Habeas and the Roberts court

University of Chicago Law Review

Volumn 81, Issue 2, 2014, Pages 519-608

  Huq, Aziz Z ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84904334201     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (310)

1. See Brandon L. Garrett and Lee Kovarsky, Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation 134 (Foundation 2013). This Article largely concerns challenges to state criminal convictions under 28 USC § 2254, which make up the lion's share of Supreme Court jurisprudence and which thereby determine the general trajectory of the doctrine.
2. Stat Pack for October Term 2012 *6 (SCOTUSblog June 27, 2013), online at http://scotusblog.com/wp-content/uploads/2013/06/SCOTUSblog-Stat-Pack- OT12.pdf (visited May 21, 2014).
3. Stat Pack for October Term 2011 *6 (SCOTUSblog Sept 25, 2012), online at http://sblog.s3.amazonaws.com/wp-content/uploads/2013/05/SCOTUSblog- Stat-Pack-OT11-Updated1.pdf (visited May 21, 2014);
4. Stat Pack for October Term 2010 *5 (SCOTUSblog June 28, 2011), online at http://sblog.s3.amazonaws.com/wp-content/uploads/2011/06/SB-OT10-stat- pack-final.pdf (visited May 21, 2014).
5. See Eve Brensike Primus, A Structural Vision of Habeas Corpus, 98 Cal L Rev 1, 16-23 (2010) (documenting structural problems in state criminal-justice systems).
6. This has been documented in a score of reports over the past decade. See, for example, Robert C. Boruchowitz, Malia N. Brink, and Maureen Dimino, Minor Crimes, Massive Waste: The Terrible Toll of America's Broken Misdemeanor Courts *14-17 (National Association of Criminal Defense Lawyers Apr 2009), online at http://www.nacdl.org/public.nsf/defenseupdates/misdemeanor/$FILE/ Report.pdf (visited May 21, 2014);
7. National Right to Counsel Committee, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel *49-99 (Constitution Project Apr 2009), online at http://www.constitutionproject.org/pdf/139.pdf (visited May 21, 2014);
8. American Bar Association Standing Committee on Legal Aid and Indigent Defendants, Gideon's Broken Promise: America's Continuing Quest for Equal Justice *7-28 (ABA Dec 2004), online at http://www.americanbar.org/ content/dam/aba/administrative/legal-aid-indigent-defendants/ ls-sclaid-def-bp-right-to-counsel-in-criminal-proceedings.authcheckdam.pdf (visited May 21, 2014).
9. Joseph L. Hoffmann and Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 NYU L Rev 791, 816 (2009).
10. Hoffmann and King have also articulated their argument in book form. See generally Nancy J. King and Joseph L. Hoffmann, Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ (Chicago 2011).
11. See id at 818-23. Their analysis has been powerfully challenged. See, for example, Eve Brensike Primus, Review, A Crisis in Federal Habeas Law, 110 Mich L Rev 887, 892- 908 (2012) (noting the conceptual incoherence and ineffectualness of reform proposals);
12. John H. Blume, Sheri Lynn Johnson, and Keir M. Weyble, In Defense of Noncapital Habeas: A Response to Hoffmann and King, 96 Cornell L Rev 435, 439 (2011) (arguing that Hoffmann and King's assessment "underestimates the importance of rectifying cases of horrendous error and rests on a set of assumptions that we believe do not comport with the reality of contemporary postconviction litigation").
13. Samuel R. Wiseman, Habeas after Pinholster, 53 BC L Rev 953, 959 (2012).
14. See also Lee Kovarsky, Original Habeas Redux, 97 Va L Rev 61, 80 (2011) (noting the "poor drafting" of the habeas statute).
15. See also Larry Yackle, AEDPA Mea Culpa, 24 Fed Sent Rptr (Vera) 329, 329 (2012) (invoking "the colossal mess that federal habeas corpus has become");
16. Justin F. Marceau, Challenging the Habeas Process Rather Than the Result, 69 Wash & Lee L Rev 85, 98-104 (2012).
17. See Douglas G. Baird, Blue Collar Constitutional Law, 86 Am Bankr L J 3, 3 (2012).
18. See John H. Blume, AEDPA: The "Hype" and the "Bite," 91 Cornell L Rev 259, 262 (2006) ("While the Court maintains that the scope of the writ is primarily for Congress to determine, it does not, in my view, really believe that to be true. . [It] has assumed a fair share of the responsibility for determining the scope of habeas review, or how much habeas is enough.").
19. The Arrovian paradox concerns the instability of collective decisions due to the irreducible risk of cycling among outcomes. See Frank E. Easterbrook, Ways of Criticizing the Court, 95 Harv L Rev 802, 815-17, 823-31 (1982).
20. The doctrinal paradox arises when a collective forms a judgment on a single issue based on numerous subissues, and different ultimate results are obtained by a single allor- nothing vote versus seriatim issue-by-issue voting over subissues. See Christian List, The Probability of Inconsistencies in Complex Collective Decisions, 24 Soc Choice & Welfare 3, 4-5 (2005).
21. See generally, for example, Ryan v Schad, 133 S Ct 2548 (2013) (per curiam);
22. Nevada v Jackson, 133 S Ct 1990 (2013) (per curiam);
23. Marshall v Rodgers, 133 S Ct 1446 (2013) (per curiam);
24. Johnson v Williams, 133 S Ct 1088 (2013);
25. Martel v Clair, 132 S Ct 1276 (2012);
26. Greene v Fisher, 132 S Ct 38 (2011).
27. For a rare instance of a per curiam decision in favor of a habeas petitioner, see Porter v McCollum, 130 S Ct 447 (2009) (per curiam).
28. See Schlup v Delo, 513 US 298, 326-27 (1995). See also text accompanying notes 55-65 for further discussion.
29. See generally Aziz Z. Huq, What Good Is Habeas?, 26 Const Commen 385 (2010).
30. See also Aziz Z. Huq, Forum Choice for Terrorism Suspects, 61 Duke L J 1415 (2012) (analyzing the choice between Article III and Article I forums in national security lens using institutional design tools from the political science and complex-systems literatures).
31. I use the metaphor of two tracks in a somewhat different way from Joseph L. Hoffmann and William J. Stuntz, Habeas after the Revolution, 1993 S Ct Rev 65, 69.
32. Hoffmann and Stuntz deploy the metaphor not in a descriptive fashion, but in a normative manner in order to propose a bifurcation in the treatment of habeas cases depending on whether innocence is at issue. As I explain in Part II.B, I do not believe that the Court is sorting cases in order to identify likely innocent petitioners, as Hoffmann and Stuntz suggest that they should. Further, I should note that I use the term "model" to refer to a cluster of interlocking doctrinal rules that have a constant net effect on outcomes. My usage of the term hence differs from the usage of Richard Fallon, who deploys the term to reference "intellectual constructs, formed by a synthesis of familiar arguments and views." Richard H. Fallon Jr, The Ideologies of Federal Courts Law, 74 Va L Rev 1141, 1143 n 3 (1988).
