Thomas F. Gede*

New deference standard requires federal courts to respect state court legal and constitutional rulings; Act upheld in U. S. Supreme Court

Following decades of debate and political struggle, the Congress finally passed, and President Clinton signed on April 24, 1996, the most comprehensive and sweeping reform of the federal habeas corpus law since its enactment in 1867, as amended in 1948.(1) The new measure, entitled the Antiterrorism and Effective Death Penalty Act of 1996, includes in Title I of that act habeas corpus reform for both capital and noncapital cases, and statutorily resolves the many unclear standards and confusing rules governing habeas corpus litigation.(2) Shortly after passage, the Act was challenged in an original writ action in the United States Supreme Court, and on June 28, 1996, the Court upheld the constitutionality of several of the key provisions of the Act. Felker v. Turpin, 116 S.Ct. 2333 (1996). Among the most significant reforms in the Act are new, tighter filing deadlines, limitations on successive petitions, restrictions on evidentiary hearings, heightened exhaustion and deference standards and specific capital case standards. Many of these reforms originated with the recommendations of a Judicial Conference committee chaired by former Supreme Court Justice Lewis F. Powell, Jr., which in 1989 concluded that substantial statutory changes were needed in federal habeas corpus law to reduce unnecessary and repetitious litigation.(3) Now, it appears these newly-enacted provisions will significantly empower state and local prosecutors handling habeas matters in the federal courts to defend with greater success state court judgments of conviction, especially in death penalty cases. For those interested in the principles of federalism, the reforms represent a major shift in federal-state judicial relations -- for the first time in decades, the Congress has directed that federal courts generally defer to state court judgments on questions of federal constitutional law in criminal cases.

In particular, the Act provides a new "deference" standard, which mandates that the federal courts, in reviewing state court judgments of convictions, defer to a state court ruling on the merits of any habeas claim (including questions of fact, law, and mixed questions of fact and law), unless the state court adjudication of the claim 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 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.(4)

While the previous habeas statute required that the federal courts accord a presumption of correctness to state court findings of fact,(5) no such presumption was allowed for state court findings of law or for mixed questions of fact and law. Miller v. Fenton, 474 U.S. 104, 116 (1985); Thompson v. Keohane, 116 S.Ct. 457, (1995). The new statutory standard clearly embraces a revised standard of federal court deference to state court findings on all claims, factual, legal or mixed -- the court shall not grant an application for the writ on "any claim that was adjudicated on the merits in State court proceedings," eliminating de novo review of legal and constitutional issues.(6)

Additionally, the Congress adopted a new statutory standard that may bar the filing of second or successive petitions or the granting of evidentiary hearings on new or undeveloped factual claims; the new standard essentially supplants the earlier judicially-fashioned "cause and prejudice" and "miscarriage of justice"(7) standards and is akin to the "actual innocence" standard that the Supreme Court applied to capital habeas cases in Sawyer v. Whitley, 112 S.Ct. 2514, 2517 (1992).(8) In addition to demonstrating that the factual predicate for the new claim could not have been discovered previously through the exercise of due diligence, a petitioner must demonstrate that the facts underlying the claim, if proven, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. These new standards, at a minimum, reflect, and are likely more rigorous than, the U.S. Supreme Court's habeas rules in capital cases. However, they now apply equally to all habeas cases, capital and non-capital. Additional provisions of the Act are described below.

The Act was challenged soon after passage in an original petition filed in the U.S. Supreme Court in Felker v. Turpin, No. 95-8836, handled on an expedited basis. The petitioner raised the question whether the Act , and in particular, the provision that bars a petition for writ of certiorari from a grant or denial of an application for a successive habeas corpus petition, was a constitutional restriction on the Supreme Court's jurisdiction. Also at issue was whether the Act's limitations on federal review of successive habeas petitions violated the Suspension Clause in Article I, sec. 9, of the Constitution, which provides 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." A unanimous Court, however, held that the new restrictions on successive petitions did not violate the Clause, as they merely constituted a modified rule of res judicata, a restraint on what is called "abuse of the writ." That doctrine generally disallows successive, repetitious or unfounded writs of habeas corpus as imposing an unnecessary burden on the courts.(9)

