Judges - Habeas Corpus

Judges -- Habeas Corpus

A federal appeal of a state court conviction is known as a 'petition for a writ of habeas corpus.' There was a time when the federal courts were actually quite vigilant about protecting defendants' constitutional rights at the state level, and thus, granted petitions fairly regularly. (A granted petition typically means that if a new trial is not provided within ninety days, the prisoner must be released from custody.) Beginniyng in the 1970s, however, habeas access grew increasingly restricted. But the proverbial 'final nail in the coffin' was the passage of the so-called 'Anti-Terrorism and Effective Death Penalty Act' (AEDPA) in 1996. Despite its name, its primary 'achievement' was to effectively end habeas corpus for the vast majority of petitioners whose cases have nothing to do with either terrorism or the death penalty.

B29 [9] "Justice Harry Blackmun found the majority of the Supreme Court to be on a 'crusade to erect petty procedural barriers in the path of any state prisoner seeking review of his federal constitutional claims,' which resulted in a 'Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments to the vindication of federal rights.' Justice John Paul Stevens observed that 'the Court has lost its way in a procedural maze of its own creation' and 'grossly misevaluated the the requirements of "law and justice".' However, instead of pointing the way out of the maze, Congress created even more barriers to appellate review that will produce even more arbitrary and unjust results."

E8 [146] "By the time Congress seriously waded into the habeas corpus debate, the Court had already significantly scaled back the scope of the writ. [147] Nevertheless, the amendments Congress enacted in 1996 served to further constrict habeas corpus review.

"The AEDPA more severely altered habeas review than any previous legislation and was, at least in part, a product of the political climate in which it was passed. Specifically, the fear and anger that followed the Oklahoma City bombing provided lawmakers with justification and political cover for aggressive restrictions on the remedy."

[from FN116:] "(contending that, because AEDPA was passed in the wake of the bombing, it 'reflected a passion-fueled, extreme, and not well thought-out form of habeas corpus bashing')." *

[148] "The resulting legislation...has not been hailed as an epitome of sophisiticated statutory drafting..."

S6 [345] "In 1996...in the wake of the Oklahoma City bombing, Congress responded to long-voiced conservative criticisms of habeas corpus by sharply curtailing [346] the availability of the writ in several ways."

S16 [from FN240:] "(noting 'that in a world of silk purses and pigs' ears, the [AEDPA] is not a silk purse of the art of statutory drafting')" **

O3 [2351] "Although several legislators criticized the restrictions on successive habeas petitions as unrelated to terrorism, they were ultimately enacted in the [AEDPA] by an overwhelming majority."

[2352] "Floor debates also questioned the desirability of adopting a stringent standard for successive habeas petitions based on newly discovered evidence."

[from FN70:] "Senator Russell Feingold, who voted against the AEDPA, criticized the bill's stringent habeas reforms: 'The link between habeas corpus and keeping this nation safe from acts of terrorism is tenuous at best. . .Once again political expediency has obscured sound policy making.'" ***

"Despite these reservations, Congress packaked the clear and convincing standard along with other major habeas reforms as part of antiterrorism legislation, which made it virtually impossible for legislators to withhold support. Several legislators objected to the inclusion of hastily drafted habeas reforms that bore little relation to terrorism...Even President Clinton, who questioned the constitutionality of the restrictions on habeas review, succumbed to political pressure as he signed the AEDPA into law one week after it left Congress."

E8 [from FN116:] "Some members of Congress criticized the use of the [Oklahoma City] tragedy as justification [for the AEDPA]. See, e.g....(statements of Rep. Don Young) ('Shame on those who invoke the names of innocents slaughtered in Oklahoma City. . .in their quest to effectively abolish the writ of habeas corpus.')...('I feel strongly this legislation is a knee-jerk reaction to a most heinous crime.')" *****

H11 [from FN76; addressing the legislative history of the AEDPA's adoption:]

"Representative Wyatt, discussing the conference report, commented:

'By imposing this limitation, important new evidence, even new compelling evidence of one's innocence, can no longer be offered in a court to prove one's innocence. Compelling new evidence of one's innocence can no longer be offered, after that one bite within 1 year. We have seen the advances that our country has made in DNA, and DNA evidence is now coming forward to reveal that people who have been in jail for 10 years, 15 years, are being held unjustly, without any contradiction, and we are willing to compromise the most basic thing, innocence, for political expediency.' @

"In the same debate, Representative Pelosi noted:

'The habeas corpus provisions in this bill are dangerous to ordinary citizens. They increase the risk that innocent persons could be held in prison in violation of the constitution, or even executed. For the first time, a use it or lose it approach is being applied to a basic constitutional right. Constitutional rights are not time-bound, they are timeless or they are worthless. The bill before us mandates strict habeas corpus filing deadlines that ordinary citizens, especially those lacking financial resources, may not be able to meet.'" @@

O3 [2351] "[A] successive habeas petition alleging a constitutional violation in light of newly discovered evidence must prove that the evidence was previously unavailable despite due diligence, and that such evidence, when viewed in light of all the evidence, 'clearly and [2352] convincingly' proves that, but for a constitutional violation, no reasonable juror would have convicted the petitioner.

