In defense of noncapital habeas: A response to hoffmann and king

Cornell Law Review

Volumn 96, Issue 3, 2011, Pages 435-480

  Blume, John H ^a   Johnson, Sheri Lynn ^a   Weyble, Kair M ^a  

^a MIT Sloan School of Management   (United States)

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[No Author keywords available]

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EID: 79955399558     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (430)

1. See L. Stuart Ditzen, Findings of Racism Reopen '86 Rape Case, PHILA. INQUIRER, July 1, 2001, at A1.
2. Moore v. Morton, 255 F.3d 95, 102 (3d Cir. 2001).
3. See Ditzen, supra note 1.
4. Moore, 255 F.3d at 97-98.
5. See id.
6. Id. at 98.
7. The prosecutor argued: Race has nothing whatsoever to do with this case, right? Right. We all know that the race of the people involved does not at all dictate whether he's guilty or anything like that I mean, let's hope that we all feel that way, whether we are white or black or anything. Okay? So let's clear the air that the statement that I'm about to make has nothing whatsoever to do-and I hope this machine hears this-has nothing whatsoever to do with race. This has to do with selection, okay? Here's what I mean. All of us select people in life to be with based on whatever reason, whether it's people to marry, whether it's friends, whether it's people to associate with, whether it's business people. We all make choices in life that lead us to relationships with others, and those choices may or may not be significant. Let me show you what I mean. What if you as an individual, whether you're male or a female, decide in your life that you want to live your life with a blonde? You know, you see all of these ads about blondes have more fun and this and that and, again, whether you are male or female or whatever-it can work both ways-and so you become interested in being with blondes because you prefer them. Right? Gentlemen prefer blondes. Well, that can be seen, can't it, because maybe the people that you choose to date or marry or be with all appear to be blondes or it might be redheads or it might be green hair. You know, nowadays I guess green is one of the popular colors. It could be anything. You could substitute any color hair or you could substitute any particular trait Right? It needn't even be color of hair. It could be the color of eyes. It could be a person who likes tall people. I think whoever I should be with should be six foot four. It would make me feel terrific to be with a woman six foot four, or vice versa, a woman could think of a man like that. You see my point? It's not a statement of race; it's a question of choice, selection of who you might want to be with, whether it is as a mate or a boyfriend or girlfriend or victim. How about that? How about that some people might choose a victim according to the way they look, whether they be blonde or blue or anything else? So I ask you this: What did we learn when we found out that Cheryl Moore was the wife of the defendant? I suggest to you in a nonracist way that what we found out was that Clarence McKinley Moore made a choice to be with a Caucasian woman-Id. at 99.
8. Id. at 100.
9. Id. at 100-01.
10. Id. at 101.
11. Id. at 108
12. (quoting State v. Moore, No. A-1910-87Ta, slip op. at 7 (N.J. Super. Ct. App. Div. Apr. 1, 1991)).
13. See Ditzen, supra note 1.
14. Id.
15. Id.
16. Id.
17. See Moore, 255 F.3d at 121.
18. L. Stuart Ditzen, Reclaiming the Innocent, PHILA. INQUIRER, July 31, 2001, at D1.
19. See generally Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. REV. 791 (2009) (proposing to permit habeas review for state prisoners in noncapital cases upon a showing of "clear and convincing" evidence of actual innocence or for a claim based on a new, retroactive constitutional rule).
20. NANCY J. KING ET AL., FINAL TECHNICAL REPORT: HABEAS LITIGATION IN U.S. DISTRICT COURTS (2007), available at http://www.ncjrs.gov/pdffiles1/nij/grants/ 219559.pdf.
21. See Hoffmann & King, supra note 18, at 806, 820.
22. See id. at 823-25, 828-34.
23. Nancy J. King & Joseph L. Hoffmann, Habeas Corpus for the Twenty-First Century, Chapter One 14-15 (Vanderbilt Univ. Law Sch. Pub. Law &: Legal Theory Working Paper No. 09-27), available at http://ssrn.com/ abstract=1517840.
24. Act of February 5, 1867, ch. 28, 14 Stat. 385. Additionally, the Constitution itself prohibits suspension of the "privilege of the writ of habeas corpus." U.S. CONST, art. I, § 9, cl. 2.
25. 344 U.S. 443 (1953);
26. see also LARRY W. YACKLE, POSTCONVICTION REMEDIES §§ 19-20 (1981) (discussing the history of habeas corpus and the significance of Brown).
27. See Brown, 344 U.S. at 458.
28. See Fay v. Noia, 372 U.S. 391, 426-34 (1963) (holding that federal courts have the authority to review claims that were procedurally defaulted in state court).
29. See Townsend v. Sain, 372 U.S. 293, 312-13 (1963) (holding that federal courts must hold evidentiary hearings if the state court's fact-finding process was defective).
30. See Sanders v. United States, 373 U.S. 1, 17 (1963) (holding that petitioner can, under a variety of circumstances, file more than one petition for habeas relief).
31. See Kathleen Patchel, The New Habeas, 42 HASTINGS L.J. 939, 1012 (1991) ("[T]he Warren Court chose the indirection of habeas review to enforce state compliance with the new criminal process requirements.").
32. Stone v. Powell, 428 U.S. 465, 482 (1976).
33. See Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977).
34. See Sumner v. Mata, 449 U.S. 539, 551 (1981).
35. Rose v. Lundy, 455 U.S. 509, 522 (1982).
36. See Teague v. Lane, 489 U.S. 288, 310-15 (1989) (plurality opinion) (allowing retroactive application of a rule of criminal procedure on collateral review only when it places "certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe" or when its absence would "undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction" (internal quotations omitted)).
37. See McCleskey v. Zant, 499 U.S. 467, 493 (1991) (applying the cause-and-prejudice requirement to claims otherwise subject to dismissal under the abuse-of-the-writ doctrine).
38. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12 (1992) (adopting the "cause-andprejudice" requirement for determining petitioner's entitlement to a federal evidentiary hearing).
39. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (adopting a harmlessness standard for trial-type errors, under which relief is permitted only where an error had "substantial and injurious effect or influence in determining the jury's verdict").
40. Pub. L. No. 104-132, 110 Stat. 1214.
41. For a description of prior efforts at habeasstatute modification, see, for example, Larry W. Yackle, The Habeas Hagioscope, 66 S. CAL. L. REV. 2331, 2350-73 (1993).
42. For an assessment of AEDPA's success in meeting these objectives, see John H. Blume, AEDPA: The "Hype" and the "Bite," 91 CORNELL L. REV. 259, 274-92 (2006).
43. See 28 U.S.C. § 2244(d) (2006).
44. AEDPA also made available a 180-day limitations period for capital cases from qualifying states. See id. § 2263. To date, however, no state has qualified to invoke it. See infra notes 184-86 and accompanying text
45. 28 U.S.C. § 2254(d).
46. Id. § 2254(e)(2).
47. Id. § 2244(b).
48. Id. § 2254(a).
49. See id. § 2254(b);
50. Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam) ("[E]xhaustion of state remedies requires that petitioners fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." (second alteration in original) (internal quotations omitted)).
51. See 28 U.S.C. § 2244(d).
52. See id. § 2254(e)(2);
53. Schriro v. Landrigan, 550 U.S. 465, 474 (2007) ("In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entide the applicant to federal habeas relief.");
54. Williams v. Taylor, 529 U.S. 420, 440 (2000) (finding that the petitioner was entitled to a federal evidentiary hearing because he was diligent in his attempts to develop the factual bases for his prosecutorial-misconduct and juror-bias claims in state postconviction proceedings).
55. 28 U.S.C. § 2254(a).
56. See, e.g, Fry v. Pliler, 551 U.S. 112, 121-22 (2007);
57. Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)
58. (concluding that the suppression of favorable evidence by the prosecution violates due process "'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different'" (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)));
59. Strickland v. Washington, 466 U.S. 668, 694 (1984) (holding that a prisoner claiming ineffective assistance of counsel must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different").
60. See Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991) (distinguishing "structural" from trial errors as those that prevent a "criminal trial [from] reliably serv[ing] its function as a vehicle for determination of guilt or innocence").
61. Teague v. Lane, 489 U.S. 288, 306 (1989) (plurality opinion);
62. see 28 U.S.C. § 2254(d)(1) (prohibiting issuance of the writ unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court").
63. 28 U.S.C. § 2254(d);
64. see also Williams v. Taylor, 529 U.S. 362, 390-99 (2000) (construing and applying § 2254(d)'s limitation on habeas relief).
