Jaden M. Lessnick1Jaden M. Lessnick is a J.D. candidate at the University of Chicago Law School, Class of 2023. He thanks Adam Mortara for his illuminating habeas expertise, as well as Matthew Makowski, Renic Sloan, Virginia Robinson, and the University of Chicago Law Review Online team.
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Federal habeas corpus can appear to many as a convoluted minefield. The Court, over the years, has developed a series of equitable doctrines setting forth requirements that prisoners must satisfy to obtain habeas relief. In Teague v. Lane (1989), for example, the Court held that new constitutional rules do not apply retroactively to cases on collateral review unless one of two exceptions is met. These equitable doctrines alone may have been clear enough, but Congress erected similar—though slightly distinct—obstacles to relief by enacting the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In 28 U.S.C. § 2254(d), for instance, Congress codified the antiretroactivity principle, but ostensibly without the exceptions identified in Teague.
Adding to this confusion, the Court had sometimes entertained the notion that satisfying a pre-AEDPA equitable doctrine may have allowed a petitioner to avoid the AEDPA bars. In Edwards v. Vannoy (2021), for example, the majority considered whether the petitioner had satisfied one of the Teague exceptions, despite AEDPA plainly precluding relief.
But in Brown v. Davenport (2022), the Supreme Court made clear what it had hinted at previously—both AEDPA and the Court’s equitable precedents supply necessary, but not sufficient, conditions for relief. Two important questions remain after Davenport: if a petitioner satisfies both AEDPA and the Court’s equitable precedents, may a court deny habeas relief regardless, and if so, on what basis? This Case Note endeavors to answer them both.
I. From Founding to Modern Habeas
The modern writ of habeas corpus (often called “the Great Writ”) can be traced to the pre–Founding Era writ of habeas corpus ad subjiciendum et recipiendum. Prior to the English Civil War in the mid-1600s, this remedy was developed in response to the Crown imprisoning “subjects summarily and indefinitely, with little explanation or even process.” The writ of habeas corpus ad subjiciendum et recipiendum required the monarch to provide a cause for the jailing of the subject. The historical purpose of what became the modern writ, then, was to review the causes of executive detention. If one had been charged with or convicted of a crime, the custodian had “an easy answer to the question ‘why are you detaining this individual’: the response is ‘because he or she was accused, tried . . . and has been sentenced to prison.’” Concerns about a convict’s innocence were irrelevant; the writ did not contemplate relief for those who claimed that their accusation, trial, or conviction were in error.
It is against this background that the founders incorporated the Suspension Clause into the Constitution, but not “as an affirmative grant of power to issue writs of habeas corpus.” Instead, the Judiciary Act of 1789 vested in federal courts the power to issue writs of habeas corpus—but the Act “did not define the writ’s substantive reach.” In the absence of statutory instruction, “the Supreme Court accept[ed] the black-letter principle of the common law that the writ was simply not available at all to one convicted of crime by a court of competent jurisdiction.” In Ex Parte Watkins (1830), Chief Justice John Marshall declared, “The judgment of a Court of record whose jurisdiction is final, is as conclusive on all the world as the judgment of this Court would be. . . . It puts an end to inquiry concerning the fact, by deciding it.” In effect, then, a conviction by a court of competent jurisdiction triggered res judicata, and a person so convicted could not seek habeas relief in federal courts.
This jurisdiction principle began to erode in 1915 with Frank v. Mangum. There, the Court implied that rare circumstances, like the imminent threat of mob violence influencing the outcome of a trial, might be so extreme as to be equivalent to the absence of jurisdiction. In such circumstances, “a court on habeas may appropriately inquire into the merits in order to determine whether the detention is lawful.”
The jurisdiction principle was definitively abandoned in 1953 with Brown v. Allen. Instead, the Supreme Court held that habeas corpus is an exception to res judicata. The Court affirmed the convictions challenged on federal habeas review, but it did so “by reaching and rejecting on the merits the federal claims presented which had been previously adjudicated by the state courts.” Brown thus jettisoned the jurisdictional test and suggested that federal habeas courts may review the merits of state proceedings de novo. Justice Robert Jackson concurred in result only. He argued that the elimination of the jurisdictional test, concurrent with a massive expansion in constitutional rights of criminal procedure in other cases, would proliferate the “undiscriminating use of the writ of habeas corpus by federal judges to set aside state court convictions.”
