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Habeas Corpus


Habeas corpus is shorthand for a variety of writs or legal pleadings seeking to bring a person within a court's power. Of the many habeas corpus writs, the most celebrated and significant is the writ of habeas corpus ad subjiciendum, the "Great Writ," which requires an official or person who holds another in custody to produce the person so that a court can inquire into the legality of the detention. In contemporary practice, this writ is most commonly used to challenge the legality of criminal convictions and sentences, though it is also used to challenge the legality of pretrial detentions and the legality of custody in other settings, including immigration, mental health, and military contexts. Other habeas writs are available for distinct purposes, such as to make a prisoner available to testify in court (ad testificandum ) or to ensure that a prisoner is brought before the proper court for prosecution (ad prosequendum ).

Origins and history

Habeas corpus in its most familiar form (ad subjiciendum ) has played an important role in Anglo-American history as a safeguard of individual liberty. Indeed, the availability of habeas relief was at the center of the struggle between Crown and Parliament in the seventeenth century, when Parliament objected to lawless detentions for which no judicial remedies were forthcoming. Infamous deprivations of liberty led to extensive criticism and protest, as English citizens were often held for significant periods without trial and without recourse. Ultimately, Parliament prevailed with the enactment of the Habeas Corpus Act of 1679, which specifically authorized (indeed, required) habeas relief under certain circumstances with substantial penalties for noncompliance.

The English protection of the writ of habeas corpus was quite influential during the framing period of the United States, with both states and the federal government adopting statutory and constitutional guarantees of the writ. Indeed, the federal constitutional guarantee prohibiting the suspension of habeas corpus is one of only two federal constitutional provisions that explicitly refers to and protects a particular remedy ("the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" (Art. I, §9)).

Constitutional protection of the writ of habeas corpus

One central question surrounding the suspension clause concerns the nature and scope of its protection. As an initial matter, the clause does not declare that the writ of habeas corpus must be made available (as was proposed but not adopted during the constitutional convention), but rather suggests that once established it cannot be withdrawn (barring rebellion or invasion). In Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807), Chief Justice Marshall nonetheless suggested that Congress's creation of habeas jurisdiction in the Judiciary Act of 1789 was likely the result of its perceived "obligation" to give "life" to the constitutional provision. Under Chief Justice Marshall's reasoning, the clause protects federal judicial power to grant writs of habeas corpus, though many scholars have argued that the clause was intended to protect state judicial power from federal intervention. When a state court sought to secure the release of an abolitionist who had been convicted in a federal proceeding of aiding and abetting a fugitive slave, the Court decisively rejected the notion that state habeas enjoys any federal constitutional protection, insisting instead that state courts lack power to interfere with persons imprisoned under the authority of the federal government (Ableman v. Booth, 62 U.S. (21 How.) 506 (1858)). That Congress appears to have initially extended the writ to federal prisoners alone suggests that the suspension clause, at least as an initial matter, was not understood to afford protections to persons held in state custody; recent scholarship, though, challenges the notion that the Judiciary Act of 1789 should be understood to have deprived federal courts of habeas power with respect to state prisoners.

During the early nineteenth century, Congress gradually extended the scope of federal habeas jurisdiction to certain classes of state prisoners in response to specific threats to federal power. When South Carolinians declared federal tariffs unconstitutional at the climax of the nullification controversy, President Andrew Jackson feared that federal officers seeking to enforce the tariffs would be subject to state interference. On President Jackson's initiative, Congress authorized federal judges to exercise habeas jurisdiction in cases involving federal or state prisoners confined for acts committed in pursuance of federal law. Less than a decade later, following a diplomatic crisis that ensued when New York tried a British citizen who had attempted to prevent American assistance to Canadian rebels during the winter revolt of 18371838, Congress again expanded federal habeas jurisdiction to permit federal review of cases involving federal or state prisoners who are subjects or citizens of a foreign state.

The most significant statutory expansion of the writ occurred in the wake of the Civil War. The Judiciary Act of 1867 extended the writ to all persons, federal or state, restrained of liberty in violation of federal law. Today, the term "federal habeas" is invariably used to describe challenges by state prisoners, as federal habeas jurisdiction for federal prisoners has essentially been replaced by a separate comprehensive federal postconviction scheme whose substantive scope is basically congruent with the habeas remedy that it displaced (28 U.S.C. § 2255).

An additional question surrounding the suspension clause concerns which branch of government can withhold the writ in response to rebellion or invasion. This question took on great significance at the beginning of the Civil War. Just over two weeks after shots were fired on Fort Sumpter, President Abraham Lincoln issued an order to Commanding General Winfield Scott permitting him to suspend the writ. When John Merryman was subsequently arrested for his participation in the destruction of bridges in Baltimore, military officials refused to respond to a writ before Chief Justice Taney. The Chief Justice wrote a scathing opinion denying the legality of President Lincoln's purported suspension (Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487)), arguing that it is Congress and not the president in whom the Constitution vests such power. President Lincoln publicly disagreed with the opinion (and did not honor it), and Congress subsequently declared its retroactive approval of President Lincoln's military actions. In 1863, Congress also specifically authorized President Lincoln to suspend the writ whenever in the course of the "present rebellion" he judged it to be necessary.

The scope of federal habeas corpus

The most controversial question surrounding federal habeas corpus concerns its appropriate role. This question has two components: how has federal habeas corpus functioned historically and how should it function today? The English version of the writ secured by the Habeas Corpus Act of 1679 primarily afforded a mechanism for challenging unauthorized pretrial detentions. The earliest habeas practice in the United States, both state and federal, likewise focused on defendants' rights against warrantless detentions and denials of bail. But throughout the nineteenth and early twentieth centuries, prisoners sought, and in some cases received, habeas review of claims challenging criminal convictions.

