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Is guilt dispositive? Federal habeas after Martinez.


    A. A Brief History of Modern Habeas, 1789-1970
    B. An (Un)-Friendly Response to the Expanding
       Reach of the Writ
II. The Innocence Revolution: Guilt as Dispositive
    A. A Focus on Guilt Rather Than Innocence
    B. Modern Habeas and the Role of Guilt
       1. Substantive Doctrines That Focus on Guilt
          a. Strickland and Brady Claims
          b. Harmless Error
          c. AEDPA Deference Disadvantages the Guilty
       2. Procedures That Focus on Guilt
          a. The Stone v. Powell Limit
          b. The Teague Limit
          c. Successive Petitions Limit
          d. Limited Factual Development Under
             [section] 2254(e)(2)
          e. Procedural Default
          f. The AEDPA Statute of Limitations
          g. Habeas Relief Based on Non-Constitutional
       3. Distorting Doctrine to Prioritize Guilt
    A. Academic Projects Identifying Habeas as a Procedural
    B. The Procedural Trilogy: Holland-Maples-Martinez
       and the Judicial Recognition of a Right to One
       Full and Fair Review of All Claims
       1. Holland v. Florida
       2. Maples v. Thomas
       3. Martinez v. Ryan
    C. The End of Innocence: Seeing the Scholarly
       Influence in Modern Habeas
IV. Reading the Tea Leaves: Gauging the Import of the
    Martinez Line of Cases
    A. The Possibility of Raising the Claim on
       Direct Appeal
    B. Right to Trial Counsel as a Unique Protection for
       the Innocent
    C. The Limits of [section] 2254(e)(2) on Factual Development
    D. The Federal Statute of Limitations


The conventional wisdom is that federal habeas is a meager shadow of its former self. (1) The once "Great Writ," (2) it seems, has become emaciated by unforgiving procedural rules and one of the most deferential substantive standards of review known to law. (3) Federal review is inhospitable to relief and ever more focused on the actual innocence of the defendant. The answer to the most famous question about federal habeas corpus--"Is innocence irrelevant?" (4)--then, increasingly seems to be no. Indeed, one might fairly assert that, in light of modern statutory and case law developments, guilt and innocence have become the central considerations--that is, guilt is dispositive such that procedural vindication in the absence of a claim of innocence is rare to the point of near impossibility. The Supreme Court's recent abandonment of the habeas statute of limitations in the face of a colorable claim of innocence is illustrative. (5)

Perhaps, however, a shift is afoot. In just the last couple of terms, the Court's jurisprudence has reflected a newfound interest in permitting federal habeas to play the role of ensuring a full and fair state court process. (6) Although it is far too early to make concrete predictions, some of the habeas scholars who have advocated a process-based orientation for federal review have seen signs of such theories being vindicated in habeas doctrine. Recent cases provide support for the view that federal habeas must, at the very least, play an active role in policing the procedures of state appellate and postconviction review. There is, in short, a resurgence of optimism in a legal-process view of habeas corpus. This Article maps the ebbs and flows of guilt-centered adjudications in federal habeas for the last century and is the first to examine in detail the scope of this new, process-oriented habeas optimism by considering the promises and limits of recent doctrinal shifts. A new era of federal habeas review--one that is concerned with process and not just guilt--is not inconceivable.

Part I revisits the details of Judge Friendly's half-century-old critique of expansive federal habeas. In particular, I explore the context for his assertion that a colorable claim of innocence should generally be required for a federal court to ignore the limits of finality and set aside a state conviction. (7)

Part II advances an initial thesis, namely, that in the years since Friendly's article, federal habeas has undergone an about-face such that in the absence of a showing of innocence, relief is almost always denied on federal habeas review. Questions of guilt are no longer irrelevant; they are oftentimes controlling. (8) Indeed, doctrines are altered and distorted in order to reflect the judicial preoccupation with innocence. This claim is developed and defended by surveying a wide range of habeas procedural rules, as well as the mechanics for litigating certain substantive claims.

Parts III and IV pose the question of how much optimism is warranted in the wake of cases like Martinez and Maples. Are these cases fool's gold, unlikely to impact the day-to-day litigation of postconviction claims? Or, as we approach the golden anniversary of Friendly's article, might there be room for renewed optimism about federal habeas litigation that is untethered from strong showings of innocence? The answer to this question turns on a concrete assessment of the limitations imposed by these cases, either by their plain text or by reference to the greater habeas common law, and an assessment of how these cases have been applied in the lower federal courts. In the end, the numerous procedural questions surrounding the eventual application of recent decisions make it impossible to predict precisely how far-reaching the shift in the habeas landscape will be; however, unlike other scholarly works, this Article predicts that the emphasis on fair state court procedures represents the most monumental, prodefendant shift in habeas law in at least forty years.

This Article provides an explicitly descriptive and predictive account of modern habeas review. The first half of the paper summarizes the innocence focus of modern habeas prior to Martinez v. Ryan, and the latter half explores the likely and probable shifts in federal habeas in a post-Martinez world. More specifically, for decades, the guilt of the defendant has been a dispositive barrier to habeas relief. (9) But a change appears to be afoot. Scholars and the Supreme Court itself seem to recognize a role for federal habeas in policing the adequacy of state appellate and postconviction procedures. At least in certain circumstances, federal habeas review must be permitted even if the defendant is patently guilty. This shift is consistent with a normative vision of habeas that scholars, including myself, have advocated for over the past decade.


This Article focuses primarily on the contrast between the post-Warren Court innocence era and the rise of a potential post-Martinez process era. To provide some necessary context, however, a brief overview of the pre-Warren Court habeas history is necessary.

A. A Brief History of Modern Habeas, 1789-1970

Any attempt to distill doctrine is prone to oversimplification, if not outright misinterpretation. (10) This rule applies with more force than usual in the realm of habeas corpus because even the most respected scholars have disagreed and continue to disagree about the history of federal oversight of state convictions. There is disagreement about the basic purpose and origins of the writ all the way through to the meaning of the modern habeas reforms of the Antiterrorism and Effective Death Penalty Act (AEDPA), and everything in-between.

