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.

Footnotes

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]