65. Hoffmann & King, supra note 18, at 795.
66. Id. at 796;
67. see also id. at 805 ("Retaining that system might make sense today if the problems that gave rise to it persisted, but they do not.");
68. id. at 842 ("But in every state the combination of appellate and postconviction review provides at least a reasonable opportunity for convicted defendants to litigate both (1) claims of constitutional error based in the trial court record and (2) constitutional claims that require the development of facts outside of that record.").
69. Empirical evidence suggests that, especially in capital cases, a state's method of selecting judges affects state appellate court outcomes. Partisan judicial elections are linked to higher affirmance rates in capital cases. See John Blume & Theodore Eisenberg, Judicial Politics, Death Penalty Appeals, and Case Selection: An Empirical Study, 72 S. CAL. L. REV. 465, 488-92 (1999);
70. see also 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, 324-26 (1997) (describing various negative effects of political pressures and distortions on the "independence, integrity, and impartiality of the judiciary").
71. Hoffmann & King, supra note 18, at 836.
72. See John H. Blume & Emily C. Paavola, A Reintroduction: Survival Skills for Post-Conviction Practice in South Carolina, 4 CHARLESTON L. REV. 223, 249-57 (2010) (providing an overview of state-specific practices);
73. see also 1 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 7.1(a) (5th ed. 2005).
74. See, e.g., Gibson v. Turpin 513 S.E.2d 186, 188-89 (Ga. 1999) (finding that the Georgia statute providing for habeas relief does not require appointment of a state-funded lawyer);
75. see also Eric M. Freedman, Giarratano Is a Scarecrow: The Right to Counsel in State Capital Postconviction Proceedings, 91 CORNELL L. REV. 1079 (2006) (discussing the various state approaches to providing representation);
76. Sarah L. Thomas, Comment, A Legislative Challenge: A Proposed Model Statute to Provide for the Appointment of Counsel in State Habeas Corpus Proceedings for Indigent Petitioners, 54 EMORY L.J. 1139, 1152-58 (2005) (same).
77. For an example of one such state statute, see Uniform Post-Conviction Procedure Act, S.C. CODE ANN. §§ 17-27-10 to -160 (2003 & Supp. 2009).
78. See also Thomas, supra note 57, at 1152-58.
79. Virtually all prisoners are indigent. Most states provide little or no funding for investigative and expert services, see, e.g., GA. CODE ANN. § 9-14-42 (2006),
80. and most states either do not provide for discovery or have strict limits on discovery, see, e.g., S.C. CODE ANN. § 17-27-150(A) (2003) (allowing discovery only upon a showing of "good cause").
81. See generally Christopher Flood, Closing the Circle: Case v. Nebraska and the Future of Habeas Reform, 27 N.Y.U. REV. L. & Soc. CHANGE 633, 640-45, 656-662 (2002) (describing the inadequacies of state postconviction procedures and arguing for the recognition of a prisoner's constitutional right to adequate state postconviction review).
82. Twenty-one states currently have judicial elections. See Fact Sheet on Judicial Selection Methods in the States, A.BA., www.abanet.org/leadership/fact- sheeLpdf (last visited Jan. 11, 2011) .
83. For analysis of due process concerns arising from the election of state court judges, see MONROE H. FREEDMAN & ABBE SMITH, UNDERSTANDING LAWYERS' ETHICS 248-50 (3d ed. 2004)
84. (discussing due process implications in light of Republican Party of Minn. v. White, 536 U.S. 765 (2002)).
85. In Connecticut, New Hampshire, South Carolina, and Virginia, the state's general assembly elects judges. CONN. CONST, art V, § 2 ("The judges of the supreme court and of the superior court shall, upon nomination by the governor, be appointed by the general assembly ....");
86. N.H. CONST, art XLVI ("All judicial officers . . . shall be nominated and appointed by the governor and council ....");
87. S.C. CONST, art V, § 3 ("The members of the Supreme Court shall be elected by a joint public vote of the General Assembly ....");
88. id. art V, § 8 ("The members of the Court of Appeals shall be elected by a joint public vote of the General Assembly....");
89. VA. CONST, art. VI, § 7 ("The justices of the Supreme Court shall be chosen by the vote of a majority of the members elected to each house of the General Assembly for terms of twelve years. The judges of all other courts of record shall be chosen by the vote of a majority of the members elected to each house of the General Assembly for terms of eight years.").
90. Blume & Eisenberg, supra note 54, at 470-74 (discussing political campaigns aimed at ousting individual judges for being "soft on crime").
91. 64 Mississippi and Ohio, for example, require detailed proffers before the court will grant an evidentiary hearing. See, e.g., Spencer v. State, 2007-CP-01667-COA (¶ 13) (Miss. Ct. App. 2008) ("A trial court enjoys wide discretion in determining whether an evidentiary hearing should be granted. . . . [W] here the trial court summarily dismisses the postconviction relief claim, it does not have an obligation to render factual findings and [the Mississippi Court of Appeals] will assume that the issue was decided consistent with the judgment and [these findings] will not be disturbed on appeal unless manifestly wrong or clearly erroneous." (last alteration in original) (internal quotations omitted));
92. Jones v. State, 2000-CP-01712-COA (¶ 3) (Miss. Ct App. 2001) ("Not every motion for post-conviction relief must be afforded a full adversarial hearing by the trial court. The movant must demonstrate, through affidavits or otherwise, the potential existence of facts that, if proven at the hearing, would entide the movant to relief.");
93. State v. Harrington, 172 Ohio App. 3d 595, 2007-Ohio-3796, 876 N.E.2d 626, at ¶ 12 ("[T] he mere filing of a petition for postconviction relief does not automatically entitle the petitioner to an evidentiary hearing. Rather, the trial court need only conduct an evidentiary hearing when the petition, its supporting documents, and the record reveal that the petitioner has set forth sufficient operative facts to establish substantive grounds for relief.").
94. Alabama requires that any and all claims be pled with a specificity that few counseled, much less uncounseled, inmates can meet. See Lee v. State, 44 So. 3d 1145, 1156 (Ala. Crim. App. 2009) ("A circuit court may summarily dismiss a postconviction petition, if, assuming every factual allegation in a . . . petition to be true, a court cannot determine whether the petitioner is entitled to relief. A court is not required to hold an evidentiary hearing but may consider all factual assertions raised in the petition to be true. If the court cannot determine whether the petitioner is entitled to relief after considering all of the factual assertions to be true, then the petitioner has failed to meet his burden of pleading . . . ." (citations omitted) (internal punctuation omitted));
95. Abner v. State, 41 So. 3d 828, 831 (Ala. Crim. App. 2008) ("An evidentiary hearing on a ... petition is required only if the petition is 'meritorious on its face.' A petition is 'meritorious on its face' only if it contains a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the facts relied upon (as opposed to a general statement concerning the nature and effect of those facts) sufficient to show that the petitioner is entitled to relief if those facts are true." (citations omitted)).
96. See, e.g, State v. Curtis, 912 P.2d 1341, 1342 (Ariz. Ct. App. 1995) ("Defendants are precluded from seeking post-conviction relief on grounds that were adjudicated, or could have been raised and adjudicated, in a prior appeal or prior petition for post-conviction relief...");
97. People ex rel. McNair v. Bantum, 507 N.Y.S.2d 275, 275 (N.Y. App. Div. 1986) ("[P]ostjudgment collateral relief [is not] available to review issues which could have and should have been raised on an earlier appeal.");
98. State v. D'Ambrosio, 652 N.E.2d 710, 713 (Ohio 1995) (explaining that a claim that was raised or could have been raised on direct appeal is not cognizable in postconviction proceedings).
99. Hoffmann & King, supra note 18, at 842.
100. See 28 U.S.C. § 2244(d) (2006).
101. See, e.g, id. § 2254(b);
102. Coleman v. Thompson, 501 U.S. 722, 731 (1991);
103. Wainwright v. Sykes, 433 U.S. 72, 80-91 (1977).
104. See 28 U.S.C. § 2254(d).
105. As we discuss later, the efficacy of federal habeas as a remedy in individual cases and as a deterrent to future state court conduct could be significantly improved through one or more relatively minor modifications to existing law. See infra Part IV.
106. See THE FEDERALIST NO. 78 (Alexander Hamilton);
107. see also, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 587-88 (2006) (discussing need for habeas corpus because military commission judges did not possess "the structural insulation . . . that characterizes the Court of Appeals for the Armed Forces");
108. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59 (1982) (explaining that the Good Behavior clause and the Compensation Clause "ensure the independence of the Judiciary from the control of the Executive and Legislative Branches of government");
109. Vicki C. Jackson, Packages of Judicial Independence: The Selection and Tenure of Article III Judges, 95 GEO. L.J. 965, 969 (2007) ("Judges were to be independent of popular passions and certain kinds of pressures from other branches of the government These were the purposes of the provisions for life tenure, the high standard for removal by impeachment, and the clause that salaries cannot be diminished while a judge is in office.");
110. Gregory S. Fisher, Reining in Those Pesky Federal Judges, FED. LAW., Jan. 2006, at 28, 29 ("The standard explanation for life tenure-derived from Federalist No. 78-is that Article III judges had to have a secure livelihood to ensure that they would be free from political, economic, or social pressures that might impermissibly influence their judgment Life tenure resulted from the recognition that judges are corruptible, which is not to say that they are corrupt but to recognize that they are human." (footnote omitted)).
