Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Federal courts can hear challenges to state criminal convictions pursuant to petitions for a writ of habeas corpus. While early Supreme Court cases interpreted that authority narrowly, subsequent cases allowed for broader federal review of state court convictions. More recently, however, the Court has adopted a more limited approach to habeas review, and Congress has also enacted legislation limiting federal habeas review of state convictions.

At English common law, the writ of habeas corpus was available to attack pretrial detention and confinement by executive order; it could not be used to question the conviction of a person pursuant to the judgment of a court with jurisdiction over the person. In early cases, the Supreme Court applied the common law understanding of the writ.1 After the Civil War, the Court adopted a broader view of when a court lacked jurisdiction over a petitioner. Thus, in the 1874 case, Ex Parte Lange, a person who had already completed one sentence on a conviction was released from custody on a second sentence on the ground that the court had lost jurisdiction upon completion of the first sentence.2 In the 1880s, the Court held that the constitutionality of the statute upon which a charge was based could be examined on habeas, because an unconstitutional statute was said to deprive the trial court of its jurisdiction.3 Other cases expanded the want-of-jurisdiction rationale.4

The Court started developing its modern approach to the writ of habeas corpus in the 1915 case Frank v. Mangum,5 in which the Court reviewed on habeas a murder conviction in a trial in which there was substantial evidence of mob domination of the judicial process. This issue had been considered and rejected by the state appeals court. The Supreme Court indicated that, though it might initially have had jurisdiction, the trial court could have lost it if mob domination rendered the proceedings lacking in due process. The Court further held that, in order to determine if there had been a denial of due process, a habeas court should examine the totality of the process, including the appellate proceedings. Because the state appellate court had reviewed fully and rejected Frank’s claim of mob domination, the Court held he had been afforded an adequate corrective process for any denial of rights, and his custody did not violate the Constitution.6 Eight years later, in Moore v. Dempsey,7 a case involving another conviction in a trial in which the court was alleged to have been influenced by a mob and in which the state appellate court had heard and rejected Moore’s contentions, the Court directed that the federal district judge himself determine the merits of the petitioner’s allegations.

In later cases, the Court abandoned its emphasis upon want of jurisdiction and held that the writ was available to consider constitutional claims as well as questions of jurisdiction.8 The landmark case was Brown v. Allen,9 in which the Court laid down several principles of statutory construction of the habeas statute. First, all federal constitutional questions raised by state prisoners are cognizable in federal habeas. Second, a federal court is not bound by state court judgments on federal questions, even though the state courts may have fully and fairly considered the issues. Third, a federal habeas court may inquire into issues of fact as well as of law, although the federal court may defer to the state court if the prisoner received an adequate hearing. Fourth, new evidentiary hearings must be held when there are unusual circumstances, when there is a “vital flaw” in the state proceedings, or when the state court record is incomplete or otherwise inadequate.

The Supreme Court authorized almost plenary federal habeas review of state court convictions in its famous “1963 trilogy.” 10 First, in Townsend v. Sain, the Court dealt with the established principle that a federal habeas court is empowered, where a prisoner alleges facts which if proved would entitle him to relief, to relitigate facts, to receive evidence and try the facts anew, and sought to lay down broad guidelines as to when district courts must hold a hearing and find facts.11 The Court stated: “Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.” 12 To “particularize” this general test, the Court further held that an evidentiary hearing must take place when (1) the state hearing did not resolve the merits of the factual dispute; (2) the record as a whole does not fairly support the state factual determination; (3) the state court’s fact finding procedure did not afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state hearing; or (6) the state trier of fact did not appear to afford the habeas applicant a full and fair fact hearing.13

