Can the Great Writ Regain its Greatness - Daylight Through the AEDPA

This recent term of the Supreme Court of the United States opened the door to new and welcome discussions of federalism.  There is no argument here of the importance of federalism in regard to the powers of the states to define and expand rights beyond those guaranteed by the Constitution, but it turns federalism on its head to pretend that its purpose is to limit those rights guaranteed to all by the Constitution.  Two cases this term took a back door approach to recognizing this understanding of dual sovereignty in regard to criminal convictions subject to habeas corpus review.  

To clarify, what is meant by habeas corpus is NOT the habeas corpus enumerated in Article 1, Sec. 9[2] of the Constitution as history demonstrates that the Suspension Clause referred to pretrial detention and not prisoners held in state custody.  However, the Judiciary Act of 1867 extended the writ to “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.” Judiciary Act, ch. 28, § 1, 14Stat. 385 (1867).  Therefore, by 1867, habeas corpus was both a post-conviction remedy and that it applied to state court litigants.  The year following passage of the Judiciary Act welcomed the ratification of the Fourteenth Amendment defining citizenship and thus who was eligible for individual protection of liberty as well as ensuring that the federal government could restrict the powers of the states if they sought to infringe upon the rights of citizens.

It is reasonable to surmise that the Framers included Suspension Clause in 1789 to protect individuals from the power of a strong federal government; it is equally reasonable to surmise that the post-Civil War Congress distrusted state governments to comply with and enforce federal law when it passed the Judiciary Act and the Fourteenth Amendment.  As it turns out, the fear of the original Framers was real, just misplaced.  Rather than an overly aggressive federal government denying states power, individual states had demonstrated a capacity both of armed rebellion and constitutional defiance all to deny individual liberties to their own constituents. The federal government therefore had to step in to states where policies and practices denied protected and enumerated rights to citizens of the United States.  As the nation grew and evolved, as it continues to do, it became clear that states would not necessarily play the protective role envisioned by the Framers; they would instead discriminate- and discriminate in violation of federally guaranteed rights. 

Within a century of ratification, it finally became clear to the Court that the Reconstructionist Amendments changed fundamentally the relationship between the states and the federal government.   State powers never diminished; the federal government merely enhanced its commitment to protecting the very same rights (with a promise that everyone would be included) that it originally promised to protect in the first place.  And because the Supreme Court decides, ultimately, the expanse of those rights, habeas corpus must be guaranteed without much limitation.  That was so until 1996 when Congress passed - the unbelievably titled "Antiterrorism and Effective Death Penalty Act".  As we now know, that very Congress in 1996 overreached by passing another absurdly-named-bill, the "Defense of Marriage Act".


The AEDPA was enacted in response to the tragic Oklahoma City bombing by Timothy McVeigh in 1995.  McVeigh was executed by the people of the United States on June 11, 2001, 8 months after the suicide bombing of the USS Cole in 2000 and 3 months before the airplanes-come-missile attacks of September 11, 2001 calling into question whether the bill was effective at all on the anti-terrorism front.  To be sure, capital punishment was pretty effective in those days boasting the years in which highest number of prisoners lived on death row and the highest number of those killed from death row.  The national trend, however, since that time has been slowly to seek eradication of the death penalty in state after state after state.  The AEDPA failed against terrorism and is now protecting the state power to execute, a power the states are rescinding of their own volition.  However, the purpose of habeas corpus review was never to allow for comity; it was to ensure a foundation of rights for all.

Yet, the AEDPA restricts the timing of a habeas complaint and regulates the kinds of eligible claims for federal review in a manner so severely restricting the right to habeas corpus that it is as broad an overreach of Congressional power in regard to individual access to federal courts as the DOMA was to individual access to basic human dignity.  Just as normal, thinking people cannot be afraid or threatened by their government providing all lawfully wed couples identical treatment in marriage benefits, normal, thinking people cannot be afraid or threatened by their government providing all constitutional claims in criminal cases identical treatment in judicial review. 

