Federal Habeas Corpus: A Brief Legal Overview
Prepared for Members and Committees of Congress
Federal habeas corpus is a procedure under which a federal court may review the legality of an
individual’s incarceration. It is most often the stage of the criminal appellate process that follows
direct appeal and any available state collateral review. The law in the area is an intricate weave of
statute and case law.
Current federal law operates under the premise that with rare exceptions prisoners challenging the
legality of the procedures by which they were tried or sentenced get “one bite of the apple.”
Relief for state prisoners is only available if the state courts have ignored or rejected their valid
claims, and there are strict time limits within which they may petition the federal courts for relief.
Moreover, a prisoner relying upon a novel interpretation of law must succeed on direct appeal;
federal habeas review may not be used to establish or claim the benefits of a “new rule.”
Expedited federal habeas procedures are available in the case of state death row inmates if the
state has provided an approved level of appointed counsel. The Supreme Court has held that
Congress enjoys considerable authority to limit, but not to extinguish, access to the writ.
This report is available in an abridged version as CRS Report RS22432, Federal Habeas Corpus:
An Abridged Sketch, by Charles Doyle.
Introduc tion ............................................................................................................................... 1
Histor y ....................................................................................................................................... 1
Origins ................................................................................................................................ 1
Early American Experiences...............................................................................................3
Birth of the Modern Writ....................................................................................................4
Ebb and Flow......................................................................................................................5
Antiterrorism and Effective Death Penalty Act.........................................................................8
Other AEDPA Revisions...................................................................................................12
Other Habeas Features............................................................................................................18
Default and Innocence......................................................................................................18
New Rules and Retroactivity............................................................................................20
Congressional Authority to Bar or Restrict Access to the Writ...............................................22
Exceptions Clause and the Original Writ..........................................................................22
Suspension of the Privilege of the Writ............................................................................25
Author Contact Information..........................................................................................................33
This is an overview of the most prominent features of federal habeas corpus law. Federal habeas
corpus as we know it is by and large a procedure under which a court may review the legality of
an individual’s incarceration. It is most often invoked after conviction and the exhaustion of the
ordinary means of appeal. It is at once the last refuge of scoundrels and the last hope of the
innocent. It is an intricate weave of statute and case law whose reach has flowed and ebbed over
Prior to enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA), the most
recent substantial recasting of federal habeas law and the Supreme Court cases that immediately
preceded it, it was said that federal habeas was “the most controversial and friction producing
issue in the relation between federal and state courts. . . . Commentators [were] critical, . . .
federal judges [were] unhappy, . . . state courts resented [it], . . [and] prisoners thrive[d] on it as a 1
form of occupational therapy. . . .” The AEDPA was passed and yet the debate goes on. Judges,
academics and political figures regularly urge that the boundaries for federal habeas be
readjusted; some would make it more readily available; others would limit access to it.
Debate has been most intense in capital punishment cases. There, unlike most other cases, the
decisions of the state courts stand unexecuted while they await completion of federal habeas
corpus proceedings; there, unlike most other cases, an erroneously executed sentence is beyond
any semblance of correction or compensation. The AEDPA offers states expeditious habeas 2
procedures in capital cases certain circumstances; no state has yet been able to effectively qualify
and as a consequence Congress adjusted the method of determining qualification in the USA 3
PATRIOT Improvement and Reauthorization Act.
Congress has also modified the availability of habeas for detainees at Guantanamo Bay Cuba4 in
a manner which provides the Supreme Court with an opportunity to further explain the scope of 5
Congressional authority over habeas jurisdiction.
At early common law, much of the business of the courts began with the issuance of one of
several writs, many of which have survived to this day. The writs were a series of written order
forms, issued by the court in the name of the king, commanding the individual to whom they
were addressed to return the writ to the court for the purpose stated in the writ. The purpose was
1 17A WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE §4261 (2d ed. 1988).
2 28 U.S.C. 2261-2266.
3 P.L. 109-177, §507, 120 Stat. 250-51 (2006), 28 U.S.C. 2265.
4 P.L. 109-163, §1405(e), 119 Stat. 3477-479 (2006), 28 U.S.C. 2241(e); P.L. 109-148, §1005(e), 119 Stat. 2741-744
(2005), 28 U.S.C. 2241(e). The amendment was enacted in substantively identical terms first in the 2006 Defense
Department Appropriation Act and then in the 2006 National Defense Authorization Act.
5 Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), cert. granted, 126 S.Ct. 622 (2005), discussed in CRS Report
RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea, Michael
John Garcia, and Kenneth R. Thomas.
generally reflected in the name of the writ itself. Thus for example, a subpoena ad testificandum
was a command to return the writ to the court at a specified time and place, “sub poena,” that is,
“under penalty” for failure to comply, and “ad testificandum” that is, “for the purpose of
test if yi ng.”
Just as the writs of subpoena have been shortened in common parlance to “subpoena,” so
references to the several writs of habeas corpus were shortened. The habeas corpus writs were all
issued by the courts in the name of the king and addressed to one of the king’s officials or a lower
court. The writs commanded the officers of the Crown to appear before the court with the
“corpus” (“body”) of an individual named in the writ, whom “habeas” (“you have” or “you are
holding”), for the purpose stated in the writ. Thus for instance, the writ of habeas corpora
juratorum commanded the sheriff to appear before the court having with him or holding the 6
bodies of potential jurors.
By the colonial period, “habeas corpus” had come to be understood as those writs available to a
prisoner, held without trial or bail or pursuant to the order of a court without jurisdiction, ordering
his jailer to appear with the prisoner before a court of general jurisdiction and to justify the 7
6 Other habeas corpus writs included:
(1) Habeas corpus ad deliberandum et recipiendum, a writ for bringing an accused from a different county into a court
in the place where an offense had been committed for purposes of trial, or more literally to return holding the body for
purposes of “deliberation and receipt” of a decision.
(2) Habeas corpus ad faciendum et recipiendum, a writ of a court of superior jurisdiction to a custodian to return with
the body being held in confinement pursuant to the order of a lower court for purposes of “receiving” the court’s
decision and of “doing” what the court instructed with the prisoner.
(3) Habeas corpus ad faciendum, subjiciendum et recipiendum , or more simply, habeas corpus ad subjiciendum, a writ
ordering a custodian to return with a prisoner for the purposes of “submitting” the question of confinement to the court,
of “receiving” its decision, and of “doing” what the court instructed with the prisoner.
(4) Habeas corpus ad prosequendum, a writ ordering return with a prisoner for the purpose “prosecuting” him before
(5) Habeas corpus ad respondendum, a writ ordering return to a court of superior jurisdiction of a body under the
jurisdiction of a lower court for purposes of allowing the individual to “respond” with respect to matters under
consideration in the high tribunal.
(6)Habeas corpus ad satisfaciendum, a writ ordering return with the body of a prisoner for “satisfaction” or execution
of a judgment of the issuing court.
(7) Habeas corpus ad testificandum, a writ ordering return with the body of a prisoner for the purposes of “testifying”;
(8) Habeas corpus cum causa, a writ ordering return with the body of a prisoner and “with the cause” of his
confinement so that the issuing court might pass upon the validity of continued confinement and issue appropriate thth
additional orders. BLACK’S LAW DICTIONARY, 715 (7 ed. 1999); 1 BOUVIER’S LAW DICTIONARY, 1400-408 (11 ed.
1914); Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95-8 (1807); for English history of habeas corpus see DUKER, A
CONSTITUTIONAL HISTORY OF HABEAS CORPUS, 12-94 (1980); IX HOLDSWORTH, A HISTORY OF ENGLISH LAW, 104-25
(2d ed. 1938).
7 “If any person be restrained of his liberty by order or decree of any illegal court, or by command of the king’s majesty
in person, or by warrant of the council board, or of any of the privy council; he shall upon demand of his counsel, have
a writ of habeas corpus, to bring his body before the court of king’s bench or common pleas; who shall determine
whether the cause of his commitment be just, and thereupon do as to justice shall appertain. And by the habeas corpus
act [of 1679], the methods of obtaining this writ are plainly pointed out and enforced, that, so long as this statute
remains unimpeached, no subject of England can be long detained imprison, except in those cases in which the law
requires and justifies such detainer,” 1 BLACKSTONE, COMMENTARIES 131(italics in the original) (transliteration st
provided)(1 ed. 1765-1769).
Colonial America was well acquainted with habeas corpus and with occasional suspensions of the 8
writ. The drafters of the United States Constitution, after enumerating the powers of Congress,
inserted the limitation that “the privilege of the writ of habeas corpus shall not be suspended, 9
unless when in cases of rebellion or invasion the public safety may require it.”
The Act that created the federal court system empowered federal judges to issues writs of habeas
corpus “and other writs not specially provided for by statute, which may be necessary for the
exercise of their respective jurisdictions. . . . [a]nd. . . to grant writs of habeas corpus for the 10
purpose of an inquiry into the cause of commitment.” The power was limited, however, in that
“writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in
custody, under or by colour of the authority of the United States, or are committed for trial before 11
some court of the same, or are necessary to be brought into court to testify.”
The Supreme Court further clarified federal habeas corpus law when in Ex parte Bollman, 8
U.S.(4 Cranch) 75 (1807), it held that the power of the federal courts to issue the writ was limited
to the authority vested in them by statute. The courts had no common law or inherent authority to
issue writs of habeas corpus. While the common law might provide an understanding of the
dimensions of the writ, the power to issue it depended upon and was limited by the authority
which Congress by statute vested in the courts, id. at 93.
Consistent with the common law, the writ was available to those confined by federal officials
without trial or admission to bail, but was not available to contest the validity of confinement
pursuant to conviction by a federal court of competent jurisdiction, even one whose judgment was 12
Congress expanded the authority it had given the federal courts in response to the anticipated
state arrest of federal officers attempting to enforce an unpopular tariff in 1833 and again in 1842
in response to British protest over the American trial of one of its nationals. The writ was made
available to state prisoners held because of “any act done, or omitted to be done, in pursuance of a 13
law of the United States,” and to state prisoners who were foreign nationals and claimed
8 DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS, 95-125 (1980); Rosenn, The Great Writ – A Reflection of
Societal Change, 44 OHIO STATE LAW JOURNAL 337 (1983); WALKER, THE AMERICAN RECEPTION OF THE WRIT OF
9 U.S.Const. Art.I, §9, cl. 2.
10 1 Stat. 81-82 (1789).
11 Id. Then, as now, federal authorities kept prisoners in local jails since they rarely maintained federal jails except in
the territories, see 1 Stat. 91 (1789)(“for any crime or offence against the United States, the offender may, . . . where he
may be found agreeable to the usual mode of process against offenders of such state, and at the expense of the United
States, be arrested, and imprisoned or bailed. . . .”).
12 Ex parte Watkins, 28 U.S.(3 Pet.) 193 (1830).
13 4 Stat. 634-35 (1833). Section 7 of the Act of March 2, 1833, ch.52, more fully reads, “And be it further enacted,
That either of the justices of the Supreme Court, or a judge of any district court of the United States, in addition to the
authority already conferred by law, shall have power to grant writs of habeas corpus in all cases of a prisoner or
prisoners, in jail or confinement, where he or they shall be committed or confined on, or by any authority or law, for
any act done, or omitted to be done, in pursuance of a law of the United States, or any order, process, or decree, of any
judge or court thereof, any thing in any act of Congress to the contrary notwithstanding. . . .”
protection of the Act of State doctrine.14 The federal writ otherwise remained unavailable for 15
prisoners held under state authority rather than the authority of the United States.
In 1867, Congress substantially increased the jurisdiction of federal courts to issue the writ by
authorizing its issuance “in all cases,” state or federal, “where any person may be restrained of his 16
or her liberty in violation of the constitution, or of any treaty or law of the United States.”
Originally, habeas corpus permitted collateral attack upon a prisoner’s conviction only if the
sentencing court lacked subject matter jurisdiction. Shortly after 1867, however, the Supreme
Court began to recognize a growing number of circumstances where courts were said to have
acted beyond their jurisdiction because some constitutional violation had extinguished or 17
“voided” their jurisdiction.
14 “That either of the justices of the Supreme Court of the United States, or judge of any district court of the United
States, in which a prisoner is confined, in addition to the authority already conferred by law, shall have power to grant
writs of habeas corpus in all cases of any prisoner or prisoners in jail or confinement, where he, she, or they, being
subjects or citizens of a foreign state, and domiciled therein; shall be committed or confined, or in custody, under or by
any authority or law, or process founded thereof, of the United States, or of any one of them, for or on account of any
act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under
the commission, or order, or sanction, of any foreign State or Sovereignty, the validity and effect whereof depend upon
the law of nations, or under color thereof. . . .” 5 Stat. 539-40 (1842).
15 Ex parte Dorr, 44 U.S.(3 How.) 103 (1845).
16 “That the several courts of the United States, and the several justices and judges of such courts, within their
respective jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas
corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any
treaty or law of the United States; and it shall be lawful for such person so restrained of his or her liberty to apply to
either of said justices or judges for a writ of habeas corpus, which application shall be in writing and verified by
affidavit, and shall set forth the facts concerning the detention of the party applying, in whose custody he or she is
detained, and by virtue of what claim or authority, if known; and the said justice or judge to whom such application
shall be made shall forthwith award a writ of habeas corpus, unless it shall appear from the petition itself that the party
is not deprived of his or her liberty in contravention of the constitution or laws of the United States,” 14 Stat. 385-86
(1867). At the same time, Congress modified and codified much of the procedure associated with the writ, including an
appellate provision that was soon thereafter repealed, 15 Stat. 44 (1868); see Ex parte McCardle, 74 U.S. (7 Wall.) 506
17 See e.g.: Ex parte Lange, 85 U.S.(18 Wall.) 163 (1874). Lange had been convicted of an offense punishable by a fine
or term of imprisonment. The trial court had sentenced him to a fine and a term of imprisonment. Lange paid his fine
and was imprisoned. The Court held that once Lange had paid the fine the trial court lost all jurisdiction over the case
and thus his confinement was subject to the writ.
Ex parte Siebold, 100 U.S. 371 (1880). In Siebold, although the statute in question was found to be within the power of
Congress, the Court held that had the prisoner been convicted under an unconstitutional law he would have been
entitled to discharge upon the writ.
