CHAPTER 1 THE GREAT WRIT
| Jurisdiction | United States |
Chapter 1 The Great Writ
Habeas review, or the Great Writ as it is often called, is the legal process through which a convicted prisoner may challenge the legality of his or her conviction or sentence. When we talk about habeas review in America we generally are referring to federal habeas corpus review, and in this book the phrase habeas review will refer to federal habeas corpus, unless otherwise specified. Habeas is a vehicle for challenging final convictions; it is not a readjudication of guilt. This means that if the defendant prevails, he most likely will obtain a new trial rather than release from prison.
The terms habeas corpus review, collateral proceedings, and post-conviction litigation are closely related, and they overlap to a greater or lesser degree depending on how states choose to define the two latter terms (the definition of habeas corpus review is fixed by federal statute). Their practical application and import to our Constitution and our system of federalism are the topics discussed at length in the chapters that follow. A substantial portion of this text is devoted to the procedural complexities and hurdles that are designed to facilitate comity and finality in state criminal cases by preventing federal courts from routinely undermining state convictions. Chapter 1 begins by looking at a more fundamental and antecedent question: How is federal habeas corpus distinct from and different than any other form of litigation?
Even though habeas litigation ultimately may be resolved through an adversarial trial-type presentation of evidence, it is unlike the trial process of determining the guilt or sentence for a particular defendant. In fact, federal habeas proceedings might not commence until more than a decade has passed since the defendant was found guilty and sentenced. Likewise, habeas review must not be confused with a defendant's attempts to have his sentence or conviction overturned through direct appeals, because a prisoner may not even pursue habeas corpus relief until all of the direct appeals have been completed and the convictions have been affirmed and rendered final. In short, habeas review is a unique synthesis of trial and appellate practice; it is neither purely appellate nor purely trial work.
Even recognizing that habeas corpus practice is self-contained in the sense that it is composed of its own set of trials, procedures, and appeals, what the writ of habeas corpus actually covers is not easily answerable. Indeed, the law of habeas corpus is riddled with paradoxes. For example, habeas practice is simultaneously civil and criminal. At stake in habeas litigation is whether the prisoner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). This means that claims regarding the conditions of confinement or abuse suffered by the prisoner are not cognizable on habeas review; only claims regarding the validity of the criminal conviction or sentence may be litigated. Nonetheless, federal habeas proceedings are considered non-criminal and, therefore, are understood best as civil actions because they are not an adjudication of guilt or innocence. Additionally, while the prosecutor bears the burden of proof in a criminal trial, in a habeas corpus action "the petitioner generally bears the burden of proof."1
Indeed, the writ has a unique place in our system of adjudication. Habeas actions are nominally civil in the sense that the Rules of Criminal Procedure do not apply and the Rules of Civil Procedure may apply. However, quite often the Rules of Civil Procedure also do not apply. There are many situations in which the Rules of Civil Procedure are trumped by a distinct set of rules promulgated specifically for habeas litigation, The Rules Governing Section 2254 Cases.2 Perhaps the Supreme Court put it best when it said that "habeas corpus proceedings are characterized as 'civil' [b]ut the label is gross and inexact. Essentially, the proceeding is unique."3
Even the type of lawyering necessary to prevail in habeas litigation is chameleon-like. On the one hand, federal habeas litigation is rightly regarded as the critical frontier of constitutional litigation for many of the protections enshrined in the Bill of Rights. This is because federal habeas review is likely the only opportunity a prisoner will have to present and litigate his federal constitutional claims. The underlying merits of a federal habeas case therefore turn on constitutional interpretation and analysis. At the same time, there are few areas of the law in which statutory interpretation is more determinative of the actual outcome of the litigation. As discussed throughout this book, following the enactment of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) in 1996, statutory interpretation has dominated the Supreme Court's habeas docket and, in turn, habeas practice as well.
