Federal Habeas Corpus: A Legal Overview

Federal Habeas Corpus: A Legal Overview

Updated October 1, 2024

Congressional Research Service

https://crsreports.congress.gov

RL33391

Federal Habeas Corpus: A Brief Legal Overview

Summary

Federal habeas corpus is a procedure under which a federal court may review the legality of an

individual’s incarceration. It is most often the stage of the criminal appellate process that follows

direct appeal and any available state collateral review. The law in the area is an intricate weave of

statute and case law.

Current federal law operates under the premise that with rare exceptions prisoners challenging the

legality of the procedures by which they were tried or sentenced get “one bite of the apple.”

Relief for state prisoners is only available if the state courts have ignored or rejected their valid

claims of detention in violation of federal law, and there are strict time limits within which they

may petition the federal courts for relief. Moreover, a prisoner relying upon a novel interpretation

of law must succeed on direct appeal; federal habeas review may not be used to establish or claim

the benefits of a “new rule.” Expedited federal habeas procedures are available in the case of state

death row inmates if the state has provided an approved level of appointed counsel. The Supreme

Court has yet to hold that a state death row inmate who asserts he is “actually innocent” may be

granted habeas relief in the absence of an otherwise constitutionally defective conviction.

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Federal Habeas Corpus: A Brief Legal Overview

Contents

Introduction ..................................................................................................................................... 1

History ............................................................................................................................................. 1

Origins ....................................................................................................................................... 1

Early American Experiences ..................................................................................................... 3

Birth of the Modern Writ........................................................................................................... 4

Ebb and Flow ............................................................................................................................ 4

Contemporary Limits on the Exercise of Habeas Jurisdiction ........................................................ 7

Deference to State Courts.......................................................................................................... 8

Exhaustion ............................................................................................................................... 10

Successive Petitions .................................................................................................................11

Statute of Limitations .............................................................................................................. 12

Appeals.................................................................................................................................... 14

Default ..................................................................................................................................... 16

Actual Innocence ..................................................................................................................... 18

Harmless Error ........................................................................................................................ 19

New Rules and Retroactivity .................................................................................................. 19

Opting In ................................................................................................................................. 21

Habeas for Federal Convicts: The Section 2255 Substitute .......................................................... 24

Congressional Authority to Bar or Restrict Access to the Writ ..................................................... 25

The Original Writ .................................................................................................................... 25

Suspension of the Privilege of the Writ ................................................................................... 29

Selected Bibliography ................................................................................................................... 35

Contacts

Author Information........................................................................................................................ 38

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Federal Habeas Corpus: A Brief Legal Overview

Introduction1

Federal habeas corpus as we know it is by and large a procedure under which a federal court may

review the legality, under federal law, of an individual’s incarceration by federal or state

authorities.2 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) in 1996, 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 . . . . ”3 The AEDPA was enacted 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.4

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;5 no state was initially able to take full

advantage of the offer, which led Congress to adjust the method of determining qualification in

the USA PATRIOT Improvement and Reauthorization Act.6 In 2020, the Attorney General

certified that Arizona had qualified.7

History

Origins

At early English 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,

1 This report is available in an abridged version as CRS Report RS22432, Federal Habeas Corpus: An Abridged

Sketch, by Charles Doyle.

2 E.g., 28 U.S.C. §§ 2254, 2255. Claims that an individual is in custody in violation of state law, rather than federal law,

are beyond the reach of the federal writ and beyond the scope of this report.

3 17B Charles Alan WRIGHT, et al., FEDERAL PRACTICE AND PROCEDURE § 4261 (3d ed. 2007).

4 [Judge] Diane P. Wood, The Enduring Challenges for Habeas Corpus, 95 NOTRE DAME L. REV. 1809, 1834 (2020);

Lee Kovarsky, The New Negative Habeas Equity, 137 HARV. L. REV. 222, 2273 (2024); CRS Report R41011, Habeas

Corpus Legislation in the 111th Congress, by Charles Doyle, AEDPA Repeal, 107 CORNELL L. REV. 1739 (2022); Leah

M. Litman, The Myth of the Great Writ, 100 TEX. L. REV. 219 (2021).

5

28 U.S.C. §§ 2261–2266.

6 P.L. 109-177, § 507, 120 STAT. 250–51 (2006); 28 U.S.C. § 2265.

7 Certification of Arizona Capital Counsel Mechanism, 85 Fed. Reg. 20,705 (Apr. 14, 2020).

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Federal Habeas Corpus: A Brief Legal Overview

“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 have been 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” or may be 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.8

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.9

8 Other habeas corpus writs included:

(1) Habeas corpus ad deliberandum et recipiendum, a writ for bringing an accused from a different county into a court

in the place where an offense had been committed for purposes of trial, or more literally to return holding the body for

purposes of “deliberation and receipt” of a decision.

(2) Habeas corpus ad faciendum et recipiendum, a writ of a court of superior jurisdiction to a custodian to return with

the body being held in confinement pursuant to the order of a lower court for purposes of “receiving” the court’s

decision and of “doing” what the court instructed with the prisoner.

(3) Habeas corpus ad faciendum, subjiciendum et recipiendum, or more simply, habeas corpus ad subjiciendum, a writ

ordering a custodian to return with a prisoner for the purposes of “submitting” the question of confinement to the court,

of “receiving” its decision, and of “doing” what the court instructed with the prisoner.

(4) Habeas corpus ad prosequendum, a writ ordering return with a prisoner for the purpose “prosecuting” him before

the court.

(5) Habeas corpus ad respondendum, a writ ordering return to a court of superior jurisdiction of a body under the

jurisdiction of a lower court for purposes of allowing the individual to “respond” with respect to matters under

consideration in the high tribunal.

(6) Habeas corpus ad satisfaciendum, a writ ordering return with the body of a prisoner for “satisfaction” or execution

of a judgment of the issuing court.

(7) Habeas corpus ad testificandum, a writ ordering return with the body of a prisoner for the purposes of “testifying”;

and

(8) Habeas corpus cum causa, a writ ordering return with the body of a prisoner and “with the cause” of his

confinement so that the issuing court might pass upon the validity of continued confinement and issue appropriate

additional orders. BLACK’S LAW DICTIONARY (11th ed. 2019); 1 BOUVIER’S LAW DICTIONARY, (11th ed. 1914); Ex

parte Bollman, 8 U.S. (4 Cranch) 75, 95–98 (1807); for English history of habeas corpus see WILLIAM F. DUKER, A

CONSTITUTIONAL HISTORY OF HABEAS CORPUS, 12–94 (1980); IX WILLIAM SEARLE HOLDSWORTH, A HISTORY OF

ENGLISH LAW, 104-25 (2d ed. 1938).

9 1 WILLIAM BLACKSTONE, COMMENTARIES 131 (“[I]f any person be restrained of his liberty by order or decree of any

illegal court, or by command of the king’s majesty in person, or by warrant of the council board, or of any of the privy

council; he shall, upon demand of his counsel, have a writ of habeas corpus, to bring his body before the court of

king’s bench or common pleas, who shall determine whether the cause of his commitment be just, and thereupon do as

to justice shall appertain. And by 31 Car. 2., c. 2, commonly called the habeas corpus act [of 1679], the methods of

obtaining this writ are so plainly pointed out and enforced, that, so long as this statute remains unimpeached, no subject

of England can be long detained imprison, except in those cases in which the law requires and justifies such detainer.”)

(A Facsimile of the First Edition of 1765-1769) (transliteration supplied) .

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Early American Experiences

Colonial America was well acquainted with habeas corpus and with occasional suspensions of the

writ.10 The drafters of the United States Constitution, after enumerating the powers of Congress,

inserted the limitation that “[t]he [p]rivilege of the Writ of Habeas Corpus shall not be suspended,

unless when in Cases of Rebellion or Invasion the public Safety may require it.”11

The Act that created the federal court system empowered federal judges to issues writs of habeas

corpus “and all 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.”12 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.”13

The Supreme Court further clarified federal habeas corpus law when in Ex parte Bollman,14 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.15

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.16

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,”17 and to state prisoners who were foreign nationals and claimed

10 WILLIAM F. DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS, 95–125 (1980); Max Rosenn, The Great Writ

– A Reflection of Societal Change, 44 OHIO ST. L.J. 337 (1983); ROBERT SEARIES WALKER, THE AMERICAN RECEPTION

OF THE WRIT OF LIBERTY (1961).

11 U.S. CONST. art. I, § 9, cl. 2.

12 1 STAT. 81–82 (1789).

13 Id. Then, as now, federal authorities kept prisoners in local jails since they rarely maintained federal jails except in

the territories, see 1 STAT. 91 (1789) (“[F]or any crime or offence against the United States, the offender may, . . .

where he may be found agreeably to the usual mode of process against offenders of such state, and at the expense of the

United States, be arrested, and imprisoned or bailed.”).

14 8 U.S. (4 Cranch) 75 (1807).

15 Id. at 93.

16 Ex parte Watkins, 28 U.S. (3 Pet.) 193 (1830).

17 4 STAT. 634–35 (1833) (Section 7 of the Act of March 2, 1833, ch.52, more fully reads, “And be it further enacted,

That either of the justices of the Supreme Court, or a judge of any district court of the United States, in addition to the

authority already conferred by law, shall have power to grant writs of habeas corpus in all cases of a prisoner or

prisoners, in jail or confinement, where he or they shall be committed or confined on, or by any authority or law, for

any act done, or omitted to be done, in pursuance of a law of the United States, or any order, process, or decree, of any

judge or court thereof, anything in any act of Congress to the contrary notwithstanding.”).

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Federal Habeas Corpus: A Brief Legal Overview

protection of the Act of State doctrine.18 The federal writ otherwise remained unavailable for

prisoners held under state authority rather than the authority of the United States.19

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.” 20

Originally, habeas corpus permitted collateral attack upon a prisoner’s conviction only if the

sentencing court lacked subject matter jurisdiction. Shortly after 1867, 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.21

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 relief—trial, appellate, and

postconviction—had been exhausted.22

Ebb and Flow

Eventually two developments stimulated new growth in the use of the writ. 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 Supreme 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 Supreme Court in Frank v. Mangum23 denied the writ because Frank’s

18 5 STAT. 539–40 (1842).

19 Ex parte Dorr, 44 U.S. (3 How.) 103 (1845).

20 14 STAT. 385–86 (1867); see also Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869).

21 See, e.g., Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873) (Lange had been convicted of an offense punishable by a

fine or term of imprisonment. The trial court had sentenced him to a fine and a term of imprisonment. Lange paid his

fine and was imprisoned. The Court held that once Lange had paid the fine the trial court lost all jurisdiction over the

case and thus his confinement was subject to the writ.).

Ex parte Siebold, 100 U.S. 371 (1879) (In Siebold, although the statute in question was found to be within the power of

Congress, the Court held that had the prisoner been convicted under an unconstitutional law he would have been

entitled to discharge upon the writ.).

Ex parte Wilson, 114 U.S. 417 (1885) (The Court held that Wilson was entitled to discharge on the writ because the

trial court had exceeded its jurisdiction when it tried, convicted and sentenced him to fifteen years hard labor based

upon an information filed by the district attorney rather than upon a grand jury indictment as required by the Fifth

Amendment in the case of all capital and otherwise infamous crimes.).

In re Snow, 120 U.S. 274 (1887) (Snow was convicted of three counts of cohabitation based on the same conduct

during three different periods of time. The Court found that the misconduct was one continuous offense rather than

three offenses. Since three sentences would constitute multiple punishment contrary to the Fifth Amendment, the trial

court had acted beyond its jurisdiction and the writ should issue.).

22 Ex parte Royall, 117 U.S. 241 (1886); Ex parte Fonda, 117 U.S. 516 (1886); Pepke v. Cronan, 155 U.S. 100 (1894).

23 237 U.S. 309 (1915).

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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.24

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 Moore v.

Dempsey.25 Despite 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,26 or of a denial of the assistance of

counsel in criminal prosecutions,27 or of confessions or guilty pleas secured by government

coercion.28

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.29 Federal judges

soon complained that federal prisoner abuses of habeas had become “legion.”30 Congress

responded by incorporating into the 1948 revision of the judicial code the first major revision of

the federal habeas statute since 1867.31

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.32

24 Id. at 331 (“[I]t results that under the [federal habeas] sections cited a prisoner in custody pursuant to the final

judgment of a state court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the

very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond

the record of his conviction to a sufficient extent to test the jurisdiction of the state court to proceed to judgment against

him.”).