"Congress was fully aware that the clear and convincing evidence standard would increase the risk of imprisoning and punishing actually innocent individuals. Prior to the enactment of the AEDPA, Congress conducted several hearings in which leading criminal defense lawyers warned legislators that the clear and convincing standard poses a greater risk that innocent individuals would be convicted..."

C3 [7] "[H]abeas offers slim hope."

J4 [In this case, six boys, ages 8-16, claimed that a Long Island neighbor molested them over a period of four years:]

[225] "What we have here is a labyrinthine structure of modern habeas jurisprudence -- a sometimes befuddling conglomeration of procedural complexities, strict time limits and confounding case law -- which society expects prisoners to noctambulate [negotiate in the dark] without the guiding hand of counsel. It is no surprise that state prisoners -- or judges or lawyers themselves -- pursuing complex claims of error-ridden trials, should fail repeatedly to assert the proper claims in the proper manner at the proper times before the proper tribunal...A state prisoner seeking a writ of habeas corpus plays a giant game of Chutes and Ladders. Every advance through the court system holds the potential for significant frustration as the pro se petitioner tries to move through such bewildering hazards as time bars, exhaustion doctrine, procedural defaults, independent [226] and adequate state grounds, cause and prejudice, and mixed petitions. The prize in this game, even if skillfully played by an uncounseled, ill-educated and penurious player, is the reward of having his constitutional claims adjudicated on the merits in federal court. It is a prize not often won in this Sisyphean-like contest. And, even when the federal court is forced to consider the merits, the sought-after reward -- a 'Get Out of Prison' card -- is rarely granted."

P26 [1] "Federal habeas corpus review of state criminal convictions is desperately in need of reform. Experts have described the system as 'chaos,' an 'intellectual disaster area,' 'a charade,' 'so unworkable and perverse that reformers should feel no hesitation about scrapping large chunks of it.' The problems are easy to identify. Federal judges expend enormous amounts of [2] time reviewing habeas petitions from state prisoners, but much of that time is spent finding ways to dismiss the petitions on procedural grounds without ever addressing their merits. Even when a federal court addresses the merits, deferential standards of review all but ensure the state conviction will stand. In the extremely rare case where a federal court grants relief, the judgment comes years after the petitioner was wrongly imprisoned. By that point, the case has often been forgotten, and the state actors responsible for the underlying constitutional violation have often changed jobs. As a result, the federal decision effectively has no deterrent or reform value.

"The failure of federal habeas corpus to help correct problems in state criminal justice systems is particularly regrettable given evidence that states systematically violate criminal defendants' rights...In New York, courts routinely violate defendants' due process rights by misconstruing state procedural rules to prevent defendants from raising substantive federal violations."

[3] "[T]he federal habeas system is broken largely because of its resolute focus on individual petitioners. Reconfiguring federal habeas to focus on systemic state violations -- those that recur in a pattern across multiple cases -- could reduce waste and better protect defendants' rights while showing greater respect for autonomous state decision-making."

[11] "[F]ederal judges grant relief to noncapital [i.e., non-death-penalty] petitioners in less than 1 percent of cases

"Critically, the fact that federal judges ultimately deny almost all petitions for relief without considering their substantive merit means that the habeas system does not deter states from violating defendants' constitutional rights.'

A couple of quotes from the above article bear repeating:

'States systematically violate criminal defendants' rights.'

'Federal judges grant relief... in less than 1 percent of cases.'

H1 [793] "A recently completed empirical study, conducted by one of the co-authors of this Essay along with a team of researchers from the National Center for State Courts, has exposed the futility of habeas review. In 99.99% of all state felony cases -- excluding those in which the defendant is sentenced to death -- the time, money, and energy spent on federal habeas litigation is wasted, generating virtually no benefit for anyone. Noncapital federal habeas is, in essence a lottery, funded at great expense by taxpayers, open almost exclusively to the small group of state inmates who are sentenced to the longest prison terms, and producing almost no marginal increase in the enforcement of constitutional rights."

[809] "For the vast majority of the more than two million people now incarcerated in America, the Great Writ is a pipe dream."

Again, a couple of quotes from this article bear repeating:

'Federal habeas is, in essence a lottery...The Great Writ is a pipe dream."

B5 [832] "The once Great Writ of Habeas Corpus barely survives the blows that have rained upon it from the efforts of the Supreme Court and Congress to...achieve finality, and reduce friction between the state and federal courts."

E8 [131] "Historically, there was no statute of limitations for filing a habeas petition. Congress departed from this tradition by enacting the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) in the wake of the Oklahoma City bombing. One of AEDPA's most severe restrictions to habeas corpus is a one-year statute of limitations for original petitions."

[147] "[P]articularly with respect to the statute of limitations, AEDPA markedly departed from Supreme Court precedent."

I3 [Report on 500 Habeas Corpus cases]

[307] "In all, this project included 500 cases. The earliest was filed in 1996 and the latest in December 2002."

So, apparently, their mandate was to report on the 500 most recent habeas petitions in the Eastern District of New York. All of these were post the effective date of the AEDPA.