The controversy begins with the constitutional standing of habeas corpus. The Constitution, by its plain terms in the "Suspension Clause," does not provide an affirmative right to habeas corpus, but rather creates a general prohibition on the writ's suspension. (11) This has given rise to an ongoing debate over whether the Constitution provides an affirmative right to habeas review, and if so, whether that right applies to prevent Congress from depriving federal prisoners, state prisoners, or both of the right to federal court oversight of their convictions. (12) And this disagreement about what the Suspension Clause means spills over into debates about what the Judiciary Act of 1789 (the Act) means. The conventional reading of the Act is that it "provided federal courts the authority to grant habeas corpus to federal prisoners." (13) But one of the most distinguished habeas scholars and historians, Eric Freedman, concluded based on archival research that "ever since the government began to function, the federal courts have had the power, both by federal statute and independently of it, to issue writs of habeas corpus in order to free state prisoners held in violation of federal law." (14) This is no mere idle conclusion insofar as it speaks to the original meaning of the Constitution and habeas corpus. (15)

Despite confusion and disagreement regarding the statutory and constitutional origins of habeas corpus in the United States, one might reasonably assume that with the Reconstruction Era enactment of the Habeas Corpus Act of 1867 (Act of 1867), (16) federal courts and scholars would, at least as of this date, achieve consensus regarding the scope and nature of appropriate federal oversight. Such an assumption has proven misplaced. (17) Indeed, some of the most famous debates about the nature of federal habeas jurisdiction arose out of the Act of 1867. For example, Paul Bator famously argued for a very limited form of federal habeas review by reasoning that the Act of 1867 only permitted habeas relief when a state conviction was entered without jurisdiction. (18) Judge Friendly applauded Bator's insights, calling them "brilliant and suggestive." (19) By contrast, Gary Peller argued that the legislative history as well as the lessons of the Reconstruction Era dictated that nearly unlimited federal review of state convictions was essential to a properly functioning constitutional democracy and anticipated by the Act of 1867. (20)

This fundamental disagreement between Peller and Bator undergirds much of the modern habeas debate. Those who view the Warren Court as having fundamentally expanded the reach of the writ like Bator and soon thereafter, Judge Friendly--see themselves as simply advocating for a return to the legislatively and constitutionally intended scope of federal habeas review. By contrast, those who do not perceive any fundamental shift in the scope of habeas review during the Warren era find the call to narrow the writ's reach perplexing. Illustrative of this tension, one set of commentators frequently describes the Warren Court as having supplanted legislative discretion on the issue by drastically expanding the reach of federal habeas review, often citing Brown v. Allen for this point. (21) For example, Nancy King and Joseph Hoffmann have concluded that the Court dramatically "expand[ed] the availability and scope of federal habeas review." (22) Others, however, have essentially said that the Warren Court generally, and the Brown decision in particular, broke no new ground in federal habeas and attribute this false history to the prominence of Paul Bator's academic writing. (23) Eric Freedman, for example, has described the Warren Court's habeas revolution as the revolution that was not, explaining, in part, that:
   None of the developments, judicial or legislative, that followed
   upon the release of the [Brown] decision support the view that it
   significantly re-shaped the legal landscape. Nor did any of the
   contemporary antagonists over the appropriate scope of habeas
   corpus view it as having done so. Prior to the appearance of
   Bator's article, Brown was just another, not particularly
   prominent, episode in an ongoing contest that had begun long before
   and continues to this day. Indeed, to the extent it had any
   immediate impact at all, Brown seems to have increased the rate at
   which federal habeas corpus petitions by state prisoners were
   summarily denied. (24)

Likewise, some have explained that the Warren era did not effect a material expansion of federal habeas oversight, but rather its decisions were substantially in accord with the Suspension Clause and the Act of 1867. (25)

So, it is fair to say there is no consensus about whether or exactly how much the Warren Court expanded the scope of federal habeas review. Nonetheless, appearances often shape judicial reality. The conventional wisdom, even according to leading treatises, is that it was not until the Warren era that the "scope of habeas corpus began to change dramatically" such that the availability of habeas corpus was "greatly liberalized." (26) Whether this perception is historically accurate or not, (27) there is no question that it spurred calls for reform that have had a dramatic impact on federal habeas litigation and scholarship. Judge Friendly's famous article is an important piece of this historical legacy.

B. An (Un)-Friendly Response to the Expanding Reach of the Writ

There is no question as to which side of the habeas debate Judge Henry Friendly fell. In 1970 Judge Friendly delivered a speech and published an article by the same title criticizing what he perceived to be the unprincipled expansion of federal habeas review under the Warren Court. (28) In Friendly's telling of the habeas history, the writ "initially serving a felt need has expanded bit by bit, without much thought being given to any single step, until it ... assumed an aspect so different from its origin as to demand reappraisal." (29)

Specifically, Friendly lamented the fact that federal habeas relief was often granted without any concern for whether the prisoner was actually guilty of the offense--that is, Friendly objected to an era of habeas review in which, in his view, innocence had become irrelevant. (30) Friendly began his presentation of this issue by quoting a dissent from Justice Black: "In collateral attacks ... I would always require that the convicted defendant raise the kind of constitutional claim that casts some shadow of a doubt on his guilt." (31) To Friendly, it was utterly "incredibl[e] [that] these statements were made in dissent" rather than as a statement of law. (32) And "[e]ven more incredibl[e]," according to Friendly, was the fact that other dissenting Justices had even expressed qualms with the harshness of Black's proposal. (33) The noncentral role that innocence played in habeas review was a major failing of the federal system in Friendly's view. (34)

To remedy what he saw as the dramatic expansion of federal habeas review under the Warren Court, Friendly recommended that, as a general matter, federal habeas review should be barred unless the prisoner could make a colorable showing of innocence. (35) Framing his argument, Judge Friendly explained:
   The proverbial man from Mars would surely think we must consider
   our system of criminal justice terribly bad if we are willing to
   tolerate such efforts at undoing judgments of conviction. He would
   be surprised, I should suppose, to be told both that it never was
   really bad and that it has been steadily improving, particularly
   because of the Supreme Court's decision that an accused, whatever
   his financial means, is entitled to the assistance of counsel at
   every critical stage. His astonishment would grow when we told him
   that the one thing almost never suggested on collateral attack is
   that the prisoner was innocent of the crime. (36)

