FEDERAL-STATE COURT RELATIONS
Problems Raised by Concurrency

The Constitution established a system of government in which total power, sovereignty, was not unequivocally lodged in one level of government. In Chief Justice Marshall’s words, “our complex system [presents] the rare and difficult scheme of one general government, whose actions extend over the whole, but which possesses only certain enumerated powers, and of numerous state governments, which retain and exercise all powers not delegated to the Union. . . .” Naturally, in such a system, “contests respecting power must arise.”1293 Contests respecting power may frequently arise in a federal system with dual structures of courts exercising concurrent jurisdiction in a number of classes of cases. Too, the possibilities of frictions grow out of the facts that one set of courts may interfere directly or indirectly with the other through injunctive and declaratory processes, through the use of habeas corpus and removal to release persons from the custody of the other set, and through the refusal by state courts to be bound by decisions of the United States Supreme Court. The relations between federal and state courts are governed in part by constitutional law, with respect, say, to state court interference with federal courts and state court refusal to comply with the judgments of federal tribunals; in part by statutes, with respect to the federal law generally enjoining federal court interference with pending state court proceedings; and in part by self-imposed rules of comity and restraint, such as the abstention doctrine, all applied to avoid unseemly conflicts, which, however, have at times occurred.

Subject to congressional provision to the contrary, state courts have concurrent jurisdiction over all the classes of cases and controversies enumerated in Article III, except suits between states, those to which the United States is a party, those to which a foreign state is a party, and those within the traditional admiralty jurisdiction.1294 Even within this last category, however, state courts, though unable to prejudice the harmonious operation and uniformity of general maritime law,1295 have concurrent jurisdiction over cases that occur within the maritime jurisdiction when such litigation assumes the form of a suit at common law.1296 Review of state court decisions by the United States Supreme Court is intended to protect the federal interest and promote uniformity of law and decision relating to the federal interest.1297 The first category of conflict surfaces here. The second broader category arises from the fact that state interests, actions, and wishes, all of which may at times be effectuated through state courts, are variously subject to restraint by federal courts. Although the possibility always existed,1298 it became much more significant and likely when, in the wake of the Civil War, Congress bestowed general federal question jurisdiction on the federal courts,1299 enacted a series of civil rights statutes and conferred jurisdiction on the federal courts to enforce them,1300 and most important proposed and saw to the ratification of the three constitutional amendments, especially the Fourteenth, which made an ever-increasing number of state actions subject to federal scrutiny.1301

The Autonomy of State Courts
Noncompliance With and Disobedience of Supreme Court Orders by State Courts.

The United States Supreme Court when deciding cases on review from the state courts usually remands the case to the state court when it reverses for “proceedings not inconsistent” with the Court’s opinion. This disposition leaves open the possibility that unresolved issues of state law will be decided adversely to the party prevailing in the Supreme Court or that the state court will so interpret the facts or the Court’s opinion to the detriment of the party prevailing in the Supreme Court.1302 When it is alleged that the state court has deviated from the Supreme Court’s mandate, the party losing below may appeal again1303 or she may presumably apply for mandamus to compel compliance.1304 Statutorily, the Court may attempt to overcome state recalcitrance by a variety of specific forms of judgment.1305 If, however, the state courts simply defy the mandate of the Court, difficult problems face the Court, extending to the possibility of contempt citations.1306

The most spectacular disobedience of federal authority arose out of the conflict between the Cherokees and the State of Georgia, which was seeking to remove them and seize their lands with the active support of President Jackson.1307 In the first instance, after the Court had issued a writ of error to the Georgia Supreme Court to review the murder conviction of a Cherokee, Corn Tassel, and after the writ was served, Corn Tassel was executed on the day set for the hearing, contrary to the federal law that a writ of error superseded sentence until the appeal was decided.1308 Two years later, Georgia again defied the Court, when, in Worcester v. Georgia,1309 it set aside the conviction of two missionaries for residing among the Indians without a license. Despite the issuance of a special mandate to a local court to discharge the missionaries, they were not released, and the state’s governor loudly proclaimed resistance. Consequently, the two remained in jail until they agreed to abandon further efforts for their discharge by federal authority and to leave the state, whereupon the governor pardoned them.

Use of State Courts in Enforcement of Federal Law.

Although the states’ rights proponents in the Convention and in the First Congress wished to leave to the state courts the enforcement of federal law and rights rather than to create inferior federal courts,1310 it was not long before they or their successors began to argue that state courts could not be required to adjudicate cases based on federal law. The practice in the early years was to make the jurisdiction of federal courts generally concurrent with that of state courts,1311 and early Congresses imposed positive duties on state courts to enforce federal laws.1312 Reaction set in out of hostility to the Embargo Acts, the Fugitive Slave Law, and other measures,1313 and, in Prigg v. Pennsylvania,1314 involving the Fugitive Slave Law, the Court indicated that the states could not be compelled to enforce federal law. After a long period, however, Congress resumed its former practice,1315 which the Court sustained,1316 and it went even further in the Federal Employers’ Liability Act by not only giving state courts concurrent jurisdiction but also by prohibiting the removal of cases begun in state courts to the federal courts.1317

When Connecticut courts refused to enforce an FELA claim on the ground that to do so was contrary to the public policy of the state, the Court held on the basis of the Supremacy Clause that, when Congress enacts a law and declares a national policy, that policy is as much Connecticut’s and every other state’s as it is of the collective United States.1318 The Court’s suggestion that the act could be enforced “as of right, in the courts of the States when their jurisdiction, as prescribed by local laws, is adequate to the occasion,”1319 leaving the impression that state practice might in some instances preclude enforcement in state courts, was given body when the Court upheld New York’s refusal to adjudicate an FELA claim that fell in a class of cases in which claims under state law would not be entertained.1320 “[T]here is nothing in the Act of Congress that purports to force a duty upon such Courts as against an otherwise valid excuse.”1321 However, “[a]n excuse that is inconsistent with or violates federal law is not a valid excuse: The Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source.”1322

The fact that a state statute divests its courts of jurisdiction not only over a disfavored federal claim, but also over an identical state claim, does not ensure that the “state law will be deemed a neutral rule of judicial administration and therefore a valid excuse for refusing to entertain a federal cause of action.”1323 “Although the absence of discrimination [in its treatment of federal and state law] is necessary to our finding a state law neutral, it is not sufficient. A jurisdictional rule cannot be used as a device to undermine federal law, no matter how evenhanded it may appear.”1324

In Testa v. Katt,1325 the Court unanimously held that state courts, at least with regard to claims and cases analogous to claims and cases enforceable in those courts under state law, are required to enforce “penal” laws of the United States; the statute at issue in the case provided “that a buyer of goods at above the prescribed ceiling price may sue the seller ‘in any court of competent jurisdiction.’ ”1326 Respecting Rhode Island’s claim that one sovereign cannot enforce the penal laws of another, Justice Black observed that the assumption underlying this claim flew “in the face of the fact that the States of the Union constitute a nation” and the fact of the existence of the Supremacy Clause.1327

State Interference with Federal Jurisdiction.

It seems settled, though not without dissent, that state courts have no power to enjoin proceedings1328 or effectuation of judgments1329 of the federal courts, with the exception of cases in which a state court has custody of property in proceedings in rem or quasi in rem, where the state court has exclusive jurisdiction to proceed and may enjoin parties from further action in federal court.1330

Conflicts of Jurisdiction: Rules of Accommodation

Federal courts primarily interfere with state courts in three ways: by enjoining proceedings in them, by issuing writs of habeas corpus to set aside convictions obtained in them, and by adjudicating cases removed from them. With regard to all three but particularly with regard to the first, there have been developed certain rules plus a statutory limitation designed to minimize needless conflict.

Comity.

“[T]he notion of ‘comity,’ ” Justice Black asserted, is composed of “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as ‘Our Federalism’. . . .”1331 Comity is a self-imposed rule of judicial restraint whereby independent tribunals of concurrent or coordinate jurisdiction act to moderate the stresses of coexistence and to avoid collisions of authority. It is not a rule of law but “one of practice, convenience, and expediency,”1332 which persuades but does not command.

Abstention.

Perhaps the fullest expression of the concept of comity may be found in the abstention doctrine. The abstention doctrine instructs federal courts to abstain from exercising jurisdiction if applicable state law, which would be dispositive of the controversy, is unclear and a state court interpretation of the state law question might obviate the necessity of deciding a federal constitutional issue.1333 Abstention is not proper, however, where the relevant state law is settled,1334 or where it is clear that the state statute or action challenged is unconstitutional no matter how the state court construes state law.1335 Federal jurisdiction is not ousted by abstention; rather it is postponed.1336 Federal-state tensions would be ameliorated through federal-court deference to the concept that state courts are as adequate a protector of constitutional liberties as the federal courts and through the minimization of the likelihood that state programs would be thwarted by federal intercession. Federal courts would benefit because time and effort would not be expended in decision of difficult constitutional issues which might not require decision.1337

During the 1960s, the abstention doctrine was in disfavor with the Supreme Court, suffering rejection in numerous cases, most of them civil rights and civil liberties cases.1338 Time-consuming delays1339 and piecemeal resolution of important questions1340 were cited as a too-costly consequence of the doctrine. Actions brought under the civil rights statutes seem not to have been wholly subject to the doctrine,1341 and for awhile cases involving First Amendment expression guarantees seemed to be sheltered as well, but this is no longer the rule.1342 Abstention developed robustly with Younger v. Harris,1343 and its progeny.

Exhaustion of State Remedies.

A complainant will ordinar- ily be required, as a matter of comity, to exhaust all available state legislative and administrative remedies before seeking relief in federal court.1344 To do so may make unnecessary federal-court adjudication. The complainant will ordinarily not be required, however, to exhaust his state judicial remedies, inasmuch as it is a litigant’s choice to proceed in either state or federal courts when the alternatives exist and a question for judicial adjudication is present.1345 But when a litigant is suing for protection of federally guaranteed civil rights, he need not exhaust any kind of state remedy.1346

Anti-Injunction Statute.

For reasons unknown, 1347 Congress in 1793 enacted a statute to prohibit the issuance of injunctions by federal courts to stay state court proceedings.1348 Over time, a long list of exceptions to the statutory bar was created by judicial decision,1349 but in Toucey v. New York Life Ins. Co.,1350 the Court in a lengthy opinion by Justice Frankfurter announced a very liberal interpretation of the anti-injunction statute so as to do away with practically all the exceptions that had been created. Congress’s response was to redraft the statute and to indicate that it was restoring the pre-Toucey interpretation.1351 Considerable disagreement exists over the application of the statute, however, especially with regard to the exceptions it permits. The present tendency appears to be to read the law expansively and the exceptions restrictively in the interest of preventing conflict with state courts.1352 Nonetheless, some exceptions exist, either expressly or implicitly in statutory language,1353 or through Court interpretation.1354 The Court’s general policy of application, however, seems to a considerable degree to effectuate what is now at least the major rationale of the statute, deference to state court adjudication of issues presented to them for decision.1355

Res Judicata.