"Disposition of the cases as follows:

9 writs granted

380 dismissed as lacking sufficient merit

42 dismissed as time-barred

3 dismissed as second or successive

16 dismissed for failure to prosecute or as moot

3 consolidated with earlier petition

3 reassigned to original judge, as per request

44 closed administratively for exhaustion or otherwise unripe for review.

"In 68 cases, a certificate of appealability [to the Second Circuit Court of Appeals] was granted by this Court."

Therefore, the writ grant rate here was 1.8%, which actually appears to be significantly higher than the national average (post-AEDPA).

K11 [A different survey than the above]

(Executive Summary) [9] "Of the 2,384 non-capital filings examined, only 7 petitions received relief, a rate of 1 in every 341 cases filed, or 1 of every 284 cases terminated other than transfer.

"This grant rate is a decrease in the rate of relief prior to AEDPA, which was reported to be 1 in over 100 non-capital cases."

(Final Technical Report) [52] "Of the 2,384 [non-capital] cases in our random sample, only seven ended in a grant of relief for the petitioner...This is a[n] overall grant rate of 0.29%, or one out of every 341 cases filed...None of the cases ending in a grant raised a claim of innocence."

Comparing this grant rate (0.29%) with the one above (1.8%), although both are indeed quite small, the latter is, nevertheless, more than six times greater than the former. This may be because the Eastern District of New York (located in New York City) is more likely than average to grant petitions. Another possible explanation is the different time-frames these two studies covered. Whereas the '1.8%' one was conducted just after the effective date of the AEDPA, the latter was published approximately five years after that . Therefore, it may be that the grant rate continued to decline in the first few years after the effective date.

[53] "Of the terminated non-capital cases, 737 included a CoA [Certificate of Appealability] ruling. In 711 (96%) of cases, a CoA was denied on all claims; in only 26 (3.5%) did the judge grant a CoA on at least one claim."

[58] "The rate at which the writ is granted [in non-capital cases] has dropped. Prior to AEDPA, one in 100 cases resulted in relief. Our nationwide random sample of 2,384 filings (1,986 terminated, non-transferred cases) included only seven cases in which relief was granted, a rate of one in 284 cases."

S41 [897] "[T]he Antiterrorism and Effective Death Penalty Act...permits a federal habeas court to grant the writ only if a state court decision was 'contrary to, or involved an unreasonable application of, clearly established law, as determined by the Supreme Court of the United States.'"

[898] "The concept of objective-reasonableness, despite its name, is not objective at all. It turns on the court's subjective assessment of a concept that could not be vaguer: whether a decision reached by a state court, even if wrong to the mind of the federal judge, is nonetheless reasonable not simply in the sense that respected judges have reached it but in some [899] additional objective sense. Such a standard provides no basis other than the subjective assessment of the federal habeas court to gauge the reasonableness of a state court's decision.

"Rejecting all attempts to adopt objective standards or familiar review formulations, the [U.S. Supreme] Court reiterates, as if repetition could produce clarity, that objectively reasonable results must be upheld.

Lower federal courts have received no meaningful guidance, and their attempts to articulate logical approaches have been rejected out of hand. Whenever the Court denies the writ, its tone suggests that the lower federal courts should reject a petition whenever there is some plausible justification for the state decision. The many divided decisions in recent habeas cases, however, confirm that whenever an issue truly is debatable, one cannot predict how the Court will decide."

A11 [This paper was written by Lynn Adelman, U.S. District Judge for the Eastern District of Wisconsin.]

[5] [Referring to the 'K11' study above:]

"This amounts to one grant out of every 284 petitions or a grant rate of approximately 0.35%. This percentage represents a decline of about two-thirds from the grant rate in the 1970s. [That means that the above 1 in 284 grant figure is only 44% of what the grant rate was in the 1970s (.80% grant rate, or, 1 in every 125 petitions). But even the 1970s figure itself represented a significant drop from what it had been prior to the Burger Court (i.e., before 1969).] The grant rate is now so low that it can no longer be reasonably asserted that habeas corpus functions as 'the greatest of safeguards of personal liberty embodied in the common law.' Rather, the Great Writ is considerably diminished. The [above] Vanderbilt Study's findings reinforce my impression formed in ten years as a district judge that although many federal judges spend considerable time working on habeas petitions, they grant the writ extremely rarely and a substantial number go through entire careers without granting a writ.

"Of approximately 300 petitions that have come before me, I have conditionally granted eleven (i.e., ordered the state to release the petitioner unless it chose to retry him or provide him with a new appeal). In a twelfth case, I granted in part a pre-trial detainee's petition to [7] bar the state from retrying him. In response to a petition in which a state prisoner argued that a near five-year delay in the resolution of his state court appeal constituted a denial of due process, I ordered a hearing to determine whether the state had any reasonable explanation for the delay. The state then voluntarily released the prisoner on bail, and soon after, the state court of appeals reversed petitioner's conviction, mooting the habeas action.

"Thus, my grant rate is considerably higher than that found by the Vanderbilt Study, and I have no reason to believe that the petitions that I addressed were atypical. Nor did I grant relief profligately, and most of the grants survived. Of the twelve grants, the state appealed nine. Subsequently, the state voluntarily dismissed two appeals. The Seventh Circuit Court of Appeals affirmed four grants and reversed three. As to the reversals, the Seventh Circuit suggested that one was a close call and, in a second, adopted a rule that had previously been law only in the Second Circuit.

