Is guilt dispositive? Federal habeas after Martinez.

• Author: Marceau, Justin F.
• Position: Introduction into II. The Innocence Revolution: Guilt as Dispositive B. Modern Habeas and the Role of Guilt 2. Procedures That Focus on Guilt g. Habeas Relief Based on Non-Constitutional Errors, p. 2071-2119

TABLE OF CONTENTS INTRODUCTION I. THE ORIGINAL MODEL: INNOCENCE AS IRRELEVANT A. A Brief History of Modern Habeas, 1789-1970 B. An (Un)-Friendly Response to the Expanding Reach of the Writ II. The Innocence Revolution: Guilt as Dispositive A. A Focus on Guilt Rather Than Innocence B. Modern Habeas and the Role of Guilt 1. Substantive Doctrines That Focus on Guilt a. Strickland and Brady Claims b. Harmless Error c. AEDPA Deference Disadvantages the Guilty 2. Procedures That Focus on Guilt a. The Stone v. Powell Limit b. The Teague Limit c. Successive Petitions Limit d. Limited Factual Development Under [section] 2254(e)(2) e. Procedural Default f. The AEDPA Statute of Limitations g. Habeas Relief Based on Non-Constitutional Errors 3. Distorting Doctrine to Prioritize Guilt III. PROSPECTS FOR A NON-INNOCENCE ORIENTATION: THE "FULL AND FAIR" COUNTER-REVOLUTION A. Academic Projects Identifying Habeas as a Procedural Safeguard B. The Procedural Trilogy: Holland-Maples-Martinez and the Judicial Recognition of a Right to One Full and Fair Review of All Claims 1. Holland v. Florida 2. Maples v. Thomas 3. Martinez v. Ryan C. The End of Innocence: Seeing the Scholarly Influence in Modern Habeas IV. Reading the Tea Leaves: Gauging the Import of the Martinez Line of Cases A. The Possibility of Raising the Claim on Direct Appeal B. Right to Trial Counsel as a Unique Protection for the Innocent C. The Limits of [section] 2254(e)(2) on Factual Development D. The Federal Statute of Limitations CONCLUSION INTRODUCTION

The conventional wisdom is that federal habeas is a meager shadow of its former self. (1) The once "Great Writ," (2) it seems, has become emaciated by unforgiving procedural rules and one of the most deferential substantive standards of review known to law. (3) Federal review is inhospitable to relief and ever more focused on the actual innocence of the defendant. The answer to the most famous question about federal habeas corpus--"Is innocence irrelevant?" (4)--then, increasingly seems to be no. Indeed, one might fairly assert that, in light of modern statutory and case law developments, guilt and innocence have become the central considerations--that is, guilt is dispositive such that procedural vindication in the absence of a claim of innocence is rare to the point of near impossibility. The Supreme Court's recent abandonment of the habeas statute of limitations in the face of a colorable claim of innocence is illustrative. (5)

Perhaps, however, a shift is afoot. In just the last couple of terms, the Court's jurisprudence has reflected a newfound interest in permitting federal habeas to play the role of ensuring a full and fair state court process. (6) Although it is far too early to make concrete predictions, some of the habeas scholars who have advocated a process-based orientation for federal review have seen signs of such theories being vindicated in habeas doctrine. Recent cases provide support for the view that federal habeas must, at the very least, play an active role in policing the procedures of state appellate and postconviction review. There is, in short, a resurgence of optimism in a legal-process view of habeas corpus. This Article maps the ebbs and flows of guilt-centered adjudications in federal habeas for the last century and is the first to examine in detail the scope of this new, process-oriented habeas optimism by considering the promises and limits of recent doctrinal shifts. A new era of federal habeas review--one that is concerned with process and not just guilt--is not inconceivable.

Part I revisits the details of Judge Friendly's half-century-old critique of expansive federal habeas. In particular, I explore the context for his assertion that a colorable claim of innocence should generally be required for a federal court to ignore the limits of finality and set aside a state conviction. (7)

Part II advances an initial thesis, namely, that in the years since Friendly's article, federal habeas has undergone an about-face such that in the absence of a showing of innocence, relief is almost always denied on federal habeas review. Questions of guilt are no longer irrelevant; they are oftentimes controlling. (8) Indeed, doctrines are altered and distorted in order to reflect the judicial preoccupation with innocence. This claim is developed and defended by surveying a wide range of habeas procedural rules, as well as the mechanics for litigating certain substantive claims.

