Article III, Section 1 — Federal and State Courts

ArtIII.S1.6.1 Overview of Relationship Between Federal and State Courts

The Constitution’s Supremacy Clause provides that the Constitution, federal statutes, and treaties “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”¹ The Supremacy Clause thus presumes that state courts will interpret—and be bound by—federal law.²

Under modern practice, both state and federal courts play an important role in interpreting and applying the Constitution and federal law.³ However, at the time of the Founding it was not initially clear how that power would be divided between federal and state courts.⁴

In the years since the Founding, Supreme Court decisions have established that federal courts, particularly the Supreme Court, are the final authority on interpreting federal law, and federal courts possess the constitutional authority to review state court decisions that allegedly conflict with the Constitution or federal law.⁵ Various statutory and court-made rules govern when such review is available, however. In some circumstances, a complainant bringing a claim under federal law is required to exhaust available state legislative or administrative remedies before seeking relief in federal court; by contrast, exhaustion of state judicial remedies—for example, by first bringing related state law claims in state court—is not generally required.⁶ There are also circumstances in which the federal courts have the power to assert jurisdiction over a case but decline to do so out of respect for the sovereign authority of state courts.⁷

As for state courts, they are generally authorized to hear claims involving federal law, except in areas where the federal courts possess exclusive jurisdiction.⁸ Moreover, subject to limited exceptions, state courts are usually required to hear cases arising under federal law over which they have jurisdiction.⁹ State courts generally lack the authority to enjoin proceedings in federal court or prevent the enforcement of federal court judgments.¹⁰

ArtIII.S1.6.2 Historical Background on Relationship Between Federal and State Courts

At the time of the Founding, each state had its own system of courts, while the Articles of Confederation did not provide for an independent Federal Judiciary.¹ The delegates to the Constitutional Convention agreed early on that the new Constitution should establish a federal Judicial Branch including a Supreme Court; however, they debated other questions about how to balance federal and state judicial power.

The Framers generally accepted that state courts would play a significant role in interpreting and applying federal law.² However, some of the Framers also entertained concerns about whether state courts would apply federal law correctly, uniformly, and without bias. Then, as now, the specific structure of state courts varied significantly from state to state. State court judges often did not enjoy the safeguards that were afforded federal judges, such as life tenure during good behavior and salary protection. Certain delegates to the Constitutional Convention expressed concerns as to whether state court judges might therefore be subject to political pressures that could affect their decision-making.³ Others raised the prospect of disputes between states, noting that a state court might issue decisions that were biased in favor of its home state.⁴ Some Founders worried that the multiple state courts could interpret federal law differently, undermining the interest in having uniform federal laws.⁵

To mitigate those concerns, the Framers provided for a federal Supreme Court with the power to review state judicial decisions involving issues of federal statutory or constitutional law.⁶ Debate arose, however, on the question of whether lower federal courts were also necessary. Some delegates argued that establishing lower federal courts would encroach on the power of the states.⁷ Some argued that a right of appeal from state court to a federal appellate court would suffice to ensure uniformity and prevent bias.⁸ Other delegates countered that a right to appeal would provide less effective protection of federal rights than the right to consideration by an impartial tribunal in the first instance.⁹ The Convention discussed whether creating lower federal courts would lessen the burden on the Supreme Court and prevent it from being overwhelmed by numerous appeals.¹⁰ Some delegates voiced an interest in flexibility, contending that lower federal courts might be needed in the future even if they were not immediately necessary.¹¹

Ultimately, the Framers left the decision of whether to create lower federal courts to Congress. Article III of the Constitution provides for “one supreme Court, and . . . such inferior Courts as the Congress may from time to time ordain and establish.”¹² The first Congress exercised its authority promptly, creating lower federal courts in the Judiciary Act of 1798, the first legislation related to the Federal Judiciary.¹³

ArtIII.S1.6.3 Doctrine on Federal and State Courts

By specifying the extent of the “judicial Power,” the Constitution authorized the creation of federal courts with limited subject matter jurisdiction. Article III identifies several categories of cases over which the Supreme Court possesses original jurisdiction.¹ In addition, the Constitution generally authorizes federal courts to hear “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority,” as well as admiralty cases, cases between citizens of different states, and cases between citizens of a state and a foreign state or its citizens.²