111. Fay v. Noia, 372 U.S. 391, 416-17 (1963): [A] remedy almost in the nature of removal from the state to the federal courts of state prisoners' constitutional contentions seems to have been envisaged. . . . The elaborate provisions in the Act for taking testimony and trying the facts anew in habeas hearings lend support to this conclusion, as does the legislative history of House bill No. 605, which became, with slight changes, the Act of February 5, 1867. The bill was introduced in response to a resolution of the House on December 19, 1865, asking the Judiciary Committee to determine what legislation is necessary to enable the courts of the United States to enforce the freedom of the wives and children of solthers of the United States and also to enforce the liberty of all persons under the operation of the constitutional amendment abolishing slavery. (footnote omitted) (internal punctuation omitted).
112. See Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. 869, 873-74 (2009) (arguing that lessons of institu-tional design from administrative law teach the importance of separating persons who make investigative decisions from those who make adjudicative decisions).
113. Of course, Hoffmann and King contend that these wins are too infrequent to be consequential. See Hoffmann & King, supra note 18, at 809-10.
114. As we discuss later, however, the number of successful cases is not the only, nor the most important, metric for judging the worth of federal habeas review. And, to the extent the numbers are important, we also suspect that Hoffmann and King's figures understate the ranks of noncapital state prisoners who succeed in federal habeas. See infra Part II.B.
115. See 28 U.S.C. § 2254(e)(2) (2006) (barring federal evidentiary hearing if prisoner "failed to develop the factual basis of a claim in State court proceedings");
116. Williams v. Taylor, 529 U.S. 420 (2000).
117. See RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT COURTS 7 (2004);
118. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (noting that the "basic rule" vesting district courts with discretion to grant evidentiary hearings has not changed).
119. See 18 U.S.C. § 3006A (2006) (authorizing appointment of counsel in the interest of justice).
120. See Cone v. Bell, 129 S. Ct 1769, 1782 (2009) (noting federal habeas courts' "independent duty to scrutinize the application of state rules that bar . . . review of federal claims").
121. This occurrence is not uncommon. See, e.g., Lee v. Kemna, 534 U.S. 362, 387-88 (2002) (rejecting procedural bar and remanding the due process claim on the merits to the court below);
122. Ake v. Oklahoma; 470 U.S. 68, 75-83 (1985) (rejecting the state court's procedural default holding and finding that an indigent, death-sentenced inmate has a due process right to the "basic tools" of an adequate defense);
123. see also Kindler v. Horn, 542 F.3d 70, 72, 78-80 (3d Cir. 2008) (rejecting state court's application of procedural bar and granting relief on petitioner's ineffective assistance of counsel claim); Bell v. Miller, 500 F.3d 149, 153-157 (2d Cir. 2007) (similar);
124. Haliym v. Mitchell, 492 F.3d 680, 691-92, 718-20 (6th Cir. 2007) (similar);
125. Smith v. Mullin, 379 F.3d 919, 926-27, 944 (10th Cir. 2004) (similar).
126. See, e.g., Theodore Eisenberg & Sheri Lynn Johnson, Implicit Racial Attitudes of Death Penalty Lawyers, 53 DEPAUL L. REV. 1539, 1553 (2004) (documenting the presence of automatic bias among defense lawyers);
127. Sheri Lynn Johnson, Litigating for Racial Fairness after McCleskey v. Kemp, 39 COLUM. HUM. RTS. L. REV. 178, 189-201 (2007) (summarizing literature on modern racial bias relevant to criminal cases);
128. Jerry Rang, Trojan Horses of Race, 118 HARV. L. REV. 1489, 1506-35 (2005) (reviewing the literature on subconscious bias).
129. See, e.g., State v. Bennett, 632 S.E.2d 281, 285 (S.C. 2006) (noting that the prosecutor referred to an African-American defendant as "King Kong" during penalty phase summation).
130. See, e.g, Rouse v. Lee, 314 F.3d 698, 700-01 (4th Cir. 2003) (describing unsuccessful state court challenge based on juror's posttrial admissions of racial bias and intentional concealment designed to secure a seat on the capital defendant's jury),
131. vacated, 339 F.3d 238 (4th Cir. 2003).
132. See, e.g, Osborne v. Terry, 466 F.3d 1298, 1316-17 (11th Cir. 2006) (describing the state court's denial of relief on petitioner's ineffective assistance of counsel claim where appointed defense counsel reportedly remarked about his client that "[t]he little nigger deserves the death penalty");
133. Frazer v. United States, 18 F.3d 778, 783 (9th Cir. 1994) (noting that appointed counsel called a defendant "stupid nigger son of a bitch" and threatened to provide substandard performance if defendant chose to exercise right to trial).
134. 476 U.S. 79 (1986).
135. Sheri Lynn Johnson, Race and Recalcitrance: The Miller-El Remands, 5 OHIO ST. J. CRIM. L. 131, 131 (2007);
136. see Miller-El v. Dretke, 545 U.S. 231, 236-37 (2005).
137. Hoffmann & King, supra note 18, at 804-05.
138. Id. at 806-07.
139. Id. at 809.
140. KING ET AL., supra note 19, at 15.
141. See Hoffmann & King, supra note 18, at 811 n.70 ("The study examined only decisions of the district courts; we do not know whether any of the decisions to deny relief were reversed on appeal.").
142. In all, 1,547 noncapital court of appeals decisions in § 2254 cases were reviewed. Of these, 630 dispositions on grounds other than an outright merits decision (e.g., denials of a certificate of appealability, dismissals for untimeliness, or remands following grants or denials of relief) were set aside. The resulting set of 917 decisions involved cases in which a district court had either granted or denied relief on the merits, and the court of appeals either affirmed or reversed the district court's judgment on the merits without remanding the case for further proceedings (e.g., an evidentiary hearing, consideration of a procedural default issue, or consideration of a timeliness issue). Of the 126 district court grants of relief that were appealed, 60 were affirmed and 66 were reversed; of the 791 district court denials of relief, 697 were affirmed and 94 were reversed.
143. Our appellate outcomes data also show substantial variation among circuits. For example, while noncapital habeas petitioners won on the merits in the Fifth and Sixth Circuits at rates of 21.73% (10 of 46 cases) and 22.85% (40 of 135 cases), respectively, the success rate in the Eleventh Circuit was a mere 1.66% (1 out of 60 cases). This data suggests that conservative courts like the Eleventh Circuit artificially depress the overall success rate; the problem might not lie so much with the noncapital habeas but with the composition of some of the courts charged with its enforcement.
144. See Hoffmann & King, supra note 18, at 834-42.
145. See, e.g, Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968).
146. See Hoffmann & King, supra note 18, at 810, 812-13 ("The study cannot tell us, of course, whether the incredibly low rate of habeas grants reflects a comparably low frequency of meritorious claims, or whether there are many more habeas petitioners who deserve relief but do not obtain it").
147. See id. at 812-13.
148. See id.
149. Id. at 813.
150. See Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV. 142, 142 (1970) (observing that "[a]ny murmur of dissatisfaction with" a criminal conviction, marking only "the end of the beginning" of litigation in the prisoner's case, "provokes immediate incantation of the Great Writ, with the inevitable initial capitals, often accompanied by a suggestion that the objector is the sort of person who would cheerfully desecrate the Ark of the Covenant").
151. Boumediene v. Bush, 553 U.S. 723, 743 (emphasis added);
152. see also id. at 743-44 (discussing the Founders' view of the writ of habeas corpus).
153. Wolfe v. Brigano, 232 F.3d 499, 501, 503 (6th Cir. 2000).
154. Id. at 503.
155. See Brown v. Sternes, 304 F.3d 677, 680-81 (7th Cir. 2002).
156. Id. at 681-82.
157. Id. at 685-86.
158. Id. at 695-96.
159. Id. at 698-99.
160. See Hoffmann & King, supra note 18, at 816 ("States can count on winning almost every one of these cases, but they can also count on a significant expenditure of state dollars to defend them. Any system of justice that expends so much effort and produces so little benefit deserves reconsideration." (footnote omitted));
161. id. at 823-24 ("Whatever can be saved by cutting back on habeas review-and additional funds-should be devoted to a new federal initiative aimed at helping the states prevent and correct constitutional violations in their own courts.").
