"Second or successive" habeas petitions and late-ripening claims after Panetti v quarterman

University of Chicago Law Review

Volumn 74, Issue 4, 2007, Pages 1475-1515

  Reynolds, Kyle P ^a,b  

^a KALAMAZOO COLLEGE   (United States)

^b UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

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EID: 38049146386     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: 10.2307/20141868     Document Type: Note

References (219)

1. Pub L No 104-132, 110 Stat 1214, codified in relevant part at 28 USC § 2241 et seq (2000 & Supp 2004).
2. See 28 USC § 2244(b).
3. Throughout this Comment, the terms "habeas" and "habeas corpus" refer to the common law writ of habeas corpus ad subjiciendum, in contrast to other, lesser writs. For a discussion of the English common law history of the writ, see William F. Duker, A Constitutional History of Habeas Corpus 3-5, 12-63 (Greenwood 1980) (tracing the writ's development through the seventeenth century).
4. No less a figure than William Blackstone noted that the writ was "frequently considered as another magna carta." William Blackstone, 3 Commentaries on the Laws of England *135 (Chicago 1979).
5. See US Const Art I, § 9, cl 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."). This has come to be known in constitutional shorthand as the "Suspension Clause."
6. See McCleskey v Zant, 499 US 467, 470 (1991) ("The doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus.").
7. Id at 479.
8. Duker, A Constitutional History of Habeas Corpus at 5-6 (cited in note 3).
9. See Wong Doo v United States, 265 US 239, 241 (1924) (allowing lower courts hearing successive habeas claims to give "controlling weight . . . to the prior refusal"); Salinger v Loisel, 265 US 224, 230-31 (1924) (noting that "comprehensive review in criminal cases" also narrowed the scope of claims cognizable under habeas).
10. Salinger, 265 US at 230-31.
11. Id at 231.
12. See Wong Doo, 265 US at 241 ("To reserve the proof for use in attempting to support a second petition, if the first failed, was to make an abusive use of the writ.").
13. See Randy Hertz and James S. Liebman, 2 Federal Habeas Corpus Practice and Procedure § 28.2(b) at 1403-04 (LexisNexis 5th ed 2005) (tracing the shift from judicial to statutory standards of habeas review).
14. See, for example, Sanders v United States, 373 US 1, 11 (1963) ("[A]s part of the 1948 revision of the Judicial Code, the Court's statement in Salinger . . . was given statutory form.").
15. See 28 USC § 2254 Rule 9(b) (1976) (permitting judges to dismiss a "second or successive petition" that implicates abuse of the writ). See also McCleskey, 499 US at 483-84 ("[A]s a general matter Congress did not intend the new section to disrupt the judicial evolution of habeas principles."). This Part gives short shrift to the history of the doctrine in the United States, but does provide an example of early standards. Throughout most of the last century, the standard was in flux, and it is thus difficult to encapsulate the doctrine across time. For a fuller explication, see Hertz and Liebman, 2 Federal Habeas Corpus Practice and Procedure § 28.2(b) at 1403-07 (cited in note 12); McCleskey, 499 US at 479-89.
16. See John Kifner, Terror in Oklahoma City, NY Times A1 (Apr 20, 1995);
17. Sue Anne Pressley, Bomb Kills Dozens in Oklahoma Federal Building, Wash Post A1 (Apr 20, 1995).
18. See Robert D. McFadden, Explosion at the Twin Towers, NY Times A1 (Feb 27, 1993) (describing the scope of the destruction caused by the explosion);
19. Malcolm Gladwell, At Least 5 Die, 500 Hurt as Explosion Rips Garage under World Trade Center, Wash Post A1 (Feb 27, 1993) (discussing possible reasons for the bombing).
20. See, for example, Jim Hoagland, On Guard, People, Wash Post A27 (Apr 21, 1995) ("Similar 'statements' have been written in the car-bombed buildings on both sides of the line dividing Christian and Muslim Beirut, the firebombed buses of Israel and in the wreckage of a dozen other conflicts of recent years.");
21. Editorial, Savagery in Oklahoma City, NY Times A22 (Apr 20, 1995) ("A fate like Beirut's Americans and their Government must never tolerate.").
22. See, for example, Excerpts from Rehnquist Speech Urging Curb on Death Penalty Appeals, NY Times A18 (May 16,1990) ("The system at present verges on the chaotic.");
23. Lewis F. Powell, Jr., Capital Punishment, 102 Harv L Rev 1035, 1035 (1989) ("[O]ur present system of multi-layered appeals has led to excessively repetitious litigation and years of delay between sentencing and execution.");
24. Herbert Wechsler, Habeas Corpus and the Supreme Court: Reconsidering the Reach of the Great Writ, 59 U Colo L Rev 167, 180 (1988) ("Federal judges are by no means happy with the inundation of their courts by [habeas] filings, even though the great preponderance can be dismissed without an evidentiary hearing.");
25. Henry J. Friendly, is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U Chi L Rev 142, 148 (1970) ("[T]he most serious evil with today's proliferation of collateral attack is its drain upon the resources of the community."). This concern was neither new nor unknown to the United States Reporter. See Brown v Allen, 344 US 443, 536-37 (1953) (Jackson concurring): [T]his Court has sanctioned progressive trivialization of the writ until floods of stale, frivolous and repetitious petitions inundate the docket of the lower courts and swell our own. . . . It must prejudice the occasional meritorious application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.
