IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Case No. 99 Civ. 5089 (Yohn)
MUMIA ABU-JAMAL,
Petitioner,
v.
MARTIN HORN, Commissioner,
Pennsylvania Department of Corrections,
and CONNER BLAINE, Superintendent
of the State Correctional Institute at
Greene, Respondents.
___________________________________________
AMICUS CURIAE BRIEF IN SUPPORT OF
PETITION FOR WRIT OF Habeas Corpus
(THIS IS A CAPITAL CASE)
Center for Human Rights and Constitutional Law
International Association of Democratic Lawyers
National Lawyers Guild
Southern Poverty Law Center
National Conference of Black Lawyers
Prisoners Self Help Legal Clinic
By: JOSEPH Z. TRAUB, ESQUIRE
1204 Walnut St., #4
Philadelphia, PA 19107
(215) 893-9051
TABLE OF CONTENTS
A. Introduction
B. Habeas Corpus Review
C. History Of The "Great Writ"
D. Habeas Corpus In The United States
E. Congressional Alterations Of habeas corpus
F. Common Law Habeas Corpus
G. Nature And Procedures Of A Habeas Corpus Action
H. The Amendments Of The AEDPA
I. History And Legislative Intent Of The AEDPA
J. Applicability Of The New Law: A Threshold Question
1. Adjudication on the merits.
2. Findings of fact.
3. The AEDPA does not apply if it results in an unconstitutional retroactive application.
4. Summary
K. Right To An Evidentiary Hearing
L. Conclusion
INDEX OF AUTHORITIES
A. Introduction
The undersigned amici curiae submit the present Brief in support of Mumia Abu-Jamal's Petition for Writ of Habeas Corpus. The present Brief underscores the full magnitude of the rights and interests at issue in the Petition under consideration, discusses the parameters of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), and concludes that Petitioner is entitled to an evidentiary hearing on the merits of his Petition.
The writ of habeas corpus as a remedy for wrongful incarceration is of transcendent historical significance in American law, long predating the colonization of North America and the creation of the United States. The power of federal courts to grant habeas corpus relief has expanded over time. Federal courts now have full power to determine whether an individual's incarceration is in violation of the Constitution or federal law, in a civil proceeding independent from the state criminal proceedings and requiring a full evidentiary hearing.
This power was not diminished by the passage of the AEDPA. The AEDPA merely instituted a requirement that federal courts pay a certain degree of procedural deference to state court proceedings, by requiring that the state court's decision be evaluated on the basis of its adherence to then-established Supreme Court law. Further, the AEDPA does not retroactively apply to Petitioner's cause, if it would diminish the Constitutional protections to which he was entitled before its passage.
Petitioner is entitled to a full evidentiary hearing on the merits of his Petition. A federal court is obliged to hold its own evidentiary hearing on habeas corpus if, among other factors, the fact-finding procedures employed by the State were not adequate to afford a full and fair hearing, the material facts were not adequately developed at the state court hearing, the application did not receive a full, fair and adequate hearing in the state court proceedings, or the state court trier-of-fact has not reliably found the relevant facts. amici curiae respectfully request that this Court grant a full evidentiary hearing on the Petition for Writ of habeas corpus.
B. Habeas Corpus Review
Habeas corpus is a remedy whose "most basic traditions and purposes" are to "avoid the grievous wrong of holding a person in custody in violation of the Federal Constitution [or laws or treaties] and thereby both protect individuals from unconstitutional convictions and help to guarantee the integrity of the criminal process by assuring that trials are fundamentally fair." O'Neal v. McAninch, 513 U.S. 432, 442, 115 S. Ct. 992, 997 (1995). Further, habeas corpus is a remedy that "has been for centuries esteemed the best and only sufficient defense of personal freedom" which, if withdrawn, "risk[s] injury to an important interest in human liberty." Lonchar v. Thomas, 517 U.S. 314, 116 S. Ct. 1293, 1299 (1996), quoting Ex parte Yerger, 75 U.S. (8 Wall.) 85, 95 (1869) (emphasis added).
The United States Supreme Court has consistently found that "because there is a qualitative difference between death and any other punishment, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 2747 (1983), citing Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991 (1976). "[E]very member of this [the United States Supreme] Court has written or joined at least one opinion endorsing the proposition that because of its severity and irrevocability, the death penalty is qualitatively different from any punishment, and hence must be accompanied by unique safeguards[.]" Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 3166-67 (1985). See also, Monge v. California, 524 U.S. 721, 118 S. Ct. 2246, 2252 (1998), quoting Gardner v. Florida, 430 U.S. 349, 357-58 (1997), citing Lockett v. Ohio, 438 U.S. 586, 604 (1978) (Opinion of Burger, C.J.) ("qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed").
While there is a responsibility not to interfere with the sovereign power of the State, it is also the right and the duty of the federal courts to conduct its judicial work in a manner that reflects the seriousness of inflicting the death penalty upon a human being. Williams v. Chrans, 50 F.3d 1358, 1360 (7th Cir. 1995) (per curiam). In fact, the federal court's "duty to search for constitutional error with painstaking care is never more exacting than in a capital case." Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 1560 (1995). Although not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state court judgment, the severity of the sentence mandates a careful scrutiny in the review of any colorable claim of error. Zant, supra, at 2747.
C. History Of The "Great Writ"
This case follows several centuries of well established Anglo-American habeas corpus jurisprudence. That body of decisions is founded on an early recognition that "[t]he right of personal liberty" is an "absolute right" established on the firmest basis by the provisions of Magna Carta, and a long succession of statutes enacted under Edward III. Blackstone's Commentaries, Book III, Ch. 8, §§ 119, 128-29, at 1115, 1126 (Lewis' Ed., Reese, Welsh & Company 1897). Further:
[w]e know - it is a maxim - that this right of liberty must have had a remedy, and, if none was known, one must have been invented after 1215; and that one was invented before 1640 or 1679[.] the great writ must have been contrived in that interim. Hallam, Const. Hist. 617, narrates that in the case of a freeman detained in prison on a criminal charge 'it was always,' that is before 1679, in his power to demand the King's Bench a writ of habeas corpus[.]
George F. Longsdorf, habeas corpus: A Protean Writ and Remedy, 8 F.R.D. 179 (1949).
This remedy that was invented was, in fact, the "great and efficacious writ in all manner of illegal confinement [] habeas corpus ad subjiciendum; [It was] directed to the person detaining another, [] commanding him to produce the body of the petition [] to do, submit to, and receive, whatsoever the judge or court awarding such writ shall consider in that behalf." Blackstone Commentaries, supra, § 131, at 1127.