162. The closest Hoffmann and King come to filling in this blank is to note that "with more than 18,000 habeas petitions filed each year, the cost for the states adds up," Hoffmann & King, supra note 18, at 816, and that the Philadelphia District Attorney's Office claimed at a congressional hearing to have increased its staff of habeas lawyers by "400%" in the decade between 1995 and 2005, id. at 816 n.93.
163. Rather than simply concluding, as Hoffmann and King do, that these numbers reflect a habeas system overrun with petitioners, one might instead view them as a natural consequence of our world-leading incarceration rate. See ROY WALMSLEY, WORLD PRISON POPULATION LIST 1 (8th ed. 2009) ("The United States has the highest prison population rate in the world, 756 per 100,000 of the national population ...."),
164. available at http://www.kcl.ac.uk/depsta/law/research/icps/ downloads/wppl-8th-41.pdf;
165. HEATHER C. WEST & WILLIAM J. SABOL, PRISON INMATES AT MIDYEAR 2008-STATISTICAL TABLES 2 tbl.1 (2009) (showing that as of June 30, 2008, 1,610,584 citizens were incarcerated in state and federal prisons in the United States). Indeed, if Hoffmann and King's estimate of 18,000 habeas petitions per year is correct, then only approximately 1 out of every 90 prisoners seeks habeas relief in a given year; the numbers could be far worse.
166. See Hoffmann & King, supra note 18, at 818-34 (laving out the two prongs of the authors' replacement habeas scheme).
167. Id. at 819.
168. 2 Id. at 822-23.
169. 3 See id. at 837-39.
170. 4 See id. at 819.
171. 5 See id. at 820 ("Since cases of wrongful conviction involve the most fundamental kind of unjust incarceration, they justify the extraordinary expenditure of resources to allow habeas courts to provide a last-chance remedy.").
172. 6 The answer may be simply that these exceptions were available off the shelf. After all, Hoffmann and King's proposed subdivisions (1) and (2) are nearly identical to 28 U.S.C. § 2244(b) (2) (A)-(B), which set the conditions a prisoner must meet when seeking permission to file a "second or successive" petition under the current scheme. See 28 U.S.C. § 2244(b)(2)(A) (2006) ("A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless the applicant shows diat the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable ....");
173. id. § 2244(b)(2)(B) ("A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.").
174. 7 Id. § 2244(b) (2) (B) (i). For all its capacity to block review in an otherwise deserving case, § 2244(b) (2) (B) (i)'s requirement that evidence be new to warrant authorization to proceed with a second or successive petition does provide a strong incentive (necessary or not) for full investigation and presentation of claims in a first petition. That theoretical justification for requiring newly discovered evidence is absent from the context proposed by Hoffmann and King, as prisoners would be required under tiieir regime to present new, previously undiscoverable evidence merely to be heard a first time.
175. Even an innocence claim can, under current law, be lost if not asserted soon enough.
176. See, e.g., In re Davis, 565 F.3d 810,824-25 (11th Cir. 2009) (per curiam) (rejecting petitioner's actual-innocence claim), vacated, 130 S. Ct. 1 (2009) (granting a stay of execution and remanding for an evidentiary hearing);
177. Johnson v. Dretke, 442 F.3d 901, 911 (5th Cir. 2006) (affirming dismissal of a previously authorized second § 2254 petition because "[i]n light of the plain text of AEDPA and [Fifth Circuit] case law, we must conclude that a successive petitioner urging a Brady claim may not rely solely upon the ultimate merits of the Brady claim in order to demonstrate due diligence under § 2244(b) (2) (B) where the petitioner was noticed pretrial of the existence of the factual predicate and of the factual predicate's ultimate potential exculpatory relevance."), cert, denied sub nom.
178. Johnson v. Quarterman, 549 U.S. 956 (2006).
179. 9 See, e.g, In re Coleman, 344 F. App'x 913, 916 (5th Cir. 2009) (denying an application for leave to file second or successive habeas petition for failure to satisfy § 2244(b)(2) (B)'s " diligence" requirement because "[t]he factual predicate to the instant claim could have been discovered through the exercise of due diligence prior to the denial of Coleman's original [counseled] habeas petition in September 2004 and certainly prior to the filing of the instant motion");
180. see also In re Nealy, 223 F. App'x 358, 365-66 (5th Cir. 2007);
181. Bonds v. Superintendent, 620 F. Supp. 2d 945, 947 (N.D. Ind. 2009) (rejecting petitioner's contention that evidence supporting his habeas challenge to murder and conspiracy convictions was not previously discoverable for purposes of calculating limitations period under § 2244(d)(1)(D) because "post-conviction counsel had her predecessor's work product file and also discussed the case with him" and "[n]odthng in the record suggests why, with due diligence, she could not have found the search warrant and affidavit";);
182. Frazier v. Farmon, No. 97-2196, 2007 WL 2019549, at, 17 (E.D. Cal. July 9, 2007) (rejecting petitioner's argument that several claims for federal habeas relief were timely under § 2244(d)(1)(D) because, "even if the factual predicates for any of the new claims had been unknown to petitioner Frazier, the factual predicates should have been known by her [state] habeas counsel on or before December 31, 1999, thereby triggering the running of the one-year period of limitation").
183. 20See Coleman v. Thompson, 501 U.S. 722, 752 (1991) ("There is no constitutional right to an attorney in state post-conviction proceedings. Consequendy, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings."
184. (citing Murray v. Giarratano, 492 U.S. 1 (1989);
185. Pennsylvania v. Finley, 481 U.S. 551 (1987)));
186. see also, e.g.. Maples v. Allen, 586 F.3d 879, 891 (11th Cir. 2009) (expressing that counsel's failure to timely file notice of appeal from denial of state postconviction relief did not constitute "cause" to overcome resulting procedural default);
187. Ruiz v. Quarterman, 460 F.3d 638, 644 (5th Cir. 2006) ("[T]he law of this Court is clean ineffective state habeas counsel does not excuse failure to raise claims in state habeas proceedings. Where the state has provided a habeas remedy, the petitioner must pursue it before filing in federal court, even if the state provides ineffective habeas counsel." (footnote omitted));
188. Johnson v. McBride, 381 F.3d 587, 589-90 (7di Cir. 2004) (affirming dismissal of an untimely federal habeas petition in capital case where "[n]o one interfered with Johnson's ability to pursue collateral relief in a timely fashion. He wants us to treat his own lawyer as the source of interference, but lawyers are agents. Their acts (good and bad alike) are attributed to the clients they represent.... So it is as if Johnson himself had made the decisions that led to the delay");
189. Frye v. Hickman, 273 F.3d 1144, 1145 (9th Cir. 2001) ("[T]he miscalculation of the limitations period by Frye's counsel and his negligence in general do not constitute extraordinary circumstances sufficient to warrant equitable tolling.");
190. Mackall v. Angelone, 131 F.3d 442, 449 (4th Cir. 1997) (en banc) ("Because Mackall has no right to effective assistance of counsel in his state habeas proceedings, he cannot demonstrate cause to excuse the procedural default of his claims that his trial and appellate counsel were constitutionally ineffective. Consequently, federal habeas review of those claims is barred.").
191. See 28 U.S.C. § 2254(i) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.").
192. 22 See Hoffmann & King, supra note 18, at 823 n.113 (acknowledging that "even prisoners ultimately exonerated rarely raise [ ] claims of innocence in habeas"
193. (citing Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55, 128 (2008))).
194. 23 Hoffmann and King exhibit particular hostility toward "federal habeas review of Sixdi Amendment claims of ineffective assistance of counsel," which they assert— without citation to a shred of support— "currently squanders resources while failing to remedy defense-attorney deficiencies."
195. Hoffmann & King, supra note 18, at 823;
196. see also id. at 826 ("[C]ase-by-case litigation under Strickland v. Washington has failed, and will continue to fail, as a means of ensuring the right to counsel in noncapital cases." (footnote omitted)). But whether such cases improve the quality of representation, they often provide a new trial— and the chance of an acquittal— to those who are or may be factually innocent
197. 24 See id. at 823 n.113 ("Regarding our second exception, the Supreme Court has never held retroactive any rule affecting noncapital petitioners, other than the rule in Gideon.").
198. 25 SeeTeague v. Lane, 489 U.S. 288, 305-11 (1989).
199. This result is not attributable to lack of opportunities. Since Teague, the Court has considered and rejected arguments for retroactive application of new decisions on numerous occasions.