26. See State of the Union: "Second American Revolution," NY Tunes B8 (Feb 7, 1985) ("I urge the House to follow the Senate and enact proposals . . . reform[ing] the habeas corpus laws and allow[ing] . . . the use of the death penalty where necessary.").
27. See Hobart Rowen, The Contract: Shall It Come to Pass?, Wash Post A23 (Nov 17, 1994) (describing Republican legislation that would curb abuse of criminal appeals and increase use of the death penalty).
28. Senator Bob Dole, a sponsor of the bill, remarked upon the proposed legislation that "[t]he most critical element of this bill, the one that bears most directly on the tragic events in Oklahoma City, is the provision reforming the so-called habeas corpus rules." 104th Cong, 1st Sess (June 5, 1995), in 141 Cong Rec S 7877 (June 7, 1995). This stands in stark contrast to the statements of Representative Don Young, who noted that "this legislation is a knee-jerk reaction to a most heinous crime. This body has passed enough legislation in previous years to catch and punish criminals who commit these atrocious acts against humanity," 104th Cong, 2d Sess (Apr 18, 1996), in 142 Cong Rec E 638 (Apr 25, 1996), and Howard Berman, who stated, "Shame on those who invoke the names of innocents slaughtered in Oklahoma City . . . in their quest to effectively abolish the writ of habeas corpus," id at H 3610 (Apr 18, 1996).
29. See Katharine Q. Seelye, Anti-Crime Bill as Political Dispute, NY Times A16 (Feb 21, 1995) (noting that President Clinton's veto pledge was his first "against a specific piece of legislation").
30. 28 USC § 2244(b)(1).
31. 28 USC § 2244(b)(2) (listing a retroactive change in constitutional interpretation as one such circumstance). See also Part I.B.
32. See Part I.C.
33. This refers to the time of adjudication in the state court. Before AEDPA, state courts were required to apply federal law - not just Supreme Court precedents - through the end of direct review. Except in limited circumstances, cases that had completed direct review and moved on to collateral review could not benefit from the retroactivity of "new" constitutional rules. See Teague v Lane, 489 US 288, 310 (1989) (arguing that retroactivity "continually forces the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards"). For a discussion of what constitutes an "unreasonable application" of clearly established law, see Williams v Taylor, 529 US 362, 407-09 (2000) (identifying inapt applications of valid legal principles to specific facts and inappropriate extensions of legal principles as two instances of unreasonable applications of Supreme Court precedent).
34. 28 USC § 2244(b).
35. This concept is explored in greater depth in Part V.A.
36. 28 USC § 2244(b)(3)(A)-(B).
37. 28 USC § 2244(b)(3)(C).
38. 28 USC § 2244(b)(3)(E).
39. 28 USC § 2244(b)(4).
40. See Part II.A.
41. See Part II.B.
42. Smith v Bennett, 365 US 708, 712 (1961).
43. 518 US 651 (1996).
44. President Clinton signed AEDPA into law on April 24, 1996. 110 Stat at 1214. Felker was handed down on June 28 of that same year. 518 US at 651.
45. See Felker, 518 US at 653-54 ("[T]he Act does not preclude this Court from entertaining an application for habeas corpus relief, although it does affect the standards governing the granting of such relief.").
46. 75 US (8 Wall) 85, 105-06 (1868) (upholding a statute that repealed a year-old grant of extended habeas jurisdiction to the Court).
47. See Felker, 518 US at 658-61 (noting, however, that "the Act does impose new conditions on [the Court's] authority to grant relief).
48. Id at 663-64 ("The writ of habeas corpus known to the Framers was quite different from that which exists today."). See also Part I.
49. Id at 663-64.
50. See id at 664.
51. Id, quoting Lonchar v Thomas, 517 US 314, 323 (1996).
52. Felker, 518 US at 664.
53. Id, quoting McCleskey v Zant, 499 US 467, 489 (1991).
54. Felker, 518 US at 664.
55. 523 US 637 (1998).
56. 477 US 399, 409-10 (1986) (holding that "the underlying social values encompassed by the Eighth Amendment" prohibit the execution of those with "no capacity").
57. See Martinez-Villareal, 523 US at 640 (noting that all three of the prisoner's petitions were dismissed).
58. Id at 640-41. Moving in the court of appeals is required by 28 USC § 2244(b)(3). See Part I.B.
59. Martinez-Villareal, 523 US at 644 (describing the primacy of state court remedies as "reflect[ing] a policy of federal-state comity").
60. See id at 646 (Scalia dissenting) ("[I]t is impossible to conceive of language that more clearly precludes respondent's renewed competency-to-be-executed claim than the written law before us here."). See also id at 648-50 (Thomas dissenting) (interpreting the "plain meaning" of the statute with reference to dictionary definitions).
