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Taking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 online

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district judge (as well as a circuit judge or a Supreme Court
justice) to issue one.

By denying district judges the ability to issue
certificates, this new section threatens only to increase the
delays and inefficiencies In the system. District judges are in
the best position to ma)ce this kind of determination; circuit
judges and justices would require even more (unnecessary) time to
become familiar enough with a case to make an intelligent

I would not suggest that this section is an important or
intolerable part of the bill; I do, however, think that it would
do no good and some measure of harm. Last year's bill had no
similar provision, and I would urge the Committee to drop it this
year .

3. Restrictions on Appeal . Section 103 would conform a
related federal rule of appellate procedure to the substance of
section 102.

4 . Authorization to Deny Relief Despite a Failure to Exhaust
State Remedies . Section 104 would authorize a federal district
court to deny relief on the merits of a prisoner's constitutional
claim even though the prisoner has not previously presented the
claim to the state courts. Current law typically requires a
prisoner to seek relief in state court before applying for habeas
corpus relief from a federal court.


By common account, the exhaustion doctrine is meant to avoid
premature federal interference with state court proceedings and
to offer the state courts the initial opportunity to address and
cure violations of federal rights. If the federal courts were
given authority to ignore a prisoner's failure to exhaust state
remedies, those values would be sacrificed. Moreover, it is
possible that a federal court's judgment on the merits of a claim
might be skewed if exhaustion can be dispensed with only if
relief is denied, and not if relief is granted. The Committee
bill last year contained no similar provision, and I would
suggest the idea be dropped from this year's bill.

5. Filing Deadlines for Federal Prisoners . Section 105
would require a prisoner attacking a federal conviction or
sentence to file a federal petition or motion within two years
after one of several events - which will typically be the
conclusion of direct appellate review. Current law contains no
precise filing deadline, but another procedural rule. Rule 9{a)
of the Section 2255 Rules does provide that a petition or motion
may be dismissed summarily if a prisoner delays filing until the
Federal Government is prejudiced in its ability to respond to the
prisoner's claims.

The delays about which critics have complained in recent
years have arisen in cases involving state, not federal,
prisoners in capital, not noncapital, cases. Accordingly, this
section is addressed to "problems" that do not exist. The bill
last year included no such provision, and, here again, I suggest
that this year's bill should concentrate on things that genuinely
need legislative attention.

Chapter 2

This chapter largely tracks the proposals advanced in 1989
by Justice Powell's special subcommittee of the Judicial
conference of the United States - but with several important
differences. Section 106 would establish a new chapter of the
Judicial code, containing a series of special sections to govern
death penalty habeas corpus cases.

1. State options . Section 2256 would condition the
applicability of this special chapter on death penalty cases on a
state's willingness to supply lawyers to indigent prisoners who
wish to attack convictions or sentences in state postconviction
proceedings- -which are typically available after the state
appellate process is complete. The Supreme Court has held that
the states are not constitutionally required to provide lawyers
at the postconviction stage in state court (even in death penalty
cases), and many states fail to do so.


Previous bills, including the bill last year, contained
provisions meant to encourage the states to provide competent
counsel to indigents at all stages of state court proceedings -
particularly at trial, where qualified lawyers can often prevent
constitutional error in the first instance. If counsel is not
provided until the postconviction stage, I am afraid the real
damage to constitutional rights will already have been done and
that ever more time and effort will have to be spent to sort
things out in federal court.

2 . Limitations on Stays of Execution and Second or
Successive Petitions . Section 2257 would authorize a federal
court to stay a prisoner's execution in order to consider an
initial federal petition, but not for purposes of a second or
successive petition - unless the prisoner presents "clear and
convincing" evidence that, but for constitutional error, no
reasonable jury would have convicted the prisoner of the offense
or found the prisoner legally eligible for a sentence of death.
Under the terms of this section, a second or successive petition
might be entertained only if the district judge who denied relief
with respect to the prisoner's first petition, or a majority of
the appellate judges who considered the prisoner's appeal from
that judgment, determine that such a second or successive
petition does not constitute an abuse of the writ.