To be sure, Friendly was not only concerned with innocence. He recognized, for example, that state procedures must be sufficiently fair as to warrant nonintervention by the federal courts. (37) But his driving concern was what he perceived to be the Warren Court's expansion of habeas remedies for the guilty. As Friendly put it, "I perceive no general principle mandating a second round of attacks simply because the alleged error is a 'constitutional' one." (38) Because the scope of the Bill of Rights was expanded in the 1960s, Friendly, quite simply, found nothing particularly unique or deserving of additional process about an allegation of constitutional error. (39) Any "resourceful defense lawyer," he quipped, can frame defects in the trial as "constitutional" error. (40) The very label "constitutional error," then, was viewed as carrying "a connotation of outrage ... which is wholly misplaced." (41)

In short, Friendly argued for a system of federal habeas review in which, absent a few very limited circumstances such as unfair (42) or nonexistent state court review process, federal oversight is only permitted upon a showing of innocence. (43) The common, if reductionist, understanding of Friendly's thesis, then, is that innocence is an essential "precondition for federal habeas relief." (44) Such a proposal was said to be needed to "prevent abuse by prisoners [and] a waste of the precious and limited resources available for the criminal process." (45)

History has been kind to Friendly's proposals. (46) Judge Friendly's call for greater focus on innocence and finality achieved substantial success. (47) First, federal habeas review, particularly after the enactment of the AEDPA, (48) is considerably less hospitable to any federal judgments that would disturb the federalism concerns and finality of a state conviction. (49) Moreover, it is widely recognized that in recent years there is a growing concern with the innocence of the petitioner. For example, Jordan Steiker observed that the Court's habeas jurisprudence has increasingly and "repeatedly emphasized that the availability of habeas relief should depend in large measure on whether the petitioner is factually innocent." (50) Others have echoed this sentiment, noting that "[i]nnocence is now unquestionably relevant to federal habeas corpus review." (51) Another scholar explained, "As if in answer to Judge Friendly's original query, ... the Court shift[ed] the pith of the habeas inquiry from procedural demands for fairness to substantive claims of innocence." (52)

The following Part elaborates on the growing number of procedural and substantive barriers to habeas relief that are predicated on a desire to ensure that the guilty do not have access to federal habeas relief. (53)


The state of postconviction law in 1970 compelled Judge Friendly to ask whether innocence had become irrelevant to federal habeas. Today it is much more salient to consider the extent to which guilt has become dispositive. This Part examines the development of a federal habeas jurisprudence that drastically disadvantages guilty defendants. Specifically, it examines changes in both procedural and substantive habeas law that prioritize a showing of innocence (or likely innocence) over a vindication of constitutional rights. (54) Despite the fact that several of the Supreme Court's decisions tend to reject a direct link between innocence and habeas relief, (55) the connection between the accuracy of the trial result and the availability of federal habeas relief is, at this point in history, beyond peradventure for many aspects of habeas litigation.

As an initial matter, however, it is necessary to explain that the shift toward a more guilt-centered model does not reflect a corresponding maturation in the postconviction procedures for vindicating innocence claims. The focus is on denying relief to the guilty, not on providing relief to the innocent. (56)

A. A Focus on Guilt Rather Than Innocence

Although this Article identifies a dramatic reorientation of federal habeas--from the arguably freewheeling 1960s to the guilt focus of the modern era--it is important to distinguish between a guilt-centered and an innocence-centered model of habeas. Modern habeas is preoccupied with the former. Guilt has become a defining feature in denying federal habeas relief to prisoners, but a showing of innocence is, in many instances, still irrelevant to the likelihood of relief. (57) Stephen Bright, for example, has documented how modern procedures have resulted in numerous innocent persons being convicted, and even sentenced to death. (58)

Moreover, leading habeas scholar Brandon Garrett has responded forcefully to the idea that innocence has assumed the cherished role anticipated by Judge Friendly:
   In his influential 1970 article, Judge Henry Friendly provocatively
   asked why innocence is irrelevant to federal habeas corpus review.
   Judge Friendly proposed that innocence should provide a ground for
   relief from a criminal conviction, but his call went unheeded,
   perhaps because at that time innocence could rarely be proven with
   any certainty.... Claims asserting the existence of new evidence of
   innocence were considered fundamentally equivocal, and, as a
   result, states imposed strict rules of finality, barring claims
   brought after limitation periods expired. Thus, in the decades
   since Judge Friendly first asked whether innocence should be
   relevant to criminal appeals, the Supreme Court has repeatedly
   declined to recognize a constitutional claim of innocence ... [And
   even with the advent of DNA evidence], the Court narrowly failed to
   recognize a constitutional innocence claim. (59)

As Garrett points out, Friendly argued that "there should be an exception to the concept of finality when a prisoner can make a colorable claim of actual innocence." (60) However, modern federal habeas law does not afford a critical role for innocence. (61) For example, commentators have observed that the Court "has not explicitly ruled that freestanding innocence claims are grounded in the Constitution." (62) Other commentators and judges have concluded that even if there is an actual innocence claim in the death penalty context, in noncapital cases there is no reason to assume that a claim of freestanding innocence has any constitutional grounding. (63) For its part, the Supreme Court has blithely stated that "[f]ew rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence." (64)

Thus, the law has developed such that guilt plays a critical role in barring access to relief, as discussed immediately below, and yet litigating claims of innocence remains disfavored and nearly impossible. (65) That is to say, innocence is still irrelevant as a vehicle for obtaining relief, but guilt is often determinative in a denial of relief.

B. Modern Habeas and the Role of Guilt

In a sense, one could imagine Judge Friendly would be both satisfied and dismayed with the current habeas system. On the one hand, it might strike him as unsettling that a colorable claim of innocence still does not justify habeas relief, and he would no doubt find it surprising that the Court has held that there is not even a right to test DNA evidence to prove one's innocence. (66) But on the other hand, Friendly was not an innocence crusader; (67) he wanted federal relief to be much rarer, and in this regard he would find much to his liking in the modern reforms. (68) Although innocence remains an unlikely basis for obtaining relief, patent guilt has emerged as a leading barrier to federal relief. This Section examines the range of ways in which guilt has become dispositive as to whether one is entitled to relief. Through a combination of subtle and explicit doctrinal developments, guilt has been incorporated as a threshold question of habeas eligibility in a variety of substantive and procedural areas of law.