Within those broad categories, Congress has traditionally been understood to exercise significant discretion to decide which cases particular federal courts have jurisdiction to hear. The Constitution sets the maximum possible extent of federal court jurisdiction. Congress cannot expand such jurisdiction beyond the applicable constitutional limits, but is free to grant the federal courts authority over only a subset of constitutionally permissible cases. In practice, Congress has always granted the federal courts less expansive jurisdiction than the Constitution authorizes.³ The first Judiciary Act granted the federal courts exclusive jurisdiction over matters including federal criminal cases, admiralty cases, and certain cases involving seizures of property under federal law.⁴ The Act also granted the federal and state courts concurrent jurisdiction over other classes of cases, including certain tort suits brought by foreign nationals and common law suits brought by the United States government.⁵ Since that time, Congress has periodically expanded the scope of federal court jurisdiction,⁶ but has never provided for federal court jurisdiction in all possible cases that would be authorized under the Constitution’s jurisdictional limits.⁷

In contrast to the federal system, the states operate courts of general jurisdiction, which are not subject to the constitutional jurisdictional limits placed on federal courts.⁸ As part of such general jurisdiction, state courts have concurrent jurisdiction to hear most cases that raise issues under the Constitution or federal law.⁹ Congress may enact legislation providing that certain claims arising under federal law may only be heard in federal court.¹⁰ However, unless Congress provides for exclusive federal court jurisdiction, a case raising federal law claims may proceed in either state or federal court.¹¹

If a plaintiff files in state court a case over which the federal courts could exercise jurisdiction, the defendant may elect to remove the case to federal court pursuant to federal statute.¹² In addition, a party may seek Supreme Court review of a decision of a state’s highest court in cases where a state law, executive action, or judicial interpretation allegedly conflicts with the Constitution or a federal law or treaty.¹³

As the following sections discuss in more detail, other interactions between federal and state courts may occur as cases move through the judicial system. For example, because the federal Constitution, statutes, and treaties are the “the supreme Law of the Land,” and federal courts are the final authority on the interpretation of federal law, state courts applying federal law are bound by controlling decisions of the federal courts.¹⁴ Relatedly, federal courts may sometimes enjoin proceedings in state court,¹⁵ and federal courts can hear challenges to state criminal convictions pursuant to petitions for a writ of habeas corpus.¹⁶ By contrast, state courts have much more limited power to enjoin or otherwise affect federal proceedings.¹⁷ Nonetheless, as a matter of federal-state comity,¹⁸ federal courts will sometimes abstain from hearing cases raising novel questions of state law, and in some cases may require litigants to exhaust available remedies under state law before filing suit in federal court.¹⁹

ArtIII.S1.6.4 State Court Jurisdiction to Enforce Federal Law

Unless the federal courts possess exclusive jurisdiction over a matter, state courts may hear cases over which federal courts would have also had jurisdiction.¹ However, it does not necessarily follow from the fact that state courts are authorized to hear claims arising under federal law that the state courts must agree to hear federal claims. In deciding multiple cases on this issue, the Supreme Court has ruled that state courts generally must hear federal law claims unless state law bars a state court from hearing a federal claim through a “neutral rule of judicial administration” that does not improperly burden claims arising under federal law.²

In the 1876 case Claflin v. Houseman, the Supreme Court held that state courts could hear cases arising under federal bankruptcy law.³ The Court reasoned:

The laws of the United States are laws in the several States, and just as much binding

on the citizens and courts thereof as the State laws are. The United States is not a

foreign sovereignty as regards the several States, but is a concurrent, and, within its

jurisdiction, paramount sovereignty.⁴

The Court thus held that “the State courts have concurrent jurisdiction whenever, by their own constitution, they are competent to take it.”⁵ While Claflin concerned when state courts may exercise jurisdiction over federal claims, a number of subsequent cases have cited Claflin when considering when state courts may validly decline jurisdiction over federal claims.