Second, Sanders v. United States14 dealt with two interrelated questions: how to address successive petitions for the writ, when the second or subsequent application presented grounds previously asserted or not previously raised. Emphasizing that “[c]onventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged,” 15 the Court established generous standards for considering successive claims. As to previously asserted grounds, the Court held that courts may give controlling weight to a prior denial of relief if (1) the court had previously found against the applicant on the applicant’s ground for relief, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by revisiting the determination,16 so that the habeas court might but was not obligated to deny relief without considering the claim on the merits.17 With respect to grounds not previously asserted, a federal court considering a successive petition could refuse to hear the new claim if it decided the petitioner had deliberately not raised it in the prior proceeding; if not, the Court noted, “[n]o matter how many prior applications for federal collateral relief a prisoner has made,” the court must consider the merits of the new claim.18

Third, in Fay v. Noia,19 the Court considered the issue of state defaults—that is, the effect on habeas when a defendant in a state criminal trial has failed to raise, in accordance with state procedure, a claim that he subsequently wants to raise on habeas. If, for example, a defendant fails to object to the admission of certain evidence on federal constitutional grounds in accordance with state procedure and within state time constraints, the state courts may therefore simply refuse to address the merits of the claim, and the state’s “independent and adequate state ground” bars direct federal review of the claim.20 Whether a similar result was required in habeas proceedings divided the Court in Brown v. Allen,21 in which the majority held that a prisoner, whose appeal a state court had refused to hear because his papers had been filed a day late, could not be heard on habeas because of his state procedural default. The Court reached a different result in Fay v. Noia, holding that the adequate and independent state ground doctrine limited the Court’s appellate review, but not its habeas review. A federal court has power to consider any claim that has been procedurally defaulted in state courts.22 Still, the Court recognized that the states had legitimate interests that were served by their procedural rules, and that it was important that state courts have the opportunity to afford a claimant relief to which he might be entitled. Thus, a federal court had discretion to deny a habeas petitioner relief if it found that he had deliberately bypassed state procedure and intentionally waived his right to pursue his state remedy.23

Liberalization of the writ thus made it possible for convicted persons who had fully litigated their claims at state trials and on appeal, who had lacked the opportunity to have their claims reviewed due to procedural default, or who had been heard at least once on federal habeas, to have the chance to present their grounds for relief to a federal habeas judge. In addition to opportunities to relitigate the facts and the law relating to their convictions, prisoners could also take advantage of new constitutional decisions that were retroactive. The filings in federal courts increased year by year, but the numbers of prisoners who in fact obtained either release or retrial remained quite small. However, expansion of the writ generated opposition from state judges and state law enforcement officials and stimulated many efforts in Congress to enact restrictive habeas amendments.24 The efforts were unsuccessful and, following changes in the composition of the Supreme Court, the Court adopted a more limited view of when habeas relief should be available.

In the 1977 case Wainwright v. Sykes, then-Justice William Rehnquist emphasized that the Court has significant discretion whether to award habeas relief.25 After reviewing the case law on the 1867 statute, Justice Rehnquist remarked that the history “illustrates this Court’s historic willingness to overturn or modify its earlier views of the scope of the writ, even where the statutory language authorizing judicial action has remained unchanged.” 26 From early on, the Court has emphasized the equitable nature of the habeas remedy and the Judiciary’s responsibility to guide the exercise of that remedy in accordance with equitable principles; thus, time and again, the Court has underscored that the federal courts have plenary power under the statute to implement it to the fullest while the Court’s decisions may deny them discretion to exercise the power.27

Supreme Court cases since the 1970s have made several changes to the law related to habeas corpus relief. These cases generally reflect a departure from the 1963 trilogy and a narrowing view of when federal courts should undertake habeas review of state law criminal convictions.

