Federal Habeas Corpus Relief: Background, Legislation, and Issues

Federal Habeas Corpus Relief:
Background, Legislation, and Issues
Updated January 12, 2007
Lisa M. Seghetti
Specialist in Social Legislation
Domestic Social Policy Division
Nathan James
Analyst in Social Legislation
Domestic Social Policy Division

Federal Habeas Corpus Relief: Background,
Legislation, and Issues
Summary
Federal habeas corpus is the statutory procedure under which state and federal
prisoners may petition the federal courts to review their convictions and sentences
to determine whether they are being held contrary to the laws or the Constitution of
the United States. In 1996, Congress passed legislation that restricted a prisoner’s
ability to seek relief through the writ of habeas corpus.
The 109^th Congress considered legislation that would have further restricted a
state prisoner’s access to federal habeas relief, and would have provided for
expeditious habeas review of cases where a child, public safety officer, or state judge
was killed. The 110^th Congress may consider similar issues. At issue for Congress
is whether it should further restrict state prisoners’ access to federal habeas relief by
limiting the federal role in policing constitutional violations in the states’ criminal
justice systems. Two issues have emerged as Congress considers such legislation —
trial finality and adequate representation. Proponents contend that restricting state
prisoners’ access to federal habeas relief is necessary due to many prisoners filing
excessive and frivolous claims that result in a backlog in the system and substantial
delays in the processing of these cases. Critics contend, however, that many states’
criminal justice systems are flawed, with many indigent defendants lacking proper
representation throughout all stages of the criminal justice system. They argue that
for many defendants, the writ of habeas corpus plays a key role in restoring justice
when the system fails.
The current debate over whether to reform the federal habeas corpus law is
centered around state capital cases. These cases experience some of the lengthier
delays that have been highlighted in congressional testimony. The issue of trial
finality becomes apparent in these cases because the mandated outcome — execution
— is suspended pending the outcome of the habeas proceeding. An analysis of the
Administrative Office of the U.S. Courts’ (AOUSC) data, however, does not fully
support the claim that state capital habeas cases take excessively long to process.
The data reveals that although the median time for state capital cases to make their
way through a federal habeas proceeding is twice as long as state non-capital cases,
the rate of filing for habeas relief for both types of cases has remained constant.
Since 1988, prisoners serving a federal capital sentence are entitled to counsel
during all post-conviction proceedings. Unlike the federal criminal justice system,
most states do not afford prisoners the same right. Critics contend that by not having
a mandatory system of post-conviction representation, many states ignore the reality
that indigent death row prisoners are not able to competently engage in post-
conviction litigation. A study that was conducted over a 23-year period raised the
question of whether the delays commonly associated with federal habeas corpus
review are necessary to make sure that justice is administered fairly. The research
also raised the possibility that the errors found in capital cases may be the result of
poor representation. Until the issue of adequate representation is fully addressed in
the states’ criminal justice systems, habeas corpus reform efforts will continue to be
debated. This report will be updated as warranted.

Contents
Background ......................................................3
The Powell Committee.........................................3
Antiterrorism and Effective Death Penalty Act of 1996................5
Federal Habeas Corpus and Capital Cases...............................5
Federal Habeas Corpus Petition Data..............................6
Administrative Office of the U.S. Courts Data...................7
Federal Habeas Corpus Filings and Prison Population............10
Legislation in the 109^th Congress.....................................12
The Streamlined Procedures Act of 2005 (S. 1088/H.R. 3035)..........12
Mixed Petitions..........................................12
Amendments to Petitions...................................13
Procedurally Defaulted Claims..............................13
Tolling of the Limitation Period.............................13
Harmless Errors in Sentencing...............................14
Time Limitations for Appeals...............................14
Capital Cases............................................14
Review of Chapter 154 Opt-in Requirements...................15
Clemency and Pardon Decisions.............................15
Ex Parte Funding Requests.................................15
Crime Victims’ Rights.....................................16
DNA Testing............................................16
Selected Issues...................................................17
Trial Finality................................................17
Post-Conviction Representation..................................18
Access to Representation...................................19
Effectiveness of Representation..............................20
Attorney General Determination of AEDPA “Opt-in” for States........21
Conclusion ......................................................22
List of Figures
Figure 1. Number of State Non-Capital Federal Habeas Cases, 1990-2004.....8
Figure 2. Number of State Capital Federal Habeas Cases, 1990-2004.........8
Figure 3. Median Time from Filing to Disposition for State Capital and
Non-Capital Federal Habeas Cases, 1990-2004......................9
Figure 4. Number of Inmates in State Prisons, 1990-2004.................11
Figure 5. Rate of Federal Habeas Corpus Petitions Filed by State
Non-Capital Prisoners, 1990-2004................................11

Federal Habeas Corpus Relief:
Background, Legislation, and Issues
Introduction
“Habeas corpus is a legal procedure that allows prisoners to assert
constitutional rights, the procedure itself is not required or controlled by the¹
Constitution. ”
- U.S. Supreme Court Justice Lewis F. Powell, Jr. (1972-1987)
Federal habeas corpus is the statutory procedure under which state and federal
prisoners may petition federal courts to review their convictions and sentences to
determine whether they are being held contrary to the laws or the Constitution of the²
United States. The authority of a federal court to issue a writ of habeas corpus has
been a part of legal procedure since 1789.³ In 1867, the writ was extended by⁴
Congress to prisoners in state custody. However, although the federal writ of habeas
corpus was extended to prisoners in state custody in 1867, it did not become fully⁵
available as a means to challenge an unlawful conviction or sentence until the 1940s.
In 1996, Congress passed legislation that restricted a prisoner’s ability to seek
relief through the writ of habeas corpus. Since its passage, the courts have been
interpreting the meaning of the Anti-Terrorism and Effective Death Penalty Act
(AEDPA).⁶ At issue for Congress is whether it should further restrict state prisoners’
access to federal habeas corpus relief by limiting the federal role in policing
constitutional violations in the states’ criminal justice systems. Two issues have

¹ Statement of Lewis F. Powell, Jr., Associate Justice, U.S. Supreme Court (retired), in U.S.
Congress, Senate Committee on the Judiciary, Reform of Capital Habeas Corpus^st^st
Procedures, 101 Cong., 1 sess., Nov. 8, 1989 (Washington: GPO 1989), hereafter cited
as statement of Lewis F. Powell, Jr.
² 28 U.S.C. §2241 et seq. Although the writ of federal habeas corpus is the subject of this
report, it is important to note that state courts also consider federal constitutional claims
during direct review and in post-conviction proceedings.
³ According to retired U.S. Supreme Court Justice Powell, the Constitution mentions habeas
corpus, however, it “... is a reference to the ancient writ of habeas corpus available to
challenge executive detention without trial.” See statement of Lewis F. Powell, Jr.
⁴ See 28 U.S.C. §2254.
⁵ See Waley v. Johnson, 316 U.S. 101, 102 (1942) (stating that the use of the writ of habeas
corpus in federal courts extends to cases where the conviction has been in disregard of the
accused’s constitutional rights and “where writ is the only means of preserving those
rights.”).
⁶ See Title I of P.L. 104-32.

