parent nodes: federal habeas corpus | federal habeas jurisdiction
collateral attack on state conviction
federal habeas corpus
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
. . .
(i) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under this section.
28 USC § 2254(a), (i).
Note that § 2254(a) allows state prisoners to seek a writ of habeas corpus to attack their convictions, while § 2255 requires federal prisoners to file a post-conviction motion in the sentencing court, unless § 2255 motions are somehow inadequate.
History and basic scope
The 1867 Habeas Corpus Act was the first time Congress extended the writ to state prisoners. The Court has gone through three phases in its interpretation of § 2254. First, exemplified in [Frank v Magnum], the Court restricted its review to "jurisdictional" errors. In [Brown v Allen], however, the Court extended the scope of habeas to allow petitioners to bring any constitutional challenge to their custody. The Brown Court also made unclear statements about the amount of deference federal habeas courts should give to state courts on issues of law and fact. The Court appeared to focus on whether the process reached a "satisfactory result" after "full and fair consideration;" compare [Brown v Allen] (Frankfurter concurring) (arguing that federal courts should use de novo review on issues of law and mixed questions of law and fact).
Retroactivity
[Teague v Lane] held that a "new rule" could not be applied in a habeas action except for two narrow exceptions. A "new rule" was defined as a rule that "breaks new ground or imposes a new obligation" on the government, or alternatively as a rule where the "result was not dictated by precdent" at the time the petitioner's conviction became final. (A conviction becomes "final" when the petitioner loses at the Supreme Court, has his cert petition denied, or fails to petiton for cert within the relevant time limit). The Court thus adapted Harlan's concurrence in [Desist v US], which allowed the two following exceptions for when a "new rule" could be applied in habeas:
(1) if the decision "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe"
(2) if the decision implements "watershed" procedures "implicit in the concept of ordered liberty"
- compare [constitutional incorporation]
- note that even [Apprendi v NJ] did not qualify under exception (2)
[Butler v McKellar] also defines a new rule as "any rule that was susceptible to debate among reasonable minds" at the time the petitioner's conviction became final. As a result, almost any rule that announces a sliding-scale test, such as [Strickland v Washington] (allowing relief if a defendant's counsel represented him "unreasonably" so as to cause "prejudice"), becomes very fact-specific, so that it is very hard for a petitioner to show that a different set of facts could not have caused "debate among reasonable minds." In order to succeed, a habeas petitioner would have to define a "new rule" or "old rule" at a highly abstract level.
Note that the Court used the guise of "non-retroactivity" to make it effectively impossible for habeas petitioners to succeed, given the broad definition of a "new rule" as something "not dictated" by prior precedent; all the government would have to show that reasonable minds could have disagreed at the time the petitioner's conviction became final as to whether prior precedent required vacating the petitioner's conviction.
The Supreme Court still left itself free to announce new rules on direct review; however, certain claims, such as ineffective assistance of counsel, the use of perjured testimony at trial, or prosecutorial misconduct, are near-impossible to raise on direct review. [Teague v Lane] thus froze such areas of case law in place. Note also that [Teague v Lane] does not apply to state-court habeas proceedings. (For example, [Brady v Maryland] came up to the Supreme Court on state habeas review.)
Compare [Stone v Powell] (holding that Amendment IV rules based on the exclusionary rule were not cognizable in habeas as long as the claim had already received a full and fair consideration in the state court). Note that the rationale of [Stone v Powell] is unclear; the Court, for example, refused to extend its rationale to [Miranda v Arizona].
One strange situation would be if a Supreme Court reviewed a state prisoner's claims through an original writ proceeding.
"Deference"
Common law: Teague and Wright
In [Wright v West], Thomas suggested that [Teague v Lane] required federal habeas courts to defer to state court determinations of mixed questions of fact and law. Because Teague described "new rules" based on the "result" or "outcome," [Butler v McKellar], any mixed question of law and fact would appear to lead to a different result, so that in order to avoid announcing new rules federal courts would have to effectively defer to state courts.
O'Connor disagreed sharply in a concurring opinion, pointing out that Congress had considered and rejected changing § 2254 to require federal court deference to state court decisions. However, it is hard to see how the disagreement between O'Connor and Thomas is more than merely nomenclature (that is, describing Teague in terms of "deference" or "retroactivity"). Compare [O Dell v Netherland] (Thomas, joined fully by O'Connor) (describing Teague as witholding relief unless the state court "acted objectively unreasonably").