Current law also authorizes a federal court to stay a
prisoner's execution in order to determine constitutional claims
and also cuts off most second or successive petitions from the
same prisoner. Current law does not, however, explicitly require
the same federal judges who handled a prisoner's first petition
also to handle further petitions.

Previous bills, including the bill last year, included
provisions that would restrict the circumstances in which second
or successive petitions can be f iled - without insisting that such
petitions go to the same federal judges. Such an additional
check on multiple petitions is unnecessary, in my view, and only
promises to add yet another layer of complexity and delay to an
already overburdened system.

3. Filing Deadlines . Section 2258 would require a prisoner
under sentence of death to file for federal habeas corpus relief
within 180 days after the appointment of counsel for purposes of
pursuing postconviction relief in state court, provided that the
180-day period is to be suspended while state postconviction
proceedings are pending. As I explained earlier, current law
fixes no special filing deadlines for habeas corpus petitions in-
capital cases, but does contemplate that a petition can be
dismissed if delay results in prejudice to the state's ability to
respond .


Some statute of limitations for capital cases may be
appropriate, but in light of the complexity of capital cases and
the time required to recruit lawyers to handle them, I should
think that the one-year period contained in last year's bill is
the shortest that can sensibly be established.

4. Restrictions on Appeal . Section 2259 would exempt death
penalty appeals from the ordinary requirement of a certificate of
probable cause, except in the case of a second or successive
petition from the same death row prisoner. Current law requires
certificates for all habeas corpus appeals. Since, however,
certificates are routinely issued in death penalty cases, it only
makes sense to dispense with the requirement entirely in this
class of cases. The bill last year contained a provision similar
to Section 2259.

5. Accommodation of "Unitary" State Systems . Section 2260
would reconcile this special chapter's treatment of state
postconviction remedies with the "unitary" systems adopted in
some states, which combine direct appellate review with state
postconviction procedures. Current law treats such unitary
systems in much the same way, and this provision in H.R. 3 is,
accordingly, noncontroversial .

6. Timetables for Federal Court Action . Section 2261 would
require a federal district court to render a decision on the
merits of a death row prisoner's federal claims within 60 days
after hearing argument and would require a court of appeals to
determine any appeal within 90 days after receiving the parties'
Driers, provided that certain short-term extensions of time may
be granted for "good cause."

Current law allows the federal courts to establish local
rules under which habeas corpus petitions in death penalty cases
receive expedited consideration, and most circuits have done so.
Yet neither Congress nor the federal courts themselves have fixed
rigid deadlines for the adjudication of constitutional claims.
Last year's bill in this Committee would have made no such
attempt to impose such deadlines on the judicial branch, and I
must say I doubt the wisdom of the idea. At the very least, 1
would urge the Committee to consult with Judge Merritt's
executive committee of the Judicial Conference before proceeding
with this provision.

7. Instructions for statutory Construction . Section 2262
would urge the federal courts to construe the provisions of this
special chapter "to promote the expeditious conduct and
conclusion" of death penalty cases. Current law is consistent
with such a policy, and I see no great difficulty with it. A
general canon of construction such as this is preferable, in my
view, to the kind of rigid timetables that Section 2261 would


Chapter 3

Federal Subsidies for States that Employ the Death Penalty .
This chapter contains a provision that would provide federal
funding to states that have enacted the death penalty and, for
that reason, are now defending against federal habeas corpus
petitions attacking capital sentences. As I read It, this
section limits federal funding to an amount equal to what the
Federal Government provides to capital resource centers.
Resource centers are charged to recruit and assist lawyers who
represent indigent death row prisoners in federal habeas corpus
proceedings .

The Federal Cjovernment gives the states considerable support
for ]aw enforcement programs, but, so far as I am aware, does not
specify that any portion of that federal money must be spent on
capital litigation in federal court. Previous bills, including
the bill last year, have always left it to the states to decide
whether they wish to employ the death penalty and, if so, whether
they wish to spend federal funds in this way. I will offer no
view about wisdom or propriety of this kind of federal ear-
marking .

