Death ineligibility and habeas corpus

Cornell Law Review

Volumn 95, Issue 2, 2010, Pages 329-389

  Kovarsky, Lee ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 77749254982     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (487)

1. See Roper v. Simmons, 543 U.S. 551 (2005) (juvenile offenders);
2. Atkins v. Virginia, 536 U.S. 304 (2002) (mentally retarded offenders).
3. One important study found that over 27% of all capital cases are dismissed on procedural grounds, without any merits consideration of claims presented therein. NANCY J. KING, FRED L. CHEESMAN II, & BRIAN J. OSTROM, FINAL TECHNICAL REPORT: HABEAS LITIGATION IN U.S. DISTRICT COURTS: AN EMPIRICAL STUDY OF HABEAS CORPUS CASES FILED BY STATE PRISONERS UNDER THE ANTITERRORISM & EFFECTIVE DEATH PENALTY ACT OF 1996 45 (2007), available at http://www.ncjrs.gov/pdffiles1/nij/grants/219559. pdf [hereinafter HABEAS TECHNICAL REPORT]. To my knowledge, no study has collected comprehensive data on death-ineligibility cases.
4. For example, the Fifth Circuit has plainly indicated that the statute of limitations in 28 U.S.C. §2244(d) applies to offenders found to be mentally retarded. See Rivera v. Quarterman, 505 F.3d 349, 354-55 (5th Cir. 2007).
5. A number of federal circuit courts allow claims brought in subsequent habeas petitions to be denied, without merits inquiry, on the procedural ground that they should have been brought in a prior petition. See, e.g., In re Hill, 437 F.3d 1080, 1083 (11th Cir. 2006) (denying on procedural grounds and without merits inquiry authorization to file a successive habeas petition containing an ineligibility claim);
6. Resendiz v. Quarterman, 454 F.3d 456, 458-59 (5th Cir. 2006) (denying as successive and without merits inquiry a claim that the prisoner was not competent to be executed);
7. Nance v. Norris, 429 F.3d 809, 811 (8th Cir. 2005) (Melloy, J., dissenting) (dissenting against the court's denial of authorization to offender who had made a prima facie showing of ineligibility) ;
8. Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004) (refusing to authorize a potentially meritorious claim of incompetence).
9. What I call "crime innocence" is usually called "actual innocence"; what I call "death ineligibility" is usually called "actual innocence of the death penalty." In the interest of clarity, I instead use the "crime innocence/death ineligibility", nomenclature.
10. See Sawyer v. Whitley, 505 U.S. 333, 336 (1992).
11. See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966) (holding, under the Fifth and Sixth Amendments, that statements made during police interrogation are admissible only if the defendant is informed of his right against self-incrimination and his right to an attorney).
12. See, e.g., Malloy v. Hogan, 378 U.S. 1 (1964) (applying Fifth Amendment privilege against self-incrimination to the states);
13. Mapp v. Ohio, 367 U.S. 643 (1961) (applying Fourth Amendment exclusionary rule to the states).
14. See, e.g., Brown v. Allen, 344 U.S. 443 (1953) (holding that claims of constitutional error are cognizable under the federal habeas statute).
15. See Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441 (1963);
16. Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV. 142 (1970). The content and influence of Bator's and Friendly's arguments are discussed infra Part I.A and Part II.C.
17. I focus primarily on four types of ineligible prisoners in this Article. See infra text accompanying notes 114-17. There are smaller categories of ineligible offenders that I do not treat comprehensively. See, e.g., Kennedy v. Louisiana, 128 S. Ct. 2641, 2659 (2008) (holding that the death penalty may not be imposed for crimes against individuals that do not result in death);
18. Coker v. Georgia, 433 U.S. 584, 592 (1977) (holding that the death penalty may not be imposed for rape of an adult woman).
19. See, e.g., Brandon L. Garrett, Chiming Innocence, 92 MINN. L. REV. 1629 (2008) (advocating increased access to evidence of innocence, including DNA evidence, during trial and postconviction appeals);
20. Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55 (2008) [hereinafter Garrett, Judging Innocence];
21. Paul C. Giannelli, Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 CORNELL L. REV. 1305 (2004) ;
22. Erin Murphy, The Art in the Science of DNA: A Layperson's Guide to the Subjectivity Inherent in Forensic DNA Typing, 58 EMORY L.J. 489 (2008);
23. J. Brent Alldredge, Note, Federal Habeas Corpus and Postconviction Claims of Actual Innocence Based on DNA Evidence, 56 SMU L. REV. 1005 (2003);
24. Matthew J. Mueller, Comment, Handling Claims of Actual Innocence: Rejecting Federal Habeas Corpus as the Best Avenue for Addressing Claims of Innocence Based on DNA Evidence, 56 CATH. U. L. REV. 227 (2006).
25. I deal only wih prisoners sentenced to death by state courts.
26. See generally Paul D. Halliday & G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 VA. L. REV. 575 (2008) (tracing the history of the writ of habeas corpus).
27. "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. CONST, art. I, §9, cl. 2.
28. Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 73, 81-82.
29. Habeas Corpus Act of 1867, ch. 28, § 1, 14 Stat. 385, 385-86.
30. 344 U.S. 443 (1953).
31. Id. at 458-59.
32. See Honorable Patrick E. Higginbotham, Reflections on Reform of § 2254 Habeas Petitions, 18 HOFSTRA L. REV. 1005, 1008 (1990);
33. Yale L. Rosenberg, Kaddish for Federal Habeas Corpus, 59 GEO. WASH. L. REV. 362, 371-72 (1991);
34. Jordan Steiker, Habeas Exceptionalism, 78 TEX. L. REV. 1703, 1716-17 (2000).
35. The leading habeas treatise describes the writ as a "civil, appellate, collateral, equitable, common law, and statutory procedure." 1 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 2.2 (5th ed. 2005) [hereinafter FHCPP].
36. See id. § 2.4(d)(viii), (ix), (xi) (respectively describing the 1948, 1966, and 1996 amendments).
37. Pub. L. No. 104-132, 110 Stat 1214 (1996) (codified as amended in scattered sections of U.S.C.).
38. This characterization obviously excludes habeas cases involving Guantánamo detainees.
39. See 28 U.S.C. § 2254 (2006) (providing for attack on conviction); id. § 2255 (providing for attack on sentence).
40. 344 U.S. 443 (1953). Even before Brown, however, when the Court would observe that federal habeas jurisdiction was limited to questions of trial-court jurisdiction, the Court suggested an unusually broad definition of that term. Jordan Steiker, Innocence and Federal Habeas, 41 UCLA L. REV. 303, 339 & n.172 (1993).
41. See sources cited supra note 9.
42. Bator, supra note 9, at 447-48. Three articles by Professor Larry W. Yackle together constitute an exhaustive survey of post-Brown habeas legislative history and discuss extensively the role that Bator's model played in that activity. See Larry W. Yackle, A Primer on the New Habeas Corpus Statute, 44 BUFF. L. REV. 381, 422-43 (1996);
43. Larry W. Yackle, The Exhaustion Doctrine in Federal Habeas Corpus: An Argument for a Return to First Principles, 44 OHIO ST. L.J. 393, 401-12 (1983);
44. Larry W. Yackle, State Convicts and Federal Courts: Reopening the Habeas Corpus Debate, 91 CORNELL L. REV. 541, 543-53 (2006).
45. Friendly, supra note 9, at 142.
46. Id. at 146 n.15.
47. Louis Michael Seidman, Factual Guilt and the Burger Court: An Examination of Continuity and Change in Criminal Procedure, 80 COLUM. L. REV. 436, 458 (1980).
48. See infra Parts I.A.1-3.
49. As I will explain in Part II, this winnowing process occurred not to eliminate the then-unrecognized ineligibility claims, but to stem the tide of purely procedural challenges.
50. See, e.g., Coleman v. Thompson, 501 U.S. 722, 729-32, 750 (1991).
51. See, e.g., Schlup v. Delo, 513 U.S. 298, 314-15 (1995).
52. HABEAS TECHNICAL REPORT, supra note 2, at 48.
53. See Steiker, supra note 25, at 323-24 (explaining that defaults have a greater effect on direct review because they implicate the Article III case-or-controversy requirement).
54. 372 U.S. 391 (1963).
55. Id. at 438.
56. 433 U.S. 72 (1977).
57. Id. at 90-91.
58. 477 U.S. 478 (1986).
59. Id. at 495-96 (emphasis added) (internal quotation marks omitted). The Court reaffirmed the viability of the crime-innocence gateway for defaulted claims in House v. Bell, 547 U.S. 518, 536-37 (2006).
