The opinion
Case: 20-61019 Document: 00516757458 Page: 1 Date Filed: 05/19/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
May 19, 2023
No. 20-61019 Lyle W. Cayce
Clerk
Charles Ray Crawford,
Petitioner—Appellant,
versus
Burl Cain, Commissioner, Mississippi Department of Corrections;
Earnest Lee, Superintendent, Mississippi State Penitentiary,
Respondents—Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:17-CV-105
Before Smith, Duncan, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:
The petition for panel rehearing is DENIED. Because no member of
the panel or judge in regular active service requested that the court be polled
on rehearing en banc (FED. R. APP. P. 35 and 5TH CIR. R. 35), the
petition for rehearing en banc is DENIED. The opinion is
WITHDRAWN, and the following opinion is SUBSTITUTED:
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Charles Crawford petitions for habeas relief. As a prisoner held under
a state court judgment, Crawford must overcome the strictures of the Anti-
Terrorism and Effective Death Penalty Act (“AEDPA”). He also must
prove that “law and justice require” relief. 28 U.S.C. § 2243. Crawford does
neither. We affirm.
I.
A.
Crawford was convicted of raping a 17-year-old girl (Kelly Roberts),
assaulting a 16-year-old girl (Nicole Cutberth) with a hammer, and raping and
murdering a 20-year-old woman (Kristy Ray). The series of gruesome crimes
began on April 13, 1991.
On that fateful day, Roberts and Cutberth were riding around Walnut,
Mississippi. The girls went to a store to purchase fluid for the car. When they
left, they saw Crawford—who at that time was Roberts’s brother-in-law—
and asked him to help put the fluid in the car. Crawford agreed.
Crawford then began his scheme to lure the girls to his house. He told
Roberts that he needed to talk to her about something important but refused
to say what. Roberts insisted he tell her. Eventually, Crawford agreed to tell
her if she met him at a cemetery outside the city. Roberts reluctantly agreed.
Later that evening, the girls met Crawford at the cemetery. There,
Crawford told Roberts that her boyfriend had pictures of her that were
“pretty bad,” that Crawford had gotten the pictures from her boyfriend, and
that Crawford planned to get rid of them. Roberts told Crawford she wanted
the pictures. Crawford replied that the pictures were at his house and that he
would take her there. Roberts and Cutberth then got into Crawford’s truck,
and he drove them to his house.
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Crawford drove the girls to an abandoned house near his and parked.
He told Cutberth to stay in the car while he and Roberts got the photos. Once
Crawford and Roberts entered the house, Crawford told Roberts to stay by
the door so he could make sure nobody was home. When Crawford returned,
he pulled a gun and put it to Roberts’s head. Crawford told her to do what he
said and no one would get hurt.
He ordered Roberts to get onto the floor. Roberts obeyed. Crawford
taped her mouth shut. He then commanded her to put her hands behind her
back. Roberts again obeyed. Crawford taped her hands together. Crawford
then forced Roberts into a bedroom and onto a bed. He undressed her. And
then he raped her.
Afterwards, Roberts begged Crawford not to hurt her friend. But
Crawford didn’t listen. He went outside and bludgeoned Cutberth on the
back of the head with a hammer. Roberts heard the assault happen. Crawford
then went back inside the house, grabbed Roberts, and forced her into his
truck.
Eventually, Crawford let Roberts go and turned himself in to the
police. The police found Cutberth alive, recovered the gun, and found
Roberts’s and Crawford’s hair on used pieces of duct tape in Crawford’s
house. Crawford was charged with the rape and kidnapping of Roberts and
the aggravated assault of Cutberth.
But this was not the end of Crawford’s crimes. Crawford was let out
on bond. While out on bond, Crawford kidnapped 20-year-old Kristy Ray. He
took Ray to a secluded barn in the woods, where he raped and murdered her.
The police quickly arrested Crawford. And Crawford admitted to raping and
murdering Ray and led the police to Ray’s body. He was charged with capital
murder, kidnapping, burglary of an occupied dwelling, rape, and sexual
battery.