33. See generally Rachel E. Barkow, The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity, 107 Mich L Rev 1145 (2009).
34. See Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv L Rev 441, 452-53 (1963).
35. See Murray v Carrier, 477 US 478, 491-92 (1986) (expressing concern about petitioners "sandbagging" prosecutors).
36. John C. Jeffries Jr, The Liability Rule for Constitutional Torts, 99 Va L Rev 207, 209 (2013).
37. Two important cases were handed down in May 2013-too recently to have an observable impact on the courts of appeals. See generally McQuiggin v Perkins, 133 S Ct 1924 (2013);
38. Trevino v Thaler, 133 S Ct 1911 (2013).
39. See Ex Parte Bollman and Ex Parte Swartwout, 8 US (4 Cranch) 75, 94-95 (1807).
40. But see Eric M. Freedman, Habeas Corpus: Rethinking the Great Writ of Liberty 20-38 (NYU 2003) (arguing that Marshall erred in requiring a statutory basis for a federal court's exercise of habeas jurisdiction).
41. Fay v Noia, 372 US 391, 415-16 (1963).
42. See Lewis Mayers, The Habeas Corpus Act of 1867: The Supreme Court as Legal Historian, 33 U Chi L Rev 31, 35-38 (1965) (criticizing the use of legislative history in Fay v Noia).
43. See Larry W. Yackle, The Habeas Hagioscope, 66 S Cal L Rev 2331, 2350-76, 2416-23 (1993).
44. Lee Kovarsky, AEDPA's Wrecks: Comity, Finality, and Federalism, 82 Tulane L Rev 443, 445 (2007) ("Given what we know about AEDPA's legislative history, there is little support for the argument that courts should interpret AEDPA's ambiguities with any particular purposes in mind.").
45. See also Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Federal Habeas Corpus Cases, 77 NYU L Rev 699, 705 (2002) ("AEDPA is replete with ambiguities and apparent inconsistencies [that] are quite obviously the products of the haste with which the statute was drafted and the emotional context in which it was debated and enacted.") (citation omitted). Efforts to explain habeas jurisprudence in light of a single congressional intent, accordingly, are futile.
46. Consider, for example, Justice Thomas's plurality opinion for himself, Chief Justice Rehnquist, and Justice Scalia in Wright v West, 505 US 277, 288-95 (1992), which argued for something less than de novo review of state-court rulings on federal law. Justice Thomas's conclusion anticipated the standard articulated in 28 USC § 2254(d)(1).
47. On the supervisory power of the Supreme Court, see McNabb v United States, 318 US 332, 340 (1943) (asserting such authority).
48. See generally Cullen v Pinholster, 131 S Ct 1388 (2011);
49. Harrington v Richter, 131 S Ct 770 (2011).
50. A 2009 study led by Professor Nancy King concluded that 58 percent of noncapital habeas cases in a sample of federal court litigation were dismissed entirely on procedural grounds. See Nancy J. King, Fred L. Cheesman II, and 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 and Effective Death Penalty Act of 1996 *45 (2007), online at https://www.ncjrs.gov/pdffiles1/nij/grants/219559.pdf (visited May 21, 2014).
51. See, for example, O'Sullivan v Boerckel, 526 US 838, 839 (1999). The state can also expressly waive its exhaustion defense. 28 USC § 2254(b)(3).
52. See Ex parte Royall, 117 US 241, 251 (1886).
53. 28 USC § 2254(b)(1)(A). See also Rose v Lundy, 455 US 509, 515-16 (1982) (discussing codification history of exhaustion doctrine).
54. Lundy, 455 US at 519-20.
55. See Rhines v Weber, 544 US 269, 277 (2005) (holding that "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court"). District courts also need not warn petitioners of the consequences of withdrawing a petition for exhaustion purposes.
56. See Pliler v Ford, 542 US 225, 231 (2004).
57. See Coleman v Thompson, 501 US 722, 753-54 (1991) (elaborating the proceduraldefault rule).
58. See 28 USC § 2244(b)(1)-(2). The term "second or successive," however is a "term of art," which does not encompass all cases within its literal compass. Magwood v Patterson, 130 S Ct 2788, 2797 (2010)
59. quoting Slack v McDaniel, 529 US 473, 486 (2000). See also text accompanying notes 119-23 for further discussion of the exceptions.
60. Coleman, 501 US at 753-57.
61. Murray v Carrier, 477 US 478, 495-96 (1986);
62. Schlup, 513 US at 326-27;
63. Lee Kovarsky, Death Ineligibility and Habeas Corpus, 95 Cornell L Rev 329, 336-37 (2010) (exploring the history of the fundamental-miscarriage-of- justice exception).
64. Carrier, 477 US at 488.
65. See Randy Hertz and James S. Liebman, 2 Federal Habeas Corpus Practice and Procedure § 26.3[c] at 1507-16 (Lexis 6th ed 2011) (citing various formulations of the prejudice test).
66. Carrier, 477 US at 488.
67. See also Coleman, 510 US at 754.
68. For the standard's canonical formulation, see generally Strickland v Washington, 466 US 668 (1984).
69. See Maples v Thomas, 132 S Ct 912, 922 (2012) ("Negligence on the part of a prisoner's postconviction attorney does not qualify as 'cause.'"), quoting Coleman, 510 US at 753.
70. See Keeney v Tamayo-Reyes, 504 US 1, 7-8 (1992).
71. A harmless error threshold also constrains habeas relief, although in practice rarely seems to bite. See Brecht v Abrahamson, 507 US 619, 637 (1993) (holding that habeas relief will issue only when an error has "a substantial and injurious effect" on the jury verdict).
72. Larry W. Yackle, Federal Evidentiary Hearings under the New Habeas Corpus Statute, 6 BU Pub Int L J 135, 144 (1996).
73. See Eve Brensike Primus, Effective Trial Counsel after Martinez v. Ryan: Focusing on the Adequacy of State Procedures, 122 Yale L J 2604, 2609 (2013).
74. Ryan v Gonzales, 133 S Ct 696, 708 (2013).
75. In Greene v Fisher, 132 S Ct 38 (2011), the Court extended Pinholster by holding that the "clearly established" federal law relevant to the § 2254(d)(1) inquiry encompassed only decisions handed down when the state court ruled, rather than when that ruling became final. Id at 44-45, citing § 2254(d)(1).
76. See also Amy Knight Burns, Note, Counterfactual Contradictions: Interpretive Error in the Analysis of AEDPA, 65 Stan L Rev 203, 228-30 (2013) (analyzing Greene).
77. "[I]n California, upwards of 97%" of state postconviction litigation ends with a summary disposition. Matthew Seligman, Note, Harrington's Wake: Unanswered Questions on AEDPA's Application to Summary Dispositions, 64 Stan L Rev 469, 471 (2012).
78. See Richter, 131 S Ct at 784-85 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.").
79. Richter, 131 S Ct at 786 (adding that only "extreme malfunctions in the state criminal justice system" warrant relief) (citation omitted). It is tolerably clear that Richter has not displaced the Terry Williams rule with respect to the "contrary to" element of § 2254(d)(2). See Metrish v Lancaster, 133 S Ct 1781, 1787 n 2 (2013).
