The History of Habeas Corpus (an English Invention)

From the Oxford Dictionary
At: http://www.oed.com

a) Habeas Corpus: A writ issuing out of a court of justice, or awarded by a judge in vacation, requiring the body of a person to be brought before the judge or into the court for the purpose specified in the writ; spec. the prerogative writ habeas corpus ad subjiciendum, requiring the body of a person restrained of liberty to be brought before the judge or into court, that the lawfulness of the restraint may be investigated and determined.

b) Habeas Corpus Act: the name commonly given to the Act 31 Chas. II. c. 2 (1679), whereby the granting and enforcing of this prerogative writ was much facilitated. certiorari : A writ, issuing from a superior court, upon the complaint of a party that he has not received justice in an inferior court, or cannot have an impartial trial, by which the records of the cause are called up for trial in the superior court.

1523 in W. H. Turner Select Rec. Oxford 38 By no wryt of error of certiorare.
1641 Jrnls. Ho. Commons II. 162 Upon what Grounds they issued forth those Certioraries.
1649 FULLER Just Man's Fun. 16 If one conceive himself wronged in the Hundred..he may by a certiorari, or an accedas ad curiam, remove it to the King's-Bench or Common-Pleas.
1693 CONGREVE Doub. Dealer II. iv, I'll firk him with a certiorari.
1712 ARBUTHNOT
John Bull (1727) 9 He talks of nothing but..replevins, supersedeas's, certiorari's, writs of error, etc.
1881 Times (weekly ed.) 11 June 3/4 The Court granted the rule nisi for the removal here by writ of certiorari. writ, n. :
3. A formal writing or paper of any kind; a legal document or instrument. (Passing into next.)
b. Law. A written command, precept, or formal order issued by a court in the name of the sovereign, state, or other competent legal authority, directing or enjoining the person or persons to whom it is addressed to do or refrain from doing some act specified therein.
c. With of (the specific designation). writ of aiel, certiorari, cessavit, distringas, ease, elegit, entry, error, execution, formedon, habeas corpus, injunction, inquiry, manumission, mesne, mort d'ancestor, non est inventus, privilege, prohibition, ravishment, rebellion, right, summons, venire facias, waste, etc.: see these words.
d. spec. A document issued by the crown conveying a summons to a spiritual or temporal lord to attend Parliament, or directing a sheriff to hold an election of a member or members of Parliament.

ADMINISTRATIVE LAW BAR ASSOCIATION
ANNUAL LECTURE - LORD JUSTICE SIMON BROWN
"HABEAS CORPUS - A NEW CHAPTER"
TUESDAY 23rd NOVEMBER 1999
At: http://www.adminlaw.org.uk/publications/habeas-corpus.htm

Just over one hundred fourteen years ago, on 3 December 1892, a young woman called Daisy Hopkins was convicted by the Vice-Chancellor of Cambridge University and sentenced to fourteen days in the Spinning-House, the University's house of correction. The offence charged against her was that of "walking with a member of the University" - that was the form of words invariably then used in the Vice-Chancellor's Court as a genteel shorthand for Daisy's true offence. What in fact she was guilty of was prostitution with an undergraduate. She brought proceedings by certiorari and habeas corpus and just eight days later came before the Divisional Court. That consisted of the Lord Chief Justice (Lord Coleridge) and Smith J. The University was represented by the Attorney General, a second silk and a junior; Miss Hopkins also had a silk. These were serious matters. Her challenge succeeded; the proceedings against her were quashed and she was set free. As the Lord Chief Justice perspicaciously observed:

"Nobody would suppose that a person simply walking with a member of the University, who might be that member's mother, or sister, or wife, or friend, was guilty of an offence against the law which would justify the Vice Chancellor in imprisoning him or her".

Even though everyone recognised that in reality Daisy Hopkins was being tried for what Lord Coleridge called "the far graver charge of her being a person of immoral character and for having been guilty of immoral conduct", that could not sustain the conviction. That charge had never been made.

Those were great days for habeas corpus. Contrast the position now. The present Lord Chief Justice, Lord Bingham, giving judgement a year ago in a group of cases involving challenges to a number of custody time limit extensions - ex parte MacDonald - said, in respect of one of them:

"We dismiss these applications. The concurrent application for habeas corpus was wholly unnecessary and served only to increase costs unnecessarily. It should not have been made."

First, however, it is worth glancing at the history of the writ if only to destroy the myth that from time immemorial (or at any rate, as many suppose, since Magna Carta) habeas corpus has been the central foundation of all our liberties. It is not so. First a couple of jury points. The writ had its origins not in securing freedom from detention at all, but rather in ensuring a person's attendance before a court of law so that justice (whether civil or criminal) might be administered in his presence. Later on, hardly its finest flowering, the writ became a weapon in the armoury of the common-law courts in their jurisdictional war with the courts of equity. Injunctions would be granted in chancery to prevent litigants from suing at common law or to restrain them from enforcing common-law judgements which violated equitable principle. The King's Bench would then release by habeas corpus whoever was committed for having breached these injunctions. Thus was the battle fought. Only gradually did the writ emerge as a means of testing the legality of detention. A turning point came with the Habeas Corpus Act 1679 which, in language today almost incomprehensible, although the Act is still in force, sought to strengthen the procedure's safeguards. It provided that writs should be available at any time of the year (remarkably it provides that a judge who unduly refuses the writ in vacation is liable for up to £500 punitive damages, a sum it has not been found necessary to increase down the centuries!), that the jailer must obey the writ immediately, that the judge must come to a speedy determination upon it and that, if released, the prisoner should not then immediately be reincarcerated.

"The Act of 1679", observed Professor Sharpe in his monograph on the law of habeas corpus (2nd Edition 1989) - the only such work on the topic and invaluable to anyone concerned to explore this somewhat arcane branch of jurisprudence - "marks the point at which the writ took its modern form." By 1794 Blackstone, in his Commentaries, was describing it as a high prerogative writ. As he put it:

"The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted."
And that, of course, is what the writ does:

It commands the jailer to bring the applicant before the court on the day and at the time specified "together with the day and cause of his being taken and detained ... [so that the court] may then and there examine and determine whether such cause is legal."

Before I pass from this enlightning history of habeas corpus, there are two broad points to be made. First, the writ of habeas corpus has never been an all-purpose remedy for securing the freedom of those claiming to have been wrongly detained. As Lawton LJ observed in 1987 in Linnett v Coles :

"A writ of habeas corpus is probably the most cherished sacred cow in the British constitution; but the law has never allowed it to graze in all legal pastures."
Secondly, it should be noted that historically habeas corpus allowed only the most limited review. So it was that in many cases, the scope of review came to be extended by a linked application for certiorari - certiorari-in-aid of habeas corpus as it was known. Daisy Hopkins was just such a case. By bringing up the whole record, the court could be satisfied that there was real substance in the complaint and not merely some technical procedural flaw.

The real point to be made is that strictly speaking the only form of review available on habeas corpus is as to the soundness of the reason given for detention. As Lord Mansfield observed in Sommersett's Case :

"The only question before us is whether the cause on the return is sufficient." True, as the law developed, there were cases where the court was prepared to go behind the return and to review some prior determination upon which it rested. But that was because the courts chose to act just as if certiorari-in-aid had in fact been used.
The essential point I make is that it is no heresy to contemplate, as I do, subsuming habeas corpus within the wider scope of judicial review. That rather would be to re-unite it with certiorari as so often in the past it was, or at any rate was assumed to be, united.

I began a hundred years ago with Daisy Hopkins. I end, still further back in history, with Sommersett's case of 1778. You will need no reminding of its facts. Sommersett was a negro slave brought by his master from Virginia to England. Having refused to continue in service, he was captured and confined in irons on a ship lying in the Thames bound for Jamaica. A writ of habeas corpus was issued directed to the ship's captain requiring him to produce the applicant's body before the Court together with the cause of his detention. The return to the writ stated that slaves were authorised by the laws of Virginia and Jamaica and that Sommersett had been committed to custody to be taken to Jamaica and sold there. Lord Mansfield's historic holding was that slavery is so odious that only positive law could support it, and that in England there was none. He concluded with the famous words "the black must be discharged." I always thought, however, that counsel had the best line:

"The air of England is too pure for a slave to breathe in".

I mention the case not just because no habeas corpus lecture would be complete without it, but also to make three short final points.

First this: Sommersett's case took six months to decide; judicial review, I assure you, can do much better!

Second, great though the issue there was, that was not a public law case at all. Rather it was a dispute between the slave and his owner, although of course the writ had to be directed towards the ship's captain. I can see no purpose whatever in retaining habeas corpus as a private law remedy. If anyone today is wrongly detained by a private citizen, his remedy surely would be to obtain an immediate injunction.

Third and finally this. Tempting though it is to glory nostalgically in our proud past, we should instead have the courage to recognise and build on our present success. Remedies and processes are only ever as good as the judges who administer them. Bring habeas corpus into the evolving process of judicial review and I do not think the judges will fail you.

HABEAS CORPUS. Give me a body!
At: http://www.holysmoke.org/sdhok/habeus.htm

"HABEAS CORPUS ( Lat., "[that] you have the body"), a writ or order issued by a court to a person having custody of another, commanding him or her to produce the detained person in order to determine the legality of the detention. The writ of habeas corpus is of English origin; its original purpose was to liberate illegally detained persons, and it is still a protection against arbitrary imprisonment." History.

The earliest use of the writ as a constitutional remedy against the tyranny of the Crown took place in the latter part of the 16th century, when it was applied in behalf of persons committed to prison by the Privy Council. Many ways of avoiding the effectiveness of the writ were subsequently developed. In a case in 1627 the judges decided that a sufficient answer to a writ of habeas corpus was that the prisoner was detained by warrant of the Privy Council. In 1641 Parliament, by legislation that abolished the Star Chamber, tried to increase the effectiveness of the writ. This law provided that persons who were imprisoned by a court exercising jurisdiction similar to the Star Chamber, or by command of the sovereign or of the Privy Council, should be granted a writ of habeas corpus without delay; and that the court was to determine within three days after the return of the writ the legality of such imprisonment.

The subsequent refusal of judges to issue writs of habeas corpus during vacation periods resulted in the passage by Parliament of the Habeas Corpus Act of 1679. That statute imposed severe penalties on any judge who refused without good cause to issue the writ and on any officer or other person who failed to comply with it.

After that date the authority of the court was paramount to any order of the sovereign, and the writ became a powerful weapon for the protection of the liberty of the monarch's subjects. The statute, however, dealt only with imprisonment for criminal offenses, and it was not until 1816 that its benefits were extended to persons detained for other reasons.

Modern Use
Protection against arbitrary imprisonment by the right of habeas corpus is not found in continental Europe. In the democratic countries of Western Europe, however, the codes of criminal procedure require that an arrested person be informed with reasonable promptness of the charges and be allowed to seek legal counsel. In many other countries, persons are subjected at times to lengthy periods of imprisonment without being informed of the charges. The writ of habeas corpus has been adopted in many Latin American countries, either by constitutional provision or statutory enactment, but has frequently been nullified in practice during times of political or social upheaval.

Habeas Corpus : History and Definition
At: http://www.chrononhotonthologos.com/lawnotes/hc.htm

There are two definitions for habeas corpus:

One formal and the other substantive. The formal definition may be found in any law dictionary. This essay is about the substantive definition. The substantive definiton of habeas corpus is not found in the dictionaries, but rather, in the history books.

In the early days (before Magna Carta), the king had many court systems operating:

e.g. courts of Common Pleas, Exchequer, King's Bench, Chancery, etc.
Each court had its jurisdiction defined. Of course, as an arm of government, courts are simply another form of bureaucracy with assigned functions. Like any bureaucracy, they always want to expand their jurisdictions. If a court exceeded its jurisdiction, a person could go to the proper court that should have had jurisdiction, and ask for an order directing the errant court stop its proceedings and release jurisdiction to the proper court.

The phrase, "habeas corpus," meaning, "you have the body" was put at the end of pleadings to the second court asking that the first court be required to produce the body if it was being held.

In its most common form, the full formal phrase for habeas corpus was "habeas corpus ad subjiciendum." Of course, as you might surmise, that would pit one court bureaucracy against another. The Habeas Corpus worked quite well because, as long as the defendant was not a common enemy to both bureaucracies, one bureaucracy would not miss any opportunity to put down a competing bureacracy. The practical result of all this is that the defendant would often be ordered released, which was the second court's way of telling the first court that it didn't know what it was doing and had strayed from it's original jurisdiction (i.e. exceeded jurisdiction).

