Federal Habeas Corpus: A Brief Legal Overview
Released: 2010-01-08T00:00:00

Introduction

This is an overview of the most prominent features of federal habeas corpus law. Federal habeas corpus as we know it is by and large a procedure under which a court may review the legality of an individual's incarceration. It is most often invoked after conviction and the exhaustion of the ordinary means of appeal. It is at once the last refuge of scoundrels and the last hope of the innocent. It is an intricate weave of statute and case law whose reach has flowed and ebbed over time.

Prior to enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA), the most recent substantial recasting of federal habeas law and the Supreme Court cases that immediately preceded it, it was said that federal habeas was "the most controversial and friction producing issue in the relation between federal and state courts.... Commentators [were] critical, ... federal judges [were] unhappy, ... state courts resented [it], . . [and] prisoners thrive[d] on it as a form of occupational therapy.... " The AEDPA was passed and yet the debate goes on. Judges, academics and political figures regularly urge that the boundaries for federal habeas be readjusted; some would make it more readily available; others would limit access to it.

Debate has been particularly intense in capital punishment cases. There, unlike most other cases, the decisions of the state courts stand unexecuted while they await completion of federal habeas corpus proceedings; there, unlike most other cases, an erroneously executed sentence is beyond any semblance of correction or compensation. The AEDPA offers states expeditious habeas procedures in capital cases under certain circumstances; no state has yet been able to take full advantage of the offer, and as a consequence, Congress adjusted the method of determining qualification in the USA PATRIOT Improvement and Reauthorization Act.

An unsuccessful endeavor to curtail access of Guantanamo Bay detainees to habeas relief provided the Supreme Court with an opportunity to further explain the scope of Congressional authority over habeas jurisdiction under the suspension clause.

History

Origins

At early common law, much of the business of the courts began with the issuance of one of several writs, many of which have survived to this day. The writs were a series of written order forms, issued by the court in the name of the king, commanding the individual to whom they were addressed to return the writ to the court for the purpose stated in the writ. The purpose was generally reflected in the name of the writ itself. Thus for example, a subpoena ad testificandum was a command to return the writ to the court at a specified time and place, "sub poena," that is, "under penalty" for failure to comply, and "ad testificandum" that is, "for the purpose of testifying."

Just as the writs of subpoena have been shortened in common parlance to "subpoena," references to the several writs of habeas corpus were shortened. The habeas corpus writs were all issued by the courts in the name of the king and addressed to one of the king's officials or a lower court. The writs commanded the officers of the Crown to appear before the court with the "corpus" ("body") of an individual named in the writ, whom "habeas" ("you have" or "you are holding"), for the purpose stated in the writ. Thus for instance, the writ of habeas corpora juratorum commanded the sheriff to appear before the court having with him or holding the bodies of potential jurors.

By the colonial period, "habeas corpus" had come to be understood as those writs available to a prisoner, held without trial or bail or pursuant to the order of a court without jurisdiction, ordering his jailer to appear with the prisoner before a court of general jurisdiction and to justify the confinement.

Early American Experiences

Colonial America was well acquainted with habeas corpus and with occasional suspensions of the writ. The drafters of the United States Constitution, after enumerating the powers of Congress, inserted the limitation that "the privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

The Act that created the federal court system empowered federal judges to issues writs of habeas corpus "and other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions.... [a]nd ... to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment." The power was limited, however, in that "writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify."

The Supreme Court further clarified federal habeas corpus law when in Ex parte Bollman , 8 U.S.(4 Cranch) 75 (1807), it held that the power of the federal courts to issue the writ was limited to the authority vested in them by statute. The courts had no common law or inherent authority to issue writs of habeas corpus. While the common law might provide an understanding of the dimensions of the writ, the power to issue it depended upon and was limited by the authority which Congress by statute vested in the courts, id . at 93.

Consistent with the common law, the writ was available to those confined by federal officials without trial or admission to bail, but was not available to contest the validity of confinement pursuant to conviction by a federal court of competent jurisdiction, even one whose judgment was in error.

Congress expanded the authority it had given the federal courts in response to the anticipated state arrest of federal officers attempting to enforce an unpopular tariff in 1833 and again in 1842 in response to British protest over the American trial of one of its nationals. The writ was made available to state prisoners held because of "any act done, or omitted to be done, in pursuance of a law of the United States," and to state prisoners who were foreign nationals and claimed protection of the Act of State doctrine. The federal writ otherwise remained unavailable for prisoners held under state authority rather than the authority of the United States.

Birth of the Modern Writ

In 1867, Congress substantially increased the jurisdiction of federal courts to issue the writ by authorizing its issuance "in all cases," state or federal, "where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States."

Originally, habeas corpus permitted collateral attack upon a prisoner's conviction only if the sentencing court lacked subject matter jurisdiction. Shortly after 1867, however, the Supreme Court began to recognize a growing number of circumstances where courts were said to have acted beyond their jurisdiction because some constitutional violation had extinguished or "voided" their jurisdiction.

This development was of limited benefit to most prisoners, since most were confined under state convictions and relatively few of the rights guaranteed by the Constitution were thought to apply against the states. Even when a constitutional claim was available, state prisoners could not be granted federal habeas relief until all possibility of state judicial reliefâtrial, appellate, and postconvictionâhad been exhausted.

Ebb and Flow

Eventually two developments stimulated new growth. First, the jurisdictional tests, cumbersome and somewhat artificial, were discarded in favor of a more generous standard. Later, the explosion in the breadth of due process and in the extent of its application to the states multiplied the instances when a state prisoner might find relief in federal habeas corpus.

Evolution began with two cases which reached the Court early in the last century and in which petitioners claimed that mob rule rather than due process of law led to their convictions and death sentences. The Court in Frank v. Mangum , 237 U.S. 309 (1915), denied the writ because Frank's claim had already been heard and rejected as part of the state appellate process. The Court did suggest, however, that a state court might lose jurisdiction by virtue of a substantial procedural defect, such as mob domination of the trial process, and that federal habeas relief would be available to anyone convicted as a consequence of the defect. It also indicated that the question of whether relief should be granted was not to be resolved solely by examination of the trial court record, as had historically been the case, but upon federal court consideration of the entire judicial process which pre-dated the petition.

If Frank had been intended as a warning, it appears to have been in vain, for soon thereafter the Court confronted yet another conviction allegedly secured by mob intervention. In spite of the fact that the state appellate courts had already heard and denied the petitioners' claims, the Court ordered the lower federal court in which relief had been initially sought to make its own determination of the validity of petitioners' claims of procedural defect.

Soon thereafter it became clear that federal habeas was not limited to instances of mob intervention or other external contaminants of the judicial process; it reached deficiencies from within the process which rendered the process so unfair as to result in a loss of life or liberty without due process of law, whether they took the form of a prosecutor's knowing use of perjured testimony and suppression of evidence that would impeach it, or of a denial of the assistance of counsel in criminal prosecutions, or of confessions or guilty pleas secured by government coercion.

Early in the 1940s, the Court stopped requiring that an alleged constitutional violation void the jurisdiction of the trial court before federal habeas relief could be considered. Federal judges soon complained that federal prisoner abuses of habeas had become "legion." Congress responded by incorporating into the 1948 revision of the judicial code the first major revision of the federal habeas statute since 1867.

