The Court extended the reach of federal habeas review during the later part of the nineteenth century, however, by changing the circumstances under which the lack of state court jurisdiction could be found. Even after this shift, federal habeas courts sat not as fact finders but as guarantors of fundamental constitutional rights. (Breuer, 1994) In 1915, the Court dramatically increased the scope of habeas corpus in Frank v. Mangum, in which the Court held that habeas relief is available whenever the state, "supplying no corrective process,... deprives the accused of his life or liberty without due process of law." The Warren Court continued this shift toward increased availability of habeas corpus in the next phase of habeas litigation after World War II. Among the issues decided by the Warren Court were which claims could be heard upon habeas corpus. In Fay v. Noia, the Warren Court set the standard that a claim not raised in state court could be raised before a habeas court as long as the petitioner had not deliberately bypassed state procedural rules. The Court created this "deliberate bypass" rule because "a forfeiture of remedies does not legitimize the unconstitutional conduct by which [a] conviction was procured." (Breuer, 1994)

In the last thirty years, the Supreme Court and Congress have made the federal writ of habeas corpus increasingly less available to state prisoners. Mostly, they have restricted the writ by making it less available as a practical matter through the creation and expansion of procedural barriers to federal habeas review. They have rarely chosen to narrow the writ directly by limiting the types of federal constitutional claims that state prisoners can bring. Indeed, the only two changes to the substantive scope of the writ have come from the Supreme Court, which in the last three decades eliminated habeas review of Fourth Amendment claims and claims premised on developments in the law arising after a prisoner's direct appeal is over. Congress, by contrast, has not amended the language of the 1867 statute defining the writ for state prisoners. That statute continues to reach all cases where any person may be restrained of her liberty in violation of the Constitution, or in violation of any treaty or law of the United States. (Hoffstadt, 2000)

Congress had began to consider amending the statutory writ in ways that would explicitly narrow its substantive scope. In the 106th Congress, for example, Senator Orrin Hatch introduced a bill that, among other things, would remove from the scope of habeas those claims based on the admission of confessions obtained in violation of Miranda v. Arizona where the underlying confession was otherwise voluntary. Given the revived congressional interest in the federal writ's substantive scope that is reflected by this bill, the time is ripe to examine how Congress, if it ultimately decides to narrow the substantive scope of the writ, might constitutionally do so. In fashioning any such leaner, cleaner writ of habeas corpus, Congress will be called upon to balance the important role of federal habeas as a matter of criminal justice policy, its constitutionally mandated underpinnings, and the costs it imposes upon state sovereignty and upon the federal courts. (Hoffstadt, 2000; Hammel, 2002)

In the 1960s, those circumstances were numerous. In fact, under the Supreme Court's 1963 decision in Fay v. Noia, federal courts were all but obligated to reach the merits of federal constitutional claims notwithstanding violation of state procedural rules, except when the habeas petitioner had "deliberately sought to subvert or evade the orderly adjudication of his federal defenses in the state courts." The Court has subsequently narrowed the conditions under which a federal court may disregard a state's finding that a prisoner failed to comply with state procedural rules. Fay has been overruled, and a federal court hearing a habeas petition today may not reach the merits of a procedurally defaulted claim unless the petitioner can either show "cause for the noncompliance [with the state procedural rule] and some showing of actual prejudice resulting from the alleged constitutional violation" or can demonstrate "that failure to consider [his federal] claims will result in a fundamental miscarriage of justice.'" (Hoffstadt, 2000)

In 1996, Congress passed and the President signed the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which seek to curtail judicial...

The acts threaten to entrust the deportation process from beginning to end to the executive branch without any opportunity for judicial review, notwithstanding the practical and symbolic importance of judicial review in this context. The acts thus raise jurisdictional issues of great importance, and they portend a sea change in immigration law that endangers the judiciary's role in safeguarding the rights of all individuals. Because of the acts, courts arguably may be foreclosed from reviewing a range of legal questions, including whether the acts' elimination of waivers of deportation under section 212- of the Immigration and Nationality Act (INA) for aliens convicted of certain criminal offenses applies retroactively. Prior to 1996, aliens found deportable could apply for relief pursuant to section 212- of the INA, under which immigration judges took into account a variety of favorable elements in determining whether to grant a waiver of deportation. The retroactive elimination of section 212- relief would not only ensnare aliens convicted of minor crimes, but it would also negate their ties to, and accomplishments in, the United States. Moreover, while the jurisdictional provisions of the AEDPA target criminal aliens, numerous provisions of the IIRIRA apply to non-criminal aliens. Several district courts have already found that the IIRIRA narrows judicial review of the INS's denial of a non-criminal alien's attempt to stay deportation pending a motion to reconsider his deportation order. In addition, the IIRIRA seeks to eliminate judicial review over all denials of discretionary relief except asylum, including denials of suspensions of deportation based on the alien's continuous physical presence in the United States, his good moral character, and the degree of hardship that would result from deportation. (Hafetz, 1998)
As an initial matter, courts have addressed whether the acts eliminate all statutory jurisdiction over final orders of deportation. In the first wave of cases, courts of appeals unanimously held that the AEDPA eliminated their jurisdiction to review deportation orders directly under the preexisting petition-for-review scheme established by the Immigration and Nationality Act of 1961. Several courts emphasized that the AEPDA did not raise a constitutional issue because other avenues of review remained available, while other courts did not address the constitutional issues raised by the Act. Subsequently, numerous legal permanent residents sought judicial review of their deportation orders by filing habeas actions in federal district courts. The district courts have adopted a two-step inquiry. First, they determine whether, as a matter of statutory construction, the acts eliminated or narrowed the scope of review under the general habeas statute of 28 U.S.C. [Sections] 2241. If so, they then determine whether the acts violate the Suspension Clause of the U.S. Constitution, which provides that "[t]he privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (Hafetz, 1998)

Related to innocence-privileging reforms are those reforms that attempt to build on the Supreme Court's 1976 decision in Stone v. Powell, which precluded federal post-conviction review of prisoners' Fourth Amendment claims absent proof that the state court had denied the state prisoner a "full and fair" opportunity to litigate them. (309) One group of proposals popular among conservatives sought to extend Stone's "full and fair" language to all post-conviction claims. That is, federal courts would not be permitted to review any claim that had been fully and fairly litigated in state proceedings. These proposals were strongly advocated by the Reagan and Bush administrations, but were ultimately rejected. During the debate over the AEDPA, Senator John Kyl proposed an amendment to the proposed legislation that would have forbidden all habeas jurisdiction to federal courts except upon proof that a state court's remedies were "inadequate or ineffective to test the legality of the inmate's detention." Senator Kyl's amendment was rejected as too extreme; even Senator Arlen Specter, sponsor of the AEDPA, favored retaining federal jurisdiction "as a constitutional matter." (Hammel, 2002)