61. Id at 643 (majority).
62. Id at 644.
63. The execution was not considered imminent while state remedies were still available. See id at 644-45.
64. Id at 645 (including, for example, the failure to pay filing fees). The court expressly declined to entertain a scenario somewhat similar to that envisioned by this Comment - "where a prisoner raises a Ford claim for the first time in a petition filed after the federal courts have already rejected the prisoner's initial habeas application." Id at 645 n *. Additionally, this issue, explicitly set aside in Martinez-Villareal, was decided by the Court in Panetti v Quarterman, 127 S Ct 2842 (2007), which will be discussed in Part IV.A. Another notable case handed down before Panetti, but after Martinez-Villareal, is Slack v McDaniel, 529 US 473 (2000), in which the Court reiterated its interpretation of § 2244 from Martinez-Villareal when dealing with a petition that had been dismissed during the initial round for failure to exhaust state remedies. See id at 487 ("A petition filed after a mixed petition . . . is to be treated as 'any other petition' and is not a second or successive petition."). See also Rose v Lundy, 455 US 509, 510 (1982) (holding that "mixed petitions" - those containing both claims that have been exhausted in state court and claims that have not been so exhausted - must be dismissed in whole by federal courts). The Court in Slack demonstrably declined to state that the meaning of "second or successive" would be different under the AEDPA rules. See 529 US at 486. In fact, "[t]he phrase 'second or successive petition' is a term of art given in [the Supreme Court's] prior habeas corpus cases." Id. While acknowledging "second or successive" as a "term of art," the court nonetheless failed to say precisely what the term means. But one thing is clear: the text of the Act does not control insofar as it absolutely requires the dismissal of any claim presented in a second or successive petition that had been presented earlier.
65. See Part VI.B.
66. The Court has been confronted with similar issues at least three times in 2007. In Burton v Stewart, 127 S Ct 793 (2007) (per curiam), the court held that a prisoner who filed a petition, knowing that other claims were unexhausted, could not bring those claims later, despite the fact that he may have had a "legitimate excuse" for doing so. See id at 796-97, 799. The Court also denied certiorari to a case presenting an issue very similar to the one analyzed in this Comment. Lambert v Buss, 127 S Ct 1814 (2007). The Seventh Circuit's decision in Lambert is examined in Part III.B. The issue declined in Lambert was taken up in Panetti merely a few months later. See Part IV.A.
67. 127 S Ct 2842 (2007).
68. 308 F3d 162 (2d Cir 2002).
69. Id at 165. Note that 28 USC § 2254(a) allows only federal judges to review state court proceedings on the ground that the prisoner "is in custody in violation of the Constitution or laws or treaties of the United States" (emphasis added).
70. See James, 308 F3d at 165, 167.
71. Id at 167.
72. Id at 168 ("[The petitioner] could not have argued that he was in custody in violation of the laws of the United States before the time when, according to his calculations, he should have been released.").
73. 404 F3d 812 (3d Cir 2005).
74. Id at 813-14 (noting that the parole board's sole reason for denial was "that the fair administration of justice cannot be achieved through [the petitioner's] release").
75. See id at 817 ("Informed by the teachings of the Supreme Court and our sister circuits, therefore, we will look to principles of the abuse of the writ doctrine."). As this Comment shows, the circuit courts have not "uniformly" taken this interpretive approach. See Part III.B.
76. See id. Note the similarity with the definition supplied in James. See 308 F3d at 167.
77. Benchoff, 404 F3d at 820-21 ("[T]he District Court was required to have dismissed this petition.").
78. 137 F3d 234 (5th Cir 1998).
79. Id at 235-36 ("Cain's current applications focus on the constitutionality of the procedures used to strip him of his good-time credits.").
80. Id at 235.
81. Id at 235 n 1 ("AEDPA is designed primarily to preclude petitions brought by prisoners seeking to escape the consequences of their criminal behavior.").
82. Id at 235.
83. Id at 236-37 ("Cain does not need this court's permission to file his two petitions because these petitions are not successive.").
84. 319 F3d 1018 (8th Cir 2003) (en banc). For another Eighth Circuit decision highly similar to Cain, see generally Crouch v Norris, 251 F3d 720 (8th Cir 2001).
85. 319 F3d at 1020-21.
86. This was prior to the enactment of AEDPA.
87. Id at 1021.
88. Id at 1021-22 (noting that "the district court denied the petition").
89. Id at 1023.
90. Id (stating that both factors had to be present for the petitioner's claim to be ripe). Note that this case contained a spirited dissent on this issue. See id at 1029 (Loken concurring in part and dissenting in part) ("This rule is a partial judicial repeal of § 2244(b)(2)'s limitations on new claims in second or successive petitions.").
91. 297 F3d 895 (9th Cir 2002).
92. The state had agreed that the prisoner's petition should not be categorized as second or successive under that section.
93. Id at 898.
94. 351 F3d 1049 (11th Cir 2003).
95. Id at 1064.
96. Id at 1062.
97. See, for example, Benchoff, 404 F3d at 817.
98. 179 F3d 1024 (7th Cir 1999).
99. Id at 1025.
100. Id.
101. Id.
102. Id at 1025, quoting Burris v Parke, 95 F3d 465, 469 (7th Cir 1996). Compare this finding with the Supreme Court's decision in Felker, 518 US at 664 (acknowledging a viable abuse-of-the-writ doctrine after AEDPA).
103. Page, 179 F3d at 1026.
104. Id (finding that, if "a claim based on a new (hence previously unavailable) case is not a second or successive petition at all," then part of § 2244's language would "never come into play").
105. 449 F3d 774 (7th Cir 2006), cert denied 127 S Ct 1814 (2007).
106. 449 F3d at 777.
