Supreme Court Decisions on Habeas Corpus

by Kent Scheidegger*

Reading the headlines about Supreme Court decisions in April, one would think the murderers were victorious across the board and that the recent reforms in habeas corpus had been defeated.  In truth, the 1996 reform is being upheld largely as intended, and the Supreme Court decisions have moved the law in the prosecution's favor, compared to the center of gravity of the court of appeals' positions prior to the present term.

Terry Williams v. Taylor

    On April 18, the Supreme Court decided two habeas cases, both named Williams v. Taylor.  The Terry Williams case involved the interpretation of the centerpiece of the habeas reform portion of the 1996 Antiterrorism and Effective Death Penalty Act:  28 U.S.C. § 2254(d).  The critical battleground involved rulings of state courts on the so-called "mixed questions of law and fact," i.e., the application of a general legal standard to the specific facts of the case.  Should a federal district or circuit court nullify a state court decision on such an issue merely because it disagrees with it, as a "higher" court would on a normal appeal, or should the drastic remedy of collateral attack on a final judgment be reserved for clearly wrong decisions, letting the original decision stand if it is within the bounds of reasonable disagreement?  As this bill was debated in Congress, everyone involved understood that the Hatch-Specter language ultimately adopted represented the latter choice, and the Biden Amendment, specifically stated by its author to be for the purpose of retaining de novo review of such questions, was defeated.  Yet, after the legislative smoke cleared, various academics proposed a tortured construction of the language to preserve the status quo ante and defeat the main purpose of the reform.  Not a single Court of Appeals bought this argument.  Though their formulations varied somewhat, every case recognized that Congress had indeed changed the rule on mixed questions.

    Justice O'Connor's opinion is the opinion of the Court on the main point, except that Justice Scalia characteristically declines to join an incidental footnote on legislative history.  The opinion confirms that the basic analytical structure is the one established in cases from the Fourth, Fifth, Seventh, and Eleventh Circuits.  That is, the phrase "contrary to ... clearly established federal law" refers, for the most part, to the state court's selection of the correct legal standard from existing Supreme Court precedent.  In practice, this will not be much different from the pre-AEDPA case law requirement of Teague v. Lane, 489 U.S. 288 (1989), that new rules not dictated by existing precedent cannot be created or applied retroactively on habeas corpus.  The application of existing standards to specific facts is governed by the "unreasonable application" clause, which means what it says:  if the state court's application of the standard is reasonable, the federal court respects it, even if the federal court would have reached a different result in a federal prosecution before it on direct appeal.

    The strange thing about this case is that four Justices actually voted for the de facto repeal of the statute in the guise of "interpretation," an interpretation unanimously rejected by the Courts of Appeals.  Even stranger, and more frightening, it appears that up to the last minute Justice Stevens' bizarre opinion had the vote of five Justices and was slated to be the opinion of the Court.  One would normally expect Justice O'Connor's opinion to be the lead opinion of the case, as it is the opinion of the Court on the main point and reaches the result favored by the majority.  Yet Justice Stevens' opinion occupies that position.  Justice O'Connor's opinion uses first-person singular pronouns, which are typically used in concurrences and dissents, not the opinion of the Court.  Justice Stevens' opinion says at one point, "Our disagreement with Justice O'Connor...."  That is majority language; a dissent would typically say, "My disagreement with the Court...."  The fifth vote must have switched very near the end.

    As close as we came to disaster, though, the precedent is now established.  The reform means what its supporters intended it to mean.  If our experience with Teague v. Lane is any guide, the law will be respected and enforced in some courts and shamelessly evaded in others, but on the whole will provide a corrective force to the overreaching of federal judges.

    On the specific case, the Court ruled that the state courts had neither correctly nor reasonably applied the established precedent on ineffective assistance of counsel, Strickland v. Washington, 466 U.S. 668 (1984), and so the case goes back to Virginia for a new sentencing hearing.  The spin doctors crowed that the door to the federal courthouse had not been completely barred.  Sure.  Nobody said it had.  Few ever wanted to.

Michael Williams v. Taylor

    In the Michael Williams case, the Court declined unanimously to overreach in the other direction.  Building on the precedent established in Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), Congress enacted in 28 U.S.C. § 2254(e) that a habeas petitioner who has failed to develop the factual basis of his claim in state court proceedings cannot do so in federal court, except in cases meeting two conditions, essentially both good cause and actual innocence.  The question was whether "failed" means simply did not, or whether it implies some degree of fault on the petitioner's part.  The Court's choice of the latter interpretation was a win for the petitioner in this case, but it did not change the law appreciably from the court of appeals decisions.  If the petitioner had no realistic chance to develop the facts in state court, this subsection is inapplicable.  The case goes back to the district court for an evidentiary hearing.

