NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 6: Capital Punishment Handbook: Habeas Corpus Proceedings

        6.1 Habeas Corpus Generally
               6.1.1  Retroactivity Of The AEDPA
               6.1.2  State Waiver Of AEDPA's Application
               6.1.3  Mode Of Challenging Sentence

Section 2241 of Title 28 of the United States Code provides federal courts with original jurisdiction over writs of habeas corpus. Under current procedure, a § 2241 petition is the proper means to challenge the execution of a sentence or to challenge confinement that is not the result of a criminal court’s judgment. Challenges to the validity or lawfulness of a conviction itself, however, are properly brought through a petition for writ of habeas corpus under 28 USC 2254 for state convictions or a motion to vacate, set aside, or correct the judgment under 28 USC 2255 for federal convictions.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat 1214 (1996), made significant changes in the law of federal habeas corpus. The AEDPA, signed into law on April 24, 1996, amended many provisions in Chapter 153 (28 USC§ 2241-2255) and added Chapter 154 (28 U.S.C.§§ 2261-2266), which applies exclusively to capital cases. Chapter 154 contains special optional provisions triggered by the state’s establishment of a mechanism for the appointment and compensation of counsel in state postconviction proceedings.

Felker v. Turpin, 518 U.S. 651 (1996) (discussing the AEDPA in context of habeas corpus history; finding that the AEDPA does not violate Article III, Section 2 of the U.S. Constitution or violate the Constitution’s ban on suspension of the writ pursuant to Article I, Section 9, clause 2).

28 USC 2241 (2000) (providing for writ of habeas corpus).

28 USC 2254 (2000) (providing petition for writ of habeas corpus for relief from state convictions).

28 USC 2255 (2000) (providing relief from federal convictions).

28 USC§ 2241-2255 (2000) (applying to capital and noncapital cases brought by state and federal prisoners).

28 U.S.C. 2261-2266 (2000) (applying only to capital cases and providing requirements for state to “opt in”).

9th Cir. R. 22-1–22-6 (applying to habeas cases and direct criminal appeals in capital cases).

A.B.A. Panel Discussion, Dead Man Walking Without Due Process? A Discussion of the Anti-Terrorism and Effective Death Penalty Act of 1996, 23 N.Y.U. Rev. L. & Soc. Change 163 (1997) (discussing the AEDPA and the panelists’ ongoing concern with due process violations in capital cases).

Charles F. Baird, The Habeas Corpus Revolution: A New Role for State Courts?, 27 St. Mary’s L.J. 297 (1996) (portraying recent changes in and impact of Supreme Court habeas corpus jurisprudence and addressing question of whether Supreme Court’s reduction in federal oversight should be accompanied by greater measure of review by state courts).

John H. Blume & David P. Voisin, An Introduction to Federal Habeas Practice and Procedure, 47 S.C. L. Rev. 271 (1996) (outlining federal habeas corpus procedure, with special reference to death sentencing issues).

Alan Clarke, Habeas Corpus: The Historical Debate, 14 N.Y. L. Sch. J. Hum. Rts. 375 (1998) (discussing the history of habeas corpus as it pertains to the current debate over the scope of habeas relief).

Betty Binns Fletcher, The Death Penalty in America: Can Justice Be Done?, 70 N.Y.U. L. Rev. 811 (1995) (addressing issues for the federal judiciary in providing habeas corpus review in capital cases; concluding “backwards” system overall expends immense effort and resources at appellate review, but too often fails to provide adequate representation at trial).

Clarke D. Forsythe, The Historical Origins of Broad Federal Habeas Review Reconsidered, 70 Notre Dame L. Rev. 1079 (1995) (reassessing common law history of original habeas corpus act and evolution of Supreme Court’s interpretation of the Act and anticipating Congress’ habeas reform).

Barry Friedman, Failed Enterprise: The Supreme Court’s Habeas Reform, 83 Cal. L. Rev. 485 (1995) (examining Supreme Court habeas corpus jurisprudence and arguing that Court’s reform efforts have failed the goals that Court set out to further).

Andrew Hammel, Diabolical Federalism: A Functional Critique and Proposed Reconstruction of Death Penalty Federal Habeas, 39 Am. Crim. L. Rev. 1 (2002) (proposing reforms to the current federal habeas corpus statute).