80. "Federal habeas courts defer to state determinations that may in fact never have been made whenever they find a summary, unexplained rejection of a federal claim to be sustainable." Johnson v Williams, 133 S Ct 1088, 1101 (2013) (Scalia concurring).
81. But both Justices later endorsed Richter. See Metrish, 133 S Ct at 1786-87 (Ginsburg);
82. Greene, 132 S Ct at 43-44 (unanimous opinion filed by Justice Scalia relying on Richter).
83. Both Justice Stevens's plurality opinion (joined by Justices Souter, Ginsburg, and Breyer) and Justice O'Connor's controlling concurrence (joined by Justice Kennedy) rejected the Fourth Circuit standard. Terry Williams, 529 US at 376-90, 412-13.
84. See, for example, Young v Conway, 715 F3d 79, 96-97 (2d Cir 2013) (Raggi dissenting) (arguing that Richter did change the applicable standard of review).
85. See also Dorsey v Stephens, 720 F3d 309, 315 (5th Cir 2013) (emphasizing the "fairminded jurists" language in dismissing a claim).
86. See generally Petitioner's Brief on the Merits, Harrington v Richter, No 09-587 (US filed May 10, 2010).
87. Professor Nancy King has recently argued that recent decisions will change little because of inter alia declining prison sentences, plea deals that preclude postconviction review, the absence of feedback effects, and continued fiscal constraints. See Nancy J. King, Enforcing Effective Assistance after Martinez, 122 Yale L J 2428, 2449-55 (2013).
88. House v Bell, 547 US 518, 554 (2006).
89. See also Schlup, 513 US at 327.
90. The habeas statute of limitation is a creature of Congress. 28 USC § 2244(d)(1). The Court, however, has supplemented the statute with an equitable-tolling exception. Pursuant to that exception, "a [habeas] 'petitioner' is 'entitled to equitable tolling' only if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v Florida, 130 S Ct 2549, 2562 (2010).
91. See also McQuiggin v Perkins, 133 S Ct 1924, 1931 (2013). The Holland standard refers to "extraordinary" interference, language that aligns it closely with the cause-and-prejudice standard employed for procedural defaults.
92. Amy Knight Burns, Note, Insurmountable Obstacles: Structural Errors, Procedural Default, and Ineffective Assistance, 64 Stan L Rev 727, 747 (2012).
93. See also Tom Zimpleman, The Ineffective Assistance of Counsel Era, 63 SC L Rev 425, 447 (2011) ("Ineffective assistance of counsel is a claim that is seemingly specifically tailored to the cause and prejudice test.").
94. Premo v Moore, 131 S Ct 733, 739-40 (2011) (brackets in original)
95. citing Richter, 131 S Ct at 787-88. As one commentator notes, "ineffective assistance of counsel claims came to dominate and define federal habeas litigation [and] changed the structure of state postconviction rules in reaction to the new prominence of ineffective assistance of counsel claims at the federal level." Brandon L. Garrett, Validating the Right to Counsel, 70 Wash & Lee L Rev 927, 929 (2013).
96. See McCleskey v Zant, 499 US 467, 493 (1991) (holding that the cause-and-prejudice standard applied in the abuse-of-the-writ context).
97. See Edwards v Carpenter, 529 US 446, 451-52 (2000);
98. Carrier, 477 US at 489. The Carpenter rule might undermine the capacity for ineffective assistance to ever serve as excusing cause. In effect the rule requires petitioners to raise an excusing ineffective-assistance claim in state postconviction proceedings, thereby creating another state-court ruling (reasoned or not) as a spur to federal court deference. Yet in the sequence of recent cases discussed in this Part, the Court does not seem to view the absence of exhaustion as grounds for not employing ineffective assistance as cause. Rather, the Court's failure to make more of Carpenter is striking.
99. This is an instance of "remedial equilibration," in which there is a "symbiotic relationship" between right and remedy. Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum L Rev 857, 914 (1999).
100. See Pinholster, 131 S Ct at 1401 (noting the possibility).
101. See 28 USC § 2254(e)(2); Michael Williams v Taylor, 529 US 420, 427-29 (2000) (construing § 2254(e)(2) as a cause-and-prejudice standard with respect to new evidentiary hearings).
102. See Coleman, 501 US at 732-33, 737-40 (refusing to apply the presumption from Michigan v Long, 463 US 1032 (1983), that an ambiguous state-court decision rested on federal-law grounds).
103. See Richter, 131 S Ct at 784-85.
104. This is not to say that the Court's jurisprudence is free of value judgments. As in other areas of the law, Justice Scalia is often willing to make his substantive policy views known in the course of setting forth notionally neutral legal grounds. Compare Martinez v Ryan, 132 S Ct 1309, 1322 (2012)
105. (Scalia dissenting) (complaining about the "monotonously standard" claims of ineffective assistance in habeas and venturing sarcastically to ask "has a duly convicted defendant ever been effectively represented?"), with James S. Liebman, The Overproduction of Death, 100 Colum L Rev 2030, 2102-10 (2000) (demonstrating how poor lawyering correlates to imposition of the death penalty).
106. See Ford v Wainwright, 477 US 399, 409-10 (1986) (prohibiting such executions).
107. Compare 28 USC § 2244(b)(2)(B), with McCleskey, 499 US at 493.
108. Magwood, 130 S Ct at 2797
109. quoting Slack, 529 US at 486.
110. See Panetti v Quarterman, 551 US 930, 947 (2007) (creating an "exception" to the prohibition in § 2244(b) for second applications raising a claim that would have been unripe in a first application);
111. Stewart v Martinez-Villareal, 523 US 637, 643 (1998) (treating a second application as part of a first application in which it was premised on a newly ripened claim that had been dismissed from the first application "as premature").
112. Another example is an opinion by Justice Thomas-joined by Scalia, Breyer, Sotomayor, and Stevens-that construed § 2244(b) not to prohibit a claim raised in a habeas petition challenging a resentencing, even though the claim could have been raised in an earlier petition. See Magwood, 130 S Ct at 2801.
113. See Carrier, 477 US at 488 (1986).
114. See Pennsylvania v Finley, 481 US 551, 555 (1987);
115. Murray v Giarratano, 492 US 1, 10 (1989).
116. Maples, though, focused on abandonment as the lodestar of the ineffectiveness analysis, whereas Martinez focused on the quality of attorney performance. See Wendy Zorana Zupac, Mere Negligence or Abandonment? Evaluating Claims of Attorney Misconduct after Maples v. Thomas, 122 Yale L J 1328, 1357-58 (2013).
117. In addition, the Court has recently extended Sixth Amendment effective-assistance- of-counsel obligations to the plea bargaining context. See Lafler v Cooper, 132 S Ct 1376, 1386 (2012) (holding that the Sixth Amendment can be violated by counsel's advice to reject a plea deal if a trial leads to a worse outcome);
118. Missouri v Frye, 132 S Ct 1399, 1408 (2012) ("[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused."). This raises the intriguing possibility that a state-law adequate and independent bar arising from a plea deal (such as a waiver of collateral review) can be attacked as wanting a foundation in effective counsel.