The habeas corpus, as a by-product of bureaucratic turf protection, tended to serve personal liberty well. Over the centuries it became known as the "Great Writ of Liberty." It was the only known privilege or right that became stronger with the passage of time.

In summary, habeas corpus is the process of one court sitting in judgment of another court's jurisdiction. It is NOT a civil or criminal proceeding, but rather it is a family fight between courts. That is why, even though you find habeas corpus rules in the civil procedure books ( FRCP and Calif CCP) the procedures stand somewhat alone, independent of the rest of the procedures in those codes. The reason is obvious:

Why would a court burden itself with procedural requirements? That stuff is ok for outsiders not part of the court system (i.e. plaintiffs, defendants, and attorneys) but not ok for judges themselves.

In America, everyone can be sovereign. When you move for habeas corpus, you are activating your own court, which is separate and distinct from their court. You sit in judgment of the jurisdiction of their court. When you order them to produce the injured party and to demonstrate the injury, and when they fail to produce, then your court can issue an order to dismiss the case for lack of jurisdiction. Your court is a court of record and takes precedence over the statutory court.

HABEAS CORPUS
At: http://law.about.com/newsissues/law/library/forum/uc-habeas_corpus.htm

"Habeas Corpus is an ancient common law prerogative writ - a legal procedure to which you have an undeniable right. It is an extraordinary remedy at law. Upon proper application, or even on naked knowledge alone, a court is empowered, and is duty bound, to issue the Extraordinary Writ of Habeas Corpus commanding one who is restraining liberty to forthwith produce before the court the person who is in custody and to show cause why the liberty of that person is being restrained. Absent a sufficient showing for a proper restraint of liberty, the court is duty bound to order the restraint eliminated and the person discharged.

Habeas Corpus is fundamental to American and all other English common law derivative systems of jurisprudence. It is the ultimate lawful and peaceable remedy for adjudicating the providence of liberty’s restraint. Since the history of Habeas Corpus is predominately English we must visit that history to gain understanding of the American use of Habeas Corpus. "

ENGLISH HISTORY OF HABEAS CORPUS:

The history of Habeas Corpus is ancient. It appears to be predominately of Anglo-Saxon common law origin. Clearly, it precedes Magna Carta in 1215. Although the precise origin of Habeas Corpus is uncertain in light of it’s antiquity, its principle effect was achieved in the middle ages by various writs, the sum collection of which gave a similar effect as the modern writ. Although practice surrounding the writ has evolved over time, Habeas Corpus has since the earliest times been employed to compel the appearance of a person who is in custody to be brought before a court. And while Habeas Corpus originally was the prerogative writ of the King and his courts, the passage of hundreds of years time has permitted it to evolve into a prerogative writ initiated by the person restrained, or someone acting in his interest rather than by the King or his courts. Magna Carta obliquely makes reference to Habeas Corpus through express reference to 'the law of the land'. From Magna Carta the exact quote is: '...no free man shall be taken or imprisoned or disseised or exiled or in any way destroyed except by the lawful judgment of their peers or by the law of the land.' The practice and right of Habeas Corpus was settled practice and law at the time of Magna Carta and was thus a fundamental part of the unwritten common 'law of the land' as was expressly recognized by Magna Carta.

CIVIL LAW VS. COMMON LAW:

However, Habeas Corpus was generally unknown to the various civil law systems of Europe which are generally devolved from Roman and/or Justinian law. European civil law systems tend to favor collective authority from the top down while the Anglo-Saxon common law tends to favor the individual. Thus, it is altogether understandable that the ultimate right to determine the propriety of restraint upon the liberty of an individual is an almost unique feature derived from the ancient Anglo-Saxon common law of England. Indeed, the Magna Carta itself is arguably a reaction to the incursion of European civil law into the English common law legal system via William in 1066. The running tension and contest between the civil law of the 'Norman intruders' intrusively confronting the ancient Anglo-Saxon common law continued throughout the period 1066 to the 1640’s when, following the English Civil War, and the beheading of King Charles I in 1649, the people’s parliament clearly established the respective position of King and citizen. In this crucible of contest, the confrontation of top down authoritarian civil law principles clashed and continuously competed with, but then yielded to, the ancient 'good old' common law of the land.

In the final analysis, the strength and resilience, and I might add common sense, of the evolved, time tested, common law prevailed. The interest of the people as reflected in their common law won a several centuries old contest with the civil law brought to England by the Norman conquest.

Habeas Corpus is merely one feature, albeit it an important one, of the common law. As a feature of common law, the right of Habeas Corpus reflects the age old contest between the individual and the state.

Habeas Corpus empowers the individual in holding accountable the exercise of the state’s awesome power to restrain liberty.

The frequent use of the great writ reflected the tension between common and civil law practice during the period 1485 thru 1509, generally the reign of Henry VII. At that time Habeas Corpus was employed to secure the liberty of those imprisoned by the Chancellor, the King’s Privy Counsel, the Courts of Admiralty, The Court of High Commission and its prerogative courts including its inquisitorial processes featured by the hated 'star chamber court' at Westminster, so called because of the stars on its ceiling.

Conversely, the common law preference of accusatorial processes had long been a fixture of Anglo-Saxon history. The modern writ of Habeas Corpus dates from this history. During this period, the sheer frequency of which Habeas Corpus was employed together with its procedure and results, established the Writ of Habeas Corpus as a powerful tool to check the power of the state and to preserve the rights of individuals against the arbitrary power of the King and his Counsel together with the King’s courts. It was the King’s prerogative courts which were given to inquisitorial practices while the parallel system of common law courts employed purely common law accusatorial practices. Thus the arbitrary character of civil law power devolved in England since William’s Norman intrusion was largely checked through employment of the Writ of Habeas Corpus by the first part of the sixteenth century. And Habeas Corpus saw frequent use and growth in prominence throughout the reign of Charles I which, in turn, found its bloody end on the chopping block in 1649.

THE HABEAS CORPUS ACT:

The English common law practice and procedure respecting Habeas Corpus was codified by Parliament in 1679 by enactment of the Habeas Corpus Act. This historic act of the English Parliament empowered English courts to issue Writs of Habeas Corpus even during periods when the court was not in session and provided significant penalties to the judge, personally, who disobeyed the statute. And while great hypocrisy surrounded the practice of the Habeas Corpus Act in the late 17th century, Habeas Corpus was nevertheless establishing itself as the primary means by which individual liberty was empowered at the expense of the arbitrary exercise of power by the state. During the 19th century the Writ of Habeas Corpus was further expanded to include those held by a purely private process other than that of the state.

AMERICAN DEVELOPMENT OF HABEAS CORPUS:

As with other features of English common law and practice, by the time of the American Revolutionary War, the Writ of Habeas Corpus was clearly established in all of the British colonies in New England and was generally regarded as part of the fundamental protections guaranteed by law to each citizen. The American Constitution at Article I, Section 9 states that: 'The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Case of Rebellion or Invasion the public Safety may require it.' It is important to note that the framers of the Constitution for the United States of America choose to include in the body of the Constitution the Writ of Habeas Corpus while other important individual rights, arguably as an afterthought, were included in the first ten amendments which were popularly called the Bill of Rights. The 'afterthought', that is to say the Bill of Rights, was not included even as amendments until James Madison single handedly, but persistently and successfully, argued before congress for its adoption and passage on 15 December 1791, some two years after the constitution was ratified. This fact sheds light on the importance of the Writ of Habeas Corpus as viewed by the framers of the American Constitution at the time it was established.

CIVIL WAR & HABEAS CORPUS:

The most famous American Habeas Corpus action prior to the civil war was the case of Ex parte Dred Scott. Dred Scott was a slave owned by a physician. Upon the death of his master, it was promised that Dred Scott would be set free. However, at that time Dred Scott was still being detained as a slave. Dred Scott petitioned the Federal Court for a Writ of Habeas Corpus. Habeas Corpus was granted by the Federal District Court and subsequently upheld by the Federal Court of Appeals. However, the Habeas Corpus was overturned by the United States Supreme Court on the grounds that Dred Scott, as a slave, was not a 'person' as contemplated by the United States Constitution and therefore did not have the right to petition the Federal Courts for a Writ of Habeas Corpus. As to Dred Scott, the extraordinary writ, the great writ as Sir William Blackstone put it, was effectively suspended. This notable case remains as one of the most controversial Habeas Corpus actions in American history.

Habeas Corpus Act
From Thompson's compilation of English Statutes in force in the State of Florida
At: http://home.earthlink.net/~walterk1/Patr/CL/Habeas.html
WAGER OF LAW - Black's 3rd

In old practice. The giving of gage or sureties by a defendant in an action of debt that at a certain day assigned he would make his law; that is, would take an oath in open court that he did not owe the debt, and at the same time bring with him eleven neighbors, (called "compurgators,") who should avow upon their oaths that they believe in their consciences that he said the truth. Glanv. lib. 1, c. 9, 12; Bract. fol. 156b; Britt. c. 27; 2 Bl. Comm. 343; Cro. Eliz. 818.
Contents of the compilation of British Statutes in Force in the State of Florida Compiled by Leslie A. Thompson, 1853
At: http://home.earthlink.net/~walterk1/Patr/CL/Habeas.html

Habeas Corpus: History and Definition
At: http://www.chrononhotonthologos.com/lawnotes/hc.htm

"There are two definitions for habeas corpus: one formal and the other substantive. The formal definition may be found in any law dictionary. This essay is about the substantive definition. The substantive definiton of habeas corpus is not found in the dictionaries, but rather, in the history books.

In the early days (before Magna Carta), the king had many court systems operating: e.g. courts of Common Pleas, Exchequer, King's Bench, Chancery, etc. Each court had its jurisdiction defined. Of course, as an arm of government, courts are simply another form of bureaucracy with assigned functions. Like any bureaucracy, they always want to expand their jurisdictions. If a court exceeded its jurisdiction, a person could go to the proper court that should have had jurisdiction, and ask for an order directing the errant court stop its proceedings and release jurisdiction to the proper court. The phrase, "habeas corpus," meaning, "you have the body" was put at the end of pleadings to the second court asking that the first court be required to produce the body if it was being held. In its most common form, the full formal phrase for habeas corpus was "habeas corpus ad subjiciendum." Of course, as you might surmise, that would pit one court bureaucracy against another. The Habeas Corpus worked quite well because, as long as the defendant was not a common enemy to both bureaucracies, one bureaucracy would not miss any opportunity to put down a competing bureacracy. The practical result of all this is that the defendant would often be ordered released, which was the second court's way of telling the first court that it didn't know what it was doing and had strayed from it's original jurisdiction (i.e. exceeded jurisdiction). The habeas corpus, as a by-product of bureaucratic turf protection, tended to serve personal liberty well. Over the centuries it became known as the "Great Writ of Liberty." It was the only known privilege or right that became stronger with the passage of time.

In summary, habeas corpus is the process of one court sitting in judgment of another court's jurisdiction. It is NOT a civil or criminal proceeding, but rather it is a family fight between courts. That is why, even though you find habeas corpus rules in the civil procedure books ( FRCP and Calif CCP) the procedures stand somewhat alone, independent of the rest of the procedures in those codes. The reason is obvious: Why would a court burden itself with procedural requirements? That stuff is ok for outsiders not part of the court system (i.e. plaintiffs, defendants, and attorneys) but not ok for judges themselves.

In America, everyone can be sovereign. When you move for habeas corpus, you are activating your own court, which is separate and distinct from their court. You sit in judgment of the jurisdiction of their court. When you order them to produce the injured party and to demonstrate the injury, and when they fail to produce, then your court can issue an order to dismiss the case for lack of jurisdiction. Your court is a court of record and takes precedence over the statutory court."

Habeas Corpus Act of Parliament, 1679
At: http://www.spartacus.schoolnet.co.uk/PRgagging.htm
Text of Habeas Corpus Act, 1679:
At: http://www.fordham.edu/halsall/mod/1679habeascorp.html
http://www.constitution.org/eng/habcorpa.htm

Habeas Corpus: Ambrose Bierce: The Devil’s Dictionary - H
At: http://www.users.bigpond.com/burnside/bierce-H.htm
HABEAS CORPUS. A writ by which a man may be taken out of jail when confined for the wrong crime.

