Habeas Corpus: The Process of the Writ

Power to Issue Writs: The Act of 1789

From the beginning of government under the Constitution of 1789, Congress has assumed, under the necessary and proper clause, its power to establish inferior courts, its power to regulate the jurisdiction of federal courts and the power to regulate the issuance of writs.230 The Thirteenth section of the Judiciary Act of 1789 authorized the circuit courts to issue writs of prohibition to the district courts and the Supreme Court to issue such writs to the circuit courts. The Supreme Court was also empowered to issue writs of mandamus “in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.”231 Section 14 provided that all courts of the United States should “have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdiction, and agreeable to the principles and usages of law.”232 Although the Act of 1789 left the power over writs subject largely to the common law, it is significant as a reflection of the belief, in which the courts have on the whole concurred, that an act of Congress is necessary to confer judicial power to issue writs.233 Whether Article III itself is an independent source of the power of federal courts to fashion equitable remedies for constitutional violations or whether such remedies must fit within congressionally authorized writs or procedures is often left unexplored. In Missouri v. Jenkins,234 for example, the Court, rejecting a claim that a federal court exceeded judicial power under Article III by ordering local authorities to increase taxes to pay for desegregation remedies, declared that “a court order directing a local government body to levy its own taxes” is plainly a judicial act within the power of a federal court.235 In the same case, the Court refused to rule on “the difficult constitutional issues” presented by the State’s claim that the district court had exceeded its constitutional powers in a prior order directly raising taxes, instead ruling that this order had violated principles of comity.236

230 Frankfurter & Landis, Power of Congress Over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts—A Study in Separation of Powers, 37 HARV. L. REV. 1010, 1016-1023 (1924).

231 1 Stat. 73, 81.

232 Id. at 81-82. See also United States v. Morgan, 346 U.S. 502 (1954), holding that the All Writs section of the Judicial Code, 28 U.S.C. 1651(a), gives federal courts the power to employ the ancient writ of coram nobis.

233 This proposition was recently reasserted in Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34 (1985) (holding that a federal district court lacked authority to order U.S. marshals to transport state prisoners, such authority not being granted by the relevant statutes).

234 495 U.S. 33 (1990).

235 495 U.S. at 55 (citing Griffin v. Prince Edward County School Bd., 377 U.S. 218, 233-34 (1964) (an order that local officials “exercise the power that is theirs” to levy taxes in order to open and operate a desegregated school system “is within the court’s power if required to assure . . . petitioners that their constitutional rights will no longer be denied them”)).

236 495 U.S. at 50-52.

Common Law Powers of District of Columbia Courts.— That portion of 13 of the Judiciary Act of 1789 which authorized the Supreme Court to issue writs of mandamus in the exercise of its original jurisdiction was held invalid in Marbury v. Madison,237 as an unconstitutional enlargement of the Supreme Court’s original jurisdiction. After two more futile efforts to obtain a writ of mandamus, in cases in which the Court found that power to issue the writ had not been vested by statute in the courts of the United States except in aid of already existing jurisdiction,238 a litigant was successful in Kendall v. United States ex rel. Stokes,239 in finding a court that would take jurisdiction in a mandamus proceeding. This was the circuit court of the United States for the District of Columbia, which was held to have jurisdiction, on the theory that the common law, in force in Maryland when the cession of that part of the State that became the District of Columbia was made to the United States, remained in force in the District. At an early time, therefore, the federal courts established the rule that mandamus can be issued only when authorized by a constitutional statute and within the limits imposed by the common law and the separation of powers.240

