If you are like most people, by now you have probably broken most of your
New Year's resolutions.
So today I want to suggest a new 2009 resolution specifically for Illinois
criminal-defense lawyers: Resolve to file more U.S. Supreme Court petitions
for certiorari from state court judgments.
To understand why this is so important, let me review some legal history with you.
In 1948, Congress passed 28 U.S.C. 2254 dealing with federal habeas corpus
petitions filed by state prisoners. Four years later, the U.S. Supreme Court
emphasized that this statute meant that as long as a state prisoner gave state
courts the first chance to decide any federal constitutional issue in his case,
he was free to file a habeas petition in federal court pursuant to section 2254.
In other words, federal habeas review of federal constitutional issues was
available to a state prisoner as long as he first ''exhausted'' possible state
avenues for relief on that issue.
The Warren Court in the 1960s greatly expanded the federal court's habeas
jurisdiction through a trilogy of cases. In these cases, the court held that federal
courts could entertain federal claims that a state court had held to be defaulted.
It also instituted liberal rules for when a federal court could hold fact-finding
hearings in habeas cases. Finally, the court made it much easier for state
prisoners to file more than one habeas petition.
All of this made federal habeas the preferred route for criminal defense
attorneys from the 1960s to the late 1980s. No matter how pro-prosecution
a state court system was, a state criminal case with a federal constitutional
issue could probably receive review in federal court. Moreover, the federal
court had de novo review on the legal issue - that is, the federal court did
not have to give any deference to the lower state court's decision on any
question of law. Thus, habeas was a method not only to obtain relief
in an individual case, but it was also a way to point federal constitutional
criminal law in a more general pro-defense direction.
All this changed in 1996 with the passage of the Antiterrorism and
Effective Death Penalty Act. It greatly restricted the ability of federal courts
to grant habeas petitions in section 2254 proceedings. The key language
of the statute precluded federal courts from granting such petitions ''unless
adjudication of the claim ... 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.''
28 U.S.C. § 2254(d)(1) (2000) (emphasis added).
This language is significant for several reasons. First, federal courts
traditionally granted a habeas petition if they found that the state court's
interpretation of the federal constitutional issue was simply wrong.
Under AEDPA, however, a state court's being wrong is a necessary,
but not sufficient, factor. Why? Because, as the U.S. Supreme Court
has held, under AEDPA, ''[A]n unreasonable application of federal law
is different from an incorrect application of federal law.''
Williams v. Taylor, 529 U.S. 362, 410 (2000).
What this means is that the U.S. Supreme Court could decide the very same
issue in very different ways depending on the procedural posture of the case.
If the court faced a federal constitutional issue on direct appeal from either
a federal or a state court judgment, de novo review would allow the court to
simply decide whether the lower court judgment was either right or wrong.
If, however, the court faced the same issue in a review of a section 2254
habeas petition, the court might affirm what it considered a wrong state
court judgment because, under AEDPA, it could not say it was also
unreasonable. (Justice John Paul Stevens explicitly made this point last
year in his opinion in Wright v. Van Patten, 128 S.Ct. 743, 748 (2008)
(Stevens, J., concurring in the judgment).)
Second, AEDPA limits the materials which federal courts can use in
determining whether a state court decision is ''unreasonable.'' In
deciding ''reasonableness,'' a federal court is limited to looking only
at decisions of the U.S. Supreme Court. What this means is that - by
definition - a section 2254 petition can never be used as a vehicle for
advancing or developing law. A habeas court is not allowed to consider
various approaches from lower federal or state courts. Instead, the court
may only decide whether a state court has unreasonably flouted U.S.
Supreme Court precedent.
Judge John T. Noonan of the 9th U.S. Circuit Court of Appeals has
sharply criticized this legislatively-imposed shackle placed upon the
federal judiciary: ''AEDPA denies the [federal] judge the use of circuit
precedent, denies development of Supreme Court and circuit precedent,
denies the deference due the penumbra and emanations of precedent....
[Under AEDPA] the development of doctrine is despised.'' Irons v. Carey,
505 F.3d 846 (9th Cir. 2007) (Noonan, J., concurring).
So what does all this mean to the criminal defense attorney?
According to an important new article, it means you must recognize that
post-AEDPA habeas offers you little in the way of relief for your client
convicted in a state court. Now, the only way you can get a federal court
to break even a small amount of new ground in granting relief is to seek
direct review of the state judgment through a petition for a writ of certiorari
filed with the U.S. Supreme Court. Thus, criminal defense attorneys need
to re-orient themselves away from habeas petitions and more toward cert
petitions. Giovanna Shay & Christopher Lasch, Initiating a New Constitutional
Dialogue: The Increased Importance Under AEDPA of Seeking Certiorari
from Judgments of State Courts, 50 William and Mary Law Review 211 (2008)
(available for free at www.ssrn.com).
But isn't a cert grant a long-shot? Shay and Lasch do not deny this. But they
stress that obtaining direct review from a state court judgment is the only way
to receive the ''least deferential, non-AEDPA-restricted review by a federal
court'' (262). While your chance for a cert grant may be slim, your chance for
habeas relief under AEDPA may very well be none. While a good deal of the
U.S. Supreme Court's federal criminal docket is concerned with statutory
interpretation, constitutional doctrinal development is now being fueled by
direct review of state court criminal judgments. (See, e.g., the line of cases
expanding the right to jury trial driven by cert grants of state court judgments:
Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring v. Arizona, 536 U.S. 584
(2002); Blakely v. Washington, 542 U.S. 296 (2004); Cunningham v. California,
127 S.Ct. 856 (2007).) Shay and Lasch did an empirical study of recent cert
filings and grants and came to two conclusions. First, they found that there has
been a modest increase in the number of cert grants from direct appeals from
criminal cases in state courts. Second, they found that state prisoners filed cert
petitions at a lower rate than did federal prisoners. They recommend that more
time, money, and thought should be expended in filing cert petitions from state
court criminal judgments.
Back in the days when federal habeas was a viable chance for relief from state
court convictions, defense attorneys did not even have to file a cert petition to
exhaust state remedies before they could file a habeas petition. See Lawrence
v. Florida, 549 U.S. 327 (2007), citing Fay v. Noia, 372 U.S. 391 (1963). Now
cert may be the only viable chance for federal relief. A long shot? Sure.
But a long shot is better than no shot.