Originally, the Writ of Habeas Corpus was simply a judicial mechanism by which the sheriff or other custodian was commanded to "have the body" of some person before the court. Notwithstanding its early purposes and functions, its use as a means of correction is well illustrated by cases decided in the latter part of the fourteenth century.
The writ is particularly significant because it goes much further than demanding the presentment of the prisoner's body together with the cause of his taking and detention, in that it includes an explicit statement of the court's intention upon examination: 'in order that the king might give order for his delivery according to right and the law and custom of the realm.'
William F. Ducker, The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame, 53 N.Y.U. L. Rev. 983, 1009 (1978). In 1629, Chamber's Case confirmed that the writ of habeas corpus had assumed a new role. [] The questioning of the validity of commitments, previously an incidental effect of the writ, now became the major object. It was at this point, then, that the writ of habeas corpus embarked upon its journey as 'the highest remedy in law, for any man that is imprisoned.'" Ducker, supra, at 1035.
Yet, abuse of the writ by the English courts was common. [1] These abuses led to legislation that culminated in the passage of the " Habeas Corpus Act of 1679." The Act formalized certain provisions of the habeas corpus law [including adding penalties for evasion of the writ], but "all other cases of unjust imprisonment [were] left to the habeas corpus at common law." Blackstone Commentaries, supra, § 137, at 1133. "It should be noticed that the [Act of 1679] did not grant anything new; that it did not make habeas corpus, but merely made efficient a writ, which was recognized as already existing." A.H. Carpenter, Habeas Corpus in the Colonies, 8 Am. Hist. Rev. 18, 19 (1902). In fact, "the development of habeas corpus can largely be attributed to the unconscious forces of constitutional law. [] The writ became a viable bulwark between the powers of government and the rights of the people in both England and the United States." Ducker, supra, at 1054.
D. Habeas Corpus In The United States
"Habeas Corpus came to America and became part of the common and statute laws of the several states and of the United States." Longsdorf, supra, at 181. Habeas corpus was "claimed as among the immemorial rights descended to [the Colonists] from the ancestors." Yerger, supra, at 96. "[T]he habeas corpus, brought by our ancestors as their birthright, to this country, was the common law habeas; that great embodiment of free principle, which [was] born with the sturdy Roman [and] preserved by the free Saxon." In re McDonald, 16 Fed. Cas. 17, 31 (E.D. Mo. 1861) (Treat, J.).
The writ "was a common law writ and remedy. [] It was therefore common law in the Colonies and the several States." George F. Longsdorf, The Federal Habeas Corpus Acts: Original and Amended, 13 F.R.D. 407 (1953). "[T]he rights of the colonists as regards the writ of habeas corpus rested upon the common law with the exception of South Carolina, which re-enacted the English statute. The lack of statute did not mean that the colonists had no protection for their personal rights, for the want was supplied by the common law, and also by the placing of habeas corpus provisions in their court laws." Carpenter, supra, at 26. "That [petitioning for the writ] must have been a common practice is [] shown by Samuel Sewall, for he speaks in his Diary, Dec. 11, 1705, of issuing of habeas corpus." Carpenter, supra, at 21.
With the birth of the Union came the debates concerning principles of comity and federalism. "The powers delegated by the proposed Constitution to the federal government [were] few and defined. Those which [were] to remain in the State governments [were] numerous and indefinite. [] The powers reserved to the several States [would] extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people." The Federalist No: 45, 1787 (Rossiter ed., Mentor printing at 292-93 1961) (emphasis added). "The United States recognized the Great Writ as inherited common law by Const. Art. I, Sec. 9." Longsdorf, supra, 8 F.R.D. 181. "Considered by the Founders as the highest safeguard of liberty, it was written into the Constitution that its 'privilege' shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it." Const. Art. I, Sec. 9, Cl. 2; Smith v. Bennett, 365 U.S. 708, 81 S. Ct. 895, 897-98 (1961). Yet, "[i]n the early days of the Republic, the colonists viewed the writ [] as protection for citizens only against the new federal government. [] The colonists had no fear that their states might abuse their power. Accordingly, the Judiciary Act of 1789 made the writ available only to federal prisoners and prohibited any inquiry by the federal courts into the propriety of state custody." Hartman & Nyden, Habeas Corpus and the New Federalism After the Anti-Terrorism and Effective Death Penalty Act of 1996, 30 John Marshall L. Rev. 337, 339 (1997).
E. Congressional Alterations Of Habeas Corpus
Pursuant to the Judiciary Act of 1789 (1 Stat. 81), the United States Supreme Court "dislaim[ed] all jurisdiction not given by the constitution or by the laws of the United States." Ex parte Bollman, 8 U.S. 75, 94 (1807). The "restriction is interposed by the proviso to the fourteenth section of the act. [] It is in these words: 'Provided, that writs of habeas corpus shall in no case extend to prisoners in jail, unless they are in custody under or by color of the authority of the United States.'" [2] The object of the proviso "was to prevent any possible conflict between the federal and state tribunals. [] The proviso simply inhibits [the federal courts] from sending the writ to persons in legal custody in jail, unless there under the authority of the United States." Ex parte Des Roches, 7 Fed. Cas. 537, 539 (C.C. Cal. 1856); see also In re McDonald, supra, at 22. Unquestionably, though, the federal courts had the power to grant the writ in all other cases it would reach at common law. Des Roches, at 538.
Habeas Corpus proceedings were governed by the common law of England, as it stood at the adoption of the Constitution, subject to such alterations as Congress might see fit to prescribe. McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454, 1461 (1991); see also Ex parte Kaine, 14 Fed. Cas. 78, 80 (S.D. N.Y. 1853), citing Ex parte Watkins, 3 Pet. (28 U.S.) 193 (1830). Yet, the powers of Congress to regulate the writ were not unlimited since habeas corpus was viewed as "an indefeasible privilege, above the sphere of ordinary legislation." And, if Congress had attempted to deny all federal jurisdiction or limit or declare in which specific instances the writ could be issued, "it would be difficult to escape the conclusion that the ancient and venerable privilege of the writ of habeas corpus had not been in some degree suspended, if not annulled." In re McDonald, supra, at 29.
