WikiLeaks Document Release
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February 2, 2009
Congressional Research Service
Report RS22432
Federal Habeas Corpus: An Abridged Sketch
Charles Doyle, American Law Division
April 28, 2006
Abstract. Current federal law operates under the premise that with rare exceptions prisoners challenging the
legality of the procedures by which they were tried or sentenced get "one bite of the apple." Relief for state
prisoners is only available if the state courts have ignored or rejected their valid claims, and there are strict time
limits within which they may petition the federal courts for relief. Moreover, a prisoner relying upon a novel
interpretation of law must succeed on direct appeal; federal habeas review may not be used to establish or claim
the benefits of a "new rule." Expedited federal habeas procedures are available in the case of state death row
inmates if the state has provided an approved level of appointed counsel. The Supreme Court has held that
Congress enjoys considerable authority to limit, but not to extinguish, access to the writ.
Order Code RS22432
April 28, 2006
CRS Report for Congress
Received through the CRS Web
Federal Habeas Corpus: An Abridged Sketch
Charles Doyle
Senior Specialist
American Law Division
Summary
Federal habeas corpus as we know it is by and large a procedure under which a
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federal court may review the legality of an individual's incarceration. It is most often
invoked after conviction and the exhaustion of the ordinary means of appeal. It is at
once the last refuge of scoundrels and the last hope of the innocent. It is an intricate
weave of statute and case law whose reach has flowed and ebbed over time.
Current federal law operates under the premise that with rare exceptions prisoners
challenging the legality of the procedures by which they were tried or sentenced get "one
bite of the apple." Relief for state prisoners is only available if the state courts have
ignored or rejected their valid claims, and there are strict time limits within which they
may petition the federal courts for relief. Moreover, a prisoner relying upon a novel
interpretation of law must succeed on direct appeal; federal habeas review may not be
used to establish or claim the benefits of a "new rule." Expedited federal habeas
procedures are available in the case of state death row inmates if the state has provided
an approved level of appointed counsel. The Supreme Court has held that Congress
enjoys considerable authority to limit, but not to extinguish, access to the writ.
This is an abridged version of CRS Report RL33391, Federal Habeas Corpus: A
Brief Overview, by Charles Doyle, without the footnotes or appendices, and without
most the quotation marks and citations to authority found in the original.
Introduction. Colonial America was well acquainted with habeas corpus and with
occasional suspensions of the writ. The drafters of the United States Constitution, after
enumerating the powers of Congress, inserted the limitation that "the privilege of the writ
of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the
public safety may require it." Consistent with the common law, the writ was available to
those confined by federal officials without trial or admission to bail, but was not available
to contest the validity of confinement pursuant to conviction by a federal court of
competent jurisdiction, even one whose judgment was in error. In 1867, Congress
substantially increased the jurisdiction of federal courts to issue the writ by authorizing
its issuance "in all cases," state or federal, "where any person may be restrained of his or
her liberty in violation of the constitution, or of any treaty or law of the United States."
Early in the forties, the Court stopped requiring that an alleged constitutional violation
Congressional Research Service ~ The Library of Congress
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void the jurisdiction of the trial court before federal habeas relief could be considered.
Federal judges soon complained that federal prisoner abuses of habeas had become
"legion." Congress responded by incorporating into the 1948 revision of the judicial code
the first major revision of the federal habeas statute since 1867. State courts exerted little
pressure for revision of the federal habeas statute in 1948. Although habeas relief had
been available to state prisoners by statute since 1867 and subsequent decisions seemed
to invite access, the hospitality that federal habeas extended to state convicts with due
process and other federal constitutional claims had not yet become apparent. This all
changed over the next two decades. Some of the change was attributable to expansive
Supreme Court interpretations of the procedural guarantees of the Bill of Rights and of
the extent to which those guarantees were binding upon the states through the due process
clause of the Fourteenth Amendment. By the early seventies, the Supreme Court had
begun to announce a series of decisions grounded in the values of respect for the work of
state courts and finality in the process of trial and review. Thus, state prisoners who fail
to afford state courts an opportunity to correct constitutional defects are barred from
raising them for the first time in federal habeas in the absence of a justification. Nor may
they scatter their habeas claims in a series of successive petitions. Those who plead guilty
and thereby waive, as a matter of state law, any constitutional claims, may not use federal
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habeas to revive them. And state prisoners may not employ federal habeas as a means to
assert, or retroactively claim the benefits of, a previously unrecognized interpretation of
constitutional law (i.e., a "new rule").
Antiterrorism and Effective Death Penalty Act (AEDPA).
