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Monday, October 17, 2011

Bifurcating Habeas

My thesis is as follows: Habeas Corpus, as a unified body of law, is becoming increasingly difficult to teach. That pedagogical challenge is reflected in the diminishing quality of habeas workmanship on the federal bench, particularly as it pertains to post-conviction review. The bifurcated pedagogy invites students to think of habeas as a powers-separating device, but has diminished the degree to which courses teach habeas as a federalism-balancing device.

Habeas is not just one hopelessly complicated subject; it's several. I'm interested in the experience that those of you have had in teaching habeas as a stand-alone course, or the experience that you have had in teaching habeas as part of an upper-level criminal procedure or federal courts course. I'm interested in whether you agree with my characterization of the pedagogic(al?) trend, and also in whether you think the bifurcated pedagogy is meaningfully affecting the way clerks contribute to opinions in the federal courts.

Habeas is rapidly becoming two bodies of law - one that pertains to executive detention, and one that pertains to post-conviction review of criminal judgments. My sense is that the former now gets taught as part of a federal courts or constitutional law course, and that the latter gets taught as part of a criminal procedure course. (There's also a couple of other threads of habeas law, but they are not substantial enough to create the concerns that I express in this post.) My (very) informal survey  of criminal procedure professors suggests that they either (1) don't teach the military detention cases or (2) do teach the military detention cases, but don't have the time to very effectively connect the suspension clause questions therein to the important post-conviction cases. I've even heard that some criminal procedure curricula don't teach habeas at all. My (very) informal survey of federal courts and con law professors suggests that they have time for only some habeas, and the habeas triage usually eliminates the post-conviction cases.

The result, I think, is that law schools are teaching away from any unified concept of "habeas," with attributes that are shared between the post-conviction cases and the military detention cases. This compartmentalized habeas pedagogy is then reflected in the federal reporter, with federal judges and their clerks increasingly attentive to the separation-of-powers role that habeas plays in military detention cases, and decreasingly interested in the historic role of habeas as a test of the lawfulness of state criminal proceedings.

One last thought. In many ways, this tendency reflects the outlook of the central player in modern habeas jurisprudence, Justice Anthony Kennedy. I'm about to identify endpoints on a spectrum, and these cases are of course imperfectly representative of the habeas bifurcation that I discuss here. Boumediene v. Bush, the most important Guantanamo detention decision and probably the most important habeas case the Court has ever decided, is as thorough and careful an exposition of habeas corpus as there is in an Anglo-American legal reporter. It reflects extreme sensitivity to the judiciary's role in checking the wartime powers of the co-ordinate federal branches. Contrast that case with Harrington v. Richter. Harrington involved the amount of federal deference owed to a state criminal decision that lacks an opinion, is one of the most poorly supported, sloppily drafted Supreme Court habeas opinions that I can remember. In Richter, Justice Kennedy seems rather content simply to analyze habeas as a modified res judicata question. (Whatever you think of the intutive merits of the res judicata analogy, it's a very modern graft onto habeas doctrine.)

Am I identifying a real pedagogical phenomenon, is my instinct about its effect on habeas doctrine wrong, or am I way off on all fronts?

Posted by Lee Kovarsky on October 17, 2011 at 06:17 PM | Permalink


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My students in the Spring are doing a chapter on habeas in immigration proceedings. That was one of the other "threads" to which I alluded but did not discuss in detail. So is pre-judgment detention. I have to admit, figuring out habeas in the immigration context has proved to be one of the biggest challenges in an otherwise still-very-challenging field. Obviously, St. Cyr provides a pretty good anchor to talk about it in that context.


Posted by: kovarsky | Oct 19, 2011 3:03:00 PM

Don't forget to teach your students about habeas in the immigration context! The federal courts regularly screw it up, probably in part because immigration classes are neither mandatory nor particularly pushed for would-be clerks (like Fed. Cts.).

Posted by: Brad | Oct 19, 2011 2:52:49 PM


Thanks for your thoughts. I agree with your pessimism regarding whether a successful Suspension Clause challenge could be mounted before the current SCOTUS under 2254(d) as interpreted through the Pinholster/Richter framework. Although Felker isn't directly on point re: 2254(d), it opened the door for the lower courts to regard extreme intrusions on the federal habeas power as "restrictions" rather than suspensions, and I suspect that trend will continue.