Ex parte Wilson, 114 U.S. 417 (1885). The Court held that Wilson was entitled to discharge on the writ because the
trial court had exceeded its jurisdiction when it tried, convicted and sentenced him to fifteen years hard labor based
upon an information filed by the district attorney rather than upon a grand jury indictment as required by the Fifth
Amendment in the case of all capital and otherwise infamous crimes.
In re Snow, 120 U.S. 274 (1887). Snow was convicted of three counts of cohabitation based on the same conduct
during three different periods of time. The Court found that the misconduct was one continuous offense rather than
three offenses. Since three sentences would constitute multiple punishment contrary to the Fifth Amendment, the trial
court had acted beyond its jurisdiction and the writ should issue.
This development was of limited benefit to most prisoners, since most were confined under state
convictions and relatively few of the rights guaranteed by the Constitution were thought to apply
against the states. Even when a constitutional claim was available, state prisoners could not be
granted federal habeas relief until all possibility of state judicial relief – trial, appellate, and 18
postconviction – had been exhausted.
Eventually two developments stimulated new growth. First, the application of jurisdictional tests
proved cumbersome and somewhat artificial and was discarded in favor of a more generous
standard. Later, the explosion in the breadth of due process and in the extent of its application to
the states multiplied the instances when a state prisoner might find relief in federal habeas corpus.
Evolution began with two cases which reached the Court early in the last century and in which
petitioners claimed that mob rule rather than due process of law led to their convictions and death
sentences. The Court in Frank v. Mangum, 237 U.S. 309 (1915), denied the writ because Frank’s
claim had already been heard and rejected as part of the state appellate process. The Court did
suggest, however, that a state court might lose jurisdiction by virtue of a substantial procedural
defect, such as mob domination of the trial process, and that federal habeas relief would be
available to anyone convicted as a consequence of the defect. It also indicated that the question of
whether relief should be granted was not to be resolved solely by examination of the trial court
record, as had historically been the case, but upon federal court consideration of the entire judicial 19
process which pre-dated the petition.
If Frank had been intended as a warning, it appears to have been in vain, for soon thereafter the 20
Court confronted yet another conviction allegedly secured by mob intervention. In spite of the
fact that the state appellate courts had already heard and denied the petitioners’ claims, the Court
ordered the lower federal court in which relief had been initially sought to make its own
determination of the validity of petitioners’ claims of procedural defect.
Soon thereafter it became clear that federal habeas was not limited to instances of mob
intervention or other external contaminants of the judicial process; it reached deficiencies from
within the process which rendered the process so unfair as to result in a loss of life or liberty
without due process of law, whether they took the form of a prosecutor’s knowing use of perjured 21
testimony and suppression of evidence that would impeach it, or of a denial of the assistance of 22
counsel in criminal prosecutions, or of confessions or guilty pleas secured by government 23
18 Ex parte Royall, 117 U.S. 241 (1886); Ex parte Fonda, 117 U.S. 516 (1886); Pepke v. Cronan, 155 U.S. 100 (1894).
19 “[I]t results that under the [federal habeas] sections cited a prisoner in custody pursuant to the final judgment of a
state court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and
substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his
conviction to a sufficient extent to test the jurisdiction of the state court to proceed to judgment against him,” 237 U.S.
20 Moore v. Dempsey, 261 U.S. 86 (1923).
21 Mooney v. Holohan, 294 U.S. 103 (1935).
22 Johnson v. Zerbst, 304 U.S. 458 (1938).
23 Waley v. Johnson, 316 U.S. 101 (1942).
Early in the 1940s, the Court stopped requiring that an alleged constitutional violation void the 24
jurisdiction of the trial court before federal habeas relief could be considered. Federal judges 25
soon complained that federal prisoner abuses of habeas had become “legion.” Congress
responded by incorporating into the 1948 revision of the judicial code the first major revision of 26
the federal habeas statute since 1867.
State courts exerted little pressure for revision of the federal habeas statute in 1948. Although
habeas relief had been available to state prisoners by statute since 1867 and subsequent decisions
seemed to invite access, the hospitality that federal habeas extended to state convicts with due
process and other federal constitutional claims had not yet become apparent.
This all changed over the next two decades. As noted earlier, some of the change was attributable
to expansive Supreme Court interpretations of the procedural guarantees of the Bill of Rights and
of the extent to which those guarantees were binding upon the states through the due process 27
clause of the Fourteenth Amendment.
Federal habeas was the vehicle used to carry much of the due process expansion to the states. 28
After Brown v. Allen, 344 U.S. 443 (1953), there was little doubt that the federal habeas corpus
statute afforded relief to state prisoners whose convictions were tainted by constitutional
violations, both those violations that would void state court jurisdiction and those that would not.
The majority position in Brown on the impact of the Court’s denials of certiorari contributed to
the expansion of federal habeas as well. When the Court refused to review a state case by denying
certiorari, it thereby left the decision of the state’s high court intact. If this should be read as the
Court’s endorsement of the state’s disposal of constitutional issues as part of the normal appellate
process, it would seem to chill any subsequent lower federal court reconsideration of those issues 29
under habeas. Brown precludes such a result.
24 Id. at 104-105; see also Walker v. Johnson, 312 U.S. 275 (1941); The Freedom Writ – The Expanding Use of Federal
Habeas Corpus, 61 HARVARD LAW REVIEW 657 (1948).
25 Goodman, Use and Abuse of the Writ of Habeas Corpus, 7 F.R.D. 313, 314 (1947).
26 28 U.S.C. 2241 - 2255 (1946 ed.)(Supp.II, 1949).
27 “The dimensions of the problem of collateral attack today are a consequence of two developments. One has been the
Supreme Court’s imposition of the rules of the fourth, fifth, sixth and eighth amendments concerning unreasonable
searches and seizures, double jeopardy, speedy trial, compulsory self-incrimination, jury trial in criminal cases,
confrontation of adverse witnesses, assistance of counsel, and cruel and unusual punishments, upon state criminal trials.
The other has been a tendency to read these provisions with ever increasing breadth. The Bill of Rights, as I warned in
1965, has become a detailed Code of Criminal Procedure, to which a new chapter is added every year. The result of
these two developments has been a vast expansion of the claims of error in criminal cases for which a resourceful
defense lawyer can find a constitutional basis,” Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal
Judgments, 38 UNIVERSITY OF CHICAGO LAW REVIEW 142, 155-56 (1970).
28 Brown is an interesting decision. The Court was divided on the questions of habeas corpus, the effect to be given a
denial of certiorari, and equal protection. There are six separate opinions; two by Justice Frankfurter and two by Justice
Black. Justice Reed’s opinion for the Court also includes the minority position on the certiorari question, and on the
two questions for which he wrote the majority opinion for the Court his views must be read in conjunction with those
of Justice Frankfurter (“[t]his opinion is designed to make explicit and detailed matters that are also the concern of Mr.
Justice Reed’s opinion. The uncommon circumstances in which a district court should entertain an application ought to
be defined with greater particularity, as should be the criteria for determining when a hearing is proper. The views of
the Court on these questions may thus be drawn from the two opinions jointly,” 344 U.S. at 497 (Frankfurter, J.)).
29 Commentators suggested, in fact, that the Court intended the denial of certiorari and the anticipated subsequent
recourse to federal habeas to permit it to enlist the aid of the lower federal courts to review the federal constitutional
questions raised in state cases, Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Justice, 38 UNIVERSITY
The Court’s denials of certiorari meant no more than that the Court had declined to hear the case;
no conclusions on the Court’s view of the issues raised could be drawn from its declinations.
Moreover, in subsequent habeas proceedings, the lower federal courts were not bound by state
resolution of federal constitutional issues, even if the state courts had given applicants for the writ
a full and fair hearing on the very same issues raised on habeas.
But the requirement to exhaust state remedies remained. Brown held that a state prisoner, seeking
habeas relief, could not satisfy the requirement merely by showing that a remedy, once open to 30
him, had been lost by his own inaction.
The Court eased the exhaustion restriction considerably in Fay v. Noia, 372 U.S. 391 (1963), in
which it held that federal courts were permitted, but not required, to deny habeas for an 31
intentional failure to exhaust state remedies. At the same time, it articulated circumstances under
which the evidentiary hearing, found permissible in Brown, would be mandatory, Townsend v. 32
Sain, 372 U.S. 293 (1963).
Relaxation of the default bar coupled with expansion of the circumstances under which
constitutional issues might be reconsidered forecast the possibility of repetitious habeas
applications and of lower court efforts to discourage repetition. The Court and Congress
anticipated and combined to control such eventualities.
Within weeks of Noia and Townsend, the Court announced the rule applicable for federal 33
prisoners. “Controlling weight may be given to denial of a prior application for federal habeas
corpus. . . relief only if (1) the same ground presented in the subsequent application was
determined adversely to the applicant on the prior application, (2) the prior determination was on
OF CHICAGO LAW REVIEW 142, 154-55 (1970); Wright & Sofaer, Federal Habeas Corpus for State Prisoners: The
Allocation of Fact-Finding Responsibility, 75 YALE LAW JOURNAL 895, 897-98 (1966), both citing Judge Wyzanski’s
statement in Geagan v. Gavin, 181 F.Supp. 466, 469 (D.Mass. 1960).
30 “A failure to use a state’s available remedy, in the absence of some interference or incapacity. . . bars federal habeas
corpus. The state requires that the applicant exhaust available state remedies. To show that the time was passed for
appeal [without an appeal by the prisoner] is not enough [to demonstrate the absence of a state remedy and] to
empower the Federal District Court to issue the writ.” 344 U.S. at 487.
31 “We therefore hold that the federal habeas corpus judge may in his discretion deny relief to an applicant who has
deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.
“But we wish to make very clear that this grant of discretion is not to be interpreted as a permission to introduce legal
fictions into federal habeas corpus. . . . If a habeas applicant, after consultation with competent counsel or otherwise,
understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts,
whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state
procedures, then it is open to the federal court in habeas to deny him all relief if the state courts refused to entertain his
federal claims on the merits—though of course only after the federal court has satisfied itself, by holding a hearing or
by some other means, of the facts bearing upon the applicant’s default,” 372 U.S. at 439.
32 “Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas
applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a
collateral proceeding. . . . [That is,] a federal court must grant an evidentiary hearing to a habeas applicant under the
following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state
factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the
state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered
evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it
appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing,” 372 U.S. at 312-13.
33 Sanders v. United States, 373 U.S. 1 (1963).
the merits, . . . (3) the ends of justice would not be served by reaching the merits of the
subsequent application” and (4) any new ground presented in the subsequent application had been
deliberately abandoned or withheld earlier under the same test used in state cases for default. 373
U.S. at 15, 17-18. Congress closed the circle in 1966 by amending the federal habeas statute to
apply a rough equivalent of the Sanders rule to state prisoner petitions for federal habeas, 28
U.S.C. 2244, 2254.
The few years which followed Sanders probably stand as the high water mark for the reach of
federal habeas corpus. But by the early seventies, the Supreme Court had begun to announce a
series of decisions grounded in the values of respect for the work of state courts and finality in the
process of trial and review. Thus, state prisoners who fail to afford state courts an opportunity to
correct constitutional defects are barred from raising them for the first time in federal habeas in 34
the absence of a justification. Nor may they scatter their habeas claims in a series of successive 35
petitions. Those who plead guilty and thereby waive, as a matter of state law, any constitutional 36
claims, may not use federal habeas to revive them. And state prisoners may not employ federal
habeas as a means to assert, or retroactively claim the benefits of, a previously unrecognized
interpretation of constitutional law (i.e., a “new rule”).
The Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132, 110 Stat. 1214
(1996)(AEDPA), was the culmination and amalgamation of disparate legislative efforts, including 37
habeas proposals, some them stretching back well over a decade. The most controversial of the 38
proposals had involved habeas in state capital cases. Capital habeas cases presented special
34 Wainwright v. Sykes, 433 U.S. 72 (1977).
35 McClesky v. Zant, 499 U. S. 467 (1991).
36 Parker v. North Carolina, 397 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759 (1970); Tollett v. Henderson,
411 U.S. 258 (1973).
37 See e.g., Habeas Corpus Reform Act of 1982: Hearings Before the Senate Comm. on the Judiciary, 97th Cong., 2d
Sess. (1982); Comprehensive Crime Control Act of 1983: Hearings Before the Subcomm. on Criminal Law of the thst
Senate Comm. on the Judiciary, 98 Cong., 1 Sess. (1983); Habeas Corpus Reform: Hearing Before the Senate thst
Comm. on the Judiciary, 99 Cong., 1 Sess. (1985); Habeas Corpus Reform: Hearings Before the Senate Comm. on stst
the Judiciary, 101 Cong., 1 & 2d Sess. (1990); Habeas Corpus Legislation: Hearings Before the Subcomm. on st
Courts, Intellectual Property, and the Administration of Justice of the House Comm. on the Judiciary, 101 Cong., 2d
Sess. (1990); Habeas Corpus Issues: Hearings Before the Subcomm. on Civil and Constitutional Rights of the House st
Comm. on the Judiciary, 102d Cong., 1 Sess. (1991); Habeas Corpus: Hearings Before the Subcomm. on Civil and st
Constitutional Rights of the House Comm. on the Judiciary, 103d Cong., 1 & 2d Sess. (1994); Innocence & the Death st
Penalty: Hearings Before the Senate Comm. on the Judiciary, 103d Cong., 1 Sess. (1993); Federal Habeas Corpus—th
Eliminating Prisoners’ Abuse of the Judicial Process: Hearings Before the Senate Comm. on the Judiciary, 104 st
Cong., 1 Sess. (1995).
38 The major crime bills passed by the House and Senate in the 101st Congress each contained habeas corpus
amendments, S. 1970 and H.R. 5269. In an effort to secure final passage of a crime bill before adjournment, provisions
over which the two Houses had major differences, such as habeas corpus, were stripped out, before a clean bill, S.
3266, was enacted,136 Cong.Rec. H13291-H13292 (daily ed. Oct. 27, 1990)(remarks of Reps. Hughes and Hyde); 136
Cong.Rec. S17600 (daily ed. Oct. 27, 1990)(remarks of Sen. Biden).