Scholars disagree about the scope of federal habeas review during this period. One prominent scholar, Professor Paul Bator, famously insisted that federal habeas was simply not available to persons convicted by courts of competent jurisdiction; though federal habeas courts sometimes entertained an expansive conception of "jurisdiction," on Bator's view federal habeas was not generally a forum for revisiting legal or factual determinations after trial.

More recent scholarship asserts that federal habeas has always permitted some postconviction review of federal constitutional claims. One of the leading treatise authors on federal habeas, Professor James Liebman, maintains that the scope of federal habeas review during the nineteenth and early twentieth centuries was intimately connected to the availability of other forms of federal review of federal claims. On this view, the U.S. Supreme Court continually adjusted the scope of habeas review in both the state and federal prisoner cases based on whether some other federal jurisdictional vehicle was available to address substantial federal claims. In the federal prisoner context, for example, this thesis explains why the scope of federal habeas for federal prisoners diminished after Congress established federal appellate review of criminal convictions in 1891. In the state prisoner context, this account explains why the scope of habeas corpus increased when federal review as of right through writ of error became largely discretionary.

Yet another influential view argues that federal habeas review has always been quite broad, but that state prisoners rarely prevailed because of the narrowness of federal constitutional protections. According to this position, denials of habeas relief in landmark cases such as Frank v. Magnum, 237 U.S. 309 (1915), in which the Court rejected a claim of mob domination and jury intimidation at trial, were predicated on the Court's narrow readings of the due process clause. Frank lost, on this view, not because the Court refused to consider the merits of his constitutional claim via federal habeas, but because, as a matter of due process, state-court review of a mob-domination claim was constitutionally sufficient. Hence, when federal constitutional protections for state prisoners increased dramatically during the 1960s, the significance of federal habeas increased as well, and not necessarily because the nature of federal habeas itself had been altered.

The dispute surrounding the historic role of federal habeas is not merely academic. Although habeas corpus has both statutory and constitutional roots, the Court has repeatedly focused on historical practice in deciding the appropriate reach of the writ. Indeed, in a much-publicized decision concerning the scope of federal habeas review, two factions of the Court offered conflicting historical accounts to support their respective views as to whether federal habeas courts should defer to state court determinations of mixed lawfact determinations (Wright v. West, 505 U.S. 277 (1992)).

The emergence of modern federal habeas corpus

By the mid-twentieth century, the Court cemented federal habeas's role as a vehicle for challenging the lawfulness of state criminal convictions (Brown v. Allen, 344 U.S. 443 (1953)). Most importantly, the Court indicated that state court legal determinations were not binding on federal habeas courts, and that such courts should address federal constitutional claims de novo.

At the time Brown was decided, federal habeas review remained quite limited, because few federal constitutional protections had been extended to state prisoners. But during the 1960s, the Court "constitutionalized" criminal procedure and read the due process clause of the Fourteenth Amendment to encompass virtually all of the protections of the Fourth, Fifth, Sixth, and Eighth Amendments. In addition, the Court adopted relatively lenient rules concerning state procedural defaults. The Court characterized federal habeas review as an independent civil action rather than as a formal appeal of a state court judgment and refused to apply the independent and adequate state ground doctrine to bar procedurally defaulted claims on federal habeas. Instead, the Court held that if a state inmate failed to properly raise a federal constitutional claim in state court, the issue would nonetheless be cognizable on federal habeas unless the inmate had deliberately bypassed state procedural rules (Fay v. Noia, 372 U.S. 391 (1963)). As a result, federal habeas increasingly became a robust forum for vindicating the federal constitutional claims of state prisoners. Not surprisingly in light of these developments, the sheer volume of federal habeas petitions grew dramatically in the four decades following Brown. Although Justice Jackson had complained of a "haystack" of federal habeas petitions in Brown, the 541 petitions filed in 1951 had become 12,000 by 1990.

Relationship of federal habeas to state postconviction

The availability, scope, and significance of state postconviction review has changed dramatically over the past half century. Prior to the 1950s, state postconviction remedies consisted almost entirely of common law writs, most prominently habeas corpus and coram nobis. These writs did not generally afford state inmates a meaningful opportunity to adjudicate federal constitutional issues.

State habeas corpus, like its federal counterpart, had originally served primarily as a vehicle for challenging pretrial or extrajudicial detentions. When state inmates invoked habeas to challenge their continued detention after conviction, state courts did not view the writ as a basis for revisiting every legal issue bearing on the conviction. Rather, state courts often described their inquiry as confined to "jurisdictional" questions and they repeated the black letter rule that habeas relief was available only if the challenged conviction was not merely "voidable" but absolutely "void." The jurisdictional limitation rendered state habeas an unpromising means of addressing federal constitutional claims because such claims were not ordinarily thought to undermine the basic authority of the trial court to conduct the proceedings leading to the challenged conviction.

Coram nobis, on the other hand, was the traditional postconviction mechanism for revisiting convictions based on non-record facts. Coram nobis was available in the court of convictionnot in a reviewing or appellate courtand it did not generally extend to pure legal error. Moreover, coram nobis did not afford relief unless the newly found facts would have resulted in a different judgment. Accordingly state coram nobis remedies also seemed an unlikely means of vindicating federal constitutional rights.

The problem of state enforcement of federal constitutional rights, though, was not simply a matter of putting ancient writs to modern uses. In the first half of the century, states seemed less than zealous in protecting defendants' rights. Perceived state hostility to federal rights and irregularities in state criminal proceduresincluding the absence of effective postconviction reviewno doubt encouraged federal courts to review state convictions for constitutional error through federal habeas corpus.

As federal habeas review of federal constitutional claims became more common and intrusive with the Warren Court's extraordinary expansion of due process rights for state prisoners, states had strong incentives to develop more extensive postconviction procedures. These procedures protected state convictions from federal review in two important respects: first, state fact-finding in postconviction would ordinarily earn deference in federal court, allowing state courts to shape the future federal habeas litigation; second, additional postconviction opportunities for state prisoners meant additional opportunities to enforce state procedural rules, leading to increased forfeitures in federal court.

