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HeinOnline -- 13 Rutgers L.J. 675 1981-1982

Volume 13

RUTGERS LAW JOURNAL

Summer 1982 Number 4

FEDERAL HABEAS CORPUS AND ITS REFORM: AN EMPIRICAL ANALYSISt

Karen M. Allen* Nathan A. Schachtman**

David R. Wilson •••

During the last three decades, scholars, legislators, and judges have waged a continuing debate over the proper role of 'federal habeas corpus review of state court convictions. The debate has spawned significant judicial and congressional activity and scholarly interest; which in turn

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t Copyright by Karen M. Allen, Nathan A. Schachtman and David R. Wilson. • Editor-in-Chief, Rutgers Law Journal, 1981-1982; J.D., Rutgers School of

Law-Camden, 1982; B.A., Mary Washington College, 1978. •• Articles Editor, Rutgers Law Journal, 1981-1982; J.D., Rutgers School of

Law-Camden, 1982; A.B. Rutgers College, 1975 . ••• Law Clerk to the Honorable H. Emory Widener, Jr., Judge for the

United States Court of Appeals for the Fourth Circuit, 1982-1983; J.D., MarshallWythe School of Law, College of William and Mary, 1982; B.A., University of Nebraska, 1979.

1. Compare Pollak, Proposals to Curtail Federal Habeas Corpus for State Pris.0ners: Collateral Attack on the Great Writ, 66 YALE L.J. 5.0, 64 (1956) (argu-

_,Lng _ that p!,~posals limiting habe~s review to issues not previously raised and determined by a state court would run roughshod over constitutional rights) and Reitz, Federal Habeas Corpus: Postconviction Remedy for State Prisoners, 108 U. PA. L. REV. 461,524 (1960) (finding federal habeas corpus review indispensable to vindication of the constitutional rights of state prisoners) with Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV. 142, 167 (1970) (proposing that federal habeas corpus be reserved for those cases in which the petitioner can make a colorable showing of innocence) and Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441, 527-28 (1963) (arguing that when the state's decisional processes are adequate, no justification exists for the redetermination of the merits of a claim on habeas review).

The Supreme Court's decision in Brown v. Allen, 344 U.S. 443 (1953), expanded the scope of federal habeas review, finding that federal courts have the power to redetermine a constitutional issue on the merits, the adequacy of state adjudication notwithstanding. Id. at 464. Surprisingly, the Brown decision evoked

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676 RUTGERS LA W JOURNAL [Vol. 13:675

little response from commentators. The Judicial Conference of the United States. however. has consistently sponsored legislation that would limit federal habeas review to those cases in which the state did not allow the petitioner an opportunity to litigate his claims fully and fairly. See H.R. REP. No. 1384. 88th Cong .• 2d Sess. 3-6 (1964) [hereinafter cited as H.R. REP. No. 1384].

A trilogy of cases decided by the Warren Court in 1963 provoked an immediate response. The trilogy consisted of Fay v. Noia. 372 U.S. 391 (1963) (giving federal district courts power to hear claims that the petitioner failed to raise timely in state court. if the default was not deliberate and no state remedy remained available); Townsend v. Saint 372 U.S. 293 (1963) (specifying situations in which federal district courts must conduct de novo evidentiary hearings); and Sanders v. United States. 373 U.S. 7 (1963) (giving federal district courts power to grant successive federal habeas petitions. but with discretion to give controlling weight to a denial of a prior application).

Congress found that the recent decisions had greatly increased the number of habeas petitions and had led to the frequent use and abuse of the writ. See H.R. REP. No. 1892. 89th Cong .• 2d Sess. 4-5 (1966); H.R. REP. No. 1384. supra at 4-6. In 1966. it amended the habeas statutes to place limits on the filing of successive habeas petitions and on the use of de novo evidentiary hearings by the habeas court. Act of Nov. 2. 1966. Pub. L. No. 89-711. § 1. § 2. 80 Stat. 1104. 1105 (codified at 28 U.S.C. §§ 2244 (a-el. 2254(a). (d-f) (1976)). See infra note 67; Michael. The "New" Federalism and the Burger Court's Deference to the States in Federal Habeas Corpus. 64 IOWA L. REV. 233. 241 (1979). To relieve some of the burden placed on district court judges by increasing numbers of habeas petitions. Congress passed the Federal Magistrates Act. Pub. L. No. 90-578. § 101. 82 Stat. 1108-14 (codified at 28 U.S.C. §§ 631-639 (1970) (amended 1972. 1979)). See S. REP. No. 371. 90th Cong .• 1st Sess. 26 (1967). The most far-reaching proposal for limiting the scope of federal habeas review for state prisoners was included in the Omnibus Crime Control and Safe Streets Act of 1967. S. 917. 90th Cong .• 2d Sess. (1968). The bill would have made the judgment of a state court conclusive on all questions of law or fact which were determined or which could have been determined. See S. REP. No. 1097. 90th Cong .• 2d Sess. 10 (1968). The bill. however. was tabled indefinitely.

The Department of Justice has submitted several proposed limitations on habeas corpus review. Testifying before the Senate Judiciary Committee concerning the Speedy Trial Act of 1971. S. 895. 92d Cong .• 1st Sess. (1971). then Assistant Attorney General Rehnquist advocated habeas reform to relieve delays in the federal judicial system. Hearings on S. 895 Before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary. 92d Cong .• 1st Sess. 97 (1971) (statement of William H. Rehnquist) [hereinafter cited as Hearings on S. 895]. The Department's efforts culminated in consideration of several measures which would have restricted federal habeas review to those instances in which the petitioner did not have a fair and adequate opportunity to raise his claims in state court. in which the alleged violation was of a right primarily relat~ng to the protection of the factfinding or appellate processes. and in which the result probably would have been different if the alleged violation had not occurred. S. 567. 93d Cong .• 1st Sess. § 2. 119 CONGo REC. 2222 (1973).

Commentators have adopted various positions regarding the amendments and proposals. Compare Doub. The Case Against Modern Federal Habeas Corpus. 57 A.B.A. J. 323. 326 (1971) (the amendments integrate expansive concepts of habeas corpus jurisdiction into the statute) and Bator. supra. with Cerf. The

Jederal Habeas Corpus Act and the Recent Amendments to the Act Limiting Its


1982] HABEAS CORPUS 677

has refueled the debate. Although the number of federal habeas petitions filed by state prisoners leveled off after a dramatic acceleration in the 1960'S,2 the controversy continues unabated.3

Use and Abuse by State Prisoners, 22 U. MIAMI L. REV. 409, 422 (1967) (such amendments offer workable solutions to federalism problems caused by federal habeas corpus) and Wulf, Limiting Prisoner Access to Habeas Corpus-Assault on the Great Writ, 40 BROOKLYN L. REV. 253, 254 (1973) (disagreeing with the premises of the Justice Department's proposals).

The Supreme Court has imposed limitations on habeas review of state con· victions. In 1977, the Court replaced Noia's deliberate bypass standard with a standard requiring petitioners to show cause for failure to timely raise a claim in state court and prejudice resulting from the failure. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Also, the Stone decision has eliminated habeas review of fourth amendment exclusionary rule claims when the state provided an opportunity for their full and fair litigation. See Stone v. Powell, 428 U.S. 465, 494 (1976). These decisions have refueled the debate over the proper scope of habeas review. See infra note 3.

2. In 1960, state prisoners filed only 871 petitions. The number of petitions rose to 906 in 1961, 3,694 in 1964, and 9,063 in 1970. [1960] AD. OFF. OF THE U.S. COURTS, ANN. REP. OF THE DIRECTOR 116 [hereinafter cited as [1960] ANN. REP.]; [1964] ANN. REP. 153; [1979] ANN. REP. 61. The percentage of the increase of 1970 filings from 1960 filings was 940.5. See [1960] ANN. REP. 116; [1979] ANN. REP. 61.

During the 1970's, however, the number of habeas petitions remained relatively constant at a slightly lower level than the 1970 peak; 8,372 petitions were filed in 1971,7,843 in 1975, and 7,031 in 1980. [1979] ANN. REP. 61; [1980] ANN. REP. 62. One explanation for the overall decline in habeas filings in the 1970's is the availability of other remedies, such as the civil rights cause of action provided in 42 U.S.C. § 1983 (Supp. III 1979). See Turner, When Prisoners Sue: A Study of Prisoner Section 1989 Suits in the Federal Courts, 92 HARV. L. REV. 610, 612 n.20 (1979) (discussing reasons prisoners might prefer § 1983 to habeas relief). The available data is consistent with the proposition that alternate remedies divert prisoners from the pursuit of the writ. Although the number of habeas petitions has remained relatively steady over the past decade, the number of other prisoner petitions, particularly civil rights petitions, has increased significantly. [1979] ANN. REP. 61.

3. Although the dramatic increase in habeas corpus filings has leveled off, judicial and legislative activity in the area has not abated. See supra note 1. Recent court decisions provoked an immediate legislative response in the form of a bill which provided that federal courts could not deny habeas corpus on the ground that the state had allowed an opportunity for full and fair litigation of a claim. See S. 3886, 94th Cong., 2d Sess. (1976). Subsequent measures have been proposed that would legislatively overrule both Stone v. Powell, 428 U.S. 465 (1976) and Francis v. Henderson, 425 U.S. 536 (1976). See Hearings on S. 1914 Before the Subcomm. on Improvements in the Judicial Machinery of the Senate Comm. on the Judiciary, 95th Cong., 2d Sess. 3-4 (1978) (statement of Sen. G. Nelson) [hereinafter cited as Hearings on S. 1914]; S. 1817, 96th Cong., 1st Sess. (1979); H.R. 4879, 96th Cong., 1st Sess. (1979). None of these bills has been enacted. Scholarly discussion of the Court's decisions and the scope of habeas review has continued. See, e.g., Flagg, Stone v. Powell and the New Federalism: A Challenge to Congress, 14 HARV. J. LEGIS. 152 (1976); Hooper, Habeas Corpus Under 28 U.S.C. Section 2254-Bane or

_!1lessing, 9 CUM. L. REV. 391 (1978).



The Great Writ highlights with special clarity many irreconcilable conflicts between societal interests of considerable practical and symbolic importance. Its unique position in American law is at the root of the debate. Support for broad federal habeas review stems from our devotion to individual justice. the symbolic value of the writ as the hallmark of democracy under law. the safety-valve effect of providing an additional forum for testing constitutional claims. as well as a belief that the federal judiciary is often in the best position to further these interests. Arguments against broad application of the writ include its tendency to foster inefficient. repetitive judicial consideration of the same issue. The writ's interference with finality in the criminal process together with the lack of comity inherent in federal district court review of the decisions of a state supreme court also weigh against widespread application of the writ.

Because a federal habeas remedy cannot simultaneously serve all of these. competing interests. Congress and the courts can only hope to satisfy these interests through a series of finely drawn compromises designed to maximize them. Yet. the special need for precision in formulating and refining a system of federal habeas review contrasts sharply with the sparse information available to date on the operation of the habeas review process.4

This Article presents and analyzes the results of a Study. commissioned by the Federal Justice Research Program/ which reviewed all the

4. One pioneering empirical study in the area is of limited usefulness because its small sample size renders many of its observations and conclusions speculative. See Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 HARV. L. REV. 321, 326-28 (1973). Professor Shapiro's study covered the fiscal years 1970, 1971, and 1972 and included 257 decided and pending cases for which files were available in the District of Massachusetts. Professor Shapiro acknowledged the limited scope of his investigation and noted that restricting the study to a single district located in a small state that still used common-law postconviction procedures could have undermined the utility of the data. Id.

5. The Federal Justice Research Program is administered by the United States Department of Justice, Office for Improvements in the Administration of Justice. James P. Lynch and William R. Yeomans, of that Office deserve special thanks for their unceasing interest in and support of the research work. Pamela P. Killman of the Pennsylvania and New Jersey Bars was the Chief Researcher of the Study upon which this Article is based. In the courts studied, the judges and court personnel, who generously contributed their time and energy out of an interest in furthering our understanding of federal habeas corpus, provided valuable assistance in the project, as did Edward M. McHugh of the Rutgers-Camden Center for Computer and Information Services and Thomas E. Kopil of Rutgers School of Law-Camden, Rutgers Law Journal Staff. The authors also wish to thank Karen A. Brancheau, Managing Editor, for her thoughtful and provocative editorial suggestions.

Support for the Study was provided by the Federal Justice Research Program under contract number JADAG-79-C-0002. For a preliminary summary of the findings see P. ROBINSON, AN EMPIRICAL STUDY OF FEDERAL HABEAS CORPUS



federal habeas corpus petitions filed by state prisoners during a two-year period in six federal district courts. The Study encompassed a crosssection of districts and included one circuit court of appeals.6 Each petition was reviewed for thirty-nine variables.7 Because some of the dis-

REVIEW OF STATE COURT JUDGMENTS (1979). The authors wish to express their gratitude to Professor Robinson, whose interest in disseminating the results of the Study led him to develop this project, for his encouragement and advice, and for the freedom to use the Study's data according to our best judgment. The opinions and conclusions expressed herein are those of the authors and not of Professor Robinson or the Justice Department.

6. The data is drawn from the total number of habeas petitions filed (1,899) between July 1, 1975 and June 30, 1977 in six federal district courts and one court of appeals (the Districts of Eastern Pennsylvania, New Jersey, Eastern Virginia, Northern Illinois, Central and Southern California and the Court of Appeals for the Seventh Circuit).

The districts were selected to include a variety of district courts in terms of size, geographical region, and organizational structure. Although the courts are not a representative sample in any statistical sense, they do represent the range of problems confronting district courts and the range of court responses. Judicial districts were chosen which would comprise a fairly representative sample of the United States while still being quickly accessible to researchers. The choice of district courts allowed the Study to record fairly equal numbers of cases within the Third Circuit (500), the Ninth Circuit (680) and the Fourth Circuit (600).

The Eastern District of Virginia had im unusually high number of habeas filings. The district is divided into offices, which are maintained without centralization of clerking or judicial functions, creating in essence three separate courts within the district. It is a large district with a diverse population and geography.

The Study included both the Central and Southern Districts of California in an effort to determine whether any of the factors included in the Study vary from a large (600 petitions were filed during the two year period in the Central District of California) to a small district (80 petitions were filed for the same two year period for the Southern District of California) within the same geographic area.

The Eastern District of Pennsylvania was chosen as the pilot Study for the project because of its proximity to Rutgers and its similarity to the Northern District of Illinois. Like the Northern District of Illinois, it is a large urban district in a centralized location, with almost the same number of filings as for our two year period. In contrast, the District of New Jersey was chosen because it lacks centralization and one third the number of judges handle the same number of filings.

7. The variables were: 1. District; 2. Judge; 3. Magistrate; 4. Magistrate Cases in District; 5. Type of Offense; 6. Plea; 7. Trial; 8. Appellate Review of Conviction; 9. Number of State Petitions; 10. Number of Federal Petitions; 11. Custodian; 12. Nature Custody; 13. In Forma Pauperis; 14. Initial Treatment; 15. Nature Counsel; 16. Counsel Involvement Began; 17. Magistrate Involvement; 18. Government Involvement;' 19. Magistrate Hearing; 20. District Court Hearings; 21. Magistrate Recommendations; 22. District Court Final Disposition; 23. Opinion in District Court; 24. Nature of Claim; 25. Grounds Attacking Conviction; 26. Nature of Successful Claim; 27. Successful Ground; 28. Appeal of Final Disposition; 29. Activity on Appeal; 30. Disposition By Court of Appeals of Request for Certificate of Probable Cause; 31. Disposition on Appeal; 32. Opinion in Court of Appeals; 33. Government Involvement on Appeal; 34. Interval from Conviction to Filing; 35.



tricts surveyed had the heaviest habeas caseloads in the country, the 1,899 cases studied8 included nearly one of every eight state prisoner habeas petitions filed in federal courts during the two-year period.9 With this solid statistical base, the data offer a detailed and reliable picture of the federal habeas process and serve as a useful device for evaluating

Interval from Filing to District Court Disposition; 36. Interval from Reference to Magistrate to Report and Recommendation; 37. Interval from Report and Recommendation by Magistrate to Disposition by District Court; 38. Interval from Notice of Appeal to Disposition of Appeal; 39. Interval from Filing to Final Disposition on Appeal.

8. The cases reviewed in the Study were first identified through printouts from the Administrative Office of the U.S. Courts, whose computer stores the monthly reports of cases filed and terminated in each district court and court of appeals. Of the 2,102 cases listed by the Administrative Office as § 2254 cases, however, many were, in reality, § 1983, § 2255 or miscellaneous types of petitions. (It is logical to assume that a number of § 2254 cases were likewise miscoded as other kinds of cases and were not and could not be idenitifed.l Table 1 summarizes the cases excluded in each of the sample districts.

TABLE 1: CASES IN STUDY

7th ED D ED ED ED ED ND CD SD Totals Cir. Pa NJ Va Va Va Va IL CA CA CofA Alex Rich Norf Total

1. Overall Filings listed on Ad. 113 244 207 166 204 229 599 260 601 78 2102 Office Sheet 5140,0 11.60,0 9.80,0 7.90,0 9.70,0 10.90,0 28.50,0 12.40,0 28.60,0 3.70,b 1000,0 (and 0,b of row total)

2. Excluded Cases 7 11 31 42' 24 10 76 41 37 7 203 (and 0,b of 6.20,0 4.5°,b 15.00,0 25.30,0 11.80,0 4.40,0 12.70,0 15.80,0 6.20,0 9.0°,b 9.60,0 row 1)

2a. § 2255 Exclusion 6 8 6 13 1 20 10 28 4 77 (and 0,b of 0.90,0 2.5°,b 3.90,0 3.60,0 6.40,0 0.40,0 3.30,0 3.80,0 4.70,0 5.1°,b 3.60,0 row 1)

2b. § 1983 Exclusion 1 2 2 15 7 7 29 3 3 40 (and 0,b of 0.90,0 0.8°,b 1.00,0 9.00,0 3.40,0 3.1°,b 4.80,0 1.60,0 0.50,0 1.90,0 row 1)

3. Added Cases 3 2 2 4

4. Cases Analyzed 106 236 176 126 180 221 527 219 564 71 1899 (and 0,b of 5.60,0 12.40,0 9.30,0 6.60,0 9.50,0 11.60,0 27.70,0 11.50,0 29.70,0 3.70,0 1000,0 row total)

"Includes exclusion of 15 Lorton cases. Lorton is the District of Columbia prison' facility. but is located in the Eastern District of Virginia. These "federal" prisoners may not appropriately file § 2254 petitions in that district. See Cross v. Jackson. No. 74-1684 (4th Cir .• April 30. 1975).

9. These cases studied represent 12.2% of the total number of habeas petitions filed during the period of the Study. The Study included 1,793 district court cases. State prisoners filed 7,833 habeas petitions in fiscal year 1976 and 6,866 in 1977. [1979] ANN. REP. 61.



reform proposals and the manner in which they accommodate competing societal interests. After discussing the many competing interests at work in the habeas process, this Article examines empirically the operation of the procedures governing habeas review-including procedures relating to relitigation of issues, successive habeas petitions, timing of petitions, appellate review of district court decisions, extent of magistrate involvement, effect of counsel, and issues cognizable in habeas. Further, the Article analyzes how well proposals for reform of each of these aspects will accommodate the competing societal interests. tO

I. COMPETING INTERESTS AND VALUES

A discussion of the competing interests and values at stake in federal habeas review of state convictions is the necessary starting point for evaluating the success of the current system and the need for reform. The writ, which protects individual liberty against governmental privation, serves a significant value as a symbol of our free and democratic society. The constitutional prohibition against its suspension reflects the writ's prestige in American law as a guardian of individual liberty .11 The

10. Where the text refers to statistical information. the corresponding footnote cites the page of an "appendix" (hereinafter referred to as App.) where that information may be found. The appendices. containing the complete findings of the Study. are too voluminous to publish. but are available for inspection by contacting the Rutgers Law Journal. 5th & Penn Streets. Camden, New Jersey 08102.

App. A discusses the selection of district courts. the sample of petitions. and other methodological issues. In addition. App. A includes extensive descriptions of the organization and procedures in each district court and specific descriptions of procedures in clerks' offices. composition of the courts. interviews with court personnel, and various irregularities in the sample of petitions.

App. B contains the data collection form used by researchers to code relevant data for each petition. The data collection sheet for each petition studied is available by contacting the Rutgers Law Journal.

App. C lists in numerical order the 39 variables which were analyzed. see supra note 7. and lists the possible answers for each one as it appears on the data collection form. The appendix also describes what information has been coded in specific answer categories. This information would be extremely helpful for those interested in further statistical analysis of the data because it describes fully the idiosyncrasies in the data for each response category.

App. F presents the frequency distribution for each of the 39 variables that were included in the statistical analysis.

App. W contains a description and analysis of the data concerning female petitioners. who made up only 1.5% of the petitioner population studied.

App. X contains selected cross tabulations between and among the variables 1-33. as well as summary statistics for selected compositions of time interval variables (variables 34-39).

The raw data are available on machine readable magnetic tape and disc for those who may be interested in more extensive analysis.

11. The Constitution provides that the writ of habeas corpus shall not be suspended unless the public safety requires it in cases of rebellion or invasion. U.S.



United States Supreme Court has characterized the writ as the "precious safeguard of individual liberty," and the Court claims to recognize "no higher duty than to maintain it unimpaired."12 Habeas corpus is perceived as the ultimate, often the sole, remedy for government oppression of personal freedom.13 Its operation renders government accountable t'o the judiciary and charges the judiciary with responsibility for maintaining the rule of law when other procedures prove ineffective.14 The expansion of the scope of the writ in recent years to protect a host of emerging constitutional rights has vested federal courts with unprecedented power to review state and federal judicial decisions and legislative enactments.15 ,

Despite the extraordinary respect the writ of habeas corpus com-mands, some judges, commentators, and court administrators have been increasingly critical of the burden which the "flood" of habeas petitions creates on the efficient use of judicial resources,16 including judicial time, energy, and facilities.17 The increasingly complex and often frivolous

CONST. art. I, § 9, cl. 2. For a discussion of the constitutional values implicit in habeas corpus, see Chafee, The Most Important Human Right in the Constitution, 32 B.U. L. REV. 143 (1952).

12. Bowen v. Johnson, 306 U.s. 19, 26 (1929). 13. See Fay v. Noia, 372 U.S. 391, 400-01 (1963); Ex parte Yerger, 75 U.S. (8

Wall.) 85, 95 (1869). 14. Fay v. Noia, 372 U.S .. at 402; Lay, Post Conviction Remedies and the

Overburdened Judiciary: Solutions Ahead, 3 CREIGHTON L. REV. 5, 5 (1970); Mitchell, Restoring the Finality of Justice, 32 ALA. LAW. 367, 369-70 (1971).

15. See Bator, supra note 1, at 501 n.169. See generally Developments in the Law-Federal Habeas Corpus, 83 HARV. L. REV. 1038 (1970) [hereinafter cited as Developments in the Law]. See also McFeeley, Habeas Corpus and Due Process: From Warren to Burger, 28 BAYLOR L. REV. 533, 534-40 (1976).

16. See, e.g., Bodenheimer, Symposium: Habeas Corpus-Proposals for Reform, 9 UTAH L. REV. 18, 38 (1964) (remarks of Edgar Bodenheimer); Doub, supra note 1, at 323.

17. See Friendly, supra note 1, at 143-44; Weick, Apportionment of the Judicial Resources in Criminal Cases: Should Habeas Corpus be Eliminated?, 21 DEPAUL L. REV. 740, 744-45 (1972); Note, Relieving the Habeas Corpus Burden: A Jurisdictional Remedy, 63 IOWA L_ REV. 392, 411-12 (1977) [hereinafter cited as Note, Relieving the Habeas Corpus Burden].

The increase in the volume of petitions alone is staggering. In 1960, prisoner petitions made up 2,177 of a total of 59,284 of all civil filings in U.S. District Courts. By 1979, such petitions formed 23,001 of a total of 154,666 filings. [1979] Ann. Rep., supra note 2, at 62, Table 22. While the latter figures represent an increase of only 4.9% over prisoner petitions filed in 1978, they demonstrate a 956.5% increase from 1960. Id. The percentage increasp. in prisoner petitions has far outstripped the increase in total civil filings, which grew only 160.9% during the 1960-1979 period. Id. In 1979,80.4% of all prisoner petitions came from state prisoners. See id. at 61, Table 21.

Habeas corpus petitions increased in number from 1,184 (871 state, 313 federal) in 1960 to 8,700 (7,123 state, 1,577 federal) in 1979, representing an increase of 634.8% (717.8% state, 403.8% federall. See id. The increase in habeas petitions has not been steady, fluctuating between 6,866 and 8,374 since 1970.



nature of habeas petitions may deplete judicial resources spiritually as well as physically. IS Justice Jackson first acknowledged the adverse effect of the flood of meritless claims on judicial attitudes: "It must prejudice the occasional meritorious "application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search."19 The concern has been expressed that the growing burden imposed by habeas petitions on federal courts will permit judges less time for argument and deliberation and transform the courts into bureaucratic institutions.2o

Additional burdens ensue when a court becomes involved in extensive reconsideration of a case, including de novo factual determinations, because the absence of a trial context on habeas review increases the possibility of factual error.21

If one considers only the statistically measurable benefits of habeas review, they appear to be outweighed by the costs of expansive habeas review. Federal district courts grant total or partial relief to only 3.2% of the petitioners.22 Also competing with the interest in efficient use of

[1979] ANN. REP .• supra note 2. at 61. Table 21. State prisoners filed 73.6% of the" habeas applications filed in 1960 and 81.9% of those filed in 1979. See id. Habeas petitions. particularly state prisoner petitions. are a significant portion of the civil caseload of the federal district courts. In 1960. state habeas applications comprised 1.5% of all civil filings. [1960] ANN. REP .• supra note 2 at 74. 116. In 1979. state habeas petitions comprised 4.6% of all civil filings. [1979] ANN. REP .• supra note 2. at 61. Table 21.

The burden of prisoner petitions also falls on circuit courts of appeals where state prisoner petitions in 1979 comprised 9.8% or 1.978 of the 20.219 cases docketed. Id. at 48. Table 5. Appeals for habeas decisions comprised 8.8% or 1.073 of the 12.220 civil appeals from district courts filed in 1979. Id. at 47. Table 4.

Because a large portion of habeas petitions are summarily dismissed. Shapiro. supra note 4. at 332. some commentators have suggested that the burden of habeas petitions has been greatly exaggerated. See. e.g .• Carroll. Habeas Corpus Reform: Can Habeas Survive the Flood? 6 CUM. L. REV. 363. 373 (1975); Flagg. supra note 3. at 166; Developments in the Law. supra note 15. at 1041. It does not follow. however. that a dismissal without an evidentiary hearing does not require considerable expenditures of the court's time. In particular. a dismissal for failure to exhaust state remedies may consume a considerable amount of time. Friendly. supra note 1. at 144 n.10. The evidence suggests that the time elapsing between filing of a petition and its final disposition is increasing. Note. Relieving the Habeas Corpus Burden. supra. at 411-12.

18. Lay. Modern Administrative Proposals for Federal Habeas Corpus: The Rights of Prisoners Preserved. 21 DEPAUL L. REV. 701. 702-03 (1972); Weick. supra note 17. at 747; Note. Relieving the Habeas Corpus Burden. supra note 17. at 412.

19. Brown v. Allen. 344 U.S. 443. 537 (1953) (Jackson. J .• concurring). 20. See Lay. supra note 14 at 13. 21. Michael. The "New" Federalism and the Burger Court's Deference to

the States in Federal Habeas Corpus Proceedings. 64 IOWA L. REV. 233. 255 (1979). 22. App. F. 72-81.



resources, however, is the value our society attaches to the intangible interests of according justice in individual cases. The desire to reach a correct decision and to avoid unjust punishment generates pressure for additional review in criminal cases.23 Implicit in the interest in justice is society's abhorrence of punishing factually innocent persons and its willingness to tolerate additional burdens to avoid that result.24 "[W]here personal liberty is involved, a democratic society employs a different arithmetic and insists that it is less important to reach an unshakable decision than to do justice."25 In determining the validity of the state's custody of an applicant after all other avenues of review have closed, federal habeas corpus operates when government most severely threatens individual rights. Thus, the writ's protection of fundamental rights28 must weigh heavily in the balance against the inefficiencies of maintaining collateral review. The value placed on justice and the need to maintain confidence in the integrity of our legal system ensure the continued existence of habeas corpus.27

A societal interest in the finality of criminal judgments, however, conflicts directly with the desire for certainty. Professor Paul Bator has characterized the value of finality as society's inherent need for a sense

. of repose.28 In addition, the finality interest preserves judicial resources

23. See Bator, supra note I, at 441-44 & 446-47. 24. Justice Powell, writing for the majority in Stone v. Powell, stated:

Resort to habeas corpus, especially for purposes other than to assure that no innocent person suffers an unconstitutional loss of liberty, results in serious intrusions on values important to our system of government. ... We nevertheless afford broad habeas corpus relief, recognizing the need in a free society for an additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty .... But ... a convicted defendant is usually asking society to redetermine an issue that has no bearing on the basic justice of his incarceration.

428 U.S. at 491 n.31. Many commentators share the Court's view that habeas corpus protection

should extend only to the arguably innocent. E.g., Friendly, supra note I, at 167. 25. Pollak, supra note I, at 65. 26. Several commentators argue that the purpose of habeas corpus is to pro

tect constitutional rights. E.g. , Lay, supra note 18, at 708.09. See, e.g., Flagg, supra note 3, at 166-67; McFeeley, supra note 15, at 534-40. Professor Soloff argues that withdrawal of habeas review from cases involving alleged violations of rights that are not related to the reliability of the factfinding process would be inconsistent with the purposes of incorporation which require states to enforce fundamental rights. Soloff, Litigation and Relitigation: The Uncertain Status of Federal Habeas Corpus for State Prisoners, 6 HOFSTRA L. REV. 279, 309-10 (1978).

