Amicus Curiae Brief — Lindh v. Murphy

NO. 96-6298

IN THE SUPREME COURT OF

October Term, 1996

~~ + gee eee.

AARON LINDH, Petitioner,

v.

JAMES P. MURPHY, Respondent

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SEVENTH

CIRCUIT AND PETITION FOR WRIT OF HABEAS CORPUS

BRIEF FOR AMICI CURIAE STATES OF OHIO,

WASHINGTON, ALABAMA, ALASKA, ARIZONA,

ARKANSAS, CALIFORNIA, COLORADO,

CONNECTICUT, DELAWARE, FLORIDA, GEORGIA,

HAWAII, IDAHO, ILLINOIS, INDIANA, KANSAS,

KENTUCKY,LOUISIANA, MASSACHUSETTS,

MICHIGAN, MINNESOTA, MISSISSIPPI, MISSOURI,

MONTANA, NEBRASKA, NEVADA, NEW JERSEY,

NEW YORK, NORTH CAROLINA, NORTH DAKOTA,

OKLAHOMA, PENNSYLVANIA, RHODE ISLAND, SOUTH

CAROLINA, SOUTH DAKOTA, TENNESSEE,

UTAH, VIRGINIA, WYOMING AND THE

TERRITORIES OF GUAM AND THE VIRGIN

ISLANDS IN SUPPORT OF RESPONDENT

BETTY D. MONTGOMERY CHRISTINE O. GREGOIRE

Attorney General Attorney General

State of Ohio State of Washington

JEFFREY S. SUTTON PAUL D. WEISSER

State Solicitor JOHN J. SAMSON

Counsel of Record Assistant Attorneys General

SIMON B. KARAS 1125 Washington Street, S.E.

JON C. WALDEN Olympia, Washington 98504

Assistant Attorneys General (360) 586-1445

30 East Broad Street, 17th Fi.

Columbus, Ohio 43215-3428

(614) 466-8980

COUNSEL FOR AMICI CURIAE

HUBERT HUMPHREY III

Attorney General

State of Minnesota

MIKE MOORE

Attorney General

State of Mississippi

JEREMIAH W. NIXON

Attorney General

State of Missouri

JOSEPH P. MAZUREK

Attorney General

State of Montana

DON STENBERG

Attorney General

State of Nebraska

FRANKIE SUE DEL PAPA

Attorney General

State of Nevada

PETER VERNIERO

Attorney General

State of New Jersey

DENNIS C. VACCO

Attorney General

State of New York

MICHAEL F. EASLEY

Attorney General

State of North Carolina

HEIDI HEITKAMP

Attorney General

State of North Dakota

DREW EDMONDSON

Attorney General

State of Oklahoma

D. MICHAEL FISHER

Attorney General

State of Pennsylvania

JEFFREY B. PINE

Attorney General

State of Rhode Island

CHARLES M. CONDON

Attorney General

State of South Carolina

MARK BARNETT

Attorney General

State of South Dakota

JOHN KNOX WALKUP

Attorney General

State of Tennessee

JAN GRAHAM

Attorney General

State of Utah

JAMES B. GILMORE III

Attorney General

State of Virginia

JULIO A. BRADY

Attorney General

The Virgin Islands

WILLIAM U. HILL

Attorney General

State of Wyoming

TABLE OF CONTENTS

TABLE OF AUTHORITIES .........-..--ee006.

STATEMENT OF AMICI INTEREST ...........

SUMMARY OF ARGUMENT ...............

SEE SOSOUS 6 6d WUE SHH SS cer ccccces

A. THE COURTS TRADITIONALLY HAVE

APPLIED CHANGES TO THEIR

JURISDICTION OVER STATE-PRISONER

HABEAS CORPUS CLAIMS TO

PTs <caceepesvebeseoce

l The Right Collaterally To

Attack State-Court Criminal

Convictions Has Changed

Dramatically During The Last

Dy BheaSeeedneeccceces

2 Congress And The Courts

Have Customarily Applied

Changes In Federal Habeas

Jurisdiction To Pending

Cases, Whether Those

Changes Expanded Or

Contracted The Scope of The

MT Mee ebOeeSeecececcceoes

B. LANDGRAF CONFIRMS WHAT HISTORY

TEACHES -- THE ACT APPLIES TO

PENDING CASES ......2.00ecc200.

