Is 2254(d)(1) of AEDPA Unconstitutional?:
Judge Merritt thinks so, see his dissent today (starting at page 14), in an opinion that Judge Reinhardt can pop into what I assume will be his forthcoming opinion in Irons v. Carey, which I assume will then turn into the opinion below in a very interesting case for OT06, a sort of Felker v. Turpin revisited.
(My apologies if this post is too inside baseball; I assume that the only readers who care are the readers who understand.) Hat tip: Appellate Law & Practice.
(My apologies if this post is too inside baseball; I assume that the only readers who care are the readers who understand.) Hat tip: Appellate Law & Practice.
Slow down there, Kerr. It takes two to make a split panel. And from whom might that second vote be? Some radical liberal? An unpredictable libertarian like Kozinksi? Nope.
Judge Noonan, whose conservative bona fides are not open to question, will also likely (and properly) vote that the AEDPA is unconstitutional.
The important part of the decision was the majority's holding that a state court holding will only be reversed when the US Supreme Court has thrown out a conviction in a factually identical case.
This would make an excellent cert case to define how much deference federal courts should give to state courts. If the opinion stands, Merritt is right, the writ is gone.
Which was, after all, the point of AEDPA, and validly so, under the suspension clause.
I don't understand, but I care passionately. This is an unconscionable act of judicial activism!
So much for the Great Writ. I'd much prefer whatever Judge Reinhardt has to say on the matter to whatever your thoughts, if they can be called that, are. You've earned your brownie points for the day with Orin Kerr and the other right wingers who run this site--and invite comments like yours with their own cheap shots at Reinhardt--so you can run along now.
Once upon a time federal habeas corpus was our pride and joy. The Great Writ served as the ultimate safeguard for our federal constitutional rights. Even the poorest and the most powerless had the opportunity to secure full review of their federal constitutional claims by federal judges enjoying life tenure and thus largely insulated from political pressures, unlike nearly all, if not all, state court judges.
Now, if the majority opinion in Davis v. Straub expresses the law, the state courts are the final arbiters of when federal constitutional rights are violated in criminal prosecutions except in the relatively miniscule number of cases in which the U.S. Supreme Court grants direct review and except where the U.S. Supreme Court already has decided a case factually identical to the case at hand.
I shudder to think what would have happened to, for example, all those civil rights workers of the Fifties and Sixties had federal habeas corpus review been so toothless as they fought convictions obtained in the Southern states. Throughout the past century, federal habeas corpus review played a huge role in securing our liberties. Federal court enforcement of federal constitutional rights is essential to preserve those rights.
Even if this were true==and I doubt it in view of the Founding Fathers' view of the function of habeas corpus--it does not answer the main point of the dissenting opinion in Davis v. Straub: Congress may not give jurisdiction to the federal courts and then deny them the power to make a judicial decision. That is the main defect the dissent finds in the majority opinion's construction of the statute.
Yes, they are. I don't think *any* close observers of the Ninth Circuit would describe Judge Noonan as a conservative, unless maybe if they were way liberal themselves. I would almost say that his lack of conservative bona fides is not open to question, though I grant that he is no Judge Reinhardt (heaven forfend!).
Still, he did join Judge Reinhardt in spontaneously ordering briefing on the constitutionality of AEDPA, which seems to me a fairly unconservative act, if only unconservative with a small c.
Notwithstanding the paeans to finality that folks from Bator to Justice Kennedy have produced, some fairly egregious state court decisions are upheld because no Supreme Court case has an identical fact pattern. Davis v. Straub is a close case and probably shouldn't become a poster child for all of the ills that AEDPA has occasioned, but I for one am glad to see that the debate has begun again.
Wow, that's insane. I'm almost afraid to read the op &see if they really held that.
Which state has these magnificent courts that should be virtually exempt from federal habeas review? Because it isn't Mississippi.
I understand everything in the post except the word "OTO6," which I assume is some kind of typo.
My comments are the following:
First on Irons v. Casey it does not matter what Reinhardt and Noonan think, because, as the Scotus blog post you link to points out, this case (which, BTW, is a non-capital habeas case) is headed to the U.S. Supreme Court.