Both the Constitution and a contemporane- ously enacted statute require federal courts to give “full faith and credit” to state court judgments, to give, that is, preclusive effect to state court judgments when those judgments would be given preclusive effect by the courts of that state.1356 The present Court views the interpretation of “full faith and credit” in the overall context of deference to state courts running throughout this section. “Thus, res judicata and collateral estoppel not only reduce unnecessary litigation and foster reliance on adjudication, but also promote the comity between state and federal courts that has been recognized as a bulwark of the federal system.”1357 42 U.S.C. § 1983 is not an exception to the mandate of the res judicata statute.1358 An exception to § 1738 “will not be recognized unless a later statute contains an express or implied partial repeal.”1359 Thus, a claimant who pursued his employment discrimination remedies through state administrative procedures, as the federal law requires her to do (within limits), and then appealed an adverse state agency decision to state court will be precluded from bringing her federal claim to federal court, since the federal court is obligated to give the state court decision “full faith and credit.”1360

Closely related is the Rooker-Feldman doctrine, holding that federal subject-matter jurisdiction of federal district courts does not extend to review of state court judgments.1361 The Supreme Court, not federal district courts, has such appellate jurisdiction. The doctrine thus prevents losers in state court from obtaining district court review, but “does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court actions.”1362

Three-Judge Court Act.

When the Court in Ex parte Young1363 held that federal courts were not precluded by the Eleventh Amendment from restraining state officers from enforcing state laws determined to be in violation of the federal Constitution, serious efforts were made in Congress to take away the authority thus asserted, but the result instead was legislation providing that suits in which an interlocutory injunction was sought against the enforcement of state statutes by state officers were to be heard by a panel of three federal judges, rather than by a single district judge, with appeal direct to the Supreme Court.1364 The provision was designed to assuage state feeling by vesting such determinations in a court more prestigious than a single-judge district court, to assure a more authoritative determination, and to prevent the assertion of individual predilections in sensitive and emotional areas.1365 Because, however, of the heavy burden that convening a three-judge court placed on the judiciary and that the direct appeals placed on the Supreme Court, the provisions for such courts, save in cases “when otherwise required by an Act of Congress”1366 or in cases involving state legislative or congressional districting, were repealed by Congress in 1976.1367

Conflicts of Jurisdiction: Federal Court Interference with State Courts

One challenging the constitutionality, under the United States Constitution, of state actions, statutory or otherwise, could, of course, bring suit in state court; indeed, in the time before conferral of federal-question jurisdiction on lower federal courts plaintiffs had to bring actions in state courts, and on some occasions since, this has been done.1368 But the usual course is to sue in federal court for either an injunction or a declaratory judgment or both. In an era in which landmark decisions of the Supreme Court and of inferior federal courts have been handed down voiding racial segregation requirements, legislative apportionment and congressional districting, abortion regulations, and many other state laws and policies, it is difficult to imagine a situation in which it might be impossible to obtain such rulings because no one required as a defendant could be sued. Yet, the adoption of the Eleventh Amendment in 1798 resulted in the immunity of the state,1369 and the immunity of state officers if the action upon which they were being sued was state action,1370 from suit without the state’s consent. Ex parte Young1371 is a seminal case in American constitutional law because it created a fiction by which the validity of state statutes and other actions could be challenged by suits against state officers as individuals.1372

Conflict between federal and state courts is inevitable when the federal courts are open to persons complaining about unconstitutional or unlawful state action which could as well be brought in the state courts and perhaps is so brought by other persons, but the various rules of restraint flowing from the concept of comity reduce federal interference here some considerable degree. It is rather in three fairly well defined areas that institutional conflict is most pronounced.

Federal Restraint of State Courts by Injunctions.

Even where the federal anti-injunction law is inapplicable, or where the question of application is not reached,1373 those seeking to enjoin state court proceedings must overcome substantial prudential barriers, among them the abstention doctrine1374 and more important than that the equity doctrine that suits in equity “shall not be sustained in . . . the courts of the United States, in any case where plain, adequate and complete remedy may be had at law.”1375 The application of this latter principle has been most pronounced in the reluctance of federal courts to interfere with a state’s good faith enforcement of its criminal law. Here, the Court has required of a litigant seeking to bar threatened state prosecution not only a showing of irreparable injury that is both great and immediate, but also an inability to defend his constitutional rights in the state proceeding. Certain types of injury, such as the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, are insufficient to be considered irreparable in this sense. Even if a state criminal statute is unconstitutional, a person charged under it usually has an adequate remedy at law by raising his constitutional defense in the state trial.1376 The policy has never been stated as an absolute, in recognition of the fact that a federal court injunction could properly issue in exceptional and limited circumstances, such as the existence of factors making it impossible for a litigant to protect his federal constitutional rights through a defense of the state criminal charges or the bringing of multiple criminal charges.1377

In Dombrowski v. Pfister,1378 the Court appeared to change the policy somewhat. The case on its face contained allegations and offers of proof that may have been sufficient alone to establish the “irreparable injury” justifying federal injunctive relief.1379 But the formulation of standards by Justice Brennan for the majority placed great emphasis upon the fact that the state criminal statute in issue regulated expression. Any criminal prosecution under a statute regulating expression might of itself inhibit the exercise of First Amendment rights, he said, and prosecution under an overbroad statute,1380 such as the one in this case, might critically impair exercise of those rights. The mere threat of prosecution under such an overbroad statute “may deter . . . almost as potently as the actual application of sanctions. . . .”1381

In such cases, courts could no longer embrace “[t]he assumption that defense of a criminal prosecution will generally assure ample vindication of constitutional rights,” because either the mere threat of prosecution or the long wait between prosecution and final vindication could result in a “chilling effect upon the exercise of First Amendment rights.”1382 The principle apparently established by the Court was two-phased: a federal court should not abstain when there is a facially unconstitutional statute infringing upon speech and application of that statute discourages protected activities, and the court should further enjoin the state proceedings when there is prosecution or threat of prosecution under an overbroad statute regulating expression if the prosecution or threat of prosecution chills the exercise of freedom of expression.1383 These formulations were reaffirmed in Zwickler v. Koota,1384 in which a declaratory judgment was sought with regard to a statute prohibiting anonymous election literature. The Court deemed abstention improper,1385 and further held that adjudication for purposes of declaratory judgment is not hemmed in by considerations attendant upon injunctive relief.1386

The aftermath of Dombrowski and Zwickler was a considerable expansion of federal-court adjudication of constitutional attack through requests for injunctive and declaratory relief, which gradually spread out from First Amendment areas to other constitutionally protected activities.1387 However, these developments were highly controversial and, after three arguments on the issue, the Court in a series of 1971 cases receded from its position and circumscribed the discretion of the lower federal courts to a considerable and ever-broadening degree.1388 The important difference between the 1971 cases and the Dombrowski-Zwickler line was that, in the latter there were no prosecutions pending, whereas in the 1971 cases there were. Nevertheless, the care with which Justice Black for the majority in the 1971 cases undertook to distinguish Dombrowski signified a limitation of its doctrine.

Justice Black reviewed and reaffirmed the traditional rule of reluctance to interfere with state court proceedings except in extraordinary circumstances. The holding in Dombrowski, as distinguished from some of its language, did not change the general rule, because extraordinary circumstances had existed. Thus, Justice Black, with considerable support from the other Justices,1389 went on to affirm that, where a criminal proceeding is already pending in a state court, if it is a single prosecution about which there is no allegation that it was brought in bad faith or that it was one of a series of repeated prosecutions that would be brought, and if the defendant may put in issue his federal-constitutional defense at the trial, then federal injunctive relief is improper, even if it is alleged that the statute on which the prosecution was based regulated expression and was overbroad.

Many statutes regulating expression were valid and some over-broad statutes could be validly applied, so findings of facial unconstitutionality abstracted from concrete factual situations was not a sound judicial method. “It is sufficient for purposes of the present case to hold, as we do, that the possible unconstitutionality of a statute ‘on its face’ does not in itself justify an injunction against good-faith attempts to enforce it, and that appellee Harris has failed to make any showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief.”1390

The reason for the principle, said Justice Black, flows from “Our Federalism,” which requires federal courts to defer to state courts when there are proceedings pending in them.1391

Moreover, in a companion case, the Court held that, when prosecutions are pending in state court, the propriety of injunctive and declaratory relief should ordinarily be judged by the same standards.1392 A declaratory judgment is as likely to interfere with state proceedings as an injunction, whether the federal decision be treated as res judicata or viewed as a strong precedent guiding the state court. Additionally, “the Declaratory Judgment Act provides that after a declaratory judgment is issued the district court may enforce it by granting ‘[f]urther necessary or proper relief,’ 28 U.S.C. § 2202, and therefore a declaratory judgment issued while state proceedings are pending might serve as the basis for a subsequent injunction against those proceedings to ‘protect or effectuate’ the declaratory judgment, 28 U.S.C. § 2283, and thus result in a clearly improper interference with the state proceedings.”1393

When, however, there is no pending state prosecution, the Court is clear that “Our Federalism” is not offended if a plaintiff in a federal court is able to demonstrate a genuine threat of enforcement of a disputed criminal statute, whether the statute is attacked on its face or as applied, and becomes entitled to a federal declaratory judgment.1394 And, in fact, when no state prosecution is pending, a federal plaintiff need not demonstrate the existence of the Younger factors to justify the issuance of a preliminary or permanent injunction against prosecution under a disputed state statute.1395

Beyond criminal prosecutions, the Court extended Younger‘s general directive to bar interference with pending state civil cases that are akin to criminal prosecutions.1396 Younger abstention was also found appropriate when a judgment debtor in a state civil case sought to enjoin a state court order to enforce the judgment.1397 The Court further applied Younger‘s principles to bar federal court interference with state administrative proceedings of a judicial nature, in which important state interests were at stake.1398

Nonetheless, the Court has emphasized that “only exceptional circumstances justify a federal court’s refusal to decide a case in deference to the States.”1399 In Sprint Communications, Inc. v. Jacobs,1400 the Court made clear that federal forbearance under Younger was limited to three discrete types of state proceedings: (1) ongoing state criminal prosecutions; (2) particular state civil proceedings that are akin to criminal prosecutions; and (3) civil proceedings involving orders uniquely in furtherance of the state courts’ ability to perform their judicial functions.1401 In so doing, the Sprint Communications Court clarified that the types of cases previously held to merit abstention under the Younger line defined Younger’s scope and did not merely exemplify it.1402

Habeas Corpus: Scope of the Writ.

At the English common law, habeas corpus was available to attack pretrial detention and confinement by executive order; it could not be used to question the conviction of a person pursuant to the judgment of a court with jurisdiction over the person. That common law meaning was applied in the federal courts.1403 Expansion began after the Civil War through more liberal court interpretation of “jurisdiction.” Thus, one who had already completed one sentence on a conviction was released from custody on a second sentence on the ground that the court had lost jurisdiction upon completion of the first sentence.1404 Then, the Court held that the constitutionality of the statute upon which a charge was based could be examined on habeas, because an unconstitutional statute was said to deprive the trial court of its jurisdiction.1405 Other cases expanded the want-of-jurisdiction rationale.1406 But the modern status of the writ of habeas corpus may be said to have been started in its development in Frank v. Mangum,1407 in which the Court reviewed on habeas a murder conviction in a trial in which there was substantial evidence of mob domination of the judicial process. This issue had been considered and rejected by the state appeals court. The Supreme Court indicated that, though it might initially have had jurisdiction, the trial court could have lost it if mob domination rendered the proceedings lacking in due process.

Further, in order to determine if there had been a denial of due process, a habeas court should examine the totality of the process, including the appellate proceedings. Because Frank’s claim of mob domination was reviewed fully and rejected by the state appellate court, he had been afforded an adequate corrective process for any denial of rights, and his custody did not violate the Constitution. Then, eight years later, in Moore v. Dempsey,1408 involving another conviction in a trial in which the court was alleged to have been influenced by a mob and in which the state appellate court had heard and rejected Moore’s contentions, the Court directed that the federal district judge himself determine the merits of the petitioner’s allegations.