200. See, e.g., Whorton v. Bockting, 549 U.S. 406, 416-21 (2007);
201. Schriro v. Summerlin, 542 U.S. 348, 351-58 (2004);
202. O'Dell v. Netherland, 521 U.S. 151, 167 (1997);
203. Lambrix v. Singletary, 520 U.S. 518, 539-40 (1997).
204. 27 Tyler v. Cain, 533 U.S. 656, 666 n.7 (2001) ("[I]t is unlikely that any of these watershed rules 'has yet to emerge.'" (citation omitted)).
205. 28 Hoffmann & King, supra note 18, at 822.
206. 29 Id. at 820 n.98.
207. Id. at 822.
208. See 18 U.S.C. § 3599 (2006).
209. Cf Stewart J. Schwab & Theodore Eisenberg, Explaining Constitutional Tort Litigation: The Influence of the Attorney Fees Statute and the Government as Defendant, 73 CORNELL L. REV. 719, 771 (1988) (demonstrating that prisoners with counsel succeed at nearly the same rate as nonprisoners with counsel in constitutional tort litigation).
210. 33 That the stakes are higher in capital cases may make defense lawyers more zealous and judges more careful, even if the same quality of counsel were appointed.
211. 34 Cf. Samuel R. Gross, The Risks of Death: Why Erroneous Convictions Are Common in Capital Cases, 44 BUFF. L. REV. 469, 496 (1996) (arguing that the greater attention and quality of representation in capital cases leads to a greater likelihood of exoneration).
212. Cf. Graham v. Florida, 130 S. Ct 2011, 2034 (2010) (holding that the Eighth Amendment prohibits imposition of a sentence of life without parole on a juvenile who did not commit homicide).
213. 36 Hoffmann & King, supra note 18, at 836-37.
214. 37 Id. at 847 (calling for quid pro quo arrangement only "[i]f the [Supreme] Court were to construe narrowly its constitutional autjority to oversee restrictions on the writ"). We explain our disagreement with this portion of Hoffmann and King's proposal in Part IV, infra.
215. 38 553 U.S. 723 (2008).
216. 39 Hoffmann & King, supra note 18, at 837;
217. see also id. at 839 ("Based on [Boumethene and cases cited therein], we believe that when squarely presented with this issue, the Court will acknowledge that the Suspension Clause provides at least some level of constitutional protection for federal judicial review of the constitutional rights of persons serving state sentences.").
218. Hoffmann and King also say their "assumption" that states will maintain "reasonable" review systems is "warranted for reasons both legal and practical." Id. at 836-37. Other dian noting that states enjoy some freedom to shape their own review procedures and that they may value flexibility, efficiency, and responsiveness to local concerns, Hoffmann and King do not tell us what these "reasons" are.
219. See id. at 837 n.164.
220. 40 U.S. CONST, art I, § 9, cl. 2.
221. 41 See Hoffmann & King, supra note 18, at 840- 41 ("For most state prisoners, the likelihood of meaningful review of constitutional claims through these channels would be minute, and future habeas petitioners would surely challenge our proposal as a violation of the Suspension Clause.").
222. 42 Id. at 839
223. (citing Boumethene v. Bush, 553 U.S. 723, 733 (2008)).
224. 43 Id. (citing Boumethene, 553 U.S. at 779).
225. 44 Id. at 842.
226. 45 Id.
227. 46 Id. at 846. Remarkably, Hoffmann and King support this assertion by adding, "After all, the Court expeditiously resolved the most fundamental constitutional challenges to AEDPA, allowing the lower federal courts to dispose of such claims summarily."
228. Id. Hoffmann and King cite no evidence of this nimble response by the Supreme Court, and none is apparent to us. Moreover, having been involved to varying degrees in the litigation of many of the Supreme Court's AEDPA cases for fourteen years and counting, "expeditiously" would be among the last terms we would choose to characterize the Court's performance in resolving the myriad issues to which that statutory scheme has given rise.
229. See, e.g., Wood v. Allen, 130 S. Ct 841, 849 (2010) ("[W]e have explicitly left open the question whether § 2254(e)(1) applies in every case presenting a challenge under § 2254(d)(2).");
230. McLuckie v. Abbott, 337 F.3d 1193, 1202 n.5 (10th Cir. 2003) (lamenting with regard to § 2254(d)'s limitation on habeas relief that "[t]he Supreme Court has not defined 'objectively unreasonable' with any degree of precision").
231. 47 Hoffmann and King do acknowledge that "[t]he Court also would have to remain open to the possibility that subsequent developments in a particular state, such as a subsequent decision to abolish or curtail postconviction review, might require revisiting the Suspension Clause issue."
232. Hoffmann & King, supra note 18, at 846.
233. 48 See id.
234. 49 Boumethene v. Bush, 553 U.S. 723, 774 (2008).
235. 342 U.S. 205 (1952).
236. 430 U.S. 372 (1977).
237. Boumethene, 553 U.S. at 776.
238. Id.
239. 54 Boumethene, 553 U.S. at 779
240. (quoting INS v. St Cyr, 533 U.S. 289, 302 (2001)).
241. See, e.g., Conaway v. Polk, 453 F.3d 567, 589 (4th Cir. 2006) (remanding a capital case for an evidentiary hearing where petitioner "reasonably attempted, in light of the information available to him at the relevant times, to investigate and pursue the Juror Bias claim in state court[, but h]is efforts were thwarted ... by reluctant witnesses and unreceptive courts");
242. Wilson v. Beard, 426 F.3d 653, 665-66 (3d Cir. 2005) (rejecting respondent's challenge to the district court's decisions to hold an evidentiary hearing and to grant relief and stating that "[i]f a petitioner requests a hearing to develop the record on a claim in state court and if the state courts (as they did here) deny that request on the basis of an inadequate state ground, the petitioner has not 'failed to develop the factual basis of [the] claim in State court proceedings' for purposes of § 2254(e)(2)" (alteration in original));
243. Guidry v. Dretke, 397 F.3d 306, 323-24 (5th Cir. 2005) (stating that in light of "quite legitimate concerns about conflicting evidence" in the state court record and state court's failure to resolve important factual issues, the district court did not abuse its discretion in holding evidentiary hearing).
244. See, e.g., Bell v. Miller, 500 F.3d 149, 154-55 (2d Cir. 2007) (declining to enforce a state court's default determination because the underlying state rule was not regularly applied to claims like petitioner's);
245. Hartman v. Bagley, 492 F.3d 347, 356 (6th Cir. 2007) (rejecting the state postconviction court's determination that the claim should have been raised on direct appeal and was therefore res judicata and explaining that the claim "was based primarily on a forensic psychology report that was, in fact, outside the [trial] record");
246. Anderson v. Morrow, 371 F.3d 1027, 1031 (9th Cir. 2004) (declining to enforce the state court's default finding based on a rule not in effect at the time petitioner's default was alleged to have occurred).
247. 7 See, e.g., McGahee v. Ala. Dep't of Corr., 560 F.3d 1252, 1261-62 (11th Cir. 2009) (granting relief on a Balson v. Kentucky claim rejected by the state court after unduly narrow analysis and observing that, "where a legal standard requires a state court to review all of the relevant evidence to a claim, the state court's failure to do so is an unreasonable application of law");
248. Mahler v. Kaylo, 537 F.3d 494, 500, 503 (5th Cir. 2008) (granting relief on a Brady v. Maryland claim and noting that state court's rejection of claim had "focused solely and unreasonably upon" an issue that "was inapposite to the question at the heart of [the case]");
249. Goodman v. Bertrand, 467 F.3d 1022, 1030-31 (7th Cir. 2006) (granting relief on an ineffective assistance of counsel claim after finding, inter alia, that, "[i]n weighing each [of trial counsel's] error[s] individually, the Wisconsin Court of Appeals overlooked a pattern of ineffective assistance and unreasonably applied Strickland [v. Washington]").
250. See, e.g., Rhode v. Hall, 582 F.3d 1273, 1281 (11th Cir. 2009) ("[T]he state habeas court adopted verbatim the State's proposed order as its own.");
251. Kittelson v. Dretke, 426 F.3d 306, 314 (5th Cir. 2005) ("[T]he state habeas court adopted, verbatim, respondent's proposed findings of fact, finding no basis for habeas relief.");
252. Young v. Catoe, 205 F.3d 750, 755 n.2 (4th Cir. 2000) (noting that the state postconviction court adopted "almost verbatim the state's legal memorandum in opposition to [the petitioner's] Application for Post-Conviction Relier).
253. See, e.g, Wade v. Herbert, 391 F.3d 135, 142 (2d Cir. 2004) ("Because the [New York] Appellate Division gave no explanation beyond saying that the claim was 'without merit,' we cannot know the exact basis of its reasoning.");
254. Reid v. True, 349 F.3d 788, 799 (4di Cir. 2003) (describing the analysis to be undertaken "when the state court has not articulated the rationale for its decision");
255. Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000) ("Our examination of the state court's decision is impeded in this case because no rationale for its conclusion was supplied.");
256. see also Monique Anne Gaylor, Note, Postcards from the Bench: Federal Habeas Review of Unarticulated State Court Decisions, 31 HOFSTRA L. REV. 1263, 1285 (2003) (arguing that summary state court dismissals are not adjudications on the merits).