"Concerning the grounds for the grants, I granted two writs based on ineffective assistance of trial counsel, one based on denial of the right to a public trial, one based on denial of the right to present a defense, one based on the denial of the right to an impartial jury, two based on Miranda warnings, one based on the denial of the right to counsel of choice, three based on the denial of the right to counsel on appeal, and one based on denial of the right not to be placed in jeopardy twice for the same offense."

[15] "[AEDPA's] requirement that habeas corpus defer to 'reasonable' state court decisions, whether or not they are correct, is highly problematic."

"[R]easonableness review is problematic because, as former Senator [16] Joseph Biden put it, reasonableness is 'a heck of a standard to have to apply.'...Ultimately, reasonableness review permits each judge to grant or deny habeas petitions based on his own subjective understanding of constitutional rights and the nature of habeas review.

"This impression creates two additional, unfortunate side effects. First, it permits -- perhaps even encourages -- passivity on the part of judges. Rather than grappling with a difficult constitutional issue, the court may simply declare the state decision 'close enough' to deny the writ. Second, it drives constitutional protections for criminal defendants down to the lowest common denominator.

[20] "The identity of the judge is important in habeas corpus...The centrality of the philosophy of the judge to the resolution of habeas corpus is not new. In 1976, Professor David L. Shapiro studied habeas actions brought by state prisoners over a three-year period in the District of Massachusetts. He found that some judges treated habeas petitions as little more than a nuisance, summarily dismissing them or adopting a magistrate judge's recommendation without comment. However, others treated habeas petitions as worthy of consideration, and the most conscientious of them issued written decisions analyzing colorable constitutional questions, giving pro se litigants guidance as to curing defects in their petitions, and/or carefully examining magistrate judges' recommendations. Shapiro concluded that 'the exercise of habeas corpus jurisdiction [was]. . .a strong test of judicial sensitivity' and 'that the range of performance on this test could not have been much wider.'

"In 1979, Professor Paul H. Robinson conducted another study of habeas review of state court judgments and similarly concluded that different districts handled petitions very differently. In the Northern District of Illinois for example, judges granted 8.7% of petitions, whereas in the Norfolk Division of the Eastern District of [21] Virginia, they granted 0.05% of petitions. [That's 174 times less often.] While a few judges granted writs at double-digit rates, a substantial number granted none. Although at the time of Robinson's study the law made it easier for judges to grant writs than it does now, in every district he studied except one, one or more judges never granted a petition.

"Moreover, since Ronald Reagan's presidency, presidents of both the Democratic and Republican parties have tended to appoint judges who are conservative on criminal justice-related issues...On criminal justice issues such as search and seizure, there is almost no difference in decisions between Democratic and Republican appointees. There is likely little difference in habeas corpus cases, either.

"Thus, with respect to habeas corpus, it would not be an exaggeration to say that the factors discussed above (i.e., the decisions of the Burger and Rehnquist courts, the AEDPA, and the composition of the federal judiciary) have come together to create something of a perfect storm. The Supreme Court's procedural jurisprudence relating to habeas corpus creates numerous traps for unwary petitioners. The AEDPA makes it easy for judges to deny habeas petitions, and a large number of judges, either because of ideology or temperament or both, do just that.

"At its core, habeas review is about justice. It enables a federal court to correct constitutional mistakes and to vindicate not only the rule of law but our most important law, the Constitution...[I]n my experience, state courts sometimes [22] err when addressing federal constitutional issues. Habeas review exists to correct these errors, at least when the errors are so severe that they satisfy the AEDPA's heightened standard. Beyond merely correcting a single state court error, however, a properly granted writ has the potential to educate state courts and make future deprivations of constitutional rights less likely."

[26] "Because state courts err for the reasons stated above and others, our criminal justice system does not work well in the absence of rigorous habeas review. If federal courts do not perform the 'constitutional dirty work' that habeas review requires, defendants are deprived of their constitutional rights, and state courts are deprived of the benefits of the work of their federal colleagues."

[36] "I believe that rigorous federal habeas review is essential to ensuring that the protections of the Constitution are enforced, regardless of the identity of the defendant and the nature of the case."

Now to commentary and application of this most excellent essay to the Nickel case:

Because this paper was published in 2009, at which time the author indicated he'd been a federal judge for over ten years, this means that all of the cases he presided over were post- AEDPA. Therefore, he was subject to all the same AEDPA strictures that all federal judges today are subject to. Nevertheless, he effectively issued either 11 or 13 writs out of 300, which is a grant rate of 3.7-4.3%, figures which are 10 to 12 times higher than the above O.35% grant rate figure. An exhaustive search of legal databases was unable to uncover even a single habeas grant by Judge Thomas McAvoy (the federal district judge who 'heard' Nickel's appeal) post-AEDPA (and only one prior to it, on a relatively arcane basis that had little positive impact on the petitioner). One difference between Judge Adelman (the author of this essay) and Judge McAvoy is the fact that, whereas the former was nominated by Bill Clinton (a Democrat), the latter was nominated by Ronald Reagan (a Republican).