First, the Court in search and seizure cases has returned to the standard of Frank v. Mangum, holding that where the state courts afford a criminal defendant the opportunity for a full and adequate hearing on his Fourth Amendment claim, his only avenue of relief in the federal courts is to petition the Supreme Court for review and that he cannot raise those claims again in a habeas petition.28 Grounded as it is in the Court’s dissatisfaction with the exclusionary rule, the case has not been extended to other constitutional grounds,29 but the rationale of the opinion suggests the likelihood of reaching other exclusion questions.30

Second, the Court has formulated a “new rule” exception to habeas cognizance. That is, subject to two exceptions,31 a case decided after a petitioner’s conviction and sentence became final may not be the predicate for federal habeas relief if the case announces or applies a “new rule.” 32 A decision announces a new rule “if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” 33 Explaining this the court noted that if a rule “was susceptible to debate among reasonable minds,” it could not have been dictated by precedent, and therefore it must be classified as a “new rule.” 34

Third, the Court has largely maintained the standards of Townsend v. Sain, as embodied in somewhat modified form in statute, with respect to when federal judges must conduct an evidentiary hearing. However, the Court has overturned one Townsend factor, not expressly set out in the statute, in order to bring the case law into line with other decisions. Townsend had held that a hearing was required if the material facts were not adequately developed at the state-court hearing. If the defendant had failed to develop the material facts in the state court, however, the Court held that, unless he had “deliberately bypass[ed]” that procedural outlet, he was still entitled to the hearing.35 In Keeney v. Tamayo-Reyes, the Court overruled that point and substituted a much stricter “cause-and-prejudice” standard.36

Fourth, the Court has significantly stiffened the standards governing when a federal habeas court should entertain a second or successive petition filed by a state prisoner—a question at issue in Sanders v. United States.37 A successive petition may be dismissed if the same ground was determined adversely to petitioner previously, the prior determination was on the merits, and “the ends of justice” would not be served by reconsideration. It is with the latter element that the Court has become more restrictive. A plurality in Kuhlmann v. Wilson38 argued that the “ends of justice” standard would be met only if a petitioner supplemented her constitutional claim with a colorable showing of factual innocence. While the Court has not expressly adopted this standard, a later capital case utilized it, holding that a petitioner sentenced to death could escape the bar on successive petitions by demonstrating “actual innocence” of the death penalty by showing by clear and convincing evidence that no reasonable juror would have found the prisoner eligible for the death penalty under applicable state law.39

Even if the subsequent petition alleges new and different grounds, a habeas court may dismiss the petition if the prisoner’s failure to assert those grounds in the prior, or first, petition constitutes “an abuse of the writ.” 40 Following the 1963 trilogy and especially Sanders, the federal courts had generally followed a rule excusing the failure to raise claims in earlier petitions unless the failure was a result of “inexcusable neglect” or of deliberate relinquishment. In McClesky v. Zant,41 the Court construed the “abuse of the writ” language to require a showing of both “cause and prejudice” before a petitioner may allege in a second or later petition a ground or grounds not alleged in the first. In other words, to avoid subsequent dismissal, a petitioner must allege in his first application all the grounds he may have, unless he can show cause, some external impediment, for his failure and some actual prejudice from the error alleged. If he cannot show cause and prejudice, the petitioner may be heard only if she shows that a “fundamental miscarriage of justice” will occur, which means she must make a “colorable showing of factual innocence.” 42

Fifth, the Court abandoned the rules of Fay v. Noia, although it was not until 1991 that it expressly overruled the case.43 Fay raised the question of when a petitioner may present a claim in federal habeas proceedings that was not properly raised during state proceedings. The answer in Fay was that the federal court always had power to review the claim but that it had discretion to deny relief to a habeas claimant if it found that the prisoner had intentionally waived his right to pursue his state remedy through a “deliberate bypass” of state procedure.

