the Court said: “The habeas corpus jurisdictional statute implements the constitutional command that the writ of habeas corpus be made available.” (Emphasis added). [Back to text]
280
Cf. Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). [Back to text]
281
Ex parte Bollman, 8 U.S. (4 Cr.) 75, 94 (1807). See Fay v. Noia, 372 U.S. 391, 409 (1963). [Back to text]
282
Act of March 2, 1833, § 7, 4 Stat. 634 (federal officials imprisoned for enforcing federal law); Act of August 29, 1842, 5 Stat. 539 (foreign nationals detained by a state in violation of a treaty). See also Bankruptcy Act of April 4, 1800,§ 38, 2 Stat. 19, 32 (habeas corpus for imprisoned debtor discharged in bankruptcy), repealed by Act of December 19, 1803, 2 Stat. 248. [Back to text]
283
The act of February 5, 1867, 14 Stat. 385, conveyed power to federal courts “to grant 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. . . .” On the law with respect to state prisoners prior to this statute, see Ex parte Dorr, 44 U.S. (3 How.) 103 (1845); cf. Elkison v. Deliesseline, 8 Fed. Cas. 493 (No. 4366) (C.C.D.S.C. 1823) (Justice Johnson); Ex parte Cabrera, 4 Fed. Cas. 964 (No. 2278) (C.C.D. Pa. 1805) (Justice Washington). [Back to text]
284
Felker v. Turpin, 518 U.S. 651, 663–64 (1996). See INS v. St. Cyr, 533 U.S. 289, 300–01 (2001) (leaving open the question of whether post-1789 legal developments are protected); Swain v. Pressley, 430 U.S. 372 (1977) (finding “no occasion” to define the contours of constitutional limits on congressional modification of the writ). [Back to text]
285
Pub. L. 104–132, §§ 101–08, 110 Stat. 1214, 1217–26, amending, inter alia, 28 U.S.C. §§ 2244, 2253, 2254, 2255, and Fed. R. App. P. 22. [Back to text]
286
Felker v. Turpin, 518 U.S. 651 (1996). [Back to text]
287
128 S. Ct. 2229 (2008). [Back to text]
288
In Rasul v. Bush, 542 U.S. 466 (2004), the Court found that 28 U.S.C. § 2241, the federal habeas statute, applied to these detainees. Congress then removed all court jurisdiction over these detainees under the Detainee Treatment Act of 2005, Pub. L. 109–148, § 1005(e)(1) (providing that “no court . . . shall have jurisdiction to hear or consider . . . an application for . . . habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay).” After the Court decided in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that the Detainee Treatment Act did not apply to detainees whose cases were pending at the time of enactment, it was amended by the Military Commissions Act of 2006, Pub. L. 109–366, to also apply to pending cases where a detainee had been determined to be an enemy combatant. [Back to text]
289
128 S. Ct. at 2251. [Back to text]
290
128 S. Ct. at 2258, 2259. [Back to text]
291
Under the Detainee Treatment Act, Pub. L. 109–148, Title X, Congress granted only a limited appeal right to determination made by the Executive Branch as to “(I) whether the status determination of [a] Combatant Status Review Tribunal . . . was consistent with the standards and procedures specified by the Secretary of Defense . . . 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.” § 1005(e)(2)(C). [Back to text]
292
128 S. Ct. at 2263, 2275. [Back to text]
293
The Court focused in particular on the inability of the reviewing court to admit and consider relevant exculpatory evidence that was not introduced in the prior proceeding. The Court also listed other potential constitutional infirmities in the review process, including the absence of provisions empowering the D.C. Circuit to order release from detention, and not permitting petitioners to challenge the President’s authority to detain them indefinitely. [Back to text]
294