Habeas reform issues reemerged during the 102d Congress in which the Senate passed an omnibus crime bill
containing reform proposals, S. 1241, and the House approved a different package, H.R. 3371. H.R. 3371 was
ultimately reported out of conference committee with amendments and passed the House but not the Senate, 138
problems. Existing procedures afforded not only the incentive, but the opportunity, for delay. A
state defendant convicted of a capital offense and sentenced to death could take advantage of
three successive procedures to challenge constitutional defects in his or her conviction or
sentence. His or her claims could be raised on appeal, in state habeas proceedings, and in federal
habeas proceedings. As a consequence, there were extensive delays between sentence and 39
execution of sentence.
In June of 1988, Chief Justice Rehnquist named a committee chaired by retired Justice Powell to
study “the necessity and desirability of legislation directed toward avoiding delay and the lack of 40
finality in capital cases in which the prisoner had or had been offered counsel.” The Committee
Cong.Rec. S2815-S2823 (daily ed. Mar. 4, 1992)(remarks of Sens. Biden and Thurmond).
In the 103d Congress, the Senate elected to exclude habeas corpus reform from the major crime package it passed, H.R.
3355 (S. 1607), 139 Cong.Rec. S16301 (daily ed. Nov. 19, 1993); S17095 (daily ed. Nov. 24, 1993)(text); S15736-
S15737 (daily ed. Nov. 16, 1993)(remarks of Sen. Biden explaining omission). When the House Judiciary Committee
reported the bill out, H.R. 4092, it included habeas reform provisions, 140 Cong.Rec. H2260 (daily ed. Apr. 14,
1994)(text). They were dropped during debate pursuant to an amendment by Rep. Hyde and in spite of a subsequent
unsuccessful amendment offered by Rep. Derrick that would have restored a modified version of the Committee reform
proposals, 140 Cong.Rec. H2416-H2427 (daily ed. Apr. 19, 1994).
The issues resurfaced in the 104th Congress beginning with early House passage of the Effective Death Penalty Act
(H.R. 729), 141 Cong.Rec. H1400-434 (daily ed. Feb. 8, 1995); see also H.Rept. 104-23. In the Senate, the provisions
were part of the terrorism bill, S. 735, from the beginning and passed the Senate as part of S. 735, 141 Cong.Rec.
S7803-880 (daily ed. June 7, 1995), and were ultimately enacted into law as the first title in the Antiterrorism and
Effective Death Penalty Act of 1996, P.L. 104-132, 110 Stat. 1214 (1996).
39 “The problem is that, unlike the defendants serving their imprisonment – whose only incentive to apply for collateral
review is the small chance that they will be released – defendants on death row have a very good reason to bring as
many habeas corpus proceedings as the law allows. The time these reviews take literally keeps the death row
defendants alive, and from their point of view the investment of time and energy for legal proceedings is very
“Of course, from our point of view it can be argued that if these defendants know there is no substance in their claims,
they should withdraw their suits and take their punishment. Unfortunately, this kind of self-sacrifice is asking too much
of anyone, let alone the kinds of people who have committed the types of crimes which have resulted in their being
sentenced to death. . . .
“Moreover, the reversal rate in capital cases, both on direct appeal and on post-conviction relief, is far greater than that
of noncapital – even murder – cases. Partly this results from the greater complexity of capital cases, since courts are
especially careful in these cases to make sure the law is followed, and there is no doubt that the ambivalence of the
courts toward the death penalty plays a part in this process. Moreover, capital cases, being harder fought, tend to raise
more issues upon which the defense can appeal, and provide more incentive to make sure they are thoroughly briefed
and argued. Moreover, in capital cases, the appellate courts are less willing to conclude that they should not disturb the
verdict on the grounds that, on the whole, justice was done. In capital cases, more than others, all parties seem to feel
that it is not merely sufficient that the right result be reached, but also that the appropriate procedures be scrupulously
followed,” Kaplan, The Problem of Capital Punishment, 1983 UNIVERSITY OF ILLINOIS LAW REVIEW 555, 573-74.
The complexity of death penalty jurisprudence contributed to a success rate estimated by some at almost 50%, a factor
that not only enhanced delay but stiffened resistance to a narrower writ, Hoffman & Stunt, Habeas After the
Revolution, 1993 SUPREME COURT REVIEW 65, 110 n.144 (“Professor James Liebman has determined that, between
1976 and 1985, the overall success rate for death penalty petitioners in habeas was 49 percent. See Liebman, Federal
Habeas Corpus at 23-4 n.97 [(1988)]”).
40 Ad Hoc Committee on Federal Habeas Corpus in Capital Cases Committee Report (Powell Committee Report),
printed in 135 Cong. Rec. 24694 (1989). Other members of the Powell Committee included Chief Judge Charles Clark
of the Fifth Circuit Court of Appeals, Chief Judge Paul Roney of the Eleventh Circuit Court of Appeals, District Judge
William Hodges of the Middle District of Florida, and District Judge Barefoot Sanders of the Northern District of
Texas. Professor Albert Pearson of the University of Georgia Law School served as reporter and William Burchill,
General Counsel of the Administrative Office of the United States Courts, as secretary.
The American Bar Association issued a somewhat more detailed series of recommendations concerning reform of
identified three problems associated with federal habeas corpus in state capital punishment cases:
unnecessary delay and repetition, the need to make counsel more generally available, and last
minute litigation. The Committee recommended amendments to the federal habeas statute and 41
Chief Justice Rehnquist transmitted its report to the Congress in September, 1989.
Congress weighed the recommendations, but initially enacted no major revision, other than the
provision in the 1988 Anti-Drug Abuse Act which required the appointment of counsel in 42
conjunction with federal habeas in capital punishment cases. The AEDPA, however, offered
procedural advantages to the states to ensure the continued availability of qualified defense
counsel in death penalty cases, 28 U.S.C. 2261-2266. Prior to the AEDPA, federal law called for
the appointment of counsel to assist indigent state prisoners charged with or convicted of a capital
offense at every stage of the proceedings other than during collateral review in state court. The
AEDPA established a streamlined habeas procedure in cases involving state death row inmates to
those states that fill this gap, 28 U.S.C. 2261, 2265.
It gave the states three options. A state could elect not to take advantage of the expedited 43
procedures in which case it would be governed by the usual habeas provisions. Alternatively, a
state could “opt in” and elect to provide a mechanism for the appointment and compensation of
counsel to assist indigent state prisoners under sentence of death in state post-conviction review 44
(state “habeas” proceedings). Finally, rather than use the mechanism for appointment of counsel
for a separate level of state collateral proceedings, a state could use the mechanism in conjunction 45
with a unified system of review which merges state direct appeals and collateral review.
The USA PATRIOT Improvement and Reauthorization Act simplifies the election by dropping the
“unitary review” provision. States may opt in if they provide for assistance of counsel in a 46
manner approved by the Attorney General, 28 U.S.C. 2261, 2265.
For the states that opt in, the AEDPA establishes a one-time automatic stay of execution for state
death row inmates carrying through until completion of the federal habeas process, 28 U.S.C.
2262 . Previously, the federal habeas statute authorized federal courts to stay the execution of a
habeas in capital cases, TOWARD A MORE JUST AND EFFECTIVE SYSTEM OF REVIEW IN STATE DEATH PENALTY CASES: A
REPORT CONTAINING THE AMERICA BAR ASSOCIATION’S RECOMMENDATIONS CONCERNING DEATH PENALTY HABEAS
CORPUS AND RELATED MATERIALS FROM THE AMERICAN BAR ASSOCIATION CRIMINAL JUSTICE SECTION’S PROJECT ON
DEATH PENALTY HABEAS CORPUS (1990).
41 135 Cong. Rec. 24693 (1989).
42 P.L. 100-690, §7001, 102 Stat. 4393; 21 U.S.C. 848(q)(4)(B)(2000 ed.).
43 Cf., 28 U.S.C. 2261, 2265 (2000 ed.).
44 28 U.S.C. 2261(b)(2000 ed.).
45 28 U.S.C. 2265(b)(2000 ed.).
46 “This chapter is applicable if – (1) the Attorney General of the United States certifies that a State has established a
mechanism for providing counsel in postconviction proceedings as provided in section 2265; and (2) counsel was
appointed pursuant to that mechanism, petitioner validly waived counsel, petitioner retained counsel, or petitioner was
found not to be indigent,” 28 U.S.C. 2261(b).
“If requested by an appropriate State official, the Attorney General of the United States shall determine – (A) whether
the State has established a mechanism for the appointment, compensation, and payment of reasonable litigation
expenses of competent counsel in State postconviction proceedings brought by indigent prisoners who have been
sentenced to death; (B) the date on which the mechanism described in subparagraph (A) was established; and (C)
whether the State provides standards of competency for the appointment of counsel in proceedings described in
subparagraph (A),” 28 U.S.C. 2265(a)(1).
final state court judgment during the pendency of a state prisoner’s federal habeas proceedings
and related appeals, 28 U.S.C. 2251 (1994 ed.). Federal appellate courts could consider motions
for a stay, pending review of the district court’s decision or at the same time they considered the
merits of the appeal. This regime encouraged unnecessary litigation over whether a stay was or
was not in order and often resulted in state death row inmates waiting until the last hour before
simultaneously filing a motion for a stay and an appeal from the district court’s denial of the writ.
The AEDPA creates a 180-day statute of limitations for filing federal habeas petitions after the
close of state proceedings with the possibility of one 30 day extension upon a good cause
showing for states that opt in, 28 U.S.C. 2263.
When a state opts in, federal habeas review of a claim filed by a state death row inmate is limited
to issues raised and decided on the merits in state court unless the state unlawfully prevented the
claim from being raised in state court, or the claim is based on a newly recognized, retroactively
applicable constitutional interpretation or on newly unearthed, previously undiscoverable
evidence, 28 U.S.C. 2264.
In cases where the federal habeas application has been filed by a prisoner under sentence of death
under the federal law or the laws of a state which has opted in, the government has a right,
enforceable through mandamus, to a determination by the district court within 450 days of the 47
filing of an application and by the federal court of appeals within 120 days of the filing of the
parties’ final briefs, 28 U.S.C. 2266.
The USA PATRIOT Improvement and Reauthorization Act changed the procedure under which
states are deemed have opted in, 28 U.S.C. 2265. Under its provisions the Attorney General rather
than the courts determines whether a state has taken the steps necessary to opt in. States that elect
to opt in must still provide a “mechanism for the appointment, compensation, and payment of
reasonable litigation expenses of competent counsel in state postconviction proceedings,” 28 48
U.S.C. 2265(c). References to competence standards for appointed counsel have been removed,
but presumably authority to promulgate such standards falls within the Attorney General’s newly
granted regulatory authority, 28 U.S.C. 2265(b).
The Attorney General’s certification that a state has taken the necessary steps to opt in is subject
to de novo review in the United States Court of Appeals for the District of Columbia, an appeal
which in turn is subject to certiorari review in the Supreme Court, 28 U.S.C. 2265(c).
47 Or, if sooner, within 60 days after the date the case is submitted for decision, 28 U.S.C. 2266(b)(1)(A). Prior to the
passage of the USA PATRIOT Improvement and Reauthorization Act, district courts were given 120 days from filing,
28 U.S.C.2266(b)(1) (A) (2000 ed.).
48 Prior to amendment, section 2261(b) read: “This chapter is applicable if a State establishes by statute, rule of its court
of last resort, or by another agency authorized by State law, a mechanism for the appointment, compensation, and
payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by
indigent prisoners whose capital convictions and sentences have been upheld on direct appeal to the court of last resort
in the State or have otherwise become final for State law purposes. The rule of court or statute must provide standards
of competency for the appointment of such counsel,” 28 U.S.C. 2261(b)(2000 ed.)(emphasis added).
Before passage of the AEDPA, state court interpretations or applications of federal law were not 49
binding in subsequent federal habeas proceedings. The debate that led to passage was marked
by complaints of delay and wasted judicial resources countered by the contention that federal 50
judges should decide federal law. Out of deference to state courts and to eliminate unnecessary
delay, the AEDPA bars federal habeas relief on a claim already passed upon by a state court
“unless the adjudication of the claim – (1) resulted in a decision that was contrary to, or involved
an unreasonable application of clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court proceeding,” 28
For purposes of section 2254, an unreasonable application of clearly established federal law, as
determined by the Supreme Court “occurs when a state court ‘identifies the correct governing
legal principle from [the] Court’s decisions but unreasonably applies that principle to the facts 51
of’” the case before it. Moreover, the Court has said on several occasions, the question before
the federal courts when they are confronted with a challenged state court application of a
Supreme Court recognized principle is not whether the federal courts consider the application 52
incorrect but whether the application is objectively unreasonable.
On the other hand, for purposes of section 2254(d)(1), a decision is “contrary to . . . clearly
established federal law, as determined by the Supreme Court,” “if it applies a rule that contradicts
the governing law set forth in the [Supreme Court’s] cases, or if it confronts a set of facts that is
49 Brown v. Allen, 344 U.S. 443, 463 (1953).
50 Litigation generally involves finding facts, identifying the legal principles necessary to resolve the dispute arising
from the facts, and applying the legal principles to the facts. Federal courts, sitting to consider habeas petitions from
state prisoners, generally deferred to the fact finding decisions of state courts. The habeas reform proposals called for
deference to state court rulings of law and applications of the law to the facts.
Endorsing a similar proposal in an earlier Congress, the Senate Judiciary Committee cited finality and judicial thst
economy, S.Rept. 226, 98 Cong., 1 Sess. 6-7 (1983). The report also noted academic support and that a comparable
state of the law existed before the Court’s decision in Brown v. Allen, 344 U.S. 443 (1954), id., at 23, citing Bator,
Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARVARD LAW REVIEW 441, 444-62
(1963); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 UNIVERSITY OF CHICAGO LAW
REVIEW 142, 165 n.125 (1970).
Opponents of the proposals generally responded first to what they saw as a shrinking of the Great Writ and that
prisoners with federal claims ought to be entitled to present them in a federal forum, 137 Cong.Rec. H 8000 (daily ed.
Oct. 17, 1991) (remarks of Rep. Jenkins); Yackle, The Reagan Administration’s Habeas Corpus Proposals, 68 IOWA
LAW REVIEW 609, 621 (1983). But the “federal right/federal forum” argument was not without its detractors, Withrow
v. Williams, 507 U.S. 680, 715 (1993) (Scalia, J., dissenting).
