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Federal collateral review of state and federal convictions

"Collateral review" means an attack on a conviction that has become final on appeal. It can be:

  • a state court attack on a state conviction (too broad a topic to be addressed here);
  • a federal court attack on a state conviction; or
  • a federal court attack on a federal conviction

The traditional means of attacking these convictions is a petition for a writ of habeas corpus. Habeas corpus is explicitly recognized in the United States Constitution at U.S. Const. Art. I, § 9, cl. 2., which provides that "the privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." As codified as part of the Judiciary Act of 1789, it was only available to prisoners confined by federal officials without trial or admission to bail (i.e., it did not apply to wrongful convictions, state or federal). It was later expanded to protect federal officers doing their duty (e.g., jailed by local authorities for enforcing an unpopular tariff).

In 1867 Congress authorized writs of habeas corpus where persons were restrained of their liberty in violation of the Constitution, or of any treaty or law of the United States. However, it must be remembered that during that period most federal rights were not binding on the states; the "incorporation doctrine" was a twentieth century legal development. So for years whatever habeas corpus traffic there was consisted of federal prisoners attacking federal convictions. Still, there was enough of that to prompt the enactment of 28 U.S.C. §§ 2241-55 in 1948 (which, among other things, addressed the problem of filings in the warden's district, rather than the place where the conviction took place).

Petitions by state prisoners increased considerably in the 1950s and 1960s after Supreme Court holdings indicating that federal relief was available to address state convictions that were obtained in violation of federal law, and relaxing procedural bars against prisioners who had not exhausted state remedies or who had filed multiple writs. Congress responded in 1966 by amending §§ 2244 and 2254 and, beginning in the 1970s, the Supreme Court issued decisions that addressed abuse of the writ. The cases to know are:

  • Wainwright v. Sykes, 433 U.S. 72 (1977) (failure to make timely objection under the Florida contemporaneous-objection rule, absent a showing of cause and some showing of actual prejudice, bars federal habeas corpus review of a Miranda claim; rejecting the "intentional bypass rule")
  • Teague v. Lane, 489 U.S. 288 (1989) (new constitutional rules of criminal procedure generally should not be applied retroactively to cases on collateral review unless they are substantive or watershed)
  • McClesky v. Zant, 499 U.S. 467 (1991) (limiting the circumstances in which prisoners may file second or subsequent habeas petitions)
  • Felker v. Turpin, 518 U.S. 651 (1996) (history of habeas corpus; Supreme Court jurisdiction post-AEDPA)

All of this culminated in the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which significantly tightened procedural requirements for collateral review, and gave us the framework that we have today.

The principal statutes are in Title 28 chapter 153:

  • Section 2241 ("Power to grant writ") is the direct ancestor of the original 1789 habeas corpus statute. It has largely been supplanted by other statutes more specifically regulating habeas corpus. Federal prisoners may attempt to use it where other statutes are "inadequate or ineffective" to test the legality of the detention. 28 U.S.C. § 2255(e). (We discussed this § 2255 "saving clause" in a July 2019 blog post.)
  • Sections 2242, 2243, 2247-50, and 2252 are procedural statutes unchanged since 1948.
  • Section 2244 ("Finality of determination") addresses "second or successive petitions." Paragraph (a) bars second or successive petitions attacking federal convictions "except as provided in section 2255." Paragraphs (b) and (c) bar second or successive petitions attacking state convictions with certain enumerated exceptions, and sets out the procedures governing the review. Paragraph (d) sets a one-year period of limitations for attacks on state convictions similar to the time limit on attacks on federal convictions set out in § 2255(f).
  • Section 2251 authorizes federal courts to stay state court proceedings (e.g., the execution of the prisoner).
  • Section 2253 regulates appeals.
  • Section 2254 ("State custody; remedies in Federal courts") covers state prisoners. Paragraph (a) limits relief to persons in custody in violation of the Constitution or laws or treaties of the United States. The ensuing paragraphs address procedural issues, including exhaustion (paragraphs (b) and (c)), deference (paragraphs (d) and (e)), and the failure to raise the issue in state proceedings (paragraph (e)(2)). Federal habeas corpus is unavailable where the claim was decided on the merits in state court unless the decision was contrary to (or involved an unreasonable application of) clearly established federal law as determined by the U.S. Supreme Court, or there is clear and convincing evidence that the factual finding of the state court was incorrect. 28 U.S.C. § 2254(e)(1).
  • Section 2255 ("Federal custody; remedies on motion attacking sentence") covers federal prisoners. Permissible grounds and the custody requirement appear in paragraph (a). Paragraph (e) describes how a failure to raise the issue might be excused. Paragraph (f) sets out the time limitations. Paragraph (h) describes procedures for second or successive motions.


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