60. Carrier, 477 U.S. at 496 (quoting Wainwright, 433 U.S. at 81).
61. See also Schlup v. Delo, 513 U.S. 298, 322 (1995) ("Explicitly tying the miscarriage of justice exception to innocence thus accommodates both the systemic interests in finality, comity, and conservation of judicial resources, and the overriding individual interest in doing justice in the 'extraordinary case.'" (quoting Murray, 477 U.S. at 496)).
62. 505 U.S. 333, 336 (1992).
63. 344 U.S. 443, 554-60 (1953) (Frankfurter, J., dissenting).
64. Id. at 558 (quoting United States ex rel. Kulick v. Kennedy, 157 F.2d 811, 813 (2d Cir. 1946),
65. rev'd sub nom. Sunal v. Large, 332 U.S. 174 (1947)).
66. Whether a majority of the current Court equates miscarriage of justice with actual innocence is not clear. See 2 FHCPP, supra note 20, § 26.4.
67. Brown 344 U.S. at 556-60 (Frankfurter, J., dissenting).
68. Id. at 558.
69. 157 F.2d811.
70. Pub. L. No. 76-783, 54 Stat. 885 (1940).
71. Kulick, 157 F.2d at 813.
72. Id.
73. 504 U.S. 1 (1992).
74. Id. at 12; cf. McCleskey v. Zant, 499 U.S. 467, 494-95 (1991) (analogizing to injustice standard for abusive claims);
75. Murray v. Carrier, 477 U.S. 478, 496 (1986) (analogizing to injustice standard for defaulted claims).
76. See Keeney, 504 U.S. at 7-8.
77. 28 U.S.C. § 2254(e)(2)(B) (2006).
78. See United States v. Olano, 507 U.S. 725, 736-37 (1993).
79. FED. R. CRIM. P. 52(b).
80. United States v. Young, 470 U.S. 1, 15 (1985)
81. (quoting United States v. Frady, 456 U.S. 152, 163 n.14 (1982) (internal quotation marks omitted)).
82. See also United States v. Krasn, 614 F.2d 1229, 1236 (9th Cir. 1980) (stating that plain error review is used "to prevent a miscarriage of justice"); Steiker, supra note 25, at 340-41 n.174 (collecting cases).
83. ADVISORY COMM. ON RULES OF CRIMINAL PROCEDURE, FEDERAL RULES OF CRIMINAL PROCEDURE: PRELIMINARY DRAFT 263 (1943).
84. Young, 470 U.S. at 15 (quoting Frady, 456 U.S. at 163).
85. Id. (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936) (internal quotation marks omitted)).
86. See 28 U.S.C. § 2244(b)(1) (2006) (successive claims); id. § 2244(b)(2) (abusive claims).
87. See HABEAS TECHNICAL REPORT, supra note 2, at 47.
88. See McCleskey v. Zant, 499 U.S. 467, 495 (1991) (abusive claims);
89. Kuhlmann v. Wilson, 477 U.S. 436,..454 (1986) (plurality opinion) (successive claims).
90. See Salinger v. Loisel, 265 U.S. 224, 230-31 (1924);
91. Wong Doo v. United States, 265 U.S. 239, 241 (1924).
92. See Kuhlmann, 477 U.S. at 451-54.
93. Id. at 454 (discussing successive petitions).
94. See McCleskey, 499 U.S. at 494.
95. See Sawyer v. Whitley, 505 U.S. 333, 339 (1992) (pre-AEDPA case describing application of "miscarriage of justice" exception to successive claims).
96. See 28 U.S.C. § 2244(b)(1)-(2) (2006). I discuss how the Supreme Court reads these bars forgivingly in Part III.C.2(c), infra.
97. See 28 U.S.C. § 2244(b).
98. For example, a claim may not mature until after an offender completes his first round of federal habeas litigation. See Kyle P. Reynolds, Comment, "Second or Successive" Habeas Petitions and Late-Ripening Claims After Panetti v. Quarterman, 74 U. CHI. L. REV. 1475, 1487-92 (2007) (discussing circuit courts' treatment of cases in which habeas petitioner's successive petition includes newly ripened claim).
99. See McCleskey, 499 U.S. at 494-96.
100. See 28 U.S.C. § 2244(b) (2) (B) (ii).
101. Compare McCleskey, 499 U.S. at 493-94 (describing abusive-claim prejudice prong and actual innocence gateway separately), with 28 U.S.C. § 2244(b) (2) (B) (ii) (requiring cause-and-prejudice showing for crime-innocence claim).
102. Compare Schlup v. Delo, 513 U.S. 298, 327 (1995) ("more likely than not" burden), with 28 U.S.C. § 2244(b)(2)(B)(H) ("clear and convincing" standard).
103. See 28 U.S.C. § 2244(d) (applicable to state prisoners).
104. I use the phrase "otherwise matures" because there are in fact four "trigger dates" in 28 U.S.C. § 2244(d)(1). Alternate trigger dates include the date on which an unconstitutional state impediment to filing is removed (§ 2244(d)(1)(B)), the date on which the Supreme Court declares a new constitutional right expressly made applicable to cases on collateral review (§ 2244(d)(1)(C)), and the date on which the factual predicate for the claim could be discovered with due diligence (§ 2244(d)(1)(D)).
105. See HABEAS TECHNICAL REPORT, supra note 2, at 46.
106. See 28 U.S.C. § 2244(d)(1)(D).
107. See Lee Kovarsky, AEDPA 's Wrecks: Comity, Finality, and Federalism, 82 TUL. L. REV. 443,459-68 (2007) (presenting AEDPA's legislative history).
108. Writing for the Court, Justice Souter has remarked that "in a world of silk purses and pigs' ears, [AEDPA] is not a silk purse of the art of statutory drafting." Lindh v. Murphy, 521 U.S. 320, 336 (1997).
109. See 142 CONG. REC. H3602 (daily ed. Apr. 18, 1996) (statement of Rep. Watt) ("By imposing this limitation, important new evidence, even new compelling evidence of one's innocence.....can no longer be offered, after that one bite within 1 year.");
110. 142 CONG. REC. H3614 (daily ed. Apr. 18,1996) (statement of Rep. Pelosi) ("The habeas corpus provisions in this bill .... increase die risk that innocent persons could be held in prison in violation of the constitution, or even executed.").
111. See Jake Sussman, Unlimited Innocence: Recognizing an "Actual Innocence" Exception to AEDPA's Statute of Limitations, 27 N.Y.U. REV. L. & SOC. CHANGE 343, 387-91 (2001) (arguing that AEDPA's statute of limitations violates the Constitution because it lacks an actual innocence exception).
112. See sources cited infra note 370.
113. Recall that there is in fact no statutory innocence gateway for untimely claims. See 28 U.S.C. § 2244(d).
114. More precisely speaking, a claim is "freestanding" whenever a prisoner does not prove an accompanying constitutional violation. These situations include where the offender makes no accompanying constitutional claim, where the petitioner made the claim but its merits cannot be decided because it was subject to a successful procedural defense, or where the petitioner simply lost on die merits of the constitutional claim.
115. See Herrera v. Collins, 506 U.S. 390, 419-27 (1993) (O'Connor, J., concurring). The Herrera majority opinion contained dicta suggesting that a freestanding innocence claim might not be cognizable. See id. at 401 (majority opinion) ("Few rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence.").
116. The Court passed on the freestanding innocence question again in House v. Bell, 547 U.S. 518, 554-55 (2006)
117. and in Dist. Ally's Office for the Third Jud. Dist. v. Osborne, 129 S. Ct 2308, 2322 (2009).
118. See 28 U.S.C. § 2254(a).
119. See infra text accompanying notes 94-98.
120. Part III.C.2 considers the feasibility of each of these options in the ineligibility context
121. 506 U.S. 390 (1993).
122. Id. at 396.
123. Id. at 398.
124. See id. at 405-07, 411.
125. Compare id. at 407 n.6 ("The question before us ... [is whether procedural due process] entitles petitioner to judicial review of his 'actual innocence' claim."), with id. at 420 (O'Connor, J., concurring) ("[T]he issue before us is .... whether a fairly convicted and therefore legally guilty person is constitutionally entitled to yet another judicial proceeding in which to adjudicate his guilt anew, 10 years after conviction, notwithstanding his failure to demonstrate that constitutional error infected his trial."), and id. at 427 (Scalia, J., concurring) ("We granted certiorari on the question whether it violates due process or constitutes cruel and unusual punishment for a State to execute a [fairly convicted prisoner who] later alleges that newly discovered evidence shows him to be "actually innocent"), and id. at 430-31 (Blackmun, J., dissenting) ("We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced but who, nonetheless, can prove his innocence with newly discovered evidence.").
126. Id. at 400.
127. Id. at 427 (O'Connor, J., concurring).
128. See id. at 429 (White, J., concurring) (proposing a standard that would require a petitioner to show that "no rational trier of fact could find proof of guilt beyond a reasonable doubt" (alterations, citations, and internal quotation marks omitted)); id. at 442 (Blackmun, J., dissenting) (proposing a standard that would require a petitioner to "show that he probably is innocent").