Moreover, the Court shortly abandoned its emphasis upon want of jurisdiction and held that the writ was available to consider constitutional claims as well as questions of jurisdiction.1409 The landmark case was Brown v. Allen,1410 in which the Court laid down several principles of statutory construction of the habeas statute. First, all federal constitutional questions raised by state prisoners are cognizable in federal habeas. Second, a federal court is not bound by state court judgments on federal questions, even though the state courts may have fully and fairly considered the issues. Third, a federal habeas court may inquire into issues of fact as well as of law, although the federal court may defer to the state court if the prisoner received an adequate hearing. Fourth, new evidentiary hearings must be held when there are unusual circumstances, when there is a “vital flaw” in the state proceedings, or when the state court record is incomplete or otherwise inadequate.

Almost plenary federal habeas review of state court convictions was authorized and rationalized in the Court’s famous “1963 trilogy.”1411 First, the Court dealt with the established principle that a federal habeas court is empowered, where a prisoner alleges facts which if proved would entitle him to relief, to relitigate facts, to receive evidence and try the facts anew, and sought to lay down broad guidelines as to when district courts must hold a hearing and find facts.1412 “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.”1413 To “particularize” this general test, the Court went on to hold that an evidentiary hearing must take place when (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact finding procedure employed was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.1414

Second, Sanders v. United States1415 dealt with two interrelated questions: the effects to be given successive petitions for the writ, when the second or subsequent application presented grounds previously asserted or grounds not theretofore raised. Emphasizing that “[c]onventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged,”1416 the Court set out generous standards for consideration of successive claims. As to previously asserted grounds, the Court held that controlling weight may be given to a prior denial of relief if (1) the same ground presented was determined adversely to the applicant before, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application, so that the habeas court might but was not obligated to deny relief without considering the claim on the merits.1417 With respect to grounds not previously asserted, a federal court considering a successive petition could refuse to hear the new claim only if it decided the petitioner had deliberately bypassed the opportunity in the prior proceeding to raise it; if not, “[n]o matter how many prior applications for federal collateral relief a prisoner has made,” the court must consider the merits of the new claim.1418

Third, the most controversial of the 1963 cases, Fay v. Noia,1419 dealt with the important issue of state defaults, of, that is, what the effect on habeas is when a defendant in a state criminal trial has failed to raise in a manner in accordance with state procedure a claim which he subsequently wants to raise on habeas. If, for example, a defendant fails to object to the admission of certain evidence on federal constitutional grounds in accordance with state procedure and within state time constraints, the state courts may therefore simply refuse to address the merits of the claim, and the state’s “independent and adequate state ground” bars direct federal review of the claim.1420 Whether a similar result prevailed upon habeas divided the Court in Brown v. Allen,1421 in which the majority held that a prisoner, refused consideration of his appeal in state court because his papers had been filed a day late, could not be heard on habeas because of his state procedural default. The result was changed in Fay v. Noia, in which the Court held that the adequate and independent state ground doctrine was a limitation only upon the Court’s appellate review, but that it had no place in habeas. A federal court has power to consider any claim that has been procedurally defaulted in state courts.1422

Still, the Court recognized that the states had legitimate interests that were served by their procedural rules, and that it was important that state courts have the opportunity to afford a claimant relief to which he might be entitled. Thus, a federal court had discretion to deny a habeas petitioner relief if it found that he had deliberately bypassed state procedure; the discretion could be exercised only if the court found that the prisoner had intentionally waived his right to pursue his state remedy.1423

Liberalization of the writ thus made it possible for convicted persons who had fully litigated their claims at state trials and on appeal, who had because of some procedural default been denied the opportunity to have their claims reviewed, or who had been at least once heard on federal habeas, to have the chance to present their grounds for relief to a federal habeas judge. In addition to opportunities to relitigate the facts and the law relating to their convictions, prisoners could also take advantage of new constitutional decisions that were retroactive. The filings in federal courts increased year by year, but the numbers of prisoners who in fact obtained either release or retrial remained quite small. A major effect, however, was to exacerbate the feelings of state judges and state law enforcement officials and to stimulate many efforts in Congress to enact restrictive habeas amendments.1424 Although the efforts were unsuccessful, complaints were received more sympathetically in a newly constituted Supreme Court and more restrictive rulings ensued.

The discretion afforded the Court was sounded by Justice Rehnquist, who, after reviewing the case law on the 1867 statute, remarked that the history “illustrates 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.”1425 The emphasis from early on has been upon the equitable nature of the habeas remedy and the judiciary’s responsibility to guide the exercise of that remedy in accordance with equitable principles; thus, the Court time and again underscores that the federal courts have plenary power under the statute to implement it to the fullest while the Court’s decisions may deny them the discretion to exercise the power.1426

Change has occurred in several respects in regard to access to and the scope of the writ. It is sufficient to say that the more recent rulings have eviscerated the content of the 1963 trilogy and that Brown v. Allen itself is threatened with extinction.

First, the Court in search and seizure cases has returned to the standard of Frank v. Mangum, holding that where the state courts afford a criminal defendant the opportunity for a full and adequate hearing on his Fourth Amendment claim, his only avenue of relief in the federal courts is to petition the Supreme Court for review and that he cannot raise those claims again in a habeas petition.1427 Grounded as it is in the Court’s dissatisfaction with the exclusionary rule, the case has not since been extended to other constitutional grounds,1428 but the rationale of the opinion suggests the likelihood of reaching other exclusion questions.1429

Second, the Court has formulated a “new rule” exception to habeas cognizance. That is, subject to two exceptions,1430 a case decided after a petitioner’s conviction and sentence became final may not be the predicate for federal habeas relief if the case announces or applies a “new rule.”1431 A decision announces a new rule “if the result was not dictated by precedent existing at the time the defendant’s conviction became final.”1432 If a rule “was susceptible to debate among reasonable minds,” it could not have been dictated by precedent, and therefore it must be classified as a “new rule.”1433

Third, the Court has largely maintained the standards of Townsend v. Sain, as embodied in somewhat modified form in statute, with respect to when federal judges must conduct an evidentiary hearing. However, one Townsend factor, not expressly set out in the statute, has been overturned in order to bring the case law into line with other decisions. Townsend had held that a hearing was required if the material facts were not adequately developed at the state-court hearing. If the defendant had failed to develop the material facts in the state court, however, the Court held that, unless he had “deliberately bypass[ed]” that procedural outlet, he was still entitled to the hearing.1434 The Court overruled that point and substituted a much stricter “cause-and-prejudice” standard.1435

Fourth, the Court has significantly stiffened the standards governing when a federal habeas court should entertain a second or successive petition filed by a state prisoner—a question with which Sanders v. United States dealt.1436 A successive petition may be dismissed if the same ground was determined adversely to petitioner previously, the prior determination was on the merits, and “the ends of justice” would not be served by reconsideration. It is with the latter element that the Court has become more restrictive. A plurality in Kuhlmann v. Wilson1437 argued that the “ends of justice” standard would be met only if a petitioner supplemented her constitutional claim with a colorable showing of factual innocence. While the Court has not expressly adopted this standard, a later capital case utilized it, holding that a petitioner sentenced to death could escape the bar on successive petitions by demonstrating “actual innocence” of the death penalty by showing by clear and convincing evidence that no reasonable juror would have found the prisoner eligible for the death penalty under applicable state law.1438

Even if the subsequent petition alleges new and different grounds, a habeas court may dismiss the petition if the prisoner’s failure to assert those grounds in the prior, or first, petition constitutes “an abuse of the writ.”1439 Following the 1963 trilogy and especially Sanders, the federal courts had generally followed a rule excusing the failure to raise claims in earlier petitions unless the failure was a result of “inexcusable neglect” or of deliberate relinquishment. In McClesky v. Zant,1440 the Court construed the “abuse of the writ” language to require a showing of both “cause and prejudice” before a petitioner may allege in a second or later petition a ground or grounds not alleged in the first. In other words, to avoid subsequent dismissal, a petitioner must allege in his first application all the grounds he may have, unless he can show cause, some external impediment, for his failure and some actual prejudice from the error alleged. If he cannot show cause and prejudice, the petitioner may be heard only if she shows that a “fundamental miscarriage of justice” will occur, which means she must make a “colorable showing of factual innocence.”1441

Fifth, the Court abandoned the rules of Fay v. Noia, although it was not until 1991 that it expressly overruled the case.1442 Fay, it will be recalled, dealt with so-called procedural-bar circumstances; that is, if a defendant fails to assert a claim at the proper time or in accordance with proper procedure under valid state rules, and if the state then refuses to reach the merits of his claim and rules against him solely because of the noncompliance with state procedure, when may a petitioner present the claim in federal habeas? The answer in Fay was that the federal court always had power to review the claim but that it had discretion to deny relief to a habeas claimant if it found that the prisoner had intentionally waived his right to pursue his state remedy through a “deliberate bypass” of state procedure.

That is no longer the law. “In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Fay was based on a conception of federal/state relations that undervalued the importance of state procedural rules.”1443 The “miscarriage-of-justice” element is probably limited to cases in which actual innocence or actual impairment of a guilty verdict can be shown.1444 The concept of “cause” excusing failure to observe a state rule is extremely narrow; “the existence of cause for procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.”1445 As for the “prejudice” factor, it is an undeveloped concept, but the Court’s only case establishes a high barrier.1446

The Court continues, with some modest exceptions, to construe habeas jurisdiction quite restrictively, but it has now been joined by new congressional legislation that is also restrictive. In Herrera v. Collins,1447 the Court appeared, though ambiguously, to take the position that, although it requires a showing of actual innocence to permit a claimant to bring a successive or abusive petition, a claim of innocence is not alone sufficient to enable a claimant to obtain review of his conviction on habeas. Petitioners are entitled in federal habeas courts to show that they are imprisoned in violation of the Constitution, not to seek to correct errors of fact. But a claim of innocence does not bear on the constitutionality of one’s conviction or detention, and the execution of a person claiming actual innocence would not, by this reasoning, violate the Constitution.1448 In a subsequent part of the opinion, however, the Court assumed for the sake of argument that “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional,” and it imposed a high standard for making this showing.1449 Then, in In re Troy Anthony Davis,1450 the Court found a death-row convict with a claim of actual innocence to be entitled to a District Court determination of his habeas petition. Justice Stevens, in a concurring opinion joined by Justices Ginsburg and Breyer, noted that the fact that seven of the state’s key witnesses had recanted their trial testimony, and that several people had implicated the state’s principal witness as the shooter, made the case “exceptional.”1451

In Schlup v. Delo,1452 the Court adopted the plurality opinion of Kuhlmann v. Wilson and held that, absent a sufficient showing of “cause and prejudice,” a claimant filing a successive or abusive petition must, as an initial matter, make a showing of “actual innocence” so as to fall within the narrow class of cases implicating a fundamental miscarriage of justice. The Court divided, however, with respect to the showing a claimant must make. One standard, found in some of the cases, was championed by the dissenters; “to show ‘actual innocence’ one must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty.”1453 The Court adopted a second standard, under which the petitioner must demonstrate that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” To meet this burden, a claimant “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”1454

In the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),1455 Congress imposed tight new restrictions on successive or abusive petitions, including making the circuit courts “gate keepers” in permitting or denying the filing of such petitions, with bars to appellate review of these decisions, provisions that in part were upheld in Felker v. Turpin.1456 One important restriction in AEDPA bars a federal habeas court from granting a writ to any person in custody under a judgment of a state court “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.”1457 The Court has made the significance of this restriction plain: Instead of assessing whether federal law was correctly applied de novo, as would be the course under direct review of a federal district court decision, the proper approach for federal habeas relief under AEDPA is the more deferential one of determining whether the Court has established clear precedent on the issue contested and, if so, whether the state’s application of the precedent was reasonable, i.e., no fairminded jurist could find that the state acted in accord with the Court’s established precedent.1458

For the future, barring changes in Court membership, other curtailing of habeas jurisdiction can be expected. Perhaps the Court will impose some form of showing of innocence as a predicate to obtaining a hearing. More far-reaching would be an overturning of Brown v. Allen itself and the renunciation of any oversight, save for the extremely limited direct review of state court convictions in the Supreme Court. The Court continues to emphasize broad federalism concerns, rather than simply comity and respect for state courts.

