V. A Habeas Corpus Act for the Twenty-first Century.

With this background, we are in a position to consider what factors Congress should consider in deciding the scope of the habeas corpus writ in the next century. The common law tradition of the Great Writ should be respected as to the common law scope of that writ, but no proposal impairing that scope is on the table.

The Supreme Court's reluctance to overturn precedents construing statutes should not inhibit Congress from modifying those statutes, since that reluctance is premised squarely on the belief that Congress can and will modify the statutes when necessary. Thus the cases where the Supreme Court has declined to change habeas due to precedent provide no reason for Congress to decline to make the same change.

The function of the writ as a safeguard against fundamentally unjust judgments should be strengthened, not weakened. As applied to capital murder cases, that means that the writ should continue to be available to those defendants who did not kill the victim and were not parties to the murder. However, where the defendant is, in fact, guilty of an offense punishable by death, execution is not a fundamental injustice.

The enforcement function needs to be reconsidered in light of the dramatic changes in state courts since 1953 and the vast expansion of the scope of "constitutional" rules in that time. The very low rate at which habeas petitions are granted outside the Ninth Circuit demonstrates that state courts are conscientiously applying Supreme Court precedents. The enormous expansion of constitutional doctrine in the 1960's and 1970's means that the old assumption that a constitutional claim is necessarily a claim of a fundamentally unfair procedure is no longer valid. Collateral attack is an extraordinary remedy; it should be limited to extraordinary claims.

The notions that every federal claim should be litigated in a federal forum and that perfection in procedure must be guaranteed should be rejected by Congress, just as they have been rejected by the Supreme Court.

The policy choice that Congress must make involves the risks of two kinds of error and the cost to society of the review process. If the state court judgment is accepted as final, we risk the chance that the state court has erred against the defendant. If we permit the federal courts to review that judgment de novo, we risk the chance that the federal court will err against the people. Further, we incur a great cost to society in both resources and the delay of justice. Since the opponents of reform are fond of citing Magna Carta,⁽¹⁶⁶⁾ it would be well at this point to remember Article 40: "To none will we sell, to none deny or delay, right or justice." The federal government has grievously breached this sacred covenant with the families of murder victims.

The present imbalance of risks and costs is dramatically illustrated by the case of Bernard Hamilton. Sixteen years ago, Hamilton brutally murdered and dismembered Eleanore Buchanan, the young mother of two infant sons. Her head and hands have never been found. After his arrest he boasted to the police that the charge would not stick, because they could not identify the body. They could and did.⁽¹⁶⁷⁾

Hamilton was convicted of murder in the first degree. None of the 15 jurists who examined this exhaustively litigated case found any ground for overturning the guilt verdict.⁽¹⁶⁸⁾

It is settled that California's system for sentencing in capital cases provides the structure necessary to avoid the unfettered discretion and resulting arbitrariness of the pre-Furman statutes. The Supreme Court has upheld it several times.⁽¹⁶⁹⁾ In the Ramos case, the high court specifically upheld the practice of informing the jury of the governor's power to commute life-without-parole sentences. In Hamilton, the state and federal courts simply disagreed over a modification to the basic Ramos instruction, a modification to which Hamilton's attorney agreed.⁽¹⁷⁰⁾

Given that Hamilton is guilty and was properly convicted of a horrible, callous murder, given that he was sentenced under a constitutional system, given that his claims have been fairly reviewed by a court that rendered a decision well within the bounds in which reasonable judges can differ, what is the compelling reason for de novo review on habeas in this case? He had a marginal claim on the far fringes of Eighth Amendment case law. Is the risk of error against him on such a claim really a greater evil than the risk of an error in his favor? It seems to me that when we are this far removed from questions of guilt and from the core meaning of the original Bill of Rights, the risk of error in favor of the murderer is at least equal in magnitude, if not greater.

I firmly believe that the Ninth Circuit did err in this case, and egregiously so. Eleanore Buchanan's sons, orphaned in infancy, are close to adulthood now. The case has dragged on through their entire childhood and adolescence, and justice has still not been done. Congress must act to save the Great Writ being misused as an instrument of injustice, instead of an instrument of justice. The time to act is now.