Federal (USA) Habeas Corpus Review: A Brief Overview
At: http://profs.lp.findlaw.com/habeas/

Whigs and Tories : The Habeas Corpus Act
At: http://www.saburchill.com/history/chapters/chap4011ft.html

Whigs and Tories
Gradually there emerged a group of MP's and Lords who wanted Parliament to be stronger than the king. They hated and feared Catholics and sympathised with Puritan Non-conformists. They began to call themselves the Country Party (opposed to the Court Party). Their enemies nicknamed them "Whigs" after some Scottish Puritan outlaws.

The other political group, the Court Party, were for the king and believed in Divine Rights. They were also in favour of the Church of England with all its ceremonies and bishops. They hated Non conformists. The Whigs suspected that they were pro-Catholic and nicknamed them after Irish Catholic outlaws : the "Tories".

The Whigs and Tories were the world's first political parties and over the years to come they were to share government and opposition in a dual party system. The Whigs became the Liberal Party in the 19th century and the Tories became the Conservative Party. Both still exist today, although the Liberal Party is now called the Liberal Democratic Party.

The Habeas Corpus Act

This Act, passed in May 1679, allowed a prisoner to demand that he should be brought before a court and have his case examined. It was passed during the reign of Charles II and meant that even a political prisoner, an opponent of the king, as well as a common criminal, could have a fair trial and not just be thrown into prison to be forgotten about. It provided a dramatic contrast to the notorious "lettres de cachet" of Louis XIV which existed in France at the same time and allowed the French king to imprison someone indefinitely, without any legal redress.

Habeas Corpus literally means "bringing the body of an individual before a court of justice". This right had existed in England in early Norman times. (Article 36 of the Magna Carta of 1215 says that this right should "not be refused". At that time it meant that an accused person could avoid a terrible trial by ordeal.) Once before a court, an accused person has his case examined and is then allowed bail (is freed on condition that he leaves a sum of money and promises to return for further hearings), or he is imprisoned again because the evidence against him is so great. By the time of Charles I kings were saying that a simple royal order was sufficient to overrule a writ of Habeas Corpus. It was for this reason that, in the late 17th century, Parliament wanted the law clearly and irrevocably written down.

The Habeas Corpus Act of 1679 was largely the work of Lord Shaftesbury, after whom it was named. Occasionally, it is suspended, for example in time of war or when there is a terrorist threat, but suspension of Habeas Corpus has to be voted by Parliament and for a limited period only.

All modern democracies have a law equivalent to Habeas Corpus written into their constitutions.

The Act of Habeas Corpus was only just passed in the House of Lords in May 1679. When the votes were counted, there were not enough Lords in favour, so it was decided that one of the Lords, because he happened to be fat, was worth ten votes. It started as a joke, but in fact remained on the statutes.

The Earl of Shaftesbury (1621-1683)

Anthony Ashley Cooper, the Earl of Shaftesbury, was a Puritan landowner. He was opposed to absolute monarchy, yet, at the same time, he was afraid of the idea of democracy. During the Civil War, he kept changing sides, which earned him the nickname the "Dorsetshire Eel".

At first, Shaftesbury was one of King Charles II's ministers and became Lord Chancellor in 1672. He turned against the king when he learnt of the existence of the Treaty of Dover. This was the secret treaty which Charles II had signed with Louis XIV of France. It was an arrangement by which King Charles II was paid a "pension" to, amongst other things, restore Catholicism as the state religion in England.

Shaftesbury was one of the MPs who voted for the Exclusion Bill during the Exclusion Crisis (1678-1681). This was an attempt to keep the Catholic Duke of York, later James II, from ascending the throne. At the same time, another MP, called Titus Oates, had started a rumour that the Duke of York was secretly plotting with other Catholics to organize a Catholic take-over of both the monarchy and the government. This was to become known as the Popish Plot, and Shaftesbury made full use of the story. Many Catholics were arrested and killed because of this rumour.

Shaftesbury established the Whig Party in 1681. The Whigs backed the Duke of Monmouth, Charles II's illegitimate son, as the heir to the throne. In 1681, he was arrested for a second time on a charge of high treason. Fortunately, he was acquitted by a Whig jury, and the charges were dropped. However, the king was busy replacing Whigs by Tories in influential positions, and Shaftesbury was forced to leave the country. He went into hiding in Amsterdam, where he died, in 1683, from the effects of a liver disease.

Habeas Corpus: The Columbia Encyclopedia, Sixth Edition. 2001.
At: http://www.bartleby.com/65/ha/habeasco.html

[Lat.,=you should have the body], writ directed by a judge to some person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a specified place for a specified purpose. The writ’s sole function is to release an individual from unlawful imprisonment; through this use it has come to be regarded as the great writ of liberty. The writ tests only whether a prisoner has been accorded due process, not whether he is guilty. The most common present-day usage of the writ is to appeal state criminal convictions to the federal courts when the petitioner believes his constitutional rights were violated by state procedure. An individual incarcerated in a state prison is expected to exhaust all possible routes available before applying to a federal judge for habeas corpus. The term is mentioned as early as the 14th cent. in England, and was formalized in the Habeas Corpus Act of 1679. The privilege of the use of this writ as a safeguard against illegal imprisonment was highly regarded by the British colonists in America, and wrongful refusals to issue the writ were one of the grievances before the American Revolution. As a result, the Constitution of the United States provides that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" (Article 1, Section 9). President Lincoln suspended habeas corpus in 1861 at the beginning of the Civil War, and his decision was upheld by Congress - despite protests by Chief Justice Roger Taney that such suspension was not within the powers of the President. The Supreme Court’s liberal decisions in the 1950s and 1960s in the area of prisoners’ rights encouraged many incarcerated persons to file writs challenging their convictions. In recent years, the Court under William Rehnquist has limited multiple habeas corpus filings, particularly from prisoners on death row.

HABEAS CORPUS
At: http://www.univ-nancy2.fr/CEAA/CRESAB/habeascorpus.htm

An ancient common-law writ, issued by a court or judge directing one who holds another in his custody to produce the body of the person before the court for some specified purpose. Although there have been and are many varieties of the writ, the most important is that used to correct violations of personal liberty by directing judicial inquiry into the legality of a detention. The habeas corpus remedy is recognized in the countries of the Anglo-American legal system but is generally not found in civil-law countries, although some of the latter have adopted comparable procedures.

The origins of the writ cannot be stated with certainty. Before the Magna Carta (1215), a variety of writs performed some of the functions of habeas corpus. During the Middle Ages habeas corpus was employed to bring cases from inferior tribunals into the king's courts. The modern history of the writ as a device for the protection of personal liberty against official authority may be said to date from the reign of Henry VII (1485-1509), when efforts were made to employ it on behalf of persons imprisoned by the Privy Council. By the reign of Charles I, in the 17th century, the writ was fully established as the appropriate process for checking the illegal imprisonment of people by inferior courts or public officials.

Many of the procedures that made for effective assertion of these rights were provided by the Habeas Corpus Act of 1679, which authorized judges to issue the writ when courts were on vacation and provided severe penalties for any judge who refused to comply with it. Its use was expanded during the 19th century to cover those held under private authority. In 1960 legislation was enacted limiting the instances in which habeas corpuscould be denied and establishing new lines of appeal.

In the British colonies in North America, by the time of the American Revolution, the rights to habeas corpus were popularly regarded as among the basic protections of individual liberty. The U.S. Constitution guarantees that the privilege "shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." In England such suspension had occurred during the wars with France at the time of the French Revolution. In the United States, Pres. Abraham Lincoln suspended the writ by executive proclamation at the outbreak of the Civil War in 1861. The presidential act was challenged by Chief Justice Roger Taney who, in the case of Ex parte Merryman, vigorously contended that the power of suspension resided only in Congress. Lincoln ignored the order of the court, but the weight of modern opinion appears to support the view that suspension of the writ requires the consent of Congress.

The current uses of habeas corpus in the United States are quite varied. The Supreme Court's liberal interpretation of the constitutional rights of those accused of crime led in the mid-20th century to the filing of many habeas corpus petitions by prisoners, challenging their convictions. A writ frequently is requested on behalf of one in police custody for the purpose of requiring the police to either charge the arrested person with an offense or release him. Habeas corpus proceedings may be employed to obtain release of the accused prior to trial on the ground that the bail set is excessive. On occasion habeas corpus relief has been granted a prisoner who is unlawfully detained after expiration of his sentence. In cases of one arrested on a warrant of extradition, a proceeding in habeas corpus may be instituted to challenge the validity of the warrant.

The writ may also be employed in a wide variety of situations not involving criminal proceedings. Thus competing claims to the custody of a minor may be adjudicated in habeas corpus. One confined to a mental hospital may in some jurisdictions bring about his release by showing at a habeas corpus hearing that he has recovered his sanity.
Encyclopædia Britannica, 1999 (CD-ROM)

Article 1, Section 9, Clause 2: William Blackstone, Commentaries 3:129--37 - including on habeas corpus
At: http://www.cyber-nation.com/victory/quotations/authors/quotes_parkinson_cnorthcote.html

And yet, early in the reign of Charles I, the court of king's bench, relying on some arbitrary precedents (and those perhaps misunderstood) determined that they could not upon an habeas corpus either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special command of the king, or by the lords of the privy council. This drew on a parliamentary enquiry, and produced the petition of right, 3 Car. I. which recites this illegal judgment, and enacts that no freeman hereafter shall be so imprisoned or detained. But when, in the following year, Mr Selden and others were committed by the lords of the council, in pursuance of his majesty's special command, under a general charge of "notable contempts and stirring up sedition against the king and government," the judges delayed for two terms (including also the long vacation) to deliver an opinion how far such a charge was bailable. And, when at length they agreed that it was, they however annexed a condition of finding sureties for the good behaviour, which still protracted their imprisonment; the chief justice, sir Nicholas Hyde, at the same time declaring, that "if they were again remanded for that cause, perhaps the court would not afterwards grant a habeas corpus, being already made acquainted with the cause of the imprisonment." But this was heard with indignation and astonishment by every lawyer present; according to Mr Selden's own account of the matter, whose resentment was not cooled at the distance of four and twenty years. These pitiful evasions gave rise to the statute 16 Car. I. c. 10. §. 8. whereby it was enacted, that if any person be committed by the king himself in person, or by his privy council, or by any of the members thereof, he shall have granted unto him, without any delay upon any pretence whatsoever, a writ of habeas corpus, upon demand or motion made to the court of king's bench or common pleas; who shall thereupon, within three court days after the return is made, examine and determine the legality of such commitment, and do what to justice shall appertain, in delivering, bailing, or remanding such prisoner. Yet still in the case of Jenks, before alluded to, who in 1676 was committed by the king in council for a turbulent speech at Guildhall, new shifts and devices were made use of to prevent his enlargement by law; the chief justice (as well as the chancellor) declining to award a writ of habeas corpus ad subjiciendum in vacation, though at last he thought proper to award the usual writs ad deliberandum, &c, whereby the prisoner was discharged at the Old Bailey. Other abuses had also crept into daily practice, which had in some measure defeated the benefit of this great constitutional remedy. The party imprisoning was at liberty to delay his obedience to the first writ, and might wait till a second and a third, called an alias and a pluries, were issued, before he produced the party: and many other vexatious shifts were practiced to detain state-prisoners in custody. But whoever will attentively consider the English history may observe, that the flagrant abuse of any power, by the crown or it's ministers, has always been productive of a struggle; which either discovers the exercise of that power to be contrary to law, or (if legal) restrains it for the future. This was the case in the present instance. The oppression of an obscure individual gave birth to the famous habeas corpus act, 31 Car. II. c. 2. which is frequently considered as another magna carta of the kingdom; and by consequence has also in subsequent times reduced the method of proceeding on these writs (though not within the reach of that statute, but issuing merely at the common law) to the true standard of law and liberty.

Understandings of the Rule of Law in Britain
At: http://web2.uvcs.uvic.ca/courses/lawdemo/MOD2/MOD2O.HTM

Elsewhere there might be the sultan's caprice, the lit de justice, judicial torture, the slow-grinding mills of the canon law's bureaucracy, and the auto-da-fe of the Inquisition. In England, by contrast, king and magistrates were beneath the law, which was the even-handed guardian of every Englishman's life, liberties, and property. Blindfolded Justice weighed all equitably in her scales. The courts were open, and worked by known and due process. Eupeptic fanfares such as those on the unique blessings of being a free-born Englishman under the Anglo-Saxon-derived common law were omnipresent background music. Anyone, from Lord Chancellors to rioters, could be heard piping them (though for very different purposes). from Roy Porter, English Society in the Eighteenth Century (Harmondsworth, Penguin, 1982) p. 149.