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Crawford received three separate trials, which occurred in the
following order: (1) the aggravated assault of Cutberth, (2) the rape and
kidnapping of Roberts, and (3) the murder of Ray. For each, Crawford
pressed an insanity defense. At the aggravated-assault trial (1) and the
murder trial (3), Crawford had an expert testify that he was insane at the time
of the incidents. At the rape trial (2), Crawford pressed a substantively
identical insanity defense but only had lay witnesses testify. He also
challenged the kidnapping charge on the facts and the rape charge on the
theories that Roberts consented, or alternatively, that Roberts and Crawford
never had sex. Crawford was convicted of raping Roberts (but acquitted of
kidnapping) and was sentenced to 46 years of imprisonment. Crawford was
convicted of assaulting Cutberth and was sentenced to 20 years of
imprisonment. Crawford was convicted of murdering Ray and was sentenced
to death.
B.
The present appeal involves only Crawford’s conviction for raping
Roberts. Crawford directly appealed his rape conviction in state court and
almost succeeded in getting a new trial: The Mississippi Supreme Court
affirmed his conviction by a 5–4 vote. See Crawford v. State, 192 So. 3d 905
(Miss. 2015).
Crawford next tried his luck at state postconviction relief. Again, he
failed. Crawford argued for the first time that the trial court violated his
procedural due process right to expert assistance in his insanity defense
under Ake v. Oklahoma, 470 U.S. 68 (1985), along with many other claims.
The Supreme Court of Mississippi held that Crawford procedurally
defaulted his Ake claim because it “could have been raised in the direct
appeal.” The court also denied Crawford’s ineffective-assistance-of-counsel
claims and found the rest of Crawford’s claims to be “without merit.”
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Crawford next filed a habeas petition in federal district court, raising
thirteen claims. The district court denied Crawford’s petition but granted
Crawford a certificate of appealability (“COA”) on all thirteen claims.
Crawford timely appealed.
II.
Crawford raises only three claims on appeal. 1 First, Crawford claims
that his lawyer provided ineffective assistance by failing to raise an Ake claim
on direct appeal. Second, Crawford raises an Ake claim and argues that the
claim is not procedurally barred because his appellate counsel’s
ineffectiveness establishes cause and prejudice. Third, Crawford claims that
his trial counsel provided ineffective assistance.
All fail. We first (A) provide some background on (1) AEDPA and
(2) ineffectiveness claims. We then (B) conclude that Crawford failed to
establish ineffective assistance of appellate counsel. We last (C) determine
that Crawford has not established ineffective assistance of trial counsel.
A.
1.
AEDPA first. Everyone agrees AEDPA’s strictures—including its
relitigation bar in 28 U.S.C. § 2254(d)—apply to each of Crawford’s
ineffectiveness arguments. See Lucio v. Lumpkin, 987 F.3d 451, 465 (5th Cir.
2021) (en banc) (plurality op.). Section 2254(d) “restores the res judicata
1
Although Crawford obtained a COA on thirteen claims, Crawford provides
arguments on only three claims and tries to incorporate by reference his application before
the district court for the rest. He has thus abandoned the ten unbriefed claims. See, e.g.,
Turner v. Quarterman, 481 F.3d 292, 295 n.1 (5th Cir. 2007) (arguments incorporated by
reference from prior briefing are “not adequately briefed” and forfeited); McGowen v.
Thaler, 675 F.3d 482, 497 (5th Cir. 2012).
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rule” that long underpinned habeas “and then modifies it” by providing
“narrow exceptions.” Langley v. Prince, 926 F.3d 145, 155 (5th Cir. 2019) (en
banc). As relevant here, Crawford must show the state court’s adjudication
of the claim “resulted in a decision that . . . involved an unreasonable
application of[] clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
To meet the unreasonable-application exception to the relitigation
bar, “a prisoner must show far more than that the state court’s decision was
merely wrong or even clear error.” Shinn v. Kayer, 141 S. Ct. 517, 523 (2020)
(per curiam) (quotation omitted). “Rather, the relitigation bar forecloses
relief unless the prisoner can show the state court was so wrong that the error
was ‘well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.’” Langley, 926 F.3d at 156 (quoting
Shoop v. Hill, 139 S. Ct. 504, 506 (2019) (per curiam)). “In other words, the
unreasonable-application exception asks whether it is ‘beyond the realm of
possibility that a fairminded jurist could’ agree with the state court.” Ibid.
