Order Code RL33391

CRS Report for Congress
Received through the CRS Web

Federal Habeas Corpus:
A Brief Legal Overview

April 26, 2006

Charles Doyle
Senior Specialist
American Law Division

Congressional Research Service ˜ The Library of Congress

Federal Habeas Corpus: A Brief Legal Overview
Summary
Federal habeas corpus is a procedure under which a federal court may review
the legality of an individual’s incarceration. It is most often the stage of the criminal
appellate process that follows direct appeal and any available state collateral review.
The law in the area is an intricate weave of statute and case law.
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 report is available in an abridged version as CRS Report RS22432, Federal
Habeas Corpus: An Abridged Sketch, by Charles Doyle.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Origins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Early American Experiences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Birth of the Modern Writ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Ebb and Flow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Antiterrorism and Effective Death Penalty Act . . . . . . . . . . . . . . . . . . . . . . 10
Opting In . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Other AEDPA Revisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Other Habeas Features . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Default and Innocence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Harmless Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
New Rules and Retroactivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Congressional Authority to Bar or Restrict Access to the Writ . . . . . . . . . . 26
Exceptions Clause and the Original Writ . . . . . . . . . . . . . . . . . . . . . . . 26
Suspension of the Privilege of the Writ . . . . . . . . . . . . . . . . . . . . . . . . 30
Selected Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Federal Habeas Corpus: A Brief Legal
Overview
Introduction
This is an overview of the most prominent features of federal habeas corpus law.
Federal habeas corpus as we know it is by and large a procedure under which a 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.
Prior to enactment of the Antiterrorism and Effective Death Penalty Act
(AEDPA), the most recent substantial recasting of federal habeas law and the
Supreme Court cases that immediately preceded it, it was said that federal habeas
was “the most controversial and friction producing issue in the relation between
federal and state courts. . . . Commentators [were] critical, . . . federal judges [were]
unhappy, . . . state courts resented [it], . . [and] prisoners thrive[d] on it as a form of
occupational therapy. . . .”1 The AEDPA was passed and yet the debate goes on.
Judges, academics and political figures regularly urge that the boundaries for federal
habeas be readjusted; some would make it more readily available; others would limit
access to it.
Debate has been most intense in capital punishment cases. There, unlike most
other cases, the decisions of the state courts stand unexecuted while they await
completion of federal habeas corpus proceedings; there, unlike most other cases, an
erroneously executed sentence is beyond any semblance of correction or
compensation. The AEDPA offers states expeditious habeas procedures in capital
cases certain circumstances;2 no state has yet been able to effectively qualify and as
a consequence Congress adjusted the method of determining qualification in the USA
PATRIOT Improvement and Reauthorization Act.3
Congress has also modified the availability of habeas for detainees at
Guantanamo Bay Cuba4 in a manner which provides the Supreme Court with an

1

17A WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE §4261 (2d ed.
1988).

2
3
4

28 U.S.C. 2261-2266.
P.L. 109-177, §507, 120 Stat. 250-51 (2006), 28 U.S.C. 2265.

P.L. 109-163, §1405(e), 119 Stat. 3477-479 (2006), 28 U.S.C. 2241(e); P.L. 109-148,
§1005(e), 119 Stat. 2741-744 (2005), 28 U.S.C. 2241(e). The amendment was enacted in
substantively identical terms first in the 2006 Defense Department Appropriation Act and

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opportunity to further explain the scope of Congressional authority over habeas
jurisdiction.5

History
Origins. At early common law, much of the business of the courts began with
the issuance of one of several writs, many of which have survived to this day. The
writs were a series of written order forms, issued by the court in the name of the king,
commanding the individual to whom they were addressed to return the writ to the
court for the purpose stated in the writ. The purpose was generally reflected in the
name of the writ itself. Thus for example, a subpoena ad testificandum was a
command to return the writ to the court at a specified time and place, “sub poena,”
that is, “under penalty” for failure to comply, and “ad testificandum” that is, “for the
purpose of testifying.”
Just as the writs of subpoena have been shortened in common parlance to
“subpoena,” so references to the several writs of habeas corpus were shortened. The
habeas corpus writs were all issued by the courts in the name of the king and
addressed to one of the king's officials or a lower court. The writs commanded the
officers of the Crown to appear before the court with the “corpus” (“body”) of an
individual named in the writ, whom “ habeas” (“you have” or “you are holding”), for
the purpose stated in the writ. Thus for instance, the writ of habeas corpora
juratorum commanded the sheriff to appear before the court having with him or
holding the bodies of potential jurors.6

then in the 2006 National Defense Authorization Act.
5

Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), cert. granted, 126 S.Ct. 622 (2005),
discussed in CRS Report RL33180, Guantanamo Detainees: Habeas Corpus Challenges in
Federal Court,by Jennifer K. Elsea and Kenneth Thomas.
6

Other habeas corpus writs included:
(1) Habeas corpus ad deliberandum et recipiendum, a writ for bringing an accused
from a different county into a court in the place where an offense had been committed for
purposes of trial, or more literally to return holding the body for purposes of “deliberation
and receipt” of a decision.
(2) Habeas corpus ad faciendum et recipiendum, a writ of a court of superior
jurisdiction to a custodian to return with the body being held in confinement pursuant to the
order of a lower court for purposes of “receiving” the court's decision and of “doing” what
the court instructed with the prisoner.
(3) Habeas corpus ad faciendum, subjiciendum et recipiendum , or more simply,
habeas corpus ad subjiciendum, a writ ordering a custodian to return with a prisoner for the
purposes of “submitting” the question of confinement to the court, of “receiving” its
decision, and of “doing” what the court instructed with the prisoner.
(4) Habeas corpus ad prosequendum, a writ ordering return with a prisoner for the
purpose “prosecuting” him before the court.
(5) Habeas corpus ad respondendum, a writ ordering return to a court of superior
jurisdiction of a body under the jurisdiction of a lower court for purposes of allowing the
individual to “respond”with respect to matters under consideration in the high tribunal.
(6)Habeas corpus ad satisfaciendum, a writ ordering return with the body of a prisoner
for “satisfaction” or execution of a judgment of the issuing court.
(7) Habeas corpus ad testificandum, a writ ordering return with the body of a prisoner

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By the colonial period, “habeas corpus” had come to be understood as those
writs available to a prisoner, held without trial or bail or pursuant to the order of a
court without jurisdiction, ordering his jailer to appear with the prisoner before a
court of general jurisdiction and to justify the confinement.7
Early American Experiences. Colonial America was well acquainted with
habeas corpus and with occasional suspensions of the writ.8 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.”9
The Act that created the federal court system empowered federal judges to
issues writs of habeas corpus “and other writs not specially provided for by statute,
which may be necessary for the exercise of their respective jurisdictions. . . . [a]nd.
. . to grant writs of habeas corpus for the purpose of an inquiry into the cause of
commitment.”10 The power was limited, however, in that “writs of habeas corpus
shall in no case extend to prisoners in gaol, unless where they are in custody, under
or by colour of the authority of the United States, or are committed for trial before
some court of the same, or are necessary to be brought into court to testify.”11

for the purposes of “testifying”; and
(8) Habeas corpus cum causa, a writ ordering return with the body of a prisoner and
“with the cause” of his confinement so that the issuing court might pass upon the validity
of continued confinement and issue appropriate additional orders. BLACK'S LAW
DICTIONARY, 715 (7th ed. 1999); 1 BOUVIER'S LAW DICTIONARY, 1400-408 (11th ed. 1914);
Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95-8 (1807); for English history of habeas corpus
see DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS, 12-94 (1980); IX
HOLDSWORTH, A HISTORY OF ENGLISH LAW, 104-25 (2d ed. 1938).
7

“If any person be restrained of his liberty by order or decree of any illegal court, or by
command of the king's majesty in person, or by warrant of the council board, or of any of
the privy council; he shall upon demand of his counsel, have a writ of habeas corpus, to
bring his body before the court of king's bench or common pleas; who shall determine
whether the cause of his commitment be just, and thereupon do as to justice shall appertain.
And by the habeas corpus act [of 1679], the methods of obtaining this writ are plainly
pointed out and enforced, that, so long as this statute remains unimpeached, no subject of
England can be long detained imprison, except in those cases in which the law requires and
justifies such detainer,” 1 BLACKSTONE, COMMENTARIES 131(italics in the original)
(transliteration provided)(1st ed. 1765-1769).
8

DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS, 95-125 (1980); Rosenn, The
Great Writ – A Reflection of Societal Change, 44 OHIO STATE LAW JOURNAL 337 (1983);
WALKER, THE AMERICAN RECEPTION OF THE WRIT OF LIBERTY (1961).
9
10
11

U.S.Const. Art.I, §9, cl. 2.
1 Stat. 81-82 (1789).

Id. Then, as now, federal authorities kept prisoners in local jails since they rarely
maintained federal jails except in the territories, see 1 Stat. 91 (1789)("for any crime or
offence against the United States, the offender may, . . . where he may be found agreeable
to the usual mode of process against offenders of such state, and at the expense of the United
States, be arrested, and imprisoned or bailed. . . .").

CRS-4
The Supreme Court further clarified federal habeas corpus law when in Ex parte
Bollman, 8 U.S.(4 Cranch) 75 (1807), it held that the power of the federal courts to
issue the writ was limited to the authority vested in them by statute. The courts had
no common law or inherent authority to issue writs of habeas corpus. While the
common law might provide an understanding of the dimensions of the writ, the
power to issue it depended upon and was limited by the authority which Congress by
statute vested in the courts, id. at 93.
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.12
Congress expanded the authority it had given the federal courts in response to
the anticipated state arrest of federal officers attempting to enforce an unpopular tariff
in 1833 and again in 1842 in response to British protest over the American trial of
one of its nationals. The writ was made available to state prisoners held because of
“any act done, or omitted to be done, in pursuance of a law of the United States,”13
and to state prisoners who were foreign nationals and claimed protection of the Act
of State doctrine.14 The federal writ otherwise remained unavailable for prisoners
held under state authority rather than the authority of the United States.15
Birth of the Modern Writ. In 1867, Congress substantially increased the
jurisdiction of federal courts to issue the writ by authorizing its issuance “in all

12

Ex parte Watkins, 28 U.S.(3 Pet.) 193 (1830).

13

4 Stat. 634-35 (1833). Section 7 of the Act of March 2, 1833, ch.52, more fully reads,
“And be it further enacted, That either of the justices of the Supreme Court, or a judge of
any district court of the United States, in addition to the authority already conferred by law,
shall have power to grant writs of habeas corpus in all cases of a prisoner or prisoners, in
jail or confinement, where he or they shall be committed or confined on, or by any authority
or law, for any act done, or omitted to be done, in pursuance of a law of the United States,
or any order, process, or decree, of any judge or court thereof, any thing in any act of
Congress to the contrary notwithstanding. . . .”
14

“That either of the justices of the Supreme Court of the United States, or judge of any
district court of the United States, in which a prisoner is confined, in addition to the
authority already conferred by law, shall have power to grant writs of habeas corpus in all
cases of any prisoner or prisoners in jail or confinement, where he, she, or they, being
subjects or citizens of a foreign state, and domiciled therein; shall be committed or confined,
or in custody, under or by any authority or law, or process founded thereof, of the United
States, or of any one of them, for or on account of any act done or omitted under any alleged
right, title, authority, privilege, protection, or exemption, set up or claimed under the
commission, or order, or sanction, of any foreign State or Sovereignty, the validity and
effect whereof depend upon the law of nations, or under color thereof. . . .” 5 Stat. 539-40
(1842).
15

Ex parte Dorr, 44 U.S.(3 How.) 103 (1845).

CRS-5
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.”16
Originally, habeas corpus permitted collateral attack upon a prisoner's
conviction only if the sentencing court lacked subject matter jurisdiction. Shortly
after 1867, however, the Supreme Court began to recognize a growing number of
circumstances where courts were said to have acted beyond their jurisdiction because
some constitutional violation had extinguished or "voided" their jurisdiction.17
This development was of limited benefit to most prisoners, since most were
confined under state convictions and relatively few of the rights guaranteed by the
Constitution were thought to apply against the states. Even when a constitutional
claim was available, state prisoners could not be granted federal habeas relief until

16

“That the several courts of the United States, and the several justices and judges of such
courts, within their respective jurisdictions, in addition to the authority already conferred
by law, shall have power to grant writs of habeas corpus in all cases 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; and it shall be lawful for such person so restrained of his or her liberty to
apply to either of said justices or judges for a writ of habeas corpus, which application shall
be in writing and verified by affidavit, and shall set forth the facts concerning the detention
of the party applying, in whose custody he or she is detained, and by virtue of what claim
or authority, if known; and the said justice or judge to whom such application shall be made
shall forthwith award a writ of habeas corpus, unless it shall appear from the petition itself
that the party is not deprived of his or her liberty in contravention of the constitution or laws
of the United States,” 14 Stat. 385-86 (1867). At the same time, Congress modified and
codified much of the procedure associated with the writ, including an appellate provision
that was soon thereafter repealed, 15 Stat. 44 (1868); see Ex parte McCardle, 74 U.S. (7
Wall.) 506 (1869).
17

See e.g.: Ex parte Lange, 85 U.S.(18 Wall.) 163 (1874). Lange had been convicted of
an offense punishable by a fine or term of imprisonment. The trial court had sentenced him
to a fine and a term of imprisonment. Lange paid his fine and was imprisoned. The Court
held that once Lange had paid the fine the trial court lost all jurisdiction over the case and
thus his confinement was subject to the writ.
Ex parte Siebold, 100 U.S. 371 (1880). In Siebold, although the statute in question was
found to be within the power of Congress, the Court held that had the prisoner been
convicted under an unconstitutional law he would have been entitled to discharge upon the
writ.
Ex parte Wilson, 114 U.S. 417 (1885). The Court held that Wilson was entitled to
discharge on the writ because the trial court had exceeded its jurisdiction when it tried,
convicted and sentenced him to fifteen years hard labor based upon an information filed by
the district attorney rather than upon a grand jury indictment as required by the Fifth
Amendment in the case of all capital and otherwise infamous crimes.
In re Snow, 120 U.S. 274 (1887). Snow was convicted of three counts of cohabitation
based on the same conduct during three different periods of time. The Court found that the
misconduct was one continuous offense rather than three offenses. Since three sentences
would constitute multiple punishment contrary to the Fifth Amendment, the trial court had
acted beyond its jurisdiction and the writ should issue.