27. See Lay, supra note 18, at 708-09. 28. Profesor Bator explains:

Repose is a psychological necessity in a secure and active society .... There comes a point where a procedural system which leaves matters



by avoiding relitigation of issues in duplication of state efforts.29 Professor Bator has also suggested that the finality of a criminal decision may conserve the judiciary's moral and intellectual resources, sense of responsibility, and conscientiousness, all of which are crucial to the art of judging.30

The purposes of the criminal justice system, which include the rehabilitation, deterrence, and condemnation of criminal offenders, are also served by finality of judgments. Attainment of these objectives may depend on swift and sure conviction and punishment of the criminal offender. Procedures that encourage an anxious quest for certain justice by permitting endless relitigation may create obstacles to the achievement of these goals.3! The possibility of habeas relief, which presents opportunities for continuing protestations against the inequity of one's punishment, may undermine the state's efforts to rehabilitate its prisoners.32

Professor Bator characterizes the prisoner's recognition that he has been justly sanctioned and is in need of rehabilitation as a "cardinal moral predicate" to the corrective process.33 Although empirically unverified and perhaps unverifiable, it is plausible that prisoners view endless relitigation as a manifestation of society's diffidence in its right and ability to mete out just punishment.34 When society is so reluctant to inflict

perpetually open no longer reflects humane concern but merely anxiety and a desire for immobility. Somehow, somewhere, we must accept the fact that human institutions are short of the fallible; there is reason for a policy which leaves well enough alone and which channels our limited resources toward more productive ends.

Bator, supra note I, at 452-53. 29. Bator, supra note I, at 41. In Fay v. Noia, 372 U.S. 391 (1963), the

Supreme Court held that in the absence of a deliberate bypass of a state remedy, federal courts retain power to review a petitioner's claim. Id. at 420. The state court, therefore, may never reach the merits of an issue later raised on habeas review, so the federal court does not relitigate the merits of the issue. It does, however, reexamine the validity of custody. Given the low number of successful petitions, see supra text accompanying note 22, federal courts appear in most cases to duplicate state court efforts. For a discussion of the burden created by habeas petitions, see supra text accompanying note 17.

30. Bator, supra note I, at 451. 31. Id. at 452. See Note, Relieving the Habeas Corpus Burden, supra note 17,

at 415 (contending that prospect of release diminishes the certainty of punishment and, thereby, the specific and general deterrent effect).

32. Note, Relieving the Habeas Corpus Burden, supra note 17, at 415. 33. Bator, supra note I, at 452. Contra Carroll, supra note 17, at 378-79

(dismissing as speculative the argument that the prisoner must submit to lawful authority but will not do so as long as the possibility of obtaining release exists). Contra Note, Relieving the Habeas Corpus Burden, supra note 17, at 416 (noting the lack of empirical support for either argument).

34. Bator, supra note 1, at 452. Contra Carroll, supra note 17, at 378-79 (arguing that future prospect of release does not render confinement less of a punishment).


686 RUTGERS LA W JOURNAL [V 01. 13:675

punishment, prisoners can scarcely be expected to feel that the infliction of punishment is just. Furthermore, the lack of finality implicit in the system of federal habeas corpus may subvert the integrity of the criminal justice system by releasing and, thereby, demanding the retrial of prisoners, whom many perceive as the persevering but guilty, long after the time when the state might convincingly redemonstrate guilt.S5

Although habeas corpus and the lack of finality it entails impede efficiency and conflict with some goals of the criminal justice system, habeas does serve valid practical purposes as a safety valve. The availability of habeas relief may deflect the hostility normally present in the custodial environment by providing an additional, neutral means of adjudicating disputes between prisoners and the state.36 The pursuit of post-conviction remedies may promote rehabilitation in at least two other ways. First, to the extent prisoners perceive the system as fair because collateral relief remains available, their willingness and capacity to respond positively to rehabilitation may increase.37 Second, the process of preparing a petition is itself a form of therapy, imparting new skills and knowledge.sa

Federal habeas corpus for state prisoners also generates significant tensions between federal and state governments. The administration of criminal justice in our federal system of government has traditionally been within the purview of state sovereignty. Federal collateral review of state convictions inevitably involves considerable federal interference with state administration of criminal law. The propriety of such interference depends upon the weight accorded other values which federal supervision of state administration of criminal law advances.

Defenders of expansive habeas review marshal several arguments in support of federal supervision of federal constitutional rights. Because the concept of government implies the ability to enforce its law, the federal government, it is argued, should have the means to enforce its own laws through a system of federal supervision.39 Although the con-

35. See Stone v. Powell, 428 U.S. 465, 490 (1976); Hearings on S. 1914, supra note 3, at 41 (statement of Robert Leonard, representing the Nat'l Dist. Att'ys Ass'n).

36. See Freund, Symposium: Habeas Corpus-Proposals for Reform, 9 UTAH L. REV. 18, 30 (1964) (remarks of Paul Freund); Rosenburg, Jettisoning Fay v. Noia: Procedural Defaults by Reasonably Incompetent Counsel, 62 MINN. L. REV. 341, 428-29 (1978).

37. Rosenburg, supra note 36. Insofar as prisoners' experiences lead them to perceive the system as operating irrationally, the effect could be reversed. Id. at 429.

38. See Rosenburg, supra note 36, at 429. 39. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 387-88 (1821). Chief Justice

Marshall, writing for the Court, argued:

No government ought to be so defective in its organization as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day. Courts of justice



stitutional right to a federal forum for review of state convictions has been debated, Congress has provided the remedy as a matter of statutory right.'o

The congressional mandate finds support in policy and experience. Federal review of constitutional claims promotes a policy of national uniformity in the interpretation and application of federallaw.'1 By allowing the convicted to vindicate their federal rights when state courts have failed to do so, federal collateral review can serve as an incentive to the states to undertake protection of federal rights.42 Further, some commentators believe that the lack of sympathy for federal rights in some states renders federal courts more appropriate protectors against violation of those rights.4s Many fear that withdrawal of federal review will adversely affect the minorities, the poor, and the disenchanted in our society." Recent legislation suggests that Congress believes that state resistance to the enforcement of federal rights still exists, particularly when prisoners are involved.'5 Because state judges are appointed or elected

Id.

are usually employed; and it is reasonable to expect that a government should repose on its own courts rather than on others. There is certainly nothing in the circumstances under which our Constitution was formed, nothing in the history of the times, which would justify the opinion that the confidence reposed in the states was so implicit as to leave them and their tribunals the power of resisting or defeating, in the form of law, the legitimate measures of the Union.

40. See 28 U.S.C. § 2254 (1976). Some commentators have suggested that a constitutional right to a federal forum exists. Justice Frankfurter believed that the supremacy clause, U.S. CONST. art. VI, cl. 2, formed the basis of the right. See Brown v. Allen, 344 U.S. 443,510 (1953) (separate opinion of Frankfurter, J.). Professor Bator has noted, however, that insisting upon the supremacy of federal law neither establishes nor requires a federal system of review. Furthermore, congressional control of federal jurisdiction and the discretionary nature of the Supreme Court's certiorari jurisdiction belie the existence of a constitutional right to federal review. Bator, supra note 1, at 505.

41. Flagg, supra note 3, at 165. Contra Note, Relieving the Habeas Corpus Burden, supra note 17, at 419 (arguing that multiple interpretations arise even within the federal system).

42. See Flagg, supra note 3, at 162-64; Soloff, supra note 26, at 309; Tague, Federal Habeas CQrpus and Ineffective Representation of Counsel: The Supreme Court Has Work toDo, 31 STAN. L. REV. 1, 55 (1978). Commentators have argued that the Court discourages state protection of constitutional rights by honoring procedural bars to review. E.g., Rosenburg, supra note 36, at 390-91.

43. E.g., Flagg, supra note 3, at 162-65; Gellhorn, Symposium: Habeas Corpus-Proposals for Reform, 9 UTAH L. REV. 18, 33 (1964) (remarks of Walter Gellhorn); Lay, supra note 18, at 715-19.

44. See Hearings on S. 1914, supra note 3, at 12 (statement of Hon. Gaylord Nelson).

45. The Civil Rights for Institutionalized Persons Act, 42 U.S.C. § 1997a (Supp. IV 1980), permits the U.S. Attorney General to initiate civil actions when there is reasonable cause to believe that any state is subjecting persons to



for limited terms of office, they may be more susceptible to pressure from local constituencies . less concerned with safeguarding federal rights. Federal judges, who have life tenure and irreducible compensation, are less vulnerable to parochial influences.46

If one accepts the proposition that full protection of federal rights requires a federal forum, then one must accept the necessity of some regime of collateral review of state convictions by lower federal courts. The Supreme Court's certiorari and appellate jurisdictions provide an inadequate instrument for the supervision of state courts because of the great volume of state criminal cases. The Supreme Court's need to make law in a reflective and authoritative fashion limits the number of cases it can hear.47 Conservation of the Court's resources requires that lower federal courts perform supervisory functions. '

Some critics of an expansive writ contend that this federal involvement deprecates the status of states as sovereign entities.48 The United States Constitution recognizes that state sovereignty is limited only by the enumerated powers of the federal government!9 Within this system of dual sovereignty, the states have traditionally exercised control over the administration of criminal justice. The federal courts have acknowledged this arrangement by according great deference to state findings of fact and interpretation of state law.50 Even though criminal

egregious or flagrant conditions that are depriving the persons of constitutional or federal rights and when the deprivation is pursuant to a pattern or practice of resistance to the full enjoyment of such rights. Indications exist that states have made significant advancements in providing post-conviction remedies for violation of federal rights. See Soloff, supra note 26, at 344 n.255. Cf. Reitz, supra note 1, at 466-72. The recent enactment of the Civil Rights of Institutionalized Persons Act, however, indicates that Congress perceives a need for improvement. That Congress was aware of the probable effect of the measures on slate procedures is apparent from the hearings held on the legislation. See, e.g., Hearings on H.R. 10 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary, 96th Cong., 1st Sess. 1-4 (1979) (statements of Hon. Robert Kastenmeier and Hon. Tom Railsback).

46. Flagg, supra note 3, at 162-63. 47. See Fay v. Noia, 372 U.S. 391, 436-38 (1963). 48. See, e.g., Pollak, supra note I, at 64. 49. U.S. CONST. amend. X. 50. See Fay v. Noia, 372 U.S. at 446, 466 (Clark, Harlan, JJ., dissenting

respectively). But see Brennen, Some Aspects of Federalism, 39 N.Y.U. L. REV. 945, 946-47 (1964) (the state generally exercises authority over its internal order but when state and federal interests clash, the Court must reconcile differences). But see Baltimore & O.R. Co. v. Baugh, 149 U.S. 368, 401 (1893) (Field, J., dissenting):

The Constitution of the United States ... recognizes and preserves the autonomy and independence of the states, - independence in their legislative and independence in their judicial departments. Supervision over either the legislative or the judicial action of the states is in no case



prosecutions inevitably involve claims of violations of federal rights. many writers contend that. absent an institutional reason for preferring a federal forum. state determinations of such claims should stand.51

Federal review of state court decisions. they argue. especially federal redetermination of factual issues. disrupts the constitutional distribution of power.52

The federal writ may undermine the policy of federalism and exacerbate the tensions between the two sovereigns by imposing serious financial and psychological costs on the states. The state judiciaries may well resent the interference with the administration of their courts. the increased burden from habeas cases. the prospect of being reversed by a federal court. especially a lower federal court. and the unspoken distrust of state judges' ability to interpret and apply federal constitutional law authoritatively.53 Additionally. the system of federal collateral review may undermine a policy of encouraging state judges to reach the merits of a federal constitutional challenge by subjecting them to "reversal" on the merits. but respecting state procedural grounds as bars to later federal review. No inherent reasons exist for doubting the competence of state judges to decide the federal questions which arise so frequently in their courts.54

.

Federal review may be superfluous inasmuch as the supremacy clause55 requires state courts to apply federal law. State courts deal extensively with criminal prosecutions and have experience in applying controlling federal law in the cases before them. Many state courts have now outpaced the Supreme Court in the protections extended to criminal suspects.56 Further. most states have their own systems of collateral review through which convicts may present claims that their convictions violate federal or state constitutional guarantees.57

Id.

permissible except as to matters by the constitution specifically authorized or delegated to the United States. Any interference with either. except as thus permitted. is an invasion of the authority of the state. and. to that extent a denial of its independence.

51. See Bator. supra note 1. at 510-11. 52. See Michael. supra note 1. at 253-54. 53. See Doub. supra note 1. at 509; Shapiro. supra note 4. at 341. See also

McGowan. Federal Jurisdiction: Legislative and Judicial Change. 28 CASE W. RES. L. REV. 517. 537 (1978).

54. Lay. supra note 18. at 716. 55. U.S. CONST. art. VI. cl. 2. 56. See Brennen. State Constitutions and the Protection of Individual

Rights. 90 HARV. L. REV. 489. 491-95 (1977). 57. See L. Y ACKLE. POSTCONVICTION REMEDIES § 13 (1981) for a survey of

state post-conviction remedies. The Supreme Court has expressed concern that attorneys will deliberately withhold claims in state court in the hope of obtaining


690 RUTGERS LAW JOURNAL [Vol. 13:675

Federal habeas corpus reform requires an accommodation of these competing interests and values, and may require that some interests be promoted at the expense of others. Most important, however, reformers should know what effect their proposals will have in the real world and whether they will yield a fair return. The balance is most critical in fashioning habeas procedures relating to the relitigation of issues, the timing of review, and the appellate review of habeas determinations. A determination of the proper extent of magistrate involvement in the habeas process, the availability of counsel, and the range of issues cognizable in habeas are of equal importance. For each of these central issues, this Article describes the rules that govern current practice, presents an empirically documented picture of the process, and evaluates various proposals for reform.

II. FEDERAL HABEAS CORPUS PROCEDURES

Many proponents of habeas corpus reform have focused on the burdens placed on petitioners and the federal courts by the statutes58 and rules59 governing federal habeas corpus procedures.50 This section of the Article will analyze data on various procedural aspects of habeas corpus, including the exhaustion requirement, the time intervals between various stages in the habeas review process, the successive filing of federal habeas petitions, and the appellate review of habeas petitions. This analysis should help both to identify the effects of current procedural requirements on the petitioner and the federal courts and to evaluate reform proposals.

A. The Exhaustion Requirement and Duplication of State Review Processes

One of the most difficult procedural obstacles for state prisoners to overcome when seeking federal habeas corpus relief is the exhaustion

habeas relief later. See Wainwright v. Sykes, 433 U.S. 72,89 (1977). But see Tague, supra note 42, at 42-48. Professor Tague argues that the Court's concern derives from faulty assumptions about the motives and abilities of defense attorneys. In most cases the failure to assert a claim results from the attorney's ignorance or mistake rather than deliberate choice. Reliance on the possibility of a successful habeas petition to vindicate a client's rights would appear to be so misplaced as to raise the question of competence. Id.

58. 28 U.S.C. §§ 2241-2255 (1976). 59. RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT

COURTS 1·12. The Rules appear in 28 U.S.C. following § 2254. Subsequent citations to the Rules in this Article will indicate the Rule number and, where appropriate, a subsection designation. E.g., RULE 9(a).

60. See, e.g., Clinton, Rule 9 of the Federal Habeas Corpus Rules: A Case Study on the Need for Reform of the Rule Enabling Acts, 63 IOWA L. REV. 15 (977); Spritzer, Criminal Waiver, Procedural Default and the Burger Court, 126 U. PA. L. REV. 473 (1978).



requirement.61 The exhaustion doctrine requires a state prisoner to present his federal claims to a state tribunal, in which a remedy is available through appellate or collateral review, before filing for federal habeas review.62 The doctrine is rooted in the policy of comity inherent in our federal system.63 In the federal habeas context, comity requires that state courts have an,opportunity to hear a petitioner's claims and to correct errors of constitutional or federal law prior to federal review of the claims.64 The exhaustion requirement ensures that the state courts have that opportunity. The doctrine also promotes comity by precluding federal habeas intervention in a case until state appellate or post-conviction processes are completed, thereby preventing disruption of the state criminal justice machinery and facilitating its smooth operation.65

61. 28 U.S.C. § 2254(b) (1976) provides:

An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

62. 28 U.S.C. § 2254(c) (1976) provides: "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." It has long been settled that the exhaustion requirement is not jurisdictional in nature. Rather, the requirement is founded on the policy of comity. Fay v. Noia, 372 U.S. 391, 437-38 (1963); Ballard v. Maggio, 554 F.2d 1247, 1249 (5th Cir.1977). When justice requires the court to hear a petition, however, the court may disregard the exhaustion requirement. United States ex reL Graham v. Mancusi, 457 F.2d 463, 468 (2d Cir. 1972).

The state remedies to which the requirement applies are limited. The requirement generally applies only to state remedies which are still available at the time of federal habeas filing. Fay v. Noia, 372 U.S. at 434-35. To exhaust available state remedies, the petitioner must fairly present his federal claims to a state court. Picard v. Connor, 404 U.S. 270, 275 (1971). When both appellate and collateral review are available, a petitioner need only pursue one alternative. Allen v. Ulster County Ct., 568 F.2d 998, 1001 (2d Cir. 1977), rev'd on other grounds, 442 U.s. 140 (1979). Thus, the petitioner's failure to pursue either postconviction, or appellate review, will not bar federal habeas review when the other has been pursued. Brown v. Allen, 344 U.S. 443, 447-48 (1953). The petitioner need not seek review from the Supreme Court by writ of certiorari following a decision by the state's highest court. Fay v. Noia, 372 U.S. at 435.

63. Fay v. Noia, 372 U.S. at 419-20; United States ex reL Aloi v. Arnold, 413 F. Supp. 1384, 1386 (S.D.N.Y. 1976); Ralls v. Manson, 375 F. Supp. 1271, 1276 (D. Conn.), rev'd on other grounds, 503 F.2d 491 (2d Cir. 1974).

64. Preiser v. Rodriguez, 411 U.S. 475, 490-92 (1973); Wilwording v. Swenson, 404 U.S. 249, 250 (1971).

65. United States ex reL Goodman v. Kehl, 456 F.2d 863, 865 (2d Cir. 1972). See Wade v. Mayo, 334 U.S. 672, 679-80 (1948); Hagewood v. People, 62 F. Supp. 151,152 (N.D. Cal. 1945); Knight v. People, 60 F. Supp.164, 168 (N.D. Cal.) (the two sovereigns have concurrent power), appeal dismissed, 151 F.2d 534 (9th Cir. 1945).



The federalism rationale for the exhaustion requirement must be discounted, however, by other sections of the federal habeas statutes which sanction broad review of state court decisions. When a petitioner has presented his claims to an appropriate state court before seeking federal habeas relief, the conclusions of law and findings of the state court are not binding on the federal court. The federal court's review of the state court's legal conclusions is plenary.ss A state court determination on the merits of a factual issue, which is generally accorded a rebuttable presumption of correctness, may be reviewed de novo by a federal habeas court if the state factfinding process was inadequate or defective or if the record does not support the determination.s7 This broad power to review state decisions helps to ensure the correctness of convictions and the

66. Brown v. Allen, 344 U.S. 443, 506, 508 (1953); In re Parker, 423 F.2d 1021, 1024 (8th Cir.) (federal court's consideration of constitutional rights is plenary), cert. denied, 398 U.S. 966 (1970). The Justice Department has recently proposed that the same deference accorded state factual determinations should be given to mixed questions of law and fact fully and fairly adjudicated by state courts. See S. 2216, 97th Cong., 2d Sess. (1982); Hearings on S. 2216 Before the Senate Comm. on the Judiciary, 97th Cong., 2d Sess. 48, 89 (1982) (letter of William French Smith and section analysis) [hereinafter cited as Hearings on S. 2216).

67. 28 U.S.C. § 2254(d) (1976). Under the Brown decision, habeas courts could fully review any state decision of federal law under the usual standard of appellate review. 344 U.S. at 458, 463. In Townsend v. Sain, 372 U.S. 293, 313 (1963), the Court held that habeas courts possessed the power to redetermine factual issues. The exercise of that power is mandatory if one or more of six criteria are present. Id. Although initially perceived as a codification of the Supreme Court's decision in Townsend, the 1966 amendments, Act of Nov. 2, 1966, Pub. L. No. 89-711, § 2(d), 80 Stat. 1104, 1105 (codified at 28 U.S.C. § 2254(d) (1976)), restricted factual redeter· mination. See Hooper, supra note 3, at 394; Michael, supra note I, at 241-42. The statute provides:

In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of the State court, a determination after a hearing on the merits of a fac· tual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opin· ion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit-

(1) that the merits of the factual dispute were not resolved in the State court hearing;

(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the State court hearing;

(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;



uniformity of federal constitutional law determinations.68 But it undercuts tension-free federalism, which the exhaustion requirement seeks to promote.

The combination of an exhaustion requirement and broad powers of review in the federal habeas context also jeopardizes our interest in judicial efficiency. Indeed, the federal habeas statutes have been severely criticized for fostering wasteful relitigation in the federal courts of issues previously decided by state courts.69 In response to this perceived problem, commentators have offered numerous reform proposals. The reforms include total abolition of the exhaustion requirement,70 its

(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in the State court proceeding;

(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record: And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbers (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the state court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.

28 U.S.C. § 2254(d) (1976). It is now clear that the burden rests on the petitioner to establish the existence of one of these factors. If he fails to do so,. redetermination is erroneous. La Vallee v. Delle Rose, 410 U.S. 690, 695 (1973).

A recent reform proposal would eliminate not only the presumption in situations other than paragraphs 1-5 and 8, but also the power to hold an evidentiary hearing. See S. 653, 97th Cong., 1st Sess. (1981). Another proposal would simplify this section by presuming the correctness of a state court's full and fair determination of a factual issue. A petitioner could rebut the presumption by clear and convincing evidence. See S. 2216, supra note 66. The data generated by the Study is not sufficiently detailed to evaluate the potential impact of these proposals.

68. See Brown v. Allen, 344 U.S. at 506-13. 69. E.g., Carroll, supra note 17, at 398. Even state court judges have

expressed frustration with the unnecessary relitigation perceived in the present system. One member of the Minnesota Supreme Court has written: "In these days of overburdened judges and lack of sufficient judicial manpower to handle an ever-increasing load, it makes little sense for both of us [state and federal judges] to spend time on a case if the petitioner is given an adequate hearing somewhere." Knutson, State-Federal Relations in Minnesota, 50 F.R.D. 427, 430 (1970).

70. Carroll, supra note 17, at 393-94.



elimination for claims that clearly lack merit or for which prosecution in state court would be futile,71 and elimination of the federal habeas court's power to find facts.72 In the past both the criticism and the reform effort have been hampered by the dearth of empirical data available to demonstrate how the federal habeas review process functions. This section's purpose is to extrapolate from the data an estimate of the amount of duplication of state effort which occurs and to examine its effects on the federal courts and the petitioners.73

71. Shapiro, supra note 4, at 359. Professor Shapiro suggests that the requirement be abolished in two specific circumstances: when the petition clearly lacks merit and when return to the state forum would be futile because of adverse state precedent. In addition, he supports allowing petitioners to amend their petitions to clarify steps taken to exhaust remedies, obtaining state commitments to refrain from interposing procedural bars where the availability of a remedy is uncertain, and providing some mechanism to return claims to the federal court within a reasonable period. fd. at 359-60_ The Justice Department included both of Professor Shapiro's suggestions in the proposal it recently submitted to Congress. See S. 2216, supra note 66. Many proponents of reform contend that where the state has provided the petitioner with an opportunity for fair litigation of his claims, access to the federal forum should be barred. E.g., Hearings on S. 895, supra note 1, at 102-03. See also Doub, supra note 1, at 327 (arguing that such claims should be barred absent justification, which appears similar to the cause and prejudice standard).

72. See Hopkins, Federal Habeas Corpus: Easing the Tension Between State and Federal Courts, 44 ST. JOHN'S L. REV. 660, 671-72 (1970). Then Assistant Attorney General Rehnquist suggested that federal courts recognize the state's position as the appropriate factfinder by requiring that evidentiary hearings, so far as practicable, be held in state courts. Presumably, records and witnesses would be closer to the state forum, and the measure would relieve the federal judiciary of the burden of such hearings. Hearings on S. 895, supra note I, at 102-03. The Department of Justice indicated its interest in such a proposal. See UNITED STATES ATTORNEY GENERAL TASK FORCE ON VIOLENT CRIME, FINAL REPORT 59 (1981) [hereinafter cited as FINAL REPORT].

The Department's final submission to Congress did not include the proposal for such remands. See Hearings on S. 2216, supra note 66, at 45-102.

73. App. F. 72-81.

TABLE 2: DISTRICT COURT DISPOSITION

1. 2. Disposition Percentage of Total Number of Cases

1. Transfer 2.9 55 2. Improper Form 1.2 23 3. Failure to Exhaust 37.1 704 4. Procedural Defect 3.2 61 5. Denied-No Claim 15.1 286 6. Denied-Merits 41.8 794 7. Granted in Part 1.4 27 8. Ordered Released 1.7 33 9. Dismissed with Consent 2.1 39

10. Other 10.8 204

Source: App. F. 72·81



(1) Exhaustion of Remedies and Duplication of Effort

The very nature of the exhaustion doctrine suggests that duplication of effort occurs because petitioners are directed to present their individual claims to a state tribunal prior to presenting them to a federal habeas court. Thus, duplication of review potentially occurs in every case. In the cases studied, however, 37.1 % of the petitions were denied for failure to exhaust remedies, so the federal habeas court did not review the merits of these petitions and no duplication was observed dur-

o ing the course of the Study for these cases. In the normal course of events, one of three possibilities will obtain for these petitioners. First, some of the petitioners who had been denied the federal writ for failure to exhaust will also fail to receive state relief and will return to federal court. For these petitioners, duplication of effort will occur. Second, some of the petitioners, exhausted by the ordeal, may not, after being denied relief in state court, return to federal court. Third, some petitioners, however few, may receive the relief they seek in their return trip to state court. In the last two categories of petitioners who have been initially denied the federal writ for failure to exhaust, no duplication will have occurred.

The extent of duplication is probably less than the exhaustion data seem to indicate. Some of the 60.0% of cases heard on the merits may not have involved duplication for two reasons. First, petitioners can meet the exhaustion requirement without obtaining prior stateOreview when state review is no longer available.74 Second, some federal circuits permitted petitioners to present unexhausted claims to the federal habeas court if exhausted claims were also raised, a procedure which decreased the potential for duplication, but which was invalidated after this Study was completed by the Supreme Court's decision in Rose v. Lundy.75 The peti-

The high rate of dismissals on exhaustion grounds is consistent with the results of the Shapiro study which documented such dismissals in 45.9% of its cases. Shapiro, supra note 4, at 333·34.

74. See supra note 62. 75. 455 U.S. 509 (1982). The Court in Rose held that a district court must

dismiss habeas petitions containing both exhausted and unexhausted claims. 1<1. at 522. Justice O'Connor, writing for a divided Court, stressed the need to promote comity and to minimize burdens placed on the federal courts. 1<1. at 518·20. The likely effect 9f the Court's decision in Rose will be an increase in the extent of duplication of effort for habeas petitions filed since the conclusion of this Study. Prior to Rose, however, some federal circuits would review a petition presenting an unexhausted claim if an exhausted claim was also presented. Compare Conner v. Auger, 595 F.2d 407, 413 (8th Cir. 1979) (reversing the district court's denials of an unexhausted claim and an interrelated exhausted claim) and Gonzales v. Stone, 546 F.2d 807, 810 (9th Cir. 1976) (absent special circumstances the court will not address the merits of any issue until the available state remedies are exhausted as to every issue) with Miller v. Hall, 536 F.2d 967, 970 (1st Cir. 1976) (error for district court to refuse to hear exhausted claims unrelated to unexhausted claim) and United States ex reL Levy v. McMann, 394 F.2d 402, 404 (2d Cir. 1968)



tioners studied often advanced multiple grounds for relief and those with prior state post-conviction review included more grounds than those without such review.76 Thus, some of the multiple claims receiving federal habeas review might not have been raised in state court but might have been considered exhausted because they were joined with claims which were raised in state court.

(2) Prior State Review as an Indicator of Duplication of Effort

As previously noted, the exhaustion requirement can be met even in the absence of prior state review, but duplication cannot occur in the absence of prior state appellate or post-conviction review.77 Thus, the Study's data on prior state review may indicate the parameters within which duplication occurred. More than two-thirds of the petitioners studied had sought state appellate review of their convictions.78 Approximately 44% had filed at least one state habeas corpus petition before seeking the federal writ.79 In total, 71.8% of the petitioners had pre-

(dismissal of entire petition improper when unexhausted claims frivolous or unrelated to exhausted claim). Several factors support the refusal to hear such "mixed" petitions. The refusal stems from comity which allows state courts the opportunity to correct violations of federal law in state convictions and to dispose of petitions without having to defend habeas actions in federal courts. See Gonzales v. Stone, 546 F.2d at 809. The rule augments the role of state courts in the application of federal law and heightens their appreciation of the same. Id. Federal

.courts also fear that hearing exhausted claims may interfere with subsequent state review of unexhausted claims and will allow state courts to review the federal court decisions. See id. Furthermore, hearing the exhausted claims encourages fragmentary appeals, see id., and thereby increases burdens on the federal courts. Id.

The decision to hear the exhausted claims stems from considerations of fairness to the petitioner and allegiance to the spirit of the habeas statutes. Therefore, when the refusal would cause undue delay, or where a reasonable explanation exists for the failure to raise the unexhausted claims previously, fairness dictates that the exhausted claims be considered. See Gonzales, 456 F.2d at 810. The petitioner's interest in obtaining a prompt adjudication of his exhausted claims may outweigh the judicial interest in considering all the grounds in one petition. Before Rose, some courts reasoned that a district court has erroneously proceeded to consider the merits of the exhausted claims and comity will not be served by the appellate court's refusal to hear the claims, the merits should be determined. Carothers v. Rhay, 594 F.2d 225, 228-29 (9th Cir. 1979); Galtieri v. Wainwright, 582 F.2d 348, 362 (5th Cir.), rehearing denied, 587 F.2d 508 (5th Cir. 1978). The courts also reasoned that a refusal to hear claims offended an obligation not to severely limit the scope of the habeas statute. See id. at 404, citing Sanders v. United States, 373 U.S. at 43.

76. App. X.652. 77. See supra note 62. 78. App. F.21. 79. App. F.22. The number of prior state petitions reported in the Study for

an individual petitioner was based on a comparison of the number alleged by the



viously obtained either state appellate or post-conviction review,80 so the potential for duplication was present in that large majority of cases.