(quoting Woods v. Etherton, 578 U.S. 113, 118 (2016) (per curiam)).
To apply the relitigation bar, we first “must identify the relevant state-
court ‘decision.’” Lucio, 987 F.3d at 465. Here, the relevant decision is the
sole state court opinion involving ineffectiveness: the Mississippi Supreme
Court’s order denying Crawford’s application for leave to file a motion to
vacate his conviction and sentence. ROA.3167–68. All agree that the court’s
denial of leave is a decision “adjudicat[ing] . . . the merits” of Crawford’s
ineffectiveness claims. See 28 U.S.C. § 2254(d). And for good reason. The
Mississippi Supreme Court plainly rejected those claims on the merits: “The
Court further finds that the claims of ineffective assistance of counsel fail to
meet the Strickland v. Washington standard.” ROA.3167; cf. Harrington v.
Richter, 562 U.S. 86, 100 (2011) (“This Court now holds and reconfirms that
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§ 2254(d) does not require a state court to give reasons before its decision
can be deemed to have been ‘adjudicated on the merits.’”).
But the Mississippi Supreme Court did not explain why it rejected
Crawford’s Strickland claim. This is significant. When “a state court’s
decision is unaccompanied by an explanation, the habeas petitioner’s burden
still must be met by showing there was no reasonable basis for the state court
to deny relief.” Richter, 562 U.S. at 98. We “must determine what arguments
or theories . . . could have supported[] the state court’s decision; and then [we]
must ask whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision of
this Court.” Id. at 102 (emphasis added); see also Sexton v. Beaudreaux, 138 S.
Ct. 2555, 2558 (2018) (per curiam) (same); Cullen v. Pinholster, 563 U.S. 170,
188 (2011) (same). That is, we imagine the reasons that Story, Brandeis, and
Frankfurter could’ve dreamt up to support the state court’s decision, and
then we ask whether every reasonable jurist would conclude that all those
hypothetical reasons violate the relitigation bar. That makes § 2254(d) very
close to a res judicata provision.
2.
Next, ineffective assistance of counsel. The Sixth Amendment
generally obliges the State to provide an indigent defendant with counsel. See
U.S. Const. amend. VI; Gideon v. Wainwright, 372 U.S. 335 (1963). But
not just any counsel. According to the Supreme Court, States must provide
effective counsel. See Strickland v. Washington, 466 U.S. 668 (1984). That’s
because “a party whose counsel is unable to provide effective representation
is in no better position than one who has no counsel at all.” Evitts v. Lucey,
469 U.S. 387, 396 (1985).
To establish ineffectiveness, Crawford must show that counsel’s
failure was both (1) objectively deficient and (2) prejudicial. Strickland, 466
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U.S. at 687. “Strickland’s first prong sets a high bar.” Buck v. Davis, 137 S.
Ct. 759, 775 (2017). “To establish deficient performance, a person
challenging a conviction must show that counsel’s representation fell below
an objective standard of reasonableness.” Richter, 562 U.S. at 104 (quotation
omitted). There is “a strong presumption that counsel’s representation was
within the wide range of reasonable professional assistance.” Ibid. (quotation
omitted). And to show deficient performance, the defendant must show that
his lawyer was so bad as to be “no counsel at all.” Lucey, 469 U.S. at 396. 2
AEDPA makes it even more difficult to win an ineffectiveness claim.
The “more general the rule, the more leeway state courts have.” Kayer, 141
S. Ct. at 523 (quotation omitted). And “because the Strickland standard is a
general standard, a state court has even more latitude to reasonably
determine that a defendant has not satisfied that standard.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). “The standards created by Strickland
and § 2254(d) are both highly deferential, and when the two apply in tandem,
review is doubly so.” Richter, 562 U.S. at 105 (quotation omitted); see also
Dunn v. Reeves, 141 S. Ct. 2405, 2410 (2021) (per curiam) (“doubly
deferential”); Mirzayance, 556 U.S. at 123 (“doubly deferential”).
B.
We now address the first two claims, each turning on whether
Crawford’s appellate counsel was ineffective for failing to raise Ake on direct
appeal. “Declining to raise a claim on appeal . . . is not deficient performance
unless that claim was plainly stronger than those actually presented to the
appellate court.” Davila v. Davis, 137 S. Ct. 2058, 2067 (2017). “In most
cases, an unpreserved trial error will not be a plainly stronger ground for
2
Because Crawford’s lone preserved Strickland claim fails at prong one, we need
not discuss the prejudice prong in this case. See infra 10–13.