'Concerning the grounds for the grants, I granted two writs based on ineffective assistance of trial counsel...one based on the denial of a right to present a defense, one based on the denial of the right to an impartial jury, [and] two based on Miranda warnings.' Nickel's issues aligned with all of the above. The second of these concerns the denial of the photography expert testimony. The third was the denial of the right to an impartial judge . As to the fourth, Nickel was not given any Miranda warnings at all .

'I believe that rigorous habeas is essential to ensuring that the protections of the Constitution are enforced, regardless of the identity of the defendant or the nature of the case.'

Nickel's case was certainly the kind that was and is most in need of 'rigorous review.'

R23 [This paper was written by Stephen R. Reinhardt, Circuit Judge, U.S. Court of Appeals for the Ninth Circuit]

[1219] "The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades [ca. 1995-2015] from a vital guarantor of liberty into an instrument for ratifying the power of the state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been [1220] slowly eroded by a series of recent Supreme Court rulings that aim ultimately at eliminating that judicial method of protecting individual rights."

"[I]t is easy to lose sight of how we got here. It is convenient to blame it on inevitable historical or jurisprudential trends, or to insist that it followed necessarily from passage of the Antiterrorism and Effective Death Penalty Act (AEDPA).

"Whatever the virtues of the inevitability arguments, accuracy is not one of them. As a judge on the United States Court of Appeals for the Ninth Circuit...I have [1221] been an involuntary participant in the shaping of modern habeas law, although not in the form that I believe the Constitution demands. In my experience, the true story is not the version that apologists for the drastic reduction of the powers of the writ put forth. Rather, it is a tale defined by a series of highly questionable Supreme Court rulings that took a new statute, AEDPA -- misconceived at its inception and born of misguided political ambition -- and repeatedly interpreted it in the most inflexible and unyielding manner possible. Exalting notions of comity and finality above all else, and treating the constitutional rights at stake with the same lack of concern manifest elsewhere in their recent jurisprudence, the conservative justices who form the majority on the Supreme Court...embarked on a path designed to render constitutional rulings by state courts nearly unreviewable by the federal judiciary."

[1224] "Through a series of decisions that are highly questionable as a matter of statutory interpretation and have troubling constitutional implications, the [1225] [U.S. Supreme] Court has deliberately exacerbated the worst aspects of AEDPA. Specifically, the Court has in many instances forbidden federal courts to exercise meaningful review over legitimate constitutional claims, and has instead allowed erroneous constitutional decisions by state courts to stand in the name of comity."

S10 [218] "Historically, the relief valve for state prisoners was the federal courts. This was all but shut down by Congress under its 1996 Anti-Terrorism and Effective Death Penalty Act. In its zeal to achieve finality in death penalty [and all other criminal appeal] litigation, [219] Congress eviscerated the great writ of federal habeas corpus, the mechanism used for almost two hundred years by state prisoners who wanted a federal court to review the justice of their state convictions."

S19 [237] "According to one year-long study...before AEDPA restrictions were enacted, 'only 1% of federal habeas corpus petitions were granted and another 1% were remanded to state court.'"

The pre-AEDPA rate was 1-2%, and the post-AEDPA rate is about 0.29%. Therefore, the pre-AEDPA grant rate was somewhere between 3 and 7 times higher than it is now.

R7 "Ironically, in regard to federal habeas corpus, a congressional desire to speed along the execution of capitally sentenced prisoners has had its most dramatic effects on non-capitally sentenced convicted innocents, even though none of the policies that might justify the AEDPA rules in the case of capital sentences apply very strongly if at all to non-capitally sentenced prisoners. [from FN28:] One relevant oddity of the act is that it contains substantial limitations on district courts' review of petitions for federal habeas corpus...The main justification was to strip death-sentenced convicts (who have great motive to delay) of tools of delay, but this approach was applied universally to all convicts, even though most convicts have little motive to delay proceedings that might result in relief."

H11 [809] "Although federal judges are taking longer to resolve petitions, they ultimately reject almost all of them. The chances that a petitioner will obtain any relief are even more miniscule now than they were before AEDPA. The grant rate for noncapital cases dropped from 1% in the early 1990s to only O.34% today."

M15 [89] In the words of Professors Nancy King and Joseph Hoffmann, federal habeas review of state convictions has become futile, illusory, and so improbable as to be 'microscopic.' @@@ Indeed, these scholars regard the deterrence model of federal oversight [of state criminal procedures]...as nothing more than a misguided 'fairytale.'" @@@@

[96] "AEDPA'S bite...has gradually and systematically infected and undermined the federal habeas infrastructure...Based on empirical data I gathered, the 2007 empirical study funded by the U.S. Department of Justice, and, most importantly, doctrinal shifts in the law, this Article conclusively demonstrates that AEDPA has now developed into a major barrier to relief for state prisoners."

