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Seeking Clarity in the Federal Habeas Fog: Determining What Constitutes "Clearly Established" Law Under the Antiterrorism and Effective Death Penalty Act

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Seeking Clarity in the Federal Habeas Fog: Determining What Constitutes Catholic University Law Review Volume 54 Issue 3 Spring 2005 Article 3 2005 Seeking Clarity in the Federal Habeas Fog: Determining What Constitutes "Clearly Established" Law under the Antiterrorism and Effective Death Penalty Act Melissa M. Berry Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Melissa M. Berry, Seeking Clarity in the Federal Habeas Fog: Determining What Constitutes "Clearly Established" Law under the Antiterrorism and Effective Death Penalty Act, 54 Cath. U. L. Rev. 747 (2005). Available at: https://scholarship.law.edu/lawreview/vol54/iss3/3 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. SEEKING CLARITY IN THE FEDERAL HABEAS FOG: DETERMINING WHAT CONSTITUTES "CLEARLY ESTABLISHED" LAW UNDER THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT Melissa M. Berry' "Clear/ly]: adj. plain ...free from obscurity or ambiguity: easily understood: unmistakable." ' I. INTRODUCTION "Clearly, Your Honor, . .." "It is clear that .... " Attorneys frequently use these words to bolster a point. We all do it.2 Most of the time, however, "clearly" is superfluous; the argument should speak for itself. As a consequence of this overuse, "clearly" has lost much of its significance in everyday speech and writing. But this crisp seven-letter word now plays a significant role in the federal habeas corpus arena. This Article argues that, in the federal habeas corpus context, "clearly" is not superfluous. "Clearly" can mean the difference between freedom and prison. In 1996, Congress deliberately included the word "clearly" in the Antiterrorism and Effective Death Penalty Act (AEDPA),3 a statute that dramatically altered the federal writ of habeas corpus.4 The "Great * Assistant Professor of Law, Chapman University School of Law. J.D., Northwestern University School of Law; B.A., Tulane University. Many thanks to Diane Atkinson- Sanford, Steve Berry, Scott Howe, and Celestine McConville for their thoughtful comments on earlier versions of this Article, and to Christopher Hodson, Amy Martinez, and Amy Oakden for their diligent research assistance. This Article is dedicated to my mother, Mary McGonigal, whose courage and strength are an inspiration. 1. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 212 (10th ed. 1997). 2. Outside of this Article, I try to use "clear" and "clearly" sparingly. As a young law firm associate, I worked with a partner who had a pet peeve about the use of "clearly" in legal briefs and memoranda. "If you have to say it," he advised, "then your assertion is probably not clear." Many thanks to Ronald Berenstain of Perkins Coie LLP. This forum does not allow me to follow another critical piece of writing advice that I learned when serving as a law clerk to the Honorable David B. Sentelle of the U.S. Court of Appeals for the District of Columbia: use footnotes sparingly. 3. 28 U.S.C. § 2254(d)(1) (2000). 4. This Article does not attempt to describe all of the changes made by Congress in the Antiterrorism and Effective Death Penalty Act (AEDPA). For a comprehensive overview of AEDPA, see Larry W. Yackle, A Primer on the New Habeas Corpus Statute, 44 BUFF. L. REV. 381 (1996). Catholic University Law Review [Vol. 54:747 Writ" of habeas corpus allows federal courts to free state court prisoners who have been unconstitutionally imprisoned!5 AEDPA altered many aspects of federal habeas corpus, but perhaps the most prominent change was to the method by which federal habeas courts decide legal claims that state courts have denied on the merits.6 Section 2254(d) of AEDPA limits a federal court's ability to grant a state prisoner's habeas application: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.7 This provision operates as a "constraint on the power of a fcderal habeas 8 court to grant . .[the] writ" where constitutional error has occurred. 5. The American writ of habeas corpus has deep roots in the writ of habeas corpus ad subjiciendum, often deemed the "Great Writ." The writ was employed by courts in the colonies and new states before the adoption of the U.S. Constitution. In 1867, Congress enacted a statute mandating that federal courts "shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States." Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385, 385. For a history of the Great Writ, see WILLIAM DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS (1980); Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441, 463 (1963); Clarke D. Forsythe, The Historical Origins of Broad Federal Habeas Review Reconsidered, 70 NOTRE DAME L. REV. 1079 (1995); Dallin Oaks, Habeas Corpus in the States-] 776-1865, 32 U. CHI. L. REV. 243 (1965); Dallin Oaks, Legal History in the High Court -Habeas Corpus, 64 MICH. L. REv. 451 (1966); and Michael O'Neill, On Reforming the Federal Writ of Habeas Corpus, 26 SETON HALL L. REV. 1493 (1996). 6. Some commentators have argued that Congress followed the Court's lead in paring down the availability of the writ, primarily by adding procedural hurdles. See, e.g., A. Christopher Bryant, Retroactive Application of New Rules and the Antiterrorism and Effective Death Penalty Act, 70 GEO. WASH. L. REV. 1, 5-15 (2002) (urging clarification of retroactive application of U.S. Supreme Court criminal procedure decisions under AEDPA); Melissa L. Koehn, A Line in the Sand: The Supreme Court and the Writ of Habeas Corpus, 32 TULSA L.J. 389, 390 (1997) (noting that approximately two decades ago, the Supreme Court began reducing availability of habeas writs, particularly through creation of technical procedures for petitions); David Blumberg, Note, Habeas Leaps from the Pan and into the Fire: Jacobs v. Scott and the Antiterrorism and Effective Death Penalty Act of 1996, 61 ALB. L. REV. 557, 559-60 (1997) (discussing different treatment under Warren and Rehnquist Courts). 7. 28 U.S.C. § 2254(d) (2000). 2005] Seeking Clarity in the FederalHabeas Fog This constraint, or "standard of review" as it is commonly called, changed the pre-AEDPA standard of review from de novo to one that is more deferential to state courts.9 Federal courts and commentators have struggled to understand the significance of this change.' Generally, however, § 2254(d)(1) is viewed as addressing the appropriate standard of review for questions of law and mixed questions of law and fact, while § 2254(d)(2) is viewed as addressing the appropriate standard of review for questions of fact." Section 2254 is also AEDPA's most controversial section. Debates over the meaning of "contrary to" and "unreasonable application" have consumed hundreds of pages in law reviews and in the federal reporters. 12 8. Williams v. Taylor, 529 U.S. 362, 412 (2000). 9. See 28 U.S.C. § 2254(d). Some commentators have noted that § 2254(d) is more accurately described as a "limitation on relief" rather than a "standard of review." See JAMES S. LIEBMAN & RANDY HERTZ, 2 FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 32.1, at 1419-21 (4th ed. 2001); id. at 1421 ("[S]ection 2254(d)(1) operates as a 'constraint on the power of a federal habeas court to grant ... the writ' .... (first omission in original) (quoting Williams, 529 U.S. at 412)); see also ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 15.1, at 862 (4th ed. 2003) ("Technically, federal court consideration of the habeas corpus petition is not considered a direct review of the state court decision; rather, the petition constitutes a separate civil suit filed in federal court and is termed collateral relief."). This author agrees but employs the standard of review terminology because it is most commonly used. 10. LIEBMAN & HERTZ, supra note 9, § 32.2, at 1421-28 (citing cases); see also infra note 12. 11. Allan Ides, Habeas Standards of Review Under 28 U.S.C. § 2254(d)(1): A Commentary of Statutory Text and Supreme Court Precedent, 60 WASH. & LEE L. REV. 677, 681 (2003). 12. Commentators immediately took to analyzing whether AEDPA had changed the standard of review from de novo to one of deference. See, e.g., Allan K. Chen, Shadow Law: Reasonable Unreasonableness, Habeas Theory, and the Nature of Legal Rules, 2 BUFF. CRIM. L. REV. 535 (1999); Marshall J.Hartman & Jeanette Nyden, Habeas Corpus and the New Federalism After the Anti- Terrorism and Effective Death Penalty Act of 1996, 30 J. MARSHALL L. REV. 337 (1997); Ides, supra note 11; Evan T. Lee, Section 2254(d) of the New Habeas Statute: An (Opinionated) User's Manual, 51 VAND. L. REV. 103 (1998); James S. Liebman & William F. Ryan, "Some Effectual Power": The Quantity and Quality of Decisionmaking Required of Article III Courts, 98 COLUM. L. REV. 696, 864-84 (1998); Todd Pettys, Federal Habeas Relief and the New Tolerance for "Reasonably Erroneous" Applications of Federal Law, 63 OHIO ST.
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