CRS-6
all possibility of state judicial relief – trial, appellate, and postconviction – had been
exhausted.18
Ebb and Flow. Eventually two developments stimulated new growth. First,
the application of jurisdictional tests proved cumbersome and somewhat artificial and
was discarded in favor of a more generous standard. Later, the explosion in the
breadth of due process and in the extent of its application to the states multiplied the
instances when a state prisoner might find relief in federal habeas corpus.
Evolution began with two cases which reached the Court early in the last
century and in which petitioners claimed that mob rule rather than due process of law
led to their convictions and death sentences. The Court in Frank v. Mangum, 237
U.S. 309 (1915), denied the writ because Frank’s claim had already been heard and
rejected as part of the state appellate process. The Court did suggest, however, that
a state court might lose jurisdiction by virtue of a substantial procedural defect, such
as mob domination of the trial process, and that federal habeas relief would be
available to anyone convicted as a consequence of the defect. It also indicated that
the question of whether relief should be granted was not to be resolved solely by
examination of the trial court record, as had historically been the case, but upon
federal court consideration of the entire judicial process which pre-dated the
petition.19
If Frank had been intended as a warning, it appears to have been in vain, for
soon thereafter the Court confronted yet another conviction allegedly secured by mob
intervention.20 In spite of the fact that the state appellate courts had already heard and
denied the petitioners' claims, the Court ordered the lower federal court in which
relief had been initially sought to make its own determination of the validity of
petitioners' claims of procedural defect.
Soon thereafter it became clear that federal habeas was not limited to instances
of mob intervention or other external contaminants of the judicial process; it reached
deficiencies from within the process which rendered the process so unfair as to result
in a loss of life or liberty without due process of law, whether they took the form of
a prosecutor's knowing use of perjured testimony and suppression of evidence that

18

Ex parte Royall, 117 U.S. 241 (1886); Ex parte Fonda, 117 U.S. 516 (1886); Pepke v.
Cronan, 155 U.S. 100 (1894).

19

“[I]t results that under the [federal habeas] sections cited a prisoner in custody pursuant
to the final judgment of a state court of criminal jurisdiction may have a judicial inquiry in
a court of the United States into the very truth and substance of the causes of his detention,
although it may become necessary to look behind and beyond the record of his conviction
to a sufficient extent to test the jurisdiction of the state court to proceed to judgment against
him,” 237 U.S. at 331.
20

Moore v. Dempsey, 261 U.S. 86 (1923).

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would impeach it,21 or of a denial of the assistance of counsel in criminal
prosecutions,22 or of confessions or guilty pleas secured by government coercion.23
Early in the 1940s, the Court stopped requiring that an alleged constitutional
violation void the jurisdiction of the trial court before federal habeas relief could be
considered.24 Federal judges soon complained that federal prisoner abuses of habeas
had become “legion.”25 Congress responded by incorporating into the 1948 revision
of the judicial code the first major revision of the federal habeas statute since 1867.26
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. As noted earlier, 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.27
Federal habeas was the vehicle used to carry much of the due process expansion
to the states. After Brown v. Allen, 344 U.S. 443 (1953),28 there was little doubt that
21

Mooney v. Holohan, 294 U.S. 103 (1935).

22

Johnson v. Zerbst, 304 U.S. 458 (1938).

23

Waley v. Johnson, 316 U.S. 101 (1942).

24

Id. at 104-105; see also Walker v. Johnson, 312 U.S. 275 (1941); The Freedom Writ –
The Expanding Use of Federal Habeas Corpus, 61 HARVARD LAW REVIEW 657 (1948).

25

Goodman, Use and Abuse of the Writ of Habeas Corpus, 7 F.R.D. 313, 314 (1947).

26

28 U.S.C. 2241 - 2255 (1946 ed.)(Supp.II, 1949).

27

“The dimensions of the problem of collateral attack today are a consequence of two
developments. One has been the Supreme Court's imposition of the rules of the fourth, fifth,
sixth and eighth amendments concerning unreasonable searches and seizures, double
jeopardy, speedy trial, compulsory self-incrimination, jury trial in criminal cases,
confrontation of adverse witnesses, assistance of counsel, and cruel and unusual
punishments, upon state criminal trials. The other has been a tendency to read these
provisions with ever increasing breadth. The Bill of Rights, as I warned in 1965, has
become a detailed Code of Criminal Procedure, to which a new chapter is added every year.
The result of these two developments has been a vast expansion of the claims of error in
criminal cases for which a resourceful defense lawyer can find a constitutional basis,”
Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38
UNIVERSITY OF CHICAGO LAW REVIEW 142, 155-56 (1970).

28

Brown is an interesting decision. The Court was divided on the questions of habeas
corpus, the effect to be given a denial of certiorari, and equal protection. There are six
separate opinions; two by Justice Frankfurter and two by Justice Black. Justice Reed’s
opinion for the Court also includes the minority position on the certiorari question, and on
the two questions for which he wrote the majority opinion for the Court his views must be

CRS-8
the federal habeas corpus statute afforded relief to state prisoners whose convictions
were tainted by constitutional violations, both those violations that would void state
court jurisdiction and those that would not.
The majority position in Brown on the impact of the Court's denials of certiorari
contributed to the expansion of federal habeas as well. When the Court refused to
review a state case by denying certiorari, it thereby left the decision of the state's high
court intact. If this should be read as the Court's endorsement of the state's disposal
of constitutional issues as part of the normal appellate process, it would seem to chill
any subsequent lower federal court reconsideration of those issues under habeas.
Brown precludes such a result.29
The Court’s denials of certiorari meant no more than that the Court had declined
to hear the case; no conclusions on the Court’s view of the issues raised could be
drawn from its declinations. Moreover, in subsequent habeas proceedings, the lower
federal courts were not bound by state resolution of federal constitutional issues, even
if the state courts had given applicants for the writ a full and fair hearing on the very
same issues raised on habeas.
But the requirement to exhaust state remedies remained. Brown held that a state
prisoner, seeking habeas relief, could not satisfy the requirement merely by showing
that a remedy, once open to him, had been lost by his own inaction.30
The Court eased the exhaustion restriction considerably in Fay v. Noia, 372 U.S.
391 (1963), in which it held that federal courts were permitted, but not required, to
deny habeas for an intentional failure to exhaust state remedies.31 At the same time,
read in conjunction with those of Justice Frankfurter (“[t]his opinion is designed to make
explicit and detailed matters that are also the concern of Mr. Justice Reed’s opinion. The
uncommon circumstances in which a district court should entertain an application ought to
be defined with greater particularity, as should be the criteria for determining when a
hearing is proper. The views of the Court on these questions may thus be drawn from the
two opinions jointly,” 344 U.S. at 497 (Frankfurter, J.)).
29

Commentators suggested, in fact, that the Court intended the denial of certiorari and the
anticipated subsequent recourse to federal habeas to permit it to enlist the aid of the lower
federal courts to review the federal constitutional questions raised in state cases, Friendly,
Is Innocence Irrelevant? Collateral Attack on Criminal Justice, 38 UNIVERSITY OF CHICAGO
LAW REVIEW 142, 154-55 (1970); Wright & Sofaer, Federal Habeas Corpus for State
Prisoners: The Allocation of Fact-Finding Responsibility, 75 YALE LAW JOURNAL 895, 89798 (1966), both citing Judge Wyzanski's statement in Geagan v. Gavin, 181 F.Supp. 466,
469 (D.Mass. 1960).
30

“A failure to use a state’s available remedy, in the absence of some interference or
incapacity. . . bars federal habeas corpus. The state requires that the applicant exhaust
available state remedies. To show that the time was passed for appeal [without an appeal
by the prisoner] is not enough [to demonstrate the absence of a state remedy and] to
empower the Federal District Court to issue the writ.” 344 U.S. at 487.
31

“We therefore hold that the federal habeas corpus judge may in his discretion deny relief
to an applicant who has deliberately by-passed the orderly procedure of the state courts and
in so doing has forfeited his state court remedies.
“But we wish to make very clear that this grant of discretion is not to be interpreted

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it articulated circumstances under which the evidentiary hearing, found permissible
in Brown, would be mandatory, Townsend v. Sain, 372 U.S. 293 (1963).32
Relaxation of the default bar coupled with expansion of the circumstances under
which constitutional issues might be reconsidered forecast the possibility of
repetitious habeas applications and of lower court efforts to discourage repetition.
The Court and Congress anticipated and combined to control such eventualities.
Within weeks of Noia and Townsend, the Court announced the rule applicable
for federal prisoners.33 “Controlling weight may be given to denial of a prior
application for federal habeas corpus. . . relief only if (1) the same ground presented
in the subsequent application was determined adversely to the applicant on the prior
application, (2) the prior determination was on the merits, . . . (3) the ends of justice
would not be served by reaching the merits of the subsequent application” and (4)
any new ground presented in the subsequent application had been deliberately
abandoned or withheld earlier under the same test used in state cases for default. 373
U.S. at 15, 17-18. Congress closed the circle in 1966 by amending the federal habeas
statute to apply a rough equivalent of the Sanders rule to state prisoner petitions for
federal habeas, 28 U.S.C. 2244, 2254.
The few years which followed Sanders probably stand as the high water mark
for the reach of federal habeas corpus. But 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.34 Nor may they scatter their habeas claims in a series of successive

as a permission to introduce legal fictions into federal habeas corpus. . . . If a habeas
applicant, after consultation with competent counsel or otherwise, understandingly and
knowingly forewent the privilege of seeking to vindicate his federal claims in the state
courts, whether for strategic, tactical, or any other reasons that can fairly be described as the
deliberate by-passing of state procedures, then it is open to the federal court in habeas to
deny him all relief if the state courts refused to entertain his federal claims on the merits -though of course only after the federal court has satisfied itself, by holding a hearing or by
some other means, of the facts bearing upon the applicant's default,” 372 U.S. at 439.
32

“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. . . . [That is,] a
federal court must grant an evidentiary hearing to a habeas applicant under the following
circumstances: If (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 by the state court 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-court 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,” 372 U.S. at 312-13.
33

Sanders v. United States, 373 U.S. 1 (1963).

34

Wainwright v. Sykes, 433 U.S. 72 (1977).

CRS-10
petitions.35 Those who plead guilty and thereby waive, as a matter of state law, any
constitutional claims, may not use federal habeas to revive them.36 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
Opting In. The Antiterrorism and Effective Death Penalty Act of 1996, P.L.
104-132, 110 Stat. 1214 (1996)(AEDPA), was the culmination and amalgamation of
disparate legislative efforts, including habeas proposals, some them stretching back
well over a decade.37 The most controversial of the proposals had involved habeas
in state capital cases.38 Capital habeas cases presented special problems. Existing
35

McClesky v. Zant, 499 U. S. 467 (1991).

