The wall that AEDPA built: revisiting the suspension clause challenge to the Antiterrorism and Effective Death Penalty Act.

AuthorNasrallah, Nathan

"We are all broken by something. We have all hurt someone and have been hurt. We all share the condition of brokenness even if our brokenness is not equivalent.... We've submitted to the harsh instinct to crush those among us whose brokenness is most visible. But simply punishing the broken--walking away from them or hiding them from sight only ensures that they remain broken and we do, too. There is no wholeness outside of our reciprocal humanity." (1)

CONTENTS INTRODUCTION I. AEDPA BACKGROUND AND THE PROBLEMS AEDPA POSES II . THE TWO VERSIONS OF HABEAS CORPUS "AS IT EXISTED IN 1789" III. THE WRIT'S CONSTITUTIONAL SCOPE A. The Suspension Clause Preserves a Right to the Writ B. The Right to the Writ Includes the Right to Meaningful Review C. The Right to the Writ Includes Some Federal Review of Federal Claims IV. AEDPA'S SUSPENSION WALL A. Adjudication on the Merits: Deferring to the State's Process 1. Summary Denials and the Presumption of Adjudication on the Merits 2. Pinholster: Deferring to the Evidence in Front of State Courts B. Unreasonable Application of: Deferring to the State is Application of Federal Law C. Clearly Established Law: Deferring to the State's Interpretation of Federal Law V. DISTINGUISHING AEDPA'S SUSPENSION WALL FROM PAST CASES CONCLUSION INTRODUCTION

For more than four centuries, the writ of habeas corpus has been the primary vehicle for "oppressed and distressed prisoners" to stake their claims to righteousness and to unmask government misconduct. (2) The framers recognized the importance of protecting oppressed prisoners by ensuring that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended." (3) But the Antiterrorism and Effective Death Penalty Act (4) (AEDPA) has built a virtually impenetrable wall of isolation around these prisoners, silencing their grievances and leaving them powerless against state abuses. As interpreted by the Supreme Court, AEDPA's Section 2254(d)(1) bars habeas petitioners from obtaining federal postconviction relief for any claims decided in state court, unless the petitioner can show that the state court decision is irrational--a standard that has proven almost impossible to meet.

Celebrating its twentieth anniversary this year, AEDPA might finally be ready to fall. Federal judges of varying political persuasions have begun to publicly voice their disapproval of AEDPA and question its constitutionality, some calling it one of the "greater wrongs of our legal era." (5) While it is unlikely that the Supreme Court would find that its own statutory interpretation violates the Constitution, a well-argued Suspension Clause challenge can expose AEDPA's friction with important legal principles and may pressure Congress to take action. (6) This Comment provides such an argument.

Part I gives background on AEDPA, points out what Section 2254(d)(1) does, explains why AEDPA's standard of review is problematic, and introduces the Suspension Clause challenge. Part II describes the writ of habeas corpus at common law and observes that there are two versions of habeas's history, a narrow version and a functionalist version. The functionalist approach is essential to a strong attack on AEDPA. Part III introduces the age-old debate over the writ's constitutional scope. To formulate the best Suspension Clause challenge to Section 2254(d)(1), a challenger should argue that: (1) the Suspension Clause impliedly guarantees a right, or entitlement, to the writ of habeas corpus that Congress cannot take away; (2) that right includes meaningful review of a petitioner's federal claims; and (3) that right also includes some federal review.

Part IV argues that the Court's interpretation of Section 2254(d)(1) does not merely make it more difficult for petitioners to successfully obtain the writ; it builds a wall that renders petitioners voiceless, courts powerless, and justice a nullity. This Part focuses on three pieces of AEDPA's standard of review and argues that each of these pieces adds significant barriers to substantive postconviction review. Collectively, they form the suspension wall: (1) all claims "adjudicated on the merits" in state court receive deference; (2) that deference requires petitioners to show that the state court decision was "contrary to or an unreasonable application of" federal law, perhaps the most deferential standard in all of Supreme Court jurisprudence; (3) the federal law applied in the state court must be "clearly established, as determined by the Supreme Court of the United States." Part V then discusses the early Suspension Clause challenges in the circuit courts and distinguishes the reasoning in those cases from AEDPA's current suspension wall. With the recent surge in scholarship calling for radical reform to AEDPA, (7) the time is ripe to strike with a strong challenge that can awaken the public to the need for change.