Everything in increments, however.  The Court did not this term guarantee a fundamental constitutional right for marriage equality as it did, say, in Loving v. VA striking down a state law criminalizing interracial marriage.  Mr. and Mrs. Loving, lawfully married but of different complexions received a sentence of a year in prison, suspended for 25 years, so long as they left the Commonwealth of Virginia.  In the judge's words, "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."  Indeed, the high court of Virginia - and 15 other states - had previously ruled that the criminal anti-miscegenation statute served a legitimate state purpose of keeping the races segregated.  It was not the violation of the First Amendment and all rational thought - including the state's argument that it punished blacks and whites identically for miscegenation (confusing "equal protection" with "equal punishment") - that made the case easy for the Warren Court because (unlike the current battle for equality) the history and the intent of the Fourteenth Amendment revolved around equality of the races.  As to the eventual guarantee of marriage equality, this will be a state by state battle and it appears that the tide of public opinion favors dignity and respect for all couples.  To be continued...

Back to the AEDPA - last term, the Court decided Martinez v. Ryan which created a tiny workaround the AEDPA's provision that the federal court could deny a claim based upon an adequate and independent state ground (procedural default under state law) in that the Court narrowly carved out a cause of action where counsel was ineffective.  In Martinez, the Court stated that if counsel fell below an ordinary attorney by failing to raise claims thereby making those claims ineligible for federal review due to a state court restriction, that ineffective assistance of counsel claim could establish an avenue for the federal court to consider the claim. The ruling was "equitable" and not constitutional. Finding cause and prejudice to open the habeas door would not release the inmate from his prison.  Rather than entitling the petitioner to relief, it merely allows the federal court to review the underlying claim. 

Building on Martinez in this term, the Court decided Trevino v. Thaler essentially expanding the rule in Martinez to the initial habeas claim in federal court where the state law does not specifically state that ineffective assistance of counsel claims must first be raised in the initial state court proceeding.  Further, the Court decided McQuiggin v. Perkins which avers that a claim of actual innocence can override the strict statute of limitations under AEDPA.  

The dissents argued that states should have finality over their own convictions and putting their own citizens to death.  But the flaw in that idea - and indeed in the AEDPA itself - is that habeas corpus serves the opposite purpose.  After the Civil War, it became clear that the federal government would protect fundamental individual liberties but the states were free to expand those liberties at any time.  This, indeed, had to be the intent of many of the Framers of the original document even in their compromises to ratify the Constitution, as they had already seen the pitfalls of too weak a national government during the period of the Articles of Confederation.  Just as the Court will ensure that states provide minimal liberties to their inhabitants, it will ensure that lawyers provide minimal competence to their clients.  And it will have the power and authority to review individual cases to guarantee these minimal basic requirements.

Habeas corpus creates a post-conviction remedy when trial and direct appeal has failed - designed to release from confinement those who have been convicted in violation of the Constitution.  It did not protect antiquated ideas of federalism; it clamped down on state power.  Habeas corpus vows for the supremacy of the United States Constitution as defined by the Supreme Court within the case and controversy presented.  It is the flip side of federalism, recognizing that state powers must be constrained by the individual liberties guaranteed by the Constitution.  The 1996 AEDPA prohibits Article 3 courts from their constitutional role and seeks to revert to a defunct idea of comity obliterated by the Fourteenth Amendment.  There is no state authority to finality of any verdict or sentence rendered in violation of federal constitutional principles...even if those principles have been suggested but not yet verified by the Supreme Court.  

The "equitable" rather than "constitutional" decisions in Martinez, Trevino and McQuiggin all dance around the fundamental question of whether the AEDPA itself is an overrreach by Congress denying individuals access to the courts. Creating narrow escape hatches through ineffective assistance of counsel claims at any stage of the proceedings and to recognize claims of actual innocence as cause and prejudice relieving the petitioner from the statute's heavy burdens uphold the indefensible AEDPA.  The real question is to determine whether the AEDPA impermissibly restricts the First Amendment right to petition.