Removal.

In the Judiciary Act of 1789, Congress provided that civil actions commenced in the state courts which could have been brought in the original jurisdiction of the inferior federal courts could be removed by the defendant from the state court to the federal court.1459 Generally, as Congress expanded the original jurisdiction of the inferior federal courts, it similarly expanded removal jurisdiction.1460 Although there is potentiality for intra-court conflict here, of course, in the implied mistrust of state courts’ willingness or ability to protect federal interests, it is rather with regard to the limited areas of removal that do not correspond to federal court original jurisdiction that the greatest amount of conflict is likely to arise.

If a federal officer is sued or prosecuted in a state court for acts done under color of law1461 or if a federal employee is sued for a wrongful or negligent act that the Attorney General certifies was done while she was acting within the scope of her employment,1462 the actions may be removed. But the statute most open to federal-state court dispute is the civil rights removal law, which authorizes removal of any action, civil or criminal, which is commenced in a state court “[a]gainst any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.”1463 In the years after enactment of this statute, however, the court narrowly construed the removal privilege granted,1464 and recent decisions for the most part confirm this restrictive interpretation,1465 so that instances of successful resort to the statute are fairly rare.

Thus, the Court’s position holds, one may not obtain removal simply by an assertion that he is being denied equal rights or that he cannot enforce the law granting equal rights. Because the removal statute requires the denial to be “in the courts of such State,” the pretrial conduct of police and prosecutors was deemed irrelevant, because it afforded no basis for predicting that state courts would not vindicate the federal rights of defendants.1466 Moreover, in predicting a denial of rights, only an assertion founded on a facially unconstitutional state statute denying the right in question would suffice. From the existence of such a law, it could be predicted that defendant’s rights would be denied.1467 Furthermore, the removal statute’s reference to “any law providing for . . . equal rights” covered only laws “providing for specific civil rights stated in terms of racial equality.”1468 Thus, apparently federal constitutional provisions and many general federal laws do not qualify as a basis for such removal.1469

