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Historical Origins of Broad Federal Habeas Review Reconsidered Clarke D Notre Dame Law Review Volume 70 | Issue 5 Article 2 6-1-1999 Historical Origins of Broad Federal Habeas Review Reconsidered Clarke D. Forsythe Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation Clarke D. Forsythe, Historical Origins of Broad Federal Habeas Review Reconsidered, 70 Notre Dame L. Rev. 1079 (1995). Available at: http://scholarship.law.nd.edu/ndlr/vol70/iss5/2 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. ARTICLES The Historical Origins of Broad Federal Habeas Review Reconsidered Clarke D. Forsythe' [A] proper determination of the Great Writ's future requires an accurate understanding of its past.' I. INTRODUCTION History continues to be a defining factor in the Supreme Court's habeas corpus jurisprudence. Although the modem doc- trine of federal habeas as a post-conviction remedy bears little likeness to its common law function, Supreme Court Justices re- peatedly extol the history of the writ in applying it.2 However, a growing criticism of expansive habeas jurisdiction among some Justices has fostered a continuing examination of the history of habeas corpus and of the 190 years of Supreme Court habeas jurisprudence. Justices Brennan and Harlan debated the common law background and legislative purpose of the 1867 Act in Fay v. Noia' Justice Powell reviewed the historical function of habeas in * B.A., Allegheny College, 1980; J.D., Valparaiso University, 1983. 1 am grateful to Richard and Imogene Forsythe for a gift that allowed me to complete this article; to Gerry Bradley, Mary Ann Glendon, Michael Paulsen, and Kent Scheidegger for comments on an earlier draft; to Miranda Perry (J.D., University of Chicago, 1996) for her helpful research assistance; to Virginia Reuter for word processing assistance; to Michael Brown and the D'Angelo Law Library at the University of Chicago for providing quiet space to research and write; and to my wife, Karen, for her patience throughout the research and writing of this article. 1 James S. Liebman, Apocalypse Next Time?: The Anachronistic Attack on Habeas Corpus/Direct Review Parity, 92 COLUM. L. REv. 1997, 1999 (1992). 2 See, e.g., Smith v. Murray, 477 U.S. 527, 541 (1986); Engle v. Isaac, 456 U.S. 107, 126 (1982); Francis v. Henderson, 425 U.S. 536, 544 (1976); Fay v. Noia, 372 U.S. 391, 401-02 (1963); Sunal v. Large, 332 U.S. 174, 188 (1947) (Rutledge, J., dissenting) ("the writ's historic purpose"); see also Coleman v. McCormick, 874 F.2d 1280, 1294 & n.6 (9th Cir.) (en banc) (Reinhardt, J., concurring) (invoking the history of the writ), cert. denied, 493 U.S. 944 (1989). 3 372 U.S. 391 (1963). NOTRE DAME LAW REVIEW [Vol. 70:5 Schneckloth v. Bustamonte,4 Rose v. Mitchell,5 and Kuhlmann v. Wil- son.6 Justice Scalia surveyed the history of Supreme Court habeas doctrine in Withrow v. Williams.7 Justice Kennedy summarized the evolution of federal habeas for state prisoners in McCleskey v. Zant' Justices Thomas and O'Connor sparred over the history of the federal court's standard of review for mixed questions of fact and law in Wright v. West.9 Last Term, in Heck v. Humphrey,"0 the intersection between section 1983 and the federal habeas statutes was revisited. In the 1994-95 Term, the Court will hear at least three habeas cases, and historical analyses are sure to influence the Court's consideration." Clearly, history continues to shape the Court's habeas jurisprudence. Unfortunately, the writ's arcane Latin phraseology obscures its historic purpose. A writ of habeas corpus is a civil procedure, directed to a law enforcement authority, to contest "the legality of the detention of one in the custody of another.""3 The writ is deeply based in the English comnion law, dating back at least to the thirteenth century. It was first referred to as the "great writ" by Chief Justice Marshall in Ex parte Bollman, 4 because of its function in preserving freedom against illegal custody of the inno- cent. Its essential purpose was to liberate those "imprisoned with- out sufficient cause." Although the United States Constitution 4 412 U.S. 218, 254 (1973) (Powell, J., concurring). 