119. And there are many. See Andrew Gelman, et al, A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States, 1 J Empirical Legal Stud 209, 213-17 (2004).
120. Compare Charles M. Cameron, Jeffrey A. Segal, and Donald Songer, Strategic Auditing in a Political Hierarchy: An Informational Model of the Supreme Court's Certiorari Decisions, 94 Am Polit Sci Rev 101, 103 (2000)
121. with Donald R. Songer, Jeffrey A. Segal, and Charles M. Cameron, The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions, 38 Am J Polit Sci 673 (1994).
122. See Ethan Bueno de Mesquita and Matthew Stephenson, Informative Precedent and Intrajudicial Communication, 96 Am Polit Sci Rev 755, 757 (2002).
123. Peter L. Strauss, One Hundred Fifty Cases per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 Colum L Rev 1093, 1095 (1987). Professor Strauss's point concerns Supreme Court review of the agencies, but it translates here.
124. Pauline T. Kim, Beyond Principal-Agent Theories: Law and the Judicial Hierarchy, 105 Nw U L Rev 535, 536-38 (2011) (describing the role of doctrine in principal-agent accounts of the judicial hierarchy, but also going on to explore the limitations of such models).
125. Anne M. Voigts, Note, Narrowing the Eye of the Needle: Procedural Default, Habeas Reform, and Claims of Ineffective Assistance of Counsel, 99 Colum L Rev 1103, 1104 (1999).
126. But see Jordan Steiker, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners?, 92 Mich L Rev 862, 868 (1994) (arguing that "the Fourteenth Amendment constitutionalized this supremacy-ensuring role of the federal courts such that Congress is obligated to make federal review of state criminal convictions practically available through federal habeas corpus").
127. See generally Brandon L. Garrett, Habeas Corpus and Due Process, 98 Cornell L Rev 47 (2012);
128. Lee Kovarsky, A Constitutional Theory of Habeas Power, 99 Va L Rev 753 (2013).
129. Indeed, the Court has long failed to cite constitutional concerns even in cases in which they might be thought to subsist close to the surface. See Jordan Steiker, Habeas Exceptionalism, 78 Tex L Rev 1703, 1705 (2000) (noting the absence of such discussion in the Terry Williams opinions).
130. The idea of some mandatory quota of federal court jurisdiction goes back at least to Martin v Hunter's Lessee, 14 US (1 Wheat) 304, 327-37 (1816).
131. See Kenneth A. Shepsle and Barry R. Weingast, Structure-Induced Equilibrium and Legislative Choice, 37 Pub Choice 503, 507 (1981). Accordingly, the stability of the two-track model likely reflects an equilibrium induced by the Court's certiorari voting practice and its norms of intracollegial deference.
132. Eric M. Freedman, Federal Habeas Corpus in Capital Cases, in James R. Acker, Robert M. Bohm, and Charles S. Lanier, eds, America's Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction 553, 567-68 (Carolina Academic 2d ed 2003).
133. See, for example, Perkins, 133 S Ct at 1932 (Ginsburg) (referring to finality and comity concerns);
134. Edwards v Carpenter, 529 US 446, 451 (2000) (Scalia).
135. See generally National Federation of Independent Business v Sebelius, 132 S Ct 2566 (2012).
136. See generally Shelby County, Alabama v Holder, 133 S Ct 2612 (2013).
137. Trevino, 133 S Ct at 1916-17.
138. See also Martinez, 132 S Ct at 1315-16;
139. Holland, 130 S Ct at 2562
140. quoting Slack v McDaniel, 529 US 473, 483 (2000) (recognizing the "vital role in protecting constitutional rights" that habeas plays).
141. Id at 279-80. But see Jason Mazzone, Rights and Remedies in State Habeas Proceedings, 74 Albany L Rev 1749, 1765-66 (2011) (suggesting that Danforth might have little impact).
142. See Danforth, 552 US at 291-92 (Roberts dissenting).
143. See, for example, Gonzalez v Thaler, 132 S Ct 641, 655-56 (2012) (refusing to recognize state-law exceptions to the end of the window for discretionary state-high courts appeals in applying AEDPA's statute of limitations).
144. See Day v McDonough, 547 US 198, 208 (2006) (holding that "[t]he considerations of comity, finality, and the expeditious handling of habeas proceedings that motivated AEDPA. . counsel against an excessively rigid or formal approach to [the limitations defense]").
145. See Aziz Z. Huq, Tiers of Scrutiny in Enumerated Powers Jurisprudence, 80 U Chi L Rev 575, 586-611 (2013) (illustrating the use of different standards of review across federalism jurisprudence).
146. For examples of preemption cases in which liberals defend localism and conservatives defend national power, see generally Mutual Pharmaceutical Co v Bartlett, 133 S Ct 2466 (2013);
147. Egelhoff v Egelhoff, 532 US 141 (2001).
148. See Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 Wm & Mary L Rev 1733, 1748-49 (2005) ("The open-textured nature of the Constitution's structural commitments calls for judicial implementation through doctrine: There is simply no way to administer our federal system without developing rules to flesh out the allocation and balance of authority.").
149. See Joseph E. Stiglitz, Information and the Change in the Paradigm in Economics, 92 Am Econ Rev 460, 463-64 (2002) ("[T]here are incentives on the part of individuals for information not to be revealed, for secrecy, or, in modern parlance, for a lack of transparency.").
150. For the difference between pooling and separating equilibria, see Andreu Mas- Colell, Michael D. Whinston, and Jerry R. Green, Microeconomic Theory 455-57 (Oxford 1995).
151. See generally Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U Chi L Rev 142 (1970) (arguing that, subject to exceptions, "convictions should be subject to collateral attack only when the prisoner supplements his constitutional plea with a colorable claim of innocence").
152. See Emily Hughes, Innocence Unmodified, 89 NC L Rev 1083, 1085-86 (2011);
153. Brandon L. Garrett, Claiming Innocence, 92 Minn L Rev 1629, 1645 (2008) (observing that "[t]he word 'innocence' is used casually in the media and by lawyers, convicts, scholars, and courts," and defining "innocent" as "those who did not commit the charged crime"). A distinct sense of innocence is in play, however, in litigation about capital sentencing, in which the question is eligibility for the death sentence.
154. See District Attorney's Office for the Third Judicial District v Osborne, 129 S Ct 2308, 2321 (2009) (explaining that whether "actual innocence" exists as a federal right remains an "open question");
155. Herrera v Collins, 506 US 390, 404-05 (1993) (explaining that "actual innocence" has never been held to be an independent constitutional claim).
156. Richter, 131 S Ct at 786 (quotation marks omitted).
157. see Patrick Bolton and Mathias Dewatripont, Contract Theory 100-07 (MIT 2005).
158. See also generally Joseph E. Stiglitz, The Contributions of the Economics of Information to Twentieth Century Economics, 115 Q J Econ 1441 (2000).