The expansion of state postconviction review, though welcome in some respects, has unfortunately also delayed federal habeas review of federal claims. Of course, some delay is unavoidable if state courts are to assume initial responsibility for adjudicating federal rights; if states fail to provide a forum for non-record claims, inmates must litigate these claims in the first instance on federal habeas. But state postconviction review also delays federal review of record claims that could be fully adjudicated in the state courts on direct appeal (without any additional recourse to state postconviction). Delays between state court resolution and federal habeas resolution of record claims contributes to the perceptionand realitythat federal habeas undermines the finality of state convictions.

Overall, the dynamic interplay between federal habeas and state postconviction has produced a tremendously burdensome system for reviewing federal claims. Concerns about the adequacy of state criminal justice systems led to the recognition of federal constitutional rights and the expansion of the federal remedy of habeas corpus. Robust federal habeas in turn led to widespread adoption of extensive state postconviction proceedings, primarily to limit intrusive federal court review. The introduction of extensive state postconviction proceedings substantially delays federal review of federal claims and increases the costs of ultimately granting relief in federal court. Recognizing these costs, Congress and the Court have in recent years erected labyrinthine obstacles to merits review on federal habeas.

The proceduralization of federal habeas corpus

Just as the Warren Court's "revolution" of criminal procedure became a target of extensive criticism, federal habeas's role in implementing the revolution also came under attack. Some critics argued that federal habeas had become excessively intrusive on legitimate state interests, notably the finality of state criminal convictions and comity for state courts. Other critics noted that the habeas remedy had strayed far from its historic common law roots as primarily a pretrial remedy. Despite regular efforts to limit federal habeas legislatively in the three decades after Brown, though, Congress refused to enact any meaningful habeas reform.

Nonetheless, the Supreme Court took the lead in reshaping and restricting the scope of the habeas forum. First, the Court imposed stricter rules governing procedural defaults, shifting the burden to petitioners to justify failing to comply with state procedural rules. These strict rules applied even in capital cases, with the result that a death-row inmate could lose all federal review of his constitutional claims based on his attorney's filing a state habeas appeal three days late (Coleman v. Thompson, 501 U.S. 722 (1991)). In addition, the Court adopted more onerous requirements for filing both same-claim and new-claim successive habeas petitions, essentially limiting state prisoners to one opportunity to litigate federal claimsnot one opportunity to litigate each federal claimin federal court even if new facts or new law subsequently confirmed or revealed additional constitutional violations.

Perhaps the most significant Court-initiated reform concerned its limitation on the retroactive availability of "new" constitutional law on federal habeas. Prior to the mid-1960s, the Court drew no important distinctions between inmates' claims seeking the benefit of new law and those seeking vindication of clearly established or longstanding constitutional doctrines. All decisions enforcing the constitutional rights of criminal defendants were simply presumed to have full retroactive effect. But the unprecedented expansion of criminal defendants' rights after the incorporation decisions prompted the Court to limit the impact of the growing constitutional criminal protections. At first, the Court adopted a balancing test that led to the retroactive application of some but not all of the new constitutional decisions. More recently, the Court adopted a presumptive rule prohibiting petitioners from seeking the benefit of new law on habeas; under the Court's approach, a federal habeas petitioner can avoid the nonretroactivity bar against newlaw claims only if the rule sought (or established in a recent decision) renders the underlying conduct of the petitioner unpunishable or represents a "watershed" contribution to the criminal justice system that substantially increases the reliability of the guilt-innocence determination (Teague v. Lane, 489 U.S. 288 (1989)).

The nonretroactivity doctrine has been of extraordinary practical significance. The Court's expansive conception of "new" law, which focuses on whether a petitioner's claim was "clearly dictated" by prior precedent, has blocked retroactive application of many decisions far less dramatic or path-breaking than the Warren Court rulings that had given rise to the doctrine. At the same time, courts have construed the exceptions quite narrowly. Few new rules prohibit states from punishing certain conduct at all, and, in the numerous retroactivity cases litigated at the Supreme Court level, the Court has declined to identify any new rule as sufficiently fundamental to command retroactive application.

By the early 1990s, the Court's procedural default, successive petition, and nonretroactivity decisions had significantly eroded state inmates' efforts to receive federal review of the federal lawfulness of their convictions via federal habeas corpus. In addition, the infamous 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City led Congress to substantially revisit the scope of federal habeas review for the first time in over 125 years. The resulting legislation, the Anti-Terrorism and Effective Death Penalty Act (AEDPA), was signed within days of the first anniversary of the Oklahoma City bombing. Whereas the previous habeas statute had extended the writ to all persons held in violation of the Constitution or laws or treaties of the United States, the AEDPA additionally requires that the challenged state adjudication "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)). The Court has recently construed this language as replacing the de novo standard articulated in Brown (Williams v. Taylor, 526 U.S. 1050 (1999)). According to the Court, this language requires federal habeas courts to sustain "reasonable" but "wrong" state court adjudications of federal rights. In addition, the AEDPA imposes a new limitations period on filing federal habeas petitions and further cuts habeas review of successive petitions.

The Court-initiated procedural obstacles to habeas review, together with the new "reasonableness" standard of review of the AEDPA, have transformed federal habeas into an enormously complex forum. Instead of debating whether a state prisoner's conviction or sentence violates federal constitutional norms, the parties and federal courts devote extraordinary resources attempting to resolve questions of procedural default, retroactivity, and the "reasonableness" of state court decision-making. In some respects, the current scope of federal habeas for state prisoners could be viewed as a compromise between advocates of federal supervision over state criminal processes and defenders of state autonomy. The compromise protects the fundamental jurisdictional power of the federal courts to review unconstitutional convictions of state prisoners. Yet the compromise increasingly saddles such jurisdiction with arcane and often insurmountable procedural barriers. For many critics, this state of affairs should be lamented because it sustains the appearance of extensive federal supervision of federal rights despite the reality of truncated and increasingly limited review.