Two principles of federalism emerge from the Court's rulings in this current term striking down federal laws.  As to the Voting Rights Act of 1965, the Court deemed the restriction on state powers to regulate their own voting rules unconstitutional under the 15th Amendment as the use of 40 year old data was deemed an inappropriate basis for federal legislation.  It did not say that prejudice had ended or that Congress could not regulate the states in regard to election law, merely that the antiquated data could not support the pre-clearance restriction.  As to the DOMA, it ruled that the federal government could not treat some marriages as more equal than others.  States have powers (they have never had "rights") to expand liberty, but no federal restriction can usurp the state's power to recognize fundamental individual rights; indeed, once states so acknowledge, the federal government is bound to respect the rules of the states.  

This really is the essence of federalism, certainly federalism post-Fourteenth Amendment: fundamental rights will be protected by the federal constitution and states may (and should) increase the population subject to those individual liberties in order to guarantee full citizenship privileges and immunities to all.  The original Framers believed that states would exercise this very role as it would increase the voting franchise and thus their clout in Congress.  But when that went awry through prejudice and discrimination resulting in state oligarchies restricting individual liberties, the roles reversed so that the idea of democracy might flourish by virtue of a strong federal government celebrating the individual over the state.

Within this dual sovereignty lies post-conviction habeas corpus.  Unlike the obligation of the federal government to respect state expansion of rights and liberties, habeas corpus recognizes that the federal government, too, has an interest in protecting the fundamental rights of individuals.  Thus, the role of Article 3 courts is precisely to ensure that the minimal protections of the constitution apply to everyone in every court of these United States.  Like the DOMA, the AEDPA seeks to destroy that delicate balance.   And the Court seems somewhat receptive to reclaiming its authority with these incremental rulings over the last two terms.  Chipping away at the constraints of the AEDPA with endless claims of ineffective assistance of counsel is no answer - counsel must move to eliminate the AEDPA.

The Cost of Denying Access to Habeas Corpus Review

What happens when one person is wholly responsible for another’s fate? In Florida, Paul Howell will be executed by the state without having had his case reviewed in full by the federal court because one of his prior attorneys missed a filing deadline. This means that Mr. Howell will be denied habeas corpus, what was once referred to as “the great writ”. The purpose of the great writ is to right wrongs -  not by serving the state - but by protecting individual liberties from the reckless actions of the government.

The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. Its pre-eminent role is recognized by the admonition in the Constitution that: ‘The Privilege of the Writ of Habeas Corpus shall not be suspended." U.S.Const., Art. I, s 9, cl. 2. The scope and flexibility of the writ-its capacity to reach all manner of illegal detention-its ability to cut through barriers of form and procedural mazes-have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.

Harris v. Nelson, 394 U.S. 286, 291 (1969).

Indeed, wholesale denial of access to the federal courts constitutes not just a moral wrong, but a constitutional violation.  The First Amendment prohibits Congress from restricting the right to petition the government for redress, the Fourteenth Amendment imposes federal law on state governments, and the Supreme Court is the final arbiter of the meaning of the Constitution. U.S. Const. Art. III. Preventing habeas petitions for issues of first impression exceeds Congress’ authority.    

Despite all of this, including the Supreme Court declaration in Harris v. Nelson, courts have declined valid argument under the Suspension Clause of the Constitution. U.S. Const. Art.1 § 9 [2].  i.e.,  Evans v. Thompson, 518 F.3d 1 (1st Cir. 2008).  At the time the Suspension Clause was written, the writ of habeas corpus referred to pretrial detention and only to federal prisoners. See, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners?, Steiker, J.,  92 Mich. L.Rev. 862, 864 n.9, 865 n.17 (1994).  However, the Judiciary Act of 1867 established habeas corpus as a post-conviction remedy and applied this right to state court litigants. Judiciary Act, ch. 28, § 1, 14 Stat. 385 (1867). By that time, inferior courts had existed for over 75 years and the notion of habeas corpus had already expanded to post-conviction rights. Under this concept, then, the right of access to federal courts is one on a par with the Reconstructionist Amendments - the Judiciary Act of 1867 predates and foretells part of the purpose of those Amendments and of the Civil War itself.

