Justices weave intricate web of habeas corpus decisions.

Five years ago, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). (1) At the time, many felt that the bill's title was a misnomer, because the legislation had very little to do with terrorism--other than the fact that the Oklahoma City bombing provided the political cover for the habeas corpus, prison litigation, and immigration restrictions contained in it.

Recent events have demonstrated brutally how little we really knew about terrorism five years ago. Today, as one by-product of the terrible attacks of September 11, we are witnessing a serious debate about the propriety and the wisdom of suspending the writ of habeas corpus. This debate, however, is completely unrelated to the habeas reforms that were enacted as part of the AEDPA.

This is because, in contemporary America, there are two different kinds of habeas corpus. One is the Great Writ, a common law institution dating back to the Magna Carta and guaranteed by Article I of the U.S. Constitution. (2) The Great Writ is based on the fundamental idea that the judiciary should possess the power to control the executive. It allows a person confined before conviction to ask a judge to require the person responsible for the detention to produce the prisoner and explain why he or she has been confined.

The current debate over suspending the writ of habeas corpus centers on the Great Writ. The fear (almost certainly unrealistic) is that suspected terrorists who are detained for some period of time without charges being filed against them might somehow manage to convince a judge to issue a common law writ of habeas corpus, which might permit them to commit further acts of terrorism or flee the country.

But there is also an ongoing effort by the Supreme Court to clarify petitioners' habeas rights--as modified by the AEDPA--under the second type of proceeding. This kind of habeas corpus originated after the Civil War, when the Reconstruction Congress passed the Habeas Corpus Act of 1867. (3)

Unlike the Great Writ, with its basis in separation of powers, the statutory writ of habeas corpus was all about federalism. Congress felt that state courts could not be trusted to protect the federal constitutional rights of all criminal defendants--and it considered the newly freed African-Americans especially vulnerable. The statute was designed to give lower federal courts limited but significant review authority over state courts. (4)

Criminal defendants who were deprived of their constitutional rights in state courts could not turn to the Great Writ for relief, because it was not available to a person who was detained under a facially valid criminal conviction. But the Habeas Corpus Act allowed a person convicted of a crime in state court to request a writ of habeas corpus from a federal court, based on a showing that the person's incarceration violated the U.S. Constitution or federal law.

For almost a century after its enactment, the act had limited practical impact because federal courts generally interpreted it to apply only where a state court lacked jurisdiction to enter a criminal conviction. But in the 1950s and 1960s, the statutory writ of habeas corpus began evolving through several important decisions of the Supreme Court. (5) The writ became an effective tool for enforcing federal constitutional standards in the states by allowing federal courts to determine whether a state criminal prosecution fully complied with the more exacting federal rules of constitutional criminal procedure.

By 1996, Congress was persuaded that statutory habeas had become too readily available to state convicts, especially in death penalty cases. The AEDPA made several important changes to the statutory scheme of the 1867 act:

* It provided a new standard of review, allowing federal courts to issue a writ of habeas corpus only if a state court's adjudication of a federal 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." (6)

* It limited the availability of evidentiary hearings to develop the facts underlying a habeas petitioner's federal claims. (7)

* It required issuance of a "certificate of appealability" before appeal of a lower court's denial of a habeas petition (8) and severely limited the opportunity to file second or successive petitions after the denial of a first petition. (9)

* It imposed a one-year statute of limitations on petitions for a writ of habeas corpus, measured from the day when the conviction becomes final. (10)

Since April 2000, the Supreme Court has handed down six decisions interpreting the AEDPA's new habeas corpus provisions: Terry Williams v. Taylor, (11) Michael Williams v. Taylor, (12) Slack v. McDaniel, (13) Artuz v. Bennett, (14) Duncan v. Walker, (15) and Tyler v. Cain. (16)

Taken together, these decisions reflect the Court's apparent desire to effect Congress's intent: restricting the availability of habeas corpus while still allowing federal courts to provide relief for diligent habeas petitioners who have been unjustly incarcerated. But the Court's attempts to clarify the AEDPA seem only to have led to more complicated habeas jurisprudence.

Standard of review

The most important of the recent decisions is Terry Williams, in which the Court first addressed the AEDPA's new standard of review. Williams had been convicted of robbery and capital murder and sentenced to death in Virginia. In a post-conviction proceeding in state court, Williams claimed that he had been denied the effective assistance of counsel, in violation of the Sixth Amendment.

