U.S. Supreme Court

Chemerinsky: Supreme Court imposes further restrictions on habeas corpus

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Chemerinsky

Erwin Chemerinsky. Photo by Jim Block.

Over the last half-century, the U.S. Supreme Court and Congress have significantly restricted the availability of habeas corpus. The Warren Court expanded the ability of those convicted in state court to raise constitutional issues in federal court on habeas corpus, but since then, the court has created numerous restrictions. These have included imposing strict exhaustion requirements, limiting habeas corpus to already existing constitutional rights, preventing Fourth Amendment claims from being relitigated on habeas corpus and precluding raising issues that were not litigated in state court.

In 1996, Congress went even further in the Anti-Terrorism and Effective Death Penalty Act to greatly limit habeas corpus. It imposed a one-year statute of limitations on habeas petitions, limited a prisoner to one petition challenging a conviction and created a restrictive standard for when habeas petitions can be granted. For the last quarter century, the Supreme Court has consistently interpreted this statute to make it ever harder for a habeas petition to be granted.

The Warren Court was animated by the vision that habeas corpus should be available to those who claim they were convicted or sentenced in violation of the Constitution. But its more conservative successors and Congresses have questioned the need for habeas corpus once someone has had the chance to litigate their claims in state court, and they have had great concern that it lets guilty people go free.

Two recent Supreme Court decisions—both, not surprisingly, 6-3 rulings divided along ideological lines—impose new restrictions on habeas corpus. And one of them suggests that the court might go even further in limiting habeas corpus. Indeed, if Justice Neil Gorsuch’s reasoning in Brown v. Davenport is followed, it will almost eliminate the ability of those convicted to ever bring a habeas corpus petition.

Shinn v. Ramirez

The Supreme Court has held that the Sixth Amendment right to an attorney includes a right to effective assistance of counsel. But studies show and observation confirms that many criminal defendants have grossly deficient representation. Some states, though, preclude claims of ineffective assistance of counsel from being raised on direct appeal. The first time they can be presented in state court is on a motion for post-conviction relief, such as a habeas petition brought in state court under state law.

What, though, if the attorney fails to properly raise the claim of ineffective assistance of counsel in the state post-conviction proceeding? Is the failure to raise this a procedural default that bars the claim from being raised in a federal habeas corpus petition? If so, then a person convicted even with egregiously deficient representation never would have the chance for it to be heard in federal court.

In Martinez v. Ryan (2012), the court came to the commonsense conclusion that ineffective assistance of counsel claims can be raised on federal habeas corpus if they could not have been raised in state court on direct appeal and if they were not presented in a state post-conviction proceeding. But what if the federal court needs to hold an evidentiary hearing to determine whether there was ineffective assistance of counsel? In Shinn v. Ramirez, the court held that this generally is not possible; the federal court must rely solely on the evidentiary record from the state court proceeding.

Shinn v. Ramirez, decided on May 22, involved two defendants who had been convicted of murder in Arizona state court. Arizona does not allow ineffective assistance of counsel claims to be raised on direct appeal. In these cases, it was not raised in Arizona court in post-conviction proceedings. Both defendants sought to raise the claims in federal court on habeas corpus based on Martinez v. Ryan. In each instance, the federal district court allowed the habeas petitioner to present additional evidence to support the claim of ineffective assistance of counsel. In one of the cases, the new evidence showed a likelihood that the defendant was actually innocent.

But the Supreme Court, in an opinion by Justice Clarence Thomas, held that holding the hearings was impermissible. Justice Thomas began by saying that “the availability of habeas relief is narrowly circumscribed.” He said that habeas corpus “’intrudes on state sovereignty’” by allowing guilty people to go free and “imposes significant costs on state criminal justice systems.”

The court focused on a provision adopted as part of the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. Section 2254(e)(2), which greatly limits the ability of federal courts to hold evidentiary hearings on habeas corpus. The court said this applies even when there is a claim of ineffective assistance of counsel that could not have been raised earlier. The federal court is confined to the state court record and cannot consider additional evidence, even when it may show, as in one of the cases before it, that the defendant is innocent of the crime for which he was sentenced to death.