Habeas Corpus: Congressional and Judicial Control.—The writ of habeas corpus241 has a special status because its suspension is forbidden, except in narrow circumstances, by Article I, 9, cl. 2. The writ also has a venerable common law tradition, long antedating its recognition in the Judiciary Act of 1789,1 as a means of “reliev[ing] detention by executive authorities without judicial trial.” 2 Nowhere in the Constitution, however, is the power to issue the writ vested in the federal courts. Could it be that despite the suspension clause restriction Congress could suspend de facto the writ simply by declining to authorize its issuance? Is a statute needed to make the writ available or does the right to habeas corpus stem by implication from the suspension clause or from the grant of judicial power?242 Since Chief Justice Marshall’s opinion in Ex parte Bollman,243 it has been generally accepted that “the power to award the writ by any of the courts of the United States, must be given by written law.”244 The suspension clause, Marshall explained, was an “injunction,” an “obligation” to provide “efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted.”245 And so it has been understood since,246 with a few judicial voices raised to suggest that what Congress could not do directly it could not do by omission.247 But inasmuch as statutory authority has always existed authorizing the federal courts to grant the relief they deemed necessary under habeas corpus, the Court has never had to face the question.248 In Felker v. Turpin,249 the Court again passed up the opportunity to delineate Congress’ permissive authority over habeas, finding that none of the provisions of the Antiterrorism and Effective Death Penalty Act250 raised questions of constitutional import.

237 5 U.S. (1 Cr.) 137 (1803). Cf. Wiscart v. D’Auchy, 3 U.S. (3 Dall.) 321 (1796).

238 McIntire v. Wood, 11 U.S. (7 Cr.) 504 (1813); McClung v. Silliman, 19 U.S. (6 Wheat.) 598 (1821).

239 37 U.S. (12 Pet.) 524 (1838).

240 In 1962, Congress conferred upon all federal district courts the same power to issue writs of mandamus as was exercisable by federal courts in the District of Columbia. 76 Stat. 744, 28 U.S.C. 1361.

241 Reference to the “writ of habeas corpus” is to the “Great Writ,” habeas corpus ad subjiciendum, by which a court would inquire into the lawfulness of a detention of the petitioner. Ex parte Bollman, 8 U.S. (4 Cr.) 75, 95 (1807). For other uses, see Carbo v. United States, 364 U.S. 611 (1961); Price v. Johnston, 334 U.S. 266 (1948). Technically, federal prisoners no longer utilize the writ of habeas corpus in seeking post-conviction relief, now the largest office of the writ, but proceed under 28 U.S.C. 2255, on a motion to vacate judgment. Intimating that if 2255 afforded prisoners a less adequate remedy than they would have under habeas corpus, it would be unconstitutional, the Court in United States v. Hayman, 342 U.S. 205 (1952), held the two remedies to be equivalent. Cf. Sanders v. United States, 373 U.S. 1, 14 (1963). The claims cognizable under one are cognizable under the other. Kaufman v. United States, 394 U.S. 217 (1969). Therefore, the term habeas corpus is used here to include the 2255 remedy. There is a plethora of writings about the writ. See, e.g., P. BATOR, ET AL., HART & WECHSLERS THE FEDERAL COURTS AND THE FEDERAL SYSTEM (Westbury, N.Y.: 3d ed. 1988), Ch. XI, 1465-1597 (hereinafter Hart & Wechsler); Developments in the Law—Federal Habeas Corpus, 83 HARV. L. REV. 1038 (1970).

1 Act of Sept. 24, 1789, ch. 20, 14, 1 Stat. 82.

2 INS v. St. Cyr, 533 U.S. 289, 301 (2001), as quoted in Rasul v. Bush, 124 S. Ct. 2686, 2692 (2004).

242 Professor Chafee contended that by the time of the Constitutional Convention the right to habeas corpus was so well established no affirmative authorization was needed. The Most Important Human Right in the Constitution, 32 B.U.L. REV. 143, 146 (1952). But compare Collins, Habeas Corpus for Convicts—Constitutional Right or Legislative Grace?, 40 CALIF. L. REV. 335, 344-345 (1952).

243 8 U.S. (4 Cr.) 75 (1807).

244 8 U.S. at 94. And see Ex parte Dorr, 44 U.S. (3 How.) 103 (1845).

245 8 U.S. at 95. Note that in quoting the clause, Marshall renders “shall not be suspended” as “should not be suspended.”