Second, it is interesting to note that no one has mentioned Judge Fenrandez or whether, on its way to the Supreme Court, the case might pass by the en banc review pit-stop. Assuming that Reinhardt and Noonan hold (2-1, with Fernandez dissenting) that AEDPA is unconstitutional, one or more judges might ask to have it reviewed en banc. As precedent, I cite to the Davis recall election case, where a 3 judge panel threw out the recall, only to be reversed on en banc review. (I could be wrong, but I seem to recall Reinhart was on that 3 judge panel.) With judges like Graber, Fernandez, etc., the Ninth Circuit as a whole is rather less liberal than it is made out to be and less liberal than, say, Reinhardt, Pregerson, and Nelson actually are.
Third, regarding Streamlined Procedures: as someone with some experience in the field, let me just say that very few things slow down habeas review as much as all the various doctrines designed to limit federal review of state court decisions, such as AEDPA, procedural default, etc. 99 percent of all habeas claims turn out to be without merit (OK, maybe the percentage of meritless claims is lower when you are talking about penalty phase, but it is still the overwhelming majority). If the Congress really wants to speed the process up, it could do worse than to abolish procedural default and all the other "federalism doctrines" and just let the federal courts do their job and review the merits, at least once. Has anyone put forth this radical proposal? If so, what has been the reaction from the legislative end?
AEDPA prevents relief for a constitutional violation unless the constitutional violation was clear when it occurred. So does qualified immunity (since injunctive relief is often not available for reasons of mootness). Both limit the source of law that can be relied upon.
Don't tell me qualified immunity is different because qualified immunity is mandated by the Constitution itself. The Supreme Court has said that it isn't mandated by the Constitution, and that it is simply a prudential judge-made doctrine. And it often completely bars any relief for constitutional violations, especially for those whose recurrence is not imminent. In the real world, it's a bigger hurdle than AEDPA, which does not limit relief on a direct challenge to the conviction to the Supreme Court, only on collateral challenges on habeas.
There's nothing invalid or unprecedented about limiting the sources of law a litigant can rely on for relief, especially in a collateral proceeding like statutorily-created habeas proceedings that a petitioner has no vested right to in the first place.
One poster says Judge Noonan is a conservative. Well, not on death penalty cases. Reinhardt will get Judge Noonan to join whatever crazy opinion invalidating the AEDPA he comes up with. Judge Noonan is good on many things, and an accomplished scholar who has contributed to many areas of civil law, but criminal cases aren't his strong area.
For example, he joined Judge Pregerson in the Robert Alton Harris case, repeatedly blocking the death penalty for a remorseless murderer, which infuriated the Supreme Court, which ultimately ordered that no further stays of the execution be granted. The Ninth Circuit's actions were widely perceived as deliberate defiance of the Supreme Court, yet Judge Noonan defended them.
This case will be decided 2-to-1, over Judge Fernandez's entirely sensible dissent, and then will be reversed either by the Supreme Court or the Ninth Circuit sitting en banc. When Fernandez dissents from a Reinhardt opinion, the Supreme Court often grants review and reverses -- think of the Yniquez v. Arizona (English-only) and Clark County v. Breeden (sexual harassment based on trivial comment) cases.
The idea by another commenter that we do away with procedural default is also off the mark. The very worthy concept of deference to the state courts is embodied by the procedural default rules; why should the federal courts review a claim on the merits that the state court would/could not review on the merits? That's the very definition of federal overreaching.
Merritt and his like-minded colleagues on the 6th Cir. have been trying to undercut or ignore the AEDPA since it was enacted. The Supreme Court has had to smackdown the 6th Circuit several times in recent years, including twice this year (but not both this term) in per curiam decisions, See Bell v. Cone and Bradshaw v. Ritchey, at least in part because they failed to give the deference demanded by 2254.
The best way end the debate would be to abolish 2254 (and 2261), and provide no federal relief for state prisoners, other than direct review. I am sure that the statutory writ is far from what the framers intended with the "Great Writ." Federal review of state convictions would never have occured to them.