State courts exerted little pressure for revision of the federal habeas statute in 1948. Although habeas relief had been available to state prisoners by statute since 1867 and subsequent decisions seemed to invite access, the hospitality that federal habeas extended to state convicts with due process and other federal constitutional claims had not yet become apparent.

This all changed over the next two decades. As noted earlier, some of the change was attributable to expansive Supreme Court interpretations of the procedural guarantees of the Bill of Rights and of the extent to which those guarantees were binding upon the states through the due process clause of the Fourteenth Amendment.

Federal habeas was the vehicle used to carry much of the due process expansion to the states. After Brown v. Allen , 344 U.S. 443 (1953), there was little doubt that the federal habeas corpus statute afforded relief to state prisoners whose convictions were tainted by constitutional violations, both those violations that would void state court jurisdiction and those that would not.

The majority position in Brown on the impact of the Court's denials of certiorari contributed to the expansion of federal habeas as well. When the Court refused to review a state case by denying certiorari, it thereby left the decision of the state's high court intact. If this should be read as the Court's endorsement of the state's disposal of constitutional issues as part of the normal appellate process, it would seem to chill any subsequent lower federal court reconsideration of those issues under habeas. Brown precludes such a result.

The Court's denials of certiorari meant no more than that the Court had declined to hear the case; no conclusions on the Court's view of the issues raised could be drawn from its declinations. Moreover, in subsequent habeas proceedings, the lower federal courts were not bound by state resolution of federal constitutional issues, even if the state courts had given applicants for the writ a full and fair hearing on the very same issues raised on habeas.

But the requirement to exhaust state remedies remained. Brown held that a state prisoner, seeking habeas relief, could not satisfy the requirement merely by showing that a remedy, once open to him, had been lost by his own inaction.

The Court eased the exhaustion restriction considerably in Fay v. Noia , 372 U.S. 391 (1963), in which it held that federal courts were permitted, but not required, to deny habeas for an intentional failure to exhaust state remedies. At the same time, it articulated circumstances under which the evidentiary hearing, found permissible in Brown , would be mandatory, Townsend v. Sain , 372 U.S. 293 (1963).

Relaxation of the default bar coupled with expansion of the circumstances under which constitutional issues might be reconsidered forecast the possibility of repetitious habeas applications and of lower court efforts to discourage repetition. The Court and Congress anticipated and combined to control such eventualities.

Within weeks of Noia and Townsend , the Court announced the rule applicable for federal prisoners in Sanders v. United States , 373 U.S. 1 (1963). "Controlling weight may be given to denial of a prior application for federal habeas corpus ... relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, ... (3) the ends of justice would not be served by reaching the merits of the subsequent application" and (4) any new ground presented in the subsequent application had been deliberately abandoned or withheld earlier under the same test used in state cases for default. 373 U.S. at 15, 17-18. Congress closed the circle in 1966 by amending the federal habeas statute to apply a rough equivalent of the Sanders rule to state prisoner petitions for federal habeas, 28 U.S.C. 2244, 2254.

The few years which followed Sanders probably stand as the high water mark for the reach of federal habeas corpus. But by the early seventies, the Supreme Court had begun to announce a series of decisions grounded in the values of respect for the work of state courts and finality in the process of trial and review. Thus, for example, state prisoners who fail to afford state courts an opportunity to correct constitutional defects are barred from raising them for the first time in federal habeas in the absence of a justification. Nor may they scatter their habeas claims in a series of successive petitions. Those who plead guilty and thereby waive, as a matter of state law, any constitutional claims, may not use federal habeas to revive them. And with narrow exception, state prisoners may not employ federal habeas as a means to assert, or retroactively claim the benefits of, a previously unrecognized interpretation of constitutional law (i.e., a "new rule").

Contemporary Limits on the Exercise of Habeas Jurisdiction

The Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132 , 110 Stat. 1214 (1996) (AEDPA), codified, supplemented, and expanded upon the Court's limitations on the availability of the writ. AEDPA was the culmination and amalgamation of disparate legislative efforts, including habeas proposals, some them stretching back well over a decade. Its adjustments help define the contemporary boundaries of the current writ.

Deference to State Courts

Before passage of the AEDPA, state court interpretations or applications of federal law were not binding in subsequent federal habeas proceedings. The debate that led to passage was marked by complaints of delay and wasted judicial resources countered by the contention that federal judges should decide federal law. Out of deference to state courts and to eliminate unnecessary delay, the AEDPA bars federal habeas relief on a claim already passed upon by a state court "unless the adjudication of the claimâ(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," 28 U.S.C. 2254(d).

For purposes of section 2254, an unreasonable application of clearly established federal law, as determined by the Supreme Court "occurs when a state court 'identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of'" the case before it. Moreover, the Court has said on several occasions, the question before the federal courts when they are confronted with a challenged state court application of a Supreme Court recognized principle is not whether the federal courts consider the application incorrect but whether the application is objectively unreasonable.

On the other hand, for purposes of section 2254(d)(1), a decision is "contrary to ... clearly established federal law, as determined by the Supreme Court," "if it applies a rule that contradicts the governing law set forth in the [Supreme Court's] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of [the] Court but reaches a different result." Obviously, a state court determination of a question which relevant Supreme Court precedent leaves unresolved can be neither contrary to, nor an unreasonable application, of Court precedent.

The Court has had fewer occasions to construe the unreasonable-determination-of-facts language in section 2254(d)(2). Several cases have involved the prosecution's purportedly discriminatory peremptory jury strikes in which context the Court declared that, "a federal habeas court can only grant [such a] petition if it was unreasonable to credit the prosecutor's race-neutral explanations for the Batson challenge. State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by 'clear and convincing evidence.' Â§2254(e)(1)."

Exhaustion . The deference extended to state courts reaches not only their decisions but the opportunity to render decisions arising within the cases before them. State prisoners were once required to exhaust the opportunities for state remedial action before federal habeas relief could be granted, 28 U.S.C. 2254(b),(c) (1994 ed.). This "exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings. Under our federal system, the federal and state courts [are] equally bound to guard and protect rights secured by the Constitution," Ex parte Royall , 117 U.S. 241, 251 (1886). Because "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation," federal courts apply the doctrine of comity, which "teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereign with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter," Darr v. Burford , 339 U.S. 200, 204 (1950).

"A rigorously enforced total exhaustion rule encourage[s] state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error. As the number of prisoners who exhaust all of their federal claims increases, state courts may become increasingly familiar with and hospitable toward federal constitutional claims. Equally important, federal claims that have been fully exhausted in state courts will more often be accompanied by a complete factual record to aid the federal courts in their review," Rose v. Lundy , 455 U.S. 509, 518-19 (1982).

The AEDPA preserves the exhaustion requirement, and reinforces it with an explicit demand that a state's waiver of the requirement must be explicit. On the other hand, Congress appears to have been persuaded that while as a general rule constitutional questions may be resolved more quickly if state prisoners initially bring their claims to state courts, in some cases where a state prisoner has mistakenly first sought relief in federal court, operation of the exhaustion doctrine may contribute to further delay. Hence, the provisions of 28 U.S.C. 2254(b)(2) authorize dismissal on the merits of mixed habeas petitions filed by state prisoners.