emerged as the Congress considers legislation that would further alter the writ of
habeas corpus — trial finality and adequate representation. Proponents of habeas
corpus reform contend that restricting state prisoners’ access to federal habeas corpus
relief is necessary due to many prisoners filing excessive and frivolous claims that
result in a backlog in the system and substantial delays in the processing of cases.⁷
Critics contend, however, that many states’ criminal justice systems are flawed, with
many indigent defendants lacking proper representation throughout all stages of the
criminal justice system. They contend that for many defendants, the writ of habeas
corpus plays a key role in restoring justice when the system fails.⁸
This report examines the issues surrounding the debate on whether to further
restrict state prisoners’ access to federal habeas corpus filings. This report does not
discuss issues related to federalism and the proper role of the federal court system in
overseeing the actions of state courts pertaining to prisoners’ constitutional rights.
The report opens with a discussion of a commission that was established in 1988 to
study and make recommendations of the then-current federal habeas corpus system
and the 1996 law that restricted prisoners’ access to federal habeas corpus relief. It
then provides an analysis of federal habeas corpus petition data since 1990. The
report examines whether the number of federal habeas corpus petitions and the time
it takes for the federal court system to process these claims have increased since the
enactment of the AEDPA. It then discusses legislation introduced in the 109^th
Congress that would further restrict state prisoners’ access to federal habeas corpus
relief. The report concludes with an analysis of two dominant issues that are at the
center of this debate: delays caused by habeas corpus petitions and post-conviction
representation.

⁷ See for example, testimony of John Pressley Todd, Assistant Attorney General Arizona
Attorney General’s Office, in U.S. Congress, Senate Committee on the Judiciary, Habeas^th^st
Corpus Proceedings and Issues of Actual Innocence, 109 Cong., 1 sess., July 23, 2005
(Washington: GPO, 2005), hereafter cited as testimony of John Pressley Todd; testimony
of Thomas Dolgenos, Chief, Federal Litigation Unity, Philadelphia District Attorney’s
Office, in U.S. Congress, Senate Committee on the Judiciary, Habeas Corpus Proceedings^th^st
and Issues of Actual Innocence, 109 Cong., 1 sess., July 13, 2005 (Washington: GPO,

2005), hereafter cited as testimony of Thomas Dolgenos; and testimony of Kent Cattani,

Esq., Chief Counsel, Office of the Arizona Attorney General, in U.S. Congress, Senate
Committee on the Judiciary, Habeas Corpus Proceedings and Issues of Actual Innocence,^th^st
109 Cong., 1 sess., July 23, 2005 (Washington: GPO, 2005), hereafter cited as testimony
of Kent Cattani.
⁸ See for example, testimony of testimony of Ruth E. Friedman, Solo Practitioner, in U.S.
Congress, House Subcommittee on Crime, Terrorism and Homeland Security, Legislative^th^st
Hearing on H.R. 3035, “The Streamlined Procedures Act of 2005,” 109 Cong., 1 sess.,
Nov. 10, 2005, hereafter cited as testimony of Ruth E. Friedman; testimony of Bernard E.
Harcourt, Professor of Law, University of Chicago, in U.S. Congress, House Committee on
the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, Terrorist Death^th^st
Penalty and Streamlined Procedures Bills, 109 Cong., 1 sess., June 30, 2005
(Washington: GPO, 2005), hereafter cited as testimony of Bernard E. Harcourt; testimony
of Byran A. Stevenson, Esq., Executive Director of Equal Justice Initiative of Alabama,
Professor of Clinical Law at New York University School of Law, in U.S. Congress, Senate
Committee on the Judiciary, Habeas Corpus Proceedings and Issues of Actual Innocence,^th^st
109 Cong., 1 sess., July 23, 2005 (Washington: GPO, 2005), hereafter cited as testimony
of Byran A. Stevenson.

Background⁹
Beginning in the 1970s, the U.S. Supreme Court issued a set of rulings that
gradually restricted prisoners’ access to federal habeas corpus relief; and in the late

1980s a commission was formed that would set the stage for congressional action.

Following is a discussion of early efforts to reform the writ of habeas corpus.
The Powell Committee
In 1988, Chief Justice Rehnquist formed an ad hoc committee on federal habeas
corpus in capital cases (aka the Powell Committee).¹⁰ The Powell Committee
analyzed “the necessity and desirability of legislation directed toward avoiding delay
and the lack of finality in capital cases.” The committee found that the current
system (at that time) of collateral review:¹¹
^!Is fraught with “unnecessary delay and repetition.” The
inadequacies of the system are due to the following: (1) a lack of
coordination between federal and state legal systems, resulting in
prisoners moving back and forth between the two systems before
exhausting state remedies; (2) prisoners filing excessive, last minute
motions for stays of execution; and (3) the absence of a statute of
limitation allows for prisoners to file multiple petitions at any point
during their incarceration.
^!Lacks competent and adequately compensated representation.
^!Permits last-minute litigation where claims are meritless and are
conducted amidst a pending execution, which leads to the abuse of
judicial resources and justices.¹²
As a result of its findings, the Powell Committee made several
recommendations, some of which were adopted in AEDPA including
^!establishing a separate statutory procedure for federal habeas corpus
proceedings in capital cases for states to opt-in if they meet certain
requirements that pertain to the appointment of competent counsel
and compensation of reasonable litigation expenses for indigent
prisoners. The opt-in system would provide a shorter statute of

⁹ For additional information on the writ of federal habeas corpus, see CRS Report 96-499A,
Antiterrorism and Effective Death Penalty Act of 1996: A Summary and CRS Report 96-
423A, Habeas Corpus & the Antiterrorism and Effective Death Penalty Act of 1996: An
Overview, both reports written by Charles Doyle. Contact the author for a copy of the
reports.
¹⁰ Ad Hoc Committee on Federal Habeas Corpus in Capital Cases Committee Report,
reprinted in 135 Cong.Rec. 24694 (1989), hereafter cited as the Powell Committee Report.
¹¹ A collateral review is a non-direct review of a state court decision by a federal court. Such
a petition constitutes a separate civil suit. Black’s Law Dictionary, Second Pocket Ed.,
Bryan A. Garner, Editor in Chief.
¹² See the Powell Commission report.

limitation (six months as opposed to one year) for the filing of
habeas corpus petition.¹³ The federal judiciary would have the final
judgment about the adequacy of a state’s counsel appointment
system.¹⁴
^!requiring a mandatory stay of execution until the federal habeas
corpus proceeding is completed for a prisoner’s first request for
post-conviction relief.
^!requiring prisoners to file their federal habeas corpus petitions no
later than 180 days after an order is entered appointing counsel.
^!limiting federal courts to considering claims that were raised and
litigated in state courts and have adequate evidentiary records and
findings of facts.
In addition to the Powell Committee findings, in a series of rulings that began
in the 1970s, the U.S. Supreme Court restricted prisoners’ access to federal habeas
corpus relief. The reason for this is, in part, due to the number of reported cases of
abuse by inmates (i.e., repeat and frivolous filing of petitions). Although the issue
was most often associated with death penalty cases (e.g., inmates using the writ of
habeas corpus as a means to delay their executions), prisoners sentenced in non-
capital cases were reportedly also availing themselves of such petitions.¹⁵ The U.S.
Supreme Court developed restrictive procedural doctrines to govern federal habeas
corpus proceedings;¹⁶ and in 1996, Congress passed legislation that limited federal
court adjudication of prisoners’ habeas corpus claims, particularly in capital cases,
as discussed below.