TABLE OF AUTHORITIES

CASES Page

American Steel Foundries v. Tri-City Central

Trades Council, 257 U.S. 184 (1921) ..... 4, 14

Anderson v. Creighton,

er EEE "A e"sw'e's 616 8 0 ov 0% 6% 13

Barefoot v. Estelle,

DCD b¢ 60s eed es ee oun 15

Brecht v. Abrahamson,

De. -sekdaseoeeeed 7, 15

Brown v. Allen,

344 U.S. 443 (1953) .......... 7, 9, 10, 12

Bruner v. United States,

i . « «'¢iWGil.s ods » ck 0% 12

Carafas v. LaVallee,

CE ea 8

Cox v. Hart,

OD «i 5 «oa ebbes oe 4% 11

Ex Parte Watkins,

28 U.S. (3 Pet.) 193 (1830) ..........4.. 6

Fay v. Noia,

See acces ce e8ees < 7, 10

Felker v. Turpin,

— U.S. _, 116 S. Ct. 2333 (1996) . 3,6, 9, 12

iv

Page

Frank v. Mangum,

yr fie 7 . PPrreeerereerer 7

Goeke v. Branch,

US. . BEB OG Tre Geeee occ cccece 6

Gomez v. U.S. Dist. Court for N.D. of Cal.,

SED UB. GRO CISD ccc ccc ccccccceos 14

Gusik v. Schilder,

. Jee. TF) |) errr ree ee eee 8

Hall v. Beals,

. Ste FT, aearrrerrrerrer se 14

Harper v. Virginia Dep’t of Taxation,

SED UB. GR CRS cc cc ccc ccccccccens 9

Hunter v. United States,

101 F.3d 1565 (11th Cir. 1996) ......... 16

Kaiser Aluminum & Chemical Corp. v.

Bonjorno, 494 U.S. 827 (1990) ........ 4, 14

Kuhlman v. Wilson,

GP GR, Ge Ge ccc cc seceeesoeses 7

Landgraf v. USI Film Prod.,

511 U.S. 244, 114 S. Ct. 1483 (1994) ... passim

Lindh v. Murphy,

96 F.3d 856 (7th Cir. 1996) ........... 15

Page

Lockerty v. Phillips,

See DC OPC TEL wc weldiecc 12

Lockhart v. Fretwell,

506 U.S. 364, 113 S. Ct. 838 (1993) ...... 15

McCleskey v. Zant,

Es oC Rig dec eokbece 7

McKane v. Durston,

Se GCM cc ccc cbecccccecece 6

Moore v. Dempsey,

Tn +. ccccoccedueeescin 7

Preiser v. Rodriquez,

P< . ip cc eo eececeete 14

Sawyer v. Smith,

GK Re eee 13

Smith v. Yeager,

ee ae ee 8

Stone v. Powell,

428 U.S. 465 (1976) ...... cc ccces 7,9, 10

Sumner v. Mata,

449 U.S. 539 (1981) .......... 7, 9, 10, 13

Teague v. Lane,

409 U.S. 208 (1989) 0 ww ccc ccc cece 7

Page

Townsend v. Sain,

hte F: eer eee 7

Wainwright v. Sykes,

2 F 8 2 Ba ee 7, Dy i

Weaver v. Graham,

45 § & 1 a er se ll

Withrow v. Williams,

507 U.S. 680, 113 S. Ct. 1745 (1993) ..... 14

CONSTITUTIONAL AND STATUTORY

PROVISIONS

y PE ee eee a ee ee 8

25 OBA. GO Gee ccc cc cece cvevuse passim

28 U.S.C. Section 2254,

62 Stat. 964 (1948)

Pub. L. No. 89-711,

Sh: Go og web dec ec eoesecec 8

Act of Sept. 24, 1789, 1 Stat. $2... we eee weee 6

Act of March 2, 1833, 4 Stat. 634-35 ........... 6

Act of Aug. 29, 1842, 5 Stat. 539-540 .......... 6

PY) ¢, & 3 > & Brrr rr ss 6

First Judiciary Act, 1 Stat. 81-82 .............4. 6

MISCELLANEOUS AUTHORITIES

Approval and Effective Date of Rules

Governing Section 2254 Cases and

Section 2255 Proceedings for

United States District Courts,

90 Stat. 1334 (1976)

NO. 96-6298

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1996

AARON LINDH, Petitioner,

Vv.