Sir William Blackstone (1723-1780)
At: http://web2.uvcs.uvic.ca/courses/lawdemo/BIOGRAPH.HTM

Blackstone's most remarkable contribution to English was his publication of his lectures given at Oxford University in the 1750s to "Gentlemen of Rank and Fortune." His Commentaries on the Laws of England (1765) in four volumes is in the words of Brian Simpson "a great, readable book about English law as a whole." This was the first serious attempt to reduce the morass of the laws of England to rational statement, and was immensely influential as a statement of that law, not only in England but also in the colonies and in the United States. His contribution to scholarship was recognized at Oxford by his appointment to the Vinerian Chair of Law.

Blackstone was not a success at the Bar, nor as a judge of the Court of Common Pleas to which he was appointed in 1770. He was elected to Parliament in 1761 as a Tory supporting the Earl of Bute. His record in the Commons was undistinguished, as befitted a placeman who supported the aristocratic Whig establishment. He spoke out against the American colonists and was active in securing the expulsion from the Commons of the populist, John Wilkes. The Commentaries were criticized, not least by Jeremy Bentham, for their complacency about the genius of the common law and in their adulation of the British Constitution as the epitome of perfection in balancing the interests of King, Lords and Commons. While Blackstone's philosophy was borrowed and shallow, his sense of history as reflected in his statement of the law was generally strong. Politically, suggests Brian Simpson, he was "an old Whig for whom the Glorious Revolution was a living reality, a Revolution which had produced a constitution with perfect checks and balances." (See A.W.B. Simpson, Dictionary of Legal Biography, pp. 57-61).

Selections from Habeas Corpus Act:
An Act for the better securing the Liberty of the Subject, and for Prevention of Imprisonment beyond the Seas (1679) 30 Car. II, c. 2, ss.
At: http://web2.uvcs.uvic.ca/courses/lawdemo/DOCS/WRITHC.HTM

Defend Habeas Corpus, The "Great Writ of Liberty"!
At: http://www.refuseandresist.org/resist96/habeascorpus.html

The Unconstitutionality of Time Limits Placed on The "Great Writ"
By Buck Garrett , Prisoner of War in America
At: http://www.november.org/0413.html

The Constitution of the United States in certain instances, grants power to the Congress to enact laws. An example of one of those instances is the power to make laws to control the Commerce between the States. In short, in order for Congress to enact a law, the Constitution must grant the power to Congress that law.

The Constitution does not put a time limit on this right to redress a grievance. The Constitution grants to each citizen, the right to petition the court at any time that citizen believes a grievance exists. Nowhere in the Constitution is Congress granted the power to set time limits on the Constitutional right to redress a grievance or any other Constitutional right. Even the Supreme Court would be hesitant in allowing Congress to pass a law that limited the 4th Amendment rights to certain hours of the day, or until a citizen attains the age of 35, or even until April 24, 1996.

The founders never intended that Congress be empowered to chip away at rights specifically granted to the citizens by the Constitution. Of course, the Founders never intended that the United States to become a Police State either! "The Great Writ is Alive and Well!"

Congress hasn't placed a time limit on the Petition for a Writ of Habeas Corpus, what they did was amend the second clause of Title 28 USC § 2255. That clause did state that a § 2255 motion may be made at any time. After the amendment, the clause sets a time limit of one year to file the § 2255 motion, relying on the latest of four possible times.

When Congress passed 28 USC §2255 almost fifty years ago, they intended for 28 USC § 2255 to replace their Petition for a Writ of Habeus Corpus. Title 28 USC § 2255 appears to have worked pretty well over the last half century. Keep in mind here that Congress did not and has not attempted to amend the United States Constitution. Congress knows full well the process of amending the Constitution.

The Suspension Clause of Article 1, Section 9, Clause 2 of the Constitution, specifically prohibits the suspension of Habeas Corpus relief. You can bet that at least one of the idiots who profess to be a professional politician knows about the Suspension Clause. Since Congress passed 28 USC § 2255, they have every right to amend it, however, any amendment to 28 USC § 2255 is certainly not an amendment to the Constitution.

I suggest the citizens file a Petition for a Writ of Habeus Corpus, pursuant to the Constitution and make it clear in their petition that they are not seeking any relief pursuant to 28 USC § 2255. The catch is, if you ask for relief under 28 USC § 2255, then 28 USC § 2255 with any amendments is all you can expect.
Your caption should read:

Petition for a Writ of Habeas Corpus pursuant to the Constitution of the United States of America.
Attacks on Habeas Corpus: The System's Rush to Execute
At: http://www.rwor.org/a/firstvol/885/habeas.htm

"Revolutionary Worker #885, December 8, 1996

In April, the "Counter-Terrorism and Effective Death Penalty Act" was passed by Congress and signed into law by President Clinton. Under the excuse of "fighting terrorism," the law gives the government, courts and police authorities widely expanded powers of repression.

One of the centerpieces of the new law is a measure calling for historic restrictions on habeas corpus--the right of prisoners to appeal their convictions and sentences in the federal courts. These restrictions will allow the government to execute more people and keep more prisoners under unjust incarceration. In the twisted language of the oppressors, these restrictions are known as habeas corpus "reforms"!

In June, the U.S. Supreme Court upheld a part of the new habeas corpus restrictions with a unanimous decision in the Felker case. Other provisions are expected to be considered by the Supreme Court--and upheld.

Under the new law, state prisoners will be limited to only one federal court appeal. And the appeal would have to be filed within one year--in some cases within six months--after the state conviction becomes final. Often, it is years before new evidence comes to light or new witnesses appear, giving prisoners legal ammunition to challenge their convictions.

The law also severely limits the authority of the federal court to review state court convictions. It would not be enough for a prisoner to show that he or she was convicted in a state court on false evidence, coerced confession or other outrages. The prisoner would have to provide "clear and convincing" evidence of innocence and show that the state judge acted in an "unreasonable" way. These are very strict standards that make it virtually impossible for state prisoners to have their cases overturned in federal court.

What effect will the gutting of habeas corpus have on prisoners, especially those on death row? Since 1970, almost half of the state court death sentences reviewed by the federal courts have been reversed. If the "counter-terrorism" law had been in effect, most of those people would not be alive today.

The restrictions on habeas corpus bring added urgency to the fight to stop the execution of political prisoner Mumia Abu-Jamal. At a July press conference in Philadelphia, Leonard Weinglass--Mumia's lead attorney--said: "[The new law] is going to affect Mumia's case very dramatically because, up until now, we all thought that it would be a federal court looking at what the state courts of Pennsylvania had done that would order a new trial for Mumia. Now that issue is very, very clouded and the prospects are very ominous. So it's very important that the outside support be maintained."

During the October Month of Resistance, the RW talked to Steve Hawkins, a Black criminal defense attorney with the National Coalition Against the Death Penalty, about the new habeas corpus restrictions.
Here are excerpts from that conversation.
On the history of habeas corpus in the U.S.:
It's important for people to really see the connection with habeas corpus and Reconstruction. When slavery ended in this country, there was a concern that southern states would use the power of criminal law to put people back on the same plantations they had just gotten off of. Because the 13th Amendment only outlaws slavery--involuntary servitude--as long as you're a free citizen, you can be forced to work for free in prison.

It's quite similar to the chain gangs we see now happening in the south. As the capitalist economy forces a lot of people out of work, the prison industrial complex is being used to have workers doing road work, painting, etc. I was just in a county recently where a number of buildings have been newly designated as historic buildings. Because of that, they can get the inmate crews to paint them, refurbish them and everything else. In Georgia they're using inmate labor to fight fires. People who are considered lifers too dangerous to be out on the streets are now being recruited to go save people's lives and be the point people in dangerous fires.

Habeas corpus came about because the Reconstruction Congress knew that there had to be some way that when the southern states tried to force newly freed Blacks back to the plantation through imposing long prison sentences (and in those days, the warden could farm out inmates to work on people's property), the people could use the federal courts as a sanctuary, to be able to go in and press their rights. The Habeas Corpus Act of 1867 was passed right at the same time as the 14th Amendment. The 14th Amendment was to make sure people had equal rights in the civil context. And the Habeas Corpus Act was to make sure that people's rights as citizens of the United States were protected in the criminal context.

About the effect of the new habeas corpus law on the Mumia case:
The federal court, even if they disagreed with Judge Sabo, would now have to defer to his opinion. [They would have to defer] to the word of Judge Sabo, a former member of the Fraternal Order of Police, a former sheriff in Philadelphia county, with respect to whether Mumia received effective representation and counsel, whether Mumia's sentence was cruel and unusual punishment, whether his First Amendment freedoms--his political affiliation with the Black Panther Party--was used wrongfully to argue to the jury that he should be sentenced to death because of his political beliefs. And that has not been the standard in this country since habeas corpus was first passed back in 1867.

How the gutting of habeas corpus will affect the masses of people:
What it means is that if someone ends up in jail through a trial in which there were mistakes made--whether it was evidence that never should have been entered, whether the prosecutor made a comment to the jury which prejudiced the whole trial, whether there were questionable dealings in terms of information that should have been handed over to the defense attorney that wasn't--the prosecutor now gets a free-for-all. Because at the local-state level, where the judges work much more closely with the prosecutors, the judge is going to allow the prosecutor to get away with a lot more. And you as a citizen aren't going to have any power, really, to correct that. This is part of the growth of fascism in this country. Ultimately with the destruction of habeas corpus, the chances of innocent people being executed (and I believe some have already been executed in the last 20 years) is now much more real, and just waiting to happen. When they talk about speeding up the process, and at the same time cutting the level of review, they're bound to make critical mistakes. As I'm sure you know, four African American men out of Chicago, the Ford Heights 4, spent a number of years on death row. Under this new statute, someone like Dennis Williams, who spent 18 years on death row, would've been executed. I've talked on some of these right-wing talk shows on radio, and when I raise this point they take the attitude that they see the death penalty as something like skiing. People ski and there are accidents on the slopes, but we don't pull the slopes down. Whenever I hear that, I think of Mussolini's quote, "What is one life in the affairs of the state?"

Even if someone is innocent--this has been my experience, and we see it with Mumia--this is a system that does not admit its mistakes and does everything it can possibly do to cover them up. And the only difference now will be, you won't have the ability to expose the police or expose what happened at a trial. It'll be concealed.

This article is posted in English and Spanish on
Revolutionary Worker Online
At: http://rwor.org
Write: Box 3486, Merchandise Mart, Chicago, IL 60654
Phone: 773-227-4066 Fax: 773-227-4497

Capital Cases:
Does the Bill of Rights Apply Here Any More?
Evisceration of Habeas Corpus and Denial of Counsel
to Those Under Sentence of Death
By Stephen B. Bright
At: http://www.criminaljustice.org/CHAMPION/ARTICLES/96nov02.htm

Stephen B. Bright is Director of the Southern Center for Human Rights in Atlanta, GA. An NACDL Director, he has served people facing the death penalty at trials, on appeals and in post-conviction proceedings since 1979. He has taught courses on capital punishment, criminal procedure and international human rights at Yale, Harvard, Georgetown, Northeastern, Florida State and St. Mary's law schools; and has testified extensively before the U.S. Congress and many state legislatures.

Over the centuries [the Writ of Habeas Corpus] has been the common law world's "freedom writ" by whose orderly processes the production of a prisoner in court may be required and the legality of the grounds for his incarceration inquired into, failing which the prisoner is set free. We repeat what has been so truly said of the federal writ: "there is no higher duty than to maintain it unimpaired," and unsuspended, save only in the cases specified in our Constitution - Smith v. Bennett.

1 [I]n our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. . . . [L]awyers in criminal cases are necessities, not luxuries Gideon v. Wainwright.

2 Habeas corpus review and the right to counsel have been celebrated at home and revered abroad as two fundamental components of the American criminal justice system.

Although there has always been a substantial gap between the pronouncements of courts, bar leaders and commentators about the importance of these components and the quality of justice actually received by the poor, the goals of meaningful habeas corpus review and providing competent counsel to the poor have been seen as indispensable elements in the larger quest for equal justice for all.

Those goals were abandoned during the past year by the 104th Congress.

In pursuit of a criminal justice system that will serve the goal of vengeance, Congress eliminated funding for the death penalty resource centers and limited habeas corpus by imposing a statute of limitations,

3 requiring federal courts to defer to the legal conclusions of state courts,

4 severely limiting when a federal court may conduct an evidentiary hearing,

5 and all but eliminating a second or "successive" petition for habeas corpus relief.