51 Rompilla v. Beard, 125 S.Ct. 2456, 2462 (2005), quoting, Wiggins v. Smith, 539 U.S. 519, 520 (2003).
52 “It is not enough that a federal habeas court, in its independent review of the legal question is left with a firm
conviction that the state court was erroneous. We have held precisely the opposite: ‘Under §2254(d)1)’s unreasonable
application clause, then a federal habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established federal law erroneously or
incorrectly.’ Rather, that application must be objectively unreasonable,” Lockyer v. Andrade, 538 U.S. 63, 75-76
(2003), quoting, Williams v. Taylor, 529 U.S. 362, 411 (2000); see also, Bell v. Cone, 535 U.S. 685, 699 (2002);
Woodford v. Visciotti, 537 U.S. 19, 27 (2002); Wiggins v. Smith, 539 U.S. 510, 520 (2003); Rompilla v. Beard, 125
S.Ct. 2456, 2462 (2005).
materially indistinguishable from a decision of [the] Court but reaches a different result.”53
Obviously, a state court determination of a question which relevant Supreme Court precedent
leaves unresolved can be neither contrary to, nor an unreasonable application, of Court 54
The Court has had fewer occasions to construe the unreasonable-determination-of-facts language
in section 2254(d)(2). Three of the four cases have involved the prosecution’s purportedly
discriminatory peremptory jury strikes in which context the Court declared that, “a federal habeas
court can only grant [such a] petition if it was unreasonable to credit the prosecutor’s race-neutral
explanations for the Batson challenge. State-court factual findings, moreover, are presumed
correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing 55
Exhaustion. The deference extended to state courts reaches not only their decisions but the
opportunity to render decisions arising within the cases before them. State prisoners were once
required to exhaust the opportunities for state remedial action before federal habeas relief could
be granted, 28 U.S.C. 2254(b),(c) (1994 ed.). This “exhaustion doctrine is principally designed to
protect the state courts’ role in the enforcement of federal law and prevent disruption of state
judicial proceedings. Under our federal system, the federal and state courts [are] equally bound to
guard and protect rights secured by the Constitution,” Ex parte Royall, 117 U.S. 241, 251 (1886).
Because “it would be unseemly in our dual system of government for a federal district court to
upset a state court conviction without an opportunity to the state courts to correct a constitutional
violation,” federal courts apply the doctrine of comity, which “teaches that one court should defer
action on causes properly within its jurisdiction until the courts of another sovereign with
concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon
the matter,” Darr v. Burford, 339 U.S. 200, 204 (1950).
“A rigorously enforced total exhaustion rule encourage[s] state prisoners to seek full relief first
from the state courts, thus giving those courts the first opportunity to review all claims of
constitutional error. As the number of prisoners who exhaust all of their federal claims increases,
state courts may become increasingly familiar with and hospitable toward federal constitutional
claims. Equally important, federal claims that have been fully exhausted in state courts will more
often be accompanied by a complete factual record to aid the federal courts in their review,” Rose
v. Lundy, 455 U.S. 509, 518-19 (1982).
The AEDPA preserves the exhaustion requirement,56 and reenforces it with an explicit demand 57
that a state’s waiver of the requirement must be explicit. On the other hand, Congress appears to
53 Brown v. Payton, 544 U.S. 133 (2005), citing, Williams v. Taylor, 529 U.S. 362, 405 (2000) and Early v. Packer, 537
U.S. 19, 24-5 (2002).
54 Kane v. Garcia Espitia, 126 S.Ct. 407, 408 (2005).
55 Rice v. Collins, 126 S.Ct. 969, 974 (2006), citing, Miller-El v. Dretke, 125 S.Ct. 2317, 2325 (2005) which in turn
quoted Miller-El v. Cockrell, 537 U.S. 322, 340 (2003), when it noted that “the standard is demanding but not
insatiable. . . ‘deference does not by definition preclude relief’” see also, Wiggins v. Smith, 539 U.S. 510, 528 (2003),
an assistance of counsel case in which Court observed that a “partial reliance on an erroneous factual finding further
highlights the unreasonableness of the state court’s decision.”
56 28 U.S.C. 2254(b)(1)(A). The requirement is subject to exception when “it appears that . . . (i) there is an absence of
available state corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of
the applicant,” 28 U.S.C. 2254(b)(1)(B); Banks v. Dretke, 540 U.S. 668, 690 (2004).
57 28 U.S.C. 2254(b)(3). “[U]nder pre-AEDPA law, exhaustion and procedural default defenses could be waived based
on the state’s litigation conduct,” Banks v. Dretke, 540 U.S. 668, 705 (2004), citing, Granberry v. Greer, 481 U.S. 129,
have been persuaded that while as a general rule constitutional questions may be resolved more
quickly if state prisoners initially bring their claims to state courts, in some cases where a state
prisoner has mistakenly first sought relief in federal court, operation of the exhaustion doctrine 58
may contribute to further delay. Hence, the provisions of 28 U.S.C. 2254(b)(2) authorize
dismissal on the merits of mixed habeas petitions filed by state prisoners.
The AEDPA bars repetitious habeas petitions by state and federal prisoners, 28 U.S.C. 2244(b).
Under earlier law, state prisoners could not petition for habeas relief on a claim they had included
or could have included in earlier federal habeas petitions unless they could show “cause and 59
prejudice” or a miscarriage of justice. Cause could be found in the ineffective assistance of
counsel, Kimmelman v. Morrison, 477 U.S. 365 (1986); the subsequent development of some
constitutional theory which would have been so novel at the time it should have been asserted as
to be considered unavailable, Reed v. Ross, 468 U.S. 1 (1984); or the discovery of new evidence
not previously readily discoverable, Amadeo v. Zant, 486 U.S. 214 (1988).
A prisoner unable to show cause and prejudice might nevertheless be entitled to federal habeas
relief upon a showing of a “fundamental miscarriage of justice.” This required a showing “by
clear and convincing evidence that but for a constitutional error, no reasonable juror would find
[the petitioner guilty or] eligible for the death penalty under [applicable state] law,” Sawyer v.
Whitney, 505 U.S. 333, 348 (1992).
The Court’s pre-AEDPA tolerance for second or successive habeas petitions from state prisoners
was limited; the tolerance of the AEDPA is, if anything, more limited. “If the prisoner asserts a
claim that he has already presented in a previous federal habeas petition, the claim must be 60
dismissed in all cases.” A claim not mentioned in an earlier petition must be dismissed unless it
falls within one of two narrow exceptions: (A) it relies on a newly announced constitutional 61
interpretation made retroactively applicable; or (B) it is predicated upon on newly discovered
58 “This reform will help avoid the waste of state and federal resources that now result when a prisoner presenting a
hopeless petition to a federal court is sent back to the state courts to exhaust state remedies. It will also help avoid
potentially burdensome and protracted inquiries as to whether state remedies have been exhausted, in cases in which it
is easier and quicker to reach a negative determination of the merits of a petition. . . . The [Act] further provides that a
state shall not be deemed to have waived the exhaustion requirement or be estopped from reliance on the requirement
unless it waives the requirement expressly through counsel. This provision accords appropriate recognition to the
important interests in comity that are implicated by the exhaustion requirement in cases in which relief maybe granted.
This provision is designed to disapprove those decisions which have deemed states to have waived the exhaustion
requirement, or barred them from relying on it, in circumstances other than where the state has expressly waived the
requirement,” H.Rept. 104-23 at 9-10 (1995).
59 McCleskey v. Zant, 499 U.S. 467, 492-97 (1991).
60 Tyler v. Cain, 533 U.S,. 656, 661 (2001), citing, 28 U.S.C. 2244(b)(1).
61 “This provision [28 U.S.C. 2244(b)(2)(A)] establishes three prerequisites to obtaining relief in a second or successive
petition: First, the rue on which the claim relies must be a ‘new rule’ of constitutional law; second, the rule must have
been ‘made retroactive to cases on collateral review by the Supreme Court;’ and, third, the claim must have been
‘previously unavailable.’ In this case, the parties ask us to interpret only the second requirement. . . . Based on the plain
meaning of the text read as a whole, we conclude that ‘made’ means ‘held’ and, thus, the requirement is satisfied only
if this Court has held that the new rule is retroactively applicable to cases on collateral review,” Tyler v. Cain, 533 U.S.
evidence, not previously available through the exercise of due diligence, which together with
other relevant evidence establishes by clear and convincing evidence that but for the belatedly
claimed constitutional error “no reasonable factfinder would have found the applicant guilty,” 28
U.S.C. 2244(b)(2). Moreover, the exceptions are only available if a three judge panel of the
federal appellate court authorizes the district court to consider the second or successive petition
because the panel concludes that the petitioner has made a prima facie case that his claim falls
within one of the exceptions, 28 U.S.C. 2244(b)(3). And the section purports to place the panel’s
decision beyond the en banc jurisdiction of the circuit and the certiorari jurisdiction of the
Supreme Court, 28 U.S.C. 2244(b)(3)(E). The Supreme Court, in Felker v. Turpin, held that
because it retained its original jurisdiction to entertain habeas petitions neither the gatekeeper
provisions of section 2244(b)(3) nor the limitations on second or successive petitions found in
sections 2244(b)(1) and (2) deprive the Court of appellate jurisdiction in violation of Article III, 62
§2. At the same time, it held that the restrictions came well within Congress’ constitutional 63
authority and did not “amount to a ‘suspension’ of the writ contrary to Article I, §9. In Castro v.
United States, 540 U.S. 375, 379-81 (2003), the Court held that section 2244(b)(3)(E) constraint
upon its certiorari jurisdiction is limited to instances where the lower appellate court has acted on
a request to file a successive petition, and does not apply to instances where the lower appellate
court has reviewed a trial court’s successive petition determination.
Until the mid-twentieth century, a federal habeas corpus petition could be filed and the writ 64
granted at any time as long as the petitioner remained under government confinement, but court
rules applicable to both state and federal prisoners were then adopted to permit the dismissal of
stale petitions if the government’s ability to respond to the petition has been prejudiced by the 65
passage of time. The Rules did not preclude federal habeas review merely because the 66
government’s ability to retry the petitioner had been prejudiced by the passage of time; nor did
they apply where the petitioner could not reasonably have acquired the information necessary to
apply before prejudice to the government occurred, Rules 9(a), supra.
The AEDPA established a one year deadline within which state and federal prisoners must file
their federal habeas petitions, 28 U.S.C. 2244(d), 2255. The period of limitations begins with the
• the date of final completion of direct state review procedures;
• the date of removal of a government impediment preventing the prisoner from
filing for habeas relief;
• the date of Supreme Court recognition of the underlying federal right and of the 67
right’s retroactive application; or
62 518 U.S. 651, 661-63 (1996).
63 Felker v. Turpin, 518 U.S. at 664 (1996).
64 United States v. Smith, 331 U.S. 469, 475 (1947) (“habeas corpus provides a remedy . . . without limit of time”).
65 Rule 9(a), Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. 2254 App. (1994 ed);
see also Rule 9(a), Rules Governing Section 2255 Cases in the United States District Courts, 28 U.S.C. 2255 App.
66 Vasquez v. Hillery, 474 U.S. 254 (1986).
67 When the Court recognizes the right in one decision and later asserts its retroactive application, the statute of
• the date of uncovering previously undiscoverable evidence upon which the
habeas claim is predicated.
The period is tolled during the pendency of state collateral review,68 that is, “during the interval
between (1) the time a lower state court reaches an adverse decision, and (2) the day the prisoner 69
timely files an appeal.” When the state appeal is not filed in a timely manner, when it “is 70
untimely under state law, that is the end of the matter for purposes of 2244(d)(2).” A qualifying
petition must be “properly filed” with the appropriate state court, but a petition for state collateral
review is no less properly filed simply because state procedural requirements other than 71
timeliness preclude the state courts from ruling on the merits of the petition.
Amendments, submitted after the expiration of a year, to a petition filed within the one year
period limitation, that assert claims unrelated in time and type to those found in the original 72
petition do not relate back and are time barred. A state may waive the statute of limitations
defense, but its intent to do so must be clear and not simply the product of a mathematical 73
The statute of limitations provisions initially presented a novel problem for district courts faced
with mixed petitions of exhausted and unexhausted claims. Before the AEDPA, district courts
could not adjudicate mixed petitions but were required to first give state courts the opportunity to 74
resolve the exhausted claims. Petitioners could then return to habeas for adjudication of any
remaining exhausted claims. “As a result of the interplay between AEDPA’s 1-year statute of
limitations and Lundy’s dismissal requirement, petitioners who come to federal court with ‘mixed’
petitions run the risk of forever losing their opportunity for any federal review of their
unexhausted claims. If a petitioner files a timely but mixed petition in federal district court, and
the district court dismisses it under Lundy after the limitations period has expired, this will likely 75
mean the termination of any federal review.” Nevertheless, the district court is under no 76
obligation to warn pro se petitions of the perils of mixed petitions. Although cautioning against
limitations begins to run from the date of the decision recognizing the right, Dodd v. United States, 125 S.Ct. 2478,
68 Many states have a state equivalent of federal habeas corpus sandwiched between direct appeal and federal habeas.
In these jurisdictions there may be as many as eight levels of review: (1) direct appeal in state court, (2) an opportunity
to petition for review by the United States Supreme Court, (3) petition for collateral review in state court, (4) appeal to
state appellate courts of any denial of collateral relief in state court, (5) an opportunity to petition for review by the
United States Supreme Court, petition for habeas relief in federal district court, (7) appeal of any denial in federal
district court, and (8) an opportunity for United States Supreme Court review.
69 Evans v. Chavis, 126 S.Ct. 846, 849 (2006), citing, Carey v. Saffold, 536 U.S. 214, 219-21 (2002).
70 Pace v. DiGuglielmo, 125 S.Ct. 1807, 1812 (2005); similarly for federal prisoners, tolling pending appeal ends when
the Court renders its decision or when the time for filing a petition for certiorari expires, Clay v. United States, 537 U.S.
71 Artuz v. Bennett, 531 U.S. 4, 8 (2000).
72 Mayle v. Felix, 125 S.Ct. 2562, 2569-570 (2005).
73 Day v. McDonough, 126 S.Ct. ____, ____ (2006).
74 Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
75 Rhines v. Weber, 125 S.Ct. 1528, 1533 (2005).
76 Pliler v. Ford, 542 U.S. 225, 227 (2004); the Court left open the question of whether such a prisoner might
subsequently file an out of time, amended petition relating back to his original timely petition under a claim of
improper dismissal, id.
abuse if too frequently employed, the Court endorsed the “stay and abeyance” solution suggested
by several of the lower courts, under which in appropriate cases, the portion of a state prisoner’s
mixed petition related to exhausted habeas claims are stayed and held in abeyance until he can 77
return to state court and exhaust his unexhausted claims.
