A reasoning-process review model for federal habeas corpus.

• Author: Semeraro, Steven

For more than a century, judges and commentators have debated the standard of review applied in federal habeas corpus cases, i.e. collateral attacks on state criminal convictions in federal court. (1) Prior to 1996, the federal statute creating habeas jurisdiction did not specify a degree of scrutiny, and the standard applied by the courts varied over time in vaguely articulated ways untethered to the statutory language. (2) In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act, which, for the first time, explicitly included a standard of review. (3) It permits a federal habeas court to grant the writ only if a state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." (4)

The Supreme Court has interpreted that standard to require a state court to reach what it calls an "objectively reasonable" decision. Conceptually, a federal habeas court may be required to deny the writ even if, had it been reviewing the case de novo, it would have ruled for the petitioner. As long as objectively reasonable jurists could debate the issue, the Court has said, a federal habeas court must allow the state's decision to stand. (5)

Many have argued that this new standard of review is too narrow. (6) Others have advocated even narrower habeas review. (7) Pointing to different historical periods, both sides of this debate contend that the writ must remain true to its original form. A critical examination of habeas's history, however, reveals that it has no true form. Instead, it has evolved as the role of federal constitutional law in state criminal justice systems has changed. (8) To justify a particular level of federal habeas review in the contemporary criminal justice system, one must do more than point to some period in which the preferred level of review existed. One must demonstrate instrumentally how particular levels of scrutiny of federal constitutional claims on federal habeas would serve particular goals in modern society. Neither the instrumental arguments that have been made for broad de novo review nor those for extremely narrow habeas review coherently support or explain the value of habeas in contemporary criminal justice systems. This article therefore concludes that the debate is unwinnable and should be abandoned in favor of a new model of federal habeas review.

Unfortunately, the current federal habeas standard is not an acceptable solution. The concept of objective-reasonableness, despite its name, is not objective at all. It turns on the court's subjective assessment of a concept that could not be vaguer: whether a decision reached by a state court, even if wrong to the mind of the federal judge, is nonetheless reasonable not simply in the sense that respected judges have reached it but in some additional objective sense. Such a standard provides no basis other than the subjective assessment of the federal habeas court to gauge the reasonableness of a state court's decision.

This incoherence is problematic in the obvious sense that it does not guide the lower federal courts and thus renders the law more unpredictable than it needs to be. Rejecting all attempts to adopt objective standards (9) or familiar review formulations, (10) the Court simply reiterates, as if repetition could produce clarity, that objectively reasonable results must be upheld.

Even worse than this uncertainty, the objective-reasonableness standard undermines both the principle of reasonable deference to state decisions embodied in the 1996 Act and Article VI's constitutional mandate that state courts are bound by federal law. (11) The 1996 Act required federal habeas courts to defer to reasonable applications of federal law, which given Article VI should be interpreted to mean well-reasoned opinions taking full account of the applicable law. (12) The Supreme Court's objective-reasonableness standard makes the quality of state court analysis irrelevant. Deference thus turns not on the reasonableness of the state's analysis, as Congress intended, but on the federal court's subjective assessment of the merits of the state court's result. By failing to demand even cursory state court analysis of federal law, yet permitting reversal no matter how thorough the state's analysis, the Court's objective-reasonableness standard is inconsistent with the 1996 Act and permits, and may even encourage, state courts to avoid their constitutional duty under Article VI.

This article proposes an alternative to the objective reasonableness standard that would look to the state court's reasoning process rather than the merits of its result. Under this standard, a federal habeas court would look first to whether the state court cited the federal law that the habeas court would have cited had it been presented with the claim. Second, the federal court would ask whether the state court weighed the factors that federal law would have required the habeas court to evaluate. If a state court considered the cases and weighed the appropriate factors, the federal court would deny the petition and allow the state decision to stand without addressing the merits of the claim. (13) Where the state court did not fully analyze applicable federal law, however, a federal habeas court applying reasoning-process review would return the case to state court for more thorough analysis, but again without addressing the merits. (14) If a state court repeatedly refused to apply the applicable federal law, the Supreme Court would remain free to address the merits on certiorari review.

Part I of this article briefly traces the historic standards of review applied in federal habeas cases and explains the standard now applied by the Court. Part II challenges the theologies favoring either narrow or broad collateral review of state criminal convictions in federal court, concluding that the arguments for and against are roughly equally persuasive and equally speculative. Part III critiques the objective reasonableness standard of review, concluding that its flaw is incoherence and its unjustifiable cost is the undermining of the state courts' constitutional obligation to treat federal law as supreme. Part IV describes reasoning-process review. It argues that this standard, which is analogous to forms of review used in other areas of the law, would provide appropriate deference to well-reasoned state court decisions, as the 1996 Act requires, without freeing states of their Article VI obligations, as the Supreme Court's objective-reasonableness standard effectively does.

1. STANDARDS OF REVIEW IN FEDERAL HABEAS CORPUS CASES

   Although federal habeas review has always rested on statutory law, prior to 1996 Congress never articulated a standard of review. As a result, the Supreme Court has taken it upon itself to define habeas's scope. (15) Unfortunately, the Court's pronouncements are invariably vague and debate has raged both within and outside the Court with respect to the level of scrutiny that has actually been applied. (16)

   Congress's decision, for the first time, to squarely address the scope of federal habeas in the 1996 Act has led the Court to pay greater attention to the issue than it had before. Nevertheless, the standard that the Court applies, and whether that standard best accords with the statutory language, remains unsettled.

   1. HISTORIC STANDARDS OF REVIEW

      Section 14 of the Judiciary Act of 1789 created authority in the federal courts to grant the writ to prisoners held in federal custody "for the purpose of an inquiry into the cause of commitment." (17) Two early amendments expanded the scope of the writ to cover state prisoners who were (a) confined for fulfilling their obligations to the federal government, or (b) serving a foreign government. (18) The 1789 formulation arguably suggested that the writ would be available only to those confined without cause, since it provided for inquiry only into the "cause of commitment." The early amendments, however, made at least some causes improper. Unfortunately, the early Court never articulated the standard that it applied, and commentators have reached no firm conclusions about the federal courts' early practice. (19)

      In 1867, Congress adopted the habeas language that remains in force today: "[T]he several courts of the United States ... shall have power to grant writs of habeas corpus 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...." (20) Despite the apparent clarity and broad scope of this language, debate as to Congress's intent has lingered. Some commentators have narrowly interpreted the 1867 Act merely to extend the existing habeas power to freed slaves who were effectively bound to continued servitude by state law. (21) Others have argued that the Act created a federal forum to review all questions of federal law that arise in state criminal cases. (22)

      The Court itself fueled this continuing debate by repeatedly failing to squarely address the standard of review applicable to habeas cases. Prior to its 1952 decision in Brown v. Allen, the Court often insisted that federal habeas courts did not review constitutional questions de novo. (23) Yet, some cases suggested otherwise. (24) After Brown, the Court assumed for nearly forty years that de novo review was appropriate. (25) In the early 1990s, however, the Court called that assumption into question nearly rejecting the notion that it had ever endorsed de novo review. (26) Although failing to take that extreme step, in the late 1980s and early 1990s, the Court effectively eliminated de novo review by (1) entirely prohibiting federal habeas courts from reviewing claims that raised constitutional questions that were not clearly established; (27) and (2) adopting an actual prejudice harmless error standard in place of the...