159. Michael Spence, Signaling in Retrospect and the Informational Structure of Markets, 92 Am Econ Rev 434, 437 (2002).
160. Eric A. Posner, Law and Social Norms 19 (Harvard 2000).
161. Again, it is worth emphasizing that I am making generalizations here. There are instances in which lower courts deny relief, and the Supreme Court reverses. See, for example, Rompilla v Beard, 545 US 374 (2005). These do not fit neatly into this scheme.
162. See also Victor E. Flango, Habeas Corpus in State and Federal Courts *45-59 (1994), online at http://cdm16501.contentdm.oclc.org/cdm/ref/ collection/criminal/id/0 (visited May 21, 2014);
163. Sheri Lynn Johnson, Wishing Petitioners to Death: Factual Misrepresentations in Fourth Circuit Capital Cases, 91 Cornell L Rev 1105, 1108 n 5 (2006).
164. Compare Kimmelman v Morrison, 477 US 365, 379-80 (1986)
165. (allowing Sixth Amendment claim on habeas to challenge failure to object to evidence that should have been excluded), with Stone v Powell, 428 US 465 (1975) (barring direct litigation of Fourth Amendment claims on habeas).
166. Martinez, 132 S Ct at 1309.
167. Trevino, 133 S Ct at 1911.
168. Martinez, 132 S Ct at 1313-14.
169. Trevino, 133 S Ct at 1915-16.
170. For a counterexample, see Holland, 130 S Ct at 2556-57 (2010) (describing an instance in which petitioner got the law right, and his counsel did not).
171. See Brian M. Hoffstadt, How Congress Might Redesign a Leaner, Cleaner Writ of Habeas Corpus, 49 Duke L J 947, 961 (2000) (noting that "procedural doctrines distinguish between defendants differently based on each defendant's respective ability to navigate the procedural thicket, which has little or no bearing on that defendant's substantive entitlement to relief").
172. Compare Jimenez v Quarterman, 129 S Ct 681, 685-86 (2009)
173. (direct-appeal rule), with Lawrence v Florida, 549 US 327, 337 (2007) (collateral-review rule).
174. Moreover, conditions in most state prisons tend to pose a "serious threat to inmates' health and safety." Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 NYU L Rev 881, 888-89 (2009).
175. It is hardly implausible to think that some habeas petitioners will be sophisticated. See, for example, Holland, 130 S Ct at 2549.
176. See Trevino, 133 S Ct at 1918.
177. Martinez, 132 S Ct at 1319.
178. This is not a unique consequence of signaling in the habeas context. For an account of how separating equilibria in the very difficult context of privacy law can have distributive effects, see Lior Jacob Strahilevitz, Toward a Positive Theory of Privacy Law, 126 Harv L Rev 2010, 2032 (2013).
179. See David Simon, Homicide: A Year on the Killing Streets 210 (Ivy 1991) ("Repetition and familiarity with the process soon place the professionals beyond the reach of a police interrogation.").
180. For the leading study on this topic, see Richard A. Leo, The Impact of Miranda Revisited, 86 J Crim L & Criminol 621, 655 (1996) (explaining that Fifth Amendment rights are most likely to be invoked by suspects who are repeat players in the criminal-justice system).
181. See Stephen J. Schulhofer, Review, Criminal Justice, Local Democracy, and Constitutional Rights, 111 Mich L Rev 1045, 1053 (2013).
182. Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv L Rev 757, 796 (1994).
183. See Anthony G. Amsterdam, Selling a Quick Fix for Boot Hill: The Myth of Justice Delayed in Death Cases, in Austin Sarat, ed, The Killing State: Capital Punishment in Law, Politics, and Culture 148, 165-69 (Oxford 1999)
184. with Robert M. Cover and T. Alexander Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 Yale L J 1035, 1045 (1977) (arguing that jurisdictional redundancy "fosters greater certainty that constitutional rights will not be erroneously denied"). The argument from incentives errors, however, is more subtle than the argument from error correction because it accounts for the possibility of dynamic interaction between state and federal judiciaries. Professors Cover and Aleinikoff vaguely allude to this possibility by praising the "dialogue" between state and federal courts initiated by habeas. Id at 1052-54. They fail, however, to define with any precision the social welfare effects of this dialogue.
185. See Kenneth S. Abraham, Distributing Risk: Insurance, Legal Theory, and Public Policy 14 (Yale 1986) ("Moral hazard is the [ ] tendency of an insured to underallocate to loss prevention after purchasing insurance.").
186. State-court trial judges may be better positioned to take precautions-and hence would be subject to ex ante moral hazard-whereas state appeals and postconviction judges would be able to mitigate, and hence would be subject to ex post moral hazard. See George L. Priest, The Current Insurance Crisis and Modern Tort Law, 96 Yale L J 1521, 1547 (1987) (developing the ex ante/ex post moral hazard distinction).
187. See Joseph E. Stiglitz, Risk, Incentives and Insurance: The Pure Theory of Moral Hazard, 8 Geneva Papers on Risk & Ins 4, 6 (1983) ("[T]he more and better insurance that is provided against some contingency, the less incentive individuals have to avoid the insured event, because the less they bear the full consequences of their actions.").
188. See Tom Baker, On the Genealogy of Moral Hazard, 75 Tex L Rev 237, 279 (1996) ("If the people exposed to the insurance incentive are not in control of the behavior that matters, then reducing the insurance incentive will impose a cost on those people while providing little benefit in the way of reduced accidents.").
189. See, for example, O'Sullivan v Boerckel, 526 US 838, 844-45 (1999);
190. Rose v Lundy, 455 US 509, 515-16 (1982).
191. The Court often justifies comity concerns by citing the need for reducing "friction" between state and federal judiciaries. Boerckel, 526 US at 844-45.
192. Indeed, for at least two decades, "[t]he Court has been saying. . that state courts are to be trusted with claims of constitutional right." Barry Friedman, Habeas and Hubris, 45 Vand L Rev 797, 818 (1992).
193. See Louis Kaplow, The Value of Accuracy in Adjudication: An Economic Analysis, 23 J Legal Stud 307, 309 (1994) ("[G]reater accuracy is valuable [as a deterrent] only to the extent it involves dimensions about which individuals are informed at the time they act.").
194. Roy A. Schotland, New Challenges to States' Judicial Selection, 95 Georgetown L J 1077, 1105 (2007).
195. See Gregory A. Huber and Sanford C. Gordon, Accountability and Coercion: Is Justice Blind When It Runs for Office?, 48 Am J Polit Sci 247, 261 (2004);
196. Sanford C. Gordon and Gregory A. Huber, The Effect of Electoral Competitiveness on Incumbent Behavior, 2 Q J Polit Sci 107, 133 (2007).
197. Melinda Gann Hall, State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform, 95 Am Polit Sci Rev 315, 326 (2001).