While the State of Georgia, represented by Senior Assistant Attorney General Susan V. Boleyn, supported by thirty-two States in a multi-State amicus brief and by the Criminal Justice Legal Foundation, argued to the Court that the Clause refers only to the common law writ of habeas corpus as it existed at the time the Constitution was ratified, and not to the post-conviction review of state prisoners subsequently permitted by the statutory writ, the Court nonetheless assumed, "for the 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." 116 S.Ct. at 2340. While the States were disappointed by the "assumption" for purposes of discussion, the Court reached a result which upheld the restrictions of the Act on successive petitions as "well within the compass of [the] evolutionary process [of the abuse of the writ doctrine], . . ." The Felker Court also concluded that, while the Act restricted the Court's jurisdiction to review by appeal or certiorari certain claims, as discussed above, the Act did not repeal the Court's authority to entertain an original habeas petition; thus, it held, the Act did not completely deprive the Court of appellate jurisdiction in violation of Article III, sec. 2. Of course, the Court also denied Felker's original petition for habeas corpus, finding no "exceptional circumstances" for the relief requested. 116 S.Ct. at 2341. The upholding of the Act on the first major challenge to its constitutionality is viewed as a portent of the Act's long-term viability and strength. Some of the key provisions:

Non-Capital Reform

The principal standards apply to non-capital as well as capital cases. Landgraf v. SFI Film Products, 114 S.Ct. 1483, 1505 (1994), requires consideration of each provision of the statute to determine whether it is substantive or procedural for purposes of retroactive or prospective application, but it is likely the habeas reform provisions, all of which are procedural in nature, should apply to all pending habeas corpus cases.

Filing Deadline - New § 2254(d)

The Act provides for a one-year filing deadline for non-capital habeas corpus petitions. The time starts running at the conclusion of direct review or expiration of time for seeking such review.(10)

Certificate of Appealability - Amended § 2253

The Act requires a certificate of appealability from a circuit judge or justice before a petitioner may appeal from denial of relief. The petitioner must make a substantial showing of denial of a constitutional right and the certificate must be issue specific.

Exhaustion - Amended § 2254(b)

A new feature in habeas law is that a federal court now may deny relief with respect to unexhausted claims but may not grant relief if the claim is unexhausted. The petitioner can avoid exhaustion only if there is no available state remedy or the remedy is ineffective to protect the petitioner's rights. If there is no state remedy because of a procedural default, standard default doctrine would still prohibit federal review.

Determination of Claims - New § 2254(d)

As discussed above, a federal habeas court may not grant relief for any claim adjudicated on the merits by a state court unless the state decision was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, or the state court's determination of facts was unreasonable in light of the evidence.

Evidentiary Hearings - Amended § 2254(e) [formerly §2254(d)]

The Act imposes substantial new restrictions on the ability of a petitioner to obtain an evidentiary hearing on a claim where he failed to develop the factual basis. (Completely new claims are barred by exhaustion; old claims are barred from re-litigation.) State court fact findings are still presumed to be correct; the petitioner must rebut the presumption by clear and convincing evidence. To obtain an evidentiary hearing, the petitioner must show that the claim relies on a new rule made retroactive by the Supreme Court(11) or that the factual predicate could not have been discovered earlier through due diligence. In addition, in all cases, the petitioner must show by clear and convincing evidence that but for the alleged error for which a hearing is sought, no reasonable factfinder would have found petitioner guilty of the underlying offense.

Successive petitions - Amended § 2244(b)

A successive habeas petition may not be filed in district court unless the petitioner is authorized to do so by a three-judge panel of the Court of Appeals -- what the Supreme Court in Felker described as a "gatekeeping" mechanism. 116 S.Ct. at 2339. If the petitioner makes a prima facie showing that he satisfies the exceptions against successive petitions he may proceed, although the district court must dismiss such claims if petitioner fails to prove that he meets the exceptions. If a successive claim was presented in a prior petition, it shall be dismissed; no exceptions are authorized by the Act. If the successive claim was not presented earlier it shall be dismissed unless the petitioner relies on a retroactive rule under Teague v. Lane, as described above, or the facts could not have been discovered earlier through due diligence, and, in all cases, the claim, if proven, would establish by clear and convincing evidence that but for the error no reasonable factfinder would have found the petitioner guilty of the underlying offense.

Capital Reform and Procedures

The Act provides in a new § 2261 that certain additional reforms apply to capital cases pending on or after the date of enactment. Of course, all of the above provisions on appealability, deference to state court findings, evidentiary hearings, and successive petitions apply to capital cases the same as non-capital cases. An additional set of rules is available in capital cases for states which establish certain standards for competence of counsel. In new §§ 2261 & 2265, additional limitations for capital habeas petitions apply only if the state has established by statute, rule of court, or other appropriate state action, a mechanism for appointment and compensation of competent counsel in state post-conviction proceedings [2261] or for appointment of counsel to handle the appeal and post-conviction remedies in a unitary proceeding [2265]. This is not the strict "opt-in" proposal seen in earlier bills in the Congress, but simply looks to whether present mechanisms suffice.