1. Substantive Doctrines That Focus on Guilt

Whatever one may think about the rise of innocence-related requirements in the context of procedural law, there is nothing obvious about the link between questions of guilt and the merits of a constitutional question. (69) The Supreme Court itself has previously explained that the vindication of a habeas claim ought to be permitted "regardless of the ... apparent guilt of the offender." (70) In recent decades, however, the prominence of the guilt-as-disqualifying-for-relief approach has become increasingly entrenched. (71)

a. Strickland and Brady Claims

Two of the most commonly raised claims by prisoners seeking federal habeas relief are Sixth Amendment claims pursuant to Strickland v. Washington and due process claims based on Brady v. Maryland. (72) The litigation of these claims is substantially intermingled with an assessment of how likely it is that the defendant is actually guilty. Indeed, a primary defense by a State to a claim of injury under these two lines of cases is to argue that, even assuming the prisoner's allegations are true, he is not entitled to relief because the evidence of guilt is "overwhelming."

Consider first the familiar Sixth Amendment test for assessing ineffective assistance of counsel under Strickland v. Washington. (73) First, there must be a showing that the attorney's conduct fell below a standard of reasonable professional conduct. (74) Second, the petitioner must show that he suffered actual prejudice as a result of the ineffective assistance of counsel. (75) To demonstrate prejudice he must show more than that "errors had some conceivable effect on the outcome of [the] proceeding[s]," and instead must make an affirmative showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." (76) Or, as the Court put it: "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (77) Stated more directly, Strickland's prejudice requirement typically requires that a prisoner present a colorable challenge to the evidence of guilt that resulted in his conviction; no matter how egregious the attorney's conduct, the prisoner is only entitled to relief if there is evidence "sufficient to undermine confidence in the outcome." (78) And, significantly, the prejudice determination is actually part of the right--that is, the Constitution itself is understood to require a showing of prejudice.

The effect of the prejudice prong, then, is to insulate attorney errors from constitutional scrutiny in precisely those cases in which a strong defense might be most important, when the prosecution has a strong case. (79) The examples of attorney errors that have been forgiven under this constitutional standard because the trial record as a whole provided overwhelming evidence of guilt are vast in number and staggering in scope. (80) Illustrative is Earl Washington's case. (81) Washington's lawyer failed to introduce evidence of exculpatory semen stains, but in light of Washington's own confessions, the Fourth Circuit found that the overwhelming evidence of guilt required it to deny relief under Strickland. (82) Eventually DNA evidence conclusively established Washington's innocence and he was exonerated, but because of the evidence of guilt on the face of the trial record, Washington was ineligible for Strickland relief. (83) Obviously, if the Strickland standard countenances a denial of relief based on evidence of guilt when the defendant is actually innocent, relief is extremely hard to come by for defendants who cannot establish innocence. Unfortunately, examples abound where the astonishing failures of counsel to adequately represent their client are deemed constitutionally insignificant in our adversarial system because the evidence of guilt put on by the prosecution was sufficiently strong. (84)

Similarly, Brady v. Maryland, which provides the constitutional framework for challenging prosecutor misconduct in failing to disclose exculpatory evidence, has an identical guilt-centered limitation. (85) It is difficult for prisoners to obtain relief--even in the face of appalling prosecutor misconduct--unless they can undermine the prosecution's guilt-phase case because the Strickland standard for prejudice is explicitly incorporated into the Brady analysis. (86) In defining prejudice for Brady purposes the Court held that "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (87) And a "reasonable probability," the Court emphasized, "is a probability sufficient to undermine confidence in the outcome." (88) Indeed, scholars have recognized the link between Brady claims and innocence, noting that the absence of a clear right to litigate free-standing innocence on habeas has resulted in Brady emerging as the "most common vehicle for asserting an innocence claim in federal habeas." (89) And just as with right to counsel claims, egregious acts of prosecutor misconduct will not be regarded as running afoul of the Constitution so long as there is strong evidence of guilt. (90)

It is important to note that this focus on guilt as dispositive as to the Constitution's content and scope is not intuitive. Consider, for example, the rule for assessing whether the Constitution was violated by a defense lawyer's representation of a defendant despite the existence of a conflict. (91) Prejudice is not required when a conflict of interest is alleged. (92) It is far from clear that the Sixth Amendment's promise of the "assistance of counsel" is more easily compromised by a conflict of interest than sheer incompetence, and yet the two doctrines developed along divergent paths. Whereas Strickland (competence) violations require a showing of prejudice, Cuyler (conflict) violations require only a showing of attorney error or deficiency. (93) There is nothing obvious about distinctions such as these across claims arising under the same clause of the Sixth Amendment, but the Supreme Court's doctrine evolved such that the most commonly litigated habeas claims cannot result in relief unless the evidence of guilt was, in the first instance, underwhelming. As a result, the substance of the constitutional rights are inseparable from questions of guilt and innocence.