In several cases, the Supreme Court has upheld state courts’ refusal to hear federal claims, finding that state law provided a “valid excuse” to decline jurisdiction. For instance, in Douglas v. New York, N.H. & H.R. Co., the Court upheld a state law that allowed state courts to decline jurisdiction over both state and federal law claims when neither party was a resident of the State.⁶ The Supreme Court noted that there was nothing in the federal statute at issue “that purports to force a duty” to hear cases on state courts “as against an otherwise valid excuse.”⁷ In Howlett v. Rose, the Court summarized cases like Douglas, where states had validly declined to hear federal claims, as involving “neutral rule[s] of judicial administration.”⁸

By contrast, in Mondou v. New York, N.H. & H.R. Co., a Connecticut court declined to hear a case arising under federal law, in part because the state court held it was “at liberty to decline cognizance of actions to enforce rights arising under [the federal] act, because . . . the policy manifested by it is not in accord with the policy of the state.”⁹ The Supreme Court rejected that proposition and held that the state court must hear the case. In so holding, the Court emphasized that the case did not involve “any attempt by Congress to enlarge or regulate the jurisdiction of state courts, or to control or affect their modes of procedure,” but only a question of when state courts must hear federal claims that fall within their “ordinary jurisdiction, as prescribed by local laws.”¹⁰

Similarly, in Testa v. Katt, the Rhode Island Supreme Court declined to enforce a federal statute containing a punitive damages provision, finding that the law was penal in nature and the “state need not enforce the penal laws of a government which is ‘foreign in the international sense.’”¹¹ The U.S. Supreme Court reversed, holding that the Rhode Island court must enforce the federal statute, and that a state policy of not enforcing penal statutes of other sovereigns was not a “valid excuse” under Douglas.¹² Among other things, the Court explained that “[i]t cannot be assumed, the supremacy clause considered, that the responsibilities of a state to enforce the laws of a sister state are identical with its responsibilities to enforce federal laws.”¹³

In the 2009 case Haywood v. Drown, the Supreme Court considered a state statute that divested New York state courts of jurisdiction over suits under 42 U.S.C. § 1983 seeking money damages from corrections officers, as well as similar state law claims against corrections officers.¹⁴ The Court held that the New York law violated the Supremacy Clause. Writing for the majority, Justice John Paul Stevens explained, “we have emphasized that only a neutral jurisdictional rule will be deemed a ‘valid excuse’ for departing from the default assumption” that state courts will hear federal claims.¹⁵ Although the New York statute removed jurisdiction over both state and federal claims, the Court held, “equality of treatment” between state and federal claims “does not ensure that a state law will be deemed . . . a valid excuse for refusing to entertain a federal cause of action.”¹⁶ Rather, by distinguishing between Section 1983 claims against corrections officers and all other Section 1983 suits, New York undermined the federal policy of making relief under Section 1983 broadly available. The Court held that this was impermissible: “having made the decision to create courts of general jurisdiction that regularly sit to entertain analogous suits, New York is not at liberty to shut the courthouse door to federal claims that it considers at odds with its local policy.”¹⁷

The question of state court enforcement of federal law is related to, but distinct from, the anti-commandeering doctrine.¹⁸ In Printz v. United States, the Supreme Court distinguished between federal control over state courts and commandeering of the political branches of state government. Justice Antonin Scalia’s majority opinion surveyed federal legislation from early Congresses that required state courts to take certain actions, such as recording applications for citizenship, but noted that state courts are bound by the Supremacy Clause, which expressly requires them to apply federal law. The Court thus concluded, “we do not think the early statutes imposing obligations on state courts imply a power of Congress to impress the state executive into its service.”¹⁹

ArtIII.S1.6.5 Supreme Court Review of State Court Interpretations of Federal Law

As a substantive matter, state courts interpreting federal law are bound by applicable federal court precedents and subject to review by the Supreme Court. This rule dates back to Section 25 of Judiciary Act of 1789, which authorized the U.S. Supreme Court to review certain decisions of the states’ highest courts involving the construction of the Constitution, a treaty, or federal law.¹

The Supreme Court considered a constitutional challenge to Section 25 in the 1816 case Martin v. Hunter’s Lessee.² In that case, litigation involving title to land in Virginia was appealed to the U.S. Supreme Court, which held that a treaty between the United States and Britain controlled the dispute. On remand, the Virginia state court of appeals refused to honor the Supreme Court’s judgment, opining that “the appellate power of the supreme court of the United States does not extend to this court under a sound construction of the constitution of the United States,” and that Section 25 was unconstitutional in that it “extends the appellate jurisdiction of the supreme court to this court.”³ The case returned to the U.S. Supreme Court, which upheld Section 25. Justice Joseph Story’s majority opinion emphasized that the Constitution vests in the Supreme Court the authority to hear all cases subject to the federal judicial power, explaining that “the constitution not only contemplated, but meant to provide for cases within the scope of the judicial power of the United States, which might yet depend before state tribunals.”⁴

