The path to habeas corpus narrows: interpreting 28 U.S.C. Section 2254(d) (1).

• Author: Khandelwal, Sharad Sushil

The enforcement of the U.S. Constitution within the criminal justice system is an odd subspecies of constitutional law. In areas other than criminal law, federal courts act as the ultimate guarantors of constitutional rights by providing remedies whenever violations occur.(1) Criminal law, however, is different by necessity; the bulk of criminal justice occurs in state courthouses, leaving constitutional compliance largely to state judges.(2) The U.S. Supreme Court, of course, may review these decisions if it chooses,(3) but a writ of certiorari can be elusive, especially given the Court's shrinking docket.(4)

After World War II, however, this feature of criminal constitutional law came under attack. Many critics, particularly members of the civil rights movement, saw state judiciaries as insensitive to defendants' constitutional rights and demanded more extensive federal oversight of criminal law.(5) In its 1953 decision Brown v. Allen,(6) the U.S. Supreme Court expanded the system of federal habeas corpus to provide such supervision.(7)

Federal habeas corpus for state convicts works in the following way: Prisoners convicted in state court can seek in federal district court a writ of habeas corpus that collaterally attacks the constitutional underpinnings of the state court's judgment.(8) If the federal court finds a constitutional violation, it issues the writ, forcing the state to release the prisoner from custody.(9) In effect, federal habeas corpus serves as a means of federal appeal for state prisoners, providing a vehicle for federal enforcement of state prisoners' constitutional rights.(10)

The strength of this system, however, fundamentally depends on the extent of review permitted federal courts. If a federal court reviews a state judgment under a de novo standard of review, it can grant a writ of habeas corpus whenever it simply disagrees with a state court's constitutional interpretation.(11) Alternatively, a deferential standard of review greatly reduces the reach of a federal court's authority, as a federal court may issue the writ only when it finds the state court's decision unreasonable -- not merely when it disagrees with that decision.(12)

With the Brown decision, federal habeas corpus became a powerful substantive remedy.(13) Habeas corpus petitions assert that a state court has incorrectly decided one of three types of questions: legal, factual, or mixed.(14) Under Brown, a federal court applies de novo review to the following two categories:(15) (1) legal questions, in which the petitioner challenges the state court's determinations of what rule governed an issue,(16) and (2) mixed questions, in which the petitioner challenges the state court's application of a legal rule to the facts of a particular case.(17) Under Brown, federal courts deferentially reviewed only the remaining category:(18) factual questions, or the state court's findings of what happened in a case.(19) Because only legal and mixed questions can implicate constitutional issues,(20) the Brown Court's designation of a de novo standard of review for these questions, later codified by Congress at 28 U.S.C. [section] 2254,(21) substantially extended the ambit of the federal judiciary's authority.(22)

Yet this powerful system had costs. Victims and their families found habeas corpus a torturous process, prolonging their agony by adding another layer of "appeals" to an already overburdened criminal justice system.(23) It also led to inefficient expenditures of courts' time and attention, with federal judges facing towering stacks of barely legible handwritten petitions, very few of which were likely to raise valid constitutional claims.(24)

In this landscape of competing interests, the Supreme Court began to narrow the path to habeas corpus. A series of decisions in the 1990s resurrected many of the procedural hurdles the Court had eliminated during the 1960s.(25) Nevertheless, the Court has not altered the underlying de novo standard of review for legal and mixed questions. In its 1989 decision Teague v. Lane,(26) however, the Supreme Court did make a significant inroad into the scope -- as opposed to the standard -- of review. Teague instructed federal courts to review petitioners' convictions against federal case law as it existed at the time of conviction rather than applying subsequent developments in federal case law retroactively.(27) While affecting the scope rather than the standard of review, Teague represented the first retraction of the reach of the federal courts' authority to review state court convictions for constitutional infirmities.

In 1996, Congress took the Court's restrictive approach one crucial step further by altering the core of federal habeas corpus: the de novo standard of review for legal and mixed questions. Inflamed by the terrorist assault on a federal building in Oklahoma City,(28) Congress passed the Antiterrorism and Effective Death Penalty Act.(29) Title II, section 104 of this Act amended the codified standard of review found in 28 U.S.C. [section] 2254(d) to provide that:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the

claim -- (1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States .... (30)

Three interpretations of the 1996 amendment to section 2254(d)(1) have emerged. A district court in the Third Circuit,(31) a federal appellate judge,(32) and an influential commentator(33) argue, each on different grounds, that the amendment does not change the preexisting de novo standard of review for legal and mixed questions. The Fifth and Seventh Circuits hold that the amendment limits de novo review for legal questions and installs a deferential standard for mixed questions.(34) Finally, two district courts in the Ninth Circuit hold that the amendment creates a deferential standard of review for both legal and mixed questions.(35)

This Note asserts that the 1996 amendment to section 2254(d)(1) remodels federal habeas corpus review of state court convictions in two ways. First, the statute as amended dictates the scope of review for both legal and mixed questions by limiting the precedent available in those analyses to clearly established legal principles set out by the Supreme Court. As Part I argues, this change codifies the Teague v. Lane retroactivity rule and adds an additional restriction that further narrows the scope of review. Second, the statute separately addresses the underlying standards of review for legal and mixed questions. Part II discusses the two constituent clauses of section 2254(d)(1), contending that the "contrary to" clause governs legal questions while the "unreasonable application" clause governs mixed questions. Part III asserts that the "contrary to" clause establishes a de novo standard of review for legal questions. Part IV argues that the "unreasonable application" clause creates a deferential standard of review for mixed questions.

1. The Scope of Review

   This Part contends that the statutory language "clearly established Federal law, as determined by the Supreme Court of the United States"(36) amends the scope of review for both legal and mixed questions. The language restricts the precedent available for those analyses to a specific and narrow body of law: the Supreme Court's case law as it existed at the time of the petitioner's conviction. Section I.A contends that the language "clearly established Federal law" codifies the Teague v. Lane retroactivity rule. Section I.B argues that the text "as determined by the Supreme Court of the United States" further restricts the precedent available to habeas petitioners to include only Supreme Court decisions.

   A. "Clearly established Federal law"

   According to the statute, a court may issue a writ of habeas corpus only if the state court criminal conviction violates "clearly established Federal law."(37) This section argues that the phrase "clearly established" instructs federal courts to use the strict Teague retroactivity test to ascertain the boundaries of the federal case law available to conduct their analysis. This section also rebuts the argument that Teague changed the standard, as opposed to the scope, of review.

   The Teague Court ruled that federal courts should grant a writ of habeas corpus only if a petitioner's conviction is inconsistent with federal case law as it existed at the time the petitioner's conviction became final.(38) It did this by holding that habeas petitioners generally could not rely on precedent handed down after their conviction became final.(39) The Court, however, allowed petitioners to base their claims on later cases if those cases simply elaborated doctrines that were explicitly or implicitly contained within federal precedent at the time of conviction.(40) The Court required federal courts to apply retroactively these postconviction cases containing what the Court called "old rules."(41)

   The Supreme Court has made it very difficult, however, to hold that a case expounds an "old rule." A case applies an old rule only if the legal proposition it contains was "dictated by precedent existing at the time the defendant's conviction became final."(42) Assessing whether precedent "dictates" a rule is a reasonableness inquiry; that is, the retroactivity principle "validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions."(43) Thus, while Teague permits federal courts to apply retroactively some cases handed down after the petitioner's conviction, it also narrows that category to a very small set of cases.(44)

   The 1996 amendment to section 2254(d)(1)...