This Year, Resolve to Take a Shot at Federal Relief

If you are like most people, by now you have probably broken most of your New Year's resolutions.

So today I want to suggest a new 2009 resolution specifically for Illinois criminal-defense lawyers: Resolve to file more U.S. Supreme Court petitions for certiorari from state court judgments.

To understand why this is so important, let me review some legal history with you.

In 1948, Congress passed 28 U.S.C. 2254 dealing with federal habeas corpus petitions filed by state prisoners. Four years later, the U.S. Supreme Court emphasized that this statute meant that as long as a state prisoner gave state courts the first chance to decide any federal constitutional issue in his case, he was free to file a habeas petition in federal court pursuant to section 2254. In other words, federal habeas review of federal constitutional issues was available to a state prisoner as long as he first ''exhausted'' possible state avenues for relief on that issue.

The Warren Court in the 1960s greatly expanded the federal court's habeas jurisdiction through a trilogy of cases. In these cases, the court held that federal courts could entertain federal claims that a state court had held to be defaulted. It also instituted liberal rules for when a federal court could hold fact-finding hearings in habeas cases. Finally, the court made it much easier for state prisoners to file more than one habeas petition.

All of this made federal habeas the preferred route for criminal defense attorneys from the 1960s to the late 1980s. No matter how pro-prosecution a state court system was, a state criminal case with a federal constitutional issue could probably receive review in federal court. Moreover, the federal court had de novo review on the legal issue - that is, the federal court did not have to give any deference to the lower state court's decision on any question of law. Thus, habeas was a method not only to obtain relief in an individual case, but it was also a way to point federal constitutional criminal law in a more general pro-defense direction.

All this changed in 1996 with the passage of the Antiterrorism and Effective Death Penalty Act. It greatly restricted the ability of federal courts to grant habeas petitions in section 2254 proceedings. The key language of the statute precluded federal courts from granting such petitions ''unless adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'' 28 U.S.C. § 2254(d)(1) (2000) (emphasis added).

This language is significant for several reasons. First, federal courts traditionally granted a habeas petition if they found that the state court's interpretation of the federal constitutional issue was simply wrong. Under AEDPA, however, a state court's being wrong is a necessary, but not sufficient, factor. Why? Because, as the U.S. Supreme Court has held, under AEDPA, ''[A]n unreasonable application of federal law is different from an incorrect application of federal law.'' Williams v. Taylor, 529 U.S. 362, 410 (2000).

What this means is that the U.S. Supreme Court could decide the very same issue in very different ways depending on the procedural posture of the case. If the court faced a federal constitutional issue on direct appeal from either a federal or a state court judgment, de novo review would allow the court to simply decide whether the lower court judgment was either right or wrong. If, however, the court faced the same issue in a review of a section 2254 habeas petition, the court might affirm what it considered a wrong state court judgment because, under AEDPA, it could not say it was also unreasonable. (Justice John Paul Stevens explicitly made this point last year in his opinion in Wright v. Van Patten, 128 S.Ct. 743, 748 (2008) (Stevens, J., concurring in the judgment).)

Second, AEDPA limits the materials which federal courts can use in determining whether a state court decision is ''unreasonable.'' In deciding ''reasonableness,'' a federal court is limited to looking only at decisions of the U.S. Supreme Court. What this means is that - by definition - a section 2254 petition can never be used as a vehicle for advancing or developing law. A habeas court is not allowed to consider various approaches from lower federal or state courts. Instead, the court may only decide whether a state court has unreasonably flouted U.S. Supreme Court precedent.

Judge John T. Noonan of the 9th U.S. Circuit Court of Appeals has sharply criticized this legislativelyimposed shackle placed upon the federal judiciary: ''AEDPA denies the [federal] judge the use of circuit precedent, denies development of Supreme Court and circuit precedent, denies the deference due the penumbra and emanations of precedent.... [Under AEDPA] the development of doctrine is despised.'' Irons v. Carey, 505 F.3d 846 (9th Cir. 2007) (Noonan, J., concurring).

So what does all this mean to the criminal defense attorney?

According to an important new article, it means you must recognize that post-AEDPA habeas offers you little in the way of relief for your client convicted in a state court. Now, the only way you can get a federal court to break even a small amount of new ground in granting relief is to seek direct review of the state judgment through a petition for a writ of certiorari filed with the U.S. Supreme Court. Thus, criminal defense attorneys need to re-orient themselves away from habeas petitions and more toward cert petitions. Giovanna Shay & Christopher Lasch, Initiating a New Constitutional Dialogue: The Increased Importance Under AEDPA of Seeking Certiorari from Judgments of State Courts, 50 William and Mary Law Review 211 (2008) (available for free at www.ssrn.com).

But isn't a cert grant a long-shot? Shay and Lasch do not deny this. But they stress that obtaining direct review from a state court judgment is the only wayto receive the ''least deferential, nonAEDPA-restricted review by a federal court'' (262). While your chance for a cert grant may be slim, your chance for habeas relief under AEDPA may very well be none. While a good deal of the U.S. Supreme Court's federal criminal docket is concerned with statutory interpretation, constitutional doctrinal development is now being fueled by direct review of state court criminal judgments. (See, e.g., the line of cases expanding the right to jury trial driven by cert grants of state court judgments: Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington, 542 U.S. 296 (2004); Cunningham v. California, 127 S.Ct. 856 (2007).) Shay and Lasch did an empirical study of recent cert filings and grants and came to two conclusions. First, they found that there has been a modest increase in the number of cert grants from direct appeals from criminal cases in state courts. Second, they found that state prisoners filed cert petitions at a lower rate than did federal prisoners. They recommend that more time, money, and thought should be expended in filing cert petitions from state court criminal judgments.

Back in the days when federal habeas was a viable chance for relief from state court convictions, defense attorneys did not even have to file a cert petition to exhaust state remedies before they could file a habeas petition. See Lawrence v. Florida, 549 U.S. 327 (2007), citing Fay v. Noia, 372 U.S. 391 (1963). Now cert may be the only viable chance for federal relief. A long shot? Sure. But a long shot is better than no shot.