Federal Jurisdiction

23 November

• So, back with habeas and procedural defaults.
• So when should a mere federal district judge be able to upset a case that has come all the way through the state system?
• Coleman is a fabulously complicated case. We've only got three major cases here (this one, Teague and Terry, but they stand for a lot of other cases.
• So. Coleman v. Thompson
  So, as you're going through the state courts, you've got a lot of procedural things to follow. And sometimes lawyers will make mistakes, or decisions. (Wainwright v. Syles: Berger court; contemporaneous objection requirement-- "cause and prejudice" standard) (Fay v. Noia: Warren Court; unless there's a "deliberate bypass" of state procedure, you can raise the issue on habeas-- we forgive mistakes, but not strategic decisions, in other words).

  So if you fail to object in a timely manner, and the evidence comes in, that's different from objecting and having the judge erroneously let it in. We want habeas to provide an incentive to get things right at trial: to internalize the enforcement of constitutional rights. "Prejudice" means that you have to show the error wasn't harmless. "Cause" means that mere mistake is not enough-- there has to be a reason. A 6A violation can be a "cause."

  So Fay and Wainright represent liberal and conservative views of what habeas is for, and how it should be used. We saw much more expansive usage of the writ when constitutional rights were expanding. Some of this was a function of who was on the court, and some was a function of just general historical developments.

• We also have the idea of a "fundamental miscarriage of justice," which is another way around the cause and prejudice standard. (Murray v. Carrier, p. 940).
• Novelty is also a cause (this is an issue in Teague, but it first came up in Reed v. Ross). If the right you're arguing for is novel, we'll just assume you would have lost in state court, and you can argue that right in federal court. So this looks like the opposite of the exhaustion requirement, but you can basically say "this was a new theory of a constitutional right, so it wasn't worth raising this in the state court-- you don't have to go through that futile effort in order to get into federal court."

  Of course, that gets you over the procedural default, but it doesn't address the merits.

  By the way, Wainright didn't define what cause was, other than to say that a mere mistake doesn't count.

• Teague v. Lane
  The novel argument here is that the cross-section-of-community requirement applies to petit juries. This had never been addressed before. He also had some non-novel claims. And he wants to take advantage of the Batson rule about being able to challenge the use of peremptory challenges. Now Batson came out between the judgment and the petition. So we don't have error on the part of the judge trial, although the same problem that happened in Batson happened in this trial.

  Linkletter v. Walker decided that the exclusionary rule announced in Mapp v. Ohio didn't apply retroactively (i.e., when you have a substantial break with precedent, people previously convicted can't use that precedent on collateral review). See p. 945: look at the purpose of the rule, the reliance of the states on prior law, and the effects on the administration of justice of applying the rule retroactively. See, e.g., the discussion of Stone v. Powell on p. 953 footnote: 4A exclusionary errors can't be raised on habeas, because the purpose of the rule is to be a deterrent to police, and it's too late for that.

  So the bottom line is that habeas is about the legality of detention-- it's not a stand-in for SCOTUS on appeal. It just checks to see whether the law was properly followed.

  Now the court has to balance between the articulation of new rights and the need not to treat similarly situated litigants differently: the first guy to make an argument that justifies a right would get relief, but not those who asked that right to apply to them later. And we also don't want to issue advisory opinions. So we decline to offer retroactivity on habeas, and we won't announce new on habeas unless they would apply to everyone.

  So, the two exceptions to the rule against retroactivity:

  1. If the new rule makes some primary, private, individual conduct beyond the power of the law-making authority to proscribe. So, for example, you're imprisoned under a statute which is itself unconstitutional (i.e., the thing you were convicted for is something you had a right to do, so there's no point in holding you in prison still). This exception also includes newly announced rules about the application of the death penalty.
  2. If the new rule requires the observance of those procedures implicit in the concept of ordered liberty (i.e., the fundamental fairness of the trial). Hard to imagine a new rule that would fall into the category of fundamental fairness-- we pretty much believe we know those rules. And those procedures have to be central to an accurate determination of innocence or guilt. So very unlikely.