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) (addressing habeas corpus historically and in light of changes brought by habeas reform act).

Joseph L. Hoffman, Is Innocence Sufficient? An Essay on the U.S. Supreme Court's Continuing Problems with Federal Habeas Corpus and the Death Penalty, 68 Ind. L.J. 817 (1993) (arguing that both habeas corpus jurisprudence and death penalty law in general unduly emphasize process rather than substance; suggesting that recent limitations on habeas review represent an effort to limit the scope of death penalty review).

Brian M. Hoffstadt, The Deconstruction and Reconstruction of Habeas, 78 S. Cal. L. Rev. 1125 (2005) (arguing that reconstruction of habeas review is necessary or else the writ will “remain an unjustified, theoretical outlier under any view of federal courts law.”

James S. Leibman, Opting for Real Death Penalty Reform, 63 Ohio St. L. J. 315 (2002) (arguing for change to system in which capital defendants would agree to give up existing postconviction review rights in return for better qualified trial counsel).

Scott Moss, Recent Development, An Appeal by Any Other Name: Congress' Empty Victory Over Habeas Rights, 32 Harv. C.R.-C.L. L. Rev. 249 (1997) (analyzing Felker and constitutionality of the AEDPA).

Note, The Avoidance of Constitutional Questions and the Preservation of Judicial Review: Federal Court Treatment of the New Habeas Provisions, 111 Harv. L. Rev. 1578 (1998) (summarizing the AEDPA’s modifications of habeas corpus law; reviewing leading cases interpreting the AEDPA and concluding that Congress’ goal of curtailing habeas corpus, as expressed by the AEDPA, will be achieved in part as a result of the statutory interpretation employed by courts to avoid the AEDPA’s restrictions in the first place).

Kathleen Patchel, The New Habeas, 42 Hastings L.J. 939 (1991) (analyzing the Supreme Court’s limitation of habeas review through the development of the doctrines of procedural default, successive petitions, and nonretroactivity; arguing that the Court has elevated finality concerns at the expense of other values).

Stephen Reinhardt, The Anatomy of an Execution: Fairness vs. “Process,” 74 N.Y.U. L. Rev. 313 (1999) (discussing the history and current state of habeas corpus in the context of the Thomas Thompson case).

Yale L. Rosenberg, Kaddish for Federal Habeas Corpus, 59 Geo. Wash. L. Rev. 362 (1991) (discussing history of modern habeas corpus jurisprudence and arguing that the Supreme Court's retroactivity decisions have eliminated meaningful federal habeas review of state judgments).

Christopher E. Smith, Federal Habeas Corpus Reform: The States’ Perspective, 18 Just. Sys. J. 1 (1995) (assessing impact and efficacy of Supreme Court’s judicial policymaking on habeas corpus from perspective of states’ attorneys).

Jordan Steiker, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners?, 92 Mich. L. Rev. 862 (1994) (longing for constitutional right to habeas corpus).

J. Thomas Sullivan, A Practical Guide to Recent Developments in Federal Habeas Corpus for Practicing Attorneys, 25 Ariz. St. L.J. 317 (1993) (outlining very briefly the structure of federal habeas review).

J. Thomas Sullivan, “Reforming” Federal Habeas Corpus: The Cost to Federalism: The Burden on Defense Counsel, and the Loss of Innocence, 61 UMKC L. Rev. 291 (1992) (arguing that recent Supreme Court habeas decisions undermine the enforcement of federal rights in state courts, impose unreasonable burdens on defense counsel, encourage ineffective assistance of counsel claims, and retreat from the Court's earlier emphasis on the importance of innocence).

Ronald J. Tabak, Capital Punishment: Is There Any Habeas Left in This Corpus?, 27 Loy. U. Chi. L.J. 523 (1996) (presenting commentary on and transcript of panel discussion held in August 1995 on proposed habeas reform legislation, and related issues).

Nicole Veilleux et al., Habeas Relief for State Prisoners, 84 Geo. L.J. 1400 (1996) (summarizing law of habeas corpus).

