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October 28, 2013

"Is Guilt Dispositive? Federal Habeas after Martinez"

The title of this post is the title of this notable new article about federal habeas corpus law and practice available via SSRN and authored by Justin Marceau. Here is the abstract:

Federal habeas review of criminal convictions is not supposed to be a second opportunity to adjudge guilt. It has been said, by Oliver Wendall Holmes among others, that the sole question on federal habeas is whether the prisoner’s constitutional rights were violated. By the early 1970s, however, scholars criticized this rights-based view of habeas and sounded the alarm that post-conviction review had become too far removed from questions of innocence. Most famously, in 1970 Judge Friendly criticized the breadth of habeas corpus by posing a single question: Is innocence irrelevant? In his view habeas review that focused exclusively on questions of rights in isolation from questions of innocence was misguided.

Over the last forty years the habeas landscape has changed so dramatically — both through statutory and common law limits on the writ — that it is appropriate to ask a very different question: Is guilt dispositive? Both substantive law and habeas procedure has evolved so as to substantially disadvantage a guilty habeas petitioner. In many cases regardless of the merits of the constitutional claim, strong evidence of guilt is dispositive in ensuring that relief is denied. A recent trilogy of cases from the last couple of years — Holland v. Florida, Maples v. Thomas, and most importantly, Martinez v. Ryan — signal a potential shift in the Court’s innocence orientation. This Article explores the potential impact of these decisions and in particular argues that they may provide a roadmap for a proceduralist approach to modern habeas — that is, habeas review that prioritizes fair procedures over innocence. The impact of Friendly’s call for greater focus on innocence was gradual but profound, and this Article argues that the Martinez-trilogy may be similarly important in reversing habeas’ four-decade-long infatuation with innocence.

October 28, 2013 at 05:38 PM | Permalink


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OK. You found one mistake made by OW Holmes.

Appeals should be about mistaken convictions. They should be conducted by experienced investigators, looking for errors of fact.

Posted by: Supremacy Claus | Oct 29, 2013 9:36:21 AM

"Both substantive law and habeas procedure has evolved so as to substantially disadvantage a guilty habeas petitioner."

Heavens forfend that a person who actually committed the murder should be at a disadvantage compared to an innocent man wrongly convicted!

Here is further evidence that academics live in Bizarro World and have no concept how skewed their world-view actually is.

Actually, habeas law hasn't evolved far enough in that direction. The "Friendly filter," reserving collateral review for petitioners with a colorable claim of actual innocence, has not been adopted in a single state that I know of. It is an uphill battle to even adopt the modest step of making it a prerequisite for a successive petition. The California Legislature killed this proposal in committee yet again this year.

Holmes, BTW, lived at a time when "constitutional violation" meant things like lynch mobs surrounding the courthouse or confessions being beaten out of suspects and introduced as evidence. A fully voluntary confession being taken without reciting ritual warnings, for example, was not a "constitutional violation" back then.

Posted by: Kent Scheidegger | Oct 29, 2013 2:39:26 PM

Kent: Do you agree that the rate of exoneration in the death penalty requires a change in the Rules of Evidence? For example, no eyewitness testimony without physical corroboration.

Do you agree that the fraction of the exonerated who confessed voluntarily (a quarter) requires a video recording? For example, we can see the investigator implanting a false memory.

Do you agree that the falsely executed should have recourse in the form of a wrongful death suit against all parties, the defense lawyer, the prosecutor, the judge and the jury, itself, if any deviated from standards of due care? The death penalty trial fully qualifies all criteria for strict liability, but that standard would end all trials.

If you disagree, formal logic fully justifies murderous violent retaliation against them. The contrapositive of a true assertion is always true. Tort liability is a substitute for violence. Do you agree? ("If A, then B" is true.) If you do then, immunity justifies retaliatory violence. ("If not B, then not A." is the contrapositive.) This is the modus tollens rule of inference. It has no known exception.

Posted by: Supremacy Claus | Oct 30, 2013 6:16:36 AM

Actually tort liability is a determination that this type of damage to a person is permissible but only if there is compensation. It is not an alternative to violence but a middle ground between criminal liability for injuring a third party and a license to act without permission.