36

Parker v. North Carolina, 397 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759
(1970); Tollett v. Henderson, 411 U.S. 258 (1973).
37

See e.g., Habeas Corpus Reform Act of 1982: Hearings Before the Senate Comm. on the
Judiciary, 97th Cong., 2d Sess. (1982); Comprehensive Crime Control Act of 1983:
Hearings Before the Subcomm. on Criminal Law of the Senate Comm. on the Judiciary, 98th
Cong., 1st Sess. (1983); Habeas Corpus Reform: Hearing Before the Senate Comm. on the
Judiciary, 99th Cong., 1st Sess. (1985); Habeas Corpus Reform: Hearings Before the Senate
Comm. on the Judiciary, 101st Cong., 1st & 2d Sess. (1990); Habeas Corpus Legislation:
Hearings Before the Subcomm. on Courts, Intellectual Property, and the Administration of
Justice of the House Comm. on the Judiciary, 101st Cong., 2d Sess. (1990); Habeas Corpus
Issues: Hearings Before the Subcomm. on Civil and Constitutional Rights of the House
Comm. on the Judiciary, 102d Cong., 1st Sess. (1991); Habeas Corpus: Hearings Before
the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary,
103d Cong., 1st & 2d Sess. (1994); Innocence & the Death Penalty: Hearings Before the
Senate Comm. on the Judiciary, 103d Cong., 1st Sess. (1993); Federal Habeas Corpus -Eliminating Prisoners' Abuse of the Judicial Process: Hearings Before the Senate Comm.
on the Judiciary, 104th Cong., 1st Sess. (1995).
38

The major crime bills passed by the House and Senate in the 101st Congress each
contained habeas corpus amendments, S. 1970 and H.R. 5269. In an effort to secure final
passage of a crime bill before adjournment, provisions over which the two Houses had major
differences, such as habeas corpus, were stripped out, before a clean bill, S. 3266, was
enacted,136 Cong.Rec. H13291-H13292 (daily ed. Oct. 27, 1990)(remarks of Reps. Hughes
and Hyde); 136 Cong.Rec. S17600 (daily ed. Oct. 27, 1990)(remarks of Sen. Biden).
Habeas reform issues reemerged during the 102d Congress in which the Senate passed
an omnibus crime bill containing reform proposals, S. 1241, and the House approved a
different package, H.R. 3371. H.R. 3371 was ultimately reported out of conference
committee with amendments and passed the House but not the Senate, 138 Cong.Rec.
S2815-S2823 (daily ed. Mar. 4, 1992)(remarks of Sens. Biden and Thurmond).
In the 103d Congress, the Senate elected to exclude habeas corpus reform from the
major crime package it passed, H.R. 3355 (S. 1607), 139 Cong.Rec. S16301 (daily ed. Nov.
19, 1993); S17095 (daily ed. Nov. 24, 1993)(text); S15736-S15737 (daily ed. Nov. 16,
1993)(remarks of Sen. Biden explaining omission). When the House Judiciary Committee
reported the bill out, H.R. 4092, it included habeas reform provisions, 140 Cong.Rec. H2260
(daily ed. Apr. 14, 1994)(text). They were dropped during debate pursuant to an amendment
by Rep. Hyde and in spite of a subsequent unsuccessful amendment offered by Rep. Derrick
that would have restored a modified version of the Committee reform proposals, 140

CRS-11
procedures afforded not only the incentive, but the opportunity, for delay. A state
defendant convicted of a capital offense and sentenced to death could take advantage
of three successive procedures to challenge constitutional defects in his or her
conviction or sentence. His or her claims could be raised on appeal, in state habeas
proceedings, and in federal habeas proceedings. As a consequence, there were
extensive delays between sentence and execution of sentence.39
In June of 1988, Chief Justice Rehnquist named a committee chaired by retired
Justice Powell to study “the necessity and desirability of legislation directed toward
avoiding delay and the lack of finality in capital cases in which the prisoner had or
had been offered counsel.”40 The Committee identified three problems associated
Cong.Rec. H2416-H2427 (daily ed. Apr. 19, 1994).
The issues resurfaced in the 104th Congress beginning with early House passage of the
Effective Death Penalty Act (H.R. 729), 141 Cong.Rec. H1400-434 (daily ed. Feb. 8, 1995);
see also H.Rept. 104-23. In the Senate, the provisions were part of the terrorism bill, S. 735,
from the beginning and passed the Senate as part of S.735, 141 Cong.Rec. S7803-880 (daily
ed. June 7, 1995), and were ultimately enacted into law as the first title in the Antiterrorism
and Effective Death Penalty Act of 1996, P.L. 104-132, 110 Stat. 1214 (1996).
39

“The problem is that, unlike the defendants serving their imprisonment – whose only
incentive to apply for collateral review is the small chance that they will be released –
defendants on death row have a very good reason to bring as many habeas corpus
proceedings as the law allows. The time these reviews take literally keeps the death row
defendants alive, and from their point of view the investment of time and energy for legal
proceedings is very worthwhile.
“Of course, from our point of view it can be argued that if these defendants know there
is no substance in their claims, they should withdraw their suits and take their punishment.
Unfortunately, this kind of self-sacrifice is asking too much of anyone, let alone the kinds
of people who have committed the types of crimes which have resulted in their being
sentenced to death. . . .
“Moreover, the reversal rate in capital cases, both on direct appeal and on postconviction relief, is far greater than that of noncapital – even murder – cases. Partly this
results from the greater complexity of capital cases, since courts are especially careful in
these cases to make sure the law is followed, and there is no doubt that the ambivalence of
the courts toward the death penalty plays a part in this process. Moreover, capital cases,
being harder fought, tend to raise more issues upon which the defense can appeal, and
provide more incentive to make sure they are thoroughly briefed and argued. Moreover, in
capital cases, the appellate courts are less willing to conclude that they should not disturb
the verdict on the grounds that, on the whole, justice was done. In capital cases, more than
others, all parties seem to feel that it is not merely sufficient that the right result be reached,
but also that the appropriate procedures be scrupulously followed,” Kaplan, The Problem
of Capital Punishment, 1983 UNIVERSITY OF ILLINOIS LAW REVIEW 555, 573-74.
The complexity of death penalty jurisprudence contributed to a success rate estimated
by some at almost 50%, a factor that not only enhanced delay but stiffened resistance to a
narrower writ, Hoffman & Stunt, Habeas After the Revolution, 1993 SUPREME COURT
REVIEW 65, 110 n.144 (“Professor James Liebman has determined that, between 1976 and
1985, the overall success rate for death penalty petitioners in habeas was 49 percent. See
Liebman, Federal Habeas Corpus at 23-4 n.97 [(1988)]”).
40

Ad Hoc Committee on Federal Habeas Corpus in Capital Cases Committee Report
(Powell Committee Report), printed in 135 Cong. Rec. 24694 (1989). Other members of the
Powell Committee included Chief Judge Charles Clark of the Fifth Circuit Court of Appeals,
Chief Judge Paul Roney of the Eleventh Circuit Court of Appeals, District Judge William

CRS-12
with federal habeas corpus in state capital punishment cases: unnecessary delay and
repetition, the need to make counsel more generally available, and last minute
litigation. The Committee recommended amendments to the federal habeas statute
and Chief Justice Rehnquist transmitted its report to the Congress in September,
1989.41
Congress weighed the recommendations, but initially enacted no major revision,
other than the provision in the 1988 Anti-Drug Abuse Act which required the
appointment of counsel in conjunction with federal habeas in capital punishment
cases.42 The AEDPA, however, offered procedural advantages to the states to ensure
the continued availability of qualified defense counsel in death penalty cases, 28
U.S.C. 2261-2266. Prior to the AEDPA, federal law called for the appointment of
counsel to assist indigent state prisoners charged with or convicted of a capital
offense at every stage of the proceedings other than during collateral review in state
court. The AEDPA established a streamlined habeas procedure in cases involving
state death row inmates to those states that fill this gap, 28 U.S.C. 2261, 2265.
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.43 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).44 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.45
The USA PATRIOT Improvement and Reauthorization Act simplifies the
election by dropping the “unitary review” provision. States may opt in if they

Hodges of the Middle District of Florida, and District Judge Barefoot Sanders of the
Northern District of Texas. Professor Albert Pearson of the University of Georgia Law
School served as reporter and William Burchill, General Counsel of the Administrative
Office of the United States Courts, as secretary.
The American Bar Association issued a somewhat more detailed series of
recommendations concerning reform of habeas in capital cases, TOWARD A MORE JUST AND
EFFECTIVE SYSTEM OF REVIEW IN STATE DEATH PENALTY CASES: A REPORT CONTAINING
THE AMERICA BAR ASSOCIATION'S RECOMMENDATIONS CONCERNING DEATH PENALTY
HABEAS CORPUS AND RELATED MATERIALS FROM THE AMERICAN BAR ASSOCIATION
CRIMINAL JUSTICE SECTION'S PROJECT ON DEATH PENALTY HABEAS CORPUS (1990).
41

135 Cong. Rec. 24693 (1989).

42

P.L. 100-690, §7001, 102 Stat. 4393; 21 U.S.C. 848(q)(4)(B)(2000 ed.).

43

Cf., 28 U.S.C. 2261, 2265 (2000 ed.).

44

28 U.S.C. 2261(b)(2000 ed.).

45

28 U.S.C. 2265(b)(2000 ed.).

CRS-13
provide for assistance of counsel in a manner approved by the Attorney General, 28
U.S.C. 2261, 2265.46
For the states that opt in, the AEDPA establishes a one-time automatic stay of
execution for state death row inmates carrying through until completion of the federal
habeas process, 28 U.S.C. 2262 . Previously, the federal habeas statute authorized
federal courts to stay the execution of a final state court judgment during the
pendency of a state prisoner's federal habeas proceedings and related appeals, 28
U.S.C. 2251 (1994 ed.). Federal appellate courts could consider motions for a stay,
pending review of the district court’s decision or at the same time they considered the
merits of the appeal. This regime encouraged unnecessary litigation over whether a
stay was or was not in order and often resulted in state death row inmates waiting
until the last hour before simultaneously filing a motion for a stay and an appeal from
the district court's denial of the writ.
The AEDPA creates a 180-day statute of limitations for filing federal habeas
petitions after the close of state proceedings with the possibility of one 30 day
extension upon a good cause showing for states that opt in, 28 U.S.C. 2263.
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, 28 U.S.C. 2264.
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 application47 and by the federal court
of appeals within 120 days of the filing of the parties’ final briefs, 28 U.S.C. 2266.
The USA PATRIOT Improvement and Reauthorization Act changed the
procedure under which states are deemed have opted in, 28 U.S.C. 2265. Under its

46

“This chapter is applicable if – (1) the Attorney General of the United States certifies
that a State has established a mechanism for providing counsel in postconviction
proceedings as provided in section 2265; and (2) counsel was appointed pursuant to that
mechanism, petitioner validly waived counsel, petitioner retained counsel, or petitioner was
found not to be indigent,” 28 U.S.C. 2261(b).
“If requested by an appropriate State official, the Attorney General of the United States
shall determine – (A) whether the State has established a mechanism for the appointment,
compensation, and payment of reasonable litigation expenses of competent counsel in State
postconviction proceedings brought by indigent prisoners who have been sentenced to death;
(B) the date on which the mechanism described in subparagraph (A) was established; and
(C) whether the State provides standards of competency for the appointment of counsel in
proceedings described in subparagraph (A),” 28 U.S.C. 2265(a)(1).
47

Or, if sooner, within 60 days after the date the case is submitted for decision, 28 U.S.C.
2266(b)(1)(A). Prior to the passage of the USA PATRIOT Improvement and
Reauthorization Act, district courts were given 120 days from filing, 28 U.S.C.2266(b)(1)
(A) (2000 ed.).

CRS-14
provisions the Attorney General rather than the courts determines whether a state has
taken the steps necessary to opt in. States that elect to opt in must still provide a
“mechanism for the appointment, compensation, and payment of reasonable litigation
expenses of competent counsel in state postconviction proceedings,” 28 U.S.C.
2265(c). References to competence standards for appointed counsel have been
removed,48 but presumably authority to promulgate such standards falls within the
Attorney General’s newly granted regulatory authority, 28 U.S.C. 2265(b).
The Attorney General’s certification that a state has taken the necessary steps
to opt in is subject to de novo review in the United States Court of Appeals for the
District of Columbia, an appeal which in turn is subject to certiorari review in the
Supreme Court, 28 U.S.C. 2265(c).
Other AEDPA Revisions.
Deference to State Courts. Before passage of the AEDPA, state court
interpretations or applications of federal law were not binding in subsequent federal
habeas proceedings.49 The debate that led to passage was marked by complaints of
delay and wasted judicial resources countered by the contention that federal judges
should decide federal law.50 Out of deference to state courts and to eliminate
unnecessary delay, 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

48

Prior to amendment, section 2261(b) read: “This chapter is applicable if a State
establishes by statute, rule of its court of last resort, or by another agency authorized by
State law, a mechanism for the appointment, compensation, and payment of reasonable
litigation expenses of competent counsel in State post-conviction proceedings brought by
indigent prisoners whose capital convictions and sentences have been upheld on direct
appeal to the court of last resort in the State or have otherwise become final for State law
purposes. The rule of court or statute must provide standards of competency for the
appointment of such counsel,” 28 U.S.C. 2261(b)(2000 ed.)(emphasis added).
49
50

Brown v. Allen, 344 U.S. 443, 463 (1953).

Litigation generally involves finding facts, identifying the legal principles necessary to
resolve the dispute arising from the facts, and applying the legal principles to the facts.
Federal courts, sitting to consider habeas petitions from state prisoners, generally deferred
to the fact finding decisions of state courts. The habeas reform proposals called for
deference to state court rulings of law and applications of the law to the facts.
Endorsing a similar proposal in an earlier Congress, the Senate Judiciary Committee
cited finality and judicial economy, S.Rept. 226, 98th Cong., 1st Sess. 6-7 (1983). The report
also noted academic support and that a comparable state of the law existed before the
Court’s decision in Brown v. Allen, 344 U.S. 443 (1954), id., at 23, citing Bator, Finality in
Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARVARD LAW REVIEW
441, 444-62 (1963); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal
Judgments, 38 UNIVERSITY OF CHICAGO LAW REVIEW 142, 165 n.125 (1970).
Opponents of the proposals generally responded first to what they saw as a shrinking
of the Great Writ and that prisoners with federal claims ought to be entitled to present them
in a federal forum, 137 Cong.Rec. H 8000 (daily ed. Oct. 17, 1991) (remarks of Rep.
Jenkins); Yackle, The Reagan Administration's Habeas Corpus Proposals, 68 IOWA LAW
REVIEW 609, 621 (1983). But the “federal right/federal forum” argument was not without
its detractors, Withrow v. Williams, 507 U.S. 680, 715 (1993) (Scalia, J., dissenting).