The decisions of the federal courts refusing to grant habeas corpus relief because of a lack of jurisdiction, though, in no way diminished the historical fact that habeas corpus lay to "test any restraining contrary to fundamental law." The Framers, as well as every Colonist, clearly expected that the States would fully and fairly make available the Great Writ as it was known at common law and in the court rules of the various Colonies. The Federal Constitution's Suspension Clause merely guaranteed that the writ would not be suspended except in extraordinary circumstances. This provision thus insured that if the States failed in their responsibilities, the United States Constitution would authorize federal intervention, since habeas corpus is a right of national citizenship protected by the Privileges and Immunities Clause. See Slaughter House Cases, 83 U.S. (16 Wall.) 36, 114-15 (1872) (Bradley, J. dissenting).
As the Union aged, Congress found it necessary to amend the habeas corpus jurisdictional statues from time to time because of the failings of the States. While a State might not abuse its powers against one of its own citizens, an abuse of power might be directed towards others. In fact, the experiences of history taught, and the National Congress was quick to recognize, that the States were not always true to the purposes of the Great Writ. Thus, Congress determined that federal courts must have jurisdiction to enforce the fundamental purposes of the writ of habeas corpus to prevent de facto suspension of the Great Writ. [3] Congress then used "[t]he habeas corpus jurisdictional statute [to] implement[] the constitutional command that the writ of habeas corpus be made available." See Jones v. Cunningham, 371 U.S. 236, 238, 83 S. Ct. 373 (1963).
All the significant statutory changes in the federal writ have been prompted by grave political crises. The first modification [] was made [] March 2, 1833 [] in response to South Carolina's nullification ordinance. The Act provided that federal courts and judges could release from state custody persons who had been acting under federal authority. The Act of August 29, 1842 [] which extended federal habeas to foreign nationals acting under authority of a foreign state, was prompted by British diplomatic protest following the trial of a Canadian soldier by a New York court. [] The Act of February 5, 1867 [] which extended federal habeas to state prisoners generally, was passed in anticipation of possible Southern recalcitrance toward Reconstruction legislation.
Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 828, n. 9 (1963).
"[T]he general spirit and genius of our institutions has tended to the widening and enlarging of the habeas corpus jurisdiction of the courts and judges of the United States." Yerger, at 102 (1868). In 1867, Congress sought to provide a federal forum for state prisoners having constitutional defenses by extending the habeas corpus powers of the federal courts to their constitutional maximum. Fay, supra, at 842. The legislation was "of the most comprehensive character. It br[ought] within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties, or laws. It [wa]s impossible to widen the jurisdiction." Ex parte McCardle, 73 U.S. 318, 325-26 (1867).
"[W]hen the 1867 Congress provided that persons restrained of their liberty in violation of the Constitution could obtain a writ of habeas corpus from a federal court, it undoubtedly intended [] to incorporate the common law uses and functions of this remedy." Dallin Oaks, Legal History in the High Court - Habeas corpus, 64 Mich. L. Rev. 451, 452 (1966). "[T]he Act of 1867 [] restored rather than extended the common-law powers of the habeas judge." Fay, supra, at 868, n. 27. And, even though the appellate jurisdiction of the Supreme Court was rescinded by the Act of March 27, 1868 (14 Stat. 44), final action in habeas cases rested with the district and circuit judges. Charles Warren, The Supreme Court in United States History, Vol. II, at 687 (Little, Brown & Company 1935). Thus, since 1867, the full and complete common law usages of the Writ of Habeas Corpus have come within the "jurisdiction" of the federal courts.
F. Common Law Habeas Corpus
"The more liberal principles . . . of the common law" regulate the exercise of writ of habeas corpus. In re McDonald, supra, at 31. And, since "[t]he common law [] ought not to be repealed unless the language of a statute be clear and explicit for that purpose," Fairfax's Devisee v. Hunter's Lessee, 11 U.S. 603, 623 (1812), and no act of Congress has ever repealed the common law of habeas corpus, those common law usages are still appropriately considered in habeas litigation.
The Supreme Court has acknowledged this when, upon their consideration of centuries of Anglo-American common law, the Court held that:
. . . the Great Writ, habeas corpus ad subjiciendum [] is a writ antecedent to statute [] throwing its root deep into the genius of our common law [] affording as it does a swift and imperative remedy in all cases of illegal confinement. It is immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. [] Received into our own law in the colonial period, given explicit recognition in the Federal Constitution[,] incorporated in the first grant of federal court jurisdiction[,] there is no higher duty than to maintain it unimpaired.
Fay, supra, at 827-28. See also Eisentrager v. Forrestal, 174 F.2d 961, 964 n. 12 (D.C. Cir. 1949); Ex parte Thompson, 96 A. 102, 85 N.J. Eq. 221 (N.J. Ch. 1915).
Even today, the United States Supreme Court consistently adheres to the principle that habeas corpus is, "at its core, an equitable remedy." Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 863 (1995). Statutes, rules, precedents, and practices control the writ's exercise. Within constitutional constraints, they reflect a balancing of sometimes controversial objectives which are normally for Congress to make, but which courts will make when Congress has not resolved the question. Lonchar, supra, at 1298. As such, the Supreme Court has, at times, even ignored statutory changes that attempted to limit habeas corpus, review.
In Kuhlmann, [4] seven Members of th[e] Court squarely rejected the argument that in light of the 1966 amendments, 'federal courts no longer must consider the "ends of justice" before dismissing a successive petition.' [] [I]n Kuhlmann, [w]e held that despite the removal of [the reference to the ends of justice] from 28 U.S.C. Sec. 2244(b) in 1966, the miscarriage of justice exception would allow successive claims to be heard.
Schlup, supra, at 863; see also Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S. Ct. 1618, 1621 (1998) (interpretation of "second or successive" language in AEDPA to preclude later consideration of claims dismissed initially as untimely would be "perverse").
Simply put, the various habeas corpus jurisdictional statutes could not restrict and, thus, did not change the time honored and constitutionally guaranteed understanding of the purposes, common law usages and availability of the Writ of Habeas Corpus ad Subjiciendum. "The history of the writ indicates that it constitutes a prompt avenue of redress for grievances second to none. [R]estrictions upon its availability must be narrowly construed, must be clear and unequivocal, and not [] imposed by judicial gloss." United States ex rel. Norris v. Norman, 296 F. Supp. 1270, 1272-73 (N.D. Ill. 1969) (Parsons, J.). And, restrictions upon the constitutional availability of the writ must not now be imposed by legislative gloss since "the Suspension Clause of the Constitution refers to the writ as it exists today." Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 2340 (1996). "[S]ince [1867], Congress has generally left it within the federal court's equitable discretion to determine the specific conditions that warrant habeas relief. (cites) Habeas corpus doctrine has thus ebbed and flowed over the years as courts' understandings of what 'law and justice require' have changed." Gomez v. Acevedo, 106 F.3d 192, 197 (7th Cir. 1997). The AEDPA does not change that this Court is to "dispose of the matter as law and justice require." 28 U.S.C. § 2243 (1996).