Successive Petitions

The AEDPA bars repetitious habeas petitions by state and federal prisoners, 28 U.S.C. 2244(b). Under earlier law, state prisoners could not petition for habeas relief on a claim they had included or could have included in earlier federal habeas petitions unless they could show "cause and prejudice" or a miscarriage of justice. Cause could be found in the ineffective assistance of counsel, Kimmelman v. Morrison , 477 U.S. 365 (1986); the subsequent development of some constitutional theory which would have been so novel at the time it should have been asserted as to be considered unavailable, Reed v. Ross , 468 U.S. 1 (1984); or the discovery of new evidence not previously readily discoverable, Amadeo v. Zant , 486 U.S. 214 (1988).

A prisoner unable to show cause and prejudice might nevertheless be entitled to federal habeas relief upon a showing of a "fundamental miscarriage of justice," that is, that "the constitutional error probably resulted in the conviction of one who was actually innocent." "To establish the requisite probability, the petition must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." The Court's pre-AEDPA tolerance for second or successive habeas petitions from state prisoners was limited; the tolerance of the AEDPA is, if anything, more limited. "If the prisoner asserts a claim that he has already presented in a previous federal habeas petition, the claim must be dismissed in all cases." A claim not mentioned in an earlier petition must be dismissed unless it falls within one of two narrow exceptions: (A) it relies on a newly announced constitutional interpretation made retroactively applicable; or (B) it is predicated upon on newly discovered evidence, not previously available through the exercise of due diligence, which together with other relevant evidence establishes by clear and convincing evidence that but for the belatedly claimed constitutional error "no reasonable factfinder would have found the applicant guilty," 28 U.S.C. 2244(b)(2). Moreover, the exceptions are only available if a three judge panel of the federal appellate court authorizes the district court to consider the second or successive petition because the panel concludes that the petitioner has made a prima facie case that his claim falls within one of the exceptions, 28 U.S.C. 2244(b)(3). And the section purports to place the panel's decision beyond the en banc jurisdiction of the circuit and the certiorari jurisdiction of the Supreme Court, 28 U.S.C. 2244(b)(3)(E). The Supreme Court, in Felker v. Turpin , held that because it retained its jurisdiction to entertain original habeas petitions neither the gatekeeper provisions of section 2244(b)(3) nor the limitations on second or successive petitions found in sections 2244(b)(1) and (2) deprive the Court of appellate jurisdiction in violation of Article III, Â§2. At the same time, it held that the restrictions came well within Congress' constitutional authority and did not "amount to a 'suspension' of the writ contrary to Article I, Â§9." In Castro v. United States , 540 U.S. 375, 379-81 (2003), the Court held that section 2244(b)(3)(E) constraint upon its certiorari jurisdiction is limited to instances where the lower appellate court has acted on a request to file a successive petition, and does not apply to instances where the lower appellate court has reviewed a trial court's successive petition determination. A claim, which becomes ripe after an earlier petition, such as a claim that the petitioner's mental health precludes his execution, is not considered a second petition.

Statute of Limitations

Until the mid-20 th century, a federal habeas corpus petition could be filed and the writ granted at any time as long as the petitioner remained under government confinement, but court rules applicable to both state and federal prisoners were then adopted to permit the dismissal of stale petitions if the government's ability to respond to the petition has been prejudiced by the passage of time. The Rules did not preclude federal habeas review merely because the government's ability to retry the petitioner had been prejudiced by the passage of time; nor did they apply where the petitioner could not reasonably have acquired the information necessary to apply before prejudice to the government occurred, Rules 9(a), supra .

The AEDPA establishes a one-year deadline within which state and federal prisoners must file their federal habeas petitions, 28 U.S.C. 2244(d), 2255. The period of limitations begins with the latest of:

the date of final completion of direct state review procedures; the date of removal of a government impediment preventing the prisoner from filing for habeas relief; the date of Supreme Court recognition of the underlying federal right and of the right's retroactive application; or the date of uncovering previously undiscoverable evidence upon which the habeas claim is predicated.

The period is tolled during the pendency of state collateral review, that is, "during the interval between (1) the time a lower state court reaches an adverse decision, and (2) the day the prisoner timely files an appeal." When the state appeal is not filed in a timely manner, when it "is untimely under state law, that is the end of the matter for purposes of 2244(d)(2)." A qualifying petition must be "properly filed" with the appropriate state court, but a petition for state collateral review is no less properly filed simply because state procedural requirements other than timeliness preclude the state courts from ruling on the merits of the petition.

Amendments, submitted after the expiration of a year, to a petition filed within the one year period limitation, that assert claims unrelated in time and type to those found in the original petition do not relate back and are time barred. A state may waive the statute of limitations defense, but its intent to do so must be clear and not simply the product of a mathematical miscalculation.

The statute of limitations provisions initially presented a novel problem for district courts faced with mixed petitions of exhausted and unexhausted claims. Before the AEDPA, district courts could not adjudicate mixed petitions but were required to first give state courts the opportunity to resolve the unexhausted claims. Petitioners could then return to habeas for adjudication of any remaining exhausted claims. "As a result of the interplay between AEDPA's 1-year statute of limitations and Lundy ' s dismissal requirement, petitioners who come to federal court with 'mixed' petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims. If a petitioner files a timely but mixed petition in federal district court, and the district court dismisses it under Lundy after the limitations period has expired, this will likely mean the termination of any federal review." Nevertheless, the district court is under no obligation to warn pro se petitions of the perils of mixed petitions. Although cautioning against abuse if too frequently employed, the Court endorsed the "stay and abeyance" solution suggested by several of the lower courts, under which in appropriate cases, the portion of a state prisoner's mixed petition related to exhausted habeas claims are stayed and held in abeyance until he can return to state court and exhaust his unexhausted claims.

Appeals

At one time, an appeal from a federal district court's habeas decision could only proceed upon the issuance of a probable cause certification issued by either the district court judge or a federal appellate judge that the appeal involved an issue meriting appellate consideration, and could only be granted after the prisoner had made a "substantial showing of the denial of [a] federal right.

With slight changes in terminology, the AEDPA leaves the matter largely unchanged. Appeals are only possible upon the issuance of certification of appealability (COA), upon a substantial showing of a constitutional right. A petitioner satisfies the requirement when he can show that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."

This does not require the petitioner show a likelihood of success on the merits; it is enough that reasonable jurists would find that the claim warrants closer examination. Should the district have dismissed the habeas petition on procedural grounds, a COA may be issued only upon the assessment that reasonable jurists would consider both the merits of the claim and the procedural grounds for dismissal debatable. Because the COA requirement is jurisdictional, an appellate court may not treat an application of the COA as an invitation to immediately pass upon the merits without first granting the certificate. Although the Court had declared that it lacked statutory jurisdiction to review the denial of a certificate of probable cause under a writ of certiorari, the denial of a COA may be challenged under the writ.