CRS-15
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 U.S.C. 2254(d).
For purposes of section 2254, 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.51 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.52
On the other hand, for purposes of section 2254(d)(1), 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.”53 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.54
The Court has had fewer occasions to construe the unreasonable-determinationof-facts language in section 2254(d)(2). Three of the four cases have involved the
prosecution’s purportedly discriminatory peremptory jury strikes in which context the
Court declared that, “ a federal habeas court can only grant [such a] petition if it was
unreasonable to credit the prosecutor’s race-neutral explanations for the Batson
challenge. State-court factual findings, moreover, are presumed correct; the
petitioner has the burden of rebutting the presumption by ‘clear and convincing
evidence.’ §2254(e)(1).”55
51

Rompilla v. Beard, 125 S.Ct. 2456, 2462 (2005), quoting, Wiggins v. Smith, 539 U.S.
519, 520 (2003).
52

“It is not enough that a federal habeas court, in its independent review of the legal
question is left with a firm conviction that the state court was erroneous. We have held
precisely the opposite: ‘Under §2254(d)1)’s unreasonable application clause, then a federal
habeas court may not issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly.’ Rather, that application must be objectively unreasonable,”
Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003), quoting, Williams v. Taylor, 529 U.S. 362,
411 (2000); see also, Bell v. Cone, 535 U.S. 685, 699 (2002); Woodford v. Visciotti, 537
U.S. 19, 27 (2002); Wiggins v. Smith, 539 U.S. 510, 520 (2003); Rompilla v. Beard, 125
S.Ct. 2456, 2462 (2005).
53

Brown v. Payton, 544 U.S. 133 (2005), citing, Williams v. Taylor, 529 U.S. 362, 405
(2000) and Early v. Packer, 537 U.S. 19, 24-5 (2002).
54
55

Kane v. Garcia Espitia, 126 S.Ct. 407, 408 (2005).

Rice v. Collins, 126 S.Ct. 969, 974 (2006), citing, Miller-El v. Dretke, 125 S.Ct. 2317,
2325 (2005) which in turn quoted Miller-El v. Cockrell, 537 U.S. 322, 340 (2003), when it

CRS-16
Exhaustion. The deference extended to state courts reaches not only their
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, 28 U.S.C. 2254(b),(c) (1994 ed.).
This “exhaustion doctrine is principally designed to protect the state courts’ role in
the enforcement of federal law and prevent disruption of state judicial proceedings.
Under our federal system, the federal and state courts [are] equally bound to guard
and protect rights secured by the Constitution,” Ex parte Royall, 117 U.S. 241, 251
(1886). Because “it would be unseemly in our dual system of government for a
federal district court to upset a state court conviction without an opportunity to the
state courts to correct a constitutional violation,” federal courts apply the doctrine of
comity, which “teaches that one court should defer action on causes properly within
its jurisdiction until the courts of another sovereign with concurrent powers, and
already cognizant of the litigation, have had an opportunity to pass upon the matter,”
Darr v. Burford, 339 U.S. 200, 204 (1950).
“A rigorously enforced total exhaustion rule encourage[s] state prisoners to seek
full relief first from the state courts, thus giving those courts the first opportunity to
review all claims of constitutional error. As the number of prisoners who exhaust all
of their federal claims increases, state courts may become increasingly familiar with
and hospitable toward federal constitutional claims. Equally important, federal
claims that have been fully exhausted in state courts will more often be accompanied
by a complete factual record to aid the federal courts in their review,” Rose v. Lundy,
455 U.S. 509, 518-19 (1982).
The AEDPA preserves the exhaustion requirement,56 and reenforces it with an
explicit demand that a state’s waiver of the requirement must be explicit.57 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

noted that “the standard is demanding but not insatiable. . . ‘deference does not by definition
preclude relief’” see also, Wiggins v. Smith, 539 U.S. 510, 528 (2003), an assistance of
counsel case in which Court observed that a “partial reliance on an erroneous factual finding
further highlights the unreasonableness of the state court’s decision.”
56

28 U.S.C. 2254(b)(1)(A). The requirement is subject to exception when “it appears that
. . . (i) there is an absence of available state corrective process; or (ii) circumstances exist
that render such process ineffective to protect the rights of the applicant,” 28 U.S.C.
2254(b)(1)(B); Banks v. Dretke, 540 U.S. 668, 690 (2004).
57

28 U.S.C. 2254(b)(3). “[U]nder pre-AEDPA law, exhaustion and procedural default
defenses could be waived based on the state’s litigation conduct,” Banks v. Dretke, 540 U.S.
668, 705 (2004), citing, Granberry v. Greer, 481 U.S. 129, 135 (1987).

CRS-17
contribute to further delay.58 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, 28 U.S.C. 2244(b). 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.59 Cause could be found in the ineffective assistance of
counsel, Kimmelman v. Morrison, 477 U.S. 365 (1986); 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, Reed v. Ross, 468 U.S. 1 (1984);
or the discovery of new evidence not previously readily discoverable, Amadeo v.
Zant, 486 U.S. 214 (1988).
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,” Sawyer v. Whitney, 505 U.S. 333,
348 (1992).
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.”60 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;61 or (B) it is predicated upon on newly discovered

58

“This reform will help avoid the waste of state and federal resources that now result
when a prisoner presenting a hopeless petition to a federal court is sent back to the state
courts to exhaust state remedies. It will also help avoid potentially burdensome and
protracted inquiries as to whether state remedies have been exhausted, in cases in which it
is easier and quicker to reach a negative determination of the merits of a petition. . . . The
[Act] further provides that a state shall not be deemed to have waived the exhaustion
requirement or be estopped from reliance on the requirement unless it waives the
requirement expressly through counsel. This provision accords appropriate recognition to
the important interests in comity that are implicated by the exhaustion requirement in cases
in which relief maybe granted. This provision is designed to disapprove those decisions
which have deemed states to have waived the exhaustion requirement, or barred them from
relying on it, in circumstances other than where the state has expressly waived the
requirement,” H.Rept. 104-23 at 9-10 (1995).

59

McCleskey v. Zant, 499 U.S. 467, 492-97 (1991).

60

Tyler v. Cain, 533 U.S,. 656, 661 (2001), citing, 28 U.S.C. 2244(b)(1).

61

“This provision [28 U.S.C. 2244(b)(2)(A)] establishes three prerequisites to obtaining
relief in a second or successive petition: First, the rue on which the claim relies must be a
‘new rule’ of constitutional law; second, the rule must have been ‘made retroactive to cases
on collateral review by the Supreme Court;’ and, third, the claim must have been ‘previously
unavailable.’ In this case, the parties ask us to interpret only the second requirement. . . .

CRS-18
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 claimed constitutional error “no reasonable factfinder would
have found the applicant guilty,” 28 U.S.C. 2244(b)(2). 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, 28 U.S.C. 2244(b)(3). 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, 28 U.S.C. 2244(b)(3)(E). 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, §2.62 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, §9.63
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.
Statute of Limitations. Until the mid-twentieth century, a federal habeas
corpus petition could be filed and the writ granted at any time as long as the
petitioner remained under government confinement,64 but court rules applicable to
both state and federal prisoners were then adopted to permit the dismissal of stale
petitions if the government’s ability to respond to the petition has been prejudiced by
the passage of time.65 The Rules did not preclude federal habeas review merely
because the government's ability to retry the petitioner had been prejudiced by the
passage of time;66 nor did they apply where the petitioner could not reasonably have
acquired the information necessary to apply before prejudice to the government
occurred, Rules 9(a), supra.
The AEDPA established a one year deadline within which state and federal prisoners
must file their federal habeas petitions, 28 U.S.C. 2244(d), 2255. The period of
limitations begins with the latest of:
Based on the plain meaning of the text read as a whole, we conclude that ‘made’ means
‘held’ and, thus, the requirement is satisfied only if this Court has held that the new rule is
retroactively applicable to cases on collateral review,” Tyler v. Cain, 533 U.S. at 662.
62

518 U.S. 651, 661-63 (1996).

63

Felker v. Turpin, 518 U.S. at 664 (1996).

64

United States v. Smith, 331 U.S. 469, 475 (1947) (“habeas corpus provides a remedy .
. . without limit of time”).
65

Rule 9(a), Rules Governing Section 2254 Cases in the United States District Courts, 28
U.S.C. 2254 App. (1994 ed); see also Rule 9(a), Rules Governing Section 2255 Cases in the
United States District Courts, 28 U.S.C. 2255 App. (1994 ed.).
66

Vasquez v. Hillery, 474 U.S. 254 (1986).

CRS-19
!

the date of final completion of direct state review procedures;

!

the date of removal of a government impediment preventing the
prisoner from filing for habeas relief;

!

the date of Supreme Court recognition of the underlying federal right
and of the right’s retroactive application;67 or

!

the date of uncovering previously undiscoverable evidence upon
which the habeas claim is predicated.

The period is tolled during the pendency of state collateral review,68 that is, “during
the interval between (1) the time a lower state court reaches an adverse decision, and
(2) the day the prisoner timely files an appeal.”69 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).”70 A qualifying petition must be “properly filed” with the
appropriate state court, but a petition for state collateral review is no less properly
filed simply because state procedural requirements other than timeliness preclude the
state courts from ruling on the merits of the petition.71
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.72 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.73
The statute of limitations provisions initially presented a novel problem for
district courts faced with mixed petitions of exhausted and unexhausted claims.
67

When the Court recognizes the right in one decision and later asserts its retroactive
application, the statute of limitations begins to run from the date of the decision recognizing
the right, Dodd v. United States, 125 S.Ct. 2478, 2483 (2005).
68

Many states have a state equivalent of federal habeas corpus sandwiched between direct
appeal and federal habeas. In these jurisdictions there may be as many as eight levels of
review: (1) direct appeal in state court, (2) an opportunity to petition for review by the
United States Supreme Court, (3) petition for collateral review in state court, (4) appeal to
state appellate courts of any denial of collateral relief in state court, (5) an opportunity to
petition for review by the United States Supreme Court, petition for habeas relief in federal
district court, (7) appeal of any denial in federal district court, and (8) an opportunity for
United States Supreme Court review.
69

Evans v. Chavis, 126 S.Ct. 846, 849 (2006), citing, Carey v. Saffold, 536 U.S. 214, 21921 (2002).
70

Pace v. DiGuglielmo, 125 S.Ct. 1807, 1812 (2005); similarly for federal prisoners,
tolling pending appeal ends when the Court renders its decision or when the time for filing
a petition for certiorari expires, Clay v. United States, 537 U.S. 522,527-28 (2003).

71

Artuz v. Bennett, 531 U.S. 4, 8 (2000).

72

Mayle v. Felix, 125 S.Ct. 2562, 2569-570 (2005).

73

Day v. McDonough, 126 S.Ct.

,

(2006).

CRS-20
Before the AEDPA, district courts could not adjudicate mixed petitions but were
required to first give state courts the opportunity to resolve the exhausted claims.74
Petitioners could then return to habeas for adjudication of any remaining exhausted
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 any federal
review.”75 Nevertheless, the district court is under no obligation to warn pro se
petitions of the perils of mixed petitions.76 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 a state
prisoner’s mixed petition related to exhausted habeas claims are stayed and held in
abeyance until he can return to state court and exhaust his unexhausted claims.77
Appeals. At one time, an appeal from a federal district court’s habeas decision
could only proceed upon the issuance of a probable cause certification issued by
either the district court judge or a federal appellate judge that the appeal involved an
issue meriting appellate consideration,78 and could only be granted after the prisoner
had made a “substantial showing of the denial of [a] federal right.79
With slight changes in terminology, the AEDPA leaves the matter largely
unchanged.80 Appeals are only possible upon the issuance of certification of
appealability (COA), upon a substantial showing of a constitutional right.81 A

74

Rose v. Lundy, 455 U.S. 509, 518-19 (1982).

75

Rhines v. Weber, 125 S.Ct. 1528, 1533 (2005).

76

Pliler v. Ford, 542 U.S. 225, 227 (2004); the Court left open the question of whether
such a prisoner might subsequently file an out of time, amended petition relating back to his
original timely petition under a claim of improper dismissal, id.
77

“[S]tay and abeyance should be available only in limited circumstances. . . . [S]tay and
abeyance is only appropriate when the district court determines there was good cause for the
petitioner’s failure to exhaust his claims first in state court. Moreover, even if a petitioner
had good cause for that failure, the district court would abuse its discretion if it were to grant
him a stay when his unexhausted claims are plainly meritless. . . .And if a petitioner engages
in abusive litigation tactics or intentional delay, the district court should not grant him a
stay. On the other hand, it likely would be an abuse of discretion for a district court to deny
a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to
exhaust, his unexhausted claims are potentially meritorious, and there is not indication that
the petitioner engaged in intentionally dilatory litigation tactics,” Rhines v. Weber, 125 S.Ct.
1528, 1535 (2005).
78

28 U.S.C. 2254 (1994 ed.).

79

Barefoot v. Estelle, 463 U.S. 880, 893 (1983).

80

28 U.S.C. 2253(c).

81

28 U.S.C. 2253(c)(1), (2).

CRS-21
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.”82
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.83
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.84 Because
the COA requirement is jurisdictional, an appellate court may not treat an application
of the COA as an invitation to immediately pass upon the merits without first
granting the certificate.85 Although the Court had declared that it lacked statutory
jurisdiction to review the denial of a certificate of probable cause under a writ of
certiorari,86 the denial of a COA may be challenged under the writ.87

Other Habeas Features
The AEDPA did not touch upon every aspect of federal habeas law, either
statutory or case law.
Default and Innocence. In Wainwright v. Sykes, 433 U.S. 72 (1977), and
the cases which followed its lead, the Court declared that state prisoners who fail to
raise claims in state proceedings are barred from doing so in federal habeas
82

Tennard v. Dretke, 542 U.S. 274, 282 (2004), citing, Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) and Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Banks v. Dretke, 540
U.S. 668, 703-705 (2004).
83

Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)(“A prisoner seeking a COA must prove
something more than the absence of frivolity or the existence of mere good faith on his or
her part. We do not require petitioner to prove, before the issuance of a COA, that some
jurists would grant the petition for habeas corpus. Indeed, a claim may be debatable even
though every jurist of reason might agree, after the COA has been granted and the case has
received full consideration that petitioner will not prevail”).