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 USC § 2254(d)
§ 2254(d) creates the problem that a petitioner has a better chance of success by not raising a claim until federal habeas review, since avoiding a claim "adjudicated on the merits" can hold out the hope that the Supreme Court will issue new precedent (either falling under a Teague exception or coming before his conviction becomes final).
Another major problem is that § 2254(d) does not adequately define a "claim." A petitioner might be able to argue that a claim under new precedent was a different "claim," even if he made substantially the same argument before in state court (for example, if a juvenile murderer had argued before [Roper v Simmons] that he could not be executed). Compare [US v Brannigan] (Easterbrook) (defining "claim" for purposes of the second or successive habeas petition doctrine in terms of collateral estoppel or federal supplemental jurisdiction).
Finally, note that § 2254(d) may not apply to an application for an original writ at the Supreme Court; since the federal habeas jurisdiction must necessarily be [appellate jurisdiction] in order to remain consistent with Article III, the Court is technically reviewing the state court and would not be bound by § 2254(d)'s limitation on how the lower federal courts may exercise their original jurisdiction over state-conviction collateral attacks.
[Terry Williams v Taylor] first interpreted § 2254(d) standards for review of state court decisions.
Stevens claimed in part II of his opinion, which only got 4 votes, that § 2254(d) "codified" [Teague v Lane]. To the effect that Stevens could equate § 2254(d) with Teague, he could restrict its effect on habeas petitioners. However, § 2254's text is rather different from the Teague standard. First , § 2254(d) applies only when a claim was adjudicated on the merits in a state court, while Teague applies whether or not the petitioner's claim was formerly adjudicated. If a claim was not adjudicated in state court, the petitioner is free under § 2254(d) (but not Teague) to claim a new rule. Second, an "old rule" under Teague is different than "clearly established federal law as determined by the Supreme Court;" for example, a person convicted of treason on the testimony of one witness would lose under § 2254(d), despite Article III, given the lack of "clearly established" Supreme Court precedent. Third, § 2254(d) allows relief only if the state court decision "was" contrary to, etc. "clearly established federal law," so that § 2254(d) limits precedent to the time the state court makes a decision on the merits, while [Teague v Lane] allows the habeas petitioner to claim the benefit of precedent announced before his direct appeals are exhausted. (Note also that in an ineffective assistance of counsel claim, § 2254(d) would kick in when the claim is adjudicated on the merits—that is, on state habeas review.). Fourth, § 2254(d)(2) is narrower than [Teague v Lane], since § 2254(d)(2) allows a new rule to be applied to unreasonably determined facts, whereas such claims would be barred by Teague. And fifth, § 2254(d)(1) is not limited to procedural rules, as Teague is.
In Part III of his opinion, which did get 5 votes on the Court, Stevens further equated § 2254(d) with [Teague v Lane] by (1) interpreting "clearly established rule" and "dictated by existed precedent" at a very high level by interpreting [Strickland v Washington] by itself as a "clearly established" right to effective counsel, and arguing that his preferred application of Strickland was "dictated" under [Teague v Lane]. Stevens further interpreted "contrary to" in § 2254(d)(1) to mean any incorrect decision, thus preserving federal de novo review. And in Part IV, Stevens interpreted the § 2254(d) bar to relief as a sufficient condition to habeas relief, by granting the writ on the ground that the relevant state supreme court had "unreasonably" applied [Strickland v Washington] (not that the petitioner was "in custody in violation of the Constitution or laws of the United States" as § 2241 requires). Stevens is clearly wrong in so far as a petitioner could face an unreasonable state court adjudication, but not be in unconstitutional custody (for example, if the state court acted "unreasonably" by just citing the wrong case, but where the petitioner was not unconstitutionally in jail); note further that [Teague v Lane] or the [Brecht v Abramson] harmless error doctrine could still bar relief even if the petitioner surmounted the § 2254(d) difficulties.
