Summary of the Problem:  Since AEDPA’s enactment in 1996, state and federal prisoners have been forced to navigate a labyrinth of complex procedural rules and stringent deadlines in order to assert claims of serious constitutional violations in post-conviction proceedings.  State prisoners particularly have been burdened by AEDPA, which requires greater deference to state court decisions and, thus, constrains federal review of federal constitutional violations.  Indeed, federal courts may only grant habeas relief to state prisoners where the state court’s decision was “contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States” or was based on “an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.”  28 U.S.C. § 2254(d).  Interpretations of these limitations by the U.S. Supreme Court and lower federal courts have created an unduly high burden for petitioners to obtain federal habeas relief.  Moreover, a one-year statute of limitations and prohibitions against successive habeas petitions serve as an absolute bar to federal habeas review.  As a result, federal courts are unable to grant relief despite meritorious substantive claims, including, inter alia, claims of racial bias in jury selection, ineffective assistance of counsel, and prosecutorial misconduct, due to substantial deference to state court proceedings or mere technical reasons. 

       Barring access to the federal courts undermines confidence in criminal convictions as thousands of prisoners are left with no recourse for constitutional violations that deprived them of a fair trial.  This is especially alarming for prisoners facing death sentences, where there should be no margin of error.  With the knowledge that prejudicial error will occur in an unacceptable number of criminal proceedings, including capital cases, it is imperative that we ensure access to federal post-conviction proceedings in order to protect the fairness, accuracy, and integrity of the criminal justice system. 

Proposed Solutions:

       Executive: Supporting role

       Legislative Changes: 

1.  Repeal or extend the one-year statute of limitations and eliminate the rule that a violation of the statute of limitations is an absolute bar to federal habeas review.

Ø      Repeal/Amend 28 U.S.C. §§ 2244(d), 2255(f)

2.  Suspend the statute of limitations for states with no automatic right to appointed post-conviction counsel in capital cases or with a prerequisite for petitioner to make a pro se filing before appointment of post-conviction counsel.

Ø      Amend 28 U.S.C. § 2244(d)

3.  Amend the statute of limitations to mirror applicable state statutes of limitations and to begin running from the date a timely-filed state habeas petition has been denied.

Ø      Amend 28 U.S.C. § 2244(d) 

4.  Amend the statute of limitations so that habeas cases can be reopened based on new rules recognized by the U.S. Supreme Court, irrespective of Dodd v. United States, 545 U.S. 353 (2005).

Ø      Amend 28 U.S.C. §§ 2244(d), 2255(f)

5.  Require the state to plead or forfeit statute-of-limitations defenses and prohibit the sua sponte dismissal of habeas petitions based on a forfeited statute-of-limitations defense, irrespective of Day v. McDonough, 547 U.S. 198 (2006).

Ø      Amend 28 U.S.C. §§ 2244(d), 2255(f) 

6.  Toll the statute of limitations while a state petition is pending even if the state petition is ultimately dismissed as time-barred and improperly filed, or require a determination that the state procedural rule dismissing the petition is an adequate state rule, irrespective of Pace v. DiGuglielmo, 544 U.S. 408 (2005).

Ø      Amend 28 U.S.C. § 2244(d)

7.  Make clear that a state petition dismissed by an inadequate state procedural rule does not render that petition improperly filed, irrespective of Pace v. DiGuglielmo, 544 U.S. 408 (2005).

Ø      Amend 28 U.S.C. §§ 2244(d)

8.  In a mixed petition with both exhausted and unexhausted claims, require federal district courts to advise petitioners of the stay-and-abeyance procedure (dismissal of the unexhausted claims, stay of exhausted claims pending exhaustion of dismissed unexhausted claims, and amendment of original petition to include newly exhausted claims) and the risk of violating the statute of limitations if they decline the stay-and-abeyance procedure, irrespective of Pliler v. Ford, 542 U.S. 225 (2004).

Ø      Amend 28 U.S.C. §§ 2244(d), 2255(f) 

9.  Toll the statute of limitations for any attorney error and make ineffective assistance by state post-conviction counsel a cause to excuse a procedural default.

Ø      Amend 28 U.S.C. §§ 2244(d), 2255(f)

10.  Ensure that states truly provide effective post-conviction counsel consistent with the U.S. Constitution. 

Ø      Amend 28 U.S.C. §§ 2254, 2255, 2261

11.  Permit claims of innocence or racial bias to overcome any statute of limitations or other procedural bar.

Ø      Amend 28 U.S.C. §§ 2244(d), 2255(f)

12.  Eliminate or amend the restrictions on habeas corpus relief for only those state court convictions that are “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “based on an unreasonable determination of the facts.”

Ø      Repeal/Amend 28 U.S.C. § 2254(d)

Ø      Create a committee with substantive input from members of the criminal defense bar to draft amending language.

Ø      Include decisions of the U.S. Courts of Appeals as part of “clearly established Federal law.”