The state court initially ruled in Williams's favor, but the Virginia Supreme Court reversed. Williams then sought habeas corpus in federal court based on the same Sixth Amendment claim. Like the lower state court, the federal district court ruled in Williams's favor. But the Fourth Circuit reversed, holding that the AEDPA prohibited a grant of habeas relief unless the state courts had ruled on a federal issue "in a manner that reasonable jurists would all agree is unreasonable." (17)

The Supreme Court, in a deeply fragmented decision, ruled that the federal courts should have set aside Williams's conviction. (18) Justice Sandra Day O'Connor wrote the majority opinion on the key standard-of-review issue. She focused on the language of the AEDPA that allows state prisoners to seek federal habeas relief if they can show that the state court's decision is either "contrary to" or "an unreasonable application of" clearly established Supreme Court precedent. (19)

First, O'Connor wrote, a state court decision is "contrary to" Supreme Court precedent if the state court either "applies a rule that contradicts the governing law set forth in our cases" or "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." (20)

Second, a state court decision is an "unreasonable application of' such precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." (21)

O'Connor explained that the Fourth Circuit went too far in Terry Williams when it held that this second component requires a finding that all "reasonable jurists" would have found the state court's decision "unreasonable." At the same time, she stressed that "an unreasonable application of federal law is different from an incorrect application of federal law." (22)

The Court reviewed the facts of the case, including the fact that Williams's lawyer conducted virtually no investigation before the capital sentencing phase of the trial. Based on this review, the Court concluded that the Virginia trial court's finding that Williams had received ineffective assistance of counsel should have been upheld. (23) The Virginia Supreme Court's decision to reverse that finding and affirm Williams's conviction, the Supreme Court concluded, involved an "unreasonable application of" ineffective-assistance law, and Williams was entitled to habeas relief.

The other five recent Court decisions are unlikely to have as much impact on the future of habeas corpus law, but they are nevertheless significant. In Michael Williams v. Taylor, the Court unanimously held that a habeas petitioner's entitlement to an evidentiary hearing, for the purpose of further developing the facts related to a federal constitutional claim, depends on whether he or she was diligent in seeking to develop those facts in the state courts. (24)

In Slack v. McDaniel, the Court ruled on the standard for issuing a "certificate of appealability"--a prerequisite for an appeal under the AEDPA--when a federal district court denies a habeas petition on procedural grounds without reaching the merits. The Court held that a certificate should be issued if the petitioner can show 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." (25)

The Court also held in Slack that dismissing a habeas petition because of the petitioner's failure to exhaust state remedies should not be viewed as the disposition of a "first" habeas petition, for purposes of applying the act's draconian limits on "second or successive" petitions. (26) But in Tyler v. Cain, the Court held that the AEDPA allows a petitioner to obtain review of a "second or successive" petition based on new law only if the Court has specifically held that the new law applies retroactively to habeas cases. (27)

Finally, Artuz v. Bennett and Duncan v. Walker involved two aspects of the same question: What is required to toll the AEDPA's one-year statute of limitations? In Artuz, the habeas petitioner prevailed because he had "properly filed" an application for state post-conviction relief during the one-year limitations period, even though the application may have been procedurally deficient. (28)

But in Duncan, the habeas petitioner lost because he had filed an earlier federal habeas petition. The Court held that the act's one-year statute of limitations is tolled only by filing intervening state proceedings. (29)

Larger questions

In all these cases, the Court has tinkered with interpretations of the AEDPA's language without confronting the larger questions that underlie the existence and scope of the statutory writ itself. These include: Is there still a need for a procedural mechanism that permits lower federal courts to essentially duplicate the work of state courts in deciding federal constitutional questions, and what is the purpose of such review? Should federal courts receiving habeas petitions be limited to reviewing only those cases in which a state prisoner's factual guilt is truly at issue?

What about capital cases? Those on Death Row have little or no incentive to seek speedy resolution of their federal constitutional claims. For such prisoners, delay is almost always a good thing, and they generally seek to draw out the habeas review process for as long as possible. The special concern about delay in capital cases has, unfortunately, often provided a reason for the Court or Congress to limit habeas across the board, leading some to argue that habeas rules should be different for capital and noncapital cases.

Responding to this concern, the AEDPA created special habeas rules for capital cases (30) including shorter time limits for filing petitions (31) and new time limits on rulings made by habeas courts. (32) But these special rules apply only when a state has "opted in" by guaranteeing capital defendants qualified and experienced counsel in all state post-conviction proceedings. (33) So far, no state has been held to qualify for these "opt-in" rules.

These questions have been debated for many years in the legal literature, (34) but the Court shows no indication that it plans to take on such difficult and controversial matters without further word from Congress. What is clear is that habeas corpus law continues to grow ever more arcane. In Edwards v. Carpenter, an April 2000 habeas corpus decision that was based on the AEDPA but did not involve any question of statutory interpretation, Justice Stephen Breyer, writing separately, provided just the right commentary on the current state of habeas corpus law:

   I believe the court of appeals correctly decided the basic question:
   "Whether a federal habeas court is barred from considering an
   ineffective-assistance-of-counsel claim as `cause' for the procedural
   default of another claim when the ineffective-assistance-of-counsel claim
   is itself procedurally defaulted." The question's phrasing itself reveals
   my basic concern.