129. Id. at 446 (Blackmun, J., dissenting).
130. 547 U.S. 518, 555 (2006).
131. 129 S. Ct. 2308, 2322 (2009).
132. See In re Davis, No. 08-1443, 2009 WL 2486475, at *1 (U.S. Aug. 17, 2009). Understanding precisely what Davis will ultimately mean is at this point difficult because no federal court has actually had to rule on the merits and decide the constitutionality of the freestanding claim at issue in Davis.
133. See id. at *2 (Scalia, J. dissenting).
134. See Herrera, 506 U.S. at 400.
135. See id. at 402-03.
136. See id. at 403-04.
137. See id. at 404.
138. See sources cited supra notes 6-8.
139. Sawyer v. Whitley, 505 U.S. 333 (1992).
140. See id. at 343-44.
141. See Tison v. Arizona, 481 U.S. 137 (1987);
142. Enmund v. Florida, 458 U.S. 782 (1982).
143. See Roper v. Simmons, 543 U.S. 551 (2005).
144. See Atkins v. Virginia, 536 U.S. 304 (2002).
145. See Panetti v. Quarterman, 551 U.S. 930 (2007);
146. Ford v. Wainwright, 477 U.S. 399 (1986).
147. At the beginning of the October 2009 Term, the Supreme Court heard two noncapital ineligibility cases, both of which involved the issue of whether the Eight and Fourteenth Amendments permit juveniles to be sentenced to life without parole. See Sullivan v. Florida, 987 So.2d 83 (Fla. Dist Ct. App. 2008), cert, granted, 129 S.Ct. 2157 (U.S. May 4, 2009) (No. 08-7621);
148. Graham v. Florida, 982 So. 2d 43 (Fla. Dist. Ct. App. 2008), cert, granted, 129 S.Ct 2157 (U.S. May 4, 2009) (No. 08-7412). These cases, not decided at the time of publication, are significant because they represent the Court's most important foray into noncapital ineligibility questions, but they are beyond the scope of this article for that reason.
149. 408 U.S. 238 (1972) (plurality opinion) (per curiam).
150. See Randy Hertz & Robert Weisberg, In Mitigation of the Penalty of Death: Lockett v. Ohio and the Capital Defendant's Right to Consideration of Mitigating Circumstances, 69 CAL. L. REV. 317, 319 (1981).
151. See McCleskey v. Kemp, 481 U.S. 279, 301 (1987).
152. Gregg v. Georgia, 428 U.S. 153, 191-92 (1976).
153. See Caren Myers, Encouraging Allocution at Capital Sentencing: A Proposal for Use Immunity, 97 COLUM. L. REV. 787, 796 (1997).
154. See, e.g., Gregg, 428 U.S. at 153; Jurek v. Texas, 428 U.S. 262 (1976);
155. Proffitt v. Florida, 428 U.S. 242 (1976).
156. Sawyer v. Whitley, 505 U.S. 333 (1992).
157. Id. at 335.
158. Id. at 342 & n.9 (citing LA. CODE CRIM. PROC. ANN. art. 905.3 (1984)).
159. Id. at 337 & n.2.
160. Id. at 347-50.
161. Id. at 341.
162. Id. at 343.
163. Id. at 343-45.
164. Id. at 347.
165. Id. at 350.
166. Id. at 349-50.
167. See 28 U.S.C. §§ 2244(b)(2)(B)(ii), 2254(e)(2)(B) (2006).
168. Enmund v. Florida, 458 U.S. 782 (1982);
169. Tison v. Arizona, 481 U.S. 137 (1987).
170. Enmund, 458 U.S. at 797.
171. Tison, 481 U.S. at 158.
172. 543 U.S. 551, 568 (2005). The Supreme Court is currently considering whether the Eighth and Fourteenth Amendments also prohibit juveniles from being sentenced to life without parole. See supra note 118.
173. See Carol S. Steiker & Jordan M. Steiker, Atkins v. Virginia: Lessons from Substance and Procedure in the Constitutional Regulation of Capital Punishment, 57 DEPAUL L. REV. 721, 723 (2008) (noting that the ban on executing juvenile offenders has rendered "virtually no litigation [because] offenders who committed the crime before turning eighteen have had their sentences commuted via judicial or clemency proceedings").
174. 433 U.S. 584 (1977).
175. Id. at 592. There were five affected offenders on death row when the Court decided Coker. Id. at 596-97. Coker's case was remanded to the trial court for resentencing. See Coker v. State, 238 S.E.2d 690, 690 (Ga. 1977).
176. Two other prisoners received relief in another case the Court decided that same day, Eberheart v. Georgia, 433 U.S. 917 (1977).
177. On remand from the U.S. Supreme Court, the Georgia Supreme Court vacated the death sentences and remanded the two cases for resentencing. See Eberheart v. State, 238 S.E.2d 1, 1 (Ga. 1977);
178. Hooks v. State, 238 S.E.2d 1, 1 (Ga. 1977). The Georgia Supreme Court vacated the sentence of another offender whose case was before it on mandatory appeal during the pendency of Coker.
179. See Hughes v. State, 236 S.E.2d 829, 834 (Ga. 1977). Finally, the Georgia Supreme Court remanded for resentencing the case of a death row inmate sentenced to death for rape before Coker was decided, although I cannot precisely determine the procedural posture of that case.
180. See Boyer v. State, 240 S.E.2d 68, 68 (Ga. 1977).
181. 536 U.S. 304 (2002).
182. Id. at 321.
183. Id. at 317.
184. See generally Steiker & Steiker, supra note 141, at 731-39 (arguing that the procedural leeway given to states so that they could implement Atkins resulted in a state postconviction regime that undercuts the substantive right of mentally retarded offenders not to be executed).
185. Atkins, 536 U.S. at 308 n.3.
186. Id. at 308 n.3 (citing AM. ASS'N ON MENTAL RETARDATION, MENTAL RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORTS 5 (9th ed. 1992);
187. AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 41 (4th ed. 2000)).
188. See Peggy M. Tobolowsky, Atkins Aftermath: Identifying Mentally Retarded Offenders and Excluding Them from Execution, 30 J. LEGIS 77, 86 (2003). As of May 2008, eighty-four death sentences have been commuted under Atkins.
189. See JOHN BLUME, DEATH PENALTY INFORMATION CENTER, SENTENCE REVERSALS IN MENTAL RETARDATION CASES (2008), available at http://www.deathpenaltyinfo.org/sentence-reversals-mental-retardation-cases.
190. See, e.g., Ex parte Briseno, 135 S.W.3d 1, 8-9 (Tex. Crim. App. 2004) (using an aclinical mental-retardation test to determine eligibility for the death penalty).
191. I address the problems with state postconviction treatment of ineligibility claims more generally in Section III.A.2, infra.
192. See John H. Blume et al., An Empirical Look at Atkins v. Virginia and its Application in Capital Cases, 76 TENN. L.R. 625, 629 (2009) (describing, for example, North Carolina's restrictive definition of metal retardation, which uses a "strict IQ cutoff and assesses adaptive functioning deficits by focusing on what the claimant can do rather than focusing ... on the individual's limitations").
193. In Ex parte Perkins, 851 So. 2d 453 (Ala. 2002), Alabama denied relief under a non-statutory definition of retardation, emphasizing that the petitioner did not have adaptive deficits because he was married and employed. Id. at 456.
194. In Smith v. State, No. CR-92-1258, 2009 Ala. Crim. App. LEXIS 2, at *1 (Ala. Crim. App. Jan. 16, 2009), the court emphasized that the petitioner did not have adaptive deficits because he could function well in society, maintain a bank account, and perform other activities. Id. at *10.
195. In Clemons v. State, No. CR-01-1355, 2005 Ala. Crim. App. LEXIS 128, at *1 (Ala. Crim. App. June 24, 2005), the court denied the existence of adaptive limitations on the basis of only the petitioner's "employment history, the ability to have interpersonal relationships, being extensively involved in criminal activity, post-crime craftiness on the part of the criminal, and being able to use community resources." Id. at *15.
196. In Brown v. State, 959 So. 2d 146 (Fla. 2007), the Supreme Court of Florida upheld a state trial-court ruling because the state court found that the defendant demonstrated the ability to engage in a romantic relationship, drive a car, and obtain employment. Id. at 149-50. The appellate court heavily deferred to the trial court's resolution of the conflicting evidence and its ultimate conclusion against the defendant. Id. at 150.
197. In Wiley v. State, 890 So. 2d 892 (Miss. 2004), the Supreme Court of Mississippi upheld the lower court's determination that the petitioner did not have adaptive deficits because the prisoner operated heavy machinery, was employed, was admitted to radio operator school, legally drove a car, and provided for his family. See id. at 896-97.