Once an appointment of counsel has been made by the state court in compliance with §2261 or §2265, a federal court which would have jurisdiction over the case may enter a stay of execution. The stay expires if a timely petition is not filed; if the prisoner properly waives his right to pursue federal habeas; or if relief is denied at any stage of federal review. Once a stay vacates under any of those circumstances, a new stay may not be entered unless a successive petition is authorized under the provisions of § 2244. What is significant in this reform is the limitation on subsequent stays.

Under a new § 2263, petitions in capital cases (where the state has satisfied the counsel appointment requirements) must be filed within 180 days after final state court affirmance on direct review. The time limit is tolled from the filing of a certiorari petition until its final disposition; during the pendency of a first state petition for collateral review until its final disposition; and for an additional 30 days upon a showing of good cause. Because it refers specifically to certiorari proceedings as tolling the time limit, the capital deadline period starts upon issuance of the remittitur or similar device by the state's highest court rather than denial of certiorari as in non-capital cases. Any delay between the end of the state appeal and the filing of the certiorari petition counts against the 180 day time limit unless a state habeas petition is still pending in the state court. Only the period when the first petition is under consideration will toll the time limits.

The capital provisions vary somewhat from the non-capital provisions on consideration by the federal court of unexhausted claims. A new § 2264 provides that the federal court in a capital habeas proceeding shall only consider claims that were raised and decided on the merits in state court unless the petitioner demonstrates that his failure to exhaust was the result of unconstitutional state action; he is seeking application of a retroactive new rule; or the facts could not have been discovered through the exercise of due diligence in time to present them for state review. This section allows a state prisoner who did not exhaust and can make the requisite showing to justify his failure to proceed with the claims in federal court without first presenting the claim to the state courts. The showing required by § 2264(a)(3) is in effect a cause requirement similar to one relating to procedural defaults and requires a strong justification. If the petitioner succeeds in making the showing, however, he would still have to comply with the provisions of § 2254(e) in order to obtain an evidentiary hearing after failing to make the factual showing in state court. Moreover, a petitioner in a capital case could only benefit from this provision if he concedes or the court finds that the all of the capital habeas provisions apply. If considered under the general habeas provisions, the unexhausted claims can be denied, but cannot be granted unless the state expressly waives exhaustion.

New § 2264(b) expressly states that the district court shall resolve the petition by reference to §§ 2254(a) (petitioner must be in state custody); 2254(d) (new deference standard); and 2254(e) (new evidentiary hearing rules). The court is limited to consideration of claims that are properly before it. This should preclude consideration of procedurally defaulted claims.

Finally, under a new § 2266, the Act requires that capital habeas cases be given priority over all noncapital matters, and imposes express time limits on resolution, including (1) decision by the district court 180 days after the petition is filed, subject to the requirement that the parties must be allowed at least 120 days to complete all pleadings and if necessary to conduct an evidentiary hearing; (2) the district court may extend its time by no more than 30 days but state its reasons for doing so in writing and must submit that order to the Administrative Office of the Courts; (3) and failure by the district court to act within the time limits may be enforced by a petition for writ of mandate. Most significantly, a court of appeals must decide the case within 120 days after the reply brief is filed; any petition for rehearing must be decided within 30 after the petition is filed or 30 days after any requested responsive pleading is filed, and if rehearing or rehearing en banc is granted the case must be decided within 120 days after the order granting such rehearing. Additionally, new § 2266(b)(2) provides that the time limits are applicable to all first petitions, successive petitions, and habeas cases considered on remand from the Court of Appeals or the Supreme Court. Once an answer has been filed to the petition, § 2266(b)(3)(B) prohibits any amendment unless the petitioner complies with the grounds for successive petitions in § 2244(b).

The above capital case provisions should significantly improve the progress which state and local prosecutors seek in proceeding to the execution of judgments of convictions. Numerous of the provisions will be tested in different applications, particularly those that establish timeliness for the parties and the courts. The time limits on the courts are, in many cases, unprecedented and dramatic. Seen overall, the Antiterrorism and Effective Death Penalty Act of 1996 will undoubtedly rank as one of the most significant federal criminal law enactments of the Twentieth Century and one in which the Congress has promoted the principles of federalism and notions of comity as significantly as any decision of the United States Supreme Court.

*Thomas F. Gede served as President, Federalist Society of Sacramento, 1993-1996; appointed Special Assistant Attorney General by California Attorney General Daniel E. Lungren, 1991-present. The views expressed in this article do not necessarily reflect the views of the Attorney General of California or the California Department of Justice.