Brown v. Allen’s holding was monumental. The “Court effectively recast habeas as another way for federal courts to redress practically any error of federal law they might find in state court proceedings.” As Justice Neil Gorsuch recently opined, “The traditional distinction between jurisdictional defects and mere errors in adjudication no longer restrained federal habeas courts. Full-blown constitutional error correction became the order of the day.”
Following Brown v. Allen, “[f]ederal courts struggled with an exploding caseload of habeas petitions from state prisoners.” In response, the Court developed several equitable doctrines aimed at shrinking the haystack of petitions, like Teague’s retroactivity bar. In Stone v. Powell (1976), the Court barred habeas relief for claims related to a violation of the Fourth Amendment. In Wainwright v. Sykes (1977), the Court adopted a more deferential posture toward state proceedings and created a doctrine of procedural default to bar habeas petitioners from circumventing state postconviction requirements. And in McCleskey v. Zant (1991), the Court established rules limiting repetitious filings.
By enacting AEDPA in 1996, Congress erected its own obstacles to obtaining federal habeas relief, many of which paralleled the Court’s doctrines. Section 2254(d), for example, provides that
a writ of habeas corpus . . . shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]
This section of AEDPA resembles Teague insofar as it precludes retroactive application of a new rule, established by the Supreme Court after adjudication on the merits. Important differences remain, however, as AEDPA did not on its face codify the exceptions to the retroactivity bar identified in Teague. As a consequence, many have suffered “confusion” about how to reconcile the court-created and the legislatively enacted requirements for obtaining habeas relief.
In defense of the perplexed, the Court had long evaded such questions. In Edwards, the Court ruled on one of the Teague exceptions when the petitioner’s claim had been adjudicated on the merits and therefore could have been resolved under § 2254(d) alone. In Brown v. Davenport, the Court took a much-needed step toward clarity, a development to which this Case Note now turns.
II. Brown v. Davenport and Its Impact on Federal Review of State Convictions
Prior to Davenport, the “Court’s habeas precedents look[ed] more Ptolemaic than Copernican.” Rather than clarifying the relationship between the Court’s equitable doctrines and AEDPA, “the Court ha[d] elected to devise its own bespoke ‘solution,’ eschewing the relevant statutory text.” This “ever-more-complex, ad hoc approach to numerous doctrines” left lower courts with little guidance. Against the grain of this near-impenetrable landscape, Brown v. Davenport laid the foundation not only for greater clarity, but also for a potential transformation of federal review of state convictions.
Ervine Davenport was convicted in a Michigan court of first-degree murder but was shackled at trial, allegedly in violation the Fourteenth Amendment’s Due Process Clause as set forth in Deck v. Missouri (2005). On appeal, the Michigan Supreme Court agreed that Davenport’s shackling violated Deck but remanded to the trial court to determine whether the error was harmless under Chapman v. California (1967). Chapman requires, on direct appeal, the prosecution to prove that a constitutional error was harmless beyond a reasonable doubt. On remand, the trial court found this standard satisfied by the prosecution.
Davenport then sought federal habeas relief in the Western District of Michigan, which found that the Michigan courts had correctly identified and correctly applied Chapman. As a consequence, Davenport failed to show that the state court proceedings “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
The Sixth Circuit reversed, declining to apply AEDPA. Instead, the panel applied the pre-AEDPA decision Brecht v. Abrahamson (1993). Brecht held that a prisoner seeking collateral review in federal court must show that the identified error had a “substantial and injurious effect” on his conviction. The Sixth Circuit concluded that Davenport had satisfied the Brecht standard and was therefore entitled to relief.
The Supreme Court reversed the Sixth Circuit. In doing so, it established two developments that will reverberate throughout habeas jurisprudence for years to come.
The first noteworthy development in Davenport is a clarification of the relationship between AEDPA and the Court’s equitable habeas precedents. The Court held that Davenport needed to satisfy both the § 2254(d)(1) requirement and Brecht to obtain relief: “[S]atisfying Brecht is only a necessary, not a sufficient, condition to relief. AEDPA too must be satisfied.”
