Section 2254(d) of the New Habeas Statute: An (Opinionated) User's Manual

I. INTRODUCTION In April 1996, the President signed into law the AntiTerrorism and Effective Death Penalty Act of 1996 ("AEDPA").1 The AEDPA made sweeping revisions to the federal habeas corpus statute, including a truncated process for capital cases in certain states,2 new exhaustion rules,3 tougher rules on successive petitions,4 and an all new statute of limitations.5 Major interpretational issues have arisen and will continue to arise under these new provisions. But no aspect of the statute poses greater or deeper interpretational problems than the new section 2254(d), which governs the way in which federal habeas courts are to regard state court adjudications.6 If federal judges pay insufficient heed to these problems, the entire institution of federal habeas corpus could be perverted in a way for which no one has bargained. Any candid observer would have to admit that the new section 2254(d) contains more than its fair share of ambiguities. This Article focuses on the four most doctrinally and intellectually urgent issues of interpretation.7 First, does the statute prescribe different standards for reviewing pure questions of law versus mixed questions of law and fact? Second, assuming that federal habeas courts are to review state court conclusions regarding mixed questions for reasonableness, what does "reasonableness" mean in this context? Third, when is federal law "clearly established?" Finally, does "determined by the Supreme Court" mean that federal habeas courts may not take lower federal court decisions into account in determining whether federal law was clearly established? The Supreme Court's recent decision in Lindh v. Murphy8 will delay the manifestation of some of these interpretive problems because after Lindh, the new section 2254(d) does not apply to cases that were pending as of April 24, 1996, the effective date of the statute.9 When the problems do surface, however, the stakes will be high. There are already signs of conflict on the question of whether pure questions of law are to be reviewed on the same basis as mixed questions of law and fact.10 Moreover, the federal circuit courts of appeals seem headed toward interpretations of "unreasonableness" so narrow that district courts could be lulled into a rubber-stamp mentality.11 Some federal courts also seem headed toward giving state judges as much "elbow room" as state officials enjoy under the law of qualified immunity.12 This analogy misconceives the role of judges in the criminal justice system and threatens to drain federal habeas corpus of its recognized value in prodding state judges to keep abreast of developments in federal constitutional criminal procedure. Part II of this Article introduces the reader to the new section 2254(d) and situates it in the new statutory framework. Part III concludes that pure questions of law are to be reviewed de novo, while mixed questions of law and fact are to be reviewed for "unreasonableness." Part IV explains why the definitions of "unreasonableness" currently gaining favor among the circuits are both implausible and undesirable, and offers an alternative definition. Part V explains why the analogy to official immunity is flawed and suggests an alternative interpretation of the phrase "clearly established federal law" in section 2254(d). Part V also argues that this portion of the statute leaves the Supreme Court's decision in Teague v. Lane13 undisturbed. Part VI warns of the dangers that lurk in the portion of the statute that purports to exclude circuit decisions from consideration in federal habeas review. II. SECTION 2254(d) AND THE NEW HABEAs ORDER The first thing to notice about the new section 2254(d) is that it does not cover the same subject matter as the old section 2254(d). The old section 2254(d) set forth the standards for the grant of an evidentiary hearing in habeas proceedings.14 In the AEDPA, Congress redesignated the former section 2254(d) as the new section 2254(e) and enacted the following as the new section 2254(d): An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. …