Many of these cases with state review did not involve duplication, however, because they were not heard on the merits. Although 71.8% of petitioners with prior state review would be expected to meet the exhaustion requirement and relitigate claims raised in state court, 27.4% of petitioners with state appellate review and 31.2% with state postconviction review failed to meet the exhaustion requirement.81 Thus, many petitioners who sought state review prior to seeking the federal writ raised different or additional claims before the federal habeas court. In such cases, duplication did not occur during the Study. The presence of this significant number of unexhausted claims with prior state review suggests that these petitioners did not avail themselves of the opportunity to raise all of their federal claims in state court before seeking the federal writ. With respect to the exhaustion requirement, they did not utilize state courts efficiently. As noted above, after another opportunity to present their claims to state tribunals, these petitioners may return to federal court. Whether the federal habeas review will duplicate the state review will depend on whether the petitioners seize that .opportunity. Moreover, even where petitions survived the exhaustion requirement, duplication did not necessarily occur, for the reasons previously discussed.82

(3) Evidentiary Hearing as an Indicator of Duplication of Effort

A federal habeas court exercises its broadest power to review, and to duplicate, a state decision when it engages in factfinding. The most visible form of factfinding in a habeas court is an evidentiary hearing. Redetermination of factual issues in an evidentiary hearing is permitted when, among other reasons, the record does not support the state's factual determination or the state's determination was tainted by an error of constitutional magnitude.83 Thus, in holding an evidentiary hearing, the federal habeas court may relitigate a factual dispute previously litigated in state court. Evidentiary hearings are also required, however, when the state court did not develop the facts or resolve the factual dispute through a factfinding process that passes constitutional scrutiny.54 In such cases the federal habeas court does not duplicate state

petitioner and the number alleged in the state's answer. Thus, the figure represents only an estimation. Habeas petitions and other forms of collateral relief were considered state petitions.

80. Apps. F.21, 22, X.473. 81. Apps. F.74, X.236. 82. See supra text accompanying notes 74-76_ 83. See supra note 67; LaVallee v. Della Rose, 410 U.S. 690, 694-95 (1973). 84. See 28 U.S-C. § 2254(d)(1)-(d)(3), (d)(5)-(d)(7) (1976).



factual findings because the state did not previously determine the facts adequately. The data, however, do not distinguish among the reasons for holding an evidentiary hearing.

To the extent that duplication of effort occurs in the form of evidentiary hearings, it occurs infrequently. Federal habeas courts held evidentiary hearings in only 2.6% of the cases studied.85 This low incidence of evidentiary hearings suggests that federal habeas courts exercise restraint because of the comity interest or because the state factfinding processes were perceived as complete and adequate. These data indicate that, although duplication of effort probably occurs in many cases, it occurs infrequently in the form of federal factfinding.

(4) The Utility of the Statutory Scheme in Satisfying Policy Interests

Criticism of the procedure established by the habeas statutes must be tempered by recognition of the values it serves.56 Although the achievement of a policy goal such as comity cannot be demonstrated

85. App. F.48-61.

TABLE 3: INCIDENCE OF HEARINGS

TYPE OF HEARING BY MAGISTRATE BY DISTRICT COURT 1 2 3 4 5 6

# Cases % Hrgs. O,b Total # Cases % Hrgs. % Total Cases Cases

1. Evidentiary 9 33.3 .5 39 33.0 2.1 2. Argument 6 22.2 .3 21 17.8 1.1 3. Combination 3 11.1 .2 10 8.5 .5 4. Unknown Nature 2 7.4 .1 11 9.3 .7 5. Conference 5 18.5 .3 25 21.2 1.3 6. Other 2 7.4 .1 12 10.2 .6 7. Total 27 99.9 1.5 118 100.0 6.3

Source: App. F.48-61.

Evidentiary hearings occurred relatively more often in some districts. During the period of the Study, the Eastern District of Pennsylvania alone conducted 25.6% of the evidentiary hearings held in all the districts studied. Four other districts accounted for an additional 66.8% of the hearings held. App. X.202.

The incidence of hearings, particularly evidentiary hearings, was considerably lower than expected. Professor Shapiro found that in the District of Massachusetts magistrate or district court hearings occurred in 38.0% of the cases studied. Shapiro. supra note 4, at 336. Between 27.8% and 34.0% of those hearings were evidentiary. Id. The lower incidence of hearings in the present Study is difficult to explain because the habeas caseload remained at fairly constant levels during the 1970·s. See supra note 2.

None of the district court hearings occurred in a case in which a magistrate had already conducted a hearing so the overall incidence of evidentiary hearings is 2.6%. See Table 3 supra.

86. See supra text accompanying notes 61-65.



empirically, the data relating to prior state review suggests that the exhaustion requirement serves comity well. Overall, federal habeas courts granted relief in only 3.2% of the cases studied.87 This low incidence of "reversals" coupled with the high percentage of petitions with prior state review suggests that states had the opportunity to review most federal claims and that the state's decision was usually sustained.

The data do show, however, some possible undermining of comity. Of petitions considered on the merits, those with prior state habeas review obtained relief more often (4.6% of cases) than those without such review (3.8%).88 The reasons for the increase are obscure. Although previous state review might arguably facilitate the federal habeas court's con-

87. App. F.72-81. 88. Apps. F.21, 22; X.233-37. As the table below shows, petitions with state

appellate review or one state habeas petition succeeded more often, in 2.6% and 2.6% of the cases, than those without such review, in 1.8% and 2.0% respectively. The increase in success could be attributed, however, to the ability of petitions with some prior state review to meet the exhaustion requirement. Consistent with this explanation. petitions with prior state appellate or post-conviction (habeas) . review were denied on exhaustion grounds at a lower rate. 27.4% and 31.2% respectively. than those without such review. 47.5% and 38.9% respectively. The figures to which the text refers, however, are controlled for the effect of exhaustion because they include only cases heard on the merits. Yet even the controlled figures reveal a higher success rate among petitioners with prior state habeas review. Although prior state post-conviction review correlated with increased success in cases heard on the merits, state appellate review correlated with a decrease in success from 4.7% to 4.2%. The success rate of those with prior state appellate review was equal to the success rate of the general population considered. 4.2%. There is no apparent explanation for the different effects of prior appellate and post-conviction review.

The table below summarizes this data.

TABLE 4: TYPE OF STATE REVIEW BY DISTRICT COURT AND APPELLATE DISPOSITION

TYPE DISTRICT COURT APPELLATE COURT OF REVIEW

1. 2. 3. 4. 5. 6. 7. % Total Success OAl Heard Success Rate of oAl on °Al Success

Population Rate On Merits # Heard on Merits Exh. Total Rate

1. App. Rev.· (100.0) (2.4) (55.4) (4.2) (32.4) (100.0) (12.2) 1a. Yes 67.4 2.6 60.9 4.2 27.4 91.5 12.0 lb. No 14.8 1.8 37.7 4.7 47.5 6.7 18.2 1c. Pending 5.3 1.0 33.4 3.0 55.6 1.8 0.0

2. Postconv. (100.0) (2.2) (53.5) (4.2) (35.4) (100.0) (13.3) 2a. None 55.8 2.0 50.0 3.8 38.9 52.7 11.4 2b. 1 Plus 44.2 2.6 55.5 4.6 31.2 47.4 15.5 2c. 2 Plus 20.9 2.2 56.2 3.8 28.8 15.4 17.4 2d. 3 Plus 10.4 1.5 57.2 .8 26.8 7.4 9.1

Source: Apps. F.21. 22; X.173. 176; 233·37. ·Other and data not available not shown.



sideration of the petition by generating an expanded record which details the state's factual and legal findings, the presence of an expanded record does not necessarily favor the petitioner. The record could also support the state court's position by convincingly demonstrating its reasoning.

By granting relief and invalidating state court determinations more often when the state had reviewed a case than when it had not, federal habeas courts increase tension. The increase in the success rate, however, was very slight (0.8%). It does little to alter the basic conclusion that state determinations are seldom reversed and that the requirement of prior state review does promote comity. This conclusion indicates that wholesale elimination of the exhaustion requirement would seriously injure federal-state comity. Selective, partial elimination of the requirement in cases in which comity would not be impaired might achieve a reconciliation between comity and efficiency. For example, disregarding the requirement for petitions clearly without merit89 would serve the interest of the state. The federal habeas court's ultimate disposition in such cases, denial of the writ, would affirm the prior state court decisions. The proposal would avoid time-consuming exploration of the petition's procedural history and would spare the petitioner another futile round in state court. Disregarding the requirement when state precedents would make further state review futile,9o however, would undermine comity. The ultimate federal court decision, granting the writ, would reverse the state precedent. Comity would seem to require that the state be given the opportunity to reconsider the pre~edents before being preemptively reversed by a federal court. The data show, however, that reversals were relatively infrequent among petitions heard on the merits.91 Thus, the negative effect on comity would be minimal. Unfortunately, the benefit derived from the proposal would also be minimal.

The low incidence of relief granted by federal habeas courts suggests that broad federal review of prior state decisions is an inefficient expenditure of federal judicial resources. In most cases the federal habeas court duplicates not only the state review but also the state decision regarding the validity of the conviction. Although this general criticism seems warranted, the data indicate that it is not warranted when federal courts engage in factfinding in the form of evidentiary hearings. Rather, evidentiary hearings seem to promote justice by revealing violations of federal or constitutional law. A sample of petitions heard on the merits enjoyed a success rate of 7.1 %. But 29.4% of those cases that received an evidentiary hearing in federal court and 25.0% of those that received a

89. See supra note 71. 90. Id. 91. App. F.72-81. See supra text accompanying note 87.



magistrate evidentiary hearing obtained relief, far exceeding the overall rate.92

The dramatic increase in success among petitioners receiving evidentiary hearings may result from the procedural context in which the hearings occur. A federal habeas court may only order an evidentiary hearing when it perceives some defect or omission in the state's factfinding or in the state's factfinding procedure.93 Having made such a finding, the court may conceivably be more sympathetic to the petitioner's claim. The federal court might also use the case to alert state lawmakers to the deficiencies in the state's criminal justice processes. To the extent that courts conduct evidentiary hearings only in cases that present a colorable legal claim and a triable issue of fact, the higher success rate is probably a function of the court's own screening process.

Reformers seeking to reduce the duplication of state factfinding by federal habeas courts have proposed that state courts perform any factfinding that federal habeas courts deem necessary.94 If accompanied by the same preconditions currently in force, shifting factfinding to the state courts should continue to promote the interest in justice that federal factfinding serves. The proposal to remand evidentiary hearings, however, will not greatly conserve federal resources because so few hearings are held.95 Moreover, the proposal's ostensible deference to state interests requires additional decisions by a state court at the behest of a federal court.96 The factfinding demands would interrupt state court schedules.

92. Apps. F.72; X.467, 683-702. The claim's ability to survive the exhaustion requirement does not explain this increase. The figures in the text reflect only success among claims heard on the merits.

93. See supra note 67. 94. See supra note 72. 95. See supra note 85. 96. The data in the table below indicate that this burden would fall unevenly

on the states inasmuch as the number of evidentiary hearings varied among districts.

TABLE 5: COURT CONDUCTED EVIDENTIARY HEARINGS AND SUCCESS BY DISTRICT

1. 2. 3. Total Evidentiary Hrgs. Successful Petitions

District # % Cases # 0,0 Hearings # % District 0,0 Total

1. 7th Cir. C.A. 106 ( 5.6) 6 (15.4) 13 (12.3) (21.6) 2. E.D. Pat 236 (12.4) 10 (25.6) 8 ( 3.4) (13.3) 3. D.N.J. 176 ( 9.3) 6 (15.4) 3 ( 1.7) ( 5.0) 4. E.D. Va. 527 (27.7) 8 (20.6) 9 ( 1.7) (15.0) 5. N.D. Ill. 219 (11.5) 6 (15.4) 19 ( 8.7) (31.7) 6. C.D. Ca. 564 (29.7) 2 ( 5.1) 7 ( 1.2) (11.7) 7. S.D. Ca. 71 ( 3.7) 1 ( 2.6) 1 ( 1.4) ( 1.6)

Total 1899 (99.9) 39 (100.1) 60 ( 3.2) (99.9) Source: Apps. F.l, X.262, 202.



But the low incidence of hearings indicates that the demands would be minimal and could be easily accommodated by the state court system. The increased respect and finality accorded state court decision making would promote comity.

B. Time Limitations on Habeas Filings

Another procedural obstacle confronting the petitioner is a time limitation on the filing of federal habeas petitions. The limitation established by Rule 9(a) operates on equitable principles, not as a statute of limitations.97 The rule is analogous to the doctrine of laches and permits the court to dismiss a petition if the delay in filing has prejudiced the state's ability to respond.98 In determining prejudice the court holds the petitioner to a standard of reasonable diligence.99 A finding of prejudice may be disregarded, however, when a change of law or fact has occurred or when justice so dictates. loo The rule's flexibility enables a federal court to balance the interests of the petitioner with the interests of the federal and state courts in deciding whether to hear a particular case.

97. See RULE 9(a), Advisory Comm. Note. Federal habeas relief is available under 28 U.S.C. § 2254(a) only to petitioners in custody pursuant to a state court judgment. In recent years, the Supreme Court has liberally construed custody to include constraints associated with bail, parole, and probation and has expanded the period during which a prisoner may apply for federal relief. Jones v. Cunningham, 372 U.S. 236, 241 (1963). This expansion of the concept of custody has enlarged the time period in which a petitioner may apply. The application may thus arise before or several years after conviction. The table below shows that fewer than 10.0% of the claims filed come from petitioners in these "expanded" types of custody.

TABLE 6: CONV. TO FILING INTERVAL TYPE OF CUSTODY

Custody 1. Prison After Conv. 2. Prison Before Conv. 3. Parole 4. Probation 5. No Custody 6. Mental Inst. 7. On Bail 8. Other Source: Apps. X.S38-45; F.25.

1. % Total

87.1 3.7 0.3 0.7 0.5 1.2 1.5 1.8

2. Interval (days)

1043.5 736.8

2315.8 1071.2 1933.0 1031.6 674.5 882.6

3. Interval (years)

2.8 2.0 6.3 2.9 5.3 2.8 1.8 2.4

98. RULE 9(a). Habeas corpus has traditionally been governed by equitable principles. United States ex TeL Smith v. Baldi, 344 U.S. 561, 573 (1953) (Frankfurter, J., dissenting). Among them is the principle that a party's conduct may bar relief. Fay v. Noia, 372 U.S. 391, 438 (1963). The equitable doctrine of laches, as embodied in the rule, bars recovery when the petitioner's unreasonable delay has prejudiced the state's ability to respond. Mayola v. Alabama, 623 F.2d 992, 999 (5th Cir. 1980), ceTt. denied, 451 U.S. 913 (1981).

99. RULE 9(a) Advisory Comm. Note. 100. Id.



Prior to the enactment of the rule, commentators had feared that petitioners would file claims after delays of many years, placing the state at a great disadvantage in responding to the petition, and, if necessary, retrying the petitioner. Responding to that perceived problem, commentators proposed a variety of discretionary and mandatory time limitations. lol Recently, proposals for a mandatory three-year. or one-year statute of limitations have been renewed. lo2 The section will consider the necessity and probable effect of such time limitations.

(1) Necessity of a Mandatory Time Limitation

The habeas rules create the possibility of lengthy delay between conviction and filing for the writ, but such delay rarely occurs. Although the interval between conviction and filing of habeas petitions in the Study extended up to fifty-three years, the average interval was 2.8 years. IOS

101. In a few cases these fears were realized. See Hawkins v. Bennett. 423 F.2d 948. 951 (8th Cir. 1970) (remanding for an evidentiary hearing 44 years after conviction). In McMann v. Richardson, 397 U.S. 759. 773 (1970). on remand sub. nom. United States ex reI. Richardson v. McMann. 340 F. Supp. 136 (S.D.N.Y. 1971), afl'd. 458 F.2d 1406 (2d Cir. 1972). three state criminal defendants. convicted after pleading guilty. attempted to collaterally attack their guilty pleas several years later in habeas petitions. Vacating the circuit court's order for a hearing on the issue of the guilty pleas. the Supreme Court registered its concern with the burdens borne by states. noting that the issue was not the integrity of the state convictions obtained on guilty pleas. but "whether. years later. defendants must be permitted to withdraw their pleas. which were perfectly valid when made. and be given another choice between admitting their guilt and putting the State to its proof." Id.

Various proposals were made in response. E.g .• Desmond. Symposium: Habeas Corpus-Proposals for Reform. 9 UTAH L. REV. 18 (1964) (remarks of Charles Desmond). Judge Desmond advocates a statutory provision prohibiting the filing of a habeas petition more than 5 years after a state court conviction. Pro· fessor Shapiro supports the establishment of a time limit. 6 months or a year. measured from the date the state judgment becomes final. Shapiro, supra note 4, at 360. Similarly. Judge Weick suggests a habeas filing limit of 60 days after the petitioner has exhausted state remedies or the state judgment becomes final. whichever is later. Weick. supra note 17. at 751. One commentator has argued that the federal courts should be permitted to determine whether the petitioner's failure to file a petition within a reasonable time constitutes an abuse of the process. See Doub. supra note 1. at 328.

102. See infra notes 105-06 and accompanying text. 103. App. F.149. 169.

The data tend to be misleading because of the practice in some jurisdictions of not filing petitions until a magistrate has rendered his determination or the district judge has prepared the order. Where possible the Study estimated the delay involved and adjusted intervals accordingly. Also. the average interval from notice of appeal to appellate disposition for rows 3 through 8 in Table 7. infra. do not include appeals taking over 2-3 years because only a 2 year period was studied. The figures for the court of appeals. in row 2. for that interval should be the most accurate.



About half of the petitioners studied had filed within three years, about 60.6% had filed within five years, and about 70.0% within ten years.IOt

Thus, despite fears of long delays, most petitioners filed within a few years of conviction.

(2) The Effect of Mandatory Time Limitations

Even though a time limitation on habeas filing may not be necessary, the recent renewal of limitation proposals calls for an analysis of their probable effect. One proposal advocates a three-year limitation running from the date the state court judgment and sentence become "final."lo5 A second proposal would establish a one-year limitation running from the

TABLE 7: INTERVALS BY DISTRICT

District Intervals (in days) 1. 2. 3. 4. 5. 6. 7.

Conv. Fil. to Delay Rec. Adjusted Mag. Reed. Notice App. Fil. to to Fil. Disp. to Fil. Int. to D.Ct. to CA Disp. Fin. Disp.

Dis!!. 1. Overall 1045 139 16.1 28 311 214 2. 7th Cir. 1175 291 305 609 3. E.D.Pa. 1213 101 43 117 4. D.N.J. 1296 227 46 273 5. E.n. Va. 766 99 21.8 121 80 338 214 5a. ·Alex. 669 44 16.1 60 345 138 5b. -Rich. 675 156 27.9 184 79 322 228 5c. -NorC. 870 82 22.6 105 225 342 248 6. N.D. III. 1333 193 10.7 204 55 223 237 7. C.D. Cal. 1062 123 12.1 115 9 224 142 8. S.D. Cal. , 872 101 14.8 116 423 207 Source: Apps. F.169-74. X.474-91.

There is no apparent explanation for why the intervals varied among districts. The districts at the extremes do not consistently handle the types of cases which involve abnormally long or short intervals. The Eastern District of Pennsylvania, for example, received 33.3% of all petitions challenging parole decisions, App. X.16, which were generally associated with longer intervals from conviction to filing, App. X.566. Yet, this district did not report an abnormally long filing interval. Table 7 supra. Petitioners with retained counsel, who experienced an average conviction-to-filing interval, Apps. F.170-72; X.546-52, are overrepresented in the Eastern District of Virginia which had a shorter interval. Table 7 supra. District court dispositions of dismissals with consent are similarly over-and under-represented in the "wrong" districts. Apps. F.72-81; X.263; C.170-71.

104. App. F.149. 105. The period of limitation would run from the date the state conviction and

sentence became final or the date an applicable federal right became established. Several commentators noted that by having the limitation period run from "final" judgment, the measure could bar claims for which state remedies could not be exhausted within the period. See Hearings on S. 659 Before the Subcomm. on Courts of the Senate Comm. on the Judiciary, 97th Cong., 1st l?ess. at 47, 141, 179-80 (1981) (statements of Jim Smith, Stephen Gillers, and Larry W. Yackle respectively) [hereinafter cited as Hearings on S. 659]. Both proposals evoked criticism because of problems which were unrelated to the timing of the proposed limitation and are not treated here. See S. 653, supra note 67.



date state remedies are exhausted.108 If the petition is premised on the occurrence of certain specified events, such as the discovery of new evidence or the pronouncement of a new federal right, both proposals would mark the beginning of the time period from that event. The former proposal, by running from final judgment, poses the danger that the limitation period will expire before a petitioner can exhaust state remedies.

Judgment generally is "final" when it is entered. The data indicate that state court remedies are exhausted after an average interval of 2.8 years. During the Study, petitions were considered on the merits after an interval of 2.8 years or longer. Petitions denied for failure to exhaust remedies were filed an average of 2.5 years after conviction.lo7 If, as the data suggest, exhaustion requires more than two and one-half years, a three-year time limitation running from entry of judgment would allow little, if any, time to file for the federal writ. If the exhaustion of a petitioner's state remedies requires more than the average interval, the expiration of the time limitation may bar his petition before he can file it.

If the limitation period begins to run from the point of exhaustion of remedies, as in the latter proposal, this problem would be eliminated. But, because exhaustion of remedies requires an average of 2.5 to 2.8 years, the problem of delay and stale evidence would not be eliminated. The three-year statute of limitations in the former proposal, altered to run from exhaustion of remedies, would permit delays of almost six years. Under current filing patterns, about 35.1% of the petitions are filed beyond that period of time. A one-year statute of limitations would result in a total conviction to filing interval of four years. Under current filing patterns, about 42.5% of petitions are filed beyond that time. lOS

Thus, the adoption of either of these limitations would reduce delay in a substantial number of cases.

This conclusion must be qualified, however, in two respects. First,

106. The Justice Department has recently proposed a one-year limitation period running from the time that state remedies are exhausted, that a state legal impediment to filing is removed, that a federal right is established, or that the factual basis of a claim should have been discovered. See S. 2216. supra note 66; Hearings on S. 2216. supra note 66. at 71·82.

107.

TABLE 8: CONV. TO FILING INTERVAL BY DISPOSITION 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Improper State Denied Denied Denied Granted Re· Dismissed Transfer Form Rem. Proc. Noel. Merits In Part Released w/consent Other

1. Interval (days) 918.4 1970.0 910.0 1319.0 999.4 1062.0 986.3 1237.0 840.0 1432.6

2. Interval (years) 2.5 5.4 2.5 3.6 2.7 2.9 2.7 3.4 2.3 3.9

Source: App. X.564·81.

108. App. F.149-51.



the data do not show the number of petitions that raised a new right or new evidence. Some petitions may have been entitled to a longer interval from conviction to filing under the proposals. Second, because some petitioners attacked denials or conditions of parole, the actions of which they complained did not occur until well after conviction became final. 109 The average conviction to filing interval in such cases was 6.0 years. l1O The time of a parole denial is institutionally determined so the petitioner may not be able to file his habeas petition within a shorter interval. The data do not indicate the number of parole denials or similar cases contained in the group filed beyond the time limitations. To the extent that the delays in those cases are institutionally caused, they cannot be reduced. Therefore, unless the date of final judgment or exhaustion lll is construed to include the date that state deci.sions regarding parole and other conditions of release become exhausted, the mandatory time limitation would undermine the interest in justice and fairness.

109. The table below summarizes the claims raised by petitioners. Among the petitions studied, 13.4% presented claims arising after conviction.

TABLE 9: NATURE OF CLAIMS PRESENTED

Claim 1. Attack on Conviction 2. Challenge of Sentence 3. Prob. of Parole Rev. 4. Condo of Confinement 5. Delay 6. Excessive Bail 7. Parole Denial B. Improper Appeal Proc. 9. Other

10. Total Claims

Source: App. F.B3·91.

1.

Number 1270 254 lOB 101

91 62 46 43

250 2225

2. % of Total Cases

Including the Claim 66.9% 13.4°,t, 5.7% 5.3% 4.B°,t, 3.3% 2.4°,t, 2.3%

13.2% 100.0%

The incidence of attacks on convictions, Table 9, was greater than the incidence found in the Massachusetts study, 56.8%. See Shapiro, supra note 4, at 329-30.

110. App. F.25.

TABLE 10: CONV. TO FILING INTERVAL BY NATURE OF CLAIM

Nature of Claim

1. Attack Conv. 2. Challenge Sent. 3. Imp. Appel. Proc. 4. Excessive Bail 5. Conds. Confinement 6. Prob. or Parole Revoc. 7. Parole Denial 8. Delay 9. Other Source: Apps. F.83-91. X.492·96.

111. See supra notes 105-06.

1. Interval

(days)

1032.4 1143.7 886.0 449.4

1050.5 98B.1

2172.7 117B.0 958.9

2. Interval (years)

2.8 3.1 2.4 1.2 2.9 2.7 6.0 3.2 2.6



Overall, the proposed statutes of limitations could reduce filing delays in a substantial percentage of cases. As the data indicate, however, the limitations would permit delays of up to six years, by which time the majority of petitions are already filed. Moreover, some claims involve inherent delay and must be accommodated by the proposals.

C. Successive Filing of Federal Habeas Corpus Petitions

The traditional refusal of federal courts to apply the doctrine of res judicata to a denial of the federal writ ll2 has permitted habeas petitioners to inundate the federal courts with successive petitions. Judicial reluctance to apply the doctrine in the federal habeas context is rooted in the interest in vindicating constitutional rights.1I3 Although the doctrine still does not apply in habeas, courts have the discretion to dismiss successive petitions that fail to allege new grounds when the prior determination was on the merits. They can also dismiss a petition that raises additional grounds the petitioner failed to raise in his prior petition, when that failure constitutes an abuse of the writ.ll4 The courts' discretionary

112. Kelly, Finality and Habeas Corpus: Is the Rule that Res Judicata May Not Apply to Habeas Corpus or Motion to Vacate Still Viable?, 78 W. VA. L. REV. 1,2-3 (1975) (discussing federal petitioners). See Brown v. Allen, 344 U.S. 443, 458 (1953). The common-law rule developed when petitioners could not appeal denials of habeas relief but could address later petitions to any judge willing to listen. Id. at 16. The Supreme Court has rejected this change in circumstances as a rationale for applying the doctrine to habeas cases:

It has been suggested ... that this principle derives from the fact that at common law habeas corpus judgments were not appealable. But its roots would seem to go deeper. Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged .... The inapplicability of res judicata to habeas, then, is inherent in the very role and function of the writ.

Sanders v. United States, 373 U.S. 1,8 (1963) (discussing § 2255 cases). 113. See Fay v. Noia, 372 U.S. 391, 401-02 (1963). 114. 28 U.S.C. § 2244(b) (1976) provides:

When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United States or a justice or judge of the United States release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ of habeas corpus in behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ. and unless the court. justice. or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.



power is grounded in the equitable principles traditionally governing federal habeas corpus and allows the ,courts to balance the interest in justice with the interest in finality and conservation of resources. Because of the perception that petitioners engage in endless litigation, commentators have proposed a mandatory joinder of claims provision which would bar applications after a denial of the writ on the merits.1l5 The discussion below seeks to estimate the extent to which successive petitions impair finality and efficiency interests and to determine the extent to which the mandatory joinder proposal would provide a remedy.

(1) Extent of Successive Filing

Despite the discretionary limitation on successive filing, the data show that successive petitions still form a substantial portion of the federal habeas caseload. Of the petitioners studied, 30.6% had previously applied for federal habeas relief on at least one occasion, and 12.8% had filed two or more petitions.116 The presence of these additional petitions consumes federal resources and injures finality interests, but the injury inflicted may not be as great as the numbers alone would suggest. The data must be discounted because some of the prior denials of the writ may not have been on the merits. Unfortunately, the Study's data do not show the nature of the prior dispositions.

Rule 9(b) was promulgated after this statute became effective and codifies the rule applied to successive petitions. See Sanders v. United States, 373 U.S. at 15. It provides:

A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

115. E.g., Weick, supra note 17, at 750-51. Judge Weick suggests that after petitioners have had one adequate opportunity to present a habeas petition, barring their subsequent applications would not deprive them of an opportunity to litigate their federal claims fully and fairly in a federal court. He proposes that any claims not presented should be deemed waived, and that federal courts should not have jurisdiction to consider them in subsequent applications. Judge Weick would allow an exception relating to new evidence. fd. at 748-51. See also Doub, supra note 1, at 327 Oinking any compulsory joinder requirement with appointment of counsel).

116. App. F.23. The incidence of successive petitions was much greater than that found in the earlier Massachusetts study. Only 8.9% of the petitioners studied there had filed previous federal petitions. Shapiro, supra note 4, at 353. Professor Shapiro noted, however, that only 1.20Al of the petitions followed prior habeas decisions on the merits which raised or could have raised the issues raised in subsequent petitions. His finding corroborates the conclusion that relitigation does not occur in a substantial number of instances. fd.



It is clear, however, that few successive petitions fall into the category which threaten federal interests by being repetitive or abusive. Of the successive petitions filed only 5.8% were dismissed for failure to allege new grounds and no petitions were dismissed for abuse of the writ.l17 The low incidence of such dismissals suggests that the majority of petitioners raise additional grounds for relief in subsequent applications. Again, this conclusion must be qualified since the percentage of petitions previously denied on the merits and, therefore, within the court's discretionary power to dismiss, is unknown. The conclusion is consistent, however, with the data which show that successive petitions generally contained more grounds for relief than first petitions. us The inference arises that petitioners who had previously filed habeas petitions were familiar with the habeas procedures, particularly the rule requiring that new grounds be alleged in subsequent applications. Consequently, petitioners generally included additional grounds in their successive petitions to forestall dismissals for failure to allege new grounds.

(2) Mandatory Joinder as a Remedy

The joinder provision advocated by some commentators would bar successive petitions after a denial of the writ on the merits. The substantial number of successive petitions currently filed suggests that the reform would significantly reduce the burden on federal resources. The

117. Of the petitions filed, 556 were successive. App. F.23. Only 32 petitions, or 5.80,b of successive filings, were denied because they were repetitious. App. C.182.

The Table below summarizes the data on such denials for each district studied.

TABLE 11: DENIALS FOR FAILURE TO RAISE NEW GROUNDS BY DISTRICT

1.

Districts #Denied

(Strict) 1. E.D. Pa. 1 2. D.N.J. 1 3. E.D. Va. 13 4. C.D. Ca. 9

(Lenient) 5. N.D. Ill. 1 6. S.D. Ca. 7 7. Total/(Overalll 32

Source: Apps. C.182. Table C2; X.8-11. 261-63. 1. 118. Apps. F.22. X.652.

2. 3. % Denials

for Rate of Failure Denial to Raise for

New Grds. District

3.1 .4

3.1 .6 40.6 2.5 28.1 1.6

3.1 .4 21.9 9.8 99.9

4.