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appeal than preserved errors.” Ibid. “Thus, in most instances in which the
trial court did not rule on the alleged trial error (because it was not
preserved), the prisoner could not make out a substantial claim of ineffective
assistance of appellate counsel.” Ibid.
Here, the district court held the state court could’ve reasonably found
the Ake claim unpreserved. We agree. Crawford’s trial counsel withdrew his
Ake motion, so the trial court never ruled on it. Crawford must thus show
that every fairminded jurist would conclude that this is the extraordinary
instance where an unpreserved claim was stronger than the preserved claims,
and that appellate counsel’s failure to press the unpreserved Ake claim was
tantamount to providing no appellate counsel at all.
Crawford cannot come close to that showing. His appellate counsel
raised numerous issues on direct appeal and nearly won a new trial from the
State’s highest court. See Crawford, 192 So. 3d at 905 (vote of 5–4). It thus
borders on absurd to contend that appellate counsel was deficient for failing
to raise an unpreserved claim, or that the state court transgressed the every-
reasonable-jurist standard.
But even if the Ake claim were preserved, the ineffectiveness claim
still fails. Even though Crawford has the burden to show ineffectiveness
under AEDPA’s strictures, he merely argues that he meets Ake. See Burt v.
Titlow, 571 U.S. 12, 22–23 (2013) (“[T]he burden to show that counsel’s
performance was deficient rests squarely on the defendant.” (quotation
omitted)). That’s not close to enough. He has not shown that his Ake
argument is so strong that his appellate counsel’s failure to raise it was
tantamount to providing no counsel at all. Lucey, 469 U.S. at 396. And even
if he could make that showing, which he doesn’t even try to make, Crawford
would still fail because he hasn’t tried to show that his Ake-Strickland claim
would satisfy AEDPA’s relitigation bar.
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C.
Crawford’s ineffective-assistance-of-trial-counsel claim fares no
better. We (1) provide two independent reasons that doom Crawford’s claim.
Then we (2) reject Crawford’s remaining counterarguments.
1.
A fairminded jurist could conclude that the trial counsel’s
performance was not deficient and prejudicial. That’s for two independent
reasons.
First, the jury found Crawford not guilty of the kidnapping charge.
Crawford does not dispute that his counsel’s performance contributed to this
result. It’s thus difficult to say that the State failed to provide Crawford with
counsel that was effective to some extent and that Crawford was “in no better
position than one who has no counsel at all.” Lucey, 469 U.S. at 396.
Second, before the rape trial began, the same trial counsel tried an
insanity defense in the related assault trial, and the jury rejected it—even
though counsel presented an expert who testified that Crawford was insane.
In the subsequent rape trial, counsel tried something different: He presented
a substantively identical insanity defense but with lay testimony instead of
the prior expert whose testimony was already rejected, and he tried to raise
reasonable doubt as to the rape charge based on a theory of consent and a
theory that Crawford and Roberts never had sex. A fairminded jurist could
conclude that counsel made an adequate strategic choice not to do the same
thing over again and expect a different result.
2.
Crawford’s remaining counterarguments are unpersuasive.
Crawford argues that we can’t evaluate trial counsel’s overall
conduct; instead, we must dissect the trial counsel’s insanity-defense
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performance in a vacuum. Not so. Strickland’s prejudice prong requires that
a court consider whether the challenged act or omission changed the result
of the proceeding. Strickland, 466 U.S. at 691 (holding an “error by counsel”
doesn’t “warrant setting aside the judgment of a criminal proceeding” where
in the context of the whole proceeding the identified error “had no effect on
the judgment”). That means looking at trial counsel’s overall conduct in the
context of the whole proceeding and determining whether the identified error
would have changed the outcome.
But even if we focused on the insanity defense alone, Crawford still
cannot surmount AEDPA’s relitigation bar. Contrary to Crawford’s
suggestion, every fairminded jurist would not think that the absence of an
expert for an insanity defense is per se error. The Supreme Court has “often
explained that strategic decisions—including whether to hire an expert—are
entitled to a strong presumption of reasonableness.” Reeves, 141 S. Ct. at
2410 (quotation omitted). That’s why “Strickland does not . . . require[] for
every prosecution expert an equal and opposite expert from the defense. . . .