G. Nature And Procedures Of A Habeas Corpus Action
Habeas corpus, technically speaking, is a civil proceeding. O'Neal, supra, at 996. "[T]he traditional characterization of the writ of habeas corpus as an original [] civil remedy for the enforcement of the right to personal liberty, rather than a stage of the state criminal proceedings or as an appeal therefrom, emphasizes the independence of the federal habeas proceedings from what has gone before. Fay, supra, at 841.
As the Supreme Court has noted:
Habeas Vorpus is not an appellate proceeding, but rather an original civil action in a federal court. (cites) [I]t is a new suit brought by [the petitioner] to enforce a civil right. (cite) Any possible doubt about this point has been removed by the statutory procedure Congress has provided for the disposition of habeas corpus petitions, a procedure including such non-appellate functions as the allegation of facts [] the taking of depositions and the propounding of interrogatories [] the introduction of documentary evidence [] and, of course, the determination of facts at evidentiary hearing.
To be sure, habeas corpus has its own peculiar set of hurdles a petitioner must clear before his claim is properly presented to the district court. The petitioner must, in general, exhaust available state remedies (cite), avoid procedural default (cite), not abuse the writ (cite) and not seek retroactive application of a new rule of law. (cite) [] But once they [the hurdles] have been surmounted - once the claim is properly before the district court - a habeas petitioner, like any civil litigant, has had a right to a hearing where one is necessary to prove the facts supporting his claim. (cites).
Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 1722 (1992) (emphasis added). Also, the Supreme Court has repeatedly noted the interplay between statutory language and judicially managed equitable considerations in the development of habeas corpus jurisprudence. Schlup, supra, at 863 n. 35.
As the writ has evolved into an instrument that now demands not only conviction by a court of competent jurisdiction (cite) but also application of basic constitutional doctrines of fairness (cite), Congress, the Rule writers, and the courts have developed more complex procedural principles that regularize and thereby narrow the discretion that individual judges can freely exercise. Those principles seek to maintain the courts' freedom to issue the writ, aptly described as the 'highest safeguard of liberty,' (cite), while at the same time avoiding serious, improper delay, expense, complexity, and interference with a State's interest in the 'finality' of its own legal processes. (cites) These legal principles are embodied in statutes, rules, precedents, and practices that control the writ's exercise.
Lonchar, supra, at 1298.
"When a federal district court reviews a habeas corpus petition pursuant to 28 U.S.C. § 2254, it must decide whether the petitioner is 'in custody in violation of the Constitution or laws or treaties of the United States.' The court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter." Coleman v. Thompson, 501 U.S. 722, 730, 111 S. Ct. 2546, 2554 (1991) (citations omitted).
H. The Amendments Of The AEDPA
Unaffected by the April 24, 1996 amendments [5] to the habeas corpus statute, 28 U.S.C. § 2243 provides that, "[t]he Court shall summarily hear and determine the facts, and dispose of the matter as law and justice require" (emphasis added). "The task of a federal court reviewing a habeas petition remains the same as before: to determine whether a State prisoner is 'in custody in violation of the Constitution or laws or treaties of the United States.'" United States ex. rel Howard v. DeTella, 959 F. Supp. 859, 863 n. 4 (N.D. Ill. 1997) (Castillo, J.).
I. History And Legislative Intent Of The AEDPA
From 1867 until 1966, the federal courts treated a habeas corpus proceeding entirely as an original civil action. Murray v. Giarrantano, 492 U.S. 1, 8, 109 S. Ct. 2765 (1989). Although a prisoner had to exhaust state remedies, the federal court did not review the state court's decision but addressed the claims anew. Riddle v. Dyche, 262 U.S. 333, 335-36, 43 S. Ct. 555 (1928). The state decision "counted" only as a case on point from another jurisdiction, Brown v. Allen, 344 U.S. 443, 458, 73 S. Ct. 397 (1953), and thus had no statutory role in the federal adjudication.
In 1948, Congress codified the habeas jurisdictional provisions at 28 U.S.C. §§ 2241(c)(3) and 2254(a), providing federal courts jurisdiction to entertain petitions on behalf of state prisoners "in custody in violation of the Constitution." The 1996 amendments did not modify Sections 2241(c)(3) or 2254(a). Today, as in 1867, a district court "shall entertain" an application and "forthwith" award the writ if the applicant shows that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2241(c)(3), 2243, 2254(a) (1996). These jurisdictional provisions were unchanged by the Antiterrorism and Effective Death Penalty Act.
In 1966, Congress adopted the original Section 2254(d), which required federal courts to give certain kinds of deference to state determinations of fact. [6] If there had been a "full and fair" state fact-finding to which deference was owed, see 28 U.S.C. § 2254(d)(2) (1966), the federal judge "presumed [it] to be correct" unless "the applicant [] establish[ed] by convincing evidence that [it] was erroneous." Id. The 1966 version of Section 2254(d) thus required federal courts to give two kinds of deference to state court decisions of fact. First, was an important kind of procedural deference. The federal court was bound to (1) treat the state court determination as the focal point of its review, and (2) review the state determination to see if it was "correct" or "erroneous," and treat it as dispositive if correct. Second, was substantive deference. Section 2254(d) told federal courts to "presume[]" state fact determinations "to be correct" unless the petitioner could "establish [otherwise] by convincing evidence." Id. The 1966 version of Section 2254(d), however, required neither kind of deference to state legal determinations. See H.R. 1384, 88th Cong. 2d Sess. 23-24 (1964).
Congress addressed habeas corpus again in 1995 and 1996. Only the Senate conducted extended floor debate. But, before the new Section 2254(d) was proposed, the Senate defeated a proposal by Senator Kyl to repeal altogether the basic habeas jurisdiction in Sections 2241(c)(3) and 2254(a). [7] Senator Hatch, Chairman of the Senate Judiciary Committee, voted against the Kyl proposal, expressing the majority's sense that it was "not [] advocat[ing] abolition of Federal habeas corpus." 141 Cong. Rec. S7826, S7836 (June 7, 1995). Accordingly, Senator Hatch wrote the proposal that became new Section 2254(d), to "correct" flaws in the system "while still preserving and protecting the constitutional rights of those who are accused." Id., at S7479 (May 25, 1995).
