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Friday, September 16, 2016

The New Constitutional Right to Post-Conviction Habeas

For decades, the dominant working assumptions of the Supreme Court's post-conviction habeas corpus jurisprudence have been that (1) federal post-conviction remedies are generally a matter of legislative grace; and (2) as Justice Alito reiterated last Term in his concurrence in Foster v. Chatman, "[s]tates are under no obligation to permit collateral attacks on convictions that have become final, and if they allow such attacks, they are free to limit the circumstances in which claims may be relitigated." In a new paper we've just posted to SSRN, Carlos Vázquez and I argue that, in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court directly rejected the first assumption, and, in the process, indirectly but necessarily undermined the second. 

To make a long story short, although Montgomery looked like a fairly typical habeas retroactivity case under Teague v. Lane (asking whether Miller v. Alabama fit into an exception to Teague's general bar on retroactive enforcement via habeas of "new rules" of constitutional law), it had a jurisdictional wrinkle--to wit, why the Supreme Court had appellate jurisdiction over the Louisiana state court's holding that Miller was not retroactive under Teague. Although the parties defended the Court's jurisdiction on the ground that the state court's analysis of Miller was "interwoven" with federal law (and thus not independent thereof), Justice Kennedy's majority opinion based the Court's jurisdiction on a much broader conclusion--that the exception to Teague for new "substantive" rules of constitutional law is constitutionally grounded, and thus directly binds the states (as a matter of federal law) in their post-conviction proceedings. Thus, Montgomery recognized for the first time at least some circumstances in which the Constitution (and not just the federal habeas statute) confers a right to a post-conviction remedy--at bottom, to enforce new "substantive" rules of constitutional law handed down by the Supreme Court after the petitioner's conviction became final.

The much more interesting question (to which we turn in Part II of our paper) is the forum in which such a remedy is constitutionally required. As we argue (in some detail), the Supreme Court’s Supremacy Clause jurisprudence, especially the 2009 decision in Haywood v. Drown, establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts—even if the state has not chosen to provide collateral post-conviction relief for comparable state-law claims. Indeed, as we explain, the state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction (even implicitly) over such claims. Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and that the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners. 

Needless to say, this analysis calls into question at least some features of contemporary post-conviction habeas jurisprudence (especially for second-or-successive federal petitioners), and raises a bunch of questions about how far beyond Teague's substantive exception this newfound right to collateral post-conviction review extends. We try to sketch out some thoughts on these issues in Part III, but if we're right about the importance of Montgomery (especially in light of Haywood), then we hope our paper is the beginning of a much broader academic and judicial reassessment of the scope and shape of contemporary collateral post-conviction remedies, not the end. 

And, although it should go without saying, we'd surely welcome comments, suggestions, and feedback...

Posted by Steve Vladeck on September 16, 2016 at 10:11 AM in Article Spotlight, Constitutional thoughts, Steve Vladeck | Permalink


Montgomery holds that, where a court has jurisdiction over a post-conviction claim, it is constitutionally required to give Teague-substantive rules retroactive effect. ("The Court now holds that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule.") But Montgomery doesn't hold that *any* court, state *or* federal, is constitutionally required to have jurisdiction over a particular post-conviction claim in the first place. And such an extension of Montgomery would be deeply misguided.

As for federal courts, neither the Due Process Clause nor the Suspension Clause plausibly requires the existence of post-conviction review at all, much less review of state convictions. After all, despite those Clauses, there was *no* federal post-conviction review of state convictions until 1867, and *extremely limited* review until Brown v. Allen in 1953. Although that history is no longer dispositive given Boumediene, it's still an implausible stretch to say that Congress was somehow required to provide for federal post-conviction review of state convictions and yet flagrantly violated that requirement for most of this country's history (which is distinguishable from Boumediene, since the issue there arose much less frequently).

As for state courts, Haywood v. Drown and its progenitors address the circumstances where state courts must apply federal *causes of action* that *Congress itself* has provided (explicitly or implicitly) can be brought in state courts. But the federal habeas statute, 28 usc 2241, itself expressly limits its jurisdiction to federal courts. ("(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions."). Has any court or commentator ever even suggested that a state prisoner can file an action in state court under 28 usc 2241?

Posted by: Hash | Sep 16, 2016 11:11:38 AM

PS. On the Haywood v. Drown point, to be clear, your argument would go far beyond constitutionally compelled rules like Montgomery. It would mean that *whenever* the federal habeas statute authorized relief, *state courts* must grant that relief *under the federal habeas statute* pursuant to the Supremacy Clause. That's an astonishing proposition, and one belied by the plain text of the federal habeas statute itself.

