Small favors: Chapter 154 of the Antiterrorism and Effective Death Penalty Act, the states, and the right to counsel.

AuthorKappler, Burke W.

    When one has been threatened with a great injustice, one accepts a smaller as a favor.

    Jane Welsh Carlyle, 19th-century Scottish poet(1)

    On April 24, 1996, President Clinton signed Public Law 104-132 into effect as the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).(2) This cumbersome title reflects the divided history and the purpose of the law. While the majority of the law is designed to provide federal law enforcement with increased powers to confront foreign and domestic terrorism in the aftermath of the Oklahoma City bombing, the law also contains provisions restricting habeas corpus which evolved from years of debate, scholarship, and legislation,(3) These habeas corpus reform provisions have been some of the most controversial aspects of the AEDPA. Condemned by many as draconian limitations on the abilities of prisoners to guarantee the constitutionality of their confinement or death sentence, they are lauded by others as a necessary and overdue step against duplicative and abusive litigation by condemned criminals.

    In enacting this habeas corpus reform, Congress chose to make use of an innovative procedural device known as the state opt-in provisions. Contained in Chapter 154 of the AEDPA, Special Habeas Corpus Procedures in Capital Cases, these provisions mandate greater restrictions on federal habeas corpus review in exchange for appointing competent counsel to indigent capital defendants for state post-conviction review. Essentially, the opt-in provisions are a quid pro quo. If a state provides counsel, the opportunities of state prisoners for federal review are reduced, thus removing roadblocks to a state's effective and expeditious use of its death penalty.

    This paper argues that the opt-in provisions are flawed and ensure finality at the cost of justice. Far from ensuring that prisoners receive qualified and skilled attorneys, the provisions expose prisoners to ineffective counsel without remedy or protections. Furthermore, the opt-in provisions are creating federal-state tensions as states seeking to opt in feel thwarted by the federal judiciary. This paper will explore these and other issues in several different ways. Part II is a comprehensive examination of the history and background of the opt-in provisions. This Part looks at the developments in and debate over habeas corpus and shows how this culminated in the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases--the source of the opt-in provisions. This Part will also briefly review the legislative history to show how the recommendations of the Ad Hoc Committee became codified in the AEDPA. Part III reviews the litigation history of the opt-in provisions. To date, sixteen states have litigated their opt-in status, either through prisoner declaratory judgments against opt-in status or through normal habeas corpus review, and no state has qualified for the restrictions on federal habeas corpus review. This Part will look at these cases to show trends and themes in this litigation. Part IV is original research into state intent. The purpose of this section is to investigate whether states are still seeking opt-in status and, if so, by what means and why. Part V provides legal analysis and critique of the opt-in provisions given their history and the states' responses. This section will include both criticism and proposals for reform of the opt-in provisions.



      The AEDPA is a major development in habeas corpus law within which the opt-in provisions operate. Before continuing with the analysis of the opt-in provisions, it is necessary to look at both the AEDPA and the opt-in provisions themselves.

      The first major effect of the AEDPA is to establish a one-year period for filing a federal habeas corpus petition--the first statute of limitations on federal collateral review.(4) This one-year limitation runs from: (1) the date of final judgment on direct review or the expiration of the time for seeking direct review; (2) the date of the removal of any unconstitutional state action which prevented petitioner from filing; (3) the date of the Supreme Court's recognition of a new, retroactive constitutional right as a basis for the petition; or (4) the date at which new facts supporting the petition could have been discovered through due diligence.(5)

      Generally, a state prisoner may only seek federal habeas corpus review for violations of the Constitution, laws, or treaties of the United States, and can only do so after exhausting all state remedies. Violations of federal or state laws are not a basis for federal habeas corpus review unless they reach a constitutional magnitude. The AEDPA imposes additional requirements. To win federal habeas relief for a state conviction, a petitioner must show that the state's adjudication 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; or that resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.(6)

      The opt-in provisions in Chapter 154 of the AEDPA enforce and tighten these restrictions on habeas corpus. Section 2261 (b) of title 28 of the United States Code states:

      This chapter is applicable if a State establishes by statute, rule of its court of last resort, or by another agency authorized by State law, a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners whose capital convictions and sentences have been upheld on direct appeal to the court of last resort in the State or have otherwise become final for State law purposes. The rule of court or statute must provide standards of competency for the appointment of such counsel.(7) Chapter 154 further provides that the counsel mechanism must offer counsel to all state capital prisoners. Once counsel has been offered, the mechanism must make an order of court for each prisoner, declaring that (1) the prisoner is indigent and has accepted counsel or is incompetent to choose; (2) the prisoner knowingly rejected the provision of counsel; or (3) the prisoner is not eligible for counsel because the prisoner is not indigent.(8) The appointed counsel for post-conviction review may not be the trial counsel unless both prisoner and counsel expressly request it.(9) In laying out this mechanism, [sections] 2261 is the heart of the opt-in provisions. Once the state has developed such a system, and has had the system approved by the appropriate federal district court, a number of additional restrictions apply to any federal habeas review the petitioner pursues.

      Primarily, opting in under [sections] 2261 results in a reduction of the time period for filing a federal habeas corpus petition from one year to 180 days, tolled only for (1) the date of the filing of a petition for certiorari to the Supreme Court for direct review of the state conviction until final disposition of the petition, (2) the filing of the first petition for state post-conviction review until its final disposition, or (3) the filing of a motion for an extension upon a showing of good cause.(10) In response, the district court must render a final determination within 180 days from the filing of the habeas petition, bringing the entire federal post-conviction review to a close within a year.(11) The district court must give all parties 120 days to prepare their claims, including briefs, pleadings, and hearings, before issuing a decision.(12) The court may delay for an additional 30 days based on a finding that a delay would better serve the "ends of justice."(13) Court congestion is expressly prohibited as a reason for delay.(14)

      The opt-in provisions also specify a scope of review for a federal habeas petitioner who received state post-conviction counsel. The federal district court may only consider claims raised and decided on the merits in state courts, unless the failure to raise the claim was the result of (1) unconstitutional state action; (2) the development of a new, retroactive constitutional right; or (3) new facts that could not have been discovered through due diligence in time for state or federal post-conviction review.(15)

      Once state post-conviction counsel has been appointed under an opt-in system, the petitioner may apply to the federal court for a stay of execution.(16) This stay will expire if the petitioner fails to file a federal habeas petition, waives the right to habeas corpus review, or fails to prove the denial of a federal right.(17)

      Obviously the interaction of the AEDPA and the opt-in provisions on top of the state and federal post-conviction review procedures is complex. The key is maintaining the distinction between state post-conviction review and federal habeas corpus. Through opting in, states are volunteering to provide counsel in state post-conviction proceedings. In return, if the petitioner to whom counsel was appointed then chooses to pursue federal habeas review, that petitioner will face the tighter restrictions per Chapter 154. Thus, opt-in does not provide a direct benefit to a state, but serves to ensure that federal review, a roadblock to the state carrying out its death sentences, will be limited, expeditious, and final.

      As a last note, both the AEDPA and the opt-in provisions expressly state that ineffective assistance of counsel in state or federal post-conviction proceedings shall not be grounds for relief in federal habeas review.(18)


      The history of the opt-in provisions must be traced back through the modern history of habeas corpus itself. Habeas corpus is shorthand for habeas corpus ad subjiciendum and refers to a writ used...

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