Justice Sonia Sotomayor wrote a dissent, joined by Justices Stephen Breyer and Elena Kagan. She said the court’s decision “all but overrules” Martinez v. Ryan because almost always there will be a need for additional evidence to show ineffective assistance of counsel. She lamented that the court “makes illusory the protections of the Sixth Amendment.” She wrote: “The court’s decision will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel.”

Brown v. Davenport

Ervine Davenport was tried for murder in Michigan. During his trial, he was shackled at his hands, waist and ankles. It is unclear whether this was visible to the jury. In Deck v. Missouri (2005), the court held that the due process forbids shackling a criminal defendant at trial absent “a special need.” On habeas corpus, Davenport argued that his conviction violated due process because there was no finding of a special need by the trial court.

In Brecht v. Abrahamson (1993), the court held that a state prisoner seeking to challenge his conviction on federal habeas corpus must show that the error had a “substantial and injurious effect or influence” on the outcome of his trial. The issue in Brown v. Davenport was whether this is sufficient or whether the habeas petitioner must also meet the requirement created in the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. Section 2254(d) and demonstrate that the conviction was (1) “contrary to” or an “unreasonable application of clearly established federal law” as determined by the decisions of the Supreme Court, or (2) based on an “unreasonable determination of the facts” presented in the state court proceeding.

In Brown v. Davenport, the court concluded that a habeas petitioner must meet both the standard for harmful error from Brecht v. Abrahamson and the requirements of Section 2254(d). Justice Gorsuch, writing for a six-justice majority, went beyond that and suggested habeas corpus should be available only in instances where the court lacked the jurisdiction to try the defendant. Justice Gorsuch said that historically, “usually, a prisoner could not use it to challenge a final judgment of conviction issued by a court of competent jurisdiction.”

Justice Gorsuch noted that in Brown v. Allen (1953), the court changed the law to allow a person convicted in state court to relitigate constitutional claims in federal habeas corpus. As he did a year earlier, in a concurrence in Edwards v. Vannoy (2021), Justice Gorsuch implied that Brown v. Allen was wrongly decided. Here, though, five justices join him. Perhaps this is just part of explaining why the court is being restrictive and requiring that both the Brecht v. Abrahamson standard for harmful error and the Section 2254(d) requirements be met. Or perhaps this portends an even more dramatic change in habeas corpus law in the future.

If habeas is limited to arguing that the trial court lacked jurisdiction, it will be effectively eliminated. This is especially what concerned the dissenting justices. Justice Kagan wrote a dissent, joined by Justices Breyer and Sotomayor. Justice Kagan declared: “Because the majority begins with some law-chambers history, I do too—though fair warning: My discussion is no more relevant than the majority’s to the issue before us. … The majority, unprompted, embarks on that project, perhaps hoping that the seeds it sows now will yield more succulent fruit in cases to come.” She said that Justice Gorsuch’s “theory, in its fundamentals is wrong. Federal courts long before Brown extended habeas relief to prisoners held in violation of the Constitution—even after a final conviction.” She reviewed the history of habeas corpus and said that “contrary to the majority, then, our decision in Brown built on decades and decades of history.”

The dissent also argued that based on precedents and statutory interpretation, once harmful error was shown under Brecht, there should be no need to meet the requirements imposed by the Anti-Terrorism and Effective Death Penalty Act.

These two cases reveal profoundly differing views of the role of habeas corpus. The conservative justices seek to significantly limit it by judicially created doctrines and by enforcing the restrictions created by Congress in the Anti-Terrorism and Effective Death Penalty Act. They see it as an affront to state courts and as a vehicle for dangerous, guilty people to go free. By contrast, the liberal justices see habeas corpus as an essential way to make sure that no one is imprisoned or executed in violation of the Constitution. They want the federal courts to be available to redress constitutional violations. These two 6-3 decisions reflect exactly that division on the current court.


Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law; federal practice; civil rights and civil liberties; and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014) and The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020). His latest book is Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights (Liveright, 2021).


This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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