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November 12, 2008

AEDPA, capital habeas cases and the limits of change

Two events this morning have me thinking about federal habeas review in state capital cases and about the (limited?) potential for a new administration to impact these issue:

1.  The Supreme Court this morning is hearing argument in Bell v. Kelly(SCOTUSwiki description here), which is an important concerning standards of review under AEDPA.  This NACDL amicus brief explains effectively what may be at issue in Bell v. Kelly:

[This] case squarely presents the Court with an opportunity to address the relationship between minimal procedural fairness and the comity and federalism concerns embodied by the Anti-Terrorism and Effective Death Penalty Act (AEDPA).... The way in which the Court decides this case will influence whether state postconviction courts believe they are required to provide a minimally fair process in order for their decisions to be steeled from federal review by the provisions of the AEDPA.

2.  A split panel of the Sixth Circuit today in Davie v. Mitchell issued three separate opinions in the course of affirming an Ohio death sentence on federal habeas review.  At the start of his lengthy dissent, Judge Merritt minces no words about his view of the outcome:

The majority in this case is reading the AEDPA statute unlawfully to suspend the writ of habeas corpus in violation of the Suspension Clause of the United States Constitution, Article I, § 9 (“The 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.”).  Here, as I shall explain below, the majority is using the AEDPA statute as a license to overrule Miranda v. Arizona and its lineal progeny developed by the Warren-Brennan Court four decades ago to outlaw coerced confessions that abridge the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination.

As habeas gurus know, the federal jurisprudence surrounding state capital habeas review has been a mess for decades.  AEPDA was enacted during the Clinton Administration as part of a bipartisan effort to clean up this mess, but arguably AEDPA has only made the mess a lot worse.  Indeed, today's SCOTUS oral argument and Sixth Circuit ruling spotlight the general inability of AEDPA to make this arena of habeas law and policy less messy.

Though surely not a high priority matter for the Obama team, I like to imagine that a new administration might eventually consider some changed approaches to old habeas issue.  But, in the wake of the AEDPA experience, I am not optimistic about the potential for real change.  In other words, I fear that, even if a new administration is willing and eager to "improve" AEDPA and the messy jurisprudence that surrounds capital habeas review, it may be very difficult to do significantly better than the status quo (at least absent a serious commitment to reconstructing radically federal involvement in state capital cases). 

November 12, 2008 at 11:46 AM | Permalink


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I read your article with interest because I am hopeful that the Obama administration will address the AEDPA mess. My concern is that the one-year statute of limitations makes habeas relief absolutely unavailable to the typical state prisoner, including those convicted of non-capital offenses. The typical indigent, uneducated prisoner, who may be wrongfully incarcerated would require more than a law degree to navigate the minefield of procedural pitfalls in AEDPA.And there is no right to counsel at this stage of appeal. I practice in Mississippi where we have a three year SOL for state habeas relief (post conviction relief). Many a prisoner has been surprised to discover that he has no further access to federal relief when the one year SOL has expired by the time he timely files his state petition. If this portion of the ACT could be amended I would like to help lead the charge. Please contact me with your thoughts. I was an estate planning attorney for 10 yrs. until I took compassion upon an inmate serving three sixty year terms without parole for a minor marijuana charge under the 3 strikes law. He unwittingly missed his federal habeas deadline by a matter of a few days. Now I am a defense attorney who does estate planning on the side. Thanks, Sylvia Owen

Posted by: Sylvia Owen | Jan 22, 2009 12:40:14 PM

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