198. See also Joanna M. Shepherd, Money, Politics, and Impartial Justice, 58 Duke L J 623, 629 (2009) (finding that "unlike judges facing retention decisions, judges who do not need to appeal to voters shape their rulings to voters' preferences less. For example, voters' politics has little effect on the rulings of judges with permanent tenure or who plan to retire before the next election");
199. Melinda Gann Hall and Paul Brace, Justices' Responses to Case Facts: An Interactive Model, 24 Am Polit Q 237, 255 (1996) (finding that "judicial decisions intrinsically are political").
200. One study not specific to the criminal law context finds no evidence of judicial responses to political pressure. See Stephen J. Choi, G. Mitu Gulati, and Eric A. Posner, Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary, 26 J L, Econ & Org 290, 326-28 (2008).
201. See, for example, William Glaberson, How a Reviled Court System Has Outlasted Many Critics, NY Times A1 (Sept 27, 2006) (discussing the "long trail of injustices and mangled rulings" associated with one local court system);
202. William Glaberson, In Tiny Courts of New York, Abuses of Law and Power, NY Times A1 (Sept 25, 2006).
203. See, for example, Paul Brace and Brent D. Boyea, State Public Opinion, the Death Penalty, and the Practice of Electing Judges, 52 Am J Polit Sci 360, 370 (2008).
204. State judges cannot obviously diminish care with respect to hidden violations, such as violations of Brady v Maryland, 373 US 83 (1963).
205. Benjamin H. Barton and Stephanos Bibas, Triaging Appointed-Counsel Funding and Pro Se Access to Justice, 160 U Pa L Rev 967, 974 (2012).
206. See generally Karen Houppert, Chasing Gideon: The Elusive Quest for Poor People's Justice (New Press 2013).
207. See Darryl K. Brown, Epiphenomenal Indigent Defense, 75 Mo L Rev 907, 912-13 (2010). The situation in capital cases is no better.
208. See Adam M. Gershowitz, Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty, 63 Vand L Rev 307, 323-26 (2010).
209. See Paul C. Giannelli, Daubert and Forensic Science: The Pitfalls of Law Enforcement Control of Scientific Research, 2011 U Ill L Rev 53, 76-77 & n 158 (noting underfunding of expert assistance for indigent defendants).
210. Efforts to obtain injunctions under state constitutions requiring better indigentdefense funding have generally failed. See, for example, Quitman County v State, 910 S2d 1032, 1048 (Miss 2005);
211. State v Peart, 621 S2d 780, 785-92 (La 1993).
212. Generalizations here-as in much of this analysis-are hazardous. In New York State, Chief Judge Jonathan Lippman has been instrumental in securing increased defense funding. See Law Day Remarks by Chief Judge Jonathan Lippman (NY Courts May 1, 2013), online at http://www.nycourts.gov/ctapps/lawday13trans. pdf (visited May 21, 2014). It is surely regrettable that Chief Judge Lippman's concern with constitutional compliance appears to be the exception, and not the rule.
213. Adrian Vermeule, Second Opinions and Institutional Design, 97 Va L Rev 1435, 1464 (2011).
214. See Suzanne Grisez Martin, et al, Impact of a Mandatory Second-Opinion Program on Medicaid Surgery Rates, 20 Med Care 21, 31-32 (1982).
215. See Steven Shavell, The Appeals Process as a Means of Error Correction, 24 J Legal Stud 379, 381 (1995) (arguing for investments in appellate review rather than a better trial process, because "litigants possess information about the occurrence of error and appeals courts can frequently verify it").
216. See Richter, 131 S Ct at 784-85.
217. See Pinholster, 131 S Ct at 1388.
218. Coleman, 501 US at 729.
219. See Beard v Kindler, 130 S Ct 612, 618 (2009) (holding that "a discretionary state procedural rule can serve as an adequate ground to bar federal habeas review").
220. William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv L Rev 781, 782 (2006).
221. See also William J. Stuntz, The Distribution of Fourth Amendment Privacy, 67 Geo Wash L Rev 1265, 1274 (1999) (arguing that criminal-procedure rules "[act] as a tax, a mechanism for making some activities more expensive relative to their substitutes").
222. See also William J. Stuntz, Race, Class, and Drugs, 98 Colum L Rev 1795, 1819-24 (1998) (developing the perverse-effects argument in respect to the Fourth Amendment).
223. See generally William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich L Rev 505 (2001).
224. See Monell v Department of Social Services of the City of New York, 436 US 658, 701 (1978) (holding that municipalities can be sued under 42 USC § 1983);
225. Owen v City of Independence, 445 US 622, 638 (1980)
226. (imposing strict liability on municipalities). But see City of Newport v Fact Concerts, Inc, 453 US 247, 271 (1981) (holding that municipalities are absolutely immune from punitive damages).
227. See Will v Michigan Department of State Police, 491 US 58, 65-66, 71 (1989).
228. See Harlow v Fitzgerald, 457 US 800, 807-08, 815 (1982).
229. Herring v United States, 129 S Ct 695, 702 (2009);
230. United States v Leon, 468 US 897, 913 (1984) (recognizing a good faith exception to Fourth Amendment exclusionary rule when officers reasonably rely on a faulty warrant).
231. See Davis v United States, 131 S Ct 2419, 2423-24 (2011).
232. John C. Jeffries Jr, Compensation for Constitutional Torts: Reflections on the Significance of Fault, 88 Mich L Rev 82, 93-95 (1989).
233. See, for example, Jennifer E. Laurin, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, 111 Colum L Rev 670, 706 (2011) (suggesting the Court's impetus for "conceiving of the exclusionary rule as a remedy premised upon fault and desert" derives from constitutional-tort doctrine).
234. Herring, 129 S Ct at 702.
235. See Day, 547 US at 208-09. Deliberate state forfeitures, by contrast, are subject to a more unforgiving rule. See Wood v Milyard, 132 S Ct 1826, 1830 (2012).
236. See Duncan v Walker, 533 US 167, 180 (2001)
237. (emphasizing the need to incentivize petitioner compliance with AEDPA's statute of limitations). See also Pace v DiGuglielmo, 544 US 408, 427 (2005) (Stevens dissenting).
238. Federal courts have systematically ignored the paradox that results from attributing state-funded lawyers' errors to petitioners when those errors are more plausibly traced back to (under-)funding decisions by state legislatures. For a rare instance of judicial attention to that question, see Dunphy v McKee, 134 F3d 1297, 1299 (7th Cir 1998).
239. See Maples, 132 S Ct at 922
240. (stressing that mere negligence by defense counsel will not excuse a procedural default). For a criticism of the pinched view of equitable discretion evinced in Maples, see Adam Liptak, Agency and Equity: Why Do We Blame Clients for Their Lawyers' Mistakes?, 110 Mich L Rev 875, 885 (2012) ("Agency principles can only do so much work, and at some point equity must matter, too.").
241. Justice Alito makes this point in his Maples concurrence, in which he notes that gross attorney error can occur regardless of the specifics of the state's scheme for appointing counsel to indigent defendants. Maples, 132 S Ct at 928-29 (Alito concurring).
242. Anthony G. Amsterdam, Remarks at the Investiture of Eric M. Freedman as the Maurice A. Deane Distinguished Professor of Constitutional Law, Nov 22, 2004, 33 Hofstra L Rev 403, 411 (2004).
