CHAPTER 11 LITIGATING QUESTIONS OF FACT

• Jurisdiction: United States

Chapter 11 Litigating Questions of Fact

Up to this point, the materials in this book have placed federal habeas corpus in a historical context to better understand the consequences of AEDPA, introduced some of the key claims that are cognizable on federal habeas review, explained AEDPA provisions governing substantive deference, and examined the procedural barriers to a prisoner hoping to pursue federal habeas (such as exhaustion and procedural default). Another critical piece of the federal habeas puzzle relates to the procedural aspects of the actual federal adjudication of a state prisoner's constitutional claims. The materials in Chapters 11 and 12 provide an introduction to two of the most contentious questions of federal habeas litigation: (A) The discovery and admissibility of "new" evidence during federal habeas proceedings; and (B) The applicability of AEDPA's deferential scheme.

As set forth in Chapter 1, habeas corpus proceedings are considered collateral civil proceedings because they do not constitute a direct appeal of the trial court's determination of guilt (or its sentence). As a collateral proceeding, the outcome of the habeas adjudication does not involve the relitigation of the evidence presented at trial; instead, most federal habeas litigation hinges on the court's review of "new" evidence that is extrinsic to the trial record. Stated more simply, federal habeas corpus litigation is fact-intensive litigation and the relevant facts in dispute are not those that were presented, tested by a jury, or appealed during direct appeal proceedings. As one commentator has observed

One constant among the many judicially and legislatively created variables is that the availability of habeas relief will hinge, more than anything else, on how the fact finder has appraised the relevant facts. The questions regarding what facts may be considered by a federal court and how much deference the court must afford to certain facts are typically dispositive as to whether the prisoner will obtain relief. Procedural victories regarding the ability to develop particular factual evidence will, in many cases, be dispositive as to the ultimate result.¹

Given the high stakes for both the prisoner and the prosecution, it should come as no surprise that much of habeas corpus litigation involves technical battles over discovery and evidentiary development.

A. The Habeas Rules

In Harris v. Nelson, the Court confronted the difficult question of when the Rules of Civil Procedure ought to apply to habeas petitions and concluded that, as a general matter, the Rules of Civil Procedure are ill-suited for federal habeas litigation. Nonetheless, the Court held that federal district courts have the inherent power to fashion discovery procedures as needed for the fair resolution of any particular habeas case.

Harris v. Nelson 394 U.S. 286 (1969)

JUSTICE FORTAS delivered the opinion of the Court.

This case presents the question whether state prisoners who have commenced habeas corpus proceedings in a federal district court may, in proper circumstances, utilize the instrument of interrogatories for discovery purposes.

I

Petitioner is the Chief Judge of the United States District Court for the Northern District of California. Respondent is the warden of the California State Prison at San Quentin. The proceeding was initiated by Alfred Walker who had been convicted in the California courts of the crime of possession of marihuana. After exhausting state remedies, he filed a petition for habeas corpus in the Federal District Court, alleging that evidence seized in the search incident to his arrest was improperly admitted at his trial. The basis for this claim was his allegation that the arrest and incidental search were based solely on the statement of an informant who, according to Walker's sworn statement, was not shown to have been reliable; who, in fact, was unreliable; and whose statements were accepted by the police without proper precautionary procedures.

The District Court issued an order to show cause and respondent made return. Thereafter, Walker filed a motion for an evidentiary hearing, which the District Court granted. Two months later, Walker served upon the respondent warden a series of interrogatories, pursuant to Rule 33 of the Federal Rules of Civil Procedure, seeking discovery of certain facts directed to proof of the informant's unreliability. Respondent filed objections to the interrogatories, alleging the absence of authority for their issuance. The District Judge, without stating his reasons, disallowed the objections and directed that the interrogatories be answered. Respondent applied to the Court of Appeals for the Ninth Circuit for a writ of mandamus or prohibition. The Ninth Circuit vacated the order of the District Court. It held that the discovery provisions of the Federal Rules of Civil Procedure were not applicable to habeas corpus proceedings and that 28 U.S.C. § 2246, the statutory provision specifically relating to the use of interrogatories in habeas corpus proceedings, did not authorize their use for discovery. Wilson v. Harris, 378 F.2d 141 (1967).

Because of the importance of the questions presented and the diversity of views among the district and appellate courts that have considered the problem, we granted certiorari. We agree with the Ninth Circuit that Rule 33 of the Federal Rules of Civil Procedure is not applicable to habeas corpus proceedings and that 28 U.S.C. § 2246 does not authorize interrogatories except in limited circumstances not applicable to this case; but we conclude that, in appropriate circumstances, a district court, confronted by a petition for habeas corpus which establishes a prima facie case for relief, may use or authorize the use of suitable discovery procedures, including interrogatories, reasonably fashioned to elicit facts necessary to help the court to 'dispose of the matter as law and justice require.' Accordingly, we reverse and remand the case in order that the District Court may reconsider the matter before it in light of our opinion and judgment.

II

The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. Its pre-eminent role is recognized by the admonition in the Constitution that: "The Privilege of the Writ of Habeas Corpus shall not be suspended...." U.S. Const., Art. I, §9, cl. 2. The scope and flexibility of the writ— its capacity to reach all manner of illegal detention—its ability to cut through barriers of form and procedural mazes—have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.

* * *

In the present case, we are confronted with a procedural problem which tests the reality of these great principles. We are asked by Walker to establish the existence of rights for those in custody to discover facts which may aid their petitions for release. We are asked to do this by declaring that the provisions of the Federal Rules of Civil Procedure granting such rights to litigants in civil causes are available to Walker; or if we refuse so to conclude, to affirm the existence of power in the District Court to authorize discovery by written interrogatories. We address ourselves to those issues.

III

Rule 1 of the Federal Rules of Civil Procedure provides that: "These rules govern the procedure in the United States district courts in all suits of a civil nature . . . with the exceptions stated in Rule 81" At the time of the decision below Rule 81(a)(2) provided, in relevant part, that the Rules were not applicable in habeas corpus "except to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in actions at law or suits in equity."

The Court of Appeals for the Ninth Circuit held that the second requirement—"conformity" with practice — made it necessary to show that "prior to September 16, 1938, discovery was actually being used in habeas proceedings, and that such use conformed to the then discovery practice in actions at law or suits in equity." No such showing was made and it is not here contended that it can be made. Walker contends, however, that the rule requires only a showing that habeas proceedings conformed generally to pre-existing practice in law and equity, and he contends that this general requirement is met.

We need not consider this contention that the Court of Appeals took an unnecessarily restricted view of the thrust of the "conformity" requirement, because for other reasons we conclude that the intended scope of the Federal Rules of Civil Procedure and the history of habeas corpus procedure, make it clear that Rule 81(a)(2) must be read to exclude the application of Rule 33 in habeas corpus proceedings.

It is, of course, true that habeas corpus proceedings are characterized as "civil." But the label is gross and inexact. Essentially, the proceeding is unique. Habeas corpus practice in the federal courts has conformed with civil practice only in a general sense. There is no indication that with respect to pretrial proceedings for the development of evidence, habeas corpus practice had conformed to the practice at law or in equity "to the extent" that the application of rules newly developed in 1938 to govern discovery in "civil" cases should apply in order to avoid a divergence in practice which had theretofore been substantially uniform. Although there is little direct evidence, relevant to the present problem, of the purpose of the "conformity" provision of Rule 81(a)(2), the concern of the draftsmen, as a general matter, seems to have been to provide for the continuing applicability of the "civil" rules in their new form to those areas of practice in habeas corpus and other...