IV. Omissions from H.R. 3

Unfortunately, the habeas provisions in H.R. 3 do not
address some of the most serious problems that attend the current
8ystem - problems that were addressed in the bill this Committee
approved last year.

1 . Independent Federal Court Examination of Constitutional
Claims . H.R. 3 does nothing to ensure that, once a habeas corpus
petition has cleared all procedural hurdles, the federal courts
have the duty and responsibility to make an independent
determination of a prisoner's constitutional claims. Without
this kind of guarantee, federal habeas corpus can squander
resources ironing out procedural snarls with no genuine pay-off
in the end. It is essential that we have meaningful reforms that
will streamline and expedite habeas litigation, but we also need
assurance that the federal courts will be able in the end to
enforce constitutional rights.

The committee bill last year would have codified the
principle in Brown v. Allen - that the federal courts are to
exercise independent judgment on the merits of constitutional
claims. I urge the Committee to Insert a similar provision in
H.n. 3.


In the some vein, 1 urge the Committee to include an
explicit Htatement that the federal courts are not to defer to
previous decisions by the state courts, irrespective of whether
the state courts can be said to have considered federal claims
"fully and fairly." As I am sure you are aware, some bills in
recent years would have denied the federal courts any authority
to award relief on the basis of a claim that was "fully and
fairly" adjudicated in state court.

A blanket deference rule of that sort would strip the
federal courts of their current and luiigstctnding authority and
obligation to enforce federal constitutional rights in an
independent fashion. It would mean the practical end of habeas
corpus, and I urge the Committee to repudiate the Idea in an
exacting manner.

2. The Effect of "New Rules" of constitutional Law , h.r. 3
also fails to address the persistent problems attending the
creation of "new rules" of constitutional law - atter a case
leaves state court, but before a federal court finishes with it.
Many critics of habeas corpus Insist that the federal courts may
surprise the state courts by upsetting criminal convictions or
sentences on the basis of new interpretations of the Constitution
that the state courts could not have anticipated, in apparent
response, the Supreme Court has held that, except in narrow
circumstances, the federal habeas courts cannot consider a claim
if relief can be awarded only by invoking a "new rule" of law.

unfortunately, current definitions of what counts as such a
"new rule" are extremely confusing. in some instances, it is
said that a claim depends on a "new rule" even when it is quite
plain that the applicable legal standard has not genuinely
changed at all. Indeed, by some accounts, it is said that a
federal court establishes and enforces a "new rule" simply by
disagreeing with a state court on the application of a settled
legal standard to the facts of a particular case.

The bill the committee reported last year contained a
sensible definition of "new rules" for these purposes and would
have barred the tederaj courts from applying such rules in habeas
corpus, except in extraordinary circumstances. That kind of
provision is needed again this year.

3. Incompetent Counsel in State Court . H.R. 3 fails to
address the equally persistent problems created by incompetent
lawyers who mishandle cases at trial in state court. That is the
stage of a criminal proceeding when constitutional claims should
be raised and considered in a fair and thorough manner. Yet by
virtually all accounts, many states have failed to develop
effective systems for providing competent counsel to indigent
defendants, even in death penalty cases.


with death penalty offenses and thus for avoiding constitutional
violations that must be corrected in federal habeas corpus. H.R.
3 is seriously flawed in that it includes no similar program.

At the end of the day, the Committee is called upon to
strike a fair balance between justifiable desires that the habeas
process be rendered faster and more efficient and the compelling
value of federal habeas corpus as a means of enforcing basic
constitutional rights. On the one hand, the occasion may now
call for meaningful, even tough, procedural reforms that
accelerate filings and bar most second or successive petitions
from the same petitioner. On the other, we must retain the
substance of the federal courts' jurisdiction.



Mr. Heineman. Mr. Scott.

Mr. Scott. Thank you, Mr. Chairman.