Similarly, in Cohens v. Virginia, individuals convicted under Virginia state criminal law for selling lottery tickets argued that their convictions violated federal law. On appeal to the Supreme Court, the state argued that while the Virginia courts were constitutionally obliged to prefer federal law over conflicting state laws, the state courts, as courts of a separate sovereign, were bound only by their own interpretation of the supreme law.⁵ The state further contended that the judicial power of the United States extended only to cases brought in the first instance in federal court. Chief Justice John Marshall’s majority opinion rejected this narrow interpretation, holding that the words of the Constitution “give to the Supreme Court appellate jurisdiction in all cases arising under the constitution, laws, and treaties of the United States. The words are broad enough to comprehend all cases of this description, in whatever Court they may be decided.”⁶

ArtIII.S1.6.6 Limits on State Court Control of Federal Proceedings

State courts have limited authority to issue orders that would affect the federal courts.¹ For instance, state courts cannot prevent the effectuation of federal court judgments.² Nor do state courts have the power to issue writs of habeas corpus ordering the release of persons in federal custody or writs of mandamus requiring action by federal officials.³

In addition, state courts generally lack the power to enjoin federal court proceedings.⁴ One exception to that rule occurs in cases in which a state court has custody of property subject to proceedings in rem or quasi in rem:⁵ in such cases, where the state court has exclusive jurisdiction to proceed, it may enjoin the parties from further action in federal court.⁶

ArtIII.S1.6.7 Federal Non-Interference with State Jurisdiction and Abstention

Perhaps the fullest expression of the concept of comity may be found in the abstention doctrine.¹ The abstention doctrine instructs federal courts to abstain from exercising jurisdiction if applicable state law, which would be dispositive to the controversy, is unclear and a state court’s interpretation of the state law might make resolving a federal constitutional issue unnecessary.² Abstention is not proper, however, where the relevant state law is settled,³ or where it is clear that the state statute or action challenged is unconstitutional no matter how the state court construes state law.⁴ Federal jurisdiction is not ousted by abstention; rather it is postponed.⁵ The Supreme Court has said that abstention can serve interests of federal-state comity by avoiding “a result in ‘needless friction with state policies,’”⁶ and can spare “the federal courts of unnecessary constitutional adjudication.”⁷

During the 1960s, the Supreme Court disfavored the abstention doctrine, rejecting it in numerous cases, most of which concerned civil rights and civil liberties.⁸ The Court cited time-consuming delays⁹ and piecemeal resolution of important questions¹⁰ as too-costly consequences of the doctrine. In addition to actions brought under civil rights statutes,¹¹ the Court, for a while, appeared to shelter cases involving First Amendment expression guarantees from the abstention doctrine, but this is no longer the rule.¹² Younger v. Harris¹³ and its progeny signaled a trend toward the Court applying the absention doctrine more robustly.

As an alternative to abstention, the Supreme Court has sometimes encouraged or required lower federal courts to use certification procedures where they are available.¹⁴ While this process is not grounded in the federal constitution, certification may allow federal courts to avoid relying on the abstention doctrine. Most states have adopted rules that allow federal courts to “certify,” or refer, unsettled questions of state law to state courts.¹⁵ The Court has sometimes required lower federal courts to certify to state courts questions which concern “novel issues of state law peculiarly calling for the exercise of judgment by the state courts,” and involve construing a state law that is being challenged as unconstitutional.¹⁶ The Court has also noted that certification may be appropriate where abstention would lead to undue “delay and expense”—although such concerns may not be sufficient to require a federal court to employ certification rather than abstention.¹⁷

ArtIII.S1.6.8 Exhaustion Doctrine and State Law Remedies

In some circumstances, when a person seeking to bring a claim under federal law also has a remedy available under state law, that person will be required to exhaust state law remedies before proceeding in federal court. For instance, as discussed further in the next section, prisoners challenging their detention by state authorities must generally exhaust state law remedies before seeking a writ of habeas corpus in federal court.¹

