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July 20, 2018

New ACS Issue Brief on "Litigating Federal Habeas Corpus Cases"

Eve Brensike Primus has authored this lengthy new Issue Brief for the American Constitution Society under the title "Litigating Federal Habeas Corpus Cases: One Equitable Gateway at a Time." Here is how its introduction starts and closes:

The Supreme Court has described the writ of habeas corpus as “a bulwark against convictions that violate fundamental fairness” and as “the judicial method of lifting undue restraints upon personal liberty.” Unfortunately, obtaining federal habeas corpus relief has become close to impossible for many prisoners.  The vast majority of habeas petitions are post-conviction petitions filed by state prisoners.  Congress and the Supreme Court have erected a complicated maze of procedural obstacles that state prisoners must navigate, often without the assistance of counsel, to have their constitutional claims considered in federal court. One wrong procedural step means the prisoner’s claims are thrown out of federal court altogether.  In fact, federal judges now dismiss a majority of state prisoners’ habeas claims on procedural grounds....

In this Issue Brief, I argue that habeas petitioners should highlight problems they had obtaining a full and fair review of their claims in state court as well as innocence concerns in an effort to push federal courts to expand the equitable exceptions that already permeate habeas doctrine.  I begin by providing a brief overview of the substantive and procedural thicket of federal habeas review, including a description of the many roadblocks that state prisoners encounter when attempting to obtain relief.  I then explore the doctrine’s equitable exceptions and explain how concerns about a lack of access to adequate state process and actual innocence often motivate federal courts to look past obstacles to federal habeas review.  Finally, I explore how litigants could use the animating principles behind these equitable exceptions to broaden procedural bypasses and inform the standard of review for merits determinations in federal court.  I argue that state prisoners often fail to highlight process failures in ways that could broaden the scope and impact of federal habeas review.  Sweeping reform of federal habeas review might not be feasible, but it may be possible to effectuate some change, one equitable gateway at a time.

July 20, 2018 at 08:51 AM | Permalink


I liked lawyer Lincoln's approach to this problem. Maryland judges were granting writs of habeas corpus to Confederate spies. Soldiers entered these courts, struck these judges with rifle butts, clasped them in irons, and flung them in Union prisons.

The author of the Dred Scott decision, the lawyer traitor Taney, prohibited such actions. Lincoln ignored the Supreme Court decision, as I have often suggested. Only the intervention of a lawyer prevented Lincoln from handing the arrest warrant for the lawyer traitor Taney to the federal marshal waiting in the office. This warrant may be viewed in the Museum of the Federal Marshalls. This is another suggestion I have made, to arrest the Justices of the Supreme Court for treason and for insurrection against the constitution. The sole evidence would be their legal utterances.

Posted by: David Behar | Jul 20, 2018 10:13:58 PM

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