The Antiterrorism and Effective Death Penalty Act (AEDPA) contains a provision restricting federal courts from considering any authority other than holdings of the Supreme Court in determining whether to grant a state prisoner's petition for habeas corpus. Through an empirical study of cert filings and cases decided by the Supreme Court, we assess this provision 's impact on the development or federal constitutional criminal doctrine. Before AEDPA and other restrictions on federal habeas corpus, lower federal courts and state courts contributed to doctrinal development by engaging in a "dialogue" (as described by Robert M. Cover and T. Alexander Aleinikoff in a 1977 article). This dialogue served to articulate the broad constitutional principles set forth in Supreme Court precedent. AEDPA has effectively ended the conversation, because under AEDPA federal courts lack the power to resolve emerging constitutional issues in the context of state prisoners 'federal habeas petitions. Now that only Supreme Court precedent can provide the basis for federal habeas relief under AEDPA, it is more important for open questions to be presented to the Supreme Court. Unless cert is sought and granted in cases arising out of state criminal proceedings, constitutional criminal doctrine may be frozen. Current certiorari practice is out of step with this reality. Our analysis of the procedural posture of criminal cases in which certiorari was granted by the Supreme Court over the past twelve years demonstrates that, since 1995, the Supreme Court's certiorari grants in criminal cases have been tilting away from federal prisoners" direct appeals and towards state prisoners" federal habeas and (to a lesser degree) state court direct appeals. Because the Court is not, as a general matter, using certiorari grants in state prisoners" federal habeas cases to develop doctrine, it appears that certiorari from state court direct appeals is poised to become the primary vehicle for such development. Yet an empirical analysis of certiorari petitions filed in the October 2006 Supreme Court term reveals a gap between this opportunity for doctrinal development and practitioners' current certiorari-seeking behavior. We coded 347 "paid" certiorari petitions and a sample of 300 in forma pauperis petitions, categorizing cases by procedural posture. Although certiorari grants in federal prisoners' direct appeals are declining dramatically, the leading category of cert filings remains federal prisoners ' direct appeals. Given that there are far more state criminal proceedings each year than federal prosecutions, we argue these trends demonstrate an opportunity to file more and better certiorari petitions from state criminal proceedings. We urge the criminal defense community to close this "cert gap," both to ensure a better standard of review for individual clients and to promote continued development of the law.
TABLE OF CONTENTS INTRODUCTION I. A FRAMEWORK FOR UNDERSTANDING THE SIGNIFICANCE OF AEDPA's "[A]s DETERMINED BY THE SUPREME COURT" PROVISION--THE RISE AND DECLINE OF "DIALECTICAL FEDERALISM" II. AEDPA's "[A]s DETERMINED BY THE SUPREME COURT" PROVISION--THE END OF "DIALECTICAL FEDERALISM" AND ITS IMPACT ON THE DEVELOPMENT OF CONSTITUTIONAL LAW A. AEDPA and the End of "Dialectical Federalism". B. The Future of Doctrinal Development After AEDPA III. WHERE DO THE SUPREME COURT'S CASES COME FROM? A. The Supreme Court's Certiorari-Granting Behavior B. Practitioners' Certiorari-Seeking Behavior IV. REPRESENTATION IN SEEKING CERTIORARI FROM STATE COURT JUDGMENTS A. Defender Certiorari Survey B. Provision of Counsel to State Prisoners Seeking Certiorari CONCLUSION INTRODUCTION
Since its passage in 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) (1) has attracted considerable attention for its impact on the availability of federal habeas corpus remedies for state prisoners. Legal scholars have written about AEDPA's impact on separation of powers, (2) federalism, (3) and the effectiveness of the Great Writ. (4) Empirical work also has documented AEDPA's effects on habeas litigation in the federal courts. (5)
We set out to understand the provision of AEDPA that prohibits federal habeas courts reviewing state court judgments from considering decisions other than those of the United States Supreme Court in determining whether the state court judgment adequately comports with federal law:
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 ... 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. (6) This provision not only increases the importance of Supreme Court precedent--and limits the value of lower federal court decisions--but also greatly heightens the significance of the procedural vehicle in which questions are presented to the Court. Because AEDPA limits the Court's ability to "break  new ground" in cases arising from federal habeas petitions, (7) cutting edge questions must be presented in petitions for a writ of certiorari from the judgments of state courts if federal constitutional law is to continue to develop in state criminal proceedings. Last term, four justices of the Supreme Court recognized this new reality in their dissent in Lawrence v. Florida. (8) They wrote that the pre-AEDPA sentiment that "federal habeas proceedings were generally the more appropriate avenue for our consideration of federal constitutional claims" was no longer true in light of AEDPA's "as determined by the Supreme Court" provision. (9) "Since AEDPA," they explained, "our consideration of state habeas petitions has become more pressing." (10)
We wanted to examine how this provision might affect the development of criminal constitutional law when superimposed on actual certiorari practice. To that end, we reviewed criminal cases decided by the Supreme Court over the last dozen terms, as well as certiorari petitions filed during the October 2006 term. We found that the Court's certiorari-granting behavior has changed over the past twelve terms. Certiorari from federal prisoners' direct appeal proceedings, once the dominant vehicle for criminal cases decided by the Court, has dropped to a third-place position behind state prisoners' federal habeas cases and state prisoners' direct appeals. We found practitioners' certiorari-seeking behavior to be out of step with this development--despite the relative decline in certiorari grants in federal prisoners' direct appeals, such cases remained the largest category of certiorari filings in the October 2006 term. Petitions from state prisoners' direct appeals appear to be grossly underrepresented, considering that state prosecutions far outpace federal prosecutions. Petitions from state prisoners' state postconviction proceedings are a relatively small category of filings; (11) as Justice Stevens has recognized, they are rarely granted. (12) Based on our survey, we argue that defender and pro bono resources should be increased (and in some situations refocused) to improve the number and quality of cert petitions filed from state criminal proceedings (both direct appeal and postconviction).
This Article takes both doctrinal and empirical approaches. In Part I, we provide a doctrinal framework for understanding the historical importance of AEDPA's "as determined by the Supreme Court" provision. In Part II, we discuss the interpretation of the provision and its impact on the development of criminal constitutional law. Part II.A examines Supreme Court opinions involving 28 U.S.C. [section] 2254(d)(1) to explain how the standard has been interpreted and to demonstrate the remarkable break with the past embodied in this provision. Part II.B offers brief case studies of this provision's impact on the development of constitutional doctrine. Part III offers an empirical attempt to place AEDPA's "as determined by the Supreme Court" provision in context. We begin in Part III.A with an overview of the procedural postures of criminal cases decided by the Court from October Term 1995 to October Term 2006. We continue in Part III.B with a survey of petitions for certiorari filed in October Term 2006 to see how practitioners are behaving in this new post-AEDPA climate. In Part IV, we consider possible explanations for the depressed cert-seeking rate for state prisoners in state court direct appeals and postconviction proceedings, and discuss results of a survey of certiorari-seeking practice. We conclude by offering some recommendations to close the gap and ensure the continued development of criminal constitutional law.
A FRAMEWORK FOR UNDERSTANDING THE SIGNIFICANCE OF AEDPA's "[A]s DETERMINED BY THE SUPREME COURT" PROVISION--THE RISE AND DECLINE OF "DIALECTICAL FEDERALISM"
In 1977, Yale Professor Robert M. Cover and then-student T. Alexander Aleinikoff asserted that the Warren Court had instituted an "expanded federal writ of habeas corpus" (13) as the enforcement mechanism for its "reforms in criminal procedure." (14) While remedial plans for injunctive relief had been instituted in the desegregation and voting rights contexts, the Warren Court revolution in constitutional criminal procedure was enforced only indirectly, by an invigorated federal habeas. (15) The Warren Court's habeas doctrine, most notably Fay v. Noia, (16) was intended to safeguard the opportunity for "federal adjudications free from the impact of structural deficiencies in state criminal processes." (17) Cover and Aleinikoff described the structure of federal habeas under Fay as a "strategy of redundancy," (18) by which they meant that the state and federal court systems "serve[d] as a check...