84

Slack v. McDaniel, 529 U.S. 473, 484 (2000)(“Where a district court has rejected the
constitutional claims on the merits, the showing required to satisfy 2253(c) is
straightforward: the petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong. The issue
becomes somewhat more complicated where, as here, the district court dismissed the
petition based on procedural grounds. We hold as follows: When the district court denies
a habeas petition on procedural grounds without reaching the prisoner’s underlying
constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling”).
85

Id. at 336-67 (“This threshold inquiry does not require full consideration of the factual
or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court
of appeals sidesteps this process by first deciding the merits of an appeal, and then justifying
its denial of a COA based on its adjudication fo the actual merits, it is in essence deciding
an appeal without jurisdiction”).
86

House v. Mayo, 324 U.S. 42, 44 (1945).

87

Hohn v. United States, 524 U.S. 236, 253 (1998).

CRS-22
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,88 and when they
sought to establish a claim by developing facts which they had opted not to establish
during previous proceedings.89 Of the two elements, prejudice requires an actual,
substantial disadvantage to the prisoner.90
What constitutes cause is not easily stated. Cause does not include tactical
decisions,91 ignorance, inadvertence or mistake of counsel,92 or the assumption that
the state courts would be unsympathetic to the claim.93 Cause may include the
ineffective assistance of counsel;94 some forms of prosecutorial misconduct;95 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;96 or
the discovery of new evidence not previously readily discoverable.97
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 in a miscarriage of justice due to the
apparent conviction of the innocent, Murray v. Carrier, supra. 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.”98 When the petitioner challenges his

88

McClesky v. Zant, 499 U. S. 467 (1991)

89

Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).

90

Engle v. Isaac, 456 U.S. 107 (1982).

91

Smith v. Murray, 477 U.S. 527 (1986).

92

Murray v. Carrier, 477 U.S. 478 (1986).

93

Engle v. Isaac, 456 U.S. 107, 130 (1982).

94

Kimmelman v. Morrison, 477 U.S. 365 (1986). In order for ineffective assistance of
counsel to satisfy a petitioner’s burden to show cause for his procedural default (by failing
to raise a claim in state court), the claim of ineffective assistance must have been presented
to the state courts, Edwards v. Carpenter, 529 U.S. 446, 452 (2000), quoting, Murray v.
Carrier, 477 U.S. 478, 489 (1986), (“‘a claim of ineffective assistance’ must ‘be presented
to the state courts as an independent claim before it may be used to establish cause for a
procedural default’”)
95

Strickler v. Greene, 527 U.S. 263, (1999)(finding cause for failure to raise a Brady claim
relating to the prosecution’s obligation to disclose of exculpatory evidence when “(a) the
prosecution withheld exculpatory evidence; (b) petitioner reasonable relied on the
prosecution’s open file policy as fulfilling the prosecution’s duty to disclose such evidence;
and (c) the [State] confirmed petitioner’s reliance on the open file policy by asserting during
state habeas proceedings that petitioner had already received everything known to the
government”), quoted with approval in Banks v. Dretke, 540 U.S. 668, 692-93 (2004).
96

Reed v. Ross, 468 U.S. 1, 16 (1984).

97

Amadeo v. Zant, 486 U.S. 214, 222 (1988).

98

Schlup v. Delo, 513 U.S. 298, 327 (1995). The standard rests between that of Sawyer
v. Whitley, 505 U.S. 333, 336 (1992)(that the petitioner show “by clear and convincing

CRS-23
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.”99 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.100
In Herrera v. Collins, 506 U.S. 390 (1993), the Court splintered over the
question of whether newly discovered evidence of actual innocence, without some
procedural error of constitutional magnitude, permitted habeas relief. Chief Justice
Rehnquist, author of the opinion for the Court, finessed the issue by assuming
without deciding that at some quantum of evidence of a defendant's innocence the
Constitution would rebel against his or her execution.101 Short of that point and
cognizant of the availability of executive clemency, newly discovered evidence of the
factual innocence of a convicted petitioner, unrelated to any independent
constitutional error, does not warrant habeas relief.102

evidence that but for a constitutional error, no reasonable juror would have found petitioner
[guilty or] eligible for the death sentence under the applicable state law”) and that of
Strickland v. Washington, 466 U.S. 668, 695 (1986)(the petitioner must show “a reasonable
probability that, absent the errors, the factfinder would have had a reasonable doubt
respecting guilt”), Schlup v. Delo, 513 U.S. at 332-33 (O'Connor, J.)(concurring).
99
100

Sawyer v. Whitlety, 505 U.S. 333, 336 (1992).
Dretke v. Haley, 541 U.S. 386, 393-94 (2004).

101

“We may assume, for the sake of argument in deciding this case, that in a capital case
a truly persuasive demonstration of ‘actual innocence’ made after trial would render the
execution of a defendant unconstitutional, and warrant federal habeas relief if there were no
state avenue open to process such a claim. But because of the very disruptive effect that
entertaining claims of actual innocence would have on the need for finality in capital cases,
and the enormous burden that having to retry cases based on often stale evidence would
place on the States, the threshold showing of such an assumed right would necessarily be
extraordinarily high. The showing made by petitioner in this case falls far short of any such
threshold,” 506 U.S. at 417.

102

“Claims of actual innocence based on newly discovered evidence have never been held
to state a ground for federal habeas relief absent an independent constitutional violation
occurring in the underlying state criminal proceeding. ‘Where newly discovered evidence
is alleged in a habeas application, evidence which could not reasonably have been presented
to the state trier of fact, the federal court must grant an evidentiary hearing. Of course, such
evidence must bear upon the constitutionality of the applicant's detention; the existence
merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground
for relief on federal habeas corpus.’. . .
“Petitioner in this case is simply not entitled to habeas relief based on the reasoning
of this line of cases [, i.e. Sawyer v. Whitley and other cases involving default]. For he does
not seek excusal of a procedural error so that he may bring an independent constitutional
claim challenging his conviction or sentence, but rather argues that he is entitled to habeas
relief because newly discovered evidence shows that his conviction is factually incorrect.
The fundamental miscarriage of justice exception is available ‘only where the prisoner
supplements his constitutional claim with a colorable showing of factual innocence,’” 506
U.S. at 400, 404, quoting and adding emphasis to Townsend v. Sain, 372 U.S. 293, 317
(1963), and Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) respectively.

CRS-24
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.”103 The writ will issue, however, where the court has
grave doubt as to whether the error was harmless.104
New Rules and Retroactivity. The line of cases beginning with Teague v.
Lane, 489 U.S. 288 (1989) drastically limits use of federal habeas to raise novel legal
issues by restricting for habeas purposes the retroactive application of the Supreme
Court's decisions.
Prior to Teague when the Court announced a new rule concerning constitutional
requirements binding in state criminal procedure cases, it employed one of two
approaches. In some cases, it simultaneously announced whether the new rule was
to have retroactive or prospective applications. In others, it postponed that decision
until a subsequent case. In either instance, the Court employed a test first articulated
in Linkletter v. Walker, 381 U.S. 618 (1965), to determine whether a new rule should
be applied retroactively. Under the test, the Court considered “(a) the purpose to be
served by the new standards, (b) the extent of the reliance by law enforcement
authorities on the old standards, and (c) the effect on the administration of justice of
a retroactive application of the new standards.”105
In Teague, the Court adopted a different approach, borrowing from a position
espoused earlier by Justice Harlan.106 Under this view, habeas is perceived as a

Justice O'Connor and Kennedy concurred in a separate opinion endorsing the
principles identified in the majority opinion and stressing that Herrera could not be
considered innocent under any standard. 506 U.S. at 419 (O'Connor & Kennedy, JJ.)
(concurring). The separate concurrence of Justices Scalia and Thomas highlighted the
continued validity of Townsend proposition “that newly discovered evidence relevant only
to a state prisoner's guilt or innocence is not a basis for federal habeas corpus relief,” 506
U.S. at 429 (Scalia & Thomas, JJ.)(concurring). Justice White’s individual concurrence
offers the due process standard that he felt would warrant habeas relief and that Herrera
failed to meet – “based on proffered newly discovered evidence and the entire record before
the jury that convicted him, ‘no rational trier of fact could [find] proof of guilt beyond a
reasonable doubt,’” 506 U.S. at 429 (White, J)(concurring), quoting Jackson v. Virginia, 443
U.S. 307, 324 (1979).
Justices Blackmun, Stevens and Souter dissented because they would have identified,
and have given the lower courts the opportunity to apply, the Eight Amendment
“contemporary standards of decency” and the due process “shocking to the conscience”
standards as tests for the point at which habeas relief should be grant the “actually innocent”
respective of the absence of any independent constitutional error. 506 U.S. at 430
(Blackmun, Stevens & Souter, JJ.) (dissenting).
103

Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), quoting, Kotteakos v. United States,
328 U.S. 750, 776 (1946).

104

O'Neal v. McAninch, 513 U.S. 432, 435 (1995).

105

Stovall v. Denno, 388 U.S. 293, 297 (1967).

106

See Desist v. United States, 394 U.S. 244, 256 (1969)(Harlan, J.)(dissenting); Mackey
v. United States, 401 U.S. 667, 675 (1971)(Harlan, J.)(concurring in the judgment).

CRS-25
deterrent used to encourage state and lower federal courts to adhere to constitutional
standards. Therefore, a novel constitutional interpretation, or “new rule” should not
be applied retroactively during federal habeas review of state convictions since state
courts could only be expected to defer to those rules in existence when their
consideration became final. Furthermore, since it would be unfair to grant a habeas
petitioner the benefit of a new rule but deny its benefits retroactively to others
similarly situated, a plurality of the Court held that “habeas corpus cannot be used as
a vehicle to create new constitutional rules of criminal procedure unless those rules
would be applied retroactively to all defendants on collateral review” under one of
the two exceptions where retroactive application is permitted, 489 U.S. at 316.
Thus, under Teague and its companion, Penry v. Lynaugh, 492 U.S. 302 (1989),
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,” 489 U.S. at 307, 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, 492
U.S. at 329, or (2) the new interpretation “significantly improve[s] 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,” 489 U.S. at 312-13.
In order to constitute a new interpretation or “new rule” for purposes of the
exceptions, the interpretation must “break new ground or impose a new obligation
on the States or Federal Government,” or “[t]o put it differently, a case announces a
new rule if the result was not dictated by precedent existing at the time the
defendant's conviction became final,” 489 U.S. at 301 (emphasis of the Court). A
decision may announce a “new rule” for purposes of Teague, even if the Court states
its decision is “dictated by precedent,” as long as a split in the lower courts or some
other source of authority provides a ground upon which a different outcome might
reasonably have been anticipated,107 for the Teague rule “serves to validate
reasonable, good-faith interpretations of existing precedents made by state courts
even though they are shown to be contrary to later decisions.”108
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.109
107

Butler v. McKellar, 494 U.S. 407, 415 (1990).

108

Sawyer v. Smith, 497 U.S. 227, 234 (1990), quoting Butler v. McKellar, 494 U.S. at 414.
Graham v. Collins, 506 U.S. 461 (1993); Gilmore v. Taylor, 508 U.S. 333 (1993). The
lower courts may not, however, disregard clear indications that a rule, sought or sought to
be applied retroactively, is "dictated by precedent" and thereby escape the new rule
limitations, Stringer v. Black, 503 U.S. 222, 234-35 (1992).

109

Beard v. Banks, 542 U.S. 406, 411 n.3 (2004)(“Rules that fall within what we have
referred to as Teague’s first exception ‘are more accurately characterized as substantive
rules not subject to [Teague’s] bar’”), quoting, Schriro v. Summerlin, 542 U.S. 348, 352 n.4

CRS-26
The second exception, available to new “watershed rules of criminal procedure
implicating the fundamental fairness and accuracy of the criminal proceeding” like
Gideon v. Wainwright, 372 U.S. 335 (1963), does not extend to cases less
indispensible to fundamental fairness than Gideon.110 The Court observed in Beard
v. Banks that it has yet to rule on a case that satisfied this second Teague exception.111

Congressional Authority to Bar or Restrict Access to the Writ
One of the most interesting and perplexing features of federal habeas 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
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 Constitution vests the
judicial power of the United States in the Supreme Court and in the inferior courts
created by Congress,112 and describes two classes of Supreme Court jurisdiction,
original and appellate. It explicitly identifies the kinds of cases which fall within the
Court’s original jurisdiction; the Court’s appellate jurisdiction is portrayed more
generally and with the notation that it is subject to Congressional exception and
regulation.113 Does this afford Congress sufficient authority to restrict the habeas

(2004).
110

Saffle v. Parks, 494 U.S. 484, 495 (1990); Sawyer v. Smith, 497 U.S. 227 (1990).

111

Beard v. Banks, 542 U.S. 406, 417 (2004).