Footnotes

1293
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 204–05 (1824). [Back to text]
1294
See 28 U.S.C. §§ 1251, 1331et seq. Indeed, the presumption is that state courts enjoy concurrent jurisdiction, and Congress must explicitly or implicitly confine jurisdiction to the federal courts to oust the state courts. See Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477–84 (1981); Tafflin v. Levitt, 493 U.S. 455 (1990); Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990). Federal courts have exclusive jurisdiction of the federal antitrust laws, even though Congress has not spoken expressly or impliedly. See General Investment Co. v. Lake Shore & Michigan Southern Ry., 260 U.S. 261, 287 (1922). Justice Scalia has argued that, inasmuch as state courts have jurisdiction generally because federal law is law for them, Congress can provide exclusive federal jurisdiction only by explicit and affirmative statement in the text of the statute, Tafflin v. Levitt, 493 U.S. at 469, but as can be seen that is not now the rule. [Back to text]
1295
Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). [Back to text]
1296
Through the “saving to suitors” clause, 28 U.S.C. § 1333(1). See Madruga v. Superior Court, 346 U.S. 556, 560–61 (1954). [Back to text]
1297
See “Organization of Courts, Tenure, and Compensation of Judges” and “Marbury v. Madison,” supra. See also 28 U.S.C. § 1257. [Back to text]
1298
E.g., by a suit against a state by a citizen of another state directly in the Supreme Court, Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), which was overturned by the Eleventh Amendment; by suits in diversity or removal from state courts where diversity existed, 1 Stat. 78, 79; by suits by aliens on treaties, 1 Stat. 77, and, subsequently, by removal from state courts of certain actions. 3 Stat. 198. And for some unknown reason, Congress passed in 1793 a statute prohibiting federal court injunctions against state court proceedings. See Toucey v. New York Life Ins. Co., 314 U.S. 118, 120–32 (1941). [Back to text]
1299
Act of March 3, 1875, 18 Stat. 470. [Back to text]
1300
Civil Rights Act of 1871, § 1, 17 Stat. 13. The authorization for equitable relief is now 42 U.S.C. § 1983, while jurisdiction is granted by 28 U.S.C. § 1343. [Back to text]
1301
See H. WECHSLER, THE NATIONALIZATION OF CIVIL LIBERTIES AND CIVIL RIGHTS (1969). [Back to text]
1302
Hart & Wechsler (6th ed.), supra at 431–531. Notable examples include Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821); Ableman v. Booth, 62 U.S. (21 How.) 506 (1859). For studies, see Note, Final Disposition of State Court Decisions Reversed and Remanded by the Supreme Court, October Term 1931 to October Term 1940, 55 HARV. L. REV. 1357 (1942); Note, Evasion of Supreme Court Mandates in Cases Remanded to State Courts Since 1941, 67 H1941, 67 HARV. L. REV. 1251 (1954); Schneider, State Court Evasion of United States Supreme Court Mandates: A Reconsideration of the Evidence, 7 VALP. U. L. REV. 191 (1973). [Back to text]
1303
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816). See 2 W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 785–817 (1953); 1 C. WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 442–453 (1926). For recent examples, see NAACP v. Alabama, 360 U.S. 240, 245 (1959); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964), after remand, 277 Ala. 89, 167 So.2d 171 (1964); Stanton v. Stanton, 429 U.S. 501 (1977); General Atomic Co. v. Felter, 436 U.S. 493 (1978). [Back to text]
1304
It does not appear that mandamus has ever actually issued. See In re Blake, 175 U.S. 114 (1899); Ex parte Texas, 315 U.S. 8 (1942); Fisher v. Hurst, 333 U.S. 147 (1948); Lavender v. Clark, 329 U.S. 674 (1946); General Atomic Co. v. Felter, 436 U.S. 493 (1978). [Back to text]
1305
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 437 (1819); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 239 (1824); Williams v. Bruffy, 102 U.S. 248 (1880) (entry of judgment); Tyler v. Maguire, 84 U.S. (17 Wall.) 253 (1873) (award of execution); Stanley v. Schwalby, 162 U.S. 255 (1896); Virginia Coupon Cases (Poindexter v. Greenhow), 114 U.S. 270 (1885) (remand with direction to enter a specific judgment). See 28 U.S.C. §§ 1651(a), 2106. [Back to text]
1306
See 18 U.S.C. § 401. In United States v. Shipp, 203 U.S. 563 (1906), 214 U.S. 386 (1909); 215 U.S. 580 (1909), on action by the Attorney General, the Court appointed a commissioner to take testimony, rendered judgment of conviction, and imposed sentence on a state sheriff who had conspired with others to cause the lynching of a prisoner in his custody after the Court had allowed an appeal from a circuit court’s denial of a petition for a writ of habeas corpus. A question whether a probate judge was guilty of contempt of an order of the Court in failing to place certain candidates on the ballot was certified to the district court, over the objections of Justices Douglas and Harlan, who wished to follow the Shipp practice. In re Herndon, 394 U.S. 399 (1969). See In re Herndon, 325 F. Supp. 779 (M.D. Ala. 1971). [Back to text]
1307
1 C. Warren, supra at 729–79. [Back to text]
1308
Id. at 732–36. [Back to text]
1309
31 U.S. (6 Pet.) 515 (1832). [Back to text]
1310
See “Organization of Courts, Tenure, and Compensation of Judges,” supra. [Back to text]
1311
Judiciary Act of 1789, §§ 9, 11, 1 Stat. 76, 78; see also id. at § 25, 1 Stat. 85. [Back to text]
1312
E.g., Carriage Tax Act, 1 Stat. 373 (1794); License Tax on Wine & Spirits Act, 1 Stat. 376 (1794); Fugitive Slave Act, 1 Stat. 302 (1794); Naturalization Act of 1795, 1 Stat. 414; Alien Enemies Act of 1798, 1 Stat. 577. State courts in 1799 were vested with jurisdiction to try criminal offenses against the postal laws. 1 Stat. 733, 28. The Act of March 3, 1815, 3 Stat. 244, vested state courts with jurisdiction of complaints, suits, and prosecutions for taxes, duties, fines, penalties, and forfeitures. See Warren, Federal Criminal Laws and State Courts, 38 HARV. L. REV. 545, 577–581 (1925). [Back to text]
1313
Embargo Acts, 2 Stat. 453, 473, 499, 506, 528, 550, 605, 707 (1808–1812); 3 Stat. 88 (1813); Fugitive Slave Act, 1 Stat. 302 (1793). [Back to text]
1314
41 U.S. (16 Pet.) 539, 615 (1842). See also Houston v. Moore, 18 U.S. (5 Wheat.) 1, 69 (1820) (Justice Story dissenting); United States v. Bailey, 34 U.S. (9 Pet.) 238, 259 (1835) (Justice McLean dissenting). However, the Court held that states could exercise concurrent jurisdiction if they wished. Claflin v. Houseman, 93 U.S. 130 (1876), and cases cited. [Back to text]
1315
E.g., Act of June 8, 1872, 17 Stat. 323. [Back to text]
1316
Claflin v. Houseman, 93 U.S. 130 (1876). [Back to text]
1317
35 Stat. 65 (1908), as amended, 45 U.S.C. §§ 5160. [Back to text]
1318
Second Employers’ Liability Cases, 223 U.S. 1 (1912). [Back to text]
1319
223 U.S. at 59. [Back to text]
1320
Douglas v. New York, N.H. & H.R.R., 279 U.S. 377 (1929). [Back to text]
1321
279 U.S. at 388. For what constitutes a valid excuse, compare Missouri ex rel. Southern Ry. v. Mayfield, 340 U.S. 1 (1950), with McKnett v. St. Louis & S.F. Ry., 292 U.S. 230 (1934). It appears that generally state procedure must yield to federal when it would make a difference in outcome. Compare Brown v. Western Ry. of Alabama, 338 U.S. 294 (1949), and Dice v. Akron, C. & Y. R.R., 342 U.S. 359 (1952), with Minneapolis & St. L. R.R. v. Bombolis, 241 U.S. 211 (1916). [Back to text]
1322
Howlett v. Rose, 496 U.S. 356, 371 (1990). See also Felder v. Casey, 487 U.S. 131 (1988). [Back to text]
1323
Haywood v. Drown, 556 U.S. ___, No. 07–10374, slip op. at 8–9 (2009) (striking down New York statute that gave the state’s supreme courts—its trial courts of general jurisdiction—jurisdiction over suits brought under 42 U.S.C. § 1983, except in the case of suits seeking money damages from corrections officers, whether brought under federal or state law). [Back to text]
1324
556 U.S. ___, No. 07–10374, slip op. at 9 (New York statute found, “contrary to Congress’s judgment [in 42 U.S.C. § 1983,] that all persons who violate federal rights while acting under color of state law shall be held liable for damages”). [Back to text]
1325
330 U.S. 386 (1947). [Back to text]
1326
330 U.S. at 387. [Back to text]
1327
330 U.S. at 389. See, for a discussion as well as an extension of Testa, FERC v. Mississippi, 456 U.S. 742 (1982). Cases since Testa requiring state court enforcement of federal rights have generally concerned federal remedial laws. E.g., Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962); Sullivan v. Little Hunting Park, 396 U.S. 229 (1969). The Court has approved state court adjudication under 42 U.S.C. § 1983, Maine v. Thiboutot, 448 U.S. 1, 3 n.1 (1980), but, curiously, in Martinez v. California, 444 U.S. 277, 283 n.7 (1980) (emphasis by Court), it noted that it has “never considered . . . the question whether a State must entertain a claim under 1983.” See also Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 234 n.7 (1987) (continuing to reserve question). But, with Felder v. Casey, 487 U.S. 131 (1988), and Howlett by Howlett v. Rose, 496 U.S. 356 (1990), it seems dubious that state courts could refuse. Enforcement is not limited to federal statutory law; federal common law must similarly be enforced. Free v. Bland, 369 U.S. 663 (1962). [Back to text]
1328
Donovan v. City of Dallas, 377 U.S. 408 (1964), and cases cited. Justices Harlan, Clark, and Stewart dissented, arguing that a state should have power to enjoin vexatious, duplicative litigation which would have the effect of thwarting a state-court judgment already entered. See also Baltimore & Ohio R.R. v. Kepner, 314 U.S. 44, 56 (1941) (Justice Frankfurter dissenting). In Riggs v. Johnson County, 73 U.S. (6 Wall.) 166 (1868), the general rule was attributed to the complete independence of state and federal courts in their spheres of action, but federal courts, of course may under certain circumstances enjoin actions in state courts. [Back to text]
1329
McKim v. Voorhies, 11 U.S. (7 Cr.) 279 (1812); Riggs v. Johnson County, 73 U.S. (6 Wall.) 166 (1868). [Back to text]
1330
Princess Lida v. Thompson, 305 U.S. 456 (1939). Nor do state courts have any power to release by habeas corpus persons in custody pursuant to federal authority. Ableman v. Booth, 62 U.S. (21 How.) 506 (1859); Tarble’s Case, 80 U.S. (13 Wall.) 397 (1872). [Back to text]
1331
Younger v. Harris, 401 U.S. 37, 44 (1971). Compare Fair Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100 (1981), with id. at 119–25 (Justice Brennan concurring, joined by three other Justices). [Back to text]
1332
Mast, Foos & Co. v. Stover Manufacturing Co., 177 U.S. 458, 488 (1900). Recent decisions emphasize comity as the primary reason for restraint in federal court actions tending to interfere with state courts. E.g., O’Shea v. Littleton, 414 U.S. 488, 499–504 (1974); Huffman v. Pursue, Ltd., 420 U.S. 592, 599–603 (1975); Trainor v. Hernandez, 431 U.S. 434, 441 (1977); Moore v. Sims, 442 U.S. 415, 430 (1979). The Court has also cited comity as a reason to restrict access to federal habeas corpus. Francis v. Henderson, 425 U.S. 536, 541 and n.31 (1976); Wainwright v. Sykes, 433 U.S. 72, 83, 88, 90 (1977); Engle v. Isaac, 456 U.S. 107, 128–29 (1982). See also Rosewell v. LaSalle National Bank, 450 U.S. 503 (1981); Fair Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100 (1981) (comity limits federal court interference with state tax systems); Levin v. Commerce Energy, Inc., 560 U.S. ___, No. 09–223, slip op. (2010) (comity has particular force in cases challenging constitutionality of state taxation of commercial activities). And see Missouri v. Jenkins, 495 U.S. 33 (1990). [Back to text]
1333
C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 13 (4th ed. 1983). The basic doctrine was formulated by Justice Frankfurter for the Court in Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941). Other strands of the doctrine are that a federal court should refrain from exercising jurisdiction in order to avoid needless conflict with a state’s administration of its own affairs, Burford v. Sun Oil Co., 319 U.S. 315 (1943); Alabama Public Service Comm’n v. Southern Ry., 341 U.S. 341 (1951); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943); Martin v. Creasy, 360 U.S. 219 (1959); Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983); New Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350 (1989) (carefully reviewing the scope of the doctrine), especially where state law is unsettled. Meredith v. City of Winter Haven, 320 U.S. 228 (1943); County of Allegheny v. Frank Mashuda Co., 360 U.S. 185 (1959); Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959). See also Clay v. Sun Insurance Office Ltd., 363 U.S. 207 (1960). Also, although pendency of an action in state court will not ordinarily cause a federal court to abstain, there are “exceptional” circumstances in which it should. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976); Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1978); Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983). But, in Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996), an exercise in Burford abstention, the Court held that federal courts have power to dismiss or remand cases based on abstention principles only where relief being sought is equitable or otherwise discretionary but may not do so in common-law actions for damages. [Back to text]
1334
City of Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77 (1958); Zwickler v. Koota, 389 U.S. 241, 249–51 (1967). See Babbitt v. United Farm Workers Nat’l. Union, 442 U.S. 289, 306 (1979) (quoting Harman v. Forssenius, 380 U.S. 528, 534–35 (1965)). [Back to text]
1335