Habeas corpus and capital punishment

The enormous growth of procedural obstacles on federal habeas, as well as the new limitations period established in the AEDPA, have made it extremely difficult for unrepresented petitioners, acting pro se, to receive federal review of their constitutional claims. As a result, the bulk of meaningful federal habeas litigation now involves death-sentenced inmates, for whom Congress recently established a statutory right to counsel on federal habeas. Death-row petitioners often focus their habeas litigation on the federal lawfulness of state death penalty procedures. When the Court first subjected state death penalty schemes to federal constitutional scrutiny in the early 1970s, the popular perception was that the Court was deciding the constitutional rightness or wrongness of the death penalty as a punishment. In 1976, the Court made clear that the death penalty was a permissible punishment so long as states developed adequate systems for ensuring its reliable and equitable administration.

The notorious subsequent history reveals the development of extremely intricate, difficult-to-apply doctrines that have plunged states and petitioners into a morass of confusing litigation concerning states' obligations in their administration of the death penalty. This litigation eventually arrives in federal court with the result that federal habeas has become less a broad forum for enforcing the federal rights of state prisoners generally than the inevitable battleground for enforcing or overturning state death sentences and elaborating the meaning of the Eighth Amendment in capital cases. The drafters of the AEDPA undoubtedly understood this when they equated "effective death penalty" with diminished federal habeas corpus.

The role of federal habeas in supervising state death penalty schemes has also prompted a reexamination of the scope of habeas review. Throughout American legal history, as a matter of black letter law, federal habeas could not serve as a forum for relitigating the accuracy of criminal convictions. But death-row inmates insisted that the difference in kind between capital punishment and imprisonment should require federal habeas relief where extremely strong evidence of actual innocence surfaces after trial and the state courts refuse to provide any post-trial mechanism for evaluating new evidence of innocence. In making this argument, capital defense lawyers borrowed from Judge Henry Friendly's influential article insisting that innocence should not be irrelevant to the availability of federal habeas review. But whereas Judge Friendly focused on innocence as a limiting principle, to restore habeas to its purported roots as an exceptional remedy, advocates for capital defendants sought to establish actual innocence as a separate and independent basis for habeas relief. In a much-observed case, the Court ultimately denied habeas relief to a death-sentenced inmate whose only claim was his actual innocence of the crime (Herrera v. Collins, 506 U.S. 390 (1993)). But the Court's decision ultimately turned on the petitioner's lack of sufficient new evidence of innocence, and the Court did not dispositively rule on the cognizability of such "bareinnocence" claims.

The future of federal habeas for state prisoners

Federal habeas corpus for state prisoners is presently in a precarious position. For its critics, federal postconviction review of state criminal convictions is an unjustifiable intrusion into state criminal justice systems. Such review subjects state court decisions to review in the lower federal courts (as opposed to the U.S. Supreme Court) often years after trial. To this extent, current federal habeas corpus departs from the traditional norm of hierarchical appeals to a final court in a timely manner. Moreover, federal habeas review as a practical matter has become a vehicle for extensive federal intervention in state death penalty practices.

For its defenders, federal habeas provides the lone meaningful opportunity for federal courts to have the last say regarding the content of federal law. Recognizing that discretionary Supreme Court review is not a practical means of supervising state court compliance with federal constitutional norms, federal habeas serves as an essential surrogate to review by the Court.

As the Court and Congress impose new and substantial procedural obstacles to federal habeas review, there is less reason to believe that federal habeas will provide much incentive for state courts, in the famous words of Justice Harlan, "to toe the constitutional mark" (Mackey v. United States, 401 U.S. 667 (1971)). The increased proceduralization will also take federal habeas far from its origins as a broad means of inquiring into the lawfulness of custody. In his ringing dissent decrying the Court's refusal to grant the writ in the face of a mob-dominated trial, Justice Holmes insisted that "habeas corpus cuts through all forms and goes to the very tissue of the structure" and "comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell" (Frank v. Mangum, 237 U.S. 309 (1915)). The future of federal habeas corpus will ultimately turn on whether federal enforcement of federal law is regarded as a desirable norm or an unnecessary and unjustified departure from state control over the federal rights of state prisoners.

ordan M. Steiker

See also Amnesty and Pardon; Appeal; Capital Punishment: Legal Aspects; Counsel: Right to Counsel; Criminal Procedure: Constitutional Aspects; Criminal Justice Process; Exclusionary Rule; Guilt; Prisoners, Legal Rights of.


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Chen, Alan K. "Shadow Law: Reasonable Unreasonableness, Habeas Theory, and the Nature of Legal Rules." Buffalo Criminal Law Review 2 (1999): 535634. "Developments in the Law: Federal Habeas Corpus." Harvard Law Review 83 (1970): 10381280.

Duker, William F. A Constitutional History of Habeas Corpus. Westport, Conn.: Greenwood, 1980.

Freedman, Eric M. "Milestones in Habeas Corpus: Part I. Just Because John Marshall Said It, Doesn't Make It So: Ex Parte Bollman and the Illusory Prohibition on the Federal Writ of Habeas Corpus for State Prisoners in the Judiciary Act of 1789." University of Alabama Law Review 51 (2000): 531602.

Friendly, Henry J. "Is Innocence Irrelevant? Collateral Attack on Criminal Judgments." University of Chicago Law Review 38 (1970): 142172.

Hoffman, Joseph L. "Substance and Procedure in Capital Cases: Why Federal Habeas Courts Should Review the Merits of Every Death Sentence." University of Texas Law Review (2000): 17711803.

Hurd, Rollin C. A Treatise on the Right of Personal Liberty, and on the Writ of Habeas Corpus, 2d ed. Albany, N.Y.: W.C. Little & Co, 1876.

Liebman, James S. "Apocalypse Next Time?: The Anachronistic Attack on Habeas Corpus/Direct Review Parity." University of Columbia Law Review 92 (1992): 19972097.