  1. AEDPA BACKGROUND AND THE PROBLEMS AEDPA POSES

    After the 1995 Oklahoma City bombings stunned the nation, (8) Congress took advantage of its opportunity to reform the writ of habeas corpus by enacting the Antiterrorism and Effective Death Penalty Act. (9) Seemingly "semi-obscure," (19) AEDPA was "the most significant habeas reform" since the Habeas Corpus Act of 1867.11 Since its enactment, however, "AEDPA has proven to be as confusing as it is controversial." (12) Among its changes, AEDPA added a number of daunting procedural hurdles for habeas petitioners, including a tighter exhaustion requirement, a one-year statute of limitations, and a ban on "successive petitions." (13)

    AEDPA's "centerpiece," Section 2254(d), alters the standard of review for federal courts reviewing habeas petitions. (14) Before AEDPA, the Court conducted independent de novo review of a habeas petitioner's federal claims. (15) But Section 2254(d)(1) provides that federal courts shall not issue petitions for the writ of habeas corpus for state-court judgments "adjudicated on the merits" unless the state-court judgment "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." (16) This provision may not seem like much on its face, but it deals deadly blows to federal habeas petitions, even where courts know that a claim is meritorious. (17) With this exacting standard, AEDPA "make[s] it as difficult for habeas petitioners to succeed in pursuing the Writ as it would be for a Supreme Court Justice to strike out Babe Ruth, Joe DiMaggio, and Mickey Mantle in succession." (18)

    Congress created this "difficult to meet" standard to advance finality, federalism, and comity. (19) Proponents of the AEDPA argue that federal review of state convictions "frustrates 'both the States sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.'" (20) They further emphasize that swift punishment is "essential to the educational and deterrent functions of the criminal (justice system)." (21) The federal postconviction habeas process unnecessarily promotes the "endless reopening of convictions" (22) and the "floods of stale, frivolous and repetitious petitions [that] inundate the docket of the lower courts." (23) After a state invests time, effort, and money into a conviction, it feels disrespected when a federal court forces it to begin anew. (24)

    But AEDPA flirts with the line between the politically foolish and the unconstitutional. While costs certainly play a role in the administration of criminal justice, AEDPA does not reduce caseloads; it does not streamline convictions; it does not trim expenses from habeas litigation. (25) Further, federal review of possible constitutional violations in state court proceedings is not an affront to federalism but rather an example of "the federal system ... working as it should." (26) Moreover, AEDPA's valuation--finality over fairness--is short-sighted. These policies contribute to the cycle of mass incarceration, exacerbate the distrust of the criminal justice system in poor communities, and increase the likelihood of imprisoning innocent people for crimes they did not commit. (27) At its root, AEDPA willfully ignores that the criminal justice system can escape this cyclicality only when it acknowledges that its primary role is to "preserve the integrity of society itself." (28)

    More relevant here, AEDPA's Section 2254(d)(1) creates unsettling friction with many constitutional principles. (29) Habeas corpus speaks to the power of federal judges to review cases, the procedural rights of detainees and defendants, and other substantive individual rights of defendants throughout the criminal process. Accordingly, scholars and litigators have challenged Section 2254(d) on separation of powers grounds because it deprives federal judges of their duty to "say what the law is." (30) They have argued that Section 2254(d) violates defendants' Fifth and Fourteenth Amendments rights to Due Process because it cheapens habeas postconviction procedures. (31) And they have challenged that it unconstitutionally suspends the writ because it prohibits defendants who were convicted in state courts from fully vindicating their constitutional rights. (32)

    Though each of these challenges failed in the lower federal courts shortly after AEDPA's enactment, (33) recent Supreme Court cases may have breathed life back into the Suspension Clause challenge, as Part IV discusses. Further, the Suspension Clause challenge is in the best position to reveal many of AEDPA's problems. As Parts II and III argue, the Suspension Clause's "very broad limits" (34) and historical background can provide enough flexibility to utilize due process and separation-of-powers grievances.

  2. THE TWO VERSIONS OF HABEAS CORPUS "AS IT EXISTED IN 1789"

    The writ of habeas corpus has long been celebrated as an indispensable piece of American democracy, and any restrictions on the writ's availability are met with the "immediate incantation of the...

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