107. Id at 778-79 (noting in addition that "the state supreme court reasonably rejected [petitioner's] due process and equal protection claims").
108. 529 US 473 (2000). See also note 57.
109. Id at 780 (Ripple dissenting) ("There is no question that, in enacting AEDPA, Congress desired to put an end to the constant stream of habeas petitions that were filed successively for no other reason than to prolong the judicial process.").
110. Id at 781.
111. It might be slightly erroneous to imply that the court in Page did not evince a certain degree of purposivism, see 179 F3d at 1026 ("Such an interpretation . . . is a slap in the face of Congress."), but the contrast between the approaches is the main point.
112. 162 F3d 600 (10th Cir 1998).
113. Id at 601.
114. Id at 602 (Briscoe dissenting).
115. Panetti, 127 S Ct at 2848-49 (2007).
116. The psychiatric evaluation carried out by the trial court "indicated that petitioner suffered from a fragmented personality, delusions, and hallucinations. . . . Evidence later revealed that doctors had prescribed medications for petitioner's mental disorders that, in the opinion of one expert, would be difficult for a person not suffering from extreme psychosis even to tolerate." Id at 2848. Even further, "[d]uring his trial petitioner engaged in behavior later described by his standby counsel as 'bizarre,' 'scary,' and 'trance-like.'" Id at 2849. The petitioner represented himself at trial, but during state habeas review the court ruled that he was incompetent to decline the appointment of an attorney. Id.
117. For an incompetency-to-be-executed claim to succeed, the execution must be imminent. When a prisoner is attacking his death sentence, the execution is almost always stayed and thus not imminent. By their very nature, Ford claims evade review, at least in a certain manner. See Part IV.B.
118. The question upon which certiorari was granted was: "Does the Eighth Amendment permit the execution of a death row inmate who has a factual awareness of the reason for his execution but who, because of severe mental illness, has a delusional belief as to why the state is executing him, and thus does not appreciate that his execution is intended to seek retribution for his capital crime?" See Petition for Writ of Certiorari, Panetti v Quarterman, No 06-6407, *i (filed Sept 6, 2006), available on Westlaw at 2006 WL 3880284. More specifically, "the district court found based on the testimony of the experts that Panetti is aware that he will be executed, that he committed the murders for which he was convicted and sentenced to death, and that the 'State's stated reason for executing him is that he committed two murders.'" Panetti v Dretke, 448 F3d 815, 817 (5th Cir 2006). He thought, however, that the state was lying. The real reason for the execution, in the petitioner's view, was that the State of Texas was "in league with the forces of evil to prevent him from preaching the Gospel." Id at 817-18.
119. There is some contention that the issue was raised in the district court. The State's supplemental brief mentions that it was argued in that court. Supplemental Brief for Respondent, Panetti v Quarterman, No 06-6407, *2 (filed Apr 11, 2007), available on Westlaw at 2007 WL 1090395 ("Supplemental Brief for Respondent"). The district court opinion contains no such mention. See generally Panetti v Dretke, 401 F Supp 2d 702 (WD Tex 2004). The district court evidently disposed of it in a motion, and the state chose not to raise the issue before the court of appeals, which, according to the state's brief, declined to hear any AEDPA issues anyway. See Supplemental Brief for Respondent at *2-3.
120. See Panetti v Quarterman, No 06-6407 (Apr 2, 2007) (docket entry ordering supplemental briefing).
121. See Panetti, 127 S Ct at 2852.
122. Id at 2852-53.
123. Id at 2853.
124. Martinez-Villareal, 523 US at 644.
125. See Panetti, 127 S Ct at 2854-55 ("We are hesitant to construe a statute, implemented to further the principles of comity, finality, and federalism, in a manner that would require unripe (and, often, factually unsupported) claims to be raised as a mere formality, to the benefit of no party.").
126. Id at 2853 (emphasis added).
127. Id at 2854-55.
128. Martinez-Villareal, 523 US at 644. See also Part II.B.
129. Id at 644.
130. See Batson v Kentucky, 476 US 79, 89 (1986) ("[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.").
131. Martinez-Villareal, 523 US at 644-45.
132. See id: We believe that respondent's Ford claim here - previously dismissed as premature - should be treated in the same manner as the claim of a petitioner who returns to federal court after exhausting state remedies. True, the cases are not identical; respondent's Ford claim was dismissed as premature, not because he had not exhausted state remedies, but because his execution was not imminent and therefore his competency to be executed could not be determined at that time. But in both situations, the habeas petitioner does not receive an adjudication of his claim.
133. See note 111 and accompanying text.
134. Panetti, 127 S Ct at 2853 (emphasis added).
135. Id at 2855.
136. See, for example, id at 2854-55; Felker, 518 US at 664. See also Part II.A. But see Page, 179 F3d at 1025 (observing that, after AEDPA's enactment, the abuse-of-the-writ doctrine "was replaced by the new criteria and passed out of the law").
137. William N. Eskridge, Jr., Philip P. Frickey, and Elizabeth Garrett, Legislation and Statutory Interpretation 343-44 (Foundation 2d ed 2006).
138. Id.
139. This general observation is not novel. See generally Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed, 3 Vand L Rev 395 (1950).