Ms. Bolelyn, we have heard complaints about the process being
slow, inefficient, and inexpensive. Of the cases you have had on ap-
peal, I think what you said, 14 or so

Ms. Bolelyn. I have had over 30. I have handled 14 in one juris-

Mr. Scott. OK How many of the cases that get into the habeas
corpus proceedings are eventually overturned?

Ms. Bolelyn. In noncapital cases, it would be very low, very,
very low percentage.

In capital cases, you would — predictably, you would have, I
would say — this is just my estimate; I have not done a study. You
would have, I would say, somewhere in the neighborhood of 40 per-
cent where the sentencing — the sentencing finding might be found
faulty in some way. You have very few instances in which the
guilt-innocence phase is affected by the decision.

Mr. Scott. And that is consistent with what I have heard. About
40 percent, you have to go back to court to get it resentenced or
to have

Ms. Bolelyn. Or have some sort of procedural — we have had
very few cases in Georgia where there has been an actual inno-
cence claim. But there have, of course, been many of those

Mr. Scott. About 40 percent, the sentence of death is set aside?

Ms. Bolelyn. For whatever reason.

Mr. Scott. Mr. Yackle, do you want to comment?

Mr. Yackle. Just to be clear, then, in 40 percent of these cases.
Federal constitutional rights have been violated. That is the find-
ing of the Federal court.

Ms. Bolelyn. And 40 percent is just a rough guesstimate on my

Mr. Scott. That is consistent with what I have heard.

Mr. Yackle, you mentioned the habeas corpus law. When is the
last time there was a substantive amendment to this law?

Mr. Yackle. A substantive amendment in the sense of affecting
the Federal court's ability to determine independently the merits of
constitutional claims? In 1966, there was an amendment that for-
tified and clarified that jurisdictional power. Not since then and
not previous to that.

Mr. Scott. On the one-bite-at-the-apple idea, what would happen
if your lawyer messes up your one bite at the apple?

Mr. Yackle. You had better hope that the lawyer doesn't. Most
of the cases that have been decided in recent years — we just had
testimony on this — will tend to cut off those second or successive
attempts to get into Federal court, even if lawyers have made mis-
takes the first time around.

Mr. Scott. So if you claim you weren't properly represented
below and you weren't properly represented at appeal, either, that
is just too bad.

Mr. Yackle. Sadly, already under existing precedents, lawyers
make mistakes in these cases and prisoners pay the price. That
could certainly be true under this bill.


Mr. Scott. Do you mean like if a lawyer filed a petition a couple
of days late that you would lose your right to bring those proceed-
ings before the court?

Mr. Yackle. Procedural bar rules do exist now that would —
can — cut off Federal constitutional claims, irrespective of their
merit; that is right.

Mr. Scott. We have a complaint about successive appeals. What
is the magnitude of the problem of people trying to relitigate ex-
actly the same issue?

Mr. Yackle. I don't have any reliable data there. My studies
have focused on noncapital cases, and the rate of successive peti-
tions in noncapital cases is very low. I can't speak to capital cases.

Mr. Scott. Ms. Bolelyn.

Ms. Bolelyn. In my experience, of course, in every single one of
our capital cases, we have a successive petition; and in every single
one of them it is what is called a mixed petition in which you raise
new claims that you have never raised and in which you raise
claims that you have previously raised and say that there is some
new case law that supports that claim.

Of course, the present case law does allow for manifest injustice
exception to bars if you can show that, for whatever reason, there
would be manifest injustice, whether it is your counsel in errors or
not. So in the system as we have it, there would be a provision for
someone to raise those issues, even if there had been a waiver of
some kind.

Mr. Scott. What are the kinds of issues that cause litigation —
the controversy in litigation? What kind of mistakes or claims of
mistakes at the trial level are the kinds of things that you have
problems with dealing with on appeal?

Ms. Bolelyn. I think that in my experience, what happens is
that most issues, or the majority of issues, are things that you can
look at the record and determine, whether a charge was bad, for
example, or something like that. But anything that requires addi-
tional evidentiary development outside the record, more factfinding
has to be done, those issues are going to take more.

But of course those issues are serious, such as ineffective assist-
ance of counsel or failure to disclose on the part of the prosecutor.
Anything that requires additional evidentiary development is going
to require more process.