As another example, a person seeking to challenge state legislative action must await completion of the state legislative process before suing in federal court.² In Prentis v. Atlantic Coast Line Co., the Supreme Court declined to hear a claim that certain railroad rates that a state agency planned to promulgate were confiscatory in violation of the Fourteenth Amendment.³ Writing for the majority, Justice Oliver Wendell Holmes noted that the Virginia state constitution allowed the railroads to challenge the new rates before the state Supreme Court of Appeals before they went into effect and explained that determination of rates, including review by the state court, amounted to a legislative process rather than a judicial one. Because completion of that legislative process might result in different rates and obviate the constitutional challenge, the Court concluded, the challengers “should make sure that the State in its final legislative action would not respect what they think their rights to be, before resorting to the courts of the United States.”⁴ Justice Holmes also emphasized that the Court’s decision was grounded not in mandatory jurisdictional limits but rather in prudential considerations such as comity and efficiency.⁵

While complainants must generally exhaust available state legislative and administrative remedies before proceeding in federal court, they are not ordinarily required to seek a judicial remedy in state court before filing a claim in federal court.⁶ Thus, in Bacon v. Rutland R.R., the Supreme Court held that the federal courts could hear a Fourteenth Amendment challenge to an order of the Public Service Commission of Vermont concerning a passenger railway station.⁷ Justice Holmes, again writing for the majority, distinguished the Virginia system in Prentis, where “the [state] court was given legislative powers,” and the Vermont system, which did “not attempt to confer legislative powers upon the court” but instead created a remedy that was “purely judicial.”⁸ Likewise, in Lane v. Wilson, the court held that a Black man denied voter registration in Oklahoma could challenge the denial in federal court without first pursuing a state law challenge that “has all the indicia of a conventional judicial proceeding and does not confer upon the Oklahoma courts any of the discretionary or initiatory functions that are characteristic of administrative agencies.”⁹

Subject to limited exceptions, exhaustion of state remedies is not required before a person may seek relief under federal civil rights statutes such as 42 U.S.C. § 1983.¹⁰ In Monroe v. Pape, the Supreme Court held that plaintiffs need not exhaust state judicial remedies before seeking relief in federal court under Section 1983.¹¹ In McNeese v. Board of Education, the Court extended that holding to state administrative remedies, holding that plaintiffs who sought to challenge school segregation need not first seek relief through a state administrative process.¹² In Patsy v. Florida Board of Regents, the Court reaffirmed that “exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983.”¹³

ArtIII.S1.6.9 Habeas Review

Federal courts can hear challenges to state criminal convictions pursuant to petitions for a writ of habeas corpus. While early Supreme Court cases interpreted that authority narrowly, subsequent cases allowed for broader federal review of state court convictions. More recently, however, the Court has adopted a more limited approach to habeas review, and Congress has also enacted legislation limiting federal habeas review of state convictions.

At English common law, the writ of habeas corpus was available to attack pretrial detention and confinement by executive order; it could not be used to question the conviction of a person pursuant to the judgment of a court with jurisdiction over the person. In early cases, the Supreme Court applied the common law understanding of the writ.¹ After the Civil War, the Court adopted a broader view of when a court lacked jurisdiction over a petitioner. Thus, in the 1874 case, Ex Parte Lange, a person who had already completed one sentence on a conviction was released from custody on a second sentence on the ground that the court had lost jurisdiction upon completion of the first sentence.² In the 1880s, the Court held that the constitutionality of the statute upon which a charge was based could be examined on habeas, because an unconstitutional statute was said to deprive the trial court of its jurisdiction.³ Other cases expanded the want-of-jurisdiction rationale.⁴

The Court started developing its modern approach to the writ of habeas corpus in the 1915 case Frank v. Mangum,⁵ in which the Court reviewed on habeas a murder conviction in a trial in which there was substantial evidence of mob domination of the judicial process. This issue had been considered and rejected by the state appeals court. The Supreme Court indicated that, though it might initially have had jurisdiction, the trial court could have lost it if mob domination rendered the proceedings lacking in due process. The Court further held that, in order to determine if there had been a denial of due process, a habeas court should examine the totality of the process, including the appellate proceedings. Because the state appellate court had reviewed fully and rejected Frank’s claim of mob domination, the Court held he had been afforded an adequate corrective process for any denial of rights, and his custody did not violate the Constitution.⁶ Eight years later, in Moore v. Dempsey,⁷ a case involving another conviction in a trial in which the court was alleged to have been influenced by a mob and in which the state appellate court had heard and rejected Moore’s contentions, the Court directed that the federal district judge himself determine the merits of the petitioner’s allegations.