140. Shaw v Railroad Co, 101 US (11 Otto) 557, 565 (1879).
141. See Eskridge, Frickey, and Garrett, Legislation at 275-76 (cited in note 130).
142. Cain, 137 F3d at 235.
143. Specifically, if claims "rel[y] on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," or the facts couldn't have been uncovered through "due diligence" and the claims establish the petitioner's innocence to a high standard, then those claims shall not be dismissed. 28 USC § 2244(b)(2).
144. Panetti, 127 S Ct at 2853.
145. US Const Art VI, cl 2 ("This Constitution . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."); Marbury v Madison, 5 US (1 Cranch) 137, 138 (1803) ("An act of congress repugnant to the constitution cannot become a law.").
146. See, for example, Medberry, 351 F3d at 1052-54 (finding one such petition moot).
147. See, for example, James, 308 F3d at 165 (describing a petition that "alleged that [the prison system] had failed to apply the credit for time served on [petitioner's] lesser sentence to his overall sentence").
148. There is, however, an alternative route to vindicate these rights other than habeas corpus - specifically the Religious Land Use and Institutionalized Persons Act. For a discussion of this issue, see generally Jennifer D. Larson, RLUIPA, Distress, and Damages, 74 U Chi L Rev 1443 (2007) (resolving a tension between the Religious Land Use and Institutionalized Persons Act of 2000 and the Prison Litigation Reform Act of 1995).
149. See Hill v McDonough, 126 S Ct 2096, 2100 (2006) (evaluating an Eighth Amendment challenge against the particular combination of chemicals in a lethal injection cocktail, which could potentially leave the prisoner conscious but paralyzed during muscle seizure and cardiac arrest). See also Leonidas G. Koniaris, et al, Inadequate Anaesthesia in Lethal Injection for Execution, 365 Lancet 1412, 1414 (2005) ("Failures in protocol design, implementation, monitoring and review [of lethal injections] might have led to the unnecessary suffering of at least some of those executed."). Challenges to the "validity of any confinement or to particulars affecting its duration" must be vindicated through habeas corpus; challenges to the circumstances of confinement may be brought under 42 USC § 1983. Muhammad v Close, 540 US 749, 750 (2004). Furthermore, challenges to execution methods could amount to a challenge to "the fact of the sentence itself," which must be brought in a habeas action. Nelson v Campbell, 541 US 637, 644 (2004). In Hill, the petitioner was allowed to challenge the circumstances of his execution under § 1983 because he did not challenge "an execution procedure required by law" and a legal victory "would not necessarily prevent the State from executing him by lethal injection." 126 S Ct at 2102. It is far from difficult, however, to imagine a scenario wherein a challenge was brought to a method required by law, or that a successful suit would foreclose the availability of execution altogether.
150. For a fuller explanation of this debate, as well as a proposed test for evaluating claims, see generally Note, A New Test for Evaluating Eighth Amendment Challenges to Lethal Injections, 120 Harv L Rev 1301 (2007).
151. Of course, even in such an unlikely circumstance, it is even more unlikely that the Supreme Court would neglect to make the ruling retroactive to cases on collateral review. "New" rules become retroactive to cases on collateral review in only two circumstances. The first exception is when forms of private conduct are placed beyond the reach of the criminal law, and the second is for certain procedures fundamental to the American concept of liberty. Teague v Lane, 489 US 288, 307 (1989). A ruling that the death penalty violates the Constitution would almost certainly fall into the second category. As one litigant put it, the state should not be allowed "one last cruel and unusual punishment" before the new rule takes effect. Jones v Thigpen, 741 F2d 805, 811 (5th Cir 1984). The point here is merely illustrative.
152. This scenario is illustrated in Deborah L. Stahlkopf, A Dark Day for Habeas Corpus: Successive Petitions under the Anti-Terrorism and Effective Death Penalty Act of 1996, 40 Ariz L Rev 1115, 1134-35 (1998) ("To draw an arbitrary line based on timing, over which the petitioner has absolutely no control, is to deny the petitioner his constitutional rights."). The author bases her hypothetical on Bracey v Gramley, 520 US 899, 908-09 (1997) (ruling that an inmate sentenced by a judge later convicted of unrelated bribery had shown good faith for discovery). Again, innumerable variations on this theme are possible.
153. See Atkins v Virginia, 536 US 304, 321 (2002) (holding the execution of the "mentally retarded" to be unconstitutional under the Eighth Amendment). It is notable that this case overturned a directly contrary ruling handed down just thirteen years prior. See Penry v Lynaugh, 492 US 302, 335 (1989) ("[A]t present, there is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment.").
154. 543 US 551, 568 (2005) (holding unconstitutional under the Eighth Amendment the execution of inmates who were either seventeen or eighteen years old when they committed their crimes).