¹³ Although the Powell Committee recommended “a six-month period within which the
federal habeas corpus petition must be filed, the filing period begins to run only on the
appointment of counsel ... the filing period is tolled during the pendency of all state court
proceedings.” See the Powell Committee report, p. 51.
¹⁴ Codified at Chapter 154 in 18 U.S.C.. Current legislation would move this authority from
the federal courts to the Attorney General.
¹⁵ Habeas corpus may also be used by a person challenging civil confinement in an
institution (Lake v. Cameron, 364 F.2d 657 (D.C. Cir. 1966)), an immigration deportation
order (Rowoldt v. Perfetto, 355 U.S. 115 (1957)), an extradition order (Fernandez v.
Phillips, 268 U.S. 311 (1925)), a conviction by a military court (Strait v. Laird, 406 U.S.

341 (1972)), or the denial of parole (Morrissey v. Brewer, 408 U.S. 471 (1972)).

¹⁶ See Stone v. Powell, 428 U.S. 465 (1976) (ruling that Fourth Amendment exclusionary
rule claims cannot be raised on habeas corpus if the state court provided a full and fair
hearing); Wainwright v. Sykes, 433 U.S. 72 (1977) (finding that claims not presented in state
court may be raised on habeas corpus only if there is cause and prejudice); Engle v. Issac,
456 U.S. 107 (1982) (finding that a petitioner’s failure to object at trial cannot be excused
as futile, simply because the objection was unacceptable to that court at the time); and
Marshall v. Longberger, 259 U.S. 422 (1983) (explaining that federal habeas corpus courts
should not subject state court findings of fact to less deference than they accord to federal
district court findings).

Antiterrorism and Effective Death Penalty Act of 1996¹⁷
As discussed above, several of the Powell Committee’s recommendations were
adopted by Congress. Title II of the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA; P.L. 104-32) codified some of the recommended restrictions on
prisoners’ access to federal habeas corpus relief, including
^!barring federal habeas corpus reconsideration of legal and factual
issues ruled upon by state courts in most instances;
^!creating a general one-year statute of limitation (and a six-month
statute of limitation in death penalty cases for states that successfully
meet certain requirements related to the appointment of
representation and compensation for related litigation in post-
conviction proceedings);
^!prohibiting federal evidentiary hearing of claims in most cases; and
^!requiring appellate court approval for repetitious habeas corpus
petitions.
Federal Habeas Corpus and Capital Cases
As discussed below, one of the issues that is at the center of reforming the writ
of habeas corpus is the perceived delay in processing these petitions. Many
proponents of amending the current federal habeas corpus law point to the amount
of time it takes from the initial filing of a habeas corpus petition to disposition. They
assert that the current system is abused by inmates who use the writ to delay the final
outcome of their sentences. They further contend that such delay only benefits one
category of habeas corpus petitioners. According to congressional testimony, “unlike
the non-capital defendant who is serving his sentence during the habeas corpus
process and has every incentive to proceed as quickly as possible to have a federal
court vindicate a constitutional claim that the state courts wrongly decided, the
capital defendant is not serving his sentence — he is avoiding it.”¹⁸ Although it may
be true that some death row prisoners use the writ to avoid death, it is also important
to note that the overall number of habeas corpus petitions filed by death row inmates
pales in comparison to the number of petitions filed by non-death row inmates, at less
than 1% in one study done in 1995.¹⁹

¹⁷ Archived CRS Report 96-423, Habeas Corpus & the Antiterrorism and Effective Death
Penalty Act of 1996: An Overview, by Charles Doyle. Contact the author for a copy of the
report.
¹⁸ See for example, the testimony of John Pressley Todd.
¹⁹ According to a 1995 Department of Justice (DOJ) Bureau of Justice Statistics (BJS) report
that examined the length of the federal habeas corpus appeal process, “less than 1% of the
sentences are death penalty sentences. Most sanctions are custodial sentences.” See U.S.
DOJ BJS Federal Habeas Corpus Review: Challenging State Court Criminal Convictions,
Discussion Paper by Roger A. Hanson and Henry W.K. Daley, Sept. 1995, NCJ-155504,
hereafter cited as Federal Habeas Corpus Review study.

The current debate over whether to reform the federal habeas corpus law is
centered around state capital cases. As of December 31, 2004, there were 3,282
prisoners on death row in state prisons.²⁰ These cases experience some of the
lengthier delays that have been highlighted in Congressional testimony, and for many
this is where the concern rests. The issue of trial finality becomes apparent in these
cases due to the mandated outcome — execution — being suspended pending the
outcome of the habeas corpus proceeding.
Federal Habeas Corpus Petition Data
A 1995 Department of Justice Bureau of Justice (BJS) study examined the time
it takes for a state capital case to make its way through the federal habeas corpus
appeal process.²¹ The study looked at federal habeas corpus petitions in 18 federal
district courts located in nine different states.²² BJS found that federal habeas corpus
cases require a range of time for disposition. For example, 25% of federal habeas
corpus cases were processed in 83 days or less, whereas 50% of the cases reached
disposition in 175 days or less. However, BJS also found that 10% of the cases took
761 days or more to reach disposition. BJS found that the amount of time it took for
a federal habeas corpus petition to reach disposition was based on the complexity of
the case. Cases that failed to meet basic procedural requirements were dismissed
quickly. However, the time for a federal habeas corpus case to reach disposition
increased as the number and seriousness of issues raised in the petition increased.²³
The following section analyzes data from various federal sources and is meant
to provide a context in which to discuss the effect of AEDPA on the filing of federal
habeas corpus petitions by state prisoners. The discussion of the data, however, is
limited to the number of federal habeas corpus petitions filed by state prisoners and
the median time it took the cases to reach disposition. The data presented in this
report do not take into consideration whether there were any unwarranted delays in
the current system. In a letter to Congress, the Judicial Conference of the United
States urged “that ... analysis be undertaken to evaluate whether there is unwarranted
delay occurring in the application of current law in resolving habeas corpus petitions
filed in federal courts by state prisoners and, if so, the causes for such delay.”²⁴

²⁰ U.S. DOJ BJS Bulletin, Capital Punishment, 2004, Nov. 2005, NCJ 211349. According
to a more recent publication, currently, there are 3,371 inmates on death row in state prisons.
See the National Association for the Advancement of Colored People (NAACP) Legal
Defense and Educational Fund, Inc. Death Row U.S.A Summer 2005, summer 2005.
²¹ See Federal Habeas Corpus Review study.
²² The nine states are Alabama, California, Florida, Indiana, Louisiana, Missouri, New York,
Pennsylvania, and Texas.
²³ See Federal Habeas Corpus Review study.
²⁴ The Judicial Conference wrote Congress in response to the Streamlined Procedures Act
of 2005 (S. 1088/H.R. 3035). See the Judicial Conference of the United States letter to the
Honorable Arlen Specter, Chairman of the Senate Judiciary Committee, Sept. 26, 2005,
found online at [http://ccjr.policy.net/relatives/17324.pdf], accessed on Dec. 29, 2005.