Opting In. The AEDPA offered procedural advantages to the states in order to
ensure the continued availability of qualified defense counsel in death penalty cases. It
gave the states three options. A state could elect not to take advantage of the expedited
procedures, in which case it would be governed by the usual habeas provisions.
Alternatively, a state could "opt in" and elect to provide a mechanism for the appointment
and compensation of counsel to assist indigent state prisoners under sentence of death in
state post-conviction review (state "habeas" proceedings). Finally, rather than use the
mechanism for appointment of counsel for a separate level of state collateral proceedings,
a state could use the mechanism in conjunction with a unified system of review which
merges state direct appeals and collateral review. The USA PATRIOT Improvement and
Reauthorization Act simplifies the election by dropping the "unitary review" provision.
States may opt in if they provide for assistance of counsel in a manner approved by the
Attorney General. When a state opts in, federal habeas review of a claim filed by a state
death row inmate is limited to issues raised and decided on the merits in state court unless
the state unlawfully prevented the claim from being raised in state court, or the claim is
based on a newly recognized, retroactively applicable constitutional interpretation or on
newly unearthed, previously undiscoverable evidence. In cases where the federal habeas
application has been filed by a prisoner under sentence of death under the federal law or
the laws of a state which has opted in, the government has a right, enforceable through
mandamus, to a determination by the district court within 450 days of the filing of an
application and by the federal court of appeals within 120 days of the filing of the parties'
final briefs.
Deference to State Courts. The AEDPA bars federal habeas relief on a claim
already passed upon by a state court "unless the adjudication of the claim (1) resulted
in a decision that was contrary to, or involved an unreasonable application of clearly
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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." An unreasonable application of
clearly established federal law, as determined by the Supreme Court "occurs when a state
court `identifies the correct governing legal principle from [the] Court's decisions but
unreasonably applies that principle to the facts of'" the case before it. Moreover, the
Court has said on several occasions, the question before the federal courts when they are
confronted with a challenged state court application of a Supreme Court recognized
principle is not whether the federal courts consider the application incorrect but whether
the application is objectively unreasonable. On the other hand, a decision is contrary to
clearly established federal law, as determined by the Supreme Court, if it applies a rule
that contradicts the governing law set forth in the Supreme Court's cases, or if it confronts
a set of facts that is materially indistinguishable from a decision of the Court but reaches
a different result. Obviously, a state court determination of a question which relevant
Supreme Court precedent leaves unresolved can be neither contrary to, nor an
unreasonable application, of Court precedent.
Exhaustion. The deference extended to state courts reaches not only their
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decisions but the opportunity to render decisions arising within the cases before them.
State prisoners were once required to exhaust the opportunities for state remedial action
before federal habeas relief could be granted. The AEDPA preserves the exhaustion
requirement, and reenforces it with an explicit demand that a state's waiver of the
requirement must be explicit. On the other hand, Congress appears to have been
persuaded that while as a general rule constitutional questions may be resolved more
quickly if state prisoners initially bring their claims to state courts, in some cases where
a state prisoner has mistakenly first sought relief in federal court, operation of the
exhaustion doctrine may contribute to further delay. Hence, the provisions of 28 U.S.C.
2254(b)(2) authorize dismissal on the merits of mixed habeas petitions filed by state
prisoners.
Successive Petitions. The AEDPA bars repetitious habeas petitions by state and
federal prisoners. Under earlier law, state prisoners could not petition for habeas relief
on a claim they had included or could have included in earlier federal habeas petitions
unless they could show cause and prejudice or a miscarriage of justice. Cause could be
found in the ineffective assistance of counsel; the subsequent development of some
constitutional theory which would have been so novel at the time it should have been
asserted as to be considered unavailable; or the discovery of new evidence not previously
readily discoverable. A prisoner unable to show cause and prejudice might nevertheless
be entitled to federal habeas relief upon a showing of a "fundamental miscarriage of
justice." This required a showing by clear and convincing evidence that but for a
constitutional error, no reasonable juror would find the petitioner guilty or eligible for the
death penalty under applicable state law. The Court's pre-AEDPA tolerance for second
or successive habeas petitions from state prisoners was limited; the tolerance of the
AEDPA is, if anything, more limited. If the prisoner asserts a claim that he has already
presented in a previous federal habeas petition, the claim must be dismissed in all cases.