Kenneth Williams, The Antiterrorism and Effective Death Penalty Act: What’s Wrong with it and How to Fix it?, 33 Conn L. Rev. 919 (Spring 2001) (proposing that AEDPA be amended to make it easier for death row inmates to present evidence of innocence and to permit federal courts to review de novo claims of prosecutorial misconduct or ineffective assistance of counsel in capital cases).

Larry W. Yackle, A Primer on the New Habeas Corpus Statute, 44 Buff. L. Rev. 381 (1996) (reviewing principal changes of 1996 habeas corpus reform to existing law, focusing on process of federal habeas corpus adjudication and new § 2254(d) governing effect federal courts must give to state court judgments of federal claims).

Chapter 154 of Title 28 of the United States Code specifically provides that its provisions apply to cases pending on or after the date of enactment of the AEDPA, but Chapter 153 is silent as to its effective date. In Lindh v. Murphy, 521 U.S. 320 (1997), the Supreme Court held that the provisions amending Chapter 153 “generally apply only to cases filed after the Act became effective” on April 24, 1996. Prior to Lindh, a split among the circuits existed as to whether Chapter 153 applied to pending cases.  The Ninth Circuit in Jeffries v. Wood, 114 F.3d 1484 (9th Cir.) (en banc), cert. denied, 522 U.S. 1008 (1997), concluded that it did not apply.

The Ninth Circuit has considered several cases presenting the question of when a case is “pending” for purposes of general application of the AEDPA. In Calderon v. United States Dist. Ct. for the Cent. Dist. of Cal. (Beeler), 128 F.3d 1283 (9th Cir. 1997), cert. denied, 522 U.S. 1099, cert. denied, 523 U.S. 1061, and overruled en banc, 163 F.3d 530 (9th Cir. 1998), the Ninth Circuit initially held that a habeas case is “pending” within the meaning of the AEDPA and Lindh only when the petition is filed.

In Calderon v. United States Dist. Ct. for the Cent. Dist. of Cal. (Kelly V), 163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060 (1999), an en banc panel of the Ninth Circuit reconsidered Beeler in light of the Supreme Court's decision in Hohn v. United States, 524 U.S. 236 (1998). The Kelly V court determined that Hohn necessitated the overruling of Beeler and held that a petition for the appointment of counsel to prepare and file a habeas petition coupled with a motion for a stay of execution also suffices as a “pending” case. Abrogating Kelly V, the Supreme Court in Woodford v Garceau, 538 U.S. 202 (2003), held that a case does not become “pending” for purposes of the AEDPA until actual application for habeas corpus relief is filed in federal court. The Court therefore held that the AEDPA applies to a habeas application filed after the AEDPA’s effective date even though the applicant sought either appointment of counsel or a stay or execution (or both) before the AEDPA’s effective date. Id. at 206. The Court concluded that if on the AEDPA’s effective date “the state prisoner had before a federal court an application for habeas relief seeking an adjudication on the merits of the petitioner’s claim, then amended § 2254(d) does not apply.” Id. at 207.

Additionally, a remaining question, not expressly addressed in Lindh, exists as to whether courts should apply the retroactivity analysis set forth in Landgraf v. USI Film Prods., 511 U.S. 244 (1994), to cases filed after the AEDPA’s effective date. See §§ 6.2.1.1, 6.2.2.1, and 6.2.3.2.1.

Woodford v Garceau, 538 U.S. 202 (2003) (holding that AEDPA applies to a habeas application filed after AEDPA’s effective date even though the applicant sought either appointment of counsel or a stay or execution (or both) before AEDPA’s effective date; abrogating Calderon v. United States Dist. Ct. for the Cent. Dist. of Cal. (Kelly V), 163 F.3d 530 (9th Cir. 1998) (en banc).

Hohn v. United States, 524 U.S. 236 (1998) (relying on Ex Parte Quirin in determining that an application for certificate of appealability constitutes a “case” within the meaning of 28 USC 1254, and holding that the Supreme Court has jurisdiction to review decisions of the courts of appeals denying applications for certificates of appealability under 28 USC 2253(c)).

Lindh v. Murphy, 521 U.S. 320 (1997) (holding negative implication of Chapter 154 retrospective application provision means that new provisions of Chapter 153 apply only to cases filed after the AEDPA became effective).