Congress set out to correct two perceived problems. First, it objected to the "disrespectful" treatment of state decisions under the "independent civil suit" approach. [8] What troubled Section 2254(d) supporters was not federal review of state decisions to see if they were "properly adjudicated," but the requirement that federal courts ignore the state courts' efforts to comply with Federal law. See Id., at S3446 (Sen. Hatch). Second, Congress was distressed that federal habeas courts were relying on legal principles that had not existed when the state courts ruled. [9] Worse, federal courts could rely on legal rules established by the lower federal courts as well as by the Supreme Court, increasing the risk that the case would be adjudicated based on legal principles different from those binding on the state courts when they ruled, [10] making state decisions even less relevant. [11]
By changing habeas jurisdiction of legal questions in two important procedural respects, Section 2254(d) cures both defects. First, Section 2254(d) requires federal courts to treat a qualifying state "decision" on the law, as well as on the facts, as the focus of review (rather than allowing relitigation from scratch) and as dispositive unless it is shown to be wrong, i.e., "contrary to [] Federal law." Second, when deciding whether the state legal decision was correct, the federal court may rely only on law that, when the state courts ruled, was "clearly established" by the United States Supreme Court. 28 U.S.C. § 2254(d). And, unlike Teague, Section 2254(d)(1)'s already narrower review principle has no exceptions.
Section 2254(d) requires procedural deference. It does not require reviewing federal judges to forego their own judgment about the meaning and effect of federal law. Instead, its language, statutory context and history simply extend to habeas the usual rule that, in deciding whether another court's legal decision is correct, the reviewing court exercises its own judgment.
Section 2254(d)(1) does not limit federal review of state legal decisions to "arbitrariness," "clear error," "abuse of discretion," or any other attribute needed to overcome a presumption in its favor; nor does it establish such a presumption. Rather, it tells the federal court to determine whether the state court decision was contrary to federal law. There is no mystery about this test. "Contrary to law" means either "in violation of statute or legal regulations" or "in conflict with the law contained in court's instructions." Black's Law Dictionary 328 (6th ed. 1990). Plainly, therefore, Section 2254(d)(1) tells a federal habeas judge reviewing a state court legal decision to place the decision alongside governing Supreme Court law to see whether the two are in conflict.
Via procedural deference, Congress intended to make state decisions dispositive unless shown to be incorrect under binding legal principles when the state courts ruled. But, Congress assumed that, when reviewing state decisions for legal correctness, federal judges would exercise their own best judgment. Senator Hatch, who drafted Section 2254(d), emphasized that the new statute "essentially gives the Federal court the authority to review, de novo, whether the State court decided the claim in contravention of Federal law." 142 Cong. Rec. S3446-47 (April 17, 1996). He added that the "deference" required by Section 2254(d) "just means that we defer to the state courts if they have properly applied Federal law." Id. (emphasis added). When opponents of the bill suggested that federal courts would be bound to "defer to State courts in almost all cases, even if the State is wrong about the U.S. Constitution," Senator Hatch called that claim "absolutely false." 141 Cong. Rec. S7846 (June 7, 1995). [12]
These assurances were critical in securing passage of Section 2254(d). Efforts to stop legislation requiring substantive deference to state court decisions had failed for 30 years. Only the innovation of procedural deference enabled Senator Hatch to muster a thin majority for Section 2254(d). 141 Cong. Rec. S7850 (June 7, 1995) (vote to strike Section 2254(d) fails 46 to 53). [13] Thus:
Under Section 2254(d), a federal court is not to take up a claim as though it were writing on a clean slate. [] The federal court is to begin with the work already done on the claim in state court and ask, first and foremost, whether the state court arrived at the correct outcome. In this way, the federal court takes serious account (but not controlling account) of the best available thinking on the claim at bar - the prior adjudication of that very claim in state court. This framework for the federal court's function in habeas corpus is related to, but plainly distinguishable from, the hierarchical structure of a routine appellate jurisdiction to review state court judgments for error.
Larry W. Yackle, The New Habeas Corpus Statute, 44 Buff. L. Rev. 381, 383 (1996).
J. Applicability Of The New Law: A Threshold Question
Habeas corpus litigation involves complex procedural principles "that are embodied in statutes, rules, precedents, and practices that control the writ's exercise." Lonchar, supra, at 1298. And, while a habeas petition filed after April 24, 1996 is presumptively governed by the AEDPA, Holman v. Gilmore, 126 F.3d 876, 879-880 (7th Cir. 1997), only qualifying State court decisions are subject to review under the statute. This Court must make an initial inquiry to determine if the provisions of the AEDPA apply to the issues presented herein. As to each issue raised by the Petitioner, this Court must first determine if the new statute applies. If not, the Court is to consider the claim as if nothing happened on April 24, 1996.
1. Adjudication on the merits.
One prerequisite to application of amended Section 2254(d) is clear from the statutory language. Section 2254(d) states that "[a]n application for 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 - resulted in a decision[.]" Thus, the 1996 Amendments affect only a "claim that was adjudicated on the merits in state court proceedings." Liegakos v. Cooke, 106 F.2d 1381, 1385 (7th Cir. 1997); see also Mainiero v. Jordan, 105 F.3d 361, 365 n. 5 (7th Cir. 1997). Thus, if there was no state court "adjudication," this Court must disregard the amendments of the AEDPA and address the claim under prior habeas corpus precedents and rules.
Moreover, a state adjudication on the basis of a state procedural default rule has never been considered an "adjudication on the merits" by the federal judiciary. Coleman, supra; Lostutter v. Peters, 50 F.3d 392, 394-96 (7th Cir. 1995); Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991). Therefore, any claim this Court reviews after an alleged default must be considered using pre-AEDPA standards.
2. Findings of fact.
Title 28 U.S.C. § 2254(e)(1), regarding the preclusion of evidentiary hearings, does not apply where there have been no findings of fact by the state court. Burris v. Parke, 116 F.3d 256, 258 (7th Cir. 1997). Moreover, where there are no specific fact findings by a state court, there can be no presumption of correctness. See Tippins v. Walker, 77 F.3d 682, 685 (2nd Cir. 1996). And, a finding not supported by the record carries no presumption of correctness. See Jackson v. Herring, 42 F.3d 1350, 1366 (11th Cir. 1995), cert. denied 116 S. Ct. 38 (1995). Thus, in situations such as these, a hearing is required and this Court must, again, review the claim as if nothing happened on April 24, 1996.