Parts III and IV pose the question of how much optimism is warranted in the wake of cases like Martinez and Maples. Are these cases fool's gold, unlikely to impact the day-to-day litigation of postconviction claims? Or, as we approach the golden anniversary of Friendly's article, might there be room for renewed optimism about federal habeas litigation that is untethered from strong showings of innocence? The answer to this question turns on a concrete assessment of the limitations imposed by these cases, either by their plain text or by reference to the greater habeas common law, and an assessment of how these cases have been applied in the lower federal courts. In the end, the numerous procedural questions surrounding the eventual application of recent decisions make it impossible to predict precisely how far-reaching the shift in the habeas landscape will be; however, unlike other scholarly works, this Article predicts that the emphasis on fair state court procedures represents the most monumental, prodefendant shift in habeas law in at least forty years.

This Article provides an explicitly descriptive and predictive account of modern habeas review. The first half of the paper summarizes the innocence focus of modern habeas prior to Martinez v. Ryan, and the latter half explores the likely and probable shifts in federal habeas in a post-Martinez world. More specifically, for decades, the guilt of the defendant has been a dispositive barrier to habeas relief. (9) But a change appears to be afoot. Scholars and the Supreme Court itself seem to recognize a role for federal habeas in policing the adequacy of state appellate and postconviction procedures. At least in certain circumstances, federal habeas review must be permitted even if the defendant is patently guilty. This shift is consistent with a normative vision of habeas that scholars, including myself, have advocated for over the past decade.

1. THE ORIGINAL MODEL: INNOCENCE AS IRRELEVANT

   This Article focuses primarily on the contrast between the post-Warren Court innocence era and the rise of a potential post-Martinez process era. To provide some necessary context, however, a brief overview of the pre-Warren Court habeas history is necessary.

   1. A Brief History of Modern Habeas, 1789-1970

      Any attempt to distill doctrine is prone to oversimplification, if not outright misinterpretation. (10) This rule applies with more force than usual in the realm of habeas corpus because even the most respected scholars have disagreed and continue to disagree about the history of federal oversight of state convictions. There is disagreement about the basic purpose and origins of the writ all the way through to the meaning of the modern habeas reforms of the Antiterrorism and Effective Death Penalty Act (AEDPA), and everything in-between.

      The controversy begins with the constitutional standing of habeas corpus. The Constitution, by its plain terms in the "Suspension Clause," does not provide an affirmative right to habeas corpus, but rather creates a general prohibition on the writ's suspension. (11) This has given rise to an ongoing debate over whether the Constitution provides an affirmative right to habeas review, and if so, whether that right applies to prevent Congress from depriving federal prisoners, state prisoners, or both of the right to federal court oversight of their convictions. (12) And this disagreement about what the Suspension Clause means spills over into debates about what the Judiciary Act of 1789 (the Act) means. The conventional reading of the Act is that it "provided federal courts the authority to grant habeas corpus to federal prisoners." (13) But one of the most distinguished habeas scholars and historians, Eric Freedman, concluded based on archival research that "ever since the government began to function, the federal courts have had the power, both by federal statute and independently of it, to issue writs of habeas corpus in order to free state prisoners held in violation of federal law." (14) This is no mere idle conclusion insofar as it speaks to the original meaning of the Constitution and habeas corpus. (15)

      Despite confusion and disagreement regarding the statutory and constitutional origins of habeas corpus in the United States, one might reasonably assume that with the Reconstruction Era enactment of the Habeas Corpus Act of 1867 (Act of 1867), (16) federal courts and scholars would, at least as of this date, achieve consensus regarding the scope and nature of appropriate federal oversight. Such an assumption has proven misplaced. (17) Indeed, some of the most famous debates about the nature of federal habeas jurisdiction arose out of the Act of 1867. For example, Paul Bator famously argued for a very limited form of federal habeas review by reasoning that the Act of 1867 only permitted habeas relief when a state conviction was entered without jurisdiction. (18) Judge Friendly applauded Bator's insights, calling them "brilliant and suggestive." (19) By contrast, Gary Peller argued that the legislative history as well as the lessons of the Reconstruction Era dictated that nearly unlimited federal review of state convictions was essential to a properly functioning constitutional democracy and anticipated by the Act of 1867. (20)

      This fundamental disagreement between Peller and Bator undergirds much of the modern habeas debate. Those who view the Warren Court as having fundamentally expanded the reach of the writ like Bator and soon...