A claim not mentioned in an earlier petition must be dismissed unless it falls within one
of two narrow exceptions: (A) it relies on a newly announced constitutional interpretation
made retroactively applicable; or (B) it is predicated upon on newly discovered evidence,
not previously available through the exercise of due diligence, which together with other
relevant evidence establishes by clear and convincing evidence that but for the belatedly
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claimed constitutional error no reasonable factfinder would have found the applicant
guilty. Moreover, the exceptions are only available if a three judge panel of the federal
appellate court authorizes the district court to consider the second or successive petition
because the panel concludes that the petitioner has made a prima facie case that his claim
falls within one of the exceptions. And the section purports to place the panel's decision
beyond the en banc jurisdiction of the circuit and the certiorari jurisdiction of the Supreme
Court. The Supreme Court, in Felker v. Turpin, held that because it retained its original
jurisdiction to entertain habeas petitions neither the gatekeeper provisions of section
2244(b)(3) nor the limitations on second or successive petitions found in sections
2244(b)(1) and (2) deprive the Court of appellate jurisdiction in violation of Article III,
§2. At the same time, it held that the restrictions came well within Congress'
constitutional authority and did not amount to a suspension of the writ contrary to Article
I, §9. In Castro v. United States, 540 U.S. 375, 379-81 (2003), the Court held that section
2244(b)(3)(E), constraint upon its certiorari jurisdiction is limited to instances where the
lower appellate court has acted on a request to file a successive petition, and does not
apply to instances where the lower appellate court has reviewed a trial court's successive
petition determination.
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Statute of Limitations. The AEDPA established a one year deadline within
which state and federal prisoners must file their federal habeas petitions. The period is
tolled during the pendency of state collateral review. When the state appeal is not filed
in a timely manner, when it is untimely under state law, that is the end of the matter for
purposes of 2244(d)(2). Amendments, submitted after the expiration of a year, to a
petition filed within the one year period limitation, that assert claims unrelated in time and
type to those found in the original petition do not relate back and are time barred. A state
may waive the statute of limitations defense, but its intent to do so must be clear and not
simply the product of a mathematical miscalculation. The statute of limitations provisions
initially presented a novel problem for district courts faced with mixed petitions of
exhausted and unexhausted claims. As a result of the interplay between AEDPA's 1-year
statute of limitations and Lundy's dismissal requirement, petitioners who come to federal
court with mixed petitions run the risk of forever losing their opportunity for any federal
review of their unexhausted claims. If a petitioner files a timely but mixed petition in
federal district court, and the district court dismisses it under Lundy after the limitations
period has expired, this will likely mean the termination of federal review. Nevertheless,
the district court is under no obligation to warn pro se petitioners of the perils of mixed
petitions. Although cautioning against abuse if too frequently employed, the Court
endorsed the stay and abeyance solution suggested by several of the lower courts, under
which in appropriate cases, the portion of state prisoner's mixed petition related to
exhausted habeas claims are stayed and held in abeyance until he can return to a state
court and exhaust his unexhausted claims.
Appeals. Appeals are only possible upon the issuance of certification of
appealability (COA), upon a substantial showing of a constitutional right. A petitioner
satisfies the requirement when he can show that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong. This does not require
the petitioner show a likelihood of success on the merits; it is enough that reasonable
jurists would find that the claim warrant closer examination. Should the district have
dismissed the habeas petition on procedural grounds, a COA may be issued only upon the
assessment that reasonable jurists would consider both the merits of the claim and the
procedural grounds for dismissal debatable.
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Other Habeas Features.
Default and Innocence. In Wainwright v. Sykes, the Court declared that state
prisoners who fail to raise claims in state proceedings are barred from doing so in federal
habeas proceedings unless they can establish both cause and prejudice. The Court later
explained that the same standard should be used when state prisoners abused the writ with
successive petitions asserting claims not previously raised, and when they sought to
establish a claim by developing facts which they had opted not to establish during
previous proceedings. Of the two elements, prejudice requires an actual, substantial
disadvantage to the prisoner. What constitutes cause is not easily stated. Cause does not
include tactical decisions, ignorance, inadvertence or mistake of counsel, or the
assumption that the state courts would be unsympathetic to the claim. Cause may include
the ineffective assistance of counsel; some forms of prosecutorial misconduct; the
subsequent development of some constitutional theory which would have been so novel
at the time it should have been asserted as to be considered unavailable; or the discovery
of new evidence not previously readily discoverable. Federal courts may entertain a
habeas petition, notwithstanding default and the failure to establish cause, in any case
where failure to grant relief, based on an error of constitutional dimensions, would result
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in a miscarriage of justice due to the apparent conviction of the innocent, Murray v.