At one time, an appeal from a federal district court’s habeas decision could only proceed upon the
issuance of a probable cause certification issued by either the district court judge or a federal 78
appellate judge that the appeal involved an issue meriting appellate consideration, and could
only be granted after the prisoner had made a “substantial showing of the denial of [a] federal 79
With slight changes in terminology, the AEDPA leaves the matter largely unchanged.80 Appeals
are only possible upon the issuance of certification of appealability (COA), upon a substantial 81
showing of a constitutional right. A petitioner satisfies the requirement when he can show that
“reasonable jurists would find the district court’s assessment of the constitutional claims 82
debatable or wrong.”
This does not require the petitioner show a likelihood of success on the merits; it is enough that 83
reasonable jurists would find that the claim warrant closer examination. Should the district have
dismissed the habeas petition on procedural grounds, a COA may be issued only upon the
assessment that reasonable jurists would consider both the merits of the claim and the procedural 84
grounds for dismissal debatable. Because the COA requirement is jurisdictional, an appellate
77 “[S]tay and abeyance should be available only in limited circumstances. . . . [S]tay and abeyance is only appropriate
when the district court determines there was good cause for the petitioner’s failure to exhaust his claims first in state
court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it
were to grant him a stay when his unexhausted claims are plainly meritless. . . .And if a petitioner engages in abusive
litigation tactics or intentional delay, the district court should not grant him a stay. On the other hand, it likely would be
an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause
for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is not indication that the
petitioner engaged in intentionally dilatory litigation tactics,” Rhines v. Weber, 125 S.Ct. 1528, 1535 (2005).
78 28 U.S.C. 2254 (1994 ed.).
79 Barefoot v. Estelle, 463 U.S. 880, 893 (1983).
80 28 U.S.C. 2253(c).
81 28 U.S.C. 2253(c)(1), (2).
82 Tennard v. Dretke, 542 U.S. 274, 282 (2004), citing, Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) and Slack v.
McDaniel, 529 U.S. 473, 484 (2000); see also Banks v. Dretke, 540 U.S. 668, 703-705 (2004).
83 Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)(“A prisoner seeking a COA must prove something more than the
absence of frivolity or the existence of mere good faith on his or her part. We do not require petitioner to prove, before
the issuance of a COA, that some jurists would grant the petition for habeas corpus. Indeed, a claim may be debatable
even though every jurist of reason might agree, after the COA has been granted and the case has received full
consideration that petitioner will not prevail”).
84 Slack v. McDaniel, 529 U.S. 473, 484 (2000)(“Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy 2253(c) is straightforward: the petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or wrong. The issue becomes
somewhat more complicated where, as here, the district court dismissed the petition based on procedural grounds. We
hold as follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s
underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling”).
court may not treat an application of the COA as an invitation to immediately pass upon the 85
merits without first granting the certificate. Although the Court had declared that it lacked
statutory jurisdiction to review the denial of a certificate of probable cause under a writ of 8687
certiorari, the denial of a COA may be challenged under the writ.
The AEDPA did not touch upon every aspect of federal habeas law, either statutory or case law.
In Wainwright v. Sykes, 433 U.S. 72 (1977), and the cases which followed its lead, the Court
declared that state prisoners who fail to raise claims in state proceedings are barred from doing so
in federal habeas proceedings unless they can establish both “cause and prejudice.” The Court
later explained that the same standard should be used when state prisoners abused the writ with 88
successive petitions asserting claims not previously raised, and when they sought to establish a 89
claim by developing facts which they had opted not to establish during previous proceedings. Of 90
the two elements, prejudice requires an actual, substantial disadvantage to the prisoner.
What constitutes cause is not easily stated. Cause does not include tactical decisions,91 ignorance, 92
inadvertence or mistake of counsel, or the assumption that the state courts would be 9394
unsympathetic to the claim. Cause may include the ineffective assistance of counsel; some 95
forms of prosecutorial misconduct; the subsequent development of some constitutional theory
85 Id. at 336-67 (“This threshold inquiry does not require full consideration of the factual or legal bases adduced in
support of the claims. In fact, the statute forbids it. When a court of appeals sidesteps this process by first deciding the
merits of an appeal, and then justifying its denial of a COA based on its adjudication fo the actual merits, it is in
essence deciding an appeal without jurisdiction”).
86 House v. Mayo, 324 U.S. 42, 44 (1945).
87 Hohn v. United States, 524 U.S. 236, 253 (1998).
88 McClesky v. Zant, 499 U. S. 467 (1991).
89 Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
90 Engle v. Isaac, 456 U.S. 107 (1982).
91 Smith v. Murray, 477 U.S. 527 (1986).
92 Murray v. Carrier, 477 U.S. 478 (1986).
93 Engle v. Isaac, 456 U.S. 107, 130 (1982).
94 Kimmelman v. Morrison, 477 U.S. 365 (1986). In order for ineffective assistance of counsel to satisfy a petitioner’s
burden to show cause for his procedural default (by failing to raise a claim in state court), the claim of ineffective
assistance must have been presented to the state courts, Edwards v. Carpenter, 529 U.S. 446, 452 (2000), quoting,
Murray v. Carrier, 477 U.S. 478, 489 (1986), (“‘a claim of ineffective assistance’ must ‘be presented to the state courts
as an independent claim before it may be used to establish cause for a procedural default’”).
95 Strickler v. Greene, 527 U.S. 263, (1999)(finding cause for failure to raise a Brady claim relating to the prosecution’s
obligation to disclose of exculpatory evidence when “(a) the prosecution withheld exculpatory evidence; (b) petitioner
reasonable relied on the prosecution’s open file policy as fulfilling the prosecution’s duty to disclose such evidence;
and (c) the [State] confirmed petitioner’s reliance on the open file policy by asserting during state habeas proceedings
that petitioner had already received everything known to the government”), quoted with approval in Banks v. Dretke,
540 U.S. 668, 692-93 (2004).
which would have been so novel at the time it should have been asserted as to be considered 9697
unavailable; or the discovery of new evidence not previously readily discoverable.
Federal courts may entertain a habeas petition, notwithstanding default and the failure to establish
cause, in any case where failure to grant relief, based on an error of constitutional dimensions,
would result in a miscarriage of justice due to the apparent conviction of the innocent, Murray v.
Carrier, supra. In order the meet this “actually innocent” standard, the prisoner must show that “it 98
is more likely than not that no reasonable juror would convict him.” When the petitioner
challenges his capital sentence rather than his conviction, he must show “by clear and convincing
evidence that, but for the constitutional error, no reasonable juror would have found the petitioner 99
eligible for the death penalty.” This miscarriage of justice exception, whether addressed to the
petitioner’s guilt or sentence, is a matter that can be taken up only as a last resort after all
nondefaulted claims for relief and the grounds for cause excusing default on other claims have 100
In Herrera v. Collins, 506 U.S. 390 (1993), the Court splintered over the question of whether
newly discovered evidence of actual innocence, without some procedural error of constitutional
magnitude, permitted habeas relief. Chief Justice Rehnquist, author of the opinion for the Court,
finessed the issue by assuming without deciding that at some quantum of evidence of a 101
defendant’s innocence the Constitution would rebel against his or her execution. Short of that
point and cognizant of the availability of executive clemency, newly discovered evidence of the
factual innocence of a convicted petitioner, unrelated to any independent constitutional error, does 102
not warrant habeas relief.
96 Reed v. Ross, 468 U.S. 1, 16 (1984).
97 Amadeo v. Zant, 486 U.S. 214, 222 (1988).
98 Schlup v. Delo, 513 U.S. 298, 327 (1995). The standard rests between that of Sawyer v. Whitley, 505 U.S. 333, 336
(1992)(that the petitioner show “by clear and convincing evidence that but for a constitutional error, no reasonable juror
would have found petitioner [guilty or] eligible for the death sentence under the applicable state law”) and that of
Strickland v. Washington, 466 U.S. 668, 695 (1986)(the petitioner must show “a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt respecting guilt”), Schlup v. Delo, 513 U.S. at 332-33
99 Sawyer v. Whitlety, 505 U.S. 333, 336 (1992).
100 Dretke v. Haley, 541 U.S. 386, 393-94 (2004).
101 “We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive
demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and
warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very
disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and
the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold
showing of such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this
case falls far short of any such threshold,” 506 U.S. at 417.
102 “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal
habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.
‘Where newly discovered evidence is alleged in a habeas application, evidence which could not reasonably have been
presented to the state trier of fact, the federal court must grant an evidentiary hearing. Of course, such evidence must
bear upon the constitutionality of the applicant’s detention; the existence merely of newly discovered evidence relevant
to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.’. . .
“Petitioner in this case is simply not entitled to habeas relief based on the reasoning of this line of cases [, i.e. Sawyer v.
Whitley and other cases involving default]. For he does not seek excusal of a procedural error so that he may bring an
independent constitutional claim challenging his conviction or sentence, but rather argues that he is entitled to habeas
relief because newly discovered evidence shows that his conviction is factually incorrect. The fundamental miscarriage
of justice exception is available ‘only where the prisoner supplements his constitutional claim with a colorable showing
The mere presence of constitutional error by itself does not present sufficient grounds for
issuance of the writ unless the error is also harmful, i.e., “unless the error had a substantial and 103
injurious effect or influence in determining the jury’s verdict.” The writ will issue, however, 104
where the court has grave doubt as to whether the error was harmless.
The line of cases beginning with Teague v. Lane, 489 U.S. 288 (1989) drastically limits use of
federal habeas to raise novel legal issues by restricting for habeas purposes the retroactive
application of the Supreme Court’s decisions.
Prior to Teague when the Court announced a new rule concerning constitutional requirements
binding in state criminal procedure cases, it employed one of two approaches. In some cases, it
simultaneously announced whether the new rule was to have retroactive or prospective
applications. In others, it postponed that decision until a subsequent case. In either instance, the
Court employed a test first articulated in Linkletter v. Walker, 381 U.S. 618 (1965), to determine
whether a new rule should be applied retroactively. Under the test, the Court considered “(a) the
purpose to be served by the new standards, (b) the extent of the reliance by law enforcement
authorities on the old standards, and (c) the effect on the administration of justice of a retroactive 105
application of the new standards.”
In Teague, the Court adopted a different approach, borrowing from a position espoused earlier by 106
Justice Harlan. Under this view, habeas is perceived as a deterrent used to encourage state and
lower federal courts to adhere to constitutional standards. Therefore, a novel constitutional
interpretation, or “new rule” should not be applied retroactively during federal habeas review of
state convictions since state courts could only be expected to defer to those rules in existence
when their consideration became final. Furthermore, since it would be unfair to grant a habeas
of factual innocence,’” 506 U.S. at 400, 404, quoting and adding emphasis to Townsend v. Sain, 372 U.S. 293, 317
(1963), and Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) respectively.
Justice O’Connor and Kennedy concurred in a separate opinion endorsing the principles identified in the majority
opinion and stressing that Herrera could not be considered innocent under any standard. 506 U.S. at 419 (O’Connor &
Kennedy, JJ.) (concurring). The separate concurrence of Justices Scalia and Thomas highlighted the continued validity
of Townsend proposition “that newly discovered evidence relevant only to a state prisoner’s guilt or innocence is not a
basis for federal habeas corpus relief,” 506 U.S. at 429 (Scalia & Thomas, JJ.)(concurring). Justice White’s individual
concurrence offers the due process standard that he felt would warrant habeas relief and that Herrera failed to meet –
“based on proffered newly discovered evidence and the entire record before the jury that convicted him, ‘no rational
trier of fact could [find] proof of guilt beyond a reasonable doubt,’” 506 U.S. at 429 (White, J)(concurring), quoting
Jackson v. Virginia, 443 U.S. 307, 324 (1979).
Justices Blackmun, Stevens and Souter dissented because they would have identified, and have given the lower courts
the opportunity to apply, the Eight Amendment “contemporary standards of decency” and the due process “shocking to
the conscience” standards as tests for the point at which habeas relief should be grant the “actually innocent” respective
of the absence of any independent constitutional error. 506 U.S. at 430 (Blackmun, Stevens & Souter, JJ.) (dissenting).
103 Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), quoting, Kotteakos v. United States, 328 U.S. 750, 776 (1946).
104 O’Neal v. McAninch, 513 U.S. 432, 435 (1995).
105 Stovall v. Denno, 388 U.S. 293, 297 (1967).
106 See Desist v. United States, 394 U.S. 244, 256 (1969)(Harlan, J.)(dissenting); Mackey v. United States, 401 U.S.
667, 675 (1971)(Harlan, J.)(concurring in the judgment).
petitioner the benefit of a new rule but deny its benefits retroactively to others similarly situated,
a plurality of the Court held that “habeas corpus cannot be used as a vehicle to create new
constitutional rules of criminal procedure unless those rules would be applied retroactively to all
defendants on collateral review” under one of the two exceptions where retroactive application is
permitted, 489 U.S. at 316.
Thus, under Teague and its companion, Penry v. Lynaugh, 492 U.S. 302 (1989), a new rule
cannot be sought through federal habeas and a new rule may only be applied retroactively for the
benefit of habeas petitioners when (1) the new interpretation “places certain kinds of primary,
private individual conduct beyond the power of the criminal law-making authority to proscribe,”
489 U.S. at 307, or places “a certain category of punishment for a class of defendants because of
their status or offense” beyond the power of the criminal law-making authority to proscribe, 492
U.S. at 329, or (2) the new interpretation “significantly improve[s] the pre-existing fact finding
procedures . . . [which] implicate the fundamental fairness of the trial . . . [and] without which the
likelihood of an accurate conviction is seriously diminished,” 489 U.S. at 312-13.
In order to constitute a new interpretation or “new rule” for purposes of the exceptions, the
interpretation must “break new ground or impose a new obligation on the States or Federal
Government,” or “[t]o put it differently, a case announces a new rule if the result was not dictated
by precedent existing at the time the defendant’s conviction became final,” 489 U.S. at 301
(emphasis of the Court). A decision may announce a “new rule” for purposes of Teague, even if
the Court states its decision is “dictated by precedent,” as long as a split in the lower courts or
some other source of authority provides a ground upon which a different outcome might 107
reasonably have been anticipated, for the Teague rule “serves to validate reasonable, good-faith
interpretations of existing precedents made by state courts even though they are shown to be 108
contrary to later decisions.”