Ø      Make this provision applicable only to decisions from state jurisdictions qualified to opt-in to the expedited habeas procedures under Chapter 154 (if applicable, see below). 

13.  Permit successive habeas corpus petitions.

Ø      Amend 28 U.S.C. §§ 2244, 2255

14.  Repeal or amend the Chapter 154­ Special Habeas Corpus “Opt-In” Procedures that expedite federal post-conviction proceedings.

Ø      Repeal/Amend 28 U.S.C. §§ 2261-66

Ø      Repeal provisions from the USA PATRIOT Improvement and Reauthorization Act of 2005 (PIRA), which grants authority to the U.S. Attorney General to determine state qualification for “opt-in” procedures and makes that determination retroactive.

Ø      Reverse the “opt-in” procedures so that petitioners get full review in federal court or a suspension of the statute of limitations if a state fails to meet its Sixth and Eighth Amendment obligations.

Ø      Allow courts to extend deadlines for good cause.

Ø      Repeal or extend the statute of limitations and the time limits for federal courts to process the cases.  

15.  Make all amendments to AEDPA and PIRA retroactively applicable.

Ø      Amend 28 U.S.C. §§ 2254, 2255


       Executive Branch:  Supporting role

       Legislative Branch:  Senate and House Judiciary Committees


       Executive Branch:  Early in his administration, President Clinton announced his support for habeas corpus reform that would limit the number of appeals and minimize judicial delay.  After AEDPA passed in both houses, President Clinton signed the legislation into law on April 24, 1996, indicating in his signing statement that “For too long . . . endless death row appeals have stood in the way of justice being served,” but that he was also confident that “the Federal courts will interpret these [habeas] provisions to preserve independent review of Federal legal claims and the bedrock constitutional principle of an independent judiciary.”  (Statement on Signing the Antiterrorism and Effective Death Penalty Act of 1996 (Apr. 24, 1996), available at http://www.presidency.ucsb.edu/ws/index.php?pid=52713.)

       Legislative Branch:  In 1995, the 104th Congress passed AEDPA (P.L. 104-132), which limited petitioners’ access to federal courts through a one-year statute of limitations, state exhaustion requirements, limits on successive petitions, and increased deference to state court determinations.  Sponsors of the underlying Senate bill (S. 735) who are still in office include Sens. Dianne Feinstein (D-CA), Orrin Hatch (R-UT), and Jon Kyl (R-AZ).  Sponsors of the House bill (H.R. 729) currently in office include Reps. Phil English (R-PA) and Jerry Weller (R-IL).  In 2005, the Streamlined Procedures Act was introduced by Rep. Daniel Lungren in the House as H.R. 3035 and by Sen. Jon Kyl in the Senate as S. 1088, with provisions that would have further limited federal review of habeas petitions and completely precluded capital defendants from petitioning for federal habeas relief.  Additional co-sponsors of S. 1088 were Sens. Saxby Chambliss (R-GA), John Cornyn (R-TX), Charles Grassley (R-IA), and Orrin Hatch (R‑UT).  Hearings on this bill were held by the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security on June 30, 2005 and November 10, 2005, and by the Senate Judiciary Committee on July 13, 2005 and November 16, 2005.  The bills never left the committees, however, and the Streamlined Procedures Act of 2005 died in both houses.

       AEDPA also provided “opt-in” procedures, codified in Chapter 154 of the Judiciary Code, which would expedite habeas proceedings for death-sentenced petitioners convicted in certain qualifying states.  The USA PATRIOT Improvement and Reauthorization Act (PIRA), passed by the 109th Congress and signed into law by President Bush in March 2006, included amendments to the opt-in provisions that authorize the U.S. Attorney General, rather than federal courts of appeals, to determine which states had met the opt-in qualifications.

       Judicial Branch:  In 1988, Chief Justice Rehnquist convened an ad hoc committee, chaired by Justice Lewis Powell, to make recommendations to reform federal habeas corpus procedures in capital cases.  This committee, known as the Powell Committee, issued a report noting, inter alia, that federal habeas practice was marked by ineffective counsel for indigent prisoners and unnecessary delay. (Federal Habeas Corpus Relief: Background, Legislation, and Issues, Cong. Res. Serv. Report 3 (Feb. 1, 2006), available at http://opencrs.com/rpts/RL33259_20060201.pdf.) 