6 Many states are following suit, placing unreasonable time restrictions or other limits on their state post-conviction review processes and cutting back on already understaffed and overworked programs which provide counsel for the poor. The stated objectives of these measures is to hasten executions, but the resulting injustices will not be limited to those condemned to die. Anyone unconstitutionally convicted of any crime, regardless of the sentence, faces these new barriers to obtaining justice. The increased speed will be obtained at the cost of fairness and reliability.

These developments create extraordinary challenges for criminal defense attorneys.
This column surveys the damage and addresses the challenges.

The Once-Great Writ of Habeas Corpus

There is no better example of the importance and value of the Writ of Habeas Corpus than the case of Rubin "Hurricane" Carter, who was freed by a federal judge after being wrongfully imprisoned by New Jersey for almost 20 years.

Carter was the number-one-ranked contender for the middleweight boxing crown in 1966 when he and a companion were arrested and charged with the murders of three white people. They were convicted and narrowly escaped the death penalty. Carter was sent to Trenton State Prison and later to Rahway. While in prison, Carter wrote the story of his life, The 16th Round: From Number 1 Contender to Number 45472 (1974).

In 1980, Lesra Martin, a 16-year-old African-American youth from Brooklyn, who had been taken in by a group of Canadians, bought a copy of Carter's book for $1 at a used-book fair in Toronto. He and his Canadian friends read the book and became convinced of Carter's innocence. Working with attorneys Myron Beldock and Leon Friedman, the Canadians spent four and a half years investigating the case and providing Carter moral support.

After Carter had been rejected many times in the New Jersey courts, United States District Judge H. Lee Sarokin held in 1985 that the prosecution had withheld critical exculpatory evidence and improperly argued racial hatred as the motive for the crime, and granted habeas corpus relief.

7 Carter was released and has lived in Canada ever since.

Today, Rubin Carter is one of the most eloquent spokesmen in support of the Writ of Habeas Corpus. He has testified before Congress and spoken at law schools.

8 He is the director of an international organization, the Association in Defense of the Wrongly Convicted, and seeks the release of other people who were wrongfully convicted and imprisoned. But federal habeas corpus relief has corrected other injustices besides the conviction of innocent people.

The United States Supreme Court unanimously ordered habeas corpus relief for Tony Amadeo after it was revealed at a federal evidentiary hearing that the prosecutor had secretly directed jury commissioners to under-represent African-Americans in the jury pools.

9 Amadeo had been sentenced to death by a jury drawn from the rigged pools.

Jimmy Horton was granted habeas corpus relief based on evidence presented at a federal evidentiary hearing that the prosecutor, who struck African-Americans to get the all-white jury that sentenced Horton to death, routinely struck all black citizens from jury service.

10 William Alvin Smith, a mentally retarded youth sentenced to death in Georgia, was granted habeas corpus after a federal district judge heard evidence of Smith's mental retardation and concluded that because of his disability, he did not understand the Miranda rights read to him.

11 Amadeo, Horton and Smith were not innocent, but they were unconstitutionally sentenced to death. Like many others granted federal habeas corpus relief, they were not resentenced to death upon return to the state courts. Tony Amadeo graduated summa cum laude from Mercer University in the summer of 1995.

It is doubtful whether under the new habeas law, evidentiary hearings would even be granted in these and scores of other cases in which relief was granted under the previous law. The constitutional violations will still exist, but Congress has directed the courts to refuse to hear the evidence necessary to prove them.

Many of those who languished in prison for years, as did Rubin Carter, before gaining access to the federal courts and ultimately obtaining relief, would not have been able to comply with a statute of limitations.

Nor is it clear that relief would have been granted in many of these cases under the new standard of review which prohibits federal courts from setting aside a state court's legal conclusions unless the state court's decision was "contrary to or involved an unreasonable application of clearly established federal law."

12 The Supreme Court upheld the new provisions regarding successive habeas petitions last summer in Felker v. Turpin.

13 A successive petition is allowed only when it relies on a new rule of constitutional law, which applies retroactively to cases on collateral review, or a constitutional violation that could not have been discovered previously through due diligence and it is established that "but for the constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense."

14 Before a petitioner can file a successive petition in a district court, the petition must be presented to a three-judge panel of the U.S. Court of Appeals which must determine whether the petition makes a prima facie showing that it meets these requirements.

15 The U.S. Supreme Court concluded that these new provisions do not constitute a suspension of the Writ of Habeas Corpus prohibited by the Constitution.

16 The Court also concluded that the new law, which sought to deny petitions for rehearing at the Court of Appeals and petitions to the Supreme Court for certiorari, does not preclude the Supreme Court from entertaining an application for habeas corpus relief. The Court's consideration is "informed" by the new provisions.

Long before Congress acted, the Supreme Court, at the urging of Chief Justice William Rehnquist, had erected numerous barriers to the vindication of violations of the Bill of Rights through habeas corpus.

Then-Justice Rehnquist authored the Court's opinion in Wainwright v. Sykes,

17 which set new, strict rules of procedural default. Subsequent decisions from the Court has made clear that those rules are air tight and unreasonable.

18 The Court had also excluded Fourth Amendment claims from habeas corpus review,

19 made it more difficult for a habeas petitioner to obtain an evidentiary hearing to prove a constitutional violation,

20 adopted an extremely restrictive doctrine regarding the retroactivity of constitutional decisions,

21 reduced the burden on the states to establish harmless error once a constitutional violation was found,

22 and erected new barriers to the filing of a second habeas petition.

23 Justice Harry Blackmun found the majority of the Supreme Court to be on a "crusade to erect petty procedural barriers in the path of any state prisoner seeking review of his federal constitutional claims" which had resulted in "a Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments to the vindication of federal rights."

24 Justice John Paul Stevens observed that "the Court has lost its way in a procedural maze of its own creation" and "grossly misevaluated the requirements of 'law and justice.'"

25 Instead of pointing a way out of the maze, Congress has contributed to its complexity by adding even more barriers which will produce even more arbitrary and unjust results.

Denial of Counsel to Those Most in Need
Before mourning the decimation of the resource centers (which are also called post-conviction defender organizations), it is appropriate to celebrate for a moment the outstanding work done by the people at those programs under extraordinarily difficult circumstances in complex cases involving the highest stakes.

The resource centers, created in 1987, were small programs which were given an enormous responsibility. All together the resource centers had about 200 lawyers to deal with the post-conviction representation of over 3000 men, women and children condemned to death.

When the resource centers were created, it was envisioned that they would be jointly funded by the state and federal governments to recruit lawyers to provide representation to the condemned in both state and federal collateral review. But many states with the largest death rows, such as Texas, Alabama and Nevada, refused to make any contribution to their state resource centers.

As a result, many of the centers were understaffed. They had too many complex cases which had to be litigated under immense pressure without adequate time or resources. But they proved what a difference dedicated lawyers can make by building an expertise, working long hours, thoroughly investigating every aspect of a case, and never giving up.

Walter McMillian, an African-American sentenced to death in Monroeville, Alabama, who spent six years on that state's death row, is free today because Bryan Stevenson and other lawyers at the Alabama Resource Center proved that he was innocent of the murder for which he had been condemned to die.

26 Lloyd Schlup is alive today because Sean O'Brien and other lawyers at the resource center in Missouri developed evidence of his innocence. After first being denied federal habeas corpus relief, the lawyers persuaded the United States Supreme Court to give them an evidentiary hearing.

27 At the hearing, they presented evidence demonstrating that Schlup was entitled to habeas corpus relief.

28 Curtis Lee Kyles is alive today because the resource center in Louisiana marshalled evidence of his innocence and, in a federal habeas corpus case, persuaded the Supreme Court that Kyles was entitled to a new trial because the prosecution had failed to disclose critical exculpatory evidence.

29 In addition to providing direct representation, the lawyers at the resource centers recruited lawyers to provide pro bono representation. Together they exposed constitutional violations in other cases, resulting in numerous death sentences being set aside and new trials ordered. A committee of federal judges concluded that the resource centers were cost effective and enhanced the quality of representation in capital cases.

30 Because the resource centers made a difference, they came under attack by the National Association of Attorneys General. The attack was led by the new attorney general of South Carolina who ran on a promise to replace the state's electric chair with an electric sofa so that more people could be executed at one time.

31 Undoubtedly, it is a bad reflection on the criminal justice system that innocent people are being sentenced to death, but the elimination of funding for the resource centers does not solve this problem. It only hides it and increases the likelihood of injustices going uncorrected.

The elimination of funding has resulted in the closing of resource centers in some states. Those sentenced to death in Mississippi have nowhere to turn to seek counsel. Other resource centers are a mere shadow of their former selves. For example, the resource center in Texas, which once had a budget of over $3 million and 25 attorneys, now has a budget of only $50,000 and a single lawyer.

Some programs, through heroic efforts of the lawyers remaining there, have managed to survive. For example, Bryan Stevenson and three other attorneys have created without any state or federal money a new entity called the Equal Justice Initiative, which provides representation to those facing the death penalty in Alabama. But four lawyers cannot begin to represent all 150 people on Alabama's death row or provide assistance to lawyers defending an equal number of new capital cases in the trial courts.

Some states, such as Georgia and Mississippi, provide no compensation to lawyers for representing inmates in state post-conviction proceedings. Others have unreasonable limits on what lawyers may receive for representing an indigent person in state collateral proceedings. Texas, which has 400 people under death sentence, limits compensation at $7500. Other states pay only a token amount, such as the $600 that Alabama pays for post-conviction representation.

Not surprisingly, many of those under death sentence in these states are without counsel to represent them in post-conviction proceedings. Over 20 condemned persons in Alabama and Georgia are without counsel and there are many more in other states. Although appointment of counsel and compensation under the Criminal Justice Act is provided for habeas corpus representation in the federal courts, inmates first need lawyers to represent them in seeking remedies through the state post-conviction proceedings. Those seeking federal review are required to first seek any state remedies before petitioning for federal relief. And many inmates on death row do not even know how to ask that a lawyer be appointed for them.

Thus, even in capital cases, some people may be denied their day in court because they do not have a lawyer and cannot comply with the statute of limitations. The clock is ticking on many inmates who have completed direct appeal but have no lawyer to file applications for state post-conviction relief.

Indifference to Injustice

In restricting habeas corpus and eliminating funding for the resource centers, Congress has shown a remarkable indifference to injustice. The starkest example is the adoption of a statute of limitations on habeas corpus that is not tied to the provision of counsel. Even worse, Congress took away counsel for the condemned before adopting the statute.

Never before in the nation's history has there been a statute of limitations on habeas corpus. The time limits in the new habeas law will be challenged as a suspension of habeas corpus prohibited by the Constitution.

32 However, if they are upheld, many people convicted of crimes who are without counsel will be unable to pursue relief before the statute of limitations expires.

The Supreme Court has held that the states are not required to provide counsel for the poor for post-conviction review,

33 even in capital cases.

34 For hundreds of those serving non-capital sentences and even for some under death sentence, the time will run out before they can get a lawyer and get to court.

The statute of limitations also creates the possibility of fatal consequences to the client for a mistake by counsel. The person whose lawyer misses the deadline created by the statute of limitations apparently will be barred from ever seeking federal review.

35 Indifference to injustice is most obvious as the new law applies to capital cases. The changes in habeas corpus law were aimed specifically at capital cases and funding for capital resource centers was eliminated despite undeniable signs that something is fundamentally wrong with the way in which people are being sentenced to death in the United States.

"The recent development of reliable scientific evidentiary methods has made it possible to establish conclusively that a disturbing number of persons who had been sentenced to death were actually innocent," U.S. Supreme Court Justice John Paul Stevens observed in a speech to the American Bar Association (ABA) in July.

36 In the 20 years since the Supreme Court upheld the resumption of capital punishment, 59 persons sentenced to death have been freed after establishing their innocence.

37 Justice Stevens told the ABA that "the cases in which the innocence of death row inmates has been established in protracted post-conviction proceedings" are the "unfortunate consequences" of the failure to provide competent counsel in many capital cases.

38 Another sign that something is wrong is that federal courts have found constitutional violations and granted habeas corpus relief in 40 percent of the capital cases they have reviewed.

39 In some states the percentage is even higher. In Georgia, for example, the federal courts have set aside either the conviction or death sentence in two-thirds of the capital cases they have reviewed. Many of those sentenced to death at trials marred by constitutional violations were not sentenced to death at their retrials.