When defense counsel does not have a solid case, the best strategy can be to
say that there is too much doubt about the State’s theory for a jury to
convict.” Richter, 562 U.S. at 111. And Crawford’s first jury heard his
insanity defense, replete with expert testimony, and rejected it—thus
showing counsel the defense was weak. Cf. Mirzayance, 556 U.S. at 124
(“Rather, his counsel merely recommended the withdrawal of what he
reasonably believed was a claim doomed to fail. The jury had already rejected
medical testimony about Mirzayance’s mental state in the guilt phase, during
which the State carried its burden of proving guilt beyond a reasonable
doubt.”). Thus, a fairminded jurist could find the strategic choice to cross-
examine the State’s experts and present lay testimony to be adequate
performance.
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Crawford offers a hodgepodge of cases, but none helps him. In fact,
only one of his cases (Hinton v. Alabama, 571 U.S. 263 (2014) (per curiam))
could even potentially help him because Hinton is his only case that found
deficient performance. Id. at 274. And we’ve held that only a case finding
deficient performance can clearly establish the law for an ineffectiveness
claim under § 2254(d). See Lucio, 987 F.3d at 485 (“We are aware of no
authority for turning the Supreme Court’s rejection of one prisoner’s claim
into clearly established law that supports a second prisoner’s claim.”).
Hinton, however, doesn’t help either. If a state court “must extend a
rationale” from Hinton before “it can apply to the facts at hand, then by
definition the rationale was not clearly established at the time of the state-
court decision” and thus was not sufficient to pass the relitigation bar. White
v. Woodall, 572 U.S. 415, 426 (2014). This follows from the statutory text:
“Section 2254(d)(1) provides a remedy for instances in which a state court
unreasonably applies [the Supreme] Court’s precedent; it does not require
state courts to extend that precedent or license federal courts to treat the
failure to do so as error.” Ibid.
At the very least, a state court would’ve had to extend Hinton to grant
relief here. In Hinton, the Court concluded that trial counsel’s “failure to
request additional funding in order to replace an expert he knew to be
inadequate because he mistakenly believed that he had received all he could
get under [state] law constituted deficient performance.” 571 U.S. at 274.
The Court found two features significant. First was that “the core of the
prosecution’s case was the state experts’ conclusion . . . and effectively
rebutting that case required a competent expert on the defense side.” Id. at
273. Second was that counsel’s failure “was based not on any strategic choice
but on a mistaken belief that available funding was capped.” Ibid.
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Neither of the two features the Supreme Court found significant in
Hinton is present here. See, e.g., Woods v. Donald, 575 U.S. 312, 317–18 (2015)
(per curiam) (“Because none of our cases confront the specific question
presented by this case, the state court’s decision could not be ‘contrary to’
any holding from this Court,” nor an “unreasonable application” thereof.
(quotation omitted)); Langley, 926 F.3d at 160 (collecting cases). Given
defense counsel’s hybrid strategy, the “core” of the prosecution’s case was
proving that the rape occurred, not that Crawford was sane. And Crawford
points to no mistake in law that led to counsel’s choice. On top of that, Hinton
did not involve a situation where a jury previously rejected the substantively
identical defense with expert assistance for a contemporaneous crime. These
differences are fatal.
III.
Moreover, the Supreme Court recently released two landmark habeas
decisions—Brown v. Davenport, 142 S. Ct. 1510 (2022), and Shinn v. Ramirez,
142 S. Ct. 1718 (2022)—that direct us to refocus our attention in AEDPA
cases. In Davenport, the Supreme Court made clear that “Congress invested
federal courts with discretion when it comes to supplying habeas relief—
providing that they ‘may’ (not must) grant writs of habeas corpus, and that
they should do so only as ‘law and justice require.’” 142 S. Ct. at 1523
(quoting 28 U.S.C. §§ 2241, 2243). This meant that AEDPA “did not
guarantee relief upon . . . satisfaction” of its conditions; instead, “even a
petitioner who prevails under AEDPA must still today persuade a federal
habeas court that ‘law and justice require’ relief.” Id. at 1524 (quoting 28
U.S.C. § 2243); see also Pacheco v. El Habti, 48 F.4th 1179, 1187–88 (10th Cir.