   Although the question, like the majority's opinion, is written with
   clarity, few lawyers, let alone unrepresented state prisoners, will readily
   understand it. The reason lies in the complexity of this Court's habeas
   corpus jurisprudence--a complexity that in practice can deny the
   fundamental constitutional protection that habeas corpus seeks to assure.
   (35)

In the end, however, Breyer joined the rest of the Court in reversing the grant of habeas corpus relief, even though the petitioner may have done nothing wrong in his efforts to obtain review of his claim. The Court, no less than most habeas petitioners, seems to be trapped in the web of habeas complexity that it helped to create, without any clear sense of how to escape.

Notes

(1.) Pub. L. No. 104-132, 110 Stat. 1214.

(2.) See U.S. CONST., art. I, [section] 9, cl. 2 ("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.").

(3.) Act of Feb. 5, 1867, ch. 28, [section] 1, 14 Stat. 385.

(4.) On federal questions, of course, the U.S. Supreme Court has long had the ability to review, and reverse, decisions made by the state courts. See Act of Sept. 24, 1789, ch. 20, [section] 25, 1 Stat. 73, 85-86 (provision in the First Judiciary Act of 1789, authorizing persons denied relief in the state courts to file writs of error in the U.S. Supreme Court based on claimed violations of the federal Constitution, treaties, or laws).

(5.) Most notable among these were Brown v. Allen, 344 U.S. 443 (1953), which held that prior determinations of federal questions by state courts are not entitled to res judicata effect in a federal habeas corpus action, and Fay v. Noia, 372 U.S. 391 (1963), which held that a state prisoner's failure to present his federal claims properly in state court generally does not bar subsequent federal habeas corpus review of the merits of his claims.

(6.) 28 U.S.C. [section] 2254(d)(1) (1994 & Supp. V 1999).

(7.) Id. [section] 2254(e)(2).

(8.) Id. [section] 2253(c). The "certificate of appealability," which can only be issued by a circuit judge, replaced the former "certificate of probable cause to appeal," which could be issued by the district judge who had denied the habeas petition. See Barefoot v. Estelle, 463 U.S. 880 (1993), for a general discussion of habeas appeals before enactment of the AEDPA.

(9.) 28 U.S.C. [section] 2244(b)(1)-(2) (1994 & Supp. V 1999).

(10.) Id. [section] 2244(d)(1).

(11.) 529 U.S. 362 (2000).

(12.) 529 U.S. 420 (2000).

(13.) 529 U.S. 473 (2000).

(14.) 531 U.S. 4 (2000).

(15.) 121 S. Ct. 2120 (2001).

(16.) 121 S. Ct. 2478 (2001).

(17.) 163 F.3d 860, 865 (4th Cir. 1998) (quoting Green v. French, 143 F.3d 865, 870 (4th Cir. 1998)), stay granted, 526 U.S. 1048 (1999), cert. granted, 526 U.S. 1050 (1999), judgment rev'd, 529 U.S. 362 (2000).

(18.) Justice John Paul Stevens announced the judgment of the Court and wrote an opinion that was joined in full by Justices David Sourer, Ruth Bader Ginsburg, and Stephen Breyer, and in part by Justices Sandra Day O'Connor and Anthony Kennedy. O'Connor wrote an opinion that was joined in full by Kennedy, and in part by Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas. Rehnquist wrote an opinion concurring in part and dissenting in part, which was joined by Scalia and Thomas.

(19.) 529 U.S. 362, 405-10.

(20.) Id. at 405-06.

(21.) Id. at 407-08.

(22.) Id. at 410 (emphasis in original).

(23.) Stevens wrote this portion of the Court's majority opinion. Id. at 390-99.

(24.) 529 U.S. 420, 430-32.

(25.) 529 U.S. 473, 484.

(26.) Id. at 486-88.

(27.) 121 S. Ct. 2478, 2482.

(28.) 531 U.S. 4, 8-9.

(29.) 121 S. Ct. 2120, 2129.

(30.) 28 U.S.C. [subsection] 2261-2266 (Supp. V 1999).

(31.) Id. [section] 2263. Under this provision, a habeas petition generally must be filed within 180 days after the petitioner's conviction becomes final.

(32.) Id. [section] 2266. Under this provision, district courts generally must render a final determination on an application for habeas relief within 180 days of filing of the application.

(33.) Id. [section] 2261.

(34.) See, e.g., Joseph L. Hoffmann & William J. Stuntz, Habeas After the Revolution, 1993 SUP. CT. REV. 65; Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV. 142 (1970); Paul Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441 (1963).

(35.) 529 U.S. 446, 454 (2000) (Breyer, J., concurring).

Joseph L. Hoffmann is Harry Pratter Professor of Law at Indiana University School of Law in Bloomington.