If you are going to impose liability on a jury for a wrongful conviction what about for a wrongful acquittal. A tort system is a means to create incentive for certain acts and traditionally we have not wanted jurors to have to be worried about being sued merely because someone thinks they make a wrongful decision. After all, jurors are compelled by the State to appear and serve against their will as is. Having compelled them to be present, if you add the possibility that they could be sued because someone later decides that they acted inappropriately would create a great disincentive on jury service (or if limited to wrongful convictions would create an incentive to acquit even if the jury believes that the defendant is guilty beyond any possible doubt merely to avoid the possibility of future liability).

Posted by: tmm | Oct 30, 2013 9:45:07 AM

Kent --

I find your ad hominem attack a little strange in this context. I know you pride yourself on taking the most excruciatingly narrow reading of the federal habeas statute possible, but I didn't know that your disagreement with me on substantive grounds warrants the claim that I am an out of touch academics "liv[ing] in Bizarro World."

I can assure you I am most certainly not out of touch. I have an active habeas and constitutional law practice and speak with co-counsel and consult with attorneys on a daily basis. And if you take the time to read the paper, I suspect my claims -- even if you disagree with them -- wont' strike you as bizarro.

I might also ask if you could take a moment to share with us what it is about academics that makes you despise us? What makes you so in touch and us so out of it? Is it the moral authority of your positions? Or is it your ability to churn out redundant amicus briefs? As to the latter, I think many folks -- lawyers and non-lawyers alike -- would find your recent amicus brief in White v. Woodall to be of interest. By way of a reminder, this is the brief where you argue that circuit court resistance to your reading of the habeas statute is tantamount to the "massive resistance" to Brown v. Board of Education by segregationists. Yes, Kent's not-out-of-touch lawyering has him submitting gems to the SCT arguing that circuit judges trying to exercise habeas jurisdiction are essentially the same as civil rights deniers. (read it for yourself, http://www.scotusblog.com/case-files/cases/white-v-woodall/) No irony.

If you have constructive comments on the article, always happy to incorporate them. jmarceau@law.du.edu

Posted by: J. Marceau | Oct 31, 2013 12:37:03 AM

My, my, how thin-skinned. And how amusing. First you take umbrage at my supposedly "ad hominem" comment (which isn't), and then you launch into a completely irrelevant disparagement of my supposedly "redundant" briefs. (For what it's worth, I have it on very good authority that my briefs are considered valuable contributions by the persons to whom they are addressed. Given that, no one else's opinion matters much.)

Back on the topic, my "Bizarro" comment was not addressed to disagreement on the substantive issue but rather to the implication that there is something wrong with a guilty murderer being "disadvantaged" relative to an innocent person wrongly convicted. I notice that defense of that assertion is absent from your comment.

Posted by: Kent Scheidegger | Oct 31, 2013 5:51:43 PM

Putting aside the ad hominems, I think a discussion of the purpose of Section 2254 in light of its history is necessary. Despite being a form of a writ of habeas corpus (there are a multitude of forms), Section 2254 is not the Great Writ which was a very narrow writ at common law designed for purposes other than mere error correction.

Instead, the growth of the scope of what is now Section 2254 over two centuries reflect concerns about the adequacy of state courts to address federal constitutional claims. As currently drafted, 2254 is nothing more and nothing less than a recognition that the US Supreme Court will not conduct a merits review of every state court criminal case, and thus allows a very minimal review by the lower federal courts to allow relief in those cases in which it is absolutely clear that, if the U.S. Supreme Court had granted review, it would have granted relief to the inmate.

In considering whether a particular modification should be made to the current system, there seems to be two significant questions which have not been adequately addresses by either the bench or the academy and which go to the historically motivating fact behind Section 2254 -- the ability and willingness of state courts to enforce federal rights. First, are there any states in which the judiciary appears to -- on a regular basis -- be ignoring Supreme Court rulings or trying to evade the implications of those rulings? If not, it is hard to justify the burden of an additional round of federal review as the state review is adequate for most cases.

Second, are there any states in which the current system of review contains unreasonable barriers that are precluding an inmate from raising meritorious claims in the state system? Again, in the absence of such barriers, new exceptions to the exhaustion requirements would not be warranted (especially as every inmate will try to shoehorn a claim into any newly recognized exception, adding to the burden on the State and lower courts).

Posted by: tmm | Oct 31, 2013 6:19:29 PM

tmm --

"First, are there any states in which the judiciary appears to -- on a regular basis -- be ignoring Supreme Court rulings or trying to evade the implications of those rulings?"

The problem is the opposite: State courts that expand Supreme Court rulings and evade their (often explicit) limitations.

P.S. If you're not an adjunct somewhere, you should be. Are you?

