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July 31, 2022

"AEDPA Repeal"

The title of this post is the title of this new article authored by Brandon Garrett and Kaitlin Phillips available via SSRN.  Here is its abstract:

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) dramatically altered the scope of federal habeas corpus.  Enacted in response to a domestic terrorism attack, followed by a capital prosecution, and after decades of proposals seeking to limit post conviction review of death sentences, and Supreme Court rulings severely limiting federal habeas remedies, AEDPA was ratified with little discussion or deliberation.  The law and politics of death penalty litigation, which had been particularly active since the U.S. Supreme Court invalidated all death penalty schemes in its 1972 ruling in Furman v. Georgia, culminated in restrictions for all federal habeas corpus cases, whether capital or non capital.  Still more perverse, the impact of AEDPA was particularly strong in non capital cases. Since its enactment, AEDPA has been widely criticized by academics, legislators, and judges, for erecting a complex, poorly drafted set of procedural barriers, and for limiting federal review on the merits of most constitutional claims.

This Article examines statutory approaches designed to restore federal habeas corpus.  Any partial or complete repeal of AEDPA raises complex and unexplored issues.  The central challenge is that AEDPA operates alongside decades of Supreme Court created restrictions of federal habeas corpus.  In this Article, we walk through proposals for how AEDPA provisions could be amended, benefits and costs of each change, and how Supreme Court doctrine affects each choice.  AEDPA repeal is not as simple as eliminating the judicially created doctrine of qualified immunity in civil rights litigation.  However, real improvements to federal habeas practice are achievable, and in this Article, we provide a legislative roadmap for habeas reform through AEDPA repeal.

July 31, 2022 at 10:19 AM | Permalink


Just what America needs -- yet more years of post-conviction litigation, gobbling up yet more taxpayer dollars, and having little to nothing to do with factual guilt or innocence.

Posted by: Bill Otis | Jul 31, 2022 4:20:38 PM

I am the editor of the book BUSTED BY THE FEDS.

The article recommended extending the time limit for filing a writ from one year to five years. It gave some reasons for doing so but omitted by far the most important: A defendant/petitioner has no right to counsel on a writ. I did time in federal prison, and it is a daunting task to arrive in your new "home" and try and get acclimatized (and over the shock of your sentence and incarceration in general) and then suss out the legal landscape and caselaw etc. as to what issues can be brought on a writ (vis a vis a direct appeal where there is the right to counsel) and how the facts and the law of your particular case apply -- ALL without an attorney.

In my opinion, it is not necessary to go to five years, but three would do the trick and be fair.

The article also tends to overdramatize some of the procedural hurdles. For example, the doctrine of exhaustion is not unfair and is fairly easy to grasp. That is, any issue has to have been fairly presented to the appropriate state judicial body, or else the writ will be returned to the state to exhaust those issues not presented, with the additional option that the federal court can take a stab at getting rid of unexhausted claims it finds clearly meritless.

I also think there was too much scare dicta about time limits. Yes, there have been court decisions having to deal with questions "at the margin," but in the vast majority of cases the time limits are straightforward -- file it on time or you are out of luck, period.

Posted by: chris boys | Aug 1, 2022 7:22:17 AM

Chris, I guess it depends upon the state that you are in.

In my state: 1) at the time of sentencing, the defendant is told about the state post-conviction process; 2) most attorneys remind their clients of the deadline when the direct appeal ends; 3) the initial filing (in most cases) does not have to be that formal; 4) we do appoint counsel for all post-conviction cases; and 5) the post-conviction attorneys also handle the post-conviction appeal. That means that, in my state, the inmate has typically been in custody for three or more years before the time to file a federal habeas even begins and they have all of the pleadings on the exhausted claims (from the direct appeal and post-conviction appeal briefs) and merely need to repeat those claims for their federal habeas petition.

The problem time issue in my state is the inmates who do not seek state supreme court review on their direct appeal. If they do not seek state supreme court review, the time between the end of their direct appeal and the filing of their post-conviction case counts against their one year. If they do seek state supreme court review, the time for seeking U.S. Supreme Court review is almost the same as the time to file their state post-conviction case and, at most, they lose a week or two off the year as opposed to eighty or ninety days. This is not a problem in terms of meeting the time limits but it is a problem in terms of calculating the time limits as a significant number of inmates mistakenly believe that they have a year from the end of their post-conviction case.