257. See Hoffmann & King, supra note 18, at 846 ("Suspension Clause jurisprudence is not well developed.").
258. Id.
259. 2 See Artuz v. Bennett, 531 U.S. 4 (2000) (construing § 2244(d)(2)'s "properly filed" clause);
260. (Michael) Williams v. Taylor, 529 U.S. 420 (2000) (construing § 2254(e)(2)'s lim-ited prohibition against federal evidentiary hearings);
261. (Terry) Williams v. Taylor, 529 U.S. 362 (2000) (construing § 2254(d)'s limitation on relief).
262. See Pinholster v. Ayers, 590 F.3d 651 (9th Cir. 2009), cert, granted sub nom.
263. Cullen v. Pinholster, 130 S. Ct. 3410 (2010) (granting certiorari to determine, inter alia, whether 28 U.S.C. § 2254(d)(1) analysis accommodates facts not considered by the state court during prior adjudication);
264. Kholi v. Wall, 582 F.3d 147 (1st Cir. 2009), cert, granted, 130 S. Ct. 3274 (2010) (granting certiorari to determine whether a state court motion for sentence reduction constitutes an application for State postconviction or other collateral review for purposes of 28 U.S.C. § 2244(d)(2));
265. Richter v. Hickman, 578 F.3d 944 (9th Cir. 2009) (en banc), cert, granted sub nom.
266. Harrington v. Richter, 130 S. Ct 1506, 1506-07 (2010) (granting certiorari to determine, inter alia, whether 28 U.S.C. § 2254(d) applies "to a state court's summary disposition of a claim, including a claim under Strickland v. Washington, 466 U.S. 668 (1984)").
267. it is also plausible that the Court could respond to a Suspension Clause challenge to a repeal (or virtual repeal) of § 2254 by holding that the clause only protects the writ of habeas corpus as it stood in 1787. In that event,
268. Mathews v. Eldridge, 424 U.S. 319 (1976), analysis— to which the Court exhibited its commitment in Hamdi v. Rumsfeld, 542 U.S. 507, 528-29 (2004)- would generate litigation indefinitely.
269. See 28 U.S.C. § 2254(e)(2) (2006);
270. (Michael) Williams, 529 U.S. at 437;
271. Keeney v. Tamayo-Reyes, 504 U.S. 1, 7-12 (1992).
272. See, e.g., Lee v. Kemna, 534 U.S. 362, 387 (2002);
273. Brown v. Sirmons, 515 F.3d 1072, 1087 (10th Cir. 2008) ("If the state court did not decide [petitioner's] federal claim on the merits, and the claim is not otherwise procedurally barred, we address the claim de novo and AEDPA deference does not apply." (emphasis omitted)
274. (quoting Harris v. Poppell, 411 F.3d 1189, [1195] (10th Cir. 2005));
275. Lenz v. Washington, 444 F.3d 295, 302 (4th Cir. 2006) (rejecting respondent's invocation of state procedural bar and stating that, "[b]ecause there is no state court judgment on the merits, we review de novo");
276. Graves v. Dredce, 442 F.3d 334, 339 (5th Cir. 2006) (holding that a state court's rejection of petitioner's claim as an abuse of the writ did not constitute an adjudication on the merits and that, as a result, 28 U.S.C. § 2254(d) was inapplicable).
277. 67See, e.g, Rompilla v. Beard, 545 U.S. 374, 390 (2005);
278. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003);
279. (Terry) Williams, 529 U.S. at 407-13.
280. See, e.g., Luna v. Cambra, 306 F.3d 954, 960-61 (9th Cir. 2002) ("When we are confronted with a state court's 'postcard denial,' ... we have nothing to which we can defer. Accordingly, we must conduct an independent review of the record ... to determine whether the state court clearly erred in its application of controlling federal law." (footnote omitted) (citation omitted) (internal quotations omitted));
281. Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir. 1998) ("Where, as here, there is no indication of how the state court applied federal law to the facts of a case, a federal court must necessarily perform its own review of the record." (citation omitted));
282. see also cases cited supra note 159.
283. Hoffmann & King, supra note 18, at 823-24.
284. 70 Id. at 828.
285. 71 Id. at 829.
286. 72 Id. at 831.
287. 73 Id. at 833.
288. 74 See id. at 834.
289. Id. at 823.
290. 6 See, e.g., id. at 793 ("The present approach is a failure because it wastes federal resources . . . .");
291. id. at 796 ("[W]e should no longer support a wasteful system that relies on duplicative posttrial litigation ....");
292. id. at 812 ("And if the state courts are doing a good job on their own, independent of any habeas deterrence, then habeas is a colossal waste of resources.");
293. id. at 818 ("The resources now wasted on reviewing and rejecting claims of constitutional error in habeas litigation should be redeployed ....");
294. id. at 823 ("The point of reducing wasteful federal habeas litigation is not simply to conserve scarce resources.");
295. id. at 834 ("[A]H states currendy endure the same wasteful habeas litigation in federal court ....");
296. id. at 847 ("This Essay addresses . . . the federal government's failure to develop an alternative to wasteful federal habeas review as a way to enforce constitutional criminal procedure rights in state criminal cases ....").
297. 77 Id. at 833-34.
298. 78 Id. at 834 (emphasis omitted).
299. 79 Hoffmann and King justify this by observing that [a]t least when it comes to noncapital cases, so little benefit would be lost by cutting back on habeas review, and so much more could be gained by any shift of those resources toward encouraging and supporting improvements in state defense representation, that we need not adopt a quid pro quo arrangement that could pose an unwarranted political barrier to state reform efforts. Id. That conception, however, is a shortsighted approach to engineering a set of conditions likely to spur state-based reforms. For while Hoffmann and King may deem habeas to be worthless as a remedy, the prospect of its elimination as a consumer of resources could still be seen by the states as something worth paying for in the currency of reform, 180
300. Id.
301. 42 U.S.C. § 14163e(b) (2006).
302. 82 See generally Reauthorization of the Innocence Protection Act: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 111th Cong. (2009) (statement of Lynn Overmann, Senior Advisor, Office of Justice Programs).
303. See, e.g., Editorial, Florida Can't Cut Comers in Death Cases, ST. PETERSBURG TIMES, Nov. 8, 2008, at 12A (describing "years of failed attempts by the Legislature and former Gov. Jeb Bush to constrain the amount of effort death penalty attorneys may exert on behalf of their clients" and noting U&the;iat former Gov. Bush's partial privatization of capital postconviction representation had led to missed federal limitations periods "[i]n at least 25 [Florida capital] cases") ;
304. James C. McKinley, Jr., Texas Governor Defends Shakeup of Commission, N.Y. TIMES, Oct 2, 2009, at A16 (describing Texas governor Rick Perry's replacement of diree members of Texas Forensic Science Commission "just 48 hours before the commission was to hear testimony" indicating that Cameron T. Willingham had been executed for a crime he did not commit).
305. 84 See 28 U.S.C. § 2263 (2006).
306. See id. § 2264.
307. See id. § 2266.
308. 7 See id. §2261.