Posted by: Bill Otis | Nov 1, 2013 10:35:15 AM

TMM -- There are states that are reluctant to apply federal law. The culprits are not always the same as they were pre-civil war, but problems exist. Oklahoma comes to mind with their pattern of failing to give force to Strickland, and the 10th has acknowledged this in published decisions. There are lots of other examples, some discrete and some systemic. My view is that even a single, isolated instance of procedural or substantive unfairness in the state court warrants federal habeas intervention. These problems you ask about are identified in some federal decisions and in the work of John Blume, Eric Freedman, Eve Primus, myself, and many others.

Otis --You wrote that "The problem is the opposite: State courts that expand Supreme Court rulings and evade their (often explicit) limitations." Can you elaborate. Surely you don't mean that it is inappropriate for state courts to apply their state constitutions in a manner that exceeds the minimum federal requirements? And if you are saying that states are consistently "expand[ing]" federal constitutional rules in the realm of crimnal procedure, I would love to see your examples. The counter-examples are well known, and the very reason that habeas review often presents the question of whether the state court merely misapplied the federal law, or did so in a grossly unreasonable way. [Off topic, Isn't it patronizing to state courts to say that they are not smart enough to get it right, to say that they need only know that 2+2 is between 3 and 5 (paraphrasing CJ Roberts)?]

Anyway, if the state courts are interpreting federal law outside of the unique Roper context in ways that make the federal rights considerably more robust, I would love to hear about it.

Posted by: J. Marceau | Nov 1, 2013 1:58:52 PM

J. Marceau --

"...if the state courts are interpreting federal law outside of the unique Roper context in ways that make the federal rights considerably more robust, I would love to hear about it."

And if the kids are eating too much of their Halloween goodies, outside of the unique candy bar context,....

Posted by: Bill Otis | Nov 1, 2013 5:22:42 PM

Bill, I'm not. The meat market tends to be difficult for centrists in the oversubscribed areas like criminal law.

As far as overexpanding, I have seen many state court decisions that interpret Brady as going much further than the US Supreme Court has and consider some race neutral reasons as presumptively suspect for Batson purposes.

Professor, the problem in federal habeas is that the Supreme Court (as itself has said) often establishes a general rule leaving it to later courts to fill in the gaps, often in an unclear area of law. If the state courts are making a good faith effort to apply Supreme Court precedent and just fail to anticipate which side of a case will get five votes and which will get four votes when the Supreme Court gets around to resolving one of those gap issues in ten years. If the reasoning of the state courts is a supportable guess at how the US Supreme Court will resolve that dispute, there is a legitimate interest in finality instead of keeping the case in limbo until the Supreme Court decides. It's more like a state going to the fifth digit for pi and somebody claiming that the answer is off because they did not go to the tenth digit.

Posted by: tmm | Nov 1, 2013 5:51:12 PM

tmm-- you don't need to go the way of AALS for an adjunct job. Speaking for my school, we are always looking for engaging folks to stir up debate on important issues. I actively lobby for adjuncts (and tenure track) that are much more conservative than me. Shoot me an email if you ever want to chat.

I am not sure I agree with your reading of what is happening on habeas, but appreciate the perspective. And if a state court is saying a race neutral reason satisfies prong one of Batson, I bet they will eventually get overruled by the SCT. As for Brady, the rule is so broad that I think any disagreements you might have simply come down to a sense that state courts are more aggressive in their interpretation of materiality.

Posted by: J. Marceau | Nov 1, 2013 6:28:08 PM

tmm --

The beauty of being an adjunct is that you never have to go on the meat market (which just concluded a few days ago here in DC).

I got invited to come on as an adjunct at Georgetown despite having done very little writing and, even worse, having been a political appointee of the not-too-popular-in-academia George H. W. Bush.

Even Georgetown, which is as liberal as most of them, will tolerate someone from outside the liberal pond (and you're more in it than I) if he has a respectable record, did well at some fancy law school, and is known to be reasonably civilized. My guess is you meet all those criteria, and I can tell from the quality of your analysis and legal breadth that you are exactly what the legal academy needs more of.

So if you have any interest at all, I'd urge you to try it out. Even in the class I teach, which is more jurisprudence than anything else, the kids lap up the litigation war stories. And it's very neat and fulfilling helping them get jobs and clerkships.

The pay is zilch, but I gave up worrying about money long ago, as most more-or-less career prosecutors do.

Posted by: Bill Otis | Nov 1, 2013 7:00:32 PM

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