25 261 U.S. 86 (1923).

26 Mooney v. Holohan, 294 U.S. 103 (1935) (per curiam).

27 Johnson v. Zerbst, 304 U.S. 458 (1938).

28 Waley v. Johnston, 316 U.S. 101 (1942) (per curiam).

29 Id. at 104–05; see also Walker v. Johnston, 312 U.S. 275 (1941); Case Comment, The Freedom Writ – The

Expanding Use of Federal Habeas Corpus, 61 HARV. L. REV. 657 (1948).

30 Louis E. Goodman, Use & Abuse of the Writ of Habeas Corpus, 7 F.R.D. 313, 314 (1948).

31 28 U.S.C. §§ 2241–2255 (1946 ed.) (Supp. III, 1949).

32 Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV. 142, 155–

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Federal habeas was the vehicle used to carry much of the due process expansion to the states.

After the Supreme Court’s decision in Brown v. Allen33 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.34

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 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.35

The Court eased the exhaustion restriction considerably in Fay v. Noia,36 in which it held that

federal courts were permitted, but not required, to deny habeas for an intentional failure to

56 (1970) (“The dimensions of the problem of collateral attack today are a consequence of two developments. One has

been the Supreme Court’s imposition of the rules of the fourth, fifth, sixth and eighth amendments concerning

unreasonable searches and seizures, double jeopardy, speedy trial, compulsory self-incrimination, jury trial in criminal

cases, confrontation of adverse witnesses, assistance of counsel, and cruel and unusual punishments, upon state

criminal trials. The other has been a tendency to read these provisions with ever increasing breadth. The Bill of Rights,

as I warned in 1965, has become a detailed Code of Criminal Procedure, to which a new chapter is added every year.

The result of these two developments has been a vast expansion of the claims of error in criminal cases for which a

resourceful defense lawyer can find a constitutional basis.” (footnotes omitted)).

33 344 U.S. 443, 485 (1953) (“The writ of habeas corpus in federal courts . . . . is only authorized when a state prisoner

is in custody in violation of the Constitution of the United States.”) (citing 28 U.S.C. S 2241).

The Court in Brown was divided on the questions of habeas corpus, the effect to be given a denial of certiorari, and

equal protection. There were six separate opinions, including two by Justice Frankfurter and two by Justice Black.

Justice Reed’s opinion for the Court also includes the minority position on the certiorari question, and on the two

questions for which he wrote the majority opinion for the Court his views must be read in conjunction with those of

Justice Frankfurter which appear in the companion case, Daniels v. Allen: 344 U.S. 488, 497 (1953): “This opinion is

designed to make explicit and detailed matters that are also the concern of Mr. Justice Reed’s opinion. The uncommon

circumstances in which a district court should entertain an application ought to be defined with greater particularity, as

should be the criteria for determining when a hearing is proper. The views of the Court on these questions may thus be

drawn from the two opinions jointly.”).

34 Commentators suggested the Court intended the denial of certiorari and the anticipated subsequent recourse to

federal habeas to permit it to enlist the aid of the lower federal courts to review the federal constitutional questions

raised in state cases, Friendly, supra note 32, at 154–55; J. Skelly Wright & Abraham D. Sofaer, Federal Habeas

Corpus for State Prisoners: The Allocation of Fact-Finding Responsibility, 75 YALE L.J. 895, 897–98 (1966) (both

citing Judge Wyzanski’s statement in Geagan v. Gavin, 181 F. Supp. 466, 469 (D. Mass. 1960)).

35 Brown, 344 U.S. at 487 (“A failure to use a state’s available remedy, in the absence of some interference or

incapacity . . . bars federal habeas corpus. The statute requires that the applicant exhaust available state remedies. To

show that the time was passed for appeal [without an appeal by the prisoner] is not enough [to demonstrate the absence

of a state remedy and] to empower the Federal District Court to issue the writ.”).

36 372 U.S. 391 (1963).

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exhaust state remedies.37 At the same time, it articulated circumstances under which the

evidentiary hearing, found permissible in Brown, would be mandatory in Townsend v. Sain.38

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 Supreme 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: “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.39 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.40

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 were barred from raising them for the first time in

federal habeas in the absence of a justification.41 Nor might they scatter their habeas claims in a

series of successive petitions.42 Those who plead guilty and thereby waived, as a matter of state

law, any constitutional claims, might not use federal habeas to revive them.43 And with narrow

exception, state prisoners might 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”).44

Contemporary Limits on the Exercise of Habeas

Jurisdiction

The AEDPA45 codified, supplemented, and expanded upon the Supreme Court’s limitations on the

availability of the writ. AEDPA was the culmination and amalgamation of disparate legislative

efforts, including habeas proposals, some stretching back well over a decade.46 Its adjustments

help define the contemporary boundaries of the writ.

37 Id. at 438–39.

38 Townsend v. Sain, 372 U.S. 239, 312–13 (1963).

39 Sanders v. United States, 373 U.S.1, 15 (1963) (footnote omitted).

40 28 U.S.C. §§ 2244, 2254.

41 Wainwright v. Sykes, 433 U.S. 72 (1977).

42 McCleskey v. Zant, 499 U.S. 467 (1991).

43 Parker v. North Carolina, 397 U.S. 790 (1970); McMann v. Richardson, 397 U.S. 759 (1970); Tollett v. Henderson,

411 U.S. 258 (1973).

44 Teague v. Lane, 489 U.S. 288, 312–13 (1989).

45 P.L. 104-132, 110 STAT. 1214 (1996).

46 See e.g., Habeas Corpus Reform Act of 1982: Hearings Before the Senate Comm. on the Judiciary, 97th Cong., 2d

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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.47 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.48 Out of deference to state courts and to eliminate unnecessary

delay, the AEDPA, in 28 U.S.C. § 2254, barred federal habeas relief on a claim already passed

upon by a state court “unless the adjudication of the claim—(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.”49

For purposes of § 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.50 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.51 The Court observed that “This

Sess. (1982); Comprehensive Crime Control Act of 1983: Hearings Before the Subcomm. on Criminal Law of the

Senate Comm. on the Judiciary, 98th Cong., 1st Sess. (1983); Habeas Corpus Reform: Hearing Before the Senate

Comm. on the Judiciary, 99th Cong., 1st Sess. (1985); Habeas Corpus Reform: Hearings Before the Senate Comm. on

the Judiciary, 101st Cong., 1st & 2d Sess. (1990); Habeas Corpus Legislation: Hearings Before the Subcomm. on

Courts, Intellectual Property, and the Administration of Justice of the House Comm. on the Judiciary, 101st Cong., 2d

Sess. (1990); Habeas Corpus Issues: Hearings Before the Subcomm. on Civil and Constitutional Rights of the House

Comm. on the Judiciary, 102d Cong., 1st Sess. (1991); Habeas Corpus: Hearings Before the Subcomm. on Civil and

Constitutional Rights of the House Comm. on the Judiciary, 103d Cong., 1st & 2d Sess. (1994); Innocence & the Death

Penalty: Hearings Before the Senate Comm. on the Judiciary, 103d Cong., 1st Sess. (1993); Federal Habeas Corpus—

Eliminating Prisoners’ Abuse of the Judicial Process: Hearings Before the Senate Comm. on the Judiciary, 104th

Cong., 1st Sess. (1995).

47 Cf., Brown v. Allen, 344 U.S. 443, 463 (1953).

48 Litigation generally involves finding facts, identifying the legal principles necessary to resolve the dispute arising

from the facts, and applying the legal principles to the facts. Federal courts, sitting to consider habeas petitions from

state prisoners, generally deferred to the fact-finding decisions of state courts. The habeas reform proposals called for

deference to state court rulings of law and applications of the law to the facts. Endorsing a similar proposal in an earlier

Congress, the Senate Judiciary Committee cited finality and judicial economy, S. REP. NO. 98-226, 98th Cong., 1st

Sess. 6-7 (1983). The report also noted academic support and that a comparable state of the law existed before the

Court’s decision in Brown, 344 U.S. 443, id. at 23 (citing Paul M. Bator, Finality in Criminal Law and Federal Habeas

Corpus for State Prisoners, 76 HARV. L. REV. 441, 444–62 (1963)); Friendly, supra note 32, at 165 n.125.

Opponents of the proposals generally responded first to what they saw as a shrinking of the Great Writ and that

prisoners with federal claims ought to be entitled to present them in a federal forum, 137 CONG. REC. 26,761 (1991)

(remarks of Rep. Jenkins); Larry W. Yackle, The Reagan Administration’s Habeas Corpus Proposals, 68 IOWA L. REV.

609, 621 (1983). But the “federal right/federal forum” argument was not without its detractors, Withrow v. Williams,

507 U.S. 680, 722 (1993) (Scalia, J., dissenting).

49 28 U.S.C. § 2254(d) (2000), as amended, 28 U.S.C. § 2254(d); Brown v. Davenport, 596 U.S. 118, 125 (2022);

Cullen v. Pinholster, 563 U.S. 170 (2011); see generally, Joseph Blocher & Brandon L. Garrett, Fact Stripping, 73

DUKE L.J. 1 (2023).

50 Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quoting Wiggins v. Smith, 539 U.S. 510, 520 (2003)).

51 Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003) (“It is not enough that a federal habeas court, in its ‘independent

review of the legal question,’ is left with a ‘firm conviction’ that the state court was ‘erroneous.’ We have held

precisely the opposite: ‘Under § 2254(d)(1)’s ‘unreasonable application’ clause, then, a federal habeas court may not

issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision

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means that a state court’s ruling must be ‘so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.’”52

For purposes of § 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.”53 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.54

Section 2254(d)’s contrary-to-or unreasonable-application threshold applies even when the Brecht

v. Abrahamson55 standard (which requires a state prisoner seeking to challenge his conviction in

collateral federal proceedings to show that trial error had a substantial and injurious effect or

influence on the outcome of the trial) is in play.56

The Supreme Court has had fewer occasions to construe the unreasonable-determination-of-facts

language in § 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 . . . are presumed correct; the

petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’”57

Section 2254(e) also limits the new evidence that might be used to undermine a prior factual

determination to previously undiscoverable evidence or evidence made available by the

retroactive application of a Supreme Court “new rule” of constitutional interpretation.58 Even if

applied clearly established federal law erroneously or incorrectly.’ Rather, that application must be objectively

unreasonable.”) (quoting Williams v. Taylor, 529 U.S. 362, 411 (2000)); see also Bell v. Cone, 535 U.S. 685, 699

(2002); Rompilla, 545 U.S. at 380; Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Knowles v. Mirzayance, 556 U.S.

111, 123 (2009); Virginia v. LeBlanc, 582 U.S. 91, 94 (2017); Shoop v. Twyford, 596 U.S. 811, 819 (2022).

52 Shoop v. Hill, 586 U.S. 45, 48 (2019) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)); see also

LeBlanc, 582 U.S. at 94.

53 Brown v. Payton, 544 U.S. 133, 141 (2005) (first quoting 28 U.S.C. § 2254(d)(1)); then citing Williams v. Taylor,

529 U.S. 362, 405 (2000); and then citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)); Carey v. Musladin, 549

U.S. 70, 74 (2006).

54 Kernan v. Cuero, 583 U.S. 1, 8 (2017) (“[C]ircuit precedent does not constitute ‘clearly established Federal law, as

determined by the Supreme Court.”’) (quoting Glebe v. Frost, 754 U.S. 21, 23 (2014) (per curiam)); Wright v. Van

Patten, 552 U.S. 120, 126 (2008) (per curiam); Kane v. Garcia Espitia, 546 U.S. 9, 10 (2005).

55 507 U.S. 619 (1993).

56 Brown v. Davenport, 596 U.S. 118, 145 (2022) (“Even assuming Mr. Davenport met his burden under Brecht, he

cannot do so under AEDPA. And a federal court cannot grant habeas relief unless a state prisoner like Mr. Davenport

satisfies both this Court’s equitable precedents and Congress’s statute.”).