That is no longer the law. Instead the Court has now held,

The “miscarriage-of-justice” element is probably limited to cases in which actual innocence or actual impairment of a guilty verdict can be shown.45 The concept of “cause” excusing failure to observe a state rule is extremely narrow; “the existence of cause for procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” 46 As for the “prejudice” factor, it is an undeveloped concept, but the Court’s only case establishes a high barrier.47

The Court continues, with some modest exceptions, to construe habeas jurisdiction restrictively; Congress has also enacted legislation restricting the availability of habeas relief. In Herrera v. Collins,48 the Court appeared to take the position that, although a showing of actual innocence is required to permit a claimant to bring a successive or abusive petition, a claim of innocence alone is not sufficient to enable a claimant to obtain review of his conviction on habeas. Petitioners are entitled in federal habeas courts to show that they are imprisoned in violation of the Constitution, not to seek to correct errors of fact. But a claim of innocence does not bear on the constitutionality of a person’s conviction or detention, and the execution of a person claiming actual innocence would not, by this reasoning, violate the Constitution.49 In a subsequent part of the opinion, however, the Court assumed for the sake of argument that “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional,” and it imposed a high standard for making this showing.50

In Schlup v. Delo,51 the Court adopted the plurality opinion of Kuhlmann v. Wilson and held that, absent a sufficient showing of “cause and prejudice,” a claimant filing a successive or abusive petition must, as an initial matter, make a showing of “actual innocence” so as to fall within the narrow class of cases implicating a fundamental miscarriage of justice. The Court divided, however, with respect to the showing a claimant must make. The dissenters argued for one standard, which would require that “to show ‘actual innocence’ one must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty.” 52 The Court adopted a second standard, under which the petitioner must demonstrate that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” To meet this burden, a claimant “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” 53

In the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),54

, Title I, 110 Stat. 1217–21 (codified as amended at 28 U.S.C. §§ 2244, 2253, 2254, and Rule 22 of the Federal Rules of Appellate Procedure. Congress imposed tight new restrictions on successive or abusive petitions, including making the circuit courts “gate keepers” in permitting or denying the filing of such petitions, with bars to appellate review of these decisions. The Supreme Court rejected a constitutional challenge to portions of AEDPA in Felker v. Turpin.55 One important restriction in AEDPA bars a federal habeas court from granting a writ to any person in custody under a judgment of a state court “with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 56 The Court has made the significance of this restriction plain: Instead of assessing whether federal law was correctly applied de novo, as would be the course under direct review of a federal district court decision, the proper approach for federal habeas relief under AEDPA is the more deferential one of determining whether the Court has established clear precedent on the issue contested and, if so, whether the state’s application of the precedent was reasonable, i.e., whether a fairminded jurist could find that the state acted in accord with the Court’s established precedent.57

Footnotes

1

Ex parte Watkins, 28 U.S. (3 Pet.) 193 (1830) (Marshall, C.J.); cf. Ex parte Parks, 93 U.S. 18 (1876). But see Fay v. Noia, 372 U.S. 391, 404–415 (1963). The expansive language used when Congress in 1867 extended the habeas power of federal courts to state prisoners “restrained of . . . liberty in violation of the constitution, or of any treaty or law of the United States . . . ,” could have encouraged an expansion of the writ to persons convicted after trial. Habeas Corpus Act of 1867, 14 Stat. 385.

2

Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874).

3

Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Royall, 117 U.S. 241 (1886); Crowley v. Christensen, 137 U.S. 86 (1890); Yick Wo v. Hopkins, 118 U.S. 356 (1886).

4

Ex parte Wilson, 114 U.S. 417 (1885); In re Nielsen, 131 U.S. 176 (1889); In re Snow, 120 U.S. 274 (1887); but see Ex parte Parks, 93 U.S. 18 (1876); Ex parte Bigelow, 113 U.S. 328 (1885). It is possible that the Court expanded the office of the writ because its reviewing power over federal convictions was closely limited. Frankfurter & Landis, Power of Congress Over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts—A Study in Separation of Powers, 37 Harv. L. Rev. 1010, 1016–1023 (1924). Once such review was granted, the Court began to restrict the use of the writ. E.g., Glasgow v. Moyer, 225 U.S. 420 (1912); In re Lincoln, 202 U.S. 178 (1906); In re Morgan, 203 U.S. 96 (1906).