. "More Than 'Slightly Retro': The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane." New York University Review of Law and Social Change 18 (19901991): 537635.

Liebman, James S., and Hertz, Randy. Federal Habeas Corpus Practice and Procedure, 2d ed. Charlottesville, Va.: The Michie Co., 1994.

Oaks, Dallin H. "Habeas Corpus in the States: 17761865." University of Chicago Law Review 32 (1965): 243288.

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Steiker, Jordan. "Innocence and Federal Habeas." University of California at Los Angeles Law Review 41 (1993): 303389.

. "Incorporating the Suspension Clause: Is there a Constitutional Right to Federal Habeas Corpus for State Prisoners?" University of Michigan Law Review 92 (1994): 862924.

. "Restructuring Post-Conviction Review of Federal Constitutional Claims Raised by State Prisoners: Confronting the New Face of Excessive Proceduralism." University of Chicago Legal Forum (1998): 315347.

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Ableman v. Booth, 62 U.S. (21 How.) 506 (1858).

Brown v. Allen, 344 U.S. 443 (1953).

Coleman v. Thompson, 501 U.S. 722 (1991).

Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807).

Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1891) (No. 9487).

Fay v. Noia, 372 U.S. 391 (1963).

Frank v. Magnum, 237 U.S. 309 (1915).

Herrera v. Collins, 506 U.S. 390 (1993).

Mackey v. United States, 401 U.S. 667 (1971).

Williams v. Taylor, 526 U.S. 1050 (1999).

Wright v. West, 505 U.S. 277 (1992).

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Habeas Corpus


[Latin, You have the body.] A writ (court order) that commands an individual or a government official who has restrained another to produce the prisoner at a designated time and place so that the court can determine the legality of custody and decide whether to order the prisoner's release.

A writ of habeas corpus directs a person, usually a prison warden, to produce the prisoner and justify the prisoner's detention. If the prisoner argues successfully that the incarceration is in violation of a constitutional right, the court may order the prisoner's release. Habeas corpus relief also may be used to obtain custody of a child or to gain the release of a detained person who is insane, is a drug addict, or has an infectious disease. Usually, however, it is a response to imprisonment by the criminal justice system.

A writ of habeas corpus is authorized by statute in federal courts and in all state courts. An inmate in state or federal prison asks for the writ by filing a petition with the court that sentenced him or her. In most states, and in federal courts, the inmate is given the opportunity to present a short oral argument in a hearing before the court. He or she also may receive an evidentiary hearing to establish evidence for the petition.

The habeas corpus concept was first expressed in the magna charta, a constitutional document forced on King John by English landowners at Runnymede on June 15, 1215. Among the liberties declared in the Magna Charta was that "No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled, or injured in any way, nor will we enter on him or send against him except by the lawful judgment of his peers, or by the law of the land." This principle evolved to mean that no person should be deprived of freedom without due process of law.

The writ of habeas corpus was first used by the common-law courts in thirteenth- and fourteenth-century England. These courts, composed of legal professionals, were in competition with feudal courts, which were controlled by local landowners, or "lords." The feudal courts lacked procedural consistency, and on that basis, the common-law courts began to issue writs demanding the release of persons imprisoned by them. From the late fifteenth to the seventeenth centuries, the common-law courts used the writ to order the release of persons held by royal courts, such as the Chancery, admiralty courts, and the star chamber.

The only reference to the writ of habeas corpus in the U.S. Constitution is contained in Article I, Section 9, Clause 2. This clause provides, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." President abraham lincoln suspended the writ in 1861, when he authorized his Civil War generals to arrest anyone they thought to be dangerous. In addition, Congress suspended it in 1863 to allow the Union army to hold accused persons temporarily until trial in the civilian courts. The Union army reportedly ignored the statute suspending the writ and conducted trials under martial law.

In 1789, Congress passed the judiciary act of 1789 (ch. 20, § 14, 1 Stat. 73 [codified in title 28 of the U.S.C.A.]), which granted to federal courts the power to hear the habeas corpus petitions of federal prisoners. In 1867, Congress passed the habeas corpus act of February 5 (ch. 28, 14 Stat. 385 [28 U.S.C.A. §§ 2241 et seq.]). This statute gave federal courts the power to issue habeas corpus writs for "any person … restrained in violation of the Constitution, or of any treaty or law of the United States." The U.S. Supreme Court has interpreted it to mean that federal courts may hear the habeas corpus petitions of state prisoners as well as federal prisoners.

The writ of habeas corpus is an extraordinary remedy because it gives a court the power to release a prisoner after the prisoner has been processed through the criminal justice system, with all its procedural safeguards and appeals. For this reason, the burden is initially on the petitioning prisoner to prove that he or she is being held in violation of a constitutional right. If the petitioner can meet this burden with sufficient evidence, the burden then shifts to the warden to justify the imprisonment.

Rubin "Hurricane" Carter

Federal courts grant writs of habeas corpus only when grave constitutional violations have occurred. The granting of Rubin "Hurricane" Carter's habeas petition in 1985 freed him from almost 20 years of imprisonment for a crime he maintains he did not commit.

Carter was a top-ranked middleweight boxer when he and John Artis were arrested in 1966 and charged with murdering three people in Paterson, New Jersey. Carter and Artis were African American; the victims were white. Carter and Artis claimed they were the victims of racism and a police frame-up, but they were convicted of murder and sentenced to life imprisonment.

Carter fought his conviction in state court, but the verdict was upheld. In 1974 he published The Sixteenth Round: From Number 1 Contender to Number 45472. The book became a national best-seller and drew attention to his case. In 1975 Bob Dylan wrote and recorded the song "Hurricane," which recounted Carter's arrest and trial and characterized Carter as an innocent man. This publicity, along with an investigation by the New Jersey public defenders' office, led to a motion for a new trial. The motion was granted, but Carter and Artis were convicted again in 1976. Carter remained imprisoned; Artis was paroled in 1981.