Default

In Wainwright v. Sykes , 433 U.S. 72 (1977), and the cases which followed its lead, the Court declared that state prisoners who fail to raise claims in state proceedings are barred from doing so in federal habeas proceedings unless they can establish both "cause and prejudice." The Court later explained that the same standard should be used when state prisoners abused the writ with successive petitions asserting claims not previously raised, and when they sought to establish a claim by developing facts which they had opted not to establish during previous proceedings. Of the two elements, prejudice requires an actual, substantial disadvantage to the prisoner.

What constitutes cause is not easily stated. Cause does not include tactical decisions, ignorance, inadvertence or mistake of counsel, or the assumption that the state courts would be unsympathetic to the claim. Cause may include the ineffective assistance of counsel; some forms of prosecutorial misconduct; the subsequent development of some constitutional theory which would have been so novel at the time it should have been asserted as to be considered unavailable; or the discovery of new evidence not previously readily discoverable.

Federal courts may entertain a habeas petition, notwithstanding default and the failure to establish cause, in any case where failure to grant relief, based on an error of constitutional dimensions, would result in a miscarriage of justice due to the apparent conviction of the innocent, Murray v. Carrier, supra. In order the meet this "actually innocent" standard, the prisoner must show that "it is more likely than not that no reasonable juror would convict him." When the petitioner challenges his capital sentence rather than his conviction, he must show "by clear and convincing evidence that, but for the constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty." This miscarriage of justice exception, whether addressed to the petitioner's guilt or sentence, is a matter that can be taken up only as a last resort after all nondefaulted claims for relief and the grounds for cause excusing default on other claims have been examined.

Actual Innocence

In Herrera v. Collins , 506 U.S. 390 (1993), the Court splintered over the question of whether newly discovered evidence of actual innocence, without some procedural error of constitutional magnitude, permitted habeas relief. Chief Justice Rehnquist, author of the opinion for the Court, finessed the issue by assuming without deciding that at some quantum of evidence of a defendant's innocence the Constitution would rebel against his or her execution. Short of that point and cognizant of the availability of executive clemency, newly discovered evidence of the factual innocence of a convicted petitioner, unrelated to any independent constitutional error, does not warrant habeas relief.

House v. Bell , 547 U.S. 518 (2006), came to much the same end. House supplied evidence of his innocence of sufficient weight to overcome the procedural default that would otherwise bar consideration of his habeas petition. "[W]hatever burden a hypothetical freestanding innocence claim would require," however, the record in House (new evidence and old) was not sufficient.

In re Davis affords the Court the opportunity to consider anew the issue it put aside in Herrera and House âmay habeas relief be granted on the basis of a freestanding claim of innocence, and if so, what level of persuasion is required before such relief may be granted? The Supreme Court transferred Davis' habeas petition to the U.S. District Court for the Southern District of Georgia to receive evidence and make findings concerning Davis' innocence. Justice Scalia, joined by Justice Thomas, characterized the transfer as a "fool's errand," since in their view the lower court may not grant habeas relief regardless of its findings. Justice Stevens, in a concurrence joined by Justices Ginsburg and Breyer, disagreed.

Harmless Error

The mere presence of constitutional error by itself does not present sufficient grounds for issuance of the writ unless the error is also harmful, i.e., "unless the error had a substantial and injurious effect or influence in determining the jury's verdict." The writ will issue, however, where the court has grave doubt as to whether the error was harmless.

New Rules and Retroactivity

A line of cases beginning with Teague v. Lane , 489 U.S. 288 (1989) drastically limits use of federal habeas to raise novel legal issues by restricting for habeas purposes the retroactive application of the Supreme Court's decisions.

Prior to Teague when the Court announced a new rule concerning constitutional requirements binding in state criminal procedure cases, it employed one of two approaches. In some cases, it simultaneously announced whether the new rule was to have retroactive or prospective applications. In others, it postponed that decision until a subsequent case. In either instance, the Court employed a test first articulated in Linkletter v. Walker , 381 U.S. 618 (1965), to determine whether a new rule should be applied retroactively. Under the test, the Court considered "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards."

In Teague , the Court adopted a different approach, borrowing from a position espoused earlier by Justice Harlan. Under this view, habeas is perceived as a deterrent used to encourage state and lower federal courts to adhere to constitutional standards. Therefore, a novel constitutional interpretation, or "new rule" should not be applied retroactively during federal habeas review of state convictions since state courts could only be expected to defer to those rules in existence when their consideration became final. Furthermore, since it would be unfair to grant a habeas petitioner the benefit of a new rule but deny its benefits retroactively to others similarly situated, a plurality of the Court held that "habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review" under one of the two exceptions where retroactive application is permitted, 489 U.S. at 316.

Thus, under Teague and its companion, Penry v. Lynaugh , 492 U.S. 302 (1989), a new rule cannot be sought through federal habeas and a new rule may only be applied retroactively for the benefit of habeas petitioners when (1) the new interpretation "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," 489 U.S. at 307, or places "a certain category of punishment for a class of defendants because of their status or offense" beyond the power of the criminal law-making authority to proscribe, 492 U.S. at 329, or (2) the new interpretation "significantly improve[s] the pre-existing fact finding procedures ... [which] implicate the fundamental fairness of the trial ... [and] without which the likelihood of an accurate conviction is seriously diminished," 489 U.S. at 312-13.

In order to constitute a new interpretation or "new rule" for purposes of the exceptions, the interpretation must "break new ground or impose a new obligation on the States or Federal Government," or "[t]o put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final," 489 U.S. at 301 (emphasis of the Court). A decision may announce a "new rule" for purposes of Teague , even if the Court states its decision is "dictated by precedent," as long as a split in the lower courts or some other source of authority provides a ground upon which a different outcome might reasonably have been anticipated, for the Teague rule "serves to validate reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions."

The Court has more recently indicated that the rules covered in the first exception, the exception for rules that place certain conduct beyond proscriptive reach, are more accurately characterized as substantive rather than procedural rules and thus not subject to the Teague rule from the beginning.

The second exception, available to new "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding" like Gideon v. Wainwright , 372 U.S. 335 (1963), does not extend to cases less indispensible to fundamental fairness than Gideon . The Court observed in Beard v. Banks that it has yet to rule on a case that satisfied this second Teague exception.

Opting In

The most controversial of the proposals that preceded enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) involved habeas in state capital cases. Capital habeas cases presented special problems. Existing procedures afforded not only the incentive, but the opportunity, for delay. A state defendant convicted of a capital offense and sentenced to death could take advantage of three successive procedures to challenge constitutional defects in his or her conviction or sentence. His or her claims could be raised on appeal, in state habeas proceedings, and in federal habeas proceedings. As a consequence, there were extensive delays between sentence and execution of sentence.

In June 1988, Chief Justice Rehnquist named a committee chaired by retired Justice Powell to study "the necessity and desirability of legislation directed toward avoiding delay and the lack of finality in capital cases in which the prisoner had or had been offered counsel." The Committee identified three problems associated with federal habeas corpus in state capital punishment cases: unnecessary delay and repetition, the need to make counsel more generally available, and last minute litigation. The Committee recommended amendments to the federal habeas statute and Chief Justice Rehnquist transmitted its report to Congress in September 1989.