To appreciate Davenport’s departure from the Court’s habeas jurisprudence, consider Edwards v. Vannoy. There, Edwards had argued that he was entitled to the retroactive benefit of the Supreme Court’s rule in Ramos v. Louisiana (2020), which had held that convictions by less-than-unanimous juries are constitutionally infirm. Such a new rule of constitutional procedure would normally be barred from retroactive application to cases on collateral review, but Edwards sought to make use of Teague’s exception for watershed rules of criminal procedure.
But Edwards’s claim had already been “adjudicated on the merits in State court proceedings.” Edwards, therefore, should have been barred from relief under § 2254(d)(1). It is curious, then, that the Edwards majority spilled so much ink about the Teague exceptions. If a straightforward application of § 2254(d) would have been dispositive, why did the Court bother going down Edwards’s Teague-exception rabbit hole?
Davenport injected necessary clarity into this disarray. Where both AEDPA and a judicially created barrier to habeas relief (e.g., Brecht, Stone v. Powell) apply, a petitioner must satisfy both.
The second development of consequence is Davenport’s express acknowledgment that relief does not flow automatically from satisfying AEDPA (notwithstanding the Court’s equitable precedents). In an area of law where there is much confusion, this much is elegantly simple: AEDPA commands that the “writ of habeas corpus” “shall not be granted with respect to any claim that was adjudicated on the merits” “unless” narrow conditions are satisfied (emphasis added). Conspicuously absent is an instruction that habeas relief must be granted if the petitioner satisfies AEDPA’s requirements. As Justice Gorsuch wrote for the majority, “While AEDPA announced certain new conditions to relief, it did not guarantee relief upon their satisfaction.”
The Davenport Court recognized that with AEDPA, “Congress left intact the equitable discretion traditionally invested in federal courts by preexisting habeas statutes.” Indeed, “even a petitioner who prevails under AEDPA must still today persuade a federal habeas court that ‘law and justice require’ relief.” As the Court emphasized in Horn v. Banks (2002), “[N]one of our post-AEDPA cases have suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard.” The Court recently confirmed in Shinn v. Ramirez (2022) that “even if a prisoner overcomes all of these limits, he is never entitled to habeas relief.” Congress has thus not prescribed any circumstances under which the writ must issue.
III. Habeas after Davenport
But an important question remains. If a prisoner satisfies both AEDPA and the Court’s equitable precedents, may a judge nevertheless deny relief, and on what grounds? This Part seeks to anticipate how lower courts might apply Davenport, especially in ways that may ultimately narrow the availability of federal review of state convictions.
First, courts might seek to deny relief to someone on the basis that the person was convicted by a court of competent jurisdiction and that the person presents no colorable claim of innocence. Neither law nor justice merit relief under such circumstances. Where the petitioner makes no reasonable claim to innocence, courts may conclude that the prudential reasons to deny relief considerably outweigh the reasons to grant it. The Davenport majority recognized that “[f]oremost among those [prudential] considerations is the States’ ‘powerful and legitimate interest in punishing the guilty.’” In particular, “[g]ranting habeas relief to a state prisoner ‘intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.’” When a prisoner makes no meaningful claim to innocence, the states’ interests in punishing the guilty and state sovereignty are at their highest.
Such an approach comports with AEDPA and Brown v. Allen. Because AEDPA never requires an issuance of the writ, the statute does not cabin a court’s discretion to deny relief for prudential reasons.2There does, however, remain an open question as to whether a district court possesses individual discretion or whether it must rely on the Supreme Court’s extant equitable precedents to deny relief for prudential reasons. But the Davenport Court recognized that district courts, when granting a habeas writ, must, in addition to “apply[ing] th[e Supreme] Court’s precedents governing the appropriate exercise of equitable discretion,” determine that law and justice require relief. A plausible argument exists, therefore, that district courts possess residual discretion to deny relief beyond merely applying the Court’s pre-existing equitable doctrines. In addition, Brown v. Allen stands for the proposition that the federal courts may review criminal convictions arising out of a state court of competent jurisdiction, because an error might be so extreme as to functionally deprive the trial court of jurisdiction. But as the majority recognized, “Where . . . the alleged error could not affect the result, such errors may be disregarded.” A habeas court relying on this first approach would deny relief on the basis of competent jurisdiction and the absence of a colorable innocence claim, which does not offend Brown v. Allen’s central holding that a state court’s judgment is not res judicata as to federal constitutional claims in federal habeas review.