155. 42 USC § 1983 (2000). It has been suggested that other writs, such as coram nobis or audita querela, be resuscitated and mobilized under 28 USC § 1651 (2000), the "All-Writs Act." See Peter Hack, The Roads Less Traveled: Post Conviction Relief Alternatives and the Antiterrorism and Effective Death Penalty Act of 1996, 30 Am J Crim L 171, 211-21 (2003) (defining coram nobis as a writ that "allowed courts to review decisions that had previously been laid to rest" and audita querela as affording "relief to a judgment debtor against a judgment or execution because of some defense of discharge arising subsequent to the rendition of the judgment"). Despite the fact that these writs have been abolished in the civil context, see FRCP 60(b), coram nobis was briefly revitalized in United States v Morgan, 346 US 502, 512 (1954) (allowing the writ of coram nobis to issue for "errors 'of the most fundamental character'"). More recent courts, however, have been less receptive to this strategy. As Judge Easterbrook remarked, Prisoners cannot avoid the AEDPA's rules by inventive captioning. . . . Call it a motion for new trial, arrest of judgment, mandamus, prohibition, coram nobis, coram vobis, audita querela, certiorari, capias, habeas corpus, ejectment, quare impedit, bill of review, writ of error, or an application for a Get-Out-of-Jail Card; the name makes no difference. It is substance that controls. Melton v United States, 359 F3d 855, 857 (7th Cir 2004). These writs will not be addressed here.
156. 28 USC § 2254 (emphasis added).
157. 518 US at 661-62 ("[AEDPA] does not repeal [the Court's] authority to entertain a petition for habeas corpus."). See also Part II.A.
158. Id. See also note 31 and accompanying text.
159. Id. See also US Const Art III, § 2 ("In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction . . . with such Exceptions, and under such Regulations as the Congress shall make") (emphasis added); Yerger, 75 US at 98 (listing habeas and mandamus as included in the Court's appellate jurisdiction). Felker held that the Supreme Court is not divested of appellate jurisdiction under Article III because its ability to entertain original writs hadn't been altered by AEDPA. See 518 US at 661-62. This is an interesting logical pirouette, because habeas writs are generally considered to be original civil actions. See, for example, Townsend v Sain, 372 US 293, 311-12 (1963) ("The whole history of the writ refutes a construction of the federal courts' habeas corpus powers that would assimilate their task to that of courts of appellate review."). The Court, however, couldn't have considered an original writ of habeas corpus as part of its original jurisdiction without a collision with Marbury, as original writs are not mentioned in Article III. The characterization may be somewhat defensible, however. An original habeas writ in the Supreme Court is a review of some decision, and certain nonappellate aspects of habeas review that crop up in federal district courts - such as determinations of fact and the ability to hold evidentiary hearings - are simply not present in the Supreme Court. There is at least an argument that a state is a de facto litigant in habeas proceedings because a state prisoner is challenging her sentence in federal court, and this would allow the proceedings to qualify under the Court's original jurisdiction. The proper litigant in a habeas suit, however, is not the state, but rather the direct custodian over the prisoner's confinement. See, for example, al-Marri v Rumsfeld, 360 F3d 707, 708-09 (7th Cir 2004).
160. Felker, 518 US at 662 (stating that § 2244(b)(3) applies only to "applications 'filed in the district court'").
161. Id.
162. See Ex Parte Grossman, 267 US 87, 107 (1925) (granting habeas to a petitioner who was imprisoned for violation of Prohibition, notwithstanding a presidential pardon). See also Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Federal Habeas Corpus Cases, 11 NYU L Rev 699, 757, 782 (2002) (noting that the Court acknowledges the possibility of original habeas petitions but almost never grants such petitions). It is notable, however, that a 2002 petition for an original writ in the Supreme Court gathered four votes to grant. In In re Stanford, 537 US 968 (2002), the court denied a petition by a death-row prisoner who was under the age of eighteen when he committed his offense. Three Justices signed on to an exceptionally spirited dissent written by Justice Stevens. After noting that many laws (voting and jury service, for example) acknowledge that juveniles bear a lessened degree of responsibility, Stevens argued that a national consensus had developed against the execution of juvenile offenders. He concluded that "offenses committed by juveniles under the age of 18 do not merit the death penalty. The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice." Id at 972. This view prevailed less than three years later in Roper, 543 US at 578 ("The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed."), which overturned the previous precedent of Stanford v Kentucky, 492 US 361, 380 (1989) ("[W]e conclude that [the execution of offenders younger than 18 at the time of their crimes] does not offend the Eighth Amendment's prohibition against cruel and unusual punishment."). The petitioner in that case was the same whose original habeas petition in the Supreme Court was denied in In re Stanford.
163. Sup Ct R 20.1.
164. Id.
165. Sup Ct R 20.4(a).
166. Robert L. Stern, et al, Supreme Court Practice § 11.3 at 591 (Bureau of National Affairs 8th ed 2002).
167. Id (recognizing a claim by a person whose "rights, privileges, or immunities" are abrogated by another person acting under color of law).
168. 544 US 74 (2005).
169. See id at 82 (finding that the respondents' claims "d[id] not fall within the implicit habeas exception").
170. Id.
171. Heck v Humphrey, 997 F2d 355, 357 (7th Cir 1993). This ruling was affirmed in Heck v Humphrey, 512 US 477, 486-87 (1994). Furthermore, the Supreme Court held that, in order to recover damages under § 1983 for unconstitutional conviction or imprisonment, a prisoner "must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id.
172. One additional avenue of relief that has been suggested is a motion for relief from judgment under FRCP 60(b)(2) or FRCP 60(b)(6). See Stevenson, The
173. Abraham Lincoln's suspension of habeas corpus during the Civil War is of course the best-known example. See Ex parte Merryman, 17 F Cases 144, 148 (Cir Ct Md 1861) (holding that Congress, and not the president, wields the power to suspend habeas corpus under the Suspension Clause); Ex parte Milligan, 71 US (4 Wall) 2, 115 (1866) (noting, in dicta, that "suspension of the writ does not authorize the arrest of any one, but simply denies to one arrested the privilege of this writ in order to obtain his liberty"); David P. Currie, The Civil War Congress, 73 U Chi L Rev 1131, 1134-40 (2006) (detailing the presidential and congressional arguments for and against Lincoln's suspension of the writ).