Additionally, virtually every report that has examined the operation of the death penalty has found racial discrimination and arbitrariness in its infliction.

40 One of the most recent reports reaching this conclusion was issued in July by the International Commission of Jurists, a highly regarded organization made up of jurists from around the world, after a visit to the United States and extensive study by members from Australia, India, Nigeria and Sweden.

41 The removal of state court judges from office by voters after campaigns in which capital punishment was the central issue is another indication that capital cases are often caught up in the passions and prejudices of the moment. It is particularly in such cases that racial minorities, the poor, the unpopular and the despised need the protection of independent, life-tenured federal judges, not judges who must be looking over their shoulders at the next election.

Justice Penny White was voted off the Tennessee Supreme Court in August in a retention election which became a referendum on the death penalty. Since Rose Bird and three of her colleagues were voted off the California Supreme Court in 1986 because of their votes in capital cases, trial and appellate judges in other states have also been removed from the bench for being "soft" on the death penalty.

42 The judges who remain on those courts know that by issuing a unpopular ruling, even though required by the Constitution, they may be signing their own political death warrants.

These indications that something is terribly amiss might be reasons to reconsider the appropriateness of capital punishment or, at least, to ensure that those facing the ultimate punishment were adequately represented and their cases carefully reviewed. But the reverberations of injustice were ignored by a Congress caught up in the politics of crime, in which each political party attempts to demonstrate that it is tougher than the other.

Responding to the Challenge

The great challenge posed by this sad state of affairs is to see that no person faces the executioner alone. Unless hundreds of lawyers volunteer their services immediately, many persons condemned to death in violation of the Constitution will be denied state and federal review of their claims simply because they do not have counsel to pursue relief.

The National Association of Criminal Defense Lawyers (NACDL) has moved swiftly to respond to this crisis. Before the restrictions on habeas corpus had been passed, the NACDL Board of Directors had hired Renée McDonald to be the organization's death penalty resource counsel. But the success of NACDL's efforts will depend upon the response of its members to this crisis.

The responsibilities of the resource counsel include involving NACDL members in responding to the need for representation, developing a catalog of resources, assisting lawyers in the direct representation of individuals facing the death penalty, and alerting the membership to significant developments in the courts or legislatures.

The most immediate and urgent need is for representation at every level of the process. Scores of condemned persons all across the country are desperately in need of lawyers to represent them in state and federal post-conviction proceedings. It is important that these people not only be represented, but represented well and aggressively in mounting challenges to various aspects of the new habeas law. Anyone willing to take a case should contact Renée McDonald at (404) 688-1202.

Many individuals facing the death penalty could avoid the post-conviction review process altogether if they were adequately defended at trial. But judges in many jurisdictions appoint the least experienced and least capable lawyers to defend capital cases and then deny the compensation and funds for experts necessary to defend the cases properly.

In jurisdictions where this occurs, efforts must be made to bring about indigent defense systems that are independent of judges and committed to the zealous defense of the accused. While that will make a difference in the long term, there remains a need for capable, caring lawyers to provide representation in individual cases. Defense lawyers in some communities have come together to ensure that all of those facing death receive adequate representation at trials. Similar efforts are needed in other communities.
In addition, members of Congress must be made aware of the injustices which are resulting from their irresponsible actions.

Congress should be urged to restore immediately funding for counsel to represent the condemned in post-conviction proceedings. Because capital post-conviction litigation involves a very complex and demanding area of the law, the same specialization is needed for counsel litigating habeas cases on behalf of petitioners that the states receive in defending those actions from offices of their attorneys general.

Members of the House and Senate must be urged to resist any further efforts to eliminate federal habeas corpus review. Instead, as discussed at the NACDL legislative fly-in, they should be encouraged to offer legislation to restore the Writ of Habeas Corpus to its proper place as the common law world's "freedom writ."

NOTES:
1. Smith v. Bennett 365 U.S. 708, 712-13 (1961), quoting Bowen v. Johnson, 306 U.S. 19 26 (1939).
2. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
3. The Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214, 101, 105, amending 28 U.S.C. Title 153, to establish a one-year statute of limitations. A statute of limitations of 180 days is provided by 107 of the Act for states which meet certain standards of providing counsel in capital post-conviction proceedings. The time limits for petitions filed under 28 U.S.C. 2255 are discussed by Alan Ellis, Peter Goldberger and Nancy Simmons in It's Not Too Late: Time Period for Filing 2255 Motions Under the New Habeas Reform Law, The Champion, July 1996.
4. The Anti-Terrorism and Effective Death Penalty Act of 1996, 104(3).
5. Id., 104(4).
6. Id., 105, 106 (limiting any successive habeas corpus petition to constitutional violations which resulted in the conviction of an innocent person or involved a new rule of law that applies retroactively to cases on collateral review).
7. Carter v. Rafferty, 621 F. Supp. 533 (D. N.J. 1985), aff'd, 826 F.2d 1299 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988).
8. See, e.g., Rubin "Hurricane" Carter, Keynote Address, 35 Santa Clara L. Rev. 425 (1995).
9. Amadeo v. Zant, 486 U.S. 214 (1988).
10. Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991), cert. denied, 117 L. Ed. 2d 652 (1992).
11. Smith v. Kemp, 664 F. Supp. 500 (M.D. Ga. 1987), aff'd by equally divided court, 887 F.2d 1407 (11th Cir. 1989).
12. The Anti-Terrorism and Effective Death Penalty Act of 1996, supra, 104(3).
13. 116 S. Ct. 2333 (1996).
14. Anti-Terrorism Act, supra, 106(b)(2).
15. Id., 106(b)(3)(C).
16. U.S. Const. Art. I, 9, Clause 2.
17. 433 U.S. 72, 88-91 (1977).
18. See, e.g., Coleman v. Thompson, 501 U.S. 722 (1991); Dugger v. Adams, 489 U.S. 401 (1989); Smith v. Murray, 477 U.S. 527, 533-36 (1986); Engle v. Isaacs, 456 U.S. 107, 130-34 (1982); Timothy J. Foley, The New Arbitrariness: Procedural Default of Federal Habeas Claims in Capital Cases, 23 Loy. L.A. L. Rev. 193 (1989).
19. Stone v. Powell, 428 U.S. 465 (1976).
20. Keeney v. Tamayo-Reyes, 112 S. Ct. 1715 (1992).
21. Teague v. Lane, 489 U.S. 288 (1989). For a discussion of the Court's retroactivity doctrines, see James S. Liebman, More than "Slightly Retro:" The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. Rev. L. & Soc. Change 537 (1991).
22. In Brecht v. Abrahamson, 113 S. Ct. 1710 (1993), the Court held that habeas corpus relief is not to be granted unless the court concludes that the constitutional error had "substantial and injurious effect or influence in determining the verdict." In contrast, on direct appeal, once a constitutional violation is established relief must be granted unless the government can establish that the error was "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18 (1967).
23. McCleskey v. Zant, 499 U.S. 467 (1991).
24. Coleman v. Thompson, 501 U.S. 722, 758-759 (1991) (Blackmun, J., dissenting).
25. Smith v. Murray, 477 U.S. 527, 541 (1986) (Stevens, J., dissenting).
26. Peter Applebome, Black Man Freed After Years on Death Row in Alabama, N.Y. Times, Mar. 3, 1993, at A1. See also Pete Earley, Circumstantial Evidence: Death, Life and Justice in a Southern Town (Bantam Books, 1995).
27. See Schlup v. Delo, 115 S.Ct. 851 (1995).
28. Schlup v. Bowersox, No. 4:92CV433-JCH, Memorandum Opinion and Order of May 2, 1996 (D. Mo. 1996).
29. Kyles v. Whitley, 115 S .Ct. 1555 (1995).
30. Committee on Defender Services, Judicial Conference of the United States, Report of the Subcommittee on Death Penalty Representation (June 1995).
31. Marcia Coyle, Republicans Take Aim At Death Row Lawyers, Natl. L. J., Sept. 11, 1995 at A1, A25.
32. U.S. Const. Art. I, 9, Clause 2.
33. Ross v. Moffitt, 417 U.S. 600 (1974).
34. Murray v. Giarratano, 492 U.S. 1 (1989).
35. See, e.g., Coleman v. Thompson, 501 U.S.722 (1991) (federal habeas review of issues raised in state post-conviction proceedings barred because counsel failed to file notice of appeal on time in the state courts).
36. Justice John Paul Stevens, Opening Assembly Address, American Bar Association Annual Meeting, Aug. 3, 1996, at 13.
37. Ted Gest, A House Without a Blueprint, U.S. News & World Report, July 8, 1996
38. Justice John Paul Stevens, supra, at 12. For a description of the lack of indigent defense systems and the state of indigent defense, see Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L. J. 1835, 1849-1855 (1994).
39. Liebman, supra, at 541 n. 15.
40. See, e.g., U.S. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (1990) (reporting that a synthesis of 28 studies shows a pattern of racial disparities in charging, sentencing and imposition of the death penalty in the statutes adopted since 1972); Stephen B. Bright, Discrimination, Death and Denial:
The Tolerance of Racial Discrimination in the Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995) (describing racial discrimination in the infliction of the death penalty and the failure of courts to deal with it).

41. International Commission of Jurists, Administration of the Death Penalty in the United States (June 1996).
42. See Stephen B. Bright and Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 Bos. U. L. Rev. 759 (1995) (describing numerous instances in which judges have been voted off state courts because of their votes in capital cases).

MUMIA ABU-JAMAL, Petitioner, v. Case No. 99 Civ. 5089 (Yohn): AMICUS CURIAE BRIEF IN SUPPORT OF : PETITION FOR WRIT OF HABEAS CORPUS :

(THIS IS A CAPITAL CASE)

At: http://www.nlg.org/news/mumia/brief_insupportof_habeas.htm

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MUMIA ABU-JAMAL,

Petitioner,

v. Case No. 99 Civ. 5089 (Yohn)

MARTIN HORN, Commissioner,
Pennsylvania Department of Corrections,
and CONNER BLAINE, Superintendent
of the State Correctional Institute at Greene,

Respondents.
___________________________________________/
AMICUS CURIAE BRIEF IN SUPPORT OF
PETITION FOR WRIT OF HABEAS CORPUS


(THIS IS A CAPITAL CASE)

Center for Human Rights and Constitutional Law
International Association of Democratic Lawyers
National Lawyers Guild
Southern Poverty Law Center
National Conference of Black Lawyers
Prisoners Self Help Legal Clinic

By: JOSEPH Z. TRAUB, ESQUIRE
1204 Walnut St., #4
Philadelphia, PA 19107
(215) 893-9051

A. Introduction
The undersigned amici curiae submit the present Brief in support of Mumia Abu-Jamal's Petition for Writ of Habeas Corpus. The present Brief underscores the full magnitude of the rights and interests at issue in the Petition under consideration, discusses the parameters of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), and concludes that Petitioner is entitled to an evidentiary hearing on the merits of his Petition. The writ of habeas corpus as a remedy for wrongful incarceration is of transcendent historical significance in American law, long predating the colonization of North America and the creation of the United States. The power of federal courts to grant habeas corpus relief has expanded over time. Federal courts now have full power to determine whether an individual's incarceration is in violation of the Constitution or federal law, in a civil proceeding independent from the state criminal proceedings and requiring a full evidentiary hearing.

This power was not diminished by the passage of the AEDPA. The AEDPA merely instituted a requirement that federal courts pay a certain degree of procedural deference to state court proceedings, by requiring that the state court's decision be evaluated on the basis of its adherence to then-established Supreme Court law. Further, the AEDPA does not retroactively apply to Petitioner's cause, if it would diminish the Constitutional protections to which he was entitled before its passage. Petitioner is entitled to a full evidentiary hearing on the merits of his Petition. A federal court is obliged to hold its own evidentiary hearing on habeas corpus if, among other factors, the fact-finding procedures employed by the State were not adequate to afford a full and fair hearing, the material facts were not adequately developed at the state court hearing, the application did not receive a full, fair and adequate hearing in the state court proceedings, or the state court trier-of-fact has not reliably found the relevant facts. Amici Curiae respectfully request that this Court grant a full evidentiary hearing on the Petition for Writ of Habeas Corpus.