2022) (noting, even after AEDPA, federal courts retain “traditional
equitable authority” (citing Davenport, 142 S. Ct. at 1524)).
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About a month later, the Supreme Court in Ramirez doubled down on
the proposition that passing AEDPA’s strictures and the preexisting
equitable doctrines are necessary but not sufficient to get habeas relief:
To ensure that federal habeas corpus retains its narrow role,
AEDPA imposes several limits on habeas relief, and we have
prescribed several more. And even if a prisoner overcomes all
of these limits, he is never entitled to habeas relief. He must
still persuade a federal habeas court that law and justice require
it.
142 S. Ct. at 1731 (quotation omitted).
Davenport and Ramirez thus indicate that courts should apply a two-
prong framework to adjudicate habeas petitions from state prisoners. 3 The
first prong is business as usual: whether the state prisoner satisfies AEDPA
and the usual equitable and prudential doctrines (e.g., procedural default and
prejudicial error). See Ramirez, 142 S. Ct. at 1731 (“AEDPA imposes several
3
Crawford is a state prisoner, so we need not determine whether federal courts
may employ the two-prong framework in adjudicating § 2255 motions. See United States v.
Cardenas, 13 F.4th 380, 384 n.* (5th Cir. 2021) (“Section 2255 is, of course, a statutory
substitute for habeas corpus.”); Beras v. Johnson, 978 F.3d 246, 252 (5th Cir. 2020)
(explaining that while state prisoners file “applications,” federal prisoners file “motions”).
But there is good reason to think that federal courts can and should. The Supreme Court
has made clear that “the ‘sole purpose’ of § 2255 was to change the venue for challenges to
a sentence.” Wright v. Spaulding, 939 F.3d 695, 698 (6th Cir. 2019) (Thapar, J.) (emphasis
added) (quoting United States v. Hayman, 342 U.S. 205, 219 (1952)). The Supreme Court
has repeatedly emphasized that there is “no basis for affording federal prisoners a preferred
status when they seek postconviction relief.” United States v. Frady, 456 U.S. 152, 166
(1982); see also Withrow v. Williams, 507 U.S. 680, 723 (1993) (Scalia, J., concurring in part
and dissenting in part) (“A federal court entertaining collateral attack against a state
criminal conviction should accord the same measure of respect and finality as it would to a
federal criminal conviction. As it exercises equitable discretion to determine whether the
merits of constitutional claims will be reached in the one, it should exercise a similar
discretion for the other.”). For this reason, we generally apply the same equitable and
prudential doctrines to federal and state prisoners. See United States v. Vargas-Soto, 35
F.4th 979, 996 & n.6 (5th Cir. 2022).
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limits on habeas relief, and we have prescribed several more.” (emphasis added)
(quotation omitted)). The second prong is whether law and justice require
granting habeas relief. See ibid. (“And even if a prisoner overcomes all of these
limits, he is never entitled to habeas relief. He must still persuade a federal
habeas court that law and justice require it.” (emphasis added) (quotation
omitted)). Much like qualified immunity after Pearson v. Callahan, 555 U.S.
223 (2009), both prongs are necessary to get relief and a court may analyze
either one first. 4 Id. at 236.
We next (1) explain that law and justice do not compel issuance of the
writ in the absence of factual innocence. Then we (2) conclude that Crawford
can’t make the required showing.
1.
As the Supreme Court recently reminded us, habeas is and always has
been a discretionary remedy. See Davenport, 142 S. Ct. at 1520–24; Ramirez,
142 S. Ct. at 1731. In England, the “Great Writ” of habeas corpus ad
subjiciendum gave common-law courts the discretionary power to investigate
the Crown’s basis for detaining its subjects. See Petition of Right, 3 Car. 1,
ch.1, ¶¶ 5, 8 (1628). The Judiciary Act of 1789 gave our new federal courts
that same power. See § 14, 1 Stat. 81–82. And modern federal courts retain
it—though it remains, as always, a discretionary power and not a mandatory
obligation. See 28 U.S.C. § 2241 (“Writs of habeas corpus may be granted . . .