JAMES P. MURPHY, Respondent

STATEMENT OF AMICI INTEREST

The States of Washington and Ohio, together with

forty other States and Territories, join in supporting

respondent as amici curiae and in urging the Court to affirm

the decision of the United States Court of Appeals for the

Seventh Circuit.

The amici States, particularly the offices of their

attorneys general, have first-hand experience with federal

habeas claims and with the Antiterrorism and Effective Death

Penalty Act of 1996 (“the Act”). The States’ attorneys

general are chiefly responsible for defending federal habeas

claims, they were active proponents of the Act, and they are

vitally interested in seeing the provisions of the Act applied

to pending cases. Nor does the States’ interest in this case

stem solely from their desire to uphold State-court criminal

convictions. They also wish to respect the interests of

victims in defending these convictions.

The application of the Act to pending cases concerns

the States for a final reason. Until recently, many of the

statutory and judicial changes to federal habeas law

expanded, rather than contracted, the tools available to State

prisoners to overturn their State-court convictions. At every

2

turn, the courts applied these changes to pending habeas

cases. That was appropriate under this Court’s retroactivity

case law. See Landgraf v. USI Film Prod., 511 U.S. 244,

114 S. Ct. 483 (1994). It is no less appropriate, not to

mention even-handed, to apply changes that contract the

jurisdiction of federal courts to pending habeas cases seeking

to upset State criminal convictions. For these reasons and

those elaborated below, the amici States join their sister

— Wisconsin, in asking the Court to affirm the decision

ow.

SUMMARY OF ARGUMENT

¥ _The Act does not have retroactive effect. It does not

impair rights a party possessed when he acted, increase a

party’s liability for past conduct, or impose new duties with

respect to transactions already completed.” Landgraf, 114

S. Ct. at 1505.

* In examining whether the Act has retroactive effect,

it is appropriate initially to place the inquiry in context -- to

look at prior changes to federal habeas law and the

application of these changes to already-completed State-court

criminal convictions. Early federal laws created only modest

power to release individuals held in State custody. Beginning

in 1789, a federal court could issue the writ to produce a

State prisoner whose testimony was needed. By 1833, a

federal court could issue the writ if a State prisoner was

committed for adhering to a requirement under federal law.

And by 1842, a federal court could issue the writ if a State

prisoner was a citizen of a foreign State.

Soon after the Civil War, Congress significantly

expanded these limited forms of relief by enacting the

Habeas Corpus Act of 1867. Comparable in scope to the

then-existing authority of federal prisoners to challenge their

3

detention, the Act thus did not allow State prisoners to

challenge detentions compelled by a court of competent

jurisdiction. Decisions of this Court, however, eventually

gave a broader construction to the scope of the writ.

Eventually the Court allowed State prisoners to challenge the

adequacy of the State judicial process, which came to include

the authority to relitigate de novo the substance of legal

claims fully litigated in State court, to reexamine facts found

in State criminal trials, and to address legal claims that

prisoners had failed to raise in accordance with State

procedural rules.

Additional statutory changes to federal habeas law

occurred during the last half century. In 1948, Congress

established an exhaustion requirement. In 1966, Congress

limited review of State-court evidentiary proceedings. And

in 1996, Congress limited the jurisdiction of federal courts

to overturn State-court convictions premised on reasonable

determinations of law and fact.

At every turn, including most recently in the 1996

Act, see Felker v. Turpin, __ U.S. __, 116 S. Ct. 2333

(1996), the courts have applied these changes to the scope of

federal habeas review to pending cases and to previously-

completed State-court convictions. Indeed, the State amici

do not know of a single instance in which the federal courts

did not apply such changes to pending cases (save when

Congress expressly directed the courts not to do so). It is

both appropriate and fair to continue to adhere to this even-

handed tradition: Thus, whether the change in law expands

habeas jurisdiction (which helps State prisoners) or limits

federal habeas jurisdiction (which helps the States), the

modification ought to apply to pending cases unless Congress

has clearly said otherwise.