Congress weighed the recommendations, but initially enacted no major revision, other than the provision in the 1988 Anti-Drug Abuse Act that required the appointment of counsel in conjunction with federal habeas in capital punishment cases. The AEDPA, however, offered procedural advantages to the states to ensure the continued availability of qualified defense counsel in death penalty cases, 28 U.S.C. 2261-2266. Prior to the AEDPA, federal law called for the appointment of counsel to assist indigent state prisoners charged with or convicted of a capital offense at every stage of the proceedings other than during collateral review in state court. The AEDPA offered a streamlined habeas procedure in cases involving state death row inmates to those states that fill this gap, 28 U.S.C. 2261, 2265.

When it became apparent that the states could not or would not opt in, Congress changed the procedure under which states are deemed to have qualified, 28 U.S.C. 2265. Under amendments in the USA PATRIOT Improvement and Reauthorization Act of 2005, the Attorney General rather than the courts determines whether a state has taken the steps necessary to opt in. States that elect to opt in must still provide a "mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in state postconviction proceedings," 28 U.S.C. 2265(c). References to competence standards for appointed counsel were removed. Although it might be thought that the authority to promulgate such standards comes within the Attorney General's newly granted regulatory authority, 28 U.S.C. 2265(b), the Justice Department does not believe the Attorney General has any such authority.

The Attorney General's certification that a state has taken the necessary steps to opt in is subject to de novo review in the United States Court of Appeals for the District of Columbia, an appeal which in turn is subject to certiorari review in the Supreme Court, 28 U.S.C. 2265(c). The Attorney General promulgated implementing regulations on December 11, 2008, which were opened for additional comments ending in April 2009.

For states that opt in, the AEDPA establishes a one-time automatic stay of execution for state death row inmates carrying through until completion of the federal habeas process, 28 U.S.C. 2262. Previously, the federal habeas statute authorized federal courts to stay the execution of a final state court judgment during the pendency of a state prisoner's federal habeas proceedings and related appeals, 28 U.S.C. 2251 (1994 ed.). Federal appellate courts could consider motions for a stay, pending review of the district court's decision or at the same time they considered the merits of the appeal. This regime encouraged unnecessary litigation over whether a stay was or was not in order and often resulted in state death row inmates waiting until the last hour before simultaneously filing a motion for a stay and an appeal from the district court's denial of the writ.

The AEDPA creates a 180-day statute of limitations for filing federal habeas petitions after the close of state proceedings with the possibility of one 30-day extension upon a good cause showing for states that opt in, 28 U.S.C. 2263.

When a state opts in, federal habeas review of a claim filed by a state death row inmate is limited to issues raised and decided on the merits in state court unless the state unlawfully prevented the claim from being raised in state court, or the claim is based on a newly recognized, retroactively applicable constitutional interpretation or on newly unearthed, previously undiscoverable evidence, 28 U.S.C. 2264.

In cases where the federal habeas application has been filed by a prisoner under sentence of death under the federal law or the laws of a state which has opted in, the government has a right, enforceable through mandamus, to a determination by the district court within 450 days of the filing of an application and by the federal court of appeals within 120 days of the filing of the parties' final briefs, 28 U.S.C. 2266.

Habeas for Federal Convicts: The Section 2255 Substitute

Federal prisoners who claim that they are being held by virtue of a conviction or sentence rendered contrary to the Constitution or laws of the United States must ordinarily repair to section 2255 of title 28 of the United States Code for collateral review. Congress added section 2255 when it revised title 28 in 1948 to expedite review. The section "replaced traditional habeas corpus for federal prisoners.... The purpose and effect of the statute was not to restrict access to the writ but to make postconviction proceedings more efficient." The section "was intended to mirror Â§2254 in operative effect," although there are occasionally differences between the two. When the Antiterrorism and Effective Death Penalty Act (AEDPA) amended the provisions governing access to habeas by state prisoners, but in some instances it made comparable changes in section 2255.

Thus, both the state inmate's habeas petition and federal convict's section 2255 motion must be filed within a year after their direct appeals become final. "An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus." As for procedural default, "[w]here the petitionerâwhether a state or federal prisonerâfailed property to raise his claim on direct review, the writ is available only if the petitioner establishes cause for the waiver and shows actual prejudice resulting from the alleged violation."

The Supreme Court has yet to address the question of whether the Teague rule, which requires a new constitutional interpretation be claimed on direct appeal rather in habeas, applies to section 2255. The Court has noted, however, that the lower federal courts have applied the Teague rule to section 2255. The statutory provisions governing both petition and motion restrict relief for second or successive invocations in much the same manner, but they do so in different terminology.

Congressional Authority to Bar or Restrict Access to the Writ

For many years, one of the most interesting and perplexing features of federal habeas involved the question of Congress' authority to restrict access to the writ. The Constitution nowhere expressly grants a right of access to the writ, although it might be seen as attribute of the suspension clause or the due process clause or both. Yet the suspension clause says no more than that "the privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it," U.S. Const. Art.I, Â§9, cl.2. And the due process clause speaks with an equal want of particularity when it declares that, "no person shall ... deprived of life, liberty, or property, without due process of law," U.S. Const. Amend. V. Balanced against this, is the power of Congress to "ordain and establish" the lower federal courts, U.S. Const. Art. III, Â§1; to regulate and make exceptions to the appellate jurisdiction of the Supreme Court, U.S. Const. Art. III, Â§2, cl.2; to enact all laws necessary and power to carry into effect the constitutional powers of the courts as well as its own, U.S.Const. Art. I, Â§8, cl.18; and the power to suspend the privilege to the writ in times of rebellion or invasion, U.S. Const. Art. I, Â§9, cl.2.

In the past, when it seemed that Congress had extinguished the habeas jurisdiction of the lower courts, the Supreme Court observed that it retained jurisdiction to issue the writ on a petition filed originally with the Supreme Court, following a denial for want of jurisdiction or other action in a lower court. When legislation finally attempted to seal off this avenue to the Great Writ as well, the Court confirmed that separation of powers concerns reflected in the suspension clause preclude absolute denial of access to the writ (or to an adequate substitute) except under the circumstances noted in the suspension clause.

The Original Writ

The Constitution vests the judicial power of the United States in the Supreme Court and in the inferior courts created by Congress, and describes two classes of Supreme Court jurisdiction, original and appellate. It explicitly identifies the kinds of cases which fall within the Court's original jurisdiction; the Court's appellate jurisdiction is portrayed more generally and with the notation that it is subject to Congressional exception and regulation.

The Judiciary Act of 1789 declared that "all the before mentioned courts of the United States [the Supreme Court, circuit courts, and district courts] shall power to issue writs of ... habeas corpus.... And that either of the justices of the supreme court, as well as judges of the district courts shall power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.... "

After the Civil War, Congress conferred additional habeas authority upon the federal courts as a check against state authorities in the newly reconstructed South by making the writ available to anyone held in violation of the Constitution and other laws of the United States. It vested appellate jurisdiction over lower court exercise of this new authority in the Supreme Court, but made an exception for prisoners held by military authorities.

Notwithstanding the exception for prisoners held under military authority, the first case to come before the Court involved William McCardle, a Mississippi newspaper editor, arrested by military authorities for trial by a military commission under the reconstruction laws on charges of inciting "insurrection, disorder and violence." His petition for a writ of habeas corpus was denied by the federal circuit court and he appealed to the Supreme Court.