That's circular reasoning if I ever saw one. Why is that unconservative? Don't conservatives believe strongly in separated powers? Isn't one of the tenants of the Federalist Society a strong belief in separation of powers? When Congress tells the courts (which you might not like, but which are a co-equal branch) whether and to what extent it can determine whether someone's constitutional rights were violated, can't you at least spot the issue?
AEDPA is not unconstitutional, and no more suspect than the venerable and unquestioned doctrine of qualified immunity
Huh? Qualified immunity is a common law doctrine interpreting a federal statutory cause of action. If Congress had created qualified immunity, it would not raise any separation of powers issues, since Congress created 42 U.S.C. 1983. Anyhow, the courts applied QI because, as a matter of statutory interpretation, new federal causes of action are to be read against the backdrop of tort liability. Somewhere in this backdrop (perhaps next to Waldo) the court found qualified immunity. Any, qualified immunity is only "unquestioned" today because it's not going anywhere. (You don't tug on superman's cape, you don't spit into the wind, you don't pull the mask off an ole lone ranger, and you don't mess around with qualified immunity.) Still, QI had it's early critics, including, as Volokh might call him, the "moderate conservative" Judge Posner.
Habeas corpus is not positive law. Thus, your analogy doesn't fit. It's not apt. I'm still trying to figure out why you thought it would fit.
Now, the tough issue is whether the right to habeas corpus is an individual, constitutional right. If it is, then Congress has no business telling the courts how to apply it. Imagine of Congress said: "No display of religious symbols shall violate the First Amendment unless said display unreasonably violates clearly-established Supreme Court precedent." Now, some of you might like that. But good conservatives (like me) would be concerned with the separation of powers problem in such a law.
If habeas isn't an individual right, but is just something sort of murky (a quasi-right or half-right), and that can be regulated as much as Congress wants so long as it's not improperly suspended, then of course the AEDPA is constitutional. But the analytical question (what is habeas?) is a tough one.
Anyhow, I've talked this over with more than one very conservative federal courts scholar. They don't think it's all that whacky. One is even looking forward to reading the opinion. Of course, they also the difference between qualified immunity and the AEDPA - the difference between common law doctrines and restraints one co-equal branch imposes upon another.
You know what else wouldn't have occurred to the framers? The Fourteenth Amendment. In your formulation, however, its guarantees could only be enforced a) in state court or b) following a grant of cert by the Supremes.
The difficulty with option a) seems fairly clear, especially if the original intent of the 14th's framers matters to you: state courts (especially when their members are elected) should not have the last word on federally guaranteed rights, and Thaddeus Stevens &his Radical GOP buddies would have found such a suggestion beyond ludicrous.
The difficulty with option b), by contrast, is not theoretical but practical. For although I've heard some speculation that CJ Roberts will expand the SC's docket somewhat, there is no way that he would do so to the extent necessary to enable the SC to competently evaluate the (possibly tens or hundreds of) thousands of collateral challenges to state court convictions and sentences.
If there's nothing but direct appeal to SCOTUS from the state high courts, we may as well tear up the Constitution. Oh wait, that's what some of you want to do!
The courts are the ONLY branch that has even a remote interest in protecting the rights of alleged criminals. Congress &the presidency are too much enslaved to the voters, who equate "being tough on crime" with eliminating protections for the falsely accused/convicted.
The idea by another commenter that we do away with procedural default is also off the mark.
I don't disagree that the federalism values underlying procedural default, AEDPA and the other doctrines are important.
However, as a conservative who (presumably) favors the expeditious imposition of the death penalty, you have to face the real world and you have to make a choice: do you want federalism respected, with executions delayed, or do you want the death penalty, which represents the will of the people in the states affected, implemented?
What is the greater violation of federalism: having a federal court second-guess a state court's interpretation and application of often arcane doctrines of federal constitutional law and thereby get the case decided and on to the next level of federal review and eventual final resolution so sentence can be executed, or having a federal court enjoin the state from executing its (capital) sentence while the federal courts endlessly hold hearings and engage in intellectual masturbation over the meaning and application of, say, Bennett v. Meuller?