Administrative Office of the U.S. Courts Data. The Administrative
Office of the U.S. Courts (AOUC) collects data on federal habeas corpus cases by
federal and state prisoners. Prior to 1989, the AOUC did not distinguish between
capital and non-capital cases, thus, our analysis does not include data prior to 1989.
Moreover, the AOUC data are not coded to capture case-specific information (i.e.,
reason for filing, age of case, number of extensions granted, etc.), which prevents the
analysis from going beyond the assessment of the number of cases filed and the
median time it takes a case to reach disposition.
During the period prior to the enactment of AEDPA (1990-1996), on average
12,656 state non-capital federal habeas corpus petitions were filed per year, with a
median²⁵ disposition time that ranged from a low of 5.6 months in 1995 to a high of
6.6 months in 1992 (see Figures 1 and 3). During the same period, on average 141
state capital federal habeas corpus petitions were filed per year, with a median
disposition time that ranged from a low of three months in 1990 to a high of 12.8
months in 1993 (see Figures 2 and 3). Since the enactment of AEDPA (1997),²⁶ on
average, 18,758 state non-capital cases have been filed. The median disposition time
for this period (1997-2004) ranged from a low of 5.2 months in 2000 to a high of 6.9
months in 2002 (see Figures 1 and 3). Like the period before the enactment of
AEDPA, the median disposition time remained fairly steady. Since 1997, an average
of 198 state capital federal habeas corpus cases have been filed by prisoners in state
custody. The median disposition time during this period ranged from a low of 13.2
months in 1998 to a high of 25.3 months in 2004 (see Figures 2 and 3). Following
is a more detailed discussion of the data.

²⁵ The data provided by the AOUC only shows the median time it take for a case to reach
disposition after it is filed, and not the mean or average. The median time is not as likely
to be effected by cases that take an extraordinary long time to resolve (outliers).
²⁶ AEDPA was enacted on Apr. 24, 1996, however, for the purposes of CRS analysis of
habeas corpus petition data pre- and post-AEDPA, 1996 has been excluded in making such
comparisons (up until Apr. 24, 1996, habeas corpus petitions filings would have fallen under
the old system).

Figure 1. Number of State Non-Capital Federal Habeas Cases,
1990-2004
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Year
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Figure 2. Number of State Capital Federal Habeas Cases, 1990-2004

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In 1997 (eight months after AEDPA was enacted), 15,199 state non-capital
federal habeas corpus petitions were filed (see Figure 1). In 1998, 18,309 state non-

capital federal habeas corpus petitions were filed, an increase of 20% over 1997
numbers (see Figure 1). The number of state non-capital federal habeas corpus
petitions filed peaked in 2000 at 20,354, an increase of 34% over 1997 numbers (see
Figure 1). Since 2000, the number has declined slightly.
In 1990, the median time for a state non-capital federal habeas corpus case to
reach disposition after it was filed was 6.4 months (see Figure 3). By 1997, the
median time slightly decreased by almost a month. The median time for a state non-
capital federal habeas corpus case to reach disposition peaked in 1998 to 6.8 months
(an increase of 1.1 months from 1997). In 2000 and 2001, when the number of state
non-capital federal habeas corpus cases filed was about double than what it was in
1990, the median time for a case to reach disposition after it was filed was 5.1
months and 6.5 months, respectively (see Figure 3). During the past four years, the
median time for these cases to reach disposition has been over six months for each
year. It is not all together clear why there has been a recent peak in the median time
it takes for state non-capital cases to reach disposition.
Figure 3. Median Time from Filing to Disposition for State
Capital and Non-Capital Federal Habeas Cases, 1990-2004

³⁰
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^C^a^s^e^s^Fⁱ^l^{ed by}^N^o^n-^c^api^t^a^l^Iⁿ^m^a^t^e^s^C^a^s^e^s^Fⁱ^l^{ed by}^C^api^t^a^l^Iⁿ^m^a^t^e^s
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State capital federal habeas corpus cases accounted for approximately 1% of all
federal habeas corpus cases during the period that was examined. Although the filing
of state capital habeas corpus claims increased after the enactment of AEDPA, there
were periods of relatively small increases and decreases (see Figure 2). For example,
in 1997, the first full year after the enactment of AEDPA, 168 state federal habeas
corpus capital cases were filed (see Figure 2). By 2003, there was an increase of

30% in the number of cases filed (see Figure 2).

Figure 3 demonstrates that many state capital federal habeas corpus cases are
not resolved as quickly as state non-capital federal habeas corpus cases. The median
time it took a state capital federal habeas corpus case to reach disposition in 1990
was three months. Generally speaking, since the enactment of AEDPA, there has
been an increase in the time for a state capital federal habeas corpus case to reach
disposition. In 2004, the median time peaked to 25.3 months, but there were six
times as many federal habeas corpus cases filed during this period.
In summary, state capital federal habeas corpus generally cases take longer to
reach disposition. Pre-AEDPA, state capital federal habeas corpus cases on average
took three additional months to reach disposition when compared to state non-capital
federal habeas corpus cases. Since the enactment of AEDPA, on average it has taken
an additional nine months for state capital federal habeas corpus cases to reach
disposition when compared to state non-capital federal habeas corpus cases.
Moreover, during the last four years that were analyzed, it has taken longer to dispose
of both types of cases.
Federal Habeas Corpus Filings and Prison Population. To what
extent does the increased prison population have an effect on the number of habeas
corpus petition filings? As shown in Figure 4, in 1995 the total state prison
population in the United States was 989,004. By 2000, the state prison population
had increased by 19%, to 1,176,269. By 2004, the state prison population had
increased by another 6% since 2000, to 1,244,311. Figures 1 and 2 show that the
total number of habeas corpus petitions filed by state prisoners increased from 1990
to 2000. With more people in prison, it follows that more habeas corpus petitions
would be filed, simply because there are more sentences to be challenged. However,
while there has been a significant increase in the state prison population over the
years, the rate of state non-capital habeas corpus filings has remained somewhat
constant (see Figure 5).
The rate of state non-capital habeas corpus filings began to increase in 1996, the
year AEDPA was enacted (see Figure 5). In 2000, however, there was a noticeable
decline in the rate of state non-capital habeas corpus filing, which continues to the
present day (see Figure 5). According to BJS, AEDPA had a delayed effect on the
filing of habeas corpus petitions by state prisoners.²⁷ BJS stated that AEDPA
resulted in approximately one additional habeas corpus petition being filed each
month for every 3,400 state prisoners.²⁸

²⁷ U.S. DOJ BJS, Prisoner Petitions Filed in U.S. District Courts, 2002, with Trends 1980-
2000, by John Scalia (Washington, DC: Bureau of Justice Statistics, 2002), p. 5, online at
[http://www.oj p.usdoj .gov/bj s /pub/pdf/ppfusd00.pdf].
²⁸ Ibid, p. 7.

Figure 4. Number of Inmates in State Prisons, 1990-2004
1,400,000
1,200,000s
1,000,000ate
m
800,000f In
600,000er o
b
400,000um
200,000N
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199 199 199 199 199 199 199 199 199 199 200 200 200 200 200
Year
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Figure 5. Rate of Federal Habeas Corpus Petitions Filed by
State Non-Capital Prisoners, 1990-2004