Guilt is often dispositive in finding no constitutional violation in both the Strickland and the Brady contexts. (94) Notably, both the Strickland and the Brady prejudice standards emerged after Friendly's call for increased attention to innocence. (95)

b. Harmless Error

A close relative of the prejudice standard used to evaluate claims of ineffective assistance of counsel and Brady claims is the harmless error standard. Where harmless error applies, the doctrine ensures that, even if a constitutional violation exists, relief is not available unless the error undermined confidence in the guilty verdict. (96) Thus, even for those constitutional claims that do not require a showing of prejudice, a remedy is nonetheless unavailable if the error is deemed harmless. (97)

Notably, almost all constitutional errors are subject to harmless error review. (98) Only a handful of claims have been identified by the Court as structural error--a constitutional violation that warrants relief even without a harmless error analysis. (99) Most constitutional violations, including Miranda violations, improper identification procedures, and even illegal searches are all subject to harmless error review. (100) Indeed, the Supreme Court held in Arizona v. Fulminante that even a conviction resting upon a "coerced confession" was subject to harmless error review. (101)

In practice, this means that the strength of the evidence of guilt against a defendant is almost always relevant to a consideration of whether a constitutional violation warrants a remedy. (102) Strong evidence of guilt will routinely require a court to deny relief under the harmless error doctrine. (103) It is not the case that only "truly trivial and technical failures to observe arcane procedural formalities" are ignored when the evidence of guilt is overwhelming. (104) Instead, harmless error has become something approaching a "blanket rule" for upholding convictions even for the "most obvious and indefensible violations of basic constitutional guarantees" when the evidence of guilt is strong. (105) One need not take a normative position opposing this development to recognize the prevalence of guilt in constitutional adjudications. The Court itself has sought to instruct lower courts that "most constitutional errors can be harmless." (106)

Moreover, the outer limits of the harmless error doctrine roughly track those rights the Court has associated with innocence protection. For example, a violation of Gideon is deemed a structural error, as is a biased judge, because such errors tend to suggest that an innocent person may have been convicted. (107) Perhaps even more importantly, the nearly ubiquitous overlay of the harmless error doctrine tends to set the tone for appellate and habeas review. Anthony Amsterdam described the role of harmless error in setting a general mood for judicial review:
   In theory, the standard by which appellate courts are supposed to
   test the harmlessness of most constitutional errors in the pretrial
   process and at trial is whether the judges are convinced beyond a
   reasonable doubt that the error did not contribute to the guilty
   verdict or the sentence. But in practice, it much more often boils
   down to whether the appellate judges think that the prosecution's
   evidence of guilt was potent and the sentence well deserved. (108)

c. AEDPA Deference Disadvantages the Guilty

For habeas petitions filed after the enactment of the AEDPA in 1996, the substantive standard for relief is notoriously high. A prisoner generally must show that the state court adjudication of a claim "involved an unreasonable application of" clearly established law. (109) A state court adjudication is said to be reasonable, and thus insulated from federal relief, "so long as 'fair-minded jurists could disagree'" about the issue. (110) Incorrect applications of the Constitution are not necessarily unreasonable for purposes of the AEDPA. (111)

The AEDPA, then, makes relief rarer for all claims. But for claims like Strickland and Brady the substantive focus on guilt is amplified. (112) In describing the judicial review involved in adjudicating a Strickland claim on federal habeas, the Supreme Court recently explained:
   Surmounting Strickland's high bar is never an easy task....
   Establishing that a state court's application of Strickland was
   unreasonable under [section] 2254(d) is all the more difficult. The
   standards created by Strickland and [section] 2254(d) are both
   highly deferential, and when the two apply in tandem, review is
   doubly so.... Federal habeas courts must guard against the danger
   of equating unreasonableness under Strickland with unreasonableness
   under [section] 2254(d). (113)

In short, the Strickland standard's performance and prejudice standards are both amplified under [section] 2254(d)(1). Because these doctrines emphasize the need for a showing of innocence even under de novo review, the showing of innocence necessary to justify relief is doubly high under AEDPA review. (114) Bare prejudice, while not requiring "a showing that counsel's actions more likely than not altered the outcome" will, in most cases, require something tantamount to a showing of "more-probable-than-not" that the errors of counsel caused the guilty verdict. (115) When this already harsh prejudice standard is filtered through the AEDPA standard of unreasonableness, the result is an intensified focus on innocence. The most speculative evidence of guilt will, in many cases, justify a denial of relief when the prejudice prong is adjudicated under the AEDPA. Indeed, the Supreme Court has itself recognized that even the barest "conventional circumstantial evidence" of guilt will oftentimes suffice as a barrier to federal habeas relief under the AEDPA. (116)

In addition, a quick survey of the cases in which relief has been granted under the AEDPA tends to confirm that [section] 2254(d) entrenches the view that a guilt determination at trial is dispositive. Emphasizing that the trial and the guilt determination ought to be the "main event," (117) the Supreme Court's AEDPA cases have ensured that relief is almost never available, and when available, it is almost always limited to a resentencing in a capital sentencing case. The relief that is granted, then, has nothing to do with guilt or innocence per se, but illustrates the absence of any prospect for relief other than in the sentencing context where "death is different."

Between 1996, when the AEDPA was enacted, and 2012, the Supreme Court has addressed hundreds of habeas cases and found the standard of review under [section] 2254(d) satisfied only seven times. (118) None of these seven cases required a new guilt phase trial or so much as called into question a guilty verdict. (119) All of the cases granting relief, then, are fundamentally cases about the appropriate procedures for sentencing. Specifically, three of the seven cases involve the Eighth Amendment requirement that the sentencer in a capital case be able to consider and give effect to all potentially mitigating evidence before deciding on the appropriate sentence. (120) In each of these three cases, the only issue was whether the State had impermissibly impinged the defendant's ability to present and have considered mitigating evidence that might justify a sentence other than death. The conviction itself was not in question. Similarly, in the other four cases granting relief under [section] 2254(d)(1), the Court found that the heightened importance of a capital sentencing proceeding justified unique requirements on defense counsel such that ineffective assistance of counsel was easier to establish. (121)

To put the matter as plainly as possible, the only cases in which relief was granted were those in which the only issue in dispute was the sentence--specifically a death sentence--and, as for the conviction, [section] 2254(d) effectively defers to the guilt and the trial proceedings such that relief is not available. (122)

In short, the reforms of the AEDPA and [section] 2254(d) in particular tend to reinforce the guilt-as-dispositive orientation of modern habeas review. The deferential standard of review forces even more attention to the prejudice prongs of constitutional claims, thereby amplifying the implausibility of relief in the absence of strong evidence of innocence. In addition, the Supreme Court's own application of [section] 2254(d) has evinced a willingness to tolerate relief only when guilt is assumed and the only question is whether a death sentence is the appropriate punishment. The scarcity of relief and the severity of the standard of review allow federal judges to deny relief to the guilty; indeed the AEDPA oftentimes seems to require it.

