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December 17, 2018

"Equitable Gateways: Toward Expanded Federal Habeas Corpus Review of State Court Criminal Convictions"

The title of this post is the title of this new article by Eve Brensike Primus now available via SSRN. Here is its abstract:

State prisoners who file federal habeas corpus petitions face a maze of procedural and substantive restrictions that effectively prevent almost all prisoners from obtaining meaningful review of their convictions.  But it is a mistake to think that habeas litigation is just a Kafkaesque nightmare with no constructive potential.  Federal courts do sometimes cut through the doctrinal morass to consider state prisoners’ claims, relying on what this Essay terms equitable gateways to federal habeas relief.  Litigants and courts generally underestimate the potential these gateways offer, with the result that habeas litigation does not focus on them as often as it should.

Here I consider one important category of equitable gateways animated by a concern about ensuring that federal claims get fair consideration in the courts.  When a federal court believes that a state prisoner has not yet had a full and fair opportunity to present her federal claims and have them fairly considered, it is more likely to bypass procedural and substantive restrictions on review.  But state prisoners often fail to highlight certain kinds of fair consideration failures, thus depriving themselves of potential access to the equitable gateways.  This Essay suggests that this blind spot is partly due to the history of fair consideration principles: for decades, the idea of a fair consideration gateway was a central feature of proposals for further restricting the scope of federal habeas review.  In current circumstances, however, fair consideration is a rubric for expanded habeas review, and habeas litigants should take note.

December 17, 2018 at 05:05 PM | Permalink


While the paper is a fantastic resource for habeas counsel to try to find equitable gateways out of procedural default, I find it amazing how academics and defense attorneys suggest that somehow defendants are not getting a fair shake in court with the limitations of AEDPA. The fact is that every state prisoner still in custody gets the full protections of the constitution in their trial proceedings. They have the right of direct appeal all the way to their own supreme court. At least in California, they have the right to bring a state habeas and they can challenge a denial. If they don’t like the result they can go to federal court to present most of the claims again. Sometimes they can appeal a denial. No federal prisoner gets to fully litigate their claims in federal court, and then on federal habeas AND then again on habeas in front of a different judge because somehow the previous judges could not be trusted to get it right.

Professor Primus writes that the late Justice Reinhardt “taught [her] the importance of continually fighting to ensure that every person has an equal and fair opportunity to be heard and have his or her rights vindicated.” In my view state prisoners have more rights than federal ones, but she is lamenting that state prisoners don’t have enough.

Posted by: David | Dec 19, 2018 10:32:34 PM

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