Limitations on Habeas Corpus Review of Capital Sentences

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.


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Limitations on Habeas Corpus Review of Capital Sentences.—The Court’s rulings limiting federal habeas corpus review of state convictions, reinforced by the Antiterrorism and Effective Death Penalty Act of 1996,214 may be expected to reduce significantly the amount of federal court litigation over state imposition of capital punishment. In the habeas context, the Court rejected the “death is different” approach by applying to capital cases the same rules that limit federal petitions in non-capital cases.215 Then, in In re Troy Anthony Davis,216 the Court found a death-row convict with a claim of actual innocence to be entitled to a District Court determination of his habeas petition.217

The Court held in Penry v. Lynaugh218 that its Teague v. Lane219 rule of nonretroactivity applies to capital sentencing challenges. Under Teague, new rules of constitutional interpretation announced after a defendant’s conviction has become final will not be applied in habeas cases unless one of two exceptions applies.220 The two exceptions—the situations in which “[a] new rule applies retroactively in a collateral proceeding”—are when “(1) the rule is substantive or (2) the rule is a ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”221 The first exception has also been stated to be “that a new rule should be applied retroactively if it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.’”222 The second exception has also been stated to be “that a new rule should be applied retroactively if it requires the observance of those procedures that . . . are implicit in the concept of ordered liberty,’” and “without which the likelihood of an accurate conviction is seriously diminished.”223 Further restricting the availability of federal habeas review is the Court’s definition of “new rule.” Interpretations that are a logical outgrowth or application of an earlier rule are nonetheless “new rules” unless the result was “dictated” by that precedent.224 Although in Penry itself the Court determined that the requested rule (requiring an instruction that the jury consider mitigating evidence of the defendant’s mental retardation and abused childhood) was not a “new rule” because it was dictated by Eddings and Lockett, in subsequent habeas capital sentencing cases the Court has found substantive review barred by the “new rule” limitation.225

A second restriction on federal habeas review also has ramifications for capital sentencing review. Claims that state convictions are unsupported by the evidence are weighed by a “rational factfinder” inquiry: “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact have found the essential elements of the crime beyond a reasonable doubt.”226 This same standard for reviewing alleged errors of state law, the Court determined, should be used by a federal habeas court to weigh a claim that a generally valid aggravating factor is unconstitutional as applied to the defendant.227 In addition, the Court has held that, absent an independent constitutional violation, habeas corpus relief for prisoners who assert innocence based on newly discovered evidence should generally be denied.228 In In re Troy Anthony Davis,229 however, the Court found a death-row convict with a claim of actual innocence to be entitled to a District Court determination of his habeas petition.230

Third, a different harmless error rule is applied when constitutional errors are alleged in habeas proceedings. The Chapman v. California231 rule applicable on direct appeal, requiring the state to prove beyond a reasonable doubt that a constitutional error is harmless, is inappropriate for habeas review, the Court concluded, given the “secondary and limited” role of federal habeas proceedings.232 The appropriate test is that previously used only for non-constitutional errors: “whether the error has substantial and injurious effect or influence in determining the jury’s verdict.”233 Further, the “substantial and injurious effect standard” is to be applied in federal habeas proceedings even “when the state appellate court failed to recognize the error and did not review it for harmlessness under the ‘harmless beyond a reasonable doubt’ standard set forth in Chapman v. California . . . .”234

A fourth rule was devised to prevent successive “abusive” or defaulted habeas petitions. Federal courts are barred from hearing such claims unless the defendant can show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found him eligible for the death penalty under applicable state law.235

The Antiterrorism and Effective Death Penalty Act of 1996 prohibits federal habeas relief based on claims that were adjudicated on the merits in state court unless the state decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”236 The Court’s decision in Bell v. Cone,237 rejecting a claim that an attorney’s failure to present mitigating evidence during the capital sentencing phase of a trial and his waiver of a closing argument at sentencing should entitle a condemned prisoner to relief, illustrates how these restrictions can operate to defeat challenges to state-imposed death sentences.238

In Carey v. Musladin,239 the Court noted that it had previously held that “the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes,”240 but that it had never ruled on the subject the spectator conduct that allegedly affected the defendant’s right to a fair trial consisted of members of the victim’s family wearing buttons with the victim’s photograph. Given the lack of holdings from the Court on the question of spectator conduct, the Court in Carey found that “it cannot be said that the state court unreasonabl[y] appli[ed] clearly established Federal law” in denying the defendant relief.241 Consequently, the Antiterrorism and Effective Death Penalty Act of 1996 precluded habeas relief. Similarly, because the Supreme Court has never ruled on whether, during a plea hearing at which the defendant pleads guilty, defense counsel’s being linked to the courtroom by speaker phone, rather than being physically present, is likely to result in such poor performance that the Cronic standard for ineffective assistance of counsel should apply, the Court again could not say “that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”242

The Court has also ruled that a death row inmate has no constitutional right to an attorney to help prepare a petition for state collateral review.243


214 Pub. L. 104–132, 110 Stat. 1214.

215 Herrera v. Collins, 506 U.S. 390, 405 (1993) (“we have ‘refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus’”) (quoting Murray v. Giarratano, 492 U.S. 1, 9 (1989)).