O'Connor, however, delivered the opinion of the Court interpreting § 2254(d)(1). O'Connor argued that Stevens failed to give independent meaning to the two clauses of § 2254(d)(1). First, O'Connor argued that "contrary to" meant a decision that was "substantially different" from S.Ct. precedent, or if the state court reached a different outcome than the S.Ct. had on a "materially indistinguishable" set of facts. O'Connor further argued that an "unreasonable application" under § 2254(d)(1) required an "objectively unreasonable" and not merely incorrect action by the state court.
Note that § 2254(d) does not replace Teague; rather, both doctrines apply. Thus, for example, a petitioner is barred from seeking a new rule whether or not the claim was made in state court. Teague is an affirmative defense that may be waived (although the "Teague issue" was raised sua sponte in Teague itself); in comparison, § 2254(d) looks jurisdictional, although the issue has not been fully resolved.
"Adjudication on the merits"
"On the merits" could mean only adjudication that results to reaching the substance of a claim, or merely any adjudication that results in the case being disposed for any nonjurisdictional reason. Note that no circuit court has resolved this issue.
Another open question is whether a court can raise the "on the merits" issue sua sponte—in other words, whether the issue is waived if not properly raised. One possibility is that § 2254(d) may be jurisdictional; on the other hand, § 2254(a) more clearly grants federal habeas jurisdiction over state-conviction attacks.
State court factfinding
*(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
. . .
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 USC § 2254(d)*
(e)
(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
§ 2254(e)
See generally habeas evidentiary hearings.
Note the interaction between § 2254(e)(1) and § 2254(d)(2). For example, even if a petitioner presents new evidence that would be clear and convincing under § 2254(e)(1), he may still barred under § 2254(d), given that § 2254(d)(2) limits factfinding review in habeas to "in light of the evidence presented in the State court proceeding." On the other hand, a claim based on new evidence may not be considered to have been "adjudicated on the merits" within the meaning of § 2254(d). (This is unclear, given that § 2254(d) does not define "claim;" trying to make a claim again, but with new evidence, would probably fail, if the "claim" has been already disposed of before.)
Likewise, a petitoner could satisfy § 2254(d)(2) but fail § 2254(e)(1), if the state court makes an unreasonable finding of fact but the petitioner cannot marshal clear and convincing evidence on his behalf.
Finally, note that under [Rice v Collins], similar to the "clear and convincing" § 2254(e)(1) standard, state-court factfindings on direct appeal are reviewed for clear error.
Harmless error
Normally, the state bears the burden of proving beyond a reasonable doubt that an error in a criminal was harmless.[Chapman v CA]. The Chapman standard applies on direct review, since the court's jurisdictoin therein is criminal rather than civil. However, in habeas corpus, which is a civil rather than a criminal proceeding, the defendant bears the burden of proving that the error had a "substantrial and injurious effect or influence on determining the jury's verdict." [Brecht v Abramson]. Given that a habeas petitioner is challenging his custody, not his conviction, he bears the burden of showing a causal link between his trial proceedings and the unlawfulness of his current custody.
Note that for some constitutional claims that allege "structural error," such as those based on [Batson v KY], any error will lead to reversal; other claims, such as the [Strickland v Washington] ineffective assistance of counsel, carry a review standard different than the [Brecht v Abramson] default.
Constitutionality of § 2254(d)
The ABA argued that any alteration in the scope of collateral review would violate the Suspension Clause. See [Lindh v Murphy] (describing argument by ABA that changing scope of writ as applied to person who filed petition before AEDPA became law would be suspending the writ). Given how close the Suspension Clause is to other limitations on ex post Congressional action such as the Ex Post Facto Clause and the prohibition on bills of attainder, the ABA's argument may make sense as a prohibition on retrospectively suspending the clause.
The ABA also argued that § 2254(d) violated Article III by imposing an unconstitutional rule of decision on judicial power, similar to [US v Klein]. The Seventh Circuit (Easterbrook) rejected the argument on the ground that (1) other, valid doctrines (for example, the Chevron v NRDC doctrine) limit the power of the courts to review nonjudicial actions, and that (2) § 2254(d) was a valid limitation on remedies, not on rights. [Lindh v Murphy].
In comparison, two judges of the Ninth Circuit (as well as President Clinton's signing statement) accepted the ABA's arguments. See [Irons v Carey].