Harman v. Forssenius, 380 U.S. 528, 534–35 (1965); Babbitt v. United Farm Workers Nat’l., 442 U.S. 289, 305–12 (1979). Abstention is not proper simply to afford a state court the opportunity to hold that a state law violates the federal Constitution. Wisconsin v. Constantineau, 400 U.S. 433 (1971); Zablocki v. Redhail, 434 U.S. 374, 379 n.5 (1978); Douglas v. Seacoast Products, Inc., 431 U.S. 265, 271 n.4 (1977); City of Houston v. Hill, 482 U.S. 451 (1987) (“A federal court may not properly ask a state court if it would care in effect to rewrite a statute”). But if the statute is clear and there is a reasonable possibility that the state court would find it in violation of a distinct or specialized state constitutional provision, abstention may be proper, Harris County Comm’rs Court v. Moore, 420 U.S. 77 (1975); Reetz v. Bozanich, 397 U.S. 82 (1970), although not if the state and federal constitutional provisions are alike. Examining Bd. v. Flores de Otero, 426 U.S. 572, 598 (1976). [Back to text]
1336
American Trial Lawyers Ass’n v. New Jersey Supreme Court, 409 U.S. 467, 469 (1973); Harrison v. NAACP, 360 U.S. 167 (1959). Dismissal may be necessary if the state court will not accept jurisdiction while the case is pending in federal court. Harris County Comm’rs v. Moore, 420 U.S. 77, 88 n.14 (1975). [Back to text]
1337
E.g., Spector Motor Service v. McLaughlin, 323 U.S. 101 (1944); Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959); Harrison v. NAACP, 360 U.S. 167 (1959). [Back to text]
1338
McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963); Griffin v. School Board, 377 U.S. 218 (1964); Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324 (1964); Baggett v. Bullitt, 377 U.S. 360 (1964); Davis v. Mann, 377 U.S. 678 (1964); Dombrowski v. Pfister, 380 U.S. 479 (1965); Harman v. Forssenius, 380 U.S. 528 (1965); Zwickler v. Koota, 389 U.S. 241 (1967); Wisconsin v. Constanineau, 400 U.S. 433 (1971). [Back to text]
1339
England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411, 426 (1964) (Justice Douglas concurring). See C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 305 (4th ed. 1983). [Back to text]
1340
Baggett v. Bullitt, 377 U.S. 360, 378–379 (1964). Both consequences may be alleviated substantially by state adoption of procedures by which federal courts may certify to the state’s highest court questions of unsettled state law which would be dispositive of the federal court action. The Supreme Court has actively encouraged resort to certification where it exists. Clay v. Sun Insurance Office Ltd., 363 U.S. 207 (1960); Lehman Brothers v. Schein, 416 U.S. 386 (1974); Bellotti v. Baird, 428 U.S. 132, 151 (1976). [Back to text]
1341
Compare Harrison v. NAACP, 360 U.S. 167 (1959), with McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963). [Back to text]
1342
Compare Baggett v. Bullitt, 377 U.S. 360 (1964), and Dombrowski v. Pfister, 380 U.S. 479 (1965), with Younger v. Harris, 401 U.S. 37 (1971), and Samuels v. Mackell, 401 U.S. 66 (1971). See Babbitt v. United Farm Workers, 442 U.S. 289, 305–312 (1979). [Back to text]
1343
401 U.S. 37 (1971). There is room to argue whether the Younger line of cases represents the abstention doctrine at all, but the Court continues to refer to it in those terms. E.g., Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992); Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. ___, No. 12–815, slip op. (2013). [Back to text]
1344
The rule was formulated in Prentis v. Atlantic Coast Line Co., 211 U.S. 210 (1908), and Bacon v. Rutland R.R., 232 U.S. 134 (1914). [Back to text]
1345
City Bank Farmers’ Trust Co. v. Schnader, 291 U.S. 24 (1934); Lane v. Wilson, 307 U.S. 268 (1939). But see Alabama Public Service Comm’n v. Southern Ry., 341 U.S. 341 (1951). Exhaustion of state court remedies is required in habeas corpus cases and usually in suits to restrain state court proceedings. [Back to text]
1346
Patsy v. Florida Board of Regents, 457 U.S. 496 (1982). Where there are pending administrative proceedings that fall within the Younger rule, a litigant must exhaust. Younger v. Harris, 401 U.S. 37 (1971), as explicated in Ohio Civil Rights Comm’n v. Dayton Christian School, Inc., 477 U.S. 619, 627 n.2 (1986). Under title VII of the Civil Rights Act of 1964, barring employment discrimination on racial and other specified grounds, the EEOC may not consider a claim until a state agency having jurisdiction over employment discrimination complaints has had at least 60 days to resolve the matter. 42 U.S.C. § 2000e–5(c). See Love v. Pullman Co., 404 U.S. 522 (1972). The Civil Rights of Institutionalized Persons Act contains “a specific, limited exhaustion requirement for adult prisoners bringing actions pursuant to § 1983.” Patsy, 457 U.S. at 508. [Back to text]
1347
Toucey v. New York Life Ins. Co., 314 U.S. 118, 130–32 (1941). [Back to text]
1348
“[N]or shall a writ of injunction be granted to stay proceedings in any court of a state . . . .” Ch. XXII, § 5, 1 Stat. 335 (1793), now, as amended, 28 U.S.C. § 2283. [Back to text]
1349
Durfee & Sloss, Federal Injunctions Against Proceedings in State Courts:The Life History of a Statute, 30 MICH. L. REV. 1145 (1932). [Back to text]
1350
314 U.S. 118 (1941). [Back to text]
1351
“A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283. The Reviser’s Note is appended to the statute, stating intent. [Back to text]
1352
Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 511 (1955); Atlantic Coast Line R.R. v. Brotherhood of Locomotive Engineers, 398 U.S. 281 (1970). See M. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER ch. 10 (1980). [Back to text]
1353
The greatest difficulty is with the “expressly authorized by Act of Congress” exception. No other Act of Congress expressly refers to § 2283 and the Court has indicated that no such reference is necessary to create a statutory exception. Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 511, 516 (1955). Compare Capital Service, Inc. v. NLRB, 347 U.S. 501 (1954). Rather, “in order to qualify as an ‘expressly authorized’ exception to the anti-injunction statute, an Act of Congress must have created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, that could be frustrated if the federal court were not empowered to enjoin a state court proceeding.” Mitchum v. Foster, 407 U.S. 225, 237 (1972). Applying this test, the Court in Mitchum held that a 42 U.S.C. § 1983 suit is an exception to § 2283 and that persons suing under this authority may, if they satisfy the requirements of comity, obtain an injunction against state court proceedings. The exception is, of course, highly constrained by the comity principle. On the difficulty of applying the test, see Vendo Co. v. Lektco-Vend Corp., 433 U.S. 623 (1977) (fragmented Court on whether Clayton Act authorization of private suits for injunctive relief is an “expressly authorized” exception to § 2283). On the interpretation of the § 2283 exception for injunctions to protect or effectuate a federal-court judgment, see Chick Kam Choo v. Exxon Corp., 486 U.S. 140 (1988). [Back to text]
1354
Thus, the Act bars federal court restraint of pending state court proceedings but not restraint of the institution of such proceedings. Dombrowski v. Pfister, 380 U.S. 479, 484 n.2 (1965). Restraint is not barred if sought by the United States or an officer or agency of the United States. Leiter Minerals v. United States, 352 U.S. 220 (1957); NLRB v. Nash-Finch Co., 404 U.S. 138 (1971). Restraint is not barred if the state court proceeding is not judicial but rather administrative. Prentis v. Atlantic Coast Line Co., 211 U.S. 210 (1908); Roudebush v. Hartke, 405 U.S. 15 (1972). Compare Hill v. Martin, 296 U.S. 393, 403 (1935), with Lynch v. Household Finance Corp., 405 U.S. 538, 552–56 (1972). [Back to text]
1355
The statute is to be applied “to prevent needless friction between state and federal courts.” Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4, 9 (1940); Atlantic Coast Line R.R. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 285–86 (1970). [Back to text]
1356
Article IV, § 1, of the Constitution; 28 U.S.C. § 1738. [Back to text]
1357
Allen v. McCurry, 449 U.S. 90, 95–96 (1980). [Back to text]
1358
449 U.S. at 96–105. In England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411 (1964), the Court held that, when parties are compelled to go to state court under Pullman abstention, either party may reserve the federal issue and thus be enabled to return to federal court without being barred by res judicata. [Back to text]
1359
Kramer v. Chemical Construction Corp., 456 U.S. 461, 468 (1982). [Back to text]
1360
456 U.S. 468–76. There were four dissents. Id. at 486 (Justices Blackmun, Brennan, and Marshall), 508 (Stevens). [Back to text]
1361
The doctrine derives its name from Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). [Back to text]
1362
Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005) (Rooker-Feldman has no application when federal court proceedings have been initiated prior to state court proceedings; preclusion law governs in that situation). [Back to text]
1363
209 U.S. 123 (1908). [Back to text]
1364
36 Stat. 557 (1910). The statute was amended in 1925 to apply to requests for permanent injunctions, 43 Stat. 936, and again in 1937 to apply to constitutional attacks on federal statutes. 50 Stat. 752. [Back to text]
1365
Swift & Co. v. Wickham, 382 U.S. 111, 119 (1965); Ex parte Collins, 277 U.S. 565, 567 (1928). [Back to text]
1366
These now are primarily limited to suits under the Voting Rights Act, 42 U.S.C. §§ 1973b(a), 1973c, 1973h(c), and to certain suits by the Attorney General under public accommodations and equal employment provisions of the 1964 Civil Rights Act. 42 U.S.C. §§ 2000a–5(b), 2000e–6(b). [Back to text]
1367
Pub. L. 94–381, 90 Stat. 1119, 28 U.S.C. § 2284. In actions still required to be heard by three-judge courts, direct appeals are still available to the Supreme Court. 28 U.S.C. § 1253. [Back to text]
1368
For example, one of the cases decided in Brown v. Board of Education, 347 U.S. 483 (1954), came from the Supreme Court of Delaware. In Scott v. Germano, 381 U.S. 407 (1965), the Court set aside an order of the district court refusing to defer to the state court which was hearing an apportionment suit and said: “The power of the judiciary of a State to require valid reapportionment or to formulate a valid redistricting plan has not only been recognized by this Court but appropriate action by the States has been specifically encouraged.” See also Scranton v. Drew, 379 U.S. 40 (1964). [Back to text]
1369
By its terms, the Eleventh Amendment bars only suits against a state by citizens of other states, but, in Hans v. Louisiana, 134 U.S. 1 (1890), the Court deemed it to embody principles of sovereign immunity that applied to unconsented suits by its own citizens. [Back to text]
1370
In re Ayers, 123 U.S. 443 (1887). [Back to text]
1371
209 U.S. 123 (1908). [Back to text]
1372
The fiction is that while the official is a state actor for purposes of suit against him, the claim that his action is unconstitutional removes the imprimatur of the state that would shield him under the Eleventh Amendment. 209 U.S. at 159–60. [Back to text]
1373
28 U.S.C. § 2283 may be inapplicable because no state court proceeding is pending or because the action is brought under 42 U.S.C. § 1983. Its application may never be reached because a court may decide that equitable principles do not justify injunctive relief. Younger v. Harris, 401 U.S. 37, 54 (1971). [Back to text]
1374
See “Abstention,” supra. [Back to text]
1375
The quoted phrase setting out the general principle is from the Judiciary Act of 1789, § 16, 1 Stat. 82. [Back to text]
1376
The older cases are Fenner v. Boykin, 271 U.S. 240 (1926); Spielman Motor Sales Co. v. Dodge, 295 U.S. 89 (1935); Beal v. Missouri Pac. R.R., 312 U.S. 45 (1941); Watson v. Buck, 313 U.S. 387 (1941); Williams v. Miller, 317 U.S. 599 (1942); Douglas v. City of Jeannette, 319 U.S. 157 (1943). There is a stricter rule against federal restraint of the use of evidence in state criminal trials. Stefanelli v. Minard, 342 U.S. 117 (1951); Pugach v. Dollinger, 365 U.S. 458 (1961). The Court reaffirmed the rule in Perez v. Ledesma, 401 U.S. 82 (1971). State officers may not be enjoined from testifying or using evidence gathered in violation of federal constitutional restrictions, Cleary v. Bolger, 371 U.S. 392 (1963), but the rule is unclear with regard to federal officers and state trials. Compare Rea v. United States, 350 U.S. 214 (1956), with Wilson v. Schnettler, 365 U.S. 381 (1961). [Back to text]
1377
E.g., Douglas v. City of Jeannette, 319 U.S. 157, 163–164 (1943); Stefanelli v. Minard, 342 U.S. 117, 122 (1951). See also Terrace v. Thompson, 263 U.S. 197, 214 (1923), Future criminal proceedings were sometimes enjoined. E.g., Hague v. CIO, 307 U.S. 496 (1939). [Back to text]
1378
380 U.S. 479 (1965). Grand jury indictments had been returned after the district court had dissolved a preliminary injunction, erroneously in the Supreme Court’s view, so that it took the view that no state proceedings were pending as of the appropriate time. For a detailed analysis of the case, see Fiss, Dombrowski, 86 YALE L. J. 1103 (1977). [Back to text]
1379
“[T]he allegations in this complaint depict a situation in which defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss of or impairment of freedoms of expression will occur if appellants must await the state court’s disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury.” 380 U.S. at 485–86. [Back to text]
1380
That is, a statute that reaches both protected and unprotected expression and conduct. [Back to text]
1381
380 U.S. at 486. [Back to text]
1382
380 U.S. at 486, 487. [Back to text]
1383