198. Death Penalty Information Center, Facts about the Death Penalty, at 3, http://www.deauipenaltyinfo.org/documents/FactSheet.pdf (last visited Oct. 8, 2009).
199. See Moore v. Dretke, No. Civ.A.603-CV-224, 2005 WL 1606437, at *3 n.2 (E.D. Tex. July 1, 2005),
200. vacated sub nom. Moore v. Quarterman, No. 05-70038, 2006 WL 1776605 (5th Cir. June 29, 2006).
201. Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004).
202. Id. at 8-9.
203. In one Texas case, a petitioner was denied state collateral relief in part because, the court reasoned, the petitioner "functioned sufficiently in his younger years to hold jobs, get a driver's license, marry and have a child." Wilson v. Quarterman, No. 6:06-cv-140, 2009 WL 900807, at *9 (E.D. Tex. Mar. 31, 2009).
204. See Steiker & Steiker, supra note 141, at 728 & n.44 (citation omitted).
205. it is useful to understand the difference between mental retardation claims adjudicated in state trial proceedings and those adjudicated on state postconviction review. A state prisoner must exhaust state remedies before filing a § 2254 petition. See 28 U.S.C. § 2254(c) (2006). I explore the vagaries of state trial adjudication in Part III.A.1, infra, but the problems I discuss in this paragraph happen to pertain primarily to Atkins claims decided on state postconviction review.
206. See Celestine Richards McConville, The Meaninglessness of Delayed Appointments and Discretionary Grants of Capital Postconviction Counsel, 42 TULSA L. REV. 253, 256 & n.31 (2006) (citing Supreme Court cases denying such right).
207. See, e.g., Michael L. Perlin, "The Executioner's Face is Always Well-Hidden": The Role of Counsel and the Courts in Determining Who Dies, 41 N.Y.L. SCH. L. REV. 201, 203 (1996) (enumerating the responsibilities of lawyers in death penalty cases).
208. See 28 U.S.C. § 2244(d)(2).
209. Federal courts will sometimes impose a procedural default bar on unexhausted claims where it is apparent that there will be a procedural defect with the subsequent state filing that cannot be cured. See Hatten v. Quarterman, 570 F.3d 595, 605 (5th Cir. 2009).
210. See Steiker & Steiker, supra note 141, at 724-31.
211. See In re Wilson, 442 F.3d 872, 875 (5th Cir. 2006).
212. See id. at 875-76.
213. The Texas Court of Criminal Appeals abolished the dual-forum rule for precisely this reason in 2004, see Ex parte Soffar, 143 S.W.3d 804 (Tex. Crim. App. 2004), but that did not help offenders who sat on their Atkins claims before that time. The Fifth Circuit has invoked equitable tolling to alleviate the two-forum problem, but it has only done so for those petitioners who lost their entire limitations period. Compare Wilson, 442 F.3d at 874-78 (equitably tolling the limitations period because petitioner's initial federal habeas petition was still pending when the AEDPA limitations period expired), with In re Lewis, 484 F.3d 793, 797-98 (5th Cir. 2007) (refusing to equitably toll the limitations period because petitioner's initial federal habeas petition had been resolved three months before the AEDPA limitations period expired).
214. See, e.g., Lewis, 484 F.3d at 797-98;
215. See infra Part III.
216. 477 U.S. 399 (1986).
217. See id. at 409-10.
218. Id. at 422 (Powell, J., concurring in part and concurring in the judgment). See Panetti v. Quarterman, 551 U.S. 930, 949 (2007) (noting that Justice Powell's concurrence is controlling).
219. See Ford, 477 U.S. at 403.
220. See id. at 416.
221. Id. at 417-18.
222. 551 U.S. 930 (2007).
223. Id. at 954-60.
224. Id.
225. Panetti v. Dretke, 401 F. Supp. 2d 702, 708 (W.D. Tex. 2004).
226. Panetti, 551 U.S. at 959-60.
227. Id. at 949.
228. See id. at 950-52; see also infra notes 259-65 and accompanying text.
229. Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998).
230. See, e.g., Singleton v. Norris, 319 F.3d 1018, 1025-27 (8th Cir. 2003) (en banc).
231. See supra Part I.A.
232. This statement is subject to the caveat that ineligibility claims that receive a full and fair trial and direct appellate adjudication implicate different interests than do ineligibility claims that do not receive such treatment.
233. See Friendly, supra note 9, at 154.
234. See id. at 146.
235. See id. at 146-48. Concerns about sandbagging are expressed throughout the Supreme Court's habeas procedure cases.
236. See, e.g., McCleskey v. Zant, 499 U.S. 467, 491-92 (1991) ("[H]abeas corpus review may give litigants incentives to withhold claims for manipulative purposes and may establish disincentives to present claims when evidence is fresh." (citations omitted));
237. Reed v. Ross, 468 U.S. 1, 14 (1984) ("[D]efense counsel may not make a tactical decision to forgo a [claim] . . . and then, when he discovers that the tactic has been unsuccessful, pursue an alternative strategy in federal court"). The concern arises in several contexts. First, sandbagging may be advantageous when the constitutional claim does not affect the likelihood of acquittal because it does not influence the jury's fact-finding.
238. Daniel J. Meltzer, State Court Forfeitures of Federal Rights, 99 HARV. L. REV. 1128, 1196 (1986). A challenge to the composition of the grand jury is such a case. Id. Second, sandbagging may be an attractive option when, should the initial conviction be overturned based on the withheld claim, the state's case in the subsequent trial will be weaker (for example, due to the unavailability of certain testimony). Id. at 1196-97. And lastly, when a federal court may be more favorable to the claim, the defense may prefer to bypass the state court's fact-finding and present an issue directly to the habeas court. Id. at 1197. Professor Meltzer, however, concludes that the likelihood of sandbagging is actually quite small. See id. at 1199. The pervasiveness of sandbagging is hotly disputed, even on the Court.
239. Compare Wainwright v. Sykes, 433 U.S. 72, 89 (1977) (noting that defense counsel may deliberately withhold, or sandbag, constitutional claims in a state trial court in order to later raise the claim in federal habeas court if defense counsel's client is not acquitted in state trial court), with id. at 103 (Brennan. J., dissenting) ("Under the [current] regime of collateral review ... no rational lawyer would risk the 'sandbagging' feared by the Court"). Some judges have argued that there is no empirical evidence that it occurs.
240. See Williams v. Lockhart, 862 F.2d 155, 161 (8th Cir. 1988) (Lay, C.J., concurring) ("To suggest that prisoners might hold back to play procedural games with the court is unrealistic"). Most habeas petitioners proceed pro se, and sandbagging is not a good strategy for such litigants.
241. Bryan A. Stevenson, Confronting Mass Imprisonment and Restoring Fairness to Collateral Review of Criminal Cases, 41 HARV. C.R.-C.L. L. REV. 339, 351 (2006).
242. Friendly, supra note 9, at 147.
243. Id. at 148-49. The interest in judicial efficiency is oft-cited in habeas procedural jurisprudence. See, e.g., McCleskey, 499 U.S. at 490-91 (noting that the doctrines controlling defaulted and abusive claims "flow[ ] from the significant costs of federal habeas corpus review"); Schneckloth v. Bustamonte, 412 U.S. 218, 260 (1973) (Powell, J., concurring) (noting, with respect to a Fourth Amendment claim raised collaterally, that the re-examination of claims on collateral attack jeopardizes the fair distribution of judicial resources).
244. See Friendly, supra note 9, at 149. The Supreme Court has invoked the finality interest in this context many times. See, e.g., Herrera v. Collins, 506 U.S. 390, 403 (1993) (freestanding innocence claims); McCleskey, 499 U.S. at 490-91 (abusive and defaulted claims);
245. Murray v. Carrier, 477 U.S. 478, 491 (1986) (procedurally defaulted claims);
246. Engle v. Isaac, 456 U.S. 107, 126-27 (1982) (defaulted claims).
247. See McCleskey, 499 U.S. at 490-91 ("The doctrines of procedural default and abuse of the writ implicate nearly identical concerns flowing from the significant costs of federal habeas corpus review.").
248. There are actually two ways to frame the argument that Judge Friendly would not have found death-ineligibility claims objectionable, had they been
249. Bator, supra note 9, at 446.
250. Id. at 449.
251. Id. at 452-53.
252. Id. at 456-57.
253. See Herrera v. Collins, 506 U.S. 390, 404-05 (1993).
254. See supra notes 6-9 and accompanying text.
255. Professor Anthony Amsterdam also published a very influential article that parsed the interest in finality expressed by Bator. See Anthony G. Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U. PA. L. REV. 378, 383-86 (1964).