57 Rice v. Collins, 546 U.S. 333, 338–39 (2006) (first quoting 28 U.S.C. § 2254(d)(2); Miller-El v. Dretke, 545 U.S.

231, 240 (2005) (“the standard is demanding but not insatiable . . . ‘deference does not by definition preclude relief’”

quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)); see also Wiggins v. Smith, 539 U.S. 510, 528 (2003) (an

assistance of counsel case in which Court observed that a “partial reliance on an erroneous factual finding further

highlights the unreasonableness of the state court’s decision”); Porter v. McCollum, 558 U.S. 30, 41–44 (2009) (per

curiam) (state court decision that petitioner was not prejudiced by counsel’s failure to investigate potential mitigating

evidence was unreasonable); see generally, 28 U.S.C. § 2254(e) .

58 Shoop v. Twyford, 596 U.S. 811, 819 (The section permits a petitioner to offer new evidence undermining the

validity of his conviction if the evidence was previously undiscoverable or made admissible by an intervening Supreme

Court decision).

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all of § 2254(e)’s conditions are met, admission of the new evidence is a matter of the court’s

discretion.59

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 had long been required to

exhaust the opportunities for state remedial action before federal habeas relief could be granted.60

The Supreme Court has observed that 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.”61 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,” the Court described federal

courts as applying the doctrine of comity, which “teaches that one court should defer action on

causes properly within its jurisdiction until the courts of another sovereignty with concurrent

powers, and already cognizant of the litigation, have had an opportunity to pass upon the

matter.”62

“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

issues. Equally as 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.”63

The AEDPA preserves the exhaustion requirement,64 and reinforces it with an explicit demand

that a state’s waiver of the requirement must be explicit.65 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

59 Shinn v. Ramireiz, 596 U.S. 366, 381–82 (2022) (“Finally, even if all of these requirements [under § 2254(e)] are

satisfied, a federal habeas court still is not required to hold a hearing or take any evidence. Like the decision to grant

habeas relief itself, the decision to permit new evidence must be informed by principles of comity and finality that

govern every federal habeas case.”). (emphasis in original).

60 28 U.S.C. § 2254(b),(c) (1994 ed.).

61 Rose v. Lundy, 455 U.S. 509, 518 (1982).

62 Darr v. Burford, 339 U.S. 200, 204 (1950).

63 Rose, 455 U.S. at 518–19.

64 28 U.S.C. § 2254(b)(1)(A); Shinn v. Ramirez, 596 U.S. 366, 377 (2022). The requirement is subject to exception

when “it appears that . . . (i) there is an absence of available state corrective process; or (ii) circumstances exist that

render such process ineffective to protect the rights of the applicant,” 28 U.S.C. § 2254(b)(1)(B); Banks v. Dretke, 540

U.S. 668, 690 (2004); see generally, 28 U.S.C. § 2254(b) (“(b)(1) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the

applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State

corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant

to exhaust the remedies available in the courts of the State. (3) A State shall not be deemed to have waived the

exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly

waives the requirement.”).

65 28 U.S.C. § 2254(b)(3). Banks v. Dretke, 540 U.S. 668, 705 (2004) (“[U]nder pre-AEDPA law, exhaustion and

procedural default defenses could be waived based on the State’s litigation conduct,” (citing, Granberry v. Greer, 481

U.S. 129, 135 (1987)).

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prisoner has mistakenly first sought relief in federal court, operation of the exhaustion doctrine

may contribute to further delay.66 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 also bars repetitious habeas petitions by state and federal prisoners under § 2244

which with limited exceptions gives habeas petitioners “one and only one bite of the apple,” no

more continuing parade of habeas petitions from a single prisoner.67 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.68 Cause could be found in the ineffective assistance of counsel;69 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;70 or the discovery of new evidence not

previously readily discoverable. 71

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.”72 “To establish the

requisite probability, the petitioner must show that it is more likely than not that no reasonable

juror would have convicted him in the light of the new evidence.”73 The Supreme Court’s preAEDPA 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.”74 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;75 or (B) it is predicated upon on newly discovered evidence, not

66 H.R. Rep. No. 104-23 at 9–10 (1995) (“This reform will help avoid the waste of state and federal resources that now

result when a prisoner presenting a hopeless petition to a federal court is sent back to the state courts to exhaust state

remedies. It will also help avoid potentially burdensome and protracted inquiries as to whether state remedies have

been exhausted, in cases in which it is easier and quicker to reach a negative determination of the merits of a petition . .

. . The [Act] further provides that a state shall not be deemed to have waived the exhaustion requirement or be estopped

from reliance on the requirement unless it waives the requirement expressly through counsel. This provision accords

appropriate recognition to the important interests in comity that are implicated by the exhaustion requirement in cases

in which relief maybe granted. This provision is designed to disapprove those decisions which have deemed states to

have waived the exhaustion requirement, or barred them from relying on it, in circumstances other than where the state

has expressly waived the requirement.”).

67 28 U.S.C. § 2244(b).

68 McCleskey v. Zant, 499 U.S. 467, 492–97 (1991).

69 Kimmelman v. Morrison, 477 U.S. 365 (1986).

70 Reed v. Ross, 468 U.S. 1 (1984).

71 Amadeo v. Zant, 486 U.S. 214 (1988).

72 Schlup v. Delo, 513 U.S. 298, 322 (1995).

73 Id. at 327. The Court insisted upon a higher standard of proof when the asserted constitutional defect affected the

question not of the petitioner’s guilt but of his death sentence. There the gateway showing of innocence, required a

showing “by clear and convincing evidence that but for a constitutional error, no reasonable juror would find [the

petitioner] eligible for the death penalty under [applicable state] law,” Sawyer v. Whitley, 505 U.S. 333, 348 (1992).

74 Tyler v. Cain, 533 U.S. 656, 661 (2001) (citing, 28 U.S.C. § 2244(b)(1)).

75 Id. at 662 (“This provision [28 U.S.C. § 2244(b)(2)(A)] establishes three prerequisites to obtaining relief in a second

or successive petition: First, the rule on which the claim relies must be a ‘new rule’ of constitutional law; second, the

rule must have been ‘made retroactive to cases on collateral review by the Supreme Court;’ and, third, the claim must

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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.”76 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.77 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.78

The Supreme Court, in Felker v. Turpin, held that because it retained its jurisdiction to entertain

original habeas petitions neither the gatekeeper provisions of 28 U.S.C. § 2244(b)(3) nor the

limitations on second or successive petitions found in § 2244(b)(1) and (2) deprive the Court of

appellate jurisdiction in violation of Article III, § 2 of the Constitution.79 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, § 9.”80 In Castro v. United States,81 the Court held

that § 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.82

Statute of Limitations

Until the mid-20th 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,83 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.84 Federal habeas review was not precluded merely because the government’s ability to

have been ‘previously unavailable.’ In this case, the parties ask us to interpret only the second requirement . . . . Based

on the plain meaning of the text read as a whole, we conclude that ‘made’ means ‘held’ and, thus, the requirement is

satisfied only if this Court has held that the new rule is retroactively applicable to cases on collateral review.”).

76 28 U.S.C. § 2244(b)(2); Foster v. Chatman, 578 U.S. 488, 520 (2016). Section 2255(h) sets comparable restrictions

against repetitive motions by federal prisoners (“A second or successive motion must be certified as provided in section

2244 by a panel of the appropriate court of appeals to contain—(1) newly discovered evidence that, if proven and

viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no

reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitution law, made

retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”); Jones v. Hendrix,

599 U.S. 465, 490 (2023).

77 28 U.S.C. § 2244(b)(3); Banister v. Davis, 590 U.S. 504, 509 (2020).

78 28 U.S.C. § 2244(b)(3)(E).

79 Felker v. Turpin 518 U.S. 651, 661–63 (1996). The so-called “gatekeeper” provision is so designated because it

requires the courts of appeals to open the way for district court consideration of a habeas petitioner’s second or

successive application for habeas relief.

80 Id. at 664.

81 540 U.S. 375, 379–81 (2003).

82 Panetti v. Quarterman, 551 U.S. 930, 944–45 (2007).

83 United States v. Smith, 331 U.S. 469, 475 (1947) (“habeas corpus provides a remedy . . . without limit of time”).

84 Rule 9(a), Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. § 2254 App. (1994

ed); see also Rule 9(a), Rules Governing Section 2255 Cases in the United States District Courts, 28 U.S.C. § 2255

App. (1994 ed.). Rule 9 now provides: “Before presenting a second or successive petition, the petitioner must obtain an

order from the appropriate court of appeals authorizing the district court to consider the petition as required by 28

U.S.C. § 2244(b)(3) and (4).”

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retry the petitioner had been prejudiced by the passage of time.85 The court rules also did not

apply where the petitioner could not reasonably have acquired the information necessary to apply

before prejudice to the government occurred.

The AEDPA establishes a one-year deadline, codified at 28 U.S.C. § 2244(d), within which state

and federal prisoners must file their federal habeas petitions.86 The period of limitations begins

with the latest of:

•

•

•

•

the date of final completion of direct state review procedures;87

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;88 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,89 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.”90 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).”91 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.92

85 Vasquez v. Hillery, 474 U.S. 254, 264–65 (1986).

86 28 U.S.C. § 2244(d) (“(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by

a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of - (A) the

date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking

such review; (B) the date on which the impediment to filing an application created by State action in violation of the

Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has

been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D)

the date on which the factual predicate of the claim or claims presented could have been discovered through the

exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of

limitation under this subsection.”); § 2255(f) is comparably worded.

87 Although a conviction is ordinarily final when the deadline for filing a final appeal has passed, the beginning of the

limitations period here may be tolled until competition of any direct appeal allowed to proceed out of time, Jimenez v.

Quarterman, 555 U.S. 113, 118–21 (2009).

88 When the Court recognizes the right in one decision and later asserts its retroactive application, the statute of

limitations begins to run from the date of the decision recognizing the right, Dodd v. United States, 545 U.S. 353, 360

(2005).

89 Many states have a state equivalent of federal habeas corpus sandwiched between direct appeal and federal habeas.

In these jurisdictions there may be as many as eight levels of review: (1) direct appeal in state court, (2) an opportunity

to petition for review by the United States Supreme Court, (3) petition for collateral review in state court, (4) appeal to

state appellate courts of any denial of collateral relief in state court, (5) an opportunity to petition for review by the

United States Supreme Court, (6) petition for habeas relief in federal district court, (7) appeal of any denial in federal

district court, and (8) an opportunity for United States Supreme Court review.

90 Evans v. Chavis, 546 U.S. 189, 192 (2006) (citing Carey v. Saffold, 536 U.S. 214, 219–21 (2002)).

91 Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (alteration in original) (quoting Carey v. Saffold, 536 U.S. 214, 226

(2002)); similarly for federal prisoners, tolling pending appeal ends when the Court renders its decision or when the

time for filing a petition for certiorari expires, Clay v. United States, 537 U.S. 522, 527–28 (2003).

92 Artuz v. Bennett, 531 U.S. 4, 8 (2000).

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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.93 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.94

The 1-year statute of limitations provisions are subject to a miscarriage of justice exception under

which a “petitioner ‘must show that it is more likely than not that no reasonable juror would have

convicted him in the light of the new evidence.’”95

The same 1-year provisions initially presented a novel problem for district courts faced with

petitions presenting containing claims over which opportunities for state relief had 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.96

Petitioners could then return to the federal habeas court 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 file[d] a timely but mixed petition in federal district court, and the district court

dismisse[d] it under Lundy after the limitations period has expired, this will likely mean the

termination of any federal review.”97 Nevertheless, the district court was under no obligation to

warn pro se petitions of the perils of mixed petitions.98 Although cautioning against abuse if too

frequently employed, the Supreme Court endorsed a “stay and abeyance” solution suggested by

several of the lower courts, under which 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.99

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,100 and could

93 Mayle v. Felix, 545 U.S. 644, 655 (2005).

94 Day v. McDonough, 547 U.S. 198, 202 (2006).

95 McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

96 Rose v. Lundy, 455 U.S. 509, 518–19 (1982).

97 Rhines v. Weber, 544 U.S. 269, 275 (2005).

98 Pliler v. Ford, 542 U.S. 225, 227 (2004) (the Court left open the question of whether such a prisoner might

subsequently file an out of time, amended petition relating back to his original timely petition under a claim of

improper dismissal).