The government moved to dismiss the appeal on the ground that appeal had been expressly excluded in cases involving Confederate sympathizers held in military custody. The Court denied the motionâbecause the military custody exception applied only to the expansion of habeas afforded by the 1867 Act while McCardle called upon the pre-existing habeas authority of the Judiciary Act of 1789âand set the case for argument, Ex parte McCardle , 73 U.S.(6 Wall.) 318 (1868). But before the case could be decided on its merits, Congress repealed the law vesting appellate jurisdiction in the Court.

Its jurisdiction to decide the appeal having been withdrawn, the Court dismissed the appeal for want of jurisdiction, Ex parte McCardle , 74 U.S.(7 Wall.) 506 (1868). In doing so, however, the Court made it clear that the loss of its jurisdiction to hear appeals in habeas cases did not mean the loss of its ability to review lower court habeas decisions altogether. The review available prior to the 1867 Act remained available just as the Court had described in its earlier McCardle case:

But, though the exercise of appellate jurisdiction over judgments of inferior tribunals was not unknown to the practice of this court before the act of 1867, it was attended by some inconvenience and embarrassment. It was necessary to use the writ of certiorari in addition to the writ of habeas corpus, and there was no regulated and established practice for the guidance of parties invoking the jurisdiction, 73 U.S.(6 Wall.) at 324.

The Court reexamined and confirmed this view the following year when it concluded that it had jurisdiction under writs of habeas corpus and certiorari to review the case of another Mississippi newspaper man held by military authorities. The 1868 Act repealed appellate jurisdiction vested in the Court by the 1867 Act. The 1868 Act did not repeal any of the provisions of the Judiciary Act of 1789; the Court's earlier authority to review habeas cases from the lower federal courts through writs of habeas corpus, aided by writs of certiorari, remained available, Ex parte Yerger , 75 U.S.(8 Wall.) 85 (1869).

The question as to the scope of Congress' control over Court's appellate jurisdiction in habeas cases surfaced again when a prisoner challenged the AEDPA's habeas limitations in Felker v. Turpin , 518 U.S. 651 (1996). In particular, Felker argued that the provisions of 28 U.S.C. 2244(b) (3)(E) which declared the appellate court determination of whether to authorize a second or successive habeas petition was neither appealable nor "subject to a petition for rehearing or for a writ of certiorari."

As before, the Court took no offense to the limitation of habeas appellate jurisdiction. Since the AEDPA "does not repeal [the Court's] authority to entertain a petition for habeas corpus, there can be no plausible argument that the Act has deprived this Court of appellate jurisdiction in violation of Article III, Â§2," 518 U. S. at 661-62. Review remained possible under the "original" writ of habeas corpus.

After McCardle and Yerger , Congress restored the Court's jurisdiction to review habeas cases under less cumbersome appellate procedures in 1885, 23 Stat. 437. Once Congress reopened more normal means of Supreme Court review in habeas cases, recourse to the original writ of habeas corpus in the Supreme Court described in McCardle and Yerger had been infrequent and rarely successful. Seen only as a burdensome way station of the unartful and ill advised, its best known chronicler urged its effective abandonment.

Yet it offered the Court in Felker precisely what it supplied in McCardle and Yerger , a means of preserving Supreme Court review, under circumstances where Congress rather clearly intended to deny that possibility, without forcing the Court to address the question of whether Congress' efforts exceed its constitutional authority.

The Supreme Court, in an opinion by Chief Justice Rehnquist, declared that "although the Act does impose new conditions on [the Court's] authority to grant relief, it does not deprive [the] Court of jurisdiction to entertain original habeas petitions," Felker v. Turpin , 518 U.S. at 658. Just as McCardle and Yerger "declined to find a repeal of Â§14 of the Judiciary Act of 1789 as applied to [the] Court by implication ... [ Felker ] decline[s] to find a similar repeal of Â§2241 of Title 28.... " 518 U.S. at 661.

Of course Felker sought not only review, but reversal. The Court refused to grant relief under its original writ authority because Felker's claims satisfied neither the demands of the Act nor those of the Court's Rule 20. It stopped short of holding, however, that it was required to follow the Act's standards in its original writ determinations: "Whether or not we are bound by these restrictions [of the AEDPA], they certainly inform our consideration of original habeas petitions," 518 U.S. at 663. Its reticence may have been calculated to avoid any suggestion that suspension or exception clauses have become dead letters.

Although it concluded that Felker had not satisfied the requirement that the original writ issue only upon "exceptional circumstances," the Court did not say why nor did it indicate when such exceptional circumstances might exist. On the other hand, the Court's denial makes it clear that McCardle and Yerger notwithstanding, legislative barriers blocking access to the more heavily traveled paths to review do not by themselves constitute the necessary exception circumstances.

It is interesting that the Court sought refuge in the arcane confines of "original" habeas rather than acknowledging that the gatekeeper provision came within Congress' power under the exceptions and regulations clause whatever limitations that power might otherwise be subject to. Given the expedited nature of the proceedings, it might have meant no more than the Court lacked the time to formulate an opinion outlining the dimensions of the clause in terms that a majority on the Court could endorse. A simpler explanation may be that, in deference to the political branches, the Court sought every means to avoid suggesting that they might have overstepped their constitutional bounds. Historically, the Court has been reluctant to holding that the privilege of the writ had been denied other than through a lawful exercise of the suspension clause.

Suspension of the Privilege of the Writ

The suspension clause, housed among the explicit limitations on the Constitutional powers of Congress, declares that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it," U.S.Const. Art. I, Â§9, cl.2.

The English history of the writ helps explains its purpose. When the King and the royal courts began to recognize restrictions on the writ, the English Parliament had responded with the Habeas Corpus Act of 1679. But in times of crisis, the Parliament allowed that the privilege of the writ should be temporarily suspended upon its approval.

Perhaps the most notable of these suspensions occurred during the American Revolution when Parliament annually enacted suspension provisions to permit temporary imprisonment of the rebelling colonists without bail or trial for the duration of the year. Not to be outdone, several colonial legislatures afforded their executive officials similar authority to deal with those loyal to the crown.

Early in the Republic, President Jefferson sought and was denied a suspension. During the Civil War, perhaps remembering Congress' rejection of Jefferson's suspension requests, President Lincoln did not bother to request authority to suspend at first. He simply instructed his military commanders, in ever broadening terms, to suspend access to the writ as they felt appropriate.

After Chief Justice Taney, acting upon a petition presented in chambers, held the President had exceeded his authority, Ex parte Merryman , 17 Fed.Cas. 144 (No. 9,487) (C.C.D.Md. 1861), Congress ratified Lincoln's efforts with sweeping suspension legislation. In Ex parte Milligan , 71 U.S. (4 Wall.) 2, 130-31 (1866), the Court concluded that the suspension clause operated to afford a prisoner's jailers a defense as to why they should not release the prisoner once the court had issued the writ instructing them to bring the prisoner before the court and justify the imprisonment, "The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on the return made to it, the court decides whether the party applying is denied the right of proceeding further with it."