Posted by: Hash | Sep 16, 2016 11:22:26 AM

Hash -- As you'll see from the paper, we don't claim that Montgomery held "that *any* court, state *or* federal, is constitutionally required to have jurisdiction over a particular post-conviction claim in the first place." But we do think that it's a necessary implication of reading Montgomery together with the Court's Supremacy Clause jurisprudence.

Nor do we argue that Congress "was somehow required to provide for federal post-conviction review of state convictions and yet flagrantly violated that requirement for most of this country's history." As we argue, state courts were meant to be the principal guarantors of constitutional rights--including the new right recognized in Montgomery. Ditto for federal prisoners, who routinely brought habeas petitions in state courts up until the Civil War.

The hard question is simply whether state courts are required to provide such remedies. You're right that Haywood was ostensibly about a federal cause of action, but its language about state obligations under the Supremacy Clause, which we discuss in rather nauseating detail, cuts much broader, as do other Supreme Court cases (like Crain) discussing constitutional remedies. Perhaps you think that Justice Stevens's language (or Haywood itself) is wrong, but that's how we get from (A) to (B).

Posted by: Steve Vladeck | Sep 16, 2016 11:22:42 AM

PPS -- I was probably too hasty in saying that the text of 2241 alone expressly renders federal jurisdiction exclusive, since it is phrased permissively. That said, I still think it's right that, under the Taflin v. Levitt factors, 2241 doesn't create concurrent jurisdiction in state courts.

Posted by: Hash | Sep 16, 2016 11:29:01 AM

Hash -- Again, I'd refer you to the paper, but our claim is not about 2241 itself having force in state courts. As the Supreme Court has made clear, there are circumstances in which the Constitution itself demands that states provide particular remedies. We think this is one of them.

Posted by: Steve Vladeck | Sep 16, 2016 11:32:12 AM

Fair enough Steve. Glad that you're not arguing the broader propositions. But I still think you're overreading Haywood and Crain as requiring that there must be a state *judicial* forum for Montgomery claims, for the reason that you identify at p.18 of the SSRN draft -- namely, you're assuming that *some* court has to be available for such claims (rather than, for example, executive clemency).

Contrary to your argument, Montgomery nowhere suggested that the constitutional remedy it identified is of the sort for which there must be *some* judicial forum in which it could be raised. The question wasn't presented, and Montgomery merely held that, since the state had chosen to provide a judicial forum, it could not refuse to recognize the constitutionally required remedy.

Nor does Crain stand for the sweeping proposition that *all* constitutionally required remedies must have *some* judicial forum. To take the easiest counter-example: the Constitution itself expressly requires the federal govt to provide just compensation for a Taking. But, for a very long time, there was *no* judicial remedy for federal Takings -- the only forum to obtain the constitutionally required remedy was a private bill *in Congress.* (And, even later, redress was available only in claims court, at a time when it was arguably only an *executive-branch* tribunal rather than an a3 ct.)

Thus, while Crain held that the *particular* constitutional remedy in that case -- namely, an injunction to prevent enforcement of an unconstitutional state law -- had to be available in some judicial forum (and query whether even that narrow holding remains good law, cf. Alden v. Maine), that alone does not mean that there must be a judicial forum for the Montgomery remedy. There needs to be a further showing that post-conviction review for "substantive" claims should be treated like injunctions against unconstitutional state laws, rather than like compensation for federal takings (and other remedies that are required by the constitution, but do not necessarily require that a *judicial* forum be provided).

Posted by: Hash | Sep 16, 2016 1:40:22 PM

I'm not sure if I quite buy how you get from (A) to (B) either, but I was interested in your discussion of Fiore. I see that state supreme courts' interpretation of state constitutions may be judicial lawmaking, but are there any state courts that conceptualize their interpretation of state criminal laws in that way? Shouldn't there at least be a presumption that when a state interprets a criminal law to not cover some conduct, it's just saying what the statute has always meant, absent some indication that the court was dynamically interpreting the statute or filling a gap in a vague statute? I'm surprised that the Court even bothered to ask the state court in Fiore what it thought it was doing.

Posted by: Asher Steinberg | Sep 16, 2016 2:12:31 PM

Asher: I'm pretty sure that, post-Fiore, there have been cases where state courts claimed that their interpretation of state statutes *changed* the meaning of the law in a non-retroactive fashion. (I think the Ct denied cert in a case like that OT2006, the Term I clerked.) And, as Steve's article argues (much to my surprise), it's pretty difficult to say that the Due Process clause forbids state courts from engaging in such judicial lawmaking, because that would essentially engraft federal separation-of-powers principles onto state courts through the due process clause. The better argument, I think, is that state courts *don't* actually have such power as a matter of state law -- precisely because it'd be so antithetical to widely shared viewed about separation of powers -- and that federal courts need not treat the state courts' contrary claims as AISGs, pursuant to cases like Martin v. Hunter's Lessee (and the Bush v. Gore concurrence, just to be provocative!).