99 “[S]tay and abeyance should be available only in limited circumstances . . . . [S]tay and abeyance is only appropriate

when the district court determines there was good cause for the petitioner’s failure to exhaust his claims first in state

court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it

were to grant him a stay when his unexhausted claims are plainly meritless . . . . And if a petitioner engages in abusive

litigation tactics or intentional delay, the district court should not grant him a stay. On the other hand, it likely would be

an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause

for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the

petitioner engaged in intentionally dilatory litigation tactics,” Rhines v. Weber, 544 U.S. 269, 277–78 (2005); see also

Gonzalez v. Thaler, 565 U.S. 134, 153–54 (2012).

100 28 U.S.C. § 2254 (1994 ed.).

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only be granted after the prisoner had made a “substantial showing of the denial of [a] federal

right.”101

With slight changes in terminology, the AEDPA leaves the matter largely unchanged.102 Appeals

are only possible upon the issuance of certification of appealability (COA), based on a substantial

showing of a constitutional right.103 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. ’”104

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.105 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.106 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.107 Although the Supreme Court had declared that it

lacked statutory jurisdiction to review the denial of a certificate of probable cause under a writ of

certiorari,108 the denial of a COA may be challenged under the writ.109

101 Barefoot v. Estelle, 463 U.S. 880, 893 (1983).

102 28 U.S.C. § 2253(c).

103 Id. § 2253(c) (“(1) Unless a circuit justice or judge issues a certification of appealability, an appeal may not be taken

to the court appeals from – (A) the final order in a habeas corpus proceeding in which the detention complained of

arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A

certification of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the

denial of a constitutional right.”); Ayestas v. Davis, 584 U.S. 28, 37 n.1 (2018) (“[T]he jurisdiction of a court of

appeals to entertain an appeal from a final order in a habeas proceeding is dependent on the issuance of a COA.”)

(citing 28 U.S.C. § 2253(c)(1) and Gonzalez v. Thaler, 565 U.S. 134, 142 (2012)); Welch v. United States, 578 U.S.

120, 127 (2016).

104 Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)); see also

Tharpe v. Sellers, 583 U.S. 33, 35 (2018) (per curiam); Banks v. Dretke, 540 U.S. 668, 703–05 (2004).

105 Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (“A prisoner seeking a COA must prove ‘something more than the

absence of frivolity’ or the existence of mere ‘good faith’ on his or her part. We do not require petitioner to prove,

before the issuance of a COA, that some jurists would grant the petition for habeas corpus. Indeed, a claim may be

debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full

consideration that petitioner will not prevail.”).

106 Slack v. McDaniel, 529 U.S. 473, 484 (2000) (“Where a district court has rejected the constitutional claims on the

merits, the showing required to satisfy 2253(c) is straightforward: the petitioner must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims debatable or wrong. The issue becomes

somewhat more complicated where, as here, the district court dismissed the petition based on procedural grounds. We

hold as follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s

underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find

it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural ruling.”).

107 Miller-El, 537 U.S. at 336–67 (“This threshold inquiry does not require full consideration of the factual or legal

bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals sidesteps this process by

first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual

merits, it is in essence deciding an appeal without jurisdiction”).

108 House v. Mayo, 324 U.S. 42, 44 (1945).

109 Hohn v. United States, 524 U.S. 236, 253 (1998).

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Default

Default occurs when a state prisoner fails to afford state courts the opportunity to correct a

constitutional defect and then seeks federal habeas relief.110 Default lies at the heart of the

Supreme Court’s deferential “independent and adequate state ground” doctrine, which bars

“federal habeas when a state court declined to address a prisoner’s federal claims because the

prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests

on independent and adequate state procedural grounds.”111 Ordinarily, the Supreme Court will

consider an independent state ground “adequate” if it is “firmly established and regularly

followed,” unless the state ruling is grounded in an “unforeseeable and unsupported” application

of state law.112

In some cases, a prisoner’s attorney may fail to satisfy the requirements designed to ensure

finality and comity, through negligence or by choice, and the prisoner asserts that the failure is

due to constitutionally defective assistance of counsel. The Sixth Amendment guarantees the

criminally accused the right to the assistance of counsel.113 The right is binding against the states

through the Fourteenth Amendment.114 The right “is the right to effective counsel.”115 The want of

efficient counsel may lead to reversal of a conviction or vacatur of a sentence.116 To prove

deficient performance of counsel, a defendant must show first that counsel’s performance was not

reasonably “within the range of competence demanded of attorneys in criminal cases . . . under

prevailing professional norms.”117 Second, “the defendant must show that the deficient

performance prejudiced the defense,” that is, that counsel’s errors were so serious as to deprive

the defendant of a fair trial.”118

In Wainwright v. Sykes119 and the cases which followed its lead, the Supreme 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.”120 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,121 and when they sought to establish a

110 Shinn v. Ramirez, 596 U.S. 366, 378 (2022) (“Under that doctrine [of procedural default], federal courts generally

decline to hear any federal claim that was not presented to the state courts ‘consistent with [the State’s] own procedural

rules.’”) (quoting Edwards v. Carpenter, 529 U.S. 446, 453 (2000)).

111 Coleman v. Thompson, 501 U.S. 722, 729–30 (1991) (citing Wainwright v. Sykes, 433 U.S. 72, 81, 87 (1977)).

112 Cruz v. Arizona, 598 U.S. 17, 25–26 (2023).

113 U.S. CONST. amend. VI.

114 Gideon v. Wainwright, 372 U.S. 335, 342–44 (1963).

115 Strickland v. Washington, 466 U.S. 668, 686 (1984).

116 Id. at 687. Ineffective assistance of counsel is one of the two most common habeas claims. Habeas Relief for State

Prisoners, 52 GEO. L. J. ANN. REV. CRIM. PROC. 1125, 1139 (2023).

117 Strickland, 466 U.S. at 687, 688; Andrus v. Texas, 590 U.S. 806, 813 (2020) (per curiam) (describing state court

determination that petitioner failed to show “counsel’s representation fell below an objective standard of

reasonableness”).

118 Strickland, 466 U.S. at 687; see also Shinn v. Kayer, 592 U.S. 111, 117–18 (2020) (“In the capital sentencing

context, the prejudice inquiry asks ‘whether there is a reasonable probability that, absent the errors, the sentencer . . .

would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’”) (quoting

Strickland, 466 U.S. at 695); Thornell v. Jones, 144 S. Ct. 1302, 1310 (2024).

119

433 U.S. 72 (1977).

120 E.g., Shinn v. Ramirez, 596 U.S. 366, 379 (2022) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

121 McClesky v. Zant, 499 U. S. 467 (1991).

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claim by developing facts which they had opted not to establish during previous proceedings.122

Of the two elements, prejudice requires an actual, substantial disadvantage to the prisoner.123

What constitutes cause is not easily stated, and the cases reflect the Supreme Court’s reluctance to

second-guess counsel. Cause does not include tactical decisions,124 ignorance, inadvertence or

mistake of counsel,125 or the assumption that the state courts would be unsympathetic to the

claim.126 Cause may include the ineffective assistance of counsel;127 some forms of prosecutorial

misconduct;128 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;129 or the

discovery of new evidence not previously readily discoverable.130

The Constitution does not guarantee the right to the effective assistance of counsel in postconviction litigation after the direct appeal stage.131 Consequently, ineffective assistance there

cannot supply cause to excuse default,132 unless the default is the product of state law.133

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,

122 Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).

123 Engle v. Isaac, 456 U.S. 107 (1982); Ramirez, 596 U.S. at 379.

124 Smith v. Murray, 477 U.S. 527 (1986).

125 Murray v. Carrier, 477 U.S. 478 (1986).

126 Engle, 456 U.S. at 130.

127 Shinn v. Ramirez, 596 U.S. 366, 371 (2022) (“In Martinez v. Ryan, 566 U.S. 1[, 14] (2012), this Court explained

that ineffective assistance of postconviction counsel is ‘cause’ to forgive procedural default of an ineffectiveassistance-of-trial-counsel claim, but only if the State required the prisoner to raise that claim for the first time during

[later] state postconviction proceedings [and the claim had some merit].”) (parallel citations omitted) (emphasis added);

in Davila v. Davis, 582 U.S. 521, 529 (2017), the Court refused “to extend Martinez to allow a federal court to hear a

substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel when a prisoner’s state

postconviction counsel provide[d] ineffective assistance by failing to raise that claim.”) (emphasis added); in Ramirez,

596 U.S. at 371, The Court refused to evoke Martinez’s equitable principles to dispense with AEDPA’s limits (28

U.S.C. § 2254(e)(2)) on new evidentiary supplements to the record of state court proceedings; Kimmelman v.

Morrison, 477 U.S. 365 (1986). For ineffective assistance of counsel to satisfy a petitioner’s burden to show cause for

his procedural default (by failing to raise a claim in state court), the claim of ineffective assistance must have been

presented to the state courts, Edwards v. Carpenter, 529 U.S. 446, 452 (2000) (“‘a claim of ineffective assistance’ must

‘be presented to the state courts as an independent claim before it may be used to establish cause for a procedural

default’” (quoting Murray v. Carrier, 477 U.S. 478, 489 (1986)).

128 Strickler v. Greene, 527 U.S. 263 (1999) (finding cause for failure to raise a Brady claim relating to the

prosecution’s obligation to disclose of exculpatory evidence when “(a) the prosecution withheld exculpatory evidence;

(b) petitioner reasonable relied on the prosecution’s open file policy as fulfilling the prosecution’s duty to disclose such

evidence; and (c) the [State] confirmed petitioner’s reliance on the open file policy by asserting during state habeas

proceedings that petitioner had already received everything known to the government”) (quoted with approval in Banks

v. Dretke, 540 U.S. 668, 692–93 (2004)).

129 Reed v. Ross, 468 U.S. 1, 16 (1984).

130 Amadeo v. Zant, 486 U.S. 214, 222 (1988).

131 Shinn v. Rameriz, 596 U.S. 366, 383 (2022) (citing Davila v. Davis, 582 U.S. 5221, 529 (2017))

132 Ramirez, 596 U.S. at 380 (“‘[I]n proceedings for which the Constitution does not guarantee the assistance of counsel

at all, attorney error cannot provide cause to excuse a default.’”) (quoting Davila, 582 U.S. at 529 (2017)).

133 Ramirez, 596 U.S. at 380 (“In Martinez, this Court recognized a ‘narrow exception’ to the rule. . . . There, the Court

held that ineffective assistance of state postconviction counsel may constitute ‘cause’ to forgive procedural default of a

trial-ineffective-assistance claim, but only if the State requires prisoners to raise such claims for the first rtime during

state collateral proceedings. . . . One year later, in Trevino v. Thaler, 569 U.S. 413 (2013), this Court held that this

‘narrow exception’ applies if the State’s judicial system effectively forecloses direct review of trial-ineffectiveassistance claims. Id. at, 428. Otherwise, attorney error where there is no right to counsel remains insufficient to show

cause.”) (parallel citations omitted).

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would result in a miscarriage of justice due to the apparent conviction of the innocent.134 To meet

this “actually innocent” standard, the prisoner must show that “it is more likely than not that no

reasonable juror would convict him.”135 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.”136 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 non-defaulted claims for

relief and the grounds for cause excusing default on other claims have been examined.137

Actual Innocence

In its 1993 decision in Herrera v. Collins,138 the Supreme Court considered 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.139 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.140

House v. Bell,141 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.142

In re Davis afforded the Court the opportunity to consider anew the issue it put aside in Herrera

and House—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.143 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.144 Justice Stevens, in a concurrence joined

134 Murray v. Carrier, supra.

135 Schlup v. Delo, 513 U.S. 298, 327 (1995). The standard rests between that of Sawyer v. Whitley, 505 U.S. 333, 336

(1992) (that the petitioner show “by clear and convincing evidence that, but for a constitutional error, no reasonable

juror would have found petitioner [guilty or] eligible for the death sentence under the applicable state law”) and that of

Strickland v. Washington, 466 U.S. 668, 695 (1986) (the petitioner must show “a reasonable probability that, absent the

errors, the factfinder would have had a reasonable doubt respecting guilt”), Schlup, 513 U.S. at 332–33 (O’Connor, J.,

concurring).