I live in a state with an extremely deficient state postconviction process, and I agree that that could (should) be presented to the federal habeas courts applying AEDPA via the Panetti framework. My concern is that Panetti (which addresses competence to be executed) and Rivera (the COA decision it spawned in the MR context) both seem to address *classes* of death-ineligible defendants. While their logic technically could extend to most types of postconviction claims - i.e., "egregiously inadequate state court process = no (d) deference" - I am concerned that (AFAIK) there is no caselaw extending Panetti outside the competence/MR contexts. Why do you think that is? And how deficient a state postconviction process do you think is required for Panetti to serve as a path around Pinholster?

Also, on the Suspension Clause point - much though I regret it, I certainly agree that a constitutional right to federal habeas review does not currently exist for state prisoners. But do Townsend and its progeny support a claim that there is a federal constitutional right to postconviction review (i.e., one "full and fair hearing") in *some* forum, state or federal ... at least for claims that could not be raised until collateral proceedings?

Sorry for the multitude of questions - I'm a newbie swimming in the sea of federal habeas, and I was delighted to see the recent surge of habeas-related posts on Prawfs. It's really helpful to hear the thoughts of people who are as steeped in the jurisprudence and theory as you are. Thanks again.

Posted by: Habeas, Suspended | Oct 19, 2011 1:30:28 AM

Lee, I do try to educate students about state postconviction, but also to help them to understand that the work that they do as defenders at the state trial and direct appeal level may be their clients' best (or only) chance at unfettered review of federal constitutional claims. For example, I try to get them to think more about seeking certiorari to the U.S. Supreme Court from direct appeal or state postconviction, since review of state prisoners' federal claims is so restricted under AEDPA. Chris Lasch and I wrote an article about this called "Initiating a New Constitutional Dialogue: The Increased Importance Under AEDPA of Seeking Certiorari From Judgments of State Courts," 50 Wm. & Mary L. Rev. (2008), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1095885.

Posted by: Giovanna Shay | Oct 18, 2011 3:36:58 PM


I would love to see your syllabus. As are you, I am a huge fan of using post-conviction litigation as an experiential teaching model for both federal courts and criminal process. It's so rich with separation-of-powers and federalism questions, along with all of the substantive constitutional doctrines that litigation involves.

Maybe I'm misunderstanding, but the segmentation that I think you're referring to is that between state and federal post-conviction review. And I wish I had 1/10 the state post-conviction familiarity that I have with federal habeas. Because, as you suggest, state post-conviction process is, almost beyond dispute, the second most important phase of criminal process, after the trial. I hope that schools start paying increasing attention to that particular process and the subject matter that goes with it.

Posted by: kovarsky | Oct 18, 2011 2:19:58 PM


I love the Woolhandler article. It's absolutely one of the best habeas pieces written in the last twenty years.

Indeed, the to-what-degree-does-the-statute authorize collateral attack issue is in many ways the million dollar question. Someone like me believes that if we're talking about federal prisoners, any legislative restriction on lawfulness review is unconstitutional - there can be rules that reflect res judicata, but they have to be imposed by judges. For state prisoners it's different, because I don't think the Suspension Clause applies of its own force in favor of state prisoners (although I do believe the post-Civil War Amendments may have achieved the same effect by incorporating the claues against the states).

As for the historiography, I think the irony you observe is right. The original sin belongs to none other than Chief Justice Marshall (don't they all?). He gets English habeas practice completely backwards in Ex Parte Watkins, and the view of what habeas "is" has been screwed up since.

Posted by: kovarsky | Oct 18, 2011 2:10:38 PM


Indeed, Bator's story is complicated on its own terms, and that there are plenty of folks who tell a different story. Ann Woolhandler's Demodeling Habeas is my own favorite history of the evolution.

The interesting thing about review for "lawfulness" is that one then has to decide what view to take of preclusion or res judicata. One of the important functions of judgments (including criminal judgments) is that they definitely resolve legal issues unless overturned by a legitimate procedure for attacking judgments, and so the question becomes to what extent the habeas statute authorizes collateral attacks.