4

Not surprisingly, in view of this historical practice,

Landgraf also supports application of the Act to pending

cases. The Act simply does not have an impermissible

retroactive effect in this setting. First, where Congress acts

to restrict the jurisdiction of federal courts, as it did here, the

new law governs pending cases “because jurisdictional

statutes speak to the power of the court rather than to the

rights or obligations of the parties." Landgraf, 114 S. Ct. at

1502 (internal quotation omitted). Second, “[wJhen the

intervening statute authorizes or affects the propriety of

prospective relief, application of the new provision is not

retroactive.” Landgraf, 114 S. Ct. at 1501. Equitable and

injunctive in nature, habeas relief is plainly a form of

prospective relief, even when it applies to conduct that

occurred before a statute’s passage. See Kaiser Aluminum &

Chemical Corp. v. Bonjorno, 494 U.S. 827 (1990); American

Steel Foundries v. Tri-City Central Trades Council, 257 U.S.

184 (1921). Third, legislation does not have retroactive

effect within the meaning of Landgraf when it regulates

secondary conduct (the process of seeking collateral relief

from a criminal conviction), as opposed to primary behavior

(the process of determining whether someone has violated a

States’ criminal laws). See Landgraf, 114 S. Ct. at 1502,

1505. Nor, for these reasons, can petitioner tenably claim

that the Act increases liability for his prior criminal conduct,

imposes new duties on him with respect to the underlying

criminal actions, or impairs any rights he possessed at the

time he committed the crime.

ARGUMENT

Under the Antiterrorism and Effective Death Penalty

Act of 1996, a federal habeas petitioner may not obtain relief

a a State-court conviction “unless the adjudication of the

claim”

5

(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. Section 2254(d). The amendment thus deprives

district courts of their previously-held jurisdiction to conduct

de novo review of the facts and law underlying State-court

criminal convictions. Even though this change does not

regulate the underlying conduct that caused petitioner to be

incarcerated in the first place, he contends that the change

should not apply to cases pending prior to the date of

enactment because it would upset settled expectations relating

to the scope of habeas review and attach new legal

consequences to his pre-Act conduct. When measured

against the historical practice in this area as well as the

teachings of Landgraf, this claim does not withstand close

scrutiny. The decision below should be affirmed.

A. |THE COURTS TRADITIONALLY HAVE

APPLIED CHANGES TO _ THEIR

JURISDICTION OVER STATE-

PRISONER HABEAS CORPUS CLAIMS

TO PENDING CASES.

At the outset the right to make a collateral attack on

a State-court criminal conviction under federal law did not

exist at all. Neither the United States Constitution nor

Congress gave the federal courts such power as an original

matter. Nor has the Constitution done so since, or for that

matter even required State courts to guarantee criminal

6

appeals, see Goeke v. Branch, __ U.S. __, 115 S. Ct. 1275,

1278 (1995); McKane v. Durston, 153 U.S. 684 (1894). The

authority to establish habeas review of State-court convictions

and determine its parameters has long rested with Congress.

Felker v. Turpin, 116 S. Ct. 2333 (1996).

1. The Right Collaterally To

Early on Congress created the barest of federal habeas

corpus remedies to release individuals held in State custody.

Beginning in 1789, with passage of the First Judiciary Act,

a federal court could issue the writ to produce a State

prisoner if it was “necessary to be brought into court to

testify.” Act of Sept. 24, 1789, ch. 20, Section 14, | Stat.

82. By 1833, State prisoners could obtain the writ if they

were “committed for any act done in pursuance of a law of

the United States.” Act of March 2, 1833, ch. 57, Section

7, 4 Stat. 634-35. And by 1842, State prisoners could be

released if they were a “subject or citizen of a foreign State,

and domiciled therein,” and held under State law. Act of

Aug. 29, 1842, ch. 257, 5 Stat. 539-540.

Soon after the Civil War, Congress expanded these

limited forms of relief by enacting the Habeas Corpus Act of

1867. Act of Feb. 5, 1867, ch. 28, 14 Stat. 385. Similar in

scope to the then-existing authority of federal prisoners to

challenge their detention, the Act thus was not available to

challenge detentions resulting from a judgment issued by a

court of competent jurisdiction. See First Judiciary Act, |

Stat. 81-82 (authorizing federal prisoners to challenge their

detention); Ex Parte Watkins, 28 U.S. (3 Pet.) 193, 203

(1830) (“An imprisonment under a judgment cannot be

7

unlawful, unless that judgment be an absolute nullity; and it

is not a nullity if the court has general jurisdiction of the

subject, although it should be erroneous.”); Kuhlman v.