The Court has more recently indicated that the rules covered in the first exception, the exception
for rules that place certain conduct beyond proscriptive reach, are more accurately characterized
as substantive rather than procedural rules and thus not subject to the Teague rule from the 109
The second exception, available to new “watershed rules of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding” like Gideon v. Wainwright, 372
U.S. 335 (1963), does not extend to cases less indispensible to fundamental fairness than 110
Gideon. The Court observed in Beard v. Banks that it has yet to rule on a case that satisfied this 111
second Teague exception.
107 Butler v. McKellar, 494 U.S. 407, 415 (1990).
108 Sawyer v. Smith, 497 U.S. 227, 234 (1990), quoting Butler v. McKellar, 494 U.S. at 414. Graham v. Collins, 506
U.S. 461 (1993); Gilmore v. Taylor, 508 U.S. 333 (1993). The lower courts may not, however, disregard clear
indications that a rule, sought or sought to be applied retroactively, is “dictated by precedent” and thereby escape the
new rule limitations, Stringer v. Black, 503 U.S. 222, 234-35 (1992).
109 Beard v. Banks, 542 U.S. 406, 411 n.3 (2004)(“Rules that fall within what we have referred to as Teague’s first
exception ‘are more accurately characterized as substantive rules not subject to [Teague’s] bar’”), quoting, Schriro v.
Summerlin, 542 U.S. 348, 352 n.4 (2004).
110 Saffle v. Parks, 494 U.S. 484, 495 (1990); Sawyer v. Smith, 497 U.S. 227 (1990).
111 Beard v. Banks, 542 U.S. 406, 417 (2004).
One of the most interesting and perplexing features of federal habeas involves the question of
Congress’ authority to restrict access to the writ. The Constitution nowhere expressly grants a
right of access to the writ, although it might be seen as attribute of the suspension clause or the
due process clause or both. Yet the suspension clause says no more than that “the privilege of the
writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the
public safety may require it,” U.S. Const. Art.I, §9, cl.2. And the due process clause speaks with
an equal want of particularity when it declares that, “no person shall . . . deprived of life, liberty,
or property, without due process of law,” U.S. Const. Amend. V. Balanced against this, is the
power of Congress to “ordain and establish” the lower federal courts, U.S. Const. Art. III, §1; to
regulate and make exceptions to the appellate jurisdiction of the Supreme Court, U.S. Const. Art.
III, §2, cl.2; to enact all laws necessary and power to carry into effect the constitutional powers of
the courts as well as its own, U.S.Const. Art. I, §8, cl.18; and at least arguably the power to
suspend the privilege to the writ in times of rebellion or invasion, U.S. Const. Art. I, §9, cl.2.
The Constitution vests the judicial power of the United States in the Supreme Court and in the 112
inferior courts created by Congress, and describes two classes of Supreme Court jurisdiction,
original and appellate. It explicitly identifies the kinds of cases which fall within the Court’s
original jurisdiction; the Court’s appellate jurisdiction is portrayed more generally and with the 113
notation that it is subject to Congressional exception and regulation. Does this afford Congress
sufficient authority to restrict the habeas jurisdiction of the lower courts and the Supreme Court’s 114
appellate habeas jurisdiction?
The Court has considered these questions in the past. After the Civil War, Congress conferred
additional habeas authority upon the federal courts as a check against state authorities in the
newly reconstructed South by making the writ available to anyone held in violation of the
Constitution and other laws of the United States. It vested appellate jurisdiction over lower court
exercise of this new authority in the Supreme Court, but made an exception for prisoners held by 115
112 “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish. . . . The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United States. . . .” U.S.Const. Art.III, §1.
113 “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party,
the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall
have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress
shall make,” U.S.Const. Art.III, §2, cl.2.
114 Note that the Constitution’s description of the Supreme Court’s original jurisdiction makes no mention of habeas,
U.S. Const. Art. III, §2, cl.2 (above).
115 “[T]he several courts of the United States, and the several justices and judges of such courts, within their respective
jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in
all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law
of the United States. . . . From the final decision of any judge, justice, or court, inferior to the circuit court, an appeal
may be taken to the circuit court of the United States . . . and from said circuit court to the Supreme Court of the United
States, on such terms and under such regulations and orders . . . as may prescribed by the Supreme Court . . . . This act
shall not apply to the case of any person who is or may be held in the custody of the military authorities of the United
Stats, charged with any military offence, or with having aided or abetted rebellion against the government of the United
Notwithstanding the exception for prisoners held under military authority, the first case to come
before the Court involved William McCardle, a Mississippi newspaper editor, arrested by military
authorities for trial by a military commission under the reconstruction laws on charges of inciting 116
“insurrection, disorder and violence.” His petition for a writ of habeas corpus was denied by 117
the federal circuit court and he appealed to the Supreme Court.
The government moved to dismiss the appeal on the ground that appeal had been expressly
excluded in cases involving Confederate sympathizers held in military custody. The Court denied
the motion – because the military custody exception applied only to the expansion of habeas
afforded by the 1867 Act while McCardle called upon the pre-existing habeas authority of the
Judiciary Act of 1789 – and set the case for argument, Ex parte McCardle, 73 U.S.(6 Wall.) 318
(1868). But before the case could be decided on its merits, Congress repealed the law vesting 118
appellate jurisdiction in the Court.
Its jurisdiction to decide the appeal having been withdrawn, the Court dismissed the appeal for
want of jurisdiction, Ex parte McCardle, 74 U.S.(7 Wall.) 506 (1868). In doing so, however, the
Court made it clear that the loss of its jurisdiction to hear appeals in habeas cases did not mean 119
the loss of its ability to review lower court habeas decisions altogether. The review available
prior to the 1867 Act remained available just as the Court had described in its earlier McCardle
But, though the exercise of appellate jurisdiction over judgments of inferior tribunals was not
unknown to the practice of this court before the act of 1867, it was attended by some
inconvenience and embarrassment. It was necessary to use the writ of certiorari in addition
to the writ of habeas corpus, and there was no regulated and established practice for the 120
guidance of parties invoking the jurisdiction, 73 U.S.(6 Wall.) at 324.
States prior to passage of this act,” 14 Stat. at 385-86 (1867).
116 Fairman, Reconstruction and Reunion 1864-88, VI HISTORY OF THE SUPREME COURT OF THE UNITED STATES 437
117 ID. at 438-40.
118 “That so much of the act approved February five, eighteen hundred and sixty seven [14 Stat. 385] . . . as authorizes
an appeal from the judgment of the circuit court to the Supreme Court of the United States, or the exercise of any such
jurisdiction by said Supreme Court on appeals which have been or may hereafter be taken, be, and the same is, hereby
repealed,” 15 Stat. 44 (1868).
119 “Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power
of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not except from that
jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which
was previously exercised. Ex parte McCardle, 6 Wallace, 324,” 74 U.S. at 515.
120 The writ of certiorari cited by the Court was not the statutorily fortified writ we now know, but a considerably more
modest version. It worked to remove an indictment or other record and thus proceedings from an inferior court. Both
writs were required because (1) the Supreme Court’s original jurisdiction could not be statutorily increased, Marbury v.
Madison, 5 U.S.(1 Cranch) 103 (1807), and thus an “original” writ could only issue from the Court in aid of its
appellate jurisdiction; (2) but habeas, unaided, did not remove proceedings from a lower court since it only demanded
the presence of a prisoner and his or her custodian to appear before the court; (3) certiorari, unaided, was likewise
insufficient since it accomplished no more than to retrieve process and records from an inferior court, Oaks, The
“Original” Writ of Habeas Corpus in the Supreme Court, 1962 SUPREME COURT REVIEW 153, 154 (“The two [writs]
were complimentary. Certiorari removed the record, but not the prisoner; habeas corpus removed the prisoner, but not
The Court reexamined and confirmed this view the following year when it concluded that it had
jurisdiction under writs of habeas corpus and certiorari to review the case of another Mississippi
newspaper man held by military authorities. The 1868 Act repealed appellate jurisdiction vested
in the Court by the 1867 Act. The 1868 Act did not repeal any of the provisions of the Judiciary
Act of 1789; the Court’s earlier authority to review habeas cases from the lower federal courts
through writs of habeas corpus, aided by writs of certiorari, remained available, Ex parte Yerger,
The question as to the scope of Congress’ control over Court’s appellate jurisdiction in habeas
cases surfaced again when a prisoner challenged the AEDPA’s habeas limitations in Felker v.
Turpin, 518 U.S. 651 (1996). In particular, Felker argued that the provisions of 28 U.S.C.
2244(b)(3)(E) which declared the appellate court determination of whether to authorize a second
or successive habeas petition was neither appealable nor “subject to a petition for rehearing or for
a writ of certiorari.”
As before, the Court took no offense to the limitation of habeas appellate jurisdiction. Since the
AEDPA “does not repeal [the Court’s] authority to entertain a petition for habeas corpus, there
can be no plausible argument that the Act has deprived this Court of appellate jurisdiction in
violation of Article III, §2,” 518 U. S. at 661-62. Review remained possible under the “original”
writ of habeas corpus.
After McCardle and Yerger, Congress restored the Court’s jurisdiction to review habeas cases
under less cumbersome appellate procedures in 1885, 23 Stat. 437. Once Congress reopened more
normal means of Supreme Court review in habeas cases, recourse to the original writ of habeas
corpus in the Supreme Court described in McCardle and Yerger had been infrequent and rarely
successful. Seen only as a burdensome way station of the unartful and ill advised, its best known 121
chronicler urged its effective abandonment.
Yet it offered the Court in Felker precisely what it supplied in McCardle and Yerger, a means of
preserving Supreme Court review, under circumstances where Congress rather clearly intended to
deny that possibility, without forcing the Court to address the question of whether Congress’
efforts exceed its constitutional authority.
The Supreme Court, in an opinion by Chief Justice Rehnquist, declared that “although the Act
does impose new conditions on [the Court’s] authority to grant relief, it does not deprive [the]
Court of jurisdiction to entertain original habeas petitions,” Felker v. Turpin, 518 U.S. at 658. Just
as McCardle and Yerger “declined to find a repeal of §14 of the Judiciary Act of 1789 as applied
to [the] Court by implication. . . [Felker] decline[s] to find a similar repeal of §2241 of Title 28. . . 122
.” 518 U.S. at 661.
121 Oaks, The “Original” Writ of Habeas Corpus in the Supreme Court, 1962 SUPREME COURT REVIEW 153, 206-7.
122 The symmetry is less than perfect, however, since McCardle and Yerger found the dual authority in two distinct
sources, the Judiciary Act of 1789 and the Act of 1867 while the Court points to section 2241 as the contemporary
source of both. Moreover, while the nineteenth century Congress purported to do no more than withdraw appellate
jurisdiction, its twentieth century successor sought to curtail certiorari jurisdiction as well.
Justice Steven’s concurrence identifies additional sources of review authority with the observation that the AEDPA
“does not purport to limit our jurisdiction under [section 1254(1)] to review interlocutory orders in such cases, to limit
our jurisdiction under 1254(2)[relating to Supreme Court review of questions certified by a court of appeals seeking
instruction], or to limit our jurisdiction under the All Writs Act, 28 U.S.C. §1651,” 518 U.S. at 666 (Stevens, J. joined
by Souter & Breyer, JJ.)(concurring).
Of course Felker sought not only review, but reversal. The Court refused to grant relief under its
original writ authority because Felker’s claims satisfied neither the demands of the Act nor those 123
of the Court’s Rule 20. It stopped short of holding, however, that it was required to follow the
Act’s standards in its original writ determinations: “Whether or not we are bound by these
restrictions [of the AEDPA], they certainly inform our consideration of original habeas petitions,”
518 U.S. at 663. Its reticence may have been calculated to avoid any suggestion that suspension
or exception clauses have become dead letters.
Although it concluded that Felker had not satisfied the requirement that the original writ issue
only upon “exceptional circumstances,” the Court did not say why nor did it indicate when such
exceptional circumstances might exist. On the other hand, the Court’s denial makes it clear that
McCardle and Yerger notwithstanding, legislative barriers blocking access to the more heavily
traveled paths to review do not by themselves constitute the necessary exception circumstances.
It is interesting that the Court sought refuge in the arcane confines of “original” habeas rather
than acknowledging that the gatekeeper provision came within the Congress’ power under the
exceptions and regulations clause whatever limitations that power might otherwise be subject to.
Given the expedited nature of the proceedings it may mean no more than that time precluded the
formulation of an opinion outlining the dimensions of the clause in terms that a majority on the 124
Court could endorse.
On the other hand, when considering the suspension clause issue the Felker Court seemed to
select the path it had shunned in its earlier treatment of the exceptions clause issue. The
suspension clause, housed among the explicit limitations on the Constitutional powers of
Congress, declares that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may require it,” U.S.Const. Art.
I, §9, cl.2.
The English history of the writ gives some clues as to its intent. When the King and the royal
courts began to recognize restrictions on the writ, the English Parliament had responded with the 125
Habeas Corpus Act of 1679. But in times of crisis, the Parliament allowed that the privilege of 126
the writ should be temporarily suspended upon its approval.
123 518 U.S. at 665 (“Our Rule 20.4(a) delineates the standards under which we grant such [original] writs of habeas
corpus: ‘A petition seeking the issuance of a writ of habeas corpus shall comply with the requirements of 28 U.S.C.
§§2241 and 2242, and in particular with the provision in the last paragraph of §2242 requiring a statement of the reason
for not making application to the district court of the district in which the applicant is held. If the relief sought is from
the judgment of a state court, the petition shall set forth specifically how and wherein the petitioner has exhausted
available remedies in the state courts or otherwise comes within the provisions of 28 U.S.C. 2254(b). To justify the
granting of a writ of habeas corpus, the petitioner must show exceptional circumstances warranting the exercise of the
Court’s discretionary powers and must show that adequate relief cannot be obtained in any other form or from any
other court. These writs are rarely granted.’ Reviewing petitioner’s claims here, they do not materially differ from
numerous other claims made by successive habeas petitioners which we have had occasion to review on stay
applications to this Court. Neither of them satisfies the requirements of the relevant provisions of the Act, let alone the
requirement that there be ‘exceptional circumstances’ justifying the issuance of the writ”).