With these thoughts in mind, CJLF proposes the following statute:

§ 1. Section 2254 of Title 28, United States Code is amended to delete subdivisions (b) and (c), renumber subdivisions (d), (e), and (f) as (b), (c), and (d), respectively, and to add the following subdivisions:

     (e) Except as provided in subdivision (g), an application for a writ of habeas corpus under this section shall not be entertained unless it appears that the remedies provided by the State are inadequate or ineffective to test the legality of the detention.

     (f) State remedies are not inadequate or ineffective, within the meaning of subdivision (e), merely because the federal court or judge disagrees with the state court's determination of a question of federal law, so long as the state court's decision was within the range in which reasonable jurists could differ as of the date of that decision, based on the precedents binding on the state court. Precedents of federal courts other than the Supreme Court are not binding on state courts.

     (g) Notwithstanding subdivision (e), the following grounds for a writ of habeas corpus may be reconsidered de novo on the first federal habeas petition, after exhaustion of state remedies, even if not timely raised in state court:

           (1) Failure to appoint counsel for an indigent felony defendant who has not, at any time in the proceedings, waived counsel.

           (2) Domination of the trial by a mob.

           (3) Introduction at trial of a confession of the defendant extracted from him through brutality or threats of brutality by agents of the state.

           (4) Use at trial of testimony on a material fact in actual dispute which was known to the prosecuting attorney to be perjured.

           (5) Intentional, systematic exclusion from the grand jury or the trial jury venire of members of the defendant's race.

Comment: Section 2254 is the core section for the use of habeas corpus to collaterally attack a state conviction. Existing subdivisions (b) and (c) set forth the rules of exhaustion. These doctrines will be replaced by a more comprehensive rule, and hence will not be needed.

New subdivision (e) is the heart of the proposed reform. It simply adopts for state courts the same rule adopted by Congress for the local court system of the District of Columbia a quarter century ago.⁽¹⁷¹⁾ This rule is constitutional.⁽¹⁷²⁾ Subdivision (f) precludes any doubt that simple disagreement with the state court's decision is not a good enough reason for a mere coordinate court, without appellate authority over the court rendering the decision, to set aside its judgment. Only the Supreme Court has authority to set precedents binding on state court, and only that court has authority to reverse for mere disagreement on how to apply those precedents.

Subdivision (g) adopts Justice Stevens' suggestion from Rose v. Lundy⁽¹⁷³⁾ and authorizes habeas review for the fundamental claims regardless of state procedural default. These are largely the same claims that were reviewable on habeas in 1953. Mob-dominated trials rarely, if ever, happen in modern society, but retaining habeas for this claim will at least answer the perennial complaint that the ghost of Leo Frank haunts our deliberations.⁽¹⁷⁴⁾

Knowing use of perjured testimony and coercion of confessions still come up occasionally in modern cases, although they are generally remedied in state proceedings.⁽¹⁷⁵⁾ Even so, these claims have a strong connection with actual innocence, and abolition of the procedural default doctrine for them will thus strengthen habeas as a bulwark against conviction of the innocent.

Review de novo should be discretionary with the district judge for the reasons recognized by the Supreme Court over 70 years ago, and hence the word "may" rather than "shall" is used in subdivision (g).⁽¹⁷⁶⁾

§ 2. Section 2254.1 is added to Title 28, United States Code:

     (a) State remedies are inadequate within the meaning of section 2254 unless there is some procedure in state courts at which defendants can present evidence of federal constitutional violations not apparent from the appellate record and, if this proceeding is held in a trial court, unless defendants are entitled to a review of the trial court's decision in an appellate court.