28 U.S.C. §§ 2241(c), 2254(a). “Custody” does not mean one must be confined; a person on parole or probation is in custody. Jones v. Cunningham, 371 U.S. 236 (1963). A person on bail or on his own recognizance is in custody, Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300–301 (1984); Lefkowitz v. Newsome, 420 U.S. 283, 291 n.8 (1975); Hensley v. Municipal Court, 411 U.S. 345 (1973), and Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), held that an inmate of an Alabama prison was also sufficiently in the custody of Kentucky authorities who had lodged a detainer with Alabama to obtain the prisoner upon his release. [Back to text]
295
Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494–95 (1973) (issue is whether “the custodian can be reached by service of process”). See also Rasul v. Bush, 542 U.S. 466 (2004) (federal district court for District of Columbia had jurisdiction of habeas petitions from prisoners held at U.S. Naval base at Guantanamo Bay, Cuba); Rumsfeld v. Padilla, 542 U.S. 426 (2004) (federal district court in New York lacks jurisdiction over prisoner being held in a naval brig in Charleston, South Carolina; the commander of the brig, not the Secretary of Defense, is the immediate custodian and proper respondent). [Back to text]
296
McNally v. Hill, 293 U.S. 131 (1934); Parker v. Ellis, 362 U.S. 574 (1960). [Back to text]
297
28 U.S.C. § 2243. See Peyton v. Rowe, 391 U.S. 54 (1968). See also Maleng v. Cook, 490 U.S. 488 (1989). [Back to text]
298
Carafas v. LaVallee, 391 U.S. 234 (1968), overruling Parker v. Ellis, 362 U.S. 574 (1960). In Peyton v. Rowe, 391 U.S. 54 (1968), the Court overruled McNally v. Hill, 293 U.S. 131 (1934), and held that a prisoner may attack on habeas the second of two consecutive sentences while still serving the first. See also Walker v. Wainwright, 390 U.S. 335 (1968) (prisoner may attack the first of two consecutive sentences although the only effect of a successful attack would be immediate confinement on the second sentence). Braden v. 30th Judicial Circuit Court , 410 U.S. 484 (1973), held that one sufficiently in custody of a state could use habeas to challenge the state’s failure to bring him to trial on pending charges. [Back to text]
299
28 U.S.C. § 2254(b). See Preiser v. Rodriguez, 411 U.S. 475, 490–497 (1973), and id. at 500, 512–24 (Justice Brennan dissenting); Rose v. Lundy, 455 U.S. 509, 515–21 (1982). If a prisoner submits a petition with both exhausted and unexhausted claims, the habeas court must dismiss the entire petition. Rose v. Lundy, 455 U.S. at 518–519. Exhaustion first developed in cases brought by persons in state custody prior to any judgment. Ex parte Royall, 117 U.S. 241 (1886); Urquhart v. Brown, 205 U.S. 179 (1907). [Back to text]
300
Brown v. Allen, 344 U.S. 443, 447–450 (1953); id. at 502 (Justice Frankfurter concurring); Castille v. Peoples, 489 U.S. 346, 350 (1989). [Back to text]
301
Cone v. Bell, 556 U.S. ___, No. 07–1114, slip op. at 17, 18 (2009). [Back to text]
302
Fay v. Noia, 372 U.S. 391, 435 (1963), overruling Darr v. Burford, 339 U.S. 200 (1950). [Back to text]
303
28 U.S.C. § 2244(c). But an affirmance of a conviction by an equally divided Court is not an adjudication on the merits. Neil v. Biggers, 409 U.S. 188 (1972). [Back to text]
304
28 U.S.C. § 2255. [Back to text]
305
28 U.S.C. § 2241(d). Cf. Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), overruling Ahrens v. Clark, 335 U.S. 188 (1948), and holding that a petitioner may file in the district in which his custodian is located even though the prisoner may be located elsewhere. [Back to text]
306
Glasgow v. Moyer, 225 U.S. 420, 428 (1912); Riddle v. Dyche, 262 U.S. 333, 335 (1923); Eagles v. United States ex rel. Samuels, 329 U.S. 304, 311 (1946). But compare Brown v. Allen, 344 U.S. 443, 558–560 (1953) (Justice Frankfurter dissenting in part). [Back to text]
307
Estelle v. McGuire, 502 U.S. 62 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41–42 (1984). [Back to text]
308
8 U.S.C. § 2244(b). See Whiteley v. Warden, 401 U.S. 560, 569 (1971); Irvin v. Dowd, 366 U.S. 717, 729 (1961). [Back to text]