Wilson, 477 U.S. 436, 445-46 (1986) (plurality opinion)

(“Until the early years of this century, the substantive scope

of the federal habeas corpus statutes was defined by

reference to the scope of the writ at common law.”); Fay v.

Noia, 372 U.S. 391, 452-54 (1963) (Harlan, J., dissenting).

Over time decisions of this Court gave a broader

construction to the scope of the statutory writ. Eventually

the Court allowed State prisoners to challenge the adequacy

of the judicial process. See Frank v. Mangum, 237 U.S. 309

(1915); Moore v. Dempsey, 261 U.S. 86 (1923). This came

to include (1) the authority to relitigate de novo the substance

of the legal claims litigated in State court, Brown v. Allen,

344 U.S. 443 (1953), (2) the authority to reexamine facts

found in State criminal trials, Townsend v. Sain, 372 U.S.

293 (1963), and (3) the authority to address legal claims that

prisoners had failed to raise in accordance with State

procedural rules, Fay v. Noia, supra.

Since 1963, several decisions of the Court have

narrowed the federal courts’ scope of review to alter State-

court criminal convictions. See, e.g., Stone v. Powell, 428

U.S. 465, 482 (1976) (limiting habeas corpus review of

Fourth Amendment claims); Swnner v. Mata, 449 U.S. 539,

549-51 (1981) (applying a presumption of correctness to

State-court findings of fact); Wainwright v. Sykes, 433 U.S.

72, 87-91 (1977) (applying the procedural default doctrine to

State-court habeas claims); Teague v. Lane, 489 U.S. 288,

310 (1989) (precluding the application of new constitutional

rules of criminal procedure to State-court habeas claims);

McCleskey v. Zant, 499 U.S. 467 (1991) (applying abuse of

writ doctrine); Brecht v. Abrahamson, 507 U.S. 619 (1993)

(applying harmless error rule to State-court habeas claims).

At the same time, Congress itself has statutorily

altered the scope of the writ during the last 50 years. In

1948, Congress codified an exhaustion requirement for

federal habeas claims. 28 U.S.C. Section 2254, Ch. 646, 62

Stat. 964 (1948). In 1966, Congress limited review of State-

court evidentiary proceedings. 28 U.S.C. Sections 2241, et

seq., Pub. L. No. 89-590, 80 Stat. 811 (1966); Pub. L. No.

89-711, 80 Stat. 1105 (1966). And, just last year, Congress

enacted the Antiterrorism and Effective Death Penalty Act.

2. Congress And The Courts

Have Customarily Applied

Changes In Federal Habeas

Jurisdiction To Pending

Cases, Whether Those

Changes Expanded Or

Contracted The Scope Of The

Writ.

At every turn in the evolution of federal habeas

corpus review, to the State amici’s knowledge, the courts

have applied these changes to pending cases. The eighteenth

and nineteenth century statutory expansions of the writ, from

all appearances, applied to pending cases. Nothing in the

case law, or the language of the acts themselves, suggests

that they were not effective upon announcement. As a result,

each of these changes created an immediate new remedy to

obtain release from a State-court conviction.

The experience in the twentieth century has been no

different. Both the 1948 and 1966 statutory amendments to

the writ were applied to pending cases. See Gusik v.

Schilder, 340 U.S. 128, 131-133 & n.4 (1950) (applying the

1948 amendment to pending claims); Smith v. Yeager, 393

U.S. 122, 124-125 (1968) (applying the 1966 amendment to

pending claims); Carafas v. LaVallee, 391 U.S. 234, 239

9

(1968) (same). Even the 1996 Act has already been applied

to pending claims, at least with respect to other portions of

the Act. See Felker v. Turpin, 116 S. Ct. 2333 (1996).

| The same has occurred with respect to new

interpretations of habeas law by the courts. Even though

different factors govern the application of new decisions to

pending cases, see Harper v. Virginia Dep't of Taxation, 509

U.S. 86 (1993), statutory and judicial changes have been

applied to pending cases. See, e.g., Stone v. Powell, 428

U.S. at 495 n.38 (rejecting petitioner’s contention that any

change should be applied prospectively); Wainwright v.