The right to petition the government inherent in the First Amendment includes the right to petition the federal courts.  Given the concept of separation of powers, designed to protect against tyranny, the First Amendment prohibits Congress from limiting habeas corpus review of state court decisions impacting federal issues such that amounts to a prohibition of the right to petition the court.  Infringing upon the right of the people to petition amounts to a legislative interference with the judiciary’s exercise of its authority over the meaning of the Constitution, exceeding Congress' authority. Marbury v.Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60 (1803).   Congress' enactment of, and the Court's acquiescence to, the AEDPA imposing strict rules upon the eligibility of cases to obtain habeas review, barring new arguments from reaching the Supreme Court challenges the purpose of the Great Writ and raises a Ninth Amendment application to the right to judicial review. 

Of course, habeas petitions are not the only avenue available to most state court litigants.  On direct review and for a limited period of time, they enjoy the right to petition the Supreme Court for certiorari. Certiorari permits state court litigants the right of federal review of state court errors related to federal law without the constraints of the AEDPA. 

But both direct certiorari and habeas review contain time bars, hence the situation which mires Mr. Howell.  Given the imposition of federal law upon the states via protections of individual liberties inherent in the  Fourteenth Amendment, the filing limitations start to look ominously unconstitutional.  The seriousness of Mr. Howell's current circumstances illuminates the meaning of the term "deadline": one lawyer missed a date for filing and therefore the federal courts can and will deny review of the great writ resulting in the state taking Mr. Howell's life. 

The Judiciary Act of 1867 seemed to encourage broad federal review of state cases.  Born of the Civil War, this legislation was designed to ensure fairness to those whom society had denied basic humanity.  Denying access to habeas corpus challenges the purpose for which so many surrendered their lives and fortunes in the Civil War.  Early on, the Union learned that the Confederates were no easy target.  In the battles fought in Manassas, early jubilation of Union forces met with reinforced Confederate troops for bruising losses and a signal that the war would be long one.  In those initiating battles, the 90 day recruits became soldiers, some remaining in for the duration.  At some point, folks had to determine what it was they supported and what they were fighting - and dying - to preserve. 

As it turns out, in this sesquicentennial year of both the Emancipation Proclamation prompted by the slim victory at Antietam and the Gettysburg Address spoken on the bloodstained fields of Pennsylvania, the Union for which men sacrificed their lives was far greater than the one they went into battle to save.  The people of the Union, North and South, would harbor anger and resentment, the choices would not always be perfect, but the nation, the Union, the ideals of American democracy would emerge from the war with far greater resolve to enhance the second sentence of the Declaration of Independence.  It is that Union that ensured the right of access to the federal courts - that Union which sought to advance decency and dignity for all of its inhabitants.

So now, one hundred and fifty years later, denying access to the courts based upon one lawyer's missed deadline - indeed executing a man who has arguments left to make - seems an outrageous disparagement of these brave soldiers and the courageous Congressional leaders who insisted on making this nation better than the one that went to war against itself in the first place.  One hundred and fifty years after the Civil War, court battles on access to review and voting rights, indeed, seem to denigrate the memory of the men who gave their lives so that future generations could live together in peace.

What does happen when one person is responsible for another person's fate?  Tragedy.  The more than 700,000 Americans who gave their lives to the cause of the Civil War did not fight to ensure that one missed date would end in the death of a fellow American without judicial review.  They fought to protect the United States from dissolution on the Union side and they fought for their homes and families on the Confederate side.  The Union prevailed not just for the North's sake, but for the sake of the entire Union.  Lincoln's Second Inaugural Address and General Grant's grace at Appomattox Courthouse demonstrated empathy for the individuals who fought despite the disagreement of their position.  The United States was reborn into a more perfect union - not perfect, just a bit moreso, due to the struggles of the battles one hundred and fifty years ago.  

We continue, in fits and starts, to create and develop a more perfect union, establish justice and ensure domestic tranquility.  That progress is punctuated, however, with such skirmishes as denying access to the courts and the ballot box, two of the promises guaranteed to all Americans after the Civil War.  We honor our dead by keeping their promises to the living.  Otherwise, they all died in vain.  While that historical lens may appear to magnify the cost of denying Mr. Howell access to habeas review; it accurately reflects that when we ask people to fight and die for American values, we had better know what they are and the sacrifices the rest of us will make to ensure their perpetuity.  One lawyer missed one filing date; with the history of the great writ in the mirror, it is un-American to let another man's life act as payment for that error.