20.0
18.0
16.0

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12.0 1,00
10.0per

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Legislation in the 109^th Congress
Two pieces of legislation were introduced in the 109^th Congress that would have
reformed the current federal habeas corpus system for state inmates — the
Streamlined Procedures Act of 2005 (SPA; S. 1088 and H.R. 3035). The Senate
Judiciary Committee attempted to mark up S. 1088 on several occasions. In addition
to the SPA, the House passed the Border Protection, Antiterrorism, and Illegal
Immigration Control Act of 2005 (H.R. 4437) on December 16, 2005. Section 302
of H.R. 4472 would have barred federal judicial review of a state prisoner’s habeas
corpus application in cases where the state court has found harmless errors in
sentencing, see discussion below. Three additional bills (H.R. 3132/S. 956 and S.^th
1605) were also introduced in the 109 Congress. The bills would have provided for
an expeditious habeas review of convictions that involved a killing of a child (§303
of H.R. 3132, §303 of H.R. 3860, and §4 of S. 956) and a public safety officer or
state judge (§6 of S. 1605). The House passed H.R. 3132 on September 14, 2005.
The SPA would have amended AEDPA and further restricted state inmates’
access to federal habeas corpus relief. Generally, SPA would have imposed
additional requirements on habeas corpus applicants in state custody.²⁹ SPA would
have also imposed time limits on federal courts of appeal review of habeas corpus
decisions. In addition, it would have barred federal courts from tolling³⁰ the current
one-year deadline for filing habeas corpus claims for reasons other than those
authorized by the state, as well as clarify when a state appeal is pending for purposes
of tolling the deadline. Following is a discussion of the SPA’s major provisions.
The Streamlined Procedures Act of 2005 (S. 1088/H.R. 3035)
Mixed Petitions.³¹ Both bills would have prohibited an applicant from filing
a federal habeas corpus petition that included claims that were not properly exhausted
in state court. For a claim to be considered by a federal court, the bills would have
required the applicant to describe in his petition how he exhausted each claim. The
bills would have only allowed unexhausted claims to be considered by the federal
courts if the claims for relief rest on a new rule of law or on newly discovered
evidence that demonstrates the claimant was factually innocent,³² and if the denial
of relief would be contrary to, or would entail an unreasonable application of, clearly
established federal law. The bills would have required all unexhausted claims that
do not qualify for consideration be dismissed with prejudice. Unlike S. 1088, H.R.

3035 would have made the provision retroactive.

²⁹ Defendants being held under a state criminal conviction may file a federal petition for a
writ of habeas corpus under 28 U.S.C. §2254 to challenge the validity of their conviction
or sentence.
³⁰ To toll the deadline means “to stop the running of” the statute of limitation. Black’s Law
Dictionary, Second Pocket Edition, Bryan A. Garner, Editor in Chief.
³¹ 28 U.S.C. §2254(b)
³² 28 U.S.C. § 2254(e)(2)

Amendments to Petitions.³³ Both bills would have permitted a petitioner
to amend his petition only once before the one-year federal application deadline or
before the state files an answer to the petition, whichever occurs first. The bills
would not have allowed an application to be amended to modify existing claims or
to present additional claims, unless such claims would qualify for consideration on
the grounds described in current law.³⁴ Unlike S. 1088, H.R. 3035 would have made
the provision retroactive.
Procedurally Defaulted Claims.³⁵ Both bills would have barred federal
judicial review of any claim found by a state court to be procedurally barred. The
bills would have barred federal judicial review of any claim of ineffective assistance
of counsel related to such claim unless (1) the claim would qualify for consideration
if the claim for relief rests on a new rule of law or on newly discovered evidence that
demonstrates the claimant was factually innocent;³⁶ or (2) the state’s counsel
expressly waives the prohibition on hearing the claim. Both bills would have also
barred federal judicial review of any claim that a state court denies on the merits and
on the ground that the claim was improperly raised under state procedural law unless
the claim would qualify for consideration if it rests on a new rule of law or on newly
discovered evidence that demonstrates the claimant was factually innocent.³⁷
Additionally, both bills would have prohibited the writ of habeas corpus to be granted
“unless the denial of such relief is contrary to, or would entail an unreasonable
application of, clearly established federal law.”
Tolling of the Limitation Period.³⁸ Both bills would have clarified when
a state appeal is pending for purposes of tolling the one-year deadline for filing
habeas corpus claims. The bills would have established that an application is
pending from the date on which the application is filed with a state court until the³⁹
date on which the same state court rules on that application. Unlike S. 1088, H.R.

3035 would have made the provision retroactive.

³³ 28 U.S.C. §2244
³⁴ 28 U.S.C. §2244(b)(2) allows second or successive habeas corpus application when:
(A) the applicant shows that the claim relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable; or (B) the factual predicate for the claim could not have been previously
discovered through the exercise of due diligence; and (ii) the facts underlying the claim, if
proven and viewed in light of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that, but for constitutional error, no reasonable factfinder
would have found the petitioner guilty of the underlying offense.
³⁵ 28 U.S.C. §2254
³⁶ 28 U.S.C. §2254(e)(2)
³⁷ 28 U.S.C. §2254(e)(2)
³⁸ 28 U.S.C. §2244(d)
³⁹ The definition of a “pending application” is important because the one-year limitation for
filing a federal habeas petition is tolled while an application for collateral review is pending
with a state court.

Harmless Errors in Sentencing.⁴⁰ Unlike S. 1088, H.R. 3035 would have
barred federal judicial review of a habeas corpus application with respect to a
sentencing error that a state court has found harmless or not prejudicial unless a
determination is made that the error is contrary to clearly established federal law.⁴¹
Time Limitations for Appeals.⁴² Both bills would have established
appellate time limits as follows:
^!A court of appeals would be required to decide a habeas corpus
appeal within 300 days of the completion of briefing, or if no brief
is filed, the date on which it is due.
^!If a cross-appeal is filed, the court of appeals has 300 days after the
date on which the appellant files a brief in response to the issues
presented in the cross-appeal, or if no brief is filed, the date on
which it is due.
^!An appellate court would be required to rule on a petition for
rehearing within 90 days.
^!If a panel rehearing is granted, the panel has 120 days after the
petition is granted to make a determination.
^!If a rehearing en banc is granted, the court of appeals has 180 days
after the petition is granted to make a final determination.
If a court of appeals fails to comply with these deadlines, the bills would have
allowed the state to petition the U.S. Supreme Court, or a Justice thereof, to force the
court to comply with the deadline.⁴³
Capital Cases.⁴⁴ Both bills would have changed the scope of federal review
in capital cases. Under current law, a district court can only consider claims that
have been raised and decided on the merits in state courts, unless the failure to raise
the claim properly is (1) the result of state action in violation of the Constitution or
U.S. laws; (2) the result of the Supreme Court’s recognition of a new federal right
made retroactively applicable; or (3) based on a factual predicate that could not have
been discovered through the exercise of due diligence in time to present the claim for
state or federal post conviction relief.
Both bills would have barred judicial review of capital claims unless (1) the
applicant shows that the claim relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the U.S. Supreme Court that was

⁴⁰ 28U.S.C. §2254
⁴¹ S. 1088 as introduced had a similar provision, and §302 of H.R. 4472 has a similar
provision.
⁴² 28 U.S.C. §2254
⁴³ Both bills also include language stating that the failure of the court of appeals to abide by
the time limits is not grounds for granting relief from a judgement of conviction or sentence,
nor are the time limits to be construed to entitle a capital defendant to a stay of execution
to which he or she would not be otherwise entitled.
⁴⁴ 28 U.S.C. § 2264

previously unavailable; or (2) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence and the facts underlying
the claim would be sufficient to establish by clear and convincing evidence that, but
for constitutional error, no reasonable fact finder would have found the applicant
guilty of the underlying offense.
Both bills would have amended current law⁴⁵ by extending the time limit during
which the federal district court must render a final determination and enter a final
judgment on any application for a writ of habeas corpus in a capital case. Currently,
the federal district court must enter a final judgment not later than 180 days after the
date on which the application is filed. The bills would have increased the time from

180 days to 15 months.

