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February 12, 2021

"Direct Collateral Review"

The title of this post is the title of this notable new Columbia Law Review piece authored by Z. Payvand Ahdout (hat tip: How Appealing). Here is is abstract:

Federal courts are vitally important fora in which to remedy constitutional violations that occur during state criminal proceedings.  But critics have long lamented the difficulty of obtaining federal review of these violations. The Supreme Court rarely grants certiorari to review state criminal convictions, including allegations of constitutional defects, on direct appeal.  Likewise, the Court has historically declined to grant certiorari to review habeas claims that originate in state courts.  And Congress has circumscribed the ability of all federal courts to grant relief on habeas claims made by state prisoners. The dominant scholarly view, therefore, is that systemic constitutional violations are going unremedied and will continue to go unaddressed absent broadscale change.

This Essay argues that an unnoticed change in the Supreme Court’s certiorari practice over the last five years has reopened a previously closed path to remedying these violations. The Supreme Court has a long-stated presumption against taking cases that originate in state collateral proceedings, i.e., state proceedings in which prisoners challenge their convictions or sentences after the convictions have become final.  This Essay shows that, although the Court previously hewed to that presumption, things have changed. Beginning in October Term 2015 and continuing to the present, the Court has steadily granted certiorari in these cases, indicating a sub silentio abrogation of the presumption.  This Essay documents this changed certiorari practice and explains its significance, both for vindication of constitutional criminal procedure rights and for our understanding of the Supreme Court’s central role in shaping those rights.

February 12, 2021 at 12:22 PM | Permalink

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