124 “[I]f it should later turn out that statutory avenues other than certiorari for reviewing a gatekeeping determination
were closed, the question whether the statute exceeded Congress’ Exception Clause power would be open,” 518 U.S. at
667 (Souter, with Stevens & Breyer, JJ)(concurring).
125 3 BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 134-35 (1768)(“And yet, early in the reign of Charles I,
Perhaps the most notable of these suspensions occurred during the American Revolution when
Parliament annually enacted suspension provisions to permit temporary imprisonment of the 127
rebelling colonists without bail or trial for the duration of the year. Not to be outdone, several
the court of king’s bench relying on some arbitrary precedents (and those perhaps misunderstood) determined that they
could not upon an habeas corpus either bail or deliver a prisoner, though committed without any cause assigned, in
case he was committed by the special command of the king, or by the lords of the privy council. This drew on a
parliamentary enquiry, and produced the petition of right, 3 Car.I, which recites this illegal judgment, and enacts that
no freeman hereafter shall be so imprisoned or detained. But when, in the following year, Mr. Selden and others were
committed by the lords of the council . . . the judges delayed for two terms . . . to deliver an opinion how far such a
charge was bailable. . . . These pitiful evasions gave rise to the statute 16 Car.I. c.10. §.8. whereby it was enacted, that
if any person be committed by the king himself in person, or by his privy council, or by any member thereof, he shall
have granted unto him, without any delay upon any pretence whatsoever, a writ of habeas corpus upon demand or
motion to the court of the king’s bench or common pleas. . . . Other abuses had also crept into daily practice
[concerning the availability of the writ of habeas corpus], which had in some measure defeated the benefit of this great
constitutional remedy. . . The oppression . . . gave birth to the famous habeas corpus act, 31 Car.II. c.2, which is
frequently considered as another magna carta of the kingdom.”).
126 See e.g., 1 Wm.& Mary ch.7 (1689), reprinted in 6 STATUTES OF THE REALM 57 (“For the Securing the Peace of the
Kindome in this time of Imminent Danger against the Attempts and Traiterous Conspiracies of Evill disposed Persons
Bee it enacted . . . That every Person or Persons that shall be in Prison at or upon the Five and twentyeth Day of Aprill
in the Yeare of our Lord One thousand six hundred eighty and nine or after by Warrant of Their said Majesties most
Honourable Privy Councill Signed by Six of the Said Privy Councill for Suspicion of High Treason or Treasonable
Practices or by Warrant Signed by either of his Majesties secretaries of State for such Causes aforesaid may be detained
in same Custodie without Baile or Mainprize* until the Five and twentieth Day of May next.
“And that noe Judge or Justice or Court of Justice shall Baile or Try any such Person or Persons soe committed without
Order from Their said Majesties Privy Councill Signed by Six of the Said Privy Councill till the said Five and twentieth
Day of May any Law or Statute to the contrary notwithstanding.
“Provided always That from and after the said Five and twentyeth Day of May the said Persons soe Committed shall
have the Benefit and Advantage of an Act made in One and thirtyeth yeare of King Charles the Second Entitled an Act
for the better Securing the Liberty of the Subjects and for Prevention of Imprisonment beyond the Seas, and alsoe of all
other Laws and Statute any way relating to or provideing for the Liberty of the Subjects of this Realme And that this
present Act shall continue untill the said Five and twentyeth day of May and noe longer.”).
* “The writ of mainprize, manucapio, is a writ directed to the sheriff (either generally, when any man is imprisoned for
a bailable offence,and bail hath been refused; or specially, when the offence or cause of commitment is not properly
bailable below) commanding him to take sureties for the prisoner’s appearance, usually called mainpernors, and to set
him at large. Mainpernors differ from bail, in that a man’s bail may imprison or surrender him up before the stipulated
day of appearance; mainpernors can do neither, but are barely sureties for his appearance at the day; bail are only
sureties, that the party be answerable for the special matter for which they stipulate; mainpernors are bound to produce
him to answer all charges whatsoever,” 3 BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 128 (1768).
127 “Whereas a rebellion and war have been openly and traiterously levied and carried on in certain of his Majesty’s
colonies and plantations in America . . . be it therefore enacted . . . That all and every person or persons who have
been, or shall hereafter be seised or taken in the act of high treason committed in any of his Majesty’s colonies or
plantations in America, or on the high seas, or in the act of piracy, who are or shall be charged with or suspected of the
crime of high treason, committed in any of the said colonies, or on the high seas, or of piracy, and who have been, or
shall be committed . . . for such crimes, or any of them, or for suspicion of such crimes, or any of them, by any
magistrate having competent authority in that behalf, to the common gaol, or other place of confinement . . . shall and
may be thereupon secured and detained in safe custody, without bail or mainprize, until the first day of January, one
thousand seven hundred and seventy-eight; and that no judge or justice of peace shall bail or try any such persons or
persons without order from his Majesty’s most honourable privy council, signed by six of the said privy council, until
the said first day of January, one thousand seven hundred and seventy-eight, any law, statute, or usage to the contrary in
any-wise notwithstanding. . . .
“And be it further enacted by the authority aforesaid, That this act shall continue and be in force until the said first day
of January, one thousand seven hundred and seventy-eight, and no longer,” 17 Geo.III, ch.9 (1777), 31 STAT. AT LARGE
317-18; extending the suspension for an additional year, 18 Geo.III. ch.1 (1778), 32 STAT. AT LARGE 1-2; 19 Geo.III.
ch.1 (1779), 32 STAT. AT LARGE 175-76; 20 Geo.III. ch.5 (1780), 33 STAT. AT LARGE 3; 21 Geo.III. ch.2 (1781), 33
colonial legislatures afforded their executive officials similar authority to deal with those loyal to 128
Early in the Republic, President Jefferson sought and was denied a suspension.129 During the
Civil War, perhaps remembering Congress’ rejection of Jefferson’s suspension requests, President
Lincoln did not bother to request authority to suspend at first. He simply instructed his military 130
commanders, in ever broadening terms, to suspend access to the writ as they felt appropriate.
STAT. AT LARGE 181-82; 22; Geo.III ch.1 (1782), 34 STAT. AT LARGE 1.
128 “Whereas, at a time when the publick enemy have actually invaded some of our neighbouring states, and threaten
an invasion of this state, the safety of the Commonwealth requires that a power be somewhere lodged to apprehend and
imprison any persons whose enlargement is dangerous to the community, – Be it therefore enacted . . . That the council
may, from time to time, issue their warrant . . . to command and cause to be apprehended, and committed to any goal
within this state, any person whom the council shall deem the safety of the Commonwealth requires should be
restrained of his personal liberty, or whose enlargement within this state is dangerous thereto. . . .
“That any person who shall be apprehended and imprisoned as aforesaid, shall be continued in imprisonment, without
bail or mainprize, until he shall be discharged therefrom by order of the council or of the general court.
“This act shall continue and be in force for the term of one year from the tenth day of May, A.Dom., 1777,” V ACTS
AND RESOLVES OF THE PROVINCE OF MASSACHUSETTS BAY 641 (May 9, 1777). see also, 9 PA.STAT. 138-40 (Sept.6,
1777); 10 HENING’S STAT. 413-4 (Va. May 1781).
After Independence but prior to the drafting of the Constitution, Massachusetts again authorized suspension during
Shay’s Rebellion, which occurred, Act of Nov. 10, 1786, MASS.ACTS & RESOLVES, 1786-97, 102-3(“Whereas the
violent and outrageous opposition, which hath lately been made by armed bodies of men, in several of the counties of
its Commonwealth . . . renders it expedient and necessary, that the benefit derived to the Citizens from the issuing of
Writs of Habeas Corpus, should be suspended for a limited time, in certain cases: Be it enacted. . . That the Governor,
with the advice and consent of the Council, be and he hereby is authorized . . . to command and cause to be
apprehended, and committed in any Goal . . . any person . . . the safety of the Commonwealth requires should be
restrained of their personal liberty, or whose enlargement is dangerous thereto; any Law, Usage or Custom to the
contrary notwithstanding. . . . And be it further enacted . . . That any Person who shall be apprehended and imprisoned,
as aforesaid, shall be continued in imprisonment, without Bail or Mainprize, until he shall be discharged therefrom by
order of the Governor, or of the General Court. And this Act shall continue and be in force until the first day of July
next and no longer”).
129 Erick Bollman and Samuel Swartwout were arrested by military authorities in New Orleans for complicity in Aaron
Burr’s western adventures. President Jefferson sought a bill authorizing him to suspend the privilege of the writ:
That in all cases, where any person or persons, charged on oath with treason, misprision of treason, or other high
crime or misdemeanor, endangering the peace, safety, or neutrality of the United States, have been or shall be
arrested or imprisoned by virtue of any warrant or authority of the President of the United States, or from the
Chief Executive Magistrate of any State or Territorial Government, or from any person acting under the direction
or authority of the President of the United States, the privilege of the writ of habeas corpus shall be, and the same
hereby is suspended, for and during the term of three months from and after the passage of this act, and no longer,
6 Annals 402 (1807).
The proposal failed in the House, 6 Annals 588 (1807). The Circuit Court for the District of Columbia in the meantime
had ordered Bollman and Swartwout jailed pending their trial for treason and they sought writs of habeas corpus and
certiorari from the Supreme Court.
The Court ordered the prisoners discharged on the ground that the evidence presented did not establish that a crime of
treason had occurred and that those crimes for which there was evidence had not been committed in the District of
Columbia and consequently trial could not be held there, Ex parte Bollman, 8 U.S.(4 Cranch) 75, 135-36 (1807).
130 “The Maryland legislature assembles to-morrow at Annapolis, and not improbably will take action to arm the people
of that State against the United States. . . . [I]t is only left to the Commanding General to watch and await their action,
which, if it shall be to arm their people against the United States, he is to adopt the most prompt and efficient means to
counteract, even, if necessary, to the bombardment of their cities and, in the extremest necessity, the suppression of the
writ of habeas corpus,” President Abraham Lincoln to General Winfield Scott (April 25, 1861), in 6 RICHARDSON, A
COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1902, 17-8.
After Chief Justice Taney, acting upon a petition presented in chambers, held the President had
exceeded his authority, Ex parte Merryman, 17 Fed.Cas. 144 (No. 9,487) (C.C.D.Md. 1861), 131
Congress ratified Lincoln’s efforts with sweeping suspension legislation. In Ex parte Milligan,
71 U.S. (4 Wall.) 2, 130-31 (1866), the Court concluded that the suspension clause operated to
afford a prisoner’s jailers a defense as to why they should not release the prisoner once the court
had issued the writ instructing them to bring the prisoner before the court and justify the
imprisonment, “The suspension of the privilege of the writ of habeas corpus does not suspend the
writ itself. The writ issues as a matter of course; and on the return made to it, the court decides 132
whether the party applying is denied the right of proceeding further with it.”
Ex parte Milligan, and experience during the period leading up to the drafting of the suspension
clause offer scant support for the suggestion that the suspension clauses must be read as a general
limitation upon Congress’ authority to enact habeas legislation. Nevertheless, there are grounds
for the contention that suspension of the privilege of the writ may mean more than that, in times
and places of trouble, particular individuals may be temporarily denied access to the writ and
jailed without bail or trial by a court of competent jurisdiction. In more contemporary times, the
“You are engaged in suppressing an insurrection against the laws of the United States. If at any point on or in the
vicinity of any military line which is now or which shall be used between the city of Philadelphia and the city of
Washington you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety,
you personally, or through the officer in command at the point where resistance occurs, are authorized to suspend that
writ,” President Lincoln to the Commanding General of the Army of the United States (April 27,1861), in ID., at 18.
“You or any officer you may designate will, in your discretion, suspend the writ of habeas corpus so far as may relate
to Major Chase, lately of the Engineer Corps of the Army of the United States, now alleged to be guilty of treasonable
practices against the Government,” President Lincoln to the General Commanding the Armies of the United States
(June 9, 1861), in ID., at 19.
“The military line of the United States for the suppression of the insurrection may be extended as far as Bangor, in
Maine. You and any officer acting under your authority are hereby authorized to suspend the writ of habeas corpus in
any place between that place and the city of Washington,” President Lincoln to General Scott (Oct. 14, 1861), ID., at
“Whereas, it has become necessary to call into service not only volunteers but also portions of the militia of the States
by draft in order to suppress the insurrection existing in the United States and disloyal persons are not adequately
restrained by the ordinary process of law from hindering this measure and from giving aid and comfort in various ways
to the insurrection.
“Now, therefore, be it ordered, . . . that during the existing insurrection . . . all Rebels and Insurgents, their aiders and
abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty
of any disloyal practice, affording aid and comfort to Rebels against the authority of the United States, shall be subject
to martial law and liable to trial and punishment by Courts Martial or Military Commission;
“. . . [T]he Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during
the rebellion shall be, imprisoned . . . by military authority or by the sentence of any Court Martial or Military
Commission,” Presidential Proclamation of September 24, 1862, 13 STAT. 730.
131 “That, during the present rebellion, the President of the United States, whenever, in his judgement, the public safety
may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United
States, or any part thereof. And whenever and wherever the said privilege shall be suspended, as aforesaid, no military
or other officer shall be compelled, in answer to any writ of habeas corpus, to return the body of any person or persons
detained by him by authority of the President. . . .” 12 Stat. 755 (1863).
132 Lamdin Milligan was an Indiana resident arrested by military authorities, convicted by a military commission, and
ordered put to death for conspiracy, insurrection and giving aid and comfort to the Confederates. Milligan sought
habeas relief from the circuit court which was certified by Supreme Court determination, 71 U.S. (4 Wall.) at 6-9. The
Court held that even when the privilege of the writ was suspended, military authorities could not try citizens in for
offenses committed in a place where civil courts were continuously available to try such misconduct, 71 U.S. (4 Wall.)
Court and scholars have pondered the extent to which the suspension clause marks an outer limit 133
of the authority of Congress and the courts to adjust the procedures associated with the writ. If,
as these authorities indicate, the suspension clause enjoys organic qualities that permit it to
expand and contract under various environmental circumstances, several evolutionary stages of
the modern writ deserve repeating.