Carrier. In order the meet this actually innocent standard, the prisoner must show that it
is more likely than not that no reasonable juror would convict him. When the petitioner
challenges his capital sentence rather than his conviction, he must show by clear and
convincing evidence that, but for the constitutional error, no reasonable juror would have
found the petitioner eligible for the death penalty. This miscarriage of justice exception,
whether addressed to the petitioner's guilt or sentence, is a matter that can be taken up
only as a last resort after all nondefaulted claims for relief and the grounds for cause
excusing default on other claims have been examined.
Harmless Error. The mere presence of constitutional error by itself does not
present sufficient grounds for issuance of the writ unless the error is also harmful, i.e.,
"unless the error had a substantial and injurious effect or influence in determining the
jury's verdict." The writ will issue, however, where the court has grave doubt as to
whether the error was harmless.
New Rules and Retroactivity. Under Teague v. Lane a new rule cannot be
sought through federal habeas and a new rule may only be applied retroactively for the
benefit of habeas petitioners when (1) the new interpretation places certain kinds of
primary, private individual conduct beyond the power of the criminal law-making
authority to proscribe or places a certain category of punishment for a class of defendants
because of their status or offense beyond the power of the criminal law-making authority
to proscribe, or (2) the new interpretation significantly improves the pre-existing fact
finding procedures which implicate the fundamental fairness of the trial and without
which the likelihood of an accurate conviction is seriously diminished. The Court has
more recently indicated that the rules covered in the first exception, the exception for
rules that place certain conduct beyond proscriptive reach, are more accurately
characterized as substantive rather than procedural rules and thus not subject to the
Teague rule from the beginning. The Court observed in Beard v. Banks that it has yet to
rule on a case that satisfied this second Teague exception.
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Congressional Authority to Bar or Restrict Access to the Writ. One of
the most interesting and perplexing features of federal habeas corpus law involves the
question of Congress' authority to restrict access to the writ. The Constitution nowhere
expressly grants a right of access to the writ, although it might be seen as an attribute of
the suspension clause or the due process clause or both. Yet the suspension clause says
no more than that "the privilege of the writ of habeas corpus shall not be suspended,
unless when in cases of rebellion or invasion the public safety may require it," U.S. Const.
Art.I, §9, cl.2. And the due process clause speaks with an equal want of particularity
when it declares that, "no person shall . . . deprived of life, liberty, or property, without
due process of law," U.S. Const. Amend. V. Balanced against this, is the power of
Congress to "ordain and establish" the lower federal courts, U.S. Const. Art. III, §1; to
regulate and make exceptions to the appellate jurisdiction of the Supreme Court, U.S.
Const. Art. III, §2, cl.2; to enact all laws necessary and power to carry into effect the
constitutional powers of the courts as well as its own, U.S.Const. Art. I, §8, cl.18; and at
least arguably the power to suspend the privilege to the writ in times of rebellion or
invasion, U.S. Const. Art. I, §9, cl.2.
Exceptions Clause and the Original Writ. The question as to the scope of
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Congress' control over Court's appellate jurisdiction in habeas cases surfaced when a
prisoner challenged the AEDPA's habeas limitations in Felker v. Turpin. In particular,
Felker argued that the provisions which declared the appellate court determination of
whether to authorize a second or successive habeas petition was neither appealable nor
subject to a petition for rehearing or for a writ of certiorari. The Court took no offense to
the limitation of habeas appellate jurisdiction. Since the AEDPA does not repeal the
Court's authority to entertain a petition for habeas corpus, there can be no plausible
argument that the Act has deprived the Court of appellate jurisdiction in violation of
Article III, §2. Review remained possible under the original writ of habeas corpus.
Suspension of the Privilege of the Writ. The Felker Court disavowed any
contention that the AEDPA's provisions violated the suspension clause. It did not stop
with the proposition that the suspension clause does not extend to convicted prisoners or
any other prisoners ineligible for the writ under common law, however, but assumed that
the Suspension Clause of the Constitution refers to the writ as it exists today, rather than
as it existed in 1789. Even under this relaxed standard it found any claim based on
Felker's case wanting. The AEDPA's limitation on repetitious or stale claims was seen
as a variation of res judicata, which in the area of habeas had been an evolving body of
equitable principles informed and controlled by historical usage, statutory developments,
and judicial decisions. The added restrictions which the Act places on second habeas
petitions are well within the compass of this evolutionary process and do not amount to
a suspension of the writ contrary to Article I, §9. Shortly after Felker, however, the Court
narrowly construed Congressional efforts to restrict review of various immigration
decisions and recognized that the courts retained jurisdiction to review habeas petitions,
with the observation that otherwise serious suspension clause issues would arise.