246 See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). Cf. Carbo v. United States, 364 U.S. 611, 614 (1961).

247 E.g., Eisentrager v. Forrestal, 174 F.2d 961, 966 (D.C. Cir. 1949), revd. on other grounds sub nom., Johnson v. Eisentrager, 339 U.S. 763 (1950); and see Justice Black’s dissent, id. at 791, 798: “Habeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution. Its use by courts cannot in my judgment be constitutionally abridged by Executive or by Congress.” And in Jones v. Cunningham, 371 U.S. 236, 238 (1963), the Court said: “The habeas corpus jurisdictional statute implements the constitutional command that the writ of habeas corpus be made available.” (Emphasis supplied).

248 Cf. Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869).

249 518 U.S. 651 (1996).

250 Pub. L. 104-132, 101-08, 110 Stat. 1214, 1217-26, amending, inter alia, 28 U.S.C. 2244, 2253, 2254, 2255, and Fed. R. App. P. 22.

Having determined that a statute was necessary before the federal courts had power to issue writs of habeas corpus, Chief Justice Marshall pointed to 14 of the Judiciary Act of 1789 as containing the necessary authority.251 As the Chief Justice read it, the authorization was limited to persons imprisoned under federal authority, and it was not until 1867, with two small exceptions,252 that legislation specifically empowered federal courts to inquire into the imprisonment of persons under state authority.253 Pursuant to this authorization, the Court expanded the use of the writ into a major instrument to reform procedural criminal law in federal and state jurisdictions.

Habeas Corpus: The Process of the Writ.—A petition for a writ of habeas corpus is filed by or on behalf of a person in “custody,” a concept which has been expanded so much that it is no longer restricted to actual physical detention in jail or prison.254 The writ acts upon the custodian, not the prisoner, so the issue under the jurisdictional statute is whether the custodian is within the district court’s jurisdiction.3 Traditionally, the proceeding could not be used to secure an adjudication of a question which if determined in the petitioner’s favor would not result in his immediate release, since a discharge from custody was the only function of the writ,255 but this restraint too the Court has abandoned in an emphasis upon the statutory language directing the habeas court to “dispose of the matter as law and justice require.”256 Thus, even if a prisoner has been released from jail, the presence of collateral consequences flowing from his conviction gives the court jurisdiction to determine the constitutional validity of the conviction.257

251 Ex parte Bollman, 8 U.S. (4 Cr.) 75, 94 (1807). See Fay v. Noia, 372 U.S. 391, 409 (1963).

252 Act of March 2, 1833, 7, 4 Stat. 634 (federal officials imprisoned for enforcing federal law); Act of August 29, 1842, 5 Stat. 539 (foreign nationals detained by a State in violation of a treaty). See also Bankruptcy Act of April 4, 1800, 38, 2 Stat. 19, 32 (habeas corpus for imprisoned debtor discharged in bankruptcy), repealed by Act of December 19, 1803, 2 Stat. 248.

253 Act of February 5, 1867, 14 Stat. 385, conveyed power to federal courts “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... .” On the law with respect to state prisoners prior to this statute, see Ex parte Dorr, 44 U.S. (3 How.) 103 (1845); cf. Elkison v. Deliesseline, 8 Fed. Cas. 493 (No. 4366) (C.C.D.S.C. 1823) (Justice Johnson); Ex parte Cabrera, 4 Fed. Cas. 964 (No. 2278) (C.C.D.Pa. 1805) (Justice Washington).

254 28 U.S.C. 2241(c), 2254(a). “Custody” does not mean one must be confined; a person on parole or probation is in custody. Jones v. Cunningham, 371 U.S. 236 (1963). A person on bail or on his own recognizance is in custody, Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300-301 (1984); Lefkowitz v. Newsome, 420 U.S. 283, 291 n.8 (1975); Hensley v. Municipal Court, 411 U.S. 345 (1973), and Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), held that an inmate of an Alabama prison was sufficiently in custody as well of Kentucky authorities who had lodged a detainer with Alabama to obtain the prisoner upon his release.

3 Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494–95 (1973) (issue is whether “the custodian can be reached by service of process”). See also Rasul v. Bush, 124 S. Ct. 2686 (federal district court for District of Columbia had jurisdiction of habeas petitions from prisoners held at U.S. Naval base at Guantanamo Bay, Cuba); Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004) (federal district court in New York lacks jurisdiction over prisoner being held in a naval brig in Charleston, South Carolina; the commander of the brig, not the Secretary of Defense, is the immediate custodian and proper respondent).