B. Habeas Corpus Review
Habeas corpus is a remedy whose "most basic traditions and purposes" are to "avoid the grievous wrong of holding a person in custody in violation of the Federal Constitution [or laws or treaties] and thereby both protect individuals from unconstitutional convictions and help to guarantee the integrity of the criminal process by assuring that trials are fundamentally fair." O'Neal v. McAninch, 513 U.S. 432, 442, 115 S. Ct. 992, 997 (1995). Further, habeas corpus is a remedy that "has been for centuries esteemed the best and only sufficient defense of personal freedom" which, if withdrawn, "risk[s] injury to an important interest in human liberty." Lonchar v. Thomas, 517 U.S. 314, 116 S. Ct. 1293, 1299 (1996), quoting Ex parte Yerger, 75 U.S. (8 Wall.) 85, 95 (1869) (emphasis added).

The United States Supreme Court has consistently found that "because there is a qualitative difference between death and any other punishment, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 2747 (1983), citing Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991 (1976). "[E]very member of this [the United States Supreme] Court has written or joined at least one opinion endorsing the proposition that because of its severity and irrevocability, the death penalty is qualitatively different from any punishment, and hence must be accompanied by unique safeguards[.]" Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 3166-67 (1985).
See also, Monge v. California, 524 U.S. 721, 118 S. Ct. 2246, 2252 (1998), quoting Gardner v. Florida, 430 U.S. 349, 357-58 (1997), citing Lockett v. Ohio, 438 U.S. 586, 604 (1978) (Opinion of Burger, C.J.) ("qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed").

While there is a responsibility not to interfere with the sovereign power of the State, it is also the right and the duty of the federal courts to conduct its judicial work in a manner that reflects the seriousness of inflicting the death penalty upon a human being. Williams v. Chrans, 50 F.3d 1358, 1360 (7th Cir. 1995) (per curiam). In fact, the federal court's "duty to search for constitutional error with painstaking care is never more exacting than in a capital case." Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 1560 (1995). Although not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state court judgment, the severity of the sentence mandates a careful scrutiny in the review of any colorable claim of error. Zant, supra, at 2747.

C. History Of The "Great Writ"
This case follows several centuries of well established Anglo-American habeas corpus jurisprudence. That body of decisions is founded on an early recognition that "[t]he right of personal liberty" is an "absolute right" established on the firmest basis by the provisions of Magna Carta, and a long succession of statutes enacted under Edward III. Blackstone's Commentaries, Book III, Ch. 8, §§ 119, 128-29, at 1115, 1126 (Lewis' Ed., Reese, Welsh & Company 1897).
Further:
[w]e know - it is a maxim - that this right of liberty must have had a remedy, and, if none was known, one must have been invented after 1215; and that one was invented before 1640 or 1679[.] the great writ must have been contrived in that interim. Hallam, Const. Hist. 617, narrates that in the case of a freeman detained in prison on a criminal charge 'it was always,' that is before 1679, in his power to demand the King's Bench a writ of habeas corpus[.]

George F. Longsdorf, Habeas Corpus: A Protean Writ and Remedy, 8 F.R.D. 179 (1949). This remedy that was invented was, in fact, the "great and efficacious writ in all manner of illegal confinement
[] habeas corpus ad subjiciendum; [It was] directed to the person detaining another, [] commanding him to produce the body of the petition
[] to do, submit to, and receive, whatsoever the judge or court awarding such writ shall consider in that behalf." Blackstone Commentaries, supra, § 131, at 1127.
Originally, the Writ of Habeas Corpus was simply a judicial mechanism by which the sheriff or other custodian was commanded to "have the body" of some person before the court. Notwithstanding its early purposes and functions, its use as a means of correction is well illustrated by cases decided in the latter part of the fourteenth century.

The writ is particularly significant because it goes much further than demanding the presentment of the prisoner's body together with the cause of his taking and detention, in that it includes an explicit statement of the court's intention upon examination: 'in order that the king might give order for his delivery according to right and the law and custom of the realm.'

William F. Ducker, The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame, 53 N.Y.U. L. Rev. 983, 1009 (1978). In 1629, Chamber's Case confirmed that the writ of habeas corpus had assumed a new role.
[] The questioning of the validity of commitments, previously an incidental effect of the writ, now became the major object. It was at this point, then, that the writ of habeas corpus embarked upon its journey as 'the highest remedy in law, for any man that is imprisoned.'" Ducker, supra, at 1035.
Yet, abuse of the writ by the English courts was common.
1 These abuses led to legislation that culminated in the passage of the "Habeas Corpus Act of 1679." The Act formalized certain provisions of the habeas corpus law [including adding penalties for evasion of the writ], but "all other cases of unjust imprisonment [were] left to the habeas corpus at common law." Blackstone Commentaries, supra, § 137, at 1133. "It should be noticed that the [Act of 1679] did not grant anything new; that it did not make habeas corpus, but merely made efficient a writ, which was recognized as already existing." A.H. Carpenter, Habeas Corpus in the Colonies, 8 Am. Hist. Rev. 18, 19 (1902). In fact, "the development of habeas corpus can largely be attributed to the unconscious forces of constitutional law.
[] The writ became a viable bulwark between the powers of government and the rights of the people in both England and the United States." Ducker, supra, at 1054.

D. Habeas Corpus In The United States
"Habeas Corpus came to America and became part of the common and statute laws of the several states and of the United States." Longsdorf, supra, at 181.
Habeas corpus was "claimed as among the immemorial rights descended to [the Colonists] from the ancestors." Yerger, supra, at 96.
"[T]he habeas corpus, brought by our ancestors as their birthright, to this country, was the common law habeas; that great embodiment of free principle, which [was] born with the sturdy Roman [and] preserved by the free Saxon." In re McDonald, 16 Fed. Cas. 17, 31 (E.D. Mo. 1861) (Treat, J.).

The writ "was a common law writ and remedy.
[] It was therefore common law in the Colonies and the several States." George F. Longsdorf, The Federal Habeas Corpus Acts: Original and Amended, 13 F.R.D. 407 (1953). "[T]he rights of the colonists as regards the writ of habeas corpus rested upon the common law with the exception of South Carolina, which re-enacted the English statute. The lack of statute did not mean that the colonists had no protection for their personal rights, for the want was supplied by the common law, and also by the placing of habeas corpus provisions in their court laws." Carpenter, supra, at 26. "That [petitioning for the writ] must have been a common practice is
[] shown by Samuel Sewall, for he speaks in his Diary, Dec. 11, 1705, of issuing of habeas corpus." Carpenter, supra, at 21.
With the birth of the Union came the debates concerning principles of comity and federalism. "The powers delegated by the proposed Constitution to the federal government [were] few and defined. Those which [were] to remain in the State governments [were] numerous and indefinite.
[] The powers reserved to the several States [would] extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people." The Federalist No: 45, 1787 (Rossiter ed., Mentor printing at 292-93 1961) (emphasis added). "The United States recognized the Great Writ as inherited common law by Const. Art. I, Sec. 9." Longsdorf, supra, 8 F.R.D. 181. "Considered by the Founders as the highest safeguard of liberty, it was written into the Constitution that its 'privilege' shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it."
Const. Art. I, Sec. 9, Cl. 2; Smith v. Bennett, 365 U.S. 708, 81 S. Ct. 895, 897-98 (1961).
Yet, "[i]n the early days of the Republic, the colonists viewed the writ
[] as protection for citizens only against the new federal government.
[] The colonists had no fear that their states might abuse their power.
Accordingly, the Judiciary Act of 1789 made the writ available only to federal prisoners and prohibited any inquiry by the federal courts into the propriety of state custody."
Hartman & Nyden, Habeas Corpus and the New Federalism After the Anti-Terrorism and Effective Death Penalty Act of 1996, 30 John Marshall L. Rev. 337, 339 (1997).

E. Congressional Alterations Of Habeas Corpus
Pursuant to the Judiciary Act of 1789 (1 Stat. 81), the United States Supreme Court "dislaim[ed] all jurisdiction not given by the constitution or by the laws of the United States." Ex parte Bollman, 8 U.S. 75, 94 (1807).
The "restriction is interposed by the proviso to the fourteenth section of the act.
[] It is in these words: 'Provided, that writs of habeas corpus shall in no case extend to prisoners in jail, unless they are in custody under or by color of the authority of the United States.'"
2 The object of the proviso "was to prevent any possible conflict between the federal and state tribunals.
[] The proviso simply inhibits [the federal courts] from sending the writ to persons in legal custody in jail, unless there under the authority of the United States." Ex parte Des Roches, 7 Fed. Cas. 537, 539 (C.C. Cal. 1856); see also In re McDonald, supra, at 22. Unquestionably, though, the federal courts had the power to grant the writ in all other cases it would reach at common law. Des Roches, at 538.

Habeas corpus proceedings were governed by the common law of England, as it stood at the adoption of the Constitution, subject to such alterations as Congress might see fit to prescribe. McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454, 1461 (1991); see also Ex parte Kaine, 14 Fed. Cas. 78, 80 (S.D. N.Y. 1853), citing Ex parte Watkins, 3 Pet. (28 U.S.) 193 (1830).
Yet, the powers of Congress to regulate the writ were not unlimited since habeas corpus was viewed as "an indefeasible privilege, above the sphere of ordinary legislation." And, if Congress had attempted to deny all federal jurisdiction or limit or declare in which specific instances the writ could be issued, "it would be difficult to escape the conclusion that the ancient and venerable privilege of the writ of habeas corpus had not been in some degree suspended, if not annulled." In re McDonald, supra, at 29.

The decisions of the federal courts refusing to grant habeas corpus relief because of a lack of jurisdiction, though, in no way diminished the historical fact that habeas corpus lay to "test any restraining contrary to fundamental law." The Framers, as well as every Colonist, clearly expected that the States would fully and fairly make available the Great Writ as it was known at common law and in the court rules of the various Colonies. The Federal Constitution's Suspension Clause merely guaranteed that the writ would not be suspended except in extraordinary circumstances. This provision thus insured that if the States failed in their responsibilities, the United States Constitution would authorize federal intervention, since habeas corpus is a right of national citizenship protected by the Privileges and Immunities Clause.
See Slaughter House Cases, 83 U.S. (16 Wall.) 36, 114-15 (1872) (Bradley, J. dissenting).

As the Union aged, Congress found it necessary to amend the habeas corpus jurisdictional statues from time to time because of the failings of the States. While a State might not abuse its powers against one of its own citizens, an abuse of power might be directed towards others. In fact, the experiences of history taught, and the National Congress was quick to recognize, that the States were not always true to the purposes of the Great Writ. Thus, Congress determined that federal courts must have jurisdiction to enforce the fundamental purposes of the writ of habeas corpus to prevent de facto suspension of the Great Writ.3 congress then used "[t]he habeas corpus jurisdictional statute [to] implement[] the constitutional command that the writ of habeas corpus be made available." See Jones v. Cunningham, 371 U.S. 236, 238, 83 S. Ct. 373 (1963).

All the significant statutory changes in the federal writ have been prompted by grave political crises. The first modification [] was made [] March 2, 1833 [] in response to South Carolina's nullification ordinance. The Act provided that federal courts and judges could release from state custody persons who had been acting under federal authority. The Act of August 29, 1842 [] which extended federal habeas to foreign nationals acting under authority of a foreign state, was prompted by British diplomatic protest following the trial of a Canadian soldier by a New York court. [] The Act of February 5, 1867 [] which extended federal habeas to state prisoners generally, was passed in anticipation of possible Southern recalcitrance toward Reconstruction legislation.

Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 828, n. 9 (1963).
"[T]he general spirit and genius of our institutions has tended to the widening and enlarging of the habeas corpus jurisdiction of the courts and judges of the United States." Yerger, at 102 (1868). In 1867, Congress sought to provide a federal forum for state prisoners having constitutional defenses by extending the habeas corpus powers of the federal courts to their constitutional maximum. Fay, supra, at 842. The legislation was "of the most comprehensive character. It br[ought] within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties, or laws. It [wa]s impossible to widen the jurisdiction." Ex parte McCardle, 73 U.S. 318, 325-26 (1867).

"[W]hen the 1867 Congress provided that persons restrained of their liberty in violation of the Constitution could obtain a writ of habeas corpus from a federal court, it undoubtedly intended [] to incorporate the common law uses and functions of this remedy." Dallin Oaks, Legal History in the High Court - Habeas Corpus, 64 Mich. L. Rev. 451, 452 (1966). "[T]he Act of 1867 [] restored rather than extended the common-law powers of the habeas judge." Fay, supra, at 868, n. 27. And, even though the appellate jurisdiction of the Supreme Court was rescinded by the Act of March 27, 1868 (14 Stat. 44), final action in habeas cases rested with the district and circuit judges. Charles Warren, The Supreme Court in United States History, Vol. II, at 687 (Little, Brown & Company 1935). Thus, since 1867, the full and complete common law usages of the Writ of Habeas Corpus have come within the "jurisdiction" of the federal courts.