3. The AEDPA does not apply if it results in an unconstitutional retroactive application.
The Petitioner is entitled to the issuance of the writ if the application of AEDPA has retroactive adverse legal consequences under Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483 (1994). The Supreme Court's holding in Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059 (1997), that the new provisions of the Anti-Terrorism and Effective Death Penalty Act (Chapter 153 of the AEDPA) generally apply only to cases filed after the Act became effective, does not imply that it applies where a retroactive effect would thereby result. Because the Supreme Court held that the AEDPA was inapplicable to the Lindh case, the Court did note: "[a]lthough Landgraf's default would deny application when a retroactive effect would otherwise result, other construction rules may apply to remove even the possibility of retroactivity (as by rendering the statutory provision wholly inapplicable to a particular case)[.]" Lindh, supra, at 2063.
Even Congress' explicit statement that Chapter 154 of the AEDPA applies to pending cases does not indicate that those provisions would apply if there was a retroactive effect. See Lindh, 1147 S. Ct. at 2064, n. 4. "Where applying a new statute would attach a serious new adverse legal consequence to pre-enactment conduct such that the party affected might have acted differently in light of the new law, Landgraf instructs us not to apply the new law." In re Hanserd, 123 F.3d 922, 931-32 (6th Cir. 1997).
According to Landgraf, statutory provisions that have "retroactive effects" include those that (1) affect substantive rights, Landgraf, supra, at 1054, (2) change the legal consequences of acts completed before the new statute's effective date, Id., at 1499 n. 23, (3) impair rights a party possessed when he acted or impose new duties with respect to transactions already completed, Id., at 1505, or (4) sweep away settled expectations suddenly and without individualized consideration. Id., at 1497.
Specifically, in the instant cause, if the AEDPA would require a different outcome, application of the statute would be retroactive. See, e.g., Boria v. Keane, 90 F.3d 36, 37 (2nd Cir. 1996). Applications of the new Act that would attach new legal consequences to pre-enactment events are barred. Burris v. Parke, 95 F.3d 465, 468-69 (7th Cir. 1996) (en banc); Pitsonbarger v. Gramley, 103 F.3d 1293, rehrg. denied at 1297 (7th Cir. 1997), cert. granted, vacated and remanded 118 S. Ct. 37 (1997). Thus, if the petitioner is entitled to relief under "old" habeas law but seemingly precluded under the AEDPA, "old" law must be used and relief granted to avoid an unconstitutional retroactive application of the law.
The rule against retroactivity is not premised merely on the detrimental reliance of those that will be harmed by the new legal consequences a law may engender. Rather, the Landgraf rule is based on different considerations, including among them the risk that the legislature "may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals." Landgraf, supra, at 266. The rule also is informed by an effort to "restrict[] governmental power by restraining arbitrary and potentially vindictive legislation." Id. (citations omitted). As the Supreme Court has taught:
The constitutional prohibitions against the enactment of ex post facto laws and bills of attainder reflect a valid concern about the use of the political process to punish or characterize past conduct of private citizens. It is the judicial system, rather than the legislative process, that is best equipped to identify past wrongdoers and to fashion remedies that will create the conditions that presumably would have existed had no wrong been committed. [] [Richmond v. J.A. Croson Co., 488 U.S. 469, 513-514 (1989)] (Stevens, J., concurring in part and concurring in judgment); James v. United States, 366 U.S. 213, 247, n. 3, 81 S. Ct. 1052, n. 3, 6 L. Ed. 2d 246 (1961) (retroactive punitive measures may reflect 'a purpose not to prevent dangerous conduct generally but to impose by legislation a penalty against specific persons or classes of persons'). James Madison argued that retroactive legislation also offered special opportunities for the powerful to obtain special and improper legislative benefits. According to Madison, '[b]ills of attainder, ex post facto laws, and laws impairing the obligation of contracts' were 'contrary to the first principles of the social compact, and to every principle of sound legislation,' in part because such measures invited the 'influential' to 'speculat[e] on public measures,' to the detriment of the 'more industrious and less informed part of the community.' The Federalist No. 44, p. 301 (J. Cooke ed. 1961). See Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 693 (1960) (a retroactive statute 'may be passed with an exact knowledge of who will benefit from it').
Id., at 267 n. 20. The presumption of non-retroactivity, then, is meant to preclude such results; unless Congress speaks clearly, retroactive application will not be countenanced.
4. Summary
In short, where the state court has not made an "adjudication on the merits" as to a particular claim, has not made "findings of fact" on an issue or has otherwise not complied with the new law, this Court is to disregard the amendments of the AEDPA and proceed as if nothing happened on April 24, 1996. "[T]he new federal standards put a premium on following the rules of procedure. States must do likewise, if they seek to reduce the federal role. An obligation to turn square corners applies across the board." Liegakos, supra, at 1385.
If the AEDPA is found inapplicable to any issue raised herein, this Court, while it must proceed consistently with the objects of the statute, is required to "be guided by the general principles underlying [the Supreme Court's] habeas corpus jurisprudence." Calderon v. Thompson, 523 U.S. 538, 118 S. Ct. 1489, 1500 (1998). These principles entitle a petitioner to both "the benefit of an expanded body of law in challenging his conviction and to a more exacting review of any claims involving the application of federal law to the facts of his case." Abrams v. Barnett, 121 F.3d 1036, 1038 (7th Cir. 1997).
K. Right To An Evidentiary Hearing
Ever since 1867, federal courts have had the authority and the responsibility to "hear and determine the facts, and dispose of the matter as law and justice require." See Act of February 5, 1867, Ch. 28, § 1; 14 Stat. 385-386, currently codified at 28 U.S.C. § 2243 (1996). Thus, whenever "there is a reasonable likelihood that the production of evidence will make the answer to the [constitutional] questions clearer." Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 213, 55 S. Ct. 187 (1934) (Cardozo, J. concurring), the "essential facts should be determined before passing upon grave constitutional questions[.]" Polk Co. v. Glover, 305 U.S. 5, 10, 59 S. Ct. 15 (1938).
Generally, an evidentiary hearing is mandatory [14] if (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing; or (6) for any reason it appears that the state trier-of-fact did not afford the habeas applicant a full and fair fact hearing. Townsend v. Sain, 372 U.S. 293, 313, 83 S. Ct. 745 (1963).