% Total

.05

.05

.7

.5

.05

.4

1.8



data indicate, however, that one sub-group of successive petitions would not be eliminated because the exhaustion requirement seems to cause some successive filing.

The courts observed during the Study were divided into districts which strictly enforced the requirement and denied over 30% of their petitions for failure to exhaust state remedies and districts which were lenient and denied fewer petitions on exhaustion grounds.1l9 Strict observance of the exhaustion requirement coincided with an increase in successive habeas petitions!20 Moreover, petitioners who had filed successive petitions in either federal or state court tended to file successive petitions in the other forum. 12l Although only 19.6% of the petitioners who received no state review filed successive federal petitions,

119. The Districts for Eastern Pennsylvania, New Jersey, Eastern Virginia {Alexandria and Norfolk Division),·and Central California maintained a strict exhaustion policy. The Seventh Circuit of the Court of Appeals and the Districts of Eastern Virginia (Richmond Division), Northern Illinois and Southern California maintained a lenient policy.

TABLE 12: DENIALS FOR FAILURE TO EXHAUST STATE REMEDIES BY DISTRICT

7th ED D ED Va. ED Va. ED Va. ED Va. ND CD SD Cir. PA NJ Alex. Rich. Norf. Total III. Cal. Cal.

D,b Denied 12.3 45.3 42.6 40.5 27.2 41.6 36.4 21.5 45.0 22.5

Source: App. X.261-63. 120. App. X.65B. Strict districts had relatively more successive filers and

relatively fewer procedurally defective filers than lenient districts. fd. 121. .

TABLE 13: RELATIONSHIP OF SU.cCESSIVE STATE AND FEDERAL FILING

Federal Petitions State 1. 2. 3. Petitions First Successive Total

1. None 713 174 887 1a. (D,b row) (80.4) (19.6) (100.0) lb. (D,b column) (64.4) (36.7) (56.1)

2. One 217 145 362 2a. (D,b row) (59.9) (40.1) (100.0) 2b. ("AI column) (19.6) (30.6) (22.9)

3. Two + 178 155 333 3a. ("AI row) (53.5) (46.5) (100.0) 3b. ("AI column) (16.0) (32.7) (21.0)

4. Totals 1108 474 1582 4a. (70.0) (30.0) (100.0) 4b. (100.0) (100.0) (100.0)

Source: App. X.447.

Although the data reveal this positive correlation between successive state and federal petitions, the data do not show the number of successive federal petitions attributable to the exhaustion requirement.



40.1 % of those with one state petition and 46.5% of those with two or more state petitions filed successive federal petitions. Similarly, only 16.0% of first-time federal filers had filed successive state petitions, but 32.7% of successive federal filers had received successive state review.122

These data are consistent with the conclusion that petitioners denied the federal writ on exhaustion grounds sought state relief and, if denied there, returned to federal habeas court to press their claims. To the extent that successive federal applications stem from the exhaustion requirement, a joinder provision would. not eliminate them.

The major rationale for permitting successive filing is that justice should be done in each case. The proposed reform poses the danger that petitioners will be barred from raising meritorious claims in subsequent applications because of negligent or inadvertent failure to join them initially. The data indicate, however, that the danger is minimal. Successive petitions were less likely to succeed than initial federal petitions. Although initial petitions succeeded in 3.0% of cases, petitioners filing their second petitions succeeded at a rate of 2.1 %. Among petitioners who had filed two previous petitions, the success rate dropped to 1.6%.123 Thus, they were frequently not claims which required relief.

Several factors may contribute to the low success rates of successive federal petitions. First, the cumulative effect of prior state and federal denials may heighten a court's skepticism about the merits of a petition. Second, because successive habeas petitions were generally presented after a longer delay than initial petitions, the federal courts may have been reluctant to grant relief because of the increased difficulty in retrying the petitioner on stale evidence. Third, this reluctance might stem from an assessment of the inequity of forcing the state to defend its disposition when the petitioner has already presented his claim or had the opportunity to do so. Fourth, habeas petitioners would naturally present their strongest claims in their first petitions, and the passage of time may strengthen their resolve to gain release by raising other, weaker claims. Even though the filing of the successive petition does not constitute abuse, the district court may suspect that the petitioner somehow misused his opportunity to have his claims reviewed in federal court.

122. See Table 13, supra note 121. 123.

TABLE 14: SUCCESSIVE PETITIONS BY DISPOSITION Total 0 1 2 3 4

1. # of Claims 2149 1482 381 123 70 93 a. % of Claims 100.0 69.0 17.7 5.7 3.2 4.3

2. # Successful 54 44 8 2 2a. % Succ. Rate 2.5 3.0 2.1 1.6

3. # Not Stating Claims 281 188 53 15 6 19 3a. % No Claim Rate 13.1 12.7 13.9 12.2 8.6 20.4

Source: App. X.230-32.



Fifth, the data indicate that the likelihood that only frivolous claims are contained in a petition increases with successive petitions. While only 12.7% of initial petitions failed to state a claim, 20.4% of petitions filed after four federal petitions failed to state claims.124 Regardless of the reason for the lower success rate among successive petitions, the decrease suggests that the elimination of successive petitions through a joinder requirement would not undermine justice to the extent previously suspected.

D. Federal Habeas Corpus Appellate Review

The procedures governing appellate review of district court habeas decisions are designed to promote justice by permitting appeals in meritorious cases while reducing interference with state courts created by frivolous appeals.125 To screen frivolous appeals out of the process, the rules require that a petitioner must obtain a certificate of probable cause before taking an appeal from a denial of the writ.126

124. See Table 14, supra note 123. 125. The habeas statute makes every final habeas order subject to appellate

review. See 28 U.S.C. § 2253 (1976). But the procedures surrounding the appeal seek to prevent abuse consisting of undue interference with the states by protracted proceedings in frivolous cases. United States ex reL Winfield v. Cascles, 403 F. Supp. 956, 959-60 (E.D.N.Y.1975). See United States ex reL Carey v. Keeper of Montgomery County Prison, 202 F.2d 267, 268 (3d Cir. 1953); United States ex rel. Siegal v. Follette, 290 F. Supp. 636, 637 (S.D.N.Y. 1968).

126. 28 U.S.C. § 2253 (1976). The procedure is detailed in Federal Rule of Appellate Procedure 22(b) which provides:

In a habeas corpus proceeding in which the detention complained of arises out of process issued by a state court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of probable cause. If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of probable cause or state the reasons why such a certificate should not issue. The certificate or the statement shall be forwarded to the court of appeals with the notice of appeal and the file of the proceedings in the district court. If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit judge. If such a request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate. If no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals. If an appeal is taken by a state or its representative, a certificate of probable cause is not required.

"Probable cause" is not defined in the habeas statute or rules and the courts have applied varying standards. Compare United States ex rel. Stewart v. Ragen, 231 F.2d 312, 314 (7th Cir. 1956) (substantial question) and United States ex rel.


c


The certification requirement burdens both petitioners and the district and appellate courts. To appeal an adverse decision the petitioner must first request a certificate from the district court that rendered the adverse decision. l27 If that court denies the certificate, the petitioner must request a certificate from the circuit court and, failing there, from the Supreme Court justice assigned to the circuit. His final resort is to petition for a writ of certiorari from the Supreme Court.128 The district court and other courts to which a request for a certificate is addressed must expend substantial resources to hear the request. If the district judge denies the request, he must commit the reasons for the denial to writing and forward the statement to the circuit court.l29 If the certificate of probable cause is issued at one stage, the circuit court must hear the merits of the petitioner's claim. ISO

Critics argue that because the costs of the probable cause requirement outweigh its benefits, the requirement should be abolished.131 The discussion below assesses the burdens placed on the federal courts by appeals from federal habeas corpus decisions generally, and by the probable cause requirement specifically. Further, it evaluates the performance of the probable cause procedure in its goal of deterring frivolous appeals.

(1) Extent to Which Appellate Procedure is Utilized

The data collected by the Study indicate that the burdens imposed by the procedures governing appeals were substantial. Of the unsuccessful petitioners, 39.2% applied to the district courts for probable cause certif-

Jones v. Richmond, 2415 F.2d 234, 234 (2d Cir.J (requiring federal questions adequate to deserve encouragement to proceed further), cert. denied, 355 U.S. 846 (1957) with Poe v. Gladden, 287 F.2d 249, 251 (9th Cir.1961) (certificate shows opinion of judge that issue not plainly frivolous). There is little difference among these standards. Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1972); Beller v. Clausen, 484 F. Supp. 217, 218 (E.D. Wis. 1980).

127. See FED. R. App. P. 22(b). 128. [d. 129. [d. 130. Garrison v. Patterson, 391 U.S. 464, 466 (1968). 131. See, e.g., Weick, supra note 17, at 751. One Senate bill proposed that

petitioners take appeals from the final judgment of a habeas proceeding only when the court of appeals issued a certificate of probable cause. See S. 567, supra note 1 at 2221. Judge Weick supports a similar alteration which would require petitioners to file within 10 days in the court of appeals for leave to appeal. The court would grant leave whenever a substantial question was present. Weick, supra note 17, at 751. See also Doub, supra note I, at 328 (suggesting that if other reforms prove unsuccessful, adoption of the English system under which appeals from habeas denials are not available should be considered). The Justice Department recently revived the proposal to abolish the requirement that a petitioner must request a probable cause certificate from the district court. But the Department's proposal would require such a certificate from the circuit court. S. 2216, supra note 66.



icates.132 The district court limited the burdens imposed by those cases by refusing to certify 85.9% of them.l33 Not all of those denied certificates by the district court abandoned their efforts at that level. Of those denied, 42.6% pursued appeals despite the district court's denial,134 The circuit court bore the cost of hearing probable cause requests in those cases. At the conclusion of the Study, it had granted only 6.7% and denied 42.8% of the requests received. The remainder were pending. l35 Accurate screening by the district courts may explain the lower rate of certification by the circuit court.

Certificates of probable cause granted at the various levels resulted in appeals in 26.1 % of the cases studied. l38 Interestingly, the states contributed disproportionately to the appellate caseload. The state appealed adverse decisions at a higher rate, 41.7%, than petitioners, 21.7%.137 The procedural obstacles confronting the habeas petitioner easily explain the difference between these two rates of appeal. Although a petitioner must obtain a probable cause certificate, a state need not obtain one to appeal a grant of the writ. Further, if the district judge finds the appeal frivolous, he may require the petitioner to prepay filing fees and costS.l38 Inasmuch as many petitioners proceed pro se and many in forma pauperis, the appeal procedures and possible costs may deter petitioner appeals. The lack of procedural requirements may increase a state's willingness to burden the federal circuit court with an additional appeal, but it also minimizes that burden by obviating the need for a probable cause determination.

132. The cases summarized in rows 2 through 5 of Table 15 below are those in which certification was requested from the district court.

TABLE 15: DISTRICT COURT CERTIFICATION DECISIONS

Certifica tion 1. None/No App. 2. Den/No App. 3. Den/App. 4. Grt/App. 5. Grt/No App. 6. Govt. App. 7. None/App. 8. Inter/App. 9. Other

Source: App. F.139.

1. # of Petitions

923 371 275 102

4 25 73 6

39

2. % of Petitions

49.0 19.7 14.6

5.4 0.2 1.3 3.9 0.3 2.1

133. Id. Of the 752 certification requests, the district court denied 646, or 85.9%.

134. Id. 135. App. F.141. 136. App. F.139. 137. App. F.72·81, 139. 138. YACKLE, supra note 57, at §§ 161·62.



To the extent that the length of time that appeals remain pending reflects the burden that each petition places on the circuit court, the data suggest that the burden is considerable and far outweighs the burden imposed by the petitioner on the district court. Overall, an average of 4.6 months elapsed between the time a petitioner filed for habeas relief and the time a district court rendered a final decision.!39 When the petitioner or the state appealed the district court's determination, an average of 10.4 months elapsed between filing a notice of appeal and the appellate court's final disposition.140 It should be noted that petitions which were successful in obtaining relief from the circuit court consumed the greatest amount of time. Petitions ultimately granted in whole or in part on appeal remained pending for 15.5 and 15.0 months, respectively, both longer than the average filing-to-final disposition intervals.!4! The requirement that the circuit court hear the merits of a petitioner's appeal once probable cause has been granted may account for the delay. The results of appellate review notwithstanding, both the percentage of district court decisions appealed and the time taken to decide the appeals indicate that appeals imposed a substantial burden on the federal court system.

(2) Evaluation of the Operation of the Probable Cause Requirement

The goal of the appellate process might be best characterized as promoting justice by hearing and remedying meritorious claims that were improperly denied by a lower court. The data indicate that the process achieved that goal in part, but that the probable cause requirement did not assist that achievement. Overall, at the conclusion of the Study, the circuit court had granted the writ at a higher rate, in 9.2% of appeals, than the district courts, in 3.2% of cases. It had denied relief in 48.7% of the appeals and remanded 5.9%.142 The higher rate of success is not surprising because the procedures are designed to present only meritorious claims on appeal.

The data suggest that appellate court resources are expended to review issues which arguably should be authoritatively decided for the lower courts. Review of the merits of a petitioner's claim forecloses the assertion of the claim in a subsequent petition and promotes the state's interest in finality. The habeas appellate caseload is disproportionately composed of appeals from decisions on the merits. Although the overall rate of appeals was 26.1 %, petitioners took appeals from 38.4% of denials on the merits; the state appealed 48.0% of decisions to release the peti-

139. App. X.173. 140. [d. 141. App. X.576-77. 142. App. F.142, 72-81.



tioner; and 69.5% of grants of partial relief were appealed.143 The composition of the appellate caseload did appear to be attributable in some degree to the requirement of a certificate of probable cause. The highest rate, 57.1 %, of requests for certification from petitioners and the largest portion of certifications, 10.4%, occurred in petitions denied on the merits. 144 District courts were least likely to grant certification to claims denied for failure to exhaust remedies.145

Despite its contribution to the presence of appeals from decisions on the merits, the district court certification procedure did not effectively identify meritorious appeals or deter non-meritorious appeals. The data indicate that the certification requirement had a slight deterrent effect which partially offset its costs. The Study's data on appellate procedure were based on 450 petitioners, of whom 348 (72.3%) had not received certificates of probable cause from the district courts. Petitioners denied certification represented 85.9% of the petitioners who had requested certification but only 57.1% of the petitioners actually appealing.u6 Thus, denial of certification did deter the filing of some habeas appeals. As the appellate dispositions below show, however, it was by no means an effective deterrent. When the district court had granted a certificate of probable cause, petitioners' rate of success was 10.2%, but when the district court had denied the certificate, petitioners' success rate increased to 17.9%.147 Because the circuit court had already disagreed with the district court and found probable cause in the latter cases, the appellate court may have accorded less deference to the district court decision. For whatever reason, the district courts do not seem to be the best equipped fora to decide whether a petitioner's claims will be meritorious in the

143.

TABLE 16: APPEALS AND PC DECISION BY DIST. CT. DISPOSITIONS 1.

District Court Disposition

Appeal Rate

1. Transfer 2. Improper Form 3. St. Remedies 4. Proc. Defect 5. No Claim 6. Den. Merits 7. Part Relief 8. Released 9. Dismissed

w/Consent 10. Overall

·Excluding interlocutory appeals. Source: Apps. X.258·60. F.139.

of Disp. 0.0 4.3

16.1 20.6 23.3 38.4 69.5 48.0 0.0

26.1

144. See supra note 143. 145. Id. 146. See App. X.173.

2. 3. 4. Certif. Certif. Grant % of Requests

Request Rate Rate of Disp. Granted 0.0 0.0 0.0 8.6 0.0 0.0

42.4 1.8 4.2 31.0 1.7 5.6 35.8 3.6 10.0 57.1 10.4 18.3 13.0 13.0 100.0 0.0 0.0 0.0 2.9 7.3 17.4

41.4 14.1



eyes of the circuit court. The increase in the success rates of petitions denied district court certification suggests that abolition of the district court procedure would benefit the petitioner and the district courts. Although the appellate courts would then hear all probable cause requests, they already hear about half of the requests denied by the districts. Thus, the overall burden on the federal system would be reduced.

III. THE ROLE OF MAGISTRATES IN FEDERAL HABEAS CORPUS

With its enactment of the Federal Magistrates ActUS in 1968, Congress established the federal magistrate system to relieve the district courts of the "burgeoning numbers" of habeas corpus petitions!49 Under the Act, the district courts received the power to delegate specified duties to magistrates 150 and to assign through local court rules certain additional duties to magistrates. 151 These additional delegable duties included "preliminary review of applications for post trial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing."l52 In

147.

TABLE 17: APPELLATE DISPOSITION BY DISTRICT COURT PROBABLE CAUSE DECISION

Dist. Ct. PIC Decision

1. Certif. Denied la. (row "Al) lb. (column "Al)

2. Certif. Granted 2a. (row"Al) 2b. (column "Al)

3. Total 3a. (row "Al) 3b. (column "Al)

Source: App. X.437.

Appellate Disposition on Merits 1. ~

Appeal Denied Appeal Granted 32 7 (82.1) (17.9) (34.4) (50.0)

61 (89.7) (65.6)

93 (86.9)

(100.0)

7 (10.3) (50.0)

14 (13.1)

(100.0)

3. Total

39 (100.0)

(36.4)

68 (100.0)

(63.6)

107 (100.0) (100.0)

148. Pub. L. No. 90-578, 82 Stat. 1108 (1968) [hereinafter cited as Pub. L. No. 90-578] (current version at 28 U.S.C. §§ 631-639 (1976 & Supp. V 1981)).

149. See S. Rep. No. 371, supra note 1. It was hoped that qualified, experienced magistrates would acquire expertise in examining and summarizing these petitions for the district judges, thereby facilitating the judges' decisions. Id.

150. Pub. L. No. 90-578, supra note 148, § 636(a) (codified at 28 U.S.C. § 636(a) (1976)) (administering oaths; imposing conditions of release in non-capital cases; taking acknowledgements, affidavits, and depositions; and conducting trials of minor offenses).

151. Pub. L. No. 90-578, supra note 148, § 636(b)(3). 152. Id. § 636(e). Other enumerated duties delegable to magistrates included

serving as a special master, and conducting pre-trial hearings and discovery proceedings.ld. § 636(b)(1}-(2). The range of delegable duties was expanded in the 1976 amendments to the Act. See infra notes 153 & 174 and accompanying text. See also



amendments to the Act enacted after the Study, Congress authorized district courts to promulgate local rules empowering magistrates to hold evidentiary hearings/53 but precluding the district courts from delegating entire classes of cases to magistrates.1M

A. The Nature and Extent of Magistrate Involvement

The Study revealed that magistrates played an important role in the habeas process. In many of the districts surveyed, magistrates assumed responsibility for receiving and filing habeas petitions, obtaining and reviewing state court records, conducting evidentiary hearings, drafting opinions, and recommending findings of fact and conclusions of law. Most notably, magistrate involvement in the review of a habeas case made a significant difference in how the district court ultimately treated a petitioner's claims. The discussion below explores the nature and extent of magistrate involvement and its influence on the district courts' treatment of prisoner petitions.

(1) Variation in Magistrate Involvement Among District Courts Observed

Although magistrates were involved in 62.3% of the district court habeas cases studied/55 the incidence of magistrate involvement varied

H.R. REP. No. 1629, 90th Cong., 2d Sess. 11-12, reprinted in 1968 U.S. CODE CONGo & AD. NEWS 4252, 4254-55. It recognized, however, that the previous system of United States commissioners was not suited to the needs of the politically sensitive and legally challenging process of federal collateral review of state convictions. Congress had set no specific qualifications for commissioners, and almost one-third of them were not lawyers. Id. at 13, 1968 U.S. CODE CONGo & AD. NEWS at 4256. The Federal Magistrates Act of 1968 replaced the fee system used to compensate commissioners with a salary system. Id. at 11, 1968 U.S. CODE CONGo & AD. NEWS at 4254. It also made the magistrates' function more professional by limiting magistrates' outside employment, 28 U.S.C. § 632 (1976), providing for tenure and removal only upon cause, id. § 631(h), and requiring that magistrates take the same oath as that taken by federal judges, id. § 631(f) (1976) (referring to 28 U.S.C. § 453, which provides the oaths for justices and judges).

Recent amendments to the Act place more stringent qualifications on magistrates. The Federal Magistrate Act of 1979, Pub. L. No. 96-82, 93 Stat. 643 (1979) (amending 18 U.S.C. § 3401 (1976) and 18 U.s.C. §§ 631, 633-636 (1976 & Supp. II 1978)) [hereinafter cited as 1979 Act]. The 1979 Act requires that magistrates have been members of the bar of the highest court of their state for at least five years prior to their appointment. 28 U.S.C. § 631(b)(1) (Supp. V 1981). It also mandates merit selection of magistrates and authorizes the Judicial Conference of the United States to set standards for appointments and reappointments. Id. § 631(b)(5).

153. Act of Oct. 21,1976, Pub. L. No. 94-577, 90 Stat. 2729 (current version at 28 U.S.C. § 636(b)(1) (1976 & Supp. V 1981) [hereinafter cited as 1976 Act].

154. 1979 Act, supra note 152. 155. App. F.9. For an excellent overview of the nature and frequency of



widely among the districts surveyed. At one extreme, the Central District of California, which had the heaviest caseload of the districts observed, assigned 96.4% of its cases to magistrates.156 One of the judges from this district expressed a preference for handling prisoner petitions personally, but he indicated that the district's reliance on magistrates was a necessary response to its growing caseload.157 Four full-time magistrates handled 89.0% of the prisoner petitions in the Eastern District of Pennsylvania, where all but two of the twenty-two sitting judges used magistrates to handle habeas cases. ISS The Norfolk Division of the Eastern District of Virginia assigned 85.1 % of its habeas cases to magistrates. ls9 The division preferred magistrates to law clerks because the clerks did not stay with the court long enough to develop substantial expertise in handling the petitions.16o The District of New Jersey had the services of one magistrate who handled 25.6% of its habeas cases. Judges in that district handled cases alone only when the magistrate could not assist them.161

At the other extreme, the Southern District of California never assigned habeas cases to magistrates.!62 A judge from this district explained that the district's policy did not reflect any distrust of the magistrates' legal abilities but only the judges' personal desires to take particular care with prisoner petitions. l63 Because the district had the

magistrate activity and a discussion of how magistrate assignments could be s'tructured. see Cooley. Designing an Efficient Magistrate Referrals System: The Key to Coping with Expanding Federal Caseloads in the 1980's. 1 CIVIL JUSTICE Q. 124 (1981).

156.

TABLE 18: DISTRICT BY NATURE OF MAGISTRATE INVOLVEMENT

Court

E.D. Pa. D. N.J. E.D. Va., Alex. E.D. Va .. Rich. E.D. Va., Norf. N.D. Ill. C.D. Calif. S.D. Calif. 7th Cir.

oro of Cases oro of Decided Involving Cases in Which

Magistrates Magistrate Made Recommendations

89.0 87.7 2~6 25~

0.1 0.0 70.0 22.2 85.1 0.0 0.9 0.9

96.4 97.9 0.0 0.0 4.7 4.7

% of Cases in Which

Magistrates Held

Hearings

2.1 0.0 0.0 2.2 0.0 0.0 3.2 0.0 0.0

Comments of Judge Ferguson. App. A.139-40.

Oro of Cases in Which

Court Held Hearings

9.7 8.5 4.3 7.9 1.8

11.4 1.2

16.7 25

157. 158. Comments of Magistrate Naythans. App. A.78. 79. 81. See supra note

156. 159. See Table 18. supra note 156. 160. Comments of Judge Hoffman. App. A.113-16. 161. Comments of Magistrate Devine. App. A.87. See supra note 156. 162. See Table 18. supra note 156. 163. Comments of Chief Judge Schwartz. App. A.145-46.



smallest habeas caseload of the districts surveyed, its judges could freely indulge this desire. IM The Northern District of Illinois seldom (0.9% of its cases) used magistrates in its review of habeas petitions.165 A judge from that district stated that he assigned habeas cases to his junior law clerks who thoroughly reviewed each petition.166 Similarly, the Eastern District of Virginia, Alexandria Division, assigned only 0.1 % of its habeas petitions to magistrates.167 One of the division's judges who assigned habeas cases to law clerks expressed a preference for personally overseeing the review of the prisoner petitions.16s

The variation among district courts in their reliance on magistrate assistance is sanctioned under the current federal judicial administrative system. Although the Judicial Conference assesses each district's need for magistrates, magistrates are appointed only upon the concurrence of a majority of the judges in each district.169 A majority of judges in each district also determines the breadth of the magistrate's role through the promulgation of local rules. 170 Each district retains, therefore, a considerable measure of autonomy in deciding how it will meet its habeas workload.

(2) The Magistrate's Role in Factfinding- Conducting Hearings

In the districts that relied extensively on magistrate assistance, a pro se or staff clerk usually reviewed a petition to make sure that the prisoner had filed in the proper district and had included all the necessary information. l7l The clerk then forwarded the petition to the magistrate who handled cases for the judge to whom the case had been assigned. Of the cases district courts assigned to magistrates, and for which magistrates were responsible for filing a report of proposed findings of fact and conclusions of law with the court, 63.1 % were assigned in the initial stages of the habeas proceeding.172 In only 5.2% of their cases were magistrates assigned a habeas petition at a later stage of the proceedings in the district court.173

Although the Study began after Congress explicitly authorized magistrates to hold habeas hearings,174 such hearings occurred infre-

164. See Table 1, supra note 8. App. F.1. 165. See Table 18, supra note 156. 166. Comments of Judge Will. App. A.129-31. 167. See Table 18, supra note 156. 168. Comments of Judge Bryan, Jr. App. A.93-94. 169. See 28 U.S.C. §§ 631(a), 633 (1976 & Supp. V 1981). 170. RULE 10. 171. Comments of George Miller, Clerk for Prisoner Filings in the Eastern

District of Pennsylvania. App. A.77. 172. App. F.34. 173. App. F.35. 174. See 1976 Act, supra note 153. Congress also revised the Rules to make



quently. Magistrates conducted fewer hearings (2.3% of all cases assigned to them)175 than the district courts held (6.2% of all cases).176 The overall frequency of hearings in district courts employing magistrates was 7.5%.177

Evidentiary hearings were the most common type of magistrate hearing, comprising 33.3% of all magistrate hearings.178 In 22.2% of their hearings, magistrates heard legal argument,179 and in 11.1 % of their hearings they both received evidence and heard argument. ISO Another 18.5% of the magistrate hearings were, in essence, conferences, limited to discussion of the factual and legal issues raised by a petition. lSI

Under Rule 8(b)(1), a district court may designate on a case-by-case basis its magistrates to conduct evidentiary hearings. The magistrates must submit their proposed findings and recommendations for disposition to a judge of the court. Although evidentiary hearings are a timeconsuming part of the habeas process, the district courts rarely delegated this task to magistrates. Therefore, the incidence of district court hearings did not decline significantly when the court relied on magistrates to assist in its review of habeas petitions. Those districts that made little or no use of magistrates conducted hearings in 7.3% of their habeas cases, while those that relied on magistrates held court hearings in 5.1% of their habeas cases.IS2 When court hearings were analyzed by district, however, deviations from the overall frequency of district court hearings (6.2%), became more pronounced. Some district

them consistent with the amendment. Act of Sept. 28·, 1976, Pub. L. No. 94-426, 90 Stat. 1334 (codified at 28 U.S.C. § 2254 (1976)).

The 1976 Act, supra note 153, was a direct response to the Supreme Court's narrow construction of the basic habeas corpus jurisdictional statute, 28 U.S.C. § 2243, in Wingo v. Wedding, 418 U.S. 461 (1974). The Court invalidated a district court rule that had authorized magistrates to hold evidentiary hearings in habeas proceedings. [d. at 477. The district court had promulgated the rule pursuant to the Federal Magistrates Act, which permitted the delegation of additional duties not inconsistent with the Constitution or the laws of the United States. See supra note 151 and accompanying text. The Supreme Court held that the district's delegation of authority to conduct evidentiary hearings was inconsistent with the jurisdictional statute, 418 U.S. at 466, which requires that in habeas proceedings "courts ... hear and determine the facts." 28 U.S.C. § 2243 (1976) (emphasis added). The Act was revised in 1976 to allow district judges to delegate to a magistrate any additional duties "[nJotwithstanding any provision of law to the contrary," 28 U.S.C. § 636(b)(1) (1976), including factfinding and recommending dispositions in habeas cases, id. § 636(b)(1)(B).

175. App. F.33, 49-54. 176. App. F.55. 177. App. X.703. 178. App. F.49. 179. App. F.50. 180. App. F.51. 181. App. F.53. 182. App. X.202-03. See also Table 18, supra note 156.



courts that relied on magistrates extensively in the habeas process did indeed hold hearings less frequently than the average. The Central District of California, in which magistrates handled 96.4% of all cases, held court hearings in only 1.2% of its cases. Similarly, the Norfolk Division of the Eastern District of Virginia, in which magistrates handled 85.1 % of the habeas caseload, held court hearings in 1.8% of its cases. Conversely, some district courts with minimal magistrate involvement held hearings more often than average. The Southern District of California, which had no magistrate cases, held hearings in 16.7% of its cases. The Northern District of Illinois, in which magistrates handled 0.9% of the habeas caseload, conducted court hearings in 11.4% of its cases. l83

There were, however, notable exceptions to this pattern. Although magistrates handled 89.0% of the habeas cases in the Eastern District of Pennsylvania, that court held hearings in 9.7% of its cases.184 The judges in that district generally preferred to hold their own hearings.18s The Eastern District of Virginia, Alexandria Division, rarely delegated habeas cases to magistrates (0.1 % of its cases) but held hearings in only 4.3% of its cases, below the average rate of 6.2%.186

Although some district court judges seemed to prefer to hold hearings themselves, the Study shows that the burdens on judicial time could be alleviated by delegating more hearings to magistrates. Hearings represent one of the most expensive and time-consuming burdens on the federal habeas courts. Some commentators have suggested that increasing magistrates' responsibilities in the habeas factfinding process would be the easiest way to reduce the overall burden of prisoner petitions.187

Because the Rules already allow district courts to expand the role of magistrates, this "reform" would not require any change in the current law. The next section will explore some of the impediments that may have interfered with effecting this reform.