5 443 U.S. 545, 580-82 (1979) (Powell, J., concurring). 6 477 U.s. 436, 445-48 (1986). 7 113 S. Ct. 1745 (1993). 8 499 U.s. 467 (1991). 9 112 S. Ct. 2482 (1992). For one perspective on this debate, see Liebman, supra note 1. 10 114 S. CL 2364, 2374 (1994) (Thomas, J., concurring). 11 Schlup v. Delo, 115 S. Ct. 851 (1995) (holding that actual innocence exception for a successive or abusive petition is governed by colorable showing of innocence stan- dard and not by more stringent clear and convincing evidence standard); O'Neal v. McAninch, 115 S. Ct. 992 (1995) (holding that federal habeas court which finds consti- tutional error in state court criminal judgment, and is in "grave doubt" about whether the error was "harmless," should treat error as if it affected the verdict); Kyles v. Whitley, 5 F.3d 806 (5th Cir. 1993), cert.granted, 114 S. Ct. 1610 (1994) (No. 93-7927). 12 Habeas corpus is a latin phrase meaning "[y]ou have the body." BLACK'S LAW DICIONARY 709 (6th ed. 1990). 13 McNally v. Hill, 293 U.S. 131, 136 (1934), overruled on other grounds, Peyton v. Rowe, 391 U.S. 54 (1968); see also Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) ("It is clear . from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the tradi- tional function of the writ is to secure release from illegal custody."). 14 8 U.S. (4 Cranch) 75, 96 (1807). 15 Ex parte Watkins, 28 U.S. (3 Pet.) 193, 202 (1830); see also BARBARA J. SHAPIRO, 1995] FEDERAL HABEAS REVIEW restricts the ability of Congress to suspend the availability of the writ,'" habeas corpus has never been held to be a constitutional right. 7 It is essentially a matter of federal statutory law in its practical implementation. In the original Judiciary Act of 1789, Congress made habeas corpus in federal court available to federal prisoners only.' Not until 1867 did Congress allow state prisoners to seek habeas corpus in federal court. The Act of 1867 has been amended only occasionally, most notably in 1948"s and in 1966.20 "BEYOND REASONABLE DOUBT" AND "PROBABLE CAUSE": HISTORICAL PERSPECriVES ON THE ANGLO-AMERICAN LAW OF EVIDENCE 131, 133 (1991) (citing WILLIAM LAMBARDE, EIRENARCHA, OR OF THE OFFICE OF THE JUSTICE OF THE PEACE 93 (1614 ed.) and WIL- LIAM SHEPPARD, AN EPITOME OF ALL THE COMMON AND STATUTE LAw (1659) on the function of habeas corpus). 16 "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." U.S. CONST. art. I, § 9, cl. 2. 17 See Habeas Corpus Reform, Hearings on S. 88, S. 1757 and S. 1760 Before the Senate Comm. on the Judiciay, 101st Cong., 1st & 2d Sess. 11 n.2 (1989 & 1990) [hereinafter 1989-90 Senate Habeas Hearings) (Testimony of Lewis F. Powell). This is also implied by the Court's holding in Herrera v. Collins, 113 S. Ct. 853 (1993), that there is no constitutional right to a judicial determination of "actual inno- cence" via habeas corpus. 18 And be it further enacted, That all the before-mentioned courts of the United States, shall have power to issue writs of scire fadas, habeas corpus, [] and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as wel as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.-Prvided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify. Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 81-82; see Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807); Ex parte Burford, 7 U.S. (3 Cranch) 448, 448-49 (1806); United State v. Ham- ilton, 3 U.S. (3 Dall.) 17 (1795). 19 Ch. 646, 62 Star. 964 (1948). In 1948, Congress codified the exhaustion of state remedies requirement from Ex parte Royall, 117 U.S. 241 (1886), and Ex parte Hawk, 321 U.S. 114 (1944), in 28 U.S.C. § 2254(b) (1988); see Rose v. Lundy, 455 U.S. 509, 515-16 (1982). 20 Pub. L. No. 89-590, 80 Stat. 811 (1966); Pub. L. No. 89-711, 80 Stat. 1105 (1966). The current principal statutes-28 U.S.C. §§ 2241, 2244 and 2254-authorize the grant of the writ by federal courts for state prisoners within broad and ambiguous limits. Consolidating three sections of the earlier code, 28 U.S.C. § 2241 authorizes the grant of the writ when the prisoner "is in custody in violation of the Constitution or laws or trea- ties of the United States." 28 U.S.C.
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