More importantly, though, a federal district court always has the discretion to hold an evidentiary hearing. Id., at 318. The Supreme Court's decision in Keeney did not limit in any way the federal court's discretion to hold evidentiary hearings. Keeney, supra, at 11-12. See e.g. Lonchar, supra, at 326 ("district court is afforded a degree of discretion in determining whether to hold an evidentiary hearing," citing Rule 8(a) of the Rules Governing Section 2254 Cases; Keeney, supra, at 11-12; Townsend, supra, at 318). Moreover, the standards announced in Townsend, including the requirement that a hearing is mandatory when a habeas petitioner has alleged facts that, if proven, would entitle him to relief, are still applicable even after the amendments made by the AEDPA. See Porter v. Gramley, 112 F.3d 1308, 1314 (7th Cir. 1997); see also United States ex rel. Patosky v. Kozakiewicz, 960 F. Supp. 905, 923 n. 6 (W.D. Pa. 1997) (the amendments in the AEDPA do not alter the standards for determining whether an evidentiary hearing is necessary in federal court.)
Section 2254(e)(2), which prescribes when a petitioner is not entitled to an evidentiary hearing, provides as follows:
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that -
(A) the claim relies on -
(i) a new rule of constitutional law, made retroactive on collateral review by the Supreme Court, that was previously unavailable; or
(ii) [newly discovered evidence]; and
(B) the facts underlying the claim [establish the applicant's actual innocence] of the underlying offense.
The plain language of this provision indicates that it is essentially a codification of the Supreme Court's decision in Keeney, in that it precludes a federal evidentiary hearing "[I]f the applicant has failed to develop" the facts in state court. Section 2254(e)(2) (emphasis added). See Hunter v. Vasquez, 1996 WL 612484 (N.D. Cal. Oct. 3, 1996) (finding that Section 2254(e) is essentially a codification of Keeney); Caro v. Vasquez, 1996 WL 478683 (N.D. Cal. Aug. 19, 1996) (same).
As in Keeney, the central inquiry under Section 2254(e)(2) is whether the "applicant" was the one who "failed to develop" the facts. Only when the lack of factual development before the state tribunal is fairly chargeable to the habeas petitioner, as opposed to the state or the tribunal itself, is Section 2254(e)'s preclusion of an evidentiary hearing triggered. Thus, the limitations of Section 2254(e) do not apply if the State bears the responsibility for the failure to present evidence or is responsible for omissions in the state court record.
To be attributable to a 'failure' under federal law the deficiency in the record must reflect something the petitioner did or omitted. Like the third circuit, see Love v. Morton, 122 F.3d 131 (3rd Cir. 1997), we think that the word 'fail' cannot bear a strict-liability reading, under which a federal court would disregard the reason for the shortcomings of the record. If it did, then a state could insulate its decisions from collateral attack in the federal court by refusing to grant evidentiary hearings in its own courts. Nothing in 2254(e) or the rest of the AEDPA implies that the states may manipulate things in this manner.
Burris, supra, at 258-59. At the federal evidentiary hearing, the habeas court is not limited to consider only the information available to the state court. Watts v. Singletary, 87 F.3d 1282, 1290 (11th Cir. 1996).
In short, a federal court is obliged to hold its own evidentiary hearing on habeas corpus if, amongst other factors, the fact-finding procedures employed by the State were not adequate to afford a full and fair hearing, the material facts were not adequately developed at the state court hearing, the application did not receive a full, fair and adequate hearing in the state court proceedings, Hamilton v. Texas, 497 U.S. 1016, 110 S. Ct. 3262, 3264 (1990); Townsend, supra, or the state court trier-of-fact has not reliably found the relevant facts. Jones v. Wood, 114 F.3d 1002, 1010 (9th Cir. 1997). These standards announced in Townsend are still applicable even after the amendments made by the AEDPA. Porter, supra, at 1314. The AEDPA cannot mean that a petitioner must establish that he is entitled to relief before he can have a hearing to determine whether he is entitled to relief. [15] United States ex rel. Crivens v. Washington, 1997 WL 120017, at 7 (N.D. Ill. March 13, 1997). Based on these applicable standards, the Petitioner is entitled to an evidentiary hearing in this cause.
L. Conclusion
For all the foregoing reasons, the undersigned Amici respectfully request that this Honorable Court grant a full evidentiary hearing on the Petition of Mumia Abu-Jamal for Writ of Habeas Corpus.
Respectfully submitted,
Center for Human Rights and Constitutional Law
International Association of Democratic Lawyers
National Lawyers Guild
Southern Poverty Law Center
National Conference of Black Lawyers
Prisoners Self Help Legal Clinic
By_____________________________________
JOSEPH Z. TRAUB, ESQUIRE
1204 Walnut St., #4
Philadelphia, PA 19107
INDEX TO APPENDIX
Statements of Interest Page Center for Human Rights and Constitutional Law 30 International Association of Democratic Lawyers 31 National Conference of Black Lawyers 32 National Lawyers Guild 33 Prisoners Self Help Legal Clinic 34 Southern Poverty Law Center 35
The Center for Human Rights and Constitutional Law
The Center for Human Rights and Constitutional Law (CHRCL) is a non-profit, non-partisan legal services organization which provides representation to insular minorities in accessing the courts to vindicate constitutional and statutory rights. CHRCL focuses much of its work on promoting and encouraging access to the courts by those traditionally denied such access, including indigent members of minority groups whose rights might otherwise receive little or no protection from the judicial branch of Government. CHRCL has dedicated a significant portion of its resources to the substantive and procedural restrictions to access to the courts imposed by the Antiterrorism and Effective Death Penalty Act of 1996. Many of these restrictions circumvent the critical if limited role played by the judiciary as a coordinate branch of the Government. CHRCL's work is guided by the principle that where wrongs to individuals are done by violation of specific guarantees, it is abdication for courts to close their doors to those whose guarantees have been violated.
International Association of Democratic Lawyers
The International Association of Democratic Lawyers is a Non-Governmental Organization with consultative status to ECOSOC and UNESCO. It is an association of lawyers and jurors in 90 countries around the world. Among its aims are to defend and promote human and people's rights; to struggle for strict adherence to the rule of law and the independence of the judiciary and legal profession; to restore, defend and develop democratic rights and liberties in legislation and in practice and to ensure due process of law. Since its founding in 1946, IADL campaigns have led to significant changes in international humanitarian law.
From its inception, IADL members throughout the globe have protested racism, colonialism, and economic and political injustice wherever they interfere with legal and human rights, often at the cost of these jurists' personal safety and economic well being. Through their efforts, IADL lawyers have helped to establish fundamental concepts of international and domestic law including the declaration of apartheid as a crime against humanity; the provision of prisoner of war status to combatants from liberation movements; prohibition of the use of unilateral force by one national against another and the almost universal public policy acceptance that there should be legal remedies for racial, religious, economic and cultural discrimination and persecution.
IADL members have served as observers at trials of defendants like Nelson Mandela, Jomo Kenyatta of Kenya, Abane Ramdame, and Mumia Abu-Jamal.