Review of Chapter 154 Opt-in Requirements.⁴⁶ Under current law,
Chapter 154 authorizes special expedited habeas corpus procedures for state capital
cases. The procedures are currently available to states that establish a system for
providing competent legal representation to capital defendants. Under current law,
federal courts review whether the state has met the necessary requirements. Both
bills would have placed the determination with the Attorney General (and not with
the federal courts as in current law), with review of such decision in the D.C. Circuit
Court of Appeals. The bills would have required the Attorney General’s
determination to be conclusive unless it is manifestly contrary to the law and is an⁴⁷
abuse of discretion.
Clemency and Pardon Decisions.⁴⁸ Both bills would have limited federal
judicial review of state clemency and pardon decisions to Supreme Court reviews.
The bills would have required such reviews to be conducted only of decisions made
by the highest court of a state that involve a claim arising from the exercise of a
state’s executive clemency or pardon power, or the process or procedures used under
such power.
Ex Parte Funding Requests.⁴⁹ Both bills would have required an
application for services⁵⁰ for applicants in both federal⁵¹ and state custody to be
decided by a judge other than the judge presiding over the post-conviction
proceedings in capital cases seeking to vacate or set aside a death sentence. The bills
would have required that any authorized amount for these services must be disclosed

⁴⁵ 28 U.S.C. §2266(b)(1)(A)
⁴⁶ Chapter 154 sits in Title 28 of the United States Code.
⁴⁷ §507 of H.R. 3199 has a similar provision.
⁴⁸ Chapter 85 of Title 28 of the U. S.C.
⁴⁹ 21 U.S.C. §848(q)(9)
⁵⁰ Under 21 U.S.C. §848(q)(9), services include investigative, expert or other services
reasonably necessary for the defendant’s representation, “whether in connection with issues
relating to guilt or the sentence.”
⁵¹ This section is applicable to a post-conviction proceeding under 18 U.S.C. §2255 which
covers federal prisoners.

to the public immediately. Additionally, the bills would have prohibited courts from
granting an application for an ex parte proceeding,⁵² communication, or request
unless the application has been served upon the respondent. The bills would have
required all such proceedings, communication, or requests to be transcribed and made
a part of the record available for appellate review.
Crime Victims’ Rights.⁵³ Both bills would have extended crime victims’
specified rights to federal habeas corpus proceedings arising out of a state conviction.⁵⁴
These rights are enumerated in current law and include the right
^!to be reasonably protected from the accused;
^!to be given reasonable, accurate, and timely notice of any public
court proceeding, or any parole proceeding involving the crime or of
any release of escape or the accused;
^!not to be excluded from any such proceeding;
^!to be reasonably heard at any public proceeding in the district court
involving release, plea, sentencing, or parole;
^!to confer with the government’s attorney in the case;
^!to receive full and timely restitution as provided by law;
^!to a proceeding free from unreasonable delay; and
^!to be treated with fairness and with respect for the victim’s dignity
and privacy.
DNA Testing.⁵⁵ Unlike H.R. 3035, S. 1088 would have permitted DNA
evidence to be introduced to establish facts related to a claim. The bill would have
permitted the court to order DNA testing if (1) the evidence is in the possession of
the state and has been subject to a chain of custody; (2) the proposed DNA testing is
reasonable in scope, uses scientifically sound methods, and is consistent with
accepted forensic practices; (3) the court, after reviewing the record of the applicant’s
trial and any other relevant proceedings, determines that there is a reasonable
possibility that the DNA testing will produce exculpatory evidence; (4) the DNA
testing will be conducted by a lab agreed upon by the state and the applicant, or if the
state and the applicant cannot agree, one chosen by the court that is qualified to
prepare DNA analysis for entry into the National DNA Index System; and (5) the
results of the analysis are promptly disclosed to the court, the state and the
appl i cant .⁵⁶

⁵² An ex parte proceeding is a proceeding in which not all parties are present or given the
opportunity to be heard. Black’s Law Dictionary, Second Pocket Edition, Bryan A. Garner,
Editor in Chief.
⁵³ 18 U.S.C. §3771(b)
⁵⁴ 18 U.S.C. §3771(a)
⁵⁵ 28 U.S.C. §2254(e)
⁵⁶ For additional information on DNA testing for law enforcement purposes, see CRS Report
RL32247, DNA Testing for Law Enforcement: Legislative Issues for Congress, by Lisa M.
Seghetti and Nathan James.

Selected Issues
As the debate over whether to reform federal habeas corpus law escalates, two
major themes have emerged: trial finality and adequate representation. Both of
these issues are relevant when discussing state capital and non-capital post-
conviction proceedings. Following is a discussion of these two issues.
Trial Finality
Critics on both sides of the debate often point to the length of time it takes for
a federal habeas corpus case to make its way through the system. On the one hand,
those who are in favor of further reforming the body of law that governs federal
habeas corpus appeals contend that prisoners abuse the current system as a means to
keep their cases in litigation, which delays closure for many victims.⁵⁷ They argue
that the increased delays in resolving habeas corpus cases have decreased the public’s
confidence in the criminal justice system.⁵⁸ Moreover, such delays associated with
lengthy habeas corpus appeals cause many problems including victims paying a
heavy emotional price; states having to pay the cost of the litigation; the dilution of
the effectiveness of the criminal justice system; and some cases that have been
overturned due to the tampering of witnesses, reluctance of victims to testify or
evidence being lost.⁵⁹
Proponents of further reforming the federal habeas corpus system also contend
that the only way to reduce existing delays in the system is to streamline federal
habeas corpus proceedings by limiting the ability of state prisoners to petition federal
courts for habeas corpus relief and by limiting claims federal courts can consider in
habeas corpus petitions.⁶⁰ By streamlining the process, they argue, delays in
processing these cases would be diminished.⁶¹
Opponents argue, however, that limiting the claims federal courts can consider
in habeas corpus petitions would effectively prevent the federal courts from
exercising judicial review.⁶² They note that under current law, prisoners are already
required to exhaust state court remedies before advancing a claim in federal court.
They contend that federal courts use the discretion to hear unexhausted claims
sparingly. They also note that many petitioners do not have post-conviction

⁵⁷ See for example, the Powell Committee Report and Testimony of Thomas Dolgenos.
⁵⁸ See for example, The Testimony of John Pressley Todd and Thomas Dolgenos.
⁵⁹ Ibid.
⁶⁰ See S. 1088 and H.R. 3035.
⁶¹ See for example, The Testimonies of John Pressley Todd, Thomas Dolgenos and Kent
Cattani.
⁶² See for example, The Testimony of Seth Waxman, Esq., Former Solicitor General of the
United States, in U.S. Congress, Senate Committee on the Judiciary, Habeas Reform: The^th^st
Streamlined Procedures Act, 109 Cong., 1 sess., Nov. 16, 2005, 2005 (Washington: GPO,

2005), hereafter cited as testimony of Seth Waxman, and the testimony of Bernard E.