112

“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
judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,
the Laws of the United States. . . .” U.S.Const. Art.III, §1.

113

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in
which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the
other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as
to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall
make,” U.S.Const. Art.III, §2, cl.2.

CRS-27
jurisdiction of the lower courts and the Supreme Court’s appellate habeas
jurisdiction?114
The Court has considered these questions in the past. After the Civil War,
Congress conferred additional habeas authority upon the federal courts as a check
against state authorities in the newly reconstructed South by making the writ
available to anyone held in violation of the Constitution and other laws of the United
States. It vested appellate jurisdiction over lower court exercise of this new authority
in the Supreme Court, but made an exception for prisoners held by military
authorities.115
Notwithstanding the exception for prisoners held under military authority, the
first case to come before the Court involved William McCardle, a Mississippi
newspaper editor, arrested by military authorities for trial by a military commission
under the reconstruction laws on charges of inciting “insurrection, disorder and
violence.”116 His petition for a writ of habeas corpus was denied by the federal
circuit court and he appealed to the Supreme Court.117
The government moved to dismiss the appeal on the ground that appeal had
been expressly excluded in cases involving Confederate sympathizers held in military
custody. The Court denied the motion – because the military custody exception
applied only to the expansion of habeas afforded by the 1867 Act while McCardle
called upon the pre-existing habeas authority of the Judiciary Act of 1789 – and set
the case for argument, Ex parte McCardle, 73 U.S.(6 Wall.) 318 (1868). But before
the case could be decided on its merits, Congress repealed the law vesting appellate
jurisdiction in the Court.118

114

Note that the Constitution’s description of the Supreme Court’s original jurisdiction
makes no mention of habeas, U.S. Const. Art. III, §2, cl.2 (above).

115

“[T]he several courts of the United States, and the several justices and judges of such
courts, within their respective jurisdictions, in addition to the authority already conferred
by law, shall have power to grant writs of habeas corpus in all cases 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. . . . From the final decision of any judge, justice, or court, inferior to the
circuit court, an appeal may be taken to the circuit court of the United States . . . and from
said circuit court to the Supreme Court of the United States, on such terms and under such
regulations and orders . . . as may prescribed by the Supreme Court . . . . This act shall not
apply to the case of any person who is or may be held in the custody of the military
authorities of the United Stats, charged with any military offence, or with having aided or
abetted rebellion against the government of the United States prior to passage of this act,”
14 Stat. at 385-86 (1867).
116

Fairman, Reconstruction and Reunion 1864-88, VI HISTORY OF THE SUPREME COURT
OF THE UNITED STATES 437 (1971).
117
118

ID. at 438-40.

“That so much of the act approved February five, eighteen hundred and sixty seven [14
Stat. 385] . . . as authorizes an appeal from the judgment of the circuit court to the Supreme
Court of the United States, or the exercise of any such jurisdiction by said Supreme Court
on appeals which have been or may hereafter be taken, be, and the same is, hereby
repealed,” 15 Stat. 44 (1868).

CRS-28
Its jurisdiction to decide the appeal having been withdrawn, the Court dismissed
the appeal for want of jurisdiction, Ex parte McCardle, 74 U.S.(7 Wall.) 506 (1868).
In doing so, however, the Court made it clear that the loss of its jurisdiction to hear
appeals in habeas cases did not mean the loss of its ability to review lower court
habeas decisions altogether.119 The review available prior to the 1867 Act remained
available just as the Court had described in its earlier McCardle case:
But, though the exercise of appellate jurisdiction over judgments of inferior
tribunals was not unknown to the practice of this court before the act of 1867, it
was attended by some inconvenience and embarrassment. It was necessary to use
the writ of certiorari in addition to the writ of habeas corpus, and there was no
regulated and established practice for the guidance of parties invoking the
jurisdiction, 73 U.S.(6 Wall.) at 324.120

The Court reexamined and confirmed this view the following year when it
concluded that it had jurisdiction under writs of habeas corpus and certiorari to
review the case of another Mississippi newspaper man held by military authorities.
The 1868 Act repealed appellate jurisdiction vested in the Court by the 1867 Act. The
1868 Act did not repeal any of the provisions of the Judiciary Act of 1789; the
Court’s earlier authority to review habeas cases from the lower federal courts through
writs of habeas corpus, aided by writs of certiorari, remained available, Ex parte
Yerger, 75 U.S.(8 Wall.) 85 (1869).
The question as to the scope of Congress’ control over Court’s appellate
jurisdiction in habeas cases surfaced again when a prisoner challenged the AEDPA’s
habeas limitations in Felker v. Turpin, 518 U.S. 651 (1996). In particular, Felker
argued that the provisions of 28 U.S.C. 2244(b)(3)(E) 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.”
As before, the Court took no offense to the limitation of habeas appellate
jurisdiction. Since the AEDPA “does not repeal [the Court’s] authority to entertain
119

“Counsel seem to have supposed, if effect be given to the repealing act in question, that
the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an
error. The act of 1868 does not except from that jurisdiction any cases but appeals from
Circuit Courts under the act of 1867. It does not affect the jurisdiction which was
previously exercised. Ex parte McCardle, 6 Wallace, 324,” 74 U.S. at 515.

120

The writ of certiorari cited by the Court was not the statutorily fortified writ we now
know, but a considerably more modest version. It worked to remove an indictment or other
record and thus proceedings from an inferior court. Both writs were required because (1)
the Supreme Court's original jurisdiction could not be statutorily increased, Marbury v.
Madison, 5 U.S.(1 Cranch) 103 (1807), and thus an “original” writ could only issue from
the Court in aid of its appellate jurisdiction; (2) but habeas, unaided, did not remove
proceedings from a lower court since it only demanded the presence of a prisoner and his
or her custodian to appear before the court; (3) certiorari, unaided, was likewise insufficient
since it accomplished no more than to retrieve process and records from an inferior court,
Oaks, The "Original" Writ of Habeas Corpus in the Supreme Court, 1962 SUPREME COURT
REVIEW 153, 154 (“The two [writs] were complimentary. Certiorari removed the record,
but not the prisoner; habeas corpus removed the prisoner, but not the record”).

CRS-29
a petition for habeas corpus, there can be no plausible argument that the Act has
deprived this Court of appellate jurisdiction in violation of Article III, §2,” 518 U. S.
at 661-62. Review remained possible under the “original” writ of habeas corpus.
After McCardle and Yerger, Congress restored the Court’s jurisdiction to review
habeas cases under less cumbersome appellate procedures in 1885, 23 Stat. 437.
Once Congress reopened more normal means of Supreme Court review in habeas
cases, recourse to the original writ of habeas corpus in the Supreme Court described
in McCardle and Yerger had been infrequent and rarely successful. Seen only as a
burdensome way station of the unartful and ill advised, its best known chronicler
urged its effective abandonment.121
Yet it offered the Court in Felker precisely what it supplied in McCardle and
Yerger, a means of preserving Supreme Court review, under circumstances where
Congress rather clearly intended to deny that possibility, without forcing the Court
to address the question of whether Congress’ efforts exceed its constitutional
authority.
The Supreme Court, in an opinion by Chief Justice Rehnquist, declared that
“although the Act does impose new conditions on [the Court's] authority to grant
relief, it does not deprive [the] Court of jurisdiction to entertain original habeas
petitions,” Felker v. Turpin, 518 U.S. at 658. Just as McCardle and Yerger “declined
to find a repeal of §14 of the Judiciary Act of 1789 as applied to [the] Court by
implication. . . [Felker] decline[s] to find a similar repeal of §2241 of Title 28. . . .”
518 U.S. at 661.122
Of course Felker sought not only review, but reversal. The Court refused to
grant relief under its original writ authority because Felker’s claims satisfied neither
the demands of the Act nor those of the Court’s Rule 20.123 It stopped short of
121

Oaks, The "Original" Writ of Habeas Corpus in the Supreme Court, 1962 SUPREME
COURT REVIEW 153, 206-7.
122

The symmetry is less than perfect, however, since McCardle and Yerger found the dual
authority in two distinct sources, the Judiciary Act of 1789 and the Act of 1867 while the
Court points to section 2241 as the contemporary source of both. Moreover, while the
nineteenth century Congress purported to do no more than withdraw appellate jurisdiction,
its twentieth century successor sought to curtail certiorari jurisdiction as well.
Justice Steven’s concurrence identifies additional sources of review authority with the
observation that the AEDPA “does not purport to limit our jurisdiction under [section
1254(1)] to review interlocutory orders in such cases, to limit our jurisdiction under
1254(2)[relating to Supreme Court review of questions certified by a court of appeals
seeking instruction], or to limit our jurisdiction under the All Writs Act, 28 U.S.C. §1651,”
518 U.S. at 666 (Stevens, J. joined by Souter & Breyer, JJ.)(concurring).
123

518 U.S. at 665 (“Our Rule 20.4(a) delineates the standards under which we grant such
[original] writs of habeas corpus: ‘A petition seeking the issuance of a writ of habeas corpus
shall comply with the requirements of 28 U.S.C. §§2241 and 2242, and in particular with
the provision in the last paragraph of §2242 requiring a statement of the reason for not
making application to the district court of the district in which the applicant is held. If the
relief sought is from the judgment of a state court, the petition shall set forth specifically
how and wherein the petitioner has exhausted available remedies in the state courts or

CRS-30
holding, however, that it was required to follow the Act's standards in its original writ
determinations: “Whether or not we are bound by these restrictions [of the AEDPA],
they certainly inform our consideration of original habeas petitions,” 518 U.S. at 663.
Its reticence may have been calculated to avoid any suggestion that suspension or
exception clauses have become dead letters.
Although it concluded that Felker had not satisfied the requirement that the
original writ issue only upon “exceptional circumstances,” the Court did not say why
nor did it indicate when such exceptional circumstances might exist. On the other
hand, the Court's denial makes it clear that McCardle and Yerger notwithstanding,
legislative barriers blocking access to the more heavily traveled paths to review do
not by themselves constitute the necessary exception circumstances.
It is interesting that the Court sought refuge in the arcane confines of “original”
habeas rather than acknowledging that the gatekeeper provision came within the
Congress’ power under the exceptions and regulations clause whatever limitations
that power might otherwise be subject to. Given the expedited nature of the
proceedings it may mean no more than that time precluded the formulation of an
opinion outlining the dimensions of the clause in terms that a majority on the Court
could endorse.124
Suspension of the Privilege of the Writ. On the other hand, when
considering the suspension clause issue the Felker Court seemed to select the path
it had shunned in its earlier treatment of the exceptions clause issue. The suspension
clause, housed among the explicit limitations on the Constitutional powers of
Congress, declares that “[t]he 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.
The English history of the writ gives some clues as to its intent. When the King
and the royal courts began to recognize restrictions on the writ, the English
Parliament had responded with the Habeas Corpus Act of 1679.125 But in times of

otherwise comes within the provisions of 28 U.S.C. 2254(b). To justify the granting of a
writ of habeas corpus, the petitioner must show exceptional circumstances warranting the
exercise of the Court's discretionary powers and must show that adequate relief cannot be
obtained in any other form or from any other court. These writs are rarely granted.’
Reviewing petitioner's claims here, they do not materially differ from numerous other claims
made by successive habeas petitioners which we have had occasion to review on stay
applications to this Court. Neither of them satisfies the requirements of the relevant
provisions of the Act, let alone the requirement that there be ‘exceptional circumstances’
justifying the issuance of the writ”).
124

“[I]f it should later turn out that statutory avenues other than certiorari for reviewing a
gatekeeping determination were closed, the question whether the statute exceeded Congress'
Exception Clause power would be open,” 518 U.S. at 667 (Souter, with Stevens & Breyer,
JJ)(concurring).
125

3 BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 134-35 (1768)(“And yet,
early in the reign of Charles I, the court of king's bench relying on some arbitrary precedents
(and those perhaps misunderstood) determined that they could not upon an habeas corpus

CRS-31
crisis, the Parliament allowed that the privilege of the writ should be temporarily
suspended upon its approval.126
Perhaps the most notable of these suspensions occurred during the American
Revolution when Parliament annually enacted suspension provisions to permit
temporary imprisonment of the rebelling colonists without bail or trial for the

either bail or deliver a prisoner, though committed without any cause assigned, in case he
was committed by the special command of the king, or by the lords of the privy council.
This drew on a parliamentary enquiry, and produced the petition of right, 3 Car.I, which
recites this illegal judgment, and enacts that no freeman hereafter shall be so imprisoned or
detained. But when, in the following year, Mr. Selden and others were committed by the
lords of the council . . . the judges delayed for two terms . . . to deliver an opinion how far
such a charge was bailable. . . . These pitiful evasions gave rise to the statute 16 Car.I. c.10.
§.8. whereby it was enacted, that if any person be committed by the king himself in person,
or by his privy council, or by any member thereof, he shall have granted unto him, without
any delay upon any pretence whatsoever, a writ of habeas corpus upon demand or motion
to the court of the king's bench or common pleas. . . . Other abuses had also crept into daily
practice [concerning the availability of the writ of habeas corpus], which had in some
measure defeated the benefit of this great constitutional remedy. . . The oppression . . . gave
birth to the famous habeas corpus act, 31 Car.II. c.2, which is frequently considered as
another magna carta of the kingdom.”).
126

See e.g., 1 Wm.& Mary ch.7 (1689), reprinted in 6 STATUTES OF THE REALM 57 (“For
the Securing the Peace of the Kindome in this time of Imminent Danger against the Attempts
and Traiterous Conspiracies of Evill disposed Persons Bee it enacted . . . That every Person
or Persons that shall be in Prison at or upon the Five and twentyeth Day of Aprill in the
Yeare of our Lord One thousand six hundred eighty and nine or after by Warrant of Their
said Majesties most Honourable Privy Councill Signed by Six of the Said Privy Councill for
Suspicion of High Treason or Treasonable Practices or by Warrant Signed by either of his
Majesties secretaries of State for such Causes aforesaid may be detained in same Custodie
without Baile or Mainprize* until the Five and twentieth Day of May next.
“And that noe Judge or Justice or Court of Justice shall Baile or Try any such Person
or Persons soe committed without Order from Their said Majesties Privy Councill Signed
by Six of the Said Privy Councill till the said Five and twentieth Day of May any Law or
Statute to the contrary notwithstanding.
“Provided always That from and after the said Five and twentyeth Day of May the said
Persons soe Committed shall have the Benefit and Advantage of an Act made in One and
thirtyeth yeare of King Charles the Second Entitled an Act for the better Securing the
Liberty of the Subjects and for Prevention of Imprisonment beyond the Seas, and alsoe of
all other Laws and Statute any way relating to or provideing for the Liberty of the Subjects
of this Realme And that this present Act shall continue untill the said Five and twentyeth
day of May and noe longer.”).
* “The writ of mainprize, manucapio, is a writ directed to the sheriff (either generally,
when any man is imprisoned for a bailable offence,and bail hath been refused; or specially,
when the offence or cause of commitment is not properly bailable below) commanding him
to take sureties for the prisoner's appearance, usually called mainpernors, and to set him at
large. Mainpernors differ from bail, in that a man's bail may imprison or surrender him up
before the stipulated day of appearance; mainpernors can do neither, but are barely sureties
for his appearance at the day; bail are only sureties, that the party be answerable for the
special matter for which they stipulate; mainpernors are bound to produce him to answer all
charges whatsoever,” 3 BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 128
(1768).