174. James, 308 F3d at 168 (emphasis added). See also Rodriguez v Artuz, 990 F Supp 275, 282 (SDNY 1998) (Sotomayor) ("[A]t least where no claim of actual or legal innocence has been raised, as long as the procedural limits on habeas leave petitioners with some reasonable opportunity to have their claims heard on the merits, the limits do not . . . constitute [an unconstitutional] suspension."), affd 161 F3d 763, 764 (2d Cir 1998) (per curiam).
175. See Part H.A.
176. Felker, 518 US at 664.
177. 533 US 289 (2001).
178. See id at 300.
179. Id (noting that the statutes must be construed "to avoid [constitutional] problems").
180. Id at 326 (constructing a statute not to apply retroactively in order to preserve the respondent's avenue of relief).
181. Id at 337 (Scalia dissenting) (reading the Constitution's text as providing neither content for habeas nor "even [its] existence"). But see Gerald L. Neuman, The Habeas Corpus Suspension Clause after INS v. St. Cyr, 33 Colum Hum Rts L Rev 555, 559, 571 (2002) (characterizing the St. Cyr dissent as "unprecedented" and accusing it of "ignor[ing] voluminous contrary evidence").
182. St. Cyr, 533 US at 335-36 (Scalia dissenting) (accusing the majority of "transmogrifying a doctrine designed to maintain 'a just respect for the legislature,' into a means of thwarting the clearly expressed intent of the legislature") (citations omitted).
183. 533 US 678 (2001).
184. See id at 682 (reasoning that the "indefinite detention of aliens [already admitted to the United States] would raise serious constitutional concerns").
185. See id at 690 (noting that civil, noncriminal detention violates Fifth Amendment due process except in extraordinary circumstances).
186. See id at 707 (Kennedy dissenting) (accusing the majority of "waltz[ing] away from any analysis of the language, structure, or purpose of the statute").
187. Id.
188. 96 F3d 856 (7th Cir 1996) (en banc), revd on other grounds, 521 US 320 (1997).
189. 96 F3d at 868. Scalia makes this same argument in his St. Cyr dissent, though it wasn't accepted by the majority. St. Cyr, 533 US at 341-42 (Scalia dissenting) ("The Suspension Clause [is not] a one-way ratchet that enshrines in the Constitution every grant of habeas jurisdiction."). Of course, a middle ground can be found between the Suspension Clause as a ratchet and the Suspension Clause as nothing other than a guarantee against full suspension. Scalia also expresses a view that the Suspension Clause pertains to only temporary abatements of the writ and nothing else. Id at 337-41 (noting that, in the case at issue, "Congress [had] not temporarily withheld operation of the writ, but [had] permanently altered its content").
190. See, for example, In re Vial, 115 F3d 1192, 1197-98 (4th Cir 1997) ("[T]he limitations imposed on second and successive § 2255 motions by the AEDPA do not constitute a suspension of the writ.").
191. See Lawrence G. Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv L Rev 1212, 1213 (1978) (arguing that "'underenforced' constitutional norms [should be treated] as valid to their conceptual limits").
192. Id at 1213. See also Owen M. Fiss, Foreword: The Forms of Justice, 93 Harv L Rev 1, 51-52 (1979) ("The task of discovering the meaning of constitutional values . . . is, however, quite different from choosing or fashioning the most effective strategy for actualizing those values.").
193. These examples are provided in Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum L Rev 857, 861 (1999) (describing "rights essentialism" as a view in which "[c]onstitutional adjudication . . . begins with the identification or definition of the constitutional right, and only then proceeds to application of the right in a real world context").
194. Levinson, 99 Colum L Rev at 874 (cited in note 184).
195. Id at 880 ("Remedies are used by courts to define a constitutional standard that would otherwise be impossible to articulate, and those remedies become the normative criteria by which constitutional violations are judged.").
196. US Const Amend XIV, § 1 ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.").
197. Note that a satisfactory excursus on this theoretical point falls well beyond the scope of this Comment. Robust arguments have been made on both sides of this debate, and this Comment lacks the space to address them all here. Suffice it to say that one side of the debate is fully advocated here - the side holding that rights and remedies cannot be separated. For an excellent discussion of this matter, see generally Levinson, 99 Colum L Rev 857 (cited in note 184).
198. William Blackstone, 3 Commentaries on the Laws of England (Chicago 1979).
199. Id at *23. This quote may be familiar to readers, as it is quoted by Justice John Marshall in Marbury v Madison, 5 US (1 Cranch) 137, 163 (1803). Marshall goes even further when he says that "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Id.