Harcourt.

representation, which makes it likely that many petitioners will have unexhausted
claims dismissed because they did not have the help of an attorney to accurately
present each claim in state court.⁶³
Moreover, opponents contend that the “limiting federal habeas corpus appeals”
argument is based on a faulty premise: that petitioners actually want to delay federal
adjudication of their claims. According to one such opponent, “99% of state
prisoners are serving prison sentences they hope to cut short by winning federal
habeas corpus relief. For the 1% under a sentence of death,” the U.S. Supreme
Court⁶⁴ has already addressed concerns about unwarranted delay.⁶⁵
Post-Conviction Representation
The Sixth Amendment of the Bill of Rights of the U.S. Constitution provides
that any individual accused of a crime is entitled to counsel. The Constitution,
however, does not require the appointment of counsel in post-conviction proceedings.
Although most experts agree that counsel in post-conviction proceedings is
important, especially in capital cases, many states lack an effective system of
appointment of counsel for indigent prisoners.⁶⁶

⁶³ Ibid.
⁶⁴ The Supreme Court held in Rhines v. Weber (125 S.Ct. 1528 (2005)) that a federal petition
can be stayed while a petitioner returns to state court, but only if there is good cause for the
failure to exhaust all claims in the application, the claim is potentially meritorious, there is
no indication that the petitioner intentionally engaged in tactics to delay proceedings, and
the court places a reasonable time limit on the petitioner’s return to federal court for
adjudication.
⁶⁵ Testimony of Ruth E. Friedman. The 1% figure was first mentioned in a DOJ BJS 1995
discussion paper titled Federal Habeas Corpus Review: Challenging State Court Criminal
Convictions by Roger A. Hanson and Henry W.K. Daley, NCJ-155504.
⁶⁶ In 1989, the American Bar Association (ABA) established standards for the appointment
and compensation of counsel in death penalty cases, pre- and post-conviction. The ABA
approved a revised edition of the standards in 2003. The ABA urged death penalty states to
establish organizations to “recruit, select, train, monitor, support, and assist” attorneys
representing capital defendants and prisoners. Moreover, the ABA called for the following:
^!The appointment of two experienced attorneys at each stage of a
capital case.
^!The appointment of the attorneys must be made by a special
appointing authority or committee that is charged with identifying
and recruiting lawyers with the relevant professional credentials,
experience and skills.
^!Attorneys should receive a reasonable rate of hourly compensation
that reflect the “extraordinary responsibilities” inherent in death
penalty litigation.
^!Attorneys should also be provided with the time and funding
necessary for proper investigations, expert witnesses, and other
support services.
(continued...)

In 1988, Congress passed legislation that required the appointment of counsel
in federal capital habeas corpus proceedings, that is, since 1988, prisoners serving
a federal capital sentence are entitled to counsel during all post-conviction
proceedings.⁶⁷ Unlike the federal criminal justice system, most states do not afford
its prisoners with the same right. Critics contend that by having a non-mandatory
system of post-conviction representation, many states ignore the reality that indigent
death row prisoners are simply not able to competently engage in post-conviction
litigation.
Access to Representation. In 1996, Congress eliminated funding for Post-⁶⁸
Conviction Defender Organizations (PCDO). PCDOs were created in the 1980s in
response to the federal judiciary’s concern about the growth of the death row
population in some federal circuits and the lack of qualified counsel to handle post-
conviction appeals.⁶⁹ PCDOs were non-profit organizations that recruited and trained
private attorneys to represent death row prisoners. Attorneys recruited by PCDOs
were well versed in death penalty litigation. PCDOs served as consultants to the
attorneys they recruited and provided expertise in the litigation of these cases. At its
peak, PCDOs employed full-time, salaried attorneys in 20 of the 38 death penalty
states. Before funding for PCDOs was eliminated, PCDOs received grants from the
Judicial Conference that were contingent upon the PCDO receiving state funding to⁷⁰
support the work it did in state courts.
Since the elimination of PCDOs, many states lack a system for the appointment
of counsel for indigent prisoners in post-conviction proceedings. In states that do
provide an attorney for post-conviction appeals, the system to appoint such
representation varies from state to state.⁷¹ Some states have a public defender’s
office that handles post-conviction representation, however, these offices are often
understaffed and underfunded.⁷² In some states that do not have public defender’s
offices to handle appeals, counties in the state will handle the responsibility of
providing post-conviction representation. Some counties do this by awarding a

⁶⁶ (...continued)
According to the ABA, no state has fully adopted its standards. See American Bar
Association, Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases, Revised Edition Feb. 2003, online at [http://www.abanet.org/deathpenalty/
DPGuidelines42003.pdf], accessed on Dec. 30, 2005 and, American Bar Association, Report
to the House of Delegates (Section of Individual Right and responsibilities Section of
Litigation), 1997, online at [http://www.abanet.org/irr/rec107.html].
⁶⁷ See the Anti-Drug Abuse Act of 1988 (§7001 of P.L. 100-690).
⁶⁸ See Title III of P.L. 104-134.
⁶⁹ P.L. 91-447, 18 U.S.C. §3006A (g)(2)(B). PCDOs were previously known as Death
Penalty Resource Centers. PCDOs were encouraged to seek state funding so they would be
able to provide representation for death row inmates at the state level.
⁷⁰ Roscoe C. Howard, Jr., “The Defuding of the Post Conviction Defense Organizations as
a Denial of the Right to Counsel,” 98 W. Va. L. Rev. 863 (1995-1996).
⁷¹ Testimony of Byran A. Stevenson.
⁷² Ibid.

contract to a law firm to handle all post-conviction cases (usually to the lowest
bidder), other counties use a list of attorneys that can be appointed to take the case.
If an attorney is appointed to the case, a cap is usually placed on the amount of
money the state will reimburse the attorney to cover the cost of investigation and
legal fees. Also, standards used by the state to determine which attorneys are eligible
to handle post-conviction representation vary from state to state.⁷³ If the state
chooses not to provide post-conviction representation, then the petitioner must file
the petition himself or hope to find an attorney that will take the case pro bono.
Effectiveness of Representation. The effectiveness of defense counsel
can have an effect on the length of post-conviction proceedings. Some have
attributed the excessive length of post-conviction review to the lack of adequate⁷⁴
representation for indigent defendants. In a report published in 1990, the American
Bar Association (ABA) concluded that inadequate counsel greatly increases the risk⁷⁵
of convictions that are flawed by fundamental, factual, legal or constitutional error.
Hence, a great deal of time during state and federal post-conviction review, especially
in a capital case, is used to determine whether or not a defendant received adequate
representation.
The importance of effective representation is further buttressed by research⁷⁶
conducted by Liebman, Fagan, West and Lloyd. The authors conducted a study of
death sentences over a 23-year period (from 1973 to 1995). According to the authors,
there were approximately 5,760 death sentences handed down in the United States
during the 23-year period that was studied. Of these sentences, 79% were reviewed⁷⁷
on direct appeal and 41% were reversed due to “serious error.” With respect to the
death sentences that were not overturned after direct review, 40% were overturned
on post-conviction review due to serious error. According to the authors, the overall
error rate in capital cases for the period 1973-1995 was 68%.⁷⁸ The study showed

⁷³ Ibid.
⁷⁴ American Bar Association, “Towards a More Just and Effective System of Review in
State Death Penalty Cases,” 40 Am. U. L. Rev. 53 (1990-91).
⁷⁵ Ibid.
⁷⁶ James S. Liebman, Jeffery Fagan, Valerie West and Jonathan Lloyd, “Capital Attrition:
Error Rates in Capital Cases, 1973-1995,” 78 Tex. L. Rev. 1839 (2000), hereafter cited as
Liebman, Fagan, West and Lloyd study.
⁷⁷ Ibid. The authors defined “serious error” as error that substantially undermines the
reliability of the outcome. According to the authors, the error must be “serious” in three
respects: (1) the error must be prejudicial, either because the defendant shows it potentially
affected the outcome of the case or because it is the kind of error that almost always has
such an effect; (2) the error generally must have been properly reserved by way of a timely
objection at trial, reiteration in a timely new trial motion at the end of the trial, and timely
and proper assertion on appeal; and (3) the error results in reversal if it is discovered.
⁷⁸ Ibid. The authors define the “error rate” as the frequency with which capital cases that
underwent full review were overturned during one of the three stages (state direct appeal,
state post-conviction appeal, federal habeas corpus appeal) of review due to serious error.