In later cases, the Court abandoned its emphasis upon want of jurisdiction and held that the writ was available to consider constitutional claims as well as questions of jurisdiction.⁸ The landmark case was Brown v. Allen,⁹ in which the Court laid down several principles of statutory construction of the habeas statute. First, all federal constitutional questions raised by state prisoners are cognizable in federal habeas. Second, a federal court is not bound by state court judgments on federal questions, even though the state courts may have fully and fairly considered the issues. Third, a federal habeas court may inquire into issues of fact as well as of law, although the federal court may defer to the state court if the prisoner received an adequate hearing. Fourth, new evidentiary hearings must be held when there are unusual circumstances, when there is a “vital flaw” in the state proceedings, or when the state court record is incomplete or otherwise inadequate.

The Supreme Court authorized almost plenary federal habeas review of state court convictions in its famous “1963 trilogy.”¹⁰ First, in Townsend v. Sain, the Court dealt with the established principle that a federal habeas court is empowered, where a prisoner alleges facts which if proved would entitle him to relief, to relitigate facts, to receive evidence and try the facts anew, and sought to lay down broad guidelines as to when district courts must hold a hearing and find facts.¹¹ The Court stated: “Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.”¹² To “particularize” this general test, the Court further held that an evidentiary hearing must take place when (1) the state hearing did not resolve the merits of the factual dispute; (2) the record as a whole does not fairly support the state factual determination; (3) the state court’s fact finding procedure did not afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state hearing; or (6) the state trier of fact did not appear to afford the habeas applicant a full and fair fact hearing.¹³

Second, Sanders v. United States¹⁴ dealt with two interrelated questions: how to address successive petitions for the writ, when the second or subsequent application presented grounds previously asserted or not previously raised. Emphasizing that “[c]onventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged,”¹⁵ the Court established generous standards for considering successive claims. As to previously asserted grounds, the Court held that courts may give controlling weight to a prior denial of relief if (1) the court had previously found against the applicant on the applicant’s ground for relief, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by revisiting the determination,¹⁶ so that the habeas court might but was not obligated to deny relief without considering the claim on the merits.¹⁷ With respect to grounds not previously asserted, a federal court considering a successive petition could refuse to hear the new claim if it decided the petitioner had deliberately not raised it in the prior proceeding; if not, the Court noted, “[n]o matter how many prior applications for federal collateral relief a prisoner has made,” the court must consider the merits of the new claim.¹⁸

Third, in Fay v. Noia,¹⁹ the Court considered the issue of state defaults—that is, the effect on habeas when a defendant in a state criminal trial has failed to raise, in accordance with state procedure, a claim that he subsequently wants to raise on habeas. If, for example, a defendant fails to object to the admission of certain evidence on federal constitutional grounds in accordance with state procedure and within state time constraints, the state courts may therefore simply refuse to address the merits of the claim, and the state’s “independent and adequate state ground” bars direct federal review of the claim.²⁰ Whether a similar result was required in habeas proceedings divided the Court in Brown v. Allen,²¹ in which the majority held that a prisoner, whose appeal a state court had refused to hear because his papers had been filed a day late, could not be heard on habeas because of his state procedural default. The Court reached a different result in Fay v. Noia, holding that the adequate and independent state ground doctrine limited the Court’s appellate review, but not its habeas review. A federal court has power to consider any claim that has been procedurally defaulted in state courts.²² Still, the Court recognized that the states had legitimate interests that were served by their procedural rules, and that it was important that state courts have the opportunity to afford a claimant relief to which he might be entitled. Thus, a federal court had discretion to deny a habeas petitioner relief if it found that he had deliberately bypassed state procedure and intentionally waived his right to pursue his state remedy.²³

Liberalization of the writ thus made it possible for convicted persons who had fully litigated their claims at state trials and on appeal, who had lacked the opportunity to have their claims reviewed due to procedural default, or who had been heard at least once on federal habeas, to have the chance to present their grounds for relief to a federal habeas judge. In addition to opportunities to relitigate the facts and the law relating to their convictions, prisoners could also take advantage of new constitutional decisions that were retroactive. The filings in federal courts increased year by year, but the numbers of prisoners who in fact obtained either release or retrial remained quite small. However, expansion of the writ generated opposition from state judges and state law enforcement officials and stimulated many efforts in Congress to enact restrictive habeas amendments.²⁴ The efforts were unsuccessful and, following changes in the composition of the Supreme Court, the Court adopted a more limited view of when habeas relief should be available.

