This week offers three stunning decisions, two coming from the United States Supreme Court and the third from the Florida Supreme Court. In each case the reverberations will be far lasting and far reaching. The briefs for the opinions are located at the end of this week's edition.

The heart of the federal habeas corpus statute, section 28 U.S.C. § 2254(d) is interpreted in Taylor Williams v Taylor. In this opinion Justice O'Connor delivers the court interpretation on the new AEDPA standard and Justice Stevens delivers an interpretation of ineffective assistance of counsel at marked variance with the standard many state and federal appellate courts have been using. A brief analysis on each prong is offered below.

The factual component of the habeas corpus statute, 28 U.S.C § 2254(e), is interpreted in Michael Williams v. Taylor. The Court holds the question for whether or not there should be an evidentiary hearing in a case "is not whether the facts could have been discovered but instead whether the prisoner was diligent in his efforts." Pursuit of an state court evidentiary hearing, making a prima facie case and common sense investigation of a claim seems to be enough to get a federal hearing under this Justice Kennedy opinion.

In Allen v. Butterworth the Florida Supreme Court unanimously struck down the state's Death Penalty Reform Act, stating that it violated defendants' rights of due process and equal protection and was an unconstitutional infringement on the Court's power to set the rules and procedures for death penalty cases. The Act, passed during a special legislative session in January, was an effort to speed up executions by forcing inmates to appeal their trial verdict and subsequent challenges to their convictions simultaneously, instead of one after the other.

A fourth capital case, Bell v. Coe, which was originally slotted to be the leading case this week, examines a long postponed execution in Tennessee and the competency to be executed. The execution marks the first in forty years in that state. The forty year Tennessee in moratorium bares witness to the skill and dedication of the lawyers, paralegals, investigators, activists and abolitionists involved in this and other cases. A second scheduled execution has been postponed indefinitely pending rehearing en banc on a successive petition.

Due to the expanded coverage of the Williams cases and other capital cases this week, the usual grab bag of other decisions including noncapital Supreme Court cases, prisoner's rights and general habeas corpus cases will be run at a later date, including one suit by a former death row inmate against his prosecutors in the Third Circuit, Smith v. Holtz.

The best analysis to date i have seen comes from the National Law Journal (law.com) which can be accessed by clicking here or visiting the weekly's web site at http://capitaldefenseweekly.com/CDW. The Law Journal's story also covers the Ramdass oral arguments before the Court tuesday (which by all accounts went well).

Supreme Court

Terry Williams v Taylor In this opinion Justice O'Connor delivers the new AEDPA standard and Justice Stevens delivers an interpretation of ineffective assistance of counsel at marked variance with the standard many state and federal appellate courts have been using. The majority opinion on the AEDPA standards holds the question should be whether the state court's decision was "objective[ly] unreasonable," the word "unreasonable" is "no doubt difficult to define," it was "a common term in the legal world and, accordingly, federal judges are familiar with its meaning." The key portions of the opinions of Justices O'Connor (section II.B.) and Stevens (section IV) are merged together so the reading as to what the "majority" opinion is can be done without referral to differing portions of the opinion.

Analysis: There are two distinct precedents in Terry Williams the AEDPA and the ineffectiveness holding:

AEDPA: The core holding on the AEDPA standard of adjudication is found in the two penultimate sentences of of Justice O'Connor Section II.B. "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Note the near mirror of this language to the First Circuit's language in O’Brien v. Dubois, 145 F.3d 16, 20 (1st Cir. 1998).

Ineffective Assistance Counsel: The portion of the opinion that many are overlooking has perhaps the widest immediate impact on capital litigation. "The Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell, 506 U. S. 364 (1993), modified or in some way supplanted the rule set down in Strickland." Numerous courts have held. and innumerable Attorneys General's offices argued, that Fretwell rewrote the Strickland standard. The IAC portion of the opinion should open the way for reversals in numerous capital cases in the next few years as those cases are vacated in ight of Justice Stevens' opinion.

Justice O'Connor's portoin of the majority opinion:

There remains the task of defining what exactly qualifies as an “unreasonable application” of law under §2254(d)(1). The Fourth Circuit held in Green that a state-court decision involves an “unreasonable application of … clearly established Federal law” only if the state court has applied federal law “in a manner that reasonable jurists would all agree is unreasonable.” 143 F.3d, at 870. The placement of this additional overlay on the “unreasonable application” clause was erroneous. It is difficult to fault the Fourth Circuit for using this language given the fact that we have employed nearly identical terminology to describe the related inquiry undertaken by federal courts in applying the nonretroactivity rule of Teague. For example, in Lambrix v. Singletary, 520 U.S. 518 (1997), we stated that a new rule is not dictated by precedent unless it would be “apparent to all reasonable jurists.” Id., at 528 (emphasis added). In Graham v. Collins, 506 U.S. 461 (1993), another nonretroactivity case, we employed similar language, stating that we could not say “that all reasonable jurists would have deemed themselves compelled to accept Graham’s claim in 1984.” Id., at 477 (emphasis added).

Defining an “unreasonable application” by reference to a “reasonable jurist,” however, is of little assistance to the courts that must apply §2254(d)(1) and, in fact, may be misleading. Stated simply, a federal habeas court making the “unreasonable application” inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable. The federal habeas court should not transform the inquiry into a subjective one by resting its determination instead on the simple fact that at least one of the Nation’s jurists has applied the relevant federal law in the same manner the state court did in the habeas petitioner’s case. The “all reasonable jurists” standard would tend to mislead federal habeas courts by focusing their attention on a subjective inquiry rather than on an objective one. For example, the Fifth Circuit appears to have applied its “reasonable jurist” standard in just such a subjective manner. See Drinkard v. Johnson, 97 F.3d 751, 769 (1996) (holding that state court’s application of federal law was not unreasonable because the Fifth Circuit panel split 2—1 on the underlying mixed constitutional question), cert. denied, 520 U.S. 1107 (1997). As I explained in Wright with respect to the “reasonable jurist” standard in the Teague context, “[e]ven though we have characterized the new rule inquiry as whether ‘reasonable jurists’ could disagree as to whether a result is dictated by precedent, the standard for determining when a case establishes a new rule is ‘objective,’ and the mere existence of conflicting authority does not necessarily mean a rule is new.” 505 U.S., at 304 (citation omitted).

The term “unreasonable” is no doubt difficult to define. That said, it is a common term in the legal world and, accordingly, federal judges are familiar with its meaning. For purposes of today’s opinion, the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law. Our opinions in Wright, for example, make that difference clear. Justice Thomas’ criticism of this Court’s subsequent reliance on Brown turned on that distinction. The Court in Brown, Justice Thomas contended, held only that a federal habeas court must determine whether the relevant state-court adjudication resulted in a “ ‘satisfactory conclusion.’ ” 505 U.S., at 287 (quoting Brown, 344 U.S., at 463). In Justice Thomas’ view, Brown did not answer “the question whether a ‘satisfactory’ conclusion was one that the habeas court considered correct, as opposed to merely reasonable.” 505 U.S., at 287 (emphases in original). In my separate opinion in Wright, I made the same distinction, maintaining that “a state court’s incorrect legal determination has [never] been allowed to stand because it was reasonable. We have always held that federal courts, even on habeas, have an independent obligation to say what the law is.” Id., at 305 (emphases added). In §2254(d)(1), Congress specifically used the word “unreasonable,” and not a term like “erroneous” or “incorrect.” Under §2254(d)(1)’s “unreasonable application” clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.

Justice Stevens turns a blind eye to the debate in Wright because he finds no indication in §2254(d)(1) itself that Congress was “directly influenced” by Justice Thomas’ opinion in Wright. Ante, at 23, n. 14. As Justice Stevens himself apparently recognizes, however, Congress need not mention a prior decision of this Court by name in a statute’s text in order to adopt either a rule or a meaning given a certain term in that decision. See ante, at 15, n. 11. In any event, whether Congress intended to codify the standard of review suggested by Justice Thomas in Wright is beside the point. Wright is important for the light it sheds on §2254(d)(1)’s requirement that a federal habeas court inquire into the reasonableness of a state court’s application of clearly established federal law. The separate opinions in Wright concerned the very issue addressed by §2254(d)(1)’s “unreasonable application” clause–whether, in reviewing a state-court decision on a state prisoner’s claims under federal law, a federal habeas court should ask whether the state-court decision was correct or simply whether it was reasonable. Justice Stevens’ claim that the debate in Wright concerned only the meaning of the Teague nonretroactivity rule is simply incorrect. See ante, at 23, n. 14. As even a cursory review of Justice Thomas’ opinion and my own opinion reveals, both the broader debate and the specific statements to which we refer, see supra, at 13, concerned precisely the issue of the standard of review to be employed by federal habeas courts. The Wright opinions confirm what §2254(d)(1)’s language already makes clear–that an unreasonable application of federal law is different from an incorrect or erroneous application of federal law.