CRS-32
duration of the year.127 Not to be outdone, several colonial legislatures afforded their
executive officials similar authority to deal with those loyal to the crown.128

127

“Whereas a rebellion and war have been openly and traiterously levied and carried on
in certain of his Majesty's colonies and plantations in America . . . be it therefore enacted
. . . That all and every person or persons who have been, or shall hereafter be seised or taken
in the act of high treason committed in any of his Majesty's colonies or plantations in
America, or on the high seas, or in the act of piracy, who are or shall be charged with or
suspected of the crime of high treason, committed in any of the said colonies, or on the high
seas, or of piracy, and who have been, or shall be committed . . . for such crimes, or any of
them, or for suspicion of such crimes, or any of them, by any magistrate having competent
authority in that behalf, to the common gaol, or other place of confinement . . . shall and
may be thereupon secured and detained in safe custody, without bail or mainprize, until the
first day of January, one thousand seven hundred and seventy-eight; and that no judge or
justice of peace shall bail or try any such persons or persons without order from his
Majesty's most honourable privy council, signed by six of the said privy council, until the
said first day of January, one thousand seven hundred and seventy-eight, any law, statute,
or usage to the contrary in any-wise notwithstanding. . . .
“And be it further enacted by the authority aforesaid, That this act shall continue and
be in force until the said first day of January, one thousand seven hundred and seventy-eight,
and no longer,” 17 Geo.III, ch.9 (1777), 31 STAT. AT LARGE 317-18; extending the
suspension for an additional year, 18 Geo.III. ch.1 (1778), 32 STAT. AT LARGE 1-2; 19
Geo.III. ch.1 (1779), 32 STAT. AT LARGE 175-76; 20 Geo.III. ch.5 (1780), 33 STAT. AT
LARGE 3; 21 Geo.III. ch.2 (1781), 33 STAT. AT LARGE 181-82; 22; Geo.III ch.1 (1782), 34
STAT. AT LARGE 1.
128

“Whereas, at a time when the publick enemy have actually invaded some of our
neighbouring states, and threaten an invasion of this state, the safety of the Commonwealth
requires that a power be somewhere lodged to apprehend and imprison any persons whose
enlargement is dangerous to the community, – Be it therefore enacted . . . That the council
may, from time to time, issue their warrant . . . to command and cause to be apprehended,
and committed to any goal within this state, any person whom the council shall deem the
safety of the Commonwealth requires should be restrained of his personal liberty, or whose
enlargement within this state is dangerous thereto. . . .
“That any person who shall be apprehended and imprisoned as aforesaid, shall be
continued in imprisonment, without bail or mainprize, until he shall be discharged therefrom
by order of the council or of the general court.
“This act shall continue and be in force for the term of one year from the tenth day of
May, A.Dom., 1777,” V ACTS AND RESOLVES OF THE PROVINCE OF MASSACHUSETTS BAY
641 (May 9, 1777). see also, 9 PA.STAT. 138-40 (Sept.6, 1777); 10 HENING'S STAT. 413-4
(Va. May 1781).
After Independence but prior to the drafting of the Constitution, Massachusetts again
authorized suspension during Shay's Rebellion, which occurred, Act of Nov. 10, 1786,
MASS.ACTS & RESOLVES, 1786-97, 102-3(“Whereas the violent and outrageous opposition,
which hath lately been made by armed bodies of men, in several of the counties of its
Commonwealth . . . renders it expedient and necessary, that the benefit derived to the
Citizens from the issuing of Writs of Habeas Corpus, should be suspended for a limited time,
in certain cases: Be it enacted. . . That the Governor, with the advice and consent of the
Council, be and he hereby is authorized . . . to command and cause to be apprehended, and
committed in any Goal . . . any person . . . the safety of the Commonwealth requires should
be restrained of their personal liberty, or whose enlargement is dangerous thereto; any Law,
Usage or Custom to the contrary notwithstanding. . . . And be it further enacted . . . That any
Person who shall be apprehended and imprisoned, as aforesaid, shall be continued in
imprisonment, without Bail or Mainprize, until he shall be discharged therefrom by order

CRS-33
Early in the Republic, President Jefferson sought and was denied a
suspension.129 During the Civil War, perhaps remembering Congress’ rejection of
Jefferson’s suspension requests, President Lincoln did not bother to request authority
to suspend at first. He simply instructed his military commanders, in ever broadening
terms, to suspend access to the writ as they felt appropriate.130

of the Governor, or of the General Court. And this Act shall continue and be in force until
the first day of July next and no longer”).
129

Erick Bollman and Samuel Swartwout were arrested by military authorities in New
Orleans for complicity in Aaron Burr’s western adventures. President Jefferson sought a
bill authorizing him to suspend the privilege of the writ:
That in all cases, where any person or persons, charged on oath with treason,
misprision of treason, or other high crime or misdemeanor, endangering the peace,
safety, or neutrality of the United States, have been or shall be arrested or imprisoned
by virtue of any warrant or authority of the President of the United States, or from the
Chief Executive Magistrate of any State or Territorial Government, or from any person
acting under the direction or authority of the President of the United States, the
privilege of the writ of habeas corpus shall be, and the same hereby is suspended, for
and during the term of three months from and after the passage of this act, and no
longer, 6 Annals 402 (1807).

The proposal failed in the House, 6 Annals 588 (1807). The Circuit Court for the District
of Columbia in the meantime had ordered Bollman and Swartwout jailed pending their trial
for treason and they sought writs of habeas corpus and certiorari from the Supreme Court.
The Court ordered the prisoners discharged on the ground that the evidence presented
did not establish that a crime of treason had occurred and that those crimes for which there
was evidence had not been committed in the District of Columbia and consequently trial
could not be held there, Ex parte Bollman, 8 U.S.(4 Cranch) 75, 135-36 (1807).
130

“The Maryland legislature assembles to-morrow at Annapolis, and not improbably will
take action to arm the people of that State against the United States. . . . [I]t is only left to
the Commanding General to watch and await their action, which, if it shall be to arm their
people against the United States, he is to adopt the most prompt and efficient means to
counteract, even, if necessary, to the bombardment of their cities and, in the extremest
necessity, the suppression of the writ of habeas corpus,” President Abraham Lincoln to
General Winfield Scott (April 25, 1861), in 6 RICHARDSON, A COMPILATION OF THE
MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1902, 17-8.
“You are engaged in suppressing an insurrection against the laws of the United States.
If at any point on or in the vicinity of any military line which is now or which shall be used
between the city of Philadelphia and the city of Washington you find resistance which
renders it necessary to suspend the writ of habeas corpus for the public safety, you
personally, or through the officer in command at the point where resistance occurs, are
authorized to suspend that writ,” President Lincoln to the Commanding General of the Army
of the United States (April 27,1861), in ID., at 18.
“You or any officer you may designate will, in your discretion, suspend the writ of
habeas corpus so far as may relate to Major Chase, lately of the Engineer Corps of the Army
of the United States, now alleged to be guilty of treasonable practices against the
Government,” President Lincoln to the General Commanding the Armies of the United
States (June 9, 1861), in ID., at 19.
“The military line of the United States for the suppression of the insurrection may be
extended as far as Bangor, in Maine. You and any officer acting under your authority are
hereby authorized to suspend the writ of habeas corpus in any place between that place and

CRS-34
After Chief Justice Taney, acting upon a petition presented in chambers, held
the President had exceeded his authority, Ex parte Merryman, 17 Fed.Cas. 144 (No.
9,487) (C.C.D.Md. 1861), Congress ratified Lincoln’s efforts with sweeping
suspension legislation.131 In Ex parte Milligan, 71 U.S. (4 Wall.) 2, 130-31 (1866),
the Court concluded that the suspension clause operated to afford a prisoner's jailers
a defense as to why they should not release the prisoner once the court had issued the
writ instructing them to bring the prisoner before the court and justify the
imprisonment, “The suspension of the privilege of the writ of habeas corpus does not
suspend the writ itself. The writ issues as a matter of course; and on the return made
to it, the court decides whether the party applying is denied the right of proceeding
further with it.”132
Ex parte Milligan, and experience during the period leading up to the drafting
of the suspension clause offer scant support for the suggestion that the suspension
clauses must be read as a general limitation upon Congress’ authority to enact habeas
legislation. Nevertheless, there are grounds for the contention that suspension of the
privilege of the writ may mean more than that, in times and places of trouble,
particular individuals may be temporarily denied access to the writ and jailed without
bail or trial by a court of competent jurisdiction. In more contemporary times, the
Court and scholars have pondered the extent to which the suspension clause marks
the city of Washington,” President Lincoln to General Scott (Oct. 14, 1861), ID., at 39.
“Whereas, it has become necessary to call into service not only volunteers but also
portions of the militia of the States by draft in order to suppress the insurrection existing in
the United States and disloyal persons are not adequately restrained by the ordinary process
of law from hindering this measure and from giving aid and comfort in various ways to the
insurrection.
“Now, therefore, be it ordered, . . . that during the existing insurrection . . . all Rebels
and Insurgents, their aiders and abettors within the United States, and all persons
discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice,
affording aid and comfort to Rebels against the authority of the United States, shall be
subject to martial law and liable to trial and punishment by Courts Martial or Military
Commission;
“. . . [T]he Writ of Habeas Corpus is suspended in respect to all persons arrested, or
who are now, or hereafter during the rebellion shall be, imprisoned . . . by military authority
or by the sentence of any Court Martial or Military Commission,” Presidential Proclamation
of September 24, 1862, 13 STAT. 730.
131

“That, during the present rebellion, the President of the United States, whenever, in his
judgement, the public safety may require it, is authorized to suspend the privilege of the writ
of habeas corpus in any case throughout the United States, or any part thereof. And
whenever and wherever the said privilege shall be suspended, as aforesaid, no military or
other officer shall be compelled, in answer to any writ of habeas corpus, to return the body
of any person or persons detained by him by authority of the President. . . .” 12 Stat. 755
(1863).

132

Lamdin Milligan was an Indiana resident arrested by military authorities, convicted by
a military commission, and ordered put to death for conspiracy, insurrection and giving aid
and comfort to the Confederates. Milligan sought habeas relief from the circuit court which
was certified by Supreme Court determination, 71 U.S. (4 Wall.) at 6-9. The Court held that
even when the privilege of the writ was suspended, military authorities could not try citizens
in for offenses committed in a place where civil courts were continuously available to try
such misconduct, 71 U.S. (4 Wall.) at 130-31.

CRS-35
an outer limit of the authority of Congress and the courts to adjust the procedures
associated with the writ.133 If, as these authorities indicate, the suspension clause
enjoys organic qualities that permit it to expand and contract under various
environmental circumstances, several evolutionary stages of the modern writ deserve
repeating.
First, as part of the Reconstruction after the Civil War, Congress expanded
federal habeas to make it available to state prisoners held in violation of federal
law.134 Second, by the early forties the Court had completed its slow abandonment
of the common law prohibition against use of habeas to attack a conviction or
sentence collaterally.135 Thereafter, the Court used an expanded habeas to help carry
133

See e.g., United States v. Haemin, 342 U.S. 205 (1952)(court of appeals decision, that
a provision that permitted collateral attack of a federal conviction (28 U.S.C. 2255) violated
the suspension clause, was vacated because the prisoner was entitled to relief under the
section and it was therefore unnecessary to reach the constitutional issue); Fay v. Noia, 372
U.S. 391, 406 (1963)("We need not pause to consider whether it was the framers'
understanding that congressional refusal to permit the federal courts to accord the writ its
full common-law scope as we have described it might constitute an unconstitutional
suspension of the privilege of the writ. There have been some intimations of support for
such a proposal in the decisions of this Court. . . . But at all events it would appear that the
Constitution invites, if it does not compel, a generous construction of the power of the
federal courts to dispense the writ comfortably with common-law practice"); Sanders v.
United States, 373 U.S.1, 11-2 (1963) ("Moreover, if construed to derogate from the
traditional liberality of the writ of habeas corpus, §2244 might raise serious constitutional
questions, Article I, §9, cl.2 of the Federal Constitution. . . "); Swain v. Pressley, 430 U.S.
372 (1977)(establishing an adequate and effective alternative procedure for habeas relief
does not violate the suspension clause); Mello & Duffy, Suspending Justice: The
Unconstitutionality of the Proposed Six-Month Time Limit on the Filing of Habeas Corpus
Petitions by State Death Row Inmates, 18 NEW YORK UNIVERSITY REVIEW OF LAW &
SOCIAL CHANGE 451 (1990-91).