In short, federal habeas corpus law is sui generis. The practices, procedures, and applicable law have no necessary or automatic connection to either conventional criminal or civil litigation. The best we can say is that the Great Writ is a profoundly important legal process by which a convicted prisoner may challenge the legality of his or her detention.4 Thus, understanding the substance of habeas corpus law involves an understanding of the circumstances in which a habeas challenge may be brought as well as the ability to trace the procedural life of a habeas corpus case.
As one commentator aptly noted, "[habeas] has ... historically not been a substantive 'right' that someone possesses so much as it has been an evolving set of procedures through which the right to be free from illegal detention may be vindicated."5 Consequently, to understand federal habeas review, it is essential to have a working knowledge of when and how a prisoner's petition for habeas corpus relief is reviewed by the federal courts.
(1) The Stages of a Criminal Case
In order to understand the holding of a habeas corpus case, it is necessary to have a firm grasp of the stages of a criminal trial. Each habeas case alleges some fundamental (typically constitutional) defect that occurred in one or more of the stages of the criminal case that are outlined in Chart 1.1 on the next page.
(2) The Three Phases of Review
After the defendant has been convicted, sentenced, and begun his term of incarceration, he can assert that he is being detained in violation of the Constitution based on a defect that occurred during any of the stages of a trial listed in Chart 1.1. He litigates this claim during three distinct phases of appeals, as explained first in words and then in a chart below.
Once a defendant is found guilty in state court, he may appeal to the state court of appeals and, if unsuccessful, to the state supreme court.6 This level of appeal—referred to as "direct review" or "direct appeal"—is generally limited to claims of legal error that can be identified from the trial record alone.
If relief is denied on direct review, the prisoner may seek collateral review in the state courts.7 Collateral attacks typically consist of claims that require factual development beyond the record. Collateral review (also called post-conviction review) begins in the state trial court (often with the same judge who presided over the original trial). Appeals following the litigation in the state trial court follow the same route as a state direct appeal. As discussed in Chapter 7 (Exhaustion), simply bypassing the state post-conviction procedures and pleading one's new facts or new claims in federal court is not an option.
If the highest court in the state denies relief, a petitioner is entitled to seek discretionary review by the United States Supreme Court both on direct review and on collateral review. If the state supreme court denies the collateral petition and the U.S. Supreme Court does not grant certiorari, then the defendant can file a federal habeas petition.8 A federal habeas petition is filed in the U.S. District Court in the district where the petitioner is imprisoned. A denial of relief by the district court can be appealed to the federal circuit court with jurisdiction over that district. And if the federal circuit court denies relief, then once again discretionary review may be sought in the U.S. Supreme Court. Chart 1.2 illustrates the three phases of review.
Modern habeas case law and scholarship are not developing in a vacuum; they are a direct product of (or in some instances a reaction to) a longstanding debate about the role that federal courts should play in reviewing state convictions. This section identifies and discusses four points in the historical development of habeas corpus doctrine that are relevant to the development of federal habeas corpus doctrine in the United States: (1) The Origins of Habeas Corpus; (2) Habeas Corpus Recognized in the United States; (3) The Warren Era and the Habeas Trinity; and (4) the Anti-Warren Federalist Revolution. While reading this chapter, it is important to bear in mind that the 1996 AEDPA significantly altered federal habeas law. Chapter Two introduces some of the relevant provisions of AEDPA, then discusses the seismic shift generated by the Act.
(1) The Origins of Habeas Corpus
Habeas corpus enjoys a substantial historical pedigree, but the nature of the procedures that comprise the habeas right have evolved considerably over the centuries. Scholars have traced the origins of the Great Writ to the Magna Carta, England's original charter of rights from 1215, and, indeed, there is substantial authority suggesting that the writ became a critical mechanism in safeguarding some of the rights promised by the Magna Carta.9 As initially conceived and applied, however, the writ's protections were considerably more modest than the modern protections associated...
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