See Cameron v. Johnson, 381 U.S. 741 (1965); Cameron v. Johnson, 390 U.S. 611 (1968). [Back to text]
1384
389 U.S. 241 (1967). The state criminal conviction had been reversed by a state court on state law grounds and no new charge had been instituted. [Back to text]
1385
It was clear that the statute could not be construed by a state court to render unnecessary a federal constitutional decision. 389 U.S. at 248–52. [Back to text]
1386
389 U.S. at 254. [Back to text]
1387
Maraist, Federal Injunctive Relief Against State Court Proceedings: The Significance of Dombrowski, 48 TEX. L. REV. 535 (1970). [Back to text]
1388
Younger v. Harris, 401 U.S. 37 (1971); Samuels v. Mackell, 401 U.S. 66 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Perez v. Ledesma, 401 U.S. 82 (1971); Dyson v. Stein, 401 U.S. 200 (1971); Byrne v. Karalexis, 401 U.S. 216 (1971). Justice Black wrote the majority opinion in the first four of these cases; the other two were per curiam opinions. [Back to text]
1389
Only Justice Douglas dissented. 401 U.S. at 58. Justices Brennan, White, and Marshall generally concurred in a restrained fashion. Id. at 56, 75, 93. [Back to text]
1390
401 U.S. at 54. On bad faith enforcement, see id. at 56 (Justices Stewart and Harlan concurring); 97 (Justices Brennan, White, and Marshall concurring in part and dissenting in part). For an example, see Universal Amusement Co. v. Vance, 559 F.2d 1286, 1293–1301 (5th Cir. 1977), aff’d per curiam sub nom. Dexter v. Butler, 587 F.2d 176 (5th Cir.) (en banc), cert. denied, 442 U.S. 929 (1979). [Back to text]
1391
401 U.S. at 44. [Back to text]
1392
Samuels v. Mackell, 401 U.S. 66 (1971). The holding was in line with Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943). [Back to text]
1393
Samuels v. Mackell, 401 U.S. 66, 72 (1971). [Back to text]
1394
Steffel v. Thompson, 415 U.S. 452 (1974). [Back to text]
1395
Doran v. Salem Inn, 422 U.S. 922 (1975) (preliminary injunction may issue to preserve status quo while court considers whether to grant declaratory relief); Wooley v. Maynard, 430 U.S. 705 (1977) (when declaratory relief is given, permanent injunction may be issued if necessary to protect constitutional rights). However, it may not be easy to discern when state proceedings will be deemed to have been instituted prior to the federal proceeding. E.g., Hicks v. Miranda, 422 U.S. 332 (1975); Huffman v. Pursue. Ltd., 420 U.S. 592 (1975); see also Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984). [Back to text]
1396
Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982); Moore v. Sims, 442 U.S. 415 (1979); Trainor v. Hernandez, 431 U.S. 434 (1977); Juidice v. Vail, 430 U.S. 327 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) (state action to close adult theater under the state’s nuisance statute and to seize and sell personal property used in the theater’s operations). [Back to text]
1397
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) (holding that federal abstention was warranted in a federal court action to block a state court order issued under the state’s “lien and bond” authority). It was “the State’s [particular] interest in protecting ‘the authority of the judicial system, so that its orders and judgments are not rendered nugatory’ ” that merited abstention, and not merely a general state interest in protecting ongoing civil proceedings from federal interference. Id. at 14 n.12 (quoting Juidice, 430 U.S. at 336 n.12). [Back to text]
1398
Oh. Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619 (1986). The “judicial in nature” requirement is more fully explicated in New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989). [Back to text]
1399
See New Orleans Pub. Serv., Inc., 491 U.S. at 368. [Back to text]
1400
571 U.S. ___, No. 12–815, slip op. (2013). [Back to text]
1401
Id. at 2. [Back to text]
1402
Id. at 8. [Back to text]
1403
Ex parte Watkins, 28 U.S. (3 Pet.) 193 (1830) (Chief Justice Marshall); cf.Ex parte Parks, 93 U.S. 18 (1876). But see Fay v. Noia, 372 U.S. 391, 404–415 (1963). The expansive language used when Congress in 1867 extended the habeas power of federal courts to state prisoners “restrained of . . . liberty in violation of the constitution, or of any treaty or law of the United States . . . ,” 14 Stat. 385, could have encouraged an expansion of the writ to persons convicted after trial. [Back to text]
1404
Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874). [Back to text]
1405
Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Royall, 117 U.S. 241 (1886); Crowley v. Christensen, 137 U.S. 86 (1890); Yick Wo v. Hopkins, 118 U.S. 356 (1886). [Back to text]
1406
Ex parte Wilson, 114 U.S. 417 (1885); In re Nielsen, 131 U.S. 176 (1889); In re Snow, 120 U.S. 274 (1887); but see Ex parte Parks, 93 U.S. 18 (1876); Ex parte Bigelow, 113 U.S. 328 (1885). It is possible that the Court expanded the office of the writ because its reviewing power over federal convictions was closely limited. F. Frankfurter & J. Landis, supra. Once such review was granted, the Court began to restrict the use of the writ. E.g., Glasgow v. Moyer, 225 U.S. 420 (1912); In re Lincoln, 202 U.S. 178 (1906); In re Morgan, 203 U.S. 96 (1906). [Back to text]
1407
237 U.S. 309 (1915). [Back to text]
1408
261 U.S. 86 (1923). [Back to text]
1409
Walker v. Johnston, 312 U.S. 275 (1941). See also Johnson v. Zerbst, 304 U.S. 458 (1938); Walker v. Johnston, 312 U.S. 275 (1941). The way one reads the history of the developments is inevitably a product of the philosophy one brings to the subject. In addition to the recitations cited in other notes, compare Wright v. West, 505 U.S. 277, 285–87 & n.3 (1992) (Justice Thomas for a plurality of the Court), with id. at 297–301 (Justice O’Connor concurring). [Back to text]
1410
344 U.S. 443 (1953). Brown is commonly thought to rest on the assumption that federal constitutional rights cannot be adequately protected only by direct Supreme Court review of state court judgments but that independent review, on habeas, must rest with federal judges. It is, of course, true that Brown coincided with the extension of most of the Bill of Rights to the states by way of incorporation and expansive interpretation of federal constitutional rights; previously, there was not a substantial corpus of federal rights to protect through habeas. See Wright v. West, 505 U.S. 277, 297–99 (1992) (Justice O’Connor concurring). In Fay v. Noia, 372 U.S. 391 (1963), Justice Brennan, for the Court, and Justice Harlan, in dissent, engaged in a lengthy, informed historical debate about the legitimacy of Brown and its premises. Compare id. at 401–24, with id. at 450–61. See the material gathered and cited in Hart & Wechsler (6th ed.), supra at 1220–1248. [Back to text]
1411
Sanders v. United States, 373 U.S. 1 (1963); Fay v. Noia, 372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 293 (1963). These cases dealt, respectively, with the treatment to be accorded a habeas petition in the three principal categories in which they come to the federal court: when a state court has rejected petitioner’s claims on the merits, when a state court has refused to hear petitioner’s claims on the merits because she has failed properly or timely to present them, or when the petition is a second or later petition raising either old or new, or mixed, claims. Of course, as will be demonstrated infra, these cases have now been largely drained of their force. [Back to text]
1412
Townsend v. Sain, 372 U.S. 293, 310–12 (1963). If the district judge concluded that the habeas applicant was afforded a full and fair hearing by the state court resulting in reliable findings, the Court said, he may, and ordinarily should, defer to the state factfinding. Id. at 318. Under the 1966 statutory revision, a habeas court must generally presume correct a state court’s written findings of fact from a hearing to which the petitioner was a party. A state finding cannot be set aside merely on a preponderance of the evidence and the federal court granting the writ must include in its opinion the reason it found the state findings not fairly supported by the record or the existence of one or more listed factors justifying disregard of the factfinding. Pub. L. 89–711, 80 Stat. 1105, 28 U.S.C. § 2254(d). See Sumner v. Mata, 449 U.S. 539 (1981); Sumner v. Mata, 455 U.S. 591 (1982); Marshall v. Lonberger, 459 U.S. 422 (1983); Patton v. Yount, 467 U.S. 1025 (1984); Parker v. Dugger, 498 U.S. 308 (1991); Burden v. Zant, 498 U.S. 433 (1991). The presumption of correctness does not apply to questions of law or to mixed questions of law and fact. Miller v. Fenton, 474 U.S. 104, 110–16 (1985). However, in Wright v. West, 505 U.S. 277 (1992), the Justices argued inconclusively whether deferential review of questions of law or especially of law and fact should be adopted. [Back to text]
1413
Townsend v. Sain, 372 U.S. 293, 312 (1963). The Court was unanimous on the statement, but it divided 5 to 4 on application. [Back to text]
1414
372 U.S. at 313–18. Congress in 1966 codified the factors in somewhat different form but essentially codified Townsend. Pub. L. 89–711, 80 Stat. 1105, 28 U.S.C. § 2254. The Court believes that Congress neither codified Townsend nor precluded the Court from altering the Townsend standards. Keeney v. Tamayo-Reyes, 504 U.S. 1, 10, n.5 (1992). Compare id. at 20–21 (Justice O’Connor dissenting). Keeney formally overruled part of Townsend. Id. at 5. [Back to text]
1415
373 U.S. 1 (1963). Sanders was a § 2255 case, a federal prisoner petitioning for postconviction relief. The Court applied the same liberal rules with respect to federal prisoners as it did for state. See Kaufman v. United States, 394 U.S. 217 (1969). As such, the case has also been eroded by subsequent cases. E.g., Davis v. United States, 411 U.S. 233 (1973); United States v. Frady, 456 U.S. 152 (1982). [Back to text]
1416
373 U.S. at 8. The statement accorded with the established view that principles of res judicata were not applicable in habeas. E.g., Price v. Johnston, 334 U.S. 266 (1948); Wong Doo v. United States, 265 U.S. 239 (1924); Salinger v. Loisel, 265 U.S. 224 (1924). Congress in 1948 had appeared to adopt some limited version of res judicata for federal prisoners but not for state prisoners, Act of June 25, 1948, 62 Stat. 965, 967, 28 U.S.C. §§ 2244, 2255, but the Court in Sanders held the same standards applicable and denied the statute changed existing caselaw. 373 U.S. at 11–14. But see id. at 27–28 (Justice Harlan dissenting). [Back to text]
1417
373 U.S. at 15. In codifying the Sanders standards in 1966, Pub. L. 89–711, 80 Stat. 1104, 28 U.S.C. § 2244(b), Congress omitted the “ends of justice” language. Although it was long thought that the omission probably had no substantive effect, this may not be the case. Kuhlmann v. Wilson, 477 U.S. 436 (1986). [Back to text]
1418
373 U.S. at 17–19. [Back to text]
1419
372 U.S. 391 (1963). Fay was largely obliterated over the years, beginning with Davis v. United States, 411 U.S. 233 (1973), a federal-prisoner post-conviction relief case, and Wainwright v. Sykes, 433 U.S. 72 (1977), but it was not formally overruled until Coleman v. Thompson, 501 U.S. 722, 744–51 (1991). [Back to text]
1420
E.g., Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875); Herb v. Pitcairn, 324 U.S. 117 (1945). In the habeas context, the procedural-bar rules are ultimately a function of the requirement that petitioners first exhaust state avenues of relief before coming to federal court. [Back to text]
1421
344 U.S. 443 (1953). [Back to text]
1422
Fay v. Noia, 372 U.S. 391, 424–34 (1963). [Back to text]
1423
372 U.S. at 438–40. [Back to text]
1424
In 1961, state prisoner habeas filings totaled 1,020, in 1965, 4,845, in 1970, a high (to date) of 9,063, in 1975, 7,843 in 1980, 8,534 in 1985, 9,045 in 1986. On relief afforded, no reliable figures are available, but estimates indicate that at most 4 percent of the filings result in either release or retrial. C. WRIGHT, A. MILLER, & E. COOPER, FEDERAL PRACTICE AND PROCEDURE (1988 & supps.), § 4261, at 284–91. [Back to text]
1425
Wainwright v. Sykes, 433 U.S. 72, 81 (1977). The present Court’s emphasis in habeas cases is, of course, quite different from that of the Court in the 1963 trilogy. Now, the Court favors decisions that promote finality, comity, judicial economy, and channeling the resolution of claims into the most appropriate forum. Keeney v. Tamayo-Reyes, 504 U.S. 1, 8–10 (1992). Overall, federalism concerns are critical. See Coleman v. Thompson, 501 U.S. 722, 726 (1991) (“This is a case about federalism.” First sentence of opinion). The seminal opinion on which subsequent cases have drawn is Justice Powell’s concurrence in Schneckloth v. Bustamonte, 412 U.S. 218, 250 (1973). He suggested that habeas courts should entertain only those claims that go to the integrity of the fact-finding process, thus raising questions of the value of a guilty verdict, or, more radically, that only those prisoners able to make a credible showing of “factual innocence” could be heard on habeas. Id. at 256–58, 274–75. As will be evident infra, some form of innocence standard now is pervasive in much of the Court’s habeas jurisprudence. [Back to text]
1426
433 U.S. at 83; Stone v. Powell, 428 U.S. 465, 495 n.37 (1976); Francis v. Henderson, 425 U.S. 536, 538 (1976); Fay v. Noia, 372 U.S. 391, 438 (1963). The dichotomy between power and discretion goes all the way back to the case imposing the rule of exhaustion of state remedies. Ex parte Royall, 117 U.S. 241, 251 (1886). [Back to text]
1427