216 557 U.S. ___, No. 08–1443 (2009).

217 Justice Stevens, in a concurring opinion joined by Justices Ginsburg and Breyer, noted that the fact that seven of the state’s key witnesses had recanted their trial testimony, and that several people had implicated the state’s principal witness as the shooter, made the case “exceptional.” Justices Scalia, joined by Justice Thomas, dissented.

218 492 U.S. 302 (1989).

219 489 U.S. 288 (1989).

220 The “new rule” limitation was suggested in a plurality opinion in Teague, and a Court majority in Penry and later cases adopted it. In Danforth v. Minnesota, 128 S. Ct. 1029, 1033 (2008), the Court held that Teague does not “constrain[ ] the authority of state courts to give broader effect to new rules of criminal procedure than is required by that opinion.”

221 Whorton v. Bockting, 549 U.S. 406, 416 (2007). In Saffle v. Parks, 494 U.S. 484, 494, 495 (1990), the Court stated the two exceptions as follows: “The first exception permits the retroactive application of a new rule if the rule places a class of private conduct beyond the power of the State to proscribe . . . or addresses a ‘substantive categorical guarante[e] accorded by the Constitution,’ such as a rule ‘prohibiting a certain category of punishment for a class of defendants because of their status or offense.’ . . . The second exception is for ‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”

222 Teague v. Lane, 489 U.S. at 311, quoting Mackey v. United States, 401 U.S. 667, 692 (1971). “Teague by its terms applies only to procedural rules.” Bousley v. United States, 523 U.S. 614, 620 (1998). “New substantive rules generally apply retroactively . . . because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose on him.” Schriro v. Summerlin, 542 U.S. 348, 351, 352 (2004) (internal quotation marks omitted) (the holding of Ring v. Arizona, that “a sentencing judge, sitting without a jury [may not] find an aggravating circumstance necessary for imposition of the death penalty,” 542 U.S. at 353, quoting Ring, 536 U.S. at 609, was a procedural, not a substantive rule).

223 Teague v. Lane, 489 U.S. at 311, 313, quoting Mackey v. United States, 401 U.S. at 693. The second exception was at issue in Sawyer v. Smith, 497 U.S. 227 (1990), in which the Court held the exception inapplicable to the Caldwell v. Mississippi rule that the Eighth Amendment is violated by prosecutorial misstatements characterizing the jury’s role in capital sentencing as merely recommendatory. It is “not enough,” the Court in Sawyer explained, “that a new rule is aimed at improving the accuracy of a trial. More is required. A rule that qualifies under this exception must not only improve accuracy, but also ‘alter our understanding of the bedrock procedural elements’ essential to the fairness of a proceeding.” Id. at 242.

224 Penry, 492 U.S. at 314; accord, Whorton v. Bockting, 549 U.S. 406, 416 (2007). Put another way, it is not enough that a decision is “within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a prior decision.” A decision announces a “new rule” if its result “was susceptible to debate among reasonable minds” or if it would not have been “an illogical or even a grudging application” of the prior decision to hold it inapplicable. Butler v. McKellar, 494 U.S. 407, 415 (1990).

225 See, e.g., Butler v. McKellar, 494 U.S. 407 (1990) (1988 ruling in Arizona v. Roberson, that the Fifth Amendment bars police-initiated interrogation following a suspect’s request for counsel in the context of a separate investigation, announced a “new rule” not dictated by the 1981 decision in Edwards v. Arizona that police must refrain from all further questioning of an in-custody accused who invokes his right to counsel); Saffle v. Parks, 494 U.S. 484 (1990) (habeas petitioner’s request that capital sentencing be reversed because of an instruction that the jury “avoid any influence of sympathy” is a request for a new rule not “compel[led]” by Eddings and Lockett, which governed what mitigating evidence a jury must be allowed to consider, not how it must consider that evidence); Sawyer v. Smith, 497 U.S. 227 (1990) (1985 ruling in Caldwell v. Mississippi, although a “predictable development in Eighth Amendment law,” established a “new rule” that false prosecutorial comment on jurors’ responsibility can violate the Eighth Amendment by creating an unreasonable risk of arbitrary imposition of the death penalty, since no case prior to Caldwell had invalidated a prosecutorial comment on Eighth Amendment grounds). But see Stringer v. Black, 503 U.S. 222 (1992) (neither Maynard v. Cartwright, 486 U.S. 356 (1988), nor Clemons v. Mississippi, 494 U.S. 738 (1990), announced a “new rule”).

