Habeaus Corpus

Habeaus Corpus The first steps that would eventually evolve into the writ of habeas corpus are said to have been sown in the Magna Carta in 1215. As first used, habeas corpus was much more narrow in scope than it is today. The scope of habeas corpus expanded because of jurisdictional disagreements between English superior courts and English local courts. The form of habeas corpus the courts used, habeas corpus cum causa, compelled the sheriff to produce the prisoner who was the subject of the courts' jurisdictional dispute.

Through a series of important cases, beginning with the Case of the Five Knights and culminating with the Chamber's Case, "the questioning of the validity of commitments, previously an incidental effect of the writ, now became the major object." (Orye, 2002) The "Great Writ" of habeas corpus, "the most celebrated writ in the English Law," offers protection against "illegal restraint or confinement." Habeas corpus relief is based in the principle "that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform to the fundamental requirements of law, the individual is entitled to his immediate release." Habeas corpus protection originated at common law and is guaranteed by the Constitution, which provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in the Cases of Rebellion or Invasion the public Safety may require it." In addition, Congress created a habeas remedy for federal prisoners held "in custody, under or by color of the authority of the United States" in its first grant of jurisdiction to the federal courts in 1789.

(Breuer, 1994) As soon as news of the firing on Fort Sumter arrived on April 14, 1861, worried Northerners thought of restricting civil liberties in Maryland. If unrestrained, the state seemed likely to accompany Virginia, as it followed the more impetuous Southern states out of the Union. On April 19, when a Baltimore mob blocked the passage of Massachusetts troops en route to guard the nation's capital, the government in Washington began to look seriously into the matter.

Lincoln asked Attorney General Edward Bates for an opinion on declaring martial law in Maryland "to the extent of allowing an infraction" of the Fifth Amendment to the Constitution, which required grand-jury indictment for any "capital or otherwise heinous crime." Bates delegated the task to the assistant attorney general, Titian J. Coffey, who prepared the digest of opinions on martial law that was given to Lincoln on the morning of April 20. The memorandum was not particularly encouraging to a chief executive seeking precedents for decisive action.

Coffey excerpted passages from standard British and American authorities that explained the difference between military law and martial law. As commander-in-chief of the army and navy, the president could use military law, but that was clearly prescribed by Congress in the Articles of War of 1806 to apply only to members of the armed services. It was irrelevant to the crisis brewing in Maryland. Martial law, which was applied to civilians in times of war, proved hard to define.

Sir Matthew Hale and William Blackstone saw it as no law at all. Thus, the president's powers were unclear but seemed quite limited, for the digest included Supreme Court Justice Joseph Story's opinion that only Congress could suspend the writ of habeas corpus. (Neely, 1991) The new president's request for the attorney general's opinion suggests that Lincoln did not know the law of this subject upon assuming office.

This should come as no surprise, for questions, concerning martial law and suspending the writ of habeas corpus were hardly likely to arise in the ordinary practice of a yeoman lawyer in central Illinois. By western standards, at least, Lincoln was a lawyer's lawyer who had argued more than two hundred cases before his state's highest court.

But the familiar legal literature read by able practitioners like Lincoln offered no practical ideas about the writ of habeas corpus in times of war (Neely, 1991) Although section 2254(a) explicitly states that the federal writ of habeas corpus is available to state prisoners held "in custody in violation of the Constitution or laws or treaties of the United States," that provision may give an inaccurate picture of the practical availability of the writ today.

That is because the Supreme Court has established several doctrines that regulate habeas procedure or otherwise affect the legal or practical availability of the writ. It is only by understanding these doctrines and how they interrelate that one can accurately assess the actual scope of the writ today or understand why some policymakers would support a more explicit and direct curtailment of the scope of habeas.

Familiarity with these doctrines as currently constituted also provides a helpful backdrop for evaluating how they should be modified if Congress expressly narrows the substantive scope of the writ. (Hoffstadt, 2000) Section 2255 derived from a bill by the Judicial Conference Committee on Habeas Corpus Procedure.

The Committee intended to address "serious administrative problems associated with habeas corpus." The idea was to provide "federal prisoners with a post conviction remedy equivalent in scope to habeas corpus," but eliminate many of the "administrative problems associated with habeas corpus." First, the number of habeas petitions had increased significantly. Second, habeas corpus was subject to abuse by federal prisoners.

Many of the petitions prisoners filed were repetitious and "patently frivolous." This was all the more difficult for the courts because habeas applications were filed in the district where the prisoner was confined and not the court where the prisoner was sentenced. The courts in districts where federal prisons were located therefore had to "handle an inordinate number of habeas corpus actions," and did not have easy access to witnesses or the records of the case, which caused further delays and backlog.

After approving the Committee's recommendations, the Judicial Conference submitted them to Congress. Congress did not pass the two bills, but did incorporate them into its revision of the entire Judicial Code.

The purpose of [section] 2255 "was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient form" without suppressing "prisoners' rights of collateral attack upon their convictions." (Orye, 2002) The exhaustion doctrine, the oldest of the procedural barriers, requires a state prisoner in most cases to present the substance of any federal constitutional claim to the state courts before it may be raised in a federal habeas petition.

This doctrine seeks "to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights." Given this purpose, a prisoner need not "exhaust his state remedies" if "there is an absence of available State corrective process" or if "circumstances exist that render such process ineffective to protect the rights of the [habeas] applicant." (Hoffstadt, 2000) At first blush, a failure to exhaust state remedies would appear easy to fix return to state court, present the unexhausted federal claims to the state tribunal, and raise the now-exhausted claims in a second federal habeas petition.

The federal exhaustion doctrine would not stand in the way. However, another doctrine -- the procedural default doctrine -- would, because a prisoner returning to state court to raise a new claim would probably be denied a ruling on the merits of his claim by the state's procedural rules, which usually require criminal defendants to raise all of their claims at once at the earliest possible time and which allow proceedings to be reopened only for a short time after the state courts issue their rulings.

A prisoner returning to state court years after he is convicted in order to exhaust a federal claim is unlikely to be able to satisfy these state procedural rules. The penalty for failing to adhere to those rules is the state court's refusal to hear the merits of the prisoner's claim. Of course, the petitioner in this situation has technically exhausted his state remedies because there are no further state remedies to exhaust -- they are all foreclosed to him.

Nevertheless, federal courts entertaining habeas petitions are required by the procedural default doctrine to honor state procedural rules. Consequently, if a state court finds that the prisoner did not comply with a state procedural rule and accordingly refuses to reach the merits of her federal constitutional claim, that claim is considered "procedurally defaulted" and may be reexamined by a federal habeas court only under certain circumstances.

(Hoffstadt, 2000) Initially, habeas protection existed only for cases in which the legal process leading to imprisonment or the jurisdiction of the sentencing tribunal was challenged. In 1867, Congress extended federal habeas corpus protection to prisoners held in state custody. The Court noted that the congressional act "brings within the habeas corpus jurisdiction of every court and of every judge every possible case of [de]privation of liberty contrary to the National Constitution, treaties, or laws.

It is impossible to widen this jurisdiction." Despite the stated expansion, habeas protection continued to be applied only to cases in which the defendant alleged that the sentencing court lacked personal or subject matter jurisdiction. 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 review of final orders of deportation for legal permanent residents convicted of certain enumerated criminal offenses.

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.