Throughout this discussion the meaning of the phrase “clearly established Federal law, as determined by the Supreme Court of the United States” has been put to the side. That statutory phrase refers to the holdings, as opposed to the dicta, of this Court’s decisions as of the time of the relevant state-court decision. In this respect, the “clearly established Federal law” phrase bears only a slight connection to our Teague jurisprudence. With one caveat, whatever would qualify as an old rule under our Teague jurisprudence will constitute “clearly established Federal law, as determined by the Supreme Court of the United States” under §2254(d)(1). See, e.g., Stringer v. Black, 503 U.S. 222, 228 (1992) (using term “old rule”). The one caveat, as the statutory language makes clear, is that §2254(d)(1) restricts the source of clearly established law to this Court’s jurisprudence.

In sum, §2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under §2254(d)(1), the writ may issue only if one of the following two conditions is satisfied–the state-court adjudication resulted in a decision that (1) “was contrary to … clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of … clearly established Federal law, as determined by the Supreme Court of the United States.” Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.

Justice Stevens' portoin of the majority opinion:

The Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell, 506 U. S. 364 (1993), modified or in some way supplanted the rule set down in Strickland. It is true that while the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims, there are situations in which the overriding focus on fundamental fairness may affect the analysis. Thus, on the one hand, as Strickland itself explained, there are a few situations in which prejudice may be presumed. 466 U. S., at 692. And, on the other hand, there are also situations in which it would be unjust to characterize the likelihood of a different outcome as legitimate "prejudice." Even if a defendant's false testimony might have persuaded the jury to acquit him, it is not fundamentally unfair to conclude that he was not prejudiced by counsel's interference with his intended perjury. Nix v. Whiteside, 475 U. S. 157, 175-176 (1986).

Similarly, in Lockhart, we concluded that, given the overriding interest in fundamental fairness, the likelihood of a different outcome attributable to an incorrect interpretation of the law should be regarded as a potential "windfall" to the defendant rather than the legitimate "prejudice" contemplated by our opinion in Strickland. The death sentence that Arkansas had imposed on Bobby Ray Fretwell was based on an aggravating circumstance (murder committed for pecuniary gain) that duplicated an element of the underlying felony (murder in the course of a robbery). Shortly before the trial, the United States Court of Appeals for the Eighth Circuit had held that such "double counting" was impermissible, see Collins v. Lockhart, 754 F. 2d 258, 265 (1985), but Fretwell's lawyer (presumably because he was unaware of the Collins decision) failed to object to the use of the pecuniary gain aggravator. Before Fretwell's claim for federal habeas corpus relief reached this Court, the Collins case was overruled. 17 Accordingly, even though the Arkansas trial judge probably would have sustained a timely objection to the double counting, it had become clear that the State had a right to rely on the disputed aggravating circumstance. Because the ineffectiveness of Fretwell's counsel had not deprived him of any substantive or procedural right to which the law entitled him, we held that his claim did not satisfy the "prejudice" component of the Strickland test. 18

Cases such as Nix v. Whiteside, 475 U. S. 157 (1986), and Lockhart v. Fretwell, 506 U. S. 364 (1993), do not justify a departure from a straightforward application of Strickland when the ineffectiveness of counsel does deprive the defendant of a substantive or procedural right to which the law entitles him.19 In the instant case, it is undisputed that Williams had a right--indeed, a constitutionally protected right--to provide the jury with the mitigating evidence that his trial counsel either failed to discover or failed to offer.

Nevertheless, the Virginia Supreme Court read our decision in Lockhart to require a separate inquiry into fundamental fairness even when Williams is able to show that his lawyer was ineffective and that his ineffectiveness probably affected the outcome of the proceeding. It wrote:

" `The prisoner argues there `is a "reasonable probability" that at least one juror would have been moved to spare Petitioner's life had he heard' the mitigation evidence developed at the habeas hearing that was not presented at the trial. Summarizing, he contends there `is a "reasonable probability" that had at least one juror heard any of this evidence--let alone all of this evidence--the outcome of this case would have been different.'

"We reject these contentions. The prisoner's discussion flies in the face of the Supreme Court's admonition in Lockhart, supra, that `an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.' " Williams, 254 Va., at 25, 487 S. E. 2d, at 199.

Unlike the Virginia Supreme Court, the state trial judge omitted any reference to Lockhart and simply relied on our opinion in Strickland as stating the correct standard for judging ineffective-assistance claims. With respect to the prejudice component, he wrote:

"Even if a Petitioner shows that counsel's performance was deficient, however, he must also show prejudice. Petitioner must show `that there is a reasonable probability that but for counsel's unprofessional errors, the result ... would have been different.' Strickland, 466 U. S. at 694. `A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Id. Indeed, it is insufficient to show only that the errors had some conceivable effect on the outcome of the proceeding, because virtually every act or omission of counsel would meet that test. Id. at 693. The petitioner bears the `highly demanding' and `heavy burden' in establishing actual prejudice." App. 417.

The trial judge analyzed the ineffective-assistance claim under the correct standard; the Virginia Supreme Court did not.

We are likewise persuaded that the Virginia trial judge correctly applied both components of that standard to Williams' ineffectiveness claim. Although he concluded that counsel competently handled the guilt phase of the trial, he found that their representation during the sentencing phase fell short of professional standards--a judgment barely disputed by the State in its brief to this Court. The record establishes that counsel did not begin to prepare for that phase of the proceeding until a week before the trial. Id., at 207, 227. They failed to conduct an investigation that would have uncovered extensive records graphically describing Williams' nightmarish childhood, not because of any strategic calculation but because they incorrectly thought that state law barred access to such records. Had they done so, the jury would have learned that Williams' parents had been imprisoned for the criminal neglect of Williams and his siblings,20 that Williams had been severely and repeatedly beaten by his father, that he had been committed to the custody of the social services bureau for two years during his parents' incarceration (including one stint in an abusive foster home), and then, after his parents were released from prison, had been returned to his parents' custody.

Counsel failed to introduce available evidence that Williams was "borderline mentally retarded" and did not advance beyond sixth grade in school. Id., at 595. They failed to seek prison records recording Williams' commendations for helping to crack a prison drug ring and for returning a guard's missing wallet, or the testimony of prison officials who described Williams as among the inmates "least likely to act in a violent, dangerous or provocative way." Id., at 569, 588. Counsel failed even to return the phone call of a certified public accountant who had offered to testify that he had visited Williams frequently when Williams was incarcerated as part of a prison ministry program, that Williams "seemed to thrive in a more regimented and structured environment," and that Williams was proud of the carpentry degree he earned while in prison. Id., at 563-566.

Of course, not all of the additional evidence was favorable to Williams. The juvenile records revealed that he had been thrice committed to the juvenile system--for aiding and abetting larceny when he was 11 years old, for pulling a false fire alarm when he was 12, and for breaking and entering when he was 15. Id., at 534-536. But as the Federal District Court correctly observed, the failure to introduce the comparatively voluminous amount of evidence that did speak in Williams' favor was not justified by a tactical decision to focus on Williams' voluntary confession. Whether or not those omissions were sufficiently prejudicial to have affected the outcome of sentencing, they clearly demonstrate that trial counsel did not fulfill their obligation to conduct a thorough investigation of the defendant's background. See 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed. 1980).