Sykes, 433 U.S. 72, 87-91 (applying the cause and prejudice

doctrine to pending case); Swnner v. Mata, 449 U.S. 539,

549-51 (applying presumption of correctness of State court

findings of fact to pending case); Brown v. Allen, 344 U.S.

443 (1953) (applying interpretation to pending case). The

amici States are not aware of a single decision, regardless of

whether it narrowed or expanded the scope of the writ, that

did not apply to pending cases.

Against this historical backdrop, petitioner’s claim

(Br. 48) that fairness and individual expectations prevent

application of the Act to pending cases rings hollow. In light

of the unbroken tradition of applying changes to pending

cases, petitioner's expectation has no basis in fact. Unless

Congress speaks clearly to the contrary, all changes have

been applied to pending cases. And no doubt, when

Congress chooses to do so, it knows how to indicate that a

change does not affect pending cases. See Act Section 211

(making changes in restitution law and procedures applicable

only to “sentencing proceedings in cases in which the

defendant is convicted on or after the date of enactment”);

Section 235(h) (provisions concerning closed circuit

television of court proceedings apply only to cases filed after

January |, 1995); Section 435 (provision expanding criteria

10

for deporting aliens convicted of crimes of moral turpitude

applicable to those “against whom deportation proceedings

are initiated after the date of enactment”); Section 441

(amendment limiting collateral attacks on deportation orders

date of enactment); Section 903 (making changes in the rate

of compensation of appointed counsel in certain capital cases

apply only to cases commenced or appeals perfected “on or

after the date of enactment”). See also Approval and

Effective Date of Rules Governing Section 2254 Cases and

Section 2255 Proceedings for United States District Courts,

Pub. L. 94-426 § 1, 90 Stat. 1334 (1976) (applying rules

governing habeas petitions brought under Section 2254 to

claims filed on or after February 1, 1997).

Nor does fairness advance petitioner’s claim. The

States have benefitted and suffered from changes to federal

habeas law. So have State-court prisoners. Just as many

expansions of the writ have been applied to pending cases to

the frustration of the States, so also many of the contractions

of the writ have been applied to pending cases to the

frustration of State prisoners. Compare Brown vy. Allen, 344

U.S. 443; Fay v. Noia, 372 U.S. 391 with Stone v. Powell,

428 U.S. 465; Wainwright v. Sykes, 433 U.S. 72; Sumner

v. Mata, 449 U.S. 539. Fairness, then, favors application of

the Act to pending cases because it ensures that modifications

to habeas law apply evenhandedly to States and State

prisoners alike.

B. LANDGRAF CONFIRMS WHAT

HISTORY TEACHES - THE ACT

APPLIES TO PENDING CASES.

Application of changes to federal habeas law to

pending cases has not only been the norm throughout history,

but it has also been consistent with this Court's retroactivity

11

case law.

A statute does not operate retroactively merely

because it draws upon antecedent facts, applies to a case that

arose before the statute was enacted, or reduces the chance

of prevailing in a pending case. Landgraf, 114 S. Ct. at

1499; Cox v. Hart, 260 U.S. 427, 435 (1922). "Rather, the

court must ask whether the new provision attaches new legal

consequences to events completed before its enactment."

Landgraf, 114 S. Ct. at 1499. A statute has retroactive

effect only if it "changes the legal consequences of acts

before its effective date." Weaver v. Graham, 450

U.S. 24, 31 (1981). In the end, a statute may be said to

change the legal consequences of completed acts only if "it

would impair rights a party possessed when he acted,

increase a party's liability for past conduct, or impose new

duties with respect to transactions already completed."

Landgraf, 114 S. Ct. et 1505.

In announcing this test, Landgraf offered several safe

harbors -- settings in which application of a new statute

enacted during the pendency of an action would

"unquestionably" be proper. Jd. at 1501. Among them were

the following: (1) “the intervening statute authorizes or

affects the propriety of prospective relief"; (2) the statute

confers or ousts jurisdiction; or (3) the statute constitutes

merely a change in procedural rules. /d. at 1501-02. Each

of these safe harbors applies here.

“Jurisdiction over applications for federal habeas

corpus is controlled by statute." Brown y. Allen, 344 U.S.

433, 460 (1953). The authority to grant habeas relief to

State prisoners thus is derived from and limited by 28

U.S.C. Section 2254.