256. See Friendly, supra note 9, at 155. Judge Friendly's article is actually most concerned with collateral attacks in a "unitary" system - i.e., collateral attacks on conviction by federal prisoners. Judge Friendly nonetheless cross-applies these concerns to collateral attacks by state prisoners in Part V of his article. See id. at 164-69.
257. See Bator, supra note 9, at 448.
258. Friendly, supra note 9, at 148; see also Amsterdam, supra note 205, at 383 (specifying as a concern a "duplication of judicial effort").
259. Friendly, supra note 9, at 148.
260. Bator, supra note 9, at 451.
261. See Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998).
262. See Bator, supra note 9, at 451; Friendly, supra note 9, at 146. Indeed, Judge Friendly expressed disbelief at the notion, only possible in a unitary system, that a judge might hold his own ruling unconstitutional. See Friendly, supra note 9, at 155.
263. See HABEAS TECHNICAL REPORT, supra note 2, at 59 (study concluding that overall disposition time per case has increased since AEDPA's enactment); Steiker, supra note 25, at 316-17 ("[T]oday's procedural default inquiry[ ] occupies more pages of the U.S. Reports than the Court's consideration of petitioners' underlying substantive claims.").
264. See Friendly, supra note 9, at 146 (quoting Bator, supra note 9, at 452); see also Amsterdam, supra note 205, at 383 (specifying as a concern the "delay in setting the criminal proceeding at rest").
265. See Jack B. Weinstein, The Role of Judges in a Government of, by, and for the People: Notes for the Fifty-eighth Cardozo Lecture, 30 CARDOZO L. REV. 1, 187-88 (2008) (collecting sources).
266. The compromise with rehabilitation that death-ineligibility litigation necessitates is also lower because the adjudication does not suspend an acknowledgement of responsibility - it implies nothing about the accuracy of the finding that the offender is a capital murderer.
267. Moreover, available data suggests that Atkins has not opened any floodgates of frivolous litigation. See Blume et al., supra note 153, at 628.
268. See infra Part III.A.
269. See Friendly, supra note 9, at 147; see also Amsterdam, supra note 205, at 384 (subdividing evidentiary reliability question into question involving constitutional claim and question involving underlying guilt adjudication).
270. See Friendly, supra note 9, at 147; see also Illinois v. Allen, 397 U.S. 337, 351 (1970) (Douglas, J., concurring) ("[While] lapse of time is not necessarily a barrier to a challenge of the constitutionality of a criminal conviction[,] .... in this case it should be.").
271. Note, however, that habeas review of Tison/Enmund challenges are subject to the evidentiary decay characterizing paradigm ineligibility claims. See supra Part II.B.1.
272. See supra note 149 and accompanying text.
273. See Richard J. Bonnie & Katherine Gustafson, The Challenge of Implementing Atkins v. Virginia: How Legislatures and Courts Can Promote Accurate Assessments and Adjudications of Mental Retardation in Death Penalty Cases, 41 U. RICH. L. REV. 811, 854-55 (2007) ("[T]he developmental onset requirement though diagnostically essential, does very little work in the ordinary Atkins adjudication.").
274. Psychiatric professionals who administer IQ and behavioral testing can test for malingering so that they can spot instances where offenders are "faking it" See id.
275. See Friendly, supra note 9, at 157-59.
276. The sandbagging rationale recurs, for example, throughout the procedural-default jurisprudence. See supra note 193; see also Murray v. Carrier, 477 U.S. 478, 492 (1986) (noting that the danger of sandbagging does not "vanish[ ] once a trial has ended in conviction, since appellate counsel might well conclude that the best strategy is to select a few promising claims for airing on appeal, while reserving others for federal habeas review should the appeal be unsuccessful");
277. Engle v. Isaac, 456 U.S. 107, 128-29 & n.34 (1982) (recognizing that sometimes "defendant's counsel may deliberately choose to withhold a claim in order to 'sandbag' ").
278. See Meltzer, supra note 193, at 1199; Stevenson, supra note 193, at 351 & n.49.
279. See Helen Gredd, Comment, Washington v. Strickland: Defining Effective Assistance of Counsel at Capital Sentencing, 83 COLUM. L. REV. 1544, 1577-78 (1983).
280. Herrera v. Collins, 506 U.S. 390, 406 (1993).
281. See Graham Hughes, Sandbagging Constitutional Rights: Federal Habeas Corpus and the Procedural Default Principle, 16 N.Y.U. REV. L. & SOC. CHANGE 321, 336-37 (1987-1988) (arguing that lawyers will always try to maximize their chances of prevailing at the first stage of litigation);
282. Judith Resnik, Tiers, 57 S. CAL. L. REV. 837, 897 (1984) ("Given that the success rate at trial and on appeal, while low, is greater than the success rate on habeas corpus, the odds are against being able to 'sandbag' in a first procedure and emerge victorious in a second." (footnotes omitted)).
283. Friendly, supra note 9, at 147.
284. A Brady violation is a type of due process violation that occurs where the prosecution suppresses evidence, material to guilt or sentencing, that is favorable to the accused. Brady v. Maryland, 373 U.S. 83, 87 (1963).
285. Friendly, supra note 9, at 146 (citing Bator, supra, note 9, at 452).
286. Id. at 155-56.
287. See Amsterdam, supra note 205, at 389 ("As the exclusionary rule is applied time after time, it seems that its deterrent efficacy at some stage reaches a point of diminishing returns, and beyond that point its continued application is a public nuisance."); Bator, supra note 9, at 452 ("[The deterrent power of criminal sanctions is] undermined [when] we so define the processes leading to just punishment that it can really never be finally imposed at all.").
288. See, e.g., John J. Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 STAN. L. REV. 791, 841 (2005) (concluding that whereas the deterrent effect of the death penalty remains uncertain, capital punishment does not significantly influence homicide rates). In the recent Supreme Court case involving the constitutionality of lethal injection, Justice Stevens compiled significant authority on both sides of this question.
289. See Baze v. Rees, 128 S. Ct. 1520, 1547 n.13 (2008) (Stevens, J., concurring).
290. I want to flag another interest that the Bator/Friendly critiques invoke but that I do not discuss here: comity, a federalism interest in deference to state criminal process. Some emphasize that a guilt determination is the central purpose of state criminal adjudication, and that allowing federal courts to revisit that question therefore slights state judiciaries. See 1 FHCPP, supra note 20, § 2.5; 2 id. § 28.4. Others frame the issue in terms of the superior expertise of state courts in defining state offenses, as well as in applying rules of evidence and procedure. See Vivian Berger, Herrera v. Collins: The Gateway of Innocence for Death-Sentenced Prisoners Leads Nowhere, 35 WM. & MARY L. REV. 943, 1010 (1994). Ineligibility challenges implicate state criminal adjudication, but not to the extent that pure procedural or crime-innocence claims do. They do not necessarily implicate state procedure, and they do not go to the guilt question that is considered the paramount responsibility of state adjudication.
291. Herrera v. Collins, 506 U.S. 390, 428 (1993) (Scalia, J., concurring).
292. See, e.g., Rivera v. Quarterman, 505 F.3d 349, 354-55 (5th Cir. 2007) (Atkins claim).
293. See Herrera, 506 U.S. at 411-13 (discussing clemency as an avenue of review); id. at 428 (Scalia, J., concurring).
294. A paradigm ineligibility claim will by definition be disputed at the sentencing phase (it takes the form of a defense to statutory aggravators). Ordinarily, a mental-retardation claim will be determined before trial, although in some jurisdictions an offender may raise the issue during sentencing. See Tobolowsky, supra note 150, at 112. The determination is sequenced this way to prevent evidence introduced at trial from prejudicing the jury's assessment of mental retardation. See id. at 113. The burden of persuasion and standard of proof vary from jurisdiction to jurisdiction. See id. at 118-19.
295. See Sawyer v. Whitley, 505 U.S. 333 (1992).
296. See Part II.B.3, supra.
297. See Steiker & Steiker, supra note 141, at 728-29; Franklin E. Zimring, The Unexamined Death Penalty: Capital Punishment and Reform of the Model Penal Code, 105 COLUM. L. REV. 1396, 1409 (2005). Those rulings are nonetheless left undisturbed because, under the federal habeas statute, decisions need only be "reasonable" determinations of fact and interpretations of law to withstand federal habeas scrutiny. See 28 U.S.C. § 2254(d) (2006).
298. See Stephen F. Smith, The Supreme Court and the Politics of Death, 94 VA. L. REV. 283, 293-336 (2008) (discussing the institutional pressures on state officials responsible for implementing the death penalty).
299. See id. at 328-31.
300. See Tobolowsky, supra note 150, at 109-10.
301. Paul Brace & Brent D. Boyea, Judicial Selection Methods and Capital Punishment in the American States, in RUNNING FOR JUDGE: THE RISING POLITICAL, FINANCIAL, AND LEGAL STAKES OF JUDICIAL ELECTIONS 186, 199 (Matthew J. Streb ed., 2007).