We are also persuaded, unlike the Virginia Supreme Court, that counsel's unprofessional service prejudiced Williams within the meaning of Strickland. After hearing the additional evidence developed in the postconviction proceedings, the very judge who presided at Williams' trial and who once determined that the death penalty was "just" and "appropriate," concluded that there existed "a reasonable probability that the result of the sentencing phase would have been different" if the jury had heard that evidence. App. 429. We do not agree with the Virginia Supreme Court that Judge Ingram's conclusion should be discounted because he apparently adopted "a per se approach to the prejudice element" that placed undue "emphasis on mere outcome determination." 254 Va., at 26-27, 487 S. E. 2d, at 200. Judge Ingram did stress the importance of mitigation evidence in making his "outcome determination," but it is clear that his predictive judgment rested on his assessment of the totality of the omitted evidence rather than on the notion that a single item of omitted evidence, no matter how trivial, would require a new hearing.

The Virginia Supreme Court's own analysis of prejudice reaching the contrary conclusion was thus unreasonable in at least two respects. First, as we have already explained, the State Supreme Court mischaracterized at best the appropriate rule, made clear by this Court in Strickland, for determining whether counsel's assistance was effective within the meaning of the Constitution. While it may also have conducted an "outcome determinative" analysis of its own, 254 Va., at 27, 487 S. E. 2d, at 200, it is evident to us that the court's decision turned on its erroneous view that a "mere" difference in outcome is not sufficient to establish constitutionally ineffective assistance of counsel. See supra, at 26. Its analysis in this respect was thus not only "contrary to," but also, inasmuch as the Virginia Supreme Court relied on the inapplicable exception recognized in Lockhart, an "unreasonable application of" the clear law as established by this Court.

Second, the State Supreme Court's prejudice determination was unreasonable insofar as it failed to evaluate the totality of the available mitigation evidence--both that adduced at trial, and the evidence adduced in the habeas proceeding--in reweighing it against the evidence in aggravation. See Clemons v. Mississippi, 494 U. S. 738, 751-752 (1990). This error is apparent in its consideration of the additional mitigation evidence developed in the postconviction proceedings. The court correctly found that as to "the factual part of the mixed question," there was "really ... n[o] ... dispute" that available mitigation evidence was not presented at trial. 254 Va., at 24, 487 S. E. 2d, at 198. As to the prejudice determination comprising the "legal part" of its analysis, id., at 23-25, 487 S. E. 2d, at 198-199, it correctly emphasized the strength of the prosecution evidence supporting the future dangerousness aggravating circumstance.

But the state court failed even to mention the sole argument in mitigation that trial counsel did advance--

Williams turned himself in, alerting police to a crime they otherwise would never have discovered, expressing remorse for his actions, and cooperating with the police after that. While this, coupled with the prison records and guard testimony, may not have overcome a finding of future dangerousness, the graphic description of Williams' childhood, filled with abuse and privation, or the reality that he was "borderline mentally retarded," might well have influenced the jury's appraisal of his moral culpability. See Boyde v. California, 494 U. S. 370, 387 (1990). The circumstances recited in his several confessions are consistent with the view that in each case his violent behavior was a compulsive reaction rather than the product of cold-blooded premeditation. Mitigating evidence unrelated to dangerousness may alter the jury's selection of penalty, even if it does not undermine or rebut the prosecution's death-eligibility case. The Virginia Supreme Court did not entertain that possibility. It thus failed to accord appropriate weight to the body of mitigation evidence available to trial counsel.

Michael. Williams v. Taylor. The Court holds the question for whether or not there should be an evidentiary hearing in a case "is not whether the facts could have been discovered but instead whether the prisoner was diligent in his efforts." Pursuit of an state court evidentiary hearing, making a prima facie case and common sense investigation of a claim seems to be enough to get a federal hearing under this Justice Kennedy opinion. Note, having just finished "borrowing" portions of Petitioner's brief in this case for a client in my own practice, I can honselty state that the brief is a superb "model brief" on the evidentiary hearing issue.

We start, as always, with the language of the statute. See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989). Section 2254(e)(2) begins with a conditional clause, “[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings,” which directs attention to the prisoner’s efforts in state court. We ask first whether the factual basis was indeed developed in state court, a question susceptible, in the normal course, of a simple yes or no answer. Here the answer is no.

The Commonwealth would have the analysis begin and end there. Under its no-fault reading of the statute, if there is no factual development in the state court, the federal habeas court may not inquire into the reasons for the default when determining whether the opening clause of §2254(e)(2) applies. We do not agree with the Commonwealth’s interpretation of the word “failed.”

We do not deny “fail” is sometimes used in a neutral way, not importing fault or want of diligence. So the phrase “We fail to understand his argument” can mean simply “We cannot understand his argument.” This is not the sense in which the word “failed” is used here, however.

We give the words of a statute their “‘ordinary, contemporary, common meaning,’” absent an indication Congress intended them to bear some different import. Walters v. Metropolitan Ed. Enterprises, Inc., 519 U.S. 202, 207 (1997) (quoting Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993)). See also Bailey v. United States, 516 U.S. 137, 141 (1995). In its customary and preferred sense, “fail” connotes some omission, fault, or negligence on the part of the person who has failed to do something. See, e.g., Webster’s New International Dictionary 910 (2d ed. 1939) (defining “fail” as “to be wanting; to fall short; to be or become deficient in any measure or degree,” and “failure” as “a falling short,” “a deficiency or lack,” and an “[o]mission to perform”); Webster’s New International Dictionary 814 (3d ed. 1993) (“to leave some possible or expected action unperformed or some condition unachieved”). See also Black’s Law Dictionary 594 (6th ed. 1990) (defining “fail” as “[f]ault, negligence, or refusal”). To say a person has failed in a duty implies he did not take the necessary steps to fulfill it. He is, as a consequence, at fault and bears responsibility for the failure. In this sense, a person is not at fault when his diligent efforts to perform an act are thwarted, for example, by the conduct of another or by happenstance. Fault lies, in those circumstances, either with the person who interfered with the accomplishment of the act or with no one at all. We conclude Congress used the word “failed” in the sense just described. Had Congress intended a no-fault standard, it would have had no difficulty in making its intent plain. It would have had to do no more than use, in lieu of the phrase “has failed to,” the phrase “did not.”

Under the opening clause of §2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel. In this we agree with the Court of Appeals and with all other courts of appeals which have addressed the issue. See, e.g.,Baja v. Ducharme, 187 F.3d 1075, 1078—1079 (CA9 1999); Miller v. Champion, 161 F.3d 1249, 1253 (CA10 1998); Cardwell, 152 F.3d, at 337; McDonald v. Johnson, 139 F.3d 1056, 1059 (CA5 1998); Burris v. Parke, 116 F.3d 256, 258 (CA7 1997); Love v. Morton, 112 F.3d 131, 136 (CA3 1997).

Our interpretation of §2254(e)(2)’s opening clause has support in Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), a case decided four years before AEDPA’s enactment. In Keeney, a prisoner with little knowledge of English sought an evidentiary hearing in federal court, alleging his nolo contendere plea to a manslaughter charge was not knowing and voluntary because of inaccuracies in the translation of the plea proceedings. The prisoner had not developed the facts of his claim in state collateral proceedings, an omission caused by the negligence of his state postconviction counsel. See id., at 4, 8—9. The Court characterized this as the “prisoner’s failure to develop material facts in state court.” Id., at 8. We required the prisoner to demonstrate cause and prejudice excusing the default before he could receive a hearing on his claim, ibid., unless the prisoner could “show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing,” id., at 12.

Section 2254(e)(2)’s initial inquiry into whether “the applicant has failed to develop the factual basis of a claim in State court proceedings” echoes Keeney’s language regarding “the state prisoner’s failure to develop material facts in state court.” In Keeney, the Court borrowed the cause and prejudice standard applied to procedurally defaulted claims, see Wainwright v. Sykes, 433 U.S. 72, 87—88 (1977), deciding there was no reason “to distinguish between failing to properly assert a federal claim in state court and failing in state court to properly develop such a claim.” Keeney, supra, at 8. As is evident from the similarity between the Court’s phrasing in Keeney and the opening clause of §2254(e)(2), Congress intended to preserve at least one aspect of Keeney’s holding: prisoners who are at fault for the deficiency in the state-court record must satisfy a heightened standard to obtain an evidentiary hearing. To be sure, in requiring that prisoners who have not been diligent satisfy §2254(e)(2)’s provisions rather than show cause and prejudice, and in eliminating a freestanding “miscarriage of justice” exception, Congress raised the bar Keeney imposed on prisoners who were not diligent in state-court proceedings. Contrary to the Commonwealth’s position, however, there is no basis in the text of §2254(e)(2) to believe Congress used “fail” in a different sense than the Court did in Keeney or otherwise intended the statute’s further, more stringent requirements to control the availability of an evidentiary hearing in a broader class of cases than were covered by Keeney’s cause and prejudice standard.