309. 88 See, e.g., Hall v. Luebbers, 341 F.3d 706, 712 (8di Cir. 2003) (rejecting Missouri's claim of opt-in status);
310. Spears v. Stewart, 283 F.3d 992, 1019 (9th Cir. 2002) (holding that the state's failure to comply with Arizona's facially sufficient Chapter 154 mechanism prevented it from benefiting from the opt-in provisions);
311. Kreutzer v. Bowersox, 231 F.3d 460, 462 (8th Cir. 2000) (holding that Missouri does not qualify under Chapter 154);
312. Baker v. Corcoran, 220 F.3d 276, 285-87 (4th Cir. 2000) (affirming the district court's rejection of Maryland's claim of opt-in status);
313. Tucker v. Catoe, 221 F.3d 600, 604-05 (4th Cir. 2000) (rejecting South Carolina's claim of opt-in status);
314. Perillo v. Johnson, 205 F.3d 775, 793 (5th Cir. 2000) ("Texas has not opted into the separate provisions of AEDPA making the statute retroactive for death penalty cases ....");
315. Ashmus v. Woodford, 202 F.3d 1160,1170 (9di Cir. 2000) (holding that California failed to meet the opt-in requirements of Chapter 154);
316. Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997) (same, as to Texas);
317. Brown v. Puckett, No. 3.01CV197-D, 2003 WL 21018627, at, 2-3 (N.D. Miss. Mar. 12, 2003) (same, as to Mississippi);
318. Kasi v. Angelone, 200 F. Supp. 2d 585, 592-93 n.2 (E.D. Va. 2002) (same, as to Virginia);
319. Smith v. Anderson, 104 F. Supp. 2d 773, 786 (S.D. Ohio 2000) (same, as to Ohio);
320. Ward v. French, 989 F. Supp. 752, 757 (E.D.N.C. 1997) (same, as to North Carolina), affd, 165 F.3d 22 (4th Cir. 1998);
321. Williams v. Cain, 942 F. Supp. 1088, 1092 (W.D. La. 1996) (same, as to Louisiana), aff'd in part, rev'd in part on other grounds, 125 F.3d 269 (5th Cir. 1997);
322. Ryan v. Hopkins, No. 4:CV95-3391, 1996 WL 539220, at, 3-4 (D. Neb. July 31, 1996) (concluding that Nebraska's framework for appointing counsel in postconviction capital cases was not in compliance with 28 U.S.C. § 2261(b)-(c));
323. Austin v. Bell, 927 F. Supp. 1058, 1062 (M.D. Tenn. 1996) (same, as to Tennessee).
324. 89 Arizona came the closest to achieve this status. While its mechanism for selecting and compensating postconviction counsel was found to be facially satisfactory in one case, a lenguiy delay in the appointment of counsel prevented it from achieving "opt-in" status.
325. See Spears, 283 F.3d at 996-97.
326. After a decade in which no state demonstrated the capacity to satisfy the modest requirements of the 1996 statutes, Congress amended the "opt-in" scheme as part of the Patriot Improvement and Reauthorization Act of 2005 (PIRA), Pub. L. No. 109-177, 120 Stat 192 (2006). Among other changes, PIRA lowered the bar by stripping federal courts of authority to determine a state's opt-in status and instead conferring both that authority and the power to promulgate regulations governing opt-in qualification and procedures in the Attorney General.
327. See 28 U.S.C. § 2265. To date, no final regulations have been implemented, and the entire scheme has effectively been placed on indefinite hold.
328. or a discussion of this issue, see, for example, Eric J. Miller, Drugs, Courts, and the New Penology, 20 STAN. L. & POL'Y REV. 417, 431-36, 444-50 (2009);
329. John F. Pfaff, The Empirics of Prison Growth: A Critical Review and Path Forward, 98 J. CRIM. L. & CRIMINOLOGY 547, 550-65 (2008);
330. Martin H. Pritikin, Is Prison Increasing Crime?, 2008 WIS. L. REV. 1049, 1102-08;
331. Marsha Weissman, Aspiring to the Impracticable: Alternatives to Incarceration in the Era of Mass Incarceration, 33 N.Y.U. REV. L. & Soc. CHANGE 235, 247-64 (2009);
332. see also Editorial, California's Crowded Prisons, N.Y. TIMES, Feb. 14, 2009, at A22;
333. Editorial, Racial Inequity and Drug Arrests, N.Y. TIMES, May 10, 2008, at A18;
334. Ben Trachtenberg, Incarceration Policy Strikes Out, A.B.A. J., Feb. 2009, at 66.
335. 91 SeiWALMSLEY, supra note 109.
336. See, e.g., Laura A. Bischoff, Prison Labor Saves Taxpayers Money, DAYTON DAILY NEWS, Jan. 31, 2010, at Al (providing statistics on how prison labor correlates to lower rates of recidivism); Michael Rodifeld, The California Fix: Cuts Dim Inmates'Hope for New Lives, L.A..
337. TIMES, Oct. 17, 2009, at A1 (explaining that programs to train prisoners help ready them for life after release from prison).
338. 93See, e.g., William D. Bales et al., Substance Abuse Treatment in Prison and Community Reentry: Breaking the Cycle of Drugs, Crime, Incarceration, and Recidivism?, 13 GEO. J. ON POVERTY L. & POL'Y 383, 385-89 (2006);
339. Andrew D. Leipold, Recidivism, Incapacitation, and Criminal Sentencing Policy, 3 U. ST. THOMAS LJ. 536, 541-50 (2006);
340. Christopher Stafford, Note, Finding Work: How to Approach the Intersection of Prisoner Reentry, Employment, and Recidivism, 13 GEO. J. ON POVERTY L. & POL'Y 261, 261-65 (2006).
341. 94 Contrary to popular belief, most prisoners would jump at an opportunity for employment, even at wages far below those paid to free workers. Between us, we have met and talked with scores of inmates, and otfier than those too mentally or physically ill to work, we have yet to find one who would rather spend the day in his cell than get up and do something engaging or productive.
342. 433 U.S. 72 (1977).
343. 96 See Harris v. Reed, 489 U.S. 255, 266 (1989).
344. 97 See Lee v. Kemna, 534 U.S. 362, 387 (2002) (holding that no adequate state ground barred federal habeas review).
345. 98 SeeAke v. Oklahoma, 470 U.S. 68, 75 (1985) (explaining that the state court's application of procedural bar does not preclude federal merits review when the state court ruling involved consideration of a federal question).
346. 99 See Ford v. Georgia, 498 U.S. 411, 423-24 (1991)
347. (quoting James v. Kentucky, 466 U.S. 341, 348-51 (1984)).
348. See Johnson v. Mississippi, 486 U.S. 578, 587 (1988);
349. James, 466 U.S. at 348-49. "Consistency" analysis can be particularly labor intensive, as if often involves gathering and carefully examining multiple state court decisions referencing or applying either the procedural rule at issue or exceptions to that rule, tabulating application of the rule and the exceptions, and charting the state courts' trends and practices over time.
350. See, e.g., Brief for Respondent at 15-56,
351. Beard v. Kindler, 130 S. Ct 612 (2009) (No. 08-992) (detailing development and application of Pennsylvania's fugitive forfeiture rule in support of argument that rule was not adequate to foreclose merits review in federal habeas proceeding).
352. See Cone v. Bell, 129 S. Ct 1769, 1778 (2009).
353. SeeSchlup v. Delo, 513 U.S. 298, 326 (1995).
354. According to the 2007 study, "13.3% of 1986 non-transferred terminated cases, and 19.4% of non-transferred terminated cases with claims information [ ] included a [district court] ruling that a claim was defaulted." KING ET AL., supra note 19, at 48. The study report does not indicate how many of these cases included a finding that merits review was appropriate based on a showing of "cause and prejudice."
355. See 28 U.S.C. § 2254(a) (2006) ("The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.").
356. See Woodford v. Garceau, 538 U.S. 202, 206 (2003).
357. JOHN SCALIA, PRISONER PETITIONS FILED IN U.S. DISTRICT COURTS, 2000, WITH TRENDS 1980-2000, at 1 (2002) ("The 1996 Antiterrorism and Effective Death Penalty Act appears to have resulted in an increase in the number of habeas corpus petitions filed by State prison inmates. State prison inmates filed 50% more habeas corpus petitions during 2000 (21,345) than during 1995 (13,627).").
358. See Holland v. Florida, 130 S. Ct 2549 (2010);
359. Jimenez v. Quarterman, 129 S. Ct 681 (2009);
360. Allen v. Siebert, 552 U.S. 3 (2007) (per curiam);
361. Lawrence v. Florida, 549 U.S. 327 (2007);
362. Hill v. McDonough, 547 U.S. 573 (2006);
363. Day v. McDonough, 547 U.S. 198 (2006);
364. Evans v. Chavis, 546 U.S. 189 (2006);
365. Mayle v. Felix, 545 U.S. 644 (2005);
366. Dodd v. United States, 545 U.S. 353 (2005);
367. Pace v. DiGuglielmo, 544 U.S. 408 (2005);
368. Johnson v. United States, 544 U.S. 295 (2005);
369. Rhines v. Weber, 544 U.S. 269 (2005);
370. Pliler v. Ford, 542 U.S. 225 (2004);
371. Clay v. United States, 537 U.S. 522 (2003);
372. Carey v. Saffold, 536 U.S. 214 (2002);
373. Duncan v. Walker, 533 U.S. 167 (2001);
374. Artuz v. Bennett, 531 U.S. 4 (2000).
375. See Wall v. Kholi, 130 S. Ct. 3274 (2010) (granting certiorari to consider whether state court motion for sentence reduction constitutes an "application for State post-conviction or other collateral review" for purposes of 28 U.S.C. § 2244(d)(2)).
