The Voice of Reason-why Recent Judicial Interpretations of the Antiterrorism and Effective Death Penalty Act's Restrictions on Habeas Corpus Are Wrong

• Publication year: 2013

SEATTLE UNIVERSITY LAW REVIEWVolume 37, No. 1, Fall 2013

The Voice of Reason-Why Recent Judicial Interpretations of the Antiterrorism and Effective Death Penalty Act's Restrictions on Habeas Corpus Are Wrong

Judith L. Ritter(fn*)

I. INTRODUCTION

By filing a petition for a federal writ of habeas corpus, a prisoner initiates a legal proceeding collateral to the direct appeals process.(fn1) Federal statutes set forth the procedure and parameters of habeas corpus re-view.(fn2) The Antiterrorism and Effective Death Penalty Act (AEDPA) first signed into law by President Clinton in 1996,(fn3) included significant cutbacks in the availability of federal writs of habeas corpus.(fn4) This was by congressional design.(fn5) Yet, despite the dire predictions,(fn6) for most of the first decade of AEDPA's reign, the door to habeas relief remained open.(fn7) More recently, however, with little or no fanfare, much less an announcement that it was overturning its own precedent, the Supreme Court reinterpreted a key portion(fn8) of the statute.(fn9) Pursuant to this new interpretation, habeas corpus relief could become virtually unattainable.

During the Supreme Court's 2011-2012 Term, the Court denied habeas corpus relief to petitioners who demonstrated significant deprivations of constitutional rights.(fn10) This article describes these rulings;(fn11) however, they are highly unlikely to be isolated cases. Rather, whether by evolution of doctrine or by reversal of precedent, the Court has obliterated the Great Writ in the arena of federal review of state court convictions.

At the root of recent obstacles to relief is the interpretation of a short, but key clause in AEDPA's amendments to 28 U.S.C. § 2254(d)(1). Pursuant to the statute, a federal court may only grant a writ if a state court's adjudication on the merits "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."(fn12) In Williams v. Taylor,(fn13) the Supreme Court interpreted this provision, ruling that by enacting AEDPA, Congress meant to change the long-standing de novo standard of review.(fn14) In other words, the Williams Court determined that under AEDPA, federal courts owed some amount of deference(fn15) to the legal and factual findings of the state courts. The larger challenge for the Williams Court remained: How does a federal court decide whether a state court decision is contrary to, or an unreasonable application of, federal law?(fn16) Does the "contrary to" clause apply to a different category of cases than those to which the "unreasonable application" clause applies?

And how does a court recognize when a state court makes an "unreasonable application of law?"

This article discusses the reasons why the interpretation or standard that defines the "unreasonable application" clause has proven to be most critical to the availability of habeas corpus relief. (fn17) In recent decisions, the Supreme Court has announced that a state court's ruling will only be deemed an unreasonable application of federal law if no fair-minded jurist could agree with it (the fair-minded jurist test).(fn18) The Court's own precedent and rulings do not promote the interests of justice. This article proposes replacing the standard with one that measures the incorrectness of the state court decision by asking whether an erroneous state court decision was "erroneous enough" so that continued deprivation of the petitioner's liberty pursuant to such a decision outweighs the State's interest in finality.(fn19)

Part II of this article provides background on the legal landscape. It summarizes the relevant pre-AEDPA state of the law and the evolution of AEDPA interpreting jurisprudence with regard to § 2254(d)(1). It also describes the jurisprudential path to the fair-minded jurist test. Part III focuses on the fair-minded jurist test. It sets forth its potential for injustice and discusses how it is inconsistent with the established function of the writ and even with the articulated goals of Congress when it passed AEDPA. Part III also argues that the fair-minded jurist test goes beyond deference and that respect or deference to state court decisions can be achieved without it. Part IV proposes a more just standard for the unreasonable application decision.

II. EVOLUTION OF THE LEGAL STANDARD FOR GRANTING A FEDERAL WRIT AFTER A STATE COURT CONVICTION

A. From Brown v. Allen to AEDPA

An understanding of the course of modern habeas corpus jurisprudence provides an important backdrop for the issues and proposals set forth in this article. The best place to start is Brown v. Allen.(fn20) In a 1953 concurring opinion, Justice Frankfurter laid out guidelines for the lower federal courts to follow when hearing requests for habeas relief from state court convictions.(fn21) In Justice Frankfurter's view, the federal district court should conduct a de novo review of the state court's rulings on questions of law and mixed questions of law and fact.(fn22) In other words, while the district judge should carefully examine the state court's reasoning and decision, the federal judge is obligated to independently decide questions of federal law and how they apply to a given set of facts by asking himself or herself, "Given my understanding of federal law, what do I believe is the correct decision?"

In the decades following Brown, controversy surrounded the issuing of federal writs of habeas corpus for state court prisoners.(fn23) The debate took various forms. While efforts at legislative reform were unsuccessful until 1996, the Supreme Court under Chief Justice Rehnquist handed down many decisions that dramatically curtailed the availability of federal habeas relief.(fn24)

President Bill Clinton signed AEDPA into law in 1996.(fn25) Many believed that Congress transformed AEDPA from a long-debated reform to reality in response to the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City(fn26) and the arrest of Timothy McVeigh against whom the federal government sought the death penalty.(fn27) With regard to the writ of habeas corpus filed after state court convictions, AEDPA made sweeping changes. For example, among other provisions, the new law imposed a one-year statute of limitations,(fn28) made it difficult for an inmate to file successive petitions,(fn29) and under certain circumstances, allowed for an even quicker resolution of petitions in death penalty cases.(fn30) However, the provision that struck most deeply at the heart of the spirit and history of habeas corpus was the movement away from de no-vo review. Proponents of AEDPA sought to eliminate the ability of a federal judge to set aside a state court conviction whenever he or she disagreed with the state court on a matter involving the application of federal law.(fn31) They supported a requirement that federal courts give a degree of deference to the state courts' decisions.(fn32)

How much deference or how to apply a deferential standard was ambiguously delineated in the final wording of AEDPA. The relevant language is contained in § 2254(d)(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 with respect to any claim that was adjudicated on the merits in State court proceedings 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[.](fn33)

Predictably, the statutory language raised a good number of interpretation questions. For example: (1) Does the use of the word, "was" before "contrary to" mean that the federal court may only look to the state of the law at the time of the State court decision?(fn34) (2) What is the difference between a decision that was "contrary to" clearly established law and one that was "an unreasonable application of" clearly established law?(fn35) (3) What is the correct legal standard when the state court decision was not on the merits?(fn36) These questions and others have been answered by federal courts over the almost two decades since AEDPA's enactment.(fn37) Most of these issues are beyond the scope of this article. Question two, however, which addresses jurisprudence regarding the meaning of AEDPA's articulated legal standard, has central importance.

B. Williams v. Taylor and the Supreme Court's 2000 Analysis

The first and still controlling case interpreting AEDPA's standard of proof language was Williams v. Taylor.(fn38) The Williams Court was divided in its understanding of what Congress intended and what the Constitution required. Justice Stevens insisted that Congress did not intend to require all federal courts to defer to state judges' interpretations of federal law.(fn39) Justice O'Connor, however, writing for the majority on this issue, disagreed.(fn40) Along with Justices Rehnquist, Kennedy, Thomas, and Scalia, Justice O'Connor embraced the idea that Congress intended a significant change in the standard to be applied by federal courts, including some degree of deference.(fn41) Justice O'Connor's opinion is cited as the definitive judicial interpretation of § 2254(d)(1),(fn42) and the analysis contained therein is a key element in this article's thesis.

Lower federal courts naturally issued...