200. Wood & Selick, Inc v Compagnie Generale Transatlantique, 43 F2d 941, 943 (2d Cir 1930).
201. Oliver Wendell Holmes, The Path of the Law, 10 Harv L Rev 457, 461 (1897).
202. Id at 458.
203. Karl N. Llewellyn, The Bramble Bush 12 (Oceana 1960).
204. Id at 83-84.
205. See, for example, Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics, 403 US 388, 397 (1971) (finding that money damages were available for infringement of a plaintiffs Fourth Amendment rights). See also Zadvydas, 533 US at 690-96 (arguing that "an alien's liberty interest [was] strong enough to raise a serious question as to whether . . . the Constitution permits detention that is indefinite"); St. Cyr, 533 US at 303-08 (determining that habeas allows courts to grant "discretionary relief in, for example, the context of immigration disputes).
206. See notes 135-36 and accompanying text.
207. An early instance of this doctrine can be found in Murray v Schooner Charming Betsy, 6 US (2 Cranch) 64, 118 (1804) ("[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains."), though the canon existed before Betsy was charmingly schooning about the seas, see Mossman v Higginson, 4 US (4 Dall) 12, 14 (1800) ("[T]he judiciary act can, and must, receive a construction, consistent with the constitution."). However, the canon is far from a dusty curiosity from a bygone age. See Clark v Martinez, 543 US 371, 380-82 (2005) (articulating the canon of constitutional avoidance); Zadvydas, 533 US at 689 (same); St. Cyr, 533 US at 299-300 (same); United States v X-Citement Video, 513 US 64, 73 (1994) (same); United States v Thirty-Seven Photographs, 402 US 363, 369 (1971) (same). Despite its pedigree, the canon has its detractors. See, for example, Frederick Schauer, Ashwander Revisited, 1995 Sup Ct Rev 71, 74 (arguing that the canon leads to conclusions that a statute's drafters neither intended nor anticipated); Richard A. Posner, Statutory Interpretation - in the Classroom and in the Courtroom, 50 U Chi L Rev 800, 815-16 (1983) (remarking that the canon only enlarges a judge-made constitutional "penumbra").
208. Ashwander v Tennessee Valley Authority, 297 US 288, 347 (1936) (Brandeis concurring).
209. Edward J. DeBartolo Corp v Florida Gulf Coast Building & Construction Trades Council, 485 US 568, 575 (1988). See also Eskridge, Frickey, and Garrett, Legislation at 360-67 (cited in note 130) (detailing the canon of constitutional avoidance). Scholars have identified at least two separate strains of this canon. The first is deemed "classical avoidance," which posits that when a court is presented with two possible interpretations of an act, one constitutional and the other not, the constitutional reading should prevail. The other is deemed "modern avoidance." This is the formulation of DeBartolo.
210. See Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum L Rev 1189, 1202-04 (2006) ("The critical difference between classical and modern avoidance . . . is in the level of constitutional concern needed to trigger the rule.");
211. Adrian Vermeule, Saving Constructions, 85 Georgetown L J 1945, 1948-49 (1997) ("The basic difference between classical and modern avoidance is that the former requires the court to determine that one plausible interpretation of the statute would be unconstitutional, while the latter requires only a determination that one plausible reading might be unconstitutional."). The canon of constitutional avoidance, as discussed in this Comment, refers to the modern version. This is because it is not necessarily the case that the Cain set of courts presents an acceptable construction of AEDPA and the Page set presents an unconstitutional construction. Rather, the interpretation of the latter set of courts raises serious constitutional questions, and the former employs a questionable interpretive method. The tidiness envisioned by the classical version of the canon is simply not present here. This canon is not fully free from difficulty and can come into conflict with other interpretive methods. See id at 1946 (explicating a "severe reciprocal tension" between the canon of constitutional avoidance and the doctrine of severability). For a critique of the canon, see Schauer, 1995 Sup Ct Rev at 74 (cited in note 198) ("[T]he costs of [the canon] are greater than are commonly appreciated, and [ ] its benefits are becoming increasingly remote.").
212. Lindh v Murphy, 521 US 320, 336 (1997).
213. See, for example, St. Cyr, 533 US at 326 (finding that an immigration statute did not apply retroactively notwithstanding the statute's silence on the subject).
214. Frank v Mangum, 237 US 309, 348 (1915) (Holmes dissenting).
215. Zechariah Chafee, Jr., The Most Important Human Right in the Constitution, 32 BU L Rev 143, 143 (1952).
216. Id at 144.
217. See, for example, Triestman v United States, 124 F3d 361, 378-79 (2d Cir 1997) ("[W]e find that serious Eighth Amendment and due process questions would arise with respect to [ ] AEDPA if we were to conclude that, by amending § 2255, Congress had denied Triestman the right to collateral review in this case."). See also Note, The Avoidance of Constitutional Questions and the Preservation of Judicial Review: Federal Court Treatment of the New Habeas Provisions, 111 Harv L Rev 1578, 1579 (1998) (arguing that application of the avoidance canon to habeas cases under AEDPA is defensible, but may, ironically, limit habeas remedies in an attempt to sidestep the statutory restrictions).
218. For an example that poses the danger of potentially rootless interpretation, see Church of the Holy Trinity v United States, 143 US 457, 459 (1892) ("It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers."). Panetti's interpretation of § 2244 arguably applies this doctrine.
219. Again, Teague v Lane, 489 US 288 (1989), demands that certain types of cases automatically be made retroactive to cases on collateral review. Id at 307. See also note 143. But the Teague exceptions are manipulable and vague, and it's not out of the question that important rulings will not be made per se retroactive to cases that have completed direct review and passed into the collateral stages.