National Conference of Black Lawyers
The National Conference of Black Lawyers (NCBL) is an association of lawyers, scholars, judges, legal workers, law students and legal activists. Its mission is to serve the legal arm of the movement for Black Liberation, to protect human rights, to achieve self-determination of Africa and African Communities in the Diaspora and to work in coalition to assist in ending oppression of all peoples.
National Lawyers Guild
The National Lawyers Guild was founded in 1937, and seeks to unite the lawyers, law students, legal workers and jailhouse lawyers of America in an organization which shall function as an effective political and social force in the service of the people. The Guild is opposed to the use of the death penalty as the ultimate violation of the human rights of the individual. The Guild has an abiding interest in (1) recognizing the Writ of Habeas Corpus as a necessary and indispensable protection of personal freedom against government intrusion and in (2) making available to all a thorough and fair hearing in federal courts on petitions for Writs of Habeas Corpus.
Prisoners Self Help Legal Clinic
The Prisoners Self Help Legal Clinic, founded in 1993 and located in Seton Hall Law School, Newark, New Jersey, is comprised of pro bono attorneys and law professors, law students from both Seton Hall and Rutgers-Newark law Schools, civil and human rights activists, and former prisoner paralegals. It provides prisoners with their pro se litigation and shares information on the law and its limits. The PSHLC opposes the use of capital punishment as a human rights violation. The PSHLC is deeply concerned about preserving the right of habeas corpus and its continued availability to the incarcerated.
Southern Poverty Law Center
Founded in 1971, the Southern Poverty Law Center is a non-profit organization dedicated to protecting victims of injustice. The Center has defended many people facing the death penalty, including some ultimately proven innocent of the crime of which they were accused.
1. Not only was the writ often ignored, but the Chancery courts used the writ to defeat the jurisdiction of lower courts, and the Courts of Common Law used the writ to extend their jurisdiction. Ducker, supra, at 1009-10.
2. One must remember, though, that the Supreme Court was not without power to review the decisions of a state's highest court regarding constitutional questions. Section 25 of the Judiciary Act of 1789 (1 Stat. 85-87) extended writs of error as of right to state prisoners. As "writ of error" review was restricted over the course of the years, habeas review was expanded. Thus, through this balancing of jurisdictional provisions, the Supreme Court has always been able to enforce a state prisoner's federal constitutional rights by some method of review.
3. That certainly must have been the intention of the Habeas Corpus Act of 1867, coupled with the 1866 proposal and the 1868 ratification of the Fourteenth Amendment.
4. Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 2616 (1986).
5. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996).
6. Interestingly, the adoption of this statute followed the 1963 habeas decisions in Fay, supra; Townsend v. Sain, 372 U.S. 293, 313, 83 S. Ct. 745 (1963), and Gideon v. Wainwright, 372 U.S. 335 (1963) that were viewed by Congress as unduly liberalizing federal habeas corpus proceedings.
7. 141 Cong. Rec. S7849 (June 7, 1995); see Id., at S7835 (Sen. Lott) (Kyl proposal would "eliminat[e] these habeas corpus reviews of State judgments"); Id. (Sen. Hatch) (proposal would "effectively end Federal habeas review of State convictions"); Id., at S7834 (Sen. Specter) (Kyl proposal would abolish federal courts' "jurisdiction to entertain questions of Federal issues").
8. Id., at S7821-22 (Sen. Nickles) ("The present system of review is demeaning to the State courts and pointlessly disparaging to [their] efforts to comply with Federal law in criminal proceedings[.]") Senator Hatch agreed: "Federal courts should [not] have the ability to virtually retry cases that have been properly adjudicated by our State courts." 142 Cong. Rec. S3447 (April 17, 1996) (emphasis added).
9. See, e.g. 140 Cong. Rec. S5512 (May 11, 1994) (Sen. Hatch) ("essential" to keep federal judges from ruling on basis of law not in existence when state court ruled); 140 Cong. Rec. H2416 (April 19, 1994) (Rep. Hyde) (same); 139 Cong. Rec. S5813 (Nov. 17, 1993) (Sen. Hatch) (same).
10. The Supreme Court's Teague doctrine alleviated only some of these problems; it did not disturb federal relitigation "from scratch" and permitted reliance on lower court as well as Supreme Court precedents. See, e.g. Butler v. McKellar, 494 U.S. 407, 415 (1990); Teague v. Lane, 489 U.S. 288, 306 (1989).
11. As habeas scholar Joseph L. Hoffman recently wrote, the new statute was meant to moderate "the sting" state courts feel when federal courts "grant[] habeas corpus relief in cases where the federal law is unclear." (Brief Amici Curiae of Washington Legal Foundation in Felker v. Turpin, No. 95-8836, 1996 WL 272382 at 22 n. 5 (U.S. S. Ct. May 17, 1996); Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333 (1996).
12. Rep. Hyde, House Judicial Committee Chairman and Floor Leader of the Act in the House, gave the same response to similar charges:
[T]he Federal judge always reviews the State court decision to see if it is in conformity with established Supreme Court precedents, or if it has been misapplied. So it is not a blank, total deference, but it is a recognition that you cannot relitigate these issues endlessly.
142 Cong. Rec. H3602 (April 18, 1996); Id., at S3454 (April 17, 1996) (Sen. Specter) (Section 2254(d) gives "Federal courts sufficient discretion to ensure that convictions in State court have been obtained in conformity with the Constitution" (emphasis added)).
13 President Clinton accepted the sponsors' interpretation, and signed the Act, "confident that the Federal courts will interpret [Section 2254(d)] to preserve independent review of Federal legal claims and the bedrock constitutional principle of an independent judiciary." President's Statement Upon Signing the Antiterrorism and Effective Death Penalty Act of 1996 into Law, at 2 (April 24, 1996); see also, Id., at 2-3 (Section 2254(d) does not "limit the authority of the Federal courts to bring their own independent judgment to bear on questions of law and mixed questions of law and fact," else it "would be subject to serious constitutional challenge").
14. A failure to present evidence that is attributable to the petitioner can constitute a procedural default barring a mandatory hearing, unless the petitioner makes an adequate showing of "cause and prejudice" or a "fundamental miscarriage of justice." Keeney, supra, at 11-12.
15. The AEDPA suffers from a number of potential constitutional infirmities. Yet, since a court must avoid reading a statute in an unconstitutional manner if there is another reasonable interpretation available, Edmond v. United States, 520 U.S. 651, 117 S. Ct. 1573, 1578 (1997), this Court should consider and rule in this cause consistent with the principles noted herein.
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