As an added layer of complexity, let me point out that the answer to this question depends on whether the case is capital or non-capital. In a non-capital case, all a delay means is that the prisoner will continue to serve his sentence. In that case, it might make sense to choose the intellectual masturbation option. For those cases, maybe Streamlined Procedures, or something like it, may make sense from a pro-prosecution perspective.
However, in a capital case, a delay prevents the state from executing its sentence, which means the prisoner will try to force the court to choose intellectual masturbation over getting the case decided, since, in 9 cases out of 10, a final decision means he will die. In a capital case, the prisoner generally does not care whether the court intellectually masturbates over federal constitutional law, state law, or court-made doctrines designed to promote federalism, as long as the court continues to delay a final decision. I would refer you to Rhines v. Weber's "stay and abey" procedure as an area rife with opportunities for this kind of behavior, all in the name of "promoting federalism." Bottom line: the longer the delay, the longer the prisoner gets to live.
I know few of the specific details of Streamlined Procedures, but my general understanding is that it is an attempt to prevent the prisoner from achieving his objectives in this regard.
And, for an exposition of my basic argument which is far more articulate than any I can make, let me refer you to the dissenting opinion of former California Supreme Court Justice Janice Rogers Brown in the California State Supreme Court case of In Re Gallegos.
The best way end the debate would be to abolish 2254 (and 2261), and provide no federal relief for state prisoners
This is your real bottom line, and you are at least honest about it. And, if that's what the advocates of Streamlined Procedures want to do, they should just do it, and see how far they get and what it gets them.
But it is a position I doubt even most pro-death penalty conservatives really would support. Do you really want a criminal justice system where fundamental justice and due process go out the window, where the innocent can be put to death with no recourse? Although state courts generally do a good job of protecting federal constitutional rights, there is still 1 in 100 prisoners who really is innocent or whose conviction should be held invalid because he has had his constitutional rights violated. Do you really want this one person put to death without at least having an outside observer (judge) take a look at the case?
I doubt it, and, even if you do, I don't think the majority of Americans do. My guess is that, if 2254 goes, the death penalty in this country will also be abolished.
So please go take a look at Justice Brown's opinion in In re Gallegos and see if it has anything worthwhile to contribute to the debate from a conservative perspective.RTB Scott:
And for what it's worth, the Supreme Court has said on more than one occasions that the state courts are quite adequate and enforcing federal constititonal rights. This is in part the purpose behind the exhaustion doctrine. The truth of this is borne out by the fact that 99% of federal habeas claims are meritless. And that was true even before the enhanced deference codified by the AEDPA.
Besides, your argument also seems to assume that state courts are imperfect but federal courts are infallible. I don't subscribe to that view. And if the federal courts are imperfect, what value do they provide as yet another layer of review.
So, if you are asking me if it is a fair trade-off that the remaining 1% would not receive justice if there were no federal collateral review of state convictions, I would have to say, yes. Preventing additional time consuming and expensive litigation would be worth that cost.
But, to be fair, I might be willing to concede that because "death is different" maybe we should preserve federal collateral review for capital cases. There are those that would argue that a 1% failure rate is too high for capital cases, and I think that's a fair argument.
Mr. Lampton: It has been my experience in non-cap cases that procedural defenses do not delay the case very much if at all. Indeed, since they can be asserted in a motion to dismiss, it usually brings a faster result than answering on the merits. Plus, it saves the time and expense involved in responding on the merits. This is especially so when the state has not had to address the merits in the state courts because of the procedural default. The state has to start from scratch on a claim that was ignored by the state courts, which is unecessarily burdensome.
Of course, abolishing 2254 is a just a fantasy. But I would like to see it dialed back to the limited remedy that was intended in 1869, and which prevailed for nearly 50 years. That is the idea behind the enhanced deference of AEDPA, I think.
As I said above, I am willing to concede to the value of federal review of capital cases, but I do not think that abolishment of 2261 would spell the end of state death penalties, which preceded its enactment.
(I could not find Gallegos, by the way. Do you have a cite?)