[105] "Wright and Miller...estimated, based on available studies, that [prior to the enactment of AEDPA,] no more than 4% of habeas petitioners were granted relief. @@@@@ ...The DOJ-funded 2007 study, by contrast, found that relief was granted in district courts in 0.35% of non-capital cases (7,196)...after AEDPA." #

W20 [from FN32:] "Nat Hentoff says that the [AEDPA] contains 'the most draconian restrictions on habeas corpus since Lincoln suspended the Great Writ during the Civil War...'...Senator Daniel Patrick Moynihan says the [AEDPA] would have 'confounded the Framers.'" ##

E8 [131] "Prior to [132] AEDPA, courts consistently recognized innocence exceptions for procedurally defaulted habeas corpus claims. The language of the statute, however, does not explicitly create an exception for innocence. Thus, federal courts faced with an innocent but tardy petitioner must decide whether to recognize an 'actual innocence exception' to the missed deadline."

[141] "In the years preceding AEDPA, innocence became the primary concern of the Supreme Court's jurisprudence...[142] In the mid-1970s, the Supreme Court began to restrict habeas corpus."

K6 [645] "One district judge in New York stated that '[i]f there is any core function of habeas corpus -- any constitutionally required minimum below which the scope of federal habeas may not be reduced -- it would be to free the innocent person unconstitutionally incarcerated.'" ###

J7 [69] "[F]ederal judges have found that they are powerless to grant relief even when they find evidence of actual innocence."

S19 [225] "The enactment of the Anti-Terrorism and Effective Death Penalty Act ('AEDPA') in 1996 exacerbated the plight of the 'actually innocent,' by [226] severely restricting the ability to seek habeas corpus review. AEDPA imposed a one-year statute of limitations on the ability to file a petition, making it next to impossible for the average claimant to have his or her claim reviewed on the merits, even in cases of actual innocence."

[228] "It is clear from the history and jurisprudence of habeas corpus that the 'equitable remedy' which restores liberty to the unjustly incarcerated was not subject to statutes of limitations. The fundamental purpose of habeas corpus is to correct miscarriages of justice and until enactment of AEDPA, statutes of limitations were not an impediment to this goal."

[234] "AEDPA's statute of limitations has unequivocally resulted in an injustice to prisoners."

W20 [919] "Congress erred when it enacted the [920] AEDPA...by making it more difficult for claims of innocence to be heard by federal courts..."

[925] "The group most disadvantaged by the federal courts' inability to hear claims of innocence are defendants...who present evidence of their innocence of a type that is not as conclusive as DNA."

Throughout this site, for purposes of brevity sources are abbreviated ('A1,' etc.). However the titles of some are so good, they bear repeating outside of the 'Bibliography' itself. The following is one of them:

"Missing the Forest for the Trees:

Federal Habeas Corpus and the Piecemeal Problem in Actual Innocence Cases"

H17 [75] "Rather than addressing the flaws in the criminal justice system exposed by the Innocence Movement...AEDPA seems to have exacerbated them...Those prisoners seeking relief using non-DNA evidence have been identified as the most adversely affected by this legislation... Thus, AEDPA [76] effectively rendered federal habeas corpus procedure a facade that appears to facilitate review of actual innocence claims without actually doing so."

H18 [2] "Rather than seeking to alter post-conviction procedure to more effectively address viable claims of innocence, AEDPA operated to radically restrict federal habeas review for prisoners. Nowhere is AEDPA's impact more devastating than in the context of factually innocent prisoners seeking review of their wrongful convictions.

"Under AEDPA's provisions...the standard for establishing innocence is onerous to the point of being virtually insurmountable. Indeed, of the first 250 DNA exonerations stemming from the Innocence Movement, not a single prisoner succeeded in raising a post-conviction claim of innocence via federal habeas corpus."

This last point bears repeating:

'Of the first 250 DNA exonerations stemming from the Innocence Movement, not a single prisoner succeeded in raising a post-conviction claim of innocence via federal habeas corpus.'

S16 [FN13:] "A recent study has indicated that federal courts rarely overturn convictions on habeas corpus review. The study concluded that federal courts grant less than one percent of habeas petitions brought by state prisoners...[I]t is estimated that no more than 0.4% of state prisoners committed to custody each year even file habeas petitions, and no more than 0.03% obtain relief..."

[346] "[In a Florida murder case, the appellant] appealed the dismissal of his habeas corpus petition to the Court of Appeals for the Eleventh Circuit, arguing that AEDPA's statute of limitations violated the Suspension Clause of the Constitution because it did not make an exception for an 'actually innocent' petitioner."

[371] "The only reference to habeas corpus in the United States Constitution appears in the Suspension Clause: 'The privilege of the Writ of Habeas Corpus shall not be suspended except in Cases of Rebellion or Invasion the public safety may require it.'"

M15 [87] "Undeterred by a robust and persistent academic commentary criticizing as constitutionally dubious the...AEDPA, the Supreme Court has consistently upheld...the [88] constitutionality of AEDPA's restrictions on federal habeas review of state criminal convictions."

[94] "AEDPA's reforms were, almost immediately, greeted by legal academe with a vast expression of fear and loathing. Professor James Liebman captured the sentiment of many academics on the topic: 'Dwarfed among the many unspeakable evils that [Timothy] McVeigh wrought is a speakable one. . .namely, the so-called Anti-Terrorism and Effective Death Penalty Act of 1996.' #### Stated more directly, there was a fear among [95] scholars and practitioners that AEDPA was effecting a sub rosa, procedural evisceration of the critical constitutional protections of the Bill of Rights..."