In sum, the opening clause of §2254(e)(2) codifies Keeney’s threshold standard of diligence, so that prisoners who would have had to satisfy Keeney’s test for excusing the deficiency in the state-court record prior to AEDPA are now controlled by §2254(e)(2). When the words of the Court are used in a later statute governing the same subject matter, it is respectful of Congress and of the Court’s own processes to give the words the same meaning in the absence of specific direction to the contrary. See Lorillard v. Pons, 434 U.S. 575, 581 (1978) (“[W]here … Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute”). See also Cottage Savings Assn. v. Commissioner, 499 U.S. 554, 562 (1991).

Interpreting §2254(e)(2) so that “failed” requires lack of diligence or some other fault avoids putting it in needless tension with §2254(d). A prisoner who developed his claim in state court and can prove the state court’s decision was “contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States,” is not barred from obtaining relief by §2254(d)(1). See Williams v. Taylor, ante, at ___ (opinion of O’Connor, J.). If the opening clause of §2254(e)(2) covers a request for an evidentiary hearing on a claim which was pursued with diligence but remained undeveloped in state court because, for instance, the prosecution concealed the facts, a prisoner lacking clear and convincing evidence of innocence could be barred from a hearing on the claim even if he could satisfy §2254(d). See 28 U.S.C. § 2254(e)(2)(B). The “failed to develop” clause does not bear this harsh reading, which would attribute to Congress a purpose or design to bar evidentiary hearings for diligent prisoners with meritorious claims just because the prosecution’s conduct went undetected in state court. We see no indication that Congress by this language intended to remove the distinction between a prisoner who is at fault and one who is not.

The Commonwealth argues a reading of “failed to develop” premised on fault empties §2254(e)(2)(A)(ii) of its meaning. To treat the prisoner’s lack of diligence in state court as a prerequisite for application of §2254(e)(2), the Commonwealth contends, renders a nullity of the statute’s own diligence provision requiring the prisoner to show “a factual predicate [of his claim] could not have been previously discovered through the exercise of due diligence.” §2254(e)(2)(A)(ii). We disagree.

The Commonwealth misconceives the inquiry mandated by the opening clause of §2254(e)(2). The question is not whether the facts could have been discovered but instead whether the prisoner was diligent in his efforts. The purpose of the fault component of “failed” is to ensure the prisoner undertakes his own diligent search for evidence. Diligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend, as the Commonwealth would have it, upon whether those efforts could have been successful. Though lack of diligence will not bar an evidentiary hearing if efforts to discover the facts would have been in vain, see §2254(e)(2)(A)(ii), and there is a convincing claim of innocence, see §2254(e)(2)(B), only a prisoner who has neglected his rights in state court need satisfy these conditions. The statute’s later reference to diligence pertains to cases in which the facts could not have been discovered, whether there was diligence or not. In this important respect §2254(e)(2)(A)(ii) bears a close resemblance to (e)(2)(A)(i), which applies to a new rule that was not available at the time of the earlier proceedings. Cf. Gutierrez v. Ada, 528 U.S. ___, ___ (2000) (slip op., at 5) (“[W]ords and people are known by their companions”). Cf. also United States v. Locke, 529 U.S. ___, ___ (2000) (slip op., at 13). In these two parallel provisions Congress has given prisoners who fall within §2254(e)(2)’s opening clause an opportunity to obtain an evidentiary hearing where the legal or factual basis of the claims did not exist at the time of state-court proceedings.

We are not persuaded by the Commonwealth’s further argument that anything less than a no-fault understanding of the opening clause is contrary to AEDPA’s purpose to further the principles of comity, finality, and federalism. There is no doubt Congress intended AEDPA to advance these doctrines. Federal habeas corpus principles must inform and shape the historic and still vital relation of mutual respect and common purpose existing between the States and the federal courts. In keeping this delicate balance we have been careful to limit the scope of federal intrusion into state criminal adjudications and to safeguard the States’ interest in the integrity of their criminal and collateral proceedings. See, e.g.,Coleman v. Thompson, 501 U.S. 722, 726 (1991) (“This is a case about federalism. It concerns the respect that federal courts owe the States and the States’ procedural rules when reviewing the claims of state prisoners in federal habeas corpus”); McCleskey v. Zant, 499 U.S. 467, 493 (1991) (“[T]he doctrines of procedural default and abuse of the writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have the opportunity to address at a prior, appropriate time; and both doctrines seek to vindicate the State’s interest in the finality of its criminal judgments”).

It is consistent with these principles to give effect to Congress’ intent to avoid unneeded evidentiary hearings in federal habeas corpus, while recognizing the statute does not equate prisoners who exercise diligence in pursuing their claims with those who do not. Principles of exhaustion are premised upon recognition by Congress and the Court that state judiciaries have the duty and competence to vindicate rights secured by the Constitution in state criminal proceedings. Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law. “Comity … dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.” O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, §2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute’s other stringent requirements are met. Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings. Yet comity is not served by saying a prisoner “has failed to develop the factual basis of a claim” where he was unable to develop his claim in state court despite diligent effort. In that circumstance, an evidentiary hearing is not barred by §2254(e)(2).

Now we apply the statutory test. If there has been no lack of diligence at the relevant stages in the state proceedings, the prisoner has not “failed to develop” the facts under §2254(e)(2)’s opening clause, and he will be excused from showing compliance with the balance of the subsection’s requirements. We find lack of diligence as to one of the three claims but not as to the other two.

Petitioner did not exercise the diligence required to preserve the claim that nondisclosure of Cruse’s psychiatric report was in contravention of Brady v. Maryland, 373 U.S. 83 (1963). The report concluded Cruse “ha[d] little recollection of the [murders of the Kellers], other than vague memories, as he was intoxicated with alcohol and marijuana at the time.” App. 495. The report had been prepared in September 1993, before petitioner was tried; yet it was not mentioned by petitioner until he filed his federal habeas petition and attached a copy of the report. Petitioner explained that an investigator for his federal habeas counsel discovered the report in Cruse’s court file but state habeas counsel had not seen it when he had reviewed the same file. State habeas counsel averred as follows:

“Prior to filing [petitioner’s] habeas corpus petition with the Virginia Supreme Court, I reviewed the Cumberland County court files of [petitioner] and of his co-defendant, Jeffrey Cruse. … I have reviewed the attached psychiatric evaluation of Jeffrey Cruse … . I have no recollection of seeing this report in Mr. Cruse’s court file when I examined the file. Given the contents of the report, I am confident that I would remember it.” Id., at 625—626.

The trial court was not satisfied with this explanation for the late discovery. Nor are we.

There are repeated references to a “psychiatric” or “mental health” report in a transcript of Cruse’s sentencing proceeding, a copy of which petitioner’s own state habeas counsel attached to the state habeas petition he filed with the Virginia Supreme Court. The transcript reveals that Cruse’s attorney described the report with details that should have alerted counsel to a possible Brady claim. As Cruse’s attorney said:

“The psychiatric report … point[s] out that [Cruse] is significantly depressed. He suffered from post traumatic stress. His symptoms include nightmares, sleeplessness, sobbing, reddening of the face, severe depression, flash backs … . [T]he psychological report states he is overwhelmed by feelings of guilt and shame in his actions. He is numb. He is trying to suppress his feelings, but when he has feelings, there is only pain and sadness.” Id., at 424.

The description accords with the contents of the psychiatric report, which diagnosed Cruse as suffering from post-traumatic stress disorder:

“[Cruse] has recurrent nightmares and visualizes the face of the woman that he killed. When attempting to describe this nightmare, he breaks openly into tears and his face reddens. … He continues to feel worthless as a person … . He has no hope for his future and has been thinking of suicide constantly. … He does describe inability to sleep, often tossing and turning, waking up, and feeling fatigued during the day. … He described neurovegetative symptoms of major depression and post-traumatic nightmares, recurrent in nature, of the [murders].” Id., at 495—499.