First off, my apologies: the Justice Brown opinion appears in In re Gallego, 18 Cal.4th 825, 842 (1998). (Serves me right for spouting it off the top of my head.)
Second, it has been my experience that procedural defenses are a cause of delay in every case in which they are raised, but particularly in capital cases. Same thing goes for the Teague doctrine. The delay is less in non-capital cases because the federal courts generally spend less time and care on those cases than on capital cases (the "death is different" principle in operation). However, try to figure out what the test of Bennett v. Mueller[, 322 F.3d 573 (9th Cir.), cert. denied sub nom. Blanks v. Bennett, 540 U.S. 938 (2003),] means and how it applies to any case you are trying to litigate (or, if you are a judge, decide) in which procedural default is an issue, and I think you will see my point. BTW, Bennett is a non-capital case, meaning that its principles, such as they are, apply in non-capital cases, and, with greater exactitude, whatever that means for purposes of the Bennett test, in capital cases.
This same basic point, that habeas is drowning in delays caused by a sea of procedural complexity, applies across the entire field, and it would, I think, apply with even greater force to litigation under the Streamlined Procedures Act, whatever form that legislation might eventually take if and when it is ever enacted. (This is a crucial point I did not explicitly state in my last post -- Streamlined Procedures will, I think, lead to more, not less delay, just as did AEDPA and, for that matter, as did formal discovery rules in normal civil cases, which, you will recall, were supposed to speed up litigation and encourage settlement. (ha, ha, ha.) If I am wrong about that, then all I can say is, "Hats off" to the proponents of the new law, but I do not think I will turn out to be wrong.).
So, if Congress wants to cut down on the delays, it needs to simplify the law, and the best way to do that is to get rid of procedural default and all the other well-meaning but mind-numbingly complex and arcane doctrines the federal courts have come up with to shield state adjudications of federal constitutional rights from federal review in habeas corpus.
Finally, I am not sure what you mean by "the limited remedy that was intended in 1869." Perhaps you could explain what you mean by that.
Marc J.: You assume that the framers of the 14th amendment (and 2254 (two lists that are pretty much co-extensive)) intended the statutory writ to be what it has become.
No, I simply pointed out that your invocation of the framers' feelings about federal review of state convictions, even if accurate, was irrelevant to a discussion of 2254 &the Fourteenth Amendment.
Besides, your argument also seems to assume that state courts are imperfect but federal courts are infallible. I don't subscribe to that view.
This is an absurd reading of my post. I'm not sure where you found such an extreme veneration of the federal courts, but rest assured that I think they're far from "infallible." That said, I do assume that federal courts and judges are on average better than their state peers, and that this distinction is likely heightened in the criminal law context, where political pressures on state judges, who are generally elected, will typically weigh on the side of being "tough on crime" even in the face of procedural violations.
And if the federal courts are imperfect, what value do they provide as yet another layer of review.
I think that's what people call allowing the perfect to be the enemy of the good. The idea that if a checking mechanism is not 100% accurate it is pointless is a silly one, and I think its deficiencies are pretty much self-evident.
So, if you are asking me if it is a fair trade-off that the remaining 1% would not receive justice if there were no federal collateral review of state convictions, I would have to say, yes. Preventing additional time consuming and expensive litigation would be worth that cost.
Well, fine, we can disagree on that. I happen to think that the framers--of both the Constitution and the 14th Amendment--valued procedural fairness over efficiency, but that's an argument for another time.
Note too, that Brown (in 1998)seems to hold out hope for the AEDPA, and that it would lead to more respect for state decisions, and that that would streamline the process.
I think then, what it comes down to is if the system worked the way it is supposed to work, procedural defenses would be a valuable tool for the system. But some Courts simply refuse to respect the state courts, and will do whatever it can to avoid or nullify the state courts procedural rulings. At the risk of opening a new can of worms, that's just judicial activism at its worst.
Marc J.: I am sorry if I misconstrued your post. I just got the feeling from your post that you believe that it is always better to have federal review of state convictions than not. And I don't think that's necesarily so.
I agree with you and if what I wrote conveyed anything else, then I went too far.