376. See 28 U.S.C. § 2244(d)(1)(A). This inquiry can frequendy be challenging.
377. See, e.g., Jimenez, 129 S. Ct at 686-87 (analyzing effect on "finality" of state court's allowance of out-of-time direct appeal);
378. Wilson v. Cain, 564 F.3d 702, 705-06 (5th Cir. 2009) (examining effect on finality of rehearing motion filed under LA. SUP. CT. R. IX, § 6);
379. McCloud v. Hooks, 560 F.3d 1223, 1229-30 (11th Cir. 2009) (noting that Alabama law provided "no clear answer" to whether counts merged at trial level pursuant to ALA. R. CRIM. P. 13.3(C) should be deemed to share common finality date for purposes of federal limitations period calculation).
380. See 28 U.S.C. § 2244(d)(2). Determining what does and does not constitute an "application for state post-conviction or other collateral review" can also be a difficult task.
381. See, e.g., Wion v. Quarterman, 567 F.3d 146, 147-48 (5th Cir. 2009) (reversing a grant of relief after determining that petitioner's "request for special review" of a parole-related challenge did not qualify for tolling under § 2244(d) (2));
382. Hutson v. Quarterman, 508 F.3d 236, 239-40 (5th Cir. 2007) (per curiam) (holding that "a motion to test DNA evidence under Texas Code of Criminal Procedure article 64 constitutes 'other collateral review' and thus tolls the AEDPA's one-year limitations period under 28 U.S.C. § 2244(d)(1)");
383. Hartmann v. Carroll, 492 F.3d 478, 484 (3d Cir. 2007) (holding that "a motion for sentence reduction properly filed pursuant to Delaware Superior Court Criminal Rule 35(b) does not have the effect of tolling the limitations period set forth in 28 U.S.C. § 2244(d)(1)").
384. See 28 U.S.C.§ 2244(d)(2);
385. Pace, 544 U.S. at 415-17;
386. Artuz, 531 U.S. at 8-10;
387. see also, e.g. Chaffer v. Prosper, 542 F.3d 662, 662-63 (9th Cir. 2008) (certifying questions relevant to the "properly filed" analysis to California Supreme Court);
388. Walker v. Norris, 436 F.3d 1026, 1032 (8th Cir. 2006) (finding that petitioner's noncompliance with the "verification" requirement of ARK. R. CRIM. P. 37 rendered state postconviction application not "properly filed").
389. See 28 U.S.C. § 2244(d)(2);
390. Carey, 536 U.S. at 219-21.
391. 28 U.S.C. § 2244(d)(1)(D).
392. Id. § 2244(d)(1)(C);
393. see Dodd v. United States, 545 U.S. 353, 359-60 (2005).
394. See Lawrence v. Florida, 549 U.S. 327, 336 (2007) ("We have not decided whether § 2244(d) allows for equitable tolling.");
395. Urcinoli v. Cathel, 546 F.3d 269, 276-78 (3d Cir. 2008) (granting equitable tolling after analyzing prior proceedings in detail and considering the unique circumstances presented by petitioner);
396. Downs v. McNeil, 520 F.3d 1311, 1322-25 (11th Cir. 2008) (vacating the district court's order dismissing the petition as untimely and remanding for an evidentiary hearing on petitioner's contention that misconduct by appointed state postconviction counsel warranted equitable tolling);
397. Fleming v. Evans, 481 F.3d 1249, 1256-57 (10th Cir. 2007) (similar);
398. Roy v. Lampert, 465 F.3d 964, 967, 975-75 (9th Cir. 2006) (vacating dismissals and remanding consolidated cases for evidentiary hearings on petitioners' allegations that temporary transfers to a private correctional facility interfered with their ability to file timely federal habeas petitions).
399. See 28 U.S.C. § 2254(d).
400. Id.
401. For an empirical examination of § 2254(d)'s effects on relief rates, see Blume, supra note 39, at 285-87.
402. The contours of such fights can vary widely, depending upon such factors as whether the state court issued a reasoned decision, see, e.g., Fleming v. Metrish, 556 F.3d 520, 531-32 (6th Cir. 2009) (showing disagreement among the panel over whether the state court's mistaken treatment of petitioner's claim as procedurally barred and the resulting review for plain error constituted an "adjudication on the merits");
403. Wright v. Angelone, 151 F.3d 151, 156-57 (4th Cir. 1998) (rejecting the contention that a summary state court denial did not constitute an "adjudication] on the merits");
404. suggested the possibility of an independent procedural basis for denying relief, see, e.g., Ryan v. Miller, 303 F.3d 231, 245-46 (2d Cir. 2002) (determining § 2254(d)'s applicability where the state court summarily rejected multiple claims as "either unpreserved for appellate review or without merit");
405. or acknowledged the federal constitutional basis for the claim, see, e.g'., DiBenedetto v. Hall, 272 F.3d 1, 6 (1st Cir. 2001) ("If the state court has not decided the federal constitutional claim (even by reference to state court decisions dealing with federal constitutional issues), then we cannot say that the constitutional claim was 'adjudicated on the merits' within the meaning of § 2254 ....").
406. 28 U.S.C. § 2254(d)(1);
407. see, e.g., Wright v. Van Patten, 552 U.S. 120, 124-25 (2008) (per curiam);
408. Panetti v. Quarterman, 551 U.S. 930, 948-49 (2007);
409. Carey v. Musladin, 549 U.S. 70, 72 (2006);
410. Robinson v. Ignacio, 360 F.3d 1044, 1055-59 (9th Cir. 2004) (surveying decisions from multiple circuits in an effort to ascertain "clearly established federal law");
411. Newman v. Hopkins, 247 F.3d 848, 852-53 (8th Cir. 2001) (assembling the rule governing petitioner's claim from six different Supreme Court decisions).
412. See Williams v. Taylor, 529 U.S. 362, 410 (2000) ("[A]n unreasonable application of federal law is different from an incorrect application of federal law.").
413. 28 U.S.C. § 2254(d)(1);
414. Rompilla v. Beard, 545 U.S. 374, 389 (2005) (finding the state court's rejection of petitioner's ineffective assistance of counsel claim objectively unreasonable because it "failfed] to answer the considerations we have set out");
415. Williams, 529 U.S. at 405-09;
416. see also, e.g., McGahee v. Ala. Dep't of Corr., 560 F.3d 1252, 1265-66 (11th Cir. 2009) ("Because the [state] court did not review 'all relevant circumstances,' . . . the decision [rejecting prisoner's Batson v. Kentucky claim] was an unreasonable application of clearly established federal law-");
417. Harris v. Alexander, 548 F.3d 200, 206 (2d Cir. 2008)
418. (granting relief on a jury-instruction claim where "the state decisions upholding [petitioner's] conviction were egregiously at odds with the standards of due process propounded by the Supreme Court"); Norton v. Spencer, 351 F.3d 1, 8 (1st Cir. 2003) (granting relief on a Brady v. Maryland claim after finding state court's denial of relief had been "utterly inconsistent with Brady")
419. 28 U.S.C. § 2254(d)(2);
420. Miller-El v. Dretke, 545 U.S. 231, 266 (2005);
421. Wiggins v. Smith, 539 U.S. 510, 528 (2003);
422. see also, e.g'., Julian v. Bartley, 495 F.3d 487, 494 (7th Cir. 2007) (finding, in connection with a grant of relief on petitioner's ineffective assistance of counsel claim, that the state court's factual determination was "against the clear weight of the evidence and, therefore, an objectively unreasonable determination of undisputed facts");
423. Berryman v. Morton, 100 F.3d 1089,1105 (3d Cir. 1996) (affirming a grant of relief on an ineffective assistance of counsel claim and observing that, "even applying the most conceivably deferential standard" to the state court's determinations, those determinations were unreasonable in light of the evidence).
424. Teague v. Lane, 489 U.S. 288 (1989), is also a good candidate for reform. Prior to AEDPA, Teague wrought much of the same mischief— and consumed much of the same time-that § 2254(d) has now taken over. With proper staffing, existing federal public defender or community defender offices could absorb much of the work. A number of these offices already house units specializing in the litigation of capital habeas cases. The knowledge and experience these offices' personnel have accumulated in the capital context would transfer well to an expansion of services to noncapital clients.
425. King & Hoffmann, supra note 22, at 15.
426. Id. at 10 (emphasis omitted).
427. Rouse v. Lee, 339 F.3d 238, 257-58 (4th Cir. 2003) (en banc) (Motz, J., dissenting), cert, denied, 541 U.S. 905 (2004).
428. Id. at 249 (majority opinion).
429. Rouse's case is capital, and although Hoffmann and King's proposal would not eliminate habeas from capital cases, it does nothing to help Rouse. Moreover, Rouse's case is a good illustration of why the capital/noncapital distinction is untenable; his claim, like most of the claims raised in capital cases, is one that could easily arise in a noncapital case.
430. King & Hoffmann, supra note 22, at 15.