(3) Legal Explanations for the Limited Role Magistrates Played in Conducting Hearings

Several factors explain the district judges' apparent reluctance to delegate more factfinding responsibility to magistrates. First, the Rules, which expanded and defined the scope of the magistrates' jurisdiction in

183. See Table 18, supra note 156. 184. Id. 185. Comments of Judge Ditter. App. A.82. 186. See Table 18, supra note 156. 187. See, e.g., Chisum, In Defense of Modern Federal Habeas Corpus for

State Prisoners, 21 DEPAUL L. REV. 682, 700 (1972) (recommending that magistrates playa greater role in handling prisoner petitions); Note, Proposed Reformation of Federal Habeas Corpus Procedure: Use of Federal Magistrates, 54 IOWA L. REV. 1147, 1158 (1969) (recommending that magistrates be permitted to hold hearings and make final decisions).



habeas cases, became effective only seven months after the commencement of the Study. The courts and magistrates may have been adjusting to their new roles while the data collection for the Study was still in process. Second, although Rule 8(b)(1) provides that a district court may designate a magistrate to conduct hearings, Rule 8(a) requires that a district judge decide in each case whether a hearing is necessary. Further, Rule 8(b)(4) requires district judges to make de novo determinations of any magistrate finding to which a party objects. After taking the time to review a case to determine the necessity of a hearing, district judges may simply hold the evidentiary hearing at that time to avoid a later, additional step in the review process.

Doubts concerning the constitutionality of delegating factfinding responsibility to magistrates may also have inhibited the frequency of magistrate hearings. If, for example, Rule 8(b)(4)'s de novo determination provision actually requires a judge to rehear testimony in every case, magistrate hearings would not save the courts any time. If, however, courts may review the magistrates' findings without rehearing testimony, some time savings would result, but a substantial amount of final adjudicatory power would rest in the hands of non-Article III personnel.188

Although Rule 8(b)(4) empowers the district judge to accept, reject, or modify all or some of the magistrate's findings, until the Supreme Court decided United States v. Raddatz,189 some commentators had believed that the requirements of Article III would be violated unless the judge actually reheard the testimony.190

During the period of the Study, the district judges had no authoritative Supreme Court pronouncement on exactly what a de novo determination entailed or whether Article III required them to rehear the testimony on which a magistrate had based his findings of fact. Although the Supreme Court has still not addressed these issues in the habeas context, it has spoken to them in the context of a pretrial magistrate hearing for a motion to suppress illegally obtained evidence.

188. The United States Constitution provides that "[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in office." U.S. CONST. art. III, § 1. This provision supposedly ensures a higher standard of justice by guaranteeing the impartiality of the federal judiciary and its independence. Magistrates are entitled to neither life tenure nor irreducible compensation. The Supreme Court has reserved the question whether habeas hearings conducted by magistrates violate the requirements of Article III. Wingo v. Wedding, 418 U.S. 461, 467 n.4 (1974). See infra notes 195-200 and accompanying text.

189. 447 U.S. 667 (1980). 190. See generally Tushnet, Invitation to a Wedding: Some Thoughts on

A rticle III and a Problem of Statutory Interpretation, 60 IOWA L. REV. 937 (1975); Note, Article III Constraints and the Expanding Civil Jurisdiction of Federal Magistrates: A Dissenting View, 88 YALE L.J. 1023 (1979). .



In Raddatz, the Court held that even when a magistrate's findings of fact rest heavily on a judgment of the credibility of a witness, neither the Federal Magistrates Act's provision of a de novo court determination nor Article III of the Constitution requires a district judge to rehear testimony.191 The Court reasoned that the Act did not violate Article III because the entire proceeding took place under the supervision and control of the district court.192 The Court characterized the magistrate's findings, not as final decisions, but rather as recommendations that the district judge could freely accept, reject, or modify.193

The Court's reasoning in Raddatz should apply with equal force to magistrate evidentiary hearings in habeas proceedings, which also involve a delegation of factfinding responsibility. Other factors which obviously influenced the Raddatz Court, such as the deference due Congress as a constitutional lawmaker and the need to alleviate the overcrowding of the federal dockets, also support the validity of delegating to magistrates responsibility for making findings of fact and recommendations for dispositions in habeas cases.194 Raddatz, therefore, should remove any doubts concerning the role of magistrates in the habeas process,195 and may result in an increased delegation to magistrates of responsibility for holding evidentiary hearings.

191. 447 U.S. at 673-76. The Raddatz Court relied on explicit evidence of congressional intent indicating that the district judge would ultimately determine any matters delegated to a magistrate and that the judge's fresh consideration of a matter did not require a second hearing on the contested issues. Id. at 675-76. See H.R. REP. No. 1609, 94th Cong., 2d Sess. 3-4, reprinted in 1976 U.S. CODE CONGo & AD. NEWS 6162, 6163. A judge's power to modify or reject a magistrate's findings, to take new evidence, to recall witnesses, or to remand the matter to the magistrate for further proceedings remains plenary. Id.

192. 447 U.S. at 681. 193. Id. at 680. 194. See id. 195. Raddatz lays to rest a significant controversy over the constitutional

validity of the Federal Magistrates Act. Key committee witnesses had testified against the expansive role the original Act would create for non-Article III personnel. See Hearings Before the Subcomm. on Improvements in Judicial Machinery of the Comm. on the Judiciary on S. 9475 and S. 945, 89th Cong., 2d Sess. & 90th Cong., 1st Sess. 130 (1966 & 1967) (remarks of Fred. M. Vinson, Jr .• Asst. A.G .• arguing that dispositive adjudication must be made by an Article III judge) [hereinafter cited as Hearings on S. 945]. The original draft of § 636(b)(3) authorized magistrates to give "preliminary consideration of applications for post-trial relief made by individuals convicted of criminal offenses." S. 3475. 89th Cong., 2d Sess. § 636(b)(3) (1966). The Judicial Conference criticized this draft on the ground that its broad delegation of duties to magistrates raised serious constitutional questions. See Hearings on S. 945. supra at 241j. 241n (Judicial Conference of the United States. Reports of the Committee on the Administration of the Criminal Law (September 1966)).

The Supreme Court avoided the Article III issue in Wingo V. Wedding. 418 U.S. 461. 467 n.4 (1974). in holding that under the statute magistrates could only propose. not hold. evidentiary hearings. Chief Justice Burger. dissenting in Wed-



(4) Magistrates' Proposed Findings of Fact and Conclusions of Law

After conducting a hearing or making findings of fact on the basis of state court records, the petition, and the state's answer, a magistrate is required by Rule 8(b)(2) to file his proposed findings with the court and to mail copies to all parties. Rule 8(b)(3) provides that the parties may then file written objections to the magistrate's proposed findings and recommendations within ten days of receiving their copies. The Study did not collect data on how often a party objected to a magistrate's findings, thereby necessitating a district court judge's de novo determination.196

Magistrates filed recommended findings and proposed dispositions in 55.8% of all the cases studied.197 In 94.7% of their cases, magistrates were responsible for filing reports of their recommendations with the district court. 198 Almost every district using magistrates required them to file such reports.199 Only in the Richmond and Norfolk divisions of the Eastern District of Virginia were magistrates involved in a majority of the habeas cases without being responsible for proposing findings of fact and dispositions. The disparity between the frequency of magistrate involvement in the Richmond Division and the portion of the decided cases in which a magistrate proposed findings and dispositions resulted from the district's loss of its magistrate during the course of the Study.200

ding, found no constitutional infirmity in allowing magistrates to conduct evidentiary hearings. 418 U.S. at 486 (Burger, C.J., dissenting).

Commentators criticized Wedding, viewing it as a derogation from the status of magistrates and a frustration of the congressional intent to increase the use of these judicial officers. See, e.g., Note. United States Magistrates: Additional Duties in Civil Proceedings. 27 CASE W. RES. L. REV. 542. 551-52 (1977) (noting incongruities between Wedding. and magistrates' trial jurisdiction for minor offenses and their power to conduct pretrial and discovery proceedings). Professor Tushnet. however. defended Wedding on the ground that courts should narrowly construe a statute involving an allocation of constitutional power to ensure that Congress has made its intent clear. Tushnet. supra note 190. at 966-67.

The controversy recurred during Congress's consideration of the 1979 Act, supra note 152, and after its enactment. Congressmen favoring the Act argued that it did not violate Article III because magistrates remained only adjuncts to the district judges and under their ultimate control. See H.R. REP. No. 287, 96th Cong., 1st Sess. 7-9 (1979); Aug, The Magistrate Act of 1979: From A Magistrate's Perspective, 49 U. CIN. L. REV. 363, 373 (1980). See also McCabe, Federal Magistrates Act of 1979, 16 HARV. J. LEGIS. 343, 369-74 (1979). Congressmen who opposed the Act pointed out that it would allow non-Article III judicial officers to exercise a sensitive and demanding form of Article III power. See H.R. REP. No. 287, supra at 32 (views of Rep. Sensebrenner opposing passage of H.R. 1046, The Magistrate Act of 1979).

196. See supra Part IILA.3. of this Article. 197. App. F.62-71. 198. Compare App. F.9 with App. F.62-71. 199. See Table 18, supra note 156. 200. Comments of Judge Mehrige. A staff law clerk assisted the two judges in

the Richmond division during the later part of the Study. Id.; App. A.I01-106.



The same disparity in the Norfolk Division resulted from that division's practice of having a magistrate draft an opinion for the court's disposition in each habeas case. Because the draft opinion was not a report of findings, the parties could not object to its contents.201

B. Comparison of Magistrate Recommendations and District Court Dispositions

Rule 8(b)(4) gives the district court judge plenary power to accept, reject, or modify all or some of the magistrates' recommendations. The Study revealed, however, that dIstrict judges usually agreed with the magistrates' recommended disposition. The district courts' final disposition of the 1,394 separate claims on which magistrates had made recommendations202 cited the same ground as the magistrates had proposed in 76.9% of their recommendations.203 The district courts agreed with 84.7% of the magistrates' recommendations to deny a claim, although in 12.6% of those cases, the judges disagreed with the magistrates on whether the denial should be on procedural grounds or on the merits. The district courts agreed with 52.0% of the magistrates' recommendations for granting the writ on a given claim. In 68.4% of all cases involving magistrates' recommendations in which the district court granted relief, a magistrate had previously recommended relief.204

"Reversals" of magistrates' recommendations were rare. In only 0.5% of all recommendations, the magistrate recommended granting the

201. Comments of Judge Hoffman. App. A.113-16. 202. Some cases involved more than one recommendation for disposition.

203.

TABLE 19: MAGISTRATE RECOMMENDATION BY DISTRICT COURT DISPOSITION


Magistrate Granted in Recommendation Denied Denied Whole or (no. of claims) Procedural Merits Part Other Row Totals

Denied 80.7% 15.2% O.O°,\) 4.1% 42.0% Procedure (473) (89) (0) (24) (586)

Denied 13.5% 83.3°,\) 0.3% 2.9% 46.3o,\) Merits (87) (537) (2) (19) (645)

Granted In 4.0% 28.0% 52.0°,\) 16.0% 1.8% Whole or Part (1) (7) (13) (4) (25)

20.3% 37.7% 2.9°,\) 39.1% 9.9% Other (28) (57) (4) (54) (138)

42.3o,\) 49.1% 1.4°,\) 7.2% 100.0% Column Totals (589) (685) (19) (101) (1394)

"Other" dispositions included decisions not on the merits or on procedural grounds. such as transfers. Many of the statistics cited in the text do not agree with the figures from Table 19 because "other" dispositions were not included in their computation.

204. See id.



writ for a claim, but the district court denied on the merits.205 Even more uncommon (0.1 % of all recommendations) were cases in which the magistrate had recommended that a claim be denied on the merits, but the district court issued the writ.206

Despite the high rate of agreement between magistrate recommendations and district court dispositions, magistrates tended to be less generous than the district courts in granting relief to prisoners. Magistrates recommended that 90.9% of their district court petitions be denied.207 The district courts ultimately denied relief to 85.4% of all the petitions.208 The magistrates proposed that the district courts grant relief . to 2.2% of petitions filed in cases for which they were responsible for recommending a disposition.2

09 The district courts granted relief to 2.6% of

all the petitions.21o The principal difference between the magistrate recommendations and the district court dispositions occurred in those cases denied for failure to exhaust state remedies. Magistrates recommended that 45.1 % of the petitions they handled be denied for failure to exhaust state remedies.211 The district courts ultimately denied only 36.4% of the petitions on this ground.212

C. Magistrate Influence on Ultimate District Court Disposition: Some Comparisons Between Disposition of Courts With and Without Magistrates

The magistrates' stricter adherence to the exhaustion requirement significantly influenced the disposition of the case by the district courts. District courts with magistrate assistance ("magistrate courts") denied 39.9% of their petitions on procedural grounds, while district courts without magistrate assistance ("non-magistrate courts") turned away 32.0% of their petitions on these grounds.213 As a result of this disparity

205. Id. 206. Id. 207. App. X.227, 229. 208. App. X.672-682. 209. App. X.227, 229. 210. App. X.679, 680. 211. App. X.228. 212. App. X. 220-229_ 213_

TABLE 20: DISTRICT COURT DISPOSITION BY MAGISTRATE INVOLVEMENT

% Denied on % Granted in Magistrate Procedural % Denied Whole or in Involvement Grounds on Merits Part Total YES 39.9 57.9 2.1 63.6 NO 32.0 61.9 6.1 36.4 Total 37.1 59.4 3.6 100

The most important of the procedural grounds was denial for failure to exhaust state remedies. See Table 2, supra note 73.



in attention to procedural requirements, magistrate courts reached the merits of a petition relatively less often and denied fewer petitions on the merits (57.9%) than non-magistrate courts (61.9%).214

Perhaps more interesting, however, was the effect of magistrate involvement on district court grants of relief. Magistrate courts granted relief in only 2.1 % of their petitions, while non-magistrate courts granted relief for 6.1 % of their petitions.215 This surprising 4.0% differential in success rates between the two types of district courts appeared to result largely from the district courts' more stringent attitude toward procedural requirements when magistrates were involved. Because magistrate courts denied more petitions on procedural grounds, they reached the merits of petitions less often. Assuming that the magistrate courts had as many meritorious petitions as the non-magistrate courts, 50% of the extra 7.9% of petitions denied on procedural grounds in magistrate courts would have received relief in non-magistrate courts. This increase helps to explain the 4% difference in success rates. Magistrate involvement decreased a petitioner's chances for success by 65.6%.

Apparently, when magistrates made recommendations to the district courts, the courts often followed them. The magistrate courts, however, went beyond magistrate recommendations and granted fewer writs and denied more petitions than the magistrates had recommended. Magistrates recommended that 42.0% of claims be denied for failure to satisfy procedural requirements, and the district courts so denied 42.3% of the claims.216 The district courts denied 49.1% of claims on the merits, whereas the magistrates had recommended that only 46.3% be so denied. This pattern also held with respect to the granting of relief. Magistrates recommended that the courts grant the writ for 1.8% of claims. The magistrate district courts, however, granted the writ for only 1.4% of claims.217

This pattern provides an interesting contrast with the markedly more generous attitude found in non-magistrate courts.2lB Several possible explanations exist for the petitoners' decreased chances of success in magistrate courts. First, magistrates may have noticed more procedurally defective petitions than the unaided district courts. For claims in which the magistrate pointed out a procedural defect, the district court denied 80.7% on the grounds of that defect.219 Indeed, magistrates may also have raised the level of attention to procedural requirements among district judges to the point where the judges enforced the requirements more zealously than the magistrates had recommended.220

214. See Table 20, supra note 213. 215. [d. 216_ See Table 19, supra note 203. 217. [d. 218. See Table 20, supra note 213. 219. See Table 19, supra note 203. 220. See supra note 216 and accompanying text.



Another possible explanation for the decreased rate of petitioner success and the increased rate of procedural denials among magistrate district courts is that magistrates introduced a greater degree of self-consciousness into the district court judges' consideration of habeas petitions. Because magistrates are trained lawyers who can exercise their independent legal judgment, they may cause the court to take greater care in explaining and justifying its actions. The data did not, however, provide a means to distinguish this hypothesis from the possibility that magistrates are more likely to identify procedurally defective petitions. The Study did discount a third possible explanation: that the granting of fewer writs by magistrate courts resulted from a hostility toward habeas petitions in those districts relying on magistrate assistance. Magistrates reviewed habeas petitions in districts with both low and high overall rates of granting writs.221 No apparent correlation existed between magistrate involvement and a propensity toward granting fewer writs on a district-wide basis.

The more stringent enforcement of procedural requirements in magistrate district courts most severely affected those petitoners who had not filed a prior state petition for collateral review. These petitioners were unlikely to have satisfied the exhaustion requirement, and district courts as a whole denied 40.7% of their petitions for the writ on procedural grounds.222 When magistrates were involved in the courts' handling of these procedurally defective petitions, the rate of procedural denials climbed to 44.0%. When magistrates were not involved, the rate of procedural denials fell to 35.1 %. By contrast, petitioners who had filed one state habeas petition before presenting their first petition to a federal habeas court more often met the exhaustion requirement. Accordingly, the district courts denied the writ on procedural grounds to only 34.5% of

221. Compare Table 18, supra note 156, with Table 5, supra note 96. 222.

TABLE 21: TYPE OF PETITIONER BY DISTRICT COURT DISPOSITION MAGISTRATE INVOLVEMENT

District Court Disposition Type of Magistrate Denied Denied Petitioner Involvement Procedure Merits Granted Total

YES 44.0% 55.2% 0.8% 63.0% Procedurally NO 35.1% 59.2% 5.4% 37.0% Defective (59.9%) 40.7% 56.8% 2.5% 100.0%

YES 34.6% 61.8% 3.7% 67.0% Correct NO 34.30,1, 59.7% 5.9% 33.0% Filer (14.0%) 34.5% 61.1% 4.4% 100.0%

YES 36.8% 60.7% 2.6% 76.1% Repetitive NO 26.9 0,1, 69.2% 3.8% 23.9% Filer (30.1%) 34.5% 62.8% 2.8% 100.0% Source: App. X.601·02.



these petitioners.223 Magistrate involvement made almost no difference in the rate of procedural denials for correctly filed petitions. Magistrate courts denied these petitioners on procedural grounds in 34.6% of their cases, while non-magistrate courts denied these petitioners on this ground in 34.3% of their cases.224

Whether the increased attention to the enforcement of procedural requirements, and particularly the exhaustion requirement, is desirable depends on the weight accorded the competing interests of judicial efficiency, comity, and federalism.225 Magistrate involvement corresponded with an increase in the number of successive filers, who placed great burdens of time and expense on both the state and federal judiciaries. When magistrates participated in the habeas process, 76.1 % of the petitioners were successive filers.226 When there was no magistrate involvement, only 23.9% of the petitioriers were successive filers. Apparently, the higher incidence of successive filers in magistrate courts results from the greater number of petitioners turned away for failure to exhaust state remedies.227 Many of these petitioners returned to the federal habeas courts after unsuccessfully pressing their claims in state courts. Because these petitioners were filing their second federal petition when the data were collected, the Study classified them as successive filers. Stricter enforcement of the exhaustion requirement, a common feature of the district courts with magistrate involvement, decreased judicial efficiency by requiring the state courts to consider many meritless petitions, and by encouraging the petitioner to file another federal habeas petition after having been denied relief in state court.

Judicial economy, however, cannot be the only concern of the federal courts. Although many petitions denied by the more stringent magistrate courts on procedural grounds may have contained claims readily susceptible of decisions on their merits,228 the principles of comity and federalism require that the state courts have an opportunity to correct their errors and to apply the appropriate federal law. Magistrate involvement advanced these principles by focusing greater attention on the ha~as procedural requirements. Although magistrate involvement coincided with a stricter court policy on exhaustion, control over that policy remained in the hands of the district court judges. Ultimate control over

223. See id. The Study classified these petitioners as "correct filers." 224. Id. 225. But see Hearings on S. 659, supra note 107, at 11 (statement of Senator

Chiles, arguing that federalism requires Article III judges to hold evidentiary hearings because factfinding could be the basis for reversing state court judgment). S. 653 would allow magistrates to hold hearings only when the parties consented to the proceeding. See id. at 4-5, 11.

226. Id. 227. See Table 20, supra note 213. 228. See Table 21, supra note 222 and accompanying text.



the continued maintenance of the exhaustion requirement rests in the hands of Congress.229

With the exception of the possible effect of magistrates on increasing the number of successive filers, magistrates reduced the district judges' workload at all points in the habeas process. Magistrates assumed responsibility for preliminary treatment of petitions, evaluated the merits of petitions, held hearings, and proposed factual findings and legal conclusions. In 16.5% of their cases, magistrates drafted opinions for the district judges' disposition of the petition.23o Many judges found that the magistrates facilitated their review by focusing attention on the real issues raised in a petition and by summarizing voluminous state court records.231

Some commentators believe that the present system, if used fully, has the potential to control the "flood" of prisoners' petitions.232 Although most doubts concerning the constitutional validity of the magistrate's role in federal habeas corpus should have been resolved by United States v. Raddatz,233 Congress retains the power to decide how to accommodate the competing demands of efficiency and federalism by its control over the procedural requirements of the habeas statutes.234 How one views the delegation of various duties to magistrates may depend on one's view of the propriety of making a lower tier of judicial officers responsible for the habeas process and on the ability of our society to provide the most qualified personnel to review prisoners' requests for justice.

IV. THE ROLE OF COUNSEL IN FEDERAL HABEAS CORPUS

The most surprising and dramatic finding of the Study was the effect at every stage of the habeas process of the presence of counsel. The

229. In 1981, Congress considered, but did not enact, a bill which would have taken away from magistrates the power to hold evidentiary hearings unless the petitioner consented to proceeding. S. 653, 97th Cong., 1st Sess. § 1 (1981). See supra note 225; infra note 234. At the second session of the 97th Congress, the Reagan Administration proposed a bill which echoed many of the provisions of S. 653, but which would have left the jurisdiction of magistrates unchanged. Hearings on S. 2216, supra note 66.

230. App. F.36. 231. Comments of Judges Ditter and Hoffman. Apps. A.82; A.113-16. 232. See Circo, Habeas Corpus Practice and Procedure: A Proposal for the

Management of Section 2254 Cases in the Federal District Courts, 31 OKLA. L. REV. 914, 921 (1978).

233. 447 U.S. 667 (1980). See supra notes 191-95 and accompanying text. 234. The closing months of the 96th Congress saw the introduction of a bill to

withdraw from magistrates the power to conduct habeas evidentiary hearings. See H.R. 7997. 96th Cong .• 2d Sess. (1980) (sponsored by Reps. Bennett and Chappell). The effort was renewed in the 97th Congress without success. See S. 653. supra note 67. § 1.



Study revealed, for example, significant disparities between the success rates of petitioners with counsel and pro se petitioners. Although the indigent state prisoner seeking federal collateral review of his conviction enjoys no constitutional rights to appointed counsel,235 an empirical view

235. The Supreme Court has never squarely faced this aspect of the right to counsel, but the lower federal courts generally have ruled that a petitioner has no constitutional right to court-appointed counsel in a federal habeas corpus proceeding. See Ardister v. Hopper, 500 F.2d 229, 233 (5th Cir.1974); Plaskett v. Page, 439 F.2d 770, 771 (10th Cir. 1971); Hampton v. Oklahoma, 368 F.2d 9, 12 (10th Cir. 1966); United States ex rei. Marshall v. Wilkins, 338 F.2d 404, 406 (2d Cir. 1964); Floyd v. Su~erintendent, Va. State Penitentiary, 383 F. Supp. 1103, 1105 (W.D. Va. 1974). Cf, Gagnon v. Scarpelli, 411 U.S. 778, 788-91 (1973) (discretionary case·bycase approach to appointment of counsel in parole revocation hearings is not necessarily inadequate to protect constitutional rights). The highest appellate courts of some states, however, have interpreted the Federal Constitution as requiring courts to appoint counsel for prisoners seeking state writs of habeas corpus. See, e.g., Honore v. Washington State Bd. of Prison Terms & Paroles, 77 Wash. 2d 660, 673, 466 P.2d 485, 493 (1970) (relying on the equal protection clause).

Supreme Court treatment of the right to counsel at other stages of criminal proceedings suggests three possible constitutional sources for such a right: the sixth amendment, the equal protection clause, and the fourteenth amendment due process clause. Restrictive decisions involving each of these constitutional provisions, however, have potentially limited their usefulness to the habeas petitioner.

The sixth amendment provides that "[iJn all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence." U.S. CONST. amend. VI. In Gideon v. Wainwright, 372 U.S. 335, 346 (1963), the Supreme Court held that the sixth amendment imposes an obligation on the states to provide counsel to indigents on trial for capital and non-capital criminal cases. The Court later defined this right as attaching at every "critical stage" of a proceeding against the accused. See United States v. Wade, 388 U.S. 218. 224 (1967). A "critical stage" is one in which the rights of the defendant might be adversely affected and counsel could help prevent any such prejudice. Id. at 227. In Kirby v. Illinois, 406 U.S. 682, 690 (1972), the Supreme Court departed from its previous "critical stage" analysis and adhered closely to the language of the sixth amendment, holding that a suspect has no right to counsel at a pre-charge line-up. The Court restrictively interpreted "criminal prosecutions" as marked by "the initiation of adversary judicial criminal proceedings-whether by way of formal charge. preliminary hearing, indictment, information, or arraignment." Id. at 689. Although the Kirby Court did not explicitly define when a criminal prosecution begins or ends, the Court reasoned that a "criminal prosecution" does not begin until the government commits itself to prosecute. Only then is the defendant immersed in the intricacies of substantive and procedural criminal law. Id. at 689-90.

Although habeas petitioners would seem to be similarly immersed in such legal intricacies. they are not likely within the scope of the sixth amendment. A petitioner's claims to a sixth amendment right to counsel in a habeas proceeding would have difficulty surviving the Kirby Court's requirement that, at the very least. a criminal prosecution be underway. Moreover, a habeas proceeding is usually regarded as civil in nature and, therefore, not within the scope of sixth amendment guarantees. See Dorsey v. Gill. 148 F.2d 857. 877 (D.C. Cir.) (habeas corpus is a civil proceeding and so the sixth amendment does not apply), cert. denied, 325 U.S. 890 (1945). But see Smith v. Bennett, 365 U.S. 708, 712 (1961)



of the habeas process should help inform the debate over whether these prisoners should be afforded such a right. This section examines the role of counsel from before the initial filing of a habeas petition, through the navigation of various procedural rapids, to district court disposition and the appellate process.

A. The Nature and Extent of Counsel Involvement

Relatively few petitioners had the assistance of legal counsel in prosecuting their claims in federal habeas corpus. The vast majority (79.2%) of the petitioners studied filed pro se.236 Only 18.9% of the petitioners

(irrelevant whether habeas corpus is a civil or criminal proceeding). Use of the civil-criminal distinction to decide the applicability of the sixth amendment to habeas corpus has been criticized as "formalistic" and "inexact." See People ex TeL Williams v. LaVallee, 19 N.Y.2d 238, 241, 225 N.E.2d 735, 736, 279 N.Y.S.2d 1,3 (1967); Honore v. Washington State Bd. of Prison Terms & Paroles. 77 Wash. 2d 660.664.466 P.2d 485. 488 (1970). Habeas corpus. although sui generis. is a means of determining the validity of a criminal conviction and thus enmeshes the habeas petitioner in the intricacies of the procedural and substantive criminal law. See id.

In Douglas v. California. 372 U.S. 353. 357-58 (1963). the Supreme Court held that the equal protection clause requires a state to provide an indigent criminal appellant with counsel on his first appeal as of right. The Douglas equal protection analysis was strained because the problem of access to appellate review did not turn on any state classification. The Douglas Court apparently was reluctant to state explicitly that basic fairness required the extension of the right to counsel.

In a later decision. however. the Supreme Court rejected the claim that the equal protection clause requires the state to provide free counsel to criminal appellants in their applications for a second. discretionary appeal. Ross v. Moffitt. 417 U.S. 600. 610 (1974). The Court found that the lack of counsel for subsequent discretionary appeals did not foreclose meaningful access to appellate courts because the appellate court could base its decision to grant review on the lower court's opinion. the briefs. and the transcripts of oral argument and of the trial. fd. at 615. Federal habeas corpus review. however. is not discretionary. and so the Moffitt "meaningful access" analysis should not be applied.

The due process clause of the fourteenth amendment is the third possible source of a right to appointed counsel in habeas proceedings. A state prisoner who seeks federal habeas review of his conviction has a due process right of access to the federal courts. Johnson v. Avery. 393 U.S. 483. 485 (1969). and this right implies a correlative. affirmative duty on the state to provide certain legal assistance to habeas petitioners. Bounds v. Smith. 430 U.S. 817. 828 (1977). The Court in Bounds held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." fd. The Court's language clearly stops short of requiring that in all cases petitioners have the right to appointed counsel. Nevertheless. the principal criterion of the adequacy of a prison's program is whether it provides "meaningful access" to the courts. fd. at 823. The information culled from the Study on the relative performances of pro se and counselled petitioners should shed some light on what exactly "meaningful access" to the courts requires in the habeas context.

236. App. F.3l.



received some form of legal assistance. Most often (for 8.0% of the petitioners), retained counsel provided this legal assistance. Federal district courts appointed counsel to represent 6.0% of the petitioners, and counsel appointed by state courts represented 2.3% of the petitioners. Another 2.6% of the petitioners obtained legal advice in some other form, either from a prisoner assistance project (1.4%), or from a law-student or a paraprofessional clinic (1.2%).237

(1) Involvement of Counsel as a Function of the Type of Custody

Petitioners in institutional custody obtained counsel about as often as petitioners overall. The vast majority of petitioners seeking the federal writ (91.6%) were in prison after conviction,238 and counsel represented 17.2% of these prisoners.239 Counsel represented 21.3% of petitioners in prison before conviction240 (4.0% of the Study population).241 Counsel assisted 18.1 % of the wards of mental institutions242 (1.2% of the Study population)243 in their quest for the federal writ.

By contrast, persons not in physical custody were much more likely to have had the assistance of counsel at some stage of the proceeding. Every person on parole (0.3% of petitioners)244 had the assistance of counsel.245 Petitioners on probation (0.8% of the sample)246 were represented by counsel in 57.1 % of their cases.247 Counsel represented 96.5% of petitioners admitted to bail248 (1.6% of the petitioners surveyed).249 Petitioners who were challenging the collateral consequences of a conviction (0.5%)250 obtained counsel in 55.6% of their cases.251

237. "Other" responses were reported by 1.8% of petitioners. Data were unavailable in 0.8% and not applicable in 0.1 % such cases. [d.