Anyway, I also agree with you that AEDPA might well codify the existing, non-Batorian understanding of the scope of habeas. That would make the evolution you speak of quite ironic. Judicial creativity moved us from a world of relatively limited habeas to a world of broader review, Congress codified part of that broader review, yet now judicial creativity might be moving us back again.

Posted by: Will Baude | Oct 18, 2011 1:35:54 PM


I think that you are assusming some things that are highly contentious. You are advancing the standard story told by Paul Bator and those that subscribe to that story. In that story, the habeas statute of 1867 never permiitted habeas proceedings to consider anything more than the "jurisdiction" of the sentencing court, except maybe the question of whether the proceeding was "full and fair." Under Bator's story, the Court went awry when it decided Brown v. Allen in 1953, which permitted challenges to the "correctness" of the decision.

There are lots of problems with Bator's story. First, he relies on a VERY expansive concept of "jurisdiction" in order to achieve that result. Second, there is an alternate story told by Gary Peller (one that is equally subscribed) that says that habeas relief issued for due process violations, and that the set of due process violations was pretty small during the period that Bator analyzes; so while it might look like habeas relief issued only for jurisdictional failings, it really issued for due process violations.

I'll add a couple of my own. Third, Bator often muddles the distinction betweeen the Supreme Court's "appellate" jurisdiction and its "habeas" jurisdiction. Back before there was an appeal as-of-right to the Supreme Court in federal criminal cases, the Supreme Court achieved the functional equivalent of direct review by pairing a habeas writ (to produce the prisoner) with a common law writ of certiorari (to produce the record). The "jurisdictional" limits that often appear in those cases are referring to the limits of the Supreme Court's appellate jurisdiction when it used that practice, not some intrinsic habeas limit.

Fourth, I don't think Bator or Peller is right. I think that habeas review entails review for "lawfulness" by a judge, and that's it. It is the judge's prerogative to define how much judicial process constitutes lawfulness. Maybe a criminal judgment is enough, maybe it isn't. But that's not a limit that can be imposed by statute. If courts did not exercise a habeas power to review criminal convictions, it's only because they chose not to do so, not because this is a permissible limit imposed by statute. Now don't get me wrong, some decisions cerytainly treated the limit as statutory, but they did so on what is a fairly egregious misreading of the writ's functoin at English common law.

So, those are al lthe reasons why I think Bator might be wrong, and that we should be aware that Bator describes one particular view of the habeas statute. But I would add on top of that the idea that the Court shouldn't be able to rewrite AEPDA to achieve Professor Bator's view of habeas. Bator's "full and fair" model was repeatedly pushed in Congress, starting in 1948, and was rejected every single time. Starting in 1948, when it was part of the Parker Committee's proposal, it has never garnered a legislative majority. The Court should not be able to write that meaning into a statute when Congress couldn't get legislative support for it.

Posted by: kovarsky | Oct 18, 2011 11:21:33 AM

Habeas, Suspended:

By the way, I was careless in some of my typing. The problem is that it's not clear that the constitution requires that federla habeas process be available for STATE prisoners. I think I accidentally said federal prisoners. Of course there are those that think the constitution doesn't provide for federal habeas relief for federal prisoners either, but I did not mean to reference that particular question.

Posted by: kovarsky | Oct 18, 2011 10:50:21 AM

Habeas, Suspended:

By the way, I was careless in some of my typing. The problem is that it's not clear that the constitution requires that federla habeas process be available for STATE prisoners. I think I accidentally said federal prisoners. Of course there are those that think the constitution doesn't provide for federal habeas relief for federal prisoners either, but I did not mean to reference that particular question.

