Preclusion and criminal judgment.

• Author: Kovarsky, Lee

Introduction

The defining question in modern habeas corpus law involves the finality of a state conviction: What preclusive effect does (and should) a criminal judgment have? Res judicata (1) and collateral estoppel (2)--the famous preclusion rules for civil judgments--accommodate basic legal interests in fairness, certitude, and sovereignty. Legal institutions carefully calibrate the preclusive effect of civil judgments because judicial resources are scarce, because the reliability and legitimacy of prior process can vary, and because courts wield the authority of a repeat-playing sovereign that will find its own civil judgments attacked in foreign litigation. In stark contrast to the legal sophistication lavished on the finality of civil judgments, however, is the rudimentary treatment of preclusion rules in criminal cases. Nowhere is such treatment more mischievous than in modern habeas corpus law.

The preclusion rules inherited from English common law coexist rather uncomfortably with the habeas guarantee of lawful custody. Habeas challenges may attack any type of detention, (3) but the largest modern category consists of collateral challenges to state criminal judgments (convictions). An inmate who collaterally challenges a conviction in an Article III court seeks an inquiry that seems inconsistent with familiar preclusion rules. When that inmate is in custody pursuant to a state conviction, federal habeas process also presents knotty questions of inter-jurisdictional preclusion.

The role of finality in habeas law is rooted in the Law of Judgments, which is the subject of two Restatements and involves the preclusive effects of judgments rendered in civil actions. (4) This Article follows from the premise that, if the Law of Judgments reduces finality interests to doctrinal form, (5) then habeas inquiry ought to take it seriously.

Contrary to a near-universal assumption, habeas preclusion no longer resembles a Law-of-Judgments rule. Having disregarded the Law-of-Judgments emphasis on the identity of "claims" and process in the rendering court, habeas preclusion rules instead rely on restrictive constructs developed for direct appellate review of criminal convictions. As a result, a state criminal judgment is now more preclusive than is its civil counterpart. That finding is inconsistent with the central premise of modern habeas restrictions: that they conform post-conviction process to standard, "trans-substantive" preclusion law. (6)

Methodologically, I compare standard inter-jurisdictional preclusion law to each of two major habeas paradigms, and then evaluate the differences. In Part I, I explain that, historically, generalizations about lax habeas preclusion rules involve the wrong comparison. For testing the preclusive effect of a state conviction in a subsequent federal habeas proceeding, the appropriate comparator is the law of inter-jurisdictional preclusion. For traditional inter-jurisdictional preclusion inquiries, a court bars relitigation on issues and judgments only if it independently determines that the rendering forum used reliable legal process.

In Parts II and III, I compare two different habeas paradigms to the standard inter-jurisdictional preclusion model. The Relitigation paradigm, defined in Part II, is the set of Warren-era habeas principles that derived in part from the Law of Judgments and that developed specifically for collateral challenges to state convictions in federal court. (7) The defining feature of the Relitigation paradigm is the rule that a federal court conducts merits review of a constitutional claim if the state process was unreliable. (8) Because the Relitigation paradigm also permitted independent merits inquiry when state process was sound, however, it indeed operated through an especially forgiving preclusion doctrine.

Part III traces the shift to an "Appellate paradigm," under which habeas inquiry mirrors the most restrictive elements of direct review in criminal cases. Under the Appellate paradigm, state convictions are actually more inter-jurisdictionally preclusive than judgments rendered in civil actions. The crucial features of the Appellate paradigm are: (1) "deference," meaning that reviewing courts will require heightened showings to declare error; (9) (2) "outcome orientation," meaning that a court reverses only when an error affected a proceeding's bottom line; (10) and (3) "intrinsicality," meaning that review is limited to the record in the prior proceeding. (11) Decisions of the Burger, (12) Rehnquist, (13) and Roberts Courts (14) nurtured the Appellate paradigm, which now dominates construction of habeas law at the lower levels of the federal judiciary. (15) It also explains novel restrictions in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). (16)

