Supreme Court Imposes New Restrictions on Habeas Corpus


United States Supreme Court

Over the past half-century, the United States Supreme Court and Congress have dramatically restricted the availability of habeas corpus. The Warren court expanded the ability of those convicted in state court to raise constitutional issues in federal court on habeas corpus, but since then the court has created numerous restrictions. These include imposing strict exhaustion requirements, limiting habeas corpus to already existing constitutional rights, preventing Fourth Amendment claims from being challenged on habeas corpus, and preventing to raise issues that have not been argued in state court.

In 1996, Congress went even further in the Anti-Terrorism and Effective Death Penalty Act to significantly limit habeas corpus. It imposed a one-year statute of limitations on habeas petitions, limited a prisoner to only one petition challenging a conviction, and created a restrictive standard as to when habeas petitions can be granted. Over the past quarter century, the Supreme Court has consistently interpreted this law to make it increasingly difficult to grant a habeas petition.

The Warren Court was driven by the vision that habeas corpus should be available to those who claim to have been convicted or sentenced in violation of the Constitution. But his more conservative successors and congressmen questioned the need for habeas corpus once someone had the opportunity to argue their claims in state court, and they were very concerned that it would leave the guilty in freedom.

Two recent Supreme Court decisions — both, unsurprisingly, 6-to-3 decisions divided along ideological lines — impose new restrictions on habeas corpus. And one of them suggests that the court could go even further in limiting habeas corpus. Indeed, if the reasoning of Judge Neil Gorsuch in Brown v. Davenport is followed, it will virtually eliminate the ability of convicted persons to bring a petition for habeas corpus.

Shinn vs. Ramirez

The Supreme Court has held that the Sixth Amendment right to counsel includes the right to effective counsel. But studies show and observation confirms that many defendants are grossly deficient in representation. Some states, however, prevent claims of ineffective counsel from being raised on direct appeal. The first time they can be presented in state court is on a post-conviction petition for relief, such as a habeas petition filed in state court under United States law. State.

What happens, however, if the attorney does not properly raise the allegation of ineffective assistance of counsel in the state’s post-conviction proceedings? Is the failure to raise this issue a procedural flaw that prevents the claim from being raised in a federal habeas corpus petition? If so, then a convicted person, even with obviously deficient representation, would never have a chance to be heard in federal court.

In Martinez v. Ryan (2012), the court came to the common-sense conclusion that claims for ineffective assistance of counsel can be raised under federal habeas corpus if they could not be raised in a federal court. state on direct appeal and if they were not presented in post-conviction state proceedings. . But what if the Federal Court must hold an evidentiary hearing to determine whether there was ineffective assistance from counsel? In Shinn vs. Ramirez, the court held that this is generally not possible; the federal court must rely solely on the evidentiary record of the proceedings in state court.

Shinn vs. Ramirez, decided on May 22, involved two defendants who had been convicted of murder in an Arizona state court. Arizona does not allow ineffective assistance of direct appeal attorney claims. In these cases, the issue was not raised in an Arizona court in post-conviction proceedings. Both defendants sought to raise the habeas corpus claims in federal court on the basis of Martinez v. Ryan. In each case, the federal district court allowed the habeas petitioner to present additional evidence to support the allegation of ineffective attorney assistance. In one case, the new evidence showed a likelihood that the accused was in fact innocent.

But the Supreme Court, in an opinion by Justice Clarence Thomas, ruled that holding the hearings was inadmissible. Judge Thomas began by saying that “the availability of habeas relief is narrowly circumscribed”. He said habeas corpus “infringes on state sovereignty” by allowing perpetrators to go free and “imposes significant costs on state criminal justice systems.”

The court focused on a provision enacted as part of the Effective Anti-Terrorism and Death Penalty Act, 28 USC Section 2254(e)(2), which severely limits the ability of federal courts to hold hearings on the ‘habeas corpus. The court said this applies even where there is an allegation of ineffective legal assistance that could not have been raised earlier. Federal court is limited to the state court record and cannot consider additional evidence, even when it may show, as in one of the cases before it, that the defendant is innocent of the crime. for which he was sentenced to death.

Justice Sonia Sotomayor wrote a dissent, joined by Justices Stephen Breyer and Elena Kagan. She said the court’s decision ‘reversed almost all the rules’ Martinez v. Ryan because it will almost always require additional evidence to demonstrate the ineffectiveness of the assistance of a lawyer. She lamented that the court was “making Sixth Amendment protections illusory.” She wrote, “The court’s decision will leave many convicted violators of the Sixth Amendment facing incarceration or even execution with no real chance of pursuing their right to counsel.”