2. Procedures That Focus on Guilt

As explained immediately above, a number of substantive doctrines have emerged that tend to curb access to habeas relief when the defendant cannot rebut his conviction with sufficient proof. (123) Various procedural hurdles, however, make it difficult for prisoners even to reach the substance of their constitutional claim, and, increasingly, the procedures precluding substantive review are grounded in concerns about benefitting the guilty. (124) This Part discusses some of the key procedural limits and analyzes their relationship to precluding relief for the guilty. The claim is not that all features of habeas procedure filter litigation into an innocence-only posture; (125) however, the scope and range of critical habeas procedural law that is linked to innocence is significant and provides substantial support for the claim that habeas has shifted far afield from the time when innocence was arguably irrelevant. (126)

a. The Stone v. Powell Limit

Few Supreme Court decisions more dramatically reflect the shift away from constitutional adjudication and toward an innocence orientation than Stone v. Powell. (127) Likewise, few Supreme Court decisions have marked such a resounding adoption of a scholarly agenda than Stone v. Powell's implementation of Friendly's innocence-focused notion of habeas. (128) Justice Powell, writing for the majority, held that Fourth Amendment violations are generally not cognizable on federal habeas. (129) Powell's reasoning for such a conclusion was clear: because Fourth Amendment "claims ... rarely bear on innocence" they are not well suited for federal habeas review. (130) Habeas corpus, in other words, should be directed toward ensuring that "no innocent man suffers an unconstitutional loss of liberty." Under this view, because Fourth Amendment violations do not typically result in the punishment of innocents, habeas corpus relief is undesirable. (131)

In the view of the Stone Court, because the enforcement of the Fourth Amendment on federal habeas does not serve the "ultimate question of guilt or innocence" it is not cognizable on federal habeas review. (132) Such a holding largely parrots Friendly's insight that "simply because a claim can be characterized as 'constitutional', it should not necessarily constitute a basis for" relief in the absence of a colorable showing of innoce nce. (133) Indeed, Friendly had specifically identified Fourth Amendment litigation in his article as a category of constitutional challenges for which habeas relief should not be permitted because the constitutional error almost never leads to the "conviction of an innocent man." (134) Accordingly, leading scholars have regarded Stone as evincing the "view that habeas relates primarily to innocence" and have explained that this conception "was apparently borrowed from Judge Friendly." (135)

The Court's wholesale abandonment of an entire class of constitutional violations is illustrative of the shift toward a more innocence-oriented and less constitutional-right-oriented model of federal habeas review. (136) Indeed, in rejecting an argument that sufficiency of the evidence claims should be precluded on federal habeas review based on the reasoning of Stone, the Court emphasized that sufficiency of evidence claims, unlike Fourth Amendment claims, adhere to the principle that guilt is dispositive. The Court explained: "The constitutional issue presented in this case is far different from the kind of issue that was the subject of the Court's decision in Stone v. Powell. The question whether a defendant has been convicted upon inadequate evidence is central to the basic question of guilt or innocence." (137) The centrality of guilt and innocence identified by the Court reflects a critical, if nonubiquitous, feature of modern habeas.

b. The Teague Limit

Historically, new rules of law applied to all cases regardless of their procedural posture; (138) however, under Teague v. Lane, with two narrow exceptions, a new rule of constitutional law does not apply to a case that is on federal habeas review. (139) The exceptions to nonretroactivity are substantive rules and watershed rules of procedure. (140) By limiting the retroactive application of legal decisions to substantive changes and watershed rules of procedure, the Court has enshrined innocence protection at the expense of procedural safeguards. (141) As explained below, the very ability of a court to pronounce "new" law is, under Teague, wedded to innocence.

First, a rule is "substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes." (142) Stated more directly, a new substantive rule provides a basis for relief because the prisoner is actually not guilty of a crime. (143) The crime for which the individual was convicted either cannot be enforced at all or cannot be enforced for the conduct at issue in his case. (144) In other words, by allowing substantive rules to apply retroactively, the Court has tailored habeas relief to the protection of the innocent; if the new substantive law does not permit a conviction, then habeas relief is available. (145)

Likewise, by limiting the scope of retroactivity for procedural rules, the Court has signaled the prioritization of innocence-related litigation. Procedural rules are those rules that govern the manner of ascertaining guilt, rather than the fact of guilt. (146) The Supreme Court has held that almost no procedural rules are sufficiently linked to innocence to justify retroactive application. Only those procedures that are so essential to the accuracy of the verdict--that is, those rules "that protect[] the innocence-serving function of the trial"--will be applied retroactively. (147) The Court has recognized only one such procedural rule: the requirement of counsel for any defendant charged with a felony enumerated in Gideon v. Wainwright. (148) And the Court explained that it is unlikely that any other rules of procedure are sufficiently linked to innocence as to deserve retroactive application. (149) One can quarrel about whether Gideon has had the effect of better protecting the innocent on the ground, but the Court has emphasized that it is the accuracy and innocence protecting functions of Gideon that justify treating the rule as retroactive. (150)

Simply put, the retroactivity doctrine reflects the doctrinal shift in habeas litigation away from procedures and pure rights-based litigation in favor of an innocence orientation. Only those issues of law with a direct connection to innocence can be applied retroactively to a case on federal habeas. As the Court has put it, a rule is regarded as a watershed only if it implicates "the fundamental fairness and accuracy of the criminal proceeding." (151)

c. Successive Petitions Limit

Weaving the postconviction needle between the requirement to fully exhaust claims in state court and the one-year federal habeas statute of limitations is difficult even for experienced habeas lawyers. Doing so while pro se, as most habeas petitioners are, borders on impossible. (152) Because they are unable to competently exhaust or raise all claims before the statute of limitations runs, vindicating material constitutional violations will, at least in some cases, involve the prisoner seeking to file a second habeas petition after his first petition has already been submitted. The rules are unforgiving to prisoners caught in this dilemma. There is no right to amend a pending petition to add unrelated claims. (153) And the filing of a second petition is strictly circumscribed.