In Part IV, I make the normative case against the Appellate paradigm. It does not inherit the comity and finality justifications for prior restrictive models, and it systematically undermines the ideal that every criminal defendant should have a day in court. (17) Moreover, under sway of the Appellate paradigm, legal institutions have constructed 28 U.S.C. [section] 2254(d)--the chief statutory limit on federal habeas review for state inmates and one of the most important provisions in the entire field of federal jurisdiction--in ways that violate constitutional "anti-puppeteering" norms against using procedural law to mimic otherwise forbidden rules of decision. (18)

1. Refining the Comparison

   Scholarship and decisional law consistently confuse the operation of preclusion doctrines, on the one hand, with the presence of jurisdiction and a federal cause of action, on the other. Such confusion produces erroneous assumptions about how habeas process deviates from a "normal" preclusion inquiry. (19) The faulty assumptions, in turn, prime institutional actors to require especially heightened justification for habeas relief. Part I specifies the appropriate basis of comparison between habeas and traditional preclusion models. Parts II and III perform that comparison.

   In order to discuss precisely a judgment's inter-jurisdictionally preclusive effects, I rely on a concept that I call "Regard." The Regard for a prior judgment refers to how prior judicial process restricts subsequent inquiry in another court. A "Regard Scenario" specifies the relationship between the prior and subsequent courts. An appellate Regard Scenario involves the appeal of a judgment to a higher court, and a collateral Regard Scenario involves the relitigation of a judgment in a separate case.

   In each Regard Scenario, through operation of constructs like deference or preclusion, the prior judgment constrains subsequent inquiry. The following Figure shows the four major Regard Scenarios for federal review of criminal convictions:

   The concept of Regard makes the thrust of Part I easier to understand: the idea that state criminal convictions foreclose so much habeas inquiry persists because legal institutions have internalized norms about the wrong Regard Scenario. The canonical habeas precedent involves the degree to which criminal convictions foreclose habeas as a form of appellate process (southwest quadrant), but modern post-conviction litigation is instead about inter-jurisdictional preclusion (northeast quadrant).

   The dominant limits on habeas relief in early American law were limits on appellate jurisdiction. There was no norm of habeas preclusion to speak of because, until 1867, state prisoners did not have a habeas cause of action in federal court, and federal courts did not have subject-matter jurisdiction to grant relief to state prisoners. (20) State convictions were not res judicata in subsequent federal proceedings--at least not in the ordinary sense of that term. Federal courts simply lacked a vehicle to hear the case at all.

   1. Inter-Jurisdictional Review of State Convictions

      With roots in English common law, a habeas privilege guarantees a judicial forum to a prisoner contesting detention. The habeas Privilege specified in the U.S. Constitution corresponds to the habeas power of a federal judge to consider the contested custody and to the federal cause of action to contest it. (21) Although the underlying custody may be criminal, the habeas writ is a civil remedy. (22)

      Lengthy discussion of the constitutional provisions whence the Privilege springs is beyond the scope of this Article, (23) but a skeletal one will help readers understand the importance of more refined Law-of-Judgments analysis. Article I, Section 9, of the Constitution (the "Suspension Clause") provides that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (24) Several academics and at least one Supreme Court Justice have suggested that, because the Suspension Clause does not contain language expressly creating the habeas Privilege, the Constitution requires no habeas process at all. (25) That position has failed to register any durable support on the Roberts Court, (26) but judges and the academic community still struggle to localize the source of the Privilege in specific constitutional text. In Boumediene v. Bush, (27) the Supreme Court held that the Constitution guarantees habeas process, (28) although the source and content of the guarantee remains disputed. One major area of such dispute involves the habeas remedies available to state inmates convicted of a crime.

      Section 14 of the 1789 Judiciary Act established federal habeas power to adjudicate federal custody. (29) Scholarship has picked section 14 to death, [30] so I make only the most pertinent observations here. First, section 14 did not provide state prisoners with a cause of action or federal courts with power to grant habeas relief to state prisoners. (31) Second, in Ex parte Watkins32--an opinion explored in Section I.C--the Supreme Court held that section 14...