Stone v. Powell, 428 U.S. 465 (1976). The decision is based as much on the Court’s dissatisfaction with the exclusionary rule as with its desire to curb habeas. Holding that the purpose of the exclusionary rule is to deter unconstitutional searches and seizures rather than to redress individual injuries, the Court reasoned that no deterrent purpose was advanced by applying the rule on habeas, except to encourage state courts to give claimants a full and fair hearing. Id. at 493–95. [Back to text]
1428
Stone does not apply to a Sixth Amendment claim of ineffective assistance of counsel in litigating a search and seizure claim. Kimmelman v. Morrison, 477 U.S. 365, 382–383 (1986). See also Rose v. Mitchell, 443 U.S. 545 (1979) (racial discrimination in selection of grand jury foreman); Jackson v. Virginia, 443 U.S. 307 (1979) (insufficient evidence to satisfy reasonable doubt standard). [Back to text]
1429
Issues of admissibility of confessions (Miranda violations) and eyewitness identifications are obvious candidates. See, e.g., Duckworth v. Eagan, 492 U.S. 195, 205 (1989) (Justice O’Connor concurring); Brewer v. Williams, 430 U.S. 387, 413–14 (1977) (Justice Powell concurring), and id. at 415 (Chief Justice Burger dissenting); Wainwright v. Sykes, 433 U.S. 72, 87 n.11 (1977) (reserving Miranda). [Back to text]
1430
The first exception permits the retroactive application on habeas of a new rule if the rule places a class of private conduct beyond the power of the state to proscribe or addresses a substantive categorical guarantee accorded by the Constitution. The rule must, to say it differently, either decriminalize a class of conduct or prohibit the imposition of a particular punishment on a particular class of persons. The second exception would permit the application of “watershed rules of criminal procedure” implicating the fundamental fairness and accuracy of the criminal proceeding. Saffle v. Parks, 494 U.S. 484, 494–95 (1990) (citing cases); Sawyer v. Smith, 497 U.S. 227, 241–45 (1990). [Back to text]
1431
Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion); Penry v. Lynaugh, 492 U.S. 302, 313–19 (1989). [Back to text]
1432
Butler v. McKellar, 494 U.S. 407, 412 (1990) (quoting Penry v. Lynaugh, 492 U.S. 302, 314 (1989), which was quoting Teague v. Lane, 489 U.S. 288, 314 (1989). This sentence was quoted again in Whorton v. Bockting, 549 U.S. 406, 416 (2007)). [Back to text]
1433
494 U.S. at 415. See also Stringer v. Black, 503 U.S. 222, 228–29 (1992). This latter case found that two decisions relied on by petitioner merely drew on existing precedent and so did not establish a new rule. See also O’Dell v. Netherland, 521 U.S. 151 (1997); Lambrix v. Singletary, 520 U.S. 518 (1997); Gray v. Netherland, 518 U.S. 152 (1996). But compare Bousley v. Brooks, 523 U.S. 614 (1998). [Back to text]
1434
Townsend v. Sain, 372 U.S. 293, 313, 317 (1963), imported the “deliberate bypass” standard from Fay v. Noia, 372 U.S. 391, 438 (1963). [Back to text]
1435
Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). This standard is imported from the cases abandoning Fay v. Noia and is discussed infra. [Back to text]
1436
373 U.S. 1, 15–18 (1963). The standards are embodied in 28 U.S.C. § 2244(b). [Back to text]
1437
477 U.S. 436 (1986). [Back to text]
1438
Sawyer v. Whitley, 505 U.S. 333 (1992). Language in the opinion suggests that the standard is not limited to capital cases. Id. at 339. [Back to text]
1439
The standard is in 28 U.S.C. § 2244(b), along with the standard that, if a petitioner “deliberately withheld” a claim, the petition can be dismissed. See also 28 U.S.C. § 2254 Rule 9(b) (judge may dismiss successive petition raising new claims if failure to assert them previously was an abuse of the writ). [Back to text]
1440
499 U.S. 467 (1991). [Back to text]
1441
499 U.S. at 489–97. The “actual innocence” element runs through the cases under all the headings. [Back to text]
1442
Coleman v. Thompson, 501 U.S. 722, 744–51 (1991). [Back to text]
1443
Coleman v. Thompson, 501 U.S. 722, 750 (1991). The standard has been developed in a long line of cases. Davis v. United States, 411 U.S. 233 (1973) (under federal rules); Francis v. Henderson, 425 U.S. 536 (1976); Engle v. Isaac, 456 U.S. 107 (1982); Murray v. Carrier, 477 U.S. 478 (1986); Harris v. Reed, 489 U.S. 255 (1989). Coleman arose because the defendant’s attorney had filed his appeal in state court three days late. Wainwright v. Sykes involved the failure of defendant to object to the admission of inculpatory statements at the time of trial. Engle v. Isaac involved a failure to object at trial to jury instructions. [Back to text]
1444
E.g., Smith v. Murray, 477 U.S. 527, 538–39 (1986); Murray v. Carrier, 477 U.S. 478, 496 (1986). In Bousley v. Brooks, 523 U.S. 614 (1998), a federal post-conviction relief case, petitioner had pled guilty to a federal firearms offense. Subsequently, the Supreme Court interpreted more narrowly the elements of the offense than had the trial court in Bousley’s case. The Court held that Bousley by his plea had defaulted, but that he might be able to demonstrate “actual innocence” so as to excuse the default if he could show on remand that it was more likely than not that no reasonable juror would have convicted him of the offense, properly defined. [Back to text]
1445
Murray v. Carrier, 477 U.S. at 488. This case held that ineffective assistance of counsel is not “cause” unless it rises to the level of a Sixth Amendment violation. See also Coleman v. Thompson, 501 U.S. 722, 752–57 (1991) (because petitioner had no right to counsel in state postconviction proceeding where error occurred, he could not claim constitutionally ineffective assistance of counsel). The actual novelty of a constitutional claim at the time of the state court proceeding is “cause” excusing the petitioner’s failure to raise it then, Reed v. Ross, 468 U.S. 1 (1984), although the failure of counsel to anticipate a line of constitutional argument then foreshadowed in Supreme Court precedent is insufficient “cause.” Engle v. Isaac, 456 U.S. 107 (1982). [Back to text]
1446
United States v. Frady, 456 U.S. 152, 169 (1982) (under federal rules) (with respect to erroneous jury instruction, inquiring whether the error “so infected the entire trial that the resulting conviction violates due process”). [Back to text]
1447
506 U.S. 390 (1993). [Back to text]
1448
506 U.S. at 398–417. [Back to text]
1449
506 U.S. at 417–419. Justices Scalia and Thomas would have unequivocally held that “[t]here is no basis in text, tradition, or even in contemporary practice . . . for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.” Id. at 427–28 (concurring). However, it is not at all clear that all the Justices joining the Court believe innocence to be nondispositive on habeas. Id. at 419 (Justices O’Connor and Kennedy concurring), 429 (Justice White concurring). In House v. Bell, 547 U.S. 518, 554–55 (2006), the Court declined to resolve the issue that in Herrera it had assumed without deciding: that “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” See Amendment 8, Limitations on Habeas Corpus Review of Capital Sentences. [Back to text]
1450
557 U.S. ___, No. 08–1443 (2009). [Back to text]
1451
Justice Scalia, joined by Justice Thomas, dissented, writing, “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” He also wrote that the defendant’s “claim is a sure loser” and that the Supreme Court was sending the District Court “on a fool’s errand.” [Back to text]
1452
513 U.S. 298 (1995). [Back to text]
1453
513 U.S. at 334 (Chief Justice Rehnquist dissenting, with Justices Kennedy and Thomas), 342 (Justice Scalia dissenting, with Justice Thomas). This standard was drawn from Sawyer v. Whitley, 505 U.S. 333 (1992). [Back to text]
1454
513 U.S. at 327. This standard was drawn from Murray v. Carrier, 477 U.S. 478 (1986). [Back to text]
1455
Pub. L. 104–132, Title I, 110 Stat. 1217–21, amending 28 U.S.C. §§ 2244, 2253, 2254, and Rule 22 of the Federal Rules of Appellate Procedure. [Back to text]
1456
518 U.S. 651 (1996). [Back to text]
1457
The amended 28 U.S.C. § 2254(d) (emphasis added). The provision was applied in Bell v. Cone, 535 U.S. 685 (2002). See also Renico v. Lett, 559 U.S. ___, No. 09–338, slip op. 9–12 (2010). For analysis of its constitutionality, see the various opinions in Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc), rev’d on other grounds, 521 U.S. 320 (1997); Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), cert. denied, 520 U.S. 1107 (1997); Hall v. Washington, 106 F.3d 742 (7th Cir. 1997); O’Brien v. Dubois, 145 F.3d 16 (1st Cir. 1998); Green v. French, 143 F.3d 865 (4th Cir. 1998), cert. denied, 525 U.S. 1090 (1999). [Back to text]
1458
Harrington v. Richter, 562 U.S. ___, No. 09–587, slip op. at 10–14 (2011) (overturning Ninth Circuit’s grant of relief, which was based on ineffective assistance of counsel); accord Premo v. Moore, 562 U.S. ___, No. 09–658, slip op. (2011) (same) and Cullen v. Pinholster, No. 09–1088, slip op. (2011) (same). [Back to text]
1459
§ 12, 1 Stat. 79. The removal provision contained the same jurisdictional amount requirement as the original jurisdictional statute. It applied in the main to aliens and defendants not residents of the state in which suit was brought. [Back to text]
1460
Thus the Act of March 3, 1875, § 2, 18 Stat. 470, conferring federal question jurisdiction on the inferior federal courts, provided for removal of such actions. The constitutionality of congressional authorization for removal is well-established. Chicago & N.W. Ry. v. Whitton’s Administrator, 80 U.S. (13 Wall.) 270 (1871); Tennessee v. Davis, 100 U.S. 257 (1880); Ames v. Kansas ex rel. Johnston, 111 U.S. 449 (1884). See City of Greenwood v. Peacock, 384 U.S. 808, 833 (1966). [Back to text]
1461
See 28 U.S.C. § 1442. This statute had its origins in the Act of February 4, 1815, § 8, 3 Stat. 198 (removal of civil and criminal actions against federal customs officers for official acts), and the Act of March 2, 1833, § 3, 4 Stat. 633 (removal of civil and criminal actions against federal officers on account of acts done under the revenue laws), both of which grew out of disputes arising when certain states attempted to nullify federal laws, and the Act of March 3, 1863, § 5, 12 Stat. 756 (removal of civil and criminal actions against federal officers for acts done during the existence of the Civil War under color of federal authority). In Mesa v. California, 489 U.S. 121 (1989), the Court held that the statute authorized federal officer removal only when the defendant avers a federal defense. See Willingham v. Morgan, 395 U.S. 402 (1969). [Back to text]
1462
28 U.S.C. § 2679(d), enacted after Westfall v. Erwin, 484 U.S. 292 (1988). [Back to text]
1463
28 U.S.C. § 1443(1). Subsection (2) provides for the removal of state court actions “[f]or any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.” This subsection “is available only to federal officers and to persons assisting such officers in the performance of their official duties.” City of Greenwood v. Peacock, 384 U.S. 808, 815 (1966). [Back to text]
1464
Strauder v. West Virginia, 100 U.S. 303 (1880); Virginia v. Rives, 100 U.S. 313 (1880); Neal v. Delaware, 103 U.S. 370 (1881); Bush v. Kentucky, 107 U.S. 110 (1883); Gibson v. Mississippi, 162 U.S. 565 (1896); Smith v. Mississippi, 162 U.S. 592 (1896); Murray v. Louisiana, 163 U.S. 101 (1896); Williams v. Mississippi, 170 U.S. 213 (1898); Kentucky v. Powers, 201 U.S. 1 (1906). [Back to text]
1465
Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood v. Peacock, 384 U.S. 808 (1966). There was a hiatus of cases reviewing removal from 1906 to 1966 because from 1887 to 1964 there was no provision for an appeal of an order of a federal court remanding a removed case to the state courts. § 901 of the Civil Rights Act of 1964, 78 Stat. 266, 28 U.S.C. § 1447(d). [Back to text]
1466
Georgia v. Rachel, 384 U.S. 780, 803 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 827 (1966). Justice Douglas in dissent, joined by Justices Black, Fortas, and Chief Justice Warren, argued that “in the courts of such State” modified only “cannot enforce,” so that one could be denied rights prior to as well as during a trial and police and prosecutorial conduct would be relevant. Alternately, he argued that state courts could be implicated in the denial prior to trial by certain actions. Id. at 844–55. [Back to text]
1467
Georgia v. Rachel, 384 U.S. 780, 797–802 (1966). Thus, in Strauder v. West Virginia, 100 U.S. 303 (1880), African-Americans were excluded by statute from service on grand and petit juries, and it was held that a black defendant’s criminal indictment should have been removed because federal law secured nondiscriminatory jury service and it could be predicted that he would be denied his rights before a discriminatorily selected state jury. In Virginia v. Rives, 100 U.S. 313 (1880), there was no state statute, but there was exclusion of Negroes from juries pursuant to custom and removal was denied. In Neal v. Delaware, 103 U.S. 370 (1880), the state provision authorizing discrimination in jury selection had been held invalid under federal law by a state court, and a similar situation existed in Bush v. Kentucky, 107 U.S. 110 (1882). Removal was denied in both cases. The dissenters in City of Greenwood v. Peacock, 384 U.S. 808, 848–52 (1966), argued that federal courts should consider facially valid statutes which might be applied unconstitutionally and state court enforcement of custom as well in evaluating whether a removal petitioner could enforce his federal rights in state court. [Back to text]
1468
Georgia v. Rachel, 384 U.S. 780, 788–94 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 824–27 (1966), See also id. at 847–48 (Justice Douglas dissenting). [Back to text]
1469
City of Greenwood v. Peacock, 384 U.S. at 824–27. See also Johnson v. Mississippi, 421 U.S. 213 (1975). [Back to text]