After all state appeals were exhausted, the only remaining avenue for relief was to file for a writ of habeas corpus in federal court. In November 1985 Judge H. Lee Sarokin ruled that the second murder trial convictions were unconstitutional because the prosecution had been allowed to imply that guilt could be inferred by the defendants' race and because the prosecution withheld polygraph evidence that could have been used to impeach the credibility of their "star witness" (Carter v. Rafferty, 621 F. Supp. 533 [D.N.J. 1985]). Judge Sarokin therefore granted habeas corpus, overturned the convictions, and ordered "Immediate release from custody with prejudice."

The State of New Jersey appealed to the Third Circuit Court of Appeals, asking to reverse Sarokin's ruling and requesting that Carter remain incarcerated until a final ruling. The Third Circuit rejected both appeals. New Jersey appealed to the U.S. Supreme Court, which also refused to overturn. The state chose not to attempt a third prosecution of Carter and Artis. Carter moved to Canada where he headed the Association for the Defense of the Wrongly Convicted.

A prisoner may file a petition for a writ of habeas corpus with the sentencing court only after exhausting all appeals and motions. Federal courts may receive a petition from a state prisoner, but not until the petitioner has attempted all available appeals and motions and habeas corpus petitions in the state courts. Federal prisoners must exhaust all available appeals and motions in the federal sentencing court and federal appeals courts before filing a habeas corpus petition with the sentencing court. If the first petition is denied, the inmate may petition the appeals courts.

A petition for a writ of habeas corpus is a civil action against the jailer. It is neither an appeal nor a continuation of the criminal case against the prisoner. It is not used to determine guilt or innocence. Rather, the purpose is solely to determine whether the confinement is in violation of a constitutional right. This is significant because it limits the scope of complaints that a petitioner may use as a basis for the writ.

Violation of the Due Process Clauses of the Fifth and Fourteenth Amendments is the most common basis for a writ of habeas corpus. Prose-cutorial misconduct, juror malfeasance, and ineffective assistance of counsel are common due process grounds for the writ. fifth amendment grounds include failure of the police to give Miranda warnings before in-custody questioning, in violation of the right against self-incrimination, and multiple trials, in violation of the double jeopardy prohibition. The eighth amendment right against cruel and unusual punishment is another common ground for habeas corpus relief, especially in cases involving the death penalty or a lengthy prison term.

There are several notable restrictions on the writ's application. fourth amendment violations of the right against unreasonable search and seizure cannot be raised in a habeas corpus petition. Prisoners are not entitled to a court-appointed attorney for habeas corpus petitions. Newly developed constitutional principles will not be applied retroactively in habeas corpus cases except where doubt is cast on the guilt of the prisoner. Delay in filing a habeas petition may result in its dismissal if the government is prejudiced (i.e., made less able to respond) by the delay. In addition, the petitioner must be in custody to request a writ of habeas corpus. This rule prevents a prisoner from challenging a conviction through habeas corpus after serving out a sentence for the conviction.

The law of habeas corpus is ever changing. In the 1990s, the U.S. Supreme Court took steps to further limit the writ's application. In Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 318 (1992), the Court held that a habeas corpus petitioner is not entitled to an evidentiary hearing in federal court unless she or he can show two things: a reason for failing to develop evidence at trial, and actual prejudice to the prisoner's defense as a result of the failure. In Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993), the Court held that a claim of actual innocence is not a basis for federal habeas corpus relief. This means that newly discovered evidence alone does not entitle a petitioner to federal habeas corpus relief.

The availability and import of habeas corpus in state courts is also subject to change through judicial decisions and new laws. For example, in 1995, the Texas Legislature passed a law that made the habeas corpus process concurrent with appeals (Tex. Crim. Proc. Code Ann. art. 11.071). This law effectively limited the number of times that a Texas state prisoner could challenge the disposition of a criminal case. Significantly, the law applied to all criminal defendants, including those facing the death penalty. Under the legislation, a death row inmate has only one round of review in Texas state courts before seeking relief in federal court.

In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA) (Pub. L. No. 104-132, 110 Stat. 1214). Congress sought to streamline post-conviction appeals proceedings and to curtail the time that prisoners could use to seek habeas corpus relief. Since the enactment of the law, the U.S. Supreme Court has been called upon to interpret a number of the AEDPA provisions; these rulings primarily have addressed technical details of the workings of the new law but the Court has endorsed the AEDPA and removed jurisdiction from the lower federal courts to hear many habeas petitions. The Court upheld the constitutionality of the AEDPA in Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996).

The habeas corpus provisions represent a major shift in federal-state judicial relations, for Congress directed that federal courts generally defer to state court judgments on questions of federal constitutional law in criminal cases. The AEDPA established a "deference" standard, which mandates that the federal courts, in reviewing state court convictions, defer to a state court ruling on the merits of any habeas corpus claim. This deferral includes questions of fact and of law, as well as mixed questions of fact and law. A federal court must defer unless the state court 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 U.S. Supreme Court; or if the state conviction resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

The AEDPA also contains a number of specific rules for habeas corpus review. The act provides for a one-year filing deadline for non-capital habeas corpus petitions. The time starts running at the conclusion of direct review or expiration of time for seeking such review. The law requires a certificate of appealability from a circuit judge or justice before a petitioner may appeal from denial of relief. The petitioner must make a substantial showing of denial of a constitutional right, and the certificate must be issue-specific. The AEDPA also allows federal courts to deny relief with respect to unexhausted claims but may not grant relief if the claim is unexhausted. The habeas petitioner can avoid exhaustion only if there is no available state remedy or the remedy is ineffective to protect the petitioner's rights. If there is no state remedy because of a procedural default, federal review is still prohibited.