136 Sawyer v. Whitlety, 505 U.S. 333, 336 (1992).

137 Dretke v. Haley, 541 U.S. 386, 393–94 (2004).

138 506 U.S. 390 (1993).

139 Id. at 417.

140 Id. at 400.

141 547 U.S. 518 (2006).

142

Id. at 555.

143 In re Davis, 557 U.S. 952 (2009).

144 Id. at 954 (Scalia, J., with Thomas, J., dissenting).

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by Justices Ginsburg and Breyer, disagreed.145 The lower federal courts subsequently denied

relief146 and the Supreme Court denied certiorari.147

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.”)148 The writ will issue, however,

where the court has grave doubt as to whether the error was harmless.149

New Rules and Retroactivity

A line of cases beginning with the Supreme Court’s 1989 decision in Teague v. Lane150 drastically

limited use of federal habeas to raise novel legal issues by restricting for habeas purposes the

retroactive application of the Supreme Court’s decisions. The Court’s 2021 decision in Edwards v.

Vannoy151 limited availability even further.

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. Walker152 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.”153

In Teague, the Court adopted a different approach, borrowing from a position espoused earlier by

Justice John M. Harlan.154 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

145 Id. at 952–53 (Stevens, J., with Ginsburg and Breyer, JJ., concurring).

146 Davis v. Terry, 625 F.3d 716 (11th Cir. 2010).

147 Davis v. Humphrey, 563 U.S. 904 (2011).

148 Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

149 O’Neal v. McAninch, 513 U.S. 432, 435 (1995).

150 489 U.S. 288 (1989).

151 593 U.S. 255 (2021) (discussed in Jonathan R. Siegel, Habeas, History, and Hermeneutics, 64 ARIZ. L. REV. 505

(2022)).

152 381 U.S. 618 (1965).

153 Stovall v. Denno, 388 U.S. 293, 297 (1967).

154 See Desist v. United States, 394 U.S. 244, 256 (1969) (Harlan, J. dissenting); Mackey v. United States, 401 U.S.

667, 675 (1971) (Harlan, J. concurring).

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all defendants on collateral review” under one of the two exceptions where retroactive application

is permitted.155

Thus, under Teague and its companion, Penry v. Lynaugh,156 a new rule could not be sought

through federal habeas and a new rule could 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,’”157 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,158 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.”159

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.”160 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,161 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.”162

The Court later 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.163

The second exception, available to new “watershed rules of criminal procedure implicating the

fundamental fairness and accuracy of the criminal proceeding” like Gideon v. Wainwright164 did

not extend to cases less indispensable to fundamental fairness than Gideon.165 The Court observed

in Beard v. Banks that it had yet to find another case that satisfied this second Teague

exception,166 and in Edwards it gave up the search.

155 Teague, 489 U.S. at 316 (emphasis of the Court).

156 492 U.S. 302 (1989).

157 Teague, 489 U.S. at 307.

158 Penry, 492 U.S. at 330.

159 Teague, 489 U.S. at 312–13.

160 Id. at 301 (emphasis of the Court).

161 Butler v. McKellar, 494 U.S. 407, 415 (1990).

162 Sawyer v. Smith, 497 U.S. 227, 234 (1990) (quoting Butler, 494 U.S. at 414); Graham v. Collins, 506 U.S. 461

(1993); Gilmore v. Taylor, 508 U.S. 333 (1993). The lower courts may not, however, disregard clear indications that a

rule, sought or sought to be applied retroactively, is “dictated by precedent” and thereby escape the new rule

limitations, Stringer v. Black, 503 U.S. 222, 234–35 (1992).

163 Beard v. Banks, 542 U.S. 406, 411 n.3 (2004) (“Rules that fall within what we have referred to as Teague’s first

exception ‘are more accurately characterized as substantive rules not subject to [Teague’s] bar’”) (quoting Schriro v.

Summerlin, 542 U.S. 348, 352 n.4 (2004)).

164

372 U.S. 335 (1963).

165 Saffle v. Parks, 494 U.S. 484, 495 (1990); Sawyer v. Smith, 497 U.S. 227 (1990).

166 Beard v. Banks, 542 U.S. 406, 417 (2004).

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In Edwards, the Court repudiated the “watershed rules of criminal procedure” exception and

summarized the surviving rule as follows:

New substantive rules alter “the range of conduct or the class of persons that the law

punishes.” Those new substantive rules apply to cases pending in trial courts and on direct

review, and they also apply retroactively on federal collateral review. New procedural rules

alter “only the manner of determining the defendant’s culpability.” Those new procedural

rules apply to cases pending in trial courts and on direct review. But new procedural rules do

not apply retroactively on federal collateral review.167

Opting In

The most controversial of the proposals that preceded enactment of the AEDPA involved habeas

in state capital cases.168 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.169

167 Edwards v. Vannoy, 593 U.S. 255, 276 (2021) (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2007)).

168 The major crime bills passed by the House and Senate in the 101st Congress each contained habeas corpus

amendments, S. 1970 and H.R. 5269. In an effort to secure final passage of a crime bill before adjournment, provisions

over which the two Houses had major differences, such as habeas corpus, were stripped out, before a clean bill, S.

3266, was enacted,136 CONG. REC.36,925, 36,926 (1990) (remarks of Reps. Hughes and Hyde); 136 CONG. REC.

36,311-36,312 (1990) (remarks of Sen. Biden).

Habeas reform issues reemerged during the 102d Congress in which the Senate passed an omnibus crime bill

containing reform proposals, S. 1241, and the House approved a different package, H.R. 3371. H.R. 3371 was

ultimately reported out of conference committee with amendments and passed the House but not the Senate, 138 CONG.

REC. 36,311—36,312 (1992) (remarks of Sens. Biden and Thurmond).

In the 103d Congress, the Senate elected to exclude habeas corpus reform from the major crime package it passed, H.R.

3355 (S. 1607), 139 CONG. REC. 30,574 (1993); 32,286-32,394 (1993) (text); 29,439-29,440 (1993) (remarks of Sen.

Biden explaining omission). When the House Judiciary Committee reported the bill out, H.R. 4092, it included habeas

reform provisions, 140 CONG. REC. 7374 (1994) (text). They were dropped during debate pursuant to an amendment by

Rep. Hyde and despite a subsequent unsuccessful amendment offered by Rep. Derrick that would have restored a

modified version of the Committee reform proposals, 140 CONG. REC. 7,804-7,810 (1994).

The issues resurfaced in the 104th Congress beginning with early House passage of the Effective Death Penalty Act

(H.R. 729), 141 CONG. REC. 4090-4121 (1995); see also H.R. Rep. No. 104-23. In the Senate, the provisions were part

of the terrorism bill, S. 735, from the beginning and passed the Senate as part of S. 735, 141 CONG. REC. 15,018–

15,065 (1995), and were ultimately enacted into law as the first title in the Antiterrorism and Effective Death Penalty

Act of 1996, P.L. 104-132, 110 STAT. 1214 (1996).

169 “The problem is that, unlike the defendants serving their imprisonment – whose only incentive to apply for

collateral review is the small chance that they will be released – defendants on death row have a very good reason to

bring as many habeas corpus proceedings as the law allows. The time these reviews take literally keeps the death row

defendants alive, and from their point of view the investment of time and energy for legal proceedings is very

worthwhile.

“Of course, from our point of view it can be argued that if these defendants know there is no substance in their claims,

they should withdraw their suits and take their punishment. Unfortunately, this kind of self-sacrifice is asking too much

of anyone, let alone the kinds of people who have committed the types of crimes which have resulted in their being

sentenced to death. . . .

“Moreover, the reversal rate in capital cases, both on direct appeal and on post-conviction relief, is far greater than that

of noncapital – even murder – cases. Partly this results from the greater complexity of capital cases, since courts are

especially careful in these cases to make sure the law is followed, and there is no doubt that the ambivalence of the

courts toward the death penalty plays a part in this process. Moreover, capital cases, being harder fought, tend to raise

(continued...)

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In 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.”170 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 1989.171

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.172 The AEDPA, however, offered

procedural advantages to the states to ensure the continued availability of qualified defense

counsel in death penalty cases.173 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.174

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.175 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.”176 References to

competence standards for appointed counsel were removed.177

more issues upon which the defense can appeal, and provide more incentive to make sure they are thoroughly briefed

and argued. Moreover, in capital cases, the appellate courts are less willing to conclude that they should not disturb the

verdict on the grounds that, on the whole, justice was done. In capital cases, more than others, all parties seem to feel

that it is not merely sufficient that the right result be reached, but also that the appropriate procedures be scrupulously

followed,” John Kaplan, The Problem of Capital Punishment, 1983 U. ILL. L. REV. 555, 573–74.

The complexity of death penalty jurisprudence contributed to a success rate estimated by some at almost 50%, a factor

that not only enhanced delay but stiffened resistance to a narrower writ, Joseph L. Hoffman & William J. Stunt, Habeas

After the Revolution, 1993 S. CT. REV. 65, 110 n.144 (“Professor James Liebman has determined that, between 1976

and 1985, the overall success rate for death penalty petitioners in habeas was 49 percent. See Liebman, Federal Habeas

Corpus at 23–24 n.97 [(1988)]”).

170 Ad Hoc Committee on Federal Habeas Corpus in Capital Cases Committee Report (Powell Committee Report),

printed in 135 CONG. REC. 24,694 (1989).

The American Bar Association issued a somewhat more detailed series of recommendations concerning reform of

habeas in capital cases, TOWARD A MORE JUST AND EFFECTIVE SYSTEM OF REVIEW IN STATE DEATH PENALTY CASES: A

REPORT CONTAINING THE AMERICA BAR ASSOCIATION’S RECOMMENDATIONS CONCERNING DEATH PENALTY HABEAS

CORPUS AND RELATED MATERIALS FROM THE AMERICAN BAR ASSOCIATION CRIMINAL JUSTICE SECTION’S PROJECT ON

DEATH PENALTY HABEAS CORPUS (1990).

171 135 CONG. REC. 24,693 (1989).

172 P.L. 100-690, §7001, 102 STAT. 4393; 21 U.S.C. § 848(q)(4)(B) (2000 ed.).

173 28 U.S.C. §§ 2261–2266.

174 Id. §§ 2261, 2265.

175 Id. § 2265.

176 Id. § 2265(c).

177 Prior to amendment, section 2261(b) read: “This chapter is applicable if a State establishes by statute, rule of its

court of last resort, or by another agency authorized by State law, a mechanism for the appointment, compensation, and

payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by

(continued...)

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The Attorney General’s certification178 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.179 The Attorney General

promulgated implementing regulations in late 2008.180

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.181 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.182 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.183

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.184

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 that 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 application185 and by the federal court of appeals within 120 days of the filing of the

parties’ final briefs.186

The implementing regulations are still in force,187 but Arizona appears to be the only state to have

opted in.188

indigent prisoners whose capital convictions and sentences have been upheld on direct appeal to the court of last resort

in the State or have otherwise become final for State law purposes. The rule of court or statute must provide standards

of competency for the appointment of such counsel,” 28 U.S.C. 2261(b) (2000 ed.) (emphasis added).

178 28 C.F.R. pt. 26B.

179 28 U.S.C. § 2265(c).

180 73 Fed. Reg. 75,327 (Dec. 11, 2008).

181 28 U.S.C. § 2262.

182 28 U.S.C. § 2251 (1994 ed.).

183 28 U.S.C. § 2263.

184 28 U.S.C. § 2264.

185 Or, if sooner, within 60 days after the date the case is submitted for decision, 28 U.S.C. § 2266(b)(1)(A). Prior to the

passage of the USA PATRIOT Improvement and Reauthorization Act, district courts were given 120 days from filing,

28 U.S.C. § 2266(b)(1) (A) (2000 ed.).

186 28 U.S.C. § 2266.

187 28 C.F.R. §§ 26.20 to 26.23.

188 85 Fed. Reg. 20,705 (Apr. 14, 2020); see also Habeas Relief for State Prisoners, 52 ANN. REV. CRIM. PROC. 1125,

1192 (2023) (mentioning only Arizona as having opted in).