     (b) In capital cases in which the prisoner is indigent and does not waive counsel, any of the following shall constitute inadequacy of state remedies:

           (1) Appointment of counsel for trial or appeal with less than two years experience handling criminal trials or appeals, respectively;

           (2) Failure of the state to appoint counsel for the proceeding described in subdivision (a) of this section;

           (3) Appointment of counsel for the proceeding described in subdivision (a) who has not previously handled such a proceeding in a felony case, unless the attorney has access to consultation by persons with experience in such proceedings;

           (4) Appointment of counsel for the proceedings described in subdivision (a) who also represented the petitioner at trial or on appeal, provided that the same attorney may represent the petitioner in this proceeding and the appeal if they are held concurrently; or

           (5) The prisoner has new evidence of actual innocence meeting the criterion of Rule 9(b)(1) of the Rules Governing Section 2254 Cases in the United States District Courts, and the state has no effective mechanism, judicial or executive, for the determination of the facts of such claims and for granting of relief if the facts are established.

     (c) Notwithstanding subdivisions (b)(1), (b)(3), and (b)(4) of this section, state remedies shall not be considered inadequate or ineffective by reason of appointment of counsel not meeting the requirements of those subdivisions if either (1) the defendant or petitioner specifically requested appointment of that attorney with knowledge of the circumstances that would otherwise disqualify that attorney; (2) the state court finds that the attorney appointed has other experience or training equivalent to the requirements of subdivision (b); or (3) the state court finds that there is a shortage of qualified attorneys.

Comment: Subdivision (a) requires that there be a state habeas proceeding or its equivalent and an appeal from denial of state habeas by a trial court.

Subdivision (b) implements a requirement that the states improve their appointment of counsel above the constitutional minimum to qualify for the benefits of limitation of habeas corpus. Trial and appellate counsel must be experienced criminal lawyers, although the extremely restrictive requirements advocated by the American Bar Association are not implemented. The supply of qualified attorneys must be large enough to meet the demand and provide some competition for the business. The ABA's further suggestion that civil attorneys cannot handle habeas corpus should be rejected. The ABA's Postconviction Death Penalty Representation Project has emphatically stated exactly the opposite.⁽¹⁷⁷⁾

Subdivision (c), clause (1) prevents the defendant from manipulating the system by demanding a lawyer who does not meet the standard and then claiming that as error.⁽¹⁷⁸⁾ Clause (3) prevents the defense bar from manipulating the system by going on strike.⁽¹⁷⁹⁾

§ 3. Rule 8 of the Rules Governing Section 2254 Cases in the United States District Courts is amended to add subdivision (d), to read:

     (d) A capital habeas case in which a stay of execution has been granted shall have priority over all other cases, criminal and civil. Absent extraordinary circumstances, all cases shall be decided by the district court within six months of the filing of the habeas petition and by the court of appeals within six months of the issuance of the certificate of probable cause. Writs of mandamus shall be liberally granted when necessary to enforce this rule.

Comment: Enforcement of the law against murder is the single most important function of state government. Interference with that function by a federal court is a major intrusion and should be limited to the shortest time which is absolutely necessary. Regrettably, some federal courts habitually delay these cases.⁽¹⁸⁰⁾ With habeas corpus limited to fundamental violations of long-established rules, there will be little need for long, complex litigation. In most cases, a determination that state remedies are effective and no fundamental violations are seriously in question can be made in a matter of days.

§ 4. Rule 9 of the Rules Governing Section 2254 Cases in the United States District Courts is amended to delete subdivision (b) and add a new subdivision (b), to read:

     (b) A second or subsequent application for a writ of habeas corpus under this section shall not be entertained unless (1) there exists new evidence which, when taken together with all other available evidence, admissible or not, establishes by a preponderance of the evidence that no reasonable juror would have found the defendant guilty of the offense, or (2) evidence establishing one of the claims listed in section 2254, subdivision (g) was concealed by agents of the state. The determination under clause (1) of this subdivision shall be made without regard to any claim based on mental disease or defect or on voluntary intoxication, regardless of whether that claim is made as an affirmative defense or to negate an element of the crime.

