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Washington-Less than a decade after Congress enacted sweeping restrictions on federal court review of state prisoners’ convictions and sentences, a recent, stealthlike push for additional limits has surprised and angered supporters of the Great Writ of habeas corpus. The Senate Judiciary Committee less than two weeks ago appeared ready to move habeas legislation-S. 1088, the “Streamlined Procedures Act of 2005″-to the floor without public hearings until some members and outside groups voiced opposition to the rushed process. A hearing then was held one day and a markup of the bill began on the next day. How quickly it moves now may depend on how quickly the Senate is consumed by debate on the recent Supreme Court nomination and renewal of the USA Patriot Act. Even the Judicial Conference of the United States, the policymaking arm of the federal judiciary, noted, “the quick pace at which the bill is being considered” in a letter to Senate Judiciary Committee Chairman Arlen Specter, R-Pa. The Judicial Conference stated its opposition to certain provisions in the bill, but conceded that the judiciary “is still assessing the bill,” and had asked one of its own committees to analyze its implications for the federal courts and the administration of justice. “It hit us out of the clear blue sky,” said habeas scholar and litigator Eric Freedman of Hofstra University School of Law, who testified for the American Bar Association in opposition to the legislation. S. 1088, sponsored by Senator Jon Kyl, R-Ariz., and its companion bill in the House, H.R. 3035, sponsored by Representative Dan Lungren, R-Calif., have been portrayed misleadingly as making “technical corrections” to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), said Freedman and others. “Essentially this bill would end federal habeas corpus for almost everyone in prison with the exception of a very, very small number,” said habeas litigator Bryan Stevenson of the Equal Justice Initiative in Montgomery, Ala. “One of the lessons of the last 10 years is we were making a lot more mistakes in the administration of criminal justice than we imagined. DNA evidence helped expose that and it is just the tip of the iceberg. You’d think what would come out of that would be a retreat from finality rhetoric and the resurrection of a fairness concept. But we’re seeing just the opposite here.” The two bills do not gut federal habeas corpus review, insisted a congressional staffer working on the legislation. Instead, they address a particular problem clearly evident after a decade of experience with AEDPA, he said: failure by federal courts to follow congressional intent in the act, particularly by the 9th U.S. Circuit Court of Appeals and particularly in death habeas cases. “The criticism that we’re trying to keep people from any access to the federal courts is completely bogus,” the staffer said. “What the legislation does do is limit the scope of those who would qualify. You’ve got to have some semblance of connection to your claim that your constitutional rights were violated and that you are actually innocent.” Strip or expand? Thomas Dolgenos is an assistant district attorney in Philadelphia who, as chief of that office’s federal litigation unit, describes himself as being “on the front lines” in responding to hundreds of prisoners’ habeas corpus petitions annually. One case that is emblematic of problems with the 1996 AEDPA, he said, is the case of Mark Garrick, still in the court system after 30 years. Garrick committed murder and robbery in 1975. More than 20 years after his conviction, he argued that he couldn’t file his federal habeas petition on time because he didn’t have the filing fee and the prison didn’t have the proper forms. Dolgenos’ office showed that the prison did have the forms and Garrick had money up until he spent it on junk food at the prison commissary. The state prevailed in the district court, but the 3d Circuit concluded that it was a close case and allowed Garrick, with appointed counsel, to appeal, an appeal which is still ongoing. “It’s not as if every question from AEDPA is settled,” conceded Dolgenos. “There are still lots of things out there to resolve and being debated. On the other hand, it’s becoming quite clear there are gaps in AEDPA and there are provisions either being misapplied or if applied correctly, don’t work very well. “It’s kind of like a snowball. As time goes on, we’re getting more and more cases where there are delays or de novo review,” Dolgenos said. From his perspective, the House and Senate bills contain “carefully crafted, commonsense responses” to some of the worst and most common abuses of the 1996 act. “In the 3d Circuit, we have had a big problem with death penalties in particular and procedural defaults in general,” he explained. “The problem is the same: claims that weren’t properly presented to state court are being relitigated in federal court, especially in death penalty cases.” Dolgenos and his colleagues point to the following problems with habeas review: delays caused by unenforced statutory deadlines and very slow decision-making by the federal courts; federal courts reweighing evidence or entertaining claims that have not been decided by state courts; abuse of the actual-innocence standard, which allows prisoners to go forward with their habeas claims despite the existence of various bars to review; and prisoners reviving waived claims though allegations of ineffective assistance of counsel. Senator Kyl agreed, saying, “The AEDPA was designed to limit endless death penalty appeals in state convictions, imposing