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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 § 2255

of title 28 of the United States Code for collateral review. Congress added § 2255 when it revised

title 28 in 1948 to expedite review.189 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.”190 The section “was intended to mirror § 2254

in operative effect,”191 although there are occasionally differences between the two. When the

AEDPA amended the provisions governing access to habeas by state prisoners, in some instances

it made comparable changes in § 2255.192

Thus, both the state inmate’s habeas petition and federal convict’s § 2255 motion must be filed

within a year after their direct appeals become final.193 “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.”194 As for procedural default, “[w]here the petitioner—whether a state or federal

prisoner—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.”195

The Supreme Court has yet to address the question of whether the Teague rule, which generally

requires a new constitutional interpretation be claimed on direct appeal rather in habeas, applies

to § 2255. The Court has observed that the lower federal courts have applied the Teague rule to §

2255,196 and the logic that led to the elimination of the Teague “watershed rules of criminal

procedure” exception in habeas petition cases would seem to apply with equal force in § 2255

motion cases.197 The statutory provisions, governing both petition and motion cases, restrict relief

for second or successive invocations in much the same manner, but they do so in different

terminology.198

189 H.R. Rep. No. 79-2646, at A172 (1946).

190 Boumediene v. Bush, 553 U.S. 723, 774–75 (2008).

191 Reed v. Farley, 512 U.S. 339, 353 (1994) (quoting Davis v. United States, 417 U.S. 333, 344 (1974)).

192 Compare § 105 (§ 2255 amendments) with §§ 104 (§ 2254 amendments) and 106 (limits on second or successive

applications) in P.L. 104-132, 110 STAT. 1218-211 (1996).

193 28 U.S.C. §§ 2244(d), 2255(f).

194 28 U.S.C. § 2255(d).

195 Reed, 512 U.S. at 354.

196 Danforth v. Minnesota, 552 U.S. 264 n.16 (2008); see also Welch v. United States, 578 U.S. 120, 128 (2016) (“The

parties here assume that the Teague framework applies in a federal collateral challenge to a federal conviction as it does

in a federal collateral challenge to a state conviction, and we proceed on that assumption.”).

197 See Edwards v. Vannoy, 593 U.S. 255, 272 (2021).

198 28 U.S.C. §§ 2244(b), 2255(h); see also Gonzalez v. Crosby, 545 U.S. 524, 529 n.3 (2005); Jones v. Hendrix, 599

U.S. 465, 477–78 (2023).

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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. 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.”199 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.”200 Balanced against this, is the power of Congress to

“ordain and establish” the lower federal courts;201 to regulate and make exceptions to the

appellate jurisdiction of the Supreme Court;202 to enact all laws necessary and power to carry into

effect the constitutional powers of the courts as well as its own;203 and the power to suspend the

privilege to the writ in times of rebellion or invasion.204

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.205

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,206 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.207

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

199 U.S. CONST. art. I, § 9, cl. 2.

200 U.S. CONST. amend. V.

201 U.S. CONST. art. III, § 1.

202 U.S. CONST. art. III, § 2, cl. 2.

203 U.S. CONST. art. I, § 8, cl. 18.

204 U.S. CONST. art. I, § 9, cl. 2.

205 Boumediene v. Bush, 553 U.S. 723, 771–72 (2008).

206 U.S. CONST. art. III, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such

inferior Courts as the Congress may from time to time ordain and establish . . . . The judicial Power shall extend to all

Cases, in Law and Equity, arising under this Constitution, the Laws of the United States . . . .”).

207 U.S. CONST. art. III, § 2, cl. 2 (“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in

which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned,

the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such

Regulations as the Congress shall make.”).

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shall power to grant writs of habeas corpus for the purpose of an inquiry into the cause of

commitment . . . . ”208

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.209

Notwithstanding the exception for prisoners held under military authority, the first case to come

before the Supreme 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.”210 His petition for a writ of habeas corpus was

denied by the federal circuit court and he appealed to the Supreme Court.211

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 motion—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 1789—and set the case for argument. 212 But before the case could be decided on

its merits, Congress repealed the law vesting appellate jurisdiction in the Court.213

Its jurisdiction to decide the appeal having been withdrawn, the Supreme Court dismissed the

appeal for want of jurisdiction in Ex parte McCardle.214 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.215 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

208 1 STAT. 81-82 (1789).

209 “[T]he several courts of the United States, and the several justices and judges of such courts, within their respective

jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in

all cases 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 . . . . From the final decision of any judge, justice, or court, inferior to the circuit court, an appeal

may be taken to the circuit court of the United States . . . and from said circuit court to the Supreme Court of the United

States, on such terms and under such regulations and orders . . . as may prescribed by the Supreme Court . . . . This act

shall not apply to the case of any person who is or may be held in the custody of the military authorities of the United

States, charged with any military offence, or with having aided or abetted rebellion against the government of the

United States prior to passage of this act,” 14 STAT. at 385–86 (1867).

210 Charles Fairman, Reconstruction and Reunion 1864–88, VI HISTORY OF THE SUPREME COURT OF THE UNITED STATES

437 (1971).

211 Id. at 438–40.

212 Ex parte McCardle, 73 U.S. (6 Wall.) 318 (1868).

213 “That so much of the act approved February five, eighteen hundred and sixty seven [14 STAT. 385] . . . as authorizes

an appeal from the judgment of the circuit court to the Supreme Court of the United States, or the exercise of any such

jurisdiction by said Supreme Court on appeals which have been or may hereafter be taken, be, and the same is, hereby

repealed,” 15 STAT. 44 (1868).

214 74 U.S. (7 Wall.) 506 (1868).

215 “Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power

of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not except from that

jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which

was previously exercised.” Id. at 514 (citing “Ex parte McCardle, 6 Wallace, 324”).

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to the writ of habeas corpus, and there was no regulated and established practice for the

guidance of parties invoking the jurisdiction.216

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. In Ex parte Yerger, the Supreme Court recognized that its earlier authority to review

habeas cases from the lower federal courts through writs of habeas corpus, aided by writs of

certiorari, remained available.217

Over a century later, 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.218 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 Supreme 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, §2.”219 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 1885.220 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.221

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]

216 Ex parte McCardle, 73 U.S. (6 Wall.) at 324. The writ of certiorari cited by the Court was not the statutorily

fortified writ we now know, but a considerably more modest version. It worked to remove an indictment or other

record and thus proceedings from an inferior court. Both writs were required because (1) the Supreme Court’s original

jurisdiction could not be statutorily increased, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and thus an

“original” writ could only issue from the Court in aid of its appellate jurisdiction; (2) but habeas, unaided, did not

remove proceedings from a lower court since it only demanded the presence of a prisoner and his or her custodian to

appear before the court; (3) certiorari, unaided, was likewise insufficient since it accomplished no more than to retrieve

process and records from an inferior court, Dallin H. Oaks, The “Original” Writ of Habeas Corpus in the Supreme

Court, 1962 S. CT. REV. 153, 154 (“The two [writs] were complimentary. Certiorari removed the record, but not the

prisoner; habeas corpus removed the prisoner, but not the record.”).

217 75 U.S. (8 Wall.) 85 (1869).

218 518 U.S. 651 (1996).

219

Felker, 518 U.S.at 661–62.

220 23 STAT. 437.

221 Dallin H. Oaks, The “Original” Writ of Habeas Corpus in the Supreme Court, 1962 S. CT. REV. 153, 206–07.

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Court of jurisdiction to entertain original habeas petitions.”222 Just as McCardle and Yerger

“declined to find a repeal of §14 of the Judiciary Act of 1789 as applied to [the] Court by

implication . . . [Felker] decline[s] to find a similar repeal of § 2241 of Title 28 . . . .”.223

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 20.224 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.”225 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,”226 the Supreme 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 notable that the Court based its decisions on the “original” habeas rather than deciding that

the gatekeeper provision came within Congress’ power under the Exceptions and Regulations

Clause. 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.227 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 hold that the

222 Felker, 518 U.S. at 658.

223 Id. at 661. The symmetry is less than perfect, however, since McCardle and Yerger found the dual authority in two

distinct sources, the Judiciary Act of 1789 and the Act of 1867 while the Court points to § 2241 as the contemporary

source of both. Moreover, while the nineteenth century Congress purported to do no more than withdraw appellate

jurisdiction, its twentieth century successor sought to curtail certiorari jurisdiction as well.

Justice Steven’s concurrence identifies additional sources of review authority with the observation that the AEDPA

“does not purport to limit our jurisdiction under [§ 1254(1)] to review interlocutory orders in such cases, to limit our

jurisdiction under 1254(2) [relating to Supreme Court review of questions certified by a court of appeals seeking

instruction], or to limit our jurisdiction under the All Writs Act, 28 U.S.C. §1651.” Id. at 666 (Souter & Breyer, JJ.

concurring).

224 Id. at 665 (“Our Rule 20.4(a) delineates the standards under which we grant such [original] writs [of habeas corpus]:

‘A petition seeking the issuance of a writ of habeas corpus shall comply with the requirements of 28 U.S.C. §§ 2241

and 2242, and in particular with the provision in the last paragraph of § 2242 requiring a statement of the reason for not

making application to the district court of the district in which the applicant is held. If the relief sought is from the

judgment of a state court, the petition shall set forth specifically how and wherein the petitioner has exhausted available

remedies in the state courts or otherwise comes within the provisions of 28 U.S.C. § 2254(b). To justify the granting of

a writ of habeas corpus, the petitioner must show exceptional circumstances warranting the exercise of the Court’s

discretionary powers and must show that adequate relief cannot be obtained in any other form or from any other court.

These writs are rarely granted.’ Reviewing petitioner’s claims here, they do not materially differ from numerous other

claims made by successive habeas petitioners which we have had occasion to review on stay applications to this Court.

Neither of them satisfies the requirements of the relevant provisions of the Act, let alone the requirement that there be

‘exceptional circumstances’ justifying the issuance of the writ.”).

225 Felker, 518 U.S. at 663.

226 Id. at 665.

227 “[I]f it should later turn out that statutory avenues other than certiorari for reviewing a gatekeeping determination

were closed, the question whether the statute exceeded Congress’ Exception Clause power would be open,” 518 U.S. at

667 (Stevens, J., with Souter & Breyer, JJ) (concurring).

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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.”228

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 1679.229 But in times of crisis, the Parliament allowed that the privilege of the writ

should be temporarily suspended upon its approval.230

228 U.S. CONST. art. I, § 9, cl. 2; see generally Paul D. Halliday & G. Edward White, The Suspension Clause: English

Text, Imperial Context, and American Implications, 94 VA. L. REV. 575 (2008); John Harrison, The Original Meaning

of the Habeas Corpus Suspension Clause, the Right of Natural Liberty, and Executive Discretion, 29 WM. & MARY

BILL RTS. J. 649 (2021).

229 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 134–35 (1768) (“And yet, early in the reign of

Charles I, the court of king’s bench relying on some arbitrary precedents (and those perhaps misunderstood)

determined that they could not upon an habeas corpus either bail or deliver a prisoner, though committed without any

cause assigned, in case he was committed by the special command of the king, or by the lords of the privy council. This

drew on a parliamentary enquiry, and produced the petition of right, 3 Car. I, which recites this illegal judgment, and

enacts that no freeman hereafter shall be so imprisoned or detained. But when, in the following year, Mr. Selden and

others were committed by the lords of the council . . . the judges delayed for two terms . . . to deliver an opinion how

far such a charge was bailable . . . . These pitiful evasions gave rise to the statute 16 Car. I. c.10. §.8. whereby it was

enacted, that if any person be committed by the king himself in person, or by his privy council, or by any member

thereof, he shall have granted unto him, without any delay upon any pretence whatsoever, a writ of habeas corpus upon

demand or motion to the court of the king’s bench or common pleas . . . . Other abuses had also crept into daily practice

[concerning the availability of the writ of habeas corpus], which had in some measure defeated the benefit of this great

constitutional remedy . . . The oppression . . . gave birth to the famous habeas corpus act, 31 Car. II. c.2, which is

frequently considered as another magna carta of the kingdom.”).