that among the most common errors that were cited during state post-conviction
review, egregiously incompetent defense lawyers accounted for 37% of reversals.⁷⁹
The research concluded that during the period examined, a majority of the death
sentences with reversible error were overturned by state courts. In 40% of the cases
where reversible error was found, it took an average of 7.6 years after the defendant
was sentenced to death for the case to complete all stages of review. It took an
average of nine years for cases in which no reversible error was found to complete
all stages of review. However, the authors’ results led them to conclude that,
“indeed, it may be that capital sentences spend so much time under judicial review
precisely because they are persistently and systematically fraught with alarming
amounts of error, and that the expanding production of death sentences may
compound the production of error.”⁸⁰
Not all states, however, have a public defense system with similar records. For
example, Arizona appoints post-conviction representation to all indigent defendants
and requires the appointed attorney to be different from the one that represented the
defendant at trial.⁸¹ Arizona has also established mandatory competency standards
for any attorney that wishes to be placed on the list of eligible attorneys for
appointment in capital post-conviction cases. The standards evaluate the attorney’s
bar status, continuing legal education, and years of experience in the practice of
criminal law or post-conviction proceedings. According to congressional testimony,
since 2002, Arizona has spent more than $1million for post-conviction representation
in 21 cases.⁸²
Attorney General Determination of AEDPA “Opt-in” for States
The issue of post-conviction representation is highlighted in the debate of
further limiting state prisoners’ access to appeal to the federal courts for habeas
relief. Under current law, states have the opportunity to “opt-in” to an expedited
review process for federal habeas corpus proceedings in capital cases if they meet
certain conditions.⁸³ The “opt-in” provision only applies to capital cases and for
qualifying states. For states that successfully “opt-in,” a six-month statute of
limitation for filing habeas corpus petitions is imposed on state prisoners, and the
district court is required to render a final determination and judgment on a petition
brought forth under the new chapter no later than 180 days after the date on which

⁷⁹ Ibid.
⁸⁰ Ibid.
⁸¹ Testimony of Chief Counsel Kent Cattani, in the U.S. Congress, Senate Committee on the
Judiciary, The Streamlined Procedures Act, hearing on S. 1088, 109^th Cong., July 13, 2005,
at [http://judiciary.senate.gov/testimony.cfm?id=1569&wit_id=4459], accessed Oct. 12,

2005, hereafter cited as testimony of Kent Cattani.

⁸² Ibid.
⁸³ AEDPA added a new Chapter 154 (Special Habeas Corpus Procedures in Capital Cases)
to Title 28 of the United States Code (Judiciary and Judicial Procedure).

the petition is filed.⁸⁴ The Streamlined Procedures Act (S. 1088/H.R. 3035) would
allow the Attorney General to decide if states have met the requirements set forth by
AEDPA to “opt-in” for the special set of rules governing federal review of state court
decisions. In deciding whether a state can “opt-in,” the Attorney General must
determine whether the state has developed a sufficient system for appointing and
funding qualified counsels during the state post-conviction process.
Under the current system, federal courts must rule on whether a state has met
the requirements to “opt-in.” If a state has successfully met such requirements, then
the federal district court would be subjected to the limitations set forth by AEDPA,
as discussed above. Proponents contend that such a system produces a reluctance on
the court’s part to determine whether states have met the criteria.⁸⁵ This is evident
in the fact that out of the 38 states that have the death penalty, only thirteen have
petitioned the courts to “opt-in” to the expedited review process since its enactment
— and only one of those states was successful (Arizona).
Opponents contend, however, that it would eliminate the chance for federal
courts to ensure reliable convictions in state capital cases (the only exception would
be for claims of actual innocence).⁸⁶ Moreover, opponents contend that by placing
this authority with the Attorney General, who is a law enforcement official, it will
disturb the existing allocation of the separation of powers.⁸⁷
Conclusion
The issue of what is the proper scope of federal habeas corpus relief resurfaced
in the 109^th Congress. Although trial finality is often cited by proponents who favor
further restricting federal habeas corpus relief to state prisoners as a desirable goal
when discussing the scope of such relief, the question of a prisoner’s constitutional
rights is often cited by those holding an opposing viewpoint as equally paramount
to the discussion of the proper scope of habeas corpus relief. The question of what
is the purpose of constitutional rights in the criminal justice system, however, can be
supported by both views. For example, do such rights exist primarily to protect the
innocent and ensure that only those who actually committed a crime will be
convicted or does the litigation of rights serve other purposes such as controlling
police and prosecutorial behavior and protecting individual privacy and dignity?
Regardless of the question, there appears to be a consensus among legislatures that
adequate representation, arguably at all stages of the criminal justice system, is
critical to ensure that an individual’s constitutional rights are not violated.

⁸⁴ See 28 U.S.C. 2266. No such deadline exists for the courts under Chapter 153.
⁸⁵ See testimony of Kent Cattani.
⁸⁶ See for example, testimony of Seth Waxman and the Rutherford Institute letter to the
Honorable Arlen Specter, Chairman of the Senate Judiciary Committee, July 26, 2005,
found online at [http://rutherford.org/articles_db/press_release.asp?article_id=573],
accessed on Dec. 30, 2005.
⁸⁷ See testimony of Seth Waxman.

As early as 1989, the Powell Committee studied the federal habeas corpus
system. Although the committee found that prisoners’ abuses of the system were
rampant, it also found that many states lacked representation for indigent prisoners
in post-conviction proceedings. As a result of the committee’s study, as well as
several U.S. Supreme Court rulings that addressed some of the issues with the
system, Congress passed AEDPA. Among other provisions, AEDPA created a two-
tier system for states with respect to federal habeas corpus proceedings. Although
there was already an existing system for the processing of federal habeas corpus
cases, AEDPA created a second, expedited system for capital cases for states that met
certain requirements. As was the case with the committee, Congress, in passing
AEDPA, recognized the need to provide an incentive to states to have a system in
place that would call for the appointment of adequate counsel as well as provide
compensation for the litigation of post-conviction cases. The need for such a system
was more apparent in capital cases where prisoners were facing a death sentence.
Although Arizona is the only state that has successfully opted-in to the expedited
system,⁸⁸ 12 additional states have attempted to do the same to no avail.
Once again Congress recognized the need for effective representation in post-
conviction proceedings, especially in capital cases, when it passed the Justice for All
Act (P.L. 108-405). Title IV of the act (the Innocence Protection Act of 2004)
permits the Attorney General to make grants to states so they can improve the quality
of legal representation provided to indigent defendants in state capital cases. The
research of Liebman, Fagan, West and Lloyd discussed previously raised the question
of whether the delays commonly associated with federal habeas corpus review are
necessary to make sure that justice is administered fairly. Moreover, the research
raised the possibility that the errors found in capital cases may be the result of poor
representation. Until the issue of adequate representation is fully addressed in the
nation’s criminal justice system, reform efforts will continue to be debated.

⁸⁸ Arizona successfully met the criteria set forth in AEDPA after several failed attempts.