a limit for all appeals relating to the right to a writ of habeas corpus in capital cases, and reducing the length of the appeals process by limiting the role of federal courts. Ten years later, unfortunately, things have gotten worse, not better. The backlog of habeas claims has actually increased, and so has the workload of prosecutors.” Kyl last week emphasized that “at every point” in the process, his bill would allow actual innocence claims to move forward unimpeded. “But there’s also a need for closure for victims and their families, which can only be accomplished by reducing the backlog of habeas petitions.” The two bills, which would overturn a large number of Supreme Court precedents, would do the following: Prisoners would no longer be able to obtain a stay in federal habeas to exhaust federal claims that were never presented to the state courts. Federal courts would be required to dismiss unexhausted claims with prejudice, meaning that they could not be raised again absent extraordinary circumstances-in most cases, claims going to factual innocence despite the presence of other constitutional violations. If a claim has been procedurally defaulted in state court, it will be barred from federal habeas unless it implicates meaningful evidence of actual innocence. According to the ABA, “A federal court would have to accept at face value a state court’s decision that some state procedural rule established a procedural requirement, that the prisoner or his attorney failed to comply with that requirement, and that, in consequence, the state court declined to consider the prisoner’s federal claim. “Of great practical importance, this section would also eliminate federal court jurisdiction to consider an argument that the prisoner’s procedural ‘default’ in state court was attributable to his lawyer’s ineffective representation in violation of the Sixth Amendment.” The bills would strip federal courts of jurisdiction to entertain most claims regarding a sentence if a state court found any constitutional error was “harmless” or “not prejudicial.” The only exceptions would be for prisoners who demonstrate that the violations they suffered were “structural.” n States presently can take advantage of a number of AEDPA’s time limits and other restrictions on habeas filings if circuit courts find that the state has complied with the statute’s requirements for providing competent counsel to indigent prisoners in state post-conviction proceedings. The bills shift the eligibility decision from the circuit courts to the attorney general of the United States, with review by the U.S. Circuit Court for the District of Columbia. It also eliminates federal habeas review in death cases, except for claims of actual innocence. The bills would bar federal courts from reviewing prisoners’ challenges to state clemency and pardon proceedings. Also, they would prohibit federal habeas judges from handling ex parte requests for financial support from habeas counsel and shift that duty to other judges, and they would allow the prosecution and public to be present. Tipping balance? The Judicial Conference, in its letter to Specter, opposed new deadlines for federal courts to rule on habeas petitions. It also objected to shifting onto the attorney general the decision on whether states are providing competent post-conviction counsel. And it warned that permitting the prosecution to intervene in what are now ex parte proceedings on the need for experts and other assistance for petitioners would “alter the balance of the adversarial system.” Stevenson noted that 98% to 99% of all habeas filings are noncapital cases. “And for all of those prisoners, there is simply no streamlined efficiency delay issue,” he insisted. “They are incarcerated. It’s really in the small percentage of death penalty cases where the state perceives some delay in carrying out the execution.” If the problem is the 9th Circuit, he added, Congress could ask that court to address timeliness through internal rules, just as other courts have done in these cases. “Some senators or Congress members just want habeas for people who can prove innocence,” he said. The debate comes down to two different views that can’t be reconciled, noted a congressional aide. “One view is everybody ought to have the ability to go into federal court and challenge what happened in the trial court, on direct review, in state habeas,” he explained. “The other view-that we have in our bill-is the trial ought to be the main event. We think state habeas procedures ought to give someone who has been convicted the best opportunity to raise the constitutional claim. We say now that you’ve gone through all that, who should be able to use a collateral attack on all that has gone before? We say if somebody does have a claim they are really innocent, they ought to be able to raise that claim in federal habeas.” Habeas scholar Ira Robbins of American University Washington College of Law noted that when AEDPA was enacted, many said it would hasten executions and speed up and reduce the amount of post-conviction review. “Not only did it not reduce litigation, it expanded it,” he said. The proposed legislation, he added, goes much further than AEDPA and raises more profound constitutional questions. “Under AEDPA, as interpreted by the courts, the government tends to win in broad sweeping ways,” said Robbins. “When prisoners win, they don’t win in broad sweeping ways. To go further and eliminate habeas in many cases, tips the balance so far away from the possibility of achieving justice that it becomes irrationally unbalanced.”

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