Brown v. Davenport

Ervine Davenport has been tried for murder in Michigan. During his trial, he was shackled at the hands, waist and ankles. It is unclear whether this was visible to the jury. In Deck vs. Missouri (2005), the court held that due process prohibits chaining an accused at trial in the absence of “special need”. In habeas corpus, Davenport argued that his conviction violated due process because the trial court had not found special need.

In Brecht v. Abrahamson (1993), the court held that a state prisoner seeking to challenge his federal habeas corpus conviction must demonstrate that the error had a “substantial and prejudicial effect or influence” on the outcome of his trial. The question in Brown v. Davenport was whether this is sufficient or whether the habeas applicant must also meet the requirement created in the Effective Anti-Terrorism and Death Penalty Act, 28 USC Section 2254(d) and demonstrate that the conviction was (1) “contrary to” or an “unreasonable application of clearly established federal law”, as determined by Supreme Court decisions, or (2) based on an “unreasonable determination of the facts” presented in the legal proceeding of State.

In Brown v. Davenportthe court held that a habeas petitioner must meet both the prejudicial error standard of Brecht v. Abrahamson and the requirements of Section 2254(d). Judge Gorsuch, writing for a majority of six judges, went further and suggested that habeas corpus should only be available in cases where the court lacked jurisdiction to try the accused. Judge Gorsuch said that historically, “generally an inmate could not use it to challenge a final judgment of conviction rendered by a court of competent jurisdiction”.

Justice Gorsuch noted that in Brown v. Allen (1953), the court changed the law to allow a person convicted in state court to pursue constitutional claims under federal habeas corpus. As he had done a year earlier, during a competition Edwards v. Vannoy (2021), Justice Gorsuch suggested that Brown v. Allen was badly decided. Here, however, five judges join him. This may just be part of the explanation for why the court is restrictive and requires the Brecht versus Abrahamson harmful error standard and the requirements of section 2254(d) are met. Or perhaps it portends an even more dramatic change in habeas corpus law in the future.

If the habeas merely argues that the trial court lacked jurisdiction, it will effectively be eliminated. This was the main concern of the dissenting judges. Justice Kagan wrote a dissent, joined by Justices Breyer and Sotomayor. Justice Kagan said: “Because the majority begins with a little history of the chambers of justice, so do I, although a fair warning: my discussion is no more relevant than that of the majority on the question of which we are seized. … The majority, uninvited, embark on this project, perhaps hoping that the seeds they sow now will produce more luscious fruit in future instances. She said that “Judge Gorsuch’s theory, at its core, is wrong. Federal courts long before Brown extended the remedy of habeas to prisoners detained in violation of the Constitution, even after a final conviction”. She reviewed the history of habeas corpus and said that “unlike the majority, our decision in Brown built on decades and decades of history.

The dissent also argued that, based on precedent and statutory interpretation, once a prejudicial error has been demonstrated under Brechtit should not be necessary to satisfy the requirements imposed by the law against terrorism and the effectiveness of the death penalty.

These two cases reveal profoundly different views on the role of habeas corpus. Conservative justices seek to significantly limit it through judicially created doctrines and by enforcing restrictions created by Congress in anti-terrorism and effective death penalty law. They see it as an affront to state courts and a way for dangerous and guilty people to free themselves. In contrast, liberal justices view habeas corpus as an essential means of ensuring that no one is imprisoned or executed in violation of the Constitution. They want the federal courts to be available to fix constitutional violations. These two 6-3 decisions reflect exactly this division on the current field.


Erwin Chemerinsky is Dean of the University of California at Berkeley School of Law. He is an expert in constitutional law; federal practice; civil rights and civil liberties; and appeal litigation. He is the author of several books, including The case against the Supreme Court (Viking, 2014) and Religious Clauses: Arguments for the Separation of Church and State, written with Howard Gillman (Oxford University Press, 2020). His latest book is Presumed Guilty: How the Supreme Court Empowered Police and Overturned Civil Rights (Liveright, 2021).


This column reflects the opinions of the author and not necessarily the views of the ABA Journal or the American Bar Association.

Previous Activists say abortion rights are tied to same-sex marriage rights. : NPR
Next It could be a summer of protests. Do they make a difference?