238. App. F.25. 239. App. X.188-189. 240. [d. 241. App. F.25. 242. App. X.188. 243. App. F.25. 244. [d. 245. App. X.188-89. 246. App. F.25. 247. App. X.188. 248. [d. 249. App. F.25. 250. [d. 251. App. X.188-189. Persons not in physical custody were also more likely to

have counsel's assistance before filing. Pre-filing legal assistance was present in 60.0% of parole cases, in 87.5% of probation cases, in 95.4% of no-bail cases, and in all of the no custody cases. Persons in prison after conviction had the prefiling assistance of counsel in 54.0% of their cases. [d.



(2) Appointment of Counsel

Rule 8 makes appointment of counsel to an indigent petitioner252 mandatory whenever an evidentiary hearing is conducted.253 The district courts held hearings for 2.1% of all petitions,254 and magistrates held hearings in 0.8% of their cases.255 The mandatory appointment of counsel under Rule 8 for the purpose of representing indigent petitioners at evidentiary hearings thus appeared to be a minor component of all federal court-appointed counsel.

Rule 6 stipulates that an indigent petitioner who has received the court's permission to use the discovery devices of the Federal Rules of Civil Procedure256 is also entitled to appointed counsel when the effective use of such discovery requires the assistance of counsel.257 The expense to the state that discovery under Rule 6 entails may very well preclude its availability to prisoners. The Rules further provide that the district court may appoint counsel "where the interest of justice so requires."256 An attorney may be compensated in an amount up to $250 plus expenses for

252. See 18 U.S.C. § 3006A(g) (1976) (indigent means financial inability to obtain representation).

253. RULE 8(e). 254. App. F .55. See supra text accompanying notes 174-95. 255. App. X.196. 256. See generally FED. R. CIV. P. 26-37. 257. RULE 6(a). The Study collected no data relating to the use of discovery in

federal habeas corpus cases. 258. RULE 8(c). Although the Rules create only a limited right to counsel, the

draftsmen clearly realized the value of counsel to both the petitioner and the government:

Counsel can perform a valuable function benefitting both the court and the petitioner. The issues can be more clearly identified if both sides have the benefit of trained legal personneL The presence of counsel at the pre hearing conference may help to expedite the evidentiary hearing or make it unnecessary, and counsel will be able to make better use of available prehearing discovery procedures. Compare AB.A. Project on Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies § 4.4, p.66 (Approved Draft 1968). At a hearing, the petitioner's claims are more likely to be effectively and properly presented by counseL

RULE 8, Advisory Comm. Note. These values could not be fully realized unless the "interests of justice" were

liberally construed to require the appointment of counsel for indigents in most cases. Congress added this provision to Rule 8(c) as promulgated by the Supreme Court to make clear that the Rules do not limit a court's authority to appoint counsel at any stage of the habeas corpus proceeding under the Criminal Justice Act of 1964, 18 U.S.C. § 3006A (1976). Act of Sept. 28, 1976, Pub. L. No. 94-426, § 2(5), 90 Stat. 1334, 1334.


736 RUTGERSLAW JOURNAL [VoI.13:675

representing a petitioner in a habeas proceeding.259 The Study did not, however, inquire into the amount of discovery permitted indigent petitioners or the extent of counsel appointments under Rule 6.

(3) Variations in the Incidence of Various Kinds of Counsel

The district courts surveyed varied considerably in their practices of appointing counsel. The frequency of federal court appointments ranged from a low of 0.8% in the Alexandria Division of the Eastern District of Virginia to a high of 9.0% in the Southern District of California.26o Such wide variation suggests the need for more detailed, objective standards to ensure a uniform, nationwide policy relating to the appointment of counsel for federal habeas petitioners. This need is critical in light of the considerable influence counsel had on the district court's ultimate disposition.261

The incidence of other kinds of counsel also varied among the districts. Within a district, a low rate of federal court appointments did not correspond to a high rate of state court appointments or of retained counsel.262 A low rate offederal court appointments was thus not generally a result of indigent petitioners already having state court-appointed counsel. In fact, each of the federal districts that appointed counsel in

259. 18 U.S.C. § 3006A(d) (1976). 260.

TABLE 22: NATURE OF COUNSEL BY COURT

Federal State Para-Court Court Court legal

Appointed Appointed Retained or Prison Pro Row Counsel Counsel Counsel Clinic Project Se Total

E.D.Pa. 8.6% 0.4% 11.6°", 1.30", 0.0°", 78.1% 12.6%

D.N.J. 6.8% 2.8% 15.9% 0.0°", 0.0% 74.4% 9.5%

E.D. Va. Alex. 0.8% 0.0% 7.3% 2.40", 0.8% 88.6% 6.7%

E.D. Va. Rich. 4.6% 0.6% 9.8% 1.7% 0.0% 83.3% 9.4%

E.D. Va. Norf. 3.7% 0.0% 3.2% 2.8% 0.0% 90.4% 11.8%

N.D. Ill. 8.1°", 9.0°", 10.9% 0.0°", 5.7"10 66.4"10 11.4% C.D. Cal. 1.3"10 0.4"10 5.0"10 0.4% 0.0"10 93.0"10 30.2%

S.D. Cal. 9.0"10 3.0"10 7.5"10 0.0"10 0.0"10 80.6"10 3.6"10

Circuit Court 40.2"10 14.9"10 9.2"10 5.7"10 14.9"10 14.9"10 4.7"10

Column Totals 6.2"10 2.3"10 8.2"10 1.2"10 1.4"10 80.7"10 100.0"10

Source: App. X.20-21. 261. See infra notes 305-16 & 352-60 and accompanying text. 262. See Table 22, supra note 260.



fewer than 6.0% of its cases saw fewer than 1.0% of its petitioners represented by state court-appointed counsel. All of the federal district courts that had high rates of appointing counsel, except the Eastern District of Pennsylvania, sat in states that also appointed counsel liberally. Conversely, every state that liberally appointed counsel for its prisoners was included within a federal district with a high rate of appointing counsel.2fi3 These comparisons suggest that some common factors such as regional attitudes toward prisoners' rights or the relative indigency of each region's prisoners may influence both state and federal courts when they determine whether to appoint counsel.

The low rate of district court appointment of counsel also could not be explained by a higher incidence of retained counsel. The frequency with which state prisoners retained counsel varied significantly among the districts. In the District of New Jersey, 15.9% of habeas petitioners retained their own counsel, while in the Norfolk Division of the Eastern District of Virginia only 3.2% of petitioners retained counsel.264 Districts that saw high rates of retained counsel did not, however, necessarily have low rates of appointed counselor vice-versa. Therefore, the variation in the districts' rates of appointing counsel appeared to result from differences in the respective districts' attitudes toward such appointments rather than any inverse effect of the rate of retained counsel.

Paralegal and law-student clinic legal assistance to petitioners occurred most commonly in the three divisions of the Eastern District of Virginia, all of which had relatively low rates of state and federal courtappointments of cousel.265 In most other districts, paralegal and clinic legal assistance was nonexistant or insignificant. Prison project counsel also played a relatively minor role in providing legal assistance to petitioners in all districts except the Northern District of Illinois, where such counsel represented 5.7% of the petitioners.266 In two districts, New Jersey and Southern California, habeas petitioners had neither prison project counsel nor paralegal or law-student clinic assistance to aid them in their applications for the federal writ.267

(4) The Timing of Counsel Involvement

Most attorney involvement (52.0%) began before the initial filing of a petition.268 In only 21.6% of cases did an attorney become involved after the initial filing. In 12.7% of counsel cases, attorney involvement commenced after the petitioner took an appeal from the district court's deci-

263. Id. 264. Id. 265. Id. 266. Id. 267. Id. 268. App. F.32.



sion but before the appellate court's disposition.269 Pre-filing representation occurred among every kind of counsel except federal court-appointed counsel. In the vast majority of state court-appointed counsel cases (94.1 %), the attorney assisted the petitioner before he filed his initial federal habeas petition.270 No state court-appointed lawyer began to counsel a habeas petitioner after the petitioner appealed the district court's decision. Apparently, state court-appointed counsel became involved in earlier, state proceedings and followed their clients to the federal district court.271

Pre-filing representation was also the norm among petitioners who retained counsel. In 91.3% of retained counsel cases, the petitioner retained the attorney before filing for the federal writ.272 In 6.7% of the retained counsel cases, the attorney began his services after the petitioner's first filing, and in only 2.0% of these cases did counsel representation commence after the petitioner began an appeal. Paralegal and lawstudent clinic assistance generally began before initial filing (57.9%) or after an appeal began (36.8%). In only one such case did assistance begin after the initial filing but before the appeal. Similarly, prison project legal assistance usually began before filing (73.7%) or after appeal (21.1 %), but only rarely during the district court's review (5.3%).273

Federal court-appointed counsel never became involved in a habeas case before the petitioner's initial filing, probably because the federal courts appointed counsel only after preliminary consideration of the prisoner's petition. The district courts appointed counsel often (57.3%) after the petitioner's initial filing. The remaining 42.7% of federal courtappointed counsel became involved only after the petitioner noted an appeal.274

(5) Counsel Involvement and Variations in the Interval from Conviction to Filing

The elapsed time between conviction and the petitioner's filing for

269. Id. Data as to when an attorney became involved were not available in 11.3% of cases.

270. App. X.44B. 271. See id. 272. Id. 273. Id. 274. Id.



the writ varied according to the nature of counsel.275 Retained counsel steered their clients' claims to the federal habeas court most expeditiously- in an average of 2.67 years after conviction. This might be due to the greater likelihood of pre-custody representation by retained counsel. Prison project counsel were involved in cases with the longest convictionto-filing delay, an average of 4.01 years.276 Most other forms of counsel were associated with average delays of about 3 years. Counsel appointed by federal courts were associated with a slightly longer than average conviction-to-filing interval, 3.54 years. Petitioners appearing pro se filed an average of 2.83 years after their convictions.277

B. Counsel Involvement and Procedural Compliance in the District Courts

(1) Exhausting Available State Remedies

During the time that elapses between a petitioner's conviction and his filing for the writ, he must exhaust those state remedies still available to him if he desires to have his federal habeas claim adjudicated on its merits. The Study distinguished between those petitioners who had and those who had not exhausted state remedies. The Study further broke down the former group into sub-groups of successive and non-successive (or "correct") filers. Successive filers were petitioners who had filed either more than one state petition for post-conviction relief or a previous petition for the federal writ.

The Study found that most petitioners (55.7%) did not exhaust avail-

275.

TABLE 23: NATURE OF COUNSEL BY TIME INTERVALS

Nature of No. of days from No. of days from No. of days from Counsel Conviction to Filing to Notice of Appeal

Filing (years) District Ct. to Disposition Disposition on Appeal

Retained 976 (2.67) 178 329

State· Appointed 1110 (3.04) 215 320

Federal· Appointed 1293 (3.54) 302 357

Pro Se 1032 (2.83) 116 289 Paralegal!

Clinic 1018 (2.79) 216 359 Prison Project 1465 (4.01) 289 291 Counsel (overall) 1106 (3.03) 245 236

Source: App. X.546-552. 276. App. X.55!' 277. See Table 23, supra note 277.



able state remedies.278 Overall, counsel involvement did not appear to increase compliance with the exhaustion requirement. Counselled petitioners failed to satisfy the exhaustion requirement in 57.7% of their cases. Pro se petitioners failed to satisfy the requirement in 55.4% of their cases.279 A strict policy in the district court on enforcing the exhaustion requirement had some value in deterring unexhausted claims.280 A district's policy toward the exhaustion requirement was defined by the percentage of petitioners whose claims were denied for failure to comply with the requirement. The Study classified districts as strict or lenient on this basis.281 Counsel, however, did not comply with the strict exhaustion policy more often than the pro se petitioners. In both strict and lenient districts, counsel were actually more likely than pro se filers to rush into federal court without having first made the mandatory stop at the state court house.282

Although counsel were less likely to satisfy the exhaustion requirement than pro se petitioners, they were more likely than the pro se group to file correctly, that is, to exhaust state remedies without successive filing in state or federal courts.283 Pro se petitioners, on the other hand, were more likely to exhaust state remedies only after filing successively

278. See supra notes 222-24 and accompanying text. 279. App. X.619. 280. See Table 24, infra note 282. 281. Id. 282.

TABLE 24: DISTRICT POLICY ON EXHAUSTION BY NATURE OF COUNSEL BY TYPE OF PETITIONER

Strict Policy

Row Type of Petitioner Pro Se Counsel Total Procedurally 54.2% 55.2oh 54.4°h Defective Filer Correct Filer 12.0oh 18.6% 12.8°h Successive Filer 33.8oh 26.2% 32.8%

Column Total 87.7% 12.30h 100.0%

Source: App. X. 644·45.

See supra note 119 and accompanying text. 283.

Lenient Policy

Pro Se Counsel --- ---60.3% 61.2°h

14.8% 16.5% 24.9% 22.3% 75.1% 24.9Oh

Row Total 60.5%

15.8°h 24.3%

100.0%

TABLE 25: TYPE OF PETITIONER BY TYPE OF COUNSEL

Procedural Correct Successive Type of Representation Defect Filers Filers Total Pro Se 55.4% 12.6% 32.1% 83.3% Counsel 57.7% 19.2% 23.0% 16.7% Total 55.6% 13.90h 30.5% 100.0%

Source: App. X. 645-46.



in state or federal court. In strict districts, counselled petitioners filed correctly in 18.6% of their cases, while pro se petitioners filed correctly in only 12.0% of their cases.284 In lenient districts, the difference between counselled and pro se petitioners with respect to filing correctly was fewer than 2 percentage points.285 This difference suggests that procedural strictness does yield a measurable deterrent effect on counselled petitioners. In lenient districts, counsel apparently felt less compelled to exhaust state remedies, resulting in a relatively greater number of counselled petitioners who had previously been turned out of federal court for failure to exhaust. Therefore, relatively fewer counsel filed correctly.

This interaction between district court policy and counsel involvement suggests that appointing counsel can help advance the values of federalism and comity implicit in the exhaustion requirement when the district itself takes those values seriously.286 In strict districts, counsel were less likely to file successively in state or federal courts (26.2%) than were pro se petitioners (33.8%). The difference between these two groups narrowed considerably in lenient districts, where 24.9% of the pro se petitioners filed successively, and 22.3% of the counselled petitioners so filed. 287 Again, counsel were significantly better at ensuring compliance with the exhaustion requirement without filing successively only in those districts maintaining a strict policy. Any legislative costbenefit analysis of the value of counsel in the habeas process must include this modest but significant contribution to orderly procedure that counsel make. By increasing the rate of correct filing, counsel helped to increase the overall efficiency of the habeas process.

(2) Using Proper Forms

The district courts denied only 1.2% of habeas claims for failing to use the proper form.288 All of the petitioners so denied represented themselves/89 suggesting again that counsel expedited the habeas process by following at least the basic filing rules.

(3) Pendency of Petitions Before the District Court

The involvement of counsel lengthened a case's stay in the district court. Counsel cases remained pending before the district court an aver-

284. See Table 24, supra note 282. 285. [d. It should be noted that, because of the fewer number of writs dis

missed for failure to exhaust state remedies, courts with a lenient policy had an overall greater percentage of correct filers.

286. See supra notes 61-65 and accompanying text. 287. See Table 24. supra notes 282. 285. 288. App. F.73. 289. App. X.250.



age of 245 days, while pro se cases averaged only 116 days before the court.290 The longer stay of counsel cases may reflect the greater frequency with which counsel cases are decided on the merits. Among the different types of counsel, the longest average interval between filing and district court disposition was associated with federal court-appointed counsel (302 days). The length of this interval probably reflects the extra time the attorney, whom the district court appointed only after the petitioner filed, needed to learn the record, prepare the case for the court's review, and participate in a hearing. Cases in which retained counsel were involved had the shortest filing to disposition interval (178 days).291 This shorter interval probably also reflects the higher rate of procedural denials this group of counsel receive.292

(4) Opinion Writing

The district courts issued opinions in 10.5% of counsel's cases. Pro se petitioners received district court opinions in only 2.7% of their cases.293 Because the federal courts generally issue opinions only when a petition raises interesting or novel questions of law requiring a reasoned response,294 the higher incidence of opinion writing in counsel cases may reflect counsel's ability to formulate such questions. Posing new questions of law represents a creative aspect of lawyering that may be absent in the pro se petitions. The higher rate of opinion writing may also indicate that the courts responded in a more serious fashion to counsel's claims.

C. The Effects of Counsel Involvement on District Court Dispositions and Other Court Responses

(1) Hearings

The involvement of counsel dramatically influenced almost every aspect of the court's consideration of a petition. Counsel were instrumental in securing hearings before the district court.295 In 93.8% of all cases observed, the district courts held no hearing,296 but most of these cases (86.3%) involved pro se petitioners. In only 13.7% of the cases in

290. See supra note 270. 291. See id. 292. See Table 26, infra note 306. 293. App. X.192 294. See United States v. Joly, 493 F.2d 672, 675-76 (2d Cir.1974) (opinions not

written when the result is clear). 295. See supra notes 92-93; infra notes 315-16 and accompanying text. This

statement would be a post hoc, ergo propter hoc argument if based only on observations for federal court-appointed counsel for, in many instances, district courts appointed counsel because an evidentiary hearing was necessary.

296. App. X.214-15.


1982] HABEAS CORPUS '743

which the district court failed to order a hearing did counsel represent the petitioner. In the 6:2% of cases in which the district court held a hearing, counsel represented 91.1% of the petitioners.297 Overall, 30.2% of petitioners with some form of legal counsel received a district court hearing, while only 0.7% of the pro se petitioners received a district court hearing.298 Counsel thus served to ensure that petitioners received plenary review which often presaged success, and thereby helped to protect important federal rights.

Different kinds of counsel had varying degrees of success in obtaining hearings for their clients. The most successful category of counsel was the federal court-appointed group. This group received hearings in 46.0% of its cases.299 Its higher rate of obtaining hearings apparently resulted from the greater frequency with which it received evidentiary hearings. In 58.3% of all district court evidentiary hearings, federal court-appointed counsel represented the petitioners. Evidentiary hearings comprised 45.6% of the cases in which federal court-appointed counsel obtained any sort of hearing.30o These results are not surprising inasmuch as Rule 8(b) requires the district court to appoint counsel when an evidentiary hearing appears necessary. The difference between the overall rate of counsel hearings (30.2%) and federal court-appointed counsel hearings (46.0%) may well reflect the incidence of appointments under the Rules.

Retained and state court-appointed counsel were moderately successful in obtaining hearings before the district court judges for their clients. They were granted hearings in 25.8% and 25.0% of their cases, respectively.30' Retained counsel obtained 25.0% of the evidentiary hearings in district courts. State court-appointed counsel secured 13.9% of these evidentiary hearings. Prison project counsel obtained evidentiary hearings for 18.2% of the petitioners they represented. Paralegal or lawstudent clinics were less likely to receive a hearing before a district court, obtaining such hearings in only 5.6% of their cases. Petitioners who represented themselves received district court evidentiary hearings in only 0.7% of their cases.302

Counsel were also more successful than pro se petitioners in obtaining hearings before magistrates. Magistrates held hearings in 2.3% of their cases, and in 88.5% of those hearings, counsel represented the petitioner.303 Federal court-appointed counsel had the greatest success in receiving hearings before a magistrate, obtaining such hearings in 22.7%

297.Id. 298. Id. 299. App. X.214. 300. Id. 301. Id. 302. Id. 303. App. X.198-99.


744 RUTGERS LAWJOURNAL [Vol. 13:675

of their cases. Many of these counsel may have been appointed by magistrates after a district court determination under Rule 8(a) that a hearing was required to resolve the issues in the case. Retained counsel obtained such hearings in 15.9% of their cases. Only 0.3% of pro se petitioners received a magistrate hearing.30c

(2) Counsel Involvement and District Court Dispositions

(a) Denials for failure to exhaust state remedies

Although counsel were less likely than pro se petitioners to satisfy the exhaustion requirement,305 they showed a remarkable ability to avoid denials on this ground.3oo Counsel received denials for failing to exhaust state remedies in 18.0% of their cases. In stark contrast, district courts denied 40.7% of the pro se petitioners on this ground, an increase of 126% over counsel's rate of denial.307 Apparently, counsel circumvented procedural requirements more easily, or the federal courts were more reluctant to deny the writ on procedural grounds when counsel were involved, perhaps because of the increased burden that denials placed on the bar's pro bono obligation and on the public coffers.

304. Id. 305. See Table 25, supra note 283 and accompanying text. 306.

TABLE 26: DISTRICT COURT DISPOSITION BY NATURE OF COUNSEL

District Court Dis~osition

Denial· Other Failure Denied Writ Writ Failure Proce· to on Granted Granted

Nature of to dural State Merits and No with Counsel Exhaust Defects Claim Release Release Retained 23.6% 0.7°A> 17.1°A> 50.0% 2.1% 6.4°,b

State· A~~ointed 10.8% 0.0°,b 2.7°,b 70.3% 5.4% 10.8%

Federal· A~pointed 12.0°A> 1.9% 11.1°A> 56.5% 10.2% 8.3%

Paralegal! Clinic 30.8% O.O°A> 3.8°A> 61.5% 3.8°,b 0.0%

Prison project 11.5% O.O°A> 23.1°,b 42.3°A> 3.8°A> 7.7%

Counsel Overall 18.0°A> 0.9% 13.2°,tJ 55.1% 5.4°,b 7.2°,tJ

Pro Se 40.7°,tJ 3.6% 15.4°,tJ 38.0°,b 0.4% 0.4%

Whole Po~ulatio!l 36.8% 3.1% 15.0% 41.0% 1.3% 1.6%

Source: App. X.250·252.

See supra note 88 and accompanying text. 307. See Table 26, supra note 306.


•


A comparsion of how retained and appointed counsel fared with respect to procedural denials and grants of the writ on unexhausted claims strongly suggests that the federal courts are especially solicitous toward government-paid counsel. Retained counsel representing petitioners with unexhausted claims succeeded in obtaining the writ for 9_0% of these claims.30B In 21.8% of the cases in which retained counsel pursued unexhausted claims for their clients, the district courts denied the writ on procedural grounds. In contrast, state or federal court-appointed counsel representing petitioners with unexhausted claims received the writ in 17.0% of their cases. In only 8.4% of appointed counsel's cases, did the district court deny the writ on procedural grounds.309

Counsel's ability to receive a decision on the merits of a claim more often, even though they were less likely than pro se petitioners to exhaust state remedies, suggests that increasing counsel involvement in federal habeas cases may undermine the states' legitimate interests. The states may have less reason to complain, however, when they recognize that most of the claims that would return to their courts are ultimately denied by the federal habeas courts in their consideration of the merits.

Overall, counsel played a valuable role in making the habeas process more efficient. Counsel's marked ability to avoid procedural denials resulted in the courts' adjudicating more cases on the merits. Counsel involvement thus promoted the societal interest in finality by guiding a larger percentage of cases to a final disposition, thereby helping to end the continuing dispute between the state and its prisoner. Counsel's ability to satisfy or evade the exhaustion requirement varied among the different categories of counsel. State and federal court-appointed counsel were the most successful, receiving denials for failure to exhaust in only 10.8% and 12.0% of their cases, respectively.310 State court-appointed counsel's low rate of non-exhaustion denials may reflect their greater familiarity with the issues litigated in the state courts, their greater ability to document exhaustion, or their proficiency in arguing around the requirement. Federal court-appointed counsel's low rate of denials may very well reflect a district court practice of deferring the appointment of counsel until the petitioner appears to have satisfied all of the procedural requirements. Retained counsel received denials for· failure to exhaust in 23.6% of their cases, a rate twice as great as the court-appointed group·s. Paralegal and law-student clinics fared the worst, receiving denials on this ground in 30.8% of their cases.3I1

308. App. X.603-04. 309. Id. 310. See Table 26, supra note 306. 311. Id.


746 RUTGERS LA W JOURNAL

(b) Denials for failure to state a claim upon which relief could be granted

[Vol. 13:675

Pro se petitioners were more likely than counsel to fail to state a claim upon which the district court could grant relief. Pro se petitioners failed to state a claim in 15.4% of the claims they advanced. The district courts dismissed 13.2% of counselled petitioners' claims for failure to state a cognizable claim.312 The rate of these dismissals varied among the different kinds of counsel. State court-appointed counsel were by far the most adept at avoiding dismissal, receiving such denials in only 2.7% of their cases. Paralegal and law-student clinic counsel also fared well with a 3.8% denial rate. Federal court-appointed counsel received denials on this ground in 11.1 % of their cases. Retained and prison project counsel both fared worse than the pro se petitioners, receiving nonsuits in 17.1 % and 23.1 % of their cases, respectively.3l3 The low rate observed among pro se petitioners may, however, be misleading. The observed rate among pro se petitioners (15.4%) may well have been higher if these petitioners had received fewer denials on procedural grounds. If the 22.7% of pro se petitioners' claims that were denied on procedural grounds, but which apparently would have been adjudicated had they been handled by counsel, were adjudicated on the merits and fell into the observed distribution of district court dispositions for such claims, the rate of denials for failing to state a claim among pro se petitioners would have been 21.3%.314

(c) Grants of the writ

The Study revealed a dramatic correlation between counsel involvement and a petitioner's chances for winning relief. Counsel were successful in obtaining the federal writ and relief in part or in whole for their clients in 12.6% of their cases.3l5 Pro se petitioners were successful in only 0.8% of their cases.3l6 Counsel's rate of success was thus more than fifteen times greater than that of the pro se group. In the next section we will explore the possible causes of this astonishing finding.

(3) The Etiology of Counsel's Success

(a) Some factors that explain counsel's success

Whether or not the fifteen-fold increase in the success rate of counselled petitioners over that of pro se petitioners bespeaks a constitutional infirmity in the present system of appointment depends upon the

312. [d. 313. [d. 314. See supra text accompanying notes 306-07. 315. [d. 316. [d.



etiology of counsel's greater success. Two important factors apparently played a role in helping counsel establish a higher success rate: counsel's ability to avoid procedural denials and the screening effect of the district court appointment process. Because of counsel's ability to avoid procedural denials,317 22.7% of counsel cases decided on the merits would have been denied without reaching the merits had they been filed pro se.31B If the federal courts had reached the merits of pro se petitions 22.7% more often and those petitions then fell into the existing pattern of dispositions for pro se petitions, the resulting success rate for grants of the writ would have increased from 0.8% to 1.1 %.319 This higher success rate remains well below those for the entire sample population (2.9%) and for counsel-prepared petitions (12.6%). The lower rate of procedural denials among counselled petitioners was, therefore, only a small factor in the disparity between pro se and counsel success rates.

The effect of court and counsel screening on counsel's success rate is more difficult to discount. Because courts appointed counsel only after a prima facie determination of a case's potential merit, appointed counsel's higher success rate may be attributed to the court's screening process. Petitioners with retained counsel, however, also fared dramatically better than pro se petitioners.32o Although many retained counsel may have been attracted to the more meritorious cases, surely some were swayed by the need for a client, regardless of the merits of the case. Therefore, the screening phenomenon should not have been as pronounced for this group of counsel. Nevertheless, even if the court screening process cannot totally explain the vast difference in success rates between counsel and pro se petitioners, it may still have been an important factor in the greater success of counsel.

A comparison of district co·urt dispositions and the timing of counsel involvement indicates that court screening contributed to the higher success rates of counsel. Counsel who were involved before the initial filing of a federal petition were successful in whole or part in 9.2% of their cases.321 Counsel who became involved after the initial filing were more than twice as successful, receiving similar relief in 18.6% of their cases. Counsel who became involved only after the petitioner initiated an appeal were successful in 4.8% of their cases. Federal court-appointed counsel, who were never involved before a petitioner's initial filing, con-

.stituted 80.0% of the counsel who become involved after filing. 322 A very large portion of the post-filing, pre-appeal representation by counsel

317. See Table 26, supra note 306 and accompanying text. 318. Id. See supra notes 306-07 and accompanying text. 319. Id. 320. Id. 321. App. X. 256. 322. Id.



resulted from the district court's determination that a petition raised a triable issue of fact, that the petitioner should have counsel for the effective use of discovery, or simply that the "interests of justice" required appointment.323 In each of these cases, the court had already determined that a petition was potentially meritorious and not patently frivolous, which helps to explain post-filing counsel's greater success rate.

The limited resources of state prisoners, clinics, and prison projects were probably factors that led to their prosecuting only the more meritorious claims. Pro se petitioners generally did not face these economic decisions because they most often filed in forma pauperis.324

(b) Factors that fail to explain counsel's success

The results of the Study eliminated certain other plausible explanations for the greater success rate of counselled petitioners. First, the Study explored whether this higher success rate resulted from the smaller proportion of counsel representation in districts relying heavily on magistrates and the decreased chances for success found in those districts.325 The success rate of counsel, however, remained higher than that of pro se petitioners even when magistrates were not involved. With magistrate involvement, counsel were over fourteen times more likely to receive the writ for their clients than the pro se group. Without magistrate involvement, counsel were more than twelve times more successful than pro se petitioners.326

Another possible explanation for the higher success rate of counsel, which the Study conclusively rejects, is that counsel will not pursue the federal habeas remedy for a client before exhausting state remedies and satisfying other habeas procedural requirements. The data, however, show that counsel actually failed to exhaust state remedies more often than pro se petitioners.327 Furthermore, the correlation between counsel

323. RULE 6, B(c). A comparsion of pre-filing and post-filing counsel's respective abilities to obtain an evidentiary hearing from the district court helps to confirm the positive effect of federal court screening in the appointment process on counsel's success rate. Among the pre-filing counsel group, which contained no federal court-appointed lawyers, district courts held evidentiary hearings in 6.5% of such cases. District courts, however, held hearings in 19.6% of the cases involving post-filing counsel (80.0% of whom were federal-court appointed). App. X.212-13. Similarly, post-filing counsel were more successful at obtaining a hearing before a magistrate than were pre-filing counsel. Counsel who became involved after the initial filing of a petition received such hearings in 13.2% of their cases, whereas counsel who became involved before the initial filing received a magistrate hearing in only 2.1 % of their cases. App. X.200-01.