Slack v. McDaniel

    The third win for an individual murderer came April 26 in Slack v. McDaniel.  This case had many issues and was argued twice in the term.  The issue originally argued was whether, when the first federal petition had been dismissed for failure to exhaust state remedies, a second petition was subject to dismissal under the "successive petition" rule.  The high court said no, overruling a dubious Ninth Circuit precedent on the point.  The more difficult question, considered on reargument, was whether and how to apply the AEDPA's new limits on appeals, 28 U.S.C. § 2253(c), to this case.

    Slack's federal petition had been filed before AEDPA, but the appeal came after.  Taking a chunk out of its disastrous 1997 ruling in Lindh v. Murphy, 521 U.S. 320, the Supreme Court said the new law applies, contrary to the holdings of all but one of the circuits.  This is important in capital cases, because a great many of them were languishing in district courts in April 1996, and all of these will be subject to the new limits.

    The statute requires a certificate of appealability to appeal from denial of habeas relief.  Unlike the old certificate of probable cause, the new certificate is issue-specific.  Again, this is particularly important in capital cases, as it narrows the appeal from the blizzard of frivolous contentions typical in such cases down to the very few that might actually have some merit.  A further interpretational question involved what the petition needs to show to get the certificate when the petition was denied on procedural grounds, without a ruling on the merits of the underlying claim.  The petitioner said he need only show an arguable claim of error on the procedural point, a position adopted by several circuits.  The state boldly claimed that such issues are not appealable at all.  The Court held that he must show arguably correct positions on both the procedural point and the merits.  (On this point, I found myself in the unusual position of having argued, as amicus, a position more favorable to the petitioner than the one adopted by the Court.  I said a decent claim on the merits was enough.)

    The Supreme Court expressed no opinion on whether Slack had any case on the merits, so he goes back to the Ninth Circuit to decide that.  The press painted this case as a great victory for the defense bar.  That brings to mind Pyrrhus's comment, "Another such victory ... and we are undone."

Edwards v. Carpenter

    Not all the murderers prevailed in the Supreme Court.  In Edwards v. Carpenter, decided April 25, the state won a reversal of a Sixth Circuit ruling on procedural default.

    Because the strict doctrine of res judicata does not apply to habeas corpus, it is common for prisoners to make attack after attack on the same judgment, each time thinking up new claims and new arguments.  To avoid endless litigation of every case, most states have "procedural default" rules to the effect that a claim must be raised at the first opportunity:  contemporaneous objection at trial, direct appeal for claims on the trial record, or the first state habeas petition for claims requiring facts outside the record.  Claims made later must typically be accompanied by a showing of good cause for not making the claim earlier.  In federal court, a claim defaulted in state court cannot be considered unless the petitioner shows either cause and prejudice or actual innocence.  The procedural default rule operates in tandem with the exhaustion rule, requiring defendants to fairly and timely present their claims to the state courts first, before turning to the federal courts.  While this rule is often criticized for its complexity, it comes closer to a fair balance between the need to correct real injustices and the need for some kind of finality than any alternative proposed.

    The question presented in this case was the role of ineffective assistance of appellate counsel as "cause" for not raising the claim on appeal.  (The claim was insufficiency of the evidence, an unusual claim for a plea-bargain case.)  However, if Carpenter was going to attack his appellate counsel as inadequate, the time and place to do that was his first state habeas petition, and he did not include any such claim in that petition.  If claims omitted from the appeal could be revived without limit by attacking the performance of appellate counsel, the procedural default and exhaustion rules would cease to perform their function.  In a 7-2 opinion by Justice Scalia, the Court ruled that the usual standard applies to the defaulted ineffective assistance claim, whether it is stated as a free-standing claim or as cause for the prior default.  Carpenter might be able to meet that standard.  The fact he was unrepresented in his first state habeas is surely relevant.  But he has to show a good reason for an exception to the usual rule of finality.


    In federal courts around the country, the prosecution is in a stronger position in May than it was in March.  Don't believe everything you read in the papers.

* Vice-Chairman, e-communications, Federalist Society Criminal Law and Procedure Practice Group; Legal Director, Criminal Justice Legal Foundation


    Criminal Justice Legal Foundation Briefs in Terry Williams and Slack
    Solicitor General's Brief in Slack
    Abstracts of dueling law review articles in Columbia Law Review on § 2254(d), by James Liebman and Kent Scheidegger

28 U.S.C. § 2254(d):

    An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

        (1)  resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

        (2)  resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.;


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