Posted by: kovarsky | Oct 18, 2011 10:50:09 AM

Lee, Thanks for your thoughtful post. I had not considered this "bifurcation" phenomenon, but think that there is truth to your observation. I also agree with you about the richness of Boumediene, and your post is making me reconsider how to incorporate it into my teaching. I see a different problem in terms of habeas marginalization in criminal procedure teaching. I would like to see federal habeas incorporated into pedagogical narratives that demonstrate to students how their work in state courts is consequential and important. I teach federal habeas (the strain directed at examining state court convictions) in a class called Postconviction Rights. We begin with direct appeal, focusing primarily on appellate doctrines such as preservation, mootness, and harm, but also completing a writing exercise that asks students to read a transcript portion and draft a statement of facts for a direct appeal. We then cover a bit of state postconviction, which is increasingly important, as you have noted in earlier posts and the current SCOTUS docket bears out. And then we dive into federal habeas, struggling with the complexities of AEDPA and habeas doctrine, and, finally, conclude with a couple of classes on prisoners' civil rights claims. It's a survey course, but one that I hope helps students to distinguish between different procedural vehicles, their purposes, their ostensible roles in our federal system, and debates and paradoxes about all of the above. We also follow a theme about the innocence cases and what they can teach us, and how the wrongfully convicted fare in raising claims at each of these procedural junctures (thanks to great articles by Brandon Garrett). I try to get at a different "segmentation" problem than the one you've identified, but I agree with you that there is a fundamental issue that many view habeas as an arcane area that is somehow disconnected from other areas of law, which is not the case.

Posted by: Giovanna Shay | Oct 18, 2011 9:59:31 AM

Habeas, Suspended:

I don’t think Richter and Pinholster are going to pose Suspension Clause challenges for this Court. I am happy to go into further detail if you like, but for now I’ll keep it pithy. The prevailing sentiment on this Court, I think, is that the constitution does not compel the availability of habeas process for state prisoners. That the availability of federal relief for state prisoners is, the argument goes, a creature of statute. So, if Congress does not have to provide federal habeas relief for federal prisoners at all, then it stands to reason that Congress can restrict habeas relief however it sees fit. There are lots of objections to this sentiment (some of which I share), but I sincerely doubt that these objections would animate a majority of the Roberts Court, as currently composed, to deviate from the understanding I’ve just articulated.

But, to be fair, I don’t think that Pinholster applies in cases where a state doesn’t provide a full and fair hearing – for instance, egregious due process failure sin state court will destroy any deference under 28 U.S.C. 2254 – even if the due process claim is not itself a claim upon which habeas relief can be granted. That’s from Panetti v. Quarterman. That being said, I would not underestimate the damage that this Court is going to do to federal post-conviction review of state prisoners.


Posted by: kovarsky | Oct 18, 2011 8:44:06 AM

I don't have any strong feelings about the pervasiveness of this phenomenon, but I'd like to observe that if true, this is somewhat fitting. After all, the Great Writ started out almost entirely as a vehicle for challenging extrajudicial suspension, with conviction by a court of competent jurisdiction an adequate justification for continued detention. Only after a series of judicial modifications to the statute-- first by construing "jurisdiction" broadly enough to encompass non-jurisdictional trial errors, and then by abandoning the traditional framework entirely-- was modern post-conviction habeas created. So if modern jurists and scholars are separating the two again, perhaps habeas is returning to its roots.

Posted by: William Baude | Oct 18, 2011 1:51:18 AM

Your summary reflects my law school experience, more-or-less. I learned the criminal/capital line of habeas cases in a class appropriately titled "Capital Punishment," and I learned the executive detention cases (with some capital cases thrown in) via Federal Courts, which I took concurrently.

You mentioned people's failure to connect Suspension Clause issues to criminal postconviction review. What I would really value your (and others') thoughts on is whether there is any possibility that Richter and Pinholster may operate in tandem to pose Suspension Clause issues vis-a-vis petitioners who, due to inadequate state court process, will now receive no (federal or state) "full and fair hearing" on their constitutional claims. For instance, imagine a petitioner (1) who is denied access to both state and federal fact-development and evidentiary hearing procedures and (2) receives a state postcard denial, to which the federal court must now defer. Do you believe this situation poses Suspension Clause issues or that it is better analyzed under some other constitutional rubric?

Posted by: Habeas, Suspended | Oct 18, 2011 12:56:41 AM

That's quite true. I've written some habeas opinions and seen many more be written, and clerks in the trenches aren't thinking for a second in the criminal context about the history of the writ. At most, a clerk who thinks relief should be granted might write "the Great Writ," so as to not so subtly goose the reader into thinking relief is appropriate in the given case. Clerks care about AEDPA; AEDPA jurisprudence, as it's evolved since Williams v. Taylor, with no regard to what came before, is the whole ballgame.

Posted by: A Clerk | Oct 17, 2011 6:29:16 PM

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