5

237 U.S. 309 (1915).

6

Id.

7

261 U.S. 86 (1923).

8

Walker v. Johnston, 312 U.S. 275 (1941). See also Johnson v. Zerbst, 304 U.S. 458 (1938).

9

344 U.S. 443 (1953). Brown coincided with the extension of most of the Bill of Rights to the states by way of incorporation and expansive interpretation of federal constitutional rights; previously, there was not a substantial corpus of federal rights to protect through habeas. See Wright v. West, 505 U.S. 277, 297–99 (1992) (O’Connor, J., concurring). In Fay v. Noia, 372 U.S. 391 (1963), Justice William Brennan, for the Court, and Justice John Harlan, in dissent, engaged in a lengthy, informed historical debate about the legitimacy of Brown and its premises. Compare id. at 401–24, with id. at 450–61. See the material gathered and cited in L. Hand, The Bill of Rights (1958); H. Wechsler, Principles, Politics, and Fundamental Law: Selected Essays 1220–1248 (1961).

10

Sanders v. United States, 373 U.S. 1 (1963); Fay v. Noia, 372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 293 (1963). These cases dealt, respectively, with the treatment to be accorded a habeas petition in the three principal categories in which they come to the federal court: when a state court has rejected petitioner’s claims on the merits, when a state court has refused to hear petitioner’s claims on the merits because she has failed properly or timely to present them, or when the petition is a second or later petition raising either old or new, or mixed, claims. Of course, as will be demonstrated infra, these cases have now been largely drained of their force.

11

Townsend v. Sain, 372 U.S. 293, 310–12 (1963). If the district judge concluded that the habeas applicant was afforded a full and fair hearing by the state court resulting in reliable findings, the Court said, he may, and ordinarily should, defer to the state factfinding. Id. at 318. Under the 1966 statutory revision, a habeas court must generally presume correct a state court’s written findings of fact from a hearing to which the petitioner was a party. A state finding cannot be set aside merely on a preponderance of the evidence and the federal court granting the writ must include in its opinion the reason it found the state findings not fairly supported by the record or the existence of one or more listed factors justifying disregard of the factfinding. Pub. L. No. 89-711, 80 Stat. 1105 (codified at 28 U.S.C. § 2254(d)). See Sumner v. Mata, 449 U.S. 539 (1981); Sumner v. Mata, 455 U.S. 591 (1982); Marshall v. Lonberger, 459 U.S. 422 (1983); Patton v. Yount, 467 U.S. 1025 (1984); Parker v. Dugger, 498 U.S. 308 (1991); Burden v. Zant, 498 U.S. 433 (1991). The presumption of correctness does not apply to questions of law or to mixed questions of law and fact. Miller v. Fenton, 474 U.S. 104, 110–16 (1985). However, in Wright v. West, 505 U.S. 277 (1992), the Justices argued inconclusively whether deferential review of questions of law or especially of law and fact should be adopted.

12

Townsend v. Sain, 372 U.S. 293, 312 (1963). The Court was unanimous on the statement, but it divided 5-4 on application.

13

372 U.S. at 313–18. Keeney v. Tamayo-Reyes, 504 U.S. 1, 5 (1992). Keeney formally overruled part of Townsend.

14

373 U.S. 1 (1963). Sanders was a § 2255 case, a federal prisoner petitioning for postconviction relief. The Court applied the same liberal rules with respect to federal prisoners as it did for states. See Kaufman v. United States, 394 U.S. 217 (1969). But see Davis v. United States, 411 U.S. 233 (1973); United States v. Frady, 456 U.S. 152 (1982).