302. See 28 U.S.C. § 2244(d); id. § 2254(b).
303. See Steiker & Steiker, supra note 141, at 728-29.
304. See supra note 164 and accompanying text.
305. See 1 FHCPP, supra note 20, § 5.2b(ii).
306. See infra notes 256-58 and accompanying text.
307. See 1 FHCPP, supra note 20, § 3.5; Stephen B. Bright, Elected Judges and the Death Penalty in Texas: Why Full Habeas Corpus Review by Independent Federal Judges is Indispensable to Protecting Constitutional Rights, 78 TEX. L. REV. 1805, 1808-09 (2000) (finding that elected judges must decide between losing reelection and conducting fair postconviction review).
308. See generally Stephen B. Bright, Political Attacks on the Judiciary: Can Justice Be Done Amid Efforts to Intimidate and Remove Judges from Office for Unpopular Decisions?, 72 N.Y.U. L. REV. 308 (1997) (describing two political campaigns to remove state supreme court judges from office because of their unpopular decisions in death-penalty cases).
309. See Brace & Boyea, supra note 248; see also Harris v. Alabama, 513 U.S. 504, 519-20 (1995) (Stevens, J., dissenting);
310. John Blume & Theodore Eisenberg, Judicial Politics, Death Penalty Appeals, and Case Selection: An Empirical Study, 72 S. CAL. L. REV. 465, 488 (1999) (finding that "partisan election of judges correlates with death penalty affirmance" in some states);
311. Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759, 776-79, 784 (1995) (noting that "campaigning for the death penalty and against judges who overturn capital cases [is] an effective tactic" for judges running for office).
312. Atkins v. Virginia, 536 U.S. 304 (2002).
313. See supra notes 242-48 and accompanying text.
314. See Steiker & Steiker, supra note 141, at 727-28 (identifying Alabama and Texas as two jurisdictions that have sought to highlight gruesome facts of an offender's crime during the inquiry into the offender's mental retardation).
315. Panetti v. Quarterman, 551 U.S. 930 (2007).
316. Id. at 950.
317. Id.
318. Id.
319. Id.
320. Id. at 951.
321. Id. at 962.
322. See Herrera v. Collins, 506 U.S. 390, 411-16 (1993).
323. See Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 TEX. L. REV. 569, 577 (1991).
324. See Michael Heise, Mercy by the Numbers: An Empirical Analysis of Clemency and Its Structure, 89 VA. L. REV. 239, 255 (2003). In a subset of the states where authority is shared, the board is the dominant decision maker. Id. at 256.
325. Berger, supra note 237, at 967.
326. Id. at 967 (citing Louis D. Bilionis, Legitimating Death, 91 MICH L. REV. 1643, 1699-1700 (1993)).
327. Id.; see Austin Sarat and Nasser Hussain, On Lawful Lawlessness: George Ryan, Executive Clemency, and the Rhetoric of Sparing Life, 56 STAN. L. REV. 1307, 1326 (2004).
328. See Heise, supra note 268, at 252; Sarat & Hussain, supra note 271.
329. See Heise, supra note 268, at 250; Elizabeth Rapaport, Straight Is the Gate: Capital Clemency in the United States from Gregg to Atkins, 33 N.M. L. REV. 349, 353-55 (2003).
330. See Richard A. Rosen, Innocence and Death, 82 N.C. L. Rev. 61, 87-88 (2003).
331. Id. at 88.
332. Id.; see Heise, supra note 268, at 291.
333. Rosen, supra note 274, at 88; see Rapaport, supra note 273, at 369.
334. See Rapaport, supra note 273, at 365 (citations omitted).
335. See Herrera v. Collins, 506 U.S. 390, 407-08 (1993).
336. See id. at 404-05.
337. Id.; see supra Part I.B; see also David R. Dow et al., Is It Constitutional to Execute Someone Who Is Innocent (and If It Isn't, How Can It Be Stopped Following House v. Bell)?, 42 TULSA L. REV. 277, 277 (2006) ("We begin with a question that might seem ridiculous: does the Constitution prohibit the execution of someone who is actually innocent? Remarkably, this question remains open.");
338. Todd E. Pettys, Killing Roger Coleman: Habeas, Finality, and the Innocence Gap, 48 WM. & MARY L. REV. 2313, 2358 (2007) ("When a district court is convinced that a state prisoner is innocent but that the prisoner's trial and sentencing proceedings were constitutionally unobjectionable, ... it is not at all clear that the Supreme Court would permit the district court to award the habeas remedy on the strength of the prisoner's innocence alone.").
339. This point actually has different implications for claims that seek relitigation of a trial finding that an offender is death eligible. One might describe a freestanding ineligibility petition stating such a claim as an attempt to "constitutionalize" a new trial motion for the sentencing phase of capital proceedings. See infra Part III.B.2.
340. See Garrett, Judging Innocence, supra note 11, at 99 tb1.6, 112.
341. See Nicholas Berg, Turning a Blind Eye to Innocence: The Legacy of Herrera v. Collins, 42 AM. CRIM. L. REV. 121, 133-36 (2005) (pointing out that in ninety-one cases, federal courts refused to recognize a bare claim of innocence; in thirty-three cases, federal courts assumed that a bare innocence claim existed arguendo and held that petitioner did not meet the requisite showing; and in fifty-four cases, federal courts recognized the bare innocence claim but held that petitioner failed to meet the required standard).
342. Id. The Ninth Circuit recognizes freestanding innocence. See Osborne v. Dist. Att'y's Office for the Third Jud. Dist., 521 F.3d 1118, 1130-31 (9th Cir. 2008);
343. Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997). Of the remaining courts of appeal, all but the Second and the D.C. Circuits concluded, with varying caveats (usually involving capital prisoners), that such claims are not generally cognizable.
344. See Foster v. Quarterman, 466 F.3d 359, 367 (5th Cir. 2006);
345. Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004);
346. Johnson v. Bett, 349 F.3d 1030, 1038 (7th Cir. 2003);
347. Rouse v. Lee, 339 F.3d 238, 255 (4th Cir. 2003) (en banc);
348. Zuern v. Tate, 336 F.3d 478, 482 n.1 (6th Cir. 2003);
349. David v. Hall, 318 F.3d 343, 347-48 (1st Cir. 2003);
350. Brownlee v. Haley, 306 F.3d 1043, 1065 (11th Cir. 2002);
351. Burton v. Dormire, 295 F.3d 839, 848 (8th Cir. 2002);
352. LaFevers v. Gibson, 238 F.3d 1263, 1265 n.4 (10th Cir. 2001).
353. Transcript of Oral Argument at 37, Herrera v. Collins, 506 U.S. 390 (1993) (No. 91-7328), available at http://www.oyez.org/cases/1990-1999/ 1992/1992-91-7328/argument/(last visited Nov. 11, 2009).
354. Id.
355. See Herrera v. Collins, 506 U.S. 390, 427 (1993) (O'Connor, J., concurring).
356. See Joseph L. Hoffmann, Is Innocence Sufficient? An Essay on the U.S. Supreme Court's Continuing Problems with Federal Habeas Corpus and the Death Penalty, 68 IND. L.J. 817, 819 (1993) ("Herrera tests the bounds of the Court's determination to stick with a process-oriented approach to the Eighth Amendment").
357. In a separate opinion in Wright v. West, 505 U.S. 277 (1992), Justice O'Connor rejected Bator's "full and fair" interpretation of pre-Brown habeas jurisprudence. See id. at 298-301 (O'Connor, J., concurring).
358. Herrera, 506 U.S. at 427-28 (Scalia, J., concurring).
359. See, e.g., Rosen, supra note 274, at 108 (stating Eighth Amendment argument).
360. See, e.g., Herrera, 506 U.S. at 407 n.6 ("This issue is properly analyzed only in terms of procedural due process."); id. at 435 (Blackmun, J., dissenting) ("The majority's discussion misinterprets petitioner's Fourteenth Amendment claim as raising a procedural, ramer than a substantive, due process challenge." (footnote omitted)); Berger, supra note 237, at 949-50 (arguing that the Constitution mandates state procedures for actual innocence claims); Rosen, supra note 274, at 108-09 (stating substantive due process argument). The In re Davis concurrence does not specify which constitutional provisions would be violated if an innocent offender were executed. See In re Davis, No. 08-1443, 2009 WL 2486475, at *1 (U.S. Aug. 17, 2009). I do not discuss the Suspension Clause issue at this time because it is relevant primarily to the remedial question, not to whether crime-innocence challenges state a constitutional claim.
361. See Herrera, 506 U.S. at 431, 432 & n.2 (Blackmun, J., dissenting).
362. Id. at 431.
363. See id. at 435-36.
364. Id. at 436 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 848 (1992)
365. (quoting Poe v. Ullman, 367 U.S. 497, 543 (1961))).