255 McNally v. Hill, 293 U.S. 131 (1934); Parker v. Ellis, 362 U.S. 574 (1960).

256 28 U.S.C. 2243. See Peyton v. Rowe, 391 U.S. 54 (1968). See also Maleng v. Cook, 490 U.S. 488 (1989).

257 Carafas v. LaVallee, 391 U.S. 234 (1968), overruling Parker v. Ellis, 362 U.S. 574 (1960). In Peyton v. Rowe, 391 U.S. 54 (1968), the Court overruled McNally v. Hill, 293 U.S. 131 (1934), and held that a prisoner may attack on habeas the second of two consecutive sentences while still serving the first. See also Walker v. Wainwright, 390 U.S. 335 (1968) (prisoner may attack the first of two consecutive sentences although the only effect of a successful attack would be immediate confinement on the second sentence). Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), held that one sufficiently in custody of a State could use habeas to challenge the State’s failure to bring him to trial on pending charges.

Petitioners seeking federal habeas relief must first exhaust their state remedies, a limitation long settled in the case law and codified in 1948.258 It is only required that prisoners once present their claims in state court, either on appeal or collateral attack, and they need not return time and again to raise their issues before coming to federal court.259 While they were once required to petition the Supreme Court on certiorari to review directly their state convictions, prisoners have been relieved of this largely pointless exercise,260 although if the Supreme Court has taken and decided a case its judgment is conclusive in habeas on all issues of fact or law actually adjudicated.261 A federal prisoner in a 2255 proceeding will file his motion in the court which sentenced him;262 a state prisoner in a federal habeas action may file either in the district of the court in which he was sentenced or in the district in which he is in custody.263

258 28 U.S.C. 2254(b). See Preiser v. Rodriguez, 411 U.S. 475, 490-497 (1973), and id. at 500, 512-24 (Justice Brennan dissenting); Rose v. Lundy, 455 U.S. 509, 515-21 (1982). If a prisoner submits a petition with both exhausted and unexhausted claims, the habeas court must dismiss the entire petition. Rose v. Lundy, 455 U.S. at 518-519. Exhaustion first developed in cases brought by persons in state custody prior to any judgment. Ex parte Royall, 117 U.S. 241 (1886); Urquhart v. Brown, 205 U.S. 179 (1907).

259 Brown v. Allen, 344 U.S. 443, 447-450 (1953); id. at 502 (Justice Frankfurter concurring); Castille v. Peoples, 489 U.S. 346, 350 (1989).

260 Fay v. Noia, 372 U.S. 391, 435 (1963), overruling Darr v. Burford, 339 U.S. 200 (1950).

261 28 U.S.C. 2244(c). But an affirmance of a conviction by an equally divided Court is not an adjudication on the merits. Neil v. Biggers, 409 U.S. 188 (1972).

262 28 U.S.C. 2255.

263 28 U.S.C. 2241(d). Cf. Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), overruling Ahrens v. Clark, 335 U.S. 188 (1948), and holding a petitioner may file in the district in which his custodian is located although the prisoner may be located elsewhere.

Habeas corpus is not a substitute for an appeal.264 It is not a method to test ordinary procedural errors at trial or violations of state law but only to challenge alleged errors which if established would go to make the entire detention unlawful under federal law.265 If after appropriate proceedings, the habeas court finds that on the facts discovered and the law applied the prisoner is entitled to relief, it must grant it, ordinarily ordering the government to release the prisoner unless he is retried within a certain period.266

264 Glasgow v. Moyer, 225 U.S. 420, 428 (1912); Riddle v. Dyche, 262 U.S. 333, 335 (1923); Eagles v. United States ex rel. Samuels, 329 U.S. 304, 311 (1946). But compare Brown v. Allen, 344 U.S. 443, 558-560 (1953) (Justice Frankfurter dissenting in part).

265 Estelle v. McGuire, 502 U.S. 62 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41-42 (1984)

266 28 U.S.C. 2244(b). See Whiteley v. Warden, 401 U.S. 560, 569 (1971); Irvin v. Dowd, 366 U.S. 717, 729 (1961).