       The U.S. Supreme Court has also issued the following court opinions that construe AEDPA’s habeas-related provisions:

·        Bell v. Cone, 535 U.S. 685, (2002) (state court finding that counsel was effective during penalty phase, despite failure to present mitigating evidence and waiver of closing argument, was not an unreasonable application of clearly established federal law);

·        Day v. McDonough, 547 U.S. 198 (2006) (court may dismiss habeas petition sua sponte for statute of limitations violation even if state forfeited the defense);

·        Dodd v. United States, 545 U.S. 353 (2005) (statute of limitations runs from date new rule is recognized by U.S. Supreme Court, not when the rule is made retroactive);

·        Lindh v. Murphy, 521 U.S. 320 (1997) (general provisions of AEDPA do not apply retroactively to cases already filed in federal district court before act was passed);

·        Mitchell v. Esparza, 540 U.S. 12 (2003) (federal court barred from granting habeas relief because decision to apply harmless error review to trial court’s failure to comply with state sentencing procedures did not result in decision that was “contrary to” or an “unreasonable application of clearly established federal law”);

·        Pace v. DiGuglielmo, 544 U.S. 408 (2005) (state petition that is dismissed as time-barred was not properly filed and, thus, cannot toll statute of limitations for federal habeas petition);

·        Pliler v. Ford, 542 U.S. 225 (2004) (court not required to advise petitioner of consequences of declining stay-and-abeyance procedure);

·        Rhines v. Weber, 544 U.S. 269 (2005) (federal court may stay a section 2254 habeas petition when necessary to permit petitioner to exhaust claims in state court without violating AEDPA’s one-year statute of limitations);

·        Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) (petitioner’s second claim of incompetence, which would bar execution, was not precluded as a second or successive petition under AEDPA when first claim was dismissed as premature);

·        Williams (Michael) v. Taylor, 529 U.S.420 (2000) (AEDPA does not bar evidentiary hearings in federal court unless defendant or defense counsel is faulted for lack of diligence or some greater fault that led to failure to develop claim’s factual basis); and

·        Williams (Terry) v. Taylor, 529 U.S. 362 (2000) (federal court may grant habeas relief pursuant to AEDPA’s “contrary to” clause when state court decision is either opposite to a conclusion reached by a U.S. Supreme Court case on a question of law or is different from a U.S. Supreme Court decision on a set of materially indistinguishable facts; relief may be granted under the “unreasonable application” clause if state court identified correct legal rule but unreasonably applied rule to facts of instant case).

Potential Allies, Potential Opposition, and Public Opinion:

Potential Allies:

  • American Bar Association
  • American Civil Liberties Union
  • The Constitution Project
  • Amnesty International
  • Death Penalty Information Center
  • Equal Justice Initiative of Alabama
  • Human Rights Watch
  • NAACP Legal Defense & Educational Fund, Inc.
  • National Association of Criminal Defense Lawyers
  • National Coalition to Abolish the Death Penalty
  • National Legal Aid & Defender Association
  • Southern Center for Human Rights
  • Center for Community Alternatives

Public Opinion:  Support for the death penalty has decreased from an all-time high of 80% in 1994 to 64% in 2007.  When asked whether the death penalty or life imprisonment is a better penalty for murder, more respondents chose life imprisonment over the death penalty for the first time in Gallup’s most recent polling of this question in 2006.  Moreover, from 2003 to 2005, 59-73% believed that an innocent person had been wrongfully executed within the past five years.  More information on the Gallup Poll of the death penalty is available at http://www.gallup.com/poll/1606/Death-Penalty.aspx.

For Further Information: 

Stephen B. Bright, Elected Judges and the Death Penalty in Texas: Why Full Habeas Corpus Review by Independent Federal Judges Is Indispensable to Protecting Constitutional Rights, 78 Tex. L. Rev. 1806 (2000).

Stephen B. Bright, Is Fairness Irrelevant? The Evisceration of Federal Habeas Corpus Review and Limits on the Ability of State Courts to Protect Fundamental Rights, 54 Wash. & Lee L. Rev. 1 (1997).

Death Penalty Information Center, Innocence and the Death Penalty, available at http://www.deathpenaltyinfo.org/innocence-and-death-penalty.

Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55 (2008).

James S. Liebman et al., A Broken System:  Error Rates in Capital Cases, 1973-1995 (June 12, 2000), available at http://www2.law.columbia.edu/instructionalservices/liebman/liebman_final.pdf.

James S. Liebman, An “Effective Death Penalty”? AEDPA and Error Detection in Capital Cases, 67 Brook. L. Rev. 411 (2001).

Steven Reinhardt, The Anatomy of an Execution: Fairness vs. “Process,” 74 N.Y.U. L. Rev. 313 (1999).

Bryan A. Stevenson, Confronting Mass Imprisonment and Restoring Fairness to Collateral Review of Criminal Cases, 41 Harv. C.R.-C.L. L. Rev. 339 (2006).

Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Federal Habeas Corpus Cases, 77 N.Y.U. L. Rev. 699 (2002). 

Recommendations for Federal Criminal Sentencing in a Post-Booker World http://constitutionproject.org/sentencing/article.cfm?messageID=245&categoryId=7

Principles for the Design and Reform of Sentencing Systems: A Background Report, http://constitutionproject.org/sentencing/article.cfm?messageID=148&categoryId=7.

Mandatory Justice: The Death Penalty Revisited, http://constitutionproject.org/pdf/mandatoryjusticerevisited.pdf.


Last Updated on Monday, 10 November 2008 21:10
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