366. Id. (quoting United States v. Salerno, 481 U.S. 739, 746 (1987)
367. (quoting Rochin v. California, 342 U.S. 165, 172 (1952)));
368. see County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). The prisoner in Osborne made this argument with respect to his postconviction access-to-DNA-evidence claim. See Brief for the Respondent at 42-44, Dist. Att'y's Office for the Third Jud. Dist v. Osborne, 129 S. Ct. 2308 (2009) (No. 08-6).
369. See Berger, supra note 237, at 1021-22; Larry May & Nancy Viner, Actual Innocence and Manifest Injustice, 49 ST. LOUIS U. L.J. 481, 490-91 (2005). In Osborne, the prisoner argued that procedural due process requires postconviction disclosure of potentially exculpatory DNA evidence. See Brief for the Respondent, supra note 297, at 39-41.
370. See Herrera, 506 U.S. at 407 n.6.
371. See id. at 407-17.
372. In Osborne, the District Attorney's Office contended that freestanding innocence was not a Fourteenth Amendment claim. See Brief for Petitioners at 19 n.8, 40-49, Dist. Att'y's Office for the Third Jud. Dist v. Osborne, 129 S. Ct. 2308 (2009) (No. 08-6). The District Attorney's Office treated the Fourteenth Amendment challenge primarily as a procedural due process question. See id. at 44-50.
373. See Herrera, 506 U.S. at 406 ("Because Ford's claim went to a matter of punishment - not guilt - it was properly examined within the purview of the Eighth Amendment.").
374. See id. at 433 (Blackmun, J., dissenting) ("Both [Johnson v. Mississippi, 486 U.S. 578 (1988)]
375. and [Ford v. Wainwright, 477 U.S. 399 (1986)] recognize that capital defendants may be entided to further proceedings because of an intervening development even though they have been validly convicted and sentenced to death.").
376. See supra Part II.B.2 and Part II.B.3.
377. See supra Part II.B.4.
378. See supra text accompanying note 279.
379. See Steiker & Steiker, supra note 141, at 724-28 (describing the lack of procedural safeguards governing the determination of mental retardation in state courts, and arguing that they undermine the substantive Eighth Amendment right of Atkins claimants).
380. Also worth mentioning is the fact that recognizing the cognizability of a crime-innocence claim in a capital case would probably suggest the cognizability of crime-innocence claims in noncapital cases. There is no such "slippery slope" in the ineligibility context because an ineligibility claim requires a prior determination that a category of offenders is exempt from execution under the Eighth Amendment.
381. See supra Part I.A.
382. That is, the Court is not likely to declare that restrictions on the writ's availability for meritorious death-ineligibility claims are unconstitutional.
383. See supra Part I.A.
384. Others have not called this "avoidance" but have noted that the Court has consistently sidelined statutory restrictions on its jurisdiction by invoking its equitable authority over the writ. See Steiker, supra note 25, at 309 (noting that the Court has used "court-identified equitable principles .... [to] ignore[ ] statutory language in determining the availability of a habeas forum."). The Court has held more generally that it must "construe a federal statute to avoid constitutional questions where such a construction is reasonably possible." Arnett v. Kennedy, 416 U.S. 134, 162 (1974) (citations omitted).
385. See Panetti v. Quarterman, 551 U.S. 930, 943-45 (2007) (rejecting a reading of AEDPA that would categorically bar successive petitions in favor of an interpretation favored by pre-statutory case law). In its October 2009 term, the Court has granted certiorari on another case that calls for it to adopt a restrictive understanding of what constitutes a "successive" petition in order to avoid executing a potentially death ineligible offender.
386. See Magwood v. Culliver, 555 F.3d 968 (11th Cir. 2009), cert. granted, 78 U.S.L.W. 3083 (Nov. 16, 2009) (No. 09-158).
387. See Murray v. Carrier, 477 U.S. 478, 496 (1986) (recognizing the Court's "'historic willingness to overturn or modify its earlier views of the scope of the writ, even where the statutory language authorizing judicial action has remained unchanged'"
388. (quoting Wainwright v. Sykes, 433 U.S. 72, 81 (1977))); Steiker, supra note 25, at 342.
389. See, e.g., House v. Bell, 547 U.S. 518, 536 (2006) (emphasizing that the Court-created injustice exceptions for procedurally defaulted claims control the habeas-relief inquiry).
390. See supra Part I.A.I.
391. See Carrier, 477 U.S. at 495-96 (internal quotation marks omitted).
392. See id.
393. See Sawyer v. Whitley, 505 U.S. 333, 347-50 (1992); supra Part II.A.
394. 477 U.S. at 495-96.
395. See 505 U.S. at 347-50.
396. See supra note 314 and accompanying text.
397. See, e.g., 28 U.S.C. § 2244(b) (2006) (restricting successive and abusive petitions); id. § 2254(e) (2) (restricting evidentiary hearings).
398. See infra Part III.C.2(a).
399. See infra Part III.C.2(c).
400. Procedural default is an equally important restriction but is not statutory; Although 28 U.S.C. § 2254(d) is argued in virtually every habeas case it is generally considered a substantive limit on relief.
401. The Eighth and Fourteenth Amendment arguments usually appear in "as-applied" challenges, not facial challenges.
402. U.S. CONST. art I, § 9, cl. 2.
403. See 1 FHCPP, supra note 20, § 7.2d & n.67 (collecting cases demonstrating the difficulty of determining the scope of the writ); Gerald L. Neuman, The Habeas Corpus Suspension Clause After INS v. St Cyr, 33 COLUM. HUM. RTS. L. REV. 555, 555-62 (2002).
404. See Ex parte Bollman, 8 U.S. (4 Cranch) 75, 94-95 (1807) ("[T]he power to award the writ by any of the courts of the United States, must be given by written law . . . . [without which vesting] the privilege itself would be lost, although no law for its suspension should be enacted.").
405. See Jordan Steiker, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners?, 92 MICH. L. REV. 862, 864-65 (1994) (acknowledging that the Clause's phrasing "raises doubts about whether the Clause affords prisoners even a qualified entitlement to habeas");
406. see also Eric M. Freedman, The Suspension Clause in the Ratification Debates, 44 BUFF. L. REV. 451, 451-52 (1996) (arguing that original intent could be invoked in favor of four different interpretations of the Suspension Clause). But see Steiker, supra, at 888-913 (arguing that the Fourteenth Amendment incorporated the Suspension Clause in favor of state prisoners seeking a federal forum to redress violations of federal law).
407. INS v. St. Cyr, 533 U.S. 289, 314 n.38 (2001) ("'[T]he substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention' does not violate the Suspension Clause." (alteration in original)
408. (quoting Swain v. Pressley, 430 U.S. 372, 381 (1977))).
409. 518 U.S. 651 (1996).
410. Id. at 663-65.
411. See, e.g., Crater v. Galaza, 491 F.3d 1119, 1125 (9th Cir. 2007);
412. Wyzykowski v. Dep't of Corrs., 226 F.3d 1213, 1217 (11th Cir. 2000);
413. Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 113 (2d Cir. 2000);
414. Miller v. Marr, 141 F.3d 976, 977-78 (10th Cir. 1998).
415. Felker, 518 U.S. at 664-65; 1 FHCPP, supra note 20, § 7.2d.
416. Cf. Herrera v. Collins, 506 U.S. 390, 398-406 (1993) (concluding that the Eighth Amendment does not clearly require habeas-relief issue to allow consideration of new crime-innocence claims).
417. See David Grann, Trial By Fire: Did Texas Execute an Innocent Man?, NEW YORKER, Sept. 7, 2009, http://www.newyorker.com/ reporting/2009/09/07/090907fa-fact-grann?printable=true.
418. Herrera, 506 U.S. at 407 n.6.
419. See Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1509 n.329 (1987).
420. See, e.g., Johnson v. Avery, 393 U.S. 483, 487 (1969) (prison rules forbidding prisoners to seek assistance from other prisoners in writing habeas writs);
421. Smith v. Bennett, 365 U.S. 708, 713 (1961) (financial hurdles for indigent offenders); Ex parte Hull, 312 U.S. 546, 548-49 (1941) (excessive prison preapproval conditions for federal habeas filing);
422. see also Davis v. Adult Parole Auth., 610 F.2d 410, 414 (6th Cir. 1979) (holding that a "rule which would permit a court to dismiss an action for habeas relief without any consideration of the equities presented . . . constitutes a prohibited suspension of the writ").
423. Professors Hertz and Liebman suggest that the writ may be suspended where complicated federal claims become defective due to a failure of a prisoner to timely navigate the state postconviction process without sufficient assistance from counsel. 1 FHCPP, supra note 20, § 7.2d. That is precisely the scenario that many Atkins claimants encounter. See supra Parts II.B.3 and III.A.2.