324. App. X.1B4. 325. See supra text accompanying note 215. 326. App. X.594-99. 327. See Table 24, supra note 283.



involvement and success rate remained constant after controlling for the difference between counsel and pro se petitioners with respect to filing correctly and successively. Pro se petitioners with unexhausted claims received the writ for 0.4% of such claims. Retained counsel succeeded in 9.0%, and court-appointed counsel succeeded in 17.0% of unexhausted claims.328

District courts denied 55.1 % of counselled claims and 38.0% of pro se petitioners' claims on their merits.329 This naked comparison may, however, be misleading. Although counsel appear not to have performed as well as the unrepresented petitioners, the higher rate of denials for counsel may simply have resulted from counsel's ability to guide more litigation to a final adjudication on the merits. Again, if the "excess" procedural denials among pro se petitioners' claims were redistributed among the other possible, non-procedural dispositions, then district courts would have denied 52.5% of pro se petitioners' claims on their merits.330

The data also show that the greater success of counsel cannot be attributed to any correlation between a district court's propensity toward granting the writ and its appointment of counsel. Districts that liberally appoint counsel reported both the highest and lowest observed rates of granting relief.33l The data do not rule out the hypothesis that, irrespective of the greater intelligibility and cogency of counsel-drafted petitions, district courts consider these petitions more seriously and generously. This possibility may be discounted to some extent, however, because student and paraprofessional legal assistants were about as effective in obtaining favorable responses as retained counsel.332

D. Interaction Between Magistrate Involvement and Counsel Performance

Magistrate involvement was an important variable in the greater success of different categories of counsel. Generally, the presence of magistrates meant that the district court would grant the writ at a lower rate. Petitioners received the writ in 6.1 % of cases in which magistrates were not involved and in 2.1% of cases in which magistrates participated.333

When magistrates were introduced into the habeas review process, the frequency of relief granted to pro se petitioners declined from 1.4% to 0.8%. Retained and prison project counsel's combined success rate also fell dramatically from 15.7% to 5.9% when magistrates were involved.334

328. App. X.602-04. 329. See Table 26, supra note 306. 330. [d. 331. Compare Table 22, supra note 260, with Table 5, supra note 96 and

accompanying text. 332. See Table 26, supra note 306. 333. App. X.468. See Table 20, supra note 213. 334. App. X.594-97.



Magistrate involvement, however, improved the chances of success of state and federal court-appointed counsel, whose combined success rate rose from 19.3% to 23.7% when magistrates became involved. This is probably the result of the additional screening done by magistrates. Magistrate involvement also resulted in more denials on procedural grounds among pro se petitioners, retained counsel, and prison project counsel. Among state or federal court-appointed counsel, these denials declined from 8.4% to 7.9% when magistrates were involved.335

When magistrates were responsible for recommending dispositions to the district courts, the magistrates' recommendations in counsel cases often differed from the courts' ultimate dispositions. Although magistrates recommended dismissal for failure to exhaust state remedies in 32.6% of claims asserted through counsel, the district courts dismissed only 14.7% of these cases.336 This disparity did not occur in pro se cases. Magistrates recommended that 38.6% of pro se petitioners' claims be dismissed for failure to exhaust state remedies,337 and the district courts disposed of 36.1 % of pro se petitioners' claims on this ground. It is not clear why the magistrates and the district courts differed so strikingly on their disposition of counsel's cases. Perhaps the district court judges were more concerned with the costs of sending federal court-appointed counsel back to state court and, hence, more reluctant to deny a petition for failure to exhaust state remedies.

Magistrates recommend'ed that 13.0% of counsel's claims be dismissed for failure to state a claim upon which relief could be granted. The district courts denied counsel's claims on this ground in only 10.6% of their cases. The district courts denied more pro se petitioner's claims for failure to state a claim (13.6%) than the magistrates had recommended (12.7%). A similar relation held for denials on the merits. Magistrates recommended such denials in 30.5% of pro se petitioners' claims and in 62.0% of counsel's claims. The district courts denied each group's claims on the merits at rates of 33.7% and 44.3%, respectively. This discrepancy between magistrates' recommendations to grant relief and district court dispositions was less striking. Magistrates recommended relief in whole or part for 0.8% of pro se petitioners' claims and for 14.1 % of counselled

335. Id. Other data also support the conclusion that the magistrates were even more solicitous toward court-appointed counsel than other types of counsel. See supra text accompanying notes 302-03. Magistrates recommended denial for failure to exhaust state remedies for 33.7% of claims with pre-filing counsel, but only for 23.1 % of the post-filing counsel group. App. X.226-27. See supra text accompanying notes 320-21. Pre-filing counsel received magistrate recommendations to grant relief in whole or part in 8.1 % of their cases. By comparison, postfiling counsel received favorable magistrate recommendations in 13.2% of their cases. App. X.226.

336. App. X.223. 337. See supra text accompanying notes 202-34.



claims. The district courts granted relief to both groups less frequentlyin 0.7% and 10.1% of their cases, respectively.338

Why the district courts were generally more generous than magistrates toward counsel's claims and less so toward the claims of pro se petitioners is unclear. Nevertheless, the existence of the relationship points to yet another practical benefit to the petitioner of representation of counsel.

E. Counsel Involvement and the Appellate Process

The disparity in the success rates of petitioners represented by counsel and pro se petitioners continued into the appellate phase of the habeas process. Pro se petitioners were more likely to request a certificate of probable cause and yet not appeal (56.1%) than were counsel (34.6%). Counsel failed to request a certificate from the district courts, but appealed anyway, less often (3.3%) than the pro se petitioners (4.3%). The district courts denied pro se petitioners' applications for certificates more often (38.0%) than they denied those of counselled petitioners (31.0%). When the petitioners requested certificates, and the district court denied their requests, counsel were more likely to appeal notwithstanding the denial (22.0%) than were pro se petitioners (14.6%).339 When pro se petitioners appealed the district court's dispostion despite that court's refusal to certify an appeal, the court of appeals granted the certificate and went on to hear the appeal in only 11.8% of such cases. Counsel, however, succeeded in receiving the certificate from the court of appeals in 30.8% of cases in which either the district court had denied the certificate or in which they had simply circumvented the certification process at the district court level. The court of appeals denied certification more often to pro se petitioners (67.0%) than to counselled petitioners (38.5%).340 Overall, counsel appealed in 45.8% of their cases, while pro se petitioners appealed only 20.2% of their cases.

Most counsel involvement began before the petitioner took an appeal, and only 12.7% of counsel became involved after an appeal commenced.341

Most of the counsel becoming involved after appeal were appointed by a federal court (75.9%). The remaining counsel becoming involved after the start of the appeal were privately retained (5.2%), paralegal or lawstudent clinic counsel (12.1%) or representatives of prison project assistance programs (6.9%).342

Petitioners represented themselves in 14.9% of all appeals.343 State

338. App. X.223. 339. App. X.458. 340. App. X.454. See supra notes 126-31 and accompanying text. 341. App. F.32. 342. App. X.448. 343. App. X.20.



and federal court-appointed counsel were involved in 14.9% and 40.2%, respectively, of the appellate cases. Retained counsel represented habeas petitioners in 9.2% of the court of appeals' cases. Law student and paralegal counsel were surprisingly active on appeal, handling 5.7% and 14.9%, respectively, of the appeals before the circuit court.344

Counsel were likely to receive more extensive consideration of their clients' contentions from the court of appeals than were pro se appellants. Counsel presented their legal claims in oral argument before the appellate court in 55.1% of their clients' appeals. Not surprisingly, pro se appellants almost never (1.2% of their appeals) argued orally before the court.345 Apparently, this low rate resulted from the court of appeals' practice of appointing counsel only after it decided to set the case for oral argument. The federal courts made 42.7% of their appointments after the appellate process had begun.346

The court of appeals wrote more opinions for appeals in which the petitioner was reprsented by counsel (38.5%) than for appeals involving pro se appellants (7.8%). Similarly, the court of appeals wrote memoranda explaining its decision for more of counsel's appeals (25.3%) than for pro se appeals (19.3%).347

Counsel's appeals remained before the court an average of 350 days, 61 days longer than the average pro se appea1.348 This longer interval probably reflects the extra time the court of appeals required to hear counsel's oral argument and to address their contentions in reasoned, written responses.

Counsel involvement influenced the circuit court's dispositions even more dramatically than it affected the district courts' dispositions. Overall, the court of appeals granted the writ in 16.7% of counsel's appeals.349 Pro se appellants received the writ in only 1.6% of their appeals. Although the circuit court denied the writ to counselled appellants in 66.0% of their appeals, while denying only 53.1 % of the pro se appeals, many more pro se appeals (45.3%) remained pending at the end of the Study than counsel's appeals (17.3%).350 If the pending appeals fell into the observed ratio of writs granted or denied, then pro se appel-

344. App. X.456. 345.Id. 346. App. X.448. 347. App. X.450. Among the different kinds of counsel, retained counsel were

the most likely to fail to elicit any written explanation, opinion, or memorandum from the circuit court. The circuit remained "silent" in 61.7% of retained counsel's appeals but in only 8.3% of state court-appointed counsel's appeals, 31.5% of federal court-appointed counsel's appeals, in 9.1% of paralegal or law-student clinic's appeals, and in 42.1 % of prison project's appeals. The court of appeals wrote neither an opinion nor a memorandum in 73.0% of pro se petitioners' appeals. Id. See supra text accompanying notes 293-94.

348. App. X.546-52. 349. App. X.452. 350. Id.



lants would ultimately be denied the writ in 97.1 % of all their appeals, while petitioners assisted by counsel would be denied the writ in 79.8% of their appeals.a51

F. Concluding Comments on Expanding Counsel Involvement in Federal Habeas Corpus

The finding that counsel involvement improved a petitioner's chances of success at almost every stage of the habeas process was perhaps the most astonishing and disturbing in the Study. Most observers of the habeas process have been critical of the habeas petitioner's limited access to counsel. Commentators have recognized that counsel can further the interests of both government and the petitioners.352 Counsel can perform a screening function for the courts by refusing to file frivolous petitions, guiding litigation to its proper forum, and ensuring compliance with procedural requirements.35a Petitioner's counsel can promote the government's interest in finality by helping to bring the continuing dispute between the petitioner and the state to a quick but fair resolution.

Counsel's ability to guide habeas litigation to a determination on the merits serves the interests of society and prisoners. Societal interests in the application and enforcement of the criminal sanction are vindicated in more cases and with less delay. At the same time, the increased rate of grants of the writ indicates that society's interests in the close observance of its fundamental law and the prisoners' rights that derive from that law are both advanced more often when counsel is present.

Appointed counsel can ensure that the petitioner receives the fullest review to which he is entitled.354 Counsel can help protect and vindicate the petitioner's rights by drafting more artful petitions, using proper forms, pleading properly, and complying with procedural requirements,355 thereby increasing the likelihood that the petition will survive preliminary review by the judge or magistrate. Counsel are also better equipped to make the legal and factual contentions necessary to merit receipt of the writ.356

Habeas reform is often viewed as facilitating the search for the few meritorious petitions among the frivolous many.357 Counsel may make this

351. The pro se appellant's success rate would climb to 2.9%, while counsel's rate would approach 20.2%.

352. See, e.g., Wieck, supra note 17, at 750. 353. See Chisum, supra note 187; Lay, supra note 18, at 733-34; Weick, supra

note 17, at 752-53; Note, Proposed Modification of Federal Habeas Corpus for State Prisoners, 61 GA. L. REV. 1221, 1255 (1973).

354. See Lay, supra note 18, at 734. 355. See, e.g., Cruz v. Estelle, 497 F.2d 496, 498 (5th Cir.1974) (original pro se

petition written on toilet paper was amended by counsel). 356. See generally supra note 353. 357. See Brown v. Allen, 344 U.S. 443, 536-37 (1953) (Jackson, J., concurring)

(describing existing federal habeas corpus as a search for a needle in a haystack);



search easier and more fruitful. Accordingly, some writers have suggested that courts appoint counsel before the prisoner files his first petition.358

Others have hopefully predicted that the increased expense of providing counsel would be offset by a reduction in the number of procedurally defective, repetitious, and frivolous petitions on the federal docket.3s9

Other writers, eschewing a cost-benefit analysis, suggest that the right to counsel has a constitutional basis.360 Regardless of how the appointment of counsel in habeas cases is justified, the results of the Study clearly call for reconsideration of this question.

Some writers have suggested that the benefits of counsel come at too high a price, that our society cannot afford the increased costs of providing free counsel to indigent habeas petitioners.38l Another objection to the more extensive appointment of counsel in federal habeas corpus is that such appointment will derogate from the importance of the bar's pro bono obligation by calling upon lawyers to prosecute frivolous claims at minimal compensation.382

Although based on valid premises, both complaints are ultimately beside the point. Although most petitions are meritless,383 the courts cannot accurately make this assessment until the issues have been briefed and argued. The Study showed that counsel were instrumental in successfully alerting the court to possible grounds of relief. The cost of appointing counsel and the imposition on the private bar need not be excessive. The Study also revealed that the paralegal or law-student clinics and the prison projects performed impressively. Prison project counsel won relief in 11.5% of its cases.364 Law-student clinics, operating

Comment, In Search of the Optimum Writ: A Suggestion for the Improvement of Federal Habeas Corpus, 22 J. PUB. L. 465, 477-78 (1973) (describing habeas reform as facilitating the search for the "needle").

358. See Bailey, Federal Habeas Corpus-Old Writ, New Role: An Overhaul for State Criminal Justice, 45 BOSTON U.L. REV. 161, 205 (1965); Hooper, Habeas Corpus Under 28 U.S.C. Section 2254-Bane or Blessing, 9 CUM. L. REV. 391,406 (1978); Lay, supra note 18, at 734; Weick, supra note 17, at 750; Note, supra note 353, at 1255. Accord ABA PROJECT ON MINIMUM STANDARDS FOR CRIMINAL JUSTICE, STANDARDS RELATING TO POST-CONVICTION REMEDIES §§ 3.1, 4.4 (Approved Draft 1968).

359. See, e.g., Jacob & Sharma, Justice After Trial: The Prisoner's Need for Legal Services in the Criminal Correction Process, 18 KAN. L. REV. 493, 521 (1970).

360. See generally Miller, The Right to Counsel in Collateral ProceedingsHabeas Corpus, 15 How. L.J. 200 (1969); Note, Discretionary Appointment of Counsel at Post-Conviction Proceedings: An Unconstitutional Barrier to Effective Post-Conviction Relief, 8 GA. L. REV. 434 (1974).

361. See Doub, supra note 1, at 327. Cf. Circo, supra note 232, at 951. 362. Circo, supra note 232, at 952. More extensive appointment of counsel

might also remove the presumption that state courts decide cases correctly. Id. at 951.

363. See Table 26, supra note 306. 364.Id.



mostly in the three divisions of the Eastern District of Virginia, won relief in 3.8% of their cases. Interestingly, that district had one of the lowest rates for granting the writ.865 Given the increased demand for more clinic-oriented learning in law school, the federal habeas jurisdiction could provide an excellent introduction to practice in the federal courts and to the realities of the criminal justice system. Working under the supervision of law school faculties and a few practitioners, law students and para-professionals could deliver the needed services to state prisoners at a relatively low cost and with a minimal increase in bar's pro bono obligation.

V. ISSUES COGNIZABLE IN FEDERAL HABEAS CORPUS

A. The Nature of the Claims Observed"

The federal writ is available for a variety of proposes.366 In this Study, its most common use involved the petitioner attacking a state court's judgment of conviction (66.9% of all claims presented).367 Other frequent

365. See Table 5, supra note 96; Table 22, supra note 260. 366. See 28 U.S.C. §§ 2241(c)(3), 2254(a) (1976). 367.

TABLE 27: NATURE AND FREQUENCY OF CLAIMS PRESENTED

Nature of Claim Presented Attack on Conviction Challenge of Sentence Probation or Parole Revocation

Conditions of Confinement

Delay Excessive Bail Parole Denial Improper Appeals

Procedure Other

Number of Claims in Study

1,270 254

108

101 91 62 46

43 250

O,b of Total Number of Claims*

66.9 13.4

5.7

5.3 4.8 3.3 2.4

2.3 13.2**

* The total percentage is greater than lOoo,b because occasionally more than one claim was presented in one petition.

** The size ofthe "other" category reflects the number of other residual categories and the difficulty the courts had in characterizing vague claims. Some of the residual categories were characterized as follows:

Nature of Claim Number o,b of Total Claims Commutation of Sentence 38 2.0 Dispute Over Good Time 13 0.7 Claim Concerning Detainer 42 2.2 Extradition 14 0.7 Civil Commitment 4 0.2 Illegal Detention Generally 13 0.7

Miscellaneous 53 2.8

Source: App. F.83.



uses included challenges to sentences (13.4% of claims), to probation or parole revocations (5.7% of claims), to conditions of confinement (5.3% of claims), to delay of trial (4.8% of claims), and to denials of parole (2.4% of claims).368 This section explores some of the Study's interesting data on the nature of the habeas petitioner's claim and its effect on the federal district court's disposition of the petition.

(1) District Court Treatment of the Various Claims

Challenges to sentence succeeded at the rate of 3.9%,369 more often than any other claim. Attacks on probation or parole revocation were successful in 3.3% of cases in which they were presented. Petitioners attacking convictions received the writ for 2.6% of these claims. No petitioner who challenged a denial of parole obtained relief during the course of the Study.370 The claims that failed most often on the merits were attacks on convictions. District courts denied 43.6% of these attacks.371 The average rate of denial on the merits for other claims was 22.3%. Claims attacking

368. See id. 369.

TABLE 28: DISTRICT COURT DISPOSITION BY NATURE OF CLAIM District Court Dispositions

Granted Nature of Denial Denial Denial in Whole Claim Procedural No Claim Merits or Part Other Total Attack on 35.0 % 10.6% 43.6% 2.6% 8.2% 57.0% Conviction (533) (162) (663) (39) (125) 1,522

Challenge to 40.7 % 12.3% 34.6% 3.9% 8.5% 11.6% Sentences (126) (38) (107) (12) (26) (309)

Improper Appeals 60.7 % 12.5% 19.6% 1.8% 5.4% 2.1% Procedure (34) (7) (11) (1) (3) (56)

Conditions of 45.6 % 25.6% 12.0% 1.6% 15.2% 4.7% Confinement (57) (32) (15) (2) (19) (125)

Excessive 39.0 % 18.3% 23.2% 2.4% 17.1% 3.1% Bail (32) (15) (19) (2) (14) (82)

Probation or 41.7 % 15.0% 29.2% 3.3% 10.8% 4.5% Parole (50) (18) (35) (4) (13) (120) Revocation Parole 37.3 % 29.4% 23.5% 0.0% 9.8% 1.9% Denial (19) (15) (12) (0) (5) (51)

Delay 68.3 ok 6.7% 6.7% LOOk 17.3% 3.9% (71) (7) (7) (1) (18) (104)

Other 41.9 % 19.6% 16.6% 4.0% 17.9% 11.2% (126) (59) (50) (12) (54) (301)

Total 39.25% 13.2% 34.4% 2.7% 10.4% 100.0% (1,Q48) (353) (919) (73) (277) (2,670)

370. See id. 371. Id.



the validity of a conviction were the most important numerically, comprising 66.9% of all the claims observed372 and 57.0% of all claims disposed of by the district courts during the course of the Study.373 These claims were also the most important from a jurisprudential viewpoint. In other kinds of claims, petitioners generally disputed how much punishment they deserved. By attacking convictions, however, petitioners asserted that they had warranted no punishment at all.

Petitioners who challenged the conditions of their confinement and denials of parole were the most likely to be denied the writ for failure to state a claim upon which relief could be granted. While the overall rate of denials for failure to state a claim for all claims was 13.2%, district courts non suited 25.6% of petitioners' challenges to conditions of confinement and 29.4% of their challenges to denials of parole.374 Both of these claims arise from state administrative action which is subject to few federal constraints.375 Those challenges to the conditions of confinement that failed to state a claim frequently may have failed because of a corollary to the custody requirement that makes only those claims challenging the fact or duration of confinement cognizable in habeas corpus.376 A valid challenge

372. See Table 27, supra note 367. 373. See Table 28. supra note 369. The difference between the frequency with

which these claims were made and the frequency with which th~ district courts adjudicated them suggests that they remained pending in the courts longer than other kinds of claims.

374. See Table 28. supra note 369. 375. See. e.g .• Meachum v. Fano. 427 U.S. 215. 226-27 (1976) (barring habeas

challenges to discretionary system of transferring inmates from one prison to another).

376. See Bell v. Wolfish. 441 U.S. 520. 527 (1978); Preiser v. Rodriguez. 411 U.S. 475. 499-500 (1973). Similarly. when a state prisoner seeks release from custody and also seeks damages. the federal district court must remit the prisoner to state court to exhaust state remedies still available for the issues cognizable in habeas corpus. The federal court may proceed. however. with the civil rights action for damages. See Wolff v. McDonnell. 418 U.S. 539. 554 (1974).

A state prisoner may not denominate his petition a cause of action under 42 U.S.C. § 1983 and thereby circumvent the exhaustion requirement when the issue to be litigated is dispositive of future confinement. See Preiser v. Rodriguez. 411 U.S. at 500. Despite this difference in legal consequences. a § 1983 cause of action may be very similar to a claim cognizable in habeas. Occasionally. the courts have difficulty in making the proper characterization. Compare Williams v. Ward. 556 F.2d 1143. 1151 (2d Cir.) (a challenge to the manner in which authorities decided to deny parole and not to the denial itself is properly a § 1983 cause). cert. denied. 434 U.S. 944 (1977) with Drollinger v. Milligan. 552 F.2d 1220. 1224 (7th Cir. 1977) (in a challenge to the terms of her probation. petitioner's remedy was habeas corpus). See also Watson v. Briscoe. 554 F.2d 650, 652 (5th Cir. 1977) (injunction to restore good behavior time and require immediate parole review is a habeas matter that should be exhausted in state courts).

Generally, a habeas petition requires review of a state trial record. A § 1983 cause of action need not require review of any previous case, unless the alleged depriva-



to the conditions of one's confinement may, but does not necessarily, establish the invalidity of the confinement. Consequently, many of these challenges may simply have failed to state a claim that was cognizable in habeas corpus.

(2) Limitations on the Nature of Claims Cognizable in Federal Habeas Corpus

To establish his claim to the writ, the habeas petitioner may raise various grounds for relief. Although state-law grounds attacking a conviction are not cognizable in federal habeas corpus,377 the distinction between state and federal grounds may not always be clear. Federal questions may be implicit in the most ordinary state-law question.878

Thus, objections to evidentiary rulings, based on state law but also allegedly raising constitutional questions, were among the most common grounds for attacking convictions, appearing in 22.8% of petitions includ-

tion of federal civil rights occurred during the plaintiff's state trial. See generally Note, State Prisoners' Suits Brought on Issues Dispo~itive of Confinement: The Aftermath of Preiser v. Rodriguez and Wolff v. McDonnell. 77 COLUM. L. REV. 742 (1977); Comment. State Prisoners and the Exhaustion of Administrative Remedies: Section 1989 Jurisdiction and the Availability of Adequate State Remedies, 7 SETON HALL L. REV. 366 (1976).

377. See 28 U.S.C. § 2254 (1976); Rose v. Hodges, 423 U.S. 19.21 (1975). 378. See. e.g .• Jackson v. Virginia. 443 U.S. 307. 316 (1979) (evidence adduced

at trial must be sufficient for the trier of fact to determine guilt beyond a reasonable doubt); Mullaney v. Wilbur. 421 U.S. 684, 691 (1975) (jury instruction unconstitutionally shifted the burden of proof); Davis v. Wainwright. 547 F.2d 261, 264-65 (5th Cir. 1977) (when counsel did not advise defendant of a state law claim. defendant has a separate and distinct claim, ineffective assistance of counsel. cognizable in federal habeas review).



ing such attacks.379 Similarly, petitioners challenged convictions on grounds of insufficient evidence of guilt in 22.4% of the petitions attacking convictions.380 Although the state substantive criminal law deter-

379.

TABLE 29: GROUNDS INCLUDED IN PETITIONS ATTACKING CONVICTIONS

Number of Petitions o,b of All Petitions Ground Including This Ground Including This Ground· Ineffective Asst. of Counsel 508 40.0 Evidentiary Rulings 290 22.8 Insufficient Evidence of Guilt 285 22.4 Search or Seizure 197 15.5 Improper Guilty Plea 167 13.1 Self·Incrimination 156 12.3 Jury Instructions 153 12.0 Prejudicial Statement 129 10.2 Invalid Identification 127 10.0 Miscellaneous Trial Errors 120 9.4 Unlawful Arrest 116 9.1 Denial of Counsel 94 7.4 Speedy Trial 94 7.4 Non·Disclosure of Favorable Evidence 88 6.9 Unconstitutional Jury 69 5.4 Right to Appeal Denied 68 5.3 Coerced Confession 67 5.3 Double Jeopardy 65 5.1 Denial of Severance Motion 31 2.4 Unconstitutional Criminal Statute 27 2.1 Lack of Transcript 20 1.6 New Interpretation of Law 5 0.4 Other·· 568 44.7

• Because of the frequent presence of multiple grounds in a single petition attacking a conviction. these percentages do not total 100%. More than one ground was offered in 78.2% of all the petitions. Three or more grounds were present in 51.6% of petitions .

•• Again. the "other" category is large because of the difficulty courts had in classifying claims. many of which were vaguely expressed. in a uniform way. Common grounds found among "other" responses were judicial misconduct (39 cases). prosecutorial misconduct (55 cases). improper indictment (32 cases). improper witness testimony (60 cases). attack on petit jury (81 cases). and failure to honor plea bargain (21 cases).

380. Id.



mines the sufficiency of the evidence, a conviction based upon evidence insufficient to establish guilt beyond a reasonable doubt violates the fourteenth amendment's due process clause.38

! Objections to jury instructions, ostensibly a state-law ground, were included in 12.0% of all petitions.382

Although the habeas corpus statutes clearly extend the writ to cases of custody in violation of federal laws or treaties,383 the status of nonconstitutional federal claims as grounds for attacking a conviction remains unclear. The Supreme Court has not directly addressed this question, and dicta support neither an expansive nor a limited view unequivocally.384 No nonconstitutional federal grounds such as alleged violations of treaties,385 appeared among the grounds included in petitions attacking convictions.38B

B. The Nature of the Grounds A ttacking Convictions

Some commentators, concerned that federal habeas harms the finality of state judgments and depletes limited judicial resources, have suggested that the federal writ be available only to prisoners who can establish a fair probability, in light of all the evidence, that the trier of fact would have had some doubt that the prisoner was guilty.387 Without this colorable claim of innocence, habeas review could not proceed under the suggested procedure. The most common grounds for attacking convictions, however, were claims of ineffective assistance of counsel, objections to evidentiary rulings, and claims of insufficient evidence of guilt. These grounds appeared in 40.0%, 22.8%, and 22.4%, respectively, of petitions attacking convictions.388 Each of these grounds is guilt-related in

381. See infra notes 413-14 and accompanying text. 382. See Table 29, supra note 379. 383. 28 U.S.C. §§ 2241(c)(3), 2254(a) (1976). 384. See Townsend v. Sain, 372 U.S. 293, 312 (1963). The Townsend Court

noted that "[s]tate prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution." ld. In other dicta, the Court has indicated that the scope of the writ does extend to those whose custody violates the "Constitution, laws, or treaties of the United States." Rose v. Hodges, 423 U.S. 19, 21 (1975). In Davis v. United States, 417 U.S. 333 (1974), the Court placed a slightly more restrictive gloss on the habeas statutes by indicating that a state prisoner may present a federal non constitutional claim and obtain relief if the violation of the federal right "results in a complete miscarriage of justice." ld. at 346 (dictum).

385. Cf. Kear v. Hilton, No. 82-6466, slip op. 6-8 (4th Cir. 1982) (federal prisoner challenging extradition to Canada under the Treaty of Extradition between the United States of America and Canada, art. II, 27 U.S.T. 983, T.I.A.S. No. 8237).

386. See Table 29, supra note 379. For an excellent discussion of this point, see L. Yackle, supra note 57, at § 91.

387. See Friendly, supra note 7, at 142. 388. See Table 29, supra note 379.



the sense that the petitioner's challenge, if valid, impugns the reliability of the state trial court's factfinding process.389

Non-guilt related grounds, such as claims of illegal search or seizure, self-incrimination, and unlawful arrest occurred less often; petitioners included these claims in 15.5%,12.3%, and 9.1 %, respectively, of their petitions attacking convictions.39o Although removal of these claims from the federal habeas jurisdiction would reduce the federal courts' workload, it would not stop the flow of prisoners' petitions. Fourth and fifth amendment claims, which are frequently described as non-guilt related and so are the intended victims of proposals to align habeas jurisdiction with the integrity of the state factfinding process, comprised 13.6% of claims attacking convictions.391 Because many petitioners included more than one ground in a petition,392 such reform might not reduce the number of habeas petitions.

The least common ground on which petitioners challenged their convictions was the claim that a new interpretation of law vitiated their convictions. The petitioners included this ground in only 0.4% of petitions attacking convictions.393 This low rate may reflect the restraint the Burger Court has shown in extending constitutional precedents in the area of criminal procedure. Because the Court generally has not expanded the scope of the rights of criminal defendants, petitioners have fewer opportunities to claim that their custody violates a new interpretation of law. This ground, however, remains an essential feature of the habeas jurisdiction. Habeas review is usually the only means available for prisoners to ask society to reconsider their convictions in light of evolving standards of fundamental fairness. Even the most ardent critics of the expansive federal writ have acknowledged the importance of this function of habeas corpus by proposing that the conditions for retroactive application of law,394 which must be satisfied before a new interpretation of law is retroactively applied to another conviction, be used to define the scope of habeas review.395 In 1973, Congress considered but rejected a bill

389. Ineffective assistance of counsel and evidentiary rulings are, of course, only guilt-related when they have occurred in the context of litigating another guilt-related matter. Thus, those claims of ineffective assistance of counsel arising from counsel's failure to pursue a fourth amendment issue at trial would not be guilt-related claims. The higher incidence of ineffective assistance of counsel claims on collateral review probably results from the petitioners' difficulty in bringing such claims until direct review is exhausted.

390. See Table 29, supra note 379. 391. See id. 392. [d. 393. [d. 394. See Linkletter v. Walker, 381 U.S. 618, 619-20 (1965) (holding that Mapp

v. Ohio, 367 U.S. 643 (1961), does not apply to state convictions that became final before the Supreme Court decided Mapp).