134

"[T]he several courts of the United States, and the several justices and judges of such
courts, within their respective jurisdictions, in addition to the authority already conferred
by law, shall have power to grant writs of habeas corpus in all cases 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," 14 Stat. 385-86 (1867).
135

See e.g.: Ex parte Lange, 85 U.S.(18 Wall.) 163 (1874); Ex parte Siebold, 100 U.S. 371
(1880); Ex parte Wilson, 114 U.S. 417 (1885); In re Snow, 120 U.S. 274 (1887); Frank v.
Mangum, 237 U.S. 309 (1915); Moore v. Dempsey, 261 U.S. 86 (1923); Mooney v. Holohan,
294 U.S. 103 (1935); Johnson v. Zerbst, 304 U.S. 458 (1938); Waley v. Johnson, 316 U.S.
101 (1942); Walker v. Johnson, 312 U.S. 275 (1941); The Freedom Writ -- The Expanding
Use of Federal Habeas Corpus, 61 HARVARD LAW REVIEW 657 (1948).
While a number of theories might be formulated to explain the Court's authority to
modify the procedures associated with the writ, the Court made the task unnecessary when
it explained that, "the history of the Great Writ of Habeas Corpus reveals . . . the gradual
evolution of more formal judicial, statutory, or rules-based doctrines of law. In earlier
times, the courts followed comparatively simple rules . . . as they exercised the writ in light
of its most basic purpose, avoiding serious abuses of power by a government, say a king's
imprisonment of an individual without referring the matter to a court. As the writ has
evolved into an instrument that now demands not only conviction by a court of competent
jurisdiction, but also application of basic constitutional doctrines of fairness, Congress, the
Rule writers, and the courts have developed more complex procedural principles that

CRS-36
the commands of the Bill of Rights to the state criminal procedure.136 Beginning in
the seventies, the Court announced a series of doctrines calculated to eliminate
unnecessary delay, repetition and frivolity.137 The AEDPA extended this last trend.
Felker disavowed any contention that the AEDPA’s provisions violated the
suspension clause. The Georgia Attorney General and the Solicitor General each
denied that the suspension clause had been violated. The Court agreed. 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 “assume[d], for purposes of decision here, that the Suspension Clause of the
Constitution refers to the writ as it exists today, rather than as it existed in 1789,” 518
U.S. at 663-64.
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,” 518 U.S. at 664, quoting McCleskey v. Zant,
499 U.S. 467, 489 (1991). “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,” 518 U.S. at 664.
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.138
regularize and thereby narrow the discretion that individual judges can freely exercise.
Those principles seek to maintain the courts' freedom to issue the writ, aptly described as
the `highest safeguard of liberty,' while at the same time avoiding serious, improper delay,
expense, complexity, and interference with a State's interest in the `finality' of its legal
process," Lonchar v. Thomas, 517 U.S. 314, 322-23 (1996).
136

Brown v. Allen, 344 U.S. 443 (1953); Fay v. Noia, 372 U.S. 391 (1963); Townsend v.
Sain, 372 U.S. 293 (1963); Sanders v. United States, 373 U.S. 1 (1963); Friendly, Is
Innocence Irrelevant? Collateral Attack on Criminal Justice, 38 UNIVERSITY OF CHICAGO
LAW REVIEW 142, 154-55 (1970); Wright & Sofaer, Federal Habeas Corpus for State
Prisoners: The Allocation of Fact-Finding Responsibility, 75 YALE LAW JOURNAL 895, 89798 (1966).
137

See e.g., Wainwright v. Sykes, 433 U.S. 72 (1977) ; Murray v. Carrier, 477 U.S. 478
(1986); Engle v. Isaac, 456 U.S. 107 (1982); Teague v. Lane, 489 U.S. 288 (1989); Penry
v. Lynaugh, 492 U.S. 302 (1989), Saffle v. Parks, 494 U.S. 484, 495 (1990); Sawyer v.
Smith, 497 U.S. 227 (1990); Blume & Voisin, An Introduction to Federal Habeas Corpus
Practice and Procedure, 47 SOUTH CAROLINA LAW REVIEW 271 (1996); Hoffman & Stuntz,
Habeas After the Revolution, 1993 SUPREME COURT REVIEW 65.

138

INS v. St. Cyr, 533 U.S. 289 (2001)(“a serious Suspension Clause issue would be
presented if we were to accept the INS’ submission that the 1996 statutes have withdrawn
that power [to review of certain immigration cases under habeas] from federal judges and
provide no adequate substitute for its exercise”). One of the statutes in question, section
401(e) of the AEDPA was captioned “Elimination of Custody Review by Habeas Corpus,”
110 Stat. 1268 (1996).

CRS-37

Selected Bibliography
Books and Articles
AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE SECTION, PROJECT ON DEATH
PENALTY HABEAS CORPUS, TOWARD A MORE JUST AND EFFECTIVE SYSTEM OF
REVIEW IN STATE DEATH PENALTY CASES (1990)
Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights:
Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113
UNIVERSITY OF PENNSYLVANIA LAW REVIEW 793 (1965)
Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76
HARVARD LAW REVIEW 441 (1963)
----. The State Courts and Federal Constitutional Litigation, 22 WILLIAM & MARY
LAW REVIEW 605 (1981)
Berger, Justice Delayed or Justice Denied? A Comment on Recent Proposals to
Reform Death Penalty Habeas Corpus, 90 COLUMBIA LAW REVIEW 1665 (1990)
Berry, Seeking Clarity in the Federal Habeas For: Determining What Constitutes
“Clearly Established” Law Under the Antiterrorism and Effective Death Penalty
Act, 54 CATHOLIC UNIVERSITY LAW REVIEW 747 (2005)
Blume, AEDPA: The “Hype” and the “Bite” 91 CORNELL LAW REVIEW 259 (2006)
Brennan, Federal Habeas Corpus and State Prisoners: An Exercise in Federalism,
7 UTAH LAW REVIEW 423 (1961)
Chemerinsky, Thinking About Habeas Corpus, 37 CASE WESTERN RESERVE LAW
REVIEW 748 (1987)
Cover & Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 YALE
LAW JOURNAL 1035 (1977)
Desmond, Federal Habeas Corpus Review of State Court Convictions, 50
GEORGETOWN LAW JOURNAL 755 (1962)
Duker, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS (1980)
----. The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame,
53 NEW YORK UNIVERSITY LAW REVIEW 983 (1978)
Faust, Rubenstein & Yackle, The Great Writ in Action: Empirical Light on the
Federal Habeas Corpus Debate, 18 NEW YORK UNIVERSITY REVIEW OF LAW
SOCIAL CHANGE 637 (1990/1991)
Freedman, HABEAS CORPUS: RETHINKING THE GREAT WRIT OF LIBERTY (2001)

CRS-38
Friedman, A Tale of Two Habeas, 73 MINNESOTA LAW REVIEW 247 (1988)
Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38
UNIVERSITY OF CHICAGO LAW REVIEW 142 (1970)
Garvey, Death-Innocence and the Law of Habeas Corpus, 56 ALBANY LAW REVIEW
225 (1992)
Hammel, Diabolical Federalism: a Functional Critique and Proposed
Reconstruction of Death Penalty Federal Habeas, 39 AMERICAN CRIMINAL LAW
REVIEW 1 (2002)
Hart, The Supreme Court 1958 Term – Forward: The Time of the Justices, 73
HARVARD LAW REVIEW 84 (1959)
Hartnett, The Constitutional Puzzle of Habeas Corpus, 46 BOSTON COLLEGE LAW
REVIEW 251 (2005)
Hoffman & Stuntz, Habeas After the Revolution, 1993 SUPREME COURT REVIEW 65
Hoffstadt, The Deconstruction and Reconstruction of Habeas, 78 SOUTHERN
CALIFORNIA LAW REVIEW 1125 (2005)
Jackson, The Power to Suspend Habeas Corpus: An Answer From the Arguments
Surrounding Ex Parte Merryman, 34 UNIVERSITY OF BALTIMORE LAW REVIEW 11
(2004)
Lee, The Theories of Federal Habeas Corpus, 72 WASHINGTON UNIVERSITY LAW
QUARTERLY 151 (1994)
----. Section 2254(d) of the Federal Habeas Corpus Statute: Is It Beyond Reason?
56 HASTINGS LAW JOURNAL 283 (2004)
Neuborne, The Myth of Parity, 90 HARVARD LAW REVIEW 1105 (1977)
Oaks, Legal History in the High Court – Habeas Corpus, 64 MICHIGAN LAW REVIEW
451 (1966)
----. The "Original" Writ of Habeas Corpus in the Supreme Court, 1962 SUPREME
COURT REVIEW 153
Paschal, The Constitution and Habeas Corpus, 1970 DUKE LAW JOURNAL 605
Sloane, AEDPA’s “Adjudication on the Merits” Requirement: Collateral Review,
Federalism, and Comity 78 ST. JOHN’S LAW REVIEW 615 (2004)
Steiker, Incorporating the Suspension Clause: Is There a Constitutional Right to
Federal Habeas Corpus for State Prisoners, 92 MICHIGAN LAW REVIEW 862
(1994)

CRS-39
Stevenson, The Politics of Fear and Death; Successive Problems in Capital Federal
Habeas Corpus Cases, 77 NEW YORK UNIVERSITY LAW REVIEW 699 (2002)
United States House of Representatives, Habeas Corpus: Hearings Before Subcomm.
No. 3 of the House Comm. on the Judiciary, 84th Cong., 1st Sess. (1955)
----. Habeas Corpus Legislation: Hearings Before the Subcomm. on Courts,
Intellectual Property, and the Administration of Justice, 101st Cong., 2d Sess. (1990)
----. Habeas Corpus Issues: Hearings Before the Subcomm. on Civil and
Constitutional Rights of the House Comm. on the Judiciary, 102d Cong., 1st Sess.
(1991)
----. Habeas Corpus: Hearings Before the Subcomm. on Civil and Constitutional
Rights of the House Comm. on the Judiciary, 103d Cong., 1st & 2d Sess. (1994)
United States Senate, Habeas Corpus Reform Act of 1982: Hearings Before the
Comm. on the Judiciary, 97th Cong., 2d Sess. (1982)
----. Comprehensive Crime Control Act of 1983: Hearings Before the Subcomm. on
Criminal Law of the Comm. on the Judiciary, 98th Cong., 1st Sess. (1983)
----. Habeas Corpus Reform: Hearing Before the Comm. on the Judiciary, 99th
Cong., 1st Sess. (1985).
Walker, THE CONSTITUTION AND LEGAL DEVELOPMENT OF HABEAS CORPUS AS THE
WRIT OF LIBERTY (1960)
Wechsler, Habeas Corpus and the Supreme Court: Reconsidering the Reach of the
Great Writ, 59 UNIVERSITY OF COLORADO LAW REVIEW 167 (1988)
Weisberg, A Great Writ While It Lasted, 81 JOURNAL
CRIMINOLOGY 9 (1990)

OF

CRIMINAL LAW &

Wright, Habeas Corpus: Its History and Its Future, 81 MICHIGAN LAW REVIEW 802
(1983)
Yackle, POSTCONVICTION REMEDIES (1981)
Notes and Comments
Actually Less Guilty: The Extension of the Actual Innocence Exception to the
Sentencing Phase of Non-Capital Cases, 93 KENTUCKY LAW JOURNAL 531 (2004)
The Clash of Ring v. Arizona and Teague v. Lane: An Illustration of the
Inapplicability of Modern Habeas Retroactivity Jurisprudence in the Capital
Sentencing Context, 85 BOSTON UNIVERSITY LAW REVIEW 1017 (2005)

CRS-40
“Deference Does Not Imply Abandonment or Abdication of Judicial Review”: the
Evolution of Habeas Jurisprudence Under AEDPA and the Rehnquist Court, 72
UNIVERSITY OF MISSOURI-KANSAS CITY LAW REVIEW 739 (2004)
A Different View of Habeas: Interpreting AEDPA’s “Adjudicated on the Merits”
Clause When Habeas Corpus Is Understood as an Appellate Function of the Federal
Courts, 72 FORDHAM LAW REVIEW 2593 (2004)
Review and Vacatur of Certificates of Appealability Issued Under the Denial of
Habeas Corpus Petitions, 72 UNIVERSITY OF CHICAGO LAW REVIEW 989 (2005)
Thirty-Second Annual Review of Criminal Procedure: Habeas Relief for State
Prisoners, 91 GEORGETOWN LAW JOURNAL 817 (2003)