First, as part of the Reconstruction after the Civil War, Congress expanded federal habeas to make 134
it available to state prisoners held in violation of federal law. Second, by the early forties the
Court had completed its slow abandonment of the common law prohibition against use of habeas 135
to attack a conviction or sentence collaterally. Thereafter, the Court used an expanded habeas to 136
help carry the commands of the Bill of Rights to the state criminal procedure. Beginning in the
seventies, the Court announced a series of doctrines calculated to eliminate unnecessary delay, 137
repetition and frivolity. The AEDPA extended this last trend.
133 See e.g., United States v. Haemin, 342 U.S. 205 (1952)(court of appeals decision, that a provision that permitted
collateral attack of a federal conviction (28 U.S.C. 2255) violated the suspension clause, was vacated because the
prisoner was entitled to relief under the section and it was therefore unnecessary to reach the constitutional issue); Fay
v. Noia, 372 U.S. 391, 406 (1963)(“We need not pause to consider whether it was the framers’ understanding that
congressional refusal to permit the federal courts to accord the writ its full common-law scope as we have described it
might constitute an unconstitutional suspension of the privilege of the writ. There have been some intimations of
support for such a proposal in the decisions of this Court. . . . But at all events it would appear that the Constitution
invites, if it does not compel, a generous construction of the power of the federal courts to dispense the writ
comfortably with common-law practice”); Sanders v. United States, 373 U.S. 1, 11-2 (1963) (“Moreover, if construed
to derogate from the traditional liberality of the writ of habeas corpus, §2244 might raise serious constitutional
questions, Article I, §9, cl.2 of the Federal Constitution. . . ”); Swain v. Pressley, 430 U.S. 372 (1977)(establishing an
adequate and effective alternative procedure for habeas relief does not violate the suspension clause); Mello & Duffy,
Suspending Justice: The Unconstitutionality of the Proposed Six-Month Time Limit on the Filing of Habeas Corpus
Petitions by State Death Row Inmates, 18 NEW YORK UNIVERSITY REVIEW OF LAW & SOCIAL CHANGE 451 (1990-91).
134 “[T]he several courts of the United States, and the several justices and judges of such courts, within their respective
jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in
all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law
of the United States,” 14 Stat. 385-86 (1867).
135 See e.g.: Ex parte Lange, 85 U.S.(18 Wall.) 163 (1874); Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Wilson,
114 U.S. 417 (1885); In re Snow, 120 U.S. 274 (1887); Frank v. Mangum, 237 U.S. 309 (1915); Moore v. Dempsey,
261 U.S. 86 (1923); Mooney v. Holohan, 294 U.S. 103 (1935); Johnson v. Zerbst, 304 U.S. 458 (1938); Waley v.
Johnson, 316 U.S. 101 (1942); Walker v. Johnson, 312 U.S. 275 (1941); The Freedom Writ—The Expanding Use of
Federal Habeas Corpus, 61 HARVARD LAW REVIEW 657 (1948).
While a number of theories might be formulated to explain the Court’s authority to modify the procedures associated
with the writ, the Court made the task unnecessary when it explained that, “the history of the Great Writ of Habeas
Corpus reveals . . . the gradual evolution of more formal judicial, statutory, or rules-based doctrines of law. In earlier
times, the courts followed comparatively simple rules . . . as they exercised the writ in light of its most basic purpose,
avoiding serious abuses of power by a government, say a king’s imprisonment of an individual without referring the
matter to a court. As the writ has evolved into an instrument that now demands not only conviction by a court of
competent jurisdiction, but also application of basic constitutional doctrines of fairness, Congress, the Rule writers, and
the courts have developed more complex procedural principles that regularize and thereby narrow the discretion that
individual judges can freely exercise. Those principles seek to maintain the courts’ freedom to issue the writ, aptly
described as the `highest safeguard of liberty,’ while at the same time avoiding serious, improper delay, expense,
complexity, and interference with a State’s interest in the `finality’ of its legal process,” Lonchar v. Thomas, 517 U.S.
314, 322-23 (1996).
136 Brown v. Allen, 344 U.S. 443 (1953); Fay v. Noia, 372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 293 (1963);
Sanders v. United States, 373 U.S. 1 (1963); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Justice,
38 UNIVERSITY OF CHICAGO LAW REVIEW 142, 154-55 (1970); Wright & Sofaer, Federal Habeas Corpus for State
Prisoners: The Allocation of Fact-Finding Responsibility, 75 YALE LAW JOURNAL 895, 897-98 (1966).
137 See e.g., Wainwright v. Sykes, 433 U.S. 72 (1977) ; Murray v. Carrier, 477 U.S. 478 (1986); Engle v. Isaac, 456
U.S. 107 (1982); Teague v. Lane, 489 U.S. 288 (1989); Penry v. Lynaugh, 492 U.S. 302 (1989), Saffle v. Parks, 494
Felker disavowed any contention that the AEDPA’s provisions violated the suspension clause.
The Georgia Attorney General and the Solicitor General each denied that the suspension clause
had been violated. The Court agreed. It did not stop with the proposition that the suspension
clause does not extend to convicted prisoners or any other prisoners ineligible for the writ under
common law, however, but “assume[d], for purposes of decision here, that the Suspension Clause
of the Constitution refers to the writ as it exists today, rather than as it existed in 1789,” 518 U.S.
Even under this relaxed standard it found any claim based on Felker’s case wanting. The
AEDPA’s limitation on repetitious or stale claims was seen as a variation of res judicata, which in
the area of habeas had been an “evolving body of equitable principles informed and controlled by
historical usage, statutory developments, and judicial decisions,” 518 U.S. at 664, quoting
McCleskey v. Zant, 499 U.S. 467, 489 (1991). “The added restrictions which the Act places on
second habeas petitions are well within the compass of this evolutionary process and . . . do not
amount to a ‘suspension’ of the writ contrary to Article I, §9,” 518 U.S. at 664.
Shortly after Felker, however, the Court narrowly construed Congressional efforts to restrict
review of various immigration decisions and recognized that the courts retained jurisdiction to
review habeas petitions, with the observation that otherwise serious suspension clause issues 138
Books and Articles
AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE SECTION, PROJECT ON DEATH PENALTY
HABEAS CORPUS, TOWARD A MORE JUST AND EFFECTIVE SYSTEM OF REVIEW IN STATE DEATH
PENALTY CASES (1990)
Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal
Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 UNIVERSITY OF
PENNSYLVANIA LAW REVIEW 793 (1965)
Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARVARD
LAW REVIEW 441 (1963)
—. The State Courts and Federal Constitutional Litigation, 22 WILLIAM & MARY LAW REVIEW
U.S. 484, 495 (1990); Sawyer v. Smith, 497 U.S. 227 (1990); Blume & Voisin, An Introduction to Federal Habeas
Corpus Practice and Procedure, 47 SOUTH CAROLINA LAW REVIEW 271 (1996); Hoffman & Stuntz, Habeas After the
Revolution, 1993 SUPREME COURT REVIEW 65.
138 INS v. St. Cyr, 533 U.S. 289 (2001)(“a serious Suspension Clause issue would be presented if we were to accept the
INS’ submission that the 1996 statutes have withdrawn that power [to review of certain immigration cases under
habeas] from federal judges and provide no adequate substitute for its exercise”). One of the statutes in question,
section 401(e) of the AEDPA was captioned “Elimination of Custody Review by Habeas Corpus,” 110 Stat. 1268
Berger, Justice Delayed or Justice Denied? A Comment on Recent Proposals to Reform Death
Penalty Habeas Corpus, 90 COLUMBIA LAW REVIEW 1665 (1990)
Berry, Seeking Clarity in the Federal Habeas For: Determining What Constitutes “Clearly
Established” Law Under the Antiterrorism and Effective Death Penalty Act, 54 CATHOLIC
UNIVERSITY LAW REVIEW 747 (2005)
Blume, AEDPA: The “Hype” and the “Bite” 91 CORNELL LAW REVIEW 259 (2006)
Brennan, Federal Habeas Corpus and State Prisoners: An Exercise in Federalism, 7 UTAH LAW
REVIEW 423 (1961)
Chemerinsky, Thinking About Habeas Corpus, 37 CASE WESTERN RESERVE LAW REVIEW 748
Cover & Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 YALE LAW
JOURNAL 1035 (1977)
Desmond, Federal Habeas Corpus Review of State Court Convictions, 50 GEORGETOWN LAW
JOURNAL 755 (1962)
Duker, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS (1980)
—. The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame, 53 NEW YORK
UNIVERSITY LAW REVIEW 983 (1978)
Faust, Rubenstein & Yackle, The Great Writ in Action: Empirical Light on the Federal Habeas
Corpus Debate, 18 NEW YORK UNIVERSITY REVIEW OF LAW SOCIAL CHANGE 637 (1990/1991)
Freedman, HABEAS CORPUS: RETHINKING THE GREAT WRIT OF LIBERTY (2001)
Friedman, A Tale of Two Habeas, 73 MINNESOTA LAW REVIEW 247 (1988)
Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 UNIVERSITY OF
CHICAGO LAW REVIEW 142 (1970)
Garvey, Death-Innocence and the Law of Habeas Corpus, 56 ALBANY LAW REVIEW 225 (1992)
Hammel, Diabolical Federalism: a Functional Critique and Proposed Reconstruction of Death
Penalty Federal Habeas, 39 AMERICAN CRIMINAL LAW REVIEW 1 (2002)
Hart, The Supreme Court 1958 Term – Forward: The Time of the Justices, 73 HARVARD LAW
REVIEW 84 (1959)
Hartnett, The Constitutional Puzzle of Habeas Corpus, 46 BOSTON COLLEGE LAW REVIEW 251
Hoffman & Stuntz, Habeas After the Revolution, 1993 SUPREME COURT REVIEW 65
Hoffstadt, The Deconstruction and Reconstruction of Habeas, 78 SOUTHERN CALIFORNIA LAW
REVIEW 1125 (2005)
Jackson, The Power to Suspend Habeas Corpus: An Answer From the Arguments Surrounding Ex
Parte Merryman, 34 UNIVERSITY OF BALTIMORE LAW REVIEW 11 (2004)
Lee, The Theories of Federal Habeas Corpus, 72 WASHINGTON UNIVERSITY LAW QUARTERLY
—. Section 2254(d) of the Federal Habeas Corpus Statute: Is It Beyond Reason? 56 HASTINGS
LAW JOURNAL 283 (2004)
Neuborne, The Myth of Parity, 90 HARVARD LAW REVIEW 1105 (1977)
Oaks, Legal History in the High Court – Habeas Corpus, 64 MICHIGAN LAW REVIEW 451 (1966)
—. The “Original” Writ of Habeas Corpus in the Supreme Court, 1962 SUPREME COURT REVIEW
Paschal, The Constitution and Habeas Corpus, 1970 DUKE LAW JOURNAL 605
Sloane, AEDPA’s “Adjudication on the Merits” Requirement: Collateral Review, Federalism, and
Comity 78 ST. JOHN’S LAW REVIEW 615 (2004)
Steiker, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas
Corpus for State Prisoners, 92 MICHIGAN LAW REVIEW 862 (1994)
Stevenson, The Politics of Fear and Death; Successive Problems in Capital Federal Habeas
Corpus Cases, 77 NEW YORK UNIVERSITY LAW REVIEW 699 (2002)
United States House of Representatives, Habeas Corpus: Hearings Before Subcomm. No. 3 of the thst
House Comm. on the Judiciary, 84 Cong., 1 Sess. (1955)
—. Habeas Corpus Legislation: Hearings Before the Subcomm. on Courts, Intellectual Property, st
and the Administration of Justice, 101 Cong., 2d Sess. (1990)
—. Habeas Corpus Issues: Hearings Before the Subcomm. on Civil and Constitutional Rights of st
the House Comm. on the Judiciary, 102d Cong., 1 Sess. (1991)
—. Habeas Corpus: Hearings Before the Subcomm. on Civil and Constitutional Rights of the st
House Comm. on the Judiciary, 103d Cong., 1 & 2d Sess. (1994)
United States Senate, Habeas Corpus Reform Act of 1982: Hearings Before the Comm. on the th
Judiciary, 97 Cong., 2d Sess. (1982)
—. Comprehensive Crime Control Act of 1983: Hearings Before the Subcomm. on Criminal Law thst
of the Comm. on the Judiciary, 98 Cong., 1 Sess. (1983)
—. Habeas Corpus Reform: Hearing Before the Comm. on the Judiciary, 99th Cong., 1st Sess.
Walker, THE CONSTITUTION AND LEGAL DEVELOPMENT OF HABEAS CORPUS AS THE WRIT OF
Wechsler, Habeas Corpus and the Supreme Court: Reconsidering the Reach of the Great Writ, 59
UNIVERSITY OF COLORADO LAW REVIEW 167 (1988)
Weisberg, A Great Writ While It Lasted, 81 JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 9
Wright, Habeas Corpus: Its History and Its Future, 81 MICHIGAN LAW REVIEW 802 (1983)
Yackle, POSTCONVICTION REMEDIES (1981)
Notes and Comments
Actually Less Guilty: The Extension of the Actual Innocence Exception to the Sentencing Phase of
Non-Capital Cases, 93 KENTUCKY LAW JOURNAL 531 (2004)
The Clash of Ring v. Arizona and Teague v. Lane: An Illustration of the Inapplicability of Modern
Habeas Retroactivity Jurisprudence in the Capital Sentencing Context, 85 BOSTON UNIVERSITY
LAW REVIEW 1017 (2005)
“Deference Does Not Imply Abandonment or Abdication of Judicial Review”: the Evolution of
Habeas Jurisprudence Under AEDPA and the Rehnquist Court, 72 UNIVERSITY OF MISSOURI-
KANSAS CITY LAW REVIEW 739 (2004)
A Different View of Habeas: Interpreting AEDPA’s “Adjudicated on the Merits” Clause When
Habeas Corpus Is Understood as an Appellate Function of the Federal Courts, 72 FORDHAM
LAW REVIEW 2593 (2004)
Review and Vacatur of Certificates of Appealability Issued Under the Denial of Habeas Corpus
Petitions, 72 UNIVERSITY OF CHICAGO LAW REVIEW 989 (2005)
Thirty-Second Annual Review of Criminal Procedure: Habeas Relief for State Prisoners, 91
GEORGETOWN LAW JOURNAL 817 (2003)
Senior Specialist in American Public Law