Habeas Corpus Legislation in the 111th Congress
Released: 2010-12-30T00:00:00

Introduction

Habeas corpus is the procedure under which an individual held in custody may petition a federal court for his release on the grounds that his detention is contrary to the Constitution or laws of the United States. It has been sought by state and federal prisoners convicted of criminal offenses and by the detainees in Guantanamo. The Supreme Court in Boumediene v. Bush , 553 U.S. 723 (2008), held that limitations on the judicial review of detainee status were contrary to the demands of the privilege of the writ and suspension clause. The Court has thus far declined to hold that a state prisoner sentenced to death, but armed with compelling evidence of his innocence, is entitled to habeas relief. Legislation was introduced in the 111 th Congress to deal with both issues. Moreover, the Constitution Subcommittee of the House Committee on the Judiciary has held hearings on habeas review and received recommendations for legislation on related issues. This report is a brief overview of those recommendations and legislative proposals.

Actually Innocent

Federal law imposes several bars to habeas relief in the interests of finality, federalism, and judicial efficiency. One of these prohibits filing repetitious habeas petitions claiming that the petitioner's state conviction was accomplished in a constitutionally defective manner. This second or successive petition bar does not apply where newly discovered evidence establishes that but for the constitutional defect no reasonable jury would have convicted the petitioner (constitutional defect plus innocence). But suppose the new evidence merely demonstrates the petitioner's innocence, unrelated to the manner in which he was convicted? The Supreme Court has never said that habeas relief may be granted on such a freestanding claim of innocence. It has twice said, however, that assuming relief might be granted in a freestanding innocence case, the evidence on the record before it did not reach the level of persuasion necessary to grant relief. A third such case is now working its way through the federal court system.

Two bills offered in the 111 th Congress would have established actual innocence as a ground upon which habeas relief might be granted, the Effective Death Penalty Appeals Act ( H.R. 3986 ) and the Justice for the Wrongfully Accused Act ( H.R. 3320 ). Representative Moore (Kansas) introduced H.R. 3320 on July 23, 2009. Representative Johnson (Georgia) introduced H.R. 3986 on November 3, 2009, for himself and Representatives Nadler, Conyers, Scott (Virginia), Weiner, Lewis (Georgia), and Jackson-Lee.

H.R. 3986

The Johnson bill would have amended the statutory bar on second or successive habeas petitions filed by either state or federal convicts to permit petitions which include:

A claim that an applicant was sentenced to death without consideration of newly discovered evidence which, in combination with the evidence presented at trial, could reasonably be expected to demonstrate that the applicant is probably not guilty of the underlying offense. Proposed 28 U.S.C. 2244(b)(5), 2255(h)(3).

The proposal's probability standard was one favored by the Supreme Court in second or successive petition cases where the petitioner claimed he was innocent of the underlying offense. The Court favored a clear and convincing evidence standard in cases where the petitioner challenged not his conviction but claimed he was innocent of the aggravating factor that justified imposition of the death penalty. The statutory provisions, established in the Antiterrorism and Effective Death Penalty Act, now favor a clear and convincing evidence standard in the constitutional defect plus innocence exception to the second or successive petition bar.

The Johnson bill would also have carried state death row inmates, who claimed innocence, over another statutory habeas bar. Under existing habeas law, federal courts are bound by state court determinations and application of federal law, unless the decisions are contrary to clearly established federal law, constitute an unreasonable application of such law to the facts, or constitute unreasonable finding of facts. Faced with evidence of the petitioner's probable innocence, the Johnson bill would have released federal habeas courts from the binding impact of such state court determinations: They would have no longer been bound by a state court decision that "resulted in, or left in force, a sentence of death that was imposed without consideration of newly discovered evidence which, in combination with the evidence presented at trial, demonstrates that the applicant is probably not guilty of the underlying offense," proposed 28 U.S.C. 2254(d)(3). The 111 th Congress adjourned without further action on the Johnson bill.

H.R. 3320

The Moore bill would have focused its innocence exception to the second or successive petition bar on the evidence tending to establish innocence of state prisoners, death row or otherwise. Moreover, while it would have eased the limitation on filing a second or successive habeas petition, it would have left the standards barring such petitions in place and unchanged.

Existing law requires federal courts to dismiss second or successive petitions unless they are based on retroactively applicable new law or are based on newly discovered facts that establish constitutional defect plus innocence. Such a petition, however, may be filed only with the permission of the appropriate court of appeals upon a prima facie showing that the petition meets either the new law or newly discovered evidence exception. The bill would have excused the requirement of appellate court approval "if the second or subsequent application rests solely on a claim of actual innocence arising from – (i) newly discovered evidence from forensic testing; (ii) exculpatory evidence withheld from the defense at trial; or (iii) newly discovered accounts by credible witnesses who recant prior testimony or establish improper action of State or Federal agents," proposed 28 U.S.C. 2244(b)(3)(F). It would have left unchanged the requirement that such petitions be dismissed unless they satisfy the new rule or newly discovered evidence exception.

The bill would also have amended existing law to specifically permit a court to receive forensic evidence, exculpatory evidence, and evidence of official misconduct – in support of the petitioner's claim of actual innocence, proposed 18 U.S.C 2243. Testimony of witnesses who testified at trial would be limited to recantations or evidence of impermissible official action, id.

Unrelated to any claim of innocence, the Moore bill also would have addressed the bar imposed for failure to exhaust state remedies. Habeas relief may not be granted state prisoners under existing law, when effective corrective state procedures remain untried. The bill would have permitted habeas relief notwithstanding the existence of such unexhausted state procedures, if "the application is based on a claim that the police or prosecution withheld exculpatory, impeachment, or other evidence favorable to the defendant," proposed 28 U.S.C. 2254(b)(4). The 111 th Congress adjourned without further action on the Moore bill.