The congressional power to invest federal courts with

jurisdiction includes the power of “withholding jurisdiction

from them in the exact degrees and character which to

Congress may seem proper for the public good." Lockerty

v. Phillips, 319 U.S. 182, 187 (1943). "[T}he judgments

about the proper scope of the writ are ‘normally for

Congress to make.’" Felker, 116 S. Ct. at 2340 (quoting

Lonchar v. Thomas, 517 U.S. __, 116 S. Ct. 1293, 1298

(1996)). Congress may therefore enlarge or restrict the

authorization to grant habeas relief to State prisoners by

amending the relevant habeas statutes. Where Congress acts

to restrict jurisdiction, the new law governs pending cases

"because jurisdictional statutes "speak to the power of the

court rather than to the rights or obligations of the parties.’"

Landgraf, 114 S. Ct. at 1502 (quoting Republic Nat. Bank of

Miami, 506 U.S. 80, 113 S. Ct. 554 (1992) at 565 (Thomas,

J., concurring in part and concurring in judgment)). Courts

therefore must apply intervening statutes conferring or

ousting jurisdiction, "whether or not jurisdiction lay when the

underlying conduct occurred or when the suit was filed."

Landgraf, 114 S. Ct. at 1501; Bruner v. United States, 343

U.S. 112, 116-17 (1952).

13

Quite simply, the amendments to 28 U.S.C. Section

2254 are jurisdictional in nature. They limit the jurisdiction

of federal courts to grant habeas relief to State prisoners.

With respect to claims adjudicated on the merits in State

court, Section 2254(d) now provides that the writ “shall not

be granted” unless the State court’s decision was “contrary

to," or "an unreasonable application of, clearly established

Federal law as determined by the Supreme Court of the

United States." This establishes an important limitation on

a court’s jurisdiction. See Anderson v. Creighton, 483 U.S.

635, 640 (1987) (“clearly established law” must be

sufficiently particularized to place a State court on notice that

its ruling violates a constitutional right); Sawyer v. Smith,

497 U.S. 227, 236 (1990) (same). Federal courts thus no

longer have jurisdiction to issue the writ unless the

petitioner’s claims fall within the exceptions set forth in

subdivisions (d)(1) and (d)(2). In short, federal courts have

no power, save that conferred by 28 U.S.C. Section 2254, to

grant habeas relief to State prisoners.

In similar fashion, the amendments to Section 2254(e)

also restrict the federal courts’ jurisdiction to grant habeas

relief. In Sumner v. Mata, 449 U.S. 539, 547-48 n. 2

(1981), the Court found that the statutory presumption of

correctness for State-court findings of fact, contained in

former Section 2254(d), limited the exercise of federal

habeas jurisdiction. By enacting Section 2254(e)(1), which

eliminates the eight exceptions found in former Section

2254(d), and enacting Section 2254(e)(2), which restricts the

federal court’s authority to conduct evidentiary hearings

unless the petitioner meets the statutory prerequisites,

Congress has likewise restricted jurisdiction to review the

factual determinations of State courts. Because Section

2254(e), like Section 2254(d), speaks only to the power of

courts and not to the duties of individuals or governments, it

properly applies to petitions pending on the date of

14

enactment.

2. The Act Applies To Pending

Cases Because It Affects The

Propriety Only Of

Prospective Relief.

"When the intervening statute authorizes or affects the

propriety of prospective relief, application of the new

provision is not retroactive." Landgraf, 114 S. Ct. at 1501.

Case law has long regarded equitable or injunctive relief as

prospective rather than retrospective in nature, even when it

applies to conduct occurring before a statute’s enactment.

See Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494

U.S. 827, 852 (1990); Hall v. Beals, 396 U.S. 45, 48

(1969). Injunctive relief by its nature “operates in futuro"

and therefore is subject on appeal to intervening statutory

changes even where relief already was obtained in district

court. American Steel Foundries v. Tri-City Central Trades

Council, 257 U.S. 184, 201 (1921).

Habeas relief, like injunctive relief, is prospective in

nature. A habeas petition attacks the fact or duration of a

prisoner’s confinement and seeks the injunctive (and

equitable) remedy of an immediate release. See Preiser v.

Rodriquez, 411 U.S. 475, 489 & 494 (1973). Both in its

origin and in the nature of the remedy itself, the writ has

always been deemed equitable in nature. See Gomez v. U.S.