Felker v. Turpin, 518 U.S. 651 (1996) (applying the AEDPA to prisoner’s second petition despite the fact that prisoner filed first petition prior to AEDPA’s enactment).

McFarland v. Scott, 512 U.S. 849, 856 (1994) (holding that for purposes of 21 USC 848(q)(4(B), which provides for the appointment of counsel for capital defendants in postconviction proceedings, a “post conviction proceeding” is pending when a request for the appointment has been made).

Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (setting forth standard for retroactivity of new statutes, preventing retroactive application of statute where doing so attaches new legal consequences to events completed before enactment).

Ex Parte Quirin, 317 U.S. 1 (1942) (holding that a request for leave to file a habeas petition constituted a case in a district court over which the court of appeals could assert jurisdiction; “Presentation of the petition for judicial action is the institution of a suit. Hence the denial by the district court of leave to file petitions in these causes was the judicial determination of a case or controversy . . . .”).

Calderon v. United States Dist. Ct. for the Cent. Dist. of Cal. (Kelly V), 163 F.3d 530, 540 (9th Cir. 1998) (en banc) (holding, in light of Hohn v. United States, that “a petition for the appointment of counsel to prepare and file a habeas petition, coupled with a motion for a stay of execution, also suffices as a pending case”), cert. denied, 526 U.S. 1060 (1999), abrogated by Woodford v Garceau, 538 U.S. 202 (2003), above.

Calderon v. United States Dist. Ct. for the Cent. Dist. of Cal. (Beeler), 128 F.3d 1283, 1288–89 (9th Cir. 1997) (holding that a habeas case is “pending” within the meaning of the AEDPA and Lindh only when the petition is filed), cert. denied, cert. denied, 522 U.S. 1099, cert. denied, 523 U.S. 1061 (1998), and overruled en banc, 163 F.3d 530 (9th Cir. 1998).

Jeffries v. Wood, 114 F.3d 1484, 1494 (9th Cir.) (en banc) (AEDPA does not apply to cases filed before enactment date; reviewing legislative history and finding that congressional intent clear–lack of retroactive application provision in Chapter 154 means Congress did not intend it to apply retrospectively), cert. denied, 522 U.S. 1008 (1997).

Leavitt v. Arave, 927 F. Supp. 394 (D. Idaho 1996) (holding that the AEDPA was intended to apply to all pending habeas cases; statutes defining scope of habeas actions deal with “prospective relief” and thus applying AEDPA to pending applications does not have retroactive effect).

Mueller v. Angelone, 181 F.3d 557 (4th Cir. 1999) (reading Lindh to permit application of the AEDPA to cases filed after enactment only where the effect of doing so is not impermissibly retroactive under Landgraf; undertaking Landgraf analysis to determine applicability of AEDPA to first habeas petition filed after enactment of AEDPA and concluding Landgraf did not prohibit application).

Gosier v. Welborn, 175 F.3d 504 (7th Cir. 1999) (holding that the AEDPA applied to petitioner who sought appointment of counsel before effective date of AEDPA but did not file habeas petition until after AEDPA became effective).

Williams v. Coyle, 167 F.3d 1036, 1037 (6th Cir. 1999) (holding that a habeas case is not pending for purposes of Lindh until the application for the writ is filed pursuant to 28 USC 2242).

Rivera v. Sheriff of Cook County, 162 F.3d 486, 489 (7th Cir. 1998) (citing Lindh for the proposition that AEDPA provisions necessarily apply to petitions filed after enactment of the AEDPA).

Green v. French, 143 F.3d 865, 868 (4th Cir. 1998) (same as above), cert. denied, 525 U.S. 1090 (1999).

Neelley v. Nagle, 138 F.3d 917, 921 (11th Cir.1998) (same as above), cert. denied, 525 U.S. 1075 (1999).

Pratt v. United States, 129 F.3d 54, 58 (1st Cir. 1997) (holding that the AEDPA applied to second § 2255 petition even though prisoner filed first petition prior to the AEDPA), cert. denied, 118 U.S. 1807 (1998).