The AEDPA also places restrictions on the ability of a petitioner to obtain an evidentiary hearing on a claim where the prisoner failed to develop the factual basis. Because state court fact-findings are presumed to be correct, the petitioner must rebut the presumption by clear and convincing evidence. To obtain an evidentiary hearing, the petitioner must show that the claim relies on a new rule made retroactive by the U.S. Supreme Court or that the factual predicate could not have been discovered earlier through due diligence. Moreover, in all cases, the petitioner must show by clear and convincing evidence that but for the alleged error for which a hearing is sought, no reasonable factfinder would have found petitioner guilty of the underlying offense. This is a steep hurdle for a habeas petitioner to overcome.

The AEDPA also seeks to prevent the abuse of habeas corpus by limiting the number of times a prisoner may ask for a writ. A successive habeas petition may not be filed in district court unless the petitioner is authorized to do so by a three-judge panel of the Court of Appeals. The U.S. Supreme Court, in Felker, characterized this provision as an acceptable "gatekeeping" mechanism. If petitioners make a prima facie showing that they satisfy the exceptions against successive petitions they may proceed; otherwise the court must dismiss the petition. If a successive claim was presented in a prior petition, it must be dismissed; no exceptions are authorized by the AEDPA. Though the AEDPA provides some narrow exceptions to this rule, any claim must establish by clear and convincing evidence that but for the error no reasonable factfinder would have found the petitioner guilty of the underlying offense.

In habeas petitions from death row inmates, the AEDPA imposes additional rules beyond those already described. The rules apply to states that establish certain standards for competence of counsel. For states to benefit from these additional limitations, they must provide a mechanism for appointment and compensation of competent counsel in state post-conviction proceedings or for appointment of counsel to handle the appeal and post-conviction remedies in a unitary proceeding. Once the state court has made an appointment of counsel, a federal court that would have jurisdiction over the case may enter a stay of execution. The stay expires if a timely petition is not filed, if the prisoner properly waives the right to pursue federal habeas relief, or if relief is denied at any stage of federal review. Once a stay vacates under any of those circumstances, a new one may not be imposed unless the petitioner can overcome the presumption against successive petitions.

The AEDPA sets a time limit for habeas petition in capital cases: The petition must be filed within 180 days after final state court affirmance on direct review. In addition, the AEDPA requires that capital habeas cases be given priority over all non-capital matters, and it imposes time limits on resolution. These include a decision by the district court within 180 days after the petition is filed, although the court may extend its time by no more than 30 days. Failure by the district court to act within the time limits may be enforced by a petition for writ of mandate. More importantly, a court of appeals must decide the case within 120 days after the reply brief is filed; any petition for rehearing must be decided within 30 days after the petition is filed, or 30 days after any requested responsive pleading is filed. If rehearing or rehearing en banc is granted, the case must be decided within 120 days after the order granting such rehearing. In addition, the time limits are applicable to all first petitions, successive petitions, and habeas cases considered on remand from a court of appeals or the U.S. Supreme Court.

The AEDPA has changed the legal landscape for prisoners seeking writs of habeas corpus. Petitioners must act within set deadlines, and they must attempt to place all issues in dispute before the first habeas-reviewing federal court or risk the chance of being rejected in a successive petition.

further readings

Freedman, Eric M. 2001. Habeas Corpus: Rethinking the Great Writ of Liberty. New York: New York Univ. Press.

Harrington, James C., and Anne More Burnham. 1995. "Texas's New Habeas Corpus Procedure for Death-Row Inmates: Kafkaesque—and Probably Unconstitutional." St. Mary's Law Journal 27 (fall).

Jones, Andrew A. 1994. "Federal Habeas Corpus Evidentiary Hearings: Has the Court Deliberately Bypassed Section 2254(D)?" Wisconsin Law Review (January-February).

Morse, Charles R. 1993. "Habeas Corpus and 'Actual Innocence': Herrera v. Collins, 113 S. Ct. 853 (1993)." Harvard Journal of Law and Public Policy 16 (autumn).

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habeas corpus

habeas corpus. Before Magna Carta, the writ of habeas corpus constituted a command in the king's name to have a defendant brought physically before the court. It had then no libertarian function. In the 15th and 16th cents. it was used to remove a case from an inferior court to the central courts. By the mid-15th cent. it tested the legality of detention and the common law courts used it to release litigants who had been imprisoned by the Court of Chancery. In the 17th cent. it was employed to challenge arbitrary arrests by the royal government and, as such, played a crucial role in the constitutional disputes. In Darnel's case in 1627, which arose out of a forced loan, the judges refused to allow bail to a person detained ‘at the special command of the king’. The petition of right (1628) protested at the practice, but opponents of the crown such as Sir John Eliot and John Selden (1629) continued to be committed for political purposes.

When the king lost control of the situation in 1640, his adversaries moved to defend habeas corpus. The Act of 1641 which abolished Star Chamber declared that the writ could ensure that a person imprisoned by king and council should be brought before the court without delay with the cause of imprisonment shown, the court should pronounce on the legality of the detention, and should bail, discharge, or remand the prisoner.

After the Restoration, the struggle was resumed, since many loopholes in the law remained. In Bushell's case (1670) habeas corpus was used to release a juryman who had been gaoled for returning what the court regarded as a perverse verdict. After several attempts, the Habeas Corpus Act of 1679 blocked up many of the loopholes and improved the mechanism of enforcement. Though habeas corpus was suspended at many times subsequently, the suspension had to be justified and aroused concern for civil liberty. In Scotland, the equivalent to habeas corpus was obtained by an Act for Preventing Wrongous Imprisonments in 1701. There was considerable agitation throughout the 18th cent. for the extension of habeas corpus to Ireland, but governments insisted that the situation was too volatile. It was one of the concessions gained in 1781 by the Irish Volunteer movement.