15

373 U.S. at 8. The statement accorded with the established view that principles of res judicata were not applicable in habeas. E.g., Price v. Johnston, 334 U.S. 266 (1948); Wong Doo v. United States, 265 U.S. 239 (1924); Salinger v. Loisel, 265 U.S. 224 (1924). In 1948, Congress had appeared to adopt some limited version of res judicata for federal prisoners but not for state prisoners, but the Court in Sanders held the same standards applicable and denied the statute changed existing case law. Act of June 25, 1948, 62 Stat. 965, 967 (codified at 28 U.S.C. §§ 2244, 2255); 373 U.S. at 11–14. But see id. at 27–28 (Harlan, J., dissenting).

16

373 U.S. at 15. In codifying the Sanders standards in 1966, Congress omitted the “ends of justice” language.Pub. L. No. 89-711, 80 Stat. 1104 (codified at 28 U.S.C. § 2244(b)) Although it was long thought that the omission probably had no substantive effect, this may not be the case. Kuhlmann v. Wilson, 477 U.S. 436 (1986).

17

Id.

18

373 U.S. at 17–19.

19

372 U.S. 391 (1963). Fay was largely obliterated over the years, beginning with Davis v. United States, 411 U.S. 233 (1973), a federal-prisoner post-conviction relief case, and Wainwright v. Sykes, 433 U.S. 72 (1977), but it was not formally overruled until Coleman v. Thompson, 501 U.S. 722, 744–51 (1991).

20

E.g., Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875); Herb v. Pitcairn, 324 U.S. 117 (1945). In the habeas context, the procedural-bar rules are ultimately a function of the requirement that petitioners first exhaust state avenues of relief before coming to federal court.

21

344 U.S. 443 (1953).

22

Fay v. Noia, 372 U.S. 391, 424–34 (1963).

23

372 U.S. at 438–40.

24

In 1961, state prisoner habeas filings totaled 1,020; in 1965, 4,845; in 1970, a high (to date) of 9,063; in 1975, 7,843; in 1980, 8,534; in 1985, 9,045; in 1986. On relief afforded, no reliable figures are available, but estimates indicate that at most four percent of the filings result in either release or retrial. C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure (1988 & supps.), § 4261, at 284–91.

25

Wainwright v. Sykes, 433 U.S. 72, 81 (1977). Differing from the Court in the 1963 trilogy, the Wainwright Court favored decisions in habeas cases that promote finality, comity, judicial economy, and channeling the resolution of claims into the most appropriate forum. Keeney v. Tamayo-Reyes, 504 U.S. 1, 8–10 (1992). Overall, federalism concerns are critical. See Coleman v. Thompson, 501 U.S. 722, 726 (1991) ( “This is a case about federalism.” First sentence of opinion). Subsequent cases have drawn on Justice Powell’s concurrence in Schneckloth v. Bustamonte, 412 U.S. 218, 250 (1973). He suggested that habeas courts should entertain only those claims that go to the integrity of the fact-finding process, thus raising questions of the value of a guilty verdict, or that only those prisoners able to make a credible showing of “factual innocence” could be heard on habeas. Id. at 256–58, 274–75. As will be evident infra, some form of innocence standard appears in much of the Court’s habeas jurisprudence.

26

Wainwright, 433 U.S. at 81.

27

433 U.S. at 83; Stone v. Powell, 428 U.S. 465, 495 n.37 (1976); Francis v. Henderson, 425 U.S. 536, 538 (1976); Fay v. Noia, 372 U.S. 391, 438 (1963). The dichotomy between power and discretion goes all the way back to the case imposing the rule of exhaustion of state remedies. Ex parte Royall, 117 U.S. 241, 251 (1886).

28

Stone v. Powell, 428 U.S. 465 (1976). The decision is based as much on the Court’s dissatisfaction with the exclusionary rule as with its desire to curb habeas. Holding that the purpose of the exclusionary rule is to deter unconstitutional searches and seizures rather than to redress individual injuries, the Court reasoned that no deterrent purpose was advanced by applying the rule on habeas, except to encourage state courts to give claimants a full and fair hearing. Id. at 493–95.

