Simply put, obtaining habeas relief based on the violation of a federal statute has been substantially limited, and innocence seems to be a key indicator of relief eligibility under this framework. (209) Indeed, the only case in which the Supreme Court has recognized the possibility of overturning a conviction (210) on habeas through a non-constitutional error involved a federal statute that seemed to render the defendant's past conduct noncriminal. In that case, again, the focus was on those procedures and rights directly associated with one's guilt. (211)
In short, an array of procedural rules have developed that undermine the prospects for habeas relief in cases in which the evidence of guilt is strong. (212) In many cases, with an array of issues--from whether factual development is permitted, to whether the prisoner can benefit from a new rule, to what types of constitutional claims can be brought, and so on--the threshold and generally dispositive question is whether the defendant is guilty. (213)
Distorting Doctrine to Prioritize Guilt
The discussion up to this point has focused on the fact that substantive doctrine and procedural law tend to prioritize questions of guilt. If a defendant is clearly guilty, or at least cannot make a plausible claim of innocence, the law rarely provides a federal habeas remedy. Before moving on, however, it is worth noting that the innocence saturation of modern habeas doctrine may have a spillover effect. The persistent focus on guilt as disqualifying for relief under established doctrine may condition courts to apply a guilt-centered focus in ways that existing doctrine does not contemplate. It is reasonable to believe that evidence of guilt plays an important role in shaping habeas outcomes even when it is not explicitly contemplated by current doctrine.
Cognitive science and common sense tell us that the general doctrinal fixation on guilt likely shapes the way that judges approach habeas issues that do not necessarily require the same focus on guilt. (214) Doctrines that do not consider guilt may begin to do so at the margins, and doctrines that already consider guilt may bend further in that direction. As Anthony Amsterdam has put it:
Judges parse the rules defining a defendant's constitutional rights more or less closely, more or less strictly, and more or less honestly, in order to grant or deny relief, depending upon whether they do or do not believe that the defendant suffered some outrageous injustice that is way out of proportion to the probability that he or she [is guilty]. (215) And even if this is slightly hyperbolic, it seems reasonable to worry that the guilt fixation of modern habeas is not neatly cabined into certain corners.
To be sure, reported decisions are unlikely to explicitly confirm the distortion of doctrine along these lines. However, notable exceptions exist. A Sixth Circuit decision, Apanovitch v. Houk, is illustrative. (216) Apanovitch's habeas litigation led to the discovery of several pieces of exculpatory evidence that had been suppressed by the trial prosecutors. (217) The question for the federal court, then, was whether Apanovitch was prejudiced by the nondisclosures so as to justify relief. (218) That is to say, was it possible that the trial outcome was tainted by the misconduct of the prosecutors? However, instead of answering this question directly, the federal court of appeals sanctioned a further investigation for more evidence of guilt. (219) Specifically, rather than merely remanding the case to the district court to assess all of the evidence presented at trial and weigh it against the suppressed material, the Sixth Circuit advised the district court that it should "authorize a DNA test comparing swabs of bodily fluid that had been collected from the victim's body" a decade and a half earlier to the DNA of Apanovitch. (220)
Such reasoning is a bold extension of the Brady doctrine. The already guilt-centered Brady doctrine is conceived of in even more stark terms: if there is evidence of guilt, even evidence not yet tested or discovered, much less introduced at trial, it can be assessed and introduced on habeas for the first time as a basis for denying relief.
The district court on remand followed the lead of the federal appellate court and issued an order allowing the State to conduct a new set of DNA tests in order to determine conclusively whether Apanovitch was guilty:
In the present case, the Court finds that the DNA test results--if a match resulted between DNA found on the victim and Apanovitch's DNA--would show that even if Brady violations occurred, under the totality of the circumstances he has not shown that his trial was fundamentally unfair. The DNA test results would have the effect of making the Brady claims factually false resulting in a windfall to which Apanovitch is not entitled. (221) Stated more starkly, a federal prisoner's habeas relief was conditioned upon him submitting to a DNA test and a finding based on that test that he was not guilty. The prosecution was permitted to put on new evidence--evidence that was unavailable or avoided at trial--in order to show that the prisoner was guilty and, therefore, undeserving of Brady relief. Prejudice for Brady purposes has an intrinsic connection to innocence, but never before has the doctrine countenanced that the prosecution can put on new evidence of guilt on habeas review in order to preclude relief. (222) The prejudice prong's association with guilt led multiple federal judges to conclude that additional investigation and testing to prove guilt, even without a jury, was permissible as a rationale for denying federal habeas review.