C3 [17] "According to a leading expert on habeas corpus, Professor Eric M. Freedman of Hostra Law School, 'it has never happened at the United States Supreme Court level that someone has been released on federal habeas grounds that he or she is innocent of the crime.' The Rehnquist [18] Court didn't find anything wrong when Congress eviscerated habeas corpus, thereby greatly reducing prisoners' ability to gain access to the federal courts for legal redress. As a result of such thinking and the stronger presumption of guilt that has arisen in executive, legislative, and judicial quarters, the incidence of wrongful convictions has likely increased, not diminished, in recent years..."

Again, one phrase from this article bears repeating:

'It has never happened at the United States Supreme Court level that someone has been released on federal habeas grounds [because] he or she is innocent of the crime.'

G12 [95] "The [U.S.] Supreme Court...summarily denied thirty petitions for certiorari filed by actually innocent exonerees."

W20 [919] "Congress erred when it enacted the [920] AEDPA...by requiring greater deference to state courts' legal conclusions."

[938] "I propose the federal courts review de novo even those innocence claims already presented to a state court. Simply put, another layer of review is needed because the stakes are so high."

"Critics have argued that federal habeas corpus should not be a forum for relitigating convictions. However, my view is that accuracy is more important than finality...[I]t is more important to get it right than it is to get it over with."

'It is more important to get it right than it is to get it over with.' In Nickel's case, after a trial lasting only two days, Judge Paul Czajka convicted Nickel after 'deliberating' just two minutes .

E8 [138] "Convinced that the need for individual justice outweighed the costs to federalism and finality, the Supreme Court expanded federal habeas corpus by permitting de novo reviews of state court decisions, allowing petitioners to raise claims via federal habeas corpus petitions that were not raised in state court, and providing for federal evidentiary hearings to examine the facts of convictions anew."

"[However, latter on,] the Burger and [138] Rehnquist Courts restricted habeas corpus review by creating procedural hurdles and requiring deference to state court decisions."

S16 [366] "[E]mpirical studies reveal that serious constitutional errors are passed over by state courts during postconviction review at a disturbingly high rate. Explanations for this phenomenon abound, including the argument that [367] most state judges are elected to the bench and are therefore prone to considering the political implications of their decisions."

K6 [from FN150:] "One commentator has noted that, 'if the state's trial system fails to protect an individual, it is important for habeas corpus to safeguard against the kind of injustice that can result. In fact, historical interpretation shows that Congress enacted the Habeas Corpus Act of 1867 to protect individuals against possible state abuse.'" #####

C10 "In 1986, the Supreme Court in Murray v. Carrier...explained that the principles of comity and finality 'must yield to the imperative of correcting a fundamentally unjust incarceration.'"

S10 "This 'reform' legislation [the AEDPA]...requires federal courts to presume state courts are right about many things that state courts are often wrong about."

J7 [69] "Under AEDPA, federal courts must be deferential to state court convictions."

D8 [696] "A final cause for concern about the dilution of federal habeas corpus relief involves the pariah status that most of the individuals involved carry with them...[T]here are few criminal defendants less popular than sex predators. These are the 'helpless, weak, outnumbered. . .victims of prejudice and public excitement' who, because of their unpopularity, depend upon the hope of additional impartiality from the judges hearing their cases."

In Nickel's case, 'additional impartiality was hardly what he got from Judge Paul Czajka , who simply ignored the fact that 'Arthur' was wrong about literally every detail regarding Nickel's home about which he testified, and refused to qualify a photography expert who established that Nickel was not the older person depicted in the sex photo. Nor was 'additional impartiality' forthcoming from Judge Karen Peters , one of the Third Department judges who 'heard' Nickel's appeal. During oral argument, she brushed aside appellate counsel's crucial point that Nickel's alleged 'statement' said nothing about the top three charges, with a sneering comment to the effect that: 'Don't pedophiles always minimize their conduct?' (And then there's Judge Thomas Breslin , who presided over pre-trial hearings. When Nickel wanted to be able to visit the local law library while out on bail (and on electronic monitoring), Breslin responded that he would only permit it if library officials were told what Nickel was charged with . Also, he found the (supposed) 'accuracy' of Nickel's statement made it -- ipso facto -- 'voluntary.' )

D8 [696] "As one commentator has described the federal judicial role, 'Article III judges are expected to protect the unpopular classes of society. The writ of habeas corpus allows federal judges to do just that. Judges should not interpret AEDPA so as to strip this power from the federal courts.'"

J7 [70] [As one federal judge wrote:] "'[S]ince AEDPA review is so restrictive, it is not an effective procedure for correcting prosecutorial misconduct.'"