The transcript put petitioner’s state habeas counsel on notice of the report’s existence and possible materiality. The sole indication that counsel made some effort to investigate the report is an October 30, 1995, letter to the prosecutor in which counsel requested “[a]ll reports of physical and mental examinations, scientific tests, or experiments conducted in connection with the investigation of the offense, including but not limited to: … [a]ll psychological test or polygraph examinations performed upon any prosecution witness and all documents referring or relating to such tests … .” Id., at 346—347. After the prosecution declined the requests absent a court order, id., at 353, it appears counsel made no further efforts to find the specific report mentioned by Cruse’s attorney. Given knowledge of the report’s existence and potential importance, a diligent attorney would have done more. Counsel’s failure to investigate these references in anything but a cursory manner triggers the opening clause of §2254(e)(2).

As we hold there was a failure to develop the factual basis of this Brady claim in state court, we must determine if the requirements in the balance of §2254(e)(2) are satisfied so that petitioner’s failure is excused. Subparagraph (B) of §2254(e)(2) conditions a hearing upon a showing, by clear and convincing evidence, that no reasonable factfinder would have found petitioner guilty of capital murder but for the alleged constitutional error. Petitioner concedes he cannot make this showing, see Brief for Petitioner 25, and the case has been presented to us on that premise. For these reasons, we affirm the Court of Appeals’ judgment barring an evidentiary hearing on this claim.

We conclude petitioner has met the burden of showing he was diligent in efforts to develop the facts supporting his juror bias and prosecutorial misconduct claims in collateral proceedings before the Virginia Supreme Court.

Petitioner’s claims are based on two of the questions posed to the jurors by the trial judge at voir dire. First, the judge asked prospective jurors, “Are any of you related to the following people who may be called as witnesses?” Then he read the jurors a list of names, one of which was “Deputy Sheriff Claude Meinhard.” Bonnie Stinnett, who would later become the jury foreperson, had divorced Meinhard in 1979, after a 17-year marriage with four children. Stinnett remained silent, indicating the answer was “no.” Meinhard, as the officer who investigated the crime scene and interrogated Cruse, would later become the prosecution’s lead-off witness at trial.

After reading the names of the attorneys involved in the case, including one of the prosecutors, Robert Woodson, Jr., the judge asked, “Have you or any member of your immediate family ever been represented by any of the aforementioned attorneys?” Stinnett again said nothing, despite the fact Woodson had represented her during her divorce from Meinhard. App. 483, 485.

In an affidavit she provided in the federal habeas proceedings, Stinnett claimed “[she] did not respond to the judge’s [first] question because [she] did not consider [herself] ‘related’ to Claude Meinhard in 1994 [at voir dire] … . Once our marriage ended in 1979, I was no longer related to him.” Id., at 627. As for Woodson’s earlier representation of her, Stinnett explained as follows:

“When Claude and I divorced in 1979, the divorce was uncontested and Mr. Woodson drew up the papers so that the divorce could be completed. Since neither Claude nor I was contesting anything, I didn’t think Mr. Woodson ‘represented’ either one of us.” Id., at 628.

Woodson provided an affidavit in which he admitted “[he] was aware that Juror Bonnie Stinnett was the ex-wife of then Deputy Sheriff Claude Meinhard and [he] was aware that they had been divorced for some time.” Id., at 629. Woodson stated, however, “[t]o [his] mind, people who are related only by marriage are no longer ‘related’ once the marriage ends in divorce.” Ibid. Woodson also “had no recollection of having been involved as a private attorney in the divorce proceedings between Claude Meinhard and Bonnie Stinnett.” Id., at 629—630. He explained that “[w]hatever [his] involvement was in the 1979 divorce, by the time of trial in 1994 [he] had completely forgotten about it.” Id., at 630.

Even if Stinnett had been correct in her technical or literal interpretation of the question relating to Meinhard, her silence after the first question was asked could suggest to the finder of fact an unwillingness to be forthcoming; this in turn could bear on the veracity of her explanation for not disclosing that Woodson had been her attorney. Stinnett’s failure to divulge material information in response to the second question was misleading as a matter of fact because, under any interpretation, Woodson had acted as counsel to her and Meinhard in their divorce. Coupled with Woodson’s own reticence, these omissions as a whole disclose the need for an evidentiary hearing. It may be that petitioner could establish that Stinnett was not impartial, see Smith v. Phillips, 455 U.S. 209, 217, 219—221 (1982), or that Woodson’s silence so infected the trial as to deny due process, see Donnelly v. DeChristoforo, 416 U.S. 637, 647—648 (1974).

In ordering an evidentiary hearing on the juror bias and prosecutorial misconduct claims, the District Court concluded the factual basis of the claims was not reasonably available to petitioner’s counsel during state habeas proceedings. After the Court of Appeals vacated this judgment, the District Court dismissed the petition and the Court of Appeals affirmed under the theory that state habeas counsel should have discovered Stinnett’s relationship to Meinhard and Woodson. See 189 F.3d, at 428.

We disagree with the Court of Appeals on this point. The trial record contains no evidence which would have put a reasonable attorney on notice that Stinnett’s non-response was a deliberate omission of material information. State habeas counsel did attempt to investigate petitioner’s jury, though prompted by concerns about a different juror. App. 388—389. Counsel filed a motion for expert services with the Virginia Supreme Court, alleging “irregularities, improprieties and omissions exist[ed] with respect to the empaneling [sic] of the jury.” Id., at 358. Based on these suspicions, counsel requested funding for an investigator “to examine all circumstances relating to the empanelment of the jury and the jury’s consideration of the case.” Ibid. The Commonwealth opposed the motion, and the Virginia Supreme Court denied it and dismissed the habeas petition, depriving petitioner of a further opportunity to investigate. The Virginia Supreme Court’s denial of the motion is understandable in light of petitioner’s vague allegations, but the vagueness was not the fault of petitioner. Counsel had no reason to believe Stinnett had been married to Meinhard or been represented by Woodson. The underdevelopment of these matters was attributable to Stinnett and Woodson, if anyone. We do not suggest the State has an obligation to pay for investigation of as yet undeveloped claims; but if the prisoner has made a reasonable effort to discover the claims to commence or continue state proceedings, §2254(e)(2) will not bar him from developing them in federal court.

The Court of Appeals held state habeas counsel was not diligent because petitioner’s investigator on federal habeas discovered the relationships upon interviewing two jurors who referred in passing to Stinnett as “Bonnie Meinhard.” See Brief for Petitioner 35. The investigator later confirmed Stinnett’s prior marriage to Meinhard by checking Cumberland County’s public records. See 189 F.3d, at 426 (“The documents supporting [petitioner’s] Sixth Amendment claims have been a matter of public record since Stinnett’s divorce became final in 1979. Indeed, because [petitioner’s] federal habeas counsel located those documents, there is little reason to think that his state habeas counsel could not have done so as well”). We should be surprised, to say the least, if a district court familiar with the standards of trial practice were to hold that in all cases diligent counsel must check public records containing personal information pertaining to each and every juror. Because of Stinnett and Woodson’s silence, there was no basis for an investigation into Stinnett’s marriage history. Section 2254(e)(2) does not apply to petitioner’s related claims of juror bias and prosecutorial misconduct.

We further note the Commonwealth has not argued that petitioner could have sought relief in state court once he discovered the factual bases of these claims some time between appointment of federal habeas counsel on July 2, 1996, and the filing of his federal habeas petition on November 20, 1996. As an indigent, petitioner had 120 days following appointment of state habeas counsel to file a petition with the Virginia Supreme Court. Va. Code Ann. §8.01—654.1 (1999). State habeas counsel was appointed on August 10, 1995, about a year before petitioner’s investigator on federal habeas uncovered the information regarding Stinnett and Woodson. As state postconviction relief was no longer available at the time the facts came to light, it would have been futile for petitioner to return to the Virginia courts. In these circumstances, though the state courts did not have an opportunity to consider the new claims, petitioner cannot be said to have failed to develop them in state court by reason of having neglected to pursue remedies available under Virginia law.

