Federal habeas review: the Supreme Court's failure to apply Williams consistently.

• Author: Grubb, Mary Connell
• Position: Supreme Court Review

1. INTRODUCTION

   In Penry v. Johnson. (1) the Supreme Court reviewed for a second time the case of petitioner John Paul Penry, a mentally retarded man convicted of murder and sentenced to death by a Texas jury. (2) Acting as a federal habeas review court, the Supreme Court reversed in part the lower court's decision with regard to jury instructions that failed to provide jurors an opportunity to consider mitigating evidence, and affirmed in part, concluding that petitioner's Fifth Amendment rights had not been violated when a psychiatric report with statements about petitioner's future dangerousness was admitted into evidence. (3) Penry's case reached the Supreme Court after retrial by a state jury pursuant to the Court's earlier ruling in Penry v. Lynaugh ("Penry I"). (4) This second Texas jury found Penry guilty of murder and again sentenced him to death. (5) After exhausting his state and federal remedies, Penry's case arose on writ of certiorari to the United States Court of Appeals for the Fifth Circuit which had affirmed the district court's denial of Penry's application for the federal writ of habeas corpus. (6)

   In an opinion by Justice O'Connor, the Court first addressed the procedural mechanism by which this case arrived in federal court and clarified the standard of review by which Penry's habeas appeal would be adjudged under the Antiterrorism and Effective Death Penalty Act (AEDPA). (7) Justice O'Connor then addressed the substantive issues, stating that the Fifth Circuit properly applied clearly established federal law in determining that admission into testimony of statements taken from a psychiatric report did not violate Penry's privilege against self-incrimination under the Fifth Amendment. (8) Finally, the Court concluded that the Fifth Circuit improperly applied federal law as determined by the Supreme Court--specifically the rule of Penry I--in its assertion that a supplemental jury instruction allowed jurors to "consider and give effect" to mitigating circumstances in the sentencing phase of a capital trial. (9) The Court therefore reversed with regard to the jury instructions and affirmed as to the Fifth Amendment complaint. (10)

   This Note argues that the Supreme Court reached the proper conclusion with regard to the Fifth Amendment claim, but failed to apply the same skill in reasoning with regard to the adequacy of jury instructions. Justice O'Connor, guided by the strength of her convictions in the opinion she delivered eleven years earlier in Penry I, overlooked her own clear language in Williams v. Taylor (11) as to how the Supreme Court should properly review a state court's adjudication on the merits under the AEDPA. (12) By neglecting the mandate of Williams, the Court not only provides a mixed message to state legislatures hoping to find guidance in drafting capital sentencing guidelines, specifically with regard to jury instructions, but also provides little direction to lower federal courts as to the proper standard of review under the AEDPA for applications for the federal writ of habeas corpus.

2. BACKGROUND

   1. THE FEDERAL WRIT OF HABEAS CORPUS AND THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT

      Penry filed his petition for the federal writ of habeas corpus after the enactment of the AEDPA. (13) Therefore, the federal habeas statute as amended by the AEDPA governed Penry's case. (14) The AEDPA establishes the authority with which a federal court may grant an application for a writ of habeas corpus with respect to a claim adjudicated on the merits in state court. (15) Federal courts have long had the power to grant writs of habeas corpus to state prisoners "in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States." (16) However, there has been tremendous disagreement through the years as to the scope and breadth of the 1867 statute, as reflected by ,the numerous amendments and complex body of case law that has emerged since its original passage. (17) One of the first cases interpreting the statute was Ex Parte McCardle, (18) a case in which a Mississippi newspaper editor was imprisoned by Northern military authorities pursuant to the Military Reconstruction Act for publishing unfavorable editorials. (19) While ultimately adjudicated on other grounds, (20) McCardle provided an extremely expansive reading of the statute by stating that it "brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties or laws. It is impossible to widen this jurisdiction." (21) In 1963, the Court reinforced this reading of the statute in Fay v. Noia, (22) stating that "Congress in 1867 sought to provide a federal forum for state prisoners having constitutional defenses by extending the habeas corpus powers of federal courts to their constitutional maximum." (23) Supporters of an expansive interpretation of federal habeas review contend that such a remedy has proven necessary based on past experience, and is especially important in capital cases. (24) The same proponents have also suggested that the "lifetime tenure" of federal judges in contrast to the political pressures on popularly elected state court judges could serve to "immunize" federal judges from outside influence in adjudging habeas cases. (25) Finally, in the capital punishment context, proponents of expanding federal habeas review argue that this broad reading of federal habeas law, by increasing the number of decisions (throughout the course of a capital case, for example) "diminishes the possibility of unconstitutional executions." (26)

      Such an expansive reading is not without criticism from commentators, and increasingly, from the Supreme Court. (27) Generally, those who would limit grants of federal writs of habeas corpus are concerned with providing some kind of finality in criminal cases as well as the appropriateness of second--guessing state courts. (28) Nor is the Supreme Court convinced that increased litigation provides "better" results for criminal defendants. Rather, the Court stated in Brown v. Allen (29) in 1953 that

      [r]eversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final. (30) The issue of finality, especially in capital cases, has been the subject of heated debate in recent years. (31) Several decisions by the Supreme Court reflect this trend toward limiting the scope of the writ. In Barefoot v. Estelle, (32) for example, the Court noted that the "role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited." (33) The Court continued, "Federal courts are not forums in which to relitigate state trials." (34) In O'Neal v. McAninch, (35) the Court cautioned:

      We have ample cause to be wary of the writ. Our criminal law does not routinely punish the innocent. Instead, our Constitution requires proof of guilt beyond a reasonable doubt. As a result, the overwhelming majority of the innocent will never reach the habeas stage, since they will not have been found guilty at trial. Appeals and possible state postconviction relief further reduce the possibility that an innocent is in custody. The presumption of finality that we apply in habeas proceedings is therefore well founded. (36) Similarly, the Court acknowledged the significant costs of an expansive vision of federal habeas review. "[F]ederal habeas review ... disturbs the State's significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority." (37)

      Despite pronouncements by the Supreme Court suggesting new limits on the scope of the doctrine, Congress' role in determining federal habeas law has not been entirely clear. As pointed out by Justice Brennan in 1989, "Congress has done nothing to shrink the set of claims cognizable on habeas since it passed the Habeas Corpus Act of 1867." (38) Congress took up the challenge of clarifying federal habeas law in 1996. (39) In that year, Congress passed the AEDPA in an attempt to resolve the confusion with respect to the consequence that federal courts must give to previous state court judgments. (40) Until then, federal courts had viewed state court judgments de novo which "left the impression that the federal court was to act without any necessary or explicit reference to a prior state court judgment." (41) Under the AEDPA, however, a federal court, while acting independently, must take the prior adjudication on the merits as a "starting point" from which to begin federal habeas review. (42) "Yet the focus of that independent federal judgment is not the merits of the claim in the air, but rather the accuracy of the prior state court decision on the merits." (43) By clarifying the standard of review, Congress, with the AEDPA, significantly reined in the authority of federal courts to evaluate cases on the merits, and thereby narrowed the scope of the writ.

      Williams v. Taylor (44) provides the most recent definitive examination of federal habeas law as interpreted by the Supreme Court since the passage of the AEDPA. (45) In Williams, Justice O'Connor was joined by a majority of the Court in her concurrence (46) that interpreted the AEDPA; Justice Stevens delivered the opinion evaluating the substance of the petitioner's Sixth Amendment claim. (47) The Court reversed and remanded the case to the Fourth Circuit, holding that the petitioner had been denied his Sixth Amendment right to effective assistance of counsel when his attorneys failed to...