J. A. Cannon

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Habeas Corpus

Habeas Corpus

The formal term, writ of habeas corpus ad subjiciendum is Latin for "you shall have the body subjected to examination." Commonly stated as writ of habeas corpus, it is generally defined as a judicial order that is issued by a judge on the behalf of a prisoner, and directed to an official of a prison or other detention facility that has custody of the prisoner. The legality of the writ of habeas corpus is formally contained in state constitutions and within the United States Constitution: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." [Article 1, Section 9,]

The writ of habeas corpus has a long history that probably originated in twelfth-century England as a way to release illegally detained persons. It was used over the next several centuries as part of common law within the English government. In 1679, the Habeas Corpus Act was passed by the English Parliament in order to guarantee this mandate in law. Today, in the United States and other countries around the world (in various forms), the writ of habeas corpus is a fundamental liberty that guarantees due process to prisoners without deciding innocence or guilt.

Before petitioning for a writ of habeas corpus, a prisoner must prove that all other available means have been attempted. In order to hold a valid writ of habeas corpus, the prisoner must demonstrate that a real or legal mistake was made by the court ordering the original detention or imprisonment. When approved, a writ orders a law enforcement official to deliver a detainee to a specified judge's court at a specific time in order to determine whether the prisoner should be released from custody or continue to be imprisoned. In most cases of present-day usage, the writ is used to appeal state criminal convictions to the federal courts. In some other cases, a writ may be used against a private individual detaining another private individual. For example, people who have been denied custody of children in divorce and adoption proceedings may file a writ of habeas corpus with the court system.

see also Latin forensic terms.

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habeas corpus

habeas corpus (hā´bēəs kôr´pəs) [Lat.,=you should have the body], writ directed by a judge to some person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a specified place for a specified purpose. The writ's sole function is to release an individual from unlawful imprisonment; through this use it has come to be regarded as the great writ of liberty. The writ tests only whether a prisoner has been accorded due process, not whether he is guilty. The most common present-day usage of the writ is to appeal state criminal convictions to the federal courts when the petitioner believes his constitutional rights were violated by state procedure. An individual incarcerated in a state prison is expected to exhaust all possible routes available before applying to a federal judge for habeas corpus.

The term is mentioned as early as the 14th cent. in England, and was formalized in the Habeas Corpus Act of 1679. The privilege of the use of this writ as a safeguard against illegal imprisonment was highly regarded by the British colonists in America, and wrongful refusals to issue the writ were one of the grievances before the American Revolution. As a result, the Constitution of the United States provides that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" (Article 1, Section 9). President Lincoln suspended habeas corpus in 1861 at the beginning of the Civil War, and his decision was upheld by Congress—despite protests by Chief Justice Roger Taney that such suspension was not within the powers of the president. The Supreme Court's liberal decisions in the 1950s and 1960s in the area of prisoners' rights encouraged many incarcerated persons to file writs challenging their convictions, but the Court under William Rehnquist limited multiple habeas corpus filings, particularly from prisoners on death row.

See P. D. Halliday, Habeas Corpus: From England to Empire (2010); J. J. Wert, Habeas Corpus in America (2011).

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Habeas Corpus Act

Habeas Corpus Act (1863).In the early months of the Civil War, President Abraham Lincoln suspended the privilege of the writ of habeas corpus in the border states and subsequently throughout the North. A writ of habeas corpus orders a person detaining another, the petitioner, to bring that person before a judge, who can determine the lawfulness of the detention. The suspension of this privilege allowed the government to take into custody persons suspected of disloyal activities and hold them until they no longer posed a threat to the Union. In response to complaints about arbitrary arrests and doubts about the president's authority to suspend the writ, Congress enacted the Habeas Corpus Act in March 1863. The act legitimized Lincoln's suspensions of habeas corpus and approved future suspensions for the duration of the war. It also sharply limited the time a prisoner could be held without trial by requiring that civilians arrested and detained by the military be released if grand juries failed to indict them. Finally, the act afforded protection to federal officials who were sued in state court for arresting and detaining civilians and for acts performed while enforcing federal conscription and emancipation policies. It authorized removal of these suits to federal courts (where defendants were less likely to face hostile judges and juries) and stipulated that any order made under authority of the president was a defense against such suits.
[See also Civil Liberties and War; Commander in Chief, President as; Merryman, Ex Parte; Milligan, Ex Parte.]


James G. Randall , Constitutional Problems Under Lincoln, 1926.
Harold M. Hyman and and William M. Wiecek , Equal Justice Under Law: Constitutional Development, 1835–1875, 1982.

Mary J. Farmer

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Habeas Corpus Act


The Habeas Corpus Act was an English statute enacted in 1679 during the reign of King Charles II. It was subsequently amended and supple-mented by enactments of Parliament that permitted, in certain cases, a person to challenge the legality of his or her imprisonment before a court that ordered the person to appear before it at a designated time so that it could render its decision. The Habeas Corpus Act served as the precursor of habeas corpus provisions found in U.S. federal and state constitutions and statutes that safeguard the guarantee of personal liberty.

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habeas corpus

habeas corpus (Lat. ‘you have the body’) Writ in English law for the protection of the liberty of the individual. Of the several kinds of writs of habeas corpus, the most important is the habeas corpus ad subjiciendum, which commands a person who holds another in custody to bring the captive before the court and to state the cause of detention.

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habeas corpus

ha·be·as cor·pus / ˈhābēəs ˈkôrpəs/ • n. Law a writ requiring a person under arrest to be brought before a judge or into court, esp. to secure the person's release unless lawful grounds are shown for their detention. ∎  the legal right to apply for such a writ.

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"habeas corpus." The Oxford Pocket Dictionary of Current English. . 14 Dec. 2017 <>.

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habeas corpus

habeas corpus (leg.) writ requiring a person to be brought before the court. XV. First words of the writ beginning Habeas corpus ad subjiciendum (etc.) you shall produce the body (of the person concerned, in court) to undergo (what the court may award); L. habeās, 2nd pers. sg. pres. subj. of habēre have, corpus body.

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habeas corpus

habeas corpus a writ requiring a person under arrest to be brought before a judge or into court, especially to secure the person's release unless lawful grounds are shown for their detention.

Recorded from late Middle English, the phrase is from Latin, literally ‘thou shalt have the body (in court)’.

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