Boumediene and Guantanamo Detainees

The Supreme Court's decision in Boumediene stimulated several proposals in the 111 th Congress relating to the judicial review for the Guantanamo detainees. The proposals included the:

Military Commissions Habeas Corpus Restoration Act of 2009 ( H.R. 64 ), introduced by Representative Jackson-Lee (Texas); Interrogation and Detention Reform Act of 2008 ( H.R. 591 ), introduced by Representative Price (North Carolina) for himself and Representatives Holt, Hinchey, Schakowsky, Blumenauer, Miller (North Carolina), Watt, McGovern, Olver, DeLauro, and Larson (Connecticut); Enemy Combatant Detention Review Act of 2009 ( H.R. 630 ), introduced by Representative Smith (Texas) for himself and Representatives Boehner, Sensenbrenner, Franks (Arizona), Lundgren (California), Gallegly, Jordan (Ohio), Poe (Texas), Harper, Coble, and Rooney; Terrorist Detainees Procedures Act of 2009 ( H.R. 1315 ), introduced by Representative Schiff; Detainment Reform Act of 2009 ( H.R. 3728 ), introduced by Representative Hastings (Florida); and Terrorist Detention Review Reform Act ( S. 3707 ), introduced by Senator Graham.

The Court in Boumediene v. Bush held that foreign nationals detained at Guantanamo were entitled to the privilege of the writ of habeas corpus. They could be denied the benefits of access to the writ only under a suspension valid under the suspension clause, U.S. Const. Art. I, §9, cl.2, or under an adequate substitute for habeas review.

Section 7 of the Military Commissions Act stripped all federal courts of habeas jurisdiction relating to foreign, enemy combatant detainees; and except as provided in the Detainee Treatment Act, it also stripped them of jurisdiction to review matters relating to such individuals and concerning their detention, treatment, transfer, trial, or conditions of detention. The Court did not feel that the Detainee Treatment Act provided an adequate substitute for detainee habeas review and consequently concluded that section 7 "effect[ed] an unconstitutional suspension of the writ."

The Court found it unnecessary to discuss the extent to which habeas review might include an examination of the conditions of detention. It also made it clear that its decision did not go to the merits of the detainees' habeas petitions.

Proposals for Judicial Review of the Lawfulness of Detention

Each of the bills, other than the Hastings and Graham bills, would have repealed section 7 of the Military Commissions Act, which unsuccessfully sought to strip the federal courts of jurisdiction to entertain habeas petitions from the Guantanamo detainees.

The Smith, Hastings, and Graham bills would have vested the U.S. District Court for the District of Columbia with authority to review the lawfulness of the detention of enemy combatants (Smith), threatening individuals (Hastings), or unprivileged enemy belligerents (Graham). The Smith and Graham bills would have established new habeas provisions applicable to detained enemy combatants, H.R. 630 , proposed 28 U.S.C. 2256; S. 3707 , proposed 2856. The Hastings bill would have established a substitute procedure for judicial review procedure, H.R. 3728 , §§402, 202, 203, 103. The 111 th Congress adjourned without further action on any of these proposals.

Other Issues

Witnesses who submitted statements for the House Judiciary Committee's recent habeas hearings criticized other aspects of federal habeas law – issues which do not appear to have been the subject of legislative proposals in this Congress. Each of the witnesses – Justice Gerald Kogan, retired Chief Justice of the Florida Supreme Court; Professor John H. Blume of Cornell University Law School; and Mr. Stephen F. Hanlon, a partner in the law firm of Holland and Knight and appearing on behalf of the American Bar Association – were critical of the impact of the one-year statute of limitations in 28 U.S.C. 2244(d). They expressed concern over the complexity of the provisions under which being tardy can be fatal.

They also agree that the binding effect given state court determinations of federal law is unfortunate, generally. Two of the witnesses were critical of the "opt in" provisions under which states gain the advantage of streamlined habeas procedures in capital cases, if they satisfy the provision of counsel standards. Chief Justice Kogan would repeal the provisions, fearing that amendment would only introduce further "confusion, waste, and wheel-spinning." Mr. Hanlon urged alternatively that the role of gatekeeper – the determination of whether a state is qualified to opt in, now vested in the Attorney General – be returned to the federal courts.

Professor Blume and Chief Justice Kogan also urged modification of the habeas "procedural default" bar under which a prisoner's federal habeas petition is barred because of his failure to comply with an applicable state procedural requirement for consideration of his claim at the state level.

Mr. Hanlon alone recommended federal funding of capital defender organizations and suspension of "all federal executions pending a thorough data collection and analysis of racial and geographical disparities and the adequacy of legal representation in the death penalty system."

Chief Justice Kogan also had concerns not mentioned in the statements of the other witnesses, i.e ., the Teague rule, harmless error, and deference to state fact finding. With two exceptions, the Teague rule denies the use of federal habeas to establish, or to retroactively claim the benefits of, a new rule, that is, an interpretation of constitutional law not recognized before the end of the period for the petitioner's direct appellate review of his state conviction and sentence. From Chief Justice Kogan's perspective, "The chief problem is deciding what counts as 'new' in these circumstances." He expressed the view that habeas treatment of harmless constitutional errors committed at the state level "warrants serious attention." Finally, he pointed to the apparent incongruity of section 2254(e)(1), which asserts that a state court's finding of facts is presumed correct, and section 2254(d)(2), which asserts that habeas must be denied with respect to a claim adjudicated in state court unless the state court's decision was based on an unreasonable determination of the facts.

If the history of habeas reform debate holds true, each of the points made by the three witnesses is likely to find a counterpoint in any future debate. The 111 th Congress adjourned without further action on these matters.