243. See Brecht v Abrahamson, 507 US 619, 637 (1993). Strickland and Brady claims, though, already require a showing of prejudice in order to obtain relief, making Brecht less significant.
244. Formally, the nonretroactivity rule of the plurality in Teague v Lane, 489 US 288, 310 (1989) (plurality), would apply even after a petitioner passes through the Track Two gateways to reach the merits. For an example of the stringency with which Teague is applied, see Horn v Banks, 536 US 266, 271 (2002) (holding that Teague can apply even when the state court ignores that rule).
245. For a brief but illuminating survey of some of the legal issues related to defining fault in another legal context, contract law, see generally Omri Ben-Shahar and Ariel Porat, Foreword: Fault in American Contract Law, 107 Mich L Rev 1341 (2009).
246. Richard H. Fallon Jr, The Linkage between Justiciability and Remedies-And
247. I have argued elsewhere that transsubstantive spillover effects have an important causal role in doctrinal development in public law. See generally Aziz Z. Huq, Against National Security Exceptionalism, 2009 S Ct Rev 225.
248. The problem of gamesmanship animates the Court's treatment of the overlap between habeas and 42 USC § 1983. See, for example, Heck v Humphrey, 512 US 477, 481-82 (1994).
249. See John C. Jeffries Jr, The Right-Remedy Gap in Constitutional Law, 109 Yale L J 87, 98-100 (1999).
250. The Court could begin accepting more certiorari petitions from state postconviction judgments. See generally Giovanna Shay and Christopher Lasch, Initiating a New Constitutional Dialogue: The Increased Importance under AEDPA of Seeking Certiorari from Judgments of State Courts, 50 Wm & Mary L Rev 211 (2008). This has not happened yet.
251. Both doctrines provide for resolution of a case in the state's favor without reaching a ruling on the precise contours of the underlying law. See Stephen I. Vladeck, AEDPA, Saucier, and the Stronger Case for Rights-First Constitutional Adjudication, 32 Seattle U L Rev 595, 598-601 (2009).
252. See Peter H. Schuck, Suing Government: Citizen Remedies for Official Wrongs 59-81 (Yale 1983).
253. See also Richard A. Posner, Excessive Sanctions for Governmental Misconduct in Criminal Cases, 57 Wash L Rev 635, 638-40 (1982) (extending the same asymmetric- incentives argument to the Fourth Amendment exclusionary rule).
254. See generally Justice Policy Institute, The Punishing Decade: Prison and Jail Estimates at the Millennium (May 2000), online at http://www.justicepolicy. org/images/upload/00-05-rep-punishingdecade-ac.pdf (visited May 21, 2014).
255. Pew Center on the States, Prison Count 2010: State Population Declines for the First Time in 38 Years *1 (Apr 2010), online at http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/ sentencing-and-corrections/Prison-Count-2010.pdf (visited May 21, 2014).
256. Anne R. Traum, Mass Incarceration at Sentencing, 64 Hastings L J 423, 430 n 38 (2013).
257. See Roy Walmsley, World Prison Population List (Ninth Edition) *1 (International Centre for Prison Studies July 2011), online at http://www.idcr.org.uk/wp-content/uploads/2010/09/WPPL-9-22.pdf (visited May 21, 2014) ("The United States has the highest prison population rate in the world, 743 per 100,000.");
258. Marc Mauer, Race to Incarcerate 15-20, figs 2-1, 2-2 (New Press 1999).
259. A Department of Justice study found that 82 percent of those charged with a felony offense in large state courts received appointed counsel by the end of their case. See Caroline Wolf Harlow, Defense Counsel in Criminal Cases *1 (Department of Justice Nov 2000), online at http://www.bjs.gov/content/ pub/pdf/dccc.pdf (visited May 21, 2014).
260. Increasing income inequality means this figure is likely higher now. There is a tight bilateral causal relationship, moreover, between exposure to the criminal-justice system and poverty. See Bruce Western, Punishment and Inequality in America 11-33 (Russell Sage Foundation 2006).
261. Brown v Allen, 344 US 443, 537 (1953) (Jackson concurring).
262. Thomas M. Keck, Party, Policy, or Duty: Why Does the Supreme Court Invalidate Federal Statutes?, 101 Am Polit Sci Rev 321, 323 (2007).
263. See Ernest J. Weinrib, Corrective Justice in a Nutshell, 52 U Toronto L J 349, 349 (2002) ("Corrective justice is the idea that liability rectifies the injustice inflicted by one person on another."). This formulation leaves open the degree of fault required to trigger a duty of rectification-which, of course, is the battlefield on which the scope of modern habeas is decided.
264. Conversely, however, expansions of federal judicial power are "effected by acts of Congress." Justin Crowe, Building the Judiciary: Law, Courts, and the Politics of Institutional Development 273 (Princeton 2012). The distinctive, asymmetrical politics of jurisdictional expansion and contraction is an interesting topic that warrants its own separate treatment beyond my scope here.
265. See Joseph L. Hoffmann and William J. Stuntz, Habeas after the Revolution, 1993 S Ct Rev 65, 66 ("Habeas issues have thus been seen as 'of a kind' with issues that arise in Section 1983 litigation, the immunity of state governments and officials, Younger v Harris abstention, and the Eleventh Amendment.").
266. Katherine Beckett, Setting the Public Agenda: "Street Crime" and Drug Use in American Politics, 41 Soc Probs 425, 426-27 (1994).
267. See generally Katherine Beckett, Making Crime Pay: Law and Order in Contemporary American Politics (Oxford 1997).
268. The earliest uses of fault in constitutional-tort doctrine predate Sykes. See, for example, Wood v Strickland, 420 US 308, 322 (1975).
269. See Hunton v Sinclair, 2013 WL 5583975, *1 (9th Cir).
270. See also Hodges v Colson, 727 F3d 517, 540 (6th Cir 2013) (intimating that Martinez and Trevino do not extend beyond the Sixth Amendment context).
271. See Lauren E. Glaze and Erika Parks, Correctional Populations in the United States, 2011 *1 (Department of Justice Nov 12, 2012), online at www.bjs.gov/content/pub/pdf/cpus11.pdf (visited Dec 3, 2013) (noting a three-year decline in the correctional population).
272. See Paul Pierson, Politics in Time: History, Institutions, and Social Analysis 17-18 (Princeton 2004).
273. Mark J. Richards and Herbert M. Kritzer, Jurisprudential Regimes in Supreme Court Decision Making, 96 Am Polit Sci Rev 305, 308 (2002) (defining "jurisprudential regime" as "a key precedent, or a set of related precedents, that structures the way in which the Supreme Court justices evaluate key elements of cases in arriving at decisions in a particular legal area").
274. See Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 Mich L Rev 2466, 2467-68 & nn 5-12 (1996).
275. Lee Kovarsky, Review, Habeas Verité, 47 Tulsa L Rev 13 (2011). I do not repeat the powerful criticisms developed by these commentators, criticisms with which I am largely in accord.
276. Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 Cal L Rev 1117, 1126 (2011). I leave aside the question whether further reforms are warranted to assure that this demanding empirical condition is satisfied.
277. See Michael A. Bailey, Comparable Preference Estimates across Time and Institutions for the Court, Congress, and Presidency, 51 Am J Polit Sci 433, 444 (2007) (presenting historical data about presidential, congressional, and judicial preferences).
278. See Michael J. Tetter, Congressional Gridlock's Threat to Separation of Powers, 2013 Wisc L Rev 1097, 1104 (noting that the 112th Congress passed only 283 bills and that this is historically quite low).
279. Robert C. LaFountain, et al, Examining the Work of State Courts: An Analysis of 2010 State Court Caseloads *24 (National Center for State Courts Dec 2012), online at http://www.courtstatistics.org/Other-Pages/~/media/ Microsites/Files/CSP/DATA%20PDF/CSP-DEC.ashx (visited May 21, 2014) (showing the breakdown of criminal-case type in 17 states).
280. See also Alexandra Natapoff, Misdemeanors, 85 S Cal L Rev 1313, 1316 (2012) (identifying high rates of wrongful misdemeanor convictions).
281. Id (Alito concurring). See also generally M. Isabel Medina, Reforming Criminal Indigent Defense in Louisiana-An Introduction to the Symposium and a Brief Exploration of Criminal Indigent Defense and Its Relationship to Immigrant Indigent Defense, 9 Loyola J Pub Int L 111 (2008) (documenting problems in Louisiana's indigent-defense system).
282. see Van de Kamp v Goldstein, 129 S Ct 855, 861-62 (2009) (holding that prosecutors "involved in [ ] supervision or training or information-system management enjoy absolute immunity" from certain constitutional-tort claims).
283. For the leading works on this subject, see generally Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford 2004);
284. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago 2d ed 2008).
285. Louis Michael Seidman, Brown and Miranda, 80 Cal L Rev 673, 746 (1992).
286. Roy B. Flemming, John Bohte, and B. Dan Wood, One Voice among Many: The Supreme Court's Influence on Attentiveness to Issues in the United States, 1947-92, 41 Am J Polit Sci 1224, 1234 (1997).
287. See also Roy B. Flemming, B. Dan Wood, and John Bohte, Attention to Issues in a System of Separated Powers: The Macrodynamics of American Policy Agendas, 61 J Polit 76, 92 (1999).
288. See Aziz Z. Huq, Structural Constitutionalism as Counterterrorism, 100 Cal L Rev 887, 929-44 (2012);
289. M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 Va L Rev 1127, 1155-57 (2000). The net result of their analysis is a repudiation of a concrete liberty value universally recognized as central to social welfare in favor of an alluring but ultimately inchoate, and perhaps even incoherent, structural concept.
290. See Vanessa Barker, The Politics of Imprisonment: How the Democratic Process Shapes the Way America Punishes Offenders 6 (Oxford 2009).
291. See John F. Pfaff, The Durability of Prison Populations, 2010 U Chi Legal F 73, 76-77 ("States spent a total of $2.8 billion on corrections in 1977 and $39.3 billion in 2004; this represents a thirteen-fold increase in nominal dollars and a four-and-half-fold increase in real dollars (although per-prisoner expenditures have actually declined slightly in real terms).").
292. Eric Holder, Attorney General Eric Holder Delivers Remarks at the Annual Meeting of the American Bar Association's House of Delegates (Department of Justice Aug 12, 2013), online at http://www.justice.gov/iso/opa/ag/speeches/ 2013/ag-speech-130812.html (visited May 21, 2014).
293. One leading study attributes American punitiveness to "the belief that those disproportionately subject to [ ] harsh sanctions are people they do not like: African American offenders." James D. Unnever and Francis T. Cullen, The Social Sources of Americans' Punitiveness: A Test of Three Competing Models, 48 Criminol 99, 119 (2010). Whether this race-oriented thinking has shifted of late-perhaps with installation of an African American in the White House-is a large and difficult question that lies far beyond my remit here.
294. For President Richard Nixon, see Annual Message to the Congress on the State of the Union, 1970 Pub Papers 8, 12 (declaring a war on crime).
295. For Presidents Ronald Reagan and George H.W. Bush, see Michael Tonry, Race and the War on Drugs, 1994 U Chi Legal F 25, 70.
296. It would be misleading to suggest that Democratic presidents have not shared this rhetoric. See William Jefferson Clinton, Remarks on Signing the Violent Crime Control and Law Enforcement Act of 1994, 20 U Dayton L Rev 567, 568 (1995) (signing a harsh crime bill and remarking that "[t]here must be no doubt about whose side we're on").
297. This has been so since the early days of the Republic. See Ralph Lerner, The Supreme Court as Republican Schoolmaster, 1967 S Ct Rev 127, 177-80.
298. See Louis Michael Seidman, Review, Akhil Amar and the (Premature?) Demise of Criminal Procedure Liberalism, 107 Yale L J 2281, 2314 (1998).
299. See Maples, 132 S Ct at 917-18.
300. See Carol S. Steiker, Raising the Bar: Maples v. Thomas and the Sixth Amendment Right to Counsel, 127 Harv L Rev 468, 470-71 (2013) (developing the larger implications of the Maples opinion).
301. See Timothy R. Johnson and Andrew D. Martin, The Public's Conditional Response to Supreme Court Decisions, 92 Am Polit Sci Rev 299, 304-07 (1998) (analyzing capital punishment cases, and finding that the Court's influence on public opinion is greatest the first time the Court rules on an issue).
302. See Davis v Terry, 625 F3d 716, 719 (11th Cir 2010). Davis was executed on September 22, 2011.
303. See, for example, John Schwartz, In the Debate on Capital Punishment, Davis Execution Offers Little Closure, NY Times A17 (Sept 23, 2011);
304. Scott Sayare, In Europe, a Chorus of Outrage over a U.S. Execution, NY Times A13 (Sept 23, 2011).
305. See David Garland, Peculiar Institution: America's Death Penalty in an Age of Abolition 294-95 (Belknap 2010).
306. Cavazos v Smith, 132 S Ct 2, 6-8 (2011).
307. See Emily Bazelon, Jerry Brown Shows Mercy to Shirley Ree Smith: The Governor Does the Right Thing in a Doubly Tragic Shaken Baby Case, Slate (Apr 6, 2012), online at http://www.slate.com/articles/news-and-politics/crime/2012/04/ jerry-brown-pardons-shirley-ree-smith-in-an-old-sad-shaken-baby-case-.html (visited May 21, 2014).
308. See Michael Heise, Mercy by the Numbers: An Empirical Analysis of Clemency and Its Structure, 89 Va L Rev 239, 251 (2003) (noting the decline in and infrequent use of clemency from 1973 to 1999).
309. See Kathleen Thelen, Historical Institutionalism in Comparative Politics, 2 Ann Rev Polit Sci 369, 383 (1999) (describing studies that show how symbolic policies subsequently catalyze substantive shifts in policy).
310. See William Shakespeare, Macbeth Act III, Scene IV (American Book 1904).