The second approach courts might take is to deny relief on the basis of the state court’s competent jurisdiction notwithstanding a petitioner’s colorable claim to innocence. For one, the prudential concerns permeating the Court’s equitable habeas precedents suggest that innocence is not necessarily dispositive. The Court recently noted that “the decision to grant habeas relief . . . must be informed by principles of comity and finality.” Overturning a state conviction—often years or decades later—undermines the finality principle inherent in the criminal system. As Justice Jackson recognized in Brown v. Allen, “Whenever decisions of one court are reviewed by another, a percentage of them are reversed. . . . However, reversal by a higher court is not proof that justice is thereby better done.”
To be sure, the efficacy of this route is uncertain. The Court has at times entertained the notion that meaningful innocence claims are special. In McQuiggin v. Perkins (2013), for example, the Court held that actual innocence might allow petitioners to bypass AEDPA’s statute of limitations. There, the Court noted that it has “applied the miscarriage of justice exception to overcome various procedural defaults.” Nevertheless, these exceptions allow prisoners to bypass procedural obstacles to habeas review, but they say nothing about the ultimate disposition of a court’s review of the habeas petition’s merits. As Judge Diane Wood has illuminated, the Court has “been reluctant to recognize innocence as a stand-alone ground for granting a writ of habeas corpus.”
But in the last term, the Court sought to distance itself from the notion that innocence is special in federal habeas review. As the majority opined in Shinn v. Ramirez, “in McQuiggin, we explained that we have no power to layer a miscarriage-of-justice or actual innocence exception on top of the narrow limitations already included in § 2254(e)(2).” There, the Court continued to emphasize how “[s]erial relitigation of final convictions undermines the finality that ‘is essential to both the retributive and deterrent functions of criminal law.’”
Consider Shinn itself. The Court held that “under § 2254(e)(2), a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on ineffective assistance of state postconviction counsel.” In effect, even if a petitioner had ineffective assistance of counsel at trial, and ineffective assistance of counsel in state postconviction proceedings, a federal court may not consider evidence beyond that which exists in the state-court record—even if that evidence might support a petitioner’s innocence. As some have lamented, “This decision will leave thousands of people in the nightmarish position of having no court to hear their very real claims of innocence.” But for the Court’s recent habeas majorities, the Great Writ has never been about innocence. Habeas “intervention is [ ] an affront to the State and its citizens who returned a verdict of guilt after considering the evidence before them. Federal courts, years later, lack the competence and authority to relitigate a State’s criminal case.”
In short? Courts may begin to invoke newfound “finality-promoting discretion when it comes to petitions from state prisoners already convicted by a court of competent jurisdiction.”
The Court has now held unequivocally that “even if a prisoner overcomes all of these [equitable and statutory] limits, he is never entitled to habeas relief.” Instead, as Brown recognized, a petitioner must still “persuade a federal habeas court that ‘law and justice require’ relief.” And it is not hard to imagine scenarios in which courts might conclude that law and justice do not require relief—even when all the criteria for an issuance of the writ are present. Davenport in effect may allow judges to bypass the § 2254 analysis and deny relief simply for the prudential reasons identified above, perhaps even in the face of a colorable claim to innocence. As Justice Kagan recognized in her Davenport dissent, the Court “hop[es] that the seeds it sows now will yield more succulent fruit in cases to come”—perhaps eventually overturning Brown v. Allen explicitly. But even until then, if the Great Writ allows courts to deny habeas relief for any petitioners convicted by a court of competent jurisdiction, the Brown v. Davenport Court may have just succeeded in returning the writ to its “historic office.”
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Jaden M. Lessnick is a J.D. candidate at the University of Chicago Law School, Class of 2023. He thanks Adam Mortara for his illuminating habeas expertise, as well as Matthew Makowski, Renic Sloan, Virginia Robinson, and the University of Chicago Law Review Online team.