424. See In re Page, 179 F.3d 1024, 1026 (7th Cir. 1999) (noting that § 2244(b) may be unconstitutional in certain circumstances); cf. Martinez-Villareal v. Stewart 118 F.3d 628, 635 (9th Cir. 1997) (Nelson, J., specially concurring) (arguing that § 2244(b) is an unconstitutional suspension of the writ as applied to Ford claims).
425. See Whitley v. Senkowski, 317 F.3d 223, 225 (2d Cir. 2003) (remanding a case that dismissed a habeas petition as time-barred although petitioner alleged crime innocence and instructing the district court to determine whether petitioner made a credible showing of actual innocence and whether such showing excepted him from being time-barred);
426. Wyzykowski v. Dep't of Corrs., 226 F.3d 1213, 1218-19 (11th Cir. 2000);
427. Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000);
428. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (acknowledging that a limitations period may render the habeas remedy inadequate as applied to an actually innocent offender);
429. Holloway v. Jones, 166 F. Supp. 2d 1185, 1190 (E.D. Mich. 2001);
430. Alexander v. Keane, 991 F. Supp. 329, 334-39 (S.D.N.Y. 1998).
431. The Supreme Court, however, has recendy suggested that AEDPA provisions might be unconstitutional as applied to meritorious crime-innocence claims. See In re Davis, No. 08-1443, 2009 WL 2486475, at *1 (U.S. Aug. 17, 2009) (citing, with approval, Triestman v. United States, 124 F.3d 361, 377-80 (2d Cir. 1997)).
432. See supra note 314 and accompanying text.
433. See supra note 331 and accompanying text.
434. See supra note 340and accompanying text.
435. See In re Davis, 2009 WL 2486475, at *2 (Stevens, J., concurring). Moreover, available data suggests that Atkins has not opened any floodgates of frivolous litigation. See Blume et al., supra note 153, at 628.
436. 28 U.S.C. § 2244(b) (2) (B) (2006).
437. See Steiker, supra note 25, at 342 ("Despite mis statutory guidance, the Court's approach to 'successive' and 'abusive' petitions likewise has been fashioned without close attention to statutory language.... [B]oth the Warren and the Rehnquist Courts designed their own substantive standards governing such petitions wholly apart from statutory language.").
438. 373 U.S. 1, 18-19 (1963).
439. See 477 U.S. 436, 451-52 (1986).
440. See Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001) (rejecting a literalist interpretation of § 2244(b) and agreeing with other courts that the interpretation of the provision "involves the application of the pre-AEDPA abuse-of-the-writ principles" (citation omitted));
441. Vancleave v. Norris, 150 F.3d 926, 928 (8th Cir. 1998) (observing that the Supreme Court rejects a literalist interpretation of the term "second or successive").
442. Stewart v. Martinez-Villareal, 523 U.S. 637, 644 (1998);
443. see Slack v. McDaniel, 529 U.S. 473, 487 (2000) (affirming analysis in Martinez-Villareal).
444. See 2 FHCPP, supra note 20, § 28.3b(i) (different judgment) (collecting cases); id. § 28.3 (ii) (no prior merits judgment) (collecting cases).
445. See Panetti v. Quarterman, 551 U.S. 930, 947 (2007)
446. (quoting Barnard v. Collins, 13 F.3d 871, 878 (5th Cir. 1994) ("[O]ur research indicates no reported decision in which a federal circuit court or the Supreme Court has denied relief of a petitioner's competency-to-be-executed claim on grounds of abuse of the writ." (alteration in original)).
447. Panetti, 551 U.S. 930; Martinez-Villareal, 523 U.S. at 645-46.
448. Panetti, 551 U.S. at 943-47; Martinez-Villareal, 523 U.S. at 644.
449. See Panetti, 551 U.S. at 943-44 (stating that the § 2244(b) is not "self-defining" but rather "takes its full meaning from [the Court's pre-AEDPA] case law"); Martinez-Villareal, 523 U.S. at 645-46 (rejecting a literal reading of § 2244(b) to avoid "perverse" results).
450. Panetti, 551 U.S. at 946 (quoting Castro v. United States, 540 U.S. 375, 381 (2003)).
451. These claimants may still face considerable difficulty. For example, mey must still seek authorization from a circuit court under § 2244(b) (3) before filing their successive petitions, and that authorization ruling is not reviewable. See 28 U.S.C. §2244 (b) (3) (E) (2006). Because there is no certiorari review of authorization determinations, ineligibility claimants may be irreversibly but erroneously denied relief in that procedural posture. See, e.g., In re Lewis, 484 F.3d 793 (5th Cir. 2007) (per curiam) (time-barring Atkins claimant on authorization motion even though statute does not seem to permit consideration of affirmative defense on such motion). Moreover, a court might deny relief on a meritorious claim because that claim was not "previously unavailable" under § 2244(b) (2) (A).
452. See Panetti, 551 U.S. at 946.
453. See supra notes 351-56 and accompanying text.
454. See supra Part I.A.2.
455. 28 U.S.C. § 2244(d) (1) (A)-(D).
456. An avoidance rationale might also support reading certain ineligibility claims to fall under the § 2244(d) (1) (B) trigger for the removal of state-created filing obstacles or under the § 2244(d) (1) (D) trigger for the discovery of a claim's factual predicate with due diligence.
457. See Rivera v. Quarterman, 505 F.3d 349, 354-55 (5th Cir. 2007).
458. See Pace v. DiGuglielmo, 544 U.S. 408, 418 n.8 (2005).
459. See, e.g., Neverson v. Farquharson, 366 F.3d 32, 41 (1st Cir. 2004);
460. McClendon v. Sherman, 329 F.3d 490, 492 (6th Cir. 2003);
461. Helton v. Sec'y for Dep't of Corrs., 259 F.3d 1310, 1312 (11th Cir. 2001);
462. Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000);
463. Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th Cir. 2000);
464. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000);
465. Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999);
466. Miller v. N.J. State Dep't of Corrs., 145 F.3d 616, 617-18 (3d Cir. 1998);
467. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998);
468. Davis v. Johnson, 158 F.3d 806, 810-12 (5th Cir. 1998);
469. Calderon v. U.S. Dist. Court for the Cent. Dist. of Cal., 128 F.3d 1283, 1288-89 (9th Cir. 1997).
470. See Lawrence v. Florida, 549 U.S. 327, 336-37 (2007).
471. Compare, e.g., Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) ("Equitable tolling would be appropriate, for example, when a prisoner is actually innocent." (citation omitted)),
472. with Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002) ("[P]etitioner's claims of actual innocence . . . [do not] justify equitable tolling of the limitations period.").
473. See Souter v. Jones, 395 F.3d 577, 601-02 (6th Cir. 2005) (collecting and citing cases); sources cited supra note 344;
474. cf. Wyzykowski v. Dep't of Corrs., 226 F.3d 1213, 1218 (11th Cir. 2000) (stating that issue of actual innocence should be resolved before potential conflict with the Suspension Clause is considered).
475. See, e.g., Doe v. Menefee, 391 F.3d 147, 174 (2d Cir. 2004) (declining to decide whether actual innocence justified equitable tolling of limitations period on grounds that offender did not make sufficient showing of innocence).
476. See Duncan v. Walker, 533 U.S. 167, 183-84 (2001) (Stevens, J., joined by Souter, J. concurring in part and concurring in the judgment); id. at 192-93 (Breyer, J., joined by Ginsburg, J. dissenting)
477. See Advisory Committee Notes to Rule 3 (2004 Amendment) of the Rules Governing Section 2254 Cases in the United States District Courts.
478. See, e.g., Calderon v. U.S. Dist Court for the Cent. Dist. of Cal., 163 F.3d 530, 541 (9th Cir. 1998) (holding that mental incompetence was an extraordinary circumstance beyond prisoner's control that justified equitable tolling).
479. See, e.g., Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005) (refusing to apply equitable tolling absent showing of "causal connection between [petitioner's] alleged mental incapacity and [petitioner's] ability to file a timely petition");
480. Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001) (holding that in order to justify equitable tolling, "mental incompetence must somehow have affected the petitioner's ability to file a timely habeas petition" (citation omitted)).
481. See, e.g., In re Lewis, 484 F.3d 793, 798 n.20 (5th Cir. 2007) ("We have previously applied the limitations period to Atkins claims, including a claim in which the petitioner had made a prima facie showing of mental retardation.").
482. See supra Part III.A.
483. See supra Part III.A.2.
484. See supra notes 340-44 and accompanying text.
485. See supra notes 372-73.
486. See supra Part III.B. I do not mean to imply that statutory cognizability is the only, or even the major, factor that goes into an equitable-tolling determination.
487. See supra notes 341-44 and accompanying text.