Posted by: Hash | Sep 16, 2016 2:22:59 PM

This may be too profound for me, but you say it's a bad argument to engraft federal separation-of-powers principles onto state courts (I agree), but a good argument to say that, contrary to whatever state courts say they have the power to do in the way of interpretive lawmaking as a matter of state law, they don't have the power to do it because it would be antithetical to widely shared views about separation of powers, which we don't impose on the states as a matter of federal law, but just presume states are obesiant to as a matter of state law, actual state law to the contrary notwithstanding? I'm not so sure. Besides that I'm inclined to say that, if a state supreme court departs from widely shared views about separation of powers in interpreting its state constitution, that's a wrap as far as state law goes, I don't know that it's *so* axiomatic that courts have no lawmaking role to play in interpreting criminal statutes (just that, as I suggested above, that's not usually what they're doing). For example, whatever attempts might be made to square lenity and constitutional avoidance with legislative supremacy in criminal law, I think the most accurate descriptive account of these canons is that they're judicial policy choices to depart from the best reading or most likely intended meaning of a host of criminal statutes. More broadly, the many ambiguities and not-quite-void-for-vagueness vaguenesses in state criminal law, along with the influence of the common law on interpretation of criminal statutes, necessarily vest in state courts a degree of interpretive discretion that a lot of people would call lawmaking. For example, if a state criminal code codifies an insanity defense, but doesn't say what insanity means, and at Time 1 the state supreme court says it means M'naughton and at Time 2 they say it means what the Model Penal Code says, I don't think it would be terribly remarkable if they said they were changing the meaning of the law, not saying what the law always meant. Particularly if the codification of the insanity defense predates the Model Penal Code.

Posted by: Asher Steinberg | Sep 16, 2016 3:44:35 PM

Asher: In a variety of contexts, federal courts decline to defer to state courts' interpretation of state law if that state-law holding is used to defeat a federal right and there is reason to believe that the state court misstated state law for the precise purpose of defeating the federal right. E.g., saying that a plaintiff bringing a Contracts Clause or Due Process claim never had a "contract" or "property" right in the first place; saying that a criminal deft forfeited its federal claim based on a manufactured procedural ground; etc. Federal courts, however, are understandably reluctant to so hold, and thus tend to limit themselves to situations where the state-law holding is really novel and wacky, thus giving rise to a serious inference that it was manufactured in the case at hand to defeat the federal claim at issue. I'm just suggesting that a state courts' belated discovery that it has independent lawmaking power to amend state statutes only prospectively is the sort of state-law holding that raises these sort of concerns. But if there really were plausible grounds to think that state law had always given state courts such unusual power, I agree with you that federal courts shouldn't second-guess that state-law determination, and that state-law determination doesn't violate any federal constitutional principle.

Posted by: Hash | Sep 16, 2016 5:05:17 PM

Steve: one other thought about why Crain is distinguishable -- namely, it too is really just an example of a federal cause of action being concurrently available in state court. Namely, the availability of an injunctive cause of action to restrain enforcement of unconstitutional law has been implied directly under the Constitution since Ex Parte Young (if not before), and is now well recognized. See, eg, the footnote in fef v. Pcaob. By contrast, there's never been an implied right of action under the constitution to get post-conviction relief. To the contrary, ex Parte bollman holds that there's no implied right to habeas, absent statutory authorization.

So the inappositeness of Crain, plus the Takings counter-example, leaves you with a tough road to show that the constitution requires a judicial forum to vindicate the Montgomery remedy, even if that remedy is consitutionally required where the govt chooses to allow post-conviction relief.

Posted by: Hash | Sep 17, 2016 4:57:07 PM

Steve: two final counter-examples, which seem most apposite of all. Under Griffith and chapman, if a state chooses to allow direct appeals of criminal convictions, then it is constitutionally required to retroactively apply decisions that post-date the trial, and to apply the BRD harmlessness standard; BUT a state is not constitutionally required to allow direct appeals at all. Given that griifith's retroactivity rule doesn't even require direct appeals, montgomery's retroactivity rule certainly doesn't require post-conviction review. Both cases solely govern the law that must be applied if review is provided, not whether review must be provided.

Posted by: Hash | Sep 18, 2016 10:53:56 AM

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