(emphasis added)); id. § 2243 (“as law and justice require”).
4
Jurisdiction is the only exception. That’s because “[i]n habeas proceedings, as in
every other kind, federal courts must do jurisdiction first. And where jurisdiction is lacking,
federal courts also must do jurisdiction last.” Davis v. Sumlin, 999 F.3d 278, 279 (5th Cir.
2021) (quotation omitted). But whenever the court is assured of its jurisdiction, Davenport
and Ramirez suggest that courts can perform either step first.
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Law and justice do not require habeas relief—and hence a federal
court can exercise its discretion not to grant it—when the prisoner is factually
guilty. See Davenport, 142 S. Ct. at 1523 (concluding “guilt[]” is the primary
consideration in evaluating whether “law and justice” require the writ
(quotation omitted)); Henry J. Friendly, Is Innocence Irrelevant? Collateral
Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 142 (1970)
(“[W]ith a few important exceptions, convictions should be subject to
collateral attack only when the prisoner supplements his constitutional plea
with a colorable claim of innocence.”). Again, this comports with the
historical office of the writ. For the first 500 or so years of the writ’s
existence, it generally could not be used to challenge a judgment of guilt. See
Paul D. Halliday, Habeas Corpus: From England to
Empire 16–18 (2010) (comparing habeas corpus ad subjiciendum to various
medieval writs that courts used after Magna Carta); id. at 18 (dating the
writ’s emergence to the latter half of the fifteenth century). That’s because
the historical purpose of the writ was to ensure that the prisoner’s detention
comported with due process, and “a trial was generally considered proof he
had received just that.” Davenport, 142 S. Ct. at 1521 (citing Bushell’s Case,
124 Eng. Rep. 1006, 1009–10 (C. P. 1670)).
Requiring prisoners to show factual innocence also comports with the
federalism principles undergirding AEDPA. The Supreme Court
emphasized that courts must “adjust the scope of the writ in accordance with
equitable and prudential considerations.” Davenport, 142 S. Ct. at 1523
(quotation omitted). “Foremost among those considerations is the States’
powerful and legitimate interest in punishing the guilty.” Ibid. (quotation
omitted); see also Ramirez, 142 S. Ct. at 1731 (“To unsettle these expectations
is to inflict a profound injury to the powerful and legitimate interest in
punishing the guilty, an interest shared by the State and the victims of crime
alike.” (quotation omitted)); ibid. (describing the States’ interests and the
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significant costs of granting federal habeas relief). The States’ preeminent
interest is at its apex where, as here, the conviction occurred long before the
federal postconviction proceedings. See, e.g., Edwards v. Vannoy, 141 S. Ct.
1547, 1554 (2021) (“When previously convicted perpetrators of violent
crimes go free merely because the evidence needed to conduct a retrial has
become stale or is no longer available, the public suffers, as do the victims.”);
Herrera v. Collins, 506 U.S. 390, 403, 417 (1993) (worrying that “the passage
of time only diminishes the reliability of criminal adjudications” and
worrying about “the enormous burden that having to retry cases based on
often stale evidence would place on the States”). Requiring a state prisoner
to show factual innocence in his federal habeas petition thus promotes
federalism interests.
Requiring federal habeas petitioners to show factual innocence also
protects other parties not before the court. When the Supreme Court erased
“[t]he traditional distinction between jurisdictional defects and mere errors
in adjudication,” “[f]ederal courts struggled with an exploding caseload of
habeas petitions from state prisoners.” Davenport, 142 S. Ct. at 1522; see also
Langley, 926 F.3d at 154 (“It was not until 1953 that state prisoners could use
federal habeas proceedings to relitigate free-standing constitutional claims
after pressing and losing them in state court.”). Federal courts desperately
needed “new rules aimed at separating the meritorious needles from the
growing haystack.” Davenport, 142 S. Ct. at 1523. After all, “[i]t must
prejudice the occasional meritorious application to be buried in a flood of
worthless ones. He who must search a haystack for a needle is likely to end
up with the attitude that the needle is not worth the search.” Brown v. Allen,
344 U.S. 443, 537 (1953) (Jackson, J., concurring in result). As Judge Friendly
explained long ago:
It defies good sense to say that after government has afforded a
defendant every means to avoid conviction, not only on the
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merits but by preventing the prosecution from utilizing
probative evidence obtained in violation of his constitutional
rights, he is entitled to repeat engagements directed to issues
of the latter type even though his guilt is patent. A rule
[requiring prisoners to show innocence] would go a long way
toward halting the inundation; it would permit the speedy
elimination of most of the petitions that are hopeless on the
facts and the law, themselves a great preponderance of the
total, and of others where, because of previous opportunity to
litigate the point, release of a guilty man is not required in the
interest of justice even though he might have escaped deserved
punishment in the first instance with a brighter lawyer or a
different judge.
