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Post Conviction Relief
University of Mississippi School of Law
Broadhead, Phillip W.

Post-Conviction Relief (Broadhead, Fall 2004)

“It (is) more a duty (of the Attorney General) to save an innocent man than to convict a guilty man.” – Thomas Jefferson

“(P)rocedural safeguards…are not admonitions to be tolerated only to the extent they serve functional purposes that ensure that the ‘guilty’ are punished and the ‘innocent’ freed.” – Justice Brennan in Stone v. Powell (1976)

Introduction and Historical Perspective
I. Post-Conviction Relief
A. Various types
1. Federal Habeas Corpus
2. State post-conviction remedies
3. Post-trial motions
a. For a new trial
b. Judgment notwithstanding the verdict
4. Extraordinary relief
a. Examples: Clemency, expungement, or restoration of civil rights
B. Federal Habeas Corpus
1. U.S. Constitution makes no specific enabling provision for habeas
a. Implicitly recognizes in Article I, in Section 9, clause 2:
1. “The privilege of the Writ Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
2. Habeas Corpus is not an appellate review of a conviction
a. Instead, it is an examination of the case to determine if the convicted person’s federal constitutional rights were protected or violated in the process of the trial and/or the initial appeal and if the person is lawfully in custody as a result of the conviction
3. Statutory codification
a. 42 USC 2241, et seq (derives from the Judiciary Act of 1789 and 1867 Habeas Corpus Acts)
1. States the issuance of habeas corpus by a federal court requires that a citizen to prove they are in custody (state or federal) in violation of the law and that they are entitled to be immediately released before relief may be granted
2. For state convictions, once writ issued, state may request a stay to take corrective action to cure whatever was deficient in the first trial
b. 42 USC 2254 (enacted in 1948)
1. Attacks on state court convictions
c. 42 USC 2255 (enacted in 1948)
1. Attacks on federal court convictions
d. 42 USC 2261
1. Special provisions for death penalty convictions
2. State has to opt in to fast track (incl. est. post-conviction counsel)
4. POLICY REASONS / CONCERNS surrounding federal habeas
a. Federalism
1. Consider whether federal courts are in a better position to enforce federal rights
2. Consider whether states’ authority is being encroached
3. Federal habeas “creates a peculiarly abrasive and intrusive relationship between the federal courts and the state courts, since it subordinates the entire hierarchy of state tribunals to a single federal judge.” – Bator

b. Parity
1. Consider whether even still an issue today
2. Remember lack of empirical data either way
3. How can argue state not as well equipped:
a. Historically states disfavor federal rights (hostile)
1. Warren Court approach (see Brown, Fay)
2. CONTRAST (from Stone)
a. There is “no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned with respect to (constitutional claims) than his neighbor in the state courthouse.”
b. State judges elected (harder to be as fair compared to life-tenured judge)
c. Congress is specifically authorized federal jurisdiction in habeas matters, and as such, it’s up to Congress to change if it wants, not the courts (Congress has determined distrust in states)
4. More debate topics from Erwin Chemerinsky
a. Should let plaintiff choose own forum (fed / state)
c. Legislative restrictions
1. Both Congressional and on the states
a. Congress establishes lower federal courts, so should be able to establish jurisdiction for habeas
d. Purpose of federal constitutional rights
1. Consider whether rights are to ensure innocent go free
a. Burger Court approach
2. Consider whether rights are only to ensure a fair process
a. Warren Court approach
e. Doctrine of finality
1. Allocation of scarce resources
2. Society’s interest in punishment
3. Consider whether allowing habeas challenges affects:
a. Deterrence of future crime
b. Effect on rehabilitation of prisoners
c. Causes “sandbagging” of claims
d. Creates disposition to dismiss claims (because so many)
a. Humans are fallible and should be subject to correction
b. Will want to present best arguments so not lost in the shuffle
c. Rehab is hardly purpose of crim justice system anymore
f. Judicial deterrence
1. States disregard of federal rights; federal courts need to review to ensure states properly interpreting federal rights

1. In 1963, advocated that so long as the state court’s “process” was adequate to address a citizen’s claim of violation of civil rights, the federal courts should defer to the state court in questions concerning constitutional protections.
a. Essentially, prisoner received process “due” (pg. 53 of Yackle)
H. Judge Henry Friendly’s Model
1. From 1972, only allow habeas if can make showing of actual innocence
a. Now incorporated in many areas of PCR, from the state level and in successive petitions
2. View underlies the Burger court’s approach
II. Early Acts to more modern developments
A. Judiciary Act of 1789
1. Granted the right to the Writ to federal prisoners who wished to challenge their detention by federal authorities

nd Congress authorized the rules in 1977
4. Young v. Ragen (1949)
a. Supreme Court holds state prisoners must be afforded “some clearly defined method” of litigating federal issues in state court convictions
b. Case set tone for states to establish some form of PCR relief
c. See Case, below
B. Brown v. Allen (1953)
1. Watershed case in expansion of the Writ
2. Habeas held not to be a substitute for appellate review
a. But also previous state court decisions on the merits were NOT res judicata (pg 44)
3. Justice Frankfurter
a. Federal courts had a duty to make determinations of fact if they found “vital flaw”
b. “(E)ven the highest state courts” have failed to give adequate protection
C. The Warren Court
“Habeas Corpus was an obvious tool to facilitate judicial review and uphold constitutional rights in the criminal justice system.” – Chemerinsky
1. Fay v. Noia (1963)
a. Rejected Bator model (notes, supra) and held federal courts may routinely revisit state decisions to review PCR claims, even some claims state courts declined to consider on procedural grounds
1. Prisoner had to deliberately bypass state procedure in order to be barred
b. See Sykes (overruling)
2. Townsend v. Sain (1963)
a. Allow evidentiary hearings in federal habeas if state court fact-finding process failed
3. Sanders v. United States (1963)
a. Set criteria to allow successive petitions
4. Case v. Nebraska (1965)
a. Court recognized many states still had not established state PCR procedures for handling federal issues in state convictions as first noted in Young
b. As a result, many states immediately enacted legislation enabling state prisoners to raise federal issues on collateral attacks
c. A state mechanism for PCR was designed to reduce “tension” created when federal court granted habeas relief to state prisoners
1. Need state mechanism to avoid “flood” of claims in federal courts
5. Linkletter v. Walker (1965)
a. Court, in determining whether the application of newly announced constitutional rules should be applied retroactively, adopted a balancing test, which was further defined in Stovall v. Denno (1967):