In the 1977 case Wainwright v. Sykes, then-Justice William Rehnquist emphasized that the Court has significant discretion whether to award habeas relief.²⁵ After reviewing the case law on the 1867 statute, Justice Rehnquist remarked that the history “illustrates this Court’s historic willingness to overturn or modify its earlier views of the scope of the writ, even where the statutory language authorizing judicial action has remained unchanged.”²⁶ From early on, the Court has emphasized the equitable nature of the habeas remedy and the Judiciary’s responsibility to guide the exercise of that remedy in accordance with equitable principles; thus, time and again, the Court has underscored that the federal courts have plenary power under the statute to implement it to the fullest while the Court’s decisions may deny them discretion to exercise the power.²⁷

Supreme Court cases since the 1970s have made several changes to the law related to habeas corpus relief. These cases generally reflect a departure from the 1963 trilogy and a narrowing view of when federal courts should undertake habeas review of state law criminal convictions.

First, the Court in search and seizure cases has returned to the standard of Frank v. Mangum, holding that where the state courts afford a criminal defendant the opportunity for a full and adequate hearing on his Fourth Amendment claim, his only avenue of relief in the federal courts is to petition the Supreme Court for review and that he cannot raise those claims again in a habeas petition.²⁸ Grounded as it is in the Court’s dissatisfaction with the exclusionary rule, the case has not been extended to other constitutional grounds,²⁹ but the rationale of the opinion suggests the likelihood of reaching other exclusion questions.³⁰

Second, the Court has formulated a “new rule” exception to habeas cognizance. That is, subject to two exceptions,³¹ a case decided after a petitioner’s conviction and sentence became final may not be the predicate for federal habeas relief if the case announces or applies a “new rule.”³² A decision announces a new rule “if the result was not dictated by precedent existing at the time the defendant’s conviction became final.”³³ Explaining this the court noted that if a rule “was susceptible to debate among reasonable minds,” it could not have been dictated by precedent, and therefore it must be classified as a “new rule.”³⁴

Third, the Court has largely maintained the standards of Townsend v. Sain, as embodied in somewhat modified form in statute, with respect to when federal judges must conduct an evidentiary hearing. However, the Court has overturned one Townsend factor, not expressly set out in the statute, in order to bring the case law into line with other decisions. Townsend had held that a hearing was required if the material facts were not adequately developed at the state-court hearing. If the defendant had failed to develop the material facts in the state court, however, the Court held that, unless he had “deliberately bypass[ed]” that procedural outlet, he was still entitled to the hearing.³⁵ In Keeney v. Tamayo-Reyes, the Court overruled that point and substituted a much stricter “cause-and-prejudice” standard.³⁶

Fourth, the Court has significantly stiffened the standards governing when a federal habeas court should entertain a second or successive petition filed by a state prisoner—a question at issue in Sanders v. United States.³⁷ A successive petition may be dismissed if the same ground was determined adversely to petitioner previously, the prior determination was on the merits, and “the ends of justice” would not be served by reconsideration. It is with the latter element that the Court has become more restrictive. A plurality in Kuhlmann v. Wilson³⁸ argued that the “ends of justice” standard would be met only if a petitioner supplemented her constitutional claim with a colorable showing of factual innocence. While the Court has not expressly adopted this standard, a later capital case utilized it, holding that a petitioner sentenced to death could escape the bar on successive petitions by demonstrating “actual innocence” of the death penalty by showing by clear and convincing evidence that no reasonable juror would have found the prisoner eligible for the death penalty under applicable state law.³⁹