230 See e.g., 1 Wm.& Mary ch.7 (1689), reprinted in 6 STATUTES OF THE REALM 57 (“For the Securing the Peace of the

Kindome in this time of Imminent Danger against the Attempts and Traiterous Conspiracies of Evill disposed Persons

Bee it enacted . . . That every Person or Persons that shall be in Prison at or upon the Five and twentyeth Day of Aprill

in the Yeare of our Lord One thousand six hundred eighty and nine or after by Warrant of Their said Majesties most

Honourable Privy Councill Signed by Six of the Said Privy Councill for Suspicion of High Treason or Treasonable

Practices or by Warrant Signed by either of his Majesties secretaries of State for such Causes aforesaid may be detained

in same Custodie without Baile or Mainprize* until the Five and twentieth Day of May next.

“And that noe Judge or Justice or Court of Justice shall Baile or Try any such Person or Persons soe committed without

Order from Their said Majesties Privy Councill Signed by Six of the Said Privy Councill till the said Five and twentieth

Day of May any Law or Statute to the contrary notwithstanding.

“Provided always That from and after the said Five and twentyeth Day of May the said Persons soe Committed shall

have the Benefit and Advantage of an Act made in One and thirtyeth yeare of King Charles the Second Entitled an Act

for the better Securing the Liberty of the Subjects and for Prevention of Imprisonment beyond the Seas, and alsoe of all

other Laws and Statute any way relating to or provideing for the Liberty of the Subjects of this Realme And that this

present Act shall continue untill the said Five and twentyeth day of May and noe longer”).

* “The writ of mainprize, manucapio, is a writ directed to the sheriff (either generally, when any man is imprisoned for

a bailable offence, and bail hath been refused; or specially, when the offence or cause of commitment is not properly

bailable below) commanding him to take sureties for the prisoner’s appearance, usually called mainpernors, and to set

him at large. Mainpernors differ from bail, in that a man’s bail may imprison or surrender him up before the stipulated

day of appearance; mainpernors can do neither, but are barely sureties for his appearance at the day; bail are only

sureties, that the party be answerable for the special matter for which they stipulate; mainpernors are bound to produce

him to answer all charges whatsoever,” 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 128

(1768).

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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.231 Not to be outdone, several

colonial legislatures afforded their executive officials similar authority to deal with those loyal to

the crown.232

Early in the Republic, President Jefferson sought and was denied a suspension.233 During the

Civil War, perhaps remembering Congress’ rejection of Jefferson’s suspension requests, President

Lincoln did not bother to first request authority to suspend. He simply instructed his military

commanders, in ever broadening terms, to suspend access to the writ as they felt appropriate.234

After Chief Justice Taney, acting upon a petition presented in chambers, held the President had

exceeded his authority,235 Congress ratified Lincoln’s efforts with sweeping suspension

legislation.236 In Ex parte Milligan237 the Supreme 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.”238

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 Clause 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

231 17 Geo. III, ch.9 (1777), 31 STAT. AT LARGE 317–18; extending the suspension for an additional year, 18 Geo. III.

ch.1 (1778), 32 STAT. AT LARGE 1–2; 19 Geo. III. ch.1 (1779), 32 STAT. AT LARGE 175–76; 20 Geo. III. ch.5 (1780), 33

STAT. AT LARGE 3; 21 Geo. III. ch.2 (1781), 33 STAT. AT LARGE 181–82; 22; Geo. III ch.1 (1782), 34 STAT. AT LARGE

1.

232 V ACTS AND RESOLVES OF THE PROVINCE OF MASSACHUSETTS BAY 641 (May 9, 1777). see also 9 PA. STAT. § 138–

40 (Sept.6, 1777); 10 HENING’S STAT. 413-4 (Va. May 1781).

After Independence but prior to the drafting of the Constitution, Massachusetts again authorized suspension during

Shay’s Rebellion, Act of Nov. 10, 1786, MASS. ACTS & RESOLVES, 1786–97, at 102–03.

233 Erick Bollman and Samuel Swartwout were arrested by military authorities in New Orleans for complicity in Aaron

Burr’s western adventures. President Jefferson sought a bill authorizing him to suspend the privilege of the writ, 6

Annals 402 (1807). The proposal failed in the House, 6 Annals 588 (1807). The Circuit Court for the District of

Columbia in the meantime had ordered Bollman and Swartwout jailed pending their trial for treason and they sought

writs of habeas corpus and certiorari from the Supreme Court. The Court ordered the prisoners discharged on the

ground that the evidence presented did not establish that a crime of treason had occurred and that those crimes for

which there was evidence had not been committed in the District of Columbia and consequently trial could not be held

there, Ex parte Bollman, 8 U.S. (4 Cranch) 75, 135–36 (1807).

234 Presidential Proclamation of September 24, 1862, 13 STAT. 730.

235 Ex parte Merryman, 17 Fed. Cas. 144 (No. 9,487) (C.C.D. Md. 1861).

236 “That, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety

may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United

States, or any part thereof. And whenever and wherever the said privilege shall be suspended, as aforesaid, no military

or other officer shall be compelled, in answer to any writ of habeas corpus, to return the body of any person or persons

detained by him by authority of the President . . . .” 12 STAT. 755 (1863).

237 71 U.S. (4 Wall.) 21 (1866).

238 Id. at 130-31 Lamdin Milligan was an Indiana resident arrested by military authorities, convicted by a military

commission, and ordered put to death for conspiracy, insurrection and giving aid and comfort to the Confederates.

Milligan sought habeas relief from the circuit court which was certified by Supreme Court determination. Id. at 6–9.

The Court held that even when the privilege of the writ was suspended, military authorities could not try citizens for

offenses committed in a place where civil courts were continuously available to try such misconduct, Id. at 130–31.

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without bail or trial by a court of competent jurisdiction. In more contemporary times, the

Supreme 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.239 If, as these authorities indicated, the Suspension Clause enjoys 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.240 Second, by the early 1940s the

Court had completed its slow abandonment of the common law prohibition against use of habeas

to attack a conviction or sentence collaterally.241 Thereafter, the Court used an expanded habeas to

help carry the commands of the Bill of Rights to the state criminal procedure.242 Beginning in the

1970s, the Court announced a series of doctrines calculated to eliminate unnecessary delay,

repetition and frivolity.243 The AEDPA extended this last trend.

239 E.g., United States v. Haemin, 342 U.S. 205 (1952) (a court of appeals decision that a provision that permitted

collateral attack of a federal conviction (28 U.S.C. § 2255) violated the Suspension Clause was vacated because the

prisoner was entitled to relief under the section and it was therefore unnecessary to reach the constitutional issue); Fay

v. Noia, 372 U.S. 391, 406 (1963) (“We need not pause to consider whether it was the Framers’ understanding that

congressional refusal to permit the federal courts to accord the writ its full common-law scope as we have described it

might constitute an unconstitutional suspension of the privilege of the writ. There have been some intimations of

support for such a proposal in the decisions of this Court . . . . But at all events it would appear that the Constitution

invites, if it does not compel, a generous construction of the power of the federal courts to dispense the writ

comfortably with common-law practice”) (internal citations omitted); Sanders v. United States, 373 U.S. 1, 11–12

(1963) (“Moreover, if construed to derogate from the traditional liberality of the writ of habeas corpus, § 2244 might

raise serious constitutional questions.”) (citing “Article I, § 9, cl.2 of the Federal Constitution”); Swain v. Pressley, 430

U.S. 372 (1977) (establishing an adequate and effective alternative procedure for habeas relief does not violate the

suspension clause); Mello & Duffy, Suspending Justice: The Unconstitutionality of the Proposed Six-Month Time Limit

on the Filing of Habeas Corpus Petitions by State Death Row Inmates, 18 N.Y.U. REV. L. & SOC. CHANGE 451 (1990–

91).

240 14 STAT. 385 (1867) (“[T]he several courts of the United States, and the several justices and judges of such courts,

within their respective jurisdictions, in addition to the authority already conferred by law, shall have power to grant

writs of habeas corpus in all cases 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 . . . .”).

241 E.g., Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874); Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Wilson, 114

U.S. 417 (1885); In re Snow, 120 U.S. 274 (1887); Frank v. Mangum, 237 U.S. 309 (1915); Moore v. Dempsey, 261

U.S. 86 (1923); Mooney v. Holohan, 294 U.S. 103 (1935) (per curiam); Johnson v. Zerbst, 304 U.S. 458 (1938); Waley

v. Johnson, 316 U.S. 101 (1942) (per curiam); Walker v. Johnson, 312 U.S. 275 (1941); The Freedom Writ—The

Expanding Use of Federal Habeas Corpus, supra note 29.

While a number of theories might be formulated to explain the Court’s authority to modify the procedures associated

with the writ, the Court made the task unnecessary when it explained that, “the history of the Great Writ of Habeas

Corpus reveals . . . the gradual evolution of more formal judicial, statutory, or rules-based doctrines of law. In earlier

times, the courts followed comparatively simple rules . . . as they exercised the writ in light of its most basic purpose,

avoiding serious abuses of power by a government, say a king’s imprisonment of an individual without referring the

matter to a court. As the writ has evolved into an instrument that now demands not only conviction by a court of

competent jurisdiction, but also application of basic constitutional doctrines of fairness, Congress, the Rule writers, and

the courts have developed more complex procedural principles that regularize and thereby narrow the discretion that

individual judges can freely exercise. Those principles seek to maintain the courts’ freedom to issue the writ, aptly

described as the ‘highest safeguard of liberty,’ while at the same time avoiding serious, improper delay, expense,

complexity, and interference with a State’s interest in the ‘finality’ of its legal process,” Lonchar v. Thomas, 517 U.S.

314, 322–23 (1996) (internal citations omitted).

242 Brown v. Allen, 344 U.S. 443 (1953); Fay v. Noia, 372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 293 (1963);

Sanders v. United States, 373 U.S. 1 (1963); Henry J. Friendly, supra note 32 at 154–55 (1970); Wright & Sofaer,

supra note 34 at, 897–98.

243 E.g., Wainwright v. Sykes, 433 U.S. 72 (1977); Murray v. Carrier, 477 U.S. 478 (1986); Engle v. Isaac, 456 U.S.

(continued...)

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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 prisoner 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.”244

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.”245 “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, § 9.”246.

Shortly after Felker, 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.247

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.248 Boumediene was

among the foreign nationals detained at the U.S. Naval Station at Guantanamo Bay, Cuba. Until

Hamdi v. Rumsfeld 249 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,250 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.251 After the Supreme Court held that the Detainee

107 (1982); Teague v. Lane, 489 U.S. 288 (1989); Penry v. Lynaugh, 492 U.S. 302 (1989), Saffle v. Parks, 494 U.S.

484, 495 (1990); Sawyer v. Smith, 497 U.S. 227 (1990); John H. Blume & Davis P. Voisin, An Introduction to Federal

Habeas Corpus Practice and Procedure, 47 S.C. L. REV. 271 (1996); Joseph L. Hoffman & William J. Stuntz, Habeas

After the Revolution, 1993 S. CT. REV. 65.

244 Felker, 518 U.S. at 663–64 (emphasis added).

245 Id. at 664 (quoting McCleskey v. Zant, 499 U.S. 467, 489 (1991)).

246 Felker, 518 U.S. at 664.

247 INS v. St. Cyr, 533 U.S. 289, 305 (2001) (“[A[ serious Suspension Clause issue would be presented if we were to

accept the INS’ submission that the 1996 statutes have withdrawn that power [to review of certain immigration cases

under habeas] from federal judges and provide no adequate substitute for its exercise,”). One of the statutes in question

in St. Cyr, section 401(e) of the AEDPA began with the caption “Elimination of Custody Review by Habeas Corpus,”

110 STAT. 1268 (1996).

248 553 U.S. 723 (2008).

249

542 U.S. 507 (2004).

250 542 U.S. 466 (2004).

251 119 STAT. 2742 (2006).

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Treatment Act provision did not apply to cases pending prior to its enactment,252 Congress passed

the Military Commissions Act, which made the provision applicable to pending cases.253

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.”254

The detainees disputed both claims.255 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.”256

The Supreme 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.”257 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 governance’ that is itself the surest safeguard of liberty.”258

These separation of powers concerns and the history of the territorial scope of the writ led the

Court to conclude that “Art. I, § 9, cl. 2, of the Constitution has full effect at Guantanamo Bay.”259

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,260 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.261

The Supreme 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.262Two

other “habeas substitute” cases decided decades earlier—Swain v. Pressley263 and United States v.

