The new role of federal habeas courts in guaranteeing the right to effective assistance of counsel.

• Author: Proctor, Gray R.

The conventional wisdom is that federal habeas review no longer allows federal courts to play much of a role in supervising state practice. After the apex of federalization during the Warren Court era, the Supreme Court has tended to narrow the scope of habeas review through doctrines such as procedural default and anti-retroactivity. Subsequently, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) imposed strict limitations on habeas relief, including an extremely deferential standard of review of legal and factual conclusions. The Supreme Court has mostly construed AEDPA against habeas petitioners. The Great Writ, once considered "a kind of federal appeal as of right," (1) is now subject to so many restrictions that one might not notice if it were abolished. (2)

Recent developments have created an exception for claims of ineffective assistance of counsel (IAC) not raised until the federal habeas petition. To prevail on an IAC claim, petitioners must show that their attorney's performance was deficient relative to prevailing standards of professional care, and that the deficient performance resulted in prejudice in the form of "a reasonable probability of a different result." (3) Although federal courts defer to trial counsel by presuming that any alleged deficiency was actually the product of a reasoned strategic choice, (4) IAC claims can rely on substantive legal bases that should have been raised separately, such as an unpreserved evidentiary error or a Brady claim not raised on appeal. (5) Indeed, because the Sixth Amendment can be violated when counsel fails to raise an issue that would only be meritorious under state law, federal courts can grant relief on IAC claims despite lacking jurisdiction over the underlying state law claim. (6) In determining whether prejudice exists, individual errors may be examined together to determine whether a different result would have obtained absent counsel's errors. (7) These features of the constitutional guarantee of effective assistance of counsel render IAC claims a powerful and flexible tool for reaching error.

Now, instead of forfeiting claims not raised first in state courts, habeas petitioners will often have a chance to bring new meritorious IAC claims in federal court. Instead of affording deference to state court decisions, federal courts can adjudicate these claims de novo and can likely allow petitioners to develop the factual basis of their claims. After a brief review of the relevant restrictions on federal habeas, I will explain how new IAC claims sidestep some of them and potentially render IAC claims a powerful, flexible tool for federal habeas petitioners and practitioners.

Procedural Barriers to Habeas Relief

Federal law imposes substantial constraints on granting habeas relief. Some are procedural bars with equivalents in state court proceedings. (8) The most stringent is the bar on second or successive habeas petitions in 28 U.S.C. [section]2244(a-b). After the first habeas petition is filed, federal courts lack jurisdiction over subsequent petitions unless a claim satisfies one of two tests: Either it relies on a new rule of law that the Supreme Court has applied retroactively; or, the claim is based on newly discovered facts, not discoverable through the exercise of due diligence, which establish the petitioner's innocence such that no reasonable factfinder could have found the petitioner guilty. As discussed in the following section on standards of review, federal courts apply a strict anti-retroactivity standard that will bar most, if not all, claims based on new rules. As petitioners generally cannot make a compelling showing of innocence, one should always proceed as though the first federal habeas petition will be the last.

Still strictly applied, but capable of being excused on equitable grounds, is the one-year statute of limitations set forth in 28 U.S.C. [section]2244(d). Although the statute of limitations for most petitioners will begin to run on the date the conviction became final on direct review, the statute allows for belated commencement when a state-created impediment prevents filing, when a new rule of law is declared retroactive to cases on collateral review, or when the factual basis of the claim could not have been discovered earlier by a petitioner exercising due diligence. The statute of limitations is tolled while a properly filed state postconviction motion is pending, but the state motion must be filed before the one-year period elapses, two-year state limitations period notwithstanding. In extraordinary circumstances, equitable tolling is available, but not for "garden variety" (9) examples of attorney error--even in death penalty cases. (10)

Successiveness and timeliness continue to present formidable procedural obstacles that petitioners and practitioners should not expect to circumvent. (11) It is the exhaustion requirement that no longer applies with as much force, and gives petitioners an opportunity to bring claims that should have been brought earlier. Codified at 28 U.S.C. [section]2254(b-c), exhaustion requires the petitioner to present his claim in state court unless there is no state corrective process or those circumstances are "ineffective to protect the rights" of the petitioner. Claims are not exhausted if the petitioner could bring the claim through some state procedure. "[T]o properly exhaust a claim, the petitioner must fairly present every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review." (12) The petitioner must present the federal basis of his claim; it is not enough to present the factual basis of the claim while relying solely on state law. (13)

Petitioners with unexhausted claims cannot just bring them in state court regardless of whether state rules permit. The "teeth" of the exhaustion requirement is the doctrine of procedural default, (14) whereby federal courts may not review claims if an "adequate and independent" state procedural rule would preclude adjudication on the merits in state court. (15) Rather than requiring the petitioner to undertake a futile attempt to obtain a merits ruling, the federal court will simply find that the claims are procedurally defaulted. Claims that were actually raised...