Mr. Scott. So if you had better counsel below to flesh all those
out and get the record straight to begin with, that would make life
easier for everybody?

Ms. Bolelyn. Well, in my experience — and I don't mean to be
flip about this at all. But the better the attorney is in the trial
court, the easier that my job is in post-conviction proceedings be-
cause everjdihing has either been raised or it has been waived and
there is very little left to litigate unless there is some undiscovered
misconduct on someone's part that someone later finds. So it makes
my job much easier if trial counsel is effective.

Mr. Scott. There is the proposal to require competent counsel at
trial court, and I think that is consistent with what you have sug-

Professor Yackle, do you want to make a final comment?


Mr. Yackle. We should be clear, of course, that this bill includes
no such provision. The bill that the committee reported last Con-
gress did. The bill this year, that the committee is now considering,
does not.

Mr. Scott. Thank you, Mr. Chairman.

Mr. Heineman. Mr. Schiff.

Mr. Schiff. Thank you, Mr. Chairman.

Ms. Bolelyn, I believe I heard you say that you — that you believe
that up to 40 percent of Federal writs of habeas corpus in death
penalty cases are successful in some way. Did I understand that

Ms. Bolelyn. In death penalty cases. And I think that would
primarily be — it would depend on the period of time that you
looked, because we had so little case law when Georgia's was one
of the first death penalty statutes. So a lot of our earlier death pen-
alty cases, if you will, many of them were reversed for failure to
comply with statutes. Now that we have so much case law, our re-
versal rate for sentencing errors is much lower because we have
much more guidance. So it depends on what period of time that you
are looking at as to what that reversal rate would be.

Mr. Schiff. Even when the reversal rate was that high, was it
reversal for a new trial, or reversal — meaning a trial de novo, or
reversal for a new sentencing proceeding; or what was the result
in most cases of the granting of the writ of habeas corpus?

Ms. Bolelyn. Of the 35 that I personally handled — and I have
overseen the rest of them, but in the 35 I have personally handled,
I believe there were only three of them in which there was a new
trial, de novo. Almost the remainder, there was a remand for an-
other proceeding under State law or for a new sentencing proceed-

Mr. Schiff. Professor Yackle.

Mr. Yackle. If I can just, for clarity's sake, point out that those
are cases in which constitutional error was found in the sentencing
and then, in later State court proceedings, those constitutional vio-
lations were cured, that is, the constitutional error was cured. That
is the point of habeas corpus, to see that constitutional violations
don't go without remedy.

Mr. Schiff. Professor Yackle, let me ask you this.

Outside of the wording of this or any other bill, let me talk con-
cept of habeas corpus. And by the way, I would like to add I have
both prosecuted and defended murder cases. I have prosecuted
more, but I have defended also in my career.

You stated, first, that you believe that there ought to be a right
to go to Federal court to argue a Federal remedy; and I basically
agree with that, and I think I might be in disagreement with a
number of Members on my side of the aisle on that. But I agree
that a Federal right should allow for a Federal court in which to
make that claim. The question, however, is how many times can
you go even to Federal court and make that claim?

My view is that a writ of habeas corpus should lie once, at least
with everything that is available at that time. If there is newly dis-
covered evidence, or some other — there was a withholding of evi-
dence or something that was beyond the control of the petitioner,
that is a different story. But I believe that basically all of the al-


leged Federal violation of rights that might exist in a case, though
they should be allowed to go to Federal court, should go one time,
and you argue it now or you never argue it again.

Do you agree with that?

Mr. Yackle. I agree with that as a goal. I know, as I have fol-
lowed this debate for 20 years and read all of the bills, that it is
very difficult to draft legislation that will achieve that one-bite-at-
the-Federal-apple goal, but I think it ought to be the goal. The dif-
ficulty is with the kind of case that Mr. Scott has mentioned, the
kind of case in which there is some real reason for looking at a

Online LibraryUnited States. Congress. House. Committee on the JTaking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 → online text (page 28 of 51)