Our analysis should suffice to establish cause for any procedural default petitioner may have committed in not presenting these claims to the Virginia courts in the first instance. Questions regarding the standard for determining the prejudice that petitioner must establish to obtain relief on these claims can be addressed by the Court of Appeals or the District Court in the course of further proceedings. These courts, in light of cases such as Smith, supra, at 215 (“[T]he remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias”), will take due account of the District Court’s earlier decision to grant an evidentiary hearing based in part on its belief that “Juror Stinnett deliberately failed to tell the truth on voir dire.” Williams v. Netherland, Civ. Action No. 3:96CV529 (ED Va., Apr. 13, 1998), App. 529, 557.

Capital Cases

Allen v. Butterworth (FL S.Ct.) The Florida Supreme Court unanimously struck down the state's Death Penalty Reform Act, stating that it violated defendants' rights of due process and equal protection and was an unconstitutional infringement on the Court's power to set the rules and procedures for death penalty cases. The Act, passed during a special legislative session in January, was an effort to speed up executions by forcing inmates to appeal their trial verdict and subsequent challenges to their convictions simultaneously, instead of one after the other.

1. Separation of Powers

We find the resolution of the separation of powers claim to be dispositive in this case. Article II, section 3 of the Florida Constitution prohibits the members of one branch of government from exercising "any powers appertaining to either of the other branches unless expressly provided herein." Article V, section 2(a) states that the Florida Supreme Court has the exclusive authority to "adopt rules for the practice and procedure in all courts, including the time for seeking appellate review." The Legislature has the authority to repeal judicial rules by a two-thirds vote, but the authority to initiate rules rests with the Court. See Johnson v. State, 336 So. 2d 93, 95 (Fla. 1976); art. V, § 2(a), Fla. Const.

Generally, the Legislature has the power to enact substantive law, while the Court has the power to enact procedural law. See Johnson. In In re Rules of Criminal Procedure, Justice Adkins provided the following definitions for substantive law and procedural law:

Practice and procedure encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion. "Practice and procedure" may be described as the machinery of the judicial process as opposed to the product thereof.

Examination of many authorities leads me to conclude that substantive law includes those rules and principles which fix and declare the primary rights of individuals as respects their persons and their property. As to the term "procedure," I conceive it to include the administration of the remedies available in cases of invasion of primary rights of individuals. The term "rules of practice and procedure" includes all rules governing the parties, their counsel and the Court throughout the progress of the case from the time of its initiation until final judgment and its execution.

272 So. 2d 65, 66 (Fla. 1972) (Adkins, J., concurring). To resolve the separation of powers claim in this case, we must determine whether the provisions of the DPRA are substantive or procedural.

The State argues that the deadlines for filing post-conviction motions in the DPRA are statutes of limitations and are therefore substantive. To support this argument, the State relies on this Court's previous decision in Williams v. Law, 368 So. 2d 1285 (Fla. 1979).

In Williams, two property owners applied to the Pasco County property appraiser for an agricultural classification. The application was denied and the owners petitioned the Pasco County Board of Tax Adjustment for relief. The Board granted the owners the classification and the property appraiser filed an action in circuit court seeking to enjoin the Board from enforcing its decision, pursuant to section 194.032(6)(a), Florida Statutes (Supp. 1976). The circuit court dismissed the suit as untimely. The circuit court reasoned that because the suit amounted to an appeal from an administrative decision of the Board, it was required to be filed within thirty days of the Board's decision under Florida Appellate Rule 3.2 (1962). The circuit court also concluded that section 194.171(2), Florida Statutes (1975), which provided a sixty-day time limit for instituting civil actions in circuit court to challenge property tax assessments, violated the Court's exclusive authority to adopt rules of practice and procedure.

On appeal, this Court ruled that the proceeding established by section 194.032(6) was not an appellate proceeding and, therefore, was not covered by the appellate rules. See id. at 1287 ("[Section 194.032)(6)(a)] clearly contemplates that injunctive relief shall be sought by way of an original civil action rather than by appeal."). The Court stated that the sixty-day limit set forth in section 194.171(2) "constitutes a statute of limitations governing the time for filing an original action to challenge [a decision of the Board of Tax Adjustment]" and "the legislature clearly has the authority to establish such limitations." Id. at 1287-88.

Williams, however, is distinguishable from the present case. Although habeas corpus petitions are technically civil actions, they are unlike other traditional civil actions. In State ex rel. Butterworth v. Kenny, this Court detailed the history of habeas corpus in Florida:

Historically, habeas corpus and coram nobis proceedings were the only means available to challenge the validity of a conviction and sentence. In 1963, this Court enacted Florida Rule of Criminal Procedure 1, which was the predecessor to current Florida Rules of Criminal Procedure 3.850 and 3.851. The rule was almost identical to its federal counterpart and was adopted to

provide a complete and efficacious post-conviction remedy to correct convictions where there is a claimed denial of some fundamental or organic right in the course of the trial, and the procedural default of failing to appeal from a judgment of conviction is not equivalent to an express waiver of the constitutional right and will not preclude collateral attack on an unlawful conviction by means of a proceeding brought under the criminal procedure rule.

28 Fla. Jur. 2d, Habeas Corpus § 127 (1981) (footnote omitted). The relief provided by the rule was coextensive with that available under habeas corpus or coram nobis proceedings but minimized the difficulties encountered in those proceedings by directing that a motion for relief is to be addressed to the court that imposed the sentence. Id. In the rule, this Court clearly stated that a habeas corpus petition was not to be entertained and that the process set forth in the rule for seeking post-conviction relief was to be used unless the remedy by motion under the rule was "inadequate to test the legality of [the] detention." 151 So.2d at 635. Thus, while habeas corpus and coram nobis are still used in the post-conviction process, their use is somewhat limited.

Technically, habeas corpus and other post-conviction relief proceedings are classified as civil proceedings. Unlike a general civil action, however, wherein parties seek to remedy a private wrong, a habeas corpus or other post-conviction relief proceeding is used to challenge the validity of a conviction and sentence. See, e.g., Murray, 492 U.S. at 13 (O'Connor, J., concurring) (post-conviction proceeding is a civil action designed to overturn a presumptively valid criminal judgment); O'Neal v. McAninch, 513 U.S. 432, 440 (1995) (habeas is a civil proceeding involving someone's custody rather than mere civil liability). Consequently, post-conviction relief proceedings, while technically classified as civil actions, are actually quasi-criminal in nature because they are heard and disposed of by courts with criminal jurisdiction.

714 So. 2d 404, 408-10 (Fla. 1998) (footnotes omitted).

In addition to being quasi-criminal, the writ of habeas corpus is explicitly derived from text of the Florida Constitution, which provides that the writ "shall never be suspended unless, in case of rebellion or invasion, suspension is essential to the public safety." Art. I, §13, Fla. Const. As this Court explained in Haag v. State, 591 So. 2d 614, 616 (Fla. 1992), "[a] basic guarantee of Florida law is that the right to relief through the writ of habeas corpus must be 'grantable of right, freely and without cost.' " (quoting article I, section 13 of the Florida Constitution). While the right to habeas relief "is subject to certain reasonable limitations consistent with [its] full and fair exercise," it "should be available to all through simple and direct means, without needless complication or impediment, and should be fairly administered in favor of justice and not bound by technicality." Id.

Further, this Court has explained that "[r]ule 3.850 is a procedural vehicle for the collateral remedy otherwise available by writ of habeas corpus." State v. Bolyea, 520 So. 2d 562, 563 (Fla. 1988); * fn3 see also Roy v. Wainwright, 151 So. 2d 825, 828 (Fla. 1963). "[A]s a general rule . . . whatever power is conferred upon the courts by the Constitution cannot be enlarged or abridged by the Legislature." State ex rel. Buckwalter v. City of Lakeland, 112 Fla. 200, 208, 150 So. 508, 512 (1933) (finding that legislative act improperly attempted to interfere with judicial power to issue writs of mandamus and to limit scope of writ of mandamus); see also Brinson v. Tharin, 99 Fla. 696, 702, 127 So. 313, 316 (1930) (stating that power to issue common law writ of certiorari was vested in the Court by the Constitution and could not be extended, limited, or regulated by statute); Palmer v. Johnson, 97 Fla. 479, 480-81, 121 So. 466, 466-67 (1929) (stating that if statute were intended to circumscribe Supreme Court's constitutional power of certiorari review of inferior tribunals, it would be ineffectual).