Ex parte Milligan and experience during the period leading up to the drafting of the suspension clause offer scant support for the suggestion that the suspension clauses must be read as a general limitation upon Congress' authority to enact habeas legislation. Nevertheless, there were grounds for the contention that suspension of the privilege of the writ meant more than that, in times and places of trouble, particular individuals might be temporarily denied access to the writ and jailed without bail or trial by a court of competent jurisdiction. In more contemporary times, the Court and scholars pondered the extent to which the suspension clause marks an outer limit of the authority of Congress and the courts to adjust the procedures associated with the writ. If, as these authorities indicated, the suspension clause enjoyed organic qualities that permit it to expand and contract under various environmental circumstances, several evolutionary stages of the modern writ deserve repeating.

First, as part of the Reconstruction after the Civil War, Congress expanded federal habeas to make it available to state prisoners held in violation of federal law. Second, by the early forties the Court had completed its slow abandonment of the common law prohibition against use of habeas to attack a conviction or sentence collaterally. Thereafter, the Court used an expanded habeas to help carry the commands of the Bill of Rights to the state criminal procedure. Beginning in the seventies, the Court announced a series of doctrines calculated to eliminate unnecessary delay, repetition and frivolity. The AEDPA extended this last trend.

Felker dispelled any contention that the AEDPA's provisions violated the suspension clause. The Georgia Attorney General and the Solicitor General each denied that the suspension clause had been violated. The Court agreed. It did not rely on the proposition that the suspension clause does not extend to convicted prisoners or any other prisoners ineligible for the writ under common law, however, but "assume[d], for purposes of decision here, that the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789," 518 U.S. at 663-64.

Even under this relaxed standard, it found any claim based on Felker's case wanting. The AEDPA's limitation on repetitious or stale claims was seen as a variation of res judicata, which in the area of habeas had been an "evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions," 518 U.S. at 664, quoting McCleskey v. Zant , 499 U.S. 467, 489 (1991). "The added restrictions which the Act places on second habeas petitions are well within the compass of this evolutionary process and ... do not amount to a 'suspension' of the writ contrary to Article I, Â§9," 518 U.S. at 664.

Shortly after Felker , however, the Court narrowly construed Congressional efforts to restrict review of various immigration decisions and recognized that the courts retained jurisdiction to review habeas petitions, with the observation that otherwise serious suspension clause issues would arise.

The Court was compelled to face the issue of Congress' constitutional authority to absolutely bar access to the writ, which the Court avoided in Felker , in Boumediene v. Bush , 128 S.Ct. 2229 (2008). Boumediene was among the foreign nationals detained at the U.S. Naval Station at Guantanamo Bay, Cuba. Until Hamdi v. Rumsfeld , 542 U.S. 507 (2004) held otherwise, the government questioned whether habeas remained available to citizens seized in a combat zone. Thereafter, the Defense Department established tribunals to determine whether detainees were in fact enemy combatants. However, until Rasul v. Bush , 542 U.S. 466 (2004) held otherwise, the government questioned whether detainees held outside the United States, whether in Guantanamo or elsewhere, rested beyond the habeas reach of U.S. courts.

While the detainees' subsequent habeas petitions were pending, Congress passed the Detainee Treatment Act, providing combatant status review tribunal procedures and stating that "no court, justice, or judge shall have jurisdiction to hear or consider" a habeas petition filed on behalf of a foreign national detained in Guantanamo, 119 Stat. 2742 (2006). After the Court held that the Detainee Treatment Act provision did not apply to cases pending prior to its enactment, Hamdan v. Rumsfeld , 548 U.S. 557 (2006), Congress passed the Military Commissions Act, which made the provision applicable to pending cases, 120 Stat. 2636 (2007).

At this point, the constitutional issue could not be avoided. The government argued in Boumediene "that noncitizens designated as enemy combatants and detained in territory located outside our Nation's borders have no constitutional rights and no privilege to habeas corpus." The detainees disputed both claims. They argued that the legislation violated the suspension clause which declares that "[t]he privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

The Court began with the observation that, "[t]he Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom." The Framers also remembered the history of the English writ, with its periodic suspensions of the writ. "In our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the right of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the delicate balance of government that is itself the surest safeguard of liberty."

These separation of powers concerns and the history of the territorial scope of the writ led the Court to conclude that "Art. I, Â§ 9, cl. 2, of the Constitution has full effect at Guantanamo Bay." And so, the question became, did the suspension clause bar curtailment of habeas jurisdiction in the manner of the Military Commissions Act provision? Since the Military Commissions Act did not constitute a formal suspension of the writ, the issue was "whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus" in the Detainee Treatment Act's combatant status review tribunal procedures.

The Court found little precedent to guide its "adequate substitute" assessment. Felker involved a suspension clause challenge, but the provisions there did little more than replicate and codify pre-existing habeas jurisprudence. Besides, Felker arose following a state criminal conviction, hardly a close parallel to the federal detention without trial of Boumediene.

Two other "habeas substitute" casesâ Swain v. Pressley , 430 U.S. 372 (1977) and United States v. Hayman , 342 U.S. 205 (1952)âdo little to explain the characteristics of an adequate substitute, because they involved statutes designed to expand rather than curtail habeas relief.

So the Court identified, in context of Boumediene , the essential features of habeas corpus and any adequate substitute. First, it noted that "the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application of interpretation of relevant law." Second, "the necessary scope of habeas review in part depends upon the rigor of any earlier proceedings." Thus, "when a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is more pressing." Third, "[f]or the writ of habeas corpus, or its substitute to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occur during [prior] proceedings." Fourth, it must have "some authority to assess the sufficiency of the Government's evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding."

The Court found the Detainee Treatment Act procedures wanting when assessed against the standards of an adequate substitute for normal habeas procedures. Thus, the provision of the Military Combatants Act, purporting the curtail habeas jurisdiction with respect to Guantanamo detainees, was found to constitute an unconstitutional suspension of the writ.

Selected Bibliography

Books and Articles

Adelman, The Great Writ Diminished , 35 New England Journal of Criminal Law and Civil Commitment 1 (2009)

American Bar Association, Criminal Justice Section, Project on Death Penalty Habeas Corpus, Toward a More Just and Effective System of Review in State Death Penalty Cases (1990)

Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial , 113 University of Pennsylvania Law Review 793 (1965)

Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners , 76 Harvard Law Review 441 (1963)

â. The State Courts and Federal Constitutional Litigation , 22 William & Mary Law Review 605 (1981)

Berry, Seeking Clarity in the Federal Habeas For: Determining What Constitutes " Clearly Established " Law Under the Antiterrorism and Effective Death Penalty Act , 54 Catholic University Law Review 747 (2005)

Blume, AEDPA: The " Hype " and the " Bite " 91 Cornell Law Review 259 (2006)

Brennan, Federal Habeas Corpus and State Prisoners: An Exercise in Federalism , 7 Utah Law Review 423 (1961)

Chemerinsky, Thinking About Habeas Corpus , 37 Case Western Reserve Law Review 748 (1987)

Cover & Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court , 86 Yale Law Journal 1035 (1977)

Desmond, Federal Habeas Corpus Review of State Court Convictions , 50 Georgetown Law Journal 755 (1962)

Duker, A Constitutional History of Habeas Corpus (1980)

â. The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame , 53 New York University Law Review 983 (1978)