Even if the subsequent petition alleges new and different grounds, a habeas court may dismiss the petition if the prisoner’s failure to assert those grounds in the prior, or first, petition constitutes “an abuse of the writ.”⁴⁰ Following the 1963 trilogy and especially Sanders, the federal courts had generally followed a rule excusing the failure to raise claims in earlier petitions unless the failure was a result of “inexcusable neglect” or of deliberate relinquishment. In McClesky v. Zant,⁴¹ the Court construed the “abuse of the writ” language to require a showing of both “cause and prejudice” before a petitioner may allege in a second or later petition a ground or grounds not alleged in the first. In other words, to avoid subsequent dismissal, a petitioner must allege in his first application all the grounds he may have, unless he can show cause, some external impediment, for his failure and some actual prejudice from the error alleged. If he cannot show cause and prejudice, the petitioner may be heard only if she shows that a “fundamental miscarriage of justice” will occur, which means she must make a “colorable showing of factual innocence.”⁴²

Fifth, the Court abandoned the rules of Fay v. Noia, although it was not until 1991 that it expressly overruled the case.⁴³ Fay raised the question of when a petitioner may present a claim in federal habeas proceedings that was not properly raised during state proceedings. The answer in Fay was that the federal court always had power to review the claim but that it had discretion to deny relief to a habeas claimant if it found that the prisoner had intentionally waived his right to pursue his state remedy through a “deliberate bypass” of state procedure.

That is no longer the law. Instead the Court has now held,

In all cases in which a state prisoner has defaulted his federal claims in state court

pursuant to an independent and adequate state procedural rule, federal habeas review

of the claims is barred unless the prisoner can demonstrate cause for the default and

actual prejudice as a result of the alleged violation of federal law, or demonstrate that

failure to consider the claims will result in a fundamental miscarriage of justice. Fay

was based on a conception of federal/state relations that undervalued the importance

of state procedural rules.⁴⁴

The “miscarriage-of-justice” element is probably limited to cases in which actual innocence or actual impairment of a guilty verdict can be shown.⁴⁵ The concept of “cause” excusing failure to observe a state rule is extremely narrow; “the existence of cause for procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.”⁴⁶ As for the “prejudice” factor, it is an undeveloped concept, but the Court’s only case establishes a high barrier.⁴⁷

The Court continues, with some modest exceptions, to construe habeas jurisdiction restrictively; Congress has also enacted legislation restricting the availability of habeas relief. In Herrera v. Collins,⁴⁸ the Court appeared to take the position that, although a showing of actual innocence is required to permit a claimant to bring a successive or abusive petition, a claim of innocence alone is not sufficient to enable a claimant to obtain review of his conviction on habeas. Petitioners are entitled in federal habeas courts to show that they are imprisoned in violation of the Constitution, not to seek to correct errors of fact. But a claim of innocence does not bear on the constitutionality of a person’s conviction or detention, and the execution of a person claiming actual innocence would not, by this reasoning, violate the Constitution.⁴⁹ In a subsequent part of the opinion, however, the Court assumed for the sake of argument that “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional,” and it imposed a high standard for making this showing.⁵⁰

In Schlup v. Delo,⁵¹ the Court adopted the plurality opinion of Kuhlmann v. Wilson and held that, absent a sufficient showing of “cause and prejudice,” a claimant filing a successive or abusive petition must, as an initial matter, make a showing of “actual innocence” so as to fall within the narrow class of cases implicating a fundamental miscarriage of justice. The Court divided, however, with respect to the showing a claimant must make. The dissenters argued for one standard, which would require that “to show ‘actual innocence’ one must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty.”⁵² The Court adopted a second standard, under which the petitioner must demonstrate that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” To meet this burden, a claimant “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”⁵³

In the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),⁵⁴ Congress imposed tight new restrictions on successive or abusive petitions, including making the circuit courts “gate keepers” in permitting or denying the filing of such petitions, with bars to appellate review of these decisions. The Supreme Court rejected a constitutional challenge to portions of AEDPA in Felker v. Turpin.⁵⁵ One important restriction in AEDPA bars a federal habeas court from granting a writ to any person in custody under a judgment of a state court “with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”⁵⁶ The Court has made the significance of this restriction plain: Instead of assessing whether federal law was correctly applied de novo, as would be the course under direct review of a federal district court decision, the proper approach for federal habeas relief under AEDPA is the more deferential one of determining whether the Court has established clear precedent on the issue contested and, if so, whether the state’s application of the precedent was reasonable, i.e., whether a fairminded jurist could find that the state acted in accord with the Court’s established precedent.⁵⁷