Article III, Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
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. 1 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. 2 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. 3 Other cases expanded the want-of-jurisdiction rationale. 4 But the modern status of the writ of habeas corpus may be said to have been started in its development in Frank v. Mangum, 5 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, 6 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. 7 The landmark case was Brown v. Allen, 8 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. 9 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. 10 "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." 11 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. 12
Second, Sanders v. United States 13 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, 14 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. 15 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. 16
Third, the most controversial of the 1963 cases, Fay v. Noia, 17 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. 18 Whether a similar result prevailed upon habeas divided the Court in Brown v. Allen, 19 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. 20
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. 21
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. 22 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. 23 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. 24
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. 25 Grounded as it is in the Court's dissatisfaction with the exclusionary rule, the case has not since been extended to other constitutional grounds, 26 but the rationale of the opinion suggests the likelihood of reaching other exclusion questions. 27
Second, the Court has formulated a
new rule exception to habeas cognizance. That is, subject to two exceptions, 28 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. 29 A decision announces a new rule "if the result was not dictated by precedent existing at the time the defendant's conviction became final." 30 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. 31
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. 32 The Court overruled that point and substituted a much stricter
cause-and-prejudice standard. 33
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. 34 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. Wilson 35 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. 36
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. 37 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, 38 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. 39
Fifth, the Court abandoned the rules of Fay v. Noia, although it was not until 1991 that it expressly overruled the case. 40 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." 41 The
miscarriage-of-justice element is probably limited to cases in which actual innocence or actual impairment of a guilty verdict can be shown. 42 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. 43 As for the
prejudice factor, it is an undeveloped concept, but the Court's only case establishes a high barrier. 44
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, 45 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. 46 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. 47 Then, in In re Troy Anthony Davis, 48 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
In Schlup v. Delo, 50 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. 51 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. 52
In the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 53 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. 54 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." 55 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. 56
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.