29

Stone does not apply to a Sixth Amendment claim of ineffective assistance of counsel in litigating a search and seizure claim. Kimmelman v. Morrison, 477 U.S. 365, 382–383 (1986). See also Rose v. Mitchell, 443 U.S. 545 (1979) (racial discrimination in selection of grand jury foreman); Jackson v. Virginia, 443 U.S. 307 (1979) (insufficient evidence to satisfy reasonable doubt standard).

30

See, e.g., Duckworth v. Eagan, 492 U.S. 195, 205 (1989) (O’Connor, J., concurring); Brewer v. Williams, 430 U.S. 387, 413–14 (1977) (Powell, J., concurring), and id. at 415 (Burger, C.J, dissenting); Wainwright v. Sykes, 433 U.S. 72, 87 n.11 (1977) (reserving Miranda).

31

The first exception permits the retroactive application on habeas of a new rule if the rule places a class of private conduct beyond the power of the state to proscribe or addresses a substantive categorical guarantee accorded by the Constitution. The rule must, to say it differently, either decriminalize a class of conduct or prohibit the imposition of a particular punishment on a particular class of persons. The second exception would permit the application of “watershed rules of criminal procedure” implicating the fundamental fairness and accuracy of the criminal proceeding. Saffle v. Parks, 494 U.S. 484, 494–95 (1990) (citing cases); Sawyer v. Smith, 497 U.S. 227, 241–45 (1990).

32

Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion); Penry v. Lynaugh, 492 U.S. 302, 313–19 (1989).

33

Butler v. McKellar, 494 U.S. 407, 412 (1990) (quoting Penry v. Lynaugh, 492 U.S. 302, 314 (1989), which was quoting Teague v. Lane, 489 U.S. 288, 314 (1989). This sentence was quoted again in Whorton v. Bockting, 549 U.S. 406, 416 (2007)).

34

494 U.S. at 415. See also Stringer v. Black, 503 U.S. 222, 228–29 (1992). This latter case found that two decisions relied on by petitioner merely drew on existing precedent and so did not establish a new rule. See also O’Dell v. Netherland, 521 U.S. 151 (1997); Lambrix v. Singletary, 520 U.S. 518 (1997); Gray v. Netherland, 518 U.S. 152 (1996). But compare Bousley v. Brooks, 523 U.S. 614 (1998).

35

Townsend v. Sain, 372 U.S. 293, 313, 317 (1963), imported the “deliberate bypass” standard from Fay v. Noia, 372 U.S. 391, 438 (1963).

36

Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). This standard is imported from the cases abandoning Fay v. Noia and is discussed infra.

37

373 U.S. 1, 15–18 (1963). The standards are embodied in 28 U.S.C. § 2244(b).

38

477 U.S. 436 (1986).

39

Sawyer v. Whitley, 505 U.S. 333 (1992). Language in the opinion suggests that the standard is not limited to capital cases. Id. at 339.

40

The standard is in 28 U.S.C. § 2244(b), along with the standard that, if a petitioner “deliberately withheld” a claim, the petition can be dismissed. See also 28 U.S.C. § 2254 Rule 9(b) (judge may dismiss successive petition raising new claims if failure to assert them previously was an abuse of the writ).

41

499 U.S. 467 (1991).

42

Id. at 489–97. The “actual innocence” element runs through the cases under all the headings.

43

Coleman v. Thompson, 501 U.S. 722, 744–51 (1991).

44

Id. at 722, 750. The standard has been developed in a long line of cases. Davis v. United States, 411 U.S. 233 (1973) (under federal rules); Francis v. Henderson, 425 U.S. 536 (1976); Engle v. Isaac, 456 U.S. 107 (1982); Murray v. Carrier, 477 U.S. 478 (1986); Harris v. Reed, 489 U.S. 255 (1989). Coleman arose because the defendant’s attorney had filed his appeal in state court three days late. Wainwright v. Sykes involved the failure of defendant to object to the admission of inculpatory statements at the time of trial. Engle v. Isaac involved a failure to object at trial to jury instructions.