Friendly, supra, at 157 (quotation omitted).
Factual innocence is an assertion by the defendant that he did not
commit the conduct underlying his conviction. By contrast, affirmative
defenses do not implicate factual innocence; they implicate legal innocence.
Cf. Bousley v. United States, 523 U.S. 614, 623 (1998) (“It is important to note
in this regard that ‘actual innocence’ means factual innocence, not mere legal
insufficiency.”). Although law and justice can require habeas relief for
certain legal errors that are deeply rooted in the writ’s history, “mere legal
insufficiency” or “legal innocence” are not among them. Ibid. 5
5
As Judge Friendly observed: “the original sphere for collateral attack on a
conviction was where the tribunal lacked jurisdiction either in the usual sense or because
the statute under which the defendant had been prosecuted was unconstitutional or
because the sentence was one the court could not lawfully impose.” Friendly, supra, at 151
(citing Ex parte Watkins, 28 U.S. (3 Pet.) 193 (1830); Ex parte Siebold, 100 US. 371 (1879);
Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873)). Only such legal errors, deeply rooted in the
Great Writ’s history, will satisfy the law and justice requirement when a prisoner
challenges his guilty conviction in a habeas proceeding. We have no occasion to consider,
however, what law and justice might require when a prisoner challenges only his sentence
and not his underlying conviction. Cf. Wilkinson v. Dotson, 544 U.S. 74, 85 (2005) (Scalia,
J., concurring) (noting the phrase “law and justice” has been interpreted to allow prisoners
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The colorable-claim-of-factual-innocence requirement critically
differs from the prejudicial-error requirement under Brecht v. Abrahamson,
507 U.S. 619 (1993). While the prejudicial-error requirement forecloses
“relief against constitutional claims on immaterial points, the test on
collateral attack generally should be not whether the error could have affected
the result but whether it could have caused the punishment of an innocent
man.” Friendly, supra, at 157 n.81. In other words, prejudicial error does not
focus on factual innocence but on the significance of the error.
2.
Crawford has not made a colorable claim of factual innocence.
Crawford does not deny that he committed the elements of the offense. He
raped Roberts. Instead, he at most asserts that he wasn’t legally culpable
under Mississippi law because of the affirmative defense of insanity. Cf.
ROA.963 (“Crawford has not provided this Court with any new evidence
that, as a factual matter, would show that he did not commit the crime of
conviction. Indeed, Crawford does not make the argument at all.”). But
affirmative defenses go to legal innocence—not factual innocence.
Even if insanity implicated factual innocence, Crawford’s innocence
claim is not colorable, so law and justice would still require denying his
petition. See 28 U.S.C. §§ 2241, 2243. Crawford presented substantively
identical insanity defenses at all three of his trials. At two of his trials,
Crawford presented an expert witness to support his defense. Both juries
flatly rejected that Crawford was insane. And one of the trials involved an
incident contemporaneous with the rape of Roberts, and the same expert
to separately challenge their convictions and their sentences); Jennings v. Stephens, 574
U.S. 271, 278–79 (2015) (entertaining habeas challenge to capital sentence where prisoner
did not contest his guilt for underlying crime).
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Crawford wanted for the rape trial (Dr. Hutt) testified at the assault trial. See
Crawford, 787 So. 2d at 1240, 1243. The State also presented at all three trials
two experts who opined that Crawford was sane. There is thus no colorable
reason to think that Crawford is insane, much less that he is factually
innocent.
* * *
Crawford unquestionably raped a 17-year-old girl. AEDPA and “law
and justice” both require denying his request for federal habeas relief.
AFFIRMED.
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