226 Lewis v. Jeffers, 497 U.S. 764, 781 (1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

227 Lewis v. Jeffers, 497 U.S. 764, 780–84 (1990). The lower court erred, therefore, in conducting a comparative review to determine whether application in the defendant’s case was consistent with other applications.

228 Herrera v. Collins, 506 U.S. 390 (1993) (holding that a petitioner would have to meet an “extraordinarily high” threshold of proof of innocence to warrant federal habeas relief). Accord, House v. Bell, 547 U.S. 518, 554–55 (2006) (defendant failed to meet Herrera standard but nevertheless put forward enough evidence of innocence to meet the less onerous standard of Schlup v. Delo, 513 U.S. 298 (1995), which “held that prisoners asserting innocence as a gateway to [habeas relief for claims forfeited under state law] must establish that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.’” Id. at 2076–2077, quoting Schlup v. Delo, 513 U.S. at 327.) The Court here distinguished “freestanding” claims under Herrera from “gateway” claims under Schlup, the difference apparently being that success on a freestanding claim results in the overturning of a conviction, whereas success on a gateway claim results in a remand to the trial court to hear the claim. See also Article III, Habeas Corpus: Scope of the Writ.

229 557 U.S. ___, No. 08–1443 (2009).

230 Justice Stevens, in a concurring opinion joined by Justices Ginsburg and Breyer, “refuse[d] to endorse” Justice Scalia’s reasoning (in a dissent joined by Justice Thomas) that would read the Constitution to permit the execution of a convict “who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man.”

231 386 U.S. 18 (1967).

232 Brecht v. Abrahamson, 507 U.S. 619, 633 (1993).

233 Brecht v. Abrahamson, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Brecht was a non-capital case, but the rule was subsequently applied in a capital case. Calderon v. Coleman, 525 U.S. 141 (1998) (per curiam). In Hedgpeth v. Pulido, 129 S. Ct. 530 (2008) (per curiam), the Court held that a reviewing court should apply Brecht’s “substantial and injurious effect” standard where conviction was based on a general verdict after jury had been instructed on alternative theories of guilt and may have relied on an invalid one.

234 Fry v. Pliler, 551 U.S. 112, 114 (2007).

235 Sawyer v. Whitley, 505 U.S. 333 (1992). The focus on eligibility limits inquiry to elements of the crime and to aggravating factors, and thereby prevents presentation of mitigating evidence. Here the court was barred from considering an allegation of ineffective assistance of counsel for failure to introduce the defendant’s mental health records as a mitigating factor at sentencing.

236 28 U.S.C. § 2254(d)(1).

237 535 U.S. 685 (2002).

238 The state court’s decision, which applied the rule from Strickland v. Washington, 466 U.S. 668 (1984), rather than the rule from United States v. Cronic, 466 U.S. 648 (1984), to hold that the attorney’s performance was not constitutionally inadequate, was not “contrary to” clearly established law. Cronic had held that there are some situations, e.g., when counsel “entirely fails to subject the prosecution’s case to meaningful adversarial testing,” so presumptively unfair as to obviate the need to show actual prejudice to the defendant’s case. See “Effective Assistance of Counsel” under Sixth Amendment. The Bell v. Cone Court emphasized the word “entirely,” noting that the petitioner challenged the defense attorney’s performance only “at specific points” in the process. Nor was the second statutory test met. Strickland, a “highly deferential” test asking whether an attorney’s performance fell below an “objective standard of reasonableness,” was not “unreasonably applied.” The attorney could reasonably have concluded that evidence presented during the guilt phase of the trial was still “fresh” to the jury, and that repetition through the presentation of mitigating evidence or through a closing statement was unnecessary to counter the state’s presentation of aggravating circumstances justifying a death sentence.

239 549 U.S. 70 (2006).

240 Estelle v. Williams, 425 U.S. 501, 512 (1976).

241 549 U.S. at 77 (quoting from 28 U.S.C. § 2254(d)(1)).

242 Wright v. Van Patten, 128 S. Ct. 743 (2008) (per curiam), quoting Carey v. Musladin, 549 U.S. 70, 77 (2006) (under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1), defendant not entitled to habeas relief).

243 Murray v. Giarratano, 492 U.S. 1 (1989) (“unit attorneys” assigned to prisons were available for some advice prior to filing a claim).