45

E.g., Smith v. Murray, 477 U.S. 527, 538–39 (1986); Murray v. Carrier, 477 U.S. 478, 496 (1986). In Bousley v. Brooks, 523 U.S. 614 (1998), a federal post-conviction relief case, petitioner had pled guilty to a federal firearms offense. Subsequently, the Supreme Court interpreted the elements of the offense more narrowly than had the trial court in Bousley’s case. The Court held that Bousley by his plea had defaulted, but that he might be able to demonstrate “actual innocence” so as to excuse the default if he could show on remand that it was more likely than not that no reasonable juror would have convicted him of the offense, properly defined.

46

Murray, 477 U.S. at 488. This case held that ineffective assistance of counsel is not “cause” unless it rises to the level of a Sixth Amendment violation. See also Coleman, 501 U.S. at 752–57 (because petitioner had no right to counsel in state postconviction proceeding where error occurred, he could not claim constitutionally ineffective assistance of counsel). The actual novelty of a constitutional claim at the time of the state court proceeding is “cause” excusing the petitioner’s failure to raise it then, Reed v. Ross, 468 U.S. 1 (1984), although the failure of counsel to anticipate a line of constitutional argument then foreshadowed in Supreme Court precedent is insufficient “cause.” Engle v. Isaac, 456 U.S. 107 (1982).

47

United States v. Frady, 456 U.S. 152, 169 (1982) (under federal rules) (with respect to erroneous jury instruction, inquiring whether the error “so infected the entire trial that the resulting conviction violates due process” ).

48

506 U.S. 390 (1993).

49

Id. at 398–417.

50

506 U.S. at 417–419. Justices Antonin Scalia and Clarence Thomas would have unequivocally held that “[t]here is no basis in text, tradition, or even in contemporary practice . . . for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.” Id. at 427–28 (concurring). However, it is not at all clear that all the Justices joining the Court believe innocence to be nondispositive on habeas. Id. at 419 (O’Connor and Kennedy, JJ., concurring), 429 (White, J., concurring). In House v. Bell, 547 U.S. 518, 554–55 (2006), the Court declined to resolve the issue that in Herrera it had assumed without deciding: that “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.”

51

513 U.S. 298 (1995).

52

513 U.S. at 334 (Rehnquist, C.J., dissenting, joined by Kennedy and Thomas, JJ.), 342 (Scalia, J., dissenting, joined by Thomas, J.). This standard was drawn from Sawyer v. Whitley, 505 U.S. 333 (1992).

53

513 U.S. at 327. This standard was drawn from Murray v. Carrier, 477 U.S. 478 (1986).

54

Pub. L. No.

104-132

, Title I, 110 Stat. 1217–21 (codified as amended at 28 U.S.C. §§ 2244, 2253, 2254, and Rule 22 of the Federal Rules of Appellate Procedure.

55

518 U.S. 651 (1996).

56

28 U.S.C. § 2254(d) (emphasis added). The provision was applied in Bell v. Cone, 535 U.S. 685 (2002). See also Renico v. Lett, 559 U.S. ___, No. 09-338, slip op. 9–12 (2010). For analysis of its constitutionality, see the various opinions in Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc), rev’d on other grounds, 521 U.S. 320 (1997); Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), cert. denied, 520 U.S. 1107 (1997); Hall v. Washington, 106 F.3d 742 (7th Cir. 1997); O’Brien v. Dubois, 145 F.3d 16 (1st Cir. 1998); Green v. French, 143 F.3d 865 (4th Cir. 1998), cert. denied, 525 U.S. 1090 (1999).

57

Harrington v. Richter, 562 U.S. 86, 102 (2011) (overturning Ninth Circuit’s grant of relief, which was based on ineffective assistance of counsel); accord Premo v. Moore, 562 U.S. 115 (2011) (same) and Cullen v. Pinholster, 563 U.S. 1029 (2011) (same).