1. Act of Feb. 5, 1867, ch. 28, 14 Stat. 385 (made writ of habeas corpus generally available in "all cases where any person may be restrained of his or her liberty in violation of the constitution"); Act of June 25, 1948, ch. 646, 62 Stat. 967 (provided existing statutory framework at §§ 2241-2255 of Title 28 of United States Code; included in newly-enacted sec. 2254 the requirement that applicant exhaust remedies in state court; see Reviser's Notes to 1948 amendments; also United States v. Hayman, 342 U.S. 205, 210-16 (1952).)
2. See Joseph M. Ditkoff, Recent Development, The Ever More Complicated "Actual Innocence" Gateway to Habeas Review: Schlup v. Delo, 18 Harv. J.L. & Pub Pol'y 889, 903 (1995) (habeas review of capital cases "confusing and inequitable").
3. Judicial Conference of the United States, Report and Proposal of the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases (Aug. 23, 1989)["Powell Committee Report"]. See also Statement of Daniel E. Lungren, Attorney General of California, before the Committee on the Judiciary, United States Senate, Concerning Habeas Corpus Reform, May 7, 1991.
4. Sec. 104 of the Act; new 28 U.S.C. § 2254(d)(1), (2).
5. Previous 28 U.S.C. sec. 2254(d); added in Act of Nov. 2, 1966, Pub. L. 89-711, 80 Stat. 1105-1106; see Thompson v. Keohane, ___ U.S. ___, 64 U.S.L.W. 4026, 4030 (Nov. 29, 1995), noting that the statutory presumption followed the standards outlined in Townsend v. Sain, 372 U.S. 293 (1963), for determining when the court must hold an evidentiary hearing before acting on a habeas petition.)
6. The general rule of de novo review of legal and constitutional questions was accepted in Brown v. Allen, 344 U.S. 443, 458 (1953), and Fay v. Noia, 372 U.S. 391, 422-424 (1963) ("notions of finality" cannot defeat "fullest opportunity for plenary federal judicial review"), the only exception later found in Stone v. Powell, 428 U.S. 465 (1976), for exclusionary rule claims following "full and fair" opportunity to litigate the claims in state court.
7. For "cause and prejudice" standard, see Wainwright v. Sykes, 433 U.S. 72, 87 (1977); for what is necessary to overcome: (1) successive petitions, Kuhlmann v. Wilson, 477 U.S. 436 (1986); (2) new claims ("abuse of the writ"), McCleskey v. Zant, 499 U.S. ___, 111 S.Ct. 1454 (1991); and (3) procedurally defaulted claims, Murray v. Carrier, 477 U.S. 478 (1986).
8. Unlike the new statute, the Court in Sawyer v. Whitley allowed the inquiry of a petitioner's death-eligibility, wholly apart from the question of guilt of the underlying crime, and held that to demonstrate "actual innocence," a petitioner "must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty . . ." See also Schlup v. Delo, 115 S. Ct. 851 (1995) ("in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt"); Herrera v. Collins, 113 S.Ct. 853 (1993) (whether petitioner is "unquestionably . . . innocent"); Keeney v. Tamayo-Reyes, 112 S. Ct. 1715, 1721 (1991) (excusing failure to develop claim in state court proceedings and permitting evidentiary hearing if would result in miscarriage of justice); Murray v. Carrier, 477 U.S. 478,, 496 (1986) (writ may be granted where constitutional violation resulted in conviction of one who is actually innocent).
9. The Felker Court quoted from McClesky v. Zant, 499 U.S. 467 (1991): ". . . the doctrine of the abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions." Id. at 489. While early cases defined the scope of the doctrine, see Salinger v. Loisel, 265 U.S. 224 (1924) and Wong Doo v. United States, 265 U.S. 239 (1924), Congress expressly provided in 28 U.S.C. § 2244(b) that federal habeas claims previously adjudicated by a federal court, or which appear to have been deliberately withheld on an earlier application, need not be entertained. See also Rules Governing Section 2254 Cases, Rule 9(b).
10. Direct review is generally viewed by federal courts as including certiorari, thus, the one year period begins upon denial of certiorari, affirmance by the U.S. Supreme Court, or expiration of the time to seek certiorari. See Penry v. Lynaugh, 492 U.S. 302, 314 (1989).
11. The new provision preserves the rule in Teague v. Lane, 489 U.S. 288 (1989), that newly-articulated rules of procedure do not apply retroactively except: (1) where it concerns an act that cannot be made criminal; or (2) for "watershed rules of fundamental fairness" going to the "bedrock procedural elements essential to the fairness of a proceeding." See Sawyer v. Smith, 497 U.S. 227, 242 (1990). The new Act, however, limits such retroactive applications to those qualifying rules articulated only by the U.S. Supreme Court, and thus, not to those made retroactive by a circuit or district court.