W20 [935] "[P]rosecutorial misconduct is a claim that requires factual development. Thus, it...is only rarely raised appropriately [936] during the habeas review process. There are also strong policy reasons why claims of misconduct by prosecutors need to be reviewed de novo by federal courts. First, in many jurisdictions, there is a close relationship between prosecutors and judges, making some judges reluctant to conclude that a prosecutor committed misconduct. Second, because of the discretion accorded to prosecutors, it is imperative that misconduct be deterred. Misconduct by prosecutors virtually cannot be deterred; the only truly effective deterrence is to throw out convictions whenever misconduct occurs...Strong federal review of prosecutorial misconduct would send a signal that misconduct will not be tolerated. Thus, the AEDPA needs to be amended so that federal courts are empowered to review de novo claims of prosecutorial misconduct."

R16 [1] "Rubin 'Hurricane' Carter was a top middleweight boxing contender in the early 1960s. Carter, twice convicted of a triple homicide in New Jersey and sentenced to three life sentences, was released after almost nineteen years in prison when a federal court found that his convictions were obtained in violation of his constitutional rights. After his release and ultimate exoneration, Rubin Carter devoted himself to assisting others who were falsely accused and unjustly incarcerated. This past spring, he died [2] of cancer at the age of seventy-six.

"A federal court set aside Rubin Carter's conviction in 1985, eleven years before the passage of the Antiterrorism and Effective Death Penalty Act... Had AEDPA been the law in 1985, Carter would not have been freed. He would have died in prison after serving nearly forty-eight years for a crime he did not commit. Because of AEDPA, there is a grave risk that individuals wrongly convicted in state courts -- the Rubin Carters of today -- have little hope for meaningful review by a federal court."

[10] "Carter and Artis' [his co-defendant] habeas corpus petitions were heard by United States District Court Judge H. Lee Sorokin. He granted them relief in November 1985. At the time, Judge Sarokin was required by law to review the petitioners' constitutional claims about their state court convictions, de novo. In other words, he was to independently apply federal law to the facts and decide if, in his view, there was a constitutional violation. Many aspects of habeas corpus law changed when the [AEDPA] was signed into law by President Clinton in 1996. One of, if not the most significant change was the elimination or de novo review. Today, federal courts must give a measure of deference to the state court's resolution of federal issues."

[from FN129:] "142 CONG. REC. H3601 (statement of Rep. Kennedy)...'Habeas corpus has nothing to do with an antiterrorism bill.'). See also remarks of Congressman Watt of North Carolina that, 'we cannot sacrifice our constitutional principles because are are angry at people for 'bombing'; 142 CONG. REC. H3602...' 141 CONG. REC. S7808-09 (daily ed. June 7, 1995) (statement of Sen. Kennedy) (complaining that AEDPA, 'goes far beyond terrorism and far beyond Federal prisoners. It is wrong to sneak [limits on access to habeas writs by state prisoners] into an antiterrorism bill that we all want to pass as quickly as possible')."

[19] "Now, [20] almost twenty years after AEDPA was enacted, it is difficult to imagine anyone persuasively arguing that habeas corpus restrictions have made us safer from violent acts, much less from act of terrorism. They have, however, made us much less safe from the danger of wrongful convictions."

----- * Anthony G. Amsterdam, Foreword, in Randy Hertz & James S. Liebman, 1 Federal Habeas Corpus Practice and Procedure, vi (5th ed. 2005).

** Lindh v. Murphy, 521 U.S. 320, 337 (1997).

*** 142 Cong. Rec. S3462 (daily ed. Apr. 17, 1996).

**** [FN73:] See statement on Signing the Antiterrorism and Effective Death Penalty Act of 1996, 1 Pub. Papers 630, 631 (Apr. 24, 1996).

***** 142 Cong. Rec. 7965, 7972.

@ 142 Cong. Rec. H3602 (daily ed. April 18, 1996).

@@ 142 Cong. Rec. H3614 (daily ed. April 18, 1996).

@@@ [FN8:] Nancy J. King & Joseph L. Hoffmann, Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ 81-84 (2011).

@@@@ [FN9:] Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791, 848 (2009).

@@@@@ [FN63:] Martin A. Schwartz: The Preiser Puzzle: Continued Frustrating Conflict Between the Civil Rights and Habeas Corpus Remedies for State Prisoners, 37 DePaul L. Rev. 85, 103 n. 108 (1988) (citing Wright & Miller, Practice and Procedure §3261 (1981)).

# [from FN65:] "Nancy J. King et al., Final Technical Report: Habeas Litigation in U.S. District Court: An Empirical Study of Habeas Corpus Cases Filed by State Prisoners Under the Antiterrorism and Effective Death Penalty Act of 1996: 64 (2007)."

## Nat Hentoff, Clinton Screws the Bill of Rights: The Worst Civil Liberties President Since Nixon, Village Voice, Nov. 5, 1996, at 12.

### [from FN124:] "Alexander v. Keane, 991 F.Supp. 329, 338 (S.D.N.Y. 1998)."

#### [FN27:] James S. Liebman, An "Effective Death Penalty"? AEDPA and Error Detection in Capital Cases, 67 Brook. L. Rev. 411, 411-412 (2001).

##### [David M.] Bradley, [Schlup v. Delo: The Burden of Showing Actual Innocence in Habeas Corpus Review and Congress' Effort at Reform, 23 New Eng. J. on Crim. & Civ. Confinement 463], at 487.