Challenging the Habeas Process Rather Than the Result

Table of ContentsI. Introduction 87II. The Federal Habeas Mirage: Recognizing Federal Review as Insufficient and Unreliable 93A. Empirical Evidence of a Narrowing Scope of Habeas Review 98B. Recent Doctrinal Developments Substantially Undercut Federal Habeas Review 1061. The Habeas Standard of Review in Practice: Harrington v. Richter 108 2. The Procedural Abyss of Federal Habeas Practice: Pinholster v. Cullen in Context 117III. Considering the Consequences of a Diminished Writ: Abolish or Reorient the Writ in Criminal Cases? 125IV. Federal Courts Have a Constitutional Duty to Remedy State Procedural Unfairness 137V. Challenging Deficient State Procedures Through Federal Habeas Litigation 146A. Section 2254(d)(2) as a Safety-Valve to Pinholster and Deferential Review 150B. New Facts Creating a "New" Claim for Purposes of AEDPA Review 156VI. Challenging Deficient State Procedures Through § 1983 Actions 166A. Understanding Skinner as Permitting § 1983 Actions 168B. The Advantages of a § 1983 Challenge to State Post-Conviction Procedures 1711. Exhaustion 1722. Section 2254(d)(1) & Factual Development 1743. Class Actions and Attorney Fees 177C. The Defects and Disadvantages of § 1983 Challenges to Process 181VII. Conclusion 198Appendix 200I. IntroductionUndeterred by a robust and persistent academic commentary criticizing as constitutionally dubious the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),1 the Supreme Court has consistently upheld, albeit only indirectly,2 the constitutionality of AEDPA's restrictions on federal habeas review of state criminal convictions.3 At least initially, however, AEDPA's limits on federal review seemed to result more in delay, uncertainty, and confusion than substantially diminished access to federal oversight. Leading habeas corpus scholar John Blume characterized the first decade of AEDPA litigation as substantial "hype" without any serious "bite."4 Both in terms of doctrinal shifts and recent empirical data, much has changed. The harshness of AEDPA's restrictions has come into focus over the past five years.Recent decisions confirm that the tide has turned and the once academic questions of AEDPA's application are, one by one, being resolved in favor of reduced federal review. Illustrative are two of the Court's most recent federal habeas decisions, Harrington ?. Richter* and Cullen ?. Pinholster,6 both of which resolve longstanding and divisive questions of habeas procedure in favor of substantially curtailing federal courts' authority to overturn a state conviction or sentence. Although it is arguable that the "hype" around AEDPA's enactment exceeded its "bite" in the years immediately following its enactment, the most recent wave of decisions as well as recent empirical data leave little doubt that AEDPA's practical bite is even more ferocious than the initial legislative bark may have suggested.7 Both in terms of the factual development of a habeas claim and the standard of review under which the claim is considered, the Court, particularly through decisions this Term, has imposed an exceptional array of barriers to relief. In the words of Professors Nancy King and Joseph Hoffmann, federal habeas review of state convictions has become futile, illusory, and so improbable as to be "microscopic."8 Indeed, these scholars regard the deterrence model of federal oversight embraced in this Article as nothing more than a misguided "fairytale. …