Specifically, the AEDPA provides that "[a] claim ... that was presented in a prior application shall be dismissed." (154) For claims that have not previously been presented, federal habeas courts may not exercise jurisdiction over a claim unless the claim meets one of two narrow exceptions:

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, 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. (155)

New claims that were not raised in the first habeas petition, then, can be raised only if the prisoner can assert a "new rule of constitutional law," or a claim of innocence by "clear and convincing evidence." Notably for the reasons discussed above regarding Teague, only a prisoner with a claim of innocence will have a viable opportunity to file a successive petition. (156) The "new rule" prong has proven illusory because the Supreme Court has acknowledged that there are not likely to be many new rules of constitutional law announced. (157) In addition, if such a rule happened to exist, the statute of limitations would almost certainly render the successive petition untimely. (158)

Accordingly, a prisoner needing to file a second habeas petition is forced into innocence litigation. And this is innocence litigation at its very worst. The prisoner must not show that there was in fact reasonable doubt or that he was likely innocent, but rather he must demonstrate innocence to a trial court judge by clear and convincing evidence. (159) That is to say, the court must find the defendant innocent by clear and convincing evidence to even exercise jurisdiction over a claim.

Moreover, this harsh burden of proof tends to understate the severity of this form of innocence-focused habeas as it is applied by federal courts. A recent federal appeal in the Tenth Circuit is illustrative. In Case v. Hatch the prisoner was forced to bring a Brady claim in a second habeas petition,160 and, thus, was confronted with the onerous standards discussed above. Because Brady is not a new rule of law, the only way for Case to have the egregious act of prosecutor misconduct vindicated was to prove his innocence.161 Remarkably, Case succeeded. (162) The district court found that Case had proved his innocence by clear and convincing evidence, as required by [section] 2244(b)(2)(B)(ii). (163) However, writing for a unanimous three-judge panel, Judge Tymkovich adopted a very narrow reading of the statute and reversed the district court. (164) Significantly, the appellate court did not reverse the finding of innocence. Instead the court insisted that only innocence that was proved based on evidence relating to the underlying claim would suffice. (165) Relying on the text of [section] 2244,166 the court of appeals held that new DNA evidence and recantations that resulted in the innocence determination by clear and convincing evidence could not be considered. (167) Specifically, the court held that only evidence directly linked to the constitutional error--the Brady material--could be considered in determining whether a prisoner established his innocence. (168)

Innocence, then, has become a touchstone of habeas litigation for the thousands of prisoners each year who need to file a second habeas petition because, for example, the evidence suppressed by the prosecution was not available at the time the first petition was filed. But the form of innocence litigation that has emerged is so cramped that even a prisoner found to be innocent may not be entitled to have his habeas claims heard. It is innocence modified by a nearly insurmountable burden of proof, and cabined, at least in the Tenth Circuit, in procedural rules that make proving innocence cruelly insufficient. Innocence is necessary but often entirely insufficient as a basis for even affording the federal courts jurisdiction.

A second line of cases similarly illustrates the harsh innocence focus of the successive petition limits. It is unconstitutional to execute a prisoner who has been deemed mentally retarded. (169) In a sense, one who is mentally retarded is ineligible for the death penalty and, thus, innocent of the death penalty. (170) Recently, the Eleventh Circuit confronted the question of whether clear evidence of mental retardation justified permitting the prisoner to file a second habeas petition, and the court squarely held that mental retardation was insufficiently linked to innocence so as to justify a successive petition. (171) Even as one of the rare class of rules that qualifies for retroactive application, the mental retardation exception to the death penalty was regarded as an insufficient basis for permitting a second or successive federal petition. Specifically, the court of appeals concluded that the prisoner's mental retardation relates only to "his eligibility for a death sentence, and not whether he is 'guilty of the underlying offense,' and thus does not" justify a successive habeas petition. (172) The court stressed that because the petitioner was "guilty of the underlying offense," a successive petition was barred. (173) Under this rule, a prisoner who cannot be constitutionally executed is nonetheless barred from preventing his execution unless he can independently show he was innocent of the crime. (174)

The rules governing successive habeas petitions, an integral part of habeas litigation for prisoners who discover new evidence supporting a constitutional claim well after their conviction, are wedded to innocence. The fact of a prisoner's likely, or even potential, guilt, bars the litigation of colorable, never-before-litigated questions regarding the constitutionality of one's sentence or conviction. These limits were unknown at the time of Judge Friendly's call for a greater focus on innocence, but they have emerged as one of the most insurmountable limits on federal habeas relief. (175)

d. Limited Factual Development Under [section] 2254(e)(2)

Factual development in support of a claim of constitutional error is essential to obtaining federal habeas relief.176 Yet, in a broad and expanding range of circumstances, the ability of prisoners to develop these new facts is circumscribed by an innocence-centered framework.177 Under [section] 2254(e)(2), prisoners who did not develop facts in state court are barred from factual development in federal court unless:

(A) the claim relies on--

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim 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. (178)

In other words, any prisoner wishing to develop new facts must establish his innocence by clear and convincing evidence. Clearly then, factual development in support of a claim is expressly precluded for the guilty.

The impact of precluding factual development for federal habeas claims can hardly be overstated, and linking factual development of evidence to innocence renders the vast majority of claims ineligible for additional factual development. Although the innocence limits of [section] 2254(e)(2) only apply to petitioners who "failed" to develop the facts in state court, (179) in recent years courts brazenly attributed fault to a prisoner for failing to present facts in state court when the fault lies with defective--or nonexistent--postconviction counsel or with arcane and generally ignored procedural rules. (180) Thus, the application of [section] 2254(e)(2) is expanding such that innocence plays an increasingly critical role in the crucial element of factual development on federal habeas review.

e. Procedural Default

Another illustrative example of the sort of procedural rules that have developed rendering the guilty ineligible for habeas relief is the procedural default doctrine. (181) Procedural default is one of the most common barriers to relief in modern habeas practice. When a claim is not fully exhausted in state court, when an appeal is not timely filed in state court, or when a state procedural rule is not strictly followed, a federal constitutional violation is said to be procedurally defaulted such that a federal court is precluded from granting relief. (182)

The purpose of the procedural default doctrine is to ensure that the guilt phase trial is the "main event" by precluding federal review of claims that are not properly or fully presented in state court. (183) But one can agree with the underlying purposes of the doctrine--giving force to state procedural rules--and still candidly acknowledge that its exceptions are rooted in concerns about guilt and innocence. Once a claim is procedurally defaulted, for any reason, the litigation path to overcome the default is steeped in questions of guilt and innocence.