Posted by: tmm | Aug 1, 2022 10:22:15 AM

Part of the article's problems begins with its premise (which it effectively concedes is inaccurate) that Section 2254 is part of the constitutional writ of habeas corpus. However, as the article acknowledges, habeas did not extend to state convictions until after the civil war. So the scope of 2254 review is initially a policy question rather than a legal question. It is only after answering the policy question (what role should inferior federal courts have in supervising the state criminal justice systems in light of the Tenth Amendment giving primary authority over criminal law to the states) that we can answer the legal question (does the current law advance that policy).

Part of the complaint seems to be that the current language in AEDPA is vague. But, of course, it is impossible to draft a statute for all circumstances, and many statutes are "refined" over the years by judicial interpretation. We now have twenty-five years of cases interpreting those provisions. So the question is do we like those decisions or do we want to rewrite the statutes to reverse those decisions.

Ultimately, the proposals -- particularly in the section on 2254(d) -- ultimately come down to the author's policy preferences. They would prefer a more vigorous role for federal courts. Clearly, in certain circuits, the lower federal courts have a different view on the meaning of the Constitution than the state courts do and that view is more favorable for defendants. On the other hand, having a different view does not mean that one's view is correct. When judges split on the meaning of the law, which set of judges should win.

I can't speak about defendants elsewhere, but when I was doing federal habeas, timeliness was only an issue in, maybe, 10% of the cases that I handled. And most successive petitions were merely attempts to relitigate old claims that had previously been denied.

Posted by: tmm | Aug 1, 2022 10:39:39 AM

I do many federal habeas cases both appointed and retained. The biggest mistakes state court practioners continue to make, whether on direct appeal or on post conviction, is, first, a failure to federalize the issue, and, second, a failure to petition the state's highest court for review. I've seen many a great issue on the merits go down the toilet, as it were, because of these failures.

Posted by: Michael R. Levine | Aug 1, 2022 11:54:47 AM

On this exhaustion point, I think it would be v useful for the state supreme courts where review is discretionary to have an explicit rule to invoke that the review sought is for the purpose of exhaustion. (Or, more sensibly, to drop the requirement to exhaust in state supreme courts when review is discretionary).

Posted by: John | Aug 1, 2022 12:24:06 PM

Drop the exhaustion requirement? Should we also abolish the contemporaneous objection rule that applies on direct review, because (after all) it frustrates review on the merits? There is a good reason for asking state courts to correct their own mistakes. If you don't do that, you don't get to treat federal habeas review as a new round of direct review.

Posted by: Da Man | Aug 1, 2022 1:27:44 PM


The rules in my state expressly provide that seeking discretionary review is not part of the normal appeals process. ("Transfer by this Court is an extraordinary remedy that is not part of the standard review process for purposes of federal habeas corpus review.") Not sure how much time that saves them, but I think that there are fewer requests for discretionary review than there used to be. I don't know why every state does not have a similar rule because it just makes sense unless the state high courts want to get requests for review in every criminal case.

Posted by: tmm | Aug 1, 2022 1:33:19 PM

Do the federal courts require seeking review nonetheless? I would hope note. And if not, then I would think most state courts would, from an efficiency perspective, be very well served by adopting such a rule.

Posted by: John | Aug 1, 2022 3:21:42 PM

To the best of my knowledge, since the adoption of that rule, the AG's Office has not asserted a failure to exhaust based on the lack of a request for discretionary review and the courts have not found a failure to exhaust. The rule has been in effect for almost two decades now. Several early cases from the Eighth Circuit found that the rule was effective to eliminate requirement that party seek discretionary review to exhaust claims in state court, and it has not been an issue since then.

Posted by: tmm | Aug 1, 2022 3:31:25 PM

Here is the relevant language from the governing opinion in the Eighth Circuit:

In Dixon, we examined the language of Missouri's party transfer rule in light of O'Sullivan and held that in order to exhaust state remedies, Missouri law required prisoners to pursue discretionary review by petitioning for transfer to the Missouri Supreme Court. In short order the Missouri Supreme Court has made it clear that the law of Missouri is otherwise. In Dixon, we stated that “[n]othing in Missouri law plainly states that a transfer to the Supreme Court of Missouri is an extraordinary remedy outside the standard review process.” Dixon, 263 F.3d at 779. The Missouri Supreme Court has utilized almost that exact language in affirmatively recognizing what the law of Missouri has been and setting forth what the law of Missouri will continue to be from this point forward. We can ask for no more clear statement than that.

Posted by: tmm | Aug 1, 2022 3:34:24 PM

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