If Brady claims open the door to a supplemental guilt trial on habeas--at least when DNA testing is available--then so must Strickland claims and arguably every claim for which harmless error applies. Other courts are likely to follow suit and explicitly permit new evidence of guilt untested by a jury to be a dispositive basis for denying federal habeas relief. (223) Most of this sort of maneuvering is likely to take place behind the scenes, far removed from a published order. But as the focus shifts from procedures and constitutional rules toward pure questions of guilt, the very nature of habeas review is altered. (224) Guilt becomes dispositive. Or to use one of our most lauded American metaphors, "[T]he blindfold that Justice is supposed to wear as she weighs competing rights and obligations with indifference to the outcome" is increasingly called into question. (225) In modern habeas, innocence is not irrelevant; increasingly the only question that matters is whether the evidence of "guilt [is] potent." (226)
PROSPECTS FOR A NON-INNOCENCE ORIENTATION: THE "FULL AND FAIR" COUNTER-REVOLUTION
The above discussion has emphasized that Friendly's call for a greater focus on the innocence of the defendant gained substantial prominence in the decades following the publication of his article. (227) Simply put, Friendly's proposal has aged well such that the guilt of a prisoner has become a de jure or de facto reason for denying habeas relief in more than nine out of ten noncapital cases. (228) But if innocence has regained (or retained) center stage, the proposal that is probably its chief intellectual rival must also be acknowledged, and that is the focus of this Part.
There is an emerging scholarly field recognizing a set of process-based protections that are divorced from innocence and even the merits of the underlying claims. Of course, it must be acknowledged that prior habeas scholarship also advocated for a process-based orientation. For example, Paul Bator and Judge Friendly, among others, while critiquing the Warren Court, took as a given the requirement of fair state procedures. (229) In one sense, then, the modern scholarly calls for procedural habeas have a sort of back-to-the-future quality. That is to say, they reflect a robust and appropriate return to a structural view of habeas advanced by more conservative scholars of a previous generation. (230) In this view, habeas proceduralism has come of age. In another sense, however, it seems fair to regard the new generation of procedural habeas as entirely unique because although Friendly and others assumed the necessity of procedural adequacy, they wrote during an era when complete, unfettered habeas was the expectation, and they were advocating for the most limited model of habeas review that could plausibly be advanced. (231)
Either way, the scholarly proposals--both the current and previous generation--reject the call to limit habeas to innocent prisoners and instead suggest that, now more than ever, the salience of federal habeas as a check on the fairness of the state procedures must be emphasized. (232) Such recent scholarship has argued that federal habeas courts must ensure that, at the very least, the state court process was full and fair. (233) And increasingly there is the tantalizing possibility that this full and fair thesis--insisting that habeas courts must ensure the fairness of the state proceeding--is taking form in Supreme Court doctrine. In particular, habeas proceduralism has seen life in a groundbreaking set of recent cases--the Holland-Maples-Martinez trilogy.
This next Section briefly examines the scholarly underpinnings of the "full and fair" model for federal habeas, and then advances a reading of the recent procedural trilogy from the Supreme Court that suggests an alternative to the innocence model of federal habeas review. If full-dress merits review of state adjudications is a thing of the past, it is important to take seriously the role of federal habeas corpus as a safeguard for fair procedures.
Academic Projects Identifying Habeas as a Procedural Safeguard
Scholars have recently paid increasing attention to the role that federal habeas plays in overseeing the fairness of the state postconviction procedures. (234)...