F. Common Law Habeas Corpus
"The more liberal principles . . . of the common law" regulate the exercise of writ of habeas corpus. In re McDonald, supra, at 31. And, since "[t]he common law [] ought not to be repealed unless the language of a statute be clear and explicit for that purpose," Fairfax's Devisee v. Hunter's Lessee, 11 U.S. 603, 623 (1812), and no act of Congress has ever repealed the common law of habeas corpus, those common law usages are still appropriately considered in habeas litigation.
The Supreme Court has acknowledged this when, upon their consideration of centuries of Anglo-American common law, the Court held that:

. . . the Great Writ, habeas corpus ad subjiciendum [] is a writ antecedent to statute [] throwing its root deep into the genius of our common law [] affording as it does a swift and imperative remedy in all cases of illegal confinement. It is immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. [] Received into our own law in the colonial period, given explicit recognition in the Federal Constitution[,] incorporated in the first grant of federal court jurisdiction[,] there is no higher duty than to maintain it unimpaired.

Fay, supra, at 827-28. See also Eisentrager v. Forrestal, 174 F.2d 961, 964 n. 12 (D.C. Cir. 1949); Ex parte Thompson, 96 A. 102, 85 N.J. Eq. 221 (N.J. Ch. 1915). Even today, the United States Supreme Court consistently adheres to the principle that habeas corpus is, "at its core, an equitable remedy." Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 863 (1995). Statutes, rules, precedents, and practices control the writ's exercise. Within constitutional constraints, they reflect a balancing of sometimes controversial objectives which are normally for Congress to make, but which courts will make when Congress has not resolved the question. Lonchar, supra, at 1298. As such, the Supreme Court has, at times, even ignored statutory changes that attempted to limit habeas corpus, review.

In Kuhlmann,4 seven Members of th[e] Court squarely rejected the argument that in light of the 1966 amendments, 'federal courts no longer must consider the "ends of justice" before dismissing a successive petition.' [] [I]n Kuhlmann, [w]e held that despite the removal of [the reference to the ends of justice] from 28 U.S.C. Sec. 2244(b) in 1966, the miscarriage of justice exception would allow successive claims to be heard.

Schlup, supra, at 863; see also Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S. Ct. 1618, 1621 (1998) (interpretation of "second or successive" language in AEDPA to preclude later consideration of claims dismissed initially as untimely would be "perverse").
Simply put, the various habeas corpus jurisdictional statutes could not restrict and, thus, did not change the time honored and constitutionally guaranteed understanding of the purposes, common law usages and availability of the Writ of Habeas Corpus ad Subjiciendum. "The history of the writ indicates that it constitutes a prompt avenue of redress for grievances second to none. [R]estrictions upon its availability must be narrowly construed, must be clear and unequivocal, and not [] imposed by judicial gloss." United States ex rel. Norris v. Norman, 296 F. Supp. 1270, 1272-73 (N.D. Ill. 1969) (Parsons, J.). And, restrictions upon the constitutional availability of the writ must not now be imposed by legislative gloss since "the Suspension Clause of the Constitution refers to the writ as it exists today." Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 2340 (1996). "[S]ince [1867], Congress has generally left it within the federal court's equitable discretion to determine the specific conditions that warrant habeas relief. (cites) Habeas corpus doctrine has thus ebbed and flowed over the years as courts' understandings of what 'law and justice require' have changed." Gomez v. Acevedo, 106 F.3d 192, 197 (7th Cir. 1997). The AEDPA does not change that this Court is to "dispose of the matter as law and justice require." 28 U.S.C. § 2243 (1996).

G. Nature And Procedures Of A Habeas Corpus Action
Habeas corpus, technically speaking, is a civil proceeding. O'Neal, supra, at 996. "[T]he traditional characterization of the writ of habeas corpus as an original [] civil remedy for the enforcement of the right to personal liberty, rather than a stage of the state criminal proceedings or as an appeal therefrom, emphasizes the independence of the federal habeas proceedings from what has gone before. Fay, supra, at 841.

As the Supreme Court has noted:
Habeas Corpus is not an appellate proceeding, but rather an original civil action in a federal court. (cites) [I]t is a new suit brought by [the petitioner] to enforce a civil right. (cite) Any possible doubt about this point has been removed by the statutory procedure Congress has provided for the disposition of habeas corpus petitions, a procedure including such non-appellate functions as the allegation of facts [] the taking of depositions and the propounding of interrogatories [] the introduction of documentary evidence [] and, of course, the determination of facts at evidentiary hearing.

To be sure, habeas corpus has its own peculiar set of hurdles a petitioner must clear before his claim is properly presented to the district court. The petitioner must, in general, exhaust available state remedies (cite), avoid procedural default (cite), not abuse the writ (cite) and not seek retroactive application of a new rule of law. (cite) [] But once they [the hurdles] have been surmounted - once the claim is properly before the district court - a habeas petitioner, like any civil litigant, has had a right to a hearing where one is necessary to prove the facts supporting his claim. (cites).

Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 1722 (1992) (emphasis added). Also, the Supreme Court has repeatedly noted the interplay between statutory language and judicially managed equitable considerations in the development of habeas corpus jurisprudence. Schlup, supra, at 863 n. 35.
As the writ has evolved into an instrument that now demands not only conviction by a court of competent jurisdiction (cite) but also application of basic constitutional doctrines of fairness (cite), Congress, the Rule writers, and the courts have developed more complex procedural principles that regularize and thereby narrow the discretion that individual judges can freely exercise. Those principles seek to maintain the courts' freedom to issue the writ, aptly described as the 'highest safeguard of liberty,' (cite), while at the same time avoiding serious, improper delay, expense, complexity, and interference with a State's interest in the 'finality' of its own legal processes. (cites) These legal principles are embodied in statutes, rules, precedents, and practices that control the writ's exercise.

Lonchar, supra, at 1298.
"When a federal district court reviews a habeas corpus petition pursuant to 28 U.S.C. § 2254, it must decide whether the petitioner is 'in custody in violation of the Constitution or laws or treaties of the United States.' The court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter." Coleman v. Thompson, 501 U.S. 722, 730, 111 S. Ct. 2546, 2554 (1991) (citations omitted).
H. The Amendments Of The AEDPA
Unaffected by the April 24, 1996 amendments5 to the habeas corpus statute, 28 U.S.C. § 2243 provides that, "[t]he Court shall summarily hear and determine the facts, and dispose of the matter as law and justice require" (emphasis added). "The task of a federal court reviewing a habeas petition remains the same as before: to determine whether a State prisoner is 'in custody in violation of the Constitution or laws or treaties of the United States.'" United States ex. rel Howard v. DeTella, 959 F. Supp. 859, 863 n. 4 (N.D. Ill. 1997) (Castillo, J.).

I. History And Legislative Intent Of The AEDPA
From 1867 until 1966, the federal courts treated a habeas corpus proceeding entirely as an original civil action. Murray v. Giarrantano, 492 U.S. 1, 8, 109 S. Ct. 2765 (1989). Although a prisoner had to exhaust state remedies, the federal court did not review the state court's decision but addressed the claims anew. Riddle v. Dyche, 262 U.S. 333, 335-36, 43 S. Ct. 555 (1928). The state decision "counted" only as a case on point from another jurisdiction, Brown v. Allen, 344 U.S. 443, 458, 73 S. Ct. 397 (1953), and thus had no statutory role in the federal adjudication.

In 1948, Congress codified the habeas jurisdictional provisions at 28 U.S.C. §§ 2241(c)(3) and 2254(a), providing federal courts jurisdiction to entertain petitions on behalf of state prisoners "in custody in violation of the Constitution." The 1996 amendments did not modify Sections 2241(c)(3) or 2254(a).

Today, as in 1867, a district court "shall entertain" an application and "forthwith" award the writ if the applicant shows that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2241(c)(3), 2243, 2254(a) (1996). These jurisdictional provisions were unchanged by the Antiterrorism and Effective Death Penalty Act.

In 1966, Congress adopted the original Section 2254(d), which required federal courts to give certain kinds of deference to state determinations of fact.6 If there had been a "full and fair" state fact-finding to which deference was owed, see 28 U.S.C. § 2254(d)(2) (1966), the federal judge "presumed [it] to be correct" unless "the applicant [] establish[ed] by convincing evidence that [it] was erroneous." Id. The 1966 version of Section 2254(d) thus required federal courts to give two kinds of deference to state court decisions of fact. First, was an important kind of procedural deference. The federal court was bound to (1) treat the state court determination as the focal point of its review, and (2) review the state determination to see if it was "correct" or "erroneous," and treat it as dispositive if correct. Second, was substantive deference. Section 2254(d) told federal courts to "presume[]" state fact determinations "to be correct" unless the petitioner could "establish [otherwise] by convincing evidence." Id. The 1966 version of Section 2254(d), however, required neither kind of deference to state legal determinations. See H.R. 1384, 88th Cong. 2d Sess. 23-24 (1964).

Congress addressed habeas corpus again in 1995 and 1996. Only the Senate conducted extended floor debate. But, before the new Section 2254(d) was proposed, the Senate defeated a proposal by Senator Kyl to repeal altogether the basic habeas jurisdiction in Sections 2241(c)(3) and 2254(a).7 Senator Hatch, Chairman of the Senate Judiciary Committee, voted against the Kyl proposal, expressing the majority's sense that it was "not [] advocat[ing] abolition of Federal habeas corpus." 141 Cong. Rec. S7826, S7836 (June 7, 1995). Accordingly, Senator Hatch wrote the proposal that became new Section 2254(d), to "correct" flaws in the system "while still preserving and protecting the constitutional rights of those who are accused." Id., at S7479 (May 25, 1995).

Congress set out to correct two perceived problems. First, it objected to the "disrespectful" treatment of state decisions under the "independent civil suit" approach.8 What troubled Section 2254(d) supporters was not federal review of state decisions to see if they were "properly adjudicated," but the requirement that federal courts ignore the state courts' efforts to comply with Federal law. See Id., at S3446 (Sen. Hatch). Second, Congress was distressed that federal habeas courts were relying on legal principles that had not existed when the state courts ruled.9 Worse, federal courts could rely on legal rules established by the lower federal courts as well as by the Supreme Court, increasing the risk that the case would be adjudicated based on legal principles different from those binding on the state courts when they ruled,10 making state decisions even less relevant.11 By changing habeas jurisdiction of legal questions in two important procedural respects, Section 2254(d) cures both defects. First, Section 2254(d) requires federal courts to treat a qualifying state "decision" on the law, as well as on the facts, as the focus of review (rather than allowing relitigation from scratch) and as dispositive unless it is shown to be wrong, i.e., "contrary to [] Federal law." Second, when deciding whether the state legal decision was correct, the federal court may rely only on law that, when the state courts ruled, was "clearly established" by the United States Supreme Court. 28 U.S.C. § 2254(d). And, unlike Teague, Section 2254(d)(1)'s already narrower review principle has no exceptions. Section 2254(d) requires procedural deference. It does not require reviewing federal judges to forego their own judgment about the meaning and effect of federal law. Instead, its language, statutory context and history simply extend to habeas the usual rule that, in deciding whether another court's legal decision is correct, the reviewing court exercises its own judgment.

Section 2254(d)(1) does not limit federal review of state legal decisions to "arbitrariness," "clear error," "abuse of discretion," or any other attribute needed to overcome a presumption in its favor; nor does it establish such a presumption. Rather, it tells the federal court to determine whether the state court decision was contrary to federal law. There is no mystery about this test. "Contrary to law" means either "in violation of statute or legal regulations" or "in conflict with the law contained in court's instructions." Black's Law Dictionary 328 (6th ed. 1990). Plainly, therefore, Section 2254(d)(1) tells a federal habeas judge reviewing a state court legal decision to place the decision alongside governing Supreme Court law to see whether the two are in conflict.

Via procedural deference, Congress intended to make state decisions dispositive unless shown to be incorrect under binding legal principles when the state courts ruled. But, Congress assumed that, when reviewing state decisions for legal correctness, federal judges would exercise their own best judgment. Senator Hatch, who drafted Section 2254(d), emphasized that the new statute "essentially gives the Federal court t