Falkoff, Back to Basics: Habeas Corpus Procedures and Long-Term Executive Detention , 86 Denver University Law Review 961 (2009)

Faust, Rubenstein & Yackle, The Great Writ in Action: Empirical Light on the Federal Habeas Corpus Debate , 18 New York University Review of Law Social Change 637 (1990/1991)

Freedman, Habeas Corpus: Rethinking the Great Writ of Liberty (2001)

Friedman, A Tale of Two Habeas , 73 Minnesota Law Review 247 (1988)

Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments , 38 University of Chicago Law Review 142 (1970)

Garrett, Claiming Innocence , 92 Minnesota Law Review 1629 (2008)

Garvey, Death-Innocence and the Law of Habeas Corpus , 56 Albany Law Review 225 (1992)

Hammel, Diabolical Federalism: a Functional Critique and Proposed Reconstruction of Death Penalty Federal Habeas , 39 American Criminal Law Review 1 (2002)

Hart, The Supreme Court 1958 Term â Forward: The Time of the Justices , 73 Harvard Law Review 84 (1959)

Hartnett, The Constitutional Puzzle of Habeas Corpus , 46 Boston College Law Review 251 (2005)

Hoffman & King, Rethinking the Federal Role in State Criminal Justice , 84 New York University Law review 791 (2009)

Hoffman & Stuntz, Habeas After the Revolution , 1993 Supreme Court Review 65

Hoffstadt, The Deconstruction and Reconstruction of Habeas , 78 Southern California Law Review 1125 (2005)

King & Sherry, Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences , 58 Duke Law Journal 1 (2008)

Kovarsky, AEDPA's Wrecks: Comity, Finality , and Federalism , 82 Tulane Law Review 443 (2007)

Landes, A New Approach to Overcoming the Insurmountable "Watershed Rule" Exception to Teague's Collateral Review Killer , 74 Missouri Law review 1 (2009)

Lasch, The Future of Teague Retroactivity, or "Red r esssability, After Danforth v. Minnesota: Why Lower Courts Should Give Retroactive Effect to New Constitutional Rules of Criminal Procedure in Postconvcition Proceedings , 46 American Criminal law review 1 (2009)

Lee, The Theories of Federal Habeas Corpus , 72 Washington University Law Quarterly 151 (1994)

â. Section 2254(d) of the Federal Habeas Corpus Statute: Is It Beyond Reason? 56 Hastings Law Journal 283 (2004)

Marceau, Deference and Doubt: The Interaction of AEDPA Â§2254(D)(2) and (E)(1) , 82 Tulane Law review 385 (2007)

Neuborne, The Myth of Parity , 90 Harvard Law Review 1105 (1977)

Oaks, Legal History in the High Court â Habeas Corpus , 64 Michigan Law Review 451 (1966)

â. The " Original " Writ of Habeas Corpus in the Supreme Court , 1962 Supreme Court Review 153

Paschal, The Constitution and Habeas Corpus , 1970 Duke Law Journal 605

Segal, Habeas Corpus, Equitable Tolling, and AEDPA's Statute of Limitations: Why the Schlup v. Delo Gateway Standard for Claims of Actual Innocence Fails to Allev i ate the Plight of Wrongfully Convicted Americans , 31 University of Hawaii Law Review 225 (2008)

Sloane, AEDPA ' s " Adjudication on the Merits " Requirement: Collateral Review, Federalism, and Comity 78 St. John's Law Review 615 (2004)

Steiker, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners , 92 Michigan Law Review 862 (1994)

Stevenson, The Politics of Fear and Death; Successive Problems in Capital Federal Habeas Corpus Cases , 77 New York University Law Review 699 (2002)

Traum, Last Best Chance for the Great Writ: Equitable Tolling and Federal Habeas Corpus , 68 Maryland Law Review 545 (2009)

Uhrig, A Cast for a Constitutional Right to Counsel in Habeas Corpus , 60 Hastings Law Journal 541 (2009)

United States House of Representatives, Habeas Corpus: Hearings Before Subcomm. No. 3 of the House Comm. on the Judiciary , 84 th Cong., 1 st Sess. (1955)

â. Habeas Corpus Legislation: Hearings Before the Subcomm. on Courts, Intellectual Property, and the Administration of Justice , 101 st Cong., 2d Sess. (1990)

â. Habeas Corpus Issues: Hearings Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary , 102d Cong., 1 st Sess. (1991)

â. Habeas Corpus: Hearings Before the Subcom m. on Civil and Constitutional Rights of the House Comm. on the Judiciary , 103d Cong., 1 st & 2d Sess. (1994)

United States Senate, Habeas Corpus Reform Act of 1982: Hearings Before the Comm. on the Judiciary , 97 th Cong., 2d Sess. (1982)

â. Comprehensive Crime Control Act of 1983: Hearings Before the Subcomm. on Criminal Law of the Comm. on the Judiciary , 98 th Cong., 1 st Sess. (1983)

â. Habeas Corpus Reform: Hearing Before the Comm. on the Judiciary , 99 th Cong., 1 st Sess. (1985).

Vladeck, Boumediene's Quiet Theory: Access to Courts and the Separation of Powers , 84 Notre Dame Law review 2107 (2009)

Walker, The Constitution and Legal Development of Habeas Corpus as the Writ of Liberty (1960)

Wechsler, Habeas Corpus and the Supreme Court: Reconsidering the Reach of the Great Writ , 59 University of Colorado Law Review 167 (1988)

Weisberg, A Great Writ While It Lasted , 81 Journal of Criminal Law & Criminology 9 (1990)

Wolf, Habeas Relief from Bad Science: Does Federal Habeas Corpus Provide Relief for Prisoners Possibly Convicted on Misunderstood Fire Science? 10 Minnesota Journal of Law, Science, and Technology 213 (2009)

Wright, Habeas Corpus: Its History and Its Future , 81 Michigan Law Review 802 (1983)

Yackle, Postconviction Remedies (1981)

Notes and Comments

Actually Less Guilty: The Extension of the Actual Innocence Exception to the Sentencing Phase of Non-Capital Cases , 93 Kentucky Law Journal 531 (2004)

The Clash of Ring v. Arizona and Teague v. Lane: An Illustration of the Inapplicability of Modern Habeas Retroactivity Jurisprudence in the Capital Sentencing Context , 85 Boston University Law Review 1017 (2005)

" Deference Does Not Imply Abandonment or Abdication of Judicial Review " : the Evolution of Habeas Jurisprudence Under AEDPA and the Rehnquist Court , 72 University of Missouri-Kansas City Law Review 739 (2004)

A Different View of Habeas: Interpreting AEDPA ' s " Adjudicated on the Merits " Clause When Habeas Corpus Is Understood as an Appellate Function of the Federal Courts , 72 Fordham Law Review 2593 (2004)

Habeas Review for State Prisoners , 38 Georgetown Law Journal Annual Review of Criminal Procedure 892 (2009)

Review and Vacatur of Certificates of Appealability Issued Under the Denial of Habeas Corpus Petitions , 72 University of Chicago Law Review 989 (2005)

28 U.S.C. Â§ 2255 Relief for Federal Prisoners , 38 Georgetown Law Journal Annual Review of Criminal Procedure 942 (2009)