Dist. Court for N.D. of Cal. , 503 U.S. 653, 654 (1992) (per

curiam); Withrow v. Williams, 507 U.S. 680, 113 S. Ct.

1745, 1766-67 (1993) (Scalia, J., concurring in part and

dissenting in part). Because 28 U.S.C. Section 2254

authorizes prospective injunctive relief, it remains entirely

appropriate to apply the Act to pending cases. Much like the

Clayton Act at issue in American Steel Foundries v. Tri-City

Central Trades Council, 257 U.S. 184 (1921), the Act here

15

represents a decision by Congress that a certain type of

prospective relief ought not be granted in a defined class of

cases. And, as in American Steel Foundries, that statutory

command applies in any case where the decision granting

prospective relief remains subject to review.

3. The Act Applies To Pending

Cases Because It Affects Only

Secondary Conduct.

The Act also applies to pending cases because it does

not regulate primary behavior (i.e., the underlying State

criminal conduct), but only the secondary conduct of seeking

collateral review of the State criminal judgment. See

Barefoot v. Estelle, 463 U.S. 880, 887 (1983) ("[t]he role of

federal habeas proceedings . . . is secondary and limited");

Lindh v. Murphy, 96 F.3d 856, 864 (7th Cir. 1996) ("Section

2254(d) does not regulate primary conduct. Instead it makes

the initial judgment more stable."). "The role of federal

habeas proceedings, while important in assuring that

constitutional rights are observed, is secondary and limited."

Brecht v. Abrahamson, 113 S. Ct. 1710, 1719 (1993). The

writ of habeas corpus has historically been viewed as an

extraordinary remedy reserved to afford relief for grievous

wrongs. /d. at 1719. For these reasons, a federal habeas

petitioner does not “ordinarily have any claim of reliance on

past judicial precedent as a basis for his actions." Lockhart

v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 844 (1993).

Under these circumstances, applying the Act to

pending cases would not cross the Landgraf line -- by

“impair[ing] rights a party possessed when [they] acted,” by

“increas[ing] a party’s liability for past conduct,” or by

“impos[ing] new duties with respect to transactions already

completed.” Landgraf, 114 S. Ct. at 1505. The

amendments simply do not deprive habeas petitioners of any

16

protected right or interest, and the amendments do not

impose any additional penalties or punishments. They do not

change the rules defining or penalizing petitioner’s crime.

Nor can petitioner argue that he relied on the existence of

federal de novo review of his State-court claims when he

committed the crime. And petitioner has no plausible

argument that he relied on the former habeas corpus statute

in making tactical decisions during the State-court

proceedings.

No § 2254 applicant . . . could persuasively argue

that during his trial or prior attacks on the judgment,

he relied to his detriment upon the pre-amendment

version of [§ 2254]. Release from a conviction or

sentence is better sooner rather than later, and

acquittal at trial is better yet. It is unlikely that any

applicant . . . would pull any punches at trial or in

early attacks on the judgment based upon expectations

about the prospects of success in later proceedings.

Hunter v. United States, 101 F.3d 1565, 1573 (11th Cir.

1996). This last point is especially true in light of

preexisting habeas law. Rules governing exhaustion of State

remedies and procedural default not only encouraged

petitioners to present all of their federal claims to the State

courts, they generally required them to do so.

In the final analysis, the Act applies to all habeas

corpus Cases pending at the time of its enactment -- above all

because the amendments “speak to the power of the court

rather than to the rights or obligations of the parties."

Landgraf, 114 S. Ct. at 1502. But whether the question is

framed in terms of procedure, jurisdiction, or primary versus

secondary conduct, they all indicate that the Act applies to

pending habeas corpus petitions.

17

CONCLUSION

For the foregoing reasons, the amici States

respectfully request the Court to affirm the decision below.

Respectfully submitted,

BETTY D. MONTGOMERY

Attorney General of Ohio

JEFFREY S. SUTTON

State Solicitor

Counsel of Record

SIMON B. KARAS

JON C. WALDEN

Assistant Attorneys General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215-3428

(614) 466-8980

CHRISTINE O. GREGOIRE

Attorney General of Washington

PAUL D. WEISSER

JOHN J. SAMSON

Assistant Attorneys General

1125 Washington Street, S.E.

Olympia, Washington 98504

(360) 586-1445

COUNSEL FOR AMICI CURIAE

Dated: March 20, 1997