395. See Hopkins, Federal Habeas Corpus: Easing the Tension Between State and Federal Courts, 44 ST. JOHN'S L. REV. 660, 672-74 (1970).



that would have employed the criteria of retroactivity to limit the federal courts' habeas jurisdiction.396

(1) Stone v. Powell and its Effects on Federal Habeas Corpus

In the 1976 case of Stone v. Powell,397 the Supreme Court modified the scope of federal habeas corpus for state prisoners. Stone did not purport to deal with the jurisdictional boundaries of habeas corpus,398 but rather addressed the question whether a state prisoner whose conviction rests in part on evidence obtained through an illegal search or seizure is in custody in violation of federal law.399 The Stone Court found that the fourth amendment exclusionary rule derives from judicial policy and not from the Constitution, and that the federal courts, therefore, need not apply the rule in every case.4OO Thus, the Court held that when a state has

396. See S. 567, supra note 1; H.R. 3329, 93d Cong., 1st Sess. (1973). The Department of Justice enthusiastically supported the reforms proposed in S. 567. See Letter from Attorney General Kleindienst to Rep. Celler, Chairman, Committee on the Judiciary (June 21, 1972), reprinted in 119 CONGo REe. 2222 (1973). Academic commentators were generally critical of the bill. See Meyer & Yackle, Collateral Challenges to Criminal Convictions, 21 KAN. L. REV. 259, 270-71 n.37 (1973); Wulf, Limiting Prisoner Access to Habeas Corpus-Assault on the Great Writ, 40 BROOKLYN L. REV. 253, 260-61 (1973); Note, Proposed Modification of Federal Habeas Corpus for State Prisoners-Reform or Revocation?, 61 GEO. L. REV. 1221, 1228-33 (1973).

397. 428 U.S. 465 (1976). 398. Id. at 494-95 n.37. 399. Id. at 505-06. 400. Id. at 481-82, 494-95 n.37. The Court, applying a utilitarian analysis of the

rule and seeing deterrence of future police misconduct as the principal goal of the rule, weighed the utility of the rule against the costs of implementing it in collateral review of fourth amendment claims. Id. at 489. The Court found that the social costs of applying the rule were great. Illegally obtained evidence was "typically reliable and often the most probative information bearing on the guilt or innocence of the defendant," and consequently its suppression frequently resulted in freeing guilty persons. Id. at 490. The Court speculated that any incremental increase in protection to fourth amendment values resulting from collateral review was slight and, therefore, relegated most state prisoners' fourth amendment litigation to state courts. Id. at 493-94.

When the Supreme Court first enunciated the exclusionary rule for fourth amendment claims in state courts, it apparently relied on both a deterrence rationale and a judicial integrity rationale. See Mapp v. Ohio, 367 U.S. 643, 656-67 (1961). After deciding Mapp v. Ohio, the Supreme Court applied the exclusionary rule in habeas cases without hesitation. See, e.g., Chambers v. Maroney, 399 U.S. 42 (1970).

Before deciding Stone, the Supreme Court had already downplayed the judicial integrity rationale. In 1975, in an opinion by Justice Rehnquist, the Court conflated the deterrent rationale with the judicial integrity rationale by suggesting that in-court use of illegally seized evidence offended judicial integrity only when such use would actually encourage police misconduct. See United States



provided the habeas petitioner with an opportunity for full and fair litigation of fourth amendment claims, a federal habeas court may not grant relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at tria1.401

Although Stone significantly reduced the scope of habeas review of fourth amendment claims, such claims may still be asserted in habeas corpus if the petitioner alleges that he did not have an opportunity to litigate his fourth amendment claim fully and fairly in state court. The Study, which began after the Supreme Court decided Stone, revealed that fourth amendment exclusionary rule claims remained viable on habeas corpus review. Of all petitions attacking convictions, 15.5% included claims of an illegal search or seizure, and another 9.1 % advanced claims of unlawful arrest.402 Although the Supreme Court also decided that Stone would apply retroactively to petitions pending in the federal courts,40S attacks on convictions based on claims of illegal search or seizure succeeded in whole or part in 2.5% of petitions that included this

v. Peltier, 422 U.S. 531, 536-39 (1975). Therefore, the Court's reasoning in Stone, which treated deterrence as the principle goal of the exclusionary rule, is not surprising.

401. 428 U.S. at 494. 402. See Table 29, supra note 379. 403. 428 U.S. at 496 n.38.


764 RUTGERSLA W JOURNAL [Vol. 13:675

ground,404 just below the overall success rate of 3.1 % for claims attacking

404. [d.

TABLE 30: GROUND FOR CLAIM ATTACK CONVICTION BY DISTRICT COURT DISPOSITION


'" .... .., .<:! ., .... '" ... - 0 ., .S

., 0 .., '" .., '"

. Ground for Claim .... ..,.., 0 ....

~ :g ..,'" ., '" ., ..,

..,<>. ..,.,,,, ' " .,;, ., ., '" 0 ..,..,.., Q) .~ C,) Attacking Q) 0 f Q) .... " Q) Q) " . ~ S .~ .., ~ ~ .... .- .... ..... :l t';$ .- ~ ~ "'''' S ... Q)

Conviction '" <>. .... §~~ "'0- ",.- '" '" .... ..,~ '" .., ...

Q) S 0 Q) .... Q) Q).5 Q) .... '" .... Q) is .~ 0 Q ....... Q .. r.l QIl.Q QU Q <;!lll. Oil::

Improper Guilty 2.0% 39.% 1.5% 9.5% 39.2% 2.5% 0.0% 0.5% 5.1% Plea (4) (79) (3) (19) (78) (5) (0) (1) (10)

Coerced 0.0% 34.1% 0.0% 9.8% 47.6% 4.9% 0.0% 0.0% 3.6% Confession (0) (28) (0) (8) (39) (4) (0) (0) (3)

Search or 1.3% 30.0% 2.5% 14.2% 41.3% 0.8% 1.7% 2.0% 6.2% Seizure (3) (72) (6) (34) (99) (2) (4) (5) (15)

Unlawful 2.0% 27.0% 2.7% 14.2% 43.9% 2.7% 0.0% 0.7% 6.8% Arrest (3) (40) (4) (21) (65) (4) (0) (1) (10)

Self-Incrimi- 0.5% 32.8% 3.6% 8.9% 42.2% 2.6% 0.0% 0.0% 9.4% nation (1) (63) (7) (17) (81) (5) (0) (0) (18)

N on-disclosure of 0.9% 27.8% 2.8% 4.6% 48.1% 1.9% 1.9% 0.9% 11.1% Favorable Evid. (1) (3) (3) (5) (52) (2) (2) (1) (12)

Double 0.0% 48.0% 1.3% 10.7% 32.0% 1.3% 0.0% 0.0% 6.7% Jeopardy (0) (36) (1) (8) (24) (1) (0) (0) (5)

Unconstitutional 0.0% 24.1% 0.0% 17.2% 52.9% 0.0% 0.0% 1.1% 4.6% Jury (0) (21) (0) (15) (46) (0) (0) (1) (4)

Right of 1.3% 58.2% 1.3% 6.3% 30.4% 0.0% 0.0% 0.0% 2.5% Appeal (1) (46) (1) (5) (24) (0) (0) (0) (2)

Ineffective Assis- 1.0% 39.3% 2.7% 9.9% 36.9% 0.9% 1.0% 1.0% 7.0% tance of Counsel (7) (251) (17) (63) (236) (16) (7) (7) (45)

Invalid 0.0% 23.7% 0.6% 10.3% 52.6% 2.6% 0.6% 0.6% 9.0% Identification (0) (37) (1) (16) (82) (4) (1) (1) (14)

Insufficient 1.9% 27.0% 1.9% 9.0% 50.4% 0.5% 0.8% 0.8% 7.6% Evidence (7) (99) (7) (133) (185) (2) (3) (3) (28)

Unconstitutional 0.00/0 14.3% 0.0% 14.3% 45.6% 2.9% 5.7% 2.9% 14.3% Crim. Stat. (0) (5) (0) (5) (16) (1) (2) (1) (5)

Denial of 0.0% 40.7% 3.7% 4.6% 40.7% 3.7% 0.0% 1.9% 4.7% Counsel (0) (44) (4) (5) (44) (4) (0) (2) (5)

Denial of 2.9% 20.0% 2.9% 8.6% 37.0% 8.6% 5.7% 0.0% 14.2% Severance (1) (7) (1) (3) (13) (3) (2) (0) (5)

Speedy 0.9% 38.2% 0.9% 7.3% 43.6% 0.0% 1.8% 0.0% 7.3% Trial (1) '(42) (1) (8) (48) (0) (2) (0) (8)

Prejudice 0.6% 28.9% 0.6% 12.7% 51.2% 0.6% 0.6% 1.8% 3.0% Stat. (1) (48) (1) (21) (85) (1) (1) (3) (5)

Lack of 0.0% 60.0% 4.0% 8.0% 24.0% 0.0% 0.0% 0.0% 4.0% Transcript (0) (15) (1) (2) (6) (0) (0) (0) (1)

Jury 0.5% 25.9% 1.0% 10.2% 49.7% 2.0% 2.0% 2.0% 6.7% Instructions (1) (51) (2) (20) (98) (4) (4) (4) (13)

Evidentiary 0.8% 25.2% 1.4% 11.8% 49.6% 2.8% 0.8% 0.6% 7.0% Rulings (3) (90) (5) (42) (177) (10) (13) (2) (25)

Miscellaneous 0.7% 31.5% 0.0% 7.5% 48.6% 1.4% 0.7% 0.7% 8.9% Trial Errors (1) (46) (0) (11) (71) (2) (1) (1) (13)

New Interpreta- 0.0% 50.0% 0.0% 33.3% 0.0% 0.0% 0.0% 0.0% 16.7% tion of Law (0) (3) (0) (2) (0) (0) (0) (0) (1)

Other 1.0% 34.8% 2.8% 11.2% 38.4% 1.3% 1.4% 1.0% 8.1°,b (7) (246) (20) (79) (271) (9) (10) (17) (57)

....::l ..: !'-< 0 !'-<

4.7 (199)

1.9% (82)

5.6% (240)

3.5% (148)

4.5% (192)

2.5% (108)

1.8% (76)

2.0% (87)

1.9% (79)

15.0% (639)

3.7% (156)

8.6% (367)

0.8% (35)

2.5% (108)

0.8% (35 )

2.6% (110)

3.9% (166)

0.6% (25)

4.6% (197)

8.4% (357)

3.4% (146)

0.1°,b (6)

16.6°,b (706)



convictions. Claims of unlawful arrest had a success rate of 2.7%. Because petitioners had to establish the absence of full and fair opportunity to litigate their fourth amendment claim in the state courts before the federal habeas court would consider the claim, the continued popularity and success of this claim was an unexpected finding. Several factors, however, may explain the result. Because the Study followed soon after the Supreme Court decided Stone, some states may not have yet imple-· mented the corrective process that would preclude later federal habeas review. Even in states that had sufficient corrective process, the vague and undefined standard of "full and fair opportunity to litigate" may have encouraged petitioners to proceed in federal habeas corpus with fourth amendment claims anyway.

The Stone decision adopted, in substance, a criterion for defining the scope of the habeas jurisdiction of fourth amendment claims urged by Professor Paul Bator almost fifteen years before, for the entire range of issues cognizable in habeas.405 Bator noted that a broad writ damages society's interest in the finality of judgments, depletes judicial resources, offends state courts' sense of institutional responsibility, and impugns substantive criminal law goals. He suggested that limiting federal habeas review to cases in which either the state court lacked jurisidiction or the state corrective process had failed would better accommodate these societal interests.406

Although the Stone holding relied on the concept of the adequacy of the state's corrective process, the Stone rationale is firmly anchored in the guilt-oriented jurisprudence of the Burger Court, which stresses the reliability of the criminal trial court's factfinding.407 Only a minority of the Court, however, currently espouses and consistently adheres to this approach. The Court itself does not appear ready to eliminate non-guilt related claims from federal habeas jurisdiction.406 Most of the recent

405. Bator, 8upranote 1 at 528. 406. Id. at 451-53. 407. See generally Seidman, Factual Guilt and the Burger Court: An Ex

amination of Continuity and Change in Criminal Procedure , 80 COLUM. L. REV. 436 (1980). Justice Black was one of the most ardent supporters of aligning the scope of collateral review with the integrity of the criminal trial's factfinding function. See Kaufman v. United States, 394 U.S. 217, 237-42 (1969) (Black, J., dissenting) (noting that the fourth amendment exclusionary rule undermines the factfinding function of trial).

408. Justice Powell, the most articulate and persistent member of the minority, has complained that fourth amendment claims "rarely bear on innocence," and that the detention of habeas petitioners raising fourth amendment claims is quite just because they have often committed the crime with which they have been charged. Schneckloth v. Bustamonte, 412 U.S. 218, 250, 258 (1973) (Powell, J., concurring). Justice Powell's views on the proper scope of issues cognizable in habeas corpus do not yet command a majority of the Supreme Court, and his rhetoric was relegated to a footnote in Stone. 428 U.S. at 491-92 n.31. Nor is the Supreme Court ready to eliminate other non-guilt-related claims, such as challenges to discrimina-



legislative proposals to reform the range of issues cognizable in federal habeas corpus have focused on undoing the Stone decision. Each congress since the Court decided Stone has considered but declined to enact bills that would return plenary consideration of fourth amendment claims to habeas review.'o9

(2) The Benefits and Burdens of a Guilt-Related Jurisprudence in Federal Habeas Corpus

The Burger Court's concern with preserving the integrity of the trial court's factfinding process has, on occasion, redounded to the benefit of the habeas petitioner. During the course of the Study, the federal courts reviewed claims of insufficient evidence on the basis of the "no evidence" standard, thus largely deferring to the state substantive criminal law to determine the sufficiency of the evidence. Only when no evidence supported an element of the crime charged did due process require that a state conviction be vacated.410 Proceeding under this low standard of review, 22.4% of petitions attacking convictions included claims of insufficient evidence.41l Petitioners received relief in whole or part for only

torily selected grand juries. The Court recently declined to follow Justice Powell's narrow view of the scope of habeas and reaffirmed the basic law of grand jury discrimination. Habeas corpus will lie to challenge the racial composition of a grand jury that indicted a petitioner whom a properly constituted petit jury later convicts. Rose v. Mitchell, 443 U.S. 545, 564 (1979). In Rose, Justice Powell reiterated his view that habeas review is an inappropriate remedy when there is no need to protect an innocent person from unjust punishment. [d. at 587 (Powell, J., concurring).

The Supreme Court has also described the exclusionary rule created in Miranda v. Arizona, 384 U.S. 436 (1966), as a judicially created rule designed to deter fifth amendment violations. See Michigan v. Tucker, 417 U.S. 433, 446-47 (1974). Accordingly, some members of the Court are willing to extend the utilitarian analysis of Stone to excise fifth and sixth amendment claims from habeas corpus. See Brewer v. Williams, 430 U.S. 387, 421-22 (1977) (Burger, C.J., dissenting). The rest of the Court, however, does not seem inclined to follow this path for other exclusionary rules, apparently viewing the fourth amendment as sui generis in its effect of impeding the factfinding process. [d. at 414.

409. The first congressional attempt to undo Stone occurred while Congress was considering enactment of the Rules. This bill would have disallowed federal courts from denying petitioners' fourth amendment claims on the basis that they had an opportunity to litigate those claims fully and fairly in state courts. See Hearings on H.R. 15319 Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 94th Cong., 2d Sess. 70-76 (1976) (testimony of Prof. Friedman). Congress declined to accept this change. See H.R. REP. No. 1471, 94th Cong., 2d Sess. 2-3 (1976). Later congressional attempts also failed. See S. 1817, supra note 3; H.R. 2001, 96th Con g., 1st Sess. (1979); H.R. 4879, 96th Cong., 1st Sess. (1979); S. 1314, supra note 3; S. 3886, supra note 3. See also Report of the Committee on Civil Rights: Pending Legislation to Amend the Federal Habeas Corpus Statutes, 35 N.Y. CITY B. ASS·N REC. 124 (1980).

410. Thompson v. Louisville, 362 U.S. 199, 199 (1960). 411. See Table 29, supra note 379.



1.3% of these claims, a success rate well below the average of 3.1 %.412 Since the conclusion of the Study, however, the Supreme Court has revised the due process standard of review. In Jackson v. Virginia,413 the Court held that due process of law requires that the prosecution's evidence be sufficient for a rational trier of fact to find guilt beyond a reasonable doubt and that this sufficiency be apparent to the federal habeas court.414 After Jackson, a habeas challenge to the sufficiency of the evidence supporting conviction requires comprehensive federal court review of the state court trial record.415 The Jackson decision could usher in an era of heightened federal review of state court jUdgments, with greater federal control over the quantity and quality of evidence used in state criminal trials. Jackson thus signifies that the present Court will subordinate the values of finality, federalism, and judicial efficiency when the fundamental value of protecting innocent criminal defendants from unjust punishment is at stake.

A petitioner may attack his guilty plea in habeas, and if the federal court finds that the plea did not constitute an intelligent and voluntary admission of guilt, the court will vacate the conviction.416 Although most criminal defendants plead guilty to the charges against them,417 only 18.2% of the habeas petitioners studied had originally pleaded gUilty.418 Of the petitioners attacking convictions, 13.1 % challenged the validity of a guilty plea.419 The relative scarcity of habeas challenges to guilty pleas

412. See Table 30, supra note 404. 413. 443 U.S. 307 (1979). 414. Id. at 319. Before the Jackson decision, an uneasy tension existed in this

area of the law. In 1970, the Supreme Court squarely held that the due process clause of the fourteenth amendment requires the state to prove beyond a reasonable doubt every fact that constitutes the crime charged. In re Winship, 397 U.S. 358, 364 (1970). Despite its incorporation of the "beyond reasonable doubt" standard into the requirement of due process of law, the Court refused to reconsider the "no evidence" rule of Thompson v. Louisville, supra note 410. See Cunha v. Brewer, 511 F.2d 894, 900 (8th Cir.), cert. denied, 423 U.S. 857 (1975).

415. In many cases the record will be a summary statement of facts admitted to by a defendant at a guilty-plea hearing and, therefore, will not consume much judicial time.

416. See Brady v. United States, 397 U.S. 742, 747 (1970) (invalidating a coerced guilty plea). When the defendant enters a guilty plea without adequate notice of its consequences, the court will vacate the conviction. Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969). A guilty plea that is based on reasonably competent advice of counsel, however, constitutes an intelligent plea and is not vulnerable on collateral attack simply because of counsel's misjudgment. McMann v. Richardson, 397 U.S. 759, 770 (1970).

417. See ABA PROJECT ON MINIMUM STANDARDS FOR CRIMINAL JUSTICE, PLEAS OF GUILTY 1-2 (1968) (estimating as many as 95% of all criminal defendants plead guilty).

418. App. F.19. But see Justice, Prisoners' Litigation in the Federal Courts, 51 TEX. L. REV. 707, 710 n.9 (1973) (claiming that most habeas petitioners attack guilty pleas).

419. See Table 29, supra note 379.



may have resulted from restrictive Supreme Court decisions giving special deference to guilty pleas.42o

Because a valid guilty plea settles the issue of guilt,421 the Burger Court has accorded guilty pleas great weight. Consistent with this policy, the Court held that a valid guilty plea constitutes a waiver of prior known and unknown constitutional violations.422 The guilty plea "represents a break in the chain of events which has preceded it in the criminal process,"423 and the defendant who has admitted his guilt may not later raise claims of alleged constitutional violations that occurred before the plea:24 A guilty plea thus potentially limits the claims a habeas petitioner may raise. A habeas petitioner who has pleaded guilty must first succeed in invalidating his plea before the habeas court can reach other grounds of constitutional infirmity in his conviction.

The burden imposed by waiver may generally discourage petitioners who have pleaded guilty from filing habeas petitions. This discouragement, therefore, could serve to explain why so few habeas petitioners have pleaded guilty. Petitioners received relief, however, for 2.5% of their claims of improper guilty pleas, just below the overall rate of success for claims attacking convictions - 3.1 %:25 This relatively high rate of success suggests that other, more subjective factors may operate to discourage such a large portion of guilty-pleading state prisoners from filing federal habeas petitions. These prisoners may refrain from filing habeas petitions out of a belief that a prior guilty plea reduces the likelihood of success. Additionally, prisoners who have already publicly admitted guilt may feel less compelled to pursue further opportunities to attack their convictions. These prisoners may also believe that, all things considered, they struck a good bargain, and that a retrial might only result in a harsher sentence.

C. The Interrelation Between the Grounds Advanced and District Court Disposition

(1) Denials for Failure to Exhaust State Remedies

The nature of the ground attacking a conviction significantly influenced the district court's disposition of a case. The average rate of denial for claims attacking convictions for failure to exhaust state remedies was

420. See, e.g., Santobello v. New York, 404 U.S. 257, 260 (1971) (approving and encouraging the use of properly administered plea bargaining as an essential component of the administration of justice).

421. Menna v. New York, 423 U.S. 61, 62-63 n.2 (1975). 422. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). 423. fd. 424. fd. 425. See Table 30, supra note 404.



29.9%. The district courts, however, denied the writ on exhaustion grounds in only 14.3% of the cases in which the petitioner challenged his conviction on the ground that the state prosecuted him under an unconstitutional criminal statute.426 This relatively low rate of non-exhaustion denials may have reflected the state trial and appellate courts' greater consistency in addressing claims, such as claims of an unconstitutional criminal statute, which if valid, threatened to disrupt the orderly administration of criminal justice throughout the state. Because the state courts may have addressed these claims explicitly when affirming the defendants' convictions, these petitioners advanced to federal habeas· court with clear documentation of having exhausted the claim of an unconstitutional statute. The lower rate of non-exhaustion denials may also have reflected the federal courts' eagerness to remove any shadow of constitutional doubt from the state statute in order to minimize any interference with the state's administration of its criminal law.

The federal district courts denied claims of violations of the rights to appeal and to a trial transcript for non-exhaustion about twice as often as the average rate of denials for non-exhaustion-in 58.2% and 60.0% of these claims, respectively.427 The increased rate of non-exhaustion denials of these claims may have resulted from the federal habeas courts' desire to have state courts clearly express their opinions on claims, such as these, which affect the state courts' procedures and administration. Ironically, petitioners who complained that the state had an extra, impermissible opportunity to prosecute them, and thus had violated the fifth amendment's prohibition against double jeopardy, were sent back to exhaust state remedies at the rate of 48.0%, well above the average rate of 29.9%.428 This high rate of non-exhaustion denials may reflect the discomfort the district courts felt in applying recent, confusing Supreme Court precedents in the law of double jeopardy and the deference that must be given to the state trial court's determination of "manifest necessity" for declaring a mistrial.'29

(2) Denials for Failure to State a Claim

The district courts were more likely to dismiss certain claims as failing to state a claim upon which they could grant relief. Overall, the courts nonsuited 11.2% of claims attacking convictions.43o The courts nonsuited 33.3% of the claims asserting that a new interpretation of federal law

426. Id. 427. Id. 428. Id. 429. See generally Weston & Drubel, Toward a General Theory of Double

Jeopardy, 1978 SUP. CT. REV. 81. 430. See Table 30, supra note 404.



vitiated a conviction.431 The highly contentious nature of this claim and the paucity of new, more expansive interpretations in the law of constitutional criminal procedure explain this higher rate. The district courts nonsuited 17.2% of the claims of unconstitutionally selected juries.432 The relatively higher rate for this claim may result from the proof problems facing the petitioner who wishes to establish intentional discrimination in the selection of jurors.433

(3) Successful Grounds

Prejudicial denial of severance was the most successful ground for attacking a conviction.434 The district courts granted relief on this ground in 14.3% of the cases. This rate was far above the overall success rate of 3.1 % for claims attacking convictions and suggests that state court reliance on joinder of offenses and joinder of criminal defendants to conserve judicial resources may be a false economy. After the habeas petitioner wins relief on this ground, the state must either conduct another trial or forego its interest in punishing the petitioner. Other grounds that merited the writ more often than average were claims of unconstitutional criminal statutes and of coerced confessions. The district courts granted the writ for 8.6% and 4.9%, respectively, of the petitions including these grounds.435

(4) Denials on the Merits

Claims of unconstitutional jury selection, of violations of the rights to appeal and to a transcript, and of new interpretations of law never merited the writ during the course of the Study. 436 The low success rate in habeas for equal protection challenges to jury selection may have reflected the difficult proof problems facing the petitioners in these cases.437 The absence of new interpretations of law, which would vitiate a conviction, explains the low success rate for this claim. The extraordinarily high rate of exhaustion denials for claimed violations of the rights to appeal and to a transcript may have kept the district courts from considering meritorious claims of these kinds, and thus explain the lower than average success rates. Other relatively unsuccessful grounds

431. The small sample size for this ground of dismissal (only six such claims or 0.1 % of all claims) may have distorted the figure.

432. Id. 433. See, e.g., Moultrie v. Martin, 690 F.2d 1078, 1082 (4th Cir. 1982)

(Widener, J.) (requiring rigorous statistical proof of discrimination, in the absence of direct evidence).

434. See Table 30, supra note 404. 435.Id. 436. Id. See supra note 466 and accompanying text. 437. See supra note 433.



were allegations of insufficient evidence of guilt and double jeopardy for the same offense. District courts granted relief in 1.3% of the cases raising each claim!38 The lower than average (3.1 %) success rate for claims of insufficient evidence may have resulted from the nonsearching "no evidence" standard of review that prevailed during the course of the Study!39 This rate may have increased substantially since the end of the Study because of subsequent revisions in this area of the law. The relatively low rate for double jeopardy claims may well reflect the increased deference the Supreme Court has shown trial court determinations of the "manifest necessity" for declaring a mistrial which does not bar a later retrial, and also the increased importance the Court has attached to upholding the convictions of the factually guilty.440

It is noteworthy that no single claim attacking a conviction was denied on its merits to a degree that far exceeded denials of the other types of claims.441 Thus, it seems that no ground lends itself to the sort of frivolity that wastes valuable court resources. As a consequence, it may be very difficult to promote the values of federalism, finality, and judicial efficiency by manipulating the range of issues cognizable in habeas corpus.

VI. CONCLUSION

The current regime of federal habeas corpus represents a delicate balance between important societal interests and values. Federal habeas corpus, like all our civil institutions and constitutional liberties, is an entailed inheritance; we all share the responsibility for maintaining and perpetuating the writ in a meaningful form. Reforming the habeas process is our civic duty, not merely the idle tinkering of legislators or the vaporings of academicians.

The business of reforming federal habeas corpus, involving as it does such a delicate balance among competing interests and values, cannot be undertaken in an experiential vacuum or an ideological cauldron. Reform must proceed with circumspection and caution; it must proceed from a sound base of experience.

Today federal habeas corpus has become so complex in its procedural

438. See Table 30, supra note 404. 439. See supra notes 423-27 and accompanying text. 440. See Arizona v. Washington, 434 U.S. 497, 516-17 (1978) (upholding convic

tion despite the trial court's failure to articulate reasons for declaring mistrial); United States v. Scott, 437 U.S. 82, 93-94 (1978) (permitting retrial after dismissal on grounds unrelated to factual guilt); Illinois v. Somerville, 410 U.S. 458, 469 (1973) (finding "manifest necessity" and upholding conviction after mistrial when mistrial resulted from prosecution's carelessness in drafting indictment and no less drastic measure was available to cure the indictment).

441. See Table 30, supra note 404.



details that the requisite empirical understanding of its workings is very elusive. It is difficult enough to understand the habeas process as it exists, let alone to understand how it should be. We hope that this Article on different aspects of the habeas process can inform the attempts to reform this institution, while helping to preserve and accommodate its underlying values. Although the results of this Study admit of no simple conclusions, they do show many of the current efforts to rewrite the laws governing federal habeas corpus to be seriously misguided. They also show that there are other areas in which reform could benefit all the interested parties and advance apparently conflicting interests simultaneously.


RUTGERS LAW JOURNAL

Volume 13

Managing Editors KAREN A. BRANCHEAU ANTONIA R. COLBERT SCOTT J. SHELDON

Summer 1982

BOARD OF EDITORS

Editor-in-Chiej KAREN M. ALLEN

Number 4

Administrative Editor JOHN A. MARLEY

Research Editor DEBORAH A. LEFCO

Notes and Comments Editors DUANE C. ANDRESEN

A rticles Editor NATHAN A. SCHACHTMAN

DONALD B. BRENNER DAVID K. COHEN SUSAN E. PENDERY

JOHN J. FRANZINI CYNTHIA A. LOCKE

JEFFREY A. BARTOLINO STUART E. BERNSEN JEFFREY BLUMENFELD MICHAEL A. BOGDONOFF CHERYL BUKALA ALAN R. CARLTON JEFF ELLENTUCK

Secretary JULIA M. PUJOLS

ASSOCIATE EDITORS

STAFF

Symposium Editor VALERIE J. MUNSON

M. ELLEN MOFFETT MINDY H. STERN

JOSEPH F. FABIAN, JR. TIMOTHY P. RILEY KATHRYN FERGUSON DIANA SEIDEMAN-KINGSBURY MARK W. FORD THOMAS R. SLOME ALAN M. GREEN CHARLES R. STERBECH JAMES D. HARRIS JEFFREY R. SURENIAN SHARLENE A. HUNT CORNELIUS J. TANIS KEVIN KOSZTYN MARY CHRISTIE WISE DOLORES McNAMEE KELLY

Faculty Advisor JAY M. FEINMAN

RUTGERS LAW JOURNAL

Volume 13

Managing Editors KAREN A. BRANCHEAU ANTONIA R. COLBERT SCOTT J. SHELDON

Summer 1982

BOARD OF EDITORS

Editor-in-Chiej KAREN M. ALLEN

Number 4

Administrative Editor JOHN A. MARLEY

Research Editor DEBORAH A. LEFCO

Notes and Comments Editors DUANE C. ANDRESEN

A rticles Editor NATHAN A. SCHACHTMAN

DONALD B. BRENNER DAVID K. COHEN SUSAN E. PENDERY

JOHN J. FRANZINI CYNTHIA A. LOCKE

JEFFREY A. BARTOLINO STUART E. BERNSEN JEFFREY BLUMENFELD MICHAEL A. BOGDONOFF CHERYL BUKALA ALAN R. CARLTON JEFF ELLENTUCK

Secretary JULIA M. PUJOLS

ASSOCIATE EDITORS

STAFF

Symposium Editor VALERIE J. MUNSON

M. ELLEN MOFFETT MINDY H. STERN

JOSEPH F. FABIAN, JR. TIMOTHY P. RILEY KATHRYN FERGUSON DIANA SEIDEMAN-KINGSBURY MARK W. FORD THOMAS R. SLOME ALAN M. GREEN CHARLES R. STERBECH JAMES D. HARRIS JEFFREY R. SURENIAN SHARLENE A. HUNT CORNELIUS J. TANIS KEVIN KOSZTYN MARY CHRISTIE WISE DOLORES McNAMEE KELLY

Faculty Advisor JAY M. FEINMAN

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