Hayman264—did little to explain the characteristics of an adequate substitute, because they

involved statutes designed to expand rather than curtail habeas relief.265

252 Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

253 120 STAT. 2636 (2007).

254 Boumediene v. Bush, 553 U.S. 723, 739 (2008).

255 Id.

256 U.S. CONST. art. I, § 9, cl. 2.

257 Boumediene, 553 U.S. at 739.

258 Id. at 745.

259 Id. at 771.

260 Id.

261 Id.

262 Id. at 774.

263

430 U.S. 372 (1977).

264 342 U.S. 205 (1952).

265 Boumediene, 553 U.S. at 776.

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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 or interpretation’ of relevant law.”266 Second, “the necessary scope of habeas review

in part depends upon the rigor of any earlier proceedings.”267 Thus, “[w]here 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.”268 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.”269

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.”270

The Court found the Detainee Treatment Act procedures wanting when assessed against the

standards of an adequate substitute for normal habeas procedures.271 Thus, the provision of the

Military Combatants Act, purporting to curtail habeas jurisdiction with respect to Guantanamo

detainees, was found to constitute an unconstitutional suspension of the writ.272

In 2020, the Court in Department of Homeland Security v. Thuraissigiam, explained that the

“[Suspension] Clause, at a minimum, ‘protects the writ as it existed in 1789,’ when the

Constitution was adopted,” at which time “[t]he writ simply provided a means of contesting the

lawfulness of restraint and securing release.”273 It refused to afford habeas petitioners any remedy

other than release from unlawful detention.274 The Thuraissigiam Court acknowledged that

“release is the habeas remedy though not the ‘exclusive’ result of every writ, given that it is often

‘appropriate’ to allow the executive to cure defects in a detention.”275

266 Id. at 779.

267 Id. at 781.

268 Id. at 783.

269 Id. at 786.

270 Id.

271 Id. at 792.

272 Id.

273 Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 116–17 (2020) (internal quotation marks omitted).

274 Thuraissigiam, 591 U.S. at 107 (“Habeas has traditionally been a means to secure release from unlawful detention,

but respondent invokes the writ to achieve an entirely different end, namely, to obtain additional administrative review

of his asylum claim and ultimately to obtain authorization to stay in this country.”) (emphasis in the original). In

Munaf v. Green, 553 U.S. 674, 683 (2008), the Court refused to allow a petitioner to invoke habeas corpus for an order

prohibiting his release to Iraqi authorities.

275 Thuraissidiam. 591 U.S. at 137.

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Selected Bibliography

Books and Articles

Adelman, Lynn, The Great Writ Diminished, 35 NEW ENG. J. CRIM. L. AND CIV. 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, Anthony G., Criminal Prosecutions Affecting Federally Guaranteed Civil Rights:

Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U. PA. L. REV.

793 (1965)

Astrada, Marvin, Death, Law & Politics: The Effects of Embracing a Liberty-Restrictive vs. a

Liberty-Enhancing Interpretation of Habeas Corpus, U. BALT. L. REV. 147 (2019),

Bator, Paul M., Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76

HARV. L. REV. 441 (1963)

—. The State Courts and Federal Constitutional Litigation, 22 WM. & MARY L. REV. 605 (1981)

Berry, Melissa M., Seeking Clarity in the Federal Habeas For: Determining What Constitutes

“Clearly Established” Law Under the Antiterrorism and Effective Death Penalty Act, 54 CATH.

U. L. REV. 747 (2005)

Black, Robert M., Proving AEDPA Unlawful: The Several Constitutional Defects of § 2254(D)(1),

54 WILLAMETTE L. REV. 1 (2017)

Blume, John H., AEDPA: The “Hype” and the “Bite”, 91 CORNELL L. REV. 259 (2006)

Brennan, William J., Jr., Federal Habeas Corpus and State Prisoners: An Exercise in Federalism,

7 UTAH L. REV. 423 (1961)

Chemerinsky, Erwin, Thinking About Habeas Corpus, 37 CASE W. RES L. REV. 748 (1987)

Cover, Robert M. & Aleinikoff, T. Alexander, Dialectical Federalism: Habeas Corpus and the

Court, 86 YALE L. J. 1035 (1977)

Desmond, Charles S., Federal Habeas Corpus Review of State Court Convictions, 50 GEO. L.J.

755 (1962)

Duker, William F., A CONSTITUTIONAL HISTORY OF HABEAS CORPUS (1980)

—. The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame, 53 N.Y.U. L.

REV. 983 (1978)

Falkoff, Marc D., Back to Basics: Habeas Corpus Procedures and Long-Term Executive

Detention, 86 DENV. U. L. REV. 961 (2009)

Faust, Richard, Tina J. Rubenstein & Larry W. Yackle, The Great Writ in Action: Empirical Light

on the Federal Habeas Corpus Debate, 18 N.Y.U. REV. L. & SOC. CHANGE 637 (1990/1991)

Freedman, Eric M., HABEAS CORPUS: RETHINKING THE GREAT WRIT OF LIBERTY (2001)

_____, MAKING HABEAS WORK: A LEGAL HISTORY (2018)

Friedman, Barry, A Tale of Two Habeas, 73 MINN. L. REV. 247 (1988)

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Friendly, Henry J., Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI.

L. REV. 142 (1970)

Garrett, Brandon L., Claiming Innocence, 92 MINN. L. REV. 1629 (2008)

_____, Habeas Corpus and Due Process, 98 CORNELL L. REV. 47 (2012)

Garvey, StephenDeath-Innocence and the Law of Habeas Corpus, 56 ALB. L. REV. 225 (1992)

Grubman, Scott R., What a Relief? The Availability of Habeas Relief Under the Savings Clause of

Section 2255 of the AEDPA, 64 S.C. L. REV. 369 (2012)

Hammel, Andrew, Diabolical Federalism: A Functional Critique and Proposed Reconstruction of

Death Penalty Federal Habeas, 39 AMER. CRIM. L. REV. 1 (2002)

Harrison, John, The Original Meaning of the Habeas Corpus Suspension Clause, the Right of

Natural Liberty and Executive Discretion, 29 WM. & MARY BILL RTS. J. 649 (2021)

Hart, Henry M., Jr., The Supreme Court 1958 Term—Forward: The Time of the Justices, 73

HARV. L. REV. 84 (1959)

Hartnett, Edward A., The Constitutional Puzzle of Habeas Corpus, 46 B.C. L. REV. 251 (2005)

Hasbrouck, Brandon, Saving Justice: Why Sentencing Errors Fall Within the Savings Clause, 28

U.S.C. § 2255(E), 108 GEO. L. J. 287 (2019)

Hoffman, Joseph L. & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84

N.Y.U. L. REV. 791 (2009)

Hoffman, Joseph L. & William J. Stuntz, Habeas After the Revolution, 1993 S. CT. REV. 65

Hoffstadt, Brian M., The Deconstruction and Reconstruction of Habeas, 78 S. CAL. L. REV. 1125

(2005)

Holland, Thomas D. & Michael R. Dolski, “A Solemn Promise Kept”: The 1919 Elaine Race Riot

and the Broadening of Habeas Corpus 100 Years Later, 57 TULSA L. REV. 65 (2012)

King, Nancy J. & Suzanna Sherry, Habeas Corpus and State Sentencing Reform: A Story of

Unintended Consequences, 58 DUKE L.J. 1 (2008)

Kovarsky, Lee, AEDPA’s Wrecks: Comity, Finality, and Federalism, 82 TUL. L. REV. 443 (2007)

_____, A Constitutional Theory of Habeas Power, 99 VA. L. REV. 753 (2013)

_____, Prisoners and Habeas Privileges Under the Fourteenth Amendment, 67 VAND. L. REV.

609 (2014)

_____, Citizenship, National Security Detention, and the Habeas Remedy, 107 CALIF. L. REV.

867 (2019)

_____, The New Negative Habeas Equity, 137 HARV. L. REV. 2222 (2024)

Larkin, Paul J., The Reasonableness of the “Reasonableness” Standard of Habeas Corpus Review

Under the Antiterrorism and Effective Death Penalty Act of 1996, 72 CASE W. RSVR. L. REV. 669

(2022)

Landes, Ezra D., A New Approach to Overcoming the Insurmountable “Watershed Rule”

Exception to Teague’s Collateral Review Killer, 74 MO. L. REV. 1 (2009)

Lasch, Christopher N., The Future of Teague Retroactivity, or “Redresssability, After Danforth v.

Minnesota: Why Lower Courts Should Give Retroactive Effect to New Constitutional Rules of

Criminal Procedure in Postconvcition Proceedings, 46 AMER. CRIM. L. REV. 1 (2009)

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Lee, Evan Tsen, The Theories of Federal Habeas Corpus, 72 WASH. U. L.Q. 151 (1994)

—. Section 2254(d) of the Federal Habeas Corpus Statute: Is It Beyond Reason? 56 HASTINGS

LAW JOURNAL 283 (2004)

Litman, Leah M., The Myth of the Great Writ, 100 TEX. L. REV. 219 (2021)

Marceau, Justin F., Deference and Doubt: The Interaction of AEDPA § 2254(D)(2) and (E)(1), 82

TUL. L. REV. 385 (2007)

_____, Is Guilt Dispositive? Federal Habeas After Martinez, 55 WM. & MARY L. REV. 2071

(2014)

Neuborne, Burt, The Myth of Parity, 90 HARV. L. REV. 1105 (1977)

Oaks, Dallin H., Legal History in the High Court—Habeas Corpus, 64 MICH. L. REV. 451 (1966)

—. The “Original” Writ of Habeas Corpus in the Supreme Court, 1962 S. CT. REV. 153

Paschal, Francis, The Constitution and Habeas Corpus, 1970 DUKE L.J. 605

Pernell, LeRoy, Racial Justice and Federal Habeas Corpus as Post-Conviction Relief from State

Convictions, 69 MERCER L. REV. 453 (2018)

Segal, Brandon, Habeas Corpus, Equitable Tolling, and AEDPA’s Statute of Limitations: Why the

Schlup v. Delo Gateway Standard for Claims of Actual Innocence Fails to Alleviate the Plight of

Wrongfully Convicted Americans, 31 U. HAW. L. REV. 225 (2008)

Siegel, Jonathan R., Habeas, History, and Hermeneutics, 64 ARIZ. L. REV. 505 (2022)

Sloane, Robert A., AEDPA’s “Adjudication on the Merits” Requirement: Collateral Review,

Federalism, and Comity 78 ST. JOHN’S L. REV. 615 (2004)

Steiker, Jordan, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal

Habeas Corpus for State Prisoners, 92 MICH. L. REV. 862 (1994)

Stevenson, Bryan A., The Politics of Fear and Death; Successive Problems in Capital Federal

Habeas Corpus Cases, 77 N.Y.U. L. REV. 699 (2002)

Traum, Anne R., Last Best Chance for the Great Writ: Equitable Tolling and Federal Habeas

Corpus, 68 MD. L. REV. 545 (2009)

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901 (2012)

_____, HABEAS CORPUS: A VERY SHORT INTRODUCTION (2021)

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HASTINGS L.J. 541 (2009)

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and the Administration of Justice, 101st Cong., 2d Sess. (1990)

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the House Comm. on the Judiciary, 102d Cong., 1st Sess. (1991)

—. Habeas Corpus: Hearings Before the Subcomm. on Civil and Constitutional Rights of the

House Comm. on the Judiciary, 103d Cong., 1st & 2d Sess. (1994)

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United States Senate, Habeas Corpus Reform Act of 1982: Hearings Before the Comm. on the

Judiciary, 97th Cong., 2d Sess. (1982)

—. Comprehensive Crime Control Act of 1983: Hearings Before the Subcomm. on Criminal Law

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84 NOTRE DAME L. REV. 2107 (2009)

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THE WRIT OF LIBERTY (1960)

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Writ, 59 U. COLO. L. REV. 167 (1988)

Weisberg, Robert, A Great Writ While It Lasted, 81 J. CRIM. L. & CRIMINOLOGY 9 (1990)

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for Prisoners Possibly Convicted on Misunderstood Fire Science? 10 MINN. J. L. SCI. TECH. 213

(2009)

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(2020).

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Author Information

Charles Doyle

Senior Specialist in American Public Law

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