Based on the foregoing, we conclude that the writ of habeas corpus and other post-conviction remedies are not the type of "original civil action" described in Williams for which the Legislature can establish deadlines pursuant to a statute of limitations. Due to the constitutional and quasi-criminal nature of habeas proceedings and the fact that such proceedings are the primary avenue through which convicted defendants are able to challenge the validity of a conviction and sentence, we hold that article V, section 2(a) of the Florida Constitution grants this Court the exclusive authority to set deadlines for post-conviction motions. * fn4

The State also directs our attention to the "Antiterrorism and Effective DeathPenalty Act of 1996" (AEDPA), wherein Congress imposed a one-year deadline for habeas corpus filings in federal courts. See 28 U.S.C. § 2244 (Supp. III 1997) (standard for prisoners in state custody); id. at § 2255 (standard for prisoners in federal custody). This deadline has been interpreted by the federal courts as a statute of limitations. See, e.g., Weekly v. Moore, 13 Fla. L. Weekly Fed. C414, C414 (11th Cir. Feb. 24, 2000) ("The AEDPA added a one year statute of limitations to federal habeas corpus actions."). The State asserts that if Congress has the authority to set a statute of limitations in this area, then the Florida Legislature should also have that authority. This argument, however, is not persuasive, as there are significant distinctions between the balance of power in the federal system and the balance of power in this state. Although the federal constitution grants the United States Supreme Court limited original jurisdiction, article III, section 2 provides that the appellate jurisdiction of the United States Supreme Court is derived from the authority of Congress. In contrast, the original and appellate jurisdiction of the courts of Florida is derived entirely from article V of the Florida Constitution. See art. V, §§ 3(b), 4(b), 5(b), Fla. Const. Further, the United States Supreme Court has recognized that "the power to award the writ [of habeas corpus] by any of the courts of the United States, must be given by written law" and "judgments about the proper scope of the writ are normally for Congress to make." Felker v. Turpin, 518 U.S. 651, 664 (1996) (internal quotation marks omitted). In Florida, article V of the Florida Constitution explicitly grants circuit courts, district courts, and this Court the authority to issue writs of habeas corpus. See art. V, §§ 3(b)(9), 4(b)(3), 5(b), Fla. Const. Finally, the United States Supreme Court promulgates the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure pursuant to the authority conferred to it by Congress under the Rules Enabling Act. See 28 U.S.C. § 2072 (1994). As pointed out by the Fifth Circuit Court of Appeals:

It has long been settled that Congress has the authority to regulate matters of practice and procedure in the federal courts. Sibbach v. Wilson & Co., 312 U.S. 1, 9-10 (1941). Congress delegated some of this power in 1934 by passing the Rules Enabling Act, which gave the Supreme Court the power to promulgate rules of practice and procedure for United States courts. Despite this delegation of authority, Congress maintains an integral, albeit passive, role in implementing any rules drafted by the Court. For example, all such rules are subject to review by Congress; they take effect only after the Supreme Court has presented them to Congress and after Congress has had seven months to review proposed rules or changes. Congress uses the review period to "make sure that the action under the delegation squares with the Congressional purpose." Sibbach, 312 U.S. at 15. Although Congress has authorized the Court to exercise some legislative authority to regulate the courts, Congress at all times maintains the power to repeal, amend, or supersede its delegation of authority or the rules of procedure themselves. Therefore Congress may at any time amend or abridge by statute the Federal Rules of Civil Procedure, Rules of Appellate Procedure, Rules of Evidence, or other federal procedural rules promulgated under the Rules Enabling Act.

Jackson v. Stinnett, 102 F.3d 132, 134 (5th Cir. 1996)(citations omitted). In Florida, article V, section 2(a) of the Florida Constitution grants this Court the exclusive authority to adopt rules of procedure. Consequently, the separation of powers argument raised in the present case would never be an issue in the federal system. Unlike the Florida Constitution, the federal constitution does not expressly grant the United States Supreme Court the power to adopt rules of procedure. In fact, it appears that the two branches work together in formulating procedural rules in the federal system. Hence, the State's reliance on the AEDPA is clearly without merit. *fn5

For all of these reasons, we conclude that the establishment of time limitations for the writ of habeas corpus is a matter of practice and procedure and, therefore, the judiciary is the only branch of government authorized by the Florida Constitution to set such deadlines. Accordingly, we hold the DPRA in large part invalid as an encroachment on this Court's exclusive power to "adopt rules for the practice and procedure in all courts." Art. V, § 2(a), Fla. Const. Most of its provisions attempt to prescribe the "course, form, manner, means, method, mode, order, process or steps" by which a capital inmate's habeas corpus rights are asserted in Florida courts. In re Florida Rules of Criminal Procedure, 272 So. 2d at 66 (Adkins, J., concurring). The introductions to sections 8 and 9 actually concede this point: "This section shall regulate the procedures in actions for capital post-conviction relief commencing after the effective date of this act unless and until such procedures are revised by rule or rules adopted by the Florida Supreme Court which specifically reference this section." Ch. 2000-3, §§ 8-9, Laws of Fla.; Fla. CS for HB 1-A, §§ 8-9, at 21-22 (2000).

Bell v. Coe (6th Cir) "Coe appeals the denial of habeas relief regarding the Tennessee state courts' determination that he is competent to be executed pursuant to Ford v. Wainwright, 477 U.S. 399 (1986). Because we conclude that the Tennessee state courts' proceedings assessing Coe's Ford claims satisfy the requirements of due process and do not involve an unreasonable application of Supreme Court precedent, we AFFIRM the district court's denial of Coe's application for a writ of habeas corpus."

Coe contends that AEDPA does not apply to his claims, because applying AEDPA would impose impermissible retroactive effects and thus violate this court's decision in In re Hanserd, 123 F.3d 922 (6th Cir. 1997). More specifically, in response to the district court's conclusion that Hanserd only applies to AEDPA's bar on second and successive applications, he asserts:

Indeed, Hanserd makes clear that any impermissible retroactive effect of the AEDPA, if not specifically authorized by Congress, cannot apply to bar relief. It does not seem plausible to conclude that Hanserd allows the application of pre-AEDPA to allow consideration of a claim, only to have the claim denied under the new law. The whole point of retroactivity analysis is that Robert Coe has been unfairly trapped by a change in the law. If he knew that the AEDPA would cut off his right to relief on a Ford claim, he certainly would have raised the claim in his first petition, which clearly would have been governed by the pre-AEDPA law. Lindh v. Murphy, 521 U.S. 320 (1997). It is for this reason that the AEDPA does not apply, because the retroactive effect which has occurred is the new effect of Robert Coe's filing of claims in his first petition - not only the cutting off of his right to file the claim, but the prospect of being denied relief under the new standards of the AEDPA.

Petitioner's Memorandum in Support of Motion for Stay at 70-71.

In Hanserd, we concluded that where AEDPA's gatekeeping provision prohibiting second or successive habeas applications prevents a prisoner from bringing a Bailey claim under § 2255 but where the claim could have been raised in a subsequent application under the pre-AEDPA law, AEDPA's gatekeeping provision has an impermissible retroactive effect and is not applicable to the Bailey claim. See Hanserd, 123 F.3d at 929-34. This court subsequently limited its holding in Hanserd to the particular claim in that case and concluded that "while Hanserd is not strictly limited to claims arising under Bailey, apart from that class of claims, there will be few other cases 'in which the difference matters' and on which the gatekeeping requirements of AEDPA will thus have an impermissibly retroactive effect." In re Sonshine, 132 F.3d 1133, 1135 (6th Cir. 1997) (quoting Hanserd, 123 F.3d at 934 n.21). It is clear that the circumstances presented in this appeal differ significantly from those presented in Hanserd. Coe raises a Ford competency claim rather than a Bailey claim, and this court previously has determined that Coe's application is not barred by AEDPA's prohibition on second or successive habeas applications because Coe's Ford competency claim was not ripe until his execution was imminent and thus was not ripe when his initial habeas application was filed. Thus AEDPA's gatekeeping provision does not have an impermissible retroactive effect on his Ford habeas claim. In light of our Sonshine decision, we cannot accept Coe's interpretation of the Hanserd decision as holding that AEDPA has an impermissible retroactive effect whenever AEDPA's standard of review, applied to an application filed after AEDPA's effective date, results in a decision that would have been different under the pre-AEDPA standard of review. Nevertheless, we note that even if we were to apply the pre-AEDPA standard of review to Coe's habeas application, our determination would not be different.(2)