Nobles v. Johnson, 127 F.3d 409 (5th Cir. 1997) (holding that case is “filed” for retroactivity analysis when petition is actually filed, not when motion to proceed in forma pauperis or for appointment for counsel is made), cert. denied, 523 U.S. 1139 (1998).

Holman v. Gilmore, 126 F.3d 876 (7th Cir. 1997) (holding that the AEDPA applied to state capital prisoner's petition, filed after AEDPA's effective date, despite petitioner's pre-AEDPA request for counsel to assist with filing of petition), cert. denied, 522 U.S. 1150 (1998).

Davis v. Executive Director of Dept. of Corrections, 100 F.3d 750, n.1 (10th Cir. 1996) (noting that both parties asserted the inapplicability of the AEDPA and that the state affirmatively waived its application), cert. denied, 520 U.S. 1215 (1997).

Watkins v. Meloy, 95 F.3d 4 (7th Cir. 1996) (stating that the provisions of AEDPA are waivable because they do not affect the subject matter jurisdiction of federal courts).

The Supreme Court has determined that any action that challenges the underlying conviction resulting in imprisonment is properly considered a petition for a writ of habeas corpus. Actions that challenge the conditions of confinement may be brought under 42 USC 1983. See Gomez v. United States Dist. Ct. for the N. Dist. of Cal., 503 U.S. 653 (1992).

Hill v. Crosby, 126 S. Ct. 1189 (2006) (mem.) (granting certiorari and a stay of execution, with the following questions presented: “1. Whether a complaint brought under 42 USC 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the chemicals utilized for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 USC 2254?; 2. Whether, under this Court’s decision in Nelson [v. Campbell (see below)], a challenge to a particular protocol the State plans to use during the execution process constitutes a cognizable claim under 42 USC 1983?”).

Nelson v. Campbell, 541 U.S. 637 (2004) (without reaching the question of how to categorize method-of execution claims generally, holding that 42 USC 1983 is an appropriate vehicle for petitioner’s Eighth Amendment claim seeking a temporary stay and permanent injunctive relief and alleging that the use of a “cut-down” procedure constituted cruel and unusual punishment).

Lonchar v. Thomas, 517 U.S. 314 (1996) (explaining Gomez as holding that the habeas rules apply to a last minute § 1983 method of execution claim).

Gomez v. United States Dist. Ct. for the N. Dist. of Cal., 503 U.S. 653 (1992) (refusing to consider eleventh-hour § 1983 challenge to execution method (cyanide gas) and holding that action was an obvious attempt to avoid the application of McCleskey).

Fierro v. Terhune, 147 F.3d 1158 (9th Cir. 1998) (considering inmates’ § 1983 action challenging state’s execution method; holding that inmates lacked standing because they were not currently subject to execution by unconstitutional method).

Felder v. Johnson, 180 F.3d 206 (5th Cir. 1999) (denying petitioner’s challenge to method of execution as procedurally barred; noting that several circuits have applied habeas requirements to suits challenging methods of execution even when they are denominated civil rights claims).

Williams v. Hopkins, 130 F.3d 333 (8th Cir.) (holding that § 1983 claim challenging constitutionality of electrocution was functional equivalent of habeas petition subject to procedural requirements for successive petitions and, therefore, district court lacked jurisdiction to hear claim), cert. denied, 522 U.S. 1010 (1997).

In re Sapp, 118 F.3d 460 (6th Cir. 1997) (holding that rules applying to successive petitions similarly apply to § 1983 petitions which challenge the underlying sentence of death, including claim that method of execution is cruel and unusual).

Hill v. Hopper, 112 F.3d 1088 (11th Cir. 1997) (a per se challenge to a method of execution mandated by state law must be brought as a habeas petition, not under § 1983), cert. denied, 520 U.S. 1203 (1997).

Schneider v. Bowersox, 105 F.3d 397 (8th Cir. 1997) (stating that § 1983 action cannot be used to evade procedural requirements of habeas petition).

Felker v. Turpin, 101 F.3d 95 (11th Cir.) (treating § 1983 challenge to method of execution as a second habeas petition and concluding that claim was subject to procedural requirements for bringing second or successive petitions), cert. denied, 519 U.S. 989 (1996).