Comment: For most claims, this section replaces the present cause and prejudice or innocence standard of McCleskey v. Zant⁽¹⁸¹⁾ with innocence alone. The present cause and prejudice exception to the abuse-of-the-writ doctrine was developed under a regime where plenary habeas review was the norm rather than the exception. Since review is to be the exception, even on the first round, a second round should be reserved for the case of fundamental injustice: conviction of an innocent person. For the fundamental claims, a second petition may be considered if the supporting evidence was suppressed on the first round.⁽¹⁸²⁾ The last sentence eliminates mental defenses from the actual innocence inquiry. Because of the propensity of the psychiatric profession to testify to the most ludicrous statements,⁽¹⁸³⁾ permitting mental defenses here would turn a rare claim into a common one.

§ 5. Section 2251 of Title 28, United States Code is amended to read:⁽¹⁸⁴⁾

     (a) A court, justice or judge of the United States before whom a habeas corpus proceeding is pending, may, before final judgment or after final judgment of discharge, or pending appeal, stay any proceeding against the person detained in any State court or by or under the authority of any State for any matter involved in the habeas corpus proceeding. On appeal, an individual judge may issue a stay only when the full panel cannot consider the application in time, and then only for a maximum of three days, with no renewal or extension.

     (b) After the granting of such a stay, any such proceeding in any State court or by or under the authority of any State shall be void. If no stay is granted, any such proceeding shall be as valid as if no habeas corpus proceeding were pending.

     (c) A proceeding is pending, within the meaning of subdivision (a), only after an application or petition has been filed.

     (d) In a state capital case, if a state schedules an execution less than 60 days following the final decision of the state appeal or the final denial of relief in the first proceeding in which evidence outside the appellate record can be considered, whichever is later, then the district court, upon application of the prisoner, may stay the execution for a maximum of 60 days and appoint counsel for the purpose of preparing a habeas petition. Finality, for this purpose, includes only state review and not certiorari to the United States Supreme Court. The stay issued under this subdivision shall not be renewed or extended.

     (e) A stay of execution shall not be granted under subdivision (a) of this section in a capital case unless the petitioner has demonstrated a substantial probability that the criteria for entertaining a petition can be met. A stay shall not be granted without notice to respondent and an opportunity to be heard, unless compliance with this requirement is impossible. A motion by respondent to lift the stay shall be heard within 30 days and decided within 60 days of the motion.

     (f) No court of the United States shall make any rule expanding the powers to grant stays beyond those provided by this section or making the grant of any stay or the issuance of any certificate of probable cause automatic.

Comment: The limitation on one-judge stays is to prevent an abuse which has occurred more than once in the Ninth Circuit.⁽¹⁸⁵⁾

Subdivisions (c) and (d) deal with the problem addressed in McFarland v. Collins.⁽¹⁸⁶⁾ Subdivision (c) restores "pending" to its common-sense meaning, while subdivision (d) provides an additional stay power to deal with the practical problem presented in McFarland in the unusual circumstance where the state courts have set an execution with undue haste. This provision requires diligence on the part of the prisoner, which includes preparing the federal habeas petition while the Supreme Court certiorari petition is still pending. This will take six months to a year off the time line, but, because certiorari is only granted in a handful of cases, it will rarely result in a waste of effort.

Subdivision (e) codifies the statement in McFarland that the granting of a stay requires judgment and is not automatic⁽¹⁸⁷⁾ and requires minimal due process for the people.⁽¹⁸⁸⁾ Subdivision (f) clarifies that where Congress has required case-by-case judgment, a circuit cannot remove that requirement by local rule, nor can a court by rule grant itself additional powers, abrogating Ninth Circuit rules to the contrary.⁽¹⁸⁹⁾

§ 6. Subdivision (q)(4)(B) of Section 848 of Title 21, United States Code is amended to delete the word "any" and insert in its place "the first".

Comment: The amended section provides counsel and investigators for death row inmates. That expenditure should continue for the first petition, although the great reduction in cognizable claims should reduce it substantially. The people of the United States should not, however, finance the blizzards of last-minute, often frivolous motions that now typically accompany an execution.

§ 7. This act is fully retroactive to all cases pending on the date of its enactment.