In reviewing Coe's challenge to the Tennessee courts' determination of his competency to be executed, we are faced with the question of whether competency is a question of fact or a mixed question of fact and law. In Van Tran, the Tennessee Supreme Court concluded that the determination of competency to be executed is a question of fact. See 6 S.W.3d at 271. Although this court has never examined the nature of this type of competency determination, we have treated a defendant's competency to plead guilty and to be recommitted as a mixed question of fact and law. See Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995), cert. denied, 516 U.S. 1096 (1996); Levine v. Torvik, 986 F.2d 1506, 1514 (6th Cir.), cert. denied, 509 U.S. 907 (1993). If competency to be executed is a question of fact, under § 2254(e)(1) the state courts' competency determination is entitled to a presumption of correctness that may be rebutted only by clear and convincing evidence. In addition, for questions of fact a federal court may grant habeas relief "only if the state court's decision 'was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Harpster, 128 F.3d at 326 (quoting § 2254(d)(2)). If competency is a mixed question of fact and law, however, then § 2254(d)(1) will apply and we must determine whether the state courts' decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); see Harpster, 128 F.3d at 326-27.

For purposes of our review, we will apply the standard of review that is most favorable to Coe, without deciding if that standard of review is mandatory. Because the state courts' decision is entitled to a presumption of correctness under the standard of review for questions of fact, we will apply the more lenient standard for mixed questions of fact and law.(3) Where a mixed question is fact-intensive and the Supreme Court has not established a clear "rule" requiring a certain result, this court has concluded that the "unreasonable application" prong of § 2254(d)(1) applies. See Nevers v. Killinger, 169 F.3d 352, 360 (6th Cir.), cert. denied, 119 S. Ct. 2340 (1999). Because competency to be executed is a fact-intensive inquiry and because the Supreme Court has not established a clear rule on what particular circumstances will constitute incompetence to be executed, we will apply the "unreasonable application" prong in this case. Under this test, a state court's decision will be considered an unreasonable application of clearly established Supreme Court precedent if it is not "debatable among reasonable jurists" or is "so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes." Id. at 362 (quotations omitted).

C. Coe's Habeas Application

1. Entitlement to Relief Under Ford

Coe argues that the Tennessee courts erred in deciding his competency to be executed because they evaluated his present competency rather than determining his future competency at the moment of execution. The thrust of Coe's argument is that, he claims, he suffers from Dissociative Identity Disorder ("DID"), which causes him to dissociate under stress, and that he will thus dissociate as his execution grows near and will not have the requisite competency at the time of his execution.

In Ford, the Supreme Court held that the Eighth Amendment prohibits the execution of a prisoner who is insane. See 477 U.S. at 409-10. If taken to its logical extreme, as suggested by Coe, a state would be obligated to determine whether a prisoner is competent to be executed at the exact moment of execution in order to comply with Ford. Justice O'Connor acknowledged that this problem is due to the nature of a competency-to-be-executed claim in her opinion in Ford:

By definition, [a Ford claim] can never be conclusively and finally determined: Regardless of the number of prior adjudications of the issue, until the very moment of execution the prisoner can claim that he has become insane sometime after the previous determination to the contrary.

Id. at 429 (O'Connor, J., concurring in the result in part and dissenting in part).

We do not believe that the Supreme Court in Ford meant to require a state to determine a prisoner's competency at the exact time of his execution. It would be impossible to follow the procedural protections identified in the opinions of Justice Marshall and Justice Powell in a meaningful way in the moments before execution; a state could not make a sound decision in accordance with due process regarding a prisoner's competency to be executed at this time. Nevertheless, a state must make its determination when execution is imminent. See Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998). Whether the competency determination is made in the week or the month before the prisoner's scheduled execution, the state is entitled to exercise discretion in creating its own procedures "[a]s long as basic fairness is observed." Ford, 477 U.S. at 427 (Powell, J., concurring).

In the present case, on December 15, 1999, the Tennessee Supreme Court remanded the issue of Coe's competency to the Tennessee trial court after setting Coe's execution for March 23, 2000. The trial court held an evidentiary hearing on Coe's competency in late January 2000 and issued its decision on February 2, 2000. The Tennessee Supreme Court affirmed the trial court's decision on March 6, 2000. We conclude that the Tennessee courts' determination was made while Coe's execution, less than two months away, was imminent. The Tennessee courts' use of the phrase "present competency" did not constitute a misunderstanding of the proper issue under Ford of whether Coe is competent to be executed at his imminently scheduled execution date.

We acknowledge Coe's argument that, due to the special nature of his claimed DID affliction, he will degenerate as the execution looms and his condition will significantly worsen. The Tennessee Supreme Court expressly set forth a procedure in Van Tran to deal with this type of situation. The court stated,

If a prisoner is found to be competent, subsequent Ford claims will be disallowed unless the prisoner, by way of motion for stay, provides this Court with an affidavit from a mental health professional showing that there has been a substantial change in the prisoner's mental health since the previous determination of competency was made and the showing is sufficient to raise a substantial question about the prisoner's competency to be executed.

Van Tran, 6 S.W.3d at 272. This state procedure adequately addresses the situation in which a prisoner's competency changes after the Tennessee state courts make their competency determination by requiring the prisoner to establish a substantial change in his competency. In light of the fact that two state courts have already made a determination of Coe's competency to be executed, we conclude that Tennessee's requirement that he make a threshold showing of a "substantial change" comports with notions of basic fairness.

In sum, because the procedures followed by the Tennessee courts in this case satisfy the requirements of due process, we cannot conclude that they represent an unreasonable application of the Ford opinion.

Habeas Cases

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Section 1983 & Related Filings

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In Depth

The briefs for the cases above are available at findlaw .com and www.floridacts.org.

Williams, Michael v. Taylor, Warden (No. 99-6615)(§ 2254(e))

Petitioner [PDF]

Respondent [PDF]

Amicus: American Civil Liberties Union [PDF]

Amicus: Legal Ethics Professors et al. [PDF]

Amicus: State of California et al. [PDF]

Amicus: Virginia College of Criminal Defense Attorneys et al. [PDF]

Williams, Terry v. Taylor, Warden (No. 98-8384)(§ 2254(d))

Petitioner [PDF]

Respondent [PDF]

Amicus: National Association of Criminal Defense Lawyers [PDF]

Amicus: Virginia College of Criminal Defense Attorneys et al. [PDF]

Amicus: Criminal Justice Legal Foundation [PDF]

Amicus: State of California et al. [PDF]

Amicus: American Civil Liberties Union [PDF]

Amicus: American Bar Association [PDF]

Amicus: Former Article III Judge Marvin E. Frankel et al. [PDF]

Amicus: Professor Lance G. Banning et al. [PDF]

Allen v. Butterworth

Opinion in Allen v. Butterworth (Nos. 00-113, 00-154, & 00-410), Opinion in Amendments to Fla. Rules of Criminal Procedure (No. 96,646) & Order In Re: Rules Governing Postconviction Actions (No. 00-242)

Order 1 on Motions for Recusal, Order 2 on Motions for Recusal & Order 3 on Motions for Recusal

Motion for Recusal (Case No. 00-410), Motion for Recusal (Case No. 00-242), Motion for Recusal (Case No. 96,646), Motion for Recusal (Case No. 00-113), Motion for Recusal (Case No. 00-154),

Second Motion for Recusal (Case No. 00-242) &

Second Motion for Recusal (Case No. 96,646)

Brief in Allen v. Butterworth, Brief in Asay v. Butterworth & Brief in Provenzano v. State

Orders in Cases Challenging the Death Penalty Reform Act

(entered Feb. 8, 2000)Order A & Order B

Order In re: Rules Governing Capital Postconviction Actions

(entered Feb. 7, 2000) In Adobe Acrobat Format

Lawsuit by CCRC-North Challenging Death Penalty Reform Act of 2000

(filed Jan. 28, 20000) In Adobe Acrobat Format

Lawsuit by CCRC-South Challenging Death Penalty Reform Act of 2000

(filed Jan. 19, 2000) In Adobe Acrobat Format

Errata

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