Leading habeas scholars have observed that the "rare exceptions to this rule precluding postconviction relief for constitutional violation are ... result-oriented inquiries." (184) Indeed, the most common way to argue that a procedural default ought not apply is for the prisoner to demonstrate "cause and prejudice." (185) Notably, the prejudice analysis in this context, no less than in the Strickland and Brady contexts, is a ready "device for telling judges to decline to entertain constitutional claims unless they are convinced that a criminal conviction was undeserved because of the defendant's likely innocence." (186)

The prejudice analysis functions such that strong evidence of guilt precludes relief. Indeed, evidence of guilt even precludes the habeas court from reaching the merits of the constitutional claim. (187) The effect of the procedural default doctrine's cause and prejudice inquiry is to convert all claims, even those fundamentally untethered from concerns of guilt, to a Strickland-type, guilt-as-dispositive model. (188) As Amy Knight Burns has observed, when it comes to structural errors--a class of cases for which it is impossible to demonstrate harm to the accuracy of the trial--the procedural default doctrine has the nonsensical effect of requiring a showing of prejudice for these claims. (189) A constitutional claim that necessarily has nothing to do with guilt or innocence, for example a Batson claim (a claim that the jury selection process was tainted with impermissible race or gender bias), (190) is rendered impossible to vindicate by the guilt orientation of the procedural default doctrine. (191) So the procedural default doctrine functions such that certain rights that are unconcerned with questions of guilt and innocence are rendered impossible to vindicate--that is, a procedurally defaulted structural error is not cognizable on federal habeas review under existing doctrine. (192) The takeaway, then, is that for some important but non-guilt-related rights, the cause and prejudice requirement makes vindicating these rights impossible.

It must be recognized that there is an exception to the rigorous cause and prejudice standard, but the exception is even more explicitly linked to innocence. The only accepted alternative to the cause and prejudice requirement is a so-called "miscarriage of justice" exception. (193) Recently the Court has regarded only one thing as a miscarriage of justice: the conviction of an innocent person. (194) Apparently, no patent violation of a criminal procedure right rises to the level of a miscarriage of justice.

However noble its underlying purposes, procedural default is yet another doctrine that feeds the federal habeas preoccupation with guilt. For one against whom there is strong evidence of guilt, the constitutional violations become substantially, if not entirely, irrelevant. (195)

f. The AEDPA Statute of Limitations

As discussed below, non-innocence based equitable tolling of the AEDPA statute of limitations has been permitted in certain narrowly defined circumstances. (196) Still, for the vast majority of prisoners the statute of limitations will not yield to generic claims of inequity. It will be the rare prisoner who is able to mount a sufficient record to justify equitable tolling. (197)

There is, however, one general exception to the statute of limitations: those who are not guilty need not comply with the one-year statute of limitations. This is yet another example of how the doctrine has evolved to promote the primacy of a guilt-as-dispositive model of habeas adjudication.

As the previous discussion in this Article and other scholarly works make clear, remarkably little of the pre-AEDPA procedural landscape has survived the AEDPA revolution. The AEDPA rendered most of the defaults and prior procedures for federal habeas review obsolete and irrelevant. The rules for factual development--with or without an evidentiary hearing--have entirely changed, (198) the standard of review for such claims is unrecognizable when compared to the pre-AEDPA review, (199) the current standard for reviewing successive petitions bears little resemblance to the pre-AEDPA standard, (200) and so on. And yet, in the face of a procedural revolution by the AEDPA, the innocence exception remains unaltered. As the Court explained in McQuiggin v. Perkins, the innocence exception "survived AEDPA's passage intact and unrestricted." (201)

The primacy of innocence adjudications, then, is one of the rare constants from pre- to post-AEDPA. Few procedures remain intact, much less unrestricted, in light of the AEDPA. This led Jordan Steiker to aptly refer to innocence as the one "get-out-of-habeas-procedure-free" card. (202) Like many of the doctrines discussed in this Section, the practical effect is that the guilty (or not clearly innocent) will languish under insurmountable procedural barriers. But for those who can muster a sufficiently strong showing of innocence, federal courts will consider the merits of the underlying constitutional claim. Innocence, again, is a necessary but insufficient condition for habeas relief.

g. Habeas Relief Based on Non-Constitutional Errors

The writ of habeas corpus in America has long been defined by the statutes of this country as available for prisoners who can show that they are "in custody in violation of the Constitution or laws or treaties of the United States." (203) Thus, it would seem that just as a conviction predicated on an unconstitutional process can give rise to habeas relief, so too could a conviction that rests on a violation of federal law or a treaty. The Supreme Court, however, has abridged this clear statutory authority and held that a violation of federal law can only serve as a predicate for habeas relief if the error in question amounts to "a fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure." (204)

Stated more directly, the circumstances when a violation of federal, non-constitutional law may give rise to habeas relief are extraordinarily rare. As for errors that are inconsistent with rudimentary demands of fair procedure, such as the watershed rules of procedure under Teague, this exception seems to be substanceless verbiage. (205) That is to say, short of defects of the magnitude of a Gideon violation, the Court simply does not recognize rudimentary or fundamental fairness as having been implicated. (206) Likewise, the question of whether there is a likely miscarriage of justice is generally a euphemistic way of asking whether the prisoner can demonstrate actual innocence. (207) At least as defined in related but distinct fields of habeas adjudication, the phrase miscarriage of justice has emerged as synonymous with innocence. (208)
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Title Annotation:Introduction into II. The Innocence Revolution: Guilt as Dispositive B. Modern Habeas and the Role of Guilt 2. Procedures That Focus on Guilt g. Habeas Relief